(dissenting). I cannot concur in the opinion of my Brother Morse in this case. It was *238never necessary that a contract of insurance should be in writing in order to be binding upon the company after it received the premium from the insured, and recognized its obligation in such manner to pay when there had been no fraud on the part of the insured, and the policy is only for the purpose of evidencing the terms of the contract. In a suit to enforce the liability of the company it may be brought on the contract for insurance as well as upon the policy. The claim, o.r cause of action, is the Bame in both the contract and the policy. The damages^ and the measure thereof, are also the same under each, and ascertained in the same way, and are recoverable in the same form of action under each; and a breach of,one is always a breach of the other, as the policy must always include and be based upon the contract for insurance. The latter’, in fact, determines the terms and conditions of the former, and the former can contain no element different from the latter. For this reason a declaration containing a count upon the one may always be amended by adding a count upon the other without introducing a new or different cause of action; and such I conceive to be the question in the present case, and I have no doubt of the correctness of the action of the circuit judge.
I think the mandamus should be denied, with costs.