dissenting. I dissent from the opinion of the majority of the Court.
It is contrary to the good faith required in all contracts of insurance, for the insured to put the underwriters in a worse condition than the insured would have been in, if no insurance had been made. The excess of the plaintiffs’ goods sold for salvage, over their share of the average, was, in truth, an advance made by them for the other shippers ; and the average bond taken by the master, the common agent, was a mutual covenant, signed by all the persons concerned, binding themselves to pay each his contributary share of the average, on demand. The agents of the plaintiffs, when they, and all others concerned, were together in the port of destination, after adjustment of the average, do not appear ever to have made a demand, but have contented themselves by sending the adjustment and average bond to the underwriters, looking to them for entire indemnity. The underwriters may pay, and may recover from those bound to make contributions, by suits in the name of the plaintiffs; but now that the shippers are separated, what hope is there for the underwriters that *162they will he able, at reasonable expense, to procure remuneration'! A demand by the agent of the plaintiffs, at the time when they should have made it, might have effected complete .justice, without expense or circuity; and I think, that, without shewing that this demand was ineffective, or was in some way excused, the plaintiffs should not be permitted to recover from the underwriters more than their share of the average. 2 Marshall on Insurance, 547; 2 Phil. on Insurance, 127.
Peligra & Lesesne, for the motion. H. A. DeSaussure, contra.I concur in this opinion. A. P. Butler.