The adjustment of a claim on insurers is not always required; nor is any particular form required. In all the United States, adjustments are usually made in a similar way, and the larger mercantile ports, at least, by persons whose business it is to make them; and these persons are generally, though not always, insurance brokers.

These adjustments are sometimes long and complicated, especially in cases of general average; and sometimes short and simple. In either case, and equally, the law makes them binding upon all the parties in interest. (q) The exceptions to this rule are the same as those applied to all contracts. They may be avoided by a party defrauded, if they were made fraudulently. (r) Nor are they enforced if founded upon a material misrepresentation or concealment, (s) or a material mistake of fact, (t) or, we think, of law. (u) But the distinction of the common law between these two mistakes is still so far applied, that if money be actually paid under an adjustment, it may be recovered back if paid through a mistake of fact, (v) but not if paid through a mistake of law. (w)

The policies in common use make the loss payable "after proof and adjustment of the loss." But if payment is refused, and a suit is instituted, the want of an adjustment is no defence. (x) And if a claim be demanded and refused, which is founded upon an adjustment which was offered by the insured, he may then waive this adjustment, and present and sue upon a new adjustment, whether more or less advantageous to him. (y)

(q) Hog v. Gouldney, Beawes, Lex Mere. 310, Park, Ins. 162; Hewit v. Flex-ney, Beawes, Lex Merc. 308; Adams v. Saundars, 4 Car. & P. 26; May v. Christie, Holt, N. P. 67.

(r) Haigh v. De la Cour, 3 Camp. 319.

(s) Faugier v. Hallett, 2 Johns. 233; Shepherd v. Chewter, 1 Camp. 274.

(t) Rogers v. Maylor, Park, Ins. 168; Christian v. Coombe. 2 Esp. 480; De

Garron v. Galbraith, Park, Ins. 163; Dow v. Smith, 1 Caines, 82.

(u) Rogers v. Maylor, Park, Ins. 168.

(v) Reyner v. Hall, 4 Taunt. 726; Kelly v. Solari, 9 M. & W. 54; Mutual Ins. Co. v. Munro, 7 Gray, 248.

(w) Bilbie v. Lumney, 2 East, 469.

(x) Rogers v. Maylor, Park, Ins. 168.

(y) Am. Ins. Co. v. Griswold, 14 Wend. 399.

An adjustment is equally binding, whether it be made at home or in a foreign port, provided it be there made by persons of competent skill, in accordance with the laws of that place, and in good faith. (z) l If payment be made on a claim * for a total loss, this is equivalent to an adjustment, (a) and an adjustment has no effect upon the claim of the insured or his action on the policy, if the subject-matter of the claim or action be not included in the adjustment. (b)

(z) See Power v. Whitmore, 4 M. & 8. 141; Lenox v. United Ins. Co. 3 Johns. Cas. 178; Shift v. La. State Ins. Co. 18 Mart. La. 629; Walpole v. Ewer, Park, Ins. 565; Newman v. Cazalet, id. 566; Strong v. N. Y. Ins. Co. 11 Johns. 838; Depau v. Ocean Ins. Co. 5 Cow. 63; Loring v. Neptune Ins. Co. 20 Pick. 411; Thornton v. U. S. Ins. Co. 3 Fairf. 160.

(a) M'Leilan v. Maine Ins. Co. 12 Mass. 246.

(b) Reynolds v. Ocean Ins. Co 22 Pick 191.

1 See Harris v. Scaramanga, L. B. 7 C. P. 481.

[ book iii.