Sunderland Marine Insurance Company v Kearney

[9261 the sunderland marine insurance company against matthew kearney and robert noonan. Error from the Court of Pleas at Durham. Friday, May 2d, 1851. K. and N. declared in debt against a company for assurance on the freight of goods to be carried in the ship "M.," on a deed poll sealed with the common seal of the company ; which deed recited that K. had represented to the company that he was interested in, or authorized as owner, agent or otherwise, to make, the assurance after mentioned with the company, and had covenanted to pay 121. 12s. to them, as a premium at four per cent, for the assurance : and it was witnessed and agreed that, in consideration of the 121. 12s., the capital stock and funds of the company should, according to the provisions of the deed of settlement of the company, be liable to make good, and be applied to pay, all such losses and damages thereinafter expressed as might happen to the subject matter of the poliqy in respect of the sum of 3001.: and it 18 Q. R926. SUNDERLAND MARINE INSURANCE CO. V. KEARNEY 1137 was declared that, touching the adventures and perils which the capital and stock and funds of the company were made liable to by the assurance, they were of the seas, &o.: and the capital stock and funds of the company should bear the charges of the assurance in proportion to the sum assured ; and that the interest of the assured was on freight. "Provided, nevertheless, that the capital stock and funds of the said company should alone be liable, according to the provisions of the said deed of settlement, to answer and make good all claims and demands whatsoever, under or by virtue of the said policy : and that no shareholder of the said company, his, or her heirs, executors or administrators, should be in anywise subject or liable to any claims or demands, nor be in anywise charged, by reason of the said policy," "beyond the amount of his or her shares in the capital stock of the said company : it being one of the original and fundamental principles of the said company that the responsibility of the individual proprietors should in all cases be limited to their respective shares in the capital stock." That thereupon defendants became insurers to the plaintiffs for 3001. on the freight; that plaintiffs were interested in the freight to the amount of all the money insured ; and that the vessel, with the goods on board, was wholly lost by perils of tho sea: and plaintiffs thereby lost the freight of the goods. Defendants took issues of fact, all of which were found for plaintiffs : and judgment was entered for 3001. debt, with damages and costs: on error. Held: 1. That the declaration was not deficient for omitting to allege that the company had funds: for that, (1) it appearing that defendants were a corporation, the remedy against them in this action would only be upon the corporate funds, and the proviso made no difference in this respect, but the action lay whether there were funds or not: aud, (2) if the existence of the funds had been a condition necessary to the maintenance of the action, it lay upon the defendants to deny, and not upon the plaintiffs to assert, the existence of the funds, which, in default of denial, would be presumed to exist. 2. That it was not a valid objection that the contract appeared to be collateral, and the demand not liquidated, and debt therefore not maintainable : for that (1) the liability to the action was direct, and not merely contingent on the existence or non-existence of the funds ; and, (2) the declaration claiming 3001. for a total loss, which, after verdict, must be assumed as a fact, the claim was for the liquidated sum of 3001. 3. That the action was maintainable by K. and N, jointly, because the deed poll enured to the benefit of all interested in the assurance, and the declaration shewed the interest to be in K. and N. jointly. [S. C. 20 L. J. Q. B. 417; 15 Jur. 1006.] The defendants in error declared against the plaintiffs in error, in the Court of Pleas at Durham. The [926] first count stated : that heretofore, to wit 12th January 1849, by a certain deed poll, or policy of insurance, then made by the said company, and sealed with the common seal of the said company (profert), after reciting that Matthew Kearney had represented to the company " that he was interested in, or duly authorized, as owner, agent or otherwise, to make, the assurance thereinafter mentioned and described with the said company, and had covenanted or otherwise obliged himself to pay forthwith, for the use of the said company, at the office of the said company, the sura of 121. 12s., as a premium or consideration at and after the rate:of four guineas per cent, for such assurance, it was witnessed, and was thereby agreed and declared, by and on the behalf of the aaid company, that, in consideration of the sura of 121. 12s., the capital stock and funds of the company should, according to the provisions of the deed of settlement of the said company, be subject and liable to make good, and should be applied to pay and make good, all such losses and damages thereinafter expressed as might happen to the subject matterof the said policy, in respect of the sum of 3001. assured: which assurance was thereby declared to be upon cargo, goods or freight (valued at interest)," of and in the ship " Mary," &c. (giving the effect of the policy); " and that, touching the adventures and perils which the capital stock and funds of the said company were made liable to, or were intended to be made liable unto, by the gaid assurance, they were of the seas," &c. ; "and, in case of any loss or misfortune, it should be lawful to the said assured, their factors, servants, and assigns,to sue, labour and travel for, in and abaut the defence, safeguard and recovery of the said goods or cargoes or [927] freight, or any part thereof, without prejudice to the said assurance, the...