MARINE INSURANCE COMPANY OF ALEXANDRIA V. JAMES YOUNG.

Assumpsit.- Verdict.-Former recovery.

Assumpsit will not lie upon a policy of insurance, under the corporate seal, unless a new consideration be averred.1

Quare? Whether an aggregate corporation can make an express assumpsit, unless specially authorized by statute?

Whether an action on a policy will lie against this company, in their corporate name? Or whether the declaration must not be against the president alone?

A verdict will not cure a mistake in the nature of the action.

A judgment in assumpsit upon a policy, is a bar to a subsequent action of covenant on the same policy.

After verdict, every assumpsit in the declaration is to be taken as an express assumpsit.

THIS was an action brought in the Circuit Court of the district of Columbia, by James Young against the Marine Insurance Company of Alexandria, upon a policy of insurance on the brigantine Liberty, at and from Anacabessa, in Jamaica, to a port in the United States.

The declaration stated, that "James Young complained of the Marine Insurance Company of Alexandria in custody, &c., of a plea, for that whereas," &c., setting forth the policy in the usual form. "In witness whereof, the president and directors of the said Marine Insurance Company *333] of *Alexandria, by William Hartshorne, their president, subscribed the sum assured, and caused the common seal, and the attestation of their secretary, to be affixed to the said presents.' It then alleged the property of the vessel to be in the plaintiff, and that it was of the value of $5000, the sum insured. That the said Marine Insurance Company, in consideration of the premium to be paid by the plaintiff, "did undertake and agree, by their policy aforesaid, subscribed by their president aforesaid, with the proper hand and name of the said president thereto affixed, to assure the said vessel, &c., at the said sum of $5000, against the risks specified in the said policy." That the plaintiff had paid the premium; and that the vessel was totally lost, of which loss the company had notice; "by means of which said premises, the said Marine Insurance Company of Alexandria became liable to pay to the said plaintiff the said sun of $5000, and being so liable, the said Marine Insurance Company, afterwards, to wit, on the same day and year aforesaid, at the county aforesaid, assumed upon themselves, and to the said plaintiff then and there faithfully promised," to pay him the said sum of money, when thereunto afterwards required.

There was another count, stating, generally, that in consideration that the plaintiff would pay the premium of four per cent. upon the value of the vessel, the insurance company "undertook and agreed" to insure, &c., at the sum of $5000, against sea risks only, at and from Anacabessa, in Jamaica, &c., to a port in the United States; that he had paid the premium, and that the vessel was stranded and lost, of which the insurance company had notice; by means of which said premises, the said company became liable, &c., and so being liable, assumed upon themselves, and promised to pay, &c. Nevertheless, the said defendants, not regarding their several promises and undertakings aforesaid, but contriving, &c., refused to pay, to the damage of the plaintiff $10,000. Plea non assumpserunt, and issue.

1 See January v. Goodman, 1 Dall. 208, and notes to that case. Also, Fresh v. Gilson, 16 Pet. 327.

Marine Insurance Co. of Alexanderia v. Young.

Verdict for plaintiff on the first count, and for defendant on the other count. Motion in arrest of judgment; "because the first count is in assumpsit upon a sealed instrument set forth in the said count, as containing the contract whereupon *the action aforesaid is brought." Judg[*334 ment for the plaintiff ; to reverse which judgment the insurance company obtained the present writ of error; and the errors assigned were, 1. That assumpsit is brought upon a sealed contract. 2. That the Marine Insurance Company of Alexandria, being an aggregate corporation, is sued upon assumpsit instead of upon covenant. 3. That the judgment upon the verdict aforesaid ought to have been arrested. 4. That according to the act of incorporation, the action aforesaid, if maintainable at all, should have been commenced and prosecuted against William Hartshorne, President of the Marine Insurance Company."

E. J. Lee, and C. Lee, for the plaintiffs in error. Simms and Swann, for the defendant.

For the plaintiffs in error, it was said.-1st. That the declaration states the policy to be under the common seal, and the law is clear that assumpsit will not lie upon a sealed instrument: the action ought to have been covenant and not case. The difference is, that when the specialty is only inducement to the promise, and a new consideration intervenes, assumpsit will lie; but where the only contract, which is stated as the cause of liability of the defendant, is fully and entirely contained in the specialty, and no circumstance is added, but such as is provided for by the specialty, there it will not sustain a general indebitatus assumpsit, which is the present form of action.

The declaration states that the insurance company, by their policy, under the common seal, insured $5000 on the brig, and that the vessel was lost, whereby the company became liable, and, being so liable, assumed to pay. *This is the whole substance of the declaration. No new consideration is alleged.

[*335

and if the contract is Foster v. Allanson, 2 T. there was a new cause of Brett v. Read, Cro. Car.

The whole ground of liability of the plaintiffs in error is their policy under their common seal: and in such a case, the action must be covenant or debt. Marshall on Insurance, 596; Park 396. "The act of parliament, 6 Geo. I., c. 18, by which the two insurance companies (of England) were erected, ordered that they should have a common seal, by affixing which all corporate bodies ratify and confirm their contracts. Hence, a policy made by either of those companies is a contract under seal; broken, the action must be debt or covenant." (a) R. 479; and the cases there cited. In that case, action, and a separate, independent consideration. 343; 1 Bac. Abr. 164. In the case of Baird and Briggs v. Blaigrove, in the court of appeals of Virginia, 1 Wash. 170, there was a subsequent new consideration and parol agreement expressly proved, and upon that ground the court decided that assumpsit would lie. See Taliaferro v. Robb, 2 Call 258. The case of Pelly v. Governor and Company of the Royal Exchange Assurance, 1 Burr. 341, is an action of covenant upon a policy; so is the

(a) By the 11 Geo. I., c. 30, § 43, which recites the inconveniences resulting from the necessity of the policies of these two companies being under seal, by reason of their being corporate bodies, they are authorized to plead generally nil debent, and to give the special matter in evidence, &c.

Marine Insurance Co. of Alexandria v. Young.

case of Worsley v. Wood, 6 T. R. 710; and Tarleton v. Staniforth, 5 Ibid. 695. Assumpsit will not lie upon a specialty. 1 Esp. N. P. 95; Walker v. Witter, 1 Doug. 6; Buckingham v. Costendine, Cro. Jac. 213; Bulstrode v. Gilburn, 2 Str. 1027-8; Bennus v. Guyldley, Cro. Jac. 505; Dartnal v. Morgan, Ibid. 598; Holme v. Lucas, Cro. Car. 6; Foster v. Smith, Ibid. 31; Reade v. Johnson, Cro. Eliz. 242; 1 Roll. Abr. 8; Green v. Hurrington, Hutt. 34; Pyers v. Turner, Cro. Eliz. 283.

If this action is sustainable in law, then the rule requiring a plaintiff to state in his declaration his cause of action will be useless. The reason of that rule is, to ascertain whether the contract is under seal or nct.

Bull. N.

*336] P. 128. And if the judgment of the court below is *correct, an action of assumpsit may be maintained upon a bond, or any other sealed instrument. The notice stated in the declaration is what the plaintiff below was bound to give, because the company were not liable, by their covenant, to pay, until proof of the loss was produced, and adjustment thereof made. This is only one of the facts necessary to produce a liability, under the covenant itself, and not any new consideration, nor is it stated as such in the declaration. The declaration does not say, "in consideration whereof,” but simply, "so being liable," assumed to pay: so that the assumpsit alleged, is nothing more than the very agreement contained in the policy.

2d. An action of assumpsit upon an express contract, will not lie against an aggregate corporation. They can do no valid act, but by their common seal, by which alone the union of the wills of the several members can be testified; and the affixing of the seal makes it a covenant. Perhaps, an exception to this rule might be made by the act which creates such an aggregate body politic; but here is no such exception made as will apply to the present case. Marshall on Insurance, 596.

3d. If any action is maintainable upon this policy, it ought to have been brought and prosecuted against the president of the company, and not against the body politic. (a) The words of the act, which incorporates the company (Acts of Assembly of Virginia, 1797, c. 20, §§ 9, 11) are "that all policies shall be signed by the president, or, in case of his inability to attend, by the president pro tempore, and countersigned by the secretary." "That in case any action shall be prosecuted upon any policy so subscribed, the same shall be brought against *the president subscribing the same, *337] or his successor in office; and all recoveries had in such action or actions shall be conclusive on the company, so far as to render the stock of the company liable, and no further.”

§ 11.

Although the 6th section of the same act enables the company to sue and be sued by their corporate name, yet, as the subsequent sections prescribe the manner of making policies, and the mode of proceeding in actions upon them, the latter sections must be considered as so far restricting the general expressions of the former. General words in one clause of a statute may be

(a) The capias ad resp. in this case was against "William Hartshorne, President of the Marine Insurance Company of Alexandria." The declaration was against the company in their corporate name. This form of proceeding, by the better opinion, seemed to be correct. By the form of proceedings in Virginia, which are in some respects similar to those in the king's bench in England, the capias is not considered as any part of the record of the action, which is supposed to commence upon the filing of the bill, or declaration.

Marine Insurance Co. of Alexandria v. Young.

restrained by particular words in a subsequent clause of the same statute, and the whole ought to be so construed that, if it can be prevented, no clause, sentence or word shall be superfluous, void or insignificant. 4 Bac. Abr. 645. The declaration is bad, in stating the body politic to be in custody of the marshal. 1 Bac. Abr. 507.

4th. If it should be said, that this declaration is good, after verdict; the answer is, that the verdict will not cure a declaration which shows that the plaintiff is entitled only to an action of a different nature. The title is not defectively set forth, because every fact is stated, which shows that the plaintiff is entitled to an action of covenant. A mistake in the nature of the

action, is not cured by the statute of jeofails. In all the cases before cited, the question as to the form of action came on, upon motion in arrest of judgment, and it is not even hinted, that the error was cured by verdict. Foster v. Allanson, 2 T. R. 479; Baird v. Blaigrove, 1 Wash. 170. No assumpsit can be presumed, after verdict, to have been proved on the trial, but that which is alleged in the declaration. Spieres v. Parker, 1 T. R. 141.

A verdict will not aid a case, where the gist of the action is omitted. Avery v. Hoole, Cowp. 825. Nor does the clause of the Virginia statute of jeofails, which states that a verdict shall cure the omission of the averment of any matter, without proving which the jury ought not to have given such a verdict, extend to a case where the declaration omits to state the ground of the assumpsit. *Winston v. Francisco, 2 Wash. 187; Vass v. [*338 Chichester, 1 Call 98, 101-2; 4 Burr. 2455; Rushton v. Aspinal, 2 Doug. 654 (679). A recovery in this action would be no bar to a recovery in an action of covenant for the same loss. Vass v. Chichester, 1 Call 102; 4 Bac. Abr. 14; Holme v. Lucas, Cro. Car. 6.

For the defendant in error, it was contended-1st. That this policy is not a specialty. 2d. If it is a specialty, yet there was a subsequent assumpsit upon a new consideration. 3d. That if it be a specialty, and no new promise sufficient to support an action of assumpsit, yet the declaration is a good declaration in covenant, especially, after verdict.

1st. The declaration does not declare on this policy, as upon a deed. It does not say, that the company covenanted by their deed; but only that Young did, by a policy of insurance, subscribed and attested as hereinafter mentioned, make insurance, and cause himself to be insured, lost or not lost, &c., upon the body, &c., of the brigantine Liberty, &c. And so they, the assurers, were contented, and did thereby promise and bind themselves to the assured, for the true performance of the premises, confessing themselves paid the consideration, &c. In witness whereof, the president and directors of the said Marine Insurance Company of Alexandria, by William Hartshorne, their president, subscribed the sum assured, and caused the common seal and the attestation of their secretary to be affixed to the said presents, in the town of Alexandria, on the said 17th day of December 1800. The plaintiff then avers, that in consideration of the premium, &c., they did undertake and agree, by their policy aforesaid, subscribed by their president aforesaid, with the proper hand and name of the said president thereto affixed, to assure the said vessel, at the sum of $5000, &c. There is no profert of the policy, as of a deed. In fact, it is not a deed. To make it a deed, it must be sealed with the intent to make a deed, which would be contrary to their

Marine Insurance Co. of Alexandria v. Young.

act of incorporation: the company had no power to make a policy under seal.

The act prescribes the mode by which they shall make policies; *339] *which is only by the signing of the president and countersigning by the secretary. Although there are not negative words, by which other modes are expressly prohibited, yet the saying that a thing shall be done in one manner, is an implied negative of all others. The president and three of the directors are empowered by the act to make insurance, but the policies must be certified in a certain manner : they have no right to bind the company by a policy under seal. They have no right to use the common seal for any purpose, unless particularly empowered by the constitution or by-laws of the company. If the company have improperly put a seal to the instrument, which the act of incorporation intended should be a simple contract, and not a specialty, it is their own act, and they have no right to complain. But shall it be permitted for the Marine Insurance Company to say, that by their own act, contrary to law, they have deceived the plaintiff below, and therefore, he shall not recover in this form of action? After having defeated him in this action, and driven him to bring an action of covenant, what will prevent their turning round, and saying that this policy is not a specialty? The company had no power to make a policy under seal, or if they had, the seal has been affixed by persons having no authority from the company, or perhaps, by mistake.

The objection does not go to the merits of the cause. If there was an error, it was beneficial to the company, inasmuch as it was a relinquishment of strict right on the part of the plaintiff below, and enabled the company to make their defence with much less risk, as it enabled them to give in evidence, on the plea of non assumpsit, those facts which must have been specially pleaded to an action of covenant. The intention of the legislature in prescribing the mode of making policies evidently was, that they should not be specialties, but only simple contracts, so as to avoid the necessity of special pleading. If the principle be correct, that the company cannot make a policy but under seal, the consequence will be extremely mischievous to their interests. They will be always involved in the intricacies of special pleading, and the merits of the case will be often lost in the subtlety of legal distinctions.

Who has the power of using the common seal? Not the president alone, *340] nor any number of the directors, but *the company only. But the declaration does not state this to be the seal of the company, but the seal of the secretary; the words are, "have caused the common seal and attestation of the secretary to be affixed."

2d. But if the policy is a specialty, yet there is a sufficient assumpsit alleged in the declaration to support this action. The action does not depend only upon the facts set forth in the policy. The declaration states other facts, such as the notice to the company, the proof of the loss, and an express assumpsit to pay. These are considerations abundantly sufficient to support the action. If the plaintiff has two remedies, he may take which he pleases. A judgment in this case would be a bar to an action upon the covenant. (a)

(a) The court said, there could be no doubt of that, if the declaration sufficiently showed it to be the same cause of action.