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Title : Sutherland v Pratt
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*815 Sutherland v Pratt and Others

25 February 1843

(1843) 11 Meeson and Welsby 296

152 E.R. 815

1843
Exch. of Pleas. Feb. 25, 1843.—Declaration on a policy of insurance stated that
the plaintiff caused a policy to be effected, purporting thereby and containing
therein, that B. & Co., as well in their own names as in that of all other parties
interested, made assurance with the defendants for £2000 on goods (declared
to be 360 bales of cotton), lost or not lost, at and from Bombay to London; and
that in consideration thereof, and that the plaintiff paid the defendants the
premium, and agreed to observe the terms and conditions of the policy, the
defendants promised him that they would become assurers to the plaintiff of the
said sum of £2000. The declaration then averred that the goods were shipped
on the voyage; that the plaintiff was during the voyage, to wit, on &c., interested
in the goods to the amount insured; that the assurance was made for the use
and benefit and on the account of the plaintiff; that the ship sailed, and met with
tempestuous weather, whereby the goods were wetted and damaged, and
rendered of no use or value to the plaintiff:—Held, *816 that a plea to this
declaration, that the goods were so damaged before the plaintiff acquired any
interest therein, was bad on general demurrer.—A party may make an
insurance on goods, lost or not lost, though he have acquired his interest in
them after a partial loss, unless he bought them with a knowledge of the
damage.— A plea to the above declaration, that the policy was not caused to be
made by or on behalf of the plaintiff, was held bad on special demurrer, as
amounting to non assumpsit. So also was a plea that the plaintiff did not pay the
premium, nor promise the defendants to observe the terms and conditions of the
policy.—A defendant is not at liberty to traverse any single material fact, which
would be included in the general issue.—The plea of non assumpsit puts in
issue the consideration for the promise, as well as the promise itself.
[S. C. 2 Dowl. (N. S.) 813; 12 L. J. Ex. 235; 7 Jur. 261. See further, 12 M. & W.
16.]
Assumpsit. The declaration stated that the plaintiff, on the 8th of September,
1841, caused to be made a policy of assurance, (setting it forth verbatim),
purporting thereby and containing therein, that Messrs. Boggs, Taylor, & Co., as
well in their own names as for and in the names of all and every person or
persons to whom the same did, might, or should appertain in part or in all, did
make [297] assurance, and cause themselves and them and every of them to
be assured with the General Maritime Assurance Company, lost or not Jost, at
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and from Bombay to London, with leave to call at all ports and places on either
side of and at the Cape of Good Hope, including the risk of craft to and from the
vessel, upon any kind of goods and merchandise, and also upon the body,
tackle, &c., of and in the ship, at , 1 and upon the said ship, &c. , 2 and
so should continue and endure during her abode there, upon the said ship, &c.;
and further, until the said ship, with all her tackle, &c., and goods and
merchandise whatsoever, should be arrived at ; 3 and upon the said ship,
&c., until she had there moored at anchor twenty hours in good safety, and upon
the said goods and merchandise until the same should be there discharged and
safely landed. The insurance was declared to be on 360 bales of cotton, and the
policy, after admitting the receipt of the premium, stated, that the said company
were content, and did take upon them that assurance for the sum of £2000. The
declaration then alleged, that, in consideration of the premises, and that the
plaintiff at the request of the defendants, (then being three of the directors of the
said company), then paid to the said company the sum of £40 as a premium for
the assurance of £2000 upon the said goods, on the said voyage in the policy
mentioned, and then promised the defendants to perform and fulfil all things in
the policy mentioned, on the behalf of the assured to be performed and fulfilled,
the defendants then promised the plaintiff that the said company would become
and be assurers to the plaintiff of the said sum of £2000, upon the said goods in
the said ship in the policy mentioned, and would perform and fulfil all things
therein mentioned on their part and behalf, as assurers of the said sum of
£2000, to be performed and fulfilled: that the said [298] goods, on the 1st of
September, 1841, were shipped at Bombay on the said voyage: that the plaintiff
was, during the said voyage, to wit, on the same day and year last aforesaid,
interested in the said goods in the said policy mentioned, and so loaded on
board the said ship, to the amount insured: that the said insurance was made
for the use and benefit, and on the account of the plaintiff as aforesaid: that the
said ship afterwards sailed on the said voyage, and being injured by
tempestuous weather, became filled with water, whereby the said goods were
wetted and damaged, and rendered of no use or value to the plaintiff.
The defendants pleaded eight pleas, of which the first was non assumpserunt.
The second, after stating that true it was that the said policy of insurance,
purporting and containing therein that Boggs, Taylor & Co., did make assurance
of the matters and things according to the terms and provisions of the said
policy, as in that behalf in the declaration mentioned and set forth, was made, to
wit, upon the day and year in that behalf in the declaration alleged; yet the
defendants said, that the said policy was not caused to be made by or on behalf
of the plaintiff, in manner and form alleged: concluding to the country. The third
plea alleged, that the plaintiff did not, nor did any person on his behalf, pay the
said premium or any part thereof, nor *817 promise the defendants to perform
and fulfil the things in the said policy mentioned, on behalf of the assured to be
performed and fulfilled, in manner and form alleged: concluding to the country.
The eighth plea after stating, that although the said ship, with the said goods on
board, departed and set sail upon the said voyage from Bombay to London, and
although the said goods were damaged and diminished in use and value on the
said voyage, as in the declaration mentioned; and although, after the
commencement and during the course of the said voyage, and after the ship
had sailed on the said voyage for divers, to wit, thirty-five days, and for divers,
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[299] to wit, 1000 miles, the plaintiff acquired an interest in the said goods, and
then, to wit, on the 10th day of September, A.D. 1841, became and was
interested in the said goods, to wit, to the value and amount in that behalf
mentioned: nevertheless, that the said goods were so damaged and diminished
in value, as in the declaration mentioned, before the plaintiff acquired or had any
interest therein, to wit, upon the 20th day of August, A.D. 1841. Verification.
The plaintiff demurred specially to the second and third pleas, on the ground
that they amounted to the plea of non assumpsit, and that the matters alleged in
them ought to have been given in evidence under the issue joined on that plea;
and that the pleading in the manner as pleaded by the defendant in the second
and third pleas tended to unnecessary prolixity and length. To the eighth plea
the plaintiff demurred generally: and the point marked for argument on his part
was, that the policy being effected “lost or not lost,” the underwriters were
responsible for the loss, notwithstanding it happened before the plaintiff
acquired an interest in the goods.
Joinders in demurrer.
The case was argued in the present Sittings (Feb. 10), by
Martin, in support of the demurrer. The only question of substance is that which
arises on the demurrer to the eighth plea, viz. whether it is legal to enter into
such a contract of insurance as is mentioned in that plea. This is the case of a
policy on goods, lost or not lost, at and from Bombay to London, beginning the
adventure from the loading of the goods on board the ship. The defendants,
therefore, expressly contract to be responsible to the plaintiff, lost or not lost,
from the loading of the goods at Bombay till their arrival and safe discharge in
London. The plaintiff is admitted by the plea to have become interested in the
goods during the voyage: and the de- [300] -fendants have engaged to become
responsible to him for any loss sustained during the entire course of that
voyage. By the express terms of their contract with the plaintiff, therefore, they
engage to be responsible for this loss. Why are they not to be held to their
contract? At the common law, a contract of insurance without any interest was
legal: Crawford v. Hunter (8 T. R. 13), confirmed by the Court of Exchequer
Chamber in Ireland, in British Insurance Co. v. Magee (Cooke & Alcock, 182). Is
there, then, anything in the stat. 19 Geo. 2, c. 37, to affect this case? That
statute enacts, “that no assurance shall be made on any British ship, or on any
goods, merchandises, or effects, laden on board of any such ship or ships,
interest or no interest, or without further proof of interest than the policy, or by
way of gaming or wagering, or without benefit of salvage.” This is not a case
where there is no proof of interest but the policy, nor is it a case of gaming or
wagering. The plaintiff has the interest of a pledgee, and to protect himself
against loss as such, effects the insurance: there is nothing illegal in that, either
at common law or by the statute. He had the greatest possible interest in the
arrival of the goods in the condition in which he supposed them to be when he
made the advance upon them, so as to secure him from loss. Mead v. Davison
(3 Ad. & E. 303; 4 Nev. & M. 701) goes further than the present case. There the
policy was in fact executed after the loss of the ship had become known to both
parties, being made in pursuance of a contract entered into before the loss, and
yet it was held valid: being assimilated to the case of a conveyance of land,
where the house had been burnt down since the contract was made: Paine v.
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Meller (6 Ves. 349). [Parke, B. There the plaintiff was interested at the time of
the loss: here he is not.] But the defendants have expressly contracted to
indemnify him against that [301] loss: and how can it be said that he effected
the policy “interest or no interest,” when he had the strongest possible interest
that the goods should reach him undamaged. [Parke, B. Your argument, I
suppose, would be the same in case of a total loss.] There might be a difficulty
there, because it might be said a person could not buy a thing which was lost:
but here it is expressly stated to be a partial loss, and the goods exist in solido.
[Parke, B. It is not a wagering policy, because the plaintiff *818 meant to insure
against perils of the sea an interest which he would have had if the ship had
arrived safe.] To render the contract illegal, it must be in the nature of a wager,
and in no respect in the nature of an indemnity for a bonâ fide interest. [Parke,
B. Stockdale v. Dunlop (6 M. & W. 224) may be cited for the defendants: there,
however, the plaintiff had no legal interest in the goods, because there was only
a verbal contract.] This is a loss expressly protected by the terms of the
contract, and the plaintiff has a sufficient interest.
The second and third pleas are bad in form, as amounting to non assumpsit,
which puts in issue the consideration given by the plaintiff for the defendants'
promise, as well as the promise itself: Bennion v. Davison (3 M. & W. 179). To
create a valid promise, it is essential to prove a consideration moving from the
plaintiff. Here that consideration is the payment of a sum of money as a
premium which is admitted to have been paid by the plaintiff. These pleas in
effect say—“You, the plaintiff, did not cause the policy to be made, and
therefore I did not promise you.” That clearly is an argumentative non
assumpsit. It is said that the new rule of pleading in assumpsit, which states that
in an action on a policy of insurance, the plea of non assumpsit shall operate as
a denial “of the subscription to the alleged policy by the defendant, but not of the
interest, of [302] the commencement of the risk,” &c., has rendered it necessary
to plead this matter specially. But that is merely an example of the previous
general rule, that the plea “shall operate only as a denial in fact of the express
contract or promise alleged, or of the matters of fact from which the contract or
promise alleged may be implied by law:” and the first example is, that in an
action on a warranty, the plea will operate “as a denial of the fact of the warranty
having been given upon the alleged consideration, but not of the breach.”
Surely, under non assumpsit, the plaintiff must prove that he bought the horse
by himself or his agent. So, the instance of insurance clearly means, that the
plea of non assumpsit shall deny the making of the contract, which involves the
consideration for it, and also the fact that the plaintiff is the other party to it.
Greenwood, contrà. The object of this declaration obviously is, to defeat the
answer which the plaintiff knows the defendants would be able to give to any
claim by Boggs, Taylor, & Co. The mode in which the interest is averred on this
record is a mere evasion of the ordinary allegation of an interest during the risk
and down to the time of the loss. The plaintiff could not apply the ordinary form
here, because the loss occurred before he had any interest in the goods: he
therefore uses an ambiguous expression, which may mean either that he was
interested during the whole of the voyage, or that he had an interest on some
particular day in the course of the voyage. In the latter sense the allegation is
true, because on a day after the loss he was interested in the goods, in the state
in which they then were, but he has therefore suffered no loss. The argument on
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the part of the plaintiff must be the same as in the case of a total loss. [Parke, B.
But there is an averment that the goods were wetted and damaged, and so
became of no use or value to the plaintiff; that is, that he received damage by
means of the loss.] Anybody might [303] say that, whosesoever the goods were
that were injured. If a party chooses to make such a contract by way of pledge,
he may provide against loss by getting the owners to effect an insurance upon
the goods, lost or not lost, and they may recover upon the policy as trustees for
the pledgee. Powles v. Innes (ante, p. 10), Sparkes v. Marshall (2 Bing. N. C.
761; 3 Scott, 172). Independently of the provisions of the statute against
wagering policies, the language of the Courts has always been, that the plaintiff
must be interested at the time of the loss. There is no such allegation here, nor
any direct averment that he sustained any loss. [Parke, B. Surely the averment I
have referred to means, that by the perils of the seas a loss has been caused to
the plaintiff, which would not be true if he bought the goods in their damaged
state.] That is a mere superfluous statement, meaning in truth no more than the
words at the end of the declaration, “to the damage of the plaintiff,” &c. If he
proves the contract, the interest, and the damage, the right of action is
complete; the rest is mere matter of evidence as to the amount of the damages.
The allegation referred to could not have been traversed, and therefore nothing
is admitted against the defendants by not putting it in issue. Could the plaintiff
have recovered in case of a total loss? He has not lost anything. It is like the
case of the sale in London of a particular horse, described as being “then on his
voyage from Edinburgh,” but which is in fact dead at the time of the sale. Surely
the purchaser could not be *819 bound in such a case to pay the price, nor, if
he had insured the horse, could have recovered on the policy: for there is an
implied engagement in every contract for the sale of a specific chattel, that the
thing is in existence; Barr v. Gibson (3 M. & W. 390); and a contract of
insurance is only a contract of indemnity. Rhind v. Wilkinson (2 Taunt. 237) was
the first case in which it was said to be unnecessary to aver an interest at the
time of effecting the policy: but it [304] clearly must exist during the risk. But
when goods are lost or destroyed, whether in whole or in part, no risk exists. It
can make no difference in principle whether the loss is total or partial. If I sell
this year's crop of hay from a particular field, and it is then discovered that the
stack was burnt down before the contract, the purchaser is not bound to pay;
but if it has been damaged by weather or otherwise, still retaining, in common
acceptation, the character of hay, then he must take it as he bought it, and pay
the stipulated price. Can it make any difference whether the hay was in a stack
or on board ship, or whether it was damaged by rain or sea water? If the
purchase is after the injury, the purchaser takes the goods as he finds them;
and if he insures them, however improvident the bargain he has made,
inasmuch as his goods were not injured, the insurers can no more be liable to
pay for the partial damage than they would in case of a total loss. [Parke, B. You
say that where goods are injured to a tenth part of their value it is the same
thing as if that tenth did not exist.] Yes: as to that part there is an entire loss
before the plaintiff has any interest in it. In case of the insurance of a house, it
has always been necessary to shew that the plaintiff had a property in it at the
time of the fire: Lynch v. Dalzell (3 Bro. P. C. 497). Lord King there says, “The
party insuring must have a property at the time of the loss, or he can sustain no
loss, and consequently can be entitled to no satisfaction.” So, in The Sadlers'
Company v. Badcock (2 Atk. 554), Lord Hardwicke says, “I am of opinion it is
14/10/2020 Delivery | Westlaw India Page 7

necessary the party insured should have an interest or property at the time of
insuring, and at the time the fire happens.” And he observes, “These insurances
from fire have been introduced in later times, and therefore differ from insurance
of ships, because their interest or no interest is almost constantly inserted, and if
not inserted you [305] cannot recover, unless you prove a property.” That case
occurred before the stat. 19 Geo. 2, c. 36, since which statute the distinction
taken by Lord Hardwicke no longer exists. There is no case in which a party has
been allowed to recover who had not an interest in the property at the time of
the loss. Mead v. Davison is distinguishable: there the party had an interest at
the time of the loss, under the antecedent contract. In Grant v. Parkinson (cited
3 Bos. & P. 85), the insurance was on £1000, “being profits expected to arise
from the cargo of the ship ‘Providence’ in the event of her safe arrival at
Quebec,” and there was an allegation in the declaration that the plaintiff, “until
and at the time of the misfortune hereinafter mentioned, was interested in the
profits expected to arise from the said goods, &c. to a large value, &c.” In
Abitbol v. Bristow (6 Taunt. 464), an allegation of interest at the time of the loss
is assumed by Gibbs, C. J., to be a necessary allegation. All the precedents
contain such an allegation: see Chitty on Pleading, vol. 2, pp. 105, 107. The
ordinary plea, that the plaintiff was not interested in the goods at the time of the
loss, would be altogether nugatory if the plaintiff be right, and the issue upon it
would be immaterial. Besides, the contract of the insurer is merely to secure the
assured against any loss the goods may sustain by perils of the seas: but here
the plaintiff is no loser thereby, but by his having entered into an improvident
contract with a third party. Surely it is too metaphysical and unnatural a
construction to put upon the language of the parties to this policy, that because
the plaintiff eventually suffers from having been a party to a contract, the
subject-matter of which had previously been affected by the perils of the sea
without his knowledge, his goods have been lost or damaged by those perils.
Secondly, the second plea is not bad as amounting to non assumpsit. Even if
the matter traversed by it could [306] have been put in issue by non assumpsit,
yet it is good, as being a simple denial of a material fact alleged in the
declaration. And it is the far more convenient course so to plead, and thereby to
save the opposite party the necessity of proving a number of unimportant facts,
which are not disputed between the parties. This is not an averment of new
facts, amounting to an argumentative general issue, but a mere denial of a
single material fact specifically alleged in the declaration. The defendant has a
right thus to narrow the general issue. In Gilbert's History of the Common Pleas,
60, it is said that “the pleadings in other *820 actions were settled conformably
to what was done in the assize, for they gave the defendant, if it were a matter
of fact, the liberty of pleading the general issue, or traversing any material point
of the declaration; but he could not plead a plea that amounted to the general
issue, for pleas that amounted to the general issue were only facts on which the
issue might be turned in evidence, and consequently not a good plea, because
they drew to the examination of the Court what was proper to be determined by
the jury; but they gave the defendant leave to traverse any material point in the
plaintiff's declaration, in order to bring that one single point in issue, and to
which they might apply their evidence alone.” And the author proceeds to
observe, “Therefore, in debt for rent, if it were by deed, they might plead non est
factum; if it were without deed, non dimisit, or nothing in arrear, or that they
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never entered, unless it was by deed, and then they were estopped by their own
acceptance;” and yet all these points were in issue under nil debet. In Stephen
on Pleading, 418 (3rd edition), several instances are given in illustration of the
rule that a plea setting forth matter which is constructively, and in effect, the
same as the general issue, is bad. The first of them is cited from the Year Book,
10 Hen. 6, c. 16: it was an action for breaking the plaintiff's warren, and the plea
was in this form— “Il n' ad [307] nul tiel garren. Prest.” This was held bad, but it
may well have been because it concluded with a verification. Another instance is
a plea of non depascit, to an action for breaking or entering a close and
depasturing the grass; but there the plea was bad as being in form a plea to the
whole action, whereas it only answered a part. Again, a plea, in an action for the
price of a horse, that the defendant did not buy it, was held bad, because it put
in issue every fact which could be put in issue by non assumpsit. And on
reference to the authorities there cited, Vin. Abr., Certainty of Pleading, (E. 15),
and Bro. Abr., Traverse, 275, other cases are found, in all of which some similar
objection existed to the pleas. So in the cases cited in Com. Dig., Pleader, (E.
14), and Bac. Abr., Pleas and Pleading, (G. 2), either they amounted to an
argumentative non assumpsit, or were open to the objection of prolixity. But no
authority, ancient or modern, forbids a defendant to select a single material
allegation, and simply to traverse it. The rule is only this, that the defendant shall
not put any facts on the record, and verify them, the effect of which is to shew
that no cause of action existed. Suppose an action for a wilful misrepresentation
respecting a ship: not guilty would put in issue not merely the knowledge of the
defendant, but also the state of the ship, and the making of the representation:
the only ground of defence the party may wish to avail himself of may be his
want of knowledge; yet he is to be compelled, if the plaintiff's argument be
correct, to deny facts which he has no intention to dispute, and subject himself
or his opponent to a large amount of unnecessary costs.
But even if this plea would have been bad at common law, it is rendered
necessary by the new rules. It is observed in Chitty jun.'s Precedents of
Pleading, 322, that, under the new rules, “non assumpsit would merely put in
issue the question whether the defendants underwrote or granted the policy
described in the declaration.” And in [308] De Pinna v. Polhill (8 C. & P. 78),
where the declaration alleged that the plaintiff was the author of a musical
composition, and as such author had a right to it, and in consideration of that
right, and that the plaintiff would sell it to him, the defendant undertook to buy of
him the said right, and to pay the price, Tindal, C. J., ruled that non assumpsit
did not put in issue the authority or copyright, or that the plaintiff sold the
production to the defendant. Under non assumpsit, therefore, the present
plaintiff would have recovered merely on the production of a policy underwritten
by the defendants, corresponding with that set forth in the declaration.
The same observations apply to the third plea. There is no authority that a
defendant may not admit a nudum pactum, and traverse the considerations for
his promise. The declaration in this case may import that the plaintiff entered
into a substantive policy, independent of that entered into by Boggs, Taylor, &
Co., but according to its terms. Suppose the promise so alleged to have been in
writing, with a policy stamp, it would be a perfectly good contract; yet it is said
the defendant is bound to leave the allegation unanswered. The promise to fulfil
all things mentioned in the policy entered into with Boggs, Taylor, & Co., is just
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the same as if the defendants had promised to fulfil all things mentioned in a
model policy hanging up in the office: it does not import that the action is
brought on that policy. At all events, the effect of the new rules is to render it
advisable to put such pleas on the record as *821 these, which are mere
denials of particular facts, and which would not make any difference in the proof
at the trial.
Martin, in reply. The rule is that a matter which is traversable by the plea of non
assumpsit, shall be traversed thereby: and the cases cited on. the other side all
tend to establish that proposition. As to the case from the Year [309] Book, it is
evident that the word “Prest” has not the meaning attributed to it, of a
verification, for the reason assigned for the decision is that the plea was
tantamount to the general issue, whereupon the defendant pleaded not guilty,
and after that plea the very same word “Prest” occurs again. When a defendant
denies that he promised, he denies the consideration moving from the plaintiff,
and the promise thereupon made by the defendant. In the passage cited from
Lord C. B. Gilbert, he may be referring to material averments not included within
non assumpsit, as the interest, the loss, &c Gough v. Bryan (2 M. & W. 770),
where a plea to an action for negligent driving that the damage was occasioned
by the negligence of the plaintiff's servant, was held bad as amounting to not
guilty, shews that the new rules have made no alteration in this matter, and that
the defendant cannot select such facts as he pleases to traverse. 4
As to the eighth plea, the cases cited from equity have no application: the words
“lost or not lost” were not contained in the policies, and the interest had been
transferred before the loss. The question here merely is, did the defendants
contract to indemnify the plaintiff against a peril which in fact had already
occurred, and was it lawful to do so? Now the terms of the contract are, that the
plaintiff shall be indemnified against any loss the goods may sustain in the
specified voyage. And the averment of interest is made necessary only by the
statute, with reference to which this averment would be true: the plaintiff was
interested in every particle of goods which left Bombay by this ship. It is enough
to shew an interest sufficient to satisfy the statute, whenever existing.
Cur. adv. vult.
The judgment of the Court was now pronounced by
[310] Parke , B. In this case the plaintiff declares in the usual form, that he
caused to be made a policy of assurance, purporting thereby that Boggs, Taylor,
& Co., as well in their own name, as for all persons to whom the same did,
might, or should appertain, made assurance, and caused themselves and them
to be assured with the General Maritime Assurance Company, lost or not lost,
from Bombay to London, upon any kind of goods and merchandise, &c.,
beginning the adventure upon them from the loading thereof on board the ship
until arrival, and the landing of the goods. The insurance was declared to be on
360 bales of cotton. The declaration then states, as usual, the admission in the
policy that the premiums were paid, and in the usual manner, that, in
consideration of the premises, and that the plaintiff, at the request of the
defendants, being three of the directors of the company, paid them £40 as a
premium for the assurance of £2000 on the goods, and then promised to fulfil all
things in the policy on his part, the defendants promised the plaintiff that the
14/10/2020 Delivery | Westlaw India Page 10

Company would be assurers to the plaintiff of £2000 upon the goods, and would
perform all on their part as assurers to be done, &c. The declaration then avers,
that the goods were loaded at Bombay, to be carried on the voyage, and then
(which is not in the usual form) that the plaintiff was, during the voyage,
interested in the goods in the policy mentioned, and so loaded, to a large
amount, to wit, the amount insured, and that the said assurance was made for
his use and on his account. The ship is then stated to have been damaged by
perils of the seas, and the goods thereby damaged, and rendered of no use to
the plaintiff. The declaration then states, that the stock of the company was
sufficient to make good the plaintiff's claim and demand which had so accrued,
but that the defendants had not paid it, to the plaintiffs damage of £500.
To this declaration there were three pleas, which have been demurred to: the
second, the third, and the eighth.
[311] The second plea, after admitting that Boggs, Taylor, & Co., made the
policy, denied that it was made by or on behalf of the plaintiff, and concluded to
the country.
To this there was a special demurrer, alleging for cause, that the plea amounted
to non assumpsit.
The third plea averred, that the plaintiff did not pay the premium, nor did any
*822 one for him, nor promise the defendant to perform the things in the policy,
on the part of the assured to be performed: concluding to the country.
To this plea also there was a special demurrer, for the same cause.
The eighth plea was, that although the plaintiff acquired an interest in the goods
after the commencement of the voyage, to the amount insured, yet, that the
goods were damaged and diminished in use and value, as in the declaration
mentioned, before the plaintiff acquired or had any interest therein, and not
after.
To this plea there was a general demurrer, which raises the only question on the
merits of the case, the others being mere matter of form.
We are of opinion that the eighth plea contains no answer to the declaration.
The plea admits expressly that the plaintiff had, during the voyage, an interest in
the goods on board, to the amount insured thereon, and it admits impliedly, (for
it does not deny that allegation), that the insurance was made for the use and
benefit and on the account of the plaintiff, that is, as a contract of indemnity to
the plaintiff, against any loss in respect of that interest, by any of the perils
insured against. This being admitted, the simple question is, whether it is any
answer to an action on a policy on goods, (lost or not lost), that the interest in
them was not acquired until after the loss. We are of opinion that it is not. Such
a policy is clearly a contract of indemnity against all past, as well as all future
losses, sustained by the assured, in respect to the interest insured. It operates
just in the same way as if [312] the plaintiff having purchased goods at sea, the
defendant, for a premium, had agreed, that if the goods had at the time of the
purchase sustained any damage by perils of the sea, he would make it good.
The plea, therefore, is bad in substance.
It was argued by Mr. Greenwood, that upon the pleadings it might be assumed
14/10/2020 Delivery | Westlaw India Page 11

that the plaintiff bought the goods in their damaged state, and consequently was
not entitled to any indemnity for that damage. But it does not appear that he
purchased them as damaged goods. If that had been true, he could not have
recovered on this policy, on a plea denying the loss by the plaintiff by perils of
the seas; and that would have been the proper form of plea to have raised this
question.
It remains to consider the objections, which are formal, to the other two pleas.
To the second plea the objection is, that it amounts to the plea of non
assumpsit. To this it is answered, that it does not amount to the general issue at
common law, but is only a traverse of part of what would have been included in
it, which is permitted: and, secondly, that if it was bad at common law, it was
good by virtue of the first pleading rule in assumpsit.
We think this plea bad at common law. It is true, it does not resemble most of
the pleas which amount to the general issue, which usually contain new matter,
and conclude with a verification, and are bad as argumentative denials: but this
is bad, on the ground that the law has provided an appropriate mode of denial of
particular facts, which must be followed by the pleader, and that in order to
avoid long records: Warner v. Wainsford (Hob. 127). Thus, in trespass to a
warren, it is a bad plea that there is no such warren; 10 Hen. 6, p. 16: to a close,
non depavit herbas; Doct. Pl. 42; 22 Hen. 6, 37: to debt for the price of a [313]
horse sold, that the defendant did not buy; Vin. Abr., Certainty in Pleadings (A.
15): to which may be added the modern case of Gough v. Bryan (2 M. & W.
770), in which a special traverse of negligence, in an action on the case for
negligence, was not permitted. This principle has been carried so far, that it has
been held, where the general issue non assumpsit, or not guilty, denied all the
facts alleged in the declaration, that it was not competent to traverse one: as, in
assumpsit, to plead that defendant performed all on his part; Taylor v. Sea (Ld.
Raym. 968): in case for a false return, to plead that it was true; Green v. Pope
(ibid. 125): or to deny that at the emanation of the writ, the defendant was the
officer to whom it was addressed; West v. West (id. 674). On the other hand,
where the general issue was not debt, and it embraced more than one distinct
proposition, as where it was pleaded to an action of debt for rent, which accrues
by the lease and subsequent enjoyment, it was allowed to the defendant to deny
the indenture by non est factum; or the demise, if not by indenture, by “non
demisit:” or to plead riens in arrere, as well as nil debet: Gilb. C. P. 61. It is not
very easy to reconcile these cases, unless we suppose that non est factum, and
non demisit, and riens in arrere, are formal modes of traverse as well as nil
debet, and on that account permitted: but whether that be so or not, there is no
authority for holding that each fact constituting one entire proposition, as that a
valid contract was made between the *823 plaintiff and defendant, can be made
the subject of distinct traverses: and the plea in this case in effect is, that though
there was a contract by the defendant, by the policy, it was not with the plaintiff:
and this closely resembles the case, where to a bond, the defendant, admitting
the execution of the bond, alleged that it was not made to the plaintiff, which
was held to [314] amount to non est factum, and to be bad: Gifford v. Perkins
(Sid. 450).
We are therefore of opinion that the second plea is bad at common law.
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It is said, however, that, under the first pleading rule, the plea, non assumpsit,
would not deny that the policy was procured to be made by or on behalf of the
plaintiff, but simply the subscription to the policy, containing the terms stated in
the declaration: and if so, the defendant might certainly traverse that it was
caused to be made by or for the plaintiff.
But we are of opinion, that, according to the true construction of the pleading
rules, non assumpsit puts in issue not merely the subscription to a policy,
containing the particlar terms alleged, but to a policy caused to be made by the
plaintiff, and containing those terms; in the same way as non est factum would
put in issue a bond to the plaintiff, in the case just cited. An action on a policy is
mentioned in the pleading rules only as an example, illustrating the general rule
previously given, the object of which is to confine the operation of the plea of
non assumpsit, which had before operated as a denial of all the facts, and,
indeed, of all liability to the action at the time it was brought, to a denial of the
contract, expressed or implied, alleged in the declaration. A contract imports
that there are two parties to it, and a denial of the contract alleged is a denial of
the contract with the plaintiff.
Considering the example, therefore, as merely illustrating the rule, we think it
clear that, in an action on a policy, the plea of non assumpsit denies that the
defendant ever contracted by such a policy with the plaintiff, and consequently
puts in issue the fact that the plaintiff caused the policy to be made. The second
plea, therefore is bad.
For the same reasons, the third also is bad. All the [315] facts put in issue are
only facts of the proposition, that the defendant contracted with the plaintiff, and
would be put in issue by non assumpsit.
Leave to the defendant to amend, on the usual terms: otherwise
Judgment for the plaintiff.

Meeson and Welsby

1. These blanks were left in the policy.

2. These blanks were left in the policy.

3. These blanks were left in the policy.

4. See also Bridge v. Grand Junction Railway Co. , 3 M. & W. 244; Rowe v.
Ames , 6 M. & W. 747.

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