LIPPINCOTT, J. The first count of the declaration, to which the demurrer has been filed, is as follows: "Essex County—ss.: Joseph S. Mundy, the defendant in this suit, was summoned to answer the Enterprise Lumber Company, a corporation, in an action upon contract; and thereupon the said plaintiff, by Colie, Swayze & Titsworth, its attorneys, complains for that whereas heretofore, to wit, on the 19th day of October in the year of our Lord 1894, at the city of Newark, to wit, at Newark, in the county of Essex, aforesaid, in consideration of the receipt by the defendant, and each of the other insurers hereinafter named, of his proportion of the
sum of one hundred and forty-three dollars and seventy-five cents, which sum was then and there paid by the said plaintiff to William C. Beecher and Arthur White, partners trading as Beecher & Co., who were then and there the attorneys in fact for the said defendant and for Charles A. Fierz and others; and the said defendant and the said Charles A. Fierz and others, by the said William C. Beecher and Arthur White, partners as Beecher & Co., their attorneys in fact duly authorized for that purpose, together with the said William C. Beecher and Arthur White individually, caused to be made a certain writing or policy of insurance, a copy of which is hereto annexed, and made part hereof, in and by which policy the persons above named, whose names are subscribed thereto, did separately, and not one for the other or for any of the others, agree to insure, for the separate amounts placed after their names, respectively (that is to say, the sum of three hundred and fifty-nine dollars and thirty-seven and one-half cents each), the said the Enterprise Lumber Company, for the term of one year from the 19th day of October, 1895, at noon, against all direct loss or damage by fire to the property described in said policy, and hereafter described, to an amount not exceeding in the aggregate the sum of fifty-seven hundred and fifty dollars, and for a pro rata proportion of the following amounts: [Here follows a particular description of the property, by items, insured, as set out in the policy, and the amount of Insurance on each item, and the situation thereof.] In and by which said policy of insurance, in consideration of the payment by the plaintiff of the sum aforesaid, the said defendant undertook and promised to abide the result of any suit brought against the said William C. Beecher and Arthur White, attorneys in fact, as representing all the underwriters, as fixing individual responsibility of the said defendant under said policy, and thereby, for the consideration aforesaid, undertook and promised to pay to the said plaintiff such sum as in a suit against the said William C. Beecher, as Beecher & Co., should be adjudged to the individual responsibility of the said defendant under the said policy; and the plaintiff avers that after the making of the said policy, and the payment of the said premium by the plaintiff, as aforesaid, to wit, on the 8th day of May, 1895, the property of the plaintiff described in said policy, while situate as above mentioned, was, without any fault or misconduct on the part of the plaintiff, burned, damaged, injured, and destroyed by fire, which fire did not happen from any of the causes excepted in said policy, and in which property, on the said 8th day of May, 1895, when the same was destroyed by fire, the plaintiff had an interest, as owner, to an amount exceeding the amount of the insurance thereon; and that afterwards, to wit, on the 28th day of March, 1896, an action was brought by the now plaintiff, to enforce the provisions of the said policy, against William C. Beecher and Arthur White, composing the firm of Beecher & Co., as attorneys in fact for the said Joseph S. Mundy, and one William A. Harper and James B. Pace, two of the other underwriters, whose names were subscribed to the said policy, in the supreme court of the state of New York, a court of general jurisdiction, in which action by the judgment of the said court the individual responsibility of the said defendant under said policy was fixed at the sum of one hundred and eighty-six dollars and eighty-five cents, and a separate judgment rendered in the said action against the said defendant for one hundred and eighty-six dollars and eighty-five cents, besides nine dollars and twenty-three cents costs of suit, to wit, on May 29, 1896, which said sum of one hundred and eighty-six dollars and eighty-five cents was the said Joseph S. Mundy's proportionate part of the aggregate amount payable to the plaintiff under said policy; and the plaintiff avers that it has well and truly kept all the conditions on its part to be performed and kept in said policy of insurance contained, and that there are no premiums in the hands of the underwriters unexpended and undivided, and no deposit in the hands of the said underwriters or their attorneys in fact, out of which the said judgment can be satisfied, whereby an action hath accrued to the said plaintiff to demand and have of and from the said defendant the sum of one hundred and ninety-six dollars and eight cents." The policy is annexed to the declaration, and made a part thereof. For the purposes of the case as now presented, it is only necessary to cite the following provisions: "No action shall be brought by the assured to enforce the provisions of this policy, except against the attorneys in fact, as representing all of the underwriters; and each of the underwriters hereby agrees to abide the result of any suit so brought as fixing his individual responsibility thereunder." "Judgment entered in such action shall be satisfied out of the premiums in the hands of the underwriters unexpended and undivided. If such premiums shall be insufficient, then out of the individual liability of the several underwriters, as hereinbefore expressed and limited. But in no case shall a judgment bind the property of the said attorneys to a greater extent than the several liabilities of each of them as individual underwriters. The liability of each of the underwriters in case of any loss, and the amount insured by each underwriter, shall be his proportionate part of the aggregate amount payable to the Insured upon such loss; and no one of the underwriters shall be, in any event, liable under this policy for an amount exceeding the sum of one thousand dollars. In no event or contingency shall any underwriter hereon be liable for any other underwriter's liability hereon; the liability assumed hereby by each underwriter being separate and individual only, as if each underwriter had Issued to the assured herein a separate policy; their liability being several
not joint. And the total liability of each underwriter on all policies now or hereafter in force, after the application of the total unexpended and undivided premiums, shall not exceed five thousand dollars (the original subscription of $1,000 each being therein included)."
It is noticed that this count of the declaration avers that the attorneys in fact were also underwriters of the policy of insurance; also, that the assured, the plaintiff in the action and judgment in the state of New York against the attorneys in fact as underwriters, and the plaintiff in this action, has complied with and performed all the conditions contained in the policy of insurance, on its part, to be complied with and performed. This action is founded upon what is familiarly known as a "Lloyds" contract or policy of insurance, where the insurers are such as individuals, and not as a corporate insurance company, and where the liability for loss, under the contract, of the individual underwriters, is several, and not joint. The validity of such insurance, in the absence of statutes prohibiting the same, is well established. Noble v. Mitchell, 100 Ala. 519, 14 South. 581; Louisville Safety-Vault Co. v. Louisville & N. R. Co. (Ky.) 17 S. W. 567; State v. Stone, 118 Mo. 388, 24 S. W. 164; Fort v. State (Ga.) 18 S. E. 14; Com. v. Reinoehl, 3 Pa. Dist. R. 287; Clay Fire & Marine Ins. Co. v. Huron Salt & Lumber Mfg. Co., 31 Mich. 346; Insurance Co. v. Smart, 60 N. H. 458; Com. v. Vrooman, 164 Pa. St. 306, 30 Atl. 217; Arrott v. Walker, 118 Pa. St. 249, 12 Atl. 280; State v. Board of Insurance Com'rs, 37 Fla. 564, 20 South. 772. The power to do business in other states than the one in which such associations are formed is unqualified, in the absence of limiting or prohibiting statutes. Id.; Cooley, Const. Lim. (6th Ed.) p. 24, and cases cited.
The first ground of demurrer is that no liability of the defendant is shown by the declaration, because one of the clauses of the policy to which reference has been made discloses the condition that the total liability of each underwriter on all the policies in force at the time the one on which this action is founded was issued, and on all the policies thereafter in force, after the application of the total unexpended premiums or undivided premiums, shall not exceed $5,000, the original subscription of $1,000 each being included therein, and that the declaration does not aver that such liability of the defendant as one of the underwriters has not been discharged or exhausted, under the condition. It is conceived that this condition, if relied upon by the defendant, can be only set up by way of a plea in bar of the action. The declaration avers that there are no unexpended or undivided premiums or deposits, and it is only the defendant who can know whether his liability upon all the policies issued has been...
