Thwing v. Great Western Insurance Company. on July 11, 1871, an order was made appointing Tyler to assess the damages and make a report thereof to the court. The defendants on September 13, 1871, moved the court to vacate the agreement above given, or else "to so reform the same that there shall be no question, by reason of any language therein, of the right of the defendants to contest the claim of the plaintiff to recover for damages paid by the plaintiff for injury done by the Alhambra to the Alkera, set forth in the first count of the declaration." The second of these cases was a bill in equity, filed October 27, 1871, by the Great Western Insurance Company against Thwing, alleging that in "October 1863, the company were, and long had been largely engaged in the business of marine insurance at the city of New York, insuring vessels in various parts of the world; that they had no agent authorized to bind them by any contract in Boston, and no domicil or place of business and no attachable property in Massachusetts; that no person in Massachusetts was authorized to accept service of any judicial process upon them in Massachusetts, and they were not justiciable ir Massachusetts; that at that time it was settled law in the State of New York, that, where a policy of insurance was made against perils of the seas and collisions, the insurers were not liable to indemnify the insured for compensation he might be compelled to make to the owners of any other vessel for injury done to such vessel by collision, by reason of the negligence, unskilfulness, or other fault of the master or crew of the insured vessel, not involving barratry, or for any lien which might attach to the insured vessel by reason of the aforesaid causes; that the same was the settled law as administered by all the courts of the federal government of the United States, and in Great Britain and her colonies, and, as the company are instructed, by all the courts of the several states of the United States which have been called upon to administer the same, unless in the State of Massachusetts; and that parties to a policy of insurance in the above named form did not expect to make or receive such indemnification, wherever the said contract was made, or performable;" that in October 1863, Thwing, being the owner of the ship Alhambra, then at Thwing v. Great Western Insurance Company. Liverpool, and bound on a voyage to San Francisco, made application to the company to insure him $20,000, on said ship valued at $75,000, for said voyage; that they executed and delivered to him the policy declared on; that he knew at the time "the settled law and usage and practice above described respecting the insuring of a vessel against the secondary loss arising through collision, as above described, and that the company did not insure against said secondary loss unless by special agreement, upon a special premium, and with an express statement of the risk in their policies;" and that he accepted the policy intending thereby to receive insurance against damage to the Alhambra by collision and not against the said secondary risk. The bill further alleged "that the Alhambra sailed from Liverpool on October 9, 1863, and while on the high seas suffered damage by heavy weather, and on October 13 put back to Liverpool, was repaired and sailed again on December 15, 1863; that for this damage at sea Thwing had a claim against the company for direct partial loss to the Alhambra, ascertainable at Liverpool, and for her general average loss, which was to be ascertained and adjusted on her arrival at San Francisco; that on December 16, while in the River Mersey, the Alhambra came into collision with two or more vessels, suffered further damage to her hull and rigging, was detained at Liverpool, underwent repairs and sailed again in January 1864; that on April 19, 1864, Thwing gave notice and proof to the company of the damage to the Alhambra in October and in December aforesaid, claimed a partial loss for all the damage done to her in the sum of $1221.16, and gave notice to the company for the general average loss arising out of the said damages, to be ascertained on the arrival of the Alhambra in San Francisco; that on May 6, 1864, within the thirty days allowed by the policy, the company paid Thwing said sum of $1221.16; that on July 18, 1865, Thwing gave notice and proof to the company of said general average loss which had been adjusted at San Francisco, in the sum of $4562.50;" that while examining the adjustment, the company discovered, for the first time, that there had been, on the part of Thwing, a breach of a warranty in the policy and a misrepresentation of the registered tonnage of the Thwing v. Great Western Insurance Company. vessel, and that the Alhambra was loaded with an amount of iror, coal and bricks, greater than her registered tonnage; that thereupon they gave notice to Thwing that they considered that the policy had never attached, or had become void by reason cf said breach of warranty and misrepresentation, and refused to pay the general average loss, and demanded of him the repayment to them of the said sum of $4221.16; and, Thwing refusing to repay the same, they commenced on November 20, 1867, an action against him to recover it in the Circuit Court of the United States for the District of Massachusetts; that the action was contested, and the company employed as their counsel Melville E. Ingalls, Esquire, of Boston, who was duly instructed on the subject of the breach of warranty and misrepresentation, and said action was pending before the Supreme Court of the United States, on a writ of error; that after the payment of the partial loss to Thwing, the company, in conformity with the statutes of this Commonwealth, appointed an agent, upon whom judicial process might be served in suits against them in this Commonwealth; that on March 20, 1868, Thwing commenced an action against the company, in this court, upon the policy, serving process upon the said agent; and that the company employed Ingalls as their counsel. The bill then set forth the proceedings in the action at law as above stated; alleged that the company, not knowing that Thwing had or pretended to have any claim against them, except the above named claim for general average, instructed their counsel to set up the defence of breach of warranty and misrepresentation; that they understood that these were the only questions of law involved in the suit; that they therefore authorized their counsel to consent to the agreement above set forth as to the questions to be submitted to the jury; that about two weeks after the decision of this court in July 1871, overruling the exceptions in that suit, and when the business of settling the amount to be paid came up, the company for the first time learned that in Thwing's declaration there was, in addition to the claim for general average, a demand in which Thwing claimed of the company payment of their proportion of the amount paid by him to the Thwing v. Great Western Insurance Company. owners of the Alkera; that on inquiry, said Ingalls informed them "that being first instructed by them and their counsel in New York on the points of said breach of warranty and misrepresentation, as the only questions in dispute, and those being the only points involved in the suit first brought, namely, in the Circuit Court, his attention had been confined to them; that when Thwing's suit was brought, being still instructed by the company and their counsel in New York to set up the said defences of breach of warranty and misrepresentation, and no other defence being suggested to him, he naturally confined his attention to those defences; that the agreement which he made with the counsel of Thwing, to submit only those questions to the jury, tended to confine his attention to those questions, and to withdraw it from any careful examination of Thwing's demand; that it was not at any time in fact present to his mind that Thwing made any claim for the said secondary loss, although, when the subject came up in July 1871, and his attention was then called to it, he saw that such a claim was set forth in the declaration, and was noticed in the answer filed thereto in behalf of the company which he probably drew up, or caused to be drawn up and filed; but that the answer was a formal answer, only denying knowledge in the usual manner in such cases, treating both of said claims together, and drawn rather as a matter of form, and without conference with the company or their counsel in New York; said Ingalls supposing all the while that there was no deinand of Thwing in dispute, but only the defences of the company;" that if they had known, either before Thwing brought his suit or afterwards, that he made any claim for any such secondary loss, they would have resisted the same, and would have removed said suit to the Circuit Court of the United States, and if their counsel had known that there was any dispute as to the claim of Thwing, he would in like manner have removed said suit; "that said Thwing never did make to them the notice and proof of said secondary loss, as required by the policy, and is therefore not entitled to recover the same by any action at law; and did never inform them of the pendency of the suit or claim against him, or the ship Alhambra therefor; and that they are Thwing v. Great Western Insurance Company. informed that the counsel for Thwing contend that the defence of want of notice and proof is not now open to the company by reason of the agreement or stipulation above named, made between them and the counsel for the company, which agreement was made by their counsel under a misapprehension as to the etate of the facts." The bill then alleged "that if said Thwing is permitted to proceed to judgment on his said suit upon said policy as it now stands, there is danger that he will obtain judgment against the company for said secondary loss; that the company will have no plain, adequate and complete remedy or relief against the same at common law, and unless this court shall afford to them the same in equity; that even if the final judgment of this court at common law should be against said Thwing, as to the said secondary loss, yet the same could not be obtained by the company without great, unnecessary and onerous litigation, to which said Thwing ought not in conscience and equity to compel the company; that said Thwing well knew that the contract between him and the company did not in fact include such secondary loss, and that the said policy, as it stands, would not be construed to include the same by any tribunal by which the company were justiciable when the contract was made, or when the said losses occurred or were payable, or during the term covered by the said policy, and did not apply for or pay for or expect to receive indemnity from the company for any such loss; but that after the difference arose between him and the company respecting the breach of warranty, and he had determined to proceed against the company for the general average loss, and the company had become justiciable in Massachusetts, by reason of the appointment of a statute agent, as aforesaid, said Thwing included in his demand, in the suit brought in this court, the claim of the said secondary loss, without giving notice and proof thereof, as required by the policy, in the belief that this court, at common law, would feel obliged, by reason of the precedent aforesaid, to construe said policy, as it stands, as covering said secondary loss, thereby fraudulently intending and contriving to obtain a judg ment against the company for said secondary loss, to which in |