1816. Morean V. The U. S. Ins. Co. French law requires goods, which, by their nature, are subject to particular detriment or diminution, such as grain, salt, or merchandise subject to leakage, to be specified in the policy, otherwise the insurer is not liable for the damages or losses which may happen to these articles, unless the insured was ignorant of the nature of the cargo at the time the contract was made. Ordonnance de la Marine, 1. 3. tit. 6. des Assurances, art. 31. Code de Commerce, 1. 2. tit. 10. art. 355. In the different ports of France, before the revolution, various clauses were inserted in the policy, excluding responsibility for losses not exceeding a certain per centage on such articles. At Marseilles the insurers exempted themselves from average losses, on certain voyages, by a clause which was construed to extend both to general and particular average, on vessel or cargo. Under this clause franc d'avarie, the insurer was held answerable only for an entire loss of the subject insured. It was, however, determined not to extend to any case of technical total loss, which by the French law authorizes the insured to abandon, such as capture, stranding, shipwreck, &c. 1 Emerigon, Traité des Assurances, c. 12. s. 45, 46. Pothier d'Assurance, No. 166. Valin sur l'Ordonnance, 1. 3. tit. 6., Des Assurances, art. 47. The origin of the English memorandum is referred by Sergeant Dunning, in the case of Wilson et al. v. Smith, 3 Burr. 1551, to its "being better calcu lated to deliver the insurers from small averages, than adapting the premium to the nature of the commodity, as it might happen to be more or less liable to perish or suffer; which method would have made the policy too complicated, and which the Dutch had at first tried, but afterwards altered.'' The English formula is as follows: "N. B. Corn, &c., are warranted free from average, &c., unless general, or the ship be stranded." The last words, or the ship be stranded, have been omitted for several years in the forms of policies adopted by the English insurance companies, viz. the London Royal Assurance, and the Royal Exchange Assurance. 2 Selwyn's N. P. 949 They are not inserted in the policies used in the United States. 1816. Welch (COMMON LAW.) WELCH V. Mandeville. A nominal plaintiff, suing for the benefit of his assignee, cannot, by a dismissal of the suit under a collusive agreement with the defendant, create a valid bar against any subsequent suit for the same cause of action. ERROR to the circuit court for the district of Columbia for Alexandria county. This was an action of covenant brought in the name of Welch (for the use of Prior) against Mandeville and Jamieson. The suit abated as to Jamieson by a return of no inhabitant. The defendant, Mandeville, filed two pleas. The second plea, upon which the question in this court arises, states, that, on the 5th of July, 1806, James Welch impleaded Mandeville and Jamieson, in the circuit court of the district of Columbia, for the county of Alexandria, in an action of covenant, in which suit such proceedings were had, that, afterwards, to wit, at a session of the circuit court, on the 31st day of December, 1897, "the said James Welch came into court and acknowledged that he would not farther prosecute his said suit, and from thence altogether withdraw himself." The plea then avers, that the said James Welch, in the plea mentioned, is the same person in whose name the present suit is brought, and that the said Mandeville and Jamieson, in the former suit, are the same persons who are defend V. Mandeville. 1816. Welch V. Mandeville. ants in this suit, and that the cause of action is the same in both suits. To this plea the plaintiff filed a special replication, protesting that the said James Welch did not come into court and acknowledge that he would not farther prosecute the said suit and from thence altogether withdraw himself; and avers that James Welch, being indebted to Prior, in more than 8,707 dollars and 9 cents, and Mandeville and Jamieson being indebted, by virtue of the covenant in the declaration mentioned, in 3,707 dollars and 9 cents, to Welch, he, Welch, on the 7th of September, 1799, by an equitable assignment, assigned to Prior, for a full and valuable consideration, the said 8,707 dollars and 9 cents, in discharge of the said debt, of which assignment the replication avers Mandeville and Jamieson had notice. The replication farther avers, that the suit in the plea mentioned was brought in the name of Welch, as the nominal plaintiff for the use of Prior, and that the defendant, Mandeville, knew that the said suit was brought, and was depending for the use and benefit of the said Prior; and that the said suit in the plea mentioned, without the authority, consent, or knowledge of the said Prior, or of the attorney prosecuting the said suit, and without any previous application to the court, was "dismissed, agreed." The replication farther avers, that the said James Welch was not authorized by the said Prior to agree or dismiss the said suit in the plea mentioned; and that the said Joseph Mandeville, with whom the supposed agreement for the dismissal of the said suit was made, knew, at the time of making the said supposed agree The re ment, that the said James Welch had no authority The cause was argued by Lee, for the plaintiff, and Swann, for the defendant. STORY, J., delivered the opinion of the court. The question upon these pleadings comes to this, whether a nominal plaintiff, suing for the benefit of 1816. Welch V. Mandeville: March 11th. 1816. Welch v. Mandeville. his assignee, can, by a dismissal of the suit under a collusive agreement with the defendant, create a valid bar against any subsequent suit for the same cause of action. Courts of law, following in this respect the rules of equity, now take notice of assignments of choses in action, and exert themselves to afford them every support and protection not inconsistent with the established principles and modes of proceeding which govern tribunals acting according to the course of the common law. They will not, therefore, give effect to a release procured by the defendant under a covenous combination with the assignor in fraud of his assignee, nor permit the assignor injuriously to interfere with the conduct of any suit commenced by his assignee to enforce the rights which passed under the assignment. The dismissal of the former suit, stated in the pleadings in the present case, was certainly not a retraxit; and if it had been, it would not have availed the parties, since it was procured by fraud. Admitting a dismissal of a suit, by agreement, to be a good bar to a subsequent suit, (on which we give no opinion,) it can be so only when it is bona fide, and not for the purpose of defeating the rights of third persons. It would be strange indeed, if parties could be allowed, under the protection of its forms, to defeat the whole objects and purposes of the law itself. It is the unanimous opinion of the court, that the judgment of the circuit court, overruling the replication to the second plea of the defendant, is errone |