By Reg. Gen. 4 W. IV, reg. 5, " two counts upon the same policy of insurance are not to be allowed." But a count upon a policy of insurance, and a count for money had and received, to recover back the premium upon a contract implied by law, are to be allowed. The account stated may be joined," and there may be several breaches of the same contract." Since the new rules, every matter of defence, except a denial Pleadings of the subscription to the policy by the defendant must be specially pleaded. By Reg. Gen. H. T. 4 W. IV, the plea of nonassumpsit in an action on a policy of insurance will operate "as a denial of the subscription to the alleged policy by the defendant, but not of the interest or the commencement of the *risk of the loss, or of the alleged compliance with warranties." *1221 By reg. 3, "unseaworthiness, misrepresentation, concealment, deviation and various other defences must be pleaded." Proof of unseaworthiness, deviation, &c., lies on the insurer or the party pleading it.b As to what may be given in evidence under a plea of non est factum, in an action of debt or covenant, see ante. SECTION XXIII. CONSOLIDATION RULE. In actions on a policy of insurance against several underwriters, the court by consent of the plaintiff, will make a rule on the application of the defendants, which is called the consolidation rule, for staying the proceedings in all the actions but one, upon the defendants undertaking to be bound by the verdict in that action, and to pay the amount of their several subscriptions and costs, in case of a verdict for the plaintiff.d Where the proceedings are not vexatious, the court has no power of compelling the plaintiff to consent to the consolidation rule. But if he objects, the court may grant imparlance in all the causes but one, until he does consent." On the other hand, if the plaintiff consents, the court will oblige the defendants to submit to reasonable terms, such as admitting the policy and undertaking not to bring a writ of error. The verdict referred to by the consolidation rule, means a verdict satisfactory to the court.h Where several causes are consolidated, if a writ of error be issued in the cause tried and execution taken out for want of bail in error being duly put in, execution in those causes is *1222 *thereby stayed; for the consolidation rule only relates to the verdict.a Opening lidation rule. Where several underwriters to a policy had entered into a consolidation rule, by which they undertook to abide the event of the verdict, and the cause was referred by consent before trial, and the arbitrator awarded the aggregate sum due to the assured from the underwriters at large; the court would not order it to be referred back to the arbitrator to insert the amount of the sum due and payable from each underwriter individually, without the consent of such underwriters." The court will not open a consolidation rule unless there be the conso- a manifest failure of justice. Where in an action on a policy there had been two verdicts found for the plaintiff, of which the court disapproved; the court refused an application to open the consolidation rule for the purpose of trying another action. Tindal, C. J., observed, that if there was a default of justice, or if the usual facilities were not afforded upon the investigation, new evidence had been discovered subsequently to the trial, they might open the rule, but otherwise it was better that there should be an individual hardship, than that a long established rule should be violated. But if the court think it reasonable to open a consolidation rule, and try a second cause, they will extend to the second trial all such terms made compulsory on the party successful in the first cause, as are requisite for attaining the merits. The consolidation rule is binding only on the parties who seek the benefit. Therefore if the defendant obtains a verdict, the plaintiff may proceed in a second consolidated action; but if he does so without the leave of the court, he will not have the benefit of any of the terms which were imposed on the defendant by the consolidation rule, and the court will restrain the second cause until the costs of the first are paid. The defendants in several actions on a policy of insurance, *1223 *paid money into court, which the plaintiff took out, without taking the costs at that time; afterwards they entered into the common consolidation rule, and the plaintiff was nonsuited in the action that was tried; held, that the latter was not entitled to the costs in any of the actions up to the time of paying the money into court.s a Aylwin v. Favine, 2 N. R. 430. See Gill v. Hinckley, 1 Moore, 79. (4 Eng. C. L. 387.) e Kynaston v. Liddell, 8 Moore, 223. (17 Eng. C. L. 104.) 3 Bing. N. C. 897. (32 Eng. C. L.) (24 Eng. C. L. 113.) Long v. Douglas, Id.n. SECTION XXIV, EVIDENCE. In an action on a policy of insurance, the plaintiff must prove: 1. The execution of the policy by the defendant. 2. The interest of the insured, and shipment of the goods. 3. The sailing of the ship. 4. The loss and damages, if not admitted by the pleadings. The policy must be produced, properly stamped, and the subscription of the defendant proved. If the subscription be by an agent, the authority of the agent must be proved, which may be done by the agent himself. If Proof of there be no direct evidence of such authority, proof of the hand- agency. writing of the agent, and that he was in the habit of subscribing policies for the defendant, with his knowledge," or that the defendant had paid losses on policies subscribed by the agent, is sufficient, though it appear that the agent was appointed by letter of attorney. A letter dated abroad, and addressed to J. S., in England, with the English ship letter post mark upon it, directing a policy to be effected, is sufficient to prove that J. S. was the person residing in Great Britain, who received the order for, and effected the policy. Parol evidence of what Evidence passed at the time of effecting a policy of insurance, is not in explanation of admissible to restrain the effect of the policy. Nor is the slip signed previous to the policy evidence of the insurance. But usage is admissible to explain the terms of the policy, but not to add to or vary its stipulations. Thus, evidence is admissible to show that a port in Friesland is, in mercantile *1224 language, a port in the Baltic.f the policy. rest of the The interest in the subject matter insured must be proved as Proof of laid in the declaration; if it be a ship, evidence of acts of owner- the inteship, as loading the ship, paying the persons employed, pro- insured. viding stores, or the like, is presumptive evidence of the plaintiff's title. Where the interest is alleged to be in a party who was never in possession of the ship, his title must be proved by the production of the bill of sale, and by proving the ownership of the vendor, and a compliance with the requisites of the registry acts. The register is of itself no evidence to prove a transfer by sale; for the objects of the registry acts were alien The regisfrom those of evidence, but though a certificate of registry is Arcangelo v. Thompson, 2 Camp. 260. 4 Weston v. Emes, 1 Taunt. 115. ter. Haughton v. Ewbank, 4 Camp. 88. Rogers v. M'Carthy, 3 Esp. 107. Uhde v. Waters, 3 Camp. 16. Gibbon v. Young, 8 Taunt. 261. (4 Eng. C. L. 93.) Parkinson v. Collier, Park, 416. Amery v. Rogers, 1 Esp. 207. Thomas v. Fayle, 5 Esp. 88. Abbott, Ship. 72. Robertson v. French, 4 East, 130. Sutton v. Bush, 2 Taunt. 302. 6 Geo. IV, c. 110, and 7 Geo. IV, c. 48, s. 25, 26, 27. not even primâ fucie evidence of a transfer by sale,a yet in many instances it will negative a transfer by sale, and operate as conclusive evidence of want of title. As where the interest was alleged to be in four, but two only were mentioned as owners in the register; it was held that the action could not be maintained, for want of proof of interest in the four, though they were all partners in trade, and had paid jointly for the ship. An averment that A. was sole owner of the ship to a certain day, is not disproved by evidence that he executed a bill of sale of part before that day, and that on that day the requisites of the registry acts were complied with. Where the ship was purchased in a foreign port, a copy of the bill of sale issued by a public officer authorised to authenticate the original, and to make copies, was held to be evidence of that fact. Interest in goods may be proved by evidence of possession by the insured, and of the exercise of acts of ownership, the pro*1225 duction of the bill of lading, and the evidence of the captain of the ship that he had the goods mentioned in it on board, is sufficient." Bill of lading. Shipment of the goods. A bill of lading signed by a deceased master of a vessel, for goods to be delivered to a consignee or his assigns, he paying freight, is admissible as evidence of the consignee having an insurable interest in the goods. So the production of a bill of parcels from the seller abroad, with the receipt to it, and proof of his handwriting, has been held sufficient. So the bill of lading is evidence of the property in the goods, on proof of the master's signature, though he be alive; but it is not evidence of the shipment." Where the policy is on freight, the insured must prove that, but for the intervention of the perils of the sea insured against, some freight would have been earned, either by showing that some goods were put on board, or that there was an inception of the right to freight under the charterparty, or some other express or implied contract. The loss accruing by reason of Pirie v. Anderson, 4 Taunt. 652. b Camden v. Anderson, 5 T. R. 709. Dawson v. Leake, 1 D. & B. 52. Flower v. Young, 3 Camp. 240. Westerdale v. Dale, 7 T. R. 306. But see Woodward v. Larking, 3 Esp. 286. Ritchie v. St. Barbe, 4 Taunt. 768. M'Andrew v. Bell, 1 Esp. 473. Haddow v. Parry, 3 Taunt. 303. But if the master gaurds his acknowledgement by saying "contents unknown," so that he does not charge himseif with the receipt of any goods in particular, the bill of lading alone is not evidence, either of the quantity of the goods, or of property in the consignee. Id. By 6 Geo. IV, c. 94, s. 2, "any person entrusted with, and in possession of, any bill of lading, dock warrant, &c., or warrant or order for the delivery of goods, shall be deemed and taken to be the true owner of the goods, so as to give validity to any contract for the sale of the goods, or any deposit or pledge, provided there be no notice by the documents themselves that the person entrusted as aforesaid was not the actual owner." Russell v. Bocken, 2 Stra. 1127. Dickson v. Lodge, 1 Stark. 226. (11 Eng. C. L. 367.) i Davidson v. Willasey, 1 M. &. S. 313. Flint v. Flemyng, 1 B. & Ad. 45. (20 Eng. C. L. 340.) the insured being deprived of the means of carrying his own goods in his own ship, is recoverable under such a policy." Where the vessel is lost, there must be evidence of her sail- Sailing on the ing on the voyage stated in the policy; proof of a particular voydestination by a charterparty, or of her clearing out for a particular port, or of a license for the port mentioned in the policy, will be prima facie evidence of her sailing on the voyage insured after she dropped from her moorings." age. To prove a warranty, that a ship insured was of a particular *1226 nation, it is prima facie evidence, that she carried the flag of Complithat nation at times when she was free from all danger of capture, and that the captain addressed himself to the consul of that nation in a foreign port.d If the warranty be to sail with convoy, compliance will be presumed, if a convoy was required by law. The log-book, or the official letter of the commander of the convoy, is evidence of the ship sailing with a convoy. When it is necessary to prove a license, the original document must be produced, if in existence, but if lost, secondary evidence of it will be admitted, which may be an examined copy, or if there be none, parol testimony.8 ance with warranties The proof of the loss must correspond with the averments in Proof of the declaration. We have seen that in case of a ship's not the loss. having been heard of for a considerable time, a loss may be presumed. Where a loss is to be inferred from the want of intelligence, the plaintiff must distinctly prove that, when the vessel left the port of outfit, she was bound upon the voyage insured. Where the plaintiff's agent showed to the defendant, an underwriter, the captain's protest, containing an account of the loss of the ship insured, demanding payment; held, that this did not entitle the defendant to read the protest in evidence in an action on the policy.j In case of a capture, the entry in Lloyd's books, stating the Loss by capture, is evidence of the fact, as against a subscriber to capture. Lloyd's. We have already seen that the condemnation of the property insured as enemy's property by the sentence of a court of admiralty, is conclusive evidence against the warranty of neutrality, with respect to the amount of the loss. In open policies the insured must prove the amount of his loss, but in * Per Bayley, J., 1 B. & Ad. 49. (20 Eng. C. L. 340.) 'D'Israeli v. Jowett, 1 Esp. 427. Watson v. King, 4 Camp. 275. 2 Stark. Ev. 640. Kensington v. Inglis, 8 East, 273. Rhind v. Wilkinson, 2 Taunt. 243, Eyre v. Palsgrave, 2 Camp. 606. See ante, 1156. i Koster v. Jones, R. & M. 333. (21 Eng. C. L. 450.) Senat v. Porter, 7 T. R. 158. Ante, 1188. * Abel v. Potts, 3 Esp. 242. |