Common Law Adjustment is not sive, A debt may also be attached under the garnishee clauses of the Common Law Procedure Act, 1854 (a). Should the garnishees have notice of any counter claim, such as of a subsequent adjudication of bankruptcy against the assured, they cannot safely pay under the garnishee order, but should apply to a Judge in Chambers to stay it (b). When a claim has been adjusted, and the amount of until payment loss agreed between the assured and the insurers or their agents, disputes may arise how far the adjustment is binding upon the insurers before payment. This question has been the subject of numerous cases in marine insurances, in which it has been held that the adjustment is nothing more than a promise to pay, which is only binding when founded on the consideration of a previous liability. "What," it is said, "is an adjustment?" "An admission "on the supposition of certain facts stated that the assured are entitled to recover on the policy. An underwriter "must make a strong case after admitting his liability, but "until he has paid the money he is at liberty to avail "himself of any defence which the facts or the law of the case will furnish." (c) But adjustment generally final. Aliter, if fraud 66 But after the loss has been paid, when the insurers knew or might have learnt upon inquiry all the circumstances upon which they might have resisted the claim, they cannot recover the money in the absence of actual fraud; and a mistake or ignorance of law is no excuse (d). This rule is adopted as one of general convenience, and for the prevention of endless litigation, and expressly applies where the payment is made under the compulsion of legal process, or as the compromise of a suit (e). If, however, after the settlement, the insurers discover that is discovered or there was fraud, misrepresentation, or concealment, in the grounds of (a) 17 & 18 Vict. c. 125, s. 63. (b) Wood v. Dunn, the Law Reports, 1866, Q. B. 77. (c) Herbert v. Champion, 1 Camp. 133; Shepherd v. Chewter, 1 Camp. 274; Gammon v. Beverley, 1 B. Moore, 563. (d) Bilbie v. Lumley, 2 East. 469; Shepherd v. Chewter, 4 Camp. 274. (e) Marriot v. Hampton, 7 T.R.· 269; See 2 Smith's Lead. Cas. p. 237. tainable. original contract, or circumstances transpire which would defence not have justified their resisting the claim, but which they had before ascerno means of ascertaining at the time of payment, they may recover the money paid to the assured (a). The only exception being, when in the absence of actual .fraud, the payment has been made under the pressure of legal proceedings. If no cause is shown for rejecting the claim after adjustment, nothing remains for the insurers but to pay the money. When the policy is granted in the names of several persons, any one of them can give a legal discharge, and release the debt, but it is usual and proper to require the receipt of all the assured (b). When the policy has been mortgaged, and notice given to the office, it will be proper to require the concurrence of the mortgagee in the receipt, and if this is refused, and the claim is unduly pressed by the assured, the insurers would, it would seem, have relief by payment of the money into Court under the Trustees' Relief Act (c), or may, under the option to this effect, reserved by the conditions of the policy, lay out the money in a reinstatement, thus replacing, so far as the insurance money will extend, all parties interested in the same position as before the fire. Payment of the amount of the loss. recovered. When the assured is compelled to have recourse to a Interest may be court of law, he may now by statute recover interest on the amount of the loss during the delay, juries being empowered, if they think fit, to allow interest in the nature. of damages thereon (d). (a) Arnould, Marine Insurance, 1003, citing Buller v. Harrison, Cowp. 565. (b) Law of Life Assurance, p. 320. (c) In re the United Kingdom Life Insurance Company, 11 Jur. N.S, 424; In re Hall, 10 W. R. 37; Jones v. Farrell, 1 De G. & J. 241. (d) 3 & 4 Wm. IV. c. 42, s. 29. of the loss between coinsurers. CHAPTER VIII. APPORTIONMENT AND JOINT CONTRIBUTION BETWEEN CO-INSURERS- Apportionment WHEN insurances are effected in more than one company, it follows, from the nature of the contract, that the insured can recover no larger sum than the amount of his loss. If there were no stipulation in the policies on this subject, it would be open to him to recover from any one of his insurers in preference to the others, and it would be no answer to an action against company A that a similar insurance had been effected with company B, which ought, in equity, to pay half of the loss. If, however, the claim were paid in full by company A, it would be entitled to contribution by company B. The case would be similar to that of a creditor having a bond from his debtor, with two sureties jointly and severally liable for the whole debt. He would be entitled to enforce his remedy against either surety, who would be bound to solve the obligation into which he had entered, but, having done so, would be entitled to contribution from his co-surety. This right is well established upon marine insurances (a). It will, however, be found that the conditions of fire policies invariably provide for this particular case. The condition usually goes so far as to declare the policy void unless any other policies that may have been affected, whether by the same insurers or other persons, are noticed in it, or by endorsement. This appears a provision of a somewhat arbitrary nature, since it is difficult to see with what justice the insurers could dispute a claim upon the ground of a (a) Newby v. Reid, 1 Black. R. 416; Davis v. Gildart, Park on Assurance, 601. policy having been effected, which, if valid, would only operate to diminish their risk, or could endeavour to throw the whole responsibility on another company. The author is not aware of any action having ever been defended upon such a plea as this condition would furnish. The origin of it may probably be found in the natural declaration-That when a new policy is issued, the liability of the insurers is cancelled upon any previous contract which is intended to be superseded by it. The condition, however, invariably goes on to provide for the apportionment of the loss where there is a double liability. The following is an example of such a clause, which seems to meet every case :— And whenever insurances are effected with this company and else- Condition where (and due notice given as aforesaid), as in every other case not apportioning already provided for by this condition, where, at the time of any fire the the liability. property at risk shall be insured in this company and elsewhere, whether by the same party or by other persons, having joint or separate interests in such property, the responsibility of this company (if any) shall be limited to the payment of a rateable proportion only of any loss that may be sustained. The reader will observe that this condition applies to persons other than the assured, as well as to him, and that unless it were so extended, it might happen in practice that the value of the property might be recovered twice over, as when separate insurances were effected by vendor and purchaser, landlord and tenant, mortgagor and mortgagee, or tenant-for-life and remainder-man, without the privity of each other. Where the condition exists the liability must be apportioned accordingly, and each company or insurer will be responsible only for his own share. In such a case, if one company were, without the consent of the other, to pay the whole loss, it would seem that it would not be entitled to recover any proportion, or any sum paid by it voluntarily (a). The liability in solido, which would be the foundation of the right of contribution, would not exist; but, as it is very usual among insurance offices for the company having the largest amount at risk to (a) Lucas v. Jefferson Insurance Company, 6 Cowen, 635; Phillips on Insurance, 2000. undertake the settlement of a loss, and sometimes even pay it, when ascertained, the consent, it may be assumed, would be readily inferred from the acts of the parties, upon evidence of the custom of the trade. When the policies are concurrent, that is, granted in similar terms upon the same property, whether for the like or different sums, the apportionment is of course easy. The loss is simply divided in proportion to the sums assured, and so far as they will extend; but the policies very often vary greatly, and the mode of apportionment then becomes proportionately complicated. The subject now under discussion has been much considered by the insurance offices, and some interesting articles upon it are to be found in the "Assurance Magazine," (a) showing both the views taken by the offices themselves, and giving instances of actual decisions made by arbitrators when losses have occurred. No decisions of the court are, however, extant, and it is probable that none have been given; hence it becomes necessary to approach the subject by the light of theory only, and without the assistance of any rules, of which it can be said this or that has been decided and is thus far law. Where the aggregate liability upon all the policies is not more than sufficient to pay the loss, there can be no question between the insurers, each company must pay according to its contract, and the insured suffers for the deficiency; but when the amount of loss is less than the liability, then arises the question of apportionment. Three cases of difficulty present themselves : First.-As between specific policies, when the subject matter in one policy is combined with another subject matter in another. Secondly. As between specific policies and policies containing conditions of average. (a) Vol. VII. p. 24, article by R. Atkins, Esq.; Vol. VIII., article by R. Atkins, Esq. p. 1; by Thomas Miller, Esq. p. 140; by |