L( 
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY 
 
 ^ 
 
 A

 
 MARSHALL'S 
 LAW OF INSURANCE. 
 
 VOL. ir.
 
 V- 
 
 TREAT I S E 
 
 ON THE LAW OF '•'*'.-7' 
 
 INSURANCE, 
 
 IN FOUR BOOKS ; 
 
 I. Of marine insurance, 
 II. Of bottomry and respondentia, 
 
 III. Of insurance upon lives, 
 
 IV. Of insurance against fire. 
 
 By SAMUEL MARSHALL, 
 
 SERJEANT AT LAW. 
 
 THE SECOND EDITION, 
 
 WITH CORRECTIONS AND ADDITIONS. 
 
 ~ ' 
 
 in two volumes. 
 vol.il 
 
 Laudo mercatorem, qui fidem, etiam contra leges datam, fervat ; fed, 
 •tlaudojudicem, qui fraudes et nequitias mercatorum non fovet, et refcindit 
 paftiones quas lex refcindi jubet. Judicis eft leges fequi; nee difputare 
 an turpiter facial affecurator, qui fidem datam violat— Efto, tu.piter faciat ; 
 fcd, et turpiter facit qui contra leges pacifcitur. 
 
 £yni. Qusft. jur. priv. lib. 4. c. 5. 
 
 LONDON: 
 printed by a. strahan, 
 
 LAW PRINTER TO THE KINC's MOST EXCELLENT MAJESTY, 
 
 FOR J. BUTTERWORTH, LAW BOOKSELLER, FLEET-STREET 
 AND J, COOKE, ORMOND QUAY, DUBLIN. ' 
 
 1808.
 
 
 v.Z
 
 485 
 
 TREATISE 
 
 ON THE 
 
 JLAW OF INSURAxN^CE. 
 
 BOOK THE FIRST. 
 C H A P. XII. 
 
 A 
 
 Of Loss. 
 
 Preliminary Obfervations. 
 LOSS, in infurance, is the injury or damage fuf- 
 
 tained by the infured, in confequence of the happen- 
 ing of one or more of the accidents or misfortunes againft 
 which the infurer, in confideration of the premium, 
 has undertaken to indemnify the infured. Thefe acci- 
 dents or misfortunes, or perils y as they are ufually deno- 
 minated, are all diftintlly enumerated in every policy. 
 And no lofs, however gn'at or unforefeen, can be a lofs 
 within the policy unlefs it be the dire£t and immediate 
 confequence of one or more of thefe perils {a). In our 
 common policies they are fet forth in the following words. 
 
 * Touchinsr the adventures and perils which we the ^"■''* ,"''"'*!'y^ 
 
 * anurcrs are content to bear, and do take upon us in this 
 
 * voyage,- they are of th.e feas, men of war, lire, enemies, 
 
 * pirates, rovers, thieves, jettifons, letters of mart and coun- 
 
 * ter-mart, furprizals, takings at fea, arrefts, rcftraints, and 
 ' detainments of all kings, priiices, and people, of what 
 
 * nation, condition, or qu.tlity foever, 'barratry of the 
 
 * maftcr and mariners, and of all other perils, lofies, and 
 < misfortunes, that have or {hall come to the hurt, detri- 
 
 * ment or damage of tl^.e faid goods and merchandizes, 
 
 * and fhip, &c. or any part thereof.' 
 
 {a) As to the riiks which are within the common policy, 
 vid, ch. 7. § 2. 
 
 VOL n. B . "Every
 
 486 /*.•'. )••***** QA-^£A- \ [B. I. 
 
 Total lofs. ;*EveVy lofs is elthei; tt>tal* of 'partial. The term total lofs 
 
 .'is'ilhderrtood in tVo diBerent fenfes ; natural and legal. 
 ./Iti its naturaV.fe.ftpij* it rignifies the compkte and abfolute 
 ./!*deitrudiQn*:cf"Lhe thing infured. In its legal fenfe it 
 .'••..'me^i^'.^Obt merely the entire de{lru61:ion or deprivation 
 ..*••• of the* thing infured, but alfo fuch damage to it, though 
 it fpeclfically remain, as renders it of little or no value 
 to the owner. A lofs is alfo faid to be total, if, by the 
 happening of any of the perils or misfortunes infured 
 againft, the voyage be loft, or be not worth purfuing, and 
 the projected adventure fruftrated ; or if the value of 
 what is faved be lefs than the freit^ht. 
 Partial lofs. A pr.rtlal lofs is any (ofs or damage fliort of, or not 
 
 amounting to a tot?l lofs •, for if it be not the latter, it 
 l'^ ,\,]n. nmft be the former. — Thus, if a (liip, infured for a given 
 
 voyage, arrive at her port of deftination, and there re- 
 main 24 hours moored in fafety •, or, if fae be infured 
 for a ter'r7i, and fire furvive the term ; any injury Vv'hich fire 
 may have fuft:ained during the voyage, in the one cafe, 
 or during the term, in the other, however great, can 
 To goods. only amouiit to a partial lofs {a). So, in the cafe of an 
 
 infurance on goods •, the infurer contradls that they fliall 
 arrive fiife at the port of delivery ; or, if not, that he will 
 indemnify the infured. If they fpecifically remain, and 
 are aAually landed at the port of delivery, however da- 
 maged in the vovage, the injury will amount but to a 
 partial lofs (/»), unlefs they be rendered of no value, and 
 altogether ufelefs ; for then the lofs is total {c). 
 Avcrasrc lofs. Partial lofles are fometimes denominated average loffes, 
 
 becaufe they are often of the nature of thofe lofles which 
 are the fubje£l: of average contributions ; and they are 
 diftinguiflied into general and particular averages [d). 
 
 Having premifed thus much of the nature and ditTerent 
 kinds of loiTes, which will be found more fully confidercd 
 under the head of ylba:idoiimcut {e), v/e now proceed to 
 confider this branch of our fubjedl under the following 
 heads : 
 
 (a) Vid. CaxaJet v. St. Barle, Furnenu v. Bradley, Fit%ge- 
 
 raldv.Poob, inf. c. 13. §2. {b) Vid. Caching \. Frafcr, 
 
 flip. 227. [c) Vid. Burnet v. Kerifngton, fup. 234. and 
 
 Dyfon V. Roivcrofti fup. 238. {d) Vid. inf. § 7. • 
 
 (n luf. ch. i^. i 1. 
 
 I. Lofs
 
 Ch. Xn. § I.] B;f Perils of the Ssa. 4S7 
 
 I. Lc/s by the perils of the fca ; 
 
 coUifion ; ^ 
 
 ■fire; 
 capture ; I 
 
 arreft and detention of princes ; 
 barratry ; 
 — average contributiotis ; 
 ■fal-vage ; 
 
 the death offlaves ; 
 • the death of animal! ; 
 XL Of fraudulent loffcs. 
 
 Sea. I. 
 
 OfLofs by the Perils of the Sea. 
 
 IN a large fenfe, all the acciJents or misfortunes to ^vhat ii mcsnt 
 which thofe engaged in maritime adventures are expofed, ^^ f''-''* <" '*•« 
 may be faid to arife from xht perils ofthefea ; and, conform- 
 ably to this idea, a lofs by capture was formerly holden, 
 in our courts, to be a lofs by the perils of the fea, as 
 much as if it were cccafioned by fliipwreckor tempefl [a). 
 But, in more modern times, it has been found conve- 
 nient to diftinguifli the lofles to which fliips and goods at 
 fea are liable, by the more immediate caufes to which they 
 may be particularly afcribed. In this view, lolTes by the 
 perils of the fea are now rcflricled to fuch accidents or 
 misfortunes only as proceed from mere fca-damage^ that 
 is, fuch as arife, etc vi divina^ from {Irefs of weather, winds 
 and waves, from lightning and tempefts, rocks and 
 fands, &c. 
 
 By the law of France the infurer is not held liable ^or t-l • 
 
 . „. ^ . . w -v/i The ignor.mrf or 
 
 lollcs occafioned by ignorance, or the want of care or iM^itcniion of 
 attention, in the mailer or mariners, fuch lofTes not being ,'mr'J's"irnir"V 
 occafioned by the perils of the fea {b)y or, indeed, by any i'*^^'' °f '''^ '■•*• 
 other peril mentioned in the policy. — Mr. Juftice I.aiu- 
 rence^ in the cafe of Tntham v. Hodgfon (c), fays, — "■ 1 do 
 not know that it was ever decided that a lofs arifing from 
 
 (a) Vid. 2 Rot. Ah. 2^S. pi. lo. Coi!il>. 56. i .SZ>ow. 322, 3. 
 (l>) Pothkr, h,t. n. 64. if) 6T.R. 656. 
 
 a 2 the'
 
 4$ 3 OfLcfi. [B.I, 
 
 the mlflaks of the capiairi, was to be decmtd a lofs by 
 the perils of the fea." — In the cafe of Gregfon v. Gil- 
 bert {a)y where the lofs was occafioned by the captain's 
 miflaking Jamaica for St. Domingo, it was holden not to 
 be a lofs by the perils of the fea. 
 Foun^-^tring. A. lofs by the perils of the fea ir»ay happen, fijl, by 
 
 * the fliip's foundering at fea^ and then it muft, in moft 
 
 Str;:idin<'. cafes, be total in the ih-ifleft fenfe of the word ; Secohd- 
 
 /;', hy Jiranditig^ which is either accidental^ as where tne 
 fliip is driven on fliore by the winds and waves ; or volun- 
 tary, as where fb,e is intentionally run on fliore, ei'her to 
 prtferve her from a worfe fate, or for fomc fraudulent 
 purpofe. A flranding may be followed by fliipwreck, in 
 v/hlch cafe it becomes a total lofs ; or the fliip may be got 
 off in a condition to proiccute her voyage, and then the 
 damage fufu^ined, and the expences incurred, will be only 
 Srikirp acnJnft ^ partial lofs of the nature of a general average : Third- 
 a'fiinken rock, ly, by the fhip's ftrikuig againft a funken rock, or any 
 other thing under water, which may occafion the fpring- 
 ing of a leak or abfolute fnipwreck. 
 If ,(i(. dnrmge I^j "apon a ftrandlng or other accident happening to the 
 can be rcpane'*, (l^jp fj^g damage Can be repaired, and the fl:iip rendered 
 
 K IS a partial ^^ °. " '■ ^ 
 
 'j's ; if not, it is Capable of proceeding on her voyage; this, with re- 
 ference to the fliip, is only a partial lofs. But if a repair 
 cannot be iiad at the place v.-liere the fnip happens to be, 
 either for v/ant of materials or workmen, or w^^iere the 
 rnafler has no money or credit to procure any, Valiji 
 holds that this amounts to a total lofs, being of opinion 
 that fuch obftacles to a repair ought to be confidcred as a 
 peril of the fea (,^), 
 If s fhip be nn: ^t often happens that Oiips founc^ev at fea, and all on 
 leaid i^t within board perifli, and this out of the view of any perfon who 
 
 ■■i. competent , , . ,- '. ^ , ' . ^ , 
 
 tinic ihe ihnll could couvcy any miormation oi the misrortune to the 
 be preiumeH to Q-^i^g^-g^ jn {^ch. cafc. therefore, there can be no nofitive 
 
 h3ve founccvea ' _ ^ . 
 
 at ffa, proof of the caufe of the lofs. But where no intelligence 
 
 has been received of a fnip within a com.petent time after 
 fhe has failed, it mxay rcafonably be prefumed that {lie 
 foundered at fea ; becaufe a lofs proceeding from any 
 
 {a) Inf. ch. i6. j. z.' — ■ — [I) Vid, Fothlcr, h. t. n. 12o. 
 8 Other
 
 Ch. 511. § I.] By Pmis vf the Sea, 489 
 
 other caiife, would, probably, fooiier or Ir.tcr, have been 
 heard of. 
 
 As,' where a fliip was infured in 1 739, from Norfb Ceen v. Erriui, 
 
 * Carolina to London^ with a ivarranty againft captures "i\o''.^" * ^''* 
 
 * and fei-^ures.' — Four years after the fliip failed, an ac- 
 tion was brought on the policy, and in the dechiration 
 the lofs was alledged 10 have happened " by Jinking at feay' 
 and the evidence was, that fhe failed on her intended 
 voyage, and had never afterwards been heard of. — It 
 vas infilled, for the defendant, that, as captures and 
 feiziires were excepted, it lay upon the plaintiff to prove 
 that the lofs happened in the particular manner declared 
 on. — But Lord C. J. Lee faid, that it would be unrea- 
 fonable to expeiSl certain evidence of fuch a lofs, where 
 every perfon on board is prefumed to have perifhed : And 
 all that can be required is, the bed proof the nature of the 
 c?ife admits of. He therefore left it to the jury, who found 
 for the plaintiffs 
 
 So, vv-here a fliip v/as infured, « Againfl any lofs hap- K-ivhy v. n-^r, 
 
 Opening before the 30th of Novemberi']62, free from y,,^ 3^};!^,^.' 
 
 * average.'— The iliip failed Irom Ncivcajlle for Copeska- ^'"''^ ''s'' 
 g^fn (a]y which is ufually about ten days voyage; but s. P. 
 was taken by a Frenc/: privateer, and ranfomed j and 
 
 then proceeded on her voyage to Copenhagen in a bad con- 
 dition. She never was heard of afterwards, thou'rh all 
 due diligence was ufed to obtain intelligence of her, and 
 feveral fliips that failed after {he did, arrived fafe at Co- 
 penhagen,— Lord Mansfield loU the jury, that this evidence 
 was a fufficient ground to prefume tliat the fhip perifhed 
 at fea, unlefs the contrary appeared. The jury accord- 
 ir.gly found for the plaintiff. 
 
 In Franci and Spain pofitive regulations have been made, In fome coun- 
 to afcertain the time when the infured may call on the r""'", ,'•'"'* .'* * 
 underwriters for the lofs, on the prefumption that a mif- "'"'^ for this pr«. 
 fmg fhip had periflied at fea. In Spain, if a fhip be not "'"^^ '"' 
 heard of for a year and a half from her departure on a 
 
 ''.■7) It is a fingular omifilon in the note of this Cafe, that 
 f^ierc is no mention of the time of the fhip's failing, nor hoy/ 
 lung after (lie failed the plaintiff brought his adion. 
 
 B 3 .voy.vx
 
 490 OJLojs. [B.I. 
 
 voyage to or from the Indies^ flie is deemed loft. In 
 France., aTter a year from a Ihip's failing on conunon voy' 
 (iges^ and two years on dijiant voyages^ the infured may 
 abandon and demand payment without other proof of 
 lofs {a). 
 ]^!:"t"uy''"^ With us there Is no time fixed by law vdicn a miffing 
 
 js no fuch limit- ■' o 
 
 ation. fiiip fliall be prefumed to have foundered at fea. Every 
 
 cafe mud depend on its own circumftanccs ; and it 
 would be difiicult to frame any certain uniform regula- 
 tion for this purpofe, that might not be produdlive of 
 more inconvenience tha-n advantage. Perfons well ac- 
 quainted with maritime affairs may form a pretty correct 
 judgment when a fhip, in any cafe, may be reafonably 
 defpaircd of. When that time arrives, a liberal under- 
 writer will pay his lofs ; and if any doubt remain, he 
 may either demand fecurity from the infured to refund 
 the money, in cafe the fhip fliould afterwards arrive 
 fafe, or he may truft to his remedy by action, to recover 
 it back(i^). 
 If a fliip be Every lofs muft be imputed to its immediate, and not 
 
 my"s coart, and to any remote caufe. I'herefore, if a fliip be driven by 
 there captured; ^ ^ p£ wcathcr on an enemy's coail, but not materially 
 
 tills IS a |jfs by J ' J 
 
 captuif, not by damaged, and flie be there captured ; this is not a lofs 
 ^^^ pen o ic ^^ ^j^^ perils of the fea, but by capture-, and for this 
 the infured may recover upon a policy againft capture 
 only (r.) 
 
 So, if part of a flilp's crew be, by an irrefiftible force, 
 and at a critical moment, taken away from their em- 
 ployment, and, in confequence, the fliip drive on (hore, the 
 injury, thus occafioned, is a lofs by the perils of the fea. 
 /;o,^/.« V. A.V- Thus: — The fhip Z)(?//)>, was infured « At and from 
 W'-z, 2 New i Plpiouth to Sunderland.' In an afiion on this policy, to 
 
 recover for a lofs by the perils of the fea, it appeared that 
 
 ciw '^wiio weie ^^^ ^^'P' having arrived at Plymouth with a cargo of 
 fentr on (horc to coals, difcharped a part at Stonehoufc, and took a pilot on 
 
 caft otF a rope *^,^„, ^ t^ , ^■ r • 
 
 by which fhe board to Carry the veiicl to ibutton Pool, to ducliarge the 
 was mnde fa , i-gmainder of her cargo, and warped her down to Stonchoufe 
 
 being iniprelud in ' ir J 
 
 and carried Gut, m her Way thither ; that the pilot then fenttwoofthe 
 
 away, without 
 
 being allowed to — — — ■ — . 
 
 C^(^ oti' the I ope, 
 
 the Pnip wliu ou (a) Viil. 2 Mag. 53. 1 77. Ord. ol Louis XIV. h. t. art. 58. 
 
 fl,o:e :-This is ,^ yj^_ TomBtis V. Bemct, 1 SalL 22., (c) Per Lord 
 
 a lo's by the ^ ' 
 
 r«riu of tha fea. Kenjony at N. P. Grc.-n v. JShnJIh, Peake Zix. inf. cb. 16. § 5- 
 
 I crew
 
 Ch. XII. § I.] Bj P-rils of the Sea, 491 
 
 crew on fliore, in the fhip's boat, to make faft another 
 line to the fliore, and to cafl off their former ; that thefe 
 men were immediately imprefled by fomc ofBcers, upon 
 which the mailer defired they would fuffer the men to 
 cafl ofF the rope, and to fend off the boat to the fliip, 
 being the only one belonging to her, but they would not 
 do either, and carried away and kept the men for three 
 quarters of an hour, and then (ent them back to the {hip ; 
 that in confequence of the rope not being call ofF, the 
 bows of the lliip were checked, and fhe went afliore nearly 
 at high v/ater, where (he grounded ; that a part of her 
 cargo being taken out into lighters, fiie was got off, but, 
 in confequence of her being alhore, fiie was much llrained 
 and made a great de?J of water. — Upon this cafe it was 
 obje6led on the part of the defendant, that this was not 
 a lofs by the perils of the fea, but by the mifconducl of 
 the officers on Ihore in not permitting the rope to be call 
 off, and the underwriters were not anfwerable for tlie 
 mifcondu6l of the olHcers, againfl whom the plaintiff 
 nilglit bring an action. — But the court [a) held that, as 
 the waves of the fea were the immediate caufe of the 
 fliip's being driven on fhore, and as no blame was im- 
 putable to thofe who had the management of the fliip, it 
 r^uft be confidered as a lofs by the perils of the fea, and 
 therefore that the plaintiff was entitled to recover. 
 
 But, if the mafter of a Have fhip miflake his courfe, u n^ves he 
 v/hereby a fcarcity of water enfues, and a number of '•"^"«'" "''«'■- 
 
 n 1 ' 1 1 r 1 r> board, on ac- 
 
 Ilaves are thrown overboard to fave the reft ; it will not be count of a fcar- 
 
 fufficient for the infured, in declaring: for this lofs, to (late '^1!'' f ^^T^' 
 
 that, by contrary wnids and currents, and the perils of the captain's 
 
 the fea, the fliip was retarded, and the flaves perilhed for r„';l!';e*"-"fhi3'is 
 
 want of water [b) . "of ■' '"<"' by the 
 
 So, where a number of flaves periflicd for want of fuf- P"''' "'' '"' '"• 
 
 licient and proper food, and this failure was occafioned die td want of 
 
 by extraordinary delay in the voyage, arifing from bad and hy^l'^'^^^-r"^^- 
 
 ftormy v.'eathcr ; this was holden to be a lofs by nalurul fiinniy length of 
 
 death, and not by the perils of the fea (<.-). ^'^ voyage. 
 
 (a) Mr. Judice Heath, Mr. Juftice Rooke, and Mr. Juftice 
 Chamhre, againft the opinion of Sir Jatnes Man s/ttfuiChiL-i J u(\icc 
 
 • {1} R. Grc-f-.n V. Gilbert, inf. ch, iC. § 2 (f) R. 7'a- 
 
 tham v. Hodgf'jn, 6 T. R. 6 J 6. 
 
 So,
 
 402 
 
 Of Lofs. [B. h 
 
 -Rhoi V. Torr, So, where a (liip was infured from St. Bartholomew to 
 
 L?ch!^i4; f i^- ^^^^ '^^'•^ of 4-^rirfl, and during her ftay and trade thercy 
 
 — — ' — and back to 5/. Barthohmeiv. — In an action upon this po- 
 
 firoV-a^Hy ^ licy, foi.- a total lofs by the peri/s of the fca. the evidence 
 
 wonm, this IS ^ £j^g j^^^ -j^g^j^ deftroyed by the worms, which 
 
 nor ;t lois l)y the ' •' 
 
 ptriisuf tne (ea. 2.XZ wcll known to infeft the rivers in hot climates. — 
 But a merchant fwore, that he had known many inftances' 
 of lofs by this fpecies of injury, but that the underwriters 
 had uniformly refufsd to pay. — Lord Kenyan who tried 
 the caufe, decided, upon this evidence, that this was not 
 a lofs by the perils of the fea ; and the jury unanimouriy 
 concurred with his lordlliip, and found a verdi6l for the 
 defendant. 
 Tin iiic.irr \% It is fingular, that among the great variety of queftions 
 Tiot ai.fvy.i.ibK"; ^^yj^j^Ti }i^ye \i&z\\ aeitatcd in our courts upon almoft every 
 t.) tne fliiu,acr.a- fubjetl of the lav/ of infurancc, not one has yet, I believe, 
 I'ld.nly'^'LvEs occurred in which the line b-^twcen the damage to the 
 (he is engaged in. rigging and fumiture of the Ihip for v/hich the owwr, and 
 that for which the infurer is lir/ble, has been diftinclly 
 drawn. It is clear that the infurer is not aiifwerable for 
 any deterioration of the fnip, her rigging or furniture, 
 occafioned by the ordinary fevice in which fhe is engaged. 
 As to the accidents v/hich occanonally happen to the 
 rigging and furniture, foreign writers have attempted to lay 
 down the rule. They fay that if a cable break by the 
 friction of the rocks, and an anchor be loit, the infurers 
 are not anfwei'able. But if by feme extraordinary acci- 
 dent, as the riolence of the winds or waves, it become 
 neccffary to fiip a cable, or a cable be broke, and an an- 
 chor loft, or a fail or yard be carried aWay, this is a lofs by 
 the perils of the fea within the policy [a). 
 
 This, however, is not , quite fatisfaftory. The befl 
 guide, perhaps, upon this fubjeci, is the rule which go- 
 verns average contributions. According to that rule, no 
 injury, however great, occaiioncd by m.ere fea-damage iii 
 the ordinary employment of the fliip, can be the fubje6l 
 of a general average. — For this reafon, no fuch injury 
 
 (h) Valin, art. 29, p. f', Pothur, h. t. n. C6, Unierig 
 tcH^. 1, p. 393. 
 
 ought
 
 Ch. XII. § 2.] By Collifion, 493 
 
 Cirght, I conceive, to be deemed a lofs by die penis of 
 the fea, within the meaning of the policy (:?). 
 
 Sea. II. ^ ^ 
 
 Of Lofs by Collifon. 
 
 A SPECIES of damage to which fliips at fca are oQien 
 expofed, is that occafioned by collfion, which is the cafe 
 of one {hip driving againft, or running foul of, another. 
 This may be the elFc£l of mere accident, without blame 
 being imputable to the mafter of either fhip ; or it may 
 be occafioned by the negligence, unflcilfulnefs, or mif- 
 *condu6l of one or both of them. In general, by the m.a- 
 rine lavv-, an injury done by collifion to a iliip or her 
 cargo, where no blame is imputable to the mailer of' ei- 
 ther, the lofs is to be be equally borne by the owners of 
 both {b). But this rule is not adopted by the law of Etig- 
 hnd. For with us, -when damage of this fort has been 
 occafioned by mere misfortune, and without fault in any 
 one, the owners of the fiiip or cargo damaged mufl bear 
 their own lofs ; this being confidered as a peril of the 
 fea {c) \ and in this, our law agrees with tlie civil law [d). 
 The injury, thus occafioned, being a peril of the Tea, is 
 holden to be a lofs within the policy (^.1, unlefs it be im- 
 putable to the mifcondutt of the mafler or mariners of * 
 the fliip infured ; in which cafe the infurer is not liable, 
 according to the opinion of Emerigon [f). But jn fuch 
 cafe, the v/ilful mifconducl of the maiter or mariners 
 would, I conceive, amount to barratry. An action, how- 
 ever, would lie againft the niafter of either fliip, to whom 
 negligence or mifconducl, is imputable for the injury done 
 to the otlier (g) . 
 
 («) Vid. inf. § 7. ill which the fubie(5.t of general average 
 
 is fully confidered. (b) Laws of Olcron, art. 14, of iryhuy, 
 
 art. 26, ro, 67, 70, Ord. of Louis XIV. tit. Avarks, art. ir, 
 J^altn thereon, Bynk. Queft. Jiir. Priv. lib. 4, c. 18, 19, 
 
 20, 21. (c) Per Lord Kinyon, in BulLr v. Fifjcr, at G. H. 
 
 after Mich. 1800. {d) fF. 9, 2, 29. (e) Vid. Ord, de 
 
 /,oz/;j XIV , \.\X.. ylvaries, art. 11. and Ut. AJJiirance, art. 26. 
 
 (/) Vid. £merig. torn. i. p. 413. Vid. Votkiery h. t. 
 
 a. 50, 65, (g) Vid 5 Rob. Adm, Rep. 34;. 
 
 Sea.
 
 494 OfUfs, [B.L 
 
 Sea. III. 
 Of Lofs by Fire. 
 
 Whtthfr a !ofs There can be no doubt but that a lofs occafioned by 
 
 Ky fire, imput- f^j-g which IS merely accidental, and not imputable to any- 
 able lotbef^ult ■' . *. ,r-i-i 
 
 ofthemifteror fault of the mailer or mavmcrs, is a lofs within the po- 
 
 lofs within the ^^^Y ' ^^^^ ^"^ many places the infurer is held to be liable, 
 
 f^'-y* even where the fire happens by the fault of the mafter or 
 
 mariners [a). But in France the infurer is not held an- 
 
 fwerable in fuch cafe, unlefs, by the policy, he be liable 
 
 for barratry [b). 
 
 If a fhi be Emerigon mentions two cafes on this fubjecl — In the 
 
 burnt by order onc, a Dutch veflel was refufed admittance into the port of 
 
 ©f the ftate where ,^ . , , i i n • » r 
 
 (he happens to Majorca, and was burnt by tire Spamardsy from an appre- 
 bc, to prevent hcnfion that fnc had the plascue on board : There the in- 
 
 Hitection ; this , . ° 
 
 is a lofs within furer was holden to be liable, no blame being imputable 
 t c po icy. ^^ ^^^ mafter or mariners. — In the other, a fliip, with 
 
 the plague on board, of which feveral perfons had died, 
 was carried into the port of Marfeillcsy the mafter pre- 
 tending that the deaths were occafioned by univholefome 
 food. The infe£lion was communicated to the town and 
 neighbouring country. The fliip was burnt. — Here it 
 was determined that the infurer was not liable, upon the 
 ground that the lofs was occafioned by the mifcondudl of 
 the mafter [c). In this cafe barratry could not have been 
 one of the perils inferted in the policy. 
 
 If a fhip be attacked by an enemy,and the mafter find it 
 impoflible to defend her, Valin and Poth'ur hold, that 
 he may leave her and fet her on fire, to prevent her fall- 
 ing into the enemy's hands, provided he can preferve the 
 lives of the crew. In fuch cafe, the infurer is liable for 
 the lofs ; for the mafter was juftified in burning the fliip 
 under fuch circumftances {d). 
 
 (a) Straccha, gl. i8. Targa, ch. 65. Emerlg. torn, i, p. 434. 
 
 » (l) Pothier, h. t. n. 53. Emerig. ut,fup. [c] Emerig. 
 
 ut fup.— ^— (^) Pothier, h. t. n, ^2, 6$. Valin, art., 2(5. h. t. 
 
 Sedi. 
 
 *
 
 Ch.XII. §4-] By Capture. A9S 
 
 Sea. IV. 
 Of Lofs by Capture. 
 
 CAPTURE is when a fhip is fubdued and taken by wiiat (hail be 
 an enemy in open war, or by way of reprifais, or by a <^f«'"ieci a cap- 
 pirate, and with intent to deprive the owner of it. — 
 Capture may be with intent to pofTefs both fliip and 
 cargo, or only to feize the goods of the enemy, or con- 
 traband goods, which are on board. The former is a 
 capture of the (hip in the proper fenfe of the word ; tlie 
 latter is only an arreft and detention, without any defign to 
 deprive the owner of it.. — Capture is deemed lawful, when 
 made by a declared enemy, lawfully commiflioned, and 
 according to the laws of war ; and imlaivfid, when it is 
 acainfl the rules eftablifhed bv the law of nations. 
 
 But for every lofs occafioned by captui-e, whether law- Every captume, 
 ful or unlawful, the infurer is liable (a), the words of the ^*^"'"'' '"^^"^ 
 
 ^ ' 01 Uii awful, IS 
 
 policy being fufhciently comprehenfive to include every a iof» wuhin the 
 
 fpecies of capture to which fhips at fea can ever be 
 
 expofed. 
 
 And in every cafe of capture the infurer is anfv/erable, And the infurers 
 to the extent of the fum infured, for the lofs actually ^'^ amwe able, 
 
 ' to tB« ext«nt ot 
 
 fiiftained. This may be either total, as where the fhip or the fum infurer, 
 goods infured are not recovered again ; ox partial, as where tuai'V^H'ftalncd" 
 the fhip is recaptured or reftored before abandon- 
 ment ; in which cafe the infurer is bound to pay the 
 falvagc, and any other ncceflary expence which the in- 
 fured may have been put to for the recovery of his pro- 
 perty {h). 
 
 And the Infurer is liable for a lofs by capture, whe- And rhfyareii- 
 thcr the property in the thing infured be changed bv the ^'''*^ whether 
 
 i^ i- 1 _o b J the properly rne 
 
 capture or not. For a Tnip is loft by capture, though flie chang-d or not 
 be never condemned, or even carried into any port or ^ '^""^ captuic. 
 
 («) Le Guidon, ch. 7. n. I. Cafare^is, difc. I. n. 118, Roccust 
 B. 41. 54. 55, 64, 66. Falin, art. 26, h. t. Pothier, h. t. 
 B. 54. (b) As to lalvage, \nd. inf. § 8. 
 
 fleet
 
 49*5 Of Lofs. [B. I. 
 
 f!ect of the enemy. It can never, therefore, be a quefcion 
 between the infurer and the infured, whether the capture 
 be lawful or not, or whether the property be changed 
 by condemnation or by being carried into an enemy's 
 port. A capture by a pirate, or under a conimiihon, 
 when there is no war, does not change the property ; 
 '\r\d yet, as between the infurer and the infured, the effecl 
 is the fame, as in the cafe of a capture by an enemy 
 in open and declared hoflilitics : For whatever rule 
 ought to be obfcrvcd in quefiions of tliis fort, as be- 
 tween the owner and the recaptor, or his vendee, it can 
 in no way affecl the cafe, as between the infured and the 
 hifiirer. 
 Tiirrcfo'-e ti;e Therefore, as to tlie length of pofieffion by an enemy, 
 
 eii^ft ofc.prure ,^4^j^]-j jg jgemed fufficient to diveft the property out of 
 
 divc-fiing or re- t]ie Original ov/ner, or the ei]e£t of a re-capture in re- 
 velling tlie pio- n- ■ 1 r ' • 1 
 perty, can n ake veltmg It, — thcle avc now matters winch can never come 
 
 '■" <1"R'''.'"'^) ^*- diredlly in queftion between the Infured and the infurer. 
 
 cepc in •■iiluf- ^ ^ 
 
 ance!, witiiout They never could have come in queftion, in any cafe 
 
 of infurance upon real inter ejl \ becaufe, according to the 
 
 , above principles, they never could have varied the cafe. 
 
 They could only have had their origin in gaming infur- 
 
 ances, in which there could be no average or benefit of 
 
 falvage, and in which, therefore, it -^vas always neceflary 
 
 to fet up a total Icfs, for the purpofe of the wager. In 
 
 gaming infurances, when there was a re-capture, the 
 
 clairn, as for a total lofs, feems fornierly to have Involved 
 
 the queftion, udiether the property in the thiutf infured 
 
 had, by the capture, or any proceeding founded on it, 
 
 been divefted out of the original owner, or not, before the 
 
 re-capture. 
 
 Ar,a yer, where And yet the following cafes will fliew that, upon infur- 
 
 • h^uJfi or "o" ances, * hitereji or no interejl^' it has been repeatedly deter- 
 
 ' iKUr^ji; a termined that if the fliip be taken, it is a total lofs, how- 
 
 iiicgr.i, ar,d cvcr illegal the capture may be, and though tne fliip be re-^ 
 
 bcTcLkco! is a taken and reftored to the owner. 
 
 ^'-»' ^"'s. It is obfervable, however, that the policies in the lirft, 
 
 fecond, and iourth of thefe cafes, though they coatained 
 the words * inter cjl or no interejl^ were evidently infur- 
 /■iuces upon real intereft, — Lord Mansjieldj indeed, in his 
 
 ober?ations
 
 Ch. XII. S 4.J Sj Capture. ' A^7. 
 
 obfervations on the firft of them (.?), fays, ' that it was 
 the cafe of a icager policy ; and the fliip having been 
 once in faft taken, the event had happened againft which 
 the infurance was madcj though flie was afterwards re- 
 covered.' — But his lordfnip muft have been mifled by the 
 words, * itttercj} or tio intere/Iy to fuppofe this to have 
 been a wager policy ; for it is plain,from the judgment, 
 that the court conHdered the plaintiff as intereited in 
 the fliip. 
 
 In the firft of thefe cafes, a {hlp,infured '■inierefl or m Intc- ^^ ^"'^'' "- 
 ;-<y?,' was taken hyzSwedi/h piratc,and after "continuuig m his joi. 
 pofleffion for nine days, was re-taken by an EngliOj man of _, , 
 
 war, and carried into Harivich, but not till after an action fli'p iniurec:, 
 was brought on the policy : — The court held that though < i,',uuji,' is a 
 the fliip was re-taken, vet the plaintiff received a damage, '°',^' iuis,ihoui;;\ 
 
 , ^ / ^ ^ . ° * It be illegal, and 
 
 for his voyage was interrupted ; that the queftion was, liic Oiip rtcap- 
 not whether the plaintiff fhould have his fhip ag.i*n, '"'^' ' 
 and fhould not lofe his property, but what damage he had 
 fuftained. 
 Thene.xt was, where a privateer was infured 'for three ^'"'^.Z' ^^'"^^ 
 
 '■ .1 U'llf. 191. 
 * vi\o\\\.\iSyinterejl or no intercJiyiKtQ. from average, and without 
 
 'benefit of falvage.' — The llilp was taken by a /'Vf«f/6 fliip , t^rr^^\r\ 
 
 b i. J i luted tor ;i tnrce 
 
 of war, within the three montlis ; her guns and 1 17 of her nionths cn,ii>, 
 
 1 r 1 1 ■ 1 • T^ -rt r n * inter tfi or n« ir. • 
 
 men taken out or her, and carried into trance. But aiter Ihe < :sreti\'s. t;>Ker., 
 had remained in poffeiTion of the enemy for three whole ""'' *.'*^^*'' I*"^*^ 
 
 ^ J days IS ret;iKen ; 
 
 days, and before {he was carried into any port of the ene- yet is is a twtai 
 
 my, fhe was retaken by an En^lijh privateer, and carried 
 
 into Lijhon, before the expiration of the three months j 
 
 fo that by the capture ftie was prevented from finifliing 
 
 her cruife. It appeared that the infured was interelled 
 
 to more than the amount of the fum infured ; and that 
 
 the mafter of the privateer had obtained a decree, in the 
 
 court of admiralty of Gibraltary that the fhip fliould be 
 
 reftored to the owners, on payment of one third part for 
 
 falvage. — The court determined that, though ihe flilp 
 
 Vas never carried infra prafidia ho/Iimny this was not a 
 
 {a) Vid. Lord Mansfield*^ obfervations on Ds paiba v. Lud* 
 iOiv, 2 Bur. C<j^, 
 
 vol.. II. C partial,
 
 49^r 0/Lo/s [B.t 
 
 partial, but a total^ lofs to the infureil. — Lord C. J. Le^g 
 in delivering the opinion of the ccTirt,faid ; — " Although^ 
 by the civil hw, it may not, perhaps, be adjudged a total 
 lofs, yet the rules of that law are not to govern us, but 
 we niuft give our judgment according to the common 
 law of Englafidy upon this agreement between the parties, 
 •wliofe intention appears and mud guide us* By the civil 
 law, there nnuft be a total lofs, to entitle the infured to 
 recover; but the policy, in this cafe, extends to captures 
 and ether accidents. — The meaning of the parties here 
 is plain ; The infured paid his premium in confideration 
 of the infurer's undertaking that the fliip {hould cruife 
 fafely for three months ; the jury have found that flic 
 was difabled from profecuting her cruife for three months. 
 The infurance is to be underflood for the cruife of three 
 months, and in common fenfe it cannot be otherwife j 
 f J that, as foon as the voyage is broken or interrupted, the 
 cruife is at an end. Safety during the three months is what 
 is meant j but it appears that the fliip was taken and 
 detained within that time, and that the plaintiff was hin- 
 dered in his cruife ; and this, by our law, is a total lofs 
 to the plaintitT. I have avoided faying any thing on the 
 queflion, whether this was a prize or not, as having never 
 been carried infra praftdla hojliiiniy becaufe we are all of 
 epinion' that this is a total lofs." 
 Lfon V Dirkcf, Inthe third of f hefe cafes, the infurance'was, * on goods, hite- 
 ^jz'o. ' ' ' * re/} or ?io hitereft, at and from Jamaica to BriJIolJ — The fliip 
 in her paffap;c v/as taken by a Spanifh privateer, and carried 
 
 Goods arc in- r o ^ / ^ ./ j 
 
 fu-cd ' intenji into a port in Spahiy kept there eight days, and then cut out 
 f hVfhi'pirt^iien by an EngliJJj fhip. — The plaintiff infifled that this infu- 
 andcanifd rnro ranee, thoucfh on goods, was to be confidered as a wager 
 
 the enemy's =• ,_. ,,,. 
 
 port 5 and after on the bottom of the fhip, and therefore, he was en- 
 out^ Ud^eftoixd titled to recover as for a total lofs. — The defendant con- 
 to the owner, o.i <.^^^^^\ fhat, bv tlic flat. I Q G,l\. c- A. thc fhip and cargo 
 
 payment of fal- ^ i i • r i / 
 
 vage ; yet thc were to be rckorcd to the owners upon paymg talvage [a) j 
 cever'^as^for T ^^^ ^^^' ^^'^^ "'^^^ ^^^7 ^" average lofs, and the plaintiff 
 
 Tetul iofs. 
 
 ^) Vid. inf. § 8. how fa'/i^age is at prefent regulated.
 
 Ch. XII. § 4.] ^y Capture. \ 499 
 
 could only recover hi the cafe or a total lofs. — Loxi.Cj.Lee 
 held, that the plamtitF was entitled to recover : For this 
 was a wager upon a total lofs, and here had happened 
 one, by the (hip's being carried into port, and there de- 
 tained eight days ; that where the policy is, < intereji ; 
 • or no ifiterejlj the provifioris of tlie a<Sl, in cafes of 
 valued policies, could not take place ; that the zCt does 
 not declare that the property is not gone by fuch a cap- 
 ture, but only provides for reftoring the fliip to the 
 former owner \ but, that it might be otherwife, where the 
 fhip was re-captured before fhe was carried infra prafidia ,- 
 or in cafe of goods adualiy on board, and upon a valued 
 policy. 
 
 The laft of thefe cafes was where an infurance was made in-.iuhtad v! 
 on a fhip ' intereji or no interejlyfree of average^ Sec fromy^- -z.'-^' i\x^\i 
 maica ioHidl.' — In her voyage fhe was taken hjdiFrench pri- 1749- ^'-"^ 7". 
 vateer and carried into Hamburgh 5 and after being twelve a captured mip- 
 days in the hands of the enemy, was retaken by an EndifJj '"*"'"■"'' ' •'■';'> 
 
 ) J' J o J i orr.o inter'-Jty yi 
 
 Oiip, and brought to LondonyWhcre flie was adjudged to be retaken atici 12. 
 reftored to the owner,paying falvage. — ^The owner fold the i,v'fhc''ownei io 
 {hip and paid the falvajje- — in an action on the policy, this K""^" '"^ ijiv^tjc: 
 
 i 1^ " *■ _' — -This li a total 
 
 was holdcn to be a lofs of the voyage; and a verdi6l was iuf». 
 given accordingly. 
 
 But though no queftlon can now arlfe, between the jj,g ^^^^ „f ^ 
 
 infured and the infurer, as to the efFe£t of a capture, or re- capture and re- 
 
 . IT 1 • capture in Hivcir- 
 
 capturc, in diveltmg or revelling tne property ; yet, as it jng oi- .eveini:^ 
 may fometimes be of importance, in matters of infu- i'^'*P''^>" 
 rancc, to know how the law fbands on this fubjecSl, it 
 may not be improper, here, to enquife, (hortly, when a 
 capture ihall be deemed to transfer the property to an 
 cr.emy, and what Iliall be theefFe£l of a re-capturc in re- 
 vetting it In the original o^vner. 
 
 Voet on the pandeds, and feveral aiithors he refers to, Opinion* of dif- 
 
 • ^ • VI ^ n r , ri .• fe rent authors tn 
 
 maintain with great earneltnels, per jolam tccupationcm^ ^^^i, fubrjti^, 
 dominium prkda hofihus acquiri. {a). But the general opi- 
 nion feems to be^ that by the law of nations, the pro- 
 
 ia) Voct, lib. 49, tit. 15, vol. 2, p. 1 1^5. 
 
 C % petty
 
 5oc» - Of Lofs [B. L 
 
 perty oi" tilings cnptuj'cd in war is changed -.vhen all rea- 
 foirable hope of recovering thcni is gone j and, vith 
 I'erpecl to things moveable, all rcaionabk hope of recover- 
 ing them is pvefumed to be gene .when they are brought 
 vi^ithin the proteclion of the enemy's foftrefs [a). 
 
 But what cuilody of ffiips or effects taken at fca, 
 fliall be equivalent to a placing of things captured ori 
 land infra prcEfid'ai, is a fubjecl of much doubt and dif- 
 putc. Groiius fays, that ihips or goods taken at fea be- 
 come the property of the captors, when they are brought 
 into the enemy's harboars, or to the place where his 
 tvhoie fleet is fkationed ; for then all hopes ci recover- 
 ing them may be faid to vanilli. Bui:, he adds,- that by 
 the law of nations, as introduced among European ftates 
 in more modern times, things are confulered as captured, 
 when they have been 24 hours- in the power* of the 
 enemy (.^^. 
 
 Bynkc}jl?oerh^ and fcveral .writers whom he follcAr?, ab- 
 foiutely deny this pretended rale of the law of nations, 
 and iniiil on the rule of the Roman law, tha^t tlie prize 
 muil be carried infra pnfdia^ before it can become the 
 property of the captor •, and by prafidia he underftandi. 
 the camps f the ports ^ the toivnsy and the fectSy of the 
 enemy V). 
 
 Other v/riters have drawr> other lines, by arbitrary 
 dillinflions, pc^rtly fro-m policy, to prevent too eafy a dif- 
 
 («) CiSUrii-m in hdc hell'i quajl'tone plaruit genlilus, ui cepijji 
 rem is iiitelllgatur qui ita dctinei ut recuperandi fpem prohabikm alter 
 ami/erit, aut ut res pefecutionem cfugerit. Hoc autcm in ntus 
 mahilihus ita proccdit, ut cnpta dicaiUur ubi intra finesy id ejl pnn,- 
 fdia ljD-fiium,perducla Juerlnt. Grct. de jiir. hel. ac pac. lib. 3. 
 
 C. 6. § 3. Vid. March Rep IJO. [b) Cut confequcns efe 
 
 •videtur, ut in.mari navis el res L-.^itz capt£ cenfeartur turn dcmuni 
 cum in riavaJia aut porlus, ^ut ad eum locum uli tola clafjis fc tenet, 
 perdurlis funt. — Nam tunc defperari incipit rccuperalio. Scd rcccn~ 
 tiori jure gentium inter Europceos pupulos introduLlum lirUmus, 
 nt talia capta cenjealur uli per boras viginti quatuor in poteftate 
 hojUumfueriuF: , Grot, ubi fup. — Vid. Corfolato del Mare,c. 2 S3, 
 
 587. R:!ccus, net. 66. (i-} Vid, Bynh. ]nr. pub, lib. i, c.4. 
 
 pofitiou
 
 Ch.XII. §4.] ByCapUirc. 5^** 
 
 pofition to neutiMls, and partly from equity, to extend 
 l\\c jus pjJlHinimi, or the right cf reclaiming what has 
 been recovered iVoni the enemy, in favour of the origural 
 ouner. No wonder, therefore, tluir there is fo much 
 uncertaintv, and fuch a variety of notions among thcni 
 nbout fixing a pofitlve boundary by the mere force of reu- 
 fon, where the fubjecT: matter is arbitrary, and ajt the fub- 
 je£l of rcafon alone, {a). 
 
 In our courts of admiralty it has always been holJen |''>^^; confid-r-d 
 
 l)V till iiW 01 
 
 that, by the marine law of Enghud, independently of the r.'.gLnu. 
 itatute which commands reftitution, and fixes the rate 
 of falvage, the property 15 not changed in favour of a 
 vendee or recaptor, fo as to bar the original owner, till 
 there has been a regular fentence of condemnation : And 
 in the reign of King Chat lis 11. a fokmn judgment was 
 gi\en upon this pcint ; and rcftitution of a Tnip taken by 
 a privateer was decreed, after fne had been fourteen 
 weeks in the enemy's pon'-rifion, I'tcaujc jlje lad mt been 
 coudemnul [b). The fanie doclrlne has, in feveral inlhnices 
 prevailed in our courts of common lav/ (r). In one cale 
 it was holden tliat nine days policlfion by the captor, ar.d 
 in another, that four years polfeliion, and feveral voyages 
 performed, will not change the property, wathoin a ien- 
 tence of condemnation [d). 
 
 When there has b-en a capture, whether legal or not, Tt.e in^crfr u 
 
 ^ '' , )i;\l)le lor jU tair 
 
 and the fl^ip has been recaptured or rellored before aban- cna.-gcs oct-jfi- 
 
 , ... . , , , ,- ,, ,-,- 01K-I.1 byt;i;cv{;- 
 
 donment, the mfurer is bound to defray all neceiiary ex- j^,,_. 
 pences which the infured has been put to for the reco- 
 very of his property. He is therefore liable for a (tj^vA of 
 j-noney paid by the infured to the captors, as a coniprotaJfn 
 nwde botiujide, to prevent the fliip from being condemned 
 as prize, 
 
 [a) Vid. Lord Mausfie]d\ judgment in Gofs v. Withers, 
 
 2 Hur.Cv)^. -(/i) Cited by Lord Mci/n/aldRS a calc rcp-jrted 
 
 to him by iSir Geo. Lee. Vid. CoCr v. Withers, z Eur. 695. 
 
 (f) Jljfisvedo V. Cambridge lo Mod. 79. {d) v. Sands, 
 
 )o Mod. 79. See Lord Mansfield'^ oblervations on thcfe calos, 
 -a Bur. f)jt^. The cafes thcmfelves are fo dcftdlivcly reporied, 
 that I have not thoii'dit th'jm wort'iy of a moie particular 
 notice, 
 
 c 3 TI:u> ;
 
 5<5S ■Of.Lofs. [B.L 
 
 Iitrem\-.T^-j^;r, TKus; — The Dutch fnin Txd and hcv caroo \verc in- 
 
 at N. p. 1 Bl. ^ , : ■ . 
 
 313. lured * At and from 5/. Eujiaiia to yimjlerdam^ warranted 
 
 A fiiip, warranted * t^'^ich property, and not laden in any Fre-ich port in the 
 rViitr 1, is c-ip- i JlTefl Indies.'' —In Mav 17^8 the flup took in a carp;o of 
 
 turd:., an ei.e- . -^ . .. , , V^ , ,- • , 
 
 jny's fhip, and lugars, uidigo, and other preach commodities, partly cut 
 ihrown.rsa.ter of barks, partly from the fhore. On the 18th oi June 
 
 :i'i intcrlocii'oty . 
 
 dfci-cc ?g.>iMii (Ire failed on her voyage, and on the 27th was taken by 
 
 cim-vcrnife:— ^^ I^ngl'jh pnvateer, and earned into Fortjincutk, pro- 
 
 Tnis brn-g fione ceedincfs in the cor.rt of admiralty were be<iun in Atip-ujly 
 
 iarcr' is liable and after many delays and citations from court to court, 
 
 f»r the farn p:^l(^ jjn interlccutorv order was pronounced, in Fdnuu-y JTKQ, 
 
 wiul.r fucli com- ■' ^ '_ ^ . . 
 
 yiuiHife for the contumacy of the claimants hi not fpecifying 
 
 what part of the cargo v/as taken from the {hore, what 
 from barks •, and it was decreed that the goods flioukl 
 be prefumed French property. There was an appeal to 
 the lords commifhoners of prizes, but as many caufes 
 Hood before it, the market very high, and the cargo in 
 part perifliable, the agent of the owners agreed with the 
 captors to give them 800 1. and cods, to obtain there- 
 verfiil of the fentence. This was obtained by confenr, 
 and it was decreed that there was a fufficient caufe of 
 fcizure, in order to give cofts to the captors, and refci- 
 tutioH was decreed to the owners. After the (hip's ar- 
 rival at Amjlerdaniy the chamber of infurances there fet- 
 tled the average of the lofs and expences cccanoned by 
 the capture, detention, and litif^ation j aud for this the 
 aftion was brought. — Lord Mamfield faid ; — '' The firft 
 queflion is, Vshether this was a jufl capture [a). Both 
 fentenccs are out of the cafe, being done and undone by 
 confent. The capture was unjvft. The pretence was, 
 that part of this cargo was put on board off Zt. Eujlai'ia^ 
 out of barks fuppofed to come from the French iflands, 
 irtVie produce and not loaded immediately from the Hiore. It is now 
 coun''iv"'be'' " ^ fcttlcd poiut, that it is the fame thing as if they had 
 iroLght rr.,m heen landed on the Dutch fhore, and nut on board after-. 
 
 thence in ba: ks . _ _ . ^ _ 
 
 iin,iputo-.« i-wrtrd wards, in which cafe there is no colour for fcizure. The 
 
 a R'-utr^i (hi[); 
 
 rliis will he tnp ■ ' , 
 
 fame as if the 
 
 roo'is hati htcn , ^ nr, . , „. ^ r ^i 
 
 fr;n-erl from tie \"' 1 lus oecame a queiiion, on account or the warranty 
 fh re m a '-cu- ^}-,gj- ^.^g ji^jp ^j^j carTO wcrc Di:tch prcpcrty ; for if the capture 
 
 iral port. -Vu: , , , .\ . ^,, ri-r r , 
 
 ■J. nsut;<il \\.\j, "-^'^ been jiat, it would riave liiliahed the wan-antj;, 
 
 • ■ ; jule
 
 Ch. XII. § 4-J By Cipture. 5<^3 
 
 rule is, that if a neutral fliip trade to a Finich colony, trading to an 
 
 . •■^••1 r T^ ' 1 r\ • !•! i^j enfmy'j colony* 
 
 with all the privileges ot a. Freuch ilup, and is thus adopted „,,jh 'g,, ,,,g ^d- 
 and naturalized, it muft be looked upon as a French fhip, damages ot an 
 
 ' ^ ' enemy s Inip, i* 
 
 and is liable to be taken. Not fo, if fhe have only French liable to eaptuit^ 
 produce on board, without taking it in at a French port j 
 for it may be purchafcd of neutrals. — The lecond quef- 
 tlon is, whether the owners have afted bo?ia fJe and 
 uprightly, as men acling for them/elves, «nd upoii a rca- 
 fonable footing ; fo ss to make the expences of this ccm- 
 promife a lofs to be borne by the infurers. The judge 
 (Sf the admiralty's order to fpecify was illegal, contrary 
 to the marine law, and to the a6l of parliament which 
 is declaratory of the marine law : Becaufe, if they had 
 fpeclficd, it would be of no confequence, according to 
 the rule before -mentioned. Yet the captors were iii 
 pofTeflion of a fentence, though an unjufl one. And a 
 court of appeal cannot, or feldom does, give coils or da- 
 mages which have accrued fubfequent to the original 
 fentence ; for thofe damages arife from the fault of the 
 judge, not of the parties. Under all thefe circumftances, 
 therefore, the owners did wiltly to offer a compromife. 
 The cargo was worth 12, coo 1. ; the appeal was hazard* 
 ous ; the delay certain. The Dutch deputy in England 
 negociated the compromife. The chamber of commerce 
 at AmJJerdam ratified it, and thought it reafonable. Had 
 the whole fentence been reverfed, the colts muft have 
 fallen heavy on the owners. I therefore think the in- 
 furers liable to anlwer this average lofs, Vv'hich was fub- 
 mitted to, to avoid a total one." TJicjury found for the 
 plaintiff". 
 
 Formerly it wa-; a common practice to ranicm Britljh Of ranroin'n< 
 Hiips, when captured by an enemy, by dehvering to the '^^^^'^'"^ ^''^'^' 
 enemy what was called a ranfom bill, wliich fecured to the 
 captor the price agreed upon, and operated as a bill offaleof 
 the Ihip and cargo to the original owners, and as a protec- 
 tion to the fhip againft other cruifers of the enemy during 
 the remainder of her voyage. A hollage was delivered to 
 the captor to fccure to him the punctual payiricnt of the 
 (lipulated fum. 
 
 C 4 This
 
 S04, ' O/Lrf- [B.I, 
 
 Anions ar ron- This ranfom bill, independently of the hoilage, was 
 
 joimer^'^ main- conficlered as a contradlof the law of nations, and oblige- 
 
 t,iiiic-fi on ran- tory upon the owners as well as upon the captain and 
 
 hoftage who figned it (^7) j and, atlions have been often 
 
 brought upon them in our courts of conjmon lav*'. And 
 
 where the fliip or goods v.-ere infurcd, the amount of 
 
 the ranfom was ufually taken to be the nieafurc of the 
 
 demand of the infured upon the underwriters in rei'pecl 
 
 of the capture (b). 
 
 jlnth,n\.Yijh-r, But at length, in an a£l ion on a ranfom bill, which 
 
 "Z—ll'-l came before the court of King's Lench in Trltnty Ttriu 
 
 But now an Hlicn X/Sc, it was contended on the part of the defendant, 
 
 lue forany Mgi't that as qucRions on raniora bdis arife out of matter cf 
 
 ^.cqui.eri by ac • ^ ^ decided therefore by the jus hcVn, 
 
 iuui war. r ^ _ _ ; .' ' 
 
 fuch qucflions arc not triable in any court of common 
 law, but belong cxclufively to the courts of prize.— Tlie 
 judges of that court differing in opinion upon this quef- 
 lion, they gave judgment tor the plaint! tT pro jonua^ and 
 the caufe being removed by writ of eiror to the Exche- 
 quer Charr.ber^ it was there unanimoufly determined, that 
 an alien enemy cannot, by the municipal law of this 
 country, fue for the recovery of aright claimed to be ac- 
 quired by him in a£lu::l war, and the judgment of the 
 Court of King's Bench wasreverfed. 
 And !io\v, by But this praclice of ranfoming Hiips captured by the 
 
 itjt. 22 G. itr. pnemy being found to operate more to the difadvantagc 
 ciaiVcUi'ni'w fill' 'than for the benefit of this country, it was at length 
 to '^'lu-m any ^^v^q^^t^^ proper to prohibit it altogether. And therefore 
 taken i,y the ]jy {^^t, 22 G. IK. c. 2^. § I. it is cuaQed, * That \\ 
 ^"'"*^' * faall not be lawful for any of his MajtTty's fubjecls 
 
 < to ranfom, or to enter into any contra£l or agreement 
 « for ranfoming, any fhip or veiTel belonging to ai-jy of 
 « his Majelly's fubje6ts, or any merchandize or goods 
 « on board the fame, v/hich fhail be captured by the fub« 
 « iecls of any ftate at war with his M"jefty, or by any 
 
 < perfon com.mitting hoflilitics againO: his Majefly's fub- 
 * ietls.' Andbv§2. 'All contra8s and agreements which 
 
 ia^ St quid frugnVi hofn prcmiferini, ejl in eo fides fervaiida. 
 Ctc. V k\. Bu'Iajnaqnl, \^^rt. 4. ch. 4. Vattel, liv. 3, ch. 16, 
 
 § 233. Grot. lib. 3, ch. :^i, § I. {h) Vid. Ricord v. Bei- 
 
 tetiham, ^ Bur. i734j ^ BI. y'.^. Ccn:u v. Blachlurne, Dov^. 
 
 f fi: all
 
 Gh. XII. § 4 ] % Capture. ^05 
 
 ' ftiall be entered into, and all bills, notes, and other fe- 
 ' curities, which fliall be given by any perfon or perlons 
 
 * for ranfora of any fuch lliip or vcfTcl, or of any mer- 
 « chandize or goods on board the fame, Ih all be abfolutely 
 
 * void in lavy, and of no effecl: whatever/ And, by § 3, 
 a penalty of 5C0 1. is given to the informer, for every 
 offence againft the a£t. Tliis ftatute has put an en4 to 
 all quellions on the law of ranfoms, — And yet it is fin- 
 gular that though this acl has no claufe of limitation, as 
 to its duration, and Is therefore perpetual, the fame pro- 
 vifions are re-enafted in the fame words, by each of the 
 two lafl: prize a£ls, 33 G. III. c. 66i § 37j 38, 39, and the 
 43 G. III. c. 160, § 34, Q,^y 36 •, and in this lad acl, j 34, 
 the words, " Unlefs in the cafe of extreme neccfh<.y, to 
 ** be allowed by the court of admiralty," are added to the 
 firll claufe ; and yet both thefe ae*s are only to continue 
 during the refpe6livc wars for which they were mJide. 
 
 It often happens that a recaptured fhip is in a (late to jfa ^ipbe le., 
 profecutf. her original voyage ; and, In that cafe. It is the captured bcf it 
 
 iX r 1 11 r ^ i . (he ;s carried in- 
 
 interelt of the recaptors, as well as or the other parties to .^n enemy's 
 concerned, that fhe (hould be permitted to do fo. The P" !' ^' ™7' 
 lail prize acl (a) has therefore very properly provided, of the vecaptor:;, 
 
 * That if a Ihip be retaken before fhe has been carried ongin^a'ivovaKe. 
 
 * into an enemy's port, it fliali be lawful for her, if the 
 
 * recaptors confcnt thereto, to profccute her voyage ; and And t'e reca?- 
 
 < it (hall not be neceflary for the recaptors to proceed to obi^J t"°pro- 
 
 * adjudication till fix months after the recapture, or till "cd to artjurii- 
 
 1 r 1 n • r 1 ration, till afref 
 
 < tlie return ot the ihip to the port from whence fhe fix months, ov 
 
 * failed; and the mafter, cvners, or agents, with the '^= '^'^^n"- '^« 
 f confent of the recaptors may dlfpofc of their cargoes 
 
 ' before adjudication : And in cafe tlje veflel fliall not re- 
 ' turn to the port from whence (lie failed, or the recaptors 
 ' fliall have had no opportunity of proceeding regularly to 
 
 * adjudication within the fix months, on account of the 
 
 * abfence of the faid vefTel, the court of admiralty fliall, at 
 
 < the inftance of the recaptors, decree reftitution to the 
 
 * former owners, they paying falvage, upon fuch cvi- 
 
 < dence as to tlie court fliall, under all 'the circumfbncts 
 
 * of the cafe, appear reafonabh ; the expence of fucli pro- 
 » cecding not to exceed fourteen poutuh.' 
 
 {a) Stat. 43 G. Ill, c. i6o. § 41.
 
 5o6 OJLoj's . [B.I. 
 
 Sea. V. 
 
 Of Lofs by Detention of Princes. 
 
 BY the terms of the policy the infurer is anfwerah'ic 
 for all lofs cccafioned by " arrfs or detainments of all 
 *' kings f princes^ and people, of ivhat nation, condition, or 
 " quality foeverJ" Under thefe words, which are nearly 
 the fame in the policies of all the other maritime countries 
 of Europe, the infurers are liable for all lofTes occcafioncd 
 by arrefts or detention of the fhip or goods infured, by the 
 authority of any prince, or public body claiming toexer- 
 cife fovercign power, under what pretencs foever. 
 vvh:\t fh:i!i be As if the fovcreign of the country to which a fnip be- 
 dcemcdan aireft j^j^ g qj. ^j-^y Qthcr fovcreign, not at war with him, from 
 
 ;inci dctenUon or fc> ' / o •» 
 
 piincss. motives of neceflity, not of hoftility, arreft the fiilp either 
 
 fingly, or together with others in the fame port or harbour \ 
 
 this is a detention of princes [a). 
 
 Di^^reiKc be- There is an obvious difFtjrence between capture and 
 
 tvvcen c:ipture ^yj-gft of princes : The obiedl of the one is prize ; that of 
 
 and arreft of ^ ■' n ^ n ■ 
 
 princci-. the Other detention, with a defign to reltore the ihip or 
 
 goods detained, or to pay the value to the owner. And 
 though neither of thefe fliould be done, ftill it muft be 
 confidered as an arred of princes, becaufe the character of 
 any action depends on the original defign with which it 
 was done. 
 if afti be de- When a fliip is detained in a port after a declaration 
 isn.ed, upon a ^f ^f^2X, or the iilulng of letters of reprifrti, againfl the 
 
 ^-.(1 breaking i • i n i 1 i • r i i 
 
 out ; this is crjf- country or rtatc to which ihe belongs ; tius more rclcmbles 
 :vv. , not avrett. ^ capture than a detention, and gives the infurcd an im- 
 mediate right to abandon, as for a lofs by capture, even 
 though no condemnation be pronounced, and though the 
 {hip be afterwards reftored {h). 
 
 (a) \' Id. Le Guidon, c\\. 7, art. 6, and ch. 9, art 6, and 
 J5; Falin, ioin, 2, p. 4.16. ■"—;/•) Vid. A/Z-/V,-, h. t. n. 55. 
 
 M
 
 Ch.XII. § 5.] B\' Detention cf Princes. 507 
 
 An arreft of princes may be at fea as well as In a ^^ ^''^ ^^ •''' ''«* 
 
 * ''_ . »i well as inp^rt, 
 
 nort or harbour, provided it be done from public ne- 
 ceffitv, not with a view to plunder. Rgccus [a) mentions 
 the cafe of a Genoefe (hip laden with corn, which was Seizing a com 
 
 , ... , . , . „ ^ "lip ;'t fca, for 
 
 feizod at fea by the I enetian gallies, ana earned mto Lo'fUy the reiref of » 
 where there was a famine at the time, and tlicre fold and "(^^^^ I^'^mine, 
 paid for.- — The infurcd inftituted a fuit in the Rota of '^ only an arreft 
 
 . of jrir-ccs, not % 
 
 Genoa agaiuft the infurers.and infilled that this was zcr.pture c^pmre, 
 for which they might abandon. The infurers anfwered 
 that this was merely a detention cf princes y the obje£l of 
 which was not to capture the fliip, but to purchafe the 
 corn which the necefTity of the public required. Diverf.o 
 facia fuit, tion ad capletidatn navitn, fed ob ptddicam titilitatem 
 grani ccnfequendi caufd. Licuit frmnenta accipere,foluto pre- 
 iio. — ^This was held to be a good defence. 
 
 And yet, if a neutral fhip be arrefted at fea, and car- Rut if a n-urrai 
 ried into a 7)crt belonging to one of the belligerent pow- be taken at ffa^ 
 
 ^ 00 o i: under pretence 
 
 ers, under pretence that fhe belongs to the enemy, or that that fhe is an 
 
 _.,,* ., , 1^1- n. \. r f nennv, this is » 
 
 (he IS laden with enemy s goods; this mult be conh- ^30,^;^ 
 
 dered as a capture^ becaufe it is done as an acl of hofiiUty ; 
 
 and the fhip's being afterwards reftored, will not change 
 
 that which was originally a capture into a detention of 
 
 princes {b). — But in the cafe of Saloucci v. Johnfon^ al- g,,^ \( j, i,^ y„„ 
 
 ready particularly mentioned (c). the court of King's dci- pretence ri,at 
 
 -111 r r ^ r r ^ ^^ Cn-.mitted 
 
 ^ench determined, that the refufal of a neutral to fub- an offence a, 
 
 mit to a fcarch by a Spanijh (hip of war, and refilling f^'l'^J^" ''"' °^ 
 
 with force, was no forfeiture of the Ihip's neutrality ; and 
 
 that the flilp being arrefted and carried Into Spain for 
 
 this refiftauce, the infured was intitled to recover againfl 
 
 the underwriters as for ** an improper detention." And 
 
 though it has fince been determined, both in the court 
 
 of King's Bench and the court of admiralty, that re- ,, 
 
 fifting a fearph is a lawful canfe of capture and confif- 
 
 cation (</), yet the above cafe of Saloucci v. JoJmfony may 
 
 neverthelefs, I conceive, be confidered as an authority to 
 
 prove that if a neutral fhip be unlawfully arrefted and 
 
 [a] h. t. n. 6z, -{b) Emcrij. tpm. I. p. 537. 
 
 (f) Sup. 387. (d) Sup, jSp. 
 
 detained
 
 5oS Of Lofs [B. T. 
 
 detained by a belligerent crulfer for any pretended cffence 
 againft the law of nations, this would be a detention of 
 princes, 
 ;i;it if ;< fiiip he i3L;t If ji fj^jp mifcondua: herfclf ; r.s by naviraiin- 
 
 Jcizcd rur iiavi- . ^ _ / o .-» 
 
 ga;ingag.iin« the againft the laws of a foreign country, which flie is bound 
 
 .l?:ue?thi/.rn'r ^o obfcrve, or for not paying cuaoms, S.c. and thereby 
 
 2 fictcniiui) of lubjetl herfelf to feizure or confifcation ; this iliall not 
 
 be deemed a lofs by reftraint or deteniion of princes (/?) ; 
 
 though, perhaps, it may amount to barratry of the maf- 
 
 ter [h). 
 
 Eajl/ar^o, Thc moft frequent caufe of detentinn is aii embargo, 
 
 which is a proclamation or order of flatc, ufually ifiued 
 
 in timiC of war, or threatened holtilities, prohibiting tlie 
 
 departure of fliips or goods from forne or all of the ports 
 
 of fuch (late until further order. An embargo laid on 
 
 fkips and merchandize in the ports of this kingdom by 
 
 virtue of the king's proclamation, is ftrictly legal, when 
 
 the proclamation does not contravene the ancient lav/s, 
 
 or tend to eftablifh new ones j but only to enforce thi^ 
 
 execution of fuch laws as are already in being, in fuch 
 
 manner as the King fliall judge neccflarv (t-). 
 
 This, wietlier But it is needlefs, in this place, to enlarge upon the 
 
 kgal Ol !10t, IS a .,,r r ■ , r ,, 
 
 detention within fight of our own lovcrcign, or that ot any otner, to lay 
 th^ policy. embargoes. For whether sn embargo be legally or ille- 
 
 gally laid, the injury to the owner, by the drtcntion of 
 his fnip or goods, is the fame ; and the infurer io equallv 
 liable for the lofs cccafiojied by it. 
 in 'V^^poIk'^ ' ^y ^^ word fcople in the policy is not to be underftood 
 means n people, jny promifcuous or Liwlcfs rabble that may be guilty o{ 
 
 Ol nation, not a ' . ... ^ . rr^i r it '■ - •,, 
 
 pjob. attacking or detammg a ihip : I he ioliowmg caie will 
 
 Ihew that it means a peopie ; that is, a nation in its col- 
 lective and political capacity. 
 f^ejhitt V. Lu/h. j^ cargo of corn and coals was infured from }'cugJ?.ill to 
 r.'^','._ ' ' ^' SligOy in Ireland. — The luTt count of the declaration, in de- 
 ^ ~r. \ 7 fcribine the lofs, ftated that the fliip, bv ftrefs of weather, 
 
 A (hip js fore- . ^ ^ , . 
 
 ib!y iui"d by a was forccd iiito iT//j' Harhcur \ where (lie was, vvilli force 
 
 Uinmituous rab- 
 ble : — This is a 
 
 lots by pii-Mtcs, ~~ "^ ~ ~ ' ~~ ~" 
 
 but i:ol bv dc- 
 
 t-(jiiii n of a (^) Per I^ord CommilTioner Hutch':'-.!, 1 Vern. I~6. • 
 
 F"ple, ^3) Vid. S.'jIo::cci v. Jo/mfon, fup. 38;. -- [c] 3 Lilt. 162. 
 
 4 Mod. 177. 179, I Z?/. Com. ^70, 
 
 and
 
 Ch.XII. §5.J Bj detention of Princes. ^o^ 
 
 2:id violence, attacked, bc.nrdeJ, arvcfted, and detained, 
 h : t'copleto ihe p!aitit:Jf unknown ; bv rcaibn whereof the corn 
 wds wholly loft. In the fecond count it was Hated that 
 the (hip being in FJly Harhour^ was with force and vio- 
 lence aetacked and boarded, feizcd and taken, by cer- 
 tain pirates-i to the plaintiff unknown, whereby the corn 
 was wholly loll. — The policy was in the ufual form. — It 
 ai:ipeared chat the Ihip was forced by flrefs of weather 
 hito Elly Harbour ; ,in<[ there happening to be a Icarcity 
 of corn there at the time, the people came on board the 
 fliip in a tumultuous manner, and would not leave her 
 CjW they had forced the captain to fell all the corn at a 
 certain price, except lo tons which was fpoiled by the 
 ftranding and thrown overboard. The fliip afterwards 
 arrived at her defined port, with the coaia. The court 
 determined that this was a capture by pirates, and not 
 a lofs within tlie meaning of the words arrefts, he. of 
 king', princes, and people. — Lord Kenyon faid the Vv'onl 
 peoph meant the ruling power of the country, Mr. Juf- 
 tlce BuUtr faid ic meant d\c fupi erne power of the coufi' 
 try, whatever that might be. This, he faid, appeared 
 by another part of the policy ; for v/liere tl^.e wrongful 
 acls of individuals arc mentioned, they are defcribed by 
 the names of pirates^ rogues, thieves. Then, having 
 fpecified all the individuals againfl whofe a<5ls the infu- 
 rance is made, it fpecifies thofe occafionvd by the a(Sls of 
 kings, princes, and pecpU of what nation, condition, or 
 quality foever; which mull apply to "nations," in their 
 coUciSlive capacity (a). 
 
 By the French law, where a fliip has been arrcfted in Annrrcft Svth« 
 time of peace, as there is reafon to hope, in fuch cafe, auiiioritv of the 
 
 ^ litiiijh goverrv- 
 
 nu-nt is a )jff 
 
 — — — ■ wiihin the pa> 
 
 licy. « 
 
 " [a) Rorcxisy (h. t. n, 54-}, in the following paflage, fcems to 
 
 interpret the ufual wordb of tlie policy in a larger fciife than that 
 
 to which they ar^ here reftricted : — S'l merces capta a potejlate, 
 
 fen judice jttjiithim adm'irujlravte in illo loco, ai:t a populo aut ab 
 
 alia quacunque perfona, fer ■x'tm, alfque prelli folutiom, tencntur 
 
 pjfcuratores fohert tejYimatioTum domiuis mercium, fu£ld prius 
 
 per domrnos mercium ccfune ad lerfpriuni cjfccuratortim, pro recif 
 
 ferandii illit mercibus, vcl prcti-j ipforum a cnp'.er.tihus. 
 
 that
 
 J5^ OfLofs . [B. L 
 
 thatrnewill foon be fet at liberty again, fucli an arreft is not 
 reputed the fpecies of lofs that will at once juflify an im- 
 mediate abandonment j but the owners muflwait till the ex- 
 piration of a certain time, regulated by the ordinance of the 
 i'narine, which, for an arrefliu Europti'i^ iix months from the 
 time notice of fuch arreft is given to the underwriters {a), 
 - — This regulation is founded on a facrifice of the inte- 
 tefts of commerce to the pleafurc of the government. In 
 Efiglcr.d the rule is mere jufi:; for there, from the mo- 
 ment of a capture or arreftj the owners are confidered as 
 having loil; their power over the iliip and cargo, and 
 A .- r r _ ^f *i'e deprived of the free difpofal of them ; becaufe, in 
 
 A tufpenfion or r i » ' 
 
 the power of di I- the Opinion of the merchant, his right of difpofal being 
 !ofs. fufpended or rendered uncertain, is equivalent to a total 
 
 deprivation : It is therefore unreafcnable to oblige the in- 
 fured to wait the event of a capture, detention, or em- 
 bargo (b). 
 
 Therefore, if a Britlfb fhip be arrelled or fcized by the 
 
 authority of the Brit'iJ}} government, from flate neceflity ; 
 
 this ihall be a detention within the meaning of the policy, 
 
 for which the infurer is liable (c). 
 
 Grttn V. Y'-urg, ^g where a fhip was infurcd, * from her arrival at ■ 
 
 at N. v. zLo'.d . ' . ^ . ' 
 
 H-ay. 640. Salk. * ui 'Jamaica^ and durmg her voyage to London ;' — An 
 
 ^'^'_ embargo was laid on the fliip by the government, who 
 
 A Briiijit fhip afterwards feized her, an4 converted her into a fire (hip, 
 
 ^liaica%r\A cow- 3"^ offered to pay the owners, — The queflion was whe- 
 
 vertedintoa ^^^ ^his wouM cxcufe the infurers ? Lord C.l.Holt 
 
 iire-lhip by the 
 
 govern nient fcemcd to be of Opinion that it would not ; and that this 
 
 there : 1 ft; ras ^ within the words detention of princes, \^c. : But he 
 
 the inlurcr is J r ' ^^ 
 
 liable. gave no abfolutc opinion, becaufe the caufe was referred. 
 
 So, if a fliip be infured " at and from" a given port, 
 
 Ifalliip, infuied . i • . 1 - 1 
 
 at on,jfrom 3pott a dctcntiou by public authority, m that port, is a deten- 
 bearrc«ed/«that ^-.^^ within the words of the policy. For the words of 
 
 port, this IS an _ . . . 
 
 arreft within the the policy being large enough to cover this rifk, nothing 
 
 policy. 
 
 (^) Poth'ier-, h. t. n. 56. {b) Vid. Lord ^/^wtySr/c/'s judg- 
 ment in Grfsv, Withers, 1 Bur. 683. inf. ch. 13. § I. 
 
 (if) Vid. Emer'ig. torn. I. p. 54.1. Ord.dcla mar, h. t. 52. 
 and Valin, torn. s. p- I34' 
 
 but
 
 Ch. Xil. § 5.] By Detention of Princes, 5 1 1 
 
 but fomc exprefs law or ufage to the ccntravy can exempt 
 
 the infurcr {a). 
 
 Thus: — An infurance was made on three (hips, tliey^^/^- ^'■''* "■ ^V'-'» 
 
 6 T. R. 425, 
 
 hldty the Adele, and the ViBorf their ftorcs, &c. : Upon iup.44. 
 
 two of them, ' uli afid from UOnc\-\t\ and upon the a neutni ftiio 
 
 third, * At, and from, and after, her arrival < at L'Ori^ and itoies arc 
 
 inftircd a.' «'.-./ 
 
 /«/;' and upon all of them, * To all ports, feas, and /rowan enemy •> 
 
 * places whatfcever bcvond, and on this fide, the G;*^ po-t.nnd.., cm- 
 
 r J ' > r bnrgo is tliere 
 
 * of^Good Hope and Cape Horn, on the fouthern whale laid on by tuc 
 
 * and feal fiihery and trade, and until their arrival back ^^ an'cft o\~ 
 ' at L' Orient.' — An acllon beinsr"' brought on this no- princes.— And 
 licy, the lois was ftated m the declaration to have hap- continue, the 
 oened bv the lliios, their fbores, and provifions, being, by '"'^"''ed muy 
 
 » » -^ ' ' '^ ^ •» O' y abandon and 
 
 the authority of certain perfons exercifmg the powers of recover as fcr .^ 
 government in France, at Port Louis with refpeci to one, 
 ami at L' Orient wich refpe£l to the two others, arrejied 
 *i:d reftmined from further profecuting their voyages. — 
 
 Ihc 
 
 {a) Some doubt feems to have been entertained on this point, 
 Jl-iccus, n. 65. fays. " Re^^is et pr'mc'ipis fatlum connumeratur 
 Irtfcr Lcifas fortult'js ; IdeOyJl rex ct prlnceps retineant navsm 
 oneratam f/umenla afportam ad locum dejt'inatum, tcnentur ajje- 
 curalorss," This paiTdge, and that which precedes it, plainlf 
 {hew that the author meant a detention by the power under 
 v.biife authority the fliip was to fail. Le Giiidcn, c 7. §1. 
 treating cf abandonment, fays, that the infured may abandon, 
 " quand d ad'cun^ du tout on de partie, ou bien axarle qui 
 txcfdi ou tndoniTiKigc In moii'ie de la mafchandife, qnand il y a 
 prife d'amis ou d'ennemis, arret de fr'incr, ISj'c." The ord. of 
 1034. h. t. art. 52. coat?-':is the'e words. *' Si le vrdf- 
 ftau ettlt arrets en vert us de nos crdrcs dans vn des ports de 
 rutre royaunie, avant le voyage commence, us cjjures ne pourront, 
 a C'liife de Varrit^ pn'ire i abandon de hurs ejjets aux ajfureurs," 
 Vdlin, commei.ting upon this article, (vol. 2. p 134). dillin- 
 guillies the arreft of a foreign prince, from that made by order 
 of th-: King of France j he alfo diftinguifhes an arreft in the 
 port of loading, from an arreft in any other port of France, 
 where the (hip happens to put in ; and he fays that, only in the 
 latter cafe, an arreft by the King is a ground to abandon. But 
 P'jlhie'-^ [h.t. n, jyj, and after him, Emengon [kqI. i. -p. i^a^i.) 
 
 rc;e.5t
 
 ti^ 0/ Lofs [B.t 
 
 The Adelaide failed from V Orient on the voyage infured^ 
 but was obHged to put back by ftrefs of weather, into 
 Port Lom\ and on the 5th of February 1793, while fiie 
 lay there, the Jdele ^nd Ficlar were preparing for their 
 voyages, and before the neCelfary pafTports and clearances 
 could be obtained, an eitibargo was laid on all veiTels in 
 thofe ports. The Adelaide was brought back to V Orient ^ 
 the perifhable flores of all three fhips were fold, and the 
 fliips thcmfclves, with the reft of the (lores, remained 
 at U Orient under the embargo, which (till continued on 
 all fhips deftined for long voyages. The Adele and Viclor 
 had entered outward upon their refpe£live voyages, when 
 the embargo came j and that alone prevented them from 
 failing. Notice of abandonment was given to the under- 
 writers on the 27th o'i February 1793, ^md a total lofs 
 claimed, and the fame repeated in Augitjl following. The 
 plaintiff, Iwho then refided in England, v/as a fubje£l of 
 the United States of America^ and formerly relided feveral 
 
 rejefk thefe diflinftions, and maintain that the words, " avant le 
 loyage commence," mean before the r'ifh is commenced 5 and that 
 if the rh]< be commenced before the arrcft, the infured may 
 abandon, upon an arrefl even in the port of loading. Le Guidon f 
 however^ (ch* 9. art. 6). contains thefe words: " Si le prince 
 arrejle le navire, comme s^ii s'en vouloit fer-vir ; s'il avbil ajfairi 
 de portion ou de toute la marchand'ife ; s'il ne veut permcttre aux 
 Ttavires de fortir quen Jlotte, ou redoiiblement d' equipage, ou 
 s'il prevoyoit a plus grand danger les arrejlans pour quelqui 
 tetnpsy Vajfureur nefi ett aucuue indemnite quand telle chofc 
 avient dedans h me:ne port, pour ce que ce font des dangers de la 
 terre, procsdans du tiou^.oir du prir.ce-" — Upon this paflagc of 
 Le Guidon, Valln (ubifup.) obferves, that whatever may Le the 
 King's motive for flopping the departure of a fhip, the infurer 
 has no right to abandon, but muft wait till the king has with- 
 drawn his orders, and it may be confidered as one of the extra- 
 ordinary and unforefeen events by which a voyage may be pro- 
 longed beyond its ufiial time. Lord Mansfield, in Gofs v. 
 Withers, 2 Bur. 6(j6. fcems to have adopted the doftrine as laid 
 down by Roccus, and followed by Pufhier and Emerigon ; namely, 
 that the infured may abandon in the cafe of a mere arreft, or ati 
 cir.bargo by any prince. Vid. infra, ch. 13. 
 
 jeai^
 
 Ch. Xir. § 5.] By Dcteniion of Princes. 513 
 
 years in Loiiuok, but for fome years previous to the in- 
 furances in queftion, had dwelt at L'Orietii, and was jointly 
 concerned in the Southern whale fifhery with Mr. Beraid 
 a native of Fran:t:, refident at L' Orient y and whofe in- 
 tcreft was feparately infured. — On the trial of the caufe 
 a fpecial caie, ilating the above facls, v/as refervcd for tlie 
 opinion of the court, and it was contended on the part 
 of the underwriters, — ift, That an embargo at the load- 
 ing port to which the fliip belonged, and where the In- 
 fured owed a temporary allegiance to tlie governins^ power, .:., 
 was not a r:ilc within the meaning of the pclicy, becaufc 
 like fea-wortliinefs, it is a condition neccflarily implied in 
 contra(£ls of infurance, that the fliipmay legally fail from 
 the loading port. 2dly, That there was no lofs in regard 
 to the fubje6t-matter of the infurance, which is on the 
 ihip. Sec. sdly, That the plaintiff had no right to aban- 
 don as for a total lofs, under the particular circumflanccs 
 of this cafe. — The court, however, determined in fa- 
 vour of the plaintilFon ail thefe points.— As to the frjl^ 
 they held, that the terms of the policy were fuiEciently 
 large to extend to this cafe ; and that it was incumbent 
 on the defendant to have fliewn fome cafe in which it was 
 otherwife decided; but all the authorities, hoth Engl i/h 
 and foreign, were in favour of the plaintifp. That the 
 plaintiir was not an alien enemy, but a native of An:e- 
 ricay theu rtfiden' in England^ and therefore under no 
 difability to fue in this cafe, and the confeaueince of al- 
 lowing this objetlion, would be to render it illegal toin- 
 fure the property of a neutral, in an enemy's port. As 
 to the fuond point, the court held that, as the infurance 
 was not only on the Hiip, but on the ftores, provifions, and 
 filhing taikle, which were loft to the plaintiff; and as 
 the voyage was loft in confcquencc of the detention of 
 the fliips, tills was a lofs within the policy, and a very 
 different cafe from that of Robert/on v. Ewer [a), to which 
 it had been compared. — Upon the laft point, the court 
 was of opinion, that the plaiiuill had as much right to 
 abandon in this cafe, as in tlie cafe of a capture by an 
 
 ('/) I T. R, 127. inf. c. i6. § 5. 
 VOL. ir. D enemy;
 
 5H OfLofs fB-.Iv 
 
 tfnemy ; and for this the dodrine of Lord Mansfield \v:- 
 Gofs V. TVithers [a) was much relied upon. 
 Afeijyre.aftera jf g {}^5p be feized after a ceffation of arn-'S and preli- 
 
 ceflauon of hof- . . . ■ 
 
 tiiincs, is an mmary articles of peace are iigned, this ihall not be 
 
 arieit of princes, deemed a Capture, but only an arrcU of princes. 
 
 Si'eirerv. Franco, As, whcrc the plaintiff had caufed himfelf to be infured- 
 
 ar N. p. Decern- , ^ , 7, . 7- 7 • 7 r rr r^ t 1 
 
 bcr r736, ^" txvtrrince rrederick iXQxa y era Lruz to l^ondon, z«- 
 
 Bcaivc^ -^lac6.\u i teref} OK fio intere/l, ixtz of avc.raQ;e, and without bene- 
 p. 316. ij>). -^ '' . ° 
 
 * fit of falvage.' — The (liip was afterwards feized by or-- 
 
 it "fc£d''b-Mhc ^er of the Viceroy of Mexico, and tl...e Spaniards, having 
 S/un.'j>lt, and taken out the i95.v//j Sea Company's arnia, awd made feve- 
 
 convertc(i by , . . . , , , ' . , ^ , 
 
 them into a'ftiip ^al alterations in her, turnea her into a ihip or war, and- 
 of war; But it f^j-,}- }^gr .^g commodorc With 3 fouadrou of men of war 
 
 appca''iiig that 
 
 this was after a to the Havannahy there being a war at that time betweeri 
 an/ prei*im^nTrv ^'^g^^-^'d and Spain ; and Gibraltar was actually befieged 
 articles uf pcce {jv the Spaniards. — In an action on the policy (c), the ^c-- 
 
 figned, and the / ^ 1 t. r • r 1 ,• • • , r 
 
 iliip living been icndauts provcd the ugning oi the preliminary articles or 
 ^' "u \A "?. peace before the feizure of the lliip, and therefore infilled 
 
 was held not to ^ r ' 
 
 beacaptaie, hut that this fcIzurc did not alter the property, and confe- 
 
 wnly a cL'cntion , , , - , , t 1 1 t-. • r 1 
 
 piinces. quently the deiendants were not liable : ror u tne pro- 
 
 perty were not altered, this infurance,. made by the plaiii'- 
 tifF without interefb, could not bintl, as noLK-ing came 
 within the policy but a total lofs : And though there be 
 thofe general words, '■^ njlraint, or detahiment cf princes ^^ 
 — Lord Hard".i)iche C J. declared that a war might begia 
 \7ithout an a£lual declaration or proclamation, as in thi* 
 cafe, by laying fiege to Gibraltar-, that as- a war might 
 begin by hoftiiities only, fo it might end by a ceflatlon of 
 arms ; and thefe preliminary articles being figned before 
 the feizure of the flrip, and there being a celTatlon of 
 arms, he thought the taking of ihe- fhip afterwards not to 
 be a taking by enemies, unlefs the jury took the capture 
 t© begin from the lime the South Sea arms were taken out. 
 
 (a) 2 Bar. 5S3. inf. c. 13. § ?. ^.L^ Tliis cafe, which iff 
 
 foumi in the 4th edition oi Beaive^ but not in the jt]*, is fo im- 
 perfetlly reported that it cannot be much relied upon as an authc^ 
 ritv : Yet, being cited by Lord Mansfield in the Qzito^ Hamilton 
 V. Mendes, 2 Bur. izii, I thought it ought not to be pafled 
 unnoticed here .(c) The plain liif, it may be prefumed, de- 
 clared only Upsn a lufs ty capfure. 
 
 whic^
 
 Ch. XII. § 6."] By Barratry. 5,3 
 
 which was before the prcHiriinaries; tliat fuppofing the flilp 
 ■iiortulien by encmiesjwhether the detention lor near a vear 
 wss. In this fort of policy, viz', intcrejl or no intereji^ ade. 
 tention witiiin the policy ; or whether, in fuch policies, 
 the ir.furers are ever liable, but in cafe of a tot.illofs; 
 and if fo, the fliip being afterwards reilored, he directed 
 tlie jury to find for the defendants, which they accord- 
 in-lv did. 
 
 Sea. VI. 
 
 O/Lofs by Barratry. 
 
 BARRATRY, which Is derived from the Italian verb Barratry defined. 
 iarratrare to cheat («), maybe defined to be any a6l 
 committed by the mailer or mariners, for an unlawful 
 or fraudulent purpofe, contrary to their duty to their 
 ov/ners, and whereby the owners fuitain an injury: As, 
 by running aw;;y with the fliip, wilfully carrying her out 
 of the courfe of the voyage preferibed . by the owners, 
 fmking or deferting her, embezzling the cargo, fmiig- 
 gling, or any other cifence Vv'hcreby the fiiip or cargo 
 may be fubjected to arreft, detention, lofs, or forfeiture. 
 Barratry, in fnort, comprehends every fraud that may 
 be committed by the mailer or mariners, to the detri- 
 ment of tiie owners ; and therefore, where the breach 
 aiTigncd in the declaration on a policy was, the lofs of 
 the fiiip, " by the fraud and negligence of the mailer," it 
 was determined that this was a fuiucient averment cf a 
 lofs by barratry {b). 
 
 At AmJ]crdaniy Hamburgh^ JlIiddL-^argB, and fome other whether infiir- 
 maritime towns, infurcro are, /y pojitive la%u, made refpon- "''"^ ;ig linft h.\T- 
 
 /•■Li r 1 1 r 1 n 1 • rniry oughi ia 
 
 libJe it.r the barratry ot the mailer and marmcrs [c], nil c.ife.t to le 
 At Rotterdam the owners of fhips are prohibited from in- ?""''«'"*'• 
 
 Ur.rra- 
 
 (a) I.s meaning, according to Dufrifne^ (Glof. verb. 
 ir'ui) is, '*flaus et dolus, qti'i Jit in contraRihus et '■cenditlonlbus.'* 
 
 {I) R. Kii'ijrht V. Cambridge, I Str. 581. 2 Lord Ry. I349» 
 
 iiif. cii. 16, j 2 ic) 2 Mii^. 73, 130, 21^, 
 
 » 2 furing
 
 51^ ' OfUfs [B.L 
 
 furing againft tlie barratry of the mafier whom they them- 
 felves appoint. But they are permitted to infurc againfl; 
 his neglect, againft the barratry of the failors, and of 
 fuch mafier as may fuccecd to the command in foreign 
 parts without their knowledge, upon the deceafe or ab- 
 fence of the maiter originally appointed {a). 
 
 'Lord Mansfield fecms to have thought it extraordinary 
 that barratry fnould ever have crept into infuranccs, and 
 ftill more that il fhould have continued in them fo long j 
 ** thus," fays his lordfhip, *< making the underwriter be- 
 come infurer of the condu£l of the captain whom he 
 does not appoint, and cannot difmifs, to the owners who 
 can do either" {b). 
 
 Roccus U) holds that the infurer cannot be made liable 
 for barratry, if the infurcd be the owner of the fhip ; 
 but if he only charter the fiiip, he may infure againft 
 barratry 5 becaufe, in that cafe, the owner of the fnip 
 appoints the mafier. But where the owner of the goods 
 appoints the m.after, it is holden that he cannot be infured 
 againft the barratry of fuch mafter (d) . 
 
 In France the infurer was formerly anfwerable, ipfojure^ 
 for the barratry of the mafter («•). But, by the ordinance 
 of the marine {f)y this liability is confined to cafes, 
 where the policy exprefsly includes barratry ; and Erne- 
 rigon {g) even infifts that the owner of the fhip cannot be 
 infured againft barratry of the mafter, becaufe he is 
 himfelf anfwerable, according to the rule of the Roman 
 law (/'), for the condu£l: of the mafter whom he employs i 
 and if the owner be himfelf anfwerable to third perfons 
 
 {a) Vid. Roccus^ n. 27, Emeng. torn. 1, p. 370 ■ 
 
 {h) I T. R. 330. (f) h. t. n. 44. id) ^lando navar- 
 
 chus pofitiis ffl a domino merclum, tunc ajfecuraiusjihi debet tmptstare 
 quod talemprrcprjitvm eUgcril et ajfc curat or non tenet ur. Cafareg'uy 
 
 dif 10, n. 14; dif. l. n. 75. {e) Vid. Le Guidon^ ch. 5, 
 
 art. 6, ch. 9, art. S, 12. (/) h.t. art. 28. - — (^j Vol 1, 
 
 p_ ^(5q. {h) Omnia faP.a m,ig'tj"ri debet prejiare qui eum prapo- 
 
 fuit.ff. 1. 1, § 5. '^^ exercit. aft. Ex deTiBo eujufiis eorum qui 
 navis navi'^anda cau/d in navefunt datur adlo in exercitorem. id. 
 
 for
 
 Ch. XH. § 6.] 5/ Barratry. 517 
 
 for the barjr.try of the mafter, he cannot, as infured, throw 
 this burthen on the infurer who would have an imme- 
 diate remedy againft him, as otuner, to recover back 
 the fame Jofs ; a circuity of action which would be 
 abfurd. 
 
 Upon the fame principle Emerigon alfo holds that If the 
 captain be commilFioncd to difpofe of an advt^nture on 
 board, the infurer of fuch adventure fliall not be anfwcr- 
 able for the lofs of it, occafioned by the fault of the cap- 
 tain ; for this would be, to make the infurer anfwerable 
 to the infured for the faults of his own agent [a). 
 
 But the oojeftions to the policy of permitting infuranccs 
 againft barratry, in the cafe of the owner of t.bej/jipjhowcver 
 well founded, do not apply to the cafe of an infurance of 
 goods in a genera/ Jhif), which carries the goods of every 
 man who chufes to put them on board, or of a chartered 
 fiiipi hired to carry the goods of the affreighter ; for, in 
 either cafe, the owner of the goods does not appoint the 
 mailer, nor has he any control over him or the Ihip. It 
 is probable that cafes like this firfl gave birth to the 
 pradlice of infuring againft barratry j and that this, in 
 jjrocefs of time, was indifcriminately introduced into all 
 policies. 
 
 Eut even in the cafe of a particular Jrjip freighted en- 
 tirely by a fingle perfon, it may in general be prefumed 
 that if the infurer do not know the mafter, or at leaft his 
 charatTter, it is his own fault, as every policy fpecifies the 
 mafter; but then it is generally provided that any other 
 perfon, at the election of the infured, may go as mafter ; 
 and by permitting this clauf:! to ftand in the policy, the 
 infurer waves all perfonal knowledge of the mafter, and 
 therefore no objefllon can fairly be made of the want of 
 fach knowledge {h). 
 
 And though barratry cannot properly be called a peril 
 of the fea, becaufe it does not arife ex marine tempejiatir / 
 dt/cHminey yet it is a rifk, and a very great one, incident, 
 to fca voyages ; becaufe merchants are obliged to confide 
 
 (a) Emerig. torn. I, p. 370. {h) Vid. Roccus, h. t. n. Zf. 
 
 Ctivp. 15 J. Vid. fap. 312. 
 
 D 3 their
 
 51 8 Of Lofs [B.I. 
 
 their (hips and merchandize to the cave of marhiers, who 
 may fometimes fo far forget their duty, as to betray the 
 important trufi: repofed in them. Unlefs, therefore, the 
 merchant could be proteflcd by infuring againft this rlllc, 
 few men of fmall capitals would expofe themfelves to it. 
 For this reafon the law, with us, permits even the owner 
 of the fliip to be infured againft the mifconducl of the 
 captain and crew, though they are his own agents, and 
 the perfons of his own choice. 
 The cnpta'Ti jf j.T^^ captain be infured, no aereement on the part 
 
 lii;iy be infured ^ _ '^ * 
 
 agaiiirt tnc h-.n- of thc iufurcrs Can make them liable for barratry com- 
 lorsJ " ^''^ """ niitted by himfelf {a) ; but they may be liable, in fuch 
 cafe, for the barratry of the failors, in which he has no 
 part /'). 
 
 Still, however, it muPt be owned that cafes fometimes 
 occur which tempt one to think that it might, perhaps, 
 be the wifcfl policy to impofe fome reflraint upon unqua- 
 lified infurances by civners of JlAps, againft this fpecies of 
 rifle. It would at leaft have the efFe6l of making them 
 more circumfpecl in the choice of the perfons to whom 
 they confide fo great a charge. 
 What fhall be VrJin (c), Poihier (J), and Emer'tgon (f), adopting tlie 
 anaiiy. j^£^^.-j_^g ^£ £^ Guidon (/), hold that barratry compre- 
 hends every fault, either of the mafler or mariners, by 
 which a lofs is occafioned, whether arifmg from fraud, 
 negligence, unlkilfulnefs, or mere imprudence ; and in 
 this fenfe it feems to be underilood in the French ordi- 
 nance of the marine [g) . 
 
 But with us, no fault of the mafler or mariners 
 
 amounts to barratry, unlefs it proceed from a fraudulent 
 
 purpofe in the mafler or mariners at the time (/'). 
 
 A deviation rot Therefore if the mafler, from ignorance^ wiJhUfulnefsy 
 
 procce.iing fiom ^^ ^^^^ motive which is noX. fraudulent ^ depart from 
 
 it'iiLiQ "^ not J 
 
 barratry. 
 
 {(i) Le Guidon, ch. 15, art. 4 ; VaVin^ h. t. art 27, p. 75 ; 
 
 i'oi'/j/Vr, h.t. n. 65. -{b) Emtr'ig. torn. i,p. 371. {c) On 
 
 art. 28, h. t. torn, i , p. 79. (<' h. t. n. 6^. {e) toiii. 2, 
 
 p. 366.— (y jCh. 5, art. 6, ch. 9, art. 1,8, (^) h. t.art. 28, 
 
 — (/j) Non omnis navarci culpa ejl bar at aria, Jed fJum tunc ea 
 
 dicitur, quando commlttU-jr cum praexjjlenti ejus machinatlone et 
 dalo t>r£Qrdinalo ad cufum, Cafaregis, dif. I , n. 7 7, 
 
 the
 
 Ch.Zil. § 6.] % B^wratry. 519 
 
 the proper courfe of the voyage •, this v/ill be a deviation 
 which may avoid the poUcy, but it will not amount to 
 -'barratry. 
 
 Thus:— Goods were infured from Lov.don to Jamaica, ^I'^Jj^^^'' 
 
 and it appeared that the captain's inilruaions were to 7 i"R-50 5- 
 
 proceed immediately to Jamaica ; But after the fliip had j„ , voyage from 
 
 cleared the ChatweL ilie was carried by currents and .^ ««./='.• to 7.1- 
 
 Dther caufes, ont of her reckoning,, till Ihe was touna tain lofcs his 
 
 to be between the Graud Canary and Teneriffe. From this ^'J.^^t'^d.fco^ 
 
 fituation her direft courfe to Jamaica was to the fouth- vcrshi^ fitua- 
 
 . - c J tion, inftL.Td or 
 
 weft, inilead of which, the -captam bore up trom i^anla nemng ditcftiy 
 Cruz, to the nortli-weft about 30 miles, where flie came '^^;^'!^'^^^ 
 to an anchor. There, an embargo was laid upon her.; inandoutof 
 
 . , ,. 1 • L 1^ that courfe: — 
 
 foon after which, news arrived ot war having been de- xhis isadevia- 
 clarcd between Spain and Great Britain, and the fliip and ;;;,';; Jj; l;,;'"^ 5 
 caro-o were feized and condemned as prize. — In an a6lion fraudulent in- 
 «n the policy, the declaration contained two counts ; one ^7,!'^'")." "" 
 for a lofs by capture, the other for a lofs by barratry. And 
 it was contended on the part of the plaintiff, that he was 
 necelTarily intitled to recover on ene count or the other. 
 On the £rfi:,if there was no de-viaiion .; or, admitting that 
 the ^fhip's going to Santa Crux inftead of proceeding to 
 Jamaica, after the captain knew with certainty where he 
 was, was a deviation, flill it was a wilful deviation by 
 the captain, againft his inftruaions, merely to procure a 
 temporary refrefliment, and no benefit to the owners, 
 and therefore an aa of barratry.— Lord Kenyon, who tried 
 the caufe, faid, that it could not be barratry, without a 
 fraudulent purpofe in the captain at the time ; and with 
 that direftion he left it to the juryj who found, " that 
 " the captain's going to Santa Cruz was a deviation, and 
 « was owing either to ignorance or fomething elfe, hut 
 " that it ivauict fraudulent ;" an4 they accordingly found 
 for the defcndants.—Upon a rnqtion for a new trial, the 
 court were clearly of opinion that there mud be fraud to 
 eonflitute barratry •, and as the jury had cxprefsly nega- 
 tived fraud, there could be no barratry.— Mr. Juftice 
 Laivnnce faid he knev/ of no cafe in which it is faid that 
 the aa of the captain is barratry, merely becaufe it is 
 againft the intercft of the owners j it muft be done with 
 a criminal intent : Vhat, in this cafe, the jury having nega- 
 
 D 4 tived
 
 520 ^JLofs [B. T. 
 
 tlved fraud, had negatived criaiinallty in the captain ; and 
 therefore this was not a barratrous dcvicition. 
 Whethci barta- In France-, if by the poHcy the infured be protefled 
 
 try ni.(y be com- • n i i r i ' 
 
 niitted hyih^ea. aganilt the barratry of the majier^ the undtrwriiers are 
 incnwiih..utt.!e anfwerable for tlie mifconduct of the w^r/wrj- alfo : be 
 
 participstiin, or ' 
 
 »g.iiiiil tbe will, cauie the v/oid mafler [patron) comprehends all the per- 
 e cap am. ^^^^ ^^ board who are in the ihip's pay [n). Our po- 
 licies are more explicit, and diftinclly fpccify barratry of 
 the mafler and mariners. I fhould conceive, therefore, 
 that with us, as in France^ the mariners may commit bar- 
 ratry, without the concurrence of the mafter, or againfi; 
 his will. In the following cafe, however. Lord C. J. 
 Lee, at ?rji prius held, that a deviation to which the mafter 
 was compelled by a daring a6l of violence and difobe- 
 dience on the part of the feamen, did not amount to bar- 
 I ratry, bccjiufe the fliip was not a£lually run aivay 'with in 
 order to defraud the o-u-Jien. 
 Ellon V. Brig. That was the cafe of a letter of marque, infured for a 
 5110.21^ '" ^ voyage * from Brijtol io Newfoundland." — She failed with 
 exprefs orders that, if fhe fhould take any pr'ze, fhe 
 
 Aletter of marque _,, ,ir 11 \ ^ r 
 
 has orders, in uioiild neverthelcis proceed on her voyage, and that lomc 
 
 hands fhould be put on board the prize, and fent with it 
 
 cafe Ihc takes 
 a piiie, to fend 
 
 it home, and to Br'ij7ol. — A prizc was taken in the courfe of the voy- 
 
 proceed on I. er , , . i 1 r r .1 
 
 voyage ; but il-is sige, and the captjm ordered iome or the crew to carry 
 mailer was j.j^g prize to BriPiol, while he proceeded on his voyage : 
 
 compelled by tne ^ '' , \ . . 
 
 faiif.rs m reriirn But the crcw cppofed him, and infifted on his going back, 
 p.'i^c -^llThis^is though he acquainted them with his orders ; and he was 
 liot b.'.nairy. forced to fubmit^ and on his return his own fhip was 
 taken. — The underwriters infifted that this was a devia- 
 tion which difcharged them. But the court and jury held, 
 that this was occafioned by the force upon the mafter, 
 which he could not refift ; and that it therefore fell within 
 the excufe of necefiity, which had always been allowed. 
 The plaintiff's counfel v/ouid have made barratry of it j 
 
 (a) Les ojfureurs ne refpondrrt pa: des rnefails des mannh-rs a 
 w.tus que pur la police Us ne foient charges de labaratterie du pair on. 
 L,e mot patron comprehend ici ious ceux quiJo:it aux ga^es du navire. 
 Emerig. i. i.p. 3'6l, 2. Vid. F^alin, torn. 2, p. ^. 
 
 bu*-
 
 Ch. XII. § 5.] By Barratry. 51 1 
 
 but lord chief juflice Lee thought that it clu! not nmount 
 to barratry, as ih^ flilp was not run away with in order to 
 defraud the (nvmrs : Neither was it a cafe of wilful devia- 
 tion, but of deviation occafioned by the force upon the 
 TOafter which he could not refift, and therefore cxcufcd by 
 the necefilty. The infurers were therefore held to be an- 
 fwerable, and the plaintitr had a verdicl: as for a lof< by- 
 capture [a). 
 
 The learned judge who tried this caufe, and who was 
 in general a mailer of all the learning of his time on the 
 fubjecl of infurance, feems to have thought that nothing 
 fliort of running away with the Ihip, with intent to de- 
 fraud the owners, amounted to barratry. What the fea- 
 men did in that cafe was but one degree fiiort of fuch a 
 crime. In the following cafe, which we have already had 
 cccafion to mention, the conduct of the maftcr was held 
 to be barratry, though certainly much more venial than 
 that of the failors in the above cafe. 
 
 A (hip was chartered for a voyage from Liverpool to the jv^,y, ,. 5^,^^ 
 
 Bahamas and back, and on her teturn from the WeJ} In- ^ T. R. 379. 
 dies^ letters of marque were taken on board, merely to "1_lfi_ 
 
 entice feamen to enter, but without the neceflarv docu- "^'^^ '"^""' 
 
 ' witliout the pro- 
 
 ments to give them validity, and 'without any intention of p" ai.tiiority, 
 
 cruifng in qiuf of prizes ; and it was a part of his written '"s'o'd^.scruifci 
 
 inftrudions, befcve he failed, to proceed to Liverpool with. '"quc'^"*!"!"". 
 
 all expedition. A few days after the fliip failed, how- Ii Igh HcnTS 
 
 ever, the captain, with the concurrence of the majority ow.IiTs!*'"'' ^'"' 
 of the feamen, determined to cruife for prizes ; and he 
 foon fell in with an American whom he plundered and 
 
 {a) In an appeal from the Ea/l Indies, in a caufe o^ De Frife 
 V. Stephens at the Cockpit, ift July 1800, S,\v R. P, yfra'en, 
 then Mafter of the Rolls, obferving upon this cafe of Elton v. 
 Brcgden, faid, he thought it muft be ill reported in Strange ; 
 for, upon the fads ftated, tliere could bene doubt but that the 
 mariners had committed burratr)-, and that he was th-jirfore in- 
 clined to think, ao Lord Mansf.cld appeared to have don.> in 
 commenting on this cafe in that of Vall-jo v. Whreler, that the 
 policy muft "have been fpecial, probably not including barratry 
 of the mariner i. 
 
 ' aftcr'.\ard5
 
 $2Z O/Lofs [B.I, 
 
 afterwards tlifcharged. He then cruifed for fome day$ 
 put of the courle of the voyage, and captured a fliip of 
 the enemy which he feat to Bermttdas, where he followed 
 her himfelf, and there libelled her as prize in the court of 
 admiralty, in the name of himfelf and his civners. But 
 during his (lay there his fhip was ftranded, and the cargq 
 loft. He dire£led that the cruifing Ihould not be men" 
 tioned in the log book. — In an a£lion to recover as for a 
 lofs by barratry, it was contended on the part of the un- 
 • derwritcrs, that this could not be barratry, in as much as 
 the aft of the captain, however reprehenfible in other 
 refpe8s, was done with a view to benefit, not to prejudice, 
 his owners. — But the court held this to be barratry j and 
 that the llopping and plundering the American fhip was of 
 itfelf an a£l of barratry in the mafter, independent of his 
 taking the prize, this being contrary to his duty to his 
 owners, and to their prejudice •, becaufe, by the charter- 
 party, they had ftipulated that the fhip fliould fail di- 
 reftly to Liverpool, and they were therefore liable for 
 any damage that might happen in confequence of any 
 wilful deviation.- — Mr. Juftice Lniurence^ in delivering his 
 opinion, faid, " It has been holden that w^hatever is done 
 by the captain, to defeat or delay the performance of the 
 voyage, is barratry in him, it being to the prejudice of 
 his owners. And though he might conceive that what 
 he did was for the benefit of the owners ; yet, if he 
 acted contrary to his duty to them, it was barratry." 
 Any illegal aft, In the following cafe, which was determined in the 
 ter, without the Court of King's Bench upon great confideration, and in 
 authority of the ^]^i(;h Lord Ellcnhoroiigh, in a very able iud cement, took a 
 
 owners, and to _ ° . ^ , . 
 
 their (kniimenr, maftcrly view of all the learnmg and authorities on this 
 is barratry, fubieft:, it was determined that any illegal aft done by the 
 
 though doiiewitn J ' 70 } 
 
 a view of p:o- niaftcr, without the authorltv of the owners, and to their 
 
 mcjring their illt- ^ . ' 1 ^1 • 1 • ■> • 
 
 ereft. detruTicnt, is barratry, though it be not dons with intent 
 
 to injure them, or to benefit himfelf, and even though It 
 be done with a view of promoting their intereft. 
 Earl v.^Fow The Ihip Aiinabella, was infured from Liverpool upon 
 
 tr.j t, bi^cjt i z . ^^ African voyage, and, in an action on the policy to 
 The tiiaiter of an j-ecover a lofs by barratry, it appeared tb.at the mafter, 
 
 ^frictn Have / ' ^ ^ . ' 
 
 fhip, fails to an who wss alfo fupcrcargo, upon his arrival at Cape Coa^ 
 meiuon tilrcoa'ft Cajile, a Briiifo fettlement on the coaft of Africa, began 
 
 to
 
 Ch. XII. § 6.] By Barratry. 523 
 
 to trr.cie there j but, after a couple of day?, receiving feitnepurpofeof 
 
 tri'mii" t 1 imire 
 
 intelligence th;\t he could barter his cc^ds for flavcs .,^, „..„, ,, ,„ 
 
 more advant.;ecoullv ar.d expeditioully at Umiiia, z.DiiUh '« fjuidat a 
 
 r ' • , ,1 J , 1 • 1 ^■^'■•/'* '^■''^- 
 
 lort about lev^Mi niiies to w.ndward, he proceeded thither m nr. F..rt' uhi* 
 
 and there exchanged his goods, corxfifiiin;, amoncil other "*'';' .'=* ['"•^^'"7 
 
 fc> o ' o' & ;i BtiIiUi rugate, 
 
 things, of muikc's and gunpowdci, iox fiaves, Hclland awd conhicaied i 
 
 I • 1 • ^ r~> />••.. 1 - Tiiis trading 
 
 being at that time at war with Lireat tsntaui^ ana he ;^.,s i.ar;itrv. 
 having letters of marque on board againil the French and 
 Dutch. After taking on board a number of flaves, the 
 mafter, who was tlien on fhore at ^////zV/a, hearing that au 
 Engi'^iJi frig.;te was in fight, fent a note on board the 
 ^Irinabella, dirc£ling her to fail immediately to Cnpe Coafl\ 
 *^ to prevent mijchief," as he exprefled himfelf; but, in 
 her way thitlier, (he was purfued and feized by the 
 EnglifJj frigate, and fent to Jamaica^ where (he was con- 
 demned as prize, for ha\ing traded with the en^:my («). 
 It further appeared, that it had been ufual to keep up a 
 tradinrr intercnurfc between rlie EngUjli and Dutch fet- 
 tlemenls on th'.s pr.rt of the ■ oaft, even in times of war 
 between the mother countries, and that the marier's object 
 in going to Ehnina was to complete his cargo as cheaply 
 and expeditioully as he could; that when the fhip was about 
 to go "ioEhnhia the furgeon aiked the mafter if there was no 
 impropriety in going thither, to which he anfwered that 
 they fhould be foon off again, and nobody would know it j 
 and it alfo appeared that, befides his ufual wages, he had a 
 . commilfion on the purchafe and fales, which he received 
 at the end of each voyage. — The Court determined tha; 
 
 (<3) As to the illegality of trading with the enemy, vid, 
 fup. ch. 3. § 4. And with refpeft to the legality of capture 
 and coiififcatlon for trading with the enemy, without the king's 
 h'cencc, fee the cafe of *lie Hoop, i Roh. Adm. Rep. 196, with 
 the authorities there cited, and the cafe of the OiVin, id. 248 ; 
 fee alfo 1 Rob Adm. Rep. 166, and the cafe of the Cofmopolite, 
 4 Rob. Adm. Rep. 10. And a trading by the fubjefts of an ally 
 in the war, has been holden illegal, and a ground of feizure and 
 cor.fifcation in our Courts of Admiralty. See the cafe of the 
 Kayade. 4 Rob:K(^^ Rep. '/^ i . See 5 Roh, Adm. Rep. 254, 
 
 ^ this
 
 524 OfLofs [B.L 
 
 this trading with the enemy by the mafler, without the 
 authority of the owners, though intended principally for 
 their benefit, being in contravention of hio duty to them, 
 and fubjeding their property to confifcation, was barra- 
 try. — Lord Ellertborough conclndzs his very able judgment 
 by laying it down as clear law " That a breach of duty by 
 the mafter, in refpeft to his owners, with a fraudulent or 
 criminal intent, or ex maleficioy is barratry ; that it makes 
 no difference whether this a6l of the mafter be induced 
 by motives of advantage to himfelf, malice to the owner, 
 or a difregard of thofe laws v/hich it was his duty to 
 obey ; and that it is not for him to judge or fuppofe, in 
 cafes not intruded to his difcretion, that he is not break- 
 ing the truft repofed In him, when he endeavours to ad- 
 vance the intereft of his owners by means which the law 
 forbids." 
 Earrjtrycan only Barratry can only be committed by the mafjer and ma, 
 be committed rincrs bv fome a£l: contrary to their duty. In the relation 
 
 againlt the jTi/t- ' ' ^' 
 
 ^r5,and ti.eicfore in whlch they ftand to the owners of the {hip. It is there- 
 
 e(Ljcni. ^0^^ 2n offence againft them, and confequently an owner 
 
 himfelf cannot commit barratry. He may, by his fraudu- 
 lent conduct, make himfelf liable to the owner of the 
 goods on board, but not for barratry. Neither can barratry 
 be committed againft the owner, nvttb kis confent\ for 
 though he may be liable for any lofs or damage occafloned 
 by the mifcondudt of the mafter to which he confents, 
 yet this is not barratry. Nothing is more clear than that 
 a man can never fet up a's a crime an a£l done by his own 
 direction or confcnt. Thefe points will be found fully 
 eftablifhed in the two following cafes. 
 
 gttmmawBrtiun, jj^ j.j^g ^^^ of thefc. It appeared that a fliip beinjj 
 advertized to go to Marfeillcsy goods were fhipped on 
 
 A fhip is engaged ^ ^ j ^^j ^^^ ^^^^^ figned a bill of lading, where- 
 
 to carry goods " ' b &' 
 
 flraight to Mar- by hc undertook to to go flralght to that place, and the 
 lieadVf going thi- goods wcre iufurcd, * from Falmouth,^ (where they were to 
 ther diieci, fhe Jg taken ou board), < to Marfeilles.' Before the fhip departed 
 
 goes fir ft to Gt- /'J r r 
 
 7,041 and Leghorn : from thc poTt of LoftdoTt, another advertifement was pub- 
 by 'theTmho°i"y liAicd for goods to Genoay Leghorn^ and Naples y and the 
 Q' ti,e owner, i« plalntifFs 
 
 nat barratry. _ *
 
 Ch. XII. S (J.] By Barratry, z^i^ 
 
 plaintiff's agent was told that it was intended to go to 
 thofe ports firit, and then come back to Marfeilles ; but he 
 infifted that his bargain was to go ^vctOiX^ to Marfeilles \ 
 and he would not confent to let her pafs by Marfeilles 
 or alter his infurancc. — ^The ftiip, however, did pafs by 
 Marfeilles ; and after delivering her cargo at the other 
 ports, fct out on her return to Marfeilles with the plaiii- 
 tifi^^s goods ; but,in her voyage thither, was blown up in an 
 engagement with a Spanijh fhip of war. The plaintiff de- 
 clared as for a lofs by the barratry of the mafter. — Lord C. 
 ].Lee told the jury that this voyage,being igainfl the exprcf* 
 agreement to proceed itvaight to Alurfilles, feemed to be 
 more than a common deviation, as it was a formed de- 
 fign to deceive the plaintiff; and compared it to the cafe 
 of failing out of port without paying the duties, whereby 
 the {hip was fubjefled to forfeiture, which had been 
 holden to be barratry. — The jury, after Haying out fome 
 time, returned and afked the Chief Tuftice, whether, if 
 the mafter was to have no benefit to himfelf by paffing by 
 Marfeilles^ and went only to the other places firft, for 
 the benefit of his owner^, that would be barratry ; and 
 the Cl'-ief Juftice anfwering, No, they found for the 
 defendant. — On a motion for a new trial, the court after 
 argument, were unanimoufly of opinion that the verdi6l 
 was right : For the mafter had acled confiflently with his 
 duty to his owners, and the plaintiff's agent knew of the 
 intended alteration, before the goods v/ere put on board, 
 and might have refufed to fhip them, or have altered the 
 infurancc ; and to make it barratry, there muft be fome- 
 thing of a criminal nature, as well as a breach of the 
 contrad, but here, the breach being affigned only on the 
 barratry^ was not fupported by the evidence. — Mr. Juftice 
 Lawrence y in delivering his judgment in the cafe of Phyn 
 V. Roy. Ex. Affiir. {a) fays that, in this cafe, of which 
 
 («) 7 T. R. 508. See fome further extrafts of this note, and 
 alfo ot Mr. Ford'% note of this cafe of Utair.ma v. Bro<wn, 8 Eafi ' 
 135-6. 
 
 ho
 
 5^6 Oftofs ' [B.t. 
 
 he had a manufcript note, Lord C. J. Lee^ in defining 
 barratry, faid, " Barratry mull be fonie breach of truil 
 in the mailer, ex nmlejic'ioj" 
 Kuti V. Br^urdicu, The other was the cafe of an infurance efledted on 
 X T.R. 3^3- behalf of Hague^ before he became bankrupt, on goods 
 
 After bills of lad- qj-j board the Rachette from London to Rockelle It ap- 
 to*throwne'Vof peared that the mailer, hy the InJIigation and dire£lion of 
 goods, the cap- ^g Grand, the owner of the (hipy ivent ivhh the JJnp and 
 
 tain figiis new ' -^ , 
 
 ones,changingthr cargo to Bourdcaux, vijlead o/'Rccbelle, ivhere the cargs 
 ftfpit'd the'" ivas fold by the agent of Le Grand : That a petition was 
 goods arL-d>fpor. prefented bv the infured to the admiralty of Guiemiet 
 
 ed of for the lie of r J r n : j 
 
 the owner of the ftating that Le Grand, partner in a houfe at Rochel/e, 
 
 ftip, and in fraud ,. . r , -ii-n- i* j. c *. 
 
 of the owner of being m London with his (hip, and m want ot a cargo to 
 the goods:— Thi^ j-gjui-n home, applied to Hatruey M'ho agreed to fupply 
 
 being done wiih , i • i i i i u j i n • 
 
 the concurrence him With gooGS, which were loaded on board ilie Ihip, 
 nottarrrjr'^- '' fo^ ^ccount of Le Grand ; that as Hague did not know 
 the houfe of Le Grand, it was agreed between him, 
 Le Grand, and the captain, that the bills of lading Ihould 
 not be delivered to Le Grand but at Rochelley after he 
 fliould have paid the amount to the agent of Hague, in 
 good bills, and, in default, that the goods Ihould be re- 
 ceived by Hague's agent for his account free from freight 
 ^c. \ that the captain accordingly delivered bills of lad- 
 ing to Hague, who forwarded them, together with the 
 contrad, to his agent at Rochelle, with orders to receive 
 the goods on the arrival of the fliip, or deliver them to 
 Le Grand if he fhould fulfil his agreement ; that, upon 
 the fhip's arrival at the harbour of Rochelle, Le Grand 
 went on (hore, got fecretly into the town, where, having 
 confulted with his paitners how to elude the precautions 
 taken by Hague, returned on board and got the captain 
 fraudulently to fign other bills of lading, by which he 
 referved to himfelf the liberty of putting into Rochdle or 
 Bourdeaiix, and by means of the falfe bills of lading, and 
 by the contrivance of Le Grand, the goods were there 
 put into the hands of Le Grand's agent •, that Hague's 
 agent on hearing of this, applied to the houfe of L: 
 Grand, <who gave him bills for the whole amount, but 
 •which were afterwards difhonoured •, whereupon the 
 agent attached the cargo in the hands of the feveral perfons 
 
 wh»
 
 Ch. aII. 5 6.] By Barrain. ^2^ 
 
 tv-ho held it ; that the houfe of Le Grand havhig deli- 
 vered a falfc account to their creditors, a rcleafe was 
 granted them from all attachments and executions, con- 
 firmed by the parliament of Paris^ with an injundlion 
 to all perfons arreting their goods to rcftore them ; that, 
 in confequence of this petition, tlie court of admiralty at 
 Bcurdeaiix decreed that the captain icas guilty of barratryy 
 for having figned falfe bills of lading, in order to change 
 the voyage, and carry away the goods, for which they 
 condemned him to the galleys for life, and declared Le 
 Grand to be an accomplice in the faid barratry of the majlcry 
 and guilty of robbery in caufing the fljip to be brought 
 into Bourdeauxy and condemned him to the galleys for 
 five years, and lafUy, condemned the captain and Le Grand 
 to pay the value of the goods, with the charges, &c. — 
 The court were clearly of opinion that this could not be 
 barratry, and that the plaintiffought not to recover. — Lord 
 Mansfield foid, — " The fentence of the French court of 
 admiralty, which declared the mafter and owners to have 
 been guilty of barratry, is entirely out of the queflion : 
 For, though it was a mod righteous judgment, yet it was 
 no pait of the confideration of that court, what was 
 meant by barratry in an Englijh policy. Their idea of 
 barratry was manifeflly different from the conftruclion 
 put upon that word in our own courts ; for they had 
 found the oivner guilty of barratry, which was entirely 
 repugnant to every definition of barratry which had 
 ever been laid down in an £/;^7//i^ court of jnflice. The 
 point to be confulered is, whether barratry, in the fenfe 
 in which it is ufed in our policies, can be comnntted 
 againft any but the owners of the iliip. It is clear be- 
 yond contradiction that it could not ; for barratry is 
 fomething conrrary to the duty of the mafier and mariners, 
 the very terms of which imply tiiat it mufl be in the re- 
 lation in which they ftand to the owners of the /Jjip. An 
 owner, therefore, cannot commit barratry. He may 
 make himfclf liable by his fraudulent condu£l to the 
 owner of the goods, but not as for barratry. And, be- 
 fides, barratry cannot be committed againfl the owner 
 "X'ith his ccnfent : For though the owner may bccon-.e ' 
 
 liabk
 
 528 OJLofs [B.l. 
 
 . liable for a civil lofs, by the mifbehaviour of the captain, 
 
 if he confented, yet that is not barratry. Barratry mufl 
 
 partake of foniething crirrsinal, and muft be committed 
 
 agnhifl the owfief, by the mafter or mariners." 
 
 Fthe famaper- If the mafter of the fhip be alfo the owner, he cannot 
 
 owner and maf- conimit, barratry, becaufe he cannot commit a fraud againft 
 
 ter he cannot himfelf. And evcn v/hcre he has mortgaged the fhip, and 
 
 try. the legal title is in another, and he has only the equity of 
 
 redemption, yet he is ftill fo far the owner, that he cannot 
 
 commit barratry (a) . 
 
 Bui a (Jcviation It IS not, indccd, againft the perfon pofieffed of the 
 
 wirhouttheknow- i ,- i n • i i i 
 
 kdge of a gene- wicrc icgal title to a Ihip, that barratry may be com- 
 rai freighter, mittcd 1 it mav bc committed againft a general freighter, 
 
 though «irh the . r cy r.- ^ i /i • i • 
 
 coiifenc of the m relpect or nis temporary power over tnat Ihip curmg 
 owners, is bar- ^ given voyage j and a deviation for an illegal purpofe, 
 without his knowledge or confent, will be barratry, though 
 it be w^ith the confent of the original owner. 
 Fa/iepvJFUu/fr, Aswhcrc goodsv.'ere infured in the common form, ' From 
 c«wj>. 143, f l^ofij^n to Seviiley with liberty eo touch at any ports or 
 
 ' places, Sec' — In an a6lion on tlic policy, the lofs was al- 
 ledgcd different ways in the declaration ;//;;'?, that the fhip 
 by ftorms and perils of the fea, was forced to go to Dart^ 
 mouth to be repaired ; and that afterwards a further lofs 
 happened by ftorms, &c. ; fecondly^ that it happened by 
 ftorms. Sec. in the voyage generally ; and thirdlyy by the 
 barratry of the mafier. — At the trial it appeared, that the 
 {hip was put up as a general fliip from Loudon to Sevillfy 
 and was let to freight by one Wilks to Darwin [b] \ that 
 it is the courfe for veffels going on this voyage, to ftop at 
 fome port in the weft of Cortiwally to take in provihons ; 
 tliat this fiiip having taken her cargo on board, failed fron) 
 London to the Douins, and while flie lay there, all the other 
 
 (a) Semb. per Lord Chancellor Hard-wiche, Ls'whi t. 
 Supjfo, Pojl. Dl3. vol. I, p. 147. (h) Mr. Coivper's re- 
 port of this cafe ftates Darivin to have chartered the fhip to 
 Brotuity his captain. Mr. Juftice Bulhr in i T. R. 330, fays, 
 that the error fliould be corrected by ftating tliat ihe fhip was 
 chartered by Bro'ivn to Darivin, and not by Darivin to Biozvn. 
 But it appears by the fubfequcHt part of the report^ that Willes 
 chartered the fhip to Darwin. 
 
 fliips
 
 Ch. XII. § 6. J By Barratry. -2p 
 
 fhips bound to the vveflwavd bore away, but fhe (laid till 
 the night after, and then failed to Guernfeyy which was 
 out of the courfe of the voyage ; that the captain went 
 there for his own convenience, to take in brandy and 
 wine on his own account, after which he intended to 
 proceed to CorrnvaJh, that the night after the fliip quitted 
 Guenifey fhe fprung a leak, which obliged her to put into 
 Dartmouth ; that when fhe was refitted, Ihe failed again, 
 and proceeded for Helford in Corniuall, where it was 
 always intended fhe fliould flop and take in provifions, 
 but in her way thither, flae received furtlier damage, and 
 at her arrival was totally incapable of proceeding on the 
 voyage j and that the goods infured were much damaged. 
 — It was attempted, on the part of the defendant, to 
 prove that the voyage to Giiemfcy was on account o£ 
 Willes, the owner of the fliip, and that the goods taken 
 on board there were his property : But this evidence 
 went little farther than information and belief, except that, 
 when the fliip arrived at Helford, the wine was delivered 
 into his cellar. — Mr. Juftice AJhiirjl, who tried the caufe, 
 told the jury that, if the going to Gtiernfey was without 
 the knowledge of Dariv'ui, it was barratry ; and they 
 ought to find for the plaintiff; but if done with his 
 knowledge, then it was not barratry : And if they fliould 
 be of opinion that it was without the knowledge of Bar- 
 iviriy then, he defired them to fay, whether they thought 
 it was with the knowledge of fVilles or not [a). The 
 jury found for the plaintiff, and faid they thought the 
 going to Giiernfey was without tlie knowledge of Darivin, 
 whom they looked upon to be the owner, but they thought 
 it was with the knowledge of Willes. — Upon a motion 
 for a new trial, two quellions were made : Fhjl, Whe- 
 ther the conduct of the mafler, in going to Gtiernfeyy for 
 
 ^d) There feems to be fomc error in this part of the report. 
 The firfl part of the direction of the learned judge takes it for 
 granted llut Darium was ,the owner. If fo, it could not be 
 material to enquire whetlier the deviation was with, or without, 
 tke knowledge of Wlties. It would fecm, from the finfHug of 
 the jury, that it had been left to them to fay which of the two 
 was the owner. 
 
 VOL. II. V. xht
 
 53^ 
 
 OfUfi _ [B. T. 
 
 tlie purpoie, and under tire circumftances iibove Rated, 
 was barratry : Suppofing this to be barratry, then/cr6«^/j ; 
 whether, to entitle the plaintiff to recover, the lofs mull 
 not have happened during the continuance of thebarracry,or 
 have been occaHoncd immediately by the a6l of barratry: 
 Here the goods were not feized for fmuggllng, nor did 
 the lofs happen till after the acSt of banatry. — The court, 
 after two arguments, were unanimonfly of opinion that 
 this was barratry. — They fa'id, that if a fiiip be let out 
 generally to freight, the freighter is owner for that voy- 
 age ; but if there be only a covenant to carry goods, the 
 owner of the fhip would have the direction of her, and 
 the hiring of the mafter and mariners ; that though 
 Wilks was originally the owner, and not being the in- 
 fured here, every thing relating to him might be laid 
 out of the cafe, and that the jury, therefore, did right in 
 confidering Darwin as owner pro hac vice ; that Darwi.-i 
 being the freighter and owner of the goods on board-, 
 any fraud committed on the owner, muft be committed 
 on him ; that the mafter had agreed to go on a voyage 
 from London to StrLiillc^ and Darwin truftcd lie would fct 
 out immediately, inHrcad of which, he went on an ini- 
 quitous fcheme, totally diilincl from the purpofe of ths 
 voyage to Seville, which was a cheat and a fraud on 
 Darwin, and was therefore barratry ^ that barratry is not 
 confined to the running av/ay wit?h the fliip, but com- 
 prehends every fpecies of fraud, knavery, or criminal 
 conduft ia the mailer, by which the owners or freighters 
 are injured ; that whether the lofs happened in the a£t 
 of V'-irratry, that is, dunng the fraudulent voyage, or 
 after, was immaterial, becaufe the voyage was equally 
 altered even though there vv-as no other iniquitous in- 
 tent ; independently of this, the judges feemed to think 
 that the lofs, in the prefent eafe, was fuftained in confe- 
 qtiencc of the alteration in the voyage •, that the m.oment 
 the fhip was carried from her right courfe, it was bar- 
 ratry, and the lofs happened in confequence ; but that, 
 fuppofmg the lofs to have happened afterwards^ the in- 
 fured, if not prote6j:cd againil: the barratry of the mafter, 
 would have loft his infurance by the fraud of the mafter \, 
 for it was clearly a deviation, and he could have no- 
 • remjeij
 
 Ch. Xir. § 6.] By Barratry. 531 
 
 remedy agai;j.'l tlie unucrv/rlters for a lofs in confcquence 
 of a deviat'on. 
 
 Hence it would feem that, if barratry be once com- 
 mitted, every lubfcquent lofs or damage may be afcribed 
 to that caufe ; and that the underwriters are liable for it, 
 as for a lofs by barratry. 
 
 Though it is a maxim in law that fraud lliall never be It \'- fuffident to 
 prefumed, but nuift be ftrictly proved ; and it is a rule, '^^^^^^ cjmnil'u 
 in queftions of infurance, that he who charges barratry, '*^ hair.,- y, 
 mud fubllantiate it by conclufive evidence {a) j yet, in the n.-gaiii'dy, thai; 
 following cafe, it was determined that proof of tlie maf- ,;-.v:iti "scc. " 
 tcr's having carried the fiiip out of the regular coiirfe of 
 the voyage, for fraudulent purpofes of his own, is prhnd 
 facie, fufficient to entitle the plaintiff to recover; without 
 Hiewing, negativeljy that he was not the ov/ner, or tliat 
 any other perfon was the owner, or that this was not done 
 with the owner's confent. 
 
 Thus : —Goods were infured on board the Liv? Or.}, -^'Z' v. ihmter, 
 
 jfoft-ph Rati mafter, * At and from Jamaica to Ne^v Or- 
 
 * /fans.' — In an aclion on the policy, there were tv/o counts ^ ''-^^ =";^ '"f"'"- 
 
 i- J ■" _ en from 'finKarr.! 
 
 in the declaration ; the firft alledging a lofs by the bar- to M'^u "b'/.-.f-r:, 
 
 ri n 1 r 111 -irir 2'"1 t'l2 :njl'.er 
 
 ratry ot me mairer ; tne iecond by the perns 01 the lea. ancho:s i.i th-; 
 — Upon the trial, it appeared, That the fliip \vx3 put ud ''';"-"'^, ^^ '•'- 
 
 , n ■ c-P ■ \ n r -i \ i ^ '^^'^#/>'- goes 
 
 as a general Ihip at Jamaica, that Ihc laued on the voy- up to ih.n placs 
 
 age infured in May 1783; that the plaintiff, amongft '^'tl^^'l^- 
 
 others, fliipped the goods in queftion, and in "June ioX- iiofe, .ku! >,', hi^ 
 
 lowing, arrived in the mouth of the M'ljfijfipu v/hich awMvfot thc//«- 
 
 leads up to Ntvj Orleans, in Spanifij America, at the dif- •^:""""^ ••—Pro.-f 
 
 tance of 35 leagues ; that v/hen the captain ha 1 got thus fuffiu nt evi- 
 
 far, he dropped anchor, and went_ in his boat up the ^ y"''^w°fti.'n,r"* 
 
 river to iS/Vw Grh.an:, and, on his retiarn, without carry- 'l^cwing iirg'>- 
 
 l/i-'i rin-- ni i l!vt|y th.ir hew i". 
 
 mg the ilnp to her port of dedmation, itood away for the no: o-.v-ier or i;.- 
 Havainiah, jfter which lie was never heard of; that iie '"■''" J" ^& '"'' 
 luid a private adventure of negroes of his own on board, 
 which 'tlierc v*'a3 realon for fuppofmg he intended to dif- 
 pofc of at New Orleans ; but that, finding it difficult to do 
 
 [a] Baralarltfi crimen uranqiiam efl pncfumendum fcS ccridi'.dcT>- 
 t'tjfme prohttnu'n".. Cafarfgis, difc. I, n. 6o ; difc. 225, n. C9 ; 
 difc. 226, n 6. W'\. Err.er'ig. torn, f, p. 373- 
 
 '£ 0, • fo
 
 S32 Of Lofi. [B.I. 
 
 fo, on account of an interdiflion by the Spamj}} govern- 
 ment againft the importation of them there, he went to 
 the Havautiak in queft of a market for them. — The <*t- 
 fendants infilled that, upon the fivfl count, there was 
 no evidence to {hew that the captain was guilty of bar- 
 ratry ; for m7i ccnjlat that he was not himfelf the oivfier 
 or gemral freighter of the fhip '■, or if not, that he had 
 acted contrary to the directions of the owner in going 
 out of the original courfe •, and that, as to the fecond 
 count, there was a clear deviation v/hich difcharged the 
 underwriters, — Lord Kenyofj, who tried the caufe, was of 
 of opinion that barratry was fufhciently proved, and that 
 therefore the plaintiff was intitled to recover on the firft 
 count, and the jury found accordingly. — ^Upon a motion 
 for a new trial, the court were clearly of opinion that the 
 evidence was fufEcient to fupport the verdict. The fliip 
 was a general fnip, of which Rati was proved to ht captain y 
 ■which is prima focie evidence tliat he was not owner. 
 There was no proof of his being owner ; and if that 
 fact were neceilary to conllitute the defence of the un- 
 dcrwritei", the affirmative proof lay upon him. For the 
 fame reaion, if Rati had been general freighter, that 
 ought to have been proved by the defendant.- — Mr. Juftice 
 
 Even riropping "^ ,^,,i-i , ^ ■ r ^ i 
 
 aiichcr wicii a JBuIkr aifo held, that the very droppmg or the anchor m 
 
 hTifa/t"of'bal^ the mouth of the Mijfjfpi, being with a fraudulent viewj 
 
 jatiy. was an act of barratry. 
 
 Though "the If a f^^ip be infured for a term, in atty lawful trade^ 
 
 words ' :n any ,,^^^^^ barratry be one of the riilcs mentioned in the policy, 
 
 * laioful ira.ie ' '■ ^ 
 
 be infeitjd in a the underv/riters are anfv.-erable for the barratry of the 
 reV^fi' liahiT'if Hiafter by fmuggling ; for lawful trade in the policy means 
 ti-iec-iptain com- ^^ trade in which the fiiip fliall be employed by the own- 
 
 mit haiiatry by i r i • i,- t i 
 
 jmugiiing. ers, and net any unlawlul commerce m which the captani 
 
 may be engaged without their concurrence. 
 /";• ■ \' Tv,. As, where a (hip was infured for twelvemonths, < itt 
 it..'!.cv, jT. R. i, ^fjy lanvfil tradcy to commence on her failing from 
 < Sunderland.' — The declaration alledged, that the fhip 
 failed in a lanvfd trade from Sunderland^ and afterwards- 
 failed on a voyage from Of end to Sufiderland, but put into 
 the port of Shields, v/hcre the mailer, /;; a barratrous and 
 fraudulent matmery without the knowledge or conjent of the 
 twttery did fraudulently and barratrouily, import from 
 
 Ofendy
 
 <:h. XII. S 6-] ^y Barratry. 533 
 
 Ojlaid, a quantity of fmuggled goods, whereby the fhip 
 became forfeited, and was feized. — ^To this the defendant 
 deiinirred, and inlifted that, ss the infurance only ex- 
 tended to lofles which the ihip might fuftaiu in a lauful 
 trades the underwriter could not be liable for any lofs occa- 
 fioned by an utdaivful tradfi whether it proceeded from the 
 ad of the mafter or owner ; and that the barratry infured 
 'againft was fuch as might happen in a lawful trade, as by 
 defcrting, finking, or running away with, the fliip.— But 
 the court determined that if the owner condu£1:ed himfclf 
 with propriety, he was entitled to be indemnified againft 
 all the perils infured againft in the policy ; and that the 
 words «' atjy laiiful tradd" m the policy meant the trade 
 in which the (hip was employed by the oivuers. 
 
 Every lofs muft appear to be a dircd and immediate Tlic infurcr will 
 
 - . , - , . , . . r -1 1 1 ^1 , iT't I'C liable iir- 
 
 confequence of the caufe to which it is alcnbed by the lefs the lofs hap- 
 infured. We have feen, however, in the cafe of Vallejo pen dunng the 
 
 . . voyage, thougn 
 
 V. Wheeler («), that whether the lofs happen dunng the bairauy was 
 
 aa of barratry, or after it, is immaterial. Yet, if a lofs ^;;;'"^'"'*^ '''" 
 
 do not happen within the time prefcribed by the policy 
 
 for tlic duration of the riUc, the infurer will not be liable 
 
 for it, though it be the undoubted confequence of the 
 
 barratry. 
 
 As where a fliip was infured from Hamburgh to London ; icckyer v. Offiey, 
 and it appeared that, in the couife of the voyage, the l^J- \ -S^i 
 mafter committed barratry, by fmuggling on his own 
 account, on the Etiglifj coaft ; that on the ift of Septem- 
 ber 1785, the (hip arrived at her moorings in the Thamesy 
 where (he remained in fafety till the 27th, when fhe was 
 feized for the fmuggling, and the owners, upon their 
 petition, had leave to compound for a fum of money. — • 
 Upon this cafe it was determined that though, by the 
 cxcife laws, the forfeiture attaches the moment the of- 
 fence is committed, and the fliip may be feized at any 
 time afterwards, and tliat the barratry was committed 
 during the voyage \ yet, that the underwriters were not 
 liable for this lofs -, for the law of infurance would be 
 left unfettlcd, if the liability of the infurers were to be 
 
 (c) Sup. 52S. 
 
 It ^ continued
 
 53^ O/Lofs [B.I. 
 
 continued for any other time than that prefcribed by 
 the policy. 
 
 Hov.- h^xrv^Y 7]ie oiFence of barratry, fo mlfchievous in itfelf, and 
 
 ihalibcpuiiUiKd. - . . . . -nil LT r 
 
 10 injurious to commerce, is punilhable as a public or- 
 
 fence, according to the degree of guilt of the offender, 
 by everj commercial ftate in Europe. 
 in Franc:. In Fratjce^ any fraud praftifcd by the mafter or ma- 
 
 riners, -with or vv'ithout the privity of the owners, and 
 frauds committed by the owners themfelves, are, as we 
 have already feen, accounted barratry, and are puniflied 
 with exemplary feverity. It appears by the cafe of Nult 
 V. Bourdieu «), that the captain of a fhip v/as fentenced to 
 the gallies for life for figning faife bills of lading, in order 
 to change the vovage and carry away the goods ; and that 
 the owner, who was convi61ed of being an accomplice in 
 this crime, and of robbery in caufing the fhip to be 
 carried to a w^rong port, and converting the goods on 
 board to liis own ufe, was fentenced to the gallies for 
 five years. 
 
 How offences of this nature are punilhed by the laws 
 cf this country, will be fhewn in the lalt fstfion of 
 the prefcnt chapter, where the fubjedt of fraudulent loflts 
 In creneral will be confidcred. 
 
 Sea. VII. 
 
 Of Lafs by Average Contributiois. 
 
 THE fubjedl of average is a branch of marine law 
 whi. h does not neceffarily make a part of the law of in- 
 furance : But as infurers, by the general words of moft 
 policies, are liable to indemnify the infured againll thofc 
 contributions which are properly denominated gefierai 
 average^ this fubje£l muft often incidentally occur in 
 tciz conhderation of partial loiTcs. It will therefore be 
 iieceiTary, in this place, to take a cnrfory view of the 
 doclrine cf averages, and of the regulations by which 
 tj;cy are generally undcrftood to be governed. 
 
 {a) I T. R. y^-i, tun, 450. 
 
 'J Average
 
 Ch. XII. § ;.] By Average Conlributioju, S2>S 
 
 Average {a) is a tcvra ufed in coiiinicrce to fignify a Avcrase wi-a*. 
 ■contributlou made by the owners of the fnip, freight, and 
 goods en board, in proportion to their refpedive intercfts, 
 towards any particular lofs or exncnce luftained for the 
 general fafety of the flup and cargo ; to the end that the 
 particular iofer may not be a greater fufTerer than the 
 owners of the fiiip and the other owners of goods on board. 
 Thus, where the goods of a particular merchant are 
 tlirown overboard in a ftorm, to lave the {hip from fink- ^" "^^^^ *^'^*® 
 
 '■ avfr.ige Gontii- 
 
 uTg, which may be lawfully done [b) ; or where the butions become 
 maits, cables, anchors, or other furniture of the (hip are P^'i^^'*^* 
 cut away or dcflroyed, for the prefervation of the 
 whole [c) ; or money or goods ai"e given as a compofition 
 to pirates to fave the reft j or damage is fuitained in de- 
 fending the fhip againft an enemy or pirate ; or a ranfom, 
 (when tiiat is legal), is agreed to be paid to an enemy 
 or pirate for liberating the ihip -, or an expen<:e Is in- 
 curred for phyfic and attendance in curing the officers 
 or fcanicn wounded in defence of the finp ; or in re- 
 claim. ng the lliip, or defending a fylt in a foreign court 
 of adiviiralty, and obtaining her difcharge from an unjufl 
 capture or detention ; in thefe and the like cafes, where 
 any fiicrlfice is deliberately and voluntarily made, or any 
 cxpence fairly and bond fide incurred, to prevent a total 
 lofs, fuch facrifiee or expence is the proper fubjc6l of a 
 general contribution, and ouglit to be rateably borne by 
 the owners of tlie ihip, freight, and cargoj fo that the 
 
 (a) Average is derived frcii the Latin word avsraglmrit 
 ■which comes fror.i the verb averare to carry, and originally fig- 
 nified a fervicc which the tenant ou^ed to his lord^ by hcrfe or 
 carriage. It is faid to have been iiitroduced into commerce to 
 fhe'.v theproportioii and allotment tobe paid byevery man accord- 
 ing to his goods <:flrrtW. Cotvsl. il)) 12 Co. 6^, JPIoufe's 
 
 cafe. (c) Si arbor 'vcl aliud naz'h infirumcntuvt, rcmovendi 
 
 communis pericuJi c a ufd (Reject urn ejl, contrlhutio debetur. fF. 1. 14, 
 de k^. Rhod. dejaU. Vid. Molloy, b. 2, c. i, § 6. But if the lofs 
 of thi mads, anchors, fails, &c. be occafioncd by mere llrefs of 
 weather, this is not a general average, but the lofs falls on the 
 ■cwner. Le Guidon, ch. ^, art. 20. Vid. cafe of the Copenhagen^ 
 X B.qI. Adm. Rep. 289. 
 
 ji 4 lofs
 
 53^ ' OfLofi [B.L 
 
 lofs may fall equally on all, according to the equitable 
 maxim of the civil law, — Nemo debet locupktari al'icna jac- 
 tiira. The application of this principle was underftooci 
 by the Rhodians^ whofe regulations on this fubjedl were 
 adopted into the Reman law, and make an important 
 head in the Digejly under the title, De lege Rhodia de 
 jaBu [a). The leading principle of -which is, — Omnium 
 csntributione farciatiiKj quod pro omnibus datum ejl. — Mnuif- 
 fimum etiim ejl^ commune detrimentum fieri eorum qui propter 
 amijfa res aliorum^ cofifecuti fwit ut mcrces fuas falvas ha- 
 huerunt {h). 
 
 Several aveiag'. Upon this principle is founded the doftrine of average 
 contributions, the regulations of which make a necelTary 
 part of every fyftem of maritime jurifprudence {c). 
 Average, when underftood in this fenfe, is called general^ 
 or grofs average, becaufe it falls generally upon the whole 
 or grofs amount of the fliip, freight, and cargo \ and 
 alfo to diflinguifli it from what is often, though im» 
 
 Particular ave- properly, termed particular average^ but which, in truth, 
 
 means a particular, or partial, and not a general, lofsj 
 
 and has no affinity to average properly fo called. 
 
 _, Befide thefe, there are other fmall charges called fett'i 
 
 Petty average. ^ . . ■ 
 
 or acciijlomed averages. Such as pilotage, towage, light- 
 money, beaconage, anchorage, bridge-toll, quarantine, 
 river-charges, fignals, inftru6tions, caftle-money, pier- 
 The ufuii petty rnoney, digging the fhip out of the ice, &c. When 
 rciia^gc on "the ^hcfe petty charges are incurred in the ufual courfe of 
 infuiers, uniefs ^^Q voyagc, they are not confidered as a lofs within the 
 
 in cafes of gene- . ^ , ,. 
 
 ral danger. meaning of the policy, but only a neceffary and ordinary 
 
 expence : But if incurred for any extraordinary purpofe in 
 the voyage, as to provide againft any impending danger, 
 or in confequence of the fhip's being driven out of her 
 courfe by ftrefs of weather ; they will then be deemed 
 grofs or general average, for which the infurer will be 
 liable (d) 
 
 {a) ff. lib. 14, tit. 2. [b) fF. lib. 14, de leg. Rhod. dejacl. — 
 
 (c) Vid. Mo. 297. Shew. Ca. Pari. 19. Beaives lex mere. 14S, 
 \Mcg. 64, zMag. 96, 183, Moiloyfh. 2, c.2, § 6, 12, ff. lib. 14. 
 d^e leg. Rhod. art. 9. Laws of Wijb. art. 2 0. Laws of 01. art. 8. 
 See alfo the ordinances of the different commercial ftates, as col- 
 
 ledted by Magens.- {li) Vid. iMag. 72. 2 Mag. 2 73. Pothier, 
 
 h. U n. 67. 
 
 A ccn-
 
 Ch. XII. S y.] Bj A-v crags Contributions. 537 
 
 A contribution upon a general average can only be Gmcrai avotags 
 tlauned in. cales wiiere, upon as much deliberation and claimed waer« 
 .confultation between the captain and officers as tlie oc- 'J^^ ^^bfoiut-I 
 cafion will admit of, it appears that the lacritice, at the "e'^c'Tary. 
 time it was made, was abfolutely and inJifpenfably ne- 
 celTary for the prefervation of the iliip and cargo. Some 
 have even gone farther, and have faid, diat die faving of 
 the fiiip and cargo muft appear to have been in fa£t 
 ov/ing to fuch facrifice [a). But this, befide being in 
 moll cjfes incapable of proof, is quite unr.eafonable and 
 unj uft . 
 
 A lofs which does not evidently conduce to the pre ■\?a where u 
 ferv'ation of the fliip and carsjo, is not a proper ground '^'' ''"<^=^ ''^ ^^^_ 
 
 \ _ . IT r b prcfeivation ot 
 
 for an average contribution : As if a pirate having made the ihip. 
 himfelf mailer of a fliip and jCargo, take only the goods 
 of a particular perfon [b\ or if feme particular goods be 
 damaged in a ftorm ; in fuch cafes the reft (liall not be 
 contributory {c). So, if upon the apprehenllon of an 
 enemy, fome goods are landed and fecured on fliore, and 
 the reft taken ; the owner of the goods taken fiiall not 
 have average of die goods faved ; for tlie Hilvage of thefe 
 is not the caufe of the taking of the reft ; neither was 
 the taking of thofe the caufe of the falvage of the goods 
 faved [d). 
 
 So, it m.uft appear that the fhip and the reft of the And where the 
 cargo were in fa6l faved : For if goods be thrown over- i^yld.^^ 
 board in a ftorm, and the iliip afterwards perifli in the 
 fame ftorm, there ftiall be no contribudon of the goods 
 faved, if any ; becaufe the object for which the goods 
 were thrown overboard was not attained. But if the 
 fhip be preferved by thzjettifon^ or throwing goods over- 
 board, and continue her courfe, but is afterwards loft ; 
 the effedls faved from this Jaft misfortune, if any, fhall 
 contribute to the lofs fuftained by the jettifon ; becaufe to 
 that their prefervadon was once owing {e). 
 
 (a) Beawes 148. {b) Mai lex mere, icp. (c) R. 
 
 Mo. 297. [d) R. Show, Ca. Pari. 20. {e} 2 iJ/./j. gH, 
 
 240. Ord. Louis XIV. tit. contrib. art. 15, 16. Scinb. cent. 
 J Mag. ^6. Vid. ihom. Ca. Pari. 20, AIo.7.ijJ. 
 
 A Upon
 
 DO' 
 
 OjLofs [B. I. 
 
 tfsoods/putinto Upon the fame principle, if a fhip, upon her arrival 
 
 lignteis to enable , ■'. ^ t^ t 
 
 ■A thipto get up at the mouth of a river or harbour, be found too deeply 
 t'he'rcft'fhlncon' ^^'^^'"' ^° g^*^ o^cr a bar, or to fail up, and the captain, 
 tiibute; But if to lighten her, put part of her earpo into litrhters, and 
 
 the fiiip be loft, 1 / ,. , , n , r , ^ , , 
 
 the goods in the tiiele lighters are lolt \ the owners of the raip and the 
 
 iishters (hall njt remaininrr roods Ihall contribute to this lofs ; becaufe the 
 C'^nrnbuie. ° " ' 
 
 removal of part of the cargo from the fnip into the 
 
 lighters was for the general bene-fit. But ffiould the fhip 
 
 be loft, and the lighters be faved, the owners of the 
 
 goods prefervcd in the lighters {liall not contribute to 
 
 this lofs \ becaufe the fhip could not be faid to .have been 
 
 lofl for the prefervation of the goods in the lighters, and 
 
 becaule it is a general rule that a contribution is only due 
 
 when the fliip and the remaining cargo have been pre- 
 
 fcrved from the peril to which they Vv-ere expofed [a). 
 
 Whet!)fr t'ne I^ a ^ip be unjullly captured and carried into a fo- 
 
 wages, &c. dur- yelgn port, it is faid that, not only the charge of re- 
 
 ;ng an unl:iwful . . ^ 
 
 detention, he a claiming her, but alfo the wages and expences of the 
 g'.i.eia a^ei.ig?. {l^^jp's company during the detention, iliall be brought into 
 a general average {h'). 
 
 The queftion, whether the wages and provifions of the 
 iliip's company, during an embargo or detention by the 
 authority of the flate, either at the port of departure, or 
 at a foreign port, be a general average, has not yet been 
 determined. The principle of the Rhodian law does not 
 ' ., apply to fuch expences, becaufe the detention does not 
 proceed from the a6>of them.a{ler,or conduce to the general 
 benefit. Mr. Juflice Bidler^ in the cafe of Da Cojla v. 
 Neivnham (r), fpeaking of the expence of wages and 
 provifions during an embargo, thus exprefles himfelf, 
 — " The court has faid, that thefe charges fhall fall upon 
 the owners only, and the freight mull bear them." 
 „., , , L ^"^ Beawes's Lex Mercatoria(d), it is faid that,where a fhip 
 
 Wliether (uch , ^ ' . . n i / r 
 
 ci-.arges, where a IS forccd to enter a port to repair the damage (he has luf- 
 foVilJ^pln To ^^^^^ ^" * ftorm, being unable to continue her voyage 
 re fit,be a general without apparent rllk of being loft, the wages and pro- 
 
 Sv-sragc. 
 
 (a) Vid. I Alag. 0. Malyne, 109, no {b) Ba.iues, 166, 
 
 I Mag. 67. Vid. Ord. oi Louis XIV. tit. Ovaries, art. 7.— 
 U) 2 T. R. 407. inf. ch. 13, § a.-~(^) 166. 
 
 vifions
 
 Ch. XII. § 7.] By Average Contribuflcns. ' 539 
 
 » 
 vifions for the crew, from the day It was refolved to feek 
 a port to refit the vefiel, to the d..y of her departure from 
 thence, with all the charges of unloading, reloading, 
 anchorage, pilotage, and every other expence incurred 
 by this neceffity, fliall be brought into a general ave- 
 ragre. 
 
 Tlie doctrine here laid down, is not vrarranted by the The rcgitive 
 authorities upon this fubjecl which we arc taught to look down in the 
 up to with the greatcft refpecl. A cafe fimilar to tl^c cafe J^ ■»••'''■'"' ^''^• 
 here put will be found in the DigeJI, where it is dated 
 that a fliip, in a voyage to Ojlia, met with a violent tem- 
 ped:, and having her rigging, niafls, and yards dellroyed 
 by lightning, fiic was forced to put into Hippo in great 
 diflrefs. There flie underwent a complete repair, pnd 
 had all necelfaries provided for her ; and having put 
 to fea again, (he arrived at OJtia., and delivered her cargo 
 in good condition. It was made a (lucition, whether the 
 owners of the cargo ought to contribute to make good 
 the damage which the fhip had fuftained ? The anfwer 
 was in the negative ; beeaufe the expence incurred at 
 Hippo was rather to repair the fhip, and put her in a 
 condition to rcfume her voyage, than to preferve the 
 cargo (a). — All the modern writers on this fubjedl adopt 
 this decifion, and hold it to be the clear law (i^). But 
 though there has never yet been any folemn decifion on this 
 point in any of the courts of WeJlminJIer, the above doc- 
 trine, as laid down in Beaivesy feems to have been coun- 
 tenanced by judges of great authority. 
 
 As, where an a£lion was brought upon a policy on Ljiu^rard v.Cur- 
 a (hip, to recover the amount of v/a^-es and provifions ^'"S> ^^ ^- **• 
 
 ^' or utter Trill. 1776. 
 
 I'^<rk ,25. 
 
 Upon a policy 
 
 (a) Navis, achirfa tem',>ej]ate efefireffuy jBu fulmhih deujlls "" ''"= ''^'P* 
 
 ■,,. , , n ■!• w.i^es while the 
 
 armamentis, el arbcre et antenna rJipponem ciLiata ejl ; ibi'jue tu-. ^^' ^..^^ under 
 
 fnulluuriis arm'imcntls ad praftns compatat'is, Ofc'iam uavhavit, et ■> r<p.*ii, not oe- 
 
 . ;•. /r> /• 1 ; • " /- • cafioncd by any 
 
 onus integrum pertuUl. i^iajitum cjl, an it, quorum onus fwt, extraordinary 
 
 uauta pro damno confcrre debeant. — ReJ^j>r,nd'it, non dthere hie accident, cannot 
 
 •„ r ii- • n J • • - r 1 be recovered. 
 
 emm Jumptts tnjlrucn/i<e ma^ts navis quam eonjervandarum vievx 
 
 cium gratia fallus fjl-ff. de leg. Rhod. dejafht, lib. 14, 2, 6.- 
 
 (^) Vid. Vinnius leg. Rhod. p. 2f)6, Kur'tche, p. 774, Loccencus, 
 
 lib. 2, c. 8, Rocr.us de nannb. not. 59, Lincrtg, torn. l> 62Aj, 
 
 ajid the other authorities there ci'.ed. 
 
 cxpendci]
 
 540 OfLofs [B.I. 
 
 expended during the time fI-« went from Bengal to Bom-^ 
 bay to repair ;«-~Lord Mamfield^ as he frequently did 
 afterwards on fn-nilar occaOons, held that, as the in- 
 furance was on \ht JJ/ip only, and the claim \vas for 
 S<K there may i.e luages, the attiou could uot be maintained. But he faid, 
 i-hi/i'uic/ '^ ^^^ there might be cafes where exceptions to the gene- 
 ral rule ought to be allowed ; but that, in order to con- 
 fider a cafe as exceptedy it muft appear that the expence 
 ' was abfolutely neceflary, and occafioned by fome of the 
 
 perils mentioned in the policy. 
 If a fliip be In the cafe qf Da Cofta v. Newnhum (a). Mr. Tuflice 
 
 obliged Xlo put . "^ _, ^ ^ •' 
 
 into port to ic BuUer cites the above paflage from Beawesy and though 
 of unioa^din^Sd '^^ ^'^^ """^ neceflary, he faid, to determine that point 
 reloading the then, he feemed difpofcd to concur in it. It was there 
 
 Cdrgo, and the , • i i ^ i n • • i i- . 
 
 expeuces of the "ctei'mmed, howcver, that where a ihip is obliged to put 
 ncrar'a ^e'^ I ^^' ^"^° ^ P°^ *■ *° ''^P^^'^J ^""^ ^^'s is neceflary for the fafetyof the 
 whole concern, the charges of unloading, reloading, and 
 taking care of the cargo, and alfo the ivages and prov'ifions of 
 the wovhnen hired for the repair^ become a general average. 
 This decifion,which,withgreat deference, feems not to have 
 been fufficiently confidered, comes very near, in principle, 
 to the do6lrine in Beaives : The only difference confifls In 
 this, that Beaives allows the wages and provifions of the 
 feamen, during the interruption, to be brought into a 
 general average ; but in the above cafe, the crew were 
 difcharged at the place where the (hip was repaired, and 
 therefore it was unneceflary to decide that point {h) . 
 Jafioncd'by'vear ^^^^'^ *^^^ leading principle of law is, that no inj ury occa- 
 aiiri tear, or fioncd by Wear and tear, or by the winds or waves, in the 
 
 ftrefs ofwealher, . ^ . niiiiri'/-«r- 
 
 is not a general ordmary courfc of the voyage, Ihall be the fubjett of 
 
 a^emge. general average. As if the fhip be damaged in her hull ; 
 
 if her fails are blown away or deftroyed, or her malts, 
 
 yards, cables, &c. are broken by the violence of the 
 
 winds and waves, the lofs muft fall on the owner alone (c). 
 
 {a)2T.R.407,poft.ch.i3,§a. {h) See the cafe of the Ca- 
 
 fenhagetiy xRoh. Adm.Rep. 494. in which Sir W. Scott\\^\^ that 
 the expences of unloading and relonding the cargo, for the pur- 
 
 pofe cf a repair, is a general average. [c] ff. hb, 14. t. 2? 
 
 de lege Rhad. de jaclu, § i. Roccits not. 60, Lawj oiOkron, 9, 
 
 ^UVl/h. 12. 
 
 For
 
 Ch. XII. § 7.] By Average Contributions. S\i 
 
 For the fliip is like the tool or inftrument of a workman 
 in his trade. If, in doing his work, he break his ham- 
 mer, his anvil, or any other inftrument, he can claim 
 no fatisfa<Slion for this from his employer. < Si conferva- 
 
 * tis mercibiiSy deter'ior faSla fit fiavis, aut quid exarmaverit, 
 
 * nulla facienda eji ccllatio : ^da dijfnnilis eariim rerum 
 
 * can/a Jity qua navis gratia parentury et earvtn pro quihiis 
 « mercedem aliquis acceperit. Nam et ft faber incudem aut 
 
 * maleum fregerity non imputaretur ei qui heaver it opus ; Sed 
 *fi voluntate vecforum, vel propter aliquem metuviy id detri- 
 < menttim faSium Jity hoc ipfum farciri oportet {a). 
 
 In favour of Beaives's doctrine it may be plaufibly 
 urged, that, as the repair is neceiTary to the completion of 
 the voyage, and therefore for the general benefit of the 
 whole concern, all ought to contribute to the expence. 
 But, in anfwer, it may be contended v/ith better reafon, 
 and upon founder principles, that when the owner takes 
 goods on board upon freight, he not only engages, by 
 the ufual terms of the charter-party, < that the fhip fliall 
 
 * be tight, (launch, and ftrong, and furnifhed with all 
 f neccflaries for the intended voyage,' but alfo that, 
 
 * during the courfe of the voyagCy the fliip fliall be kept 
 
 * tight and (launch, and furniflicd with fulEcient men, 
 
 * and other necelTaries, to the bed of the owner's endea- 
 
 * vours." And this is no more than the law requires of 
 every owner who takes goods on board, without a charter- 
 party. If, therefore, the fhip be fo damaged as to be inca- 
 pable of proceeding on the voyage, the owners are bound to 
 
 have another fliip,if one can be procured, to carry the goods 
 to the port of delivery i but it was never pretended that 
 the hire of this new flilp is a fubje^l of a general ave- 
 rage. The follovt^ing cafe, though upon the condruftion 
 of a charter-party, is not inapplicable to this fubjedl. 
 
 A fliip, chartered for a voyage to the haft Indies and „^,k, 8 T. R. 
 
 back, fprung a leak on her homeward paHage, whicli S-^gj ^ 
 
 oblieed her to put into the Cape of Good Hope, and there A ihip isohi.£."d 
 
 ■ , • , 11- • 1 TT '^y neccOity to 
 
 take out her cargo, m order to her being repaired. Upon p^,, jnioa petto 
 the fliip's return, the owners claimed from the freigliter f^-p^'r : Theex- 
 
 t ' "^ pciiccs of this re-. 
 
 a payment in nature of general average, towards the ejc- pair arc not a. 
 
 geiiclHl avcr-ge ; 
 
 ^. ^ -■■ tlie ovviicr bcinv^ 
 
 bdlimi to kf-rp 
 „ , . , , r.f f 1 • fi c the lliipiii rfp.iir 
 
 {a) fl, 1. 14, tit. 2, de leg. RhoU. d-- jait. § 2. ^,^^-,^2 j,,^ ^^^_ 
 
 pence :i»r.
 
 542 OfLofs [B.L 
 
 pence of the repair, the maintenance of the crew, and 
 other charges occafioned by the neceflity of the repair. 
 — But the court held that, by the terms of the charter- 
 party, the owners v/ere to keep the fhip in repair during 
 the voyage, at their own expence ; and that the freighter 
 was to be liable for general average only in the cafe 
 of jeltifon ; and thsreiore the plaintiff was not enti- 
 tled to recover any thing lor the expences incurred at the 
 Cape. 
 Particular ave- Xf a fhip fpving a leak in a ftorm, by which goods on 
 board are fpoiled j this is a funple or particular average, 
 or particular lofs, and not the fubje£l of an average con- 
 tribution [a]. 
 But any injury But if damage be voluntarily done to the fhip, by 
 tothTnliporher Cutting her fides or deck to facilitate a necefliiry jettifon, 
 tackle, for the q^ ^y running her on fhore to avoid an enemy, or the 
 
 general lafetv, is , r n . • r i • ii i i 
 
 a general ave- danger of a llorm (/;) \ or it the captaxn, compelled by 
 "S8- neceiTity, cut away and abandon his mails, or any other 
 
 part of the rigging or furnituie, to lighten the fnip 
 in the moment of didrefs; the lofs and c:Npences occa- 
 fioned by thefe facriHces mult be made good by contri- 
 bution. In the fame manner are defrayed the port duties 
 and other charges occafioned by taking a fliip mto a port, 
 to avoid an impending peril, and the expence of extra- 
 ordinary "afliftance there {c). 
 Bi'Ueyh: oibers Therefore, where the captain cut the fliip's cable and 
 
 V, rreffirai'C, ^ •* 
 
 I Enjizio. made other facrifices of the (hip's tackle and furniture. 
 The owners of to prevent her from being call away in a ftorm ; and alfo 
 the (hip may employed, and paid a number of men to keep the Ihip, 
 
 maintain an ac- ^ •' ^ -in re 
 
 tion againft :he which. had been damaged \n ihe ftorm, free from water 
 owner ofgoods on ]„ Q^der that a cargo of corn, which was then on board, 
 
 board, to recover . 
 
 a contribution rnight iiot be damaged ; it v/as determined that this was 
 the (hip'!i tackle, » general average, and that the owner of the fliip might 
 and expences in- maintain an action at law, againft the owner of the corn, 
 
 currecl, to favc , , •< . 
 
 the goods. to recover his contnoution. 
 
 {a) Corjulato del mare, ch. 63, vid. alfo ch. 193, 194. Le 
 Gulden ch. 5, art. 20. Laws of IVi/buy, art. 12. /?5faadenav. 
 
 n. ^q. (3) ff. ut fi:p. 14; 2,3, and 5. i. R. Marjham v. Du- 
 
 trey, Selcft Ca. of Evidence, 58 (c) Laws of ^i/i. art. ^J. 
 
 JBeawcs, i^'J, ilf<^/%, b. 2, ch. 6, 5.5. JVdk^Qod, tit, 20. 
 
 But,
 
 Ch. XII. § ;.] Bj Average Contributio?is, 54^ 
 
 But, where a fhip was captured by a privateer, but, c.-,;,:g.-,>,v. Kt- 
 en account of a heavy gale, and the fea running high, /^4. iic6, 
 the privateer coukl not take pofleflion of her, and the fliip, ^}^- -•^'- i New 
 
 Ir ' * Kcp. 37i. 
 
 availing herlelf of this, efFe£led her efcape ; but in doing — : 
 
 [0, carried fuch a prefs of fail, that llie was much capuued'T)-^a 
 llraincd, molt of her feams were opened, and the head p'ivatcer, aftcr- 
 
 ,, , • fi • 1 T a- "■^'■'^' efcnncs- 
 
 ot lier main-malt earned away. — In an action on a by ufing » prtfs 
 nolicvon this fnip, the defendant paid 4 1. per cent, into "/,(■"■> I'ut m 
 
 * 1 » ' . . doing fo, (he 
 
 court, and contended that, as the injury to the iliip ]iad fuffcrs material 
 been occafioned by an exertion which had the effetl of waT^hdd~not* 
 laving both fiiip and cargo, it ought to be confidcred as ^° ■"= ^ gncrsj 
 
 , 11 1 .• r 1 • 1 • 1 average, but a 
 
 a general ave)\:ge ; and that the proportion oi this which p3,tiai vm, for 
 would fall on the fnip would be more than covered by ^''^i'^htheundct- 
 
 ■i •* writers wtic 
 
 the money paid into court, and cited the above cafe limbic. 
 of Birhley v. PrefgravCy wherein Lord Kenymi fays, — 
 <' All the articles which were made ufe of by the mailer 
 and crew, upon the particular urgency, and out of the 
 V:fual courfe, for the benefit of the whole concern, and 
 he other expences incurred, mufl be paid proportionably 
 by tlie defendant as general average." — But the court 
 held that the injury fuftaincd by the fhip, in this cafe, 
 was not the proper fubjedl of a general average, but only a 
 particular average, for which the infured was entitled to 
 recover. — Sir James Mansfield C. J. faid, — '* The cafe 
 cited differs materially from this cafe ; for there a cable 
 was facrificed for the benefit of the whole concern. This 
 is onlv a common fea rifk. If the weather had been better, 
 cr the fhip flronger, nothing might have happened." 
 
 With great deference, it might be obferved on this cafe, obfervr>tiar,3 on 
 that the injury fuOialned by the (In'p rnufl have been, ^'''^ "'^''* 
 cither the efFect of fea damage, in the ordinary courfe 
 of the voyage ; and then, as fhe finally arrived at her port 
 c^i dcflination, the underwriters would not have been 
 liable for any lofs : Or, it muft have been the efFecl of 
 the effort to efcape, and therefore a facrifice for the 
 general benefit of the whole concern-, in which cafe, it 
 was the proper fubjeci: of a general average, and then 
 ihc vinderwriters would be liable only for the proportion 
 of this which would fall on the fhip. 
 
 As to the things on board which fiiall be liable to con- •vvi.:,t thintrj 
 tribute to a general average, the rule feems to be, — that 'h..:; u- iui,.c -o 
 the f>iip, freiglit, and every thing rc:riaining on board gci e.a! .^'.t^■>.^r.. 
 
 tliUt
 
 544 OfLofs ' [B.L 
 
 that can properly be deemed a part of the cargo, flial! be 
 fubje6: to this charge j and therefore money plate, and 
 even jewels, though their weight could not have increafed 
 the danger of the fhip, muft contribute according to their 
 value {a) ; becaufe the advantage derived from the fa- 
 crifice was not in proportion to the nveight^ but to the 
 
 Wbat not. value of the things faved. But the perfons on board, their 
 
 wearing-apparel, the jewels or ornaments belonging to 
 their perfons, (hall not contribute [h). Neither are fea- 
 men's wages liable to contribute (r) •, for if they were, 
 feamcn might fometimes be tempted to refifi when a fa- 
 crifice is neceffary for the general fafety. 
 
 It I'i tne cap. j£ ^j^g ^- £f(,^pg tj^p dan";ers which made the facrifice 
 
 taui s Qiiiv, on r r o 
 
 kis arrival in ncccflliry, and arrive at her port of deftination, the cap- 
 ^hecKimiUiLn. ^-'^"^ regularly fhould make his protefts ; and he, with 
 fome of the crew (</), muft fwear that the goods were 
 thrown overboard, money paid, or other lofs fuftained, 
 for the fafety of the (hip and goods, and for the pre- 
 fervation of the lives of thofe on board, and for no other 
 caufe {e) , The average, if not fettled before, fliould then 
 be adjufted, and it fhould be paid tiefore the cargo is 
 landed, for the owners of the fliip have a lien on the goods 
 on board, not only for the freight, but alfo to anfiver all 
 averages and contnbut'iofis that may be due (jT). 
 Remedy againft Should this be nei/leded, the particular fufFerer is 
 
 :hc captain for . "^ . . , 
 
 ncgic<£ting to Hot Without remedy : For, as it is the duty of the captain 
 
 Le'^or to^cclledt' "-' "detain the goods on board till the contribution be 
 
 **• made, an action would, I conceive, lie againft him, or 
 
 againft tlie owners, for a negleQ of that duty. If the 
 
 lofs were in money paid, an a6lion on the cafe for money 
 
 paid, would unqueflionably He againft each perfon bound 
 
 to contribute for his fhare ; if in goods, a fpecial adlioii 
 
 ' on the cafe, founded on the cuftom of trade, would lie 
 
 (5)1 Mags 62, Moiloy tit. Aver: § 4. Per BuUer, J, in Peters 
 
 Tf. MlUigan, at N. P. after M. 1787. (fi) Vid. Moiloy, 1. 2, 
 
 c. 6, fF. 14, dekg, Rhod. 2, art. 8. Laws of 0/e/-. art. 8. and of 
 IVjJb. art. 20. As to freight, vid. 2 T. R. 407. — -(f) i Mag. 
 7 1 .— — [cf) Mai. lex mere. T 1 3, fays, tv'tih mofi part of Ms com- 
 pany. {e) Beaives 14a. Moiloy^ 1, 2, c, 6, § 2. Mai. L. M. 
 
 113, (/) ii/ML.M, 113. 
 
 againft
 
 Ch. XII. § 7.] By Ai'crngs Coitributiom. 545 
 
 a'^ainll each perfon liable to contribute (a)) or a bill 
 in equity might he filed againft them all. 
 
 The mode of afcertaining the amount of each perfon's ^^-^ '''•<' '■ontrl- 
 
 ... . 11^1-1 buiicii Iball be 
 
 contribution, is not very accurately denned m our law. uulcd. 
 — It is ufuaily done, upon the (hip's arrival at her port 
 of difcharge, by afcertaining the neat value of the fliip, 
 freight, and cargo, as if nothing had been loft, but all 
 had arrived fafe ib) . Thefe are to be valued at the price 
 they would fetch in ready money at the port of difcharge \ 
 and the neat amount, after deducting all charges, is the 
 fum wliich is fu'ojeol to the contribution [c). And each 
 perfon's fhare of the lofs will bear the lame proportion 
 to the value of his property, as the whole lofs bears to 
 the aggregate value of the liiip, freight, and cargo. 
 
 Different foreign Hates have eftablifhed a variety of V Z'"''\^^T? 
 pofitive regulations, as to the degree in which the fliip liubic. 
 Ihall be liable to contribute. Some, as in England, make In ErghmJ the 
 the fhip contribute for her full value and the freight {d) ; {l!^VrTuii'v"iu • 
 others, for half her value, and one third of the freight j a"<i ficigiu. 
 others again, for half the value of fhip and freight. 
 
 In Engbudy the fliip is valued at the price flie was J''^ ""'P \?^^ 
 
 1 1 -11 /• I 1- ncglit are va- 
 
 worth on her arrival at her port of delivery ; and almoft lurd at wb.u 
 all forekn ftates follow the fame rule (e). The vaUie of '>'<>■ arc v^onh at 
 
 . '^ . . ^ ll.c poit at dcli- 
 
 the freight is the clear fum which the fliip has earned very, 
 ufter feamen's wages, pilotage, and all fuch other petty 
 charges as come under the denomination of />f^/y' averagesy 
 are deduced-, of wiiich the cargo bears tv/o thirds, and 
 the fliip the remaining third. 
 
 As to the mode of valuing the jettlfon, the rule of How the Jfttifon 
 
 ^1 »» 1 • /• n ,• . n- • 'hall be valued. 
 
 tiie Koman law is, * rortio nutem pro ejiimatione rerum 
 
 ♦ qua falva fuuty et ear urn qua: amijjle funty prajlar'i folet, 
 ' Nee ad rem pertinety ft hiCy que aimjfcs funty pluris venirt 
 
 * poieruni ; qucniam detrimcntiy non lucri, Jit prajlaiio. Sed 
 
 (d) Mo. 297, S/jcw. Ca Pari. 19, R. BiriLy v. Prefgravcy 
 
 I Kaft 22c. fup. 542. {D It is ncceiury to take the ^oods 
 
 iofl into this account, otlicrv/ife the owner of them would be the 
 
 only perfon v.-ho would not be a lofer. (r) Vid. i Llag. 69, 
 
 lUlbjyy tit. Aver. § 15. {d) Konigjlergh, Hawhtnghy and 
 
 Ctptnhagm. Vid.iilAi^. 207,237, 3J9. {r) 2 Zlag. ut fup. 
 
 VOL. n. c « ;,,
 
 54^ Of Lofs [3. L 
 
 * in his rebus, quannn r.omiiie conferendum ejfy /tjlimatt9 
 
 * dibeat haheti, fion qiianti empiaj Jintf fed quar.ti venire 
 * pojfunt [a).' In llngland it was formerly the cuflom to 
 value goods at prime cojiy if the iofs happened before half 
 the voyage was performed ; but if after, then at the price 
 they would have borne at the port of delivery {b). But 
 that dillinftion is exploded, and it is now the fettled prac- 
 tice with us, to eftimate the goods loft, as well as thofs 
 faved, at the price they vv^ould have fetched at the port of 
 delivery, on the fiiip's arrival there, freight, duties, and 
 other charges, being deducted (r). 
 
 Under the gene- If {l^e facrifice be made to avert any of the perils in- 
 
 ral words of the • n i -i • --i i i ,- • i • i 
 
 poiicy,theinfuier lured agamit, the contribution v/iil be a lois witnin the 
 js bound to pay po}Jcy_ ^i\nd it makes no difference whether the infured 
 
 all average con- -^ • 
 
 tiibuiions. pay towards, or receive, the contribution. He muft, in 
 
 either cafe, bear his proportion of the general lofs, and 
 this ought to fall on the infurer. The doctrine of Rocciis 
 is, * JaMii fa5Ioy oh maris tempejtatem, pro fiiblevanda tiaviy 
 
 * an teneantur ajfeciiratores ad fohendum tcjliinationem reruni 
 ^ jaUariim domino ipfarum ? Die cos nan tejieviy quia pro re- 
 
 * hits jaSlis f.t ccntributioj inter omiies merces habentcs in ilia 
 
 * n-jvi pro fohcndo pretio doraino ipfarum ^ et ideofi affccuratus 
 ' rccupcrat prelium return jaHarumy non p'JeJl agere contra 
 
 * ajfccuratores ; tavien tcnentur nffccuratores ad reficicndium 
 
 * illam ratcm ct fortioneiny quam folvlt nffecuraius in illam 
 
 * ccnirihutionern faciendo inter omnesy habcntes merces in ilia 
 
 * naz>i-y qua portio cum non' recuperetur ah aliisy haheiur pro 
 
 * dipcrdita, ct proiruie ad illam portion ein tenentur affecura- 
 
 * tores [d).' 
 
 Where goods iitfurcd have been throv/n overboard for 
 the genera! benefit, it would feem that the owner of the 
 goods ought, in the firft inflance, to claim the accuf- 
 tomed contribution, and refort to the underwriters only for 
 the refiduCj which is in fa6l the true amount of his lofs.If, 
 howevei", this contribution fnould, from whatever caufe, 
 remain unpaid after the voyage is ended, Pothier holds that 
 
 {a) Dig. lib. 14. tit. 2. De lege Rhod.' dejacluy § 4.— — 
 
 {h) Mai Lex Merc. 113. (V) MoUoy, tit. Aver. § 15. Vid. 
 
 a Mog, 100, 28 s', 339. ■ ' id) Roicusy h.t. n. 62. 
 
 8 the
 
 Cli. XII. § 8.] By Salvage. ' 547 
 
 the undcnvriter will be liable for the whole value of the 
 ieitifjti i and they will have a right to fue for conrributioii 
 in the name of the infnred (j). I cannot i>pprove of 
 this pratSfcice, ic permits an abandonment, in a cafe where 
 there c:\n only be a partial lofs. 
 
 Sea. VIII. 
 Of Lc/s by Salvage, 
 
 AS the expence of falvage, like avenge ccntvibutions, 
 Is generally a charge for which the infurcr is liable, 
 within the meaning of the policy, the fubject of fal- 
 vage mvift, like that of average, fometimes incidentally 
 occur in the confideration of partial loflesj and therefore 
 it will be proper, under this head, to enquire in what 
 cafes, and to what amount, falvage {hall be a lofs wiihin 
 the policy. 
 
 Salvage originally meant the thing or goods faved from 5^]^^ . ^j,,^ 
 fiiipwreck or other lofs; and in thatfenfe it is generally to 
 be undenlood in our old books. But it is at prefcnt 
 more frequently underfbood to mean the compenfation 
 made to thofe by whofe means the fhip or goods have 
 been {^n-ed from the eflefts of fiiipwreck, fire, pirates, 
 enemies, or any other lofs or misfortune. This compen- 
 fation, which is now ufually made in money, was, before 
 the ufc of money became general, made by a delivery of 
 part of the effe£l:s faved. At common law, the party At crm non luv 
 who has faved the goods of another from lofs or any im- ^^'^ ^j^'^V ,'j|',',',* 
 mment peril, has a lien on the goods, and may retain them favt:<l, til u:y- 
 
 mcnc of i.it*j.'e. 
 
 in his poilclhon till payment of a reafonable falvage, like 
 that which a taylor, an innkeeper, or a common carrier, 
 has upon the cloihes, the horfes, or the goods of his 
 cuftomcr {b.) 
 
 {a) Via. PctlAer, h. t. n. 52, 165. {b) ^tx Holt, C J. 
 
 U Hartford v. Jonesy I Lord Ray. 393 ; 2 SJk. 654; Vid, 
 Ermri^. torn. 2, p. 2C2, Pi.tJ:Ur, b. t. n. is.}. 
 
 ^ 2 Every
 
 548 Of Ufs [B.I. 
 
 How faivage js Every maritime lliite has certain regulations to afcer- 
 tain m what caie, and to what amount, lalvage Ihall be 
 paid. To attempt to give an account of aU fcch regu- 
 lations, in foreign countries, would be more a work of 
 curlofity than of utihty.-— It will be fufficient for our 
 prefent purpofe, to ftate iliortly th* regulations which 
 the law of England has eflablifhed on this fubjeCl, and 
 which will be principally found in our flatiites j fomc 
 of which arc of very ancient date (a). But the regula- 
 tions upon this fubjedl which are now principally in 
 force, are found in the flat. 12 An. Itat, 2. c. 18. and 
 fubfeqaent afts^ made for the proteclion of iluys and goods 
 ilranded on the ccafts of this kingdom. 
 By 12 An. ft.it. That ftatute, after directing the means to be employed 
 Pel foiuv cm- for the prefcrvation of f})ips in diilrefs, ena«i-La, (§ 2.) 
 ployed mtnefai- t ^"^j^^t ^11 Dcrfous who Ihall be employed in preierving 
 
 vnge of iiiip<, ' •■ r i i a 
 
 &c. fhjii within < fhipa or veflels in diil:vefs, or their cargoes, fliall, 
 
 30 d.iys be \i.\\'\ . ... . , , . , 
 
 a ic.'.fonabie re- * withm 30 days after the iervice pertormed, be paid a 
 '^'^'^^- * reafonahle reivard for the fame, by the commander or 
 
 * other fuj-)erior oflicer, niariners, or owners of the fliip 
 Hov fccmed to * or goods fo faved ; and in default tliereof, the fhip, 
 ^^'^"^ *■ vefl'el, or goods fo faved fliall remain in cuftody of the 
 
 ♦colle£lor of the cuftonis or his deputy, until ail charges 
 
 * Ihall be paid, and until all perfons fo employed fhall 
 
 * be reafonably gratified for their trouble j or good fecu- 
 
 * rity given, to the fatisfa8.ion of the feveral parties that 
 ir the psrties * are to receive the fame. And in cafe the commander 
 dif^jrce .-ib.iut ^ q^^^^x fup^iior o-Ticcr, mariners, or owners, of the 
 
 the ijuan'um, - ' ' ' 
 
 rh-cc nejgbbour- « fjjjp or goods io favcd, fliall difagree with the faid 
 
 ;• g juCticei lh.ill „ . , _ ... ^ r ^ 
 
 i.i.<juH It. * olnccr 01 the cuitoms (^), touching the money delerved 
 
 *■ by the perfons fo employed, the commander of the 
 
 (.0 3 Ed. I. c. 4 ; 4 Ed. I. c. c ; 27 Ed. HI- c. 13 
 
 {h) Where the fal,-:\ge is made by a perfoii emjjloyed by the 
 mailer of the vefl'el in diftrefs, though under the infpeiiion of 
 the olHcers cf the cuftoms, the perfon fo employed fhall be con- 
 fidered as the agent of the owners ; and a difagreeraent between 
 him and the owners, as to the quantum of his charges, cannot 
 be adjufted by three magiftratcs, that net being a cafe vHthia 
 this ail. 11. Baring v. Day, 3 Eaji 57. 
 
 < (liij
 
 Ch. XII. S 8.] By Salvage. ,549 
 
 ' (hip favetl, or tlie owner of the goods tlierein, and the 
 
 * faij officer of the culloras may nominate three neigh- 
 
 < boui'ing juftices, wlio fl^all adjuft the quantum of the 
 
 < gratuitv to be paid to the fcveral perfons a6lhig In the 
 
 < ialvacre of the Ihip or goods; and fuch adjuftment 
 ' fhall be binding to all parties, and fliall be recoverable 
 
 < in an action at lav.- to be brought by the refpedlive 
 
 < perfons to whom the fame fhall be allotted by tlie juf- 
 
 * tices. And in cafe no perlbn (hall appear to make his \U\v ti.c jooi^s 
 
 * claim to all or any of the goods fiived, then the chief diipofcd of, it 
 
 < officer of the cuftoms of the neareft port, fhall apply "oo^uer appear. 
 ^ to three of the neareft julliccs, who fliall put him or 
 
 ' feme refponfible perfon in poUefllon of tuch goods, 
 
 * fuch juftices taking an account thereof in writing, to 
 
 * be figned by fuch officers of the cuftoms ; and if the 
 
 ' goods Jhall not be legally claimed within 12 months, by - 
 
 * the right owners, they fliall be publicly fold, or, if pe- 
 ' rifliable, forthwith fold, and the produce of the fale, 
 
 * after all charges deducted, with a fair account of the 
 
 * whole, fliall be tranfmitted to the Excbcqucry there to 
 
 * remain for the benefit of the owner, when appearing ; 
 
 * who, upon affidavit, or other proof of his right, to 
 
 * the fatisfaifiion of one of the barons of the coif, fhall, 
 
 * upon his order, receive the fame out of the Exchequer.* 
 
 This ftatute alfo prefcribes thepunifhment to be in- 
 fliclcd on perfons guihy of plundcrii;g or dcllroying fliips 
 in diftrefs. But this being found infufncient to reprefs 
 tliefe barbarous practices, the ilat. 26 r?. II., c. 19, has 
 enacted a variety of further regulations for the more effec- 
 tual puniftiment of offenders and the better protection 
 of fhips in diftrefs. 
 
 On the fubjeCt of falvage, the ^th fefllon of this aft b^, ,r, r ir. 
 provide?, • That in cafe any perfon, not employed in the "^ ^^' ■ 5- 
 
 '' ^ . , , I'erl'ons, il.oiigh 
 
 * falvage of the fhip or goods, fliall, m the abfence of n.ir empfivJ, 
 
 * the perfons fo employed and authorized, fave any fuch ]^| " n^',' ^^^ 
 
 * fliip or goods, and caufe the fame to be carried, for g""^". "r S'** 
 
 , , . no: ice of :iny 
 
 < the bencnt ol the owners, mto port, or to any near ad- j;,«,(is unlawful. 
 
 * joining cuftom-houfe, or other place of Uic cuftody, ^l ^^ZfcllC' 
 i immediately giving notice thereof to fome magiftratc '^'y" ^<^ ciitiile4 
 
 < or cuflom-houfe or cxcife-ofiicer •, or fliall dlfcover to 
 
 F 3 * fuch
 
 Sso Of Lofs [E.I. 
 
 ' fiich rnr.gi(l:rr,te or ofnccr where fiich goods are v/rong- 
 ' frJly bougiitj fold, or concealed, then fuch perfon ihall 
 
 * be entitled to a reafonable reward for fuch fcrvices ; 
 
 * to be paid by the mafter or CAvners of fuch veflels or 
 
 * goods ; and to be adjulled in cafe of difagrecnient 
 
 * about the quantum, in like manner as the falvage is to 
 
 * be adjufted and paid by virtue of the flat. 12 Ann.'' 
 
 By §6. The _^j,^^l 1^ ^ g < -por tiie better afcertainine; the falvage 
 
 He.iriit mar';!- j ^ ' o e 
 
 lure, collector * to be paid in purfuance of this and the former a£t, 
 or chief co°fla- ' the jufticc, mayor, baihfF, collector of the cufloms, or 
 f*!e ih.iii cnii a < chief conftable, who fhall be neareft to the place where 
 
 iTircfing of the , , . - 
 
 fJieiifF, mngic * the ihip or goods mall be Itranded, fhall forthwith give 
 !7'!!l ''^'^" ^'^'^ * public notice for a meeting, to be held as foon as pof- 
 (ri^poy p.-ikns < fible, of the flierifF, or his deputy, the jufbices, mayors, 
 &c. * or otacr cniei magiltrates 01 towns, coroners, or com- 
 
 * miihoners of the land tax, or any five or more of 
 ' them, who are required to give aid in the execution 
 ' of tliis and the former att, and to employ proper 
 
 * perfons for the faving of fhips in diftrefs, and fuch 
 
 * fliips and efledts as fhall be ftranded or caft away ; 
 And examine c ^j^,^ ^jfo to examine perfons on oath touching the f^ime, 
 ;;<c. to arijutt * or the falvage thereof, and to adjuft the quantum of 
 Uh-sTc'!"'""' ° * ^^^^"^ falvage, and diftribute the fame among the per- 
 
 « fons concerned in fuch falvage, in cafe of difagree- 
 S:.:ch n'.igiftiate, ' nient among the parties, or the fa;d perfons ; and that 
 a^d.iy. * every fuch magiftratc, <?cc. attending and acting at fuch 
 
 * meeting, fnall be paid four fliillings a-day for his ex- 
 
 * pcnces, out of the goods faved by their care or direc- 
 y>y § -, if the * tion. — Provided (§ 7.) that if the charges and rewards 
 uh.go be „ot i r^^^ faiva^re, dircaed to be paid by this and the former 
 
 p;:ifl, or (ecurity '^ , . , ^ . 
 
 gui-:, witi-,in4o * acl, fhall not be fully p:ii<i, or fulhcient fecurity given 
 ti'' rh J o.ift!,ms * ^'^■•^ ^^^'^ ^"""^^^ within 40 dr.ys after the fervices per- 
 
 f5in;iiaifcnu)p.ey < formed, the oflicer of the cuiloins concerned In fuch 
 
 i'vi'iii of r.iic of .^ , . 
 
 the (iiip 01 goods * falvage fnall borrow or raus io much money as fliall 
 
 i,i'.'!!' ''''^^'''^^" < be fufTicIent to pay fuch charges, or any part thereof 
 
 ''' on pay;T:ciit ^ ■' o ' / r 
 
 <'f prni-pii -^r.d < remaining unpaid, or not fecured as aforefaid, by or 
 fcuih ' "** * upon one or more bill or bills of file under his hand 
 
 * and leal, of th.e (hlo or vcHel, or cargo faved, or fuch 
 
 * part theieof as fhall be fulBcient, redeemable on pay- 
 ' mcnt of the principal fum borrowed, and interell at 
 
 * 4 f'/' .'".".'.■.•'. per annum.' 
 
 There
 
 Ch. Xir. § S.] By Sahaie. 55 , 
 
 There are many other regraations in this a£l, as to the 
 perfoiis by whom this and the former ncl fliall be put in 
 force, and as to the deteclion and punifliment of of- 
 fenders. The foregoing extriicls which have been made 
 for the purpofe of uiewing that, by our law, the falvage 
 of {hips or goods ftranded or call away, is a reafonahle fa- 
 tisfaftiou to the perfons employed in faving and pro- 
 teciing them, for their labour ; to be eilimated^ not ac- 
 cording to their own arbitr ^>ry will, but by perfons of tlis 
 firft refpectability in and near the place where the misfor- 
 tune happens. 
 
 With refpecl to falvnge in the cafe of recapture, by How faiv.ige 
 the marine law oi England ^ as praQifed by our courts of w^a""rcgui.,t'/d'by 
 admiralty, previous to any parliamentary regulations, if ^"^^ mjiine Uw. 
 the fnip or goods were retaken before condemnation, 
 till which time the y.vj- pojlilimui'ii continued, the original 
 owner was entitled to have reftitution decreed to him, on 
 payment of a reafofiable falvage to the recaptors. But 
 byfeveral ftatutes {a\ falvage upon a recapture v/as fixed 
 at certain rates, according to the length of time the re- 
 captured ihip was in the hands of tlae enemy. It will be 
 fufficient, however, for our prefent purpofe, to flate the 
 regulations nov/ in force as they v/ere cflablifhed by ths 
 laft prize act. 
 
 By ftat. 43(^.111. c. ito. §39. ^f any fliipor vefT:!, Y.y ^^n.\u. 
 
 * taken as prize (I), or any goods therein, fhall appear, in ^- '^ > '''"P'» 
 
 « the court of admiralty, to h.ave belonged to any of his recapTur'^rt '""^ 
 
 * Majefty's fubjccls, whiji were before taken by any of his '^■'■" P^V' "" f«* 
 
 . i^r • n > • I ■ r , ■, t.Tk-n by men of 
 
 * Majelty s enemies, and at any time afterwards retrken wa-, one dg/,,/,, 
 
 * by any of his Majefty's fliips, or anv privateer, or other '^ ''^' P'"'^^'"^. 
 
 j/i J X ' one /ixf h , f ^^f 
 
 ' {hip or veiTel under h.\i Majefty's protection -, fuch {liips, '"■^'v-ise. 
 < veflels, and goods fliall, in all cafes, (fave as hereafter 
 
 * excepted}, be adjudged to be reftorcd, and fliall be ac- 
 
 (fl) Vid. 13 G. II. c./*. and 29 C. II. c. 34. (3) The 
 
 rijfht of reftitution undt- r this aft is confined to cafes of capture 
 during aftiial holUlitirs ; and cannot be extended to the cafe of a 
 vcfTcl confilcated in time of peace for an alledged violation of the 
 rrvenu; laws of Fran-r. Cafe of the Jeune Voyageur, 5 Rob. 
 Adra. Rep. I. 
 
 F 4 * cordinjily
 
 55^ 
 
 OJLoJs 
 
 [B.L 
 
 If r-tnkrn Ly 
 J-usli jointly, the 
 j-irlge of the acl- 
 jiiir.uty fhall 
 citfer fiich lil- 
 v.(gc, and inliich 
 P':')uoriions,a> he 
 ihjjl cieem fit. 
 
 But if the rfcap- 
 turrtl iViip be (ct 
 f<i:th by the 
 e'lciny a> a Ih'f 
 of luar, ihc ihiil 
 b:; l.iicnil p:ize 
 til the rccaptors. 
 
 TliCinfured need 
 Hilt dtclar: for 
 lalvagc, but may 
 ■ (.i.^vcr under a 
 (ii'clat-ttiuii i'lr 
 t u: lofs wiiicli 
 tKC.ifioDcd it, 
 .iiid for the di- 
 migc the goods 
 f'Vf-H have luf- 
 triiii'.d. 
 
 The court o! ad- 
 ni lalty iLgL-lates 
 n.c rare of (a!- 
 v.i^e ill the cafe 
 lit' lecaptuitd 
 neutrals. 
 
 * cordingly reftcrcd, to fuch former owner or owners, he 
 
 * or they payhig for falvage, if retaken by any of his 
 
 * Majejiys Jhips, qkc eighth part of the true value thereof, 
 
 * to the flag officers, captains, Sec. to be divided as the 
 
 * fame a£l directs: And if retaken by any privnteer, or 
 
 * other fnip or veiTel, one Jixth part of the true value of 
 
 * fuch fliips and goods, to be paid to the owners, officers, 
 
 * and feamen of fuch privateer or other veffel, without 
 
 * any dedudlion. And if retaken by the joint operation 
 ' of one or more of his Majeily's fhips, and one or more 
 
 * private fhips of war, the judge of the court of adml- 
 
 * ralty, or other court having ccgnii'^ance thereof, fliall 
 
 * order fuch falvage, and in fuch proportions, to be paid 
 
 * to the captors, by the owners, as he Oiali, under the 
 
 * circumdances of the cafe deem fit and reafonable. But 
 
 * if fuch recaptured fnip or vefTel fiiall appear to have 
 
 * been fct forth, by the enemy, as a fliip or vellcl of war, 
 
 * the faid fliip or velTel fnall not be refiored to the former 
 
 * ov/ners ; but fliall, in all cafes, whether retaken by any 
 
 < of his Majeily's fliips, or by any privateer, be adjudged 
 
 < lawful prize for the benefit of the captors.' 
 
 ^ As the infurcr does not, in exprcfs words, undertake 
 to pay falvage, perhaps the infured could not declare for 
 a lofs hy the payvient of f ah age. That form of declaring 
 might, perhaps, be thought too general. Indeed it would 
 be ufelefs to declare fo, for he may declare as for that fpe - 
 cics of lofs which occafioned the payment' of falvage, 
 and recover the falvage atlually paid («). And upon 
 the fame declaration he may recover for the lofs, if any, 
 fuftaincd by damage done to the goods faved. 
 
 It is ufual, in cafes of capture and recapture, to declare 
 upon a total lofs by capture, and upon this the plaintiff 
 may recover the amount of the falvage and expences. 
 
 Ih'rfe regulations relate only to the falvage of Brltljh 
 fliips recaptured. In the cafe of tieutral (hips captured 
 by the enemy, and retaken by Britijh men of war or 
 privateers, the courts of admiralty have a difcretionary 
 
 (a) R. Cury y Kin^, Ca. Ten^p. Bard. So^. Vid. inf. 
 
 cl'. i6, § 2. 
 
 2 powder
 
 Ch.XlI. § 8.] By Salvage. $S^ 
 
 power of allov/ing fucli falvage, ?.nd in fuch proportions, 
 as, under the circumllances of each particular cafe, may- 
 appear juft. But there is no pofitive law or binding re- 
 gulation, to which parties may appeal for afceitaiiiing the 
 rate of fuch falvage. — Sir V/illiatn Scoit holds (a), that no 
 falvage is due upon recapture of neutral property out of 
 the- hands of the enemy, unlefs it appear from the ordi- 
 nances, or the pratlice of the prize-courts of the ene- 
 my, that the firft fcizure was made under fuch circum- 
 llances as would have expofed the goods to condemna- 
 tion in the hands of the enemy. 
 
 As to a'Jiesy our courts of admiralty hold that the mari- In the cafe of 
 time law of England having adopted a moil liberal rule of /,^^,/ 
 rcllitution on fidvage, with refpecl to the recaptured pro- 
 perty of its own fubjecls, gives the benefit of that rule 
 to its allies, till it appear that they aft towards Briil/Jj 
 property on a lefs liberal principle : In fuch cafe it adopts 
 their rule, and treats tliem according to their own meafure 
 of juftice {b). 
 
 Before an adion will lie for a lofs by payment of fal- Salvage upon re- 
 
 ' '■ '_ capture mult be 
 
 vage upon a recapture, the amount of fuch falvage muft paid under an 
 
 have been afcertained by the decifion of a court of a'^c^om'ef^d^i! 
 
 .admiralty, which alone has jurifdic^ion to determine "^'y> '« entitle 
 
 . . , ^ . . ^ , ^ .the infured to 
 
 as to the rigm to falvage m every luch cale ; and, m claim it from 
 the cafe of the recapture of neutrals, as to the atnoi:tii ^"'^ undciwn- 
 of fuch falvage. 
 
 When the falvage, howev^er, is very high, which may 
 happen in the cafe of lhip\Treck, the infured may abandon, 
 and call upon the infurer as for a total lofs, as we fhall 
 have occafion more particularly to obferve hereafter, in 
 the chapter upon abandonment. 
 
 {a) In the cafe of the Carlotta, 5 Rob. Adm. Rep. 54. 
 
 (i) So laid down by Sir IViUiam Scottj in the cafe of the Santa 
 Cruz, I Rob. Adm. Rep. 6j, in which cafe this fubjedt will 
 be found cor.fidered much at large, and in his very luminoua 
 manner. 
 
 Sea.
 
 ?54 OfLofi 
 
 Sea. IX. 
 
 Of Lcfs by the Death of Slaves. 
 
 AS the aft for the abolition of the African flave trade, 
 only prohibits and declares unlawful infurances upon 
 the trade fo ahollped (a), infurances upon a trading in 
 Jfrican Haves, by the fubje£ls of any foreign ftate, may 
 ftill, I conceive, be legally made in this country. For 
 this reafon, and becaufe qucftions may yet arife on poli- 
 cies which were effeded in this country before the abo- 
 lition of tliis trade, it will be proper here to iliev/ what 
 fliall be deemed a lofs by the death of flaves. 
 Whether natural Though we have now no ftatute in force for the regu- 
 t'aVgafnr'' l^f'Of' of the flave trade, it is very improbable that in a 
 cafe of foreign (lave trade, our courts would be difpofed 
 to tolerate an infurance againft the mortality of the Haves 
 by natural death or ill treatment. It may therefore 
 be proper here to ihew in what cafes the death of flaves 
 (hall be deemed a lofs within a policy on flaves. 
 Whether a lofs If the maflcr of a flave Ihip miftake his courfe, where- 
 tve^boJrcf'ira ^y a fcarcitv of water enfues, and a number of the 
 fcarcity of water {]aves are thrown overboard for the prefervation of the 
 
 coulrl be infured „ . , ,, nrin i-ii 
 
 againft, fhip s crew and the reft of the flaves, this has been 
 
 holden not to be a lofs hy the perils of the fea [b) : Nor 
 
 would it be a lofs of any uefcrlption v/ithin the common 
 
 policy ; and no words, 1 conceive, could be legally in- 
 
 ferted in a policy to meet fuch a cafe. 
 
 L'fromthticr.gih So Vv'here a Have fliip, on her paflage to the IFcfl 
 
 There ^ht^^izzx- ^^dies^w^i fo retarded by bad weather and other unavoid- 
 
 ;ity of provi- ^\q accidents, that from the extraordinary length of the 
 
 iions, and fonie . ^ 
 
 f.r' the flaves riie voyagc, the proviflons for the flaves were exhaufted, and 
 
 ^f-*'h. this cafe, though the failure of the pi-oviflons was occa- 
 
 fioned by tlio perils of the fea, and the c'.eath of the flaves 
 
 {a) Vid.ftat. 47 G. III. c i,6, § 1.5. {b) R. Gresf^n 
 
 V. Gilbert, B. R. 23 G. III. Park. 62. inf. ch. l6j $ 2. 
 
 was
 
 Ch. XII. § 9, 10.] Bj Death ofSU-ves, kc. ^^^ 
 
 was the neceflary confequence of this ; the lofs muft be 
 afcribed to natural death {a). 
 
 If, in a policy on flaves, mortality by ?««//;?)• be included What (hiii be 
 in the perils iufured a^-ainfl ; and, in a mutiny, fome are •^"'""''7 by 
 
 ^ . . . . mutiny. 
 
 killed, others die of their wounds received in the mu- 
 tiny, others of chagrin, others by fwallowing fait water, 
 others jump overboard and are drowned : The under- 
 writers are liable for thofe who are killed, or mortally 
 wounded, in the mutiny j but not for thofe who died from 
 the other caufes {b). 
 
 Sect. X. 
 Of Lofs by the Death of Am?uals. 
 
 Valhiy and, after him, Pothier^ clafs animals and negro 
 flaves under the fame head, and apply the fame rules to 
 both {c). — According to thefe learned writers, if animals, 
 fuch as horfcs and other cattle, or beads or birds of curi- 
 ofity, be infured in their paflage by fea ; their death oc- 
 cafioned by tempells, by the fliot of an enemy, by jetti- 
 fon in a ftorm, or by any other extraordinary accident 
 occafioned by any of the perils enumerated in the policy, 
 is a lofs for which the underwriters are liable. Not 
 fo, if it be occalloned by mere difeafe or natural 
 death (J). 
 
 {a) R.Tathamv. Hodgfn, 6 T. R. 656. {b) R. Jor:sr. 
 
 Schmoll, I T. R. 150. u. (f) Vid. Falin h. t. art. 11, 
 
 15, Pothlerh. U n. 66 {d) Falin h. t. art. 29, p. 76, 
 
 Potlner h. t. n. 66, Emerig, torn. I. p. 393. 
 
 Sea.
 
 SS6 O/Lcfi [B.L 
 
 Sea. XI. 
 
 Of fraudulent Icjfes* 
 
 AT the conclufion of the fixth fection of the prefcnt 
 chapter (^0 we fliortly adverted to the punifliment of bar- 
 ratry by the laws of other countries. We will, in tlie 
 prefent fe£lion, {hew how piracy and other offences of 
 this nature, and alfo the offence of procuring wilful and 
 fraudulent lofles, with intent to defraud infurers, are 
 punifhable by the law of England. 
 How piracy is The crime of piracy, or robbery upon the high fcas, 
 punthcd by the jg an ofFcncc againft the univerfal law of fociety ; a pi- 
 Ag.u . . ^^^^ being, as Lord Coh defcribes him, hojlis hiiniani ge- 
 neris. By the ancient common law, piracy, if committed 
 by TifuhjeB^ was held to be a fpccies of tvcafon, being 
 contrary to his natural allegiance -, and by an alien^ to 
 be felony only : But now, fince the flatute of treafons, 
 25 £J. III. c. 2. it is hoidcn to be only felony in a fub- 
 jeft {])). Formerly this offence was only cognizable by 
 the admiralty courts, which proceed by the rules of the 
 civil law ic). But it being inconfiftent with the liberties 
 of the nation, that any man's life fhould be taken away, 
 unlefs by the judgment of his peers, the ftat. 28 i/. VIII, 
 c. 15, ellabliflied a new jurifdi6lion for this purpofe, 
 which proceeds according to the courfe of the common 
 law (J). 
 
 The offence of piracy by the common law, confifls in 
 the committing of thofe afts of robbery and depreda- 
 tion upon the high feas, which, if committed upon 
 land, would amount to felony there {e). But by Hat. 
 J I and i^W. III. c. 7, jj 8 and 9. < If any natur4 
 * born fubjedl commit any a6l of hoHility upon the high 
 
 {d) Sup. 5 34 [V) 5 Inft. 113. 'c) I Hiiivh. p. C. 
 
 c8. {d) Vid. 4. Bl Com. 71. {e) i Ha^v. P. C. 
 
 « fv'US,
 
 Ch. XII. §11.] Fraudulent, 557 
 
 * feas, agnlnfl others of his Majefty's fubje£ls, under 
 
 * colour of a conimlflion from any foreign power ; 
 
 * or if any commander or mariner fhal! betray his trult, 
 
 < and run away with any fliip, boat, ordnance ammu- 
 
 < nition or goods ; or yield them up voluntarily to any 
 
 * pirate ; or bring any feducing meflage from any pi- 
 
 * rate, enemy, or rebel ; or confult, combine, or con- 
 
 * federate with, or attempt to corrupt, any officer or 
 
 * mariners to yield up, or run away with, any fliip or 
 
 * goods, or turn pirate ; or {hall lay violent hands on 
 
 * his commander, to hinder him from fightmg in dc- 
 
 * fence of his fliip ; or fliall confine him, or make, or 
 
 * endeavour to make, any revolt in the fhip, ihall be 
 
 * adjudged to be a pirate, felon, and i-obber, and fhall 
 
 * fuiFer death and lofs of lands, as a pirate, felon and 
 
 * robber on the fea ought to fuffer, whether he be 
 
 * principal, or merely acceflary by fetting forth fuch 
 
 * pirates, or abetting them before the fa£l:, or receiving 
 
 * or concealing them or their goods, after it :' And the 
 ftat. 4 G. I. c. II. exprefsly excludes the principals from 
 the benefit of clergy. By the ftat. 8 G. I. c. 24, trading 
 with known pirates, or furnlfliing them with ftores or 
 ammuniuon, or fitting out any veflel for that purpofe ; 
 or confederating or correfponding with them, or for- 
 cibly boarding any merchant vefTel, though without 
 feizing or caiTying her ofF, and deflroying or throwing 
 any of the goods overboard, fliall be deemed piracy ; 
 and fuch accefTaries to piracy as are defcribed in the 
 above flat. 1 1 and 1 2 fK III. are declared to be 
 principal pirates, and all pirates convicted by virtue of 
 this a6t are made felons without benefit of clergy. Thus 
 does the ftatute law of England aid and enforce tlie 
 law of nations, as a part of the common law, by inflicfl- 
 ing an adequate puniflimcnt upon oiFences againft that 
 univerfal law. 
 
 The ftat. i An. ft. 7, c. 9, § 4 and 5, makes it a The lAn.^.t, 
 
 fimple felony in any mafter or mariner, wilfully to caft J^^,^; j'^^ddi',,," 
 
 away, burn, or dcftroy any fliip to which he belongs, ;">v 'hip, 10 ti-e 
 
 to the prejudice oi tne oivner^ or of any merchant ow.,crs of ihc 
 
 Viho Jljall had goods thereon \ and takes away tlie be- fl^'p «" g" tis " > 
 
 ' Luard; and i.tk-s 
 
 Ilwfit awy citrgy, if
 
 55$ OJLcfs [B.L 
 
 nefit of clergy fr«m iuch offences, comjnitted on the high 
 fcas. 
 Thc4(7.I.c.i;, Though the hifurcrs are only anfwerable for lofTcs 
 
 extends this to • r- r ^ •> i ■ /• , ••j<.i„_ 
 
 the cife cf avifing from the acadcuts and rmsfortiwes incident to ma- 
 the owner or ritime adventures, and not for fuch as proceed from 
 
 ni:Uler who fhall r , • / i i 
 
 •leftroy any (hip contrivancc or defjgn on the part of the mlured ; yet the 
 If thc''ownel's''oT temptation to defraud infurers by the wilful and Con- 
 or ui)(it:rvvri:cr» ccrted dcflru^lion of fliips and goods infured, in order 
 
 upon, floods. . , ,- , 1 1 • r .11 
 
 to give a colour to fraudulent claims lor pretended 
 loflcs, has been found produclive of fo many evils, that 
 it became neceffary for the legiflature to interpofe its 
 authority to reftrain them : And therefore, by flat. 4 
 G.I. c. 12, §3, ' If any owner, captain, mafler, ma- 
 
 * riner, or other officer of any fhip, (hall willfully call 
 ' away, burn, or otherwife deftroy the fhip, of which 
 
 * he is owner, or to which he belongs ; or in any 
 
 * manner dired or procure the fame to be done, to 
 ' the prejudice of the perfon or perfons that (hall 
 
 * underwrite any policy of infurance thereon ; or of 
 ^ any merchant that ihall load goods thereon, fliall fufFer 
 
 * death.' 
 
 The J I CI. c. This flatute having only made this crime a fimple 
 29, takes Hw.iy felony, it was found infufficient to refbrain the commif- 
 
 clergy from fuch ^ - . in .^ t 
 
 w.'^cnees in all "OH ot It, and therefore the ftat. 11 G. I. c. 29, § o and 
 *■* ^*' 7> takes away from it the benefit of clergy, and inflicts 
 
 the fame punifhment on perfons guilty of the like of- 
 fences, * with intefit to prejudice any owner of fuch Jhip •' 
 And it further ena6ls, that if fuch offences be committed 
 within the body of any county, they fliall be tried in 
 the fam.e manner as other felonies ; if on the high feas, 
 then according to the diredions of the Hat. 28 H. 8. 
 c. 15.
 
 Ch. XIII.] Of Ahayidonjnsni. 559 
 
 CHAP. XIII. 
 
 Of Abar.dcnmenU 
 
 Preliminary Ohfervations , 
 T has already been obferved (a) that the term total lofs ,, , , , 
 
 I \ / -' Nature of ihtn- 
 
 does not only fignify the abfolute dcftruc^icn of the dv-nmcnt. 
 thhig hifured, according to its natural import ; but r.lfo 
 that, iH legal and commercial language, it means fuch a 
 lofs or damage to the thing infured, though it fpecifically 
 remain, as renders it of little or no value to the owner. It 
 alfo means any lofs or misfortune v/hereby the voyage is 
 loft, or not worth purfuing, and the projected adventure 
 fruftratcd. In fuch cafes the infured is entitled to call upon 
 the infurer as for a total lofs : But then he mufl abandon ; 
 that is, he mud renounce and yield up to the infurer 
 all his right, title and claim, to what may be faved, and 
 leave it to him to make the moft of it for his own be- 
 nefit. The infurer then Hands in the place of the in- 
 fured, and becomes legally entitled to all that can be 
 Tefcued from deftruftion {b). The idea of abandonment 
 therefore, pre-fuppofes a total lofs in this latter fenfe, and 
 implies that fornething remains which may be faved, and 
 which may be given up, or abandoned, to the infurers. For 
 if the infured could only abandon, in the cafe of a total 
 lofs, in the ftri£l: ?.:>■'. natural fenfe of the words, there 
 would be nothing to abandon, and abandonment could 
 then be only an ufelefs forni. 
 
 It has been faid that tlie pra£licc of abandoning dates its whether corv-i 
 origin from the period when the contraft of infurance .■"''''' '"f^i-'"'-'' 
 itfelf firft came into ufe (c) ; and yet it does not fecm 
 to be a right which neccflarily refults from the nature 
 
 {a) Sup. 485. (;,) Vid. Pothier, h. t. n. 133. Ord. 
 
 ei Louis XIV, h. t, art. 47. Ord. BUboa, art, 32. I /^''s >3. 
 ——(f) Park 143. 
 
 of
 
 c^6o Gf Abaiidonment. [Bi I. 
 
 of the contracl. — That the lofs or damage fliould be made 
 good by the infurer, who has made himfelf refponfiblej 
 is perfeclly reafonable, and conformable to the fpirit of 
 the contraft. But it does not neceffarily follow from 
 thence, that, in cafe of a difafter, he fliouid be forced 
 to become the proprietor of the ihip or goods infured, 
 merely becaufe he was a furety for their fafe arrival ; 
 , indeed the author oi Le Guidon {a) fays, that abandonment 
 
 is only to be reforted to in extreme cafes. 
 Its probable It feems more probable that abandonment arofe from the 
 
 °'''^"'' praQiceofeecafionally introducing into policies particular 
 
 flipulations, that if the thing infured fhould be fpoiled or 
 greatly damaged by any of the perils infured againft, it 
 Ihould be abandoned to the infurers, who fiiould be there- 
 upon obliged to pay the entire fum infured ; and that 
 fimply making good the damage fhould not be fufficient 
 to difcharge them -, and ftipulations like this, being fre- 
 quently introduced into the contrad, became at length • 
 ' the foundation of general rules, whicli have been efta- 
 
 bliflied by pofitive law in fome countries, and adopted 
 in others as part of the general law of infurance. 
 Whether cauicd Be this as it may, it has been thought that, in many 
 te" lar. inflances, tlie pra£lice of abandoning has been carried too 
 
 far J and that the infured fhould, in no cafe, be permit- 
 ted to abandon, where the effe£ls infured, or the greatefl 
 part of them, flill exift, and are in the power of the in- 
 fured. Mr. Jullice Btdler feems to have been df opinion, 
 that when this queftion firfl came before our courts, it 
 would have been the wifeft policy to have determined 
 that the owners fhould in no cafe be allowed to abandon, 
 where the property flill exiiled {b). The firfl cafe we find 
 ill our books on the right of abandonment, came before 
 Lord Hardivicke in the court of Chancery in the year 1 744 j 
 and he, after fome deliberation, determined that where a . 
 recaptured fliip and cargo were fold to pay the falvage, the 
 infured had a right to abandon the furplus, and claim as 
 for a total lofs {c) . 
 
 {a) c. 7, art. r. (i) Vid. i T. R. 615, 616.— -(<:) Vid. 
 
 Prin^Ie v. Hartley, 3 Aik, 195, inf. 
 
 It
 
 CIi. XIII.] Of Abandonment, ^s^ 
 
 It maft be admitted that tiie privilege of abandon- '^ 
 
 ing, in every cafe that is deemed a total lofs, may fom^- 
 times be liable to gieat abufe. For inftance, where, zs 
 in the cafe of capture, the thing infured, and every part 
 of ir, is completely gone out of the power of the infured, 
 it is jufl and proper that he fiiould recover at once as for 
 a total lofs, and leave the /pes recuperafidi to the infurer 
 who will have the benelit of a recapture, or of any other 
 accident, by which the thing may be recovered. But it 
 feems, at firft fight, impolitic, not to fay unreafonable, 
 that the owner of a fhip which is branded, (the captain 
 and crew being his fervants, on the fpot, and in poiTcflion 
 of the fhip and cargo), (hould be at liberty to abandon 
 thefe to a number of underwriters, who fometimes find 
 It difficult to acl in concert, and who have, perhaps, no 
 means of difpofing of the property thus thrown upon their 
 hands, but to the greateft difadvantage. 
 
 On the other hand it may be truly faid that the cap . 
 tain niuft occafionally be the agent, not only of the owners ? 
 
 or freighters of the (liip, but alfo of every perfon interefted 
 either in the {hip or cargo; that he,in aic of misfortune, is 
 bound to do the beil in his power for the beneiit of all con- 
 cerned ; and that, whether he difpofe of what is faved 
 for account of the infured, or of the infurer, comes to the 
 ^me thing, fincc in both cafes the amount muft go in 
 diminution of a total lofs. Still it muft occur to every 
 perfon who has any experience in fubjeGs of tliis nature, 
 that it were much better that the mafier, in cafe of 
 misfortune, fhould continue the agent accountable to 
 the ov/ners who know him, and who knov/ the extent 
 of his charge, than to the underwriters who know 
 neither. 
 
 Having prcmlfcd thus much of the general nature of 
 abandonment, v/e will now proceed to confider, 
 
 I. In what cafes the infured may abandon ; 
 II. Within what time he may abandon ; 
 III.. The form of the abandonment ; 
 IV. The effulofit', 
 
 V. Of the ordering and dfpcfil of the effects 
 abandoned, 
 ▼OL. II. « i^Qt.
 
 ^-6* Of Abandonment [B,L 
 
 Sea. I. 
 In 'what cases the insured 7nay abandon. 
 
 The genfni IN jreneral it may be laid down that, by the law C^ 
 
 principle upon infuvaiice, as underllood in Efi'jrlancL the infured may 
 
 whicii ihe riglit ' . . 
 
 of abaiidjumg abandon in every cafe where, by the happening of any ot 
 ^* the misfortunes or perils infured againft, the voyage is 
 
 loft, or not worth purfuing, and the projected adventure 
 is fruftrated j or where the thing infured is fo damaged 
 and fpoiled as to be of little or no value to the owner;:, 
 or where the falvage is very high ; or where what is faved 
 is of lefs value than the freight ; or wherS further ex- 
 pence is neceffary, and the infurer will not undertake, at 
 all events, to pay that expence, &c. [a) . 
 In what cafe it The ordinance of the marine of Louis XIV. {h) which in 
 
 IS permiucd in ^j^j^ ^^ jj^ mo'H Other particulars, is coIleiSled from the 
 
 I ranee. ' ^ 
 
 fame ancient fources from whence other countries have 
 drawn their principles of the law of infurance, confines 
 abandonment to thefe five cafes ; capture, fnipwreck, 
 llranding, arreft of princes, or the cnth-e lofs of the effecis 
 infured (r). 
 
 Val'in thinks the latter words mean, not an abfolute de- 
 llrudlion, but a general lofs {il). — Poth'ier fays, they mean 
 a total, or ahmf total, i,ofs {e). This he explains by fay- 
 ing, that goods which are confiderably damaged are deemed 
 to be goods loft-, and therefore when all, or almod al], 
 the goods are in that ftate, it is a total lofs. Both thefe 
 authors cite Le Guidon, where it is laid down that the in- 
 fured may abandon when there is an average lofs or da- 
 mage which exceeds half the value of the goods infured. 
 
 {a) Per Lord MansfcU, in MilUs v. Fletcher, inf. . (/;) h. 
 
 t. art. 4-6. {c) ''■Perteeniicre des ejfets ajfurcs " (Jj *'Perle 
 
 getierique des effets njfu^es,fans elre ahfolue." Valln on art. iQ^h. 
 
 t. p. 6l. \e) " Perte totals oit prefqiie totals des ejfeti njfurisy 
 
 Pothier, h. t. n. 119. 
 
 I or'
 
 Ch. XIII. § i.j Upoyi Capture or A rrejl. ^g. 
 
 or in cafe they be fo damaged as not to be worth the 
 freight or little more [a). 
 
 Emerigon objer^is to both ihefe interpretations as being 
 vague and un«.ertsin, and as leaving it too inucli in 
 the bread of the judge to decide what (hall be an entire^ 
 or almoji entire, iofs, which, he fa)s, mull lead to great 
 doubts and ruinous litigation [b). 
 
 By the French law, the right to abandon fceais to de- 
 pend on the /pedes of imsfortwie which has happened; 
 with us it depends rather on the degree of Iofs fuflained in 
 confequence of it. 
 
 Such are the general principles upon which the right 
 of abandoning refts : We v/ill now take a viv-w oF the 
 €afes in which thofe principles have been exemplified, 
 ift. Upon lojfes by capture, and arrefi of princes ; ami, 2dlv, 
 upon other lojfes, 
 
 I. Of the right of abandoning^ upon Capture, and 
 arrcjt of Princes. 
 
 As capture and arrefl: of princes have afforded the mofl 
 frequent occafions for abandorarient, fo mod of the great 
 leading principles upon which the right of abandoning 
 refts, have been difcuffed and eftablifhed in cafes of that 
 fort. 
 
 Capture by an enemy or a pirate, or an arrefl o»^ ^ 
 
 '■ ^ . Capture or a rrrft 
 
 princes, or even an embargo, is prima facie a total lols ; t>f pnnccs is, 
 
 , • ,. , 1 „ p'ima facie .1 
 
 and immediately upon the capture, or upon a mere arrell, fut.ii i/fs, for 
 or at any time while the (liip continues under detention, "?'"^'^ fneiniur- 
 the infured may elecl to abandon, and give notice to the 
 infurer of his intention to do fo, and tlius entitle himfeif 
 
 (<i) '■'■ Le march and char gc^ir ef en I'llerte d.e fain a fes offureurs 
 de la prapitetc qui! a en la viarchandtje charg'cc^ lors cl qiianJ il 
 ad^icnt avarie qui excC'dc ou endommage la moitie de la rnarchan- 
 d'lje, ou telle empirance en la marchundife quelle ne value le fret, ou 
 
 pen de chfe d^avanl'ige." Le Guidon, ch. 7, art. i {b) Emeri^. 
 
 torn. 2, p. 183. 
 
 ^ % to
 
 f^j^ Of AbaiidonmeiU [B. I. 
 
 t6 claim as for a total Icfs from the nfurer : Fof, from 
 the moment of the capture, or afreft, the owners lofe 
 their power over the fliip and cargo, and are deprived of 
 the free difpofal of them ; and, in the opinion of the 
 merchant, his right of difpofal being fufpended or ren- 
 dered uncertain, is equivalent to a total deprivation. It 
 would therefore be unrcafonable to oblige the infured to' 
 \;-ait the event of capture, detention, or embargo {o). 
 And he is tiot And immediately, upon receiving intelligence of a cap- 
 l.ound rrj iitigv.o ^.^^,.^ -^^ ^^^^ abandon ; nor is he bound to nnke any 
 
 the v.ilidi y ot ' ' ^ ^ . 
 
 ti.c cnpture. claim or appeal to the enemy s courts ot admiralty, cr to 
 
 litigate there the validity of the capture; but may wholly 
 leave that to the underwriters (/'). 
 But he ij not But the infured is, in no cafe, bcund to abandon ; and, 
 houiti to ii'iu. ^1^^ j^^^, ^^^^y (lands, no capture of the enemy can be 
 tuie. fo total a lofs as to leave no poihbihty of recovery, for 
 
 the jus pofti'iminu contiimes for ever, except in the cafe 
 of a captured fhip being turned into a fiiip of war. If 
 the owner himfelf fnould retake the Ihip or goods, he 
 • will be fullv entitled to them •, and if they be retaken at 
 any time by another, whether before or after condemna- 
 tion, he will be entitled to reitltution, upon payment of 
 a fettled falvage {<:;. — The chance of the owner's re- 
 covering his property docs not, however, fufpcnd his 
 right to demand as for a total lofs : But, in the cafe of a 
 recapture, juftice is confidered to be done to tire infurer 
 bv putting him in the place of the infured. A policy of 
 iufurance, as a contrail of indemnity ^ is always liberally 
 ccnflrued {d). 
 ^ a ws-rer There is this dilTi=:rence between a policy vpoti ititcnjl^ 
 policy the in- ar,(^ a Twrfx 5&5//>y, that, in tliC ouc cafc the infured mav, if 
 
 lured cannot '-' ' , , , . ' - 
 
 abandon. he think proptv, abandon ihe moment he has notice oi 
 
 a capture or detention, and this will bind the underwriters, 
 wliatever rnay be the ultimate fate of the fliip ; but in the 
 
 'a) Vid. Lord Mansjield'^ judgment in Gofs v. Withers, 
 
 2 Bur, 696. inf. 567.- 1^) Vid. iBvr. 696; Adm. in Tyfon 
 
 V. Gurney,sr. R. 4.79. -(c) Vid. flat. 43 G. III. ch. 160, 
 
 fup.551. (d) See 'Lord Matisjeld'i judgment m Co/s v, 
 
 ^^'ithersi 2 Bur. 656, 7. 
 
 cafe
 
 Ch. XIII. § I.] Upon Captnre or Arren. §Ss 
 
 cafe of a wager poiiey, there can be no abandonment, bc- 
 caufe the infarc-d has notlung to abandon (/?). 
 
 But a capf ire or urrefc does not ueceilarilv, and at all But a capture or 
 events, terminate in a total lois^ lo as to entitle the uiiured „e,j/..r;iy ;trijn- 
 to abandon at any time j for, as he cannot abandon t:!l j^"^^' '* * '""^ 
 he has received advice of the lofs, if, at the time he re- 
 ceives fuch advice, or before he has eleded to abandon, 
 he receive advice that the fliip or goods infurcd arc 
 xecoveied, or are in fafcty, he cannot then abandon -, be- 
 caufe he can only abandon iL'/.i/c it is a total Icfs, and he 
 knows it to be fo, not after he knows of the recovery. 
 Therefore, if a captured fliip be retaken and permitted 
 to proceed on her voyage, fo that flie fuffer but a fniall 
 temporary inconvenience ; this is only a partial, and nof 
 a total, iofs [b) . 
 
 On the other hand, a title to reftitution, upon a recap- >^Vithcr dofs a 
 ture, does not neccflarilv, and at all events, deprive the in- '^*-cai)rure uccef- 
 fured of the ripht to abandon : For if, in confequence of in\\ue(\ of tin 
 the capture, the voyage be loft, or not worth purlumg ; 
 if the falvage be very high •, if farther expence be ne- 
 ceflary, and the infurer will not undertake at all event? 
 to pay it, the infured may ab.ando:n. — The rule is, that, if the thinj io- 
 if the thing infured be recovered before any lofs is paid, v'-^cd bcfoie'tKc 
 the infured is entitled to claim as for a total, or a partial ' '•* '* P^"'* ">'= 
 
 . : ]ols will be totnl 
 
 lofs, according to the nnal event ; that is, accordmg to or partial, ac^ 
 the flate of the cafe .at the time he makes his claim. ^''"|'"g '° ''"^ 
 There is no vefccd right to a total Ids, till the infurcd , 
 having a right to ftbaudon, ek£t3 to do fo ; for he is only 
 
 (^) Vid. 'Lord Mansjiild's ]ndgmcut in Kulen Kemp v. Vigm^ 
 
 1 T. R. 304, flip. 130. (/>) By the law oi France, the fhip 
 
 being once captured, it is always a total lofs ; and th',; legal 
 effoft of it is pv'^funied to continue, tho'igh the (liip be releafed 
 or retaken. The recovery of tlie goods infurod is only for the 
 account of the infurer, who cannot, under pretence that they 
 Are arrived at their port ot dcllination^ rcfufe the abandonment. 
 The recovery of the goods is ir.ertly in nature ivf falvagp. 
 ^»,Yr/j, torn, 2, p, 188. 
 
 C 3 «ntitled
 
 c65 Of Abandonment [B. 1. 
 
 entitled to an indemnity for his lofs as it {lands at the thne 
 of the action brought, or offer to abandon. 
 
 t> . -f f.«,- ., But if, after a total lofs has been actually paid, the 
 
 lus i.as Ikcii thin" infured be recovered, the infurer cannot oblige the 
 
 Xn{ll'<^ he lea?- Jnfurcd to refund the money he has received ; but he fhall 
 
 vi'c'i, fiie in- ftj^p^d ill the place of the infured, and fo no injuftice is 
 
 fuicfl lii.^ii not '^ 
 
 be ..l.ligtd to re- donC. 
 
 The two following cafes are cited as examples to fliew 
 a u-c'fpu.rc'ye'r, that though a captured fnip be recaptured, yet if the 
 if the voyage be ^^ ^^^ t|^e jofs ^JH be totai, and the infured v^-ill 
 
 k'(t, the miuiia J b ^ 
 
 niiy ab.uicu:!. have a right to abandon. 
 
 Prr.gle v.ITuri. The firft was the cafe of a {hip Infured from Louden 
 hy, \u Ci.ai^. ^g Bermudas and Carolina^ taken by a SpamiJ privateer, 
 
 1741, 3. -M. - ' . ''■ T, 
 
 19-- retaken by. an Engl'ifu privateer, and carried into Lc/lofiy 
 
 A rnhHTtArn, in Ar-:erica, where no perfon appearing to give fccurit^/, 
 and .,-ukcn,;i. a Qf anlwcr for the falvaee, flie was condemned 2nd fold 
 
 fold in a (!;li,n,t ^ 
 
 coiiU'Y ::> piv in trie court cf admiralty there. The recaptors had 
 
 the fiilv.^i';e, i: A ,. . ^ . , iiri 'J 
 
 thcrcfidueof the tUcir mciety OX the proceeds, and the iurpius remauied 
 proceeds le- j^^ ^|^^ hands of the officers of the court. — .An adion at law 
 
 main? in tne 
 
 court of i4rimi- was brought upon the policy by the infured, who ojtained 
 The irfuicd'ni..y ^ verdict agani{l the underwriter for a total lofs. The 
 abandon, and underwiter filed a bill in Chancery, and moved for an 
 
 recover as for .i _ ' ... 
 
 total lofi.. in]un(ftion to ftay the proceedings at law, inHflmg that 
 
 the infured ought not to recover more than the falvage, 
 vvhich, in this cafe, was a moiety, as the flat. 13 G. II. 
 c. 4, $18, gave the thing faved, fubjecl to falvage, to 
 the owner, who was entitled to receive it from the 
 officers of the admiralty court at Bojlon. I'he infured, 
 in his anfwer, fwore that he had offered^ and was then 
 willing, to reUnquiJh his intereft to the Infurers in the 
 benefit of the falvage, and would give them a letter of 
 attorney to receive it— Lord Chancellor //inr^w/Vyf^ de- 
 termined that tliere was no ground for an injunc^tion in 
 this cafe. — He faid : — " At the time of the trial, the in- 
 fured knew that the ihip was retaken. — The queftion 
 arifes on the flat. 13 G. II. with regard to the falvage. 
 It has been faid that there ought to be only half the lofs 
 recovered on the policy ; and, as to that, the a(^ has 
 made great alteration in the law of nations, with refi:>e6l 
 
 to
 
 Ch. Xni. § I.] upon Capture cr Arreji. 567 • 
 
 to recaptures. The carrying a (hip infm prafidia ho/Hum^ 
 ox ft peytio5taverit with the enemy, makes it the prize of 
 the recaptor, as if it had been originally the fhip of the 
 enemy; but, by the atil, the recaptm-e revefts the pro- 
 perty in the owner. If there had been a falvage, k 
 muft have been deducted out of the money recovered 
 under the policy, but if none came to the hands of the 
 infured, the jury could not take notice of it. It is un- 
 certain whether the infured will receive any thi:ig or 
 not : And if any thing be recovered, he muft have an 
 allowance for his expences in recovering it. Therefore, 
 being willing to rdinqwfo his interejl in the falvage, he 
 ou<Tht to have recovered the nvhole 7no}uy infured. It would 
 be niifchievous if it wei-e otherwife ; for then, upon a 
 recapture, the infured would be in a worfe fituation than 
 if the fliip were totally lolL" 
 
 In the fecond cafe, two infurances were made, the one Cnfs v. U'-thnt, 
 
 on the fhip David and Rehfccn^ the other on goods on _J iL 
 
 board, « At and from Neitfotwdland to her port of dif- ^.^.Ifn^g pn"of 
 * charse in Fortu-al or ^pr.iiu without the StreiphiSy or •>" '^'"S^ '■^•"- 
 
 r> a ' o board m a li>.rii), 
 
 « England.' — In an atSiion upon the former policy, the ai«i benrg dif- 
 plaintlrT declared upon a total lofs by capture ; upon the f^^^.Jj^ l^^'l^^ 
 
 latter, the declaration alledijed that divers quantities of voyage till re- 
 
 , 111 fi'"^<^» '* <^*P- 
 
 fifn and other nierchandizes, were put on board ; and tuie.i mid her 
 
 averred that one fourth of the faid goods were neceffarily buV'af'e'"'' bdn's 
 thrown overboard in a dorm, to prefcrve the fhip and eisht ri^y? in 
 
 . , . , . .^ , y, . J p'.ffeffiou of ilie 
 
 the reft ot the cargo; Tiixtx which jettijon, the Ihip and enemv, is le- 
 the remainder of the goods, were taken by the French.— IS^^v^oln 
 It appeared on the trial, that the {hip was taken on the Enf^nj/) port, 
 23d o{ Decei}d't'r 1755; and the mafter, mates, and all "'fuicd give ni.*- 
 the failors, except an apprentice and a landman, were '^^^J^-^ t^r'nZ', 
 taken out of her and carried to France. The flup re- e.n u rcfi-i d, 
 maincd in the hands of the French eight days, and was ^Irp '^'s 'poil''rf = 
 then retaken bv a Briti/Jj privateer, and brought into — Ti.is is » toi.-.i 
 Milford Hat'en on the 1 8th o\ January \ and immediate ^..^d may iiba..- 
 notice v/as given by the infured to the underwriters, with 
 an offer to abandon. Before the capture, the fhip, in a 
 violent ftorm, was feparated from her convoy, and fo clif- 
 abled as to be incapable of proceeding on her voyage, 
 without going into fome port to refit. Pari of her cargo 
 
 ^ G 4 ^^S 
 
 'don.
 
 t^6t Of Abandonmeni [B, I, 
 
 was thrown overboard in tiie ftonn, and tlie reft fpoiled, 
 whlk the fliip lay .it M'llford Haveti, after the offer lo 
 abandon, and before the (hip could be icfitted — Upon 
 this cafe, two quefl-ions were made; ift. Whether this 
 was a lofs by capture for which the infurers were liable, 
 2dly, Whether, under all the circumftances, the infured 
 had a right to abandon the ihip to the infurers after fhe 
 was carried into Mtlford Haven. — The court, upon great 
 confideration, were clearly of opinion, that the lofs was 
 total by the capture ; and that, after the voyage was de- 
 feated, the right which the ov/ner had to obtain reftitu^ 
 tipn oF the fliip and cargo, paying falvage to the recap* 
 tors, might be abandoned to the infurers, after fhe was 
 brought into MUford Haven. — Lord Mansfield delivered 
 the opinion of the court. The decihon of the firft point 
 has he^n already mentioned in its proper place (a). Upon 
 the fecond point, his lordlhip faid, — " The fnigle quef- 
 tion upon which this cafe turns, is, whether the inlured 
 had, under ail the circumftances, an eiedion to abandon 
 on the l8th oi January. The lofs and difabiiity were 
 in their nature total at the time they happened. During 
 eight days the plaintiff was entitled to be paid by the in- 
 furer, as for a total lofs ; and, in the cafe of a recapture, 
 the infurer would have ilood in his place. The fubfe- 
 quent recapture is, at beft, a faving only of a fmall 
 part : Half the value niuf be paid for falvage. The dif- 
 ability to purfue the voyage ftill continued. The mafter 
 and mariners were prifoners. The charter-party was dif— 
 fclved. The freight, except in the proportion of the 
 goods faved, was loll. The fliip was necefi'arily brought 
 into an Englifo port. What could be faved might not be 
 ^Jine^orrfli- worth the expence necelTarily attending it. The fubfe- 
 \\iuon anfirg nueut titlc to reftitutiou arifui? from the recapture, at a 
 
 Ji-om reciiptiue, >■ o x •> 
 
 ^.aiiiiot take great expence (b)^ of a fliip difabled frem purfuing her 
 
 away a veiled " ^ 
 
 right.tocib-'iidoit, 
 
 u iiK (hip I'C : — 
 
 111 lit to ptrfoirn 
 
 vt voyHse. (^j Sup. J26. ib) By 29 G. II. c. 34, f 2, a moiety 
 
 of the value of the captured (liip was given to privat&ers, if 
 the prize was above 69 hours ia the poffcffion of the enemy. 
 But now by 43 G. III. c. 160, ^ ^c)^ the falvage in all cafes of 
 recapture, by prlvatarSi is iix'^d at onefixtb, 
 
 voyage,
 
 Ch. XIII. 5 I.] Upori Capture or Arro/i. 569 
 
 Vov*i<Tc, cannot take away a right vefted in the infurcd at 
 the tin:e of tlie capture. But, becaufe he cannot recover 
 for any more than the lofs he has faitainecl, he muft aban- 
 don what may be faved. The better opinion of the books 
 fays, — ' Siiflcit fe-.nel extiujfe conditi, 'um, ad beneficium ajji-' 
 
 * curatcri^ de am'ijjlone fiavis ; et'iam quod poflea feqiteretur 
 ' reciiptratio : Nam per tj/em recuperathnew ?io)i potent prx~ 
 
 * judicari ajfecuratio (a).' I cannot find a f.ngie book, 
 ancient or modern, which docs not fay that, in calc of 
 a Ihip bi-ing tahen, the infured may demand as tor a total 
 
 lofs and abandon. What proves the propofit'.on moft The inrur-c? may 
 ftrongly is, tkat by the general law, he may abandon jn !, :"..e,c ancit or 
 the cafe merely of arrell, or an embareo, by a prince not c^^^s'so ^ » 
 
 •' . o ■^ y i _ prince not an 
 
 an enemy (i). Pofitive regulations indifferent countries, enemy, 
 have fixed a precife time before the infured fliould, in that 
 cafe, be at liberty to abandon. The fixing a precife time 
 proves the general principle. Every argument holds 
 ftrongly in tlie cafe of the other policy, with regard to the 
 goods. The cargo was, in its nature, pcriflaable, def- 
 tined from Neiufoundlnnd to Spain or Portugal ; and the 
 X'oyage was as abfolutcly defeated, as if the (hip had been 
 wrecked, and a third or fourth of the goods faved. No 
 capture by the enemy can be fo total a lofs as to leave no 
 polubillty of recovery. If the owner himfeif fliould re- 
 take at any time, he will be entitled j and by the flat, 29 
 C. II. c. 34, § 24, if an Englljh (hip retake at any time, 
 before the condemnation or after, the owner is entitkd 
 to reilitution, upon ftated falvage. This chance does not 
 fufpend the demand upon the infurer for a total lofs : But 
 luftice is done by putting him in the place of tlie infurcd, 
 in cafe of a recapture. In queftions on policies, the na- 
 ture of the contract, ad an indemnity and nothing elfe, i^ 
 always Jiberally confidered. There might be circum- g.jf „„, ^y^^^ 
 fiances, under which a capture would be but a fmali tem- '*"= cajiruic 
 
 ^ proves hut n 
 
 porary hindrance to the voyage ; perhaps none at all : A« fmisii tempor^.y 
 if a fliip were tr.ken, aiid, in a few days, efcaped en- ''="«^"'"'^«^- 
 tire, and purfaed her voyage. There are circumfianccs 
 
 (a) Roccus,r\, CC, li} Vid. fip .ch. 12, § ^. 
 
 under
 
 57® Of Abandonment [B. I. 
 
 under wliich it would be deemed an average lofs : If a 
 captured fhip be immediately ranfomed [a) by the maf- 
 ter, and purfue her voyage : there the money paid is an 
 average lofs. And in all cafes the infured may chiife not 
 to abandon {h). In the fecond part of the ufages and 
 The yjfured is cuftoms of the fea, (a tranflation from the French), a 
 in no cafe o/.%<f treatife is inferted called Le Guidon^ in which, after men- 
 
 to abandon. 
 
 tioning the right to abandon upon a capture, it is added, 
 " or any other fuch difturbance as defeats the voyage ; 
 or makes it not worth Mobile, oi not worth the freight, 
 to purfue it (r)." I know that, in late times, the privi- 
 lege of abandoning has been refirained for fear of letting 
 And he cannot, in frauds ; And the merchant cannot eleft to turn what, 
 
 merely by abaii* . , . . , 
 
 doning, iiiin a at the time when it happened, was in its nature, but an 
 Mi'lofi""" "* '''' average lofs, into a total one, by aband-.ning. But there 
 is no danger of fraud in the prefent ca^e. The lofs was 
 total at the time it happened 5 and continued total, as to 
 the deftruflion of the voyage. Nothing could be reco- 
 vered, but upon payment of more than half the value, 
 including the cofts. What could be f<ived of the goods 
 might not be worth the freight for fo much of the voy- 
 age as they had gone when they were taken. The cargo, 
 from its nature, rauft have been fold where it was brought 
 in. The lofs, as to the (hip, could not be eftimated, nor 
 the falvage of half be fixed, by a better meafure than a 
 
 i^a) Since this judgment was delivered, the ranfoming of 
 fhips captured by the enemy has been prohibited by ftst. zz G. 
 
 III. c. 35. fup.5C4. [b) Le Gu'uhn, ch. 7, art. i, fays that 
 
 abandonment depends on the will of the infured, who may refort to 
 
 It as an extreine remedy (t) The psfTage in Le Gu'ulon to which 
 
 his lordOiip alludes, c. 7, § l, is in thefe words : " 11 ejl en iiherie 
 au marchand char geurf aire delais afes ajfureurs, c'ej} a due, quit- 
 ter et delmjfer Jes droits, noms, ra'ifons, et adhns-, de la prnpriets 
 qu'il a en la marchand'-.Je chargee^ dont il efi ajfeure, lors, et 
 quand il advimt navfrage dii tout ou de partie, on b'len anyarie 
 qui excede ou endommaze la maitie de la marchandife, qitand il 
 y a prife d\jfnis cu d'ennemis, arrejl de prince, ou autre tel dif- 
 tourbier en la navigation ; ou telle empirance en la marchandife, 
 quil ny ait nnyen I'avoir fait naviger a Jon dernier rejle, ou 
 qu'elle ne valut le fret^ ou peu de chofe d'avantage.** 
 
 fale.
 
 Ch. XIII. S I.J Upon Capture or Arrcjf. 571 
 
 falc. In fuch a cafe, there is no colour to fay that the in- 
 fured might not difcntangle hiiiifelf from unproiitable 
 trouble and further expence, antl leave the infurer to fare 
 what he could. It might as well be argutd that if a fhip 
 which had funk, wis weighed up again at a great expence, 
 the crew having periflied^ the infured could not abandon, 
 nor the infurer be liable, becaufe the body of the fhip 
 was faved." 
 
 In the above cafe Lord Mansfield declared, « that he ^.^ ''^J'^^^;^'^^;^ 
 could not Jitid a fingle book, ancient or modern., ivhich did not bcin ciptuied, 
 fay that, tn cafe of a Jhip being taken, the injured may de- ,^^y ;4b..ndon at 
 jnand as for a total hfs, and abandon."— ThQ unqualified any time .ftcr- 
 
 •' -^ .J. . Wire's. 
 
 terms in which this is expreiled, foon gave rile to a notion 
 that the immediate confequence of a capture was a change 
 ef property in the thing hifured, and that this gave the in- 
 lured a veiled right to a total lofs, with liberty to abandon 
 when he pleafed j and that this right could not be dl- 
 vefted by any fubfequent event. — That Lord Mamfeld 
 did not mean to be thus underilood is obvious from the 
 whole of his judgm.ent in that cafe : But another cafe 
 foon a^ter occurred which afforded him an opportunity of 
 explaining his own meaning in that judgment, and of 
 afcertaining and fettling thofc principles of law which 
 have governed all the cafes to which they were applicable, 
 from that time to the prefent. 
 
 In this cafe it was fettled, after fqlemn argument, and If ''f ''"•'"S '"- 
 
 °. l.ircri bf rcco- 
 
 upon great confideration, that if the thing infured be re- v^u-fi before any 
 covered before any Icfs is paid, the infured can only be JnlUV'T/'oniy 
 entitled to a total or a partial lofs, according to the final e. ndedto ap.ir- 
 event. This agrees with Roccus who puts this qacflion : ,„r,^ acciidins 
 — Affecurator qui jam folvit ,aflimationcm mercium debcrdiia- 
 ritm, ft prflea difl^ merces appareant ct recupcrata fint, an 
 pffit cogcre dominum ad accipiendas illas, et ad ret^dindam 
 ftbi ceftimatiovem quam dedit ? — To this queftion he anfwers 
 tlius : Diflingtie : Jlut merces ant aliqua pars ipfirum ap- 
 pareant, et reflitui poffnt ante folutioncm ^rfimationis ; et tunc 
 tenetur domintis mercium illas recipere, et pro ilia parte mer- 
 cium (ipparentium liber abiiur affecurator : Nam qui tcr.eiur ad 
 cert am quantitatcm refpeclu certa fpeciei, dando illam, hbera- 
 tur. Et etiam, quia contractus nffecurationis efl conditionalis, 
 fcilicet, ft merces deperdaniur : Non autem dicuntur deper^ 
 dita, ft poflea repcriantur. Verum, ft merces non appareant 
 
 to ilie filial 
 evcni.
 
 572 Of Ahandonmtnt [B.I. 
 
 in i!ia prijuna hoiutatey aUter fit afiimaiio ; ncn in toiuiUi fed 
 
 fnut tunc vclcnt. Aut •vcropojl Jolutam a/limalionem ah nffe~ 
 
 cufaiore coinpareant mcrcaSy et tunc efl in electione mercium 
 
 ajjecurali) vel recipcre merces vel retiuere pretiuin {a). 
 
 Vamihon v."* 'W\t cafc abovc alluded to, was an infurance on the (hip 
 
 119S, I B>. 276. Selhyf valued at 1200I. and goods on beard, trom i^irgima 
 
 ^ ~r- : to Lcfidcn. — The fliip failed on the 28th of March 176c, 
 
 A uiip IS cap- * ' ' 
 
 »i*fe'.!, and all the hoxii Virginia for London, and on the 6th of 71^^^' was 
 
 hands but ihc , , _ „ , . ,~,, . , _ 
 
 mate and a.i- Captured by -^rrcnch privateer, 1 he captani and hx men 
 ether m^i) t..ke:i ^vt•re taken out of the fhip, and only the mate and one 
 
 «ut of her. A't.r , , 
 
 17 days, (he is man left on board. The French put a prlze-mafter and 
 fenr in:o an Icveral men on board to carry the Ihip to trance •, but in 
 f.'igtj/, foM, t],^ ^jy thither, fhe was retaken on the c^d of Max and 
 
 where Ihe ar- _ •' ' _ -' -^^ 
 
 Jives a month fent into Plymouth^ where (he arrived the 6th of fune. 
 tur^c'^.-^Thc V0-- '^^^ plaintiff, at I^ully as foon as he was informed of what 
 ^^e not be- j;j^j befallen his fliip, wrote on the 23d of June to his 
 fuied n'aii not agent in Londony with diredlions to abandon. — The 
 be iiiiowed to ajjei^t, on the 26th of Ju?ie. acquainted the defendant 
 the fhip'j ar- v/ith the oifer to abandon, to which the defendant an- 
 fwered, < that he did not think himfelf bound to take to 
 
 * the fliip) but was ready to pay the falvage, and all 
 
 * other Jofles ^nd charges that the plaintiff had fuftained 
 
 * by the capture.' — On the ipth of Augitf the fhip, 
 which had fuflained no damage by the capture,was brought 
 to London by order of the owners of the cargo and the 
 jrecaptors, and the whole cargo delivered to the freighters, 
 who paid the freight without prejudice. — The queftion 
 on this cafe was, whether the phintiff, on the 26th of 
 Jnncy had a right to abandon, and to recover as for a 
 
 total lofs ? — The court detcrroined that he had no right 
 to abandon, and that he could recover as for a partial 
 "* lofs only. — Lord Mansfield, in delivering the opinion of 
 
 the court faid, — "The plahitiffhas averred in his declara- 
 tion, as the bafis of his demand for a total lofs, that, by 
 the capture y the pip became luholly lojl to him. The gene- 
 ral queilipn is, whether the plaintiff, who, at the time of 
 Iiis a£uion brought, at the lime of his offer to abandon, 
 and at the time of his being firft apprized of any accident 
 
 {a) Roccus, h.t. n 9^ 50. 
 
 haying
 
 Ch. Xin. § I.J upon Capture or Arreji, 57^ 
 
 having happened, had only, In truth, fuftained tl partial 
 lofs, ought to recover as for a total lofs. In fupport of the 
 affirmative, the counfel for the plaintiff infifted upon the 
 four following points: i. That, by the capture, the pro- 
 perty was changeJy and therefore the lofs total for ever j 
 2. That if the property was not changed, yet the capture 
 was a total lofs ; 3. That when the fliip was brought iiitci 
 Plymouth^ particularly on the 26th of June, the rcco-.ery 
 was not fuch as, in truth, changed the total into an average 
 lofs ; 4. That, fuppofing it did, yet the lofs having once 
 been total, a right veJJed in tlie infured to recover tlie 
 whole, upon abandoning ; which right could never after- 
 wards be divefred, or taken from him, by any fubfcqucnt 
 event. — As to the Jirjl point : If the change of property The propnrv h 
 was at all material, as between the infurer and the infured, ''•'^'/^'••"^^y' ^v 
 
 ' cnt?t.irt, till run- 
 it would not be applicable to the prefent cafe ; bccaufe, by fif tjm^iio.i. R,it 
 
 the marine law received and pra6tifed in England^ there is avXv' LC.'inu^i 
 no change of property, in the cafe of a capture, till con- f"'' "'"• 
 damnation ; and now by tlic a6l of parhamcnt (rt), in cafe 
 of a recapture, x'ac jus p Jill mbiii continues for ever. Many 
 writers argue, between the infurer and the infured, from 
 the diflinilion, whether the property wrs, or was not, fo 
 changed by the capture, as to transfer a complete riglit 
 from the enemy to a recaptor, or neutral vendee, againit 
 the former owner. But arbitrary notions concerning the 
 change of property by capture, as between the former 
 owner and recaptor or vendee, ought never to be the rule 
 of decifion, as bctv/cen the infurer and infured, upon a 
 contra£l of indemnity, contrary to the real truth of the 
 faft. And therefore I agree, upon xhtfecond pointy that, ^'^"'l^ "-^ ^'^ 
 by the capture, ivhilc it contij:ucd, the fliip was totally '^r '\h^'%vc,X 
 loft j but it muft be admitted that the property, in cafe "'°'' ^^''^"^":/- 
 ot recapture, never was changed, but returned to the but ih^ p.o[KMy 
 former owner.— The third point depends, as every qucf- reclp-l. ".^"" * 
 tion of this kind muft, upon the particular circumftances. 
 It does not necefarily follow that, becaufe there is a re- 
 capture, therefore the lofs ceafes to be total. If tlie voy- 
 age be abfolutely loft, or not worth purfuing : If tlie faJ- 
 
 (a) 29C.IL C.34, §24, 
 8 
 
 vagc
 
 57 1- ~ Of Abiifidonmenf j[B. L 
 
 In what cafe« a yage be verv high : If further expence be neceflary : If 
 to be tola!. ^'^^ inlurer will not engage, at all events, to bear that 
 
 expence, th.ough it fhould exceed the value, or fail of 
 fuccefs : Under thefe, and many other like circumilances, 
 - the iiifurcd may difcntangle himfelf and abandon, not- 
 withilanding there was a recapture. The Guidon {a), 
 amongft other inftances of a total lofs, where the infured 
 may abandon, fays, " Jf the damage exceed half the value 
 of the thing infured ; or if the voyage be lojl^ or Jo interrupted 
 that the purjuit of it is not worth the freight." But, in the 
 prefent cafe, the voyage was fo far from being loft, that 
 j-t had met with only a (hort temporary obfiruftion ; the 
 Ihip and cargo were both fafe •, the expence incurred did 
 not amount to near half the value ; and when the offer 
 was made to abandon, the infurer undertook to pay all 
 charges and expences which the infured fliould be put to 
 by the capture. The only argument to lliew that the lofs 
 had not, upon the recapture, ceafed to be total, was built 
 upon a miftaken fuppofition, that the recaptor had a right 
 to demand a fale, and to put a flop to any further pro- 
 Uponaiecapture fccution of the voyagc. But that is not fo. The pro- 
 ihe proptriy ic- pgj.|^y yetums to the cwncr, pledged to the recantors for 
 
 turns to the on- r J ' r b j. 
 
 giivii o%vncr, the smount of the falvage. Upon paying this he is en- 
 faivage. "' " titled to reflitution. The recaptor in this cafe had no 
 right to fell the fliip. If they had differed about the 
 value, the court of admiralty would have ordered a com- 
 mjfnon of appraifement : It was the intereft of all par- 
 ties that the (hip fliould fortliwith proceed to London. 
 Had the recaptor oppofed it, or afFe£led delay, the court 
 of admiralty would have made an order for bringing her 
 to her port of delivery, upon reafonable terms. There- 
 fore it is clear that, on the 26th of Juney the fliip had 
 fuftained no other lofs than a fhort temporary obftru£l:ion, 
 ►Though tVieie ^nd a charge M'hich the defendant offered to pay. — As to 
 
 have at one ^ , r, ■ r^^^ i • • rr) i ^ ■ r •' i 
 
 time been a to- u\t lajt point : 1 hc piamtiff s demand is for an indemnity, 
 tal lofs, the in- jjjg ^^^Jq^ ^}-,£n, mufl be foun<led on the nature of his 
 
 fuied cannot ' ■* 
 
 abandon after damnification, as it really was, at the time of the action 
 
 the final event ^ , t • n r ■ i ■ 
 
 has detcrmincri brought. It IS repugnant, upon a contract 01 mdemmtyi 
 
 it to be only a 
 
 paitial lofs. ■ ^ . j; — 
 
 (a; Ch .7, § I. 
 
 to
 
 Ch. XIII. § I.] Upon Capture $r Arrejl. 
 
 :>/^ 
 
 to recover as for a total lofs, when the final event has 
 determined that the damnification is, in truth, an average; 
 lofs. Whatever undoes the damnification, in whole or 
 in part, mud operate upon tlie indemnity, in the fame de- 
 gree. It is a contradiction in terms to fay that an a£lion 
 will lie for an indemnity, when, upon the whole event, no 
 damage has been fullained." — To illuflrate this, and to 
 fiiew that, by the common law, the injury being repaired 
 before the adlion was brought, is an anfwer to the action, 
 he put the cafe of an a6lion of wafte brought againfl a 
 temnt, after he had repaired (a) ; and of an aclion 
 brought by a furety fued to judgment, againft his prin- 
 cipal, after the principal had paid the debt and cofts, 
 and entered fatisfaclion on record. He then faid ; — 
 *' But, in the prcfent cafe, the notion of a veiled right in There is no 
 the plaintiff to fue as for a total lofs, before the recapture, recov.'r'^as' i'^ » 
 is only liclitious and not founded in truth : For the infured !'^';'' '"*''' ''" '** 
 
 ' _ ■ inlufetl, having 
 
 is not obliged to abandon, in any cafe. He has an elec- a tight m ahan- 
 tion. No right can veft, as for a total lofs, till he has ,^'"' '■' ■■ 
 made that election. He cannot eleft before advice is 
 received of the lofs; and if that advice fliew the peril to 
 be over, and the thing infured in fafety, he cannot elect 
 at all ; becaufe he has no right to abandon when the thing 
 is fafe. Writers upon the marine law are apt to embarrals 
 general principles with the pofitive regulations of their 
 own country : But they feem all to agree that, if the thing 
 be recovered before the inoney is paid, the infured can 
 only be intitled according to the final event (b). — In the 
 cafe of Spencer v. Fravco (c), though upon a wager policy ^ 
 the lofs was held not to be total, after the return of the 
 fnip In fafety ; though fiie had been felzed, and long de- 
 tained by the King of Spainj in a time of actual war. — 
 In the cafe of Fitzgerald \. Pole {cl), though upon a wager If » n>ip be rr. 
 
 •^ tiTTrr covered alter » 
 
 policy, the majority of the Judges, and tne Houie oi iu„g iitiu.tion. 
 Lords, held there was no total lofs ; the fliip having lieen ^^^^ ZV^T. 
 reftorcd before the end of the four months, the time for wage, uoi^y. 
 
 (a) Vld. Co. Lit. ^3, a. (h) VU. Ro:m-s, Not. ^o, 
 
 .f„p.56j. (f) Sup. 514. {c!) rBio. Pari. Ca. 131, 
 
 iiif. 
 
 /high
 
 57 6 Of Abando7uncnt fB. L 
 
 wriicK fhe was infurecl. — The prefent attempt is the firfl 
 that was ever made to charge the infurer, as for a total 
 lofs, upon an intcrcjl policy, after the thing was reco- 
 vered : And it is faid, the judgment in Gofs v. IVithers 
 gave rife to it." — Here he recapitulated the grounds of 
 the judgment in that cafe («), and proceeded thus, — 
 " But it is faid that tliough the cafe of Gofs v. Withers 
 was entirely different, fome part of :he reafoning war- 
 ranted the propofition now inferred by the plaintiff from 
 it. The great principle relied upon was, that, as between 
 the infurer and infured, the contract being an indemnity, 
 the truth of the fails ought to be regarded ; and there- 
 fore there might be a total lofs by a capture, which could 
 not operate a change of property ; and a recapture fhould 
 not relate by fiction, like the Roman jus pojlliminn^ as if 
 the capture had never happened, unlefs the total lofs was 
 in truth reco-vered. This reafoning proved, e ccnverfoy 
 that if the thing, in truth was fafe, no artificial reafoning 
 fhall be allowed to fct up a total lofs. The words quoted 
 A » fl-ge in tw. at the bar were certainly ufed (£>}, ' that there is no book, 
 jtifigmetitotGf/s J ancient or modern, which does not fay that, in cafe of 
 
 V. frUherSf ex- _ •' 
 
 jiimcd. « the fhip being taken, the infured may dcniand as for a 
 
 * total lofs, and abandon.' But the propofition was ap- 
 plied to the fubjedl matter, and is certainly true, provided 
 the capture, or the total lofs occafioned thereby, ccJitinue 
 iothctima of aband:i::ng, and bringing the aclion. The cafe 
 then before the court did not make it neceffary to fpecify 
 all the reltriQions. But I will read to you verbatim^ from 
 say notes of the judgment then delivered, what was faid, 
 to prevent any inference being drawn beyond the cafe 
 then determined." — Here he read feveral paffages from his 
 argument in Gofs v. JVitherSy v/hich is fuily fet forth in 
 the foregoing account of that cafe, and then proceeded j 
 — « From this way of reafoning it by no means followed^ 
 that if the fliip and cargo had, by the recnptuve, been 
 brought fafe to the port of delivery, without havn:ig fuf- 
 tained any damage at all, the infured miglit abandon. 
 But without dwelling longer upon principles or autho- 
 
 (a) Sup. 568. [h) Vid. fup. 569, 
 
 ritie«4
 
 Ch.XIII. § I.] Upon Capture or Arrejl, 5^7 
 
 rities; the confequences of the prefcnt queftion are de- 
 cifive. It is impolTible thatany man fliould^^>T to aban- y^ie" iV.r (hip 
 don, in a cafe circumftanced like the prefent, but for voyage not loft, 
 one of two reafons : Either becaufe he has over-valued-. ^ *,'"'^"'*'^ 
 
 ' ougiit noi to ue 
 
 or becaufe the market has fallen below the original price, permit-cd to 
 The only reafons which can make it the intereft of the 
 party to defire to abandon, are conclufivc againfl allowing 
 it. If the valuation be true, the plaintiff is indemnified 
 by being paid the charge he has been put to by the cap- 
 ture. If he has ove: valued, he will be a gainer, if he 
 be permitted to abandon ; and he can only defire It be- 
 caufe he has over-valued. This was avowed upon the 
 firft argument ; and that very rcafon is conclufive againft 
 > its being allowed. ''^The infurer, by the marine law, ^^^ infarer 
 ' ought never to pay lefs, upon a co'itiatl of indemnity ought never to 
 than the value of the lofs ; and the infured ought never \\,l^lilt Jf the 
 to receive more. Therefore, if there were occafion to re- ^"^^> "°'' '^* '"" 
 
 fured receive 
 
 fort to that argument, the confequence of the determi- more, 
 nation would alone be fufficient upon the prefent occa- 
 fion. But, u^on principle^ this a6lion could not be main- 
 tained as for a total lofs, if the queftion were to be judged 
 by the ftriftefl rules of the common law : Much lefs can 
 it be fupported for a total lofs, as the queftion ought to 
 be decided by the large principles of the marine law, ac- 
 cording to the fubftantial intent of the contrail, and the 
 real truth of the fadl. The property, and daily nego- 
 tiations of merchants ought not to depend upon fubtleties 
 and niceties ; but upon rules eafily learned and eafily re- 
 tained ; becaufe they are the diftates of common fenfe, 
 drawn from the truth of the cafe. If the queftion depen I 
 upon the fatt, every man can judge of the nature of the 
 lofs, before the money be paid : But, if it depend upon 
 fpeculative refinements^ from the law of nations, or the 
 Homan Jus po/llitmniit concerning the change, or reveftirg, 
 of property ; no wonder merchants are In the dark, when 
 doElors have differed upon the fubjeft from the beginning, 
 and have not yet agreed. — To obviate too large an infe- 
 rence being drawn from this determination, I defire it 
 may be underftood, that the point here determined is, 
 7hat the plaintiff upon a policy can only recover an indemnitvy x^e Infured can
 
 78 
 
 Of Ahadonmeni 
 
 [B.I. 
 
 his lofs at tlie 
 time of the ac- 
 tion brought, or 
 offer to abandon. 
 
 If, after a total 
 Jols has been 
 paid, the (hip be 
 reftored, the in- 
 fared fhail not 
 be obliged lo re- 
 fund. 
 
 if, upon a re- 
 capture the cap- 
 tain fell the fliip 
 and cargo, as 
 being the bcft to 
 be done for all 
 concerned ; the 
 inlured msy 
 abandon. 
 
 Millciv. Fletcher, 
 Doug 219. 
 
 A tliip and 
 goods art cap- 
 tured and re- 
 captured, and 
 put i'l potTcffion 
 or thf captiiin, 
 wIh) t:ifpof:s ©f 
 both and puts 
 an end to the 
 voyage ; and in 
 fo d -11 g, a£ts to 
 the Iicll: of his 
 judgment for 
 the benefit of all 
 cone -ined : The 
 infurcd may 
 
 atar.dortf and 
 
 demand ns for a 
 
 occoi-tlhig ti the nature of his cafe, at the thne of the aEiion 
 brought J or, "at moft at the time of his offer to abandon. We 
 give no opinion, how it would be, in cafe the fliip and 
 goods were reftored in fafety between the ofFer to abandon 
 and the a(5lion brought, or between the commencement 
 of the action and the vcrditl : And particularly I defire 
 that it may not be inferred, that in cafe the {hip or goods 
 fhould be reilored^ after the money is paid as for a total lofsy 
 the infurer could compel the infured to refund the money 
 and take the Ihip or goods. That cafe is totally different 
 from the prefent, and depend.- throughout, upon different 
 reafons and principles. Here, the event had fixed the 
 lofs to be an average lofs only, before tlie aclion brought, 
 before the offer to abandon, and before the plaintiff had 
 notice of any accident ; confequently before he could 
 make an eletlion. Therefore, under thefe circumflances, 
 we are of opinion that he cannot recover for a total lofs, 
 but for an average lofs only ; the amount of which is af- 
 certained by the jury. — The judgment mutl be entered 
 up as for the average lofs ftated in the cafe •, viz. \o\. per 
 cent'' 
 
 The following cafe will fhev/ that if, upon a recapture, 
 the captain find that the voyage cannot bs purfued, and, 
 afling fairly for the benefit of all concerned, he fell the 
 fhip and cargo to pay the falvage, and thereby put an end 
 to the voyage j the infured may abandon, and recover as 
 for a total lofs. 
 
 A fhip and freight were infured from Montferratto Lon- 
 don : — The fhip v/as taken on her voyage on the 23d of 
 May by two American privateers, who took the captain 
 and all the crew, and part of the cargo, (which confifled 
 of fugars), out of her i and alfo took away the rigging. 
 She was afterwards retaken, and carried into Ne-zu Torky 
 where the captain arrived on the 23d of June, and, taking 
 pofTcfTion of the fhip, found that part of what had been left 
 on board of the cargo, was wafhed overboard; that 57 
 hogfheads of what remained were damaged, and that the 
 fliip was leaky, and could not be repaired without un» 
 loading her entirely. The owners had no florehoufe 5>t 
 New Tork. No failors were to be had there ; and the only 
 
 method
 
 Ch. XIII. 5 I.] Upon Capture or Arr:fi, r-'A 
 
 methoJ he had of paying the falvage, was by fale of the 
 fhip or part of the cargo. He did not know of the in- 
 furance. The expence of repairing the {hip would have 
 exceeded the freight by more than lool. J here was an 
 embargo on ail vefftls at Neiu York till the 27th of De^ 
 eembery and his fliip ought to have arrived at London in 
 Juiy Upon confulting with his friends at iVfw Yorky 
 he refolved to fell the fliip and cargo, as the mod prudent 
 ftep for the interefl of his employers. The cargo was 
 accordingly fold and paid for. The fliip was alfo con- 
 traded for ; but the perfon who agreed to buy her ran 
 away j and the captain left her in a creek near Nenv York, 
 and returned to Etiglaud, where he arrived in the February 
 following, and informed the plaintiff of what he had 
 done. The plaintiff immediately claimeu from the un- 
 derwriters as for a total lofs, and offered to abandon. — 
 The underwriters refifted this claim. The infured brought 
 an adion on the policy, claiming as for a total lofs. The 
 defendant infifted that it was only an average lofs —Lord 
 Mansf.cldy who tried the caufe, told the jury, that if ihey 
 were fatisfied that the captain had done -what was hcjl f:r the 
 hem ft cf all concerned, they muft find as for a total lofs. The 
 jury found a verdict according to this dircdion ; and 
 upon a motion for a new trial, the court were clcarlv of 
 opinion that the plaintiff had a right to abandon^ and claiiji 
 as for a total lofs — Lord Mansfield faid j— « On the trial 
 of this caufe, it did not appear to me that there was 
 any queftion of law, and no cafe was afked for. It was 
 impoinble to afk for one till the fads were afcertained j • 
 and when afcertained, it would have been impoffible to 
 ftate them in any v/ay which could have left a doubt on 
 the law. It was not contended that a capture necejfarily a capmrc Jo« 
 amounts to a total lofs, as between infurer and infured: ""' "'"^'^raiiiy 
 
 1 , , , ' am -UDt to a t«» 
 
 nor, on the other hand, that, on a capture and recapture, ras ioi«; no. 
 there may not be a total lofs, though there remains feme [llTJcutTa'trng 
 material tangible part of the Ihip and cargo. Neither '^-"^• 
 was it contemied that the captain has an arbitrary 
 power, by his own ad, to make the lofs either partial 
 or total, as he pleafes. The quelTon is fimply this, 
 V'hethcr the confe uences of the capture were fuch as, 
 Iiot'.vithitandiiig the recapture, occauoned » total oljiruc- 
 
 M 2 tkn
 
 580 Of Abandonment "[B. 1. 
 
 iionof the voyage, or only a partial Jloppage., as in the 
 cafe of Hamilton v. Mendez {a). In that cafe, and in Gofs 
 V. Wither! [b)y great flrefs was laid on the fituation of 
 the fhip and cargo, at the time when the infured had 
 notice^ at the time of the offer to abafidon^ and at the 
 time of the aFlion brought. No cafe fays, that the bare 
 exiftence of the hulk of the fhip prevents the lofs being 
 total. The cafes where the infured may abandon are. 
 In what cafes < If the voyagc be loft, or not worth purfuing ; — If the 
 
 the infured may ., ,,., -tr r ^ i rr 
 
 abandon. * ialvage be high ;— 11 lurther expence be necellary ; — 
 
 * If the infurer will not, at all events, undertake to pay 
 
 * that expcnee [c), Scc' Here, at the time of the cap- 
 ture, there were no hopes of a recovery ; no friend's fhip 
 in fight ; no means of refiftance ; all the crew taken out, 
 and pait of the cargo and the rigging alfo taken away. 
 When the fhip was retaken and brought to Ne%u Tork, 
 it flill continued a total lofs. Neither the infured nor the 
 infurers, had any agent in the pla(?e. The court of ad- 
 miralty mufl have proceeded fecundum <£qmim et bonumy 
 and might have fold her for the benefit of thofe concerned. 
 When the infured firft had notice and offered to abandon, 
 and when the adlion was brought, it was flill a total lofs. 
 The voyage was abandoned, the cargo fold, and the fhip 
 left to be fold. The only anfwer the defendant makes, 
 or can make to this, is, that the lofs was total, indeed, 
 but the captain made it fo by his improper condu6l ; for 
 that, on his taking polTefHon of the fhip, the lofs became 
 partial, and that he ought to have purfued the voyage. 
 
 The csp'a'm has But was this defence true in fa£l ? The captain, when he 
 thothy t^ do the Came to i^eiv Torky had no exprefs order, but he had 
 bed hs can for an implied authority, from both fides, to do whst was 
 
 the benefit of all . ^ , 
 
 coiiccined, and right and fit to be done, as none of them had agents in 
 h<rund "by hL '^^ place. And for the confequences of whatever it was 
 i^'^s* right for him to have done, if It had been his own fliip 
 and cargo, the underwriter muft anfwer ; becaufe this is 
 within the contraft of indemnity. Suppofe there had 
 been no infurance, what ought the captain to have done ? 
 I. As to the cargo: According to the courfe of the voy- 
 age, the fhip fhould have arrived at London in Jtdy. On 
 '•- 
 
 (p) Sup. 572,— (3) Sup. 567.' {c) Vid. fup. 562. 
 
 t'h«
 
 Ch. XIII. § I.] Upon Capture or Arreji, 581 
 
 the capture, part had been taken out, fomc had been 
 wafhed overboard, fome damaged, and the whole, from 
 the leakinefs of the veflel, in a periftiable ftate. There 
 were no ftore-houfes, nor could the {hip proceed in the 
 ftate flie was in. The crew was gone, and an embargo 
 hid on till December. What ! fliall a cargo, which was 
 intended to arrive at London in Jul)-, be kept in a perifti- 
 able ftate at New Ybrk, in a leaky veiTel, till December f 
 1. As to the Jbip .• It was certainly better to fell her than 
 to brinor her to London. There was no crew belonging 
 to her, and ftie had no cargo. Even if all the cargo had 
 been left, the expence of repairs would have exceeded 
 the freight. If ftie had been brought home, the expence 
 of bringing her might have been more than what ftie would 
 ha\*e fold for in London. It has been faid, that the da- 
 mage would not have fallen on the underwriters j but the 
 argument drawn from thence is a fallacy, for that circum- 
 ftancc goes to determine it to be the intereft of the in- 
 fured to abandon the voyage. The queftion is, what did 
 the owner fufFer by the capture ; and it appears that he 
 fuffered fo much that it was not worth while to purfue 
 the voyage. The whole voyage was loft. As the cap- 
 tain did not know of the infurance, he had no temptation 
 to give the turn of the ft ale to the one fide or the other. 
 I left it to the jury to determine whether what the captain 
 had done, wzsfor the benefit of the concerned. If they had 
 found that it was, in words, where would have been the 
 queflion of law {c\) r" 
 
 So, if the ftiip be fold by the captors, and the captain jf the c:ipf3ia 
 aftingc as agent for the owners, purchafe the fliip on p^rchafethciiup 
 
 ^ O ° ^ ^ from the captors 
 
 their account; ths fhall be confidered as a recovery of for account of 
 
 the ftiip for the owners, and the money thus paid, as fal- '^on^* " p"id ' \% 
 
 vage ; and if the voyage can be profecuted, this is only a »"iy =» p*"'^! 
 partial, and not a total, lofs. 
 
 Thus . — A ftiip infured for fix months, was captured M^M^jier, v. 
 
 and carried into Charlejlown^ where fiie remained upwards j^^"* [\l ' ^^' 
 
 (a) In Plantamour v. Stat>lcs, fup. 169, Mr. Juftlce Bullcr 
 adopts this doftrine, viz. that the infurers are bound by the afts 
 of the captain, when he does what he deems hffl for the benefit of 
 ail concerned. 
 
 H 3 .of
 
 553 Of Abandonmeni [fe.I. 
 
 of 3 month, and then was fold by the captors, and pur<. 
 chafed by the captain for account of the original owners. — 
 In an action on the policy, the defendant paid 6c\.per cent. 
 into court, as for a partial lofs — The plaintiff contended,, 
 that the fhip having been captured and fold by the cap- 
 tain, after fiie had been a month in their pofTefTion, this 
 was a total lofs. — Lord Kenpn^ who tried the caufe, held 
 that this v/as only to be confidered as a partial lofs, and 
 that the owners could not abandon. fJe confiuered the 
 captain as agent for the owners, recovering the velTelupoix 
 their account, and the price as a kind of falvage, the 
 amount of which would be the lofs fufcained, and which 
 only conflituted an average lofs. He admitted, however, 
 thar when the fliip had been captured, and was carried 
 into port, in the enemy's poiTeffion, the infured might, 
 at that period, have abandoned. But not having aban- 
 doned till after the fhip was recovered, they could now 
 otily go as for a partial iofs.' — The jury found a verdict 
 according to this direction. 
 
 Having laid before the reader the authorities upon quef- 
 tions of abandonment upon loffes by capture and arreft 
 of princes, we will now proceed to confider, 
 
 2. Of the right of abandoning in other cafes. 
 
 Shipwreck h Shipwreck is generally a total lofs. What may be faved 
 t r'^'^jr'^ *' * of the fli'p or goods is fo uncertain, and depends fo much 
 on accident, that the law cannot diftinguifh this from the 
 abfolute dc{lru6lion of the whole. The wreck of the fhip 
 may remain and may be faved, but the flnp is lofl. A 
 thing; is faid to be deflroyed v/hen it is fo broken, disjointed, 
 or otherwife injured, that it no longer exifts in its origi- 
 nal nature and efience. So, the goods may remain ; but 
 if no iliip can be procured m a reafonable time, to carry 
 them to their place of deflination, the voyage is lofl, and 
 the adventure fruftated. 
 But a ftr-nding But the mere Jlranding of the fhip is not, of itfelf, 
 dcfTml'd ' a' Lui deemed a total lofs, fo as to entitle the infured immediately 
 ^'^''^- to abandon. If, by fome fortunate accident, by the ex- 
 
 ertions of the crev/, or by any borrov/ed alTiftance, the 
 fliip be got off and rendered capable of continuing her 
 
 voya£-e.
 
 Cznht 
 
 V. S'.'. 
 
 B:rk; I 
 
 T. R. 
 
 187. 
 
 
 Aihip per 
 
 t ni«d 
 
 rcr vo\ai 
 
 :^, out 
 
 w.-j i;> d 
 
 m^ged 
 
 as not to 
 
 . be 
 
 Ch. XIII. § I.] Upon Shipwreck, ^V. 5 S3 
 
 vova^e, it Is not a total lofs, and the infurcrs are only 
 liable for the expences occafiuned by the ftranding. It 
 is only where the ilranding is followed hy Jlipwreik, or ia 
 any other way renders the iliip incapable of prolccuting 
 lacr voyage, that the infured is entitled to abandon (a). 
 
 It is a rule that, to entitle the infured to abandon, there No p»rtiai 1 o, 
 niuft have been, at fome period of the voyage infured, or can *^ be' tmncd 
 during the continuance of the rifle, a total lofs; and the i'"'^ atotaiiof*. 
 following cafes v.'-ill (hew that no partial lofs, however 
 great, occaficned by the perils of the fea, can be turned 
 into a total lofs. 
 
 An infurance was made on the (hip Friendjhlp from Wy- 
 burgh to Lynn. — In an aclion on the policy, the defendant 
 pleaded a tender of 48I. — ^The plaintiff claimed as for a 
 total lofs, and upon the trial of the caufc", it appeared 
 that the fliip had fuffcred fo much in her voyage, that 
 when fhe arrived at Lynn, flie v/as not worth repairlne. worth repaimf; 
 
 ■^ _ r o yci, as tlie <ia- 
 
 The damage, however, fuilained by the fliip, did not ex- mage w:ij only 
 
 ced 48 1. per cent, the fum which the defendant had paid \/r^tent rnls^is 
 
 into court upon his plea of tender. — Upon this cafe the ""« ^ '«"■'' '"f'> 
 
 defendant infifted that thi^ was a partial^ and not a total, cann«t aban- 
 
 lofs, and that therefore the plaintiff had no right to aban- *^""' 
 
 don. — ^The court were clearly of opinion that the owner 
 
 cannot abandon, but in the cafe of a total lofs, and that 
 
 they could not determine that there had been a tctal lofs, 
 
 when the jury found that there was only a lofs of 481. per 
 
 cei^t. — Mr. Juftice AJl:urJl faid, *' It will be making the 
 
 infurers anfwerable for the goodnefs of the fhip, if they 
 
 are held liable for more than i\Vi.. per cent. It is Hated that 
 
 the fhip was not worth repairmg ; but non conjlat that, if 
 
 the fhip had not received any damage during the voyage, 
 
 flie would have been worth repairing : And though fhc 
 
 was not in a found flate, yet flie had been 24 hours in 
 
 fafety ; and the jury having afcertained the amount of 
 
 the damage flie has fuftained, I cannot fay that the 
 
 plaintiff ought to recover more." — Mr. Juftice Buller faid, 
 
 «* Nothing can be better ellablifhed than that the oiuner 
 
 of a fhip can only abandon in the cafe of a total lofs hap- 
 
 («) Vid. Enur'ig. torn, 2, p. 180. 
 
 n 4 pcning
 
 c84 Of Abandonmeni [B.I. 
 
 pcning ai fame period or other of the voyagi\ which cannot 
 have happened in this cafe, as the jury have exprefsly 
 found thar the iofs amounted to 4 81. per cent. In the cafe 
 of Jenkins v. Machenziey though the fhip was brought 
 into port, yet the capture, ^j- between the injurer and the 
 injured^ was a total Iofs. The true way of confidering 
 this cafe is, that it was an infurance on theflnp^for the voy- 
 age v and if either the fhip or the voyage be lofl, it will be 
 a total Iofs ; but here neither was loft. The cale of Ha- 
 milton V. Me'idez {a) is dec '.five." 
 Furneaux v. Thus :— llc? fliip Pritice of Wales was infured, ' In 
 
 E^'t^^'oclw * port or at fea, for fix months frci-i the i8th of July 
 Fark 166 < ^TJI'' — ^^'^ '^'^^ '^^ government fervice, and bound 
 
 A (hip, ii.fLi.ed from Cork to ^ebec. She arrived there ; but the feafon 
 for fix nio,ti-t;, being far advanced before (he was ready to return, fhe 
 
 receives ai' inju- ° , i i r r i ^t it. 
 
 jy -aiiihin tht was rcmovcd into the balon ; trcm Vv'hence on the 1 ^Vci 
 time I ^nd the ^£ j^^^^^tber flic was driven by a field of ice, and damaged 
 
 raptaiu beu'g . . 
 
 unabi? to get by running on the rocks. Her condition could not be 
 feiu 'ucrT^ff'':'- cxamincd into, till the Jpril following, after the expira- 
 fie t;me : This ^j^^^ q£ ^.j^^ policv. She was then found to be bulged, 
 
 IS only a pai tul *^ ' . 1 r 1 
 
 lof«. ' and much injured, but not irreparably fo. In the pro- 
 
 grefs of the repair, difficulties arofe for want of mate- 
 rials ', and the captain, after confulting the mere hants and 
 agent in the place, fold her. An account of the Iofs was 
 made up, charging the infurers for the whole amount, and 
 crediting them for the money for which the fhip was fold, 
 as falvage.— Lord Mansfield^ at the trial, faid, — '* The 
 great point in the cafe is, v/hether there be a total Iofs occa- 
 fioned by this accident. It is a new qvteftion, upon which I 
 (hall referve a cafe for the opinion of the court." — A cafe 
 being referved, the court, after argument, were of opi- 
 nion, that the fhip fhculd be confidered as damaged^ on 
 the 19th oi November y but not totally lojl. — Lord Man field 
 faid, the juflice of the cafe feemed to be that the Iofs 
 in November fhould be taken as an average^ not as a 
 
 ,. , > total Iofs. 
 
 I'tTgcala V. 
 
 F'-i!:, 5 Bro. So, %vhere the Good Fellow privateer was infured, * At 
 
 tVti'les, 641. * s"d from Jamaica on a cruife for four months, valued 
 
 A privateer, in- , . — — — ■ 
 
 (ured for four 
 
 Hi tragCf ISj 
 
 at
 
 Ch. XIII. § I.] Lofs cf the Voyage, 585 
 
 * at loool Without further account, and free from' pvtrn<Te^ forced in^o port 
 
 —Upon ?. fpecial verdid it appeared, that while the. prjr [he cf^j'tTt it 
 
 vateer was on her cruife, and within the four months, the '" ^''^*'/ "' *•" 
 
 . » . >» port af'tr the 
 
 crew mutinied agamll the cptain and his officers, and br 'oi" moiufx are 
 
 force carried the {hip to Jamaica^ and, before her arrival hai',^ec? '.Tn' '^^ 
 
 an te» 
 
 rfiere, by force, feized the beat, fire-arms, and cutlaffes, *^*'''*' ^^^ "° 
 
 carried them off, and deferted the fhip, whereby the an ^'ver^jc bfs, 
 
 voyage and cruife were prevented and loft for the remain- r "a," I w's/il 
 
 der of the four months j that the fhip arrived at Jamakay f'°"* ""''"S'; 
 
 but not till after the end of the four nionihs. — Upon this ro/rf//o/i,bccaufc 
 
 cafi the King's Bench gave judgment for the plaintiff. ^^ZTt'^X^i *" 
 
 Upon a writ of error, the Excheq,„=:: Chamber unani- 
 moufly reverfed that judgment ; anci the Houfe of Lords 
 confirmed the judgment of reverfal, being of opinion, 
 with the majority of the judges, that the infurer, being, 
 by the terms of ihe policy, free from all average, the 
 plamtitF could not be entide'l to recover but in cafe of a 
 total lofs ; and the fiiip being found, by the fpecial ver- 
 di6t to be in good fafety, at her proper port, at and after 
 the end of the four months, for which the infurance was 
 made, there could be no lofs {a). 
 
 If, by any accident or misfortune, the (hip be prevented gut if t^e vay- 
 
 from proceeding on her voyage, and the voyage be thereby J^' ^* '°!J' 
 
 loft ; this is a total lofs, not only of the fhip and freight, caufe, ii •» a to- 
 but alfo of the cargo, if no other fliip can be procured to 
 carry it to its port of deftination. 
 
 Thus : — An infurance was made on the (hip Grace ^ her Manning ▼. 
 
 cargo and freight, « At and from Tortola to London \ ^Tjg'.'hl' 
 
 « warranted to depart on or before the ift of Augiifi 1781. ^^s. 
 
 •The {hip valued at 2,470!. the cargo at 12,400!. and On a voyajt 
 
 • the freight at a, 2 col. ; at 3C guineas per cent, to return ^Z""", '^"'"f"''' ^<» 
 
 ° -> ' J o ^ London, the Ihij* 
 
 by fe.) <),image it 
 
 ^——~— — — — — — — ^ obli^fd to put 
 
 b'ck. on the 
 
 (a) It has been faid {Tarly I'JQ.) that cafes like the prefent thir.i f'ay, and 
 
 can never arife again, becaufe it originated in a wager policy, " , "J^ ,f,j*,^ "' 
 
 which is prohibited by law. — The policy^ in this cafe, can fcaicely «nd no 'Hher 
 
 be faid to have been a wager-policy : It was rather a valued J?*'!',"" ^* 8ot 
 
 o r i lur tnt cargo :— 
 
 policy, free from average : But it muft be recollected that there This 13 a total 
 
 is in the flat. 19 Gil. c. 37, a provifo to exempt privateers |,'J^' hJ ',^^^3'^' 
 
 from the operation of the firfl claufe, which prohibits infurances po, and the in- 
 
 intereft or no intereft ; and therefore the policy in this cafe would ^|''^'* ™^y ''^'"* 
 
 . , ^ ' den. 
 
 be a good and valid poucy at this day. 
 
 < 10
 
 ^86 :,;' Of Abandotiment fB. !• 
 
 * lo,i'^:'iKnt. if fhe departed with convoy from the We^ 
 s/MV^f, and arrived ; the jlipy freight ^ attd goodi warranted 
 -,.;,' ^ify^'^ of particular average.' — The {hip and cargo had 
 ..'.'.% '.''ijeen 2. Dutch Y^'vzz^ condemned 2.tTortola\ but during 
 •four or five months that fhe ftaid there, was never un- 
 loaded. On the 1 ft of Auguji the whole fleet of mer« 
 thanlmen, with their convoy, got under weigh; but 
 not being able to get clear of the iflands that day, they 
 came to an anchor during the night, and the next day 
 cleared the iflands. About ten o'clock that day, feveral 
 fqualls of wind arofe, which occafioned the fhip to ftrain 
 and make water fo fall, that the pumps were obliged to 
 be worked •, and on the 2d the captain made a fignal of 
 diftrefs, and was obliged to return to Tcrtola. On her 
 arrival there, the captain niade his proteft ; and a furvey 
 was had, by which the fliip was declared unable to pro- 
 ceed to fea with her cargo, upon a London voyage, and 
 that (lie could not be repaired in any of the Englijb iflands 
 in the ^Fe/l Indies. There was no evidence of any fpecial 
 damage to the cargo, which was fold for a fum, within 700I. 
 of the value. The owners purchafed two- thirds of it ; the 
 greateft part of which might have been fent home and fold 
 at a great profit. The infured claimed as for a total lofs 
 en the fliip, cargo, and freight. At the trial, though, the 
 cargo v.\*s warranted free from average, yet it feemed 
 dangerous fo permit the infured to abandon, and thus 
 turn an average into a total lofs. The jury, however, 
 thought the infured entitled to what he claimed, and 
 found accordingly. — Upon a motion for a new trial, the 
 court, upon full confideration, were of opinion that the 
 verdicl was right and ought to ftand. — Lord Mansfield 
 faid, — " At the trial, my prejudices were in favour of the 
 underwriters ; but upon better confideration, I agree with 
 the reft of the court that the jury did right. If by the 
 per its injured againf^ the voyage be lojl and gone ^ it is a total 
 lofsy otherwife not. The (hip received an irreparable hurt 
 within the policy, which drove her back to Tcrtola^ where 
 onlv two ftiips could be had, both together not capable of 
 taking the whole of the cargo on board. The voyage 
 was fo completely loft, that no ftiip could be got •, and the 
 infured were unable to fend that part of the goods which 
 2 they
 
 Ch.XIII. § I.] Cargo damaged. ^S; 
 
 they had purchafed, forward to England ^ and yet no 
 body bought but to fend to England, if the voyage 
 could have been continued in another Ihip, there might 
 have been freight pro rata. But it was admitted that 
 there was a total lofs ©n the freight, becaufe the fliip could 
 not perform her voyage ; and the infurcd were not to 
 wait till fhips could be had. The fame argument applies 
 to the fliip and cargo- This is a contrati ot indemnity, 
 and the infurance is tliat the fliip (hall come to London. 
 Introducing nice diftinflions is inconvenient and dange- 
 rous. Upon turning this cafe in every view, the court arc 
 of opinion that the voyage was totally loft; and this is the 
 ground of our dttermination." 
 
 But though the voyage be loft, yet, if this have not been ft can «nir be 
 occafioned by the happening of any of the perils infured p?°"iy'„|-i),ri " 
 againft, it will not be a lofs within the policy. As if, t epai'cy. 
 in the courfi of the voyage, the captain be informed 
 that the port of deftination is in the hands of the enemy, 
 or fhut againft ftiips of his nation, this will afford no 
 ground for the infured to abandon {a)^ and though the 
 cargo, being of a periftiablc nature, is loft in confcquence 
 of the difappointment {b). 
 
 If a cargo be damaged in the courfeof the voynge, and If ^ cirgo he 
 it appear that what has been faved is lefs in ralue than ^J'"^"?^'' *'-^".'<» 
 the amount of the freight ; this is clearly a total lofs. *aiue to !«<"» 
 This doftrine is warranted not only by the paflage from it u'iiibca total 
 Le Guidon which has been already cited, but alfo by '"^'" 
 the Opinion of Lord Mansfield in the cafe of Gofs v. 
 Withers (r), and by that of Lord Hardivicke in the fol- 
 lowing cafe. 
 
 An aflion was brought on a policy upon corn for B'>yf':JJ v. 
 200 1. but of the value of 217 1., the defendant having l^ZT. ic^f.'^' 
 fuftcred judgment to go by default, upon the execution 
 of a writ of enquiry, before Lord Hardivichy C. J. it 
 appeariiig that the corn, being damaged, v/as fold for only 
 
 {a) Per Lord Elknhnrnugh at N, P. in Luhheck v. Rcw- 
 
 eroftt flip. aao. {b) K. Hadkinfon v. Rollnjon, fup. 218. 
 
 [c) Vid. flip. 5^7.
 
 5-83 Of Abandonment [B. 1. 
 
 <$7l., and the freight came to 80 1.— Upon this, the 
 queflion was> whether, as the freight exceeded the fal- 
 vage, this was not to be confidered as a total lofs. For 
 the plaintiff it was infilled that he ought not to be in a 
 worfe fituation than if his corn had gone to the bottom ; 
 for then he would have had no freight to pay ; but now 
 that the voyage has been performed, whereby freight is be- 
 come due, he has a right to apply the falvage to difchage 
 it. It was proved to be the ufage, that, where the fal- 
 vage exceeds the freight, to dedu£l the freight out of the 
 falvage, and make up the lofs upon th'^ difference.— For 
 the defendant it was infilled that, as his infurance was 
 upon the corn, and the whole did not perilh, he ought, 
 in making up the lofs, to dedu£l the falvage : But no 
 inftance could be fhewn, on either fide, of an adjuftment 
 where the freight exceeded tlie falvage. — The Chief Juf- 
 tice was of opinion that, within the reafon of dedu£ling 
 the freight, where the falvage exceeds it, the plaintiff, in 
 this cafe, where it fell fhort, was intitled to have it con- 
 fidered as a total lofs. The jury found according to this 
 dire£lion {(i). 
 . < , r -.v In France the diftin^lion is this : In cafe of fhipwreck, 
 
 in wnst cafe the -t » 
 
 infured may the iufured may abandon, though the goods be recovered 
 i3w"of^F»aJ«. ^ ^^"i carried to their place oT dellination, becaufe goods 
 thus faved are generally in a bad and unmarketable con- 
 dition. But if the fhip become unnavigable, the infured 
 cannot abandon the goods, if by any other fnip they may 
 be conveyed in time to their place of dellination (^). 
 
 [a) This cafe was before the year 1749, when the common 
 memorandum was introduced into policies, that corn;, &c. 
 fhould be free from average^ unlefs general, or the fhip be 
 ftranded. Vid. Mafon v. Scurray, fup. 226. where, in a fimilar 
 cafe, Lord Mcnsfield held it to be but a pai tial lofs, for which, 
 as that cafe was upon a policy with the com.mon memorandum, 
 the infurer was not liable. »—(^) Emerig. torn. a. p 187, iSS. 
 
 Se^.
 
 Ch. XIII. § 2.J Witliin what Time. 58*) 
 
 Sea. 11. 
 
 Within what Time the infured may abandon. 
 
 IF by any of the perils infured againft, the (hip and 
 cargo be loft for a time, or the voyage be loft, fo as to 
 afford no prefent profpecl of faving the one, or profecut- 
 ing the other with effeft, this, while it lafts, amounts to 
 a total lofs, and the infured may abandon ; but he is not, 
 as we have already fecn {a), in any cafe, bound to aban- 
 don. He may chufe whether he will take what can 
 be faved, and demand as for a partial lofs, or abandon, 
 and claim as for a total bfs. A lofs may be total in its 
 nature, and fuch that no fubfequent event can render it 
 partial ; another, which at firft (hall be deemed total, may, 
 by fubfequent events, become partial. If tlie infured, 
 while he has a right to confider the lofs as total, ele£l 
 to abandon, this will fix the nature of the lofs ; and no 
 fubfequent event can render it partial. It feems reafon- Some time 
 able and neceflary, therefore, that fome time Ihould be J^^^ ,^^ ^^^^^^ 
 fixed when the decree of refpcnfibility of the underwriter of ''^f infurer** 
 
 ° _,, . „ refponfibility 
 
 ihould be afcertained. The mfured muft not, by treat- (houid be afay- 
 ing the accident for a time as a partial lofs, take the '*'"* ' 
 chance of making the beft of it for himfelf ; and when 
 he finds that it will not anfwer, attempt, by abandoning, 
 to turn it into a total lofs. In feveral m.aritime ftates 
 on the continent, pofitive regulations have been eftabliflied, 
 limiting the time, after a lofs has happend, within which 
 the infured may abandon. In Francey Spairty and Hollandy 
 the times are limited by law, according to the diftance of 
 the place where the lofs happens, within which the aban- 
 donment muft be made {b). 
 
 But the times thus limited muft often prove either too ^^ E^igUnd, x>i9 
 
 inluicd, as luon 
 
 long or too ftiort, and frequently occafion great lofs and a^ nc i> informed 
 
 (.•f a roul lofs, 
 mult c\zi.\ to a. 
 l>uNdun ur not, 
 Q H he meaa tu 
 
 ■ (a) Sup. 564.— (^) Vid. O.-d. de la mar. h. t. art, 40, ^^, n^„n^ he 
 49 i a Mag. 4j6. "'"'* 6'^* "'^"'^* 
 
 incon-
 
 59® Of Abandonment [B. L 
 
 abknoticetotht inconvenicncc either to the infured or the Infurer. In 
 
 jnlurers ; oihtr- 
 
 wile he will England we have no fuch pofitive regulation, nor any 
 tTIbaiuiorJ'^^' time limited by law for abandoning : Our courts have 
 laid down a rule, which fcems better fuited to the prac- 
 tice of commerce, and more likely to prevent frauds than 
 thofe we havejuft alluded to. This rule is, that as foon 
 as the infured receives advice of a total lofs, he niufl 
 make his ele£lion whether he will abandon or not : If 
 he determine to abandon, he muft give the underwriters 
 notice of this nvithin a rcafonable time after the intelli- 
 gence arrives ; and any unneceffary delay in giving this 
 notice will amount to a waver of his right to abandon ; 
 for unlefs the owner do fome acl, fignifying his intention 
 to abandon, it will be only a partial lofs, whatever may be 
 the nature of the cafe, or the extent of the damage («) ; 
 unlefs, in "eed, it be in effed total. This rule, which 
 has been long eftabiinied, is an logous to the general prin- 
 ciple of the common law, which requires that ail notices 
 of a6ls, affedlng the interefts of third perfons, fhall be 
 given ivithin a reafonable time. In the following cafe this 
 dcclrire was firft explicitly laid down by the court of 
 King's Bench. 
 'ifrrch[!/\.EJ!e, Goods wcrc iufurcd, * from 'Jamaica to London.''' — 
 ' ^ ^ ^°^ '^^^^ ^'P ^^^ captured by an American privateer ; 
 A ihip bcng and, in a few days aftenvards, the captor, having 
 takes 'out hTr ^ ftripped her of her ftores and part of her rigging, and 
 fiores anf] pi.t j^j^yj^P taken out fome of her hands, fet her at liberty. 
 
 or her crew, aiin <^ ^ •' 
 
 fctsier .it'iijc- There was a claufe in the policy to exempt the unrier- 
 hig..lier to leiu'n Writers from average lofTes under 3 per cent. : And the 
 into ii^ nearefl -^j.^ ^f j^^^ caxjTQ takcn out did not amount to that fum, 
 
 poit, her voy.ige •• ^ 
 
 is loft, .itui her in confequence of the {hip's lofing a p#rt of her crew, 
 
 jM u red "' i's^ fold '^ became impoffiblc for her to purfue her voyage, and 
 
 by :in ngtnt who f]^e ^,35 obIic;ed to bear av/av for Charleftoivuy where flic 
 
 vtnt.— But, af- was put into the hands of one Cruden, a part owner, 
 
 icr inree yean, -^ j- j^ ^t carro, but remitted none of the money home, 
 
 fured adopts the ]n his bccks, he gave the iirjderivriters credit for the 
 
 ads of thci'Pcnr, .1 r ^ r \ ^ • 1 1 • 
 
 he ih;ai not he at amount. At the tmie of the iale he was m bad circum-. 
 
 litjcrty to ab.in- 
 
 fioii, and rhri;w __________________________^____________________________„ 
 
 the lofs occaf.on- 
 
 «d by 'he tailLire 
 
 ot the agent orj {&) Pcr B^Usr^Z. I T. R. 6j6o 
 
 the undeiwf iters. _ 
 
 itanccs,
 
 Ch.Xni. §2.] WithimuhatTime. 591 
 
 ftanccs, and afterwards became infolvent. It appeared, H. n.;g!,: v.av* 
 
 , 111 abandoned, but 
 
 however, that the ether ownicvs looked to Cruden for two he oughr ta h»v» 
 or three years for payment; during all which time, no a^'.y 'on'TcJil!: 
 tiotice of abandonin? was given by the infured to the '"5 i>uf!iigence 
 
 J •* T <-,• , ,. , . ofthelofs. Not 
 
 underwriters. In an aftion on the policy, the defendant having done fo, 
 paid a fum of money into court, being the an^ount of the ll,' theVgen"****' 
 average lofs. — Two queftions were made at the trial: 
 i^z*;^, whetlier the plaintiffs were entitled to recover as 
 fpr a total lofs. Upon this, Mr. Juftice Biilleri wlio tried 
 the caufe, was of opinion that, as there had been a 
 capture, which for a time had occafioned a total lofs, 
 the owners had an option to abandon, or not, as they 
 pleafed : But, if they had chofen to abandon, they ought 
 to have done it immediately, upon receiving intelligence 
 of the lofs ; and, as they had not done fo, but had looked 
 to Crud£n^ as their agent, for payment, they had waved 
 their right to abandon, and could, only recover <is for a 
 partial lofs. The fecond queftion arofe out of the par- 
 ticular circumftances of the cafe, not properly belonging 
 tojtliis branch of the fubjeft, and, indeed, of no general 
 importance. The jury found a verdi£t for the defen- 
 daut. — Upon a motion for a new trial, the court {a) 
 were clearly of opinion that the nlaintiff was not entitled 
 to recover. — Mr. Juftice Afnirfl faid ; — « The general 
 rule is, that where^any part of the property infured lias 
 been faved, the infured cannot recover as for a total lofs, 
 unlefs he make his eleftion to abandon, and give reafon- 
 able notice to the underwriters of his intention. But it 
 is contended that the infured never wave their right to 
 abandon ^yhiIe they are managing in the beft manner they 
 can for the benefit of all concerned: And that argu- Thcmeaninf gf 
 ment is grounded on the comn\on claufe inferted in thcdaufc inth« 
 
 . policy which cn- 
 
 cvery policy, whereby the infured is authorifed, * to fue, =bies he infured 
 
 * labour and travail, in and about the defence, fafeguard, recovery ."/ Ihc 
 
 * and recovery of the goods, &c., without prejudice to p;"'^J,,icT'lo''"he 
 
 * the infurance.' Now this claufe docs not warrant the 'nfur^nce. 
 pofition to the extent contended for. The meaning of 
 
 (a) Mr. Juftice 4fhurj1 airi Mi . Jaaicc Buller. 
 
 it
 
 59* 
 
 Of Abandonment 
 
 [B.L 
 
 The Infured is 
 bound to decide 
 and give notice 
 of his decifion 
 the fiift oppor- 
 (uaity. 
 
 If he tie3le(ft 
 this, he adopts 
 rhe adls of the 
 agent. 
 
 If the captain be 
 continued in the 
 management af- 
 ter foch notice 
 to the under- 
 wriiers, he be- 
 come g theit 
 ageat. 
 
 it is, that, till the infured have been informed of what 
 lias happened, and have had an opportunity of exercif- 
 ing their own judgment, no z€c done by the mafter fhall 
 prejudice their right of abandoning: And this is reafon- 
 able, becaufe the lofs may happen at a great dlftanee, 
 fo that the infured cannot exercife their judgment imme- 
 diately : It is therefore ncceflary that the mafler, who is 
 on the fpot, fhould do the beft he can. But the infured 
 are bound to decide, and fignify their eIe<flion to the 
 underwriters the firfl opportunity j for though the per- 
 fon who takes upon him to acl on the occafion for the 
 benefit of all concerned, is not the agent of the infured, 
 yet if, upon receiving notice of the lofs, they do not 
 ele£l to abandon, they adopt the a£ls of fuch perfon, 
 and make him their agent. This is fomething like the 
 notice that is to be given to the drawer of a bill of ex- 
 change, in cafe of non-payment, which, if the holder 
 omit to do, he is confidered as giving credit to the accep- 
 tor, and therefore the lofs, if any, muft fall on him. 
 There may be cafes where the a<^s of the captain may 
 not make him the agent of either party ; and then he 
 only adls in common for them both, till notice is received 
 by the parties at home. If, after fuch notice, he be con- 
 tinued in the agency, he becomes the agent of the party 
 by whom he is fo confirmed : But he cannot be confi- 
 dered as the agent of the underwriters, till notice has 
 been given to them, and they have had an opportunity 
 of exercifing their difcretion, whether they will or will 
 not continue him ; though, till notice of the lofs was 
 firft received by the infured, the property continued at 
 the rilk of^" the underwriters. Here, Cruden for near 
 three years was confidered by the infured as their agent ; 
 credit was given to him in that character 5 frequent ap- 
 plications were made to him for payment ; and, till his 
 infolvency, there was no appearance of any intention to 
 difown him : That was the firfl moment when the in- 
 fured thought of abandoning. — Mr Juftice Biiller faid ; 
 — " It is true that the infured are not boimd to abandon : 
 On the contrary, all the cafes have faid that where they 
 are entitled to abandon, they have the option to do fo or 
 not J but unlefs they do ele<3; to abandon, it is only a^ 
 
 average
 
 €h, XIII. § 2. J Witbin ivbat Ti 
 
 ime. 
 
 average lofs. — The only point to be confidcred is, whe- 
 tlier this dodlrine will be produ6live of any uncertainty : 
 If it would, that would be a fufficient realbn, in a new 
 cafe, for not adopting it. But, in my opinion, a con- 
 trary decifion would be produ£live of infinite uncer- 
 tainty ; for it would leave open a very vague queflion, 
 namely, v/hat time the infured fhould be allowed to aban- 
 don. If it can extend to three years, there is no reafon 
 why it (liould not extend to a much longer period: But 
 no uncertainty can follow from this determination ; for 
 our opinion is, that when the account of a lofs has 
 reached the Infured, they mufl make their eledion whe- 
 ther they will abandon or not : If they do, they mud 
 give notice of their intention, to the underwriters, with- 
 in a reafonable time. If they acl: otherwife, they cannot 
 be permitted, at any fubfequent period to change a partial 
 into a total lofs." 
 
 In the following cafe the above principles were adopted 
 and enforced by Lord Kenyon ; and, indeed, they have 
 ever fince been received and a£led upon as clear law. 
 
 Goods were infured, ' At and from London to Jamaica.* 
 — The (liip was taken by a French privateer within a few 
 leagues of Jamaica. Part of the property infured was 
 taken out of the fhip. The captain, boatfwain, and all 
 but feven men, were alfo taken out of her. In a fort- 
 night after, as the captors were proceeding to America^ 
 the {hip, with the remainder of her cargo, was retaken 
 by an Englip frigate, and fent into Antigua ; and both 
 were fold there under a decree of the vic5-admiraltv court, 
 by a prize agent, who received the proceeds to be paid 
 over to the concerned, deducing one eighth for falvage, 
 according to the then late prize aft {a). The capture and 
 recapture were entered at Lloyd's on the 15th oi February 
 1795 ' ^"'- '^ '^^"^^ "°^ known whither the (hip was car- 
 ried till the 30th of Marcky when a letter was received 
 at Lloyd' Sy addrefled to the owners, freighters, and un- 
 derwriters, from the judge of the vice-admiralty court at 
 
 S9i 
 
 ^H^cooii V. Htnm 
 ktil, at N. P. 
 B. R.atteiMich. 
 179;. Fark 172. 
 
 A rec^pured 
 (hip i» carrieil 
 into a diltanc 
 port, and there 
 tjld for the be- 
 nefit of all ron- 
 ceiiieci; jtiid ihe 
 Jiiiurert give di- 
 rections to the 
 agent to have the 
 proceeds remit- 
 ted to tticm; buC 
 aftei wards, and 
 tour months af- 
 ttr they had no- 
 lic cf the lofs, 
 they give notice 
 of ibandonment. 
 — Thii is \99 
 latM 
 
 (a) siG. III. Q.CC, 
 
 ?tL. II, 
 
 Antigua^
 
 594 Of Abandonment [B. L 
 
 Antigua^ iiiforming them of the arrival of ihe Paip, ard 
 of the fale of the flap and cargo, under a decree of the 
 court •, and defiring to have fome agent appointed to 
 remit the proceeds to England. Powers of attorney wrre- 
 fent out hi Ap>il by the infured, for this purpoie, with 
 orders to remit the proceeds to the banking-houfe of Smiih^ 
 Pa-jne and Smiih^ one of whom was agent to the infured. 
 — It was cbjecied on the part of the defendant- that 
 ahhough the infured as well as the ivfursrs were informed 
 of the lofs in the beginning oi April \ yet the infuied did 
 not abandon till Augujl^ near four months after the power 
 of attorney had been fent out to Ant;gua. To this it 
 was anfwered th^t, the property having been abiblutely 
 fold, and converted into money, before the infured knev,r 
 where the fliip was taken to j the lofs was total in its 
 nafure, and therefore there was no occafion to aban- 
 don. — Lord ivd'wjw/, who tried the eaufe, inclined to thmk. 
 that an abandonment was neccffary, and that the cafe 
 was the fame as it the property had not been fold, but 
 remamed 'n\ fpecie at Antigua. But -he gave no decided 
 opinion on this point. He faid the infured were not 
 bound to abandon in any cafe ; and might, in cafe the 
 fales had been very advantageous, have taken the benefit 
 of them, in the fame manner as they might have returjied 
 TVie infured the property, if it had remained in fpecie. But the in- 
 iriuri make his ^ ^ ^^^,^ j^,^j.g i^jg eledion fpecdily, whether he will 
 
 abandon or not, and put the underwriter in a fituacion 
 to do what is neceuary for the prefervation of the pro- 
 He miift not perty whether fold or unfold: " He cannot," faid his 
 rs'p^rtT.dl'und' lordihip, " lie by, and treat the lofs as an average lofs, 
 tfitn aUuiion. ^Lud take mcafures for the recovery of it, without com- 
 municating that fact to the underwriters, and letting 
 tliem know that the property is abandoned to them." 
 — There w^s a verdi6i: for the plaintiff for a partial 
 lofs. 
 .^nderfuv. mA So, wl]£re a quantity of wheat was infured, from JFu- 
 
 nnotner v.^il^v. f^yfoyj ^q Liverpool, ^ free from all average unlefs general, 
 3S ^ or ctherivife fpcdally agreed.' The fiiip, on the 28th of 
 
 \vhe:u is infuied JamtorL iu proceeding down the river, from Waterford, 
 nom JFau.forj ^truck J^o" arock and immediately filled with water; 
 
 to L'-ZK-rfosi. . * ^ 
 
 Ti c ihiij u and
 
 Ch.Xill. § 2.] Klthin zvhat Time. 595 
 
 Atid to prevent her from finking, flie was run on fnore, ftf,n^(.jj „f,r 
 where Ihe remained four weeks, with her hull under water ^^^'trford The 
 
 .1 'uK-d rifific at 
 
 at high water every tide, and could not be got ofl'tiU her I'Vfr;.«c/,-ndihe 
 c irgo was taken out. All the wheat was damaged j 'i'S,.j.j„_ Kotic» 
 about two thirds of it were taken out, and kiln-dried at ^* ^i'ano..n.cnc 
 
 ' Ihrcc wccKs au 
 
 JVaterford \ part of the remainder was fold to feed hogs, 'f »" '^^e -Jtcidttit 
 and the refuiue throv.-n overboard as ufclefs. The clear 
 proceeds of the quantity faved amounted to 95I. 15 s. 4d. 
 which were remitted to the infured at Liverpool, who, on 
 the 1 8th of February 1S04, twenty-one days after the 
 accident, gave notice of abandonment at London. — Upon 
 this cafe there was a verdicl for the plaintiff for a total 
 lofs, deducting the falvage. — Upon a motion for a new 
 trial, the court exprelTed an opinion that, as there is a 
 conftant intercourfe between I Vat erf or d and Liverpool y 
 where the infured refidc;:, the abandonment was too 
 latc(rt). — But it appearing by affidavit that the infured 
 received notice of the lofs at Liverpoo'A on the 2d of 
 February y and that this v/as communicated to tlie defend- 
 ants on the 4th, with an offer to abandon, which thev 
 refufed ; and bciug now called upon to adm.it this as a 
 fact in the cafe, they refufed, upon which a new trial v/as 
 granted. 
 
 So, if a flijp be infured for part of her value, and if the imder- 
 being captured, the infured demand as for a total lofs, "■"\''" ficmrmd 
 
 , . . . 'mi almidonnuut 
 
 v.hich the underwriters are willing to pay, on having w more cha-i 
 an affignment of one fturth part of the {hip from the furL.ThTs mcd 
 owner, by way of abandonment ; but the infured refufc ""' P'"''^"' '•'* 
 this, becaufe the one fourth of the fliip is of greater h:.ndonin(; (o the 
 value than the fum infured; aud the infured, infccad of S'.'liwcdT 
 abandoning, repurchafed the fliip from the enemv : — In ^"t if'ie negisft 
 
 , . ^ % " • , , r ''''S he (ball not 
 
 this cale, he is not entitled to recover as for a total afterwards reco- 
 lofs, not having abandoned ; nor can he recover the fum 
 paid for the repurchafe of the fliip, that being an il- 
 legal contraiSl, and not only a trading with the enemv. 
 
 (a) Lord Ellitiborough faid he rather conceived that it was 
 tlie province of the judge to dircft the jury, as to wli.-t is u 
 reafoaable timcj under the circumftances. 
 
 I % bu<: 
 
 vcr as fot' ■*. total
 
 !j^5 Of Abandonment [B, L 
 
 but alfo a ranfom, within the meaning of the ranfom 
 
 aft. 
 ■Flav'.hek V. Thus t— The fnipr^t-/?;?/ was infured for twelve months, 
 
 Rc,ckivood,% ^^^ failed on the 4th oi April 1797, on a voyage from 
 
 '__ Shields to Riga ; was captured on the 7th of April by 
 
 A ^'fVi/J ftip IS 3 J7y^;j^,z, privateer, and carried into Bergen m Nornvay^ 
 
 «aptuied, ai d r ' o ^ 
 
 cairied into a where, on the 17th of Aprils £he was condemned by a 
 th'itndemned fentence of the Fremh Conjul there—News of this being 
 by the enemy's hrousht to England hv the Captain, the plaintiff demanded 
 
 conful: If the.' • ^ , r r T. J •. T,- U 1, -J 
 
 infured do not a total lofs from the underwriters, on which he received 
 
 ahjndon, but re- jg^j-gj- ixovci their broker, informing him that they were 
 
 fold under the ready to fettle with him, he firft making an aflignment 
 
 not'^uxovcr lis oi oue fourth part of the fhip to the broker for their be- 
 
 for a total VU: j^gf^|. . .^y^^ t^at if the plaintiff had any thoughts of re- 
 
 the property ne- ... . iii 
 
 ver having htcn purchafing the Ihipi the underwriters would have no ob- 
 S'he condemna? je6tion to pay their qu:ta of the price.— The fum infured 
 tion; nor fliaii ^^^ amounting to one fourth of the value of the (hip (a), 
 
 he reccver the .._,,., , . , ,^ ,-r-n 
 
 fum paid for the the plaintiff declmed making the affignment. — I here were 
 repuichaie, that fj-egugi-jt inflanccs of this fort of condemnation in the 
 
 • eing a rnnlomj ^ 
 
 and illegal. port of Bergen during this war, which were made with. 
 
 the knowledge of the Danijh government, who received 
 duties thereon, and on the fales in confequence of them. 
 On the 13th of July 1798, the (hip was fold by public 
 au6lion, by the officer appointed by the court of Den- 
 mark, for fuch fales, and was puchafed for the plaintiff, 
 by his agent at Bergen, for the fum of 1628 1. 8 s. 4d., 
 which was her fair value. The fliip being tlien repaired, 
 inftead of proceeding to Riga failed to Peteijhurgh and 
 afterwards returned to England. — In an aftlen upon this 
 policy, the defendant paid 30 1. lis. 3 d. /«- cent, into 
 court, and upon the trial there was a vcrdidl for the plain- 
 tiff as for a total lofs^ fubjeft to the opinion of the court 
 on a cafe which dated the above fads. — The queftions 
 for the opinion of the court were, ift, Whether the 
 plaintiff was entitled to recover as for a total lofs, or only 
 
 (fl)It does not appear, by the report of this cafe, \?v}iether the 
 infurance was upon one fourth of the fhip, or that the Gim infured 
 amounted to whst tbe underwriter* deeued afourth. 
 
 for
 
 Ch.XIII. § 2.] Within what Time. 597 
 
 for a partial lofs. :idly, If for a partial lofs only, then, 
 whether the futn paid for the purchafe was to be in- 
 cluded, in which cafe a nonfuit was to be entered. It 
 
 %vas contended on the part of the plaintiff, that he was 
 entitled to recover as for a total lofs, on the ground that 
 the fhip was captured by an enemy, and condemned by 
 a court of competent jurifdidion : But the court cxprefl- 
 ing a decided opinion that no Fre?ich court of admiralty- 
 could legally be holden in Defimark^ adopting the decifion 
 in our court of admiralty, in the cafe of the fiiip Flad 
 Oyen (a), that point was abandoned as untenable. — It 
 was then infifted, ift, That when the fliip was captured, 
 the plaintiff had a right to abandon, and did in fad 
 abandon ; and 2dly, That at leaft the plaintiff was en- 
 titled to recover as for a partial lofs, in which was to be 
 included the fum paid for the repurchafe of the fliip.— 
 On the part of the defendant it was anfwered, ift, That 
 whatever right the infured might have had to abandon at 
 one time, he ought to have made his election to do fo, 
 immediately after tlie capture ; but he refufed to transfer 
 his right to the infurer, and therefore he could not fay 
 that he was ready to abandon 5 and, 2dly, That if this 
 was only a partial lofs, the price paid for the repurchafe of 
 the fhip ought not to be included in it, that being a void 
 contraft, not only by the ranfom ad (^}, but alfo by the 
 common law, on the ground of its being a trading with 
 the enemy. — The court detennined that the plaintiff was 
 not entitled to recover oa either of thefe grounds. — 
 They declined giving any opinion on the queftion, whe- 
 ther the contrad at Berge;i was void, on the ground o£ 
 its being a trading luiih the enemy^ as that queftion would 
 fhortly come before the court upon a writ of error, in 
 the cafe of Potts v. Bdl[c). The only queflion then re- 
 
 fa) Vid. fup. 389. [hi Vid. fup. 585. {c) In that cafe 
 
 It has fince been determined, upon great confideration, that any 
 trading by a Bnt'iJJi fubject with the enemy, without the King's 
 licencej is illegal, and that a policy on goods bought from the 
 ejiemy is void. Vid. fup. 87. 
 
 J 3 maining
 
 tg^ Of Abandonment [B. I. 
 
 When tKe pu-. mauling was that relative to the ranfom. Upon this they 
 cha':e of a caj ." g^^ cleavlv of Opinion, that the tranfaaion above dated 
 be devni.d a amounted to a r uifom ; that the money paid by tne plam- 
 ranLm. ^.^ ^^ vcgaiu the pofiefuon of his Ihip was illegally paid j 
 
 and confequently that it could not conftitute a charge on 
 
 the underwriter. 
 But if tlie infu- But if, by any interference of the underwriters, the 
 abandonnientl''' infurcd be actually prevented from abandoning, the un- 
 theyfhaii paythc ^^.^,^.-^(,^8 are liable for all the lofs fuftained by the in- 
 
 fured to the extent of the fum infured. 
 Da C^jla V. As, where a fhip was infured ' from Leghorn to Zfl«- 
 
 Ne.onh.:,n, z ^ ^_ ^^-^j^ libcrtv to touch at iY/f^.'— The (hip met with 
 
 i. K, 407- ,^, J irj 
 
 an accident in the courie of her voyage, and was obliged 
 
 ^g" hi 'pencr to put into Nlce to repair. Advice of this was tr;infmitted 
 the infu,cd pio- i^g owner, who was informed that it would be necef- 
 
 pofe? to ahan- ^ , , , r i 
 
 dun, but is dir- fary to unload, by which a confiderable expence mult be 
 tv%t un'd^r." incurred. This he communicated to the undcrwiters, 
 -IV, iters, who 01- j^j-j(j expreiTed a defire to abandon. Some altercation 
 rcp.wed, bur .t- arofe •, they mfifted on tne veflel s bemg repaired, and 
 te.w.r.ds reicfe ^^^y^ j^-,^ ^^ ^^ ^^^ bijlg. Hc at laft confcnted to 
 rep lirs, and the ^]^ig . |j,jt rcfufcd to advancc any money 5 in confequencc 
 Sun'r, obliged of which it became neceffary to take up a large fum on 
 to be fold:— bottomry. The (hip was refitted and refumed her voy- 
 li'we'toT'd'iUhr a"-e, and gained freight afterwards. Upon her arrival at 
 lofs lunained, f- T ^.j,-,j application vv'as made to the underwriters, to take 
 
 the aniouiil nt -^ ^ rr 
 
 the fuiM iniuitd. „,-, the bottomry bond, which they refufed, and the veflel 
 
 was obliged to be fold, to fatisfy that debt, fo that fhe 
 
 never was in the poffellion of the infured again. The 
 
 fum due upon the bottomry bond was 678 1., and the 
 
 fliip fold for 630 1, — Under thefe circumftances, Mr. Juf- 
 
 tice Btdler, who tried the caufe, was of opinion, and it 
 
 was fo agreed at the trial and not afterwards difputed, 
 
 that there had not- been a total lofs at Nice y for though 
 
 the plaintiff ofiered, and was entitled, to abandon, yet, in 
 
 truth, he had not abandoned. This, therefoie, was con^ 
 
 fidered only as a partial lofs. — But Mr, Juftice Btdler, at 
 
 the trial, and the ceurt afterwards, determined, that the 
 
 underwriters were anfwerable for all the injury that had 
 
 accrued to the owner in confcquence of tire ir interference, 
 
 and dire6dons, and their fubfequent refufal to difcharge 
 
 the
 
 €h. XIII. § 3.] Form of h. ■ ^^^ 
 
 the bottomry bond ; that in confequence of this, the fliip 
 never canre free to the owner's hands, but was obliged to 
 be fold, and therefore the underwriters were liable to the 
 amount of the infurance- 
 
 In a former chapter it was flaewn that if no intclli- ,. . „■ , 
 
 ^ If :rc Ihipbe not 
 
 ^ence be received of a Ihip within a reafonable time, ''"'' "* '" a 
 
 it (hall be prefumed that (lie foundered at fea {a). When t e -'lured may 
 
 the time has elapfed which affords that prefumption, ^^■'"''^"• 
 the infured may abandozi and claim as for a total lofs. 
 
 Sea. in. 
 
 Of the Form of the Abandomiwit. 
 
 IN the preceding feclion ^ve have fe.en that, as foon Notice «f aian- 
 as the infured is informed, of a total lofs, he mufl make coniuent. 
 his election whether he will abandon or not. If he de- 
 termine to abandon, and demand as for a total lofs, he is 
 not obliged, as in fome foreign -coimtries, to make a formal 
 proteft {b)f but merely to give notice of the lofs to the un- 
 <lerwriters, and of his determination to abandon. 
 
 It is fingular that an abandonment is not made in any jhere is no par- 
 particular form, or accompanied by any of thofe folemnities ^"^'''•'[ '' '"' °* 
 •which fuch an a£t would feem to require. In cafes mcnt, 
 of importance, however, it is not unuiual for the in- 
 fured, upon payment of the lofs, to make a formal afl- ir. 
 ment by deed 10 the underwriters, or to truftees fov t.''e 
 life of all who may be concerned in the falvage. B^t, in 
 whatever form an abandonment is declared, it mult hz 
 explicit, and is not to be taken as matter of inference from 
 an equivocal a6l. 
 
 Therefore, where a letter to the infured, ftating that TMlufti v. 
 
 . Fletciur, r E^p 
 
 the fliip had been forced on Ihore, and a quantity of Kcp 72, fjp. 
 
 The iniured in 
 
 form the under- 
 
 {^n) Vid. flip, ch. 12, ^ I. p. 488. EriKi-'ig. torn. 2, p 181.— wiitei* th^t ih« 
 
 -{Ji) Vid. P.tbicr, h. t, n. 126. Emfri^. tom.2, p. 19^- tt.^^.^^Z
 
 gQQ Of Abandonment [B. L 
 
 and the under- fugars damaged, was fhewn by the broker to the under- 
 rna'dtttn: writers-, and they, byway of anfwer, defired, « that the 
 beft they can ^ i^fured would do the beft they could with the injured 
 
 vnth the g )Ods ; , , . i . j 
 
 this will not < property •,'— It was infifted that this letter amounted 
 in!o a^oul"lols. to an abandonment, and that the anfwer of the under- 
 writers was an allent to it. — But Lord Kenyan, who tried 
 the caufe, faid, that as this was but a partial iofs, 
 the infured could not, by their own adl, turn it into a 
 total one. That it was the intereft of the underwriters, 
 and the duty of the uifured, to make a partial Iofs as 
 light as poflible -, and that this was the meaning and 
 import of the letter, and of the anfwer of the under- 
 writers. 
 Th^re mnft ^e '\^\i\s notice of abandonment may be given, either to 
 iomc notice of )!. ^^^ underwriter himfelf, or to the agent who has fubfcribed 
 for him. And this is neceffary though the fhip and cargo 
 were fold and converted into money before the notice of 
 the Iofs was received {a). 
 If the infurance In general, the abandonment ought to be made for the 
 ?urrH"c''n'i'oV'r- whole of the efteits infured, and not for a particular part j 
 ba-iflon for part ^^ \[ ppj-j- \,q rottcn, the infured cannot abandon that part 
 *"'^' , only and retain the reft, but he muft abandon the whole 
 
 or nothing •, for the contra£l being entire, cannot be 
 fevered [b). — Thus, if I have divers forts of goods on board 
 a fhip ; as fugars, indigo, and cotton ; andl infure looo 1. 
 on the whole, withe at any diflinclion •, this infurance is 
 entire, and I cannot abandon my fugars, and retain my 
 indigo and cotton ((-) . 
 ^■it !f difTcrcnt But if I infure thefe articles by difFerent policies j or 
 "'S'^n^fuito^.r ^^' ^" '^^^ ^^"^^ policy, they be feparately valued, I may 
 fepai-ieiy valued abandon any one article, and retain the reft; becaufe 
 abandoned. thefe are, in efFc6}, dillin6l infurances, though in the fame 
 
 policy {d). — So, if I infure a fliip and cargo, diftinguilh- 
 ing how much for the one, and how much for the other ; 
 and the fhip in the courfe of the voyage be condemned 
 
 [a) Hdgfon V. Blacl'ipn, at N, P. after Hil. 38 C HI. 
 
 Pari 1^2. {I) Vid. f^alin on art. 47, h. t. p. I02. 
 
 (c) Fa/in ubi flip. Fothur, h. t, n. 131. ■ (^/) Falin, ut fup. 
 
 Poth'ury n. J32. 
 
 as
 
 Ch.XIII. §4-] Effeaofit.^ 60 1 
 
 as incapable of proceeding further •, I may abandon 
 for the ihip, and not for the cargo {a) . But if I in- 
 fure the (hip and cargo for cue entire fum, and the fhip 
 be ftranded, I eaunot retain the goods, and abandon the 
 (hip {b). 
 
 The abandonment muft be fimple and unconditional : ^' "?"'^ ^^ "*** 
 otherwife it will not transfer the entire property to the 
 infurers, which muft at all events be done, for this is of 
 the eflence of the abandonment. If therefore I abandon 
 a captured fhip, on condition that, in cafe fhe be re- 
 leafed, flie fhall continue my property, and I fhall repay 
 with intereft the fum which the infurers fhall have paid 
 me, — fuch an abandoment would be void {c). 
 
 Sea. IV. 
 Of the Effect of an Abandonmeut, 
 
 BY the abandonment, the infured, as we have already x^e abancf(,t»- 
 cbferved, yields up to the infurers, all his right, title, 'y"-"^ tr.nsfcrs 
 
 ' •/ ^ _ o ' ' tl,g property 
 
 and intereft in the fhip or goods infured, or what may faved to the in, 
 
 be faved of them, which, from the notice of abandon- ii"',7tV"i,nrTfT 
 
 ment, become the property of tlie infurers [d). It ope- fi'«<ttive(ubfcup, 
 
 rates as a transfer to them, in proportion to their refpec- 
 
 tive fubfcriptions, without any regard to the priority of 
 
 the policies, if more than one {e) ; and though the fliip 
 
 or goods fhould appear, by the feveral policies, to be 
 
 over- infured (/). And this transfer has a fort of retro- ^^^ ^^ ^.^^^^^^ 
 
 fpective relation in reference to the infurers, who, to bick to the com- 
 
 r r 1 r ■ r ^ r i 1 mciiceiiuiit of 
 
 the extent of the fum nifured, are prelumed to have the voyage, 
 been, from the beginning, owners of the things in- 
 fured {g)y according to the rule of the Roman law, ^uod 
 repudiatur, retro noflrum non fuijfe palam efi {h). 
 
 [^a) Emcrig. torn. 2, p. 21^. (3) Emcrig. torn. 2, p. 215. 
 
 •'—-[c) Fa/in, art. 60, p. 133, art. 47, p. 103. Enierig. torn. 2, 
 
 p. 194. (</) Vid. I-fGwiWon, ch v.art.i. {e) Emer'tg torn. 
 
 2;p. 194. (/) Vid. fup. ch.4, § 4. p.146. {g)Emeng. , 
 
 tonji.i, p. 196, ih) S. lib. 38, tit. 5. Si quid infraudem. 
 
 Thi«
 
 6o2 ' Of Abandonment [B. L 
 
 In Trnnrt the Jhis principle IS Carried fo far by the French law, tKat, . 
 ttc STans'te's by the abandonment of a fliip, the iniurer becomes intltkd 
 tfie freight fhe ^^ ^j} ^\^q freight {lie may have earned, freight being 
 )ias earned, . ... .;- i,r n' r? 
 
 deemed an mcident mleparablo from r.x Ihip. iLmerigon- 
 
 even goes the length of faying, that it is iuconfiftent with 
 the nature of the eontrao: of infurance, that the owner 
 fhould claim the freight of a fhip, the value of which he 
 has received from the infurer upon the abandonment. 
 And he fupports this opinion on the ground that in 
 *• the courfe of the voyage the value of the fliip mull ne- 
 
 ceffarily diminiili in nearly the fame proportion as the 
 freight increafcs ; and confequently, that the value of the 
 fliip and freight, at any given time in the voyage, is only 
 equal to the original value of the {hip, at the commence- 
 ment of the voyage {a). But this notion could only have 
 originated in the abfurd fuppofition that a fiiip can earn 
 no more freight, in any voyage, than is fufficient to rein? 
 (tate her in the fame condition fiie was in when ftje failed 
 on that voyage. 
 By the abandon. ^7 ^hc abandonment of a fliip, according to our law, 
 roeiit of the Ihip ^^ J underdand it, the infurer becomes the legal aflignee 
 comes the legni and owucr, and from that time, he is liable for all her 
 To'^M her' ou'^ futurc Outgoings, and confequently entitled to all her fu- 
 goings, and en- (urc earnings. While any profit can be derived to the in- 
 &»tvire earjiings. fured from the future ufe of the fliip, it cannot be deemed 
 a total lofs ; and he can only exercife the right of aban- 
 doning, upon the prefumption in law that the exifling 
 circumftances are equivalent to a total lofs. Under fuch 
 circumftances, the owner compels the infurer to purchafe 
 the hope of falvace, for the full value infured,and thereby 
 puts him into his place for ail chances favourable or other- 
 wife. The chance of the fhip's earning freight is one 
 ground of the calculation made by the infured, when he 
 decides whether or not he will abandon. The infured 
 could not receive more, if the fhip had been adually loft 
 or deflroyed, than he receives upon an abandonment ; 
 and, in fuch a cafe, he cannot be in a better fituation 
 than If fuch a lofs had really happened : Nor Is it rea- 
 fonable that the infurer, who, befides paying the full 
 
 (a) Vid. Emertp. torn, a, p.. 221, vid. fup. ch. 3^ # 6. 
 
 valae
 
 Ch. XIII. § 4.] Effea 9f ii. ^c^ 
 
 value of the fhip, incurs the expsnce and rllt of all fu- 
 ture contingencies, fhould not be entitled to her future 
 earnings. — After an abandonment of a fiiip, the under- 
 •vvriters are not bound to purfue the voyage contra<£led for, 
 at their own rilt and expence, without any compenfa- 
 tion -, for a contiaft of this nature is not like a mortgage 
 which binds the land 5 but is perfonal, and only binds 
 the owner who made it. And even fuppofmg the pre- 
 vious contracts of the owners with the freighter would, 
 in equity, after an abandonment, bind the underwriters 
 to purfue the voyage, if pra£ticable, the fame equity 
 would transfer to the latter the benefit, as well as the 
 burthen, of thofe contracls. Some voyages, fuch a« 
 tliofe to the Eaji Itidies, may lad two or three years. 
 The fliip may be ftranded at the commencement of her 
 outward voyage, and be in fuch peril as to warrant ao 
 abandonment. If then, the owner, ele£ling to abandon, 
 receive payment from the underv/riters on the fliip, as 
 for a total lofs, it cannot be contended that he would be , 
 
 entitled to the ufe of the fhip for the remainder of the 
 voyage. 
 
 The underwriters upon the fhip are not bound to tate The imderwri- 
 notice of any contract for freight, or the infurance of it, b|'un/'^v 'Vhe 
 to which they are no parties. They are not obliged to cont.aasoftiie 
 
 rrji_j . J i-<-i iiiuutd refpetl- 
 
 accept a quahhed abandonment -, and an unquahhed jng frcigiit, cr 
 
 abandonment muft transfer to them the entire property, 
 
 with all its incidents. There cannot, therefore, be an 
 
 abandonment of the fhip and freight to different fets of 
 
 underwriters. It is with good reafon, therefore, that the 
 
 laws of France and other countries confider freight as fo 
 
 infeparable in its nalui'e, from the property of the fhip, 
 
 that they do not permit them to be feparatel)' infurcd («) ; 
 
 and the difficulties which arofe in the following cafes 
 
 fafHciently fiiew the inconfiftency, not to fay the abfur- 
 
 dity, of the contrary pradlice, as permitted in this 
 
 countrv. 
 
 ■, ' . ... . ' 
 
 If both fliip and freight be in fured in the fame policy, ifthefMpand 
 
 it can never be a queflion to v.hom freight, earned after frfi^nr ic icpa- 
 
 ^ O •» ratrly inlutrd, 
 
 anfi tMcli bo 
 
 , — — — ;(h;indi'n(<l ; I* 
 
 wi om frfglit 
 
 («) Vid. fun. ch. 3. § d. A.bfcqnc.tiy 
 
 long. 
 
 the iiifuruiicesf 
 it.
 
 6o4 Of Abandonment fB. I, 
 
 an abandonment, and payment of a total lofs, (hall belong : 
 But where the fliip and freight are feparately infured, and 
 each is abandoned to the refpeclive underwriters, it then 
 becomes a qucftion to which fet of underwriters freight 
 earned afterwards fliall belong. — In the following cafe 
 that queflion was much confidered ; but the court deter- 
 mined it upon the exprefs contrafl of the infured, upon 
 the abandonment, to affign all freight that might be reco- 
 vered to the underwriters on freight. But it is not to be in- 
 ferred from this, that it was the opinion of the court that 
 the underwriters on the fhip were not entitled to the 
 freight : On the contrary, the court feems to have thought 
 that the infured was bound to account to them alfo for 
 the freight earned by the fhip, dedu£ting the expences of 
 provifions, wag'js, &c. 
 Th',>npfot V. In that cafe the defendant, having chartered the fhip 
 
 Rou>crc/t,4E>i/!, ^^gj^^ to one Saunders for a voyage to RigUy to fetch a 
 
 cargo of timber to Portfmouth, caufed a policy to be 
 
 freight' are fcpa- cfFtcled on the Jhip from Portfmouih to Riga and back, 
 ratsiy infured, fo^ 2,4Col and another upon the freight from Rte;a to 
 
 and the fhip be- ' ^ * . . . 
 
 jiig laid under Portfmouth for Ij4oo1. — After the fhip arrived at Rigay 
 »ej"gn "^por't" ^ihe ^'^ embargo was laid by the RuJJtan government on all 
 owner abandons Brttifh fliips in that port ; the captain and crew were 
 
 the (hip and the "', , , . , •/• 
 
 freight to the re- marched up the country, and detamed as priloners from 
 fpeflive under- JVoz-'fra^^r I 8qo till May 1801. Upon intelliffence of thcfc 
 
 wi Iters, who pay _ _ -^ ^ ^ 
 
 a total lofs on cvcuts arriving in England^ the defendant abandoned, and 
 uiKiertaking^"in received from the refpeftive fets of underwriters the 
 cafe the fhip amount of their refpeflive fubfcriptions as for a total lofs, 
 
 fhould be re- ,,,..,, . , ^ 1 i- ^ n ■ 
 
 itorcd, to affign and iuofcribed an mdorfement on the policy on u\t Jbipy 
 the (hip to the ^^^^^ j^j^ Jamiary 1801, undertaking 'to account to the 
 
 one let of under- .^ J J ' o 
 
 writers, and the < underwriters for the fliip, if rellorcd to or recovered 
 ether. The (hm * ^7 them j CI to make an affignment to them in propor- 
 is rcftored, and t ^ioa to the fums infured.' He alfo fubfcrlbed an 
 
 eirns freight, 
 
 which is paid ro indorfemcnt on tlie policy on y/Y/^/j/, dated the iith of 
 Whi'trverriT February 1801, flating, ' that the intereft in the freight 
 be the right of < infurcd, being abandoned to the underwriters to the 
 
 the underwriters -,.-,... . , „ 
 
 the ihip to extent or their iubicnptions, it was agreed to aingn all 
 
 0:1 
 
 the fieight tiius < fright of recoverv, compenfation, &c. &c. to certain 
 
 earned, the in- ^ y ' r 
 
 fuied is bound * perfous named, for the benefit of the underwriters an4 
 
 ronrradf to^Mv * ^hc infurcd, according to their refpeftive interefhs.' — 
 
 tae freigiu fo re- 'pj^g embargo being afterwards taken ciF, the fliip was re- 
 ceived to the un- ■ o o n. 1 
 dcrwiiicrs on ItOreclj,
 
 Ch. XIII. § 4.] ^#^ of it. 605 
 
 ftorcd, and brought a cargo to Port/mouth, and the de- freight. And be 
 fcndant received 1,857!. for freight.— The plaintlfF, who dcdui?;hewlgi* 
 was an underwriter on the policy on freight for i scl. °^ -^''^ef chars«s 
 called on the defendant to make an aflignment of the 
 freight, according to the indorfement on the policy on 
 freight, or to pay him the 150I. and intereft. — The un- 
 derwriters on the fhip infifted that they were entitled to 
 the freight, and gave the defendant notice of this claim. 
 — The argument of this cafe at firft proceeded on the 
 idea that the defendant was a mere ftakeholder, and that 
 the queftion arofe between the underwriters on the fhip 
 and thofe on the freight, viz. which of them were enti- 
 tled to the freight earned after the abandonment. But 
 the queftion was narrowed by the court to the confidera- 
 tion of the fpecific agreement between the plaintift and 
 defendant ; and upon this ground alone the cafe was de- 
 cided in favour of the plaintiff. — Lord Ellenborougb 
 feemed to be of opinion that if the queftion had been, 
 which of the two fets of the underwriters were entitled 
 to the freight earned by the fliip after the abandonment, 
 thofe on the fhip ought to have prevailed. — But the court 
 were clearly of opinion that, in this cafe, the owner was 
 bound by the terms of his contraft, to pay the under- 
 writers on the freight their proportion of the freight which 
 he had received. — It was then fuggefted on behalf of the 
 defendant that at leaft he was entitled to dedu<Sl the ex 
 pences of the voyage, fuch as wages, provlfions, Sec. 
 which v/ere in the nature of falvage on the freight. — 
 But Lord Ellenborougb faid, — '^ The defendant has re- 
 ceived the entire freight, and therefore he muft pay ic 
 over. The underwriters on the fhip, from the time of the 
 abandonment to them, ftand in the fame fituation as the 
 owner ; and as the owner was liable to all thefe expences 
 before, fo, after the abandonment, they mull be borne by 
 the underwriters on the fhip. Expences of this fort are 
 not, properly fpeaking, falvage on the freight, but they 
 are charges paid by the owner of the fhip for the benefit 
 of thofe to whom he abandoned it j and therefore he 
 will be entitled to retain a proportionable part on his 
 
 fettlemcnt with them." 
 
 o ' In
 
 0q5 ^f Abandonjiieni [B. I> 
 
 L^ikam -. Ter- Jh a fubfequcnt cafe, circumftanccd nearly the fame 
 'i'li^fi' ^ as the above, the infured abandoned firft to the under- 
 
 — '■ writers on the fhip, afterwards to thofe on freight, and 
 
 Same^pcuu dc ^^^^^^^^^j.^ ^p^^ payment of the lofs, to affign to the 
 underwriters on tht Jhipy * all their right and intereft in 
 * the Ihip, in fuch manner as tlie committee for adjufting 
 « the lofs might diredj' and to the underwriters on 
 frclq^ht, * all their right and title to all future benefit 
 < that might accrue thereafter, except as infurers therein.' 
 
 ^The court, conceiving that in this, as in the lail cafe, 
 
 the infured having bound themftlves to iiccount to the 
 underwriters on freight, for all the freight they iTiight re- 
 ceive, determined that they had made themfelves refpon- 
 fible to the underwriters on freight for the freight they 
 had received \ they intimated, however, that the under- , 
 writers were to contribute proportionably to the expence 
 of bringing the cargo home.— But, in giving judgment, 
 they cxprefsly declared that they did not mean to decide 
 the queftion, as between the two fets of underAvriters. 
 McCarthy ^nA A third cafe, under circumftances nearly fimilar, has 
 
 TeI^, ^3^i.^'^' fince been determined. It was an a6lion brought by the 
 
 . owners of the fliip Thomas againll the underwriters in a 
 
 embargo, t'hVm! policy on freight from Riga to Plymouth. There, the 
 furcd ob.ndons I ij-jtiffg upon receiving intelligence of the embargo, 
 
 the Ihip ."nd r ' r 'j ? i i • 
 
 freight to the re- abandoned ^M'' z/2^^r^ in the freight to the underwriters 
 S^uerun"each' thereon ; and, at the fame time, abandoned thefAp to the 
 The (hip per- underwriters on the fliip, and aifigned the fliip to truftecs 
 
 forms the voy- . 
 
 age und earns- for the ufc of the undciwriiers thereon, they agreemg 
 ^7,?t'oThe'un! to pay a total lofs. The mailer of the fiiip afterwards 
 derwriters on the ^rcw a bill ou the agent of the underwriters on the fliip 
 fliiphav,ngf«r«^ for 718I. 3S. 6d, to pay for repairs at /v ?to ; and, on his 
 freight, the in- ^j-j-iyal at P/r/Kc«//j, reccivcd froHi the agciit of the frcight- 
 
 furrd cannot re- .' ' ° " 
 
 cover agiu.ft iiie ers 500I. part of the freight, to pay feamen's wages and 
 frdghr"" "" the. charges of landing the cargo. The freight earned by 
 the fhip amounted to 2,242!. 6s, lod. the balance of 
 which, after deducing the 500!. was paid to the agent 
 of the underwriters on the fhip, under an indemnity 
 againll any claims v^'hich might be made, either by the 
 ov/ners of the fhip, or the underwriters on freight. — On 
 behalf of the plaintiffs it was argued, that the law of 
 
 Etigland,
 
 Ch. XIII. § 4.] M'^ ^f '^ ' t'D7 
 
 England^ in recogiiizing (liip and freight as dlftln<2: fub- 
 je£l3 cf iiilurance, iijceflarily rticognizes them as diftintt 
 fubje61s of abandonment; and therefore, as a finipleinfu- 
 ranee of a Cup does not cover freight, fo an abandon- 
 ment of the former muil be always uuderftood with an 
 implied rcfcrvation of the latter. That the freight which 
 has been earned and paid cannot, as between thefe parties, 
 deftroy the right of aftion which accrued to the in- 
 fured upon the abandonment ; but that, at moft, it was 
 only fo much falvage for the benefit of the underwriters 
 on freight, which they were entitled to recover from the 
 freighters. —But the court determined in favour of the 
 defendan^ — Lord Ellenborough, in delivering the judg- 
 ment of the court, did not exprefs any opinion upon the 
 quellion, whether a title to the freight paffcd by the aflign- 
 ment of the fnip, but merely faid that the fnip having 
 earned freight, no lofs could properly be demandable 
 agsinft the underwriters on freight ; and that, if the 
 freight could, in any other fenfe, be confidered as loft to the 
 infurcd, it became fo, not by any of the perils infured 
 againfi, but by an abandonment of the fliip, which was 
 the a£t of the infured themfelves, with which the under- 
 writers or. freight had no concern. 
 
 In a ftill more recent cafe, where the fafls were nearly sh^rp v, GUd. 
 fimilar, the infured abandoned, firft, the fliip, and after- /'"'"' 7 ^-V?. 24. 
 wards the freight, to the refpecrive underwriters on each, In a iiiniiarcaff, 
 who accordingly paid a total lofs on each. The fhip, cdved'^^'b''' tbe 
 which was z feekhig, and not a s.liartered, fliip, earned owner is payable 
 1,900!. freight on her homeward voyage, which v.'as paid wnieis on 
 to the infured. In an action brou^zht by one of the ^'^'&^'» fuhj^A 
 
 ° . ' to a dcduaioB 
 
 underwriters on freighty ior hvs proportion of this fum, of x piopornoa 
 as money received by the infured to his ufe, it feemi iifcurrcd InT^r" 
 to have been afl'jmed, that the underwriters on freight ''ccutiiigitevoy* 
 were 'entitled to the benefit of falvage, and tliercfore en- 
 titled to the freight received by the infured, deducing 
 the expcnces to which freight is liable ; and the principal 
 queliion was, what tl^ofe expences ought to be. — The 
 court determined that the folluvving expences incurred in 
 profecuting the adventure might be deducled from the 
 falvage on ths fliip and freight, in proportion to their 
 2 relpediive
 
 6o8 . Of Abandonment ^ [B. I. 
 
 refpeftive values, i. 1 he cxpence of the (hip and crew 
 
 in the foreign port, including port charges, befide the 
 expence of fhipping the cargo, which exchifively falls 
 on the underwriters on freight ; 2. Infurance thereon ; 
 < 3. Wages of the crew during their detention ; 4. The 
 
 wages and provifions of ihe crew, from their liberation 
 in the foreign port till their difcharge at home : Bui:, 
 that the iufured was not entitled to deduct, 1 . The charges 
 paid at the port of difcharge on the Ihip and cargo j 2. In- 
 furance on the (liip ; 3. Diminution of the value of 
 the fiiip and tackle, by wear and tear, on the voyage 
 home. — Lord Ellcnboroughy in the courfe of the argument, 
 took an opportunity of obferving that, after an abandon- 
 ment of the fliip to the underwriters on the fhip, he had 
 great difficulty in faying that the infured could abandon 
 the freight, which feemed to follow the property in the 
 fhip, being the earnings made by the fubfequent ufe of 
 that which was then become the property of others, to 
 another fet of underwriters; and, as a general x^ueftion, 
 he defired to be underftood as giving no opinion upon it. 
 Vvhere the infu- Where the intereft of the injfured is not entirely 
 tiia" the "value coveted by the infurance, he may abandon to the extent 
 of the thing in- of the fum jnfurod ; for he is his own infurer for the re- 
 donmrnc is in fidue.— Thus, If goods of the value of 5,oooI. be infured 
 tm^"""^ P'"^"''' only to the amount of 4,oool. and a total lofs happen, 
 the infured Ihall only abandon four fifths of what is faved ; 
 the remaining fifth will belong to himfelf {a) ; and he will 
 be tenant in conmion, for that fifth, with the infurers.— 
 The fame rule holds where the cargo, by a new pur- 
 chafe during the voyage, is augmented in quantity. 
 If goods be pa't- So, whcrc goods ate onlv partlv infured, and the owner 
 
 iy infured, and ° ' / ' . 
 
 nv^neybotrowed has borrowcd moucy on refpondentia to the value of the 
 
 fo"r the'rrfidue^ rcildue ; if he abandon, the infurer and the lender have 
 
 tne infurer. will a joint claim to what is faved, in proportion to their re- 
 
 utie to wh;i?is fpf^^ive intercfts. But by the abandonm^ent, the infurer 
 
 abandoned, and jg put in the placc of the infurcd, and has the le ml title 
 
 the lender an ° 
 
 f^u!tab[e claim % 
 
 f'jf his prc'por- 
 tiwn. 
 
 {a) Emcr'ig, torn, 2, p, 215, 237. Valin, fur, art. 47, h. t. 
 p. 106.
 
 h. xm. § 4.] ^f'^ci of iL c^^ 
 
 to tlie efKiRs faved, ar.d the lender only 2.^ cqukalle cluhn 
 to his proportion [a). 
 
 Yet, by the law of France (l), th.e claim of the lender, In r. -;y ti* 
 in fucii cafe, fhall be preferred to that of the infurer. ^ 'T "' "" 
 
 _ ' > ifnoer is pre- 
 
 to the extent of his capital. — The reafon of thls-prefe- f""?'! t.. ton of 
 rence h, that the lender contributes direfily to the pro- 
 curing of the goods ; whereas the infurer is only a furety 
 to proteft the adventurer from the rifle, without furnifh- 
 ing the thing put in rlfk. The lender has a fubllaniial 
 intereft in the goods, and being in nature of a pawnee, 
 has a fort of licfi on thein, which cannot be difchar^^ed 
 by the transfer which the abandonment operates to the 
 infurer. Tliis only puts the infurer m the place of the 
 infured ; but the creditor nid "debtor can never have con- 
 current rights (r). Emerigo?i even goes fo far as to fay 
 that the lender's ^lami ought to be preferred, even for 
 the marine. intereft. — Valin [d) holds a contrary opinion, 
 and argues to refute this reafoning contained in a letter 
 which he had received from EmerWoti on this fubjeft. 
 Emerigon^ however, in his book, fupports his former opi- 
 nion, and triumphs in its being fantSticncd by the appio- 
 baticn of P-Ahier [e). 
 
 If there be three infurances ; one gx\ \\\t Ji:':p -arJ ir rhcre i^c three 
 cargo ; one on the JJj'ip only ; .-nd one on the carrroonU- I'oi'cies, <.r,e on 
 
 /-• • / r\ y ■ y ^ • f , r, • "' 'he (hip .TiH car- 
 
 hmerigon [j] thmks that miurers on the fhin and cargo p; one „n th< 
 have an equal claim on the effeds faved, with the in- ;l;'ro,f"2''«rgo 
 furers on the cargo culy, and that they have a like claim **"''■ '. ^'"'' '" 
 
 . '' ralcofabapd.il. 
 
 on the freigh:^ and the remains of the fhip, with tlie "!ent,t!ic ctamis 
 ini''urers on ^htjljip cn/y, in proportion to their refpedtive r.t/ of u\l\Trl 
 fubfcriptions.— For example: If a fliip be vrdutJ at !'"'^i'teadju«cd. 
 5jOOc1., the cargo 5,0001, total ic,coo L; and thefc are 
 infured by different policies, thus ; 
 
 (a, Vid. Fmeng. t. 2. p. 234. 7'} Ord. ir.ar. tit. ccn- 
 
 tratsa la groje, art. iS. 1^) Emcrig. torn. 2, p 234, 335. 
 
 id) Falin, tit. cotitrats a hi grofe, art. i8- U) FitFur, 
 
 •ontrcls a la grofe, n. 49. — —if) Tom. 2, p. 240. 
 
 VOL. n. K On
 
 62 Of AbandonmsJit [B.I. 
 
 £ 
 On flilp and cargo - - - 3>°°'-' 
 
 On the fliip only . _ - 3,000 
 
 On the cargo only - - - 3jOOO 
 
 XJnmfured - - - - 1,000 
 
 10,000 
 
 A fiiipwreck happens, and the net proceeds of the 
 wreck of the fliip are 500I , and of the cargo 5001 ; 
 total I, cool. Emcrigon would adjud the clahns of all 
 parties thus : 
 
 To the owners for their part of fliip and cargo 
 
 uninfured, - - - - lOO- 
 
 To th? infurers on fliip and cargo, a moiety of 
 tlie produce of the wreck, - - £25 
 
 The like to the infurers on the fivip, - ' '^-S 
 
 To the infurers on the cargo, a moiety of the 
 produce of the goods fvivcd, - - 225 
 
 The like to the infurers on the fhip and cargo, 225 
 
 1 ,000 
 
 By this adjuflment tlae infurers on the fhip and cargo 
 •would have a double (hare of the efFccls abandoned, 
 which is manifeftly unjull. — An EngUjh merchant would, 
 
 I conceive, adiuft the different claims thus : 
 
 £ 
 To the owners, for their part of fliip and cargo 
 
 uninfured, - - - - 100 
 
 To the infurers on fliip and cargo, a moiety of 
 
 three-fifths of the produce of the wreck, - 150 
 To the infurers on the Ihip, three -fifths of the 
 
 produce of the wreck, - - - 3°^ 
 
 To the infurers on the cargo, thiee-iifths of the 
 
 produce of the goods faved, - - 300 
 
 To the infurers on the fliip and cargo, a moiety 
 
 of three -fifths of the produce of the goods 
 
 faved, - - - - 150 
 
 J, 000 
 The
 
 Ch. XIIT. § 4. J ^#<-? 'of U. 6i I 
 
 The abandonment does not only entitle the under- If, aftfr the loft 
 writers to all that can be faved of the cfFefts infured ; jjeni^tion ^Ic^' 
 but if compcnfation be made to the infured for the in- '^^'^'' '" .'^^ „ 
 
 i _ _ owner, this (hall 
 
 jury from which the lofs arofe, this compcnfation fliall g^ to the iufu- 
 go to tlie underwriters; for v/hen they have paid the 
 lofs, they, and not the infured, are the real fufferers. — 
 This will appear by the following cafe : 
 
 The King granted letters of reprifal againft the 5/^- Randal v. c»cl. 
 fiiards. for the benefit of his fubiecSls, in confideration ''""' '" ?.-^^"* 
 
 ■' ' 1743. I f ez. 
 
 of the lofles th^y had fuftained by unjuft captures. 9S. 
 
 The commiflioners appointed to diftribute the produce Rtprifais beine 
 
 of thefe reprifals among the fufferers, would not permit '"^^"^ "^^ ""* 
 
 , . ^ , 1 11-1 Spaniards to in- 
 
 the trifurersy but the owners omy^ to make claim to the demmfy the fuf- 
 
 parts of the prizes allotted to the fufferers, although the T^^^^^J; "hi"'^ 
 
 owners were 'already fati.ficd for their lofs by the in- '"'"rers, who 
 
 lurers, who thereupon brought their bill m Lhancery. — owners the loiFea 
 
 Lord Hardivicke. C. decreed in favour of the infu- ,1" ."""^'^ '^ 
 
 ' thole t'ptures, 
 
 rers. — He faid ; — " The perfon originally fuftaining the f^'a" «a"d m 
 lofs was the owner j but, after fatisfadlion made to him, receive thdl pru^ 
 the infiirer. No doubt but, from that time, as to the po'^iou. 
 goods themfelves, if reilored in fpcc'te^ or compcnfation 
 made for them, the infured flood as a truftee for the 
 infurer, in proportion to what he paid ; although the 
 commifTioners did right to avoid being entangled in ac- 
 counts, and in adjufting the proportion between them. 
 Their commifTion was limited in time ; they faw who 
 was owner ; nor was it material to them to whom he 
 affigned his intereft^ as it was in cfFedt after fatisfadtioii 
 made." 
 
 If, upon a total lofs happening, the (hip be aban- If the rtifp, ifief] 
 doncd, but flie afterwards arrive fafe ; this iliall not \,''^^^'\l(T^\\,^ 
 avoid the abondonment. On the one hand, the infurefs inf""-r'haiihavo 
 Ihall take to then- own ufe all the profit of the voyage ; the vcy.ige. 
 and the infured is entitled to nothing, except for fo 
 much as he was uninfured {a). On the other, they fliall 
 not, on account of the fafe arrival of the fhip, refufe to 
 
 {a) Li Guidon, ch. 7, art. 1 2. 
 
 K % pay
 
 ^t2 Of Abandonment [B. L 
 
 pay the fum'infured, — As if, upon a capture^ the infareti 
 abandon, and the fhip be afterwards reieafed, or other- 
 wife recover her liberty J the infitrers Ihalf ncverthelefi 
 fatisfy the infured as for a total kvfs : But then they are 
 entitled to all the benefit of the voyage {a), 
 8'it they cannov So, if the fiiip or goods infu'rcd hapoen to be recovered 
 
 Rumpel the in- , , ^ i • r i -'i i , r -t 
 
 fuicd to take undamaged, alter the iniurer has paid a total lofs ; the 
 .'ack the thing foUowinc; cafe will ihew that he cannot cop.-ipel the in- 
 
 infurcd, and r^- o 
 
 iuijd the money, furcd to refund the money, and take back the fhirr or 
 
 goods ; but the infurer fliiall ftand in his place, and fliiilF 
 
 have the benefit of falvage. 
 
 Da Cofis V. An infurance was made, 'Upon any of the packet- 
 
 "'ififi nap^i32. 'boats that fhould fail from Lijkn'to Falmouth, iov 
 
 < one year, upon any kind of goods ; fuch goods to be 
 
 <<a id on a quanl * valiied at tlie fum infured on the packet-boatj. with- 
 ity of bullion, ( out further proof of intereft than the policy ; and to 
 
 vhich is after- , ^ 
 
 ■ r-aids recovered: * make KG return of premium for want oi intereft, be- 
 ; i.e m urei can- t jj-p^ ^n bullion or troods.' — The defendant, v/ho was 
 
 Jul reeover back ° ^ ■ 
 
 -non than his One of the infured, had an intevell in btillion on board 
 
 ioportion of the ^i rr . i ^ r T ■ n ^ -n y 
 
 .-.iiueofit after ^^^ Hanover packet, on a voyage irom Li/bon to I^al- 
 
 ■fciiiftins the inoutk. The fliip was totally loll o^ Falinouth ; and the lofs 
 : pence Oi fal- . ' 
 
 v:.i«. was adjuilsd at icol. ^^r av;/. ; but by a memorandum 
 
 on the policy, the infured agreed that, — * Should any 
 
 ^falvage thereafter be recovered, he woidd refund to 
 
 * the infurers, nvhatever he might fo recovery in fuch propor-^ 
 
 * tion as the fum infured bore to the whole intereft' j 
 and the infurer accordingly paid the whole fum infured. 
 —An iron trunk, which contairted all the bullion, was 
 afterwards £(hed up, and the bullion recovered, with- 
 out any lofs or prejudice whatever, and delivered to the- 
 infurer. The e.tpence of falvage amounted ta 63!, 8d. 2d, 
 
 ' — ^The infurer, upon this, brought an a^Ulion againft the 
 infured for money had and received, to- recover back the 
 amount of his fubfcrlption. The defendant (the infured) 
 paid into court 48I. 4s., being the phintiff's proportion- 
 of the value of the bullion recovered, after deducting the 
 cxpence of falvage. — On the part of the plaintiff (the 
 
 (a) Er^i.^. tora. 2, p. 197 » 
 
 * infurer)
 
 Ch, xm. §"4.] Efca of It. ci:- 
 
 infiirer) it was contended th?.t by tlic recovery of the bul- 
 lion, the contracl v/?.s performed on the part of the in- 
 furers •, thr.t the iofs cc>iild only be confidered as a 
 partial Iofs, viz. the amount of the falvage •, and that 
 the agreement to allow the infurer in the proportion of 
 the fum infured to the whole intereft, niadc no ililTerence. 
 — But the court were unanimoufly of opinion that the 
 infurer" was not entitled to recover back the money he Ijad 
 psid to the infured, but only his proportion of the value 
 cf the goT isi;ived, after deducting the expcnce of falvage, 
 which was the fura paid into court. 
 
 An abandonmeut once properly n>ade, upon a fufTi- An abandon- 
 cient ground, and acccepted by the infurers, is abfolute. '"'^'" °"^^ F'' 
 
 , , . ,. , , . perly made 1 
 
 and bmdxng upon both parties j nor can it be revoked irrevocable. 
 but by mutual confent {a). Eincrigon fays, that if a (hip, 
 by reafon of fea damage, be condemned as incapable of 
 proceeding on her voyage, and the infured abandon ; but 
 th3 fhip, being refitted, ib brought home at the expence 
 of the infurers ; the infurers cannot compel the infured 
 
 to take her back, but mufb pay the total Icfs {b) Valtn 
 
 holds a contrary opinion, and fays that if the infurers 
 have not voluntarily paid the fum infured, they may, in 
 fuch cafe, oblige the infured to take back the fliip j the 
 only quelHon between them being, as to the amount of 
 the partial Iofs (<r). The opinion of Emerigon feems to be 
 founded on the better reafoning. 
 
 But the abandonment is irrevocable only where it Is o r • l 
 
 ' cut :i it be '' ■' 
 
 made upon a luhicient ground: And, therefore, if it ap- "^po" ^ (ufficic 
 pear to h;\ve been made upon , a partial, and not a total be void. 
 Iofs ; or upon information that proves falfe or unfounded, 
 it will be void ipfj jure. Nam relfle revocari, refcwdiy 
 ct retrain click ur, quod ipfa jure nullum eji [d). 
 
 (a) Polhier, li. t. n, 138. Einerig. torn. :?, p. 197. — • 
 
 {h) Emerig. torn. 2, p. 195. (c) F.il'm, on art 60. h. t. 
 
 J). 144.— ,_(^J Vid. Emerl^' to.n. 2, p. jpj?. 
 
 K 3 s«<n:.
 
 ^H Of Ahandomnmt [B.I. 
 
 Sea. V. 
 
 Of ihs ordering and dfpofal of ihe Effe6ls abandoned. 
 
 i "r"ne, ^he"'i'n- ^^ ^^^"^ °^ fhlpwrcck or Other misfortune, the effe£ls 
 fuied is bourd that are faved continue, till abandonment, the property 
 
 lo ufe his endea- c • \ ■ ... r r y 
 
 youis to r^ive ys of the infured, who is bound in juftice, honour, and 
 - -pu. lu.c. confcienpe, to ufe his utmoft endeavours to make the 
 moil of what may be refcued from deftruclion, in order, 
 as much as poflible, to hghten the burthen of the in- 
 furers. To enable him to do this, without prejudice to 
 his right of abandonment, our policies provide that, — * in 
 
 * cafe of any lofs or misfortune, the infured, their fac- 
 
 * tors, fervants, and afligns, fliall be at liberty to fue, 
 
 * and labour about the defence, fafeguard, and recovery 
 
 * of the goods and merchandizes and fliip, Sec. with- 
 
 * out prejudice to the infurance j to the charges -whereofy 
 
 * the infurers agree to contribute^ each according to the rate and 
 « quantity of his Juhfcription.' The meaning of tliis claufe is, 
 that, till the infured has been informed of what has hap- 
 pened, no aft of the captain fhall prejudice their right to 
 abandon {a) . There is a hmilar provifion in the policies 
 of all other commercial countries, with a fimilar under- 
 taking on the part of the underwriters, to defray all ex- 
 pences, without limit, except in the policy ufed at Mar- 
 feiUeSy in which the infurers only undertake to defray al| 
 expences occafioned by the falvage, provided they do not 
 exceed the value of the effeSls faved ; a precaution as Erne' 
 rigon obferves, which prevents their being ever liable for 
 more than the fum infured {h). This accords with the 
 fentiments of Cleiracy who fays that the expences of the 
 recovery of the effeds faved, ought not to increafe the lofs 
 
 (a) Per JJhurJl,i.'m Mkchellv. Edli, fup. 590. {b) Vid, 
 
 Emeri^. torn. 2, p. 205. 
 
 ^eyond
 
 Ch. XIII. § 5.] Bifpoful cf the Fffecls. 615 
 
 bevond the fum iiifured {a). But this reftritiion has occa- 
 fioncd many inconveniences both to the infured and in- 
 furers (/'), which is the rc^ifon, perhaps, why it has not 
 been adopted in any oth:r place that I know of. 
 
 As to the captain, the iliip and cargo being confided to Duty of the cip- 
 liis care, it is pecuHarly his duty, in order that he may of"wh"t may^'bc 
 Ihew himfclf worthy of fo great a truft, to employ all '•■»^<='^- 
 his courage, fl:il!, and induftry, in the protection and 
 prefervation of the one \xnA the ether. 
 
 From the nature of his fituation, lie has an implied His power, 
 authority, not only from the infured, but alfo from the 
 infurers and all others intcrtlled in the lliip or cargo, in 
 cafe of misfortune, to do whatever he thinks moft con- 
 ducive to the general interefl: of all concerned ', and they 
 are all bound by his a£ls [c). Therefore, if the fliip be 
 difabled by flrefs of weather, or any other peril of the 
 fea, the captain may hire anotlier vefiel for the tranfport 
 of the goods to their port of deftination, if he think it 1 
 
 for the interefl: of all concerned that he fhould do fo. 
 Or he may, upon a capture, appeal againfl: a fentence of 
 condemnation, or carry on any other proceedings for the 
 recovery of the fhip and cargo, provided he has a pro- 
 bable ground for doing fo. Or, he may, upon the lofs of 
 the flnp, inveft the produce of the goods faved in other 
 goods, which he may fiiip for his original port of defti- 
 nation ; and this, according to the do6irine of Lord 
 Mansfield and Mr. Juftice BuHcr, in the cafe of Planta- . 
 
 mour V. Staples (d), fliall bind the infurers. For whatever 
 is recovered of the efFe£ls infured, the captain is account- 
 able to the infurers. If the infured negle6l; to abandon 
 when he has it in his pq^ver to do fo, he adopts the afts 
 of the captain, and he is bound by them. If, on the \y\^^j^ 3 ^^t of 
 other hand, the infurers, after notice of abandonment, citixr pirty. 
 fuffer the captain to continue in the management, he be- 
 comes their agent, and they are bound by his a6ls (c). 
 
 (a) Chirac i\xr Le Guidon, ch. 20, art. ().■ (b) Vid. iTwr- 
 
 rr^. torn. 2, p. 205, (cj Per Lord Mansfieldiw Mills v. 
 
 Fletcher, fup. 578. {d) Vid. c 5, § 2, fup. 170. 
 
 (t') Per yljhurjb, J. in Milchellv. Edie fup. 590.., 
 
 K 4 ^
 
 6-1 6 C)f Abandonment, ' [B. L 
 
 Dutv of the As to the Jailors, — when a misfortune happens, they 
 
 r.re bound to iave and prelewe the merchandize to the 
 beil of iheir power •, and v/hile they are fo employed, 
 they arc entitled to wages, fo far, at lead, as what is faved 
 will allow: But if they refufe to arnft in this, th^y 
 fhall liave neither wages nor reward. In this the RhodiaK 
 law (fl), and the lav.'S or Olcron (^), of Wifouy (<:), and 
 of the Hans 'Taivns ((^'), all agree. 
 
 (a) fF. dele-. Rhod. art. 3. (^),Art. 3. — {c) Art. ij, 
 
 . — [d) Art 44. ■
 
 ( 6i7 ) 
 
 CHAP. XIV. 
 
 Of the Aifjusimeitt of Losses, 
 
 '"T^HE atljuftmeht of a lofi^Is the fettling and afcertaln- 
 ing the amount of the indemnity which the infiired, 
 after all proper allowancc;8 anii deductions have been 
 made, is entitled to receive, and the proportion of this, 
 which each underwriter is liable to pay, under the pollcyt 
 To aftertain, with due precifion, the amount of a lofs, is 
 fometimes a work of confiderable difficulty : And though 
 this is generally performed, without litigation, by perfons 
 convevfant with this branch of bufinefs, queftions fome- 
 times arifc, upon which the moft experienced merchaiits 
 cannot agree, and then the law mud draw the line be- 
 tween tiiem. 
 
 By the law of England, as it now {lands, as tvell 
 as by the general law of mar-chants, the contract of in- 
 furance ought not to be lu rativc to the infured, nor ena- 
 ble him to make a profit out of the lofs of another. It 
 ought to afford him an iudiemnity, and no more {a). 
 The infnier ought never to pay lefs, nor the infured re- 
 ceive mor^, than that which a fair indemnity demands. 
 And this ftiould be afccrtained, not upon fubtikies and 
 niceties, but upon plain and cafy rules, the diclates pf 
 common fenfe, drawn from the truth of the cafe. 
 
 In adjufljng a Jchs, the firil thing io be confidered Is, 
 hpw tlic qiia'.ihy cf ihc damage for which the underwriters 
 ave liable, f lall be afwertained..- This being known, the 
 next, and generally tiie moft difucuit, point to be fctllcd, 
 is, by what rule this fhall be appreclaUd. When thefe 
 things are fatisfa£lcrily afcertained, the adjuitment i< 
 
 i^a) Vid. Le Guide/}, ch. 2, art. 12, Em:r'i^. torn. I. p. '^$9- 
 
 ■ ufually
 
 6i$ Adjujlment of Lojps [B.I. 
 
 ufually indorfed on the policy and Hgned by the under- 
 writers. We will therefore confider, - 
 
 I. How the quantity of damage jloall be afceriained ; 
 
 II. How the lofs Jhall be appreciated ; 
 
 III. Whatfhall be the ejed of an adjuftment. 
 
 Seel. I. 
 
 How the Quantity of Damage Jloall be afceriained. 
 
 "WHEN a lofs has happened, and it appears, under all 
 
 the circumflances, to be a total lofs, and the infured decides 
 
 to abandon, he muft give notice of this to the underwriters 
 
 in a reafonable time, other wife, as we have already feen (a) , 
 
 he will wave his right to abandon, and muft be content to 
 
 claim only as for a partial lofs. 
 
 When the policy When the lofs is admitted to be total, and the policy is 
 
 is a valued one, ^ <ualued one, the infured is entitled to receive the whole 
 
 tid. "^ " ^ fum infured, fubjedl to fuch deductions as may have been 
 
 agreed by the policy to be made in cafe of lofs. For the 
 
 infured, by allowing the value to be inferted in the policy, 
 
 agrees that it {hall be taken as there ftated ; and it is the 
 
 fame as if he had admitted it at the trial of the caufe {h) . 
 
 It is only in the cafe of a total lofs that there is any 
 Bi.Terer.ce be- •' , i , t- tt 
 
 tween the ad- difference between an open and a valued policy. Upon 
 
 ipe^andf vahi- the latter, the value is admitted, and the infured has only 
 td policy. jQ prove, if the infurance was on goods, that the goods 
 
 valued were on board. Upon an open policy, it is not 
 only necefiary to fliew that the goods w^ere on board, but 
 alfo to prove the value of them •, which value, not ex- 
 ceeding the fum infured, is the fum the infurers are bound 
 to pay. 
 
 But in the cafe of a partial lofs, the like inquiry is to 
 ht made into the amount of the lofs, whether the policy 
 
 (fl) Sup, cb. 13, § 3.™(^} Vid. fup. 287, 8. 
 
 bo
 
 Ch. XIV. § I.] A^ to ^antUf' g,p 
 
 be of the one fort or of the other {a). The uidemnlty 
 fecured by either fort of policy is, that if the thing in- 
 fured do not come fafe to the port of deftinatlon, but is 
 lefTened in value by damage received in the voyage from 
 any of the perils infured againft, the lofs fhall be borne 
 by the infurer. 
 
 When the lofs confifts in the total lofs of one entire Rule where th« 
 individual, parcel of the goods infured, and this is capa- ot enTirf '«dl 
 ble of a feveral and diftincl valuation j as if, out of ^i'^"^'- 
 ICO hogfheads of fugar, ten happen to be loft, and the 
 reft arrive fafe j the infurer muft pay the value of the 
 ten {b) . 
 
 When a part of the goods infured is faved, and this When part of the 
 exceeds tlie amount of the freight, the pradice is to 8"ods u Javed. 
 dedud the freight from the falvage, or goods faved, and 
 to make up the lofs upon the difference. But where the 
 freight exceeds the falvage, then it is a total lofs (c). 
 
 But where the goods infured are damaged in the whole Whe^e all th« 
 or in part, it becomes neceflUry to afcertain the quantity ^"""^'^ "* *^*" 
 of fuch damage, which is done by taking the value of 
 the goods, in their damaged ftate, from the prime coft, 
 and the remainder will be the amount of the lofs. 
 
 If leveral articles be infured for one entire fum, but Where feveral 
 with a diftind valuation to each, and only one be put in ^ff'«'« ^^f '"- 
 
 •n ir 1 1 1 n 1 • r i fuied, and only 
 
 nlk : It that one be loft, the infured IhaU recover fuch a on: put in riik. 
 proportion of the fum infured, as the value of that article 
 bore to the value of the whole. 
 
 As, where the plaintiff wrote from St. Kitts to his agent ^r^ery v. Rogers, 
 in London^ defiring him to make infurance on a fhip and ^ ■^■^' ^^P'*°'' 
 cargo to the amount of 5,500 1. valuing the fhip at 1500I. 
 Only 600 I. could be efFedled. No part of the cargo 
 was ever put on board, fo that in fa£l the policy attached 
 only on the fhip. — The fhip being loft, and an a£lion 
 brought on the policy, the above rule was contended for 
 on the part of the defendant.- — Lord Kenyon, who tried 
 
 {a) 2 Bur. iiyr. Vid. fnp. 288. [b) % Bur. 1170.— 
 
 rr{c) Vid. Boyjidd v. Brown, fup. 587^
 
 fc2o Adjiijiment of LoJJh [S* ^' 
 
 I the caufe, feemed to be of opinion that, as the whole fum 
 
 i infuved was lefs than the vahie of the (hip, the plaintift* 
 
 ) was entitled to the whole,— But the jury having intimated 
 
 that the rule, as laid down by the defendant's counfel, was 
 
 that which prevailed in fuch cafes at Lloyd's coffee houfe, 
 
 his lordfhlp afTented to their giving a verdia for fuch a 
 
 proportion of the fum infured as the value of the fiiip bore 
 
 to the value of both fhip and cargo. 
 
 When there Is a If there be a claufe in the policy, to be free of average 
 
 c!auf<; to be Ire f j-qj^ ^ particular riflc under fo much per cent, and a lofs 
 
 "o nwcx^pir cent, occafioued by that vilk fake place ; the proportion which 
 
 how that propor- j j ^-^ ^^^^^ ^^ ^^^ ^^^ ^^ Calculated upon the 
 
 ti' n Ihali be at- ' o ' 
 
 tei tallied. cafgo which was on boai'd when the lofs happened, not 
 
 upon that which was on board at any other time. 
 
 Rk'Jy Tart Thus: — In a policy on a Have Ihip, there was a me- 
 
 ify>. Rep.444, morandum, to be free of average under ^percent, for 
 
 Sup. 49^. j^^g ^y infurreaion of the flaves.— An infurreftion took 
 
 ■" place when there were only 49 flaves on board. Seven of 
 
 thefe were killed. — As this lofs mufl amount to 5 per cent. 
 
 to make the underwriters liable, it became a queftion, at 
 
 what time the proportion which the lofs bore to the cargo 
 
 fhould be taken •, — ^\vhether at the time when the infur- 
 
 reilion took place, and the lofs happened, or v/hen the 
 
 whole cargo was on board. Upon examination of per- 
 
 fons acquainted with the pra£Vice in fuch cafes, it was 
 
 found that the time when the calculation was to be made, 
 
 was, nvhen the lofs happened^ at which time, the proportion 
 
 of the lofs to the cargo then on hoards was to regulate the 
 
 lofs to be borne by the underwriters. 
 
 Sea. 11. 
 Mow the Lofs Jh all he appreciated. 
 
 What (hall be THE true prlcc cf a thing is that for v/hich things of 
 ^r"Tofft\inr the like nature and quality are uVually fold in the place 
 where they are fituated, if real property ; or in the place 
 where they are expofed to fale, if perfcnal {a\. 
 
 (fi) Foth'ter, Des Vcntes, n. 242. 
 
 7 ^^^'^
 
 Gh. XIV. § 2.] As io Value. 621 
 
 The fiift price of a thing does not always afford a fure ""^'"^ ^'^^ i"''" '* 
 criterion to afcertain its true value. It may have been Tru'c vl'c!' '^* 
 bought very dear, or very cheap. The circumltances of 
 time and place caufe a continual variation in the price of 
 things. For this reafon, in cafes of general average, the 
 things faved contribute, not according to the prime coft, ft 'T-d^ccorrim 
 but according to the price for which they may be fold at *° '*!' i ^'" =>» 
 the time of fettling the average. -Non quantl empta funty Ilus!"'"' ''^'"' 
 fed quantl veriiri psjurj, is the rule of the Rh:dian law {a). 
 The fame is adopted in the laws of W:jhi!^j{h). 
 
 Upt)n the fubjecl of the valuation of the goods infured ^'^''-''^'t m"d€« 
 there has always been a great divcrfity of''opinion, not riJir"""""* 
 only among fpeculative writers, but alfo among merchants 
 themfelves. Some contending for the prime cofl, others 
 for the current price at the time of the lofs; fome infill- 
 ing on the price at the time and place where the goods arc 
 (hipped, others on the price at the port of difchirge {c). 
 
 In France^ where almoft all policies are valued, ihe How rhc v ,iua. 
 Infured has his eleftion to fix the previous valuation, ''"" '^ "'•"'« '" 
 either at the prime coft, or at the current price at the time 
 and place of loading. If the goods be of the growth or 
 manufacture of the infured, the latter valuation is always 
 adopted {d). The fame rule that applies to goods, applies 
 alfo to the fliip, which is always valued at the fum flie is v 
 
 v/orth at the time of her departure («•), or at leaft at the 
 commencement of the rifle— If goods, by being brouglit Good., brought 
 from adiflancc, are augmented in value, they may be efti- "■""' ■'' ''^'i^acc 
 rrated at their improved value, and an invoice made ac- aTrhcirUf'o'vei 
 cordingly ; nor fhall the infured be obliged to produce ^'''"' 
 his original accounts, having a rght to infure the profit 
 already acquired ; and the infurer m;.ift either abide by the 
 invoice made by the infured, or require ^ valuation by 
 
 {a) ^..d: leg. Rhod. I. 2, § 4. (h) LzwsoUFi/h. art. 20. 
 
 and 39. Vid. Santerna, h. t. par. 3, n. 40. Roccus, n. 31. 
 
 {c) Wi-ETnerig. torn, i, p. 261. -(;/) Vid. Ord. deln m.ir. 
 
 h. t. art. 64, and Fa/in on this art;. Ktr.iri^. torn. I, p. 26a. 
 
 (^; Vid Etncri^ torn, l p. 2O3. 
 
 Ikllful
 
 ^23 Adjujlment of Lojfes [B. L 
 
 flcllful perfons according to the current prices of the time and 
 place. — It is ufual in France to flipulate in the poh'cy that 
 the fhip fhall remain of the fame value during the voy- 
 age ; which is the reafon why Valin (a) fays, that where 
 the fliip is abandoned, the freighty which augments in the 
 fame degree as the fliip is deteriorated in value, is alfo 
 abandoned, as being an infeparable incident to the 
 fliip (b). . 
 In E>!g!a>id ti,c In Englandy if the policy be an open one, it is an in- 
 iwoper value variable rule to eilimate a total lofs, not by any fuppofed 
 
 co.ififts of the -' Z ^ ^ 
 
 prime eoft and pricc which the goods might have been deemed worth, at 
 all c arges. ^j^^ ^- ^^^ ^^ ^^^ 1^^^^ ^^ ^^^ which they might have been 
 
 fold, had they reached the market for which they were def- 
 
 tined ; but according to the prime co/f, that is, the invoice 
 
 price, and all duties and expences incurred till they are 
 
 put on board, together with the premium of infurance. 
 
 The value is This is the only true, at lead the only legal, mode of efli- 
 
 never affeif^ed mating a lofs, whether total or partial, on goods ; and, 
 
 faU of the'mar- therefore, whether the goods would have arrived at a 
 
 kei,orthecouife „qq^ or a bad market is always immaterial (c). Neither 
 ef exchange, ^ ' ' _ 
 
 is the difference of exchange to be at all regarded in the 
 
 adjuftment j for the underwriter does not infure againft 
 any lofs ariling from fuch caufes {d). 
 
 It might, with fome degree of plaufibility, be infifted 
 that the prime coft, after a long voyage, and when the 
 goods infured had almoft reached a market where they 
 would have fold for a great profit, does not amount to an 
 indemnity \ for, befide the lofs of the profit the merchant 
 might reafonably have expedted, he alfo lofes all the be- 
 nefit he could have derived, from the ufe of his money in 
 any other adventure. Upon this principle the Conjolats 
 del mare {e), in laying down rules for average contribu- 
 tions, declares that if the goods be loft before half the 
 voyage is performed, they are to be valued only at prime 
 
 \a) On art. 8. and 64, h. t. p. ^6^ 136. {h) Vid, fup. 
 
 cli. 13, § 4. {c) Vq-c Bulkrj J. at N. P. in Dick v. Jllen, 
 
 afrer Mich. i'jS^,Pari 104. (d) Per Lord Kenyan in TAel" 
 
 hjon V. Beivich, at N. P. i Efp. Rep. 77.— -(e) Ch. 95. 
 
 3 coft}
 
 Ch.XrV. §2.] Js to Value. Si^ 
 
 cofl: ; but, if after, then at the price at which they might 
 have been fold at the port of delivery. — However reafon- 
 able this rule may be, abilra£ledly confidered, and as ap- 
 plied to average contributions, it would be more than 
 counter-balanced by the litigation it would occafion, to 
 decide, in queitions of infurance, whether the voyage was 
 half performed ; or, if that were indifputable, then, what 
 was die market price at the port of delivery. But, be 
 this as it may, it is the invariable rule in this country, 
 upon an open policy to eftimate a total lofs upon goods, 
 by adding to the prime coft, all duties and expences and 
 the premium of infurance ; for tliis has conftantly been 
 deemed a full indemnity to the infured. 
 
 A fnip Is valued at the fum fhe is worth, at the time {he Hov.- .1 (hip ttM 
 fails on the voyage infured, including the expences of ^'- v-'i^eo. 
 repairs, the value of her furniture, provlfions and ftores, 
 the money advanced to the failors, and, in general, every 
 expence of the out-fit ; to which is added the premium of 
 infurance [a). 
 
 A partial lofs upon either fliip or goods. Is that propor- When goofTs 
 tion of the prime cod, which is eqr.al to the diminution in ^rc dnnuiged in 
 
 1 /-111, -r , ^ ^ the courle of the 
 
 value occalioned by the damage. — In the cafe of a partial voyage, tne 
 lofs upon goods damaged in the courfe of the voyage, fJl^^ha pro! 
 much doubt has arifcn as to the rule or meafure by wliich P05''"" o*' tn« 
 
 ■L 1 1, 1 • 1 -.xTi prime coftwhich 
 
 the damage ought to be appreciated. Where the goods ihe price of the 
 
 have corae to a good market, it has been contended that to'"the^*'ric'!:"of 
 
 the infured is intitled to the d'ifferefice letiveen the price for ^'^^ '^"""" '" '''* 
 1-111 11 1 1 77 port of deiiveiy. 
 
 'U'hu'h the damnged and undamaged goods have been f. Id at the 
 
 port of delivery ; and that, where the goods have come to 
 
 a fallen market, ihc infured ought to receive the differ^ 
 
 ence between the pries of the damaged goodsy at the port of 
 
 delivery y a7id the prime ccf or value in the polic-j. But this 
 
 would neceflarily involve ' the underwriter in the rife or 
 
 {a) "By Ord. dc la mar. h. t. art. 20, tlie premium cannot be 
 added to the other charges, yet the allowance of it is fupported 
 by the authority of Z^- Guhluriy ch. 2, art.9, ch. ij, art, 3. ij, 
 15, and the pradicc gf all commercial nations. 
 
 fJl
 
 34 AdjiiftmentofLoJfes " [B.!. 
 
 fall of the market. Befides, the difference between the 
 price of the found and damaged goods, in a rifcn market, 
 might amount to more than the hivoice price. For in- 
 ftance ; fuppofe the prime coft of a quantity of goods to 
 be aool., which, coming found to the port of delivery, 
 would fell for 300I., but, being damaged, would fell 
 for only 50I. •, the difference would be 250 •, which is 
 more than the prime cod. ll:e ..ae rule is, that the in- 
 fured is only intltled to thr.t pr-port'ton of the prime coji 
 ivh'ich the price of the aamaged hears to the prit£ of the found 
 at the port of delivery^ thus, ufing ihe relative prices of 
 the damaged and found coaimodity, at the port of delivery, 
 as a criterion to afcertain the proportion of the prime 
 coft which the underwriter is bound to pay. — is, if 
 goods, valued at lool., and coming to a good market y 
 would, if found, have been fold for 120I. ; but are fo 
 damaged as not fo fetch more than 40 1. : Then, accord- 
 ing to the above rule contended for by the infured, the 
 lofs would be 80 1. per ceiit : But, according_ to the rule 
 now eftablifned, the lofs would be that proportion of the 
 prime coft (lool.) which the difference between the pric« 
 of the damaged and the price of the found goods (Sol.) 
 bears to the price of the found (120I.) : Thus : — If 120I : 
 Sol : : 100^. : — t]^e anfwer is 661. 13s. 4d., the true lofs. — 
 But, if the dam.aged goods had come to ^. fallen market^ and 
 'had fetched only 30 1. and thefe, if found, would have 
 been worth 90I. \ the infured, according to the above ex- 
 ploded rule, could claim only 60I. per cent. \ but, accord- 
 ing to the true rule, he v/ould be entitled to that propor- 
 I tion of 1 col. which 60I. bears to yol., namely 661. 13s. 4d. 
 
 — ^This will be found fully exemplified in the follov/ing 
 cafe. 
 l.t-wh V. TLuchr^ An infurance was made upon goods, * At and from 
 2 Bur. 1167. , ^_^ .^^^^ ^f ^^_ Thomas to Uamburgh, from the loading 
 Sa'zn 'Valued ^i t at that iflaud, till the ihip fhouH arrive and land the 
 head ^are fo ria- * goods ^t Ha fnl'urgh.' —The goods which confifted of 
 mageii ii. the f^gJlJ.g coffee, and indliTO Vv'ere valued ; the clavcd fugars 
 
 ■Voy;ige, that o J -» o ^ o 
 
 Uiey ;i.e ("old at at 30 1. per hcgflicad, Mufcovado at lo 1. ; and the coffee 
 
 the coit of de- .... ,r Tic' r-1 
 
 livery, for and mdigo were alfo valued. Sugars were, as ulual, 
 20I.GS. ?d /..-r ^y^^.j.^.-it;ed free from average under 5 1. per cent, and all 
 
 ncglncaO, one, " •" * 
 
 if found, wiiuld 
 
 other
 
 Ch. XIV. § 2.] As to Value. ' 625 
 
 Other goods under 3 1. prr cwif. unlef': general, or the {hip ^^ve fetched 
 
 ihould be ftraiided. — I:i the voyage the fea water got in ; ij ',|,.',t' the' 
 
 and when the {hip arrived at Ha7}ilmrghy it appeared that ^'^"ei.cc wat 
 
 every hogfliead of fugar was damaged ; fo that it be- hc.g(h«u'd. The 
 
 came neceiiary to fell chem immediately at Hatuburz'^ : And '"'*,'" '*"' '^^'^^» 
 
 ' ; l< iii.it piiipor- 
 
 the difference between the price they fold for, and what ''""of b^^'- Oh« 
 
 they would have fetched there, had they been found, was cy)wh'ich si";!" 
 
 as 20I. OS. 8 d, per hcsifliead, is to 2-2 1. 7 s. 8 d. That C'*"^ <i'ffc.cn«c 
 
 I- \\ c \ 1 between dii. 
 
 13, they were fold for 3 1. 7s. per hoglliead Icfs than they miged aud 
 
 would have been worth, had thev been found.— fhe de- f"""^' "j ;.h« 
 
 ^ port of delivciy) 
 
 fcndant paid into court that proportion of the fum at '^"'* '" 
 
 which the fugars -v^rctc vij/ued in the policy^ which the price the price of the 
 
 of the damaged bore to that of the found fugars at ^""'='1/' ^''- 
 
 " port of cicl.verv. 
 
 Hamburgh {a). — The only quelbon was, by what rneafure —The aniotmt 
 
 or rule the damage ought to have been eftimated.— The pl/d'epcnd^o" 
 
 plaintiff proved that, at the time of the infurance, fugars '^e prices in the 
 
 were worth 35 1. per hogfhead ^\. Hamburgh \ but that port of deiivciy; 
 
 the expectation of a peace had fuddenly funk them : tliat ^"^ '"V^ pr-P""- 
 
 ^ ^ ' tion.of the />r/jM 
 
 the owner of the fugars, before the Ihip arrived at Ham- i^fi whicii the 
 
 hurgh, and before he" could know that they v/ere damaged, '"'"' "T"""'^ '°' 
 
 had fent orders that they fhould be houfed' there till the '^'"=<* ^y ^^'= 
 
 _ .. , , 1 rt t » ' r r^ pt:ces which the 
 
 price ihould rile above 30 1. per hoglhead ; that, \\\ fact, damaged and 
 
 the negociation not taking place, fugars did not rife 25 1. '^""j^ ^J'"' |^ 
 
 per cent. ; that he might have fold thefe fugars at 30 1. 'he port of dc- 
 per hogfliead, if they could have been kept, and the da- 
 
 (,3) The reporter of this cafe makes Lord Mansfield ftate that 
 the fum paid into court bore the like proportion to the fum at 
 which the fugars were valued in the policj'j (30I.) as the price of 
 the damaged fugars (20I. os. 8d ) bore to the price of the 
 {onnd At Hamburgh (23 1. 7^- 8d.). This, by a common ope- 
 ration of arithmetic, would be 25 1. 14 s. p<tr hogfliead, which 
 (hews tliat the rule by which the mon'ry was paid into court, is 
 not coneftly Hated in the report. The fun:i paid into court 
 mud have t)orne the fame proportion tj 30 h as 3h 75. (the 
 difference between the foiitid and damaged fugars at Hamburgh) 
 bore to 23I. 7s. Sd. (the price oftlie fniiul there\ This 
 comes to 4I. 58. i i^d. per hogfliead the real amount of the lofs, 
 according to the principles laid down by Lord Mansfuld, in de- 
 livering the opinion of the court. 
 
 VOL. 11. X. fnagc
 
 62S Adjujlmeni of Lojfes [B. L 
 
 mage they had received was the only reafon why they 
 were not kept. The plaintiff, therefore, infilled that the 
 necelhty of an immediate fale, and the lofs fuftained by 
 it, ought to have been taken into tlie, account in comput- 
 ing the damage. — Lord Alansfieldy who tried the caufe, 
 left it to the jury to decide, "whether the difference bet'ween 
 the found and the damaged fugars^ at the port of delivery^ 
 ought to be the rule : Or, whether the Icfs occaftoned by an 
 immediate fale, fhould be taken into confideration. The 
 jury, amongft whom were many confiderable merchants, 
 who perfe£l]y underftood the fubjedl, and formed their 
 judgment from their own experience, found the defen- 
 dant's rule of eftimation to be right, and gave their verdidl 
 for him accordingly. — Upon a motion for a new trial, 
 the court were unanimoully of opinion that the plaintiffs 
 were not entitled to have the price for which the damaged 
 fugars were fold, made up to 30I. per hogfiiead ; and 
 that the rule by which the jury had gone was the right 
 meafure. — Lord Mansfield^ in delivering the opinion of 
 the court, faid, — " The rule by which the defendant and 
 the jury have gone is this :« — The defendant takes the pro- 
 portion of the difference between found and damaged 
 fugars in the port of delivery, and pays that proportion 
 upon the value of the goods fpecihecl in the policy ; and 
 has no regard to the price, in moneys which either found 01 
 ,. ^, damaged fugars bore at the port of delivery. [!e fays the 
 
 ly holds whe- proportion of the difference is equally the rule, whetlier 
 come to^ a fifing the goods Came to a rifmg or a falling market. For in- 
 ur a falling ftancc J fuppofe the prime coft or value in the policy to 
 be 30 1. and the damaged goods fell for 40 1,; Imt, ii 
 found, would have fold for 50 1. ; the difference is a fifth : 
 The infurer muft therefore pay a fifth of 30I : — E converfo, 
 if they come to a lofing market, and, being damaged, 
 fell for lol. j but if found would have fold for 20 1.? 
 the difference is one half: The infurer mud therefore 
 pay 15I. that is half the prime colt or value in the policy. 
 Two objedlions have been made to this rule : Fiiff that 
 it is going by a different meafure in the cafe oF 2. partial^ 
 from that which governs in the cafe of a /c/.;/, lofs ; forj 
 upon a total lofs, the prime coft, or value in tae policy, 
 9 mufl
 
 Ch. XIV. § 2.] As to Value. 627 
 
 muft be paid. — The anfwer to wliich obje*5lion is, that 
 the diftindliorf is founded in the nature of the thing. In- 
 furance is a contraft of indemnity againft the perils of the 
 voyage,, to the amount of the value in the poHcy ; and 
 therefore if the thing be totally loll, the infurer muft pay 
 the whole value which he infured at the out-fet. But, 
 where a tart of the commodity is fpoiled, no meafure 
 can be taken from the prime coft to afccrtain the quantity 
 of ihe damage fuftained. The only way is to afcertain 
 whether the thing be a third or a fourth worfe than tlie 
 found commodity ; and chen pay a third or fourth of the 
 prime coft or value of the goods fo damaged (a). The 
 fecond objedion is, that this being a valued policy, was in 
 nature of a ivager ; and if fo, there could be no partial 
 lofs, and the infured could only abandon and recover as 
 for a total lofs ; becaufe the v?'ue fpecified was fi6litious." 
 
 In anfwer to this objedion, his Lordfhip faid, — « To 
 
 argue that there can be no adjuftmept cf a partial lofs 
 upon a valued policy, is dire6lly -ntrary to the very 
 ter^:^s of the policy itfclf.- It is exprefsly provided thet 
 tli^r'article of fugar fhall be fubje£l: to average, if the 
 lofs exceed 5 per cent. ; and even if it were not fub- 
 jefc* lo average the confequenee would be that every 
 parti^lofs muft thereby become total : But then, the 
 infured could only recover in the event of a total lofs ; 
 and confequently the plaintiffs in this cafe would not be 
 entitled to recover at all •, for there is no colour to fay 
 that this »was a total lofs ; befides the plaintiffs have 
 taken the goods and fold them. In oppofition to the 
 meafure which the jury have gone by, the plaintiffs con- 
 
 (a) Lord Mansfield, in this anfwer to the firft objedion, 
 feems, according to the report, to have been labouring to ac- 
 count for the ^uppofed difference between the meafure in ti e cafe 
 of a partial ind a total lofs. But with great deference, it would 
 feem that the rule to which the objeftion is made, and which 
 f'Testhe proportion of the prime co/l which muft be paid in cafe 
 of a partial lofs, is nc t inconfiftent with, but is founded upon, 
 the prattice of paying the whole of the prime coft upon a total 
 lofs. 
 
 / , L 2 tend
 
 6aS Adjtijlment of Lojes [B. I. 
 
 tend that they ought to be paid the nvhoh value in the 
 policy i upon one of two grounds, ift. That the general 
 rule of efth-nating fliould' have been the difrerence be- 
 tween the price the damaged goods fold for, and the 
 prime coft, or value in the policy. Here the damaged 
 goods fold for 2C 1. OS. 8 d. per hogfhead j and theun- 
 An infiirer is derwritcrs fhould make it up ^ 1. — To this I anfwer, 
 iiever to be in- ji^^^j. jj. ^q^]^[ involvc the underwiter In the rife or fall of 
 
 volved in the 
 
 rife or f^ii of tiie the market; and, in fome cafes, fubjc6l him to pay 
 vadly more than the lofs ; in others it would deprive the 
 infured of any fatisfa6tion, though there were a lofs. — . 
 For inflance •, fuppofe the prime coft, or value in the 
 policy, 30I. per hogfhead ; the fugars damaged ; the price 
 of the found 20I. •■, the price of the damaged 19 1, 10 s. ; 
 The lofs is about tl fortieth., and the infurer would be 
 obliged to pay above a third. Snppofe they come to a 
 rifing market ; the found fugars fell for 40I. ; the damaged 
 for 35 1 : The lofs is an eighth \ yet the infurer would 
 have to pay nothing. — The 2d ground upon which the 
 plaintiffs contended that the 30I. fliould be made up, was 
 that it appeared that the fugars 'waiild have fold for that 
 price, if the damage had not made an immediate fale 
 neceffary. The moment the jury brought in their verdict;, 
 I was fatisfied tliey had done right in difregarding \htpar- 
 iiciihr circttmfances of this caf? ; and I was convinced of 
 this, after converfing with perl >as of experience in adjuft- 
 ments, and after the fubje£t had been fully argued at the 
 
 The indemnity bar. The nature of the contra£l: is, that the goods fhall 
 
 fecured by the ^^^^ f^fj. jq j-j^g pp^t of delivery ; or if not, that the in- 
 
 pohcy IS luch _ . ' 
 
 an aiiq^uot part furcr Will indemnify the infured to the amount of the 
 
 "Jottls liut^. prince coft. If they arrive, but lefTened in value by da- 
 ponds with ttie inage received at fea, the nature of an indemnity fpeaks 
 
 diminution in r. 1 , i • n 1 1 • 1 • r 1 - 
 
 'raiue occaHoned demonllrably, that it mult be, by puttmg the mlured in 
 \y the damag*. ^j^^ i^^ixic fituation, (relation being had. to the prime coft, 
 or value in the policy), vvhich he would have been in, if 
 the goods had arrived free from damage ; that is, by 
 paying fuch frcpcriic?i) or aliquot part^ of the prime coft, 
 or value in the policy, ascorrefponds with die proportion, 
 or aliquot part, of the diminution in vcdue occafioned by 
 the damage. Ths. duty accrues upon the Thip's arrival 
 n and j
 
 Ch. XIV. § 2.] J.: to V.lue. g,^ 
 
 and landing her cargo at the port of delivery , and tlie The duty ac- 
 
 infured has then a right to demand fatisfa£tion. The """ "P^" '"« 
 
 adjuftment can never depend upon future events or fpe- a^uK„di";?ir 
 
 culations : How long is he to vv^ait : a week, a month or a "'''2"' •""^<^^^i 
 
 2Tu*ri- ><-'irt not dcprnd in 
 
 year f—In this cafe, the price role ; but, if peace had been f"'^"<= <-o,a,n^ 
 Blade, the price would have fallen : But the defendant ^""'"' 
 did not infure that there Ihould be no peace. It is true 
 that the owner acted upon political fpeculation, and or- 
 dered the fugars to be kept till the price fliould be 30 1. ^^ ^ ^^^,^, 
 cr upwards : But no private fcheme or project of trade onhrinJui' °d 
 of the infured can afieft the infurcr^ He knew nothing T "•^'''^\''' 
 ot It : He did not undertake that fugars fliould bear a «"'"""' of t^« 
 price of 30 1. a hogHiead. If Ineculative diftinaions of ^'^'' 
 the merchant, and the fuccefs of fuch fpeculations, were 
 to be regarded, it would introduce the greatclt injuftice 
 and iuconvenisnce. The infurer knows nothing of them. 
 Here the orders were given after the figning of the po- 
 licy. But the decifu-e aiifwer is, that the underwriter 
 has nothing to do with the price, and that the right ' of 
 the infured to a futisfatlion, where goods are damaged* 
 arifes immediately upon their being landed at the port 
 of delivery." 
 
 In the above cafe it was fettled that the relative prices 
 of t!j3 found ^nd uufpund goods at the port of delivery fur- 
 nifhtd >he truebafis for calculating the proportion of the 
 prime cod which the infurer is to pay in cafe of a partial 
 iofs. But it has fmce been made a queftion, what are to 
 be taken as the prices of tlie found and damaged goods, 
 from which the calculation fhall be made ? Upon that 
 queftion it has been determlnevl that the refpcdivc prices 
 of the damaged and the four.d commodity are not to be 
 taken from the net proceeds, but from the g-rofs produce of 
 each, at the port of delivery. 
 
 Thus, where an aaion was brought on a policy upon j,h,.f,nM.sh,i. 
 
 goods infured from Sicily to Hamburgh to recover a par- '^"'> ^ ^"J* i^'- 
 
 tial Iofs occafior.td by the fea water having damaged the Ti>e prices ci rhe 
 
 goods.— At the tri^il it Vv^as referred to one of the jury to '^"""'^, ^"'' '"- 
 
 . J 1 ni.igcdgoodj ate 
 
 alcertain the amount of the Iofs, who fettled it at <"« to be takm 
 
 "/-I „„ 1 , ^ rp, . . from the nei 
 
 76 1. 7 s. Of 0.. per cent. — There was amotion for a new pr..cccrii, imt 
 trial upon the ground that this calculation had pro- '',"'•' ''" S".'^' 
 
 * •-' * Produce k( ih« 
 
 h 3 Cecded po<t ot deliver/.
 
 630 Adjujlment of Lojps [B. L 
 
 cceded on a miftake, the perfon who made it having 
 taken for his foundation, the difference between the net 
 proceeds of the damaged goods, and what they would have 
 produced if found ; inftead of the difference between the 
 grofs produce of each. — ^The court determined that the 
 calculation was wrong, and the objection well founded. 
 Mr. Juflice Lawrencey who delivered the opinion of the 
 court, faid, — " It is agreed on both fides that the lofs is 
 to be eflimated by the rule laid down in Lewis v. 
 Ruckey{a) •, that the underwriter is not to be fubje£l:ed to 
 the fluftuation of the market j that the lofs for which he 
 is refponfible, is that which arifes from the deterioration 
 of the commodity by fea damage ; and that he is not 
 liable for the duties or charges payable at the place of de- 
 livery. Lord Mansfieldy in laying down the rule, in that 
 cafe, fpeaks of the price of the thing at the port of deli-, 
 very, as the means of afcertaining the damage ; by which 
 he muft mean the 'whale fum which is to be paid for the 
 thing : For the net proceeds are not the price, but only fo, 
 much of the price as remains after the deduction of cer- 
 tain charges. His lordfhip cannot mean the price be- 
 fore the maft, leaving the purchafer liable to the pay- 
 ment of further fums \ for fuch payment is in effedl but 
 a part of the price, and is not a!i equivalent for the thing 
 fp fold : For if the purchafer were not liable to the duties 
 and chargco, we would give as much more as the amount 
 of thofe charges comes to. The prime coft and thofe 
 charges conflitnte the price. One objeftion to taking the 
 net proceeds, inftead of the gvofs proceeds, as the bafis of 
 ihe calculation, is, that where equal charges are to be 
 paid on the found and damaged commodity, the under- 
 writer will be affe£led by the fluctuation of the market. 
 For if two equal quantities be taken from two unequal 
 quantities, the fmaller the unequal quantities are, the 
 greater will be the difference between the remainders. But 
 whether the goods come to a rifing or a falling market, 
 the deterioration muft be the fame, and the underwriter 
 ihould pay the fame ; which he will do, if the grofs pro- 
 
 duce
 
 Ch.XIV. §2.] Js to ]\ilue. ■631 
 
 duce of the found and unfound be taken as the fubjc£t 
 of comparifon. Therefore the prices upon a fale before 
 the maft:, when equal duties are to be paid, do not corre- 
 fpond with the true proportion between the found and the 
 uufound commodity, or (hew in what degree the one is 
 inferior in value to the other." 
 
 The fame queftion came before the court of Common ^^^'y "■ ^y» 
 Pleas in Michaelmas Term 1802, when that court fully & ?«</. ^y. 
 approved the rule fo ably laid down by Mr. Juftice Lau- ^' ^' 
 
 rence \ and determiued that the lofs muft be calculated 
 upon the grofs proceeds, and not upon the net proceeds, 
 of the goods infured, at the port of delivery. 
 
 Where there is a partial lofs upon a valued policy, hut If ''le value ia 
 
 , 1-1 1- J 7 • n r t • r 1 • *'^^ polity ex- 
 
 tne value m the policy exceeds the intereji of the tnfuredy_\\. coed the imeiefl, 
 is the conftant ufage to adjuft a partial lofs in' the fame nl^ft" llt^mldr 
 manner as if the policy were an open one \ and the com- hy the real in- 
 putation niuft therefore be by the real intereji on board, va'!ue'in°t^hc^po! 
 and not by the value in the policy. '"^J'* 
 
 Thus, where an infurancc was made on a fliip and goods Le Cras v. 
 on board, — * At and from Omoa to London; valued at the iic'lli.lA^.' 
 * fum infured.^ There was no value mentioned in the 
 body of the policy, but only the fums wrote again 11 tlie 
 different names on the back. There were other policies 
 on the fame (hip and goods, amounting in the whole to 
 99,5001. which exceeded the amount of the intereft of 
 the infured (a). The fliip and a great part of the cargo 
 were loft, about one tenth only of the goods being faved. 
 One queftion at the trial of this caufe was, how the lofs, 
 which v/as conftdered as a partial one, faould be ad- 
 jufted (^). The t roker fwore that, on fuch policies as 
 
 {a) The fhip and goods infured had been captured by fea 
 and land forcea jointly. The infurance was on behalf of tUe 
 officers and crews of the (liip? ; but as the land forces were en- 
 titled to a fhare in this prjze, the fum infured though left 
 than the value of the fliip and goods, was found to be more 
 than the iqtereft of the infured. Via. fup. ch. 4. \ i, 2. 
 {h) The principal queflion was, whether the infured had an in- 
 furable interefl in the ihip and goods. For this vid. fup. 108, 
 where there is a fuller report of this cafe. 
 
 L 4 this.
 
 5-7 2 ' Adjvjlraent of Lojfis [B. I. 
 
 this, where a total lofs happened, the whole fum was paid : 
 But where it was only a partial lol's, they confidered it ?.3 
 an open policy, and paid a proportion, not of the fum 
 infured, but of the value of the goods.— The court of 
 King's Bench, when this cafe came before them, thought 
 it, at firft, like that of Lewis v- Rticker {a) But the 
 interell of the infured, in the fhip and goods, heing lefs 
 in value than the furn infured, the court held that this 
 cafe differed from that of Lcivis v. Ruchr^ and that the 
 conftant ufage in fuch cafes was, upon a total lofs, to pay 
 the whole [b) ; but, upcn a partial lofs, to confider it 
 as an open policy. The court were therefore of opinion 
 that the computation in this cafe muft be by the real in- 
 terejl of the infured on board, and not by the value in 
 the policy. 
 
 The true ground of diftin£lion between this cafe and 
 that of Lewis v. Rucker is, that, in that cafe, the value 
 in the policy was confidered as the prime coji^ and this 
 was never difputed ; whei'eas, in this cafe, it appears 
 that the interell of the infured was confiderably lefs than 
 the value in the poUcy. 
 
 Sea. III. 
 
 Vvhaijhfill be the IffeEl of an Adjitjlment, 
 
 AN adjuflment being indorfed on the policy and figned 
 fig"ned" by the bv the underwriters with the promife to pay in a given 
 uncerwriteis is^ time, is prima facie evidence againft them, and amounts 
 
 prima Jeicte evi- .■_ irr> 
 
 dence agaiiift to an admiffiou of all the fails neceiTary to be proved by 
 them, ann fu(n^ |^ infured to entitle him to recover in an aftion on the 
 
 cient ot itlelr, it 
 
 not impejched, policy. It is like a note of hand, and being proved, 
 
 furcdto lecover the infured has no ogcafion to go into proof of any othey 
 
 without any circumftance. This was the opinion of Lord C. ]. X« 
 
 ' * in the following cafe. 
 
 {si) Sup. 634— (^) Vid. fup< ^Sy,
 
 Ch.XIV. S3-] EffcclGf. 633 
 
 An infurance was made on a fliip, * At and from K*? ^- Gouidn$f. 
 
 * Jarimicti to London, intereft or nc intereft, and without Tri,.. 1745, at 
 
 * benefit of fahagr, with a warranty that the fnip fnould ^- "• ^"■'"" 
 
 * fail with convoy.' — Thefnip failed with convoy, but was 
 fo much damaged in the voyage; that fae was obliged 
 to bear away for Chailejhuy where flic was condemned 
 and broke up. — All the underwriters, being fatisfied of 
 the truth of this cafe, paid their loffes, except the de- 
 fendant, who went fo far as to fettle it, and according 
 to the cuflom upon fuch occafions, indorfed the policy 
 in thefe words j---" Adjnfted the lofs on this policy at 
 " 98I. per cent.y which I agree to pay one month after 
 ** date. London^ 5th July 1 745. Henry Gouldney-'" — • 
 When tlie money became due, he infifted on fuller proof, 
 particularly of the fliip's failing with convoy, and hejr 
 condemnation. — An action was brought on the policy i 
 and Lord C. J. Lee, who tried th? caufe, was of opinion 
 that this was to be confidered as a note of hand, and that 
 the pliiintiff had no occafion to cuter into the proof of 
 the lofs. The jury found a verdidl for the plaintiff. — 
 The fame rule was followed, the next year, by the fame 
 learned judge, in the cafe of Hiiviti v. Flexney [a). 
 
 It has been obferved that the words ufed by Lord Chief T^'* f"'* "^ 
 Juftice Lee, in this cafe, were extremely large {b) ,- and 
 that the true rule upon the fubjecl miglit be better col- 
 le£led from two fubfequent cafes, which will be n.en- 
 tioned hereafter. The words which are fappofed to be 
 too large are, " That the memorandum indorfed on 
 « the policy, was to be confidered as a note of hand, 
 " and that the plaintiff had no occafion to enter into the 
 « proof of the lofs."— It is not eafy to difcover in wliat ^, , ... 
 
 ^ ^ Tiie rule vindi- 
 
 rcfped the rule here laid down is too large. The me- cated. 
 
 niorandum indorfed on the policy, and figned by the de- ^Jmit^lrc'uTJii 
 
 fcndant, unqueftionably ."mounts to an admiffion of his '^•"' •''"'! ''''/ ." 
 
 lublcription to the policy ; of the plaintiffs intereft: in the fr.ma f^ae evi- 
 
 lliip infured, (if the terms of the policy had not rendcicd **'"" "^ * **'*"• 
 that unneceffary) •, of her having failed with convoy ; of 
 a lofs having h:.ppencd, «nd that tlie amount of that 
 
 {a) Bcavjes 3:8, {b) Fa^k iiZ. 
 
 loft
 
 634 Adjujlment [B. I. 
 
 lofs was thefum fpecified in the adjuftment, which coni- 
 tains a proniife to pay in one month. This, Uke a note 
 of hand, is prima facie evidence of a debt ; and it feems 
 to be as unneceflary for the plaintiff, in an aftion on 
 the policy, to prove the fadls admitted by the adjuftment, 
 as to prove the confideration of a note of hand, before it 
 It is not how- i* impeached. — But in neither cafe is ** the door Jhut againjl 
 ever, conciufive^ i„qtiiyy,'* A note of haijd is not conclufive evidence 
 
 but may he im- •' •^ 111 • 1 1 rr \ 
 
 peached by evi. of a confidcration, though value received be exprefled 
 ^^°"* in it. On the contrary. It may be impeached by fhewing 
 
 that it was made upon an unlawful, or corrupt confi- 
 deration, or without any confideration at all. So, an ad- 
 juftment, like that which is ftated in the foregoing cafe, 
 may be impeached by fliewing that the underwriter was 
 induced to fign it by fome fraud or concealment, or by 
 fome mifconception of the law or fa£l. But, in either 
 cafe this muft be done by evidence^ and not by doubts or 
 furmifes after the time for payment is come ; nor can the 
 plaintiff be put under the neceflity of proving the confi- 
 deration of the note, in the one cafe, or the fa£ls admit- 
 ted by the adjuftment, in the other, until a ftrong ground 
 ^ of fufpicion, at leaft, be raifcd againft it by evidence on the 
 
 part of the defendant. 
 The adjuftment In the firft of the two cafes adduced in fupport of 
 maybe given in jj^^ objeaion to the rule, as laid down by Lord C. J. Lee. 
 
 evidence in an J _ ■' ' 
 
 aaionon thepo- a lofs had becn adjuftcd at ^o\. per cettt.y and an action 
 iniured is not was brought on the policy. — It was contended on the 
 obliged to de- p^^j- Qf (]^q defendant, that the adiuftment was not blnd- 
 
 clare fpecul'y ^ . . 111 
 
 ou it. ing ; but thiit, if it were, it ought to have been declared 
 
 Rodgers v. May- ou fpecitlly. — Lord KetiyoH^ who tried the caufc, was of 
 /«r, at N.F. after ppjj-jjQ,^ that it was not neceffary to declare fpcciallv. 
 
 Trin.i79C, P'"'* ^ . •' . ^ ^ . ' 
 
 118. Sheriff v. He faid that the adjuftment was prima facie evidence 
 Pott!, 5 Efp. agaiuf]- ti^e defendant : But if there had been any mifcon- 
 
 N. P. Rep. 56. "J , , •' 
 
 S. p. ception of the law or faft upon which it had been made, 
 
 It i? prima fade ^^ Underwriter was not abfolutely concluded by it. — This 
 evidence ag.-.inft tumed out to be the cafc, and there was a verdi6t for the 
 
 the underwiiter ; 
 
 bat he may im- defendant. 
 
 P"*^*^ '^* The do£lrIne of Lord Kenyofiy in this cafe, far from 
 
 fliaking, or even narrowing the rule, as laid down by 
 Lord C. J. Lecy feems, on the contrary, to have ftrongly 
 confirmed it. Lord Kenyan fays, that if there had been 
 
 any
 
 Ch. XIV. S 3-J W^^ of it. ds 
 
 any mlfconeeption of the law or fa£t upon which the ad-; 
 juftment had proceeded, the underwriter would not have 
 been abfolutily concluded by it. It is plain, then, that he 
 confidered the adjuftment like a note of hand, zs prima 
 facie evidence of a debt, but not conclufive, fincc the 
 adjuftment, like a note of hand, might be impeached by 
 evidence on the part of the defendant. 
 
 In the fecond cafe adduced in fupport of the objcc- t>c Gurnn ▼. 
 tion to the rule, as laid down by Lord C. J. Lee. it is ^''!:""'^' i.' . 
 
 ^ J » N. P. after Tnn. 
 
 flated that the plaintiff went to trial, having no cvi- 1-95. Trt/zt ii». 
 dence to produce but the adjuftment ; and the witnefs 
 who proved it, fwore that, foon after they had flgned it, 
 doubts arofe in the minds of the underwriters ^ and they re- 
 fufed to pay ; upon which, Lord Kenyan faid that, under 
 thefe circumftances, the plaintiff muft go into other 
 evidence ; and not being able to do this, he was non- 
 fuited. — In the following term, a motion was made to 
 fet afide this non-fuit, upon the ground that an adjuft- 
 ment was prima facie evidence of the whole cafe, and 
 threw the onus probandi upon the undcrviaiter ; and that 
 it amounted to more th?n proof of the defendant's fub- 
 fcription to the policy. — Lord Kenyan faid ; — " I admit the 
 adjuftment to be evidence in the caufe to a certain ex- 
 tent : But I thought at the trial, and ftill think, that 
 when the fame witnefs who prored the fignature of the 
 defendant to the adjuftment faid, that, foon after the ad- 
 juftment took place, doubts arofe in the minds of the un- 
 derwriters, as to the honefly of the tranfa^ion, and they 
 called for further proof, the plaintiff fhould have pro- 
 daced other evidence j and that, fliutling the door againft 
 enquiry, after an adjuftment, would be putting a ftop to 
 candour and fair dealing amongft the underwriters. — 
 Accordingly the court refufed to grant a new trial. 
 
 In the account of what palTcd at the trial of this caufc, it Whether thii 
 does not appear upon what fubjefl: the doubts arofe in the jil^^^"", fjrt;^ 
 minds of the underwriters, nor r.t what time the further cicnt authority 
 proof was called for. It would feem, from the above report, ru'e hid dowa 
 that further proof was only called for at the trial, by the »^yl-orciC.J.L«r 
 learned judge who tried the caufe. It is unfortui:>'.te that 
 there is no account of this cafe in the term reports, the 
 (ixth volume of which contains the cafes of the tc;.n in 
 
 which
 
 636 Adjujlment [_B. I. 
 
 \vhich it is faid to have come before the court. It is to 
 be prefumed that an accurate ftatement of the evidence on 
 which the plaintifF was iionfuited, would have clearly 
 fhewn that the decifion of the learned judge at uijt priuTy 
 and afterwards of the court of King's Bench, was cor- 
 redlly right ; that juflice was done ; and that, under the 
 particular circumfhances of the cafe, this might have been 
 a very proper exception to the rule, as laid down by Lord 
 C. J. Lee. But as the cafe ftands, in the above report 
 of it, it would be very difficult to reconcile it, even to 
 the decifion of Lord Kenyon himfelf, in the above cafe 
 of Rodgers v. Maylor (a) ; nor can it be accounted for, 
 upon any known principle of law, that an underwriter, ■ 
 who had figned an adjuftment of a lofs, with a prcmife 
 to pay it, might afterwards, merely becaufe he chofe to 
 alledge that doubts had arifen in his mind, refufe to pay 
 the fum he had acknowledged to be due ; and that, 
 merely on the fuggeftion of thefe doubts, the infured 
 ihould be called upon, at the trial, to prove his whole 
 cafe, at a time, too, when it was no longer, perhaps, 
 in his power to procure the neceflary evidence. The 
 candour and fairnefs which ought to prefide in the liti- 
 gation of all commercial qucfticns, would never go the 
 length of requiring this. If, indeed, the underv/riters, 
 harbouring thefe doubts, fhould give the infured reafon- 
 able notice of their intention to difpute his claim, it 
 would be competent to them, perhi'ps, to do fo ; and 
 even then, they ought to come prepared to fliew 
 fome fraud or concealment on the part of the infui'ed ; or 
 fo mifconception of the law or the fa£l, on their own 
 part, which had induced them to agree to the adjuflment. 
 This would make an end of the adjuftment, and it would 
 then be incumbent on the infured, under whatever diffi- 
 culty, to go into the proof of his whole cafe. It is poffi- 
 ble, nay, very probable, that this, or foniething like it, 
 appeared in the cafe of De Garron v. Galhraith. But, as 
 that cafe is reported, it cannot be deemed of fufficient 
 weight or authority to alter or fhake the rule as laid down 
 
 , (<?,} Sup, 534.
 
 Ch. XIV. 3.] Effea of 63f 
 
 in the cafe of Hcg v. Go:i!dtiey ; and which, as has been 
 already obferved, is greatly enforced and confirmed by 
 4ord Kenyan^ in the cafe of Rcdgers v. Alaylor {a). 
 
 But it Is fald, that the fpirit of the rule hud down 
 in this lafl cafe, was adopted In the very ni:dern cafe of 
 Thellufon v, Fletcher (/>), which has been already fully 
 ftated (t-). The only point determined In that cafe at 
 all applicable to the prefent fubjedl was, tliat, if an un- 
 derwriter fuffer judgment to go by default, he thereby 
 confefles the plaintiff's title to recover, and the plaintiff 
 fhall not, therefore, be obliged to prove his intereft ; a 
 point about which, without that decifion, no lawyer could 
 have entertained much doubt. — All that can be faid on 
 this determination is, that, as far as it can be fuppofed 
 to bear on the prefent queftionj it corroborates the rule as 
 laid down by Lord C. J. Lee. 
 
 (a) Vid. Chr'ifiian'v. Comhe, i Efp. Rep. 486, where Lord 
 
 Kenyon lays down the fame doftrine. {b) Thellufon r, 
 
 Fletcher was determined 16 years before the cafe oi De Garron v. 
 Calhraith (f) Sup. 129,
 
 Return of Premium, [B. I. 
 
 CHAP. XV. 
 
 Of Return of Premiwn, 
 
 'T^HE premium paid by the infured, and the rifle which 
 the infurer takes upon himfelf, are confiderations, 
 each for the other : they are co-relatives, whofe mutual 
 operation conftitutes the eflence of the contra£l of in- 
 furance. The infurer Ihall not be expofed to the rifk, 
 without receiving the premium ; nor fhall he retain the 
 premium, which was the price of the rifle, if in fa6^, 
 he run no rifle at all {a). For wherever a man receives 
 the money of another upon a confideration which hap- 
 pens, to fail, or is never performed, he is under an obli- 
 gation, from the ties of moral honefty and natural juftice, 
 to refund it. In fuch cafe the law implies a debt, quajl 
 ex contraBuj and gives the infured an a£lion againfl the 
 infurer, for money had and received to his ufe, to recover 
 back the money fo received [b). 
 
 It will be our bufmefs in the prefent chapter to fhcw 
 in what cafes, and under what circumftances, the infured 
 ihall be entitled to a return of premium ; and how that 
 return fliall be made. — This may be done under the fol- 
 lowing heads ; 
 
 I. Where the contract is void ab initio ; 
 II. Where the rijk has not been conunenced ; 
 
 III. Upon the performance of certain flipulatiens ; 
 
 IV. When the deduction of one half per cent, fhall 
 
 he allowed. 
 
 (a) Per Lord MansfeU, 3 Btir. 1 240. Vid. Pothiert h. t. 
 
 n. 180. {b) Vid. 2 Bur. 1008 i Doug. 454 ; Cowp. 668 j 
 
 1 Show. 156. 3 T. R. 266. 
 
 Sea.
 
 Ch. XV. §1.] Of Return cf Premium, &c. 6^^ 
 
 Sea. I. 
 
 Of Return of Premium where the Contra^ is v«id 
 ab initio. 
 
 IN general, when the contra^ is void ab ittitio, it is 
 fo, either, \ , For ivant of interejlin the injured \ or, %. Be- 
 caufe the injur ance is illegal ; or, 3. For fraud on the one fide 
 cr the other. — We will enquire in what cafes there fliall 
 be a return of premium on each of thefe grounds^ 
 
 I . Wljere the Contra^ is void for Want of Jnterefl, 
 
 A want of intereft may be either total, as where the 
 Infured has nothing on board the {hip ; or, partial, as 
 where he has an intereft in the thing infured, but not to 
 the amount ftated in the policy. And it may be laid down If >" iTiriirar.ct 
 
 , .r 1 1 -,1 1 -re be made wiifcoui 
 
 as a general rule, that if, through miltake, miunrorma- intereft, or for 
 tion, or any other innocent caufe, an infurance, in a "®''' ^^^" 
 
 'J ' real intercjr, 
 
 fingle policy, be made without any intereft whatfoever ti.erc fhaii be 
 in the thing infured, or to a much larger amount than 
 its real value ; in the one cafe, the infiarcr fhall return 
 the whole premium ; in the other, he Ihall return in 
 the proportion which the true value bears to the fum in- 
 fured. Thus, jf a man, fuppofing he has goods on board 
 a certain (hip to the value of i,oool. infure to that 
 amount, but afterwards find, either that he has no goods 
 at all on board, or that he has goods only to the amount 
 of half the infurance: In the one cafe, he would be en- 
 titled to a return of the whole premium % in the other to 
 a return of a moiety (a) . And all the underwriters 
 upon a policy in which the efFe<£l:s are infured be- 
 yond their value, muft bear any lofs that may happen, 
 and repay a part of the premium, in proportion to their 
 
 the 
 
 return of pr«- 
 miuir.. 
 
 {a) VId. Le Guidon, ch. 2, aU, 18. Ord. of yim'^. art. 22. 
 
 Pothier, h. t. n, 77, 183. Roccus, n, 82. Falin, fur. art. 23, 
 
 p. 67. _, 
 
 refpective
 
 640 Of Re f urn of Premium [B. !, 
 
 refpectlve fubfcriptlons, without regard to the priority 
 
 of their dates (a) . 
 !f f'nere be an If> by fever^I poiicifs^ made •without fraud, the fum in- 
 
 over-infurance furcd cxcccd the valuc of the effeds, thefe leveral poli- 
 
 bv fe-pfra/ foli- 
 
 aeu the under- clcs will, in eflect, make but one infurance, and will be 
 
 b'e"iiIbie""to the good to the extent of the true hitereft of the infurcd ; 
 
 extent of the vu- gjid, in cafc of lofs, all the underwriters on the feveral 
 
 make a return polIcies fliall pav accoiding to their refpettive fubfcrip- 
 
 of premium for ^jgj^g -yyithout rcEjard to the priority of their dates. And 
 
 the tefidue. ' o * ' 
 
 it follows from thence, that all the underwriters on the 
 feveral policies would be equally bound to make a return 
 of premium for the fum infured above the value of the 
 effevlts, in proportion to their refpscTtive fubfcriptlons. — • 
 In this particular, our law, as -^'e have already {hewn(^), 
 differs from the ancient lav,', and indeed from the law of 
 moil of the other maritime dates at this day. 
 Upon a wager We have already feen that a wager policy, at lead 
 
 policy tha ill- •' ... 
 
 jured cannot re- fincc tlic flat. ipG. IL, C.37, is illegal and void (r). 
 pr«mium'^\t^ Upon fuch z policy the infured cannot recover back 
 kail after the the premium } at leaft if he wait till the rifle is over, 
 
 lift. iS lUQ, ' , 
 
 he fliall not, after thus taking the chance of a lofs, and 
 
 of obtaining from the generofttyy at leaft, of the under" 
 
 writers, the fum infured, be permitted to recover back 
 
 the premium. 
 
 ioTi;rv& anr. V. Xlie pklntiiFs had lent one Lawfotiy captain of the 
 
 ^^i. ' ' Lord Holland Indinm:iny 26,cool., for which he gave them 
 
 ^ "7" a common bond. While he was with his fhip at Chinay the 
 
 An infurance on _ _ _ *■ 
 
 an Eaji India plaintiffs got a policy underv/ritten by the defendant and 
 vaiuei'iat';6^ooGl' othcr.s, < At and from China to London, beginning the 
 
 < l>eing the a- t adventure upon the poods, from the loading thereof on 
 
 • mount cf tkf . . 
 
 < captain's bond ' board the faid (hip at Canton^ &;c.* and * tipon the fa'id fhip 
 is a \aLtr' A\U * from her arrival at Canton, valued at 25,oool. being the 
 vo;d; but the < amount of Captain Patrick Laiufons common bond pav- 
 
 jnfured AmII , ^ . n , ^ r ^^ 11, r 
 
 net, after the rific * able to tne parties, as mall be defcnbed at the back os 
 
 is run, have a re- 
 turn of prerai- . ., . .. .. . 
 
 usi. 
 
 («) Hahet omuls t ejfccuratio hoc fecuUare, vt in. ea nonfit prius 
 
 vcc poJieriuSf quantum ad ejedum et ijaliditatem contrs^us ; fed 
 
 vhiinus affecurator tantundem p.irlicipat in dan-no rt 7u,:ro tn i^^'cu- 
 
 rattom pro'Venlenti, qua^Uum prior. Kuricke diatr. n. 16. — — ■ 
 
 (/■} Vjd. fup, 146. — ~-(£) Vid. fup, ch. 4. ^ i, 
 
 « thl»
 
 Ch. XV. § 1.] The Contra^ bang void. 64 1 
 
 « this policy 1 dated i6th of Decemberi'^']^ : And In cafe 
 
 * of lofs, no other proof of interefh to be required than 
 
 * the exhibition of the faiJ bond ; warranted free from 
 « average, and without benefit of falvage to the infurers.* 
 — At the head of the fubfcription was written, " On a 
 *^ bond as above exprtjjed." — Captain Laivfon failed from 
 China and arrived fafe with his adventure in London.-^ 
 The infured brought an a£tion to recover back the pre- 
 mium, on the ground that the infurance having been 
 made without intereft, the policy was void, within the 
 ftatute {a). There was a verdict for the defendant by the 
 ("iredlion of Lord MausJielJy who tried the caufe. — Upon 
 a motion for a new trial, the court held that the verdict 
 was right. — Lord MansfelJ faid, — " This is clearly a 
 gaming policy. The nature of the infurance is known 
 to both parties. The plaintiffs fay ; < We mean to game ; 
 
 * but we give ourreafon for it ; captain Lanufcn owes us a 
 « fum cf money, and we want to be fecure in cafe he fliould 
 
 * not be in a fituation to pay us.' It was a hedge. But 
 they had no intereft ; for, if the (hip had been loft, 
 and the underwriters had paid, ftill the plaintiff would 
 have been entitled to recover the amount of the bond 
 from Laufon. — This, then, is a gaming policy, and 
 againft an adl of parliament •, and therefore it is clear 
 that the court will not interfere to aftift either party ; ac- 
 cording to the well-known rule, that, //; pari delicto melior 
 ejl conditio' pojjidentis : Not, that the defendant's right is 
 better than that of the plaintiff; but he muft draw his 
 remedy from clear fountains. — Mr. Juftice A(lmrjl con- , 
 curred in this opinion. Mr. J. Willes thought tins was 
 not a gaming policy ; that the money was paid upon a 
 miftaken idea, and ought to have been refunded. — Mr. 
 
 Juftice Eullcr agreed with Lord Mansfield and Mr. Juftice yet, i.cfoie th« 
 
 Ajhurjly that this was a gaming policy, being witliout ''^.jj' ,^he'"coB^ 
 
 intereft ; But he held that the reafon why the plaintiffs u*i\ is encu- 
 
 could not recover was, tliat an action brought to refcJnd ^'^l^ recover"'* 
 
 a contract, muft be brought while th? contract continues ^^'^^ *^'* pitjui. 
 
 . ^ urn. 
 
 executory ; and then it can only be done on the terms of 
 
 (a) 19 G. IL c. 37. fup, 127, 
 ▼OL. H. N4 refto:ing
 
 04^ Of Return of Fremium [B.I. 
 
 reftoring the other party to his original^ fituatlon. He 
 ■ mentioned a cafe of Walker v. Chapman^ in B. R. fome 
 years before, where a fum of money had been paid in 
 order to procure a place in the cufloms. The place had 
 not been procured, and the party who paid the money, 
 having brought iiis atlion to recover it back ; it was 
 held that he (hould recover, becaufe the conlraft remained 
 executory. " So," faid he, ** if the plaintiffs in this cafe 
 had brought an action before the rifk was over, they 
 might have recovered ; but having waited till the rilk was 
 run, it was then too late {a).'' 
 
 The reader, in peruHng the foregoing cafe, muft have 
 obferved that though Mr. Juftice Buller concurs in opi- 
 nion with Lord Manfeld^ 'that the infured was not, 
 under all the circumftances of the cafe, entitled to 
 a return of premium, yet he afligns a different reafon 
 for his opinion. — Lord Mansfield coufidered the infurance 
 as an illegal contract, and both parties offenders againft 
 
 {a) There is a cafe of Wharton v. Be la Rive, (at N. P. after 
 Mich. 1782), mentioned in Pari ^1^, where an action is faid to 
 have been brought on two wagers, 'one of 2d1. 5s. to 100 1. j 
 the other of 13I. 2s dd. to 30I.' that the ^wfr/V(7« colonies 
 would be acknowledged as independent ftates by France^ fome 
 time between the firft of February and the firft of April 177S. 
 It is ftated that, upon the opening of the cafe for the plain- 
 tiff, Lord Mansfield diredled a nonfuitj bat it does not appear 
 ■upon what ground ; whether becaufe the wagers were illegal, 
 or becaufe they were in nature of wr.gering infiiratices, and 
 Toid by the a£t. It is faid, however, that the plaintiff's counfel 
 infilled on a verdid for the premium, as if they were in fa6l 
 infurances, which Lord Mansfield permitted, upon the ground 
 of the contraft being void. The cafe of Lr.ivry v. Bourdieu 
 was then cited by the defendant's counfel, to fliew that he was 
 entitled to keep the premium. Lord Mansficld\% made to anfwer^ 
 that that cafe did not apply ; for there the rijl had been run. — 
 But that could not diilinguifii it from the cafe before his lord- 
 ftiip • becaufe, if thefe wagers were to be confidered as infurances, 
 the rifle was over on the firft of April 1778, iive years before the 
 aftion was brought. Nay, the aftion was brought on the ground 
 that the plaintiff had won his wager.
 
 Ch. XV. § I.] ^he Contraa be'w^ 'void. ^4^ 
 
 the law; and then founds his judgment on the maxim; 
 in pari deliiflo inelior eji conditio pojfidentis ; from which it 
 may be inferred that it was his lordfhip's opinion, that, 
 even if the infured had thought proper to refcind the 
 contract before the rifk commenced, or, which is the 
 fame thing, before the event was known, he could not 
 have recovered back the premium. — Mr. Juftice Bullcr 
 takes a different ground ; namely, that though an a6lioii 
 might have been maintained to recover back the pre- 
 mium while the contra6l Was executoryy upon the termd; 
 of reftoring the underwriter to his original fituation ; yeti 
 tliat, after the vifk is run, it is too late to attempt to refcind 
 the contra£li 
 
 In the cafe of Vandyk v. Hnvetj which we fhall pre- 
 fently have occafion to mention more particularly, the 
 court of King's Bench feems to have adopted the prin- 
 ciple upon which Lord Mamfield founded his judgment. 
 It would feem, therefore, that Mr. Juftice Bullers doc- 
 trine could apply only to the cafe of an infurance with- 
 out intereft, innocently made. 
 
 Upon the authority of this cafe it has fince been de- \{ th; ccntr.-.:^ 
 termined, that if the contrail be void, as beine a re- ^e void, a. being 
 
 . o a rc-i)iiui:ir.ce, 
 
 infurance, within the (tat. 19 G. II.j c. 37, § 4, the in- there iliaii be uu 
 
 fured (hall not be entitled to a return of premium (a). return. 
 
 If, under any circumltanccs, the infurer might, at any if the infL-rcT 
 
 time, have been called unon to nay the whole fum in- ""id^.<=7; '^•'"'^ 
 
 '■ ' been liaL'ic, 
 
 fured, the premium is earned, and he (hall not be obliged there (hai! be no 
 to return any part of it. Therefore, in the cafe of a va- 
 lued policy, though the fum in the policy be twice the 
 Value of the effetts infured, there fhall be no return of 
 premium {h). 
 
 If the infured have a contingent infurable intered in If captors infur* 
 the thing infured at the lime vt^hen the policy is effe«£i:ed, natiiln, thr j- ih.xll 
 and the rifk be once begun, there fliall be no return of not have jrctuiri 
 
 ° on its beii'ij ii!- 
 
 premium, though it fliould eventually turn but that he judged ho Fntc; 
 had no title to the thing infured. Therefore, though the 
 
 (a) R. Andri v. Fktcher, 3 T. R. 266, Sup. J44. * 
 
 \P) a Magensy 137. 
 
 jM i captors
 
 644 Of Return of Premium [B I 
 
 captors of a fliip, feized as prize, have an Infurable inte- 
 reft therein before condemnation ; yet, fliould the Ihip 
 afterwards be adjudged to be no prize, and rellitution be 
 awarded to the owners, there fliall be no return of pre- 
 mium, if the rilk was commenced. 
 BofhmnndoiV.ert Thus :— Three frigates havinsc taken the fliip Weflcabelle 
 jj^, ' ' * off the Cape of Go:d Hope^ then bound from Batavia to 
 
 Bo/Ion, the captors put her under the command of a lien- 
 tenant, as prize-mafter, and on the 30th oi January 1 797, 
 wrote to their agents in England^ mentioning the capture 
 of the WeJicapelUj which they fuppofed a lawfr.I prize ; 
 and ftating that, as there was no court of admiralty there, 
 they were under the ncceliity of fending her to Etigla?id 
 ior trial -, ?.nd then directed an infurance, for that voyage, 
 tobe made on the ihip and cargo, to the amount of 40,000!, 
 (though the eftimated value was 150,000!.) which the 
 agents in England accordmgly caufed to be efTefled at 
 a premium of 20 guineas p^r cent, to return 81. per cent. 
 if the fliip departed from the Cape or St. Helena^ with 
 convoy for England^ and arrived. The fliip failed from 
 the Cape with convoy for St. Helena^ where fhe arrived, 
 and failed from thence for England, without convoy, and 
 arrived in fafety in the Thames on the 7th of Augnf 1797. 
 But the court of admiralty * declaimed the fliip and cargo to 
 « be Atnerican property, and decreed them to be reftored, 
 * except the part claimed by the chief mate, who was pro- 
 « nounced to be an enemy, and his property on board con- 
 « demned as lawful prize.' The ftiip and cargo, except 
 the part of the chief mate, were reftored accordingly. 
 After this fcntence, the plaintiffs brought an a€tion againil 
 the defendant, to recover 18I. 19s. lod. per cent, as 3 
 proportion of the premium to be returned in refpe£l of 
 the ihip ami fuch part of the cargo as had been decreed to 
 be reftored. The defendant infilled, ift. That the in- 
 (ured had an infurable intereft to the amount of the fum 
 infured, and, in the event of a lofs, might have recovered 
 ^ againfl the infurers •, that the fallacy of the plaintiff's ar- 
 gument arofe from not diftinguifhing between an hifurahk 
 interejl and an ahfolute indefeafible property ; that the infured 
 had the polTeinon of the thing infured, together with a 
 
 contingent
 
 Ch. XV. § 1.] The Co;;1ra8 being void, - 645 
 
 contingent intercfl:, in the event of its being condemned • 
 bcfides, thty had an immediate interell in tlie fubjc6t 
 matter, arifing out of their refponiibility for the care and 
 fafety of the {liip ; for in cafe of grofs nc^gligence or mif- 
 conduiSl, the court of admiralty would adjudge a com- 
 penfation to the owners in damages ; and if, in any event, 
 the infurers might have been anfwerable, tliere could be 
 no return of premium. 2dly, That this being a valued po- 
 licy, made k?ia fide^ without any intention of fraud, and 
 the infured having an indifputable intereft, the extent of 
 the intereft was immaterial. 3dly, That as this was an 
 infurance on foreign (hips, it was not neceflary that the 
 infured ftiould have any intereft at all, it not being within 
 the ftat. 19 G. II., c. 37. — ^The court were clearly of 
 opinion that the infured had an infurable intereft, and that 
 the rifle having been run, there could be no return of 
 premium. — Lord Kenyan faid, — " I will not enter into a 
 difcuffion of either of the two Jaft points, becaufe the firft 
 alone furniihes, in my opinion, an anfwer to this adion. 
 — The real queftion in this cafe is one of the moft fimple 
 that can be ftated. It is merely this, whether the infwred 
 had or had not any intereji. The captors had the poflef- 
 (ion of the property infured, and from that poflcflion cer- 
 tain rights and duties refulred. If it were a legal cap- 
 ture, the captors were entitled ; if not, they were liable 
 to be called to an account in the court of admiralty, where 
 they might be amerced in damages and cofts. It was 
 important, therefore, to them to take care that there 
 fliould be fomething forthcoming to anfwer for the amount 
 of thefe damages." 
 
 2. Where the Infurance is iipo*i an illegal Trading, 
 
 It has already been fhewn (a) that no Britijh fubjed Though an infu- 
 
 can legally carry on any commerce with the enemies of '"'"^'^ '" P""":> 
 
 the ftate, without the King's licence; and that an infu- tne' enemy*' 
 
 ranee made to proteft fuch commerce is void ; and it has T""' ^*"" *" 
 
 * ' be no retbcx 
 
 picnaJuru. 
 
 (a) Sup. ch. 3. § 4. 
 
 M 3 been
 
 540 Of Return of Premium [B.I, 
 
 fceen determined that the infured, in fuch cafe, cannot 
 , recover back his premium : And though this was after a 
 lofs had happened, it was after the infurers had availed 
 themfelves of the illegahty of the contra6\ to avoid pay- 
 ing the lofs, and it was founded upon the fame principle 
 upon which Lord Mansfeld fupported his judgment in 
 the cafe of Lotvry v. Bourdleii (/z), which would have 
 maintained the decifion in that cafe, eyen if the a£lion 
 had been brought while the contract was executory. 
 ra^di:khoxhtxi Thus:— Goods were infured, 'At and from London 
 |.^%.Tw.', I Maji ^ ^^ Etnbden or AniJIerdam, at a premium of ten guineas 
 '"" i per cent., to return five upon their arrival at then* place 
 
 f of deftination.' — In an adion on this policy for a lofs 
 by capture, it was averred ip the declaration that the 
 infuranc? Avas made for the benefit of certain perfons 
 therein named.— Upon the trial it appeared that the 
 jroqds were firipped on board a PruJJhn neutral vef- 
 Tel, on account, partly of the plaintiffs who were natu- 
 ralized foreigners refident in London^ and partly of cer-^ 
 tain other perfons, aliens, then refident in Holland. \% 
 appearing that the in fu ranee was intended to cover a 
 trading with Holland^ then at w^ar wich this kingdom, 
 the idea of recovering the lofs w:as given up on the 
 authority of the cafe of Potts v. Bell {b).—Th.c plain- 
 tiffs then contended that they were entitled to recover 
 back the premium, on the ground that the policy nevei^ 
 ' attached, and the rilk had therefore never commenced. 
 And it was compared to the cafe of Lacaujfadex. White [c)^ 
 in which it was determined that a perfon whp ha? de- 
 pofited money upon an illegal wager may recover it back's 
 even after the event is determined againft him. — But 
 the court were clearly of opinion, that the plaintiffs had 
 no right to recover back the premium. — Lord Kenyoti 
 i^ud J — « There is no diftinguifliing this cafe, on prin- 
 
 [a) Sup. 640. ih) 8 T. R. 548, fup. 87.~(f) 7 T. 
 
 p^, ^j^ But Vid. 8 T. R. 575, where it was held that if the 
 money depofited upon an illegal wagtr be paid over to the 
 winner, it cannot be recovered back. 
 
 * fiplCj)
 
 Ch. XV. § I.] The Contract being void. S^-j 
 
 ciple, from the common cnfe of a fmuggling tranfadlion. 
 Where the vendor aflifts the vendee in running the goods 
 to evade the laws of the country, he cannot recover back 
 the goods themLlvcs or the value of them [a). Both par- 
 ties are in pari ddiSio, and potior eji conditio pojfidentis." 
 
 It has alio been ihcwn [b), that no infurance can be 
 legally made on an illegal trading with the Bntijh colo- 
 nies. — And it is clearly binding upon all Eritijh 
 fubjecls, wlio are not permitted to plead ignorance of 
 Britijh laws : In the following cafe, it was made 
 a queftion, whether this rule was applicable to the 
 cafe of foreigners, who cannot be prefumed to poflefs 
 a -knowledge of our lav.s, and determined in the 
 affirmative. 
 
 A policy was effe6led upon goods warranted Z)<3«^ Monk k^inr.M. 
 property, on board a DaniJIj fliip, * At and from Be?igal* -Ij"}' 3 ^'^f- & 
 
 (in which were feveral Danip as well as Britijlj fettle- — — 
 
 mcnts) ^ io Copenhagen^ v/ith liberty to touch, ftay, and p,.ncy"up^„n"!ia 
 * trade at all ports and places, ike/ — The goods infured '"'^gai tiading 
 were loaded at Lcilcutta^ and the Ihip and cargo, ni the colonics i* not 
 voyage to Copenhagen^ were captured by the French. — In '^'"''^f,/'' / '*" 
 an aclion to recover for this lofs, it was objeded that, by nm; tho!igh he 
 the navigation acl:, I2 C. II. c. i8. ^ i, {c\ it was un- ,',!dVr pfcTm. 
 lawful to export goods from any Britilh colony, in '^' '." ^'^ '"^' 
 
 ^ . •' ' ' quaintcd With 
 
 any veflel not belonging to a Britijh fubjeclt. This objec- »ur Uwi. 
 tion prevailing, it was then infilled that if the exporta- 
 tion was illegal, the rifle never commenced, and that the 
 plaintiffs were therefore entitled to a return of premium ; 
 and it was urged that if, in any cafe, the court would pre- 
 fumeaparty to have been ignorant of the law, they might 
 well do fo in this,fmce, previous to the fhipmentinqucflion, 
 a practice had prevailed of allowing fliips belonging to 
 flates in amity with Great Britain^ to export goods from our 
 fettlements in India ; in fo much, that the flat. 37 G. III. 
 c. [17, which palled only four months after this cargo 
 was fhipped, removed, under certain re{lri6lions, the 
 
 {a) Vid. Bigp y.Laiurencey 3 T. R. 454. Clugas v. Penalunay 
 
 4 T. R. 466. Waymtll v. Reed, j T. R. 599 (b) Ch. .^, 
 
 ^ 2. (fjSup. 63. 
 
 M 4 proliibition
 
 548 ' Of Return of Prcnuwn [B.I* 
 
 prohibition impofed by the ftat. 1 3 C. II.— But the court 
 determined that the plaintiffs were not entitled to a return 
 of premium. — They held, that no man, in a Britijh court 
 of juftice, can feek the aflircance of the law, who founds 
 his claim upon a contravention of the Briti/h laws ; that 
 the plaintiffs being foreigners did not take them out of 
 the general rule applicable to illegal contracts ; and that 
 there was very little room to prefume ignorance of a law 
 peculiarly applicable to the fubjeds of foreign ftates. 
 Iuiif<:iv.P<itt!, gQ^ where an infurance upon colonial produce, from 
 7 ajf 449- frinidad to Gibraliar, was hoMen to be illegal, as being 
 
 ^* ^' againft the navigation a£ls, it was determined that the in- 
 
 fured was not entitled to a return of premium, though 
 he did not appear to have been aware that the voyage was 
 illegal. 
 
 3, When there is Fraud on the one Side or the other. 
 If the policy be When the policy is void on account of fraud com- 
 ]hfp'nZ^°" "^^"ed by the infurer, there can be no doubt but that 
 infu or, t. e pre- ^n adion will lie to recover back the premium. As if 
 
 niiuiii fhall be . .in. 
 
 Kiuiuci. an infurance be made on a certahi voyage, loft or not 
 
 loft, when the infurer, at the time he enters into the 
 
 contraft, privately knows that the {hip is arrived fafe } 
 
 he will be bound to reftore the premium (a). 
 
 whc>*ier this lie I5ut, whether the infurer be bound to return the pre- 
 
 hls \eJn com- mium, in a cafe where fraud has been committed by the 
 
 mitted by the jnfured, is a quellion upon which more doubt might b« 
 infilled. * ' n r ^ b 
 
 entertained. — On the one hand, it might be contended 
 
 that as the underwriter receives the premium in confi- 
 
 dcration of his taking upon himfelf the rifk mentioned 
 
 in the policy, he can have no right to retain it, if no rifk 
 
 was ever run j and, hou'ever improperly or unfairly the 
 
 infured may have condu£led himfelf, that will not furnilh 
 
 a new confideration to the underwriter, to be fubftituted 
 
 in the place of that which was expreffed in the policy, f® 
 
 as to enable him to retain the premium- 
 
 fa!) Per Lord MansJielJi in Carter v> Bochmy 3 Bvr, 19C9, 
 {up. 465, 6. 
 
 On
 
 Ch. XV. § I.] The Contraa king void. 649 
 
 On the other hand, it might be deemed a fort of Co-, 
 iecifm in our law, if the infured could, by paying a 
 premium, take the chance of reaping the propofed ad- 
 vantage from a fraudulent infurance ; and yet, when 
 delected, be entitled to recover back his premium, and 
 fo fufFer no lofs. It has been faid, indeed, that the 
 idea of enriching one man by the puniihment of an- 
 other is a flrange one, and fomcwhat inconfillent with 
 the prefent notions of criminal julllce {a). — But this Idea 
 is not flrange in our law ; for it pervades all our fta- 
 tutes in which penalties are given to common informers. 
 It is true that the legiflature gives thefe penalties, not 
 for the fake of enriching the informers, but to tempt 
 them, by the hopes of enriching themfelves, to bring of- 
 fenders to juflice. When a penalty is given to the party 
 grieved, it is given for the exprefs purpofe of enriching 
 him by the puniHrnient of the wrongdoer. Upon the 
 fame principle, a fecurlty given to a lender upon an 
 ufurious contra£l Is declared void by the ftat. 12 Ann. 
 c. 16, § I.; and yet the borrower, who is a party to tlic 
 illegal contract, fliall never be obliged to repay it. Nor 
 is this principle confined to the ftature law •, for, by the 
 common law, the vendor of fmuggled goods fhall not 
 be allowed to recover the price of them from the vendee, 
 though he be far from innocent of the fraud againfl the 
 revenue {b). Many other inftances might be adduced from 
 the common law to (hew that one party fhall be per- 
 mitted to enrich himfelf by the puniihment of another, 
 even where they are both hi pari dellBo {c). And it would 
 feem from the opinion of Lord Mansfield tn Loivry v. Bcur- 
 41eu (</), and that of Lord Kenyan in Vandyk v. Htivit (<•), 
 that, in the cafe of a gaming policy, the infured (.annot re- 
 cover back his premium, even where the rilk: has never 
 been commenced : How much flronger, then, in point of 
 juftice, is the claim of an innocent underwriter, to retain 
 the premium of an infurance, by wJiich the infurod meant 
 
 (a) Park 215. [1) Vid. 3 T. R. 454 ; 4 T. R. J^66 ; 
 
 5 T. R. 599. (0 Vid. 3 T. R. 454, Cowp. 343- 
 
 {d) Sup. 640. {e) Sup. 646. 
 
 tt
 
 650 Of Return of Premium [B. L 
 
 to defraud him ; and which is fome fatisfaftion for the rifle 
 
 he has run, though not an adequate punifliment of the 
 
 infured, for his meditated fraud. 
 
 I' has been de. But reafonablc and juft as this idea may feem, it has 
 
 treK-"t^aii be' a "°*^ always prevailed. The court of chancery, in two 
 
 return, if the inftanceSv ordered a return of premium where the poli- 
 
 contra^i^ be void . 111 -irri ■ ^ \ \ i 
 
 for the fraud uf ^ics Were declared void lor iraud committed by ilie 
 
 • be mfurcd. infurcd. 
 
 iVitiingham v. The firfl of thefe cafes was an infurance on the life 
 
 yhornbwgri, z j^£ Qj^g HorwelL for a year, intereft or no interell. The 
 
 Vern. 106. t 1". ' 
 
 inch. 2c. infured, in order to drav/ in fubfcribers, agreed with -one 
 
 Mariveody a neighbour of HorivelPsy an eminent n-,er- 
 chant who was a leading man in ftich cafes, to fubfcribe 
 firft J but he was to lofe nothing, in cafe Horivell died 
 within the year, but, on the contrary, was to fhare 
 what fhould be gained from the other fui.fcriptions. Upon 
 the credit of Marivood'z fubfcribing, feveral others, (who 
 had enquired of him about Herweil), ful fcnbed likewlfe. 
 Horiuell lived but four months. A bill was brought 
 to be relieved againft the policy ; and it appearing that 
 the infured had no intereft in the life, of Horiiell, who 
 was in a languifhing condition at the time the infurance 
 was efFe6led, the court decreed the policy to be delivered 
 lip to be cancelled ; but the premium, was to be repaidiihi» 
 plaintiffs dedu6ling their cods thereout. 
 j)f Co/'! V. The other cafe was an infurance on a fhip, where the 
 
 170. lup. 351. infurect was guilty of a fraudulent concealment, for 
 ^* ^' which the court of chancery ordered the policy to be 
 
 delivered up to be cancelled ; but, in like manner, di- 
 re£led the premium to be paid hack, and allowed out of 
 the cods. 
 PFi/fonv.Di'chf, This rule of the court of chancery, was firfl adopted 
 
 ^'_J at law, upon the authority of the above two cafes, 
 
 Ti>e f^me doc- -^ ^^^ aftion brou<>:ht on a policy of infurance on a fliip, 
 
 tniic adopted in o i J r-" , 
 
 s.i;..urt ot law. v/ith a count for money had and received by the defend- 
 ant to the plaintiff's ufe. — The caufe was tried under 
 a decree of the court of Chancery, where the infured, 
 (being then plaintiff), offered to pay back the premium 
 which was lol. j but no money was paid into court in 
 (his anion, — ^Thejre was a yerdicl for the plaintiff for thq 
 
 IQh
 
 Ch. XV. § I.] The Coniraa being ijoid, ^^1 
 
 lol. premium, ou the count for money had and re- 
 ceived, although the jury found the policy to have 
 been fraudulent. In faft, in this, as in the foregoing 
 cafe of IFitiingham v. Thornburgh, the firft underwriter 
 was only a uecoy-duck to miflcad others, and was not 
 Iiimfelf to be bound by the policy. — But it was agreed 
 to bring before the court this queftion,— " Whether, 
 upon a policy being {ownd fraudulent, the premium lliould 
 be returned." — In fupport of the affirmative, the two 
 laft mentioned cafes were cited on the part of the in- 
 fured. On the other fide was mentioned a cafe of Ruder 
 V. HoUingbury tefore the Mailer of the Rolls, who held an 
 opinion contrary to thofe cafes.— But Lord Matisfield faid 
 there mult have been fome miftake in the ftatement of 
 this cafe i for the pradice of the ,.ourt of Chancery- 
 was certainly agreeable to the former cafes : He then en- ' 
 (juired waetlirji- jj^j^j.^ ^^,^5 ^^^ common law determina- 
 tion to the fame effect, and it not appearing that there 
 was^ he fiiid it was plain what muil be done in this cafe: 
 For he looked upon the offer made by the underv/riter's 
 bill in equity to be the fame tiling as if the money had 
 been actually brought into court in the prefent caufe : 
 Therefore the verdicl for the plaintiff was fet afide, and 
 a verdicl entered for the defendant. 
 
 It has been faid, however, of this cafe, " that a trial 
 being had under a decree of the court of Chancery, and 
 the infurer having there made an offer of returning the 
 premium, the court of King's Bench confidered the offer 
 in the fame light as if he had paid the money into court, 
 and therefore the queftion remained undecided {a). But, 
 from the mode of difpofing of this cafe, it is plain that, 
 if the underwriter had not done what was deemed 
 equivalent to bringing the money into court, there would 
 have been a verdid againft him for the premium. The 
 court, therefore, clearly decided that the infured was 
 entitled to a return of premium. And this decifion had 
 the more weight as it may be fairly concluded, from the 
 
 (a) Park in index tit, Rtturn of Premium. 
 
 grofi
 
 f>5-^ OJ Return cj Premium }_B. I. 
 
 grofs mifconducl of the inTured, and from the expedient 
 adopted by the court to oufl: him of the colls at law, 
 that this point was decided in his favour with much re- 
 luftance. 
 But the eourts gut, be that as it may, Lord MansRehl. upon better 
 
 now hold a cor« no- r ^ ^ • <• 
 
 trary dodfine. refledtion, law at length, the mipohcy, not to fay in- 
 juftice, of permitting the infured to take his chance of 
 defrauding the underwriters, v/ithout the rilk of lofmg 
 
 Tyhrv.mrrt, J^Jj premium. — Therefore, where r.n adion was brousrht 
 
 atN. P. after ,. - , ' ^ 
 
 Bil. i785,f<tr/J, on a pohcy for r. total icfs, and it appeared to the fatis- 
 ***• fa«S^ion of th*^ ji-ry? that the plaintiff had given the order 
 
 to his broker to get the infurance efFeQed, after he had 
 received information of the lofs of the fliip, the jury 
 found a verdict for the defendant ; and Lord Mansfield^ 
 who tried the caufe, faid the fraud was fo grofs, that the 
 plaintiff ought not to recover the premium from the un- 
 derwriters. 
 
 The fraud was certainly very grofs in this cafe, but not 
 
 more grofs than in each of the three foregoing cafes, 
 
 which we have cited. 
 
 Chnfman and But this important queflion has been fmce finally fet- 
 
 others, aflignees ^^^ j„ ^ ^^^fg vA\\c\\ Came before the court of King's 
 
 of Kenntt v. o 
 
 J-Vaffr, BR.Tr. Bench, and where the fraud had been committed, not 
 
 ^^ " * by the infured himfelf, but by his agent ; and the whole 
 
 court were of opinion that, in all cafes of aElual frauds 
 
 on the part of the infured, committed either by himfelf 
 
 or his agent, tlie underwriter fhall retain the premium. 
 
 Sea. IL 
 
 Where the Rifi has not been commenced. 
 
 Foreign autSiors All the foreign authors agree that Infurance Is a con • 
 deny that the j;^j J contraft, that the rilk is of the effence of if, 
 
 infured can ail- ' 
 
 foive the con- and that the premium is the price of the rilk to be run : 
 m.'nd T'letum And yet, many of them hold that the infured is not per- 
 o» premium. mitted to diffolve the contraft by his own a6l ; and there- 
 fore if he relinquifti the intended voyage, the infurer is 
 
 not
 
 Ch.XV. § 2.] The Rijh not commenced. ^,-m 
 
 not bound to return the premium, and tliat he has a right 
 to demand it, if it has not been already paid (a). — They 
 except only the cafe where it becomes impoflible for the 
 infured to {hip the goods, or to caufe the fhip to proceed 
 on her voyage {b). 
 
 But the rules which prevail in Hollatid and France are in n>Uand a><( 
 
 more conformable to the nature of the contiaft of in- ^"\'"J* '"* '^^ 
 
 ij dineicnt. 
 
 furance. In Holland^ if the goods iufured fliould not' be 
 fliipped, or fhould appear to be of lefs value than the fum 
 infured, the infured may, in the one cafe, demand a re- 
 turn of the whole premium, in the other, a return for 
 what is over-infured (r). — In Franct^ if a flop be put to 
 the voyage before the fhip fails, ev;n by thec.5i of the infured^ 
 
 (a) yln ajfecurator teneatur rejlttuere pretium, eo quod in navi 
 tion fucrunt merces ? Videhalur teneri ojfccurc'or ad reJt'ituUonsm 
 pretii recepti ob caufam ill'ius pericull ; tamen in contrarium efi 
 Veritas y quod non folum non teneatur prei turn rejlttuere j imo pnjfit 
 petere illud ; et ratio £/?, quia licet emptio periculi non teneat in 
 prajudicium promijftjris, tamen in ejus favorem^ et in pnjudicium, 
 ajftcurati falfa ajprtio bene tenet. Sic etiam quia ilia caufa cejfaty 
 faRo domini merctum, ici quo J nuUas merces m'lfit in navem, et 
 non fa3o njfecuratorts, per quern nonjletlt. Roccus, A. /. not. ll, 
 13, 14, 82, 88 ; vid. Santerna, part. 3. n. 19, 20, 22 ; 
 
 Straccha gl. 6. Cafare^s, dijc. i, n. 53, 58. (3) In cqfi- 
 
 bus in quiius impeditur navigation puta Ji navis Jit comLvJia in 
 pcrtu, lel dJlruCla, vel rex earn capiat pro necejfitatibus pubiicis, 
 et imped'ilur conditio ajfecuratiords : quia tunc non poffet imputari 
 conditionis defedus magis uni, quam alteri parti, nulliis tenebitur ; 
 et pretium periculi non potej} peii, et fohitum repetitur^ q^fjl eaujd 
 non fg cut a. Roccus, h. t, not. 1^,56. — Si, ex aliquo impedi- 
 mento, ajfecuratus non potuijjct merces fuas onerare, tunc contraStua 
 afffcurationis locum non haheret, ita ut Ji pretium ajjtcuratiomt 
 fu'Jfct folutum, repeti certo potent per ajjccuratum. Cafaregia 
 dijc. I, n. 1S2, d'tfc. 62, n. 4. Vid. Le Guidon, ch. 9. art. 16, 
 which is nearly to the fame effect. Vid. Ord. of Antwerp, 
 
 art. 16. 2 i\1agcns 27. Locennius, lib, 2, ch. 5, n. l6.- • 
 
 {c) Ord. ai Amjlerdamy art. 23, 2 Mag. 136. 
 
 1 the
 
 654 
 
 Of Return of Premium 
 
 [B.L 
 
 In Ffifrland, if 
 the rifk. be not 
 begun, lo what- 
 evercaufe this be 
 ©wing, the p;e- 
 naiuiii (hall be 
 returned. 
 
 Where the policy 
 18 \uid, and 
 there is no fraud 
 imputable to the 
 plaintiff, he is 
 «iiiiileci to a re- 
 turn ufpremiutn* 
 
 When the plain- 
 tiff is entitled to 
 a return of pre- 
 tnium, he may 
 claim a vprdidl 
 for it, even after 
 the jury have 
 delivered their 
 verdi<fl for the 
 defendant^on the 
 principal quef- 
 tion. 
 
 the infurance becomes void, and the infurer fhall returfl 
 the premium (a). 
 
 In England, the rule is, that where the rifk has not 
 been begun, whether this be owing to the fauk, pleafure, 
 or win of the infured, or to any other caufe, c\cc^X fraud, 
 the premium fliall be returned. The reafon is, that a po- 
 licy of infurance is a contraft of indemnity ; the under- 
 writer receives the premium for running the rifk. of in- 
 demnifying the infured ; and therefore, if he run no rifk, 
 to whatever caufe, except fraud, this may be imputable, 
 the confideration for which the premium was paid to him 
 fails, and he ought to return it {b). 
 
 If the contra6t be void, on account of a noti- compli- 
 ance with any warranty, exprefs or implied ; as if the 
 fhip do not fail on the day prefcribed, or do not depart 
 with convoy, or be not fea-worthy, and there be no 
 fraud imputable to the infured, he fnall be entitled to a 
 return of premium. •, becaufe the contradl never attached, 
 and the riik, therefore, never commenced. In fuch cafe, 
 it is always advifable for the defendant, in an adion ofi 
 the policy, to bring the premium into court ; otherwife 
 the infured will have the advantage of trying the queflion 
 on the validity of the contradt, without the peril of cofts j 
 for, at the worft, he will be fure of a verdift for the 
 premium [c). And it is not unufual when the jury have 
 brought in their verdidl for the defendant, on the only 
 queftion fubmitted to them, for the plaintiff's counfel to 
 claim a verdict for the premium, upon the count for 
 money had and received. 
 
 Indeed it has been the conflant pra£lice, for the plain-= 
 tiff's counfel to abflain from any mention of the premium, 
 w'here he means to claim a lofs ; becaufe, by fetting up a 
 demand for the premium, he confefTes a doubt, at leaft,- 
 of his being able to fuflain his principal claim ; and 
 throwing out fuch a doubt, in a cafe already, perhaps. 
 
 {a) Ord. of Zn.7'j- XIV. h. t. art. 57, Vid. Emsrig. torn. 3", 
 
 p. 154. Pcihhr, li. t. n. 178, 179. [i) Per Lord 
 
 Mansf eld, in Tyrk y. Fktckr, Co^'p. 6C%, (f) Vid.- inf. 
 
 «li, 16. § 4= - , 
 
 doubtful.
 
 Ch. XV. § 2.] The R'ljh not commenced. 5-^ 
 
 doubtful, may raife a prejudice very injurious to hla 
 cli-nt's intereft. And it may be faid, moreover, in fa- 
 vour of this practice, that the defendant may come 
 prepared to difpute the plaintiff's claim to a return of 
 premium, and may prove fraud, which will not be incon- 
 fiftent with any other defence he may have to make ; 
 whereas it often happens that the plaintiff's claim to 
 a return of premium refts on the very cafe made by the 
 the defendant {a). 
 
 If the queftion of return of premium be not agitated at But the co-.m 
 the triul, and a verdia be taken for the plaintiff for the lofs, ,T'-g "fid/a v.':-* 
 fubjecl to the opinion of the court upon any point that may ^^^ '^"'' •■• "'■"'''-> 
 be relerved, and that point be decided agamft the plaintiff; difv tor ihc jne- 
 it will then be too late to fet up his claim to a verdift for '"'"'"' 
 the premium ; for the court cannot find a new verdift, 
 or fubftitute any other fum in lieu of that which the jury 
 gave in damages {b). 
 
 If the infurance be unon a voyaGje v/hich is divifible xvu ,1 
 
 t. ] c> ^ Where the voy- 
 
 into Lvcral diftincl rifks, which are, in effect, feveral ='8« •"•"<' piemi- 
 
 j-a- O. 1 • 1 • 1 um air fliviiibic, 
 
 autinct vovciges, the premium may be apportioned ac- and any part rut 
 cording to thefe feveral rifles : and in cafe one or more ^'^'""l '"' P"'' 
 
 <^ ' nminiloith4tp;:ri 
 
 of thufe rifks (liould not have been commenced, the (hall be ictuioed. 
 
 proportion of premium applicable to thofe parts fliall be 
 
 returned. 
 
 Thus : — A {hip was infured, ' At five guineas per Stfphtnftr, v. 
 
 ' cent, loft or not loft, at and from London to Halifax^ ,^"^' ^ '"^* 
 
 * warranted to depart with convoy from Porifinoiitb for 
 
 c ^1 » r. r in- • i r, r r ^ A (llip IS infliiei 
 
 * the voyage. — Betore the ihip arrived ^t Port/ mouth, the ata..d from /.c». 
 convoy was gone. Notice of this was immediatelv eiven '^'"' '" ^f".'^'"' 
 
 J c^ J a warranted lo (U - 
 
 to the imderwriters, who were defired, either to make p'h with envoy 
 
 .1 1 • r r 1 • r.-i i'om Portt'm-,ulh . 
 
 the long iniurance, or return part of the premium. 1 hey ar fivr ..uincat 
 retufed, and the infured brought an ?.£lion to recover a f" ""'• O" 
 
 ^ iier .irnval .it 
 
 part of the premium. At the trial, a cafe v/as referved V'jrtfmzutk, Hna 
 for the opinion oftheoourt, ftating the above fa^s, and ^",^,'/ No,"JI?f 
 alfo ftciting, that the jury found that the ufual and fet- this i^ immedi. 
 
 .Ttcly given to 
 till- inluier: — 
 ' ~ Tlie (ircmium 
 
 fl).ill bf, uppor* 
 (fl) Vid. Penfon w.Lct, 2 Bof &: Pitl.o,T,o, in vliid tMc qurf- tioi;cd. 
 tion was very much debated. —^ — {v) R. Nc^jit -v. l'^' i/mort, 
 J Enjl 97, n. 
 
 tle4
 
 6^6 Of Return of premium [B, L 
 
 tied premium from London to Peri/mouth was one anti 
 a half fct' cent, which the plaintiff offered to allow the 
 defendant to retain ; and that it wao ufuil for the un- 
 derwriters, in fuch cafes, to return part of the premium; 
 But the quafitum vvas uncertain, and muft in its nature be 
 fo i becaufe it depended upon uncertain circuniflances. — • 
 Upon this cafe, the court were unanimouily of opinion that 
 the plaintifFwas entitled torecover — LordMansfie/d faid, ■— 
 *' Thcfe contrafts are to be taken with great latitude ; 
 The ftritl letter is not fo much to be regarded astheob- 
 je61: and intention of the parlies. Equity implies a con- 
 dition that the infurer fliall not receive the price of run- 
 ning a rifk, if he run none. The premium is without 
 confidcration, as to the voyage from Port/mouth to Halifax^ 
 and then this cafe is within the general principle of ac- 
 tions for money had and received. I do not go upon th« 
 iifage, which is only that, in like cafes, a part of the 
 premium is returned, without afcertaining luhc- part. 
 If the rifk. be not run, though it be by the neglecl, or even 
 the faielty of the infured, yet the infurer flv-ll not re- 
 tain the premium. It has been objedled .aat the voyage 
 being begun, and part of the rlik already run, the pre- 
 mium cannot be apportioned : But I can fee no force ia 
 this. This is not a contrail fo entire that there can be no 
 apportionment : For there are two parts in it, and the 
 premium may be divided into two diflind parts relative, 
 as It were, to tv/o diflin£l voyages. The practice iliews 
 that it has been ufual, in fuch cafes, to return a part of 
 the premium, though the quantum be not afcertained ; 
 And, indeed, the quantimi mufl vary as circumftances 
 vary. But though the quantum has not been afcertained ; 
 yet the principle is agreeable to the general fenfe of man- 
 kind." — Mr. Juflice Denifon^ and Mr. Juftice FoJIer, 
 concurred in this opinion. — Mr. Juftice IVUmot faid, — 
 " The ufage to return a part of the premium, in fuch 
 cafes, is a ftrong proof of the equity of the thing; and 
 nothing can be more juft and reafonabie. If the rifle be 
 once begun, the infured {hall not deviate or return back, 
 and then fay, I will go no further under this contract, 
 but will have my premium returned. Upon tliis policy, 
 there aie two diflin€l points of time, ia effect two voy» 
 
 ages.
 
 Ch. xY. § 2.] T/Js R'iJh not commenced. ^-- 
 
 ages, which !^e clearly in the contemplation of the 
 parties ; and only one of the t^vo voyages was made, 
 the otheir was not at all entered upon, nor was the riik 
 ever begun (a)." 
 
 In the following cafe, though the facts did not enable 
 the court to pronounce any definitive judgment upon this 
 point ; yet, in fending it back to a new trial, an opinion 
 was delivered which tends to ftrcngthcn the authority of 
 the above decifion. 
 
 An infurance was made on the fliip Maiviin^, * At 
 and trom Hu// to jBi/boay warranted to depart from Eng^ i So/, u Fui. 
 
 * hind with convoy.' — ^The fhip failed from Hull to Portf^ ''"_ 
 
 mouthy and from thence departed with convoy; but Afhip is infurcd 
 this not being direa for Bilhoa, flie left it, and was 'after- ^siL^wLlln. 
 wards captured.— In an action on this policy, upon the !:'' '" ^^'"P"'' 
 
 , . . . r ;' r from £«»•,,,.,,/ 
 
 above tacts comnig out m evidence, the plaintiff would ""'"i convoy, 
 
 have been nonfuited ; but his counfel infifted that he lol 'ZTto 
 
 was entitled to 'a return of premium : and there bcino- a ^^ (/"'"»"'*i '"« 
 
 count mthe declaration for money had and received, and voui.,and from 
 
 no money paid into court, a verdicl was Piven for the '''•^"'" '"^ '"/'^o-. 
 
 1 • -rr r 1 14 • -.--r msy bt co"(idfr- 
 
 plaintitt tor the whole premium. — Upon a motion to fet ff> ^s diDinct ; 
 aHde this verdia and enter a nonfuit, it was contended fti'J,'"a"['w'!ri,. 
 on the part of the defendant that, as the rifle had com- '"'' c.>..vov, unj 
 menced, the plaintiff could not be entitled to any, return prcn^um' mJy 
 of premium. — On the part of the plaintiff, it was infilled *" .^.^P'"'''""<^s 
 that there were two diltind voyages in this cafe ; the one 'u"Kd." 
 from Hull to the place of rendezvous, and the other 
 from thence to Bilboa, the port of difcharge ; that the 
 rifles were of diflerent natures, one being without, the 
 other with, convoy ; and that, as the latter v/as never 
 begun, the plaintiff mnft at all events be entitled to a re- 
 turn of a proportion of the premium on that account.— 
 
 (a) Vid. Lord A/ansJie-lcPs obfcrvations on this cafe, {Coiup. 
 C6r), inf. 6^^^, in which he labours to vindicate thedecilion of 
 it, by (hewing that the grounds of it were, that the vopge was 
 in faft two -voya^ei, and that the contract comprlfed izuo di/l'mil 
 €ondiUons. Vid. alfo the obfervations on this and the other cafea 
 on this point. I Bof. ik Pul. 1 74. 
 
 VOL. II, N Tlie
 
 6^^ 0/ Return of Premium [B.I. 
 
 The court direfted the verdid to be fet afide, and granted 
 
 a new trial, being of opinion that if the undcrwiters were 
 
 not entitled to retain the whole premium, yet, having 
 
 ran the rifle from Hull to Port/mouthy they were at lead 
 
 entitled to retain a proportion of it, if, upon a further 
 
 inveiligation, it fliould turn out that the voyage was di- 
 
 vifible, and that the premium in fuch cafes, had ever been 
 
 apportioned, («). 
 
 Yet, upon an in. Yet, where an Infurance is made on a fhip, * At atid 
 
 />[w"^a* "'ucf 1^°"^' ^^^ P"'^^ °^ departure, and warranted to fail on or 
 
 tiie rifk is not before a given day, and the fhip does not fail within the 
 
 time required by the warranty, by which the infurer is 
 
 difcharged •, it has been holden that the rifle at and from 
 
 the port of departure is entire, and not divifible into two 
 
 diftinft rifks, and that, therefore, the premium cannot be 
 
 apportioned, fo as to entitle the nifured to any return. 
 
 Mtyer V. Grrg. Tlius : — A fhip WHS iufured * At and from Jamaica to 
 
 •^'"'*^^:f:- ^'f * Liverpool, Vvarrznttd to fail on or before the firft of 
 
 24 & . 1 11. MS. -^ . 
 
 * yJugii/Iy premium 20 guineas per cent, to return 8, if 
 
 '** a/'^wVowj * fie faded tvitb canvoyJ — The flaip did not fail till SeptftH' 
 Jantaita to Li- t i^f^ and was loft in the voyage.' — Tlie warranty, as to 
 
 I'erpcoL warrant- , . r c -y i • r i • i i i 
 
 c(i to fail on or the time of failiRg, not bemg complied with, the under- 
 before the firft ^yritgrs werc difcharged from the rillc after the firfl of 
 
 •r jiugujt ; pre- . i i i • /• 
 
 miumzo guineas Jugiijl^ and an action was brought by the infured for a 
 V.!J'"f '•" '^' return of premium. — The defendant, who was an un- 
 
 •urn 8 guineas » 
 
 if flie failed with Jerwriter for lool., paid 8 guineas into court, being the 
 d;d not fail till fum to be returned, if the (hip failed with convoy. — 
 Tif/mftViiftail The jury apportioned the premium, and gave 8 guineas 
 wniy be entitled niorc for the rifk froni famaica \o Liverpool ; which tliey 
 *"^;/. tt^'conloy' confidered as not having been commenced •, thus allow- 
 and not t.. ^n • ,„ . guineas for the rifle « at Jamaica." — The defend- 
 
 appoitiunmentof o ^ o ./ 
 
 the reft «f the ant moved to fet afide the verdidl, and enter a nonfuit, 
 preuiiuiu. upon the ground that he rifle was entire, the premium 
 
 cntu-e, and the voyage indivifible. — Lord Mamfeld, Mr. 
 Juftice Aftmrf^ and Mr. Juftice BuHer^ (againft the opi- 
 nion of Mr. Jultice JVi/ks, who thought with the jury, 
 that the premium ihould be apportioned)^ determined 
 
 (a) This, upon memory, feems to be tl.e refult of what was 
 
 done by the court, though not fully expreffed in the printed 
 
 report. 
 
 that
 
 Ch. XV. 2.] The Rijh riot commsnced, ^^^ 
 
 that the infured was not entitled to recover more than 
 
 had been paid into court. — Lord Mansfield faid, — " It 
 
 would be endlefs to go into an enquiry about the value 
 
 of the rifk " at Jamaica ;" which is different at different 
 
 (ides of the ifland : The parties divided the rifk, as to 
 
 convoy ; for 8 guineas were to be returned if the fliip 
 
 failed with convoy. Independent of that, it was an in- 
 
 furance " At and from Jamaica to London^' at 12 guineas 
 
 per cent, with an abfolute warranty to fail *' on or before " 
 
 the ift of Augnjl^* and nothing is faid from whence it 
 
 can be inferred that it was meant that there fhould be 
 
 two rifks, or by which the rillc at Jamaica could be dif- 
 
 tindly cflimated («)." — Mr. Juftice Buller faid, — " As upon an Jnfur- 
 
 thc parties have not confidered it as two rifks, nor efli- a"" ,7/ j-^/rooi 
 
 a jjlfce, ail ufage 
 
 mated the rifk ^^ at Jamaica^^ neither the court or jury ihouid i>e proved 
 
 have any right to do it for them. In all the infurances '° **'"''| * '!'- 
 
 from Jamaica^ the policy runs ^' at and from ;" and though 
 
 in many inflances, the voyage has : ct been commenced, 
 
 yet there never was an idea of any part of the premium 
 
 being returned ; and no ufage to do fo has been found 
 
 by the jury." 
 
 In a fubfequent term the follov/ing cafe came before 
 the fame court ; and though the point was not decided by 
 the judges, yet Lord Mansfield^ in directing a new trial, 
 laid down the principle, which he conceived ought to 
 govern thefe cafes, in terms which feem more reconcile- 
 5ble to the cafe of Steven/on v. Snotu {b) than to the lafl 
 cited cafe of Meyer v, Gregfon. 
 
 A fhip was infured * At and from any port or ports ^•-■'i v. MuchtU, 
 • in Jamaica to London^ following and commencing from ^'. q jj| " 
 
 A fhip infured 
 
 ai ?nd from ^.i- 
 
 {a) Lord ManafieU, in delivering his opinion in the caff of wTrranted °o fail 
 
 Tyrie v. Fletcher^ Cowp. 670, inf. C6z. feems to have entertained with conxoy, arr 
 
 a different fentiment on this point. He then inclined to think 'u",'°" 'f' *' 
 
 ^ the ]il.ice yf rcn- 
 
 that if the words of the policy were " at and fromy provided dcivous for the 
 
 the fhip fhall fail on or b:-fore the ift of y^r/F«/?," it Would fall '""^"y' ^i^' '"- 
 
 within the reafoning of ^te'venfon v. Snoiv, and that there would t.tkct them ; 
 
 then be two parti, or contracfls, of infurance, witli diftinfl con- l^'l'^',^''^ ^^^^' 
 
 ' / Ihnll be a rftara 
 
 ditions. But this can only be confid'^red as an extra-judicial ol i^icmium. 
 
 opinion expreil'-rd very doubtfully. {b) Sup. 6j5. 
 
 N 2 < lier
 
 €6^ ^ Of Return of Premhun j_B. t« 
 
 * her full arrival there-, warranted to fail with convoy 
 
 * for the voyage, from the place of rendezvous.' — The 
 fhip did not get to the place of rendezvous in time to 
 fail with the convoy, — but failed aftei:, and overtook 
 them ; fo that the warranty was not complied with, 
 and the underwriters were difcharged from the time of 
 i\\c (hip's faiHng. — The infured brought an action to re- 
 
 X co\er back a part cf the premium for the voyageyVowJ 
 
 yamaica.-—Ai ilic trial, an ufage feemed to have been 
 
 proved, that when the fliip was not out of the port of 
 
 Jaina'icay the allowance. was one-half per cent. In other 
 
 cafes it was arbitrary, and two or three per cent, was 
 
 reafonabie. There was a verdicl for the plaintiff. Upon 
 
 a motion for a new trial, tl.e counfel differed as to the fatts 
 
 that were in evidence, and the caufe was fent back to a 
 
 new trial, without the queftion of law having been much 
 
 Where tViere is a difcufled. — Lord Mansfield, however, faid, that where 
 
 u"" ^\oy^%l the there is a contingency in the voyage, the rifk may be di- 
 
 jifk m.iy be di- yjded. That the reafon why there are not two polices 
 
 in fuch cafes was, that the rifk "«i!f^," is capable of exact 
 
 computation. He faid the former cafes upon this point 
 
 were contradictory. 
 
 In the fame term the following cafe vx^as determined : 
 And though the judges feem to have laid great ftrefs on 
 the ufage found by the jury, to return the premium, de- 
 ducting one half /tv cent, upon infurances, at and from 
 Jamaica, with a warranty to depart with convoVf^ or to 
 fail on or before a given day, and the warranty is not 
 complied with •, and tliough it is diftinguiflicd from the 
 cafe of Jllcyer v. Gregfon on this ground ; yet it cannot 
 be denied that the authority of that cafe is greatly fhaken 
 by it. 
 Tcnp V. ^ten, That was tlie cafe of an infurance on goods, * At and 
 
 J!. R.FrfztG. ( fi-om Jamaica to London, warranted to depart with con- 
 JIIMS. -^ . ^f 
 
 — « voy, for the voyage, and to fail on or 'before the firft 
 
 Goods are infur- r y n . • r _ • . ^ > 
 
 6d " At and ^* ot AiigtiJ}, at a premuuTi ot 12 gumeas per cent. — 
 from Jamaica to 'Y\\z fiiip failed from Jamaica to London on the 31ft of 
 re! tode]>:rtwith 7///)', but without any couvoy, whcreby the underwriters 
 ^r)nvoy before ^ecame difcharged from the remaining rifii;— An adion 
 
 the I It cl yht- " . " 
 
 i-uji." The fhip was brought for a return of premium. — ^I'he jury found 
 
 lails before the ' 3' cl 
 
 a verdict
 
 Ch, XV. §2.] The R'lfi not commenced. £5, 
 
 a verdiiSl for the plaintiff fubjevTb to the opinion of the ^ir.^ut without 
 court. on the above fads; in addition to v.hich, they '"a7'v!^J':u 
 found * that it was the conftant and invariable ufaee in """^" '"^s '"« 
 
 nilurances, at and trom Jamaica to London^ ivarranted returned, de- 
 « to depart ivith convoy, or, to fail on or before a certain day, to ,1";''"^ J/';,^ 
 « return the prefiaium, deducting one half per cent, if the "■— T^e inf.,r- 
 * Hup failed without convoy, or after the day profcribed.' the !!!Suron>U 
 —Upon this cafe, the court determined that the plaintiff l"'"'^'"'"- ^ 
 was entitled to recover according to the ufage proved.— 
 Lord Mansfield faid,— « The law is clear, that if the rifk 
 be commenced, there fliall be no return of premium. 
 Hence queftions arife of di/linH- rifks, infured by one po- 
 licy. My opinion has been to divide the rifks. I am 
 aware that there are great difficulties in the way of appor- 
 tionments, and therefore the court has always leaned 
 againft them. But where an exprefs ufage is found b" 
 the jury, the difficulty is cured."— Mr .^Juilice BuHei- 
 f^iid ;— « The counfel for the defendant did right to make 
 the chief queftion, whether any evidence of this ufage 
 ought to have been received. In mercantile cafe^, from 
 Lord Holt's time, and in policies of infurance in parti- 
 cular, a great latitude of conflruclion, as to ufase, has 
 been admitted. By uf^jge, places come within the po- 
 licy, which are not within the words : Ufage explains, 
 and even controuls the policy. The ufage here found by 
 the jury is univerfal ; and though, in fome cafes, one 
 hzM per cent, is a fmalj premium for the rifk at; yet the 
 underwriters are aw-re that it is fo, and no inconvenience 
 can refult from it. La Meyer v. Gregfon, no ufiige was 
 found." 
 
 But if the riHc be entire, and be once commenced, it But if the rin^ 
 is a general rule that iliere ih.dl be no return of premium. ^^ ^"""' ''"'' '*" 
 
 . . ^iv-iiiJciA. once comnieii- 
 
 And the fhortncfs of the time when the thing infured was "^f' '""'' '''^'1 
 put in rifk affords no ground for a return of any part of ^' "'"■''""'• 
 the premium ; for it becomes the abfolute property of 
 the infurer, the moment the rifk commences, though it 
 (hould ceafe the moment after. I'his is one of the fa- 
 vourable circumdanecs -which compcnfate the infuer for 
 the accidents to which he is expofed. It is impoffible to 
 apportion the premium to the duration of tlic nHc, v. liich 
 
 X 3 may
 
 66z Of Return of Premium [B.l. 
 
 may be greater in the firft hour than in the reft of the 
 voyage («). Therefore if the fhlp get under weigh, and 
 fail on the voyage infured, the premium is acquired, 
 though file return the fame inftant and wholly abandon 
 the voyage. So if the (hip deviate from the voyage in- 
 fured the next hour after fhe fails i though this difcharge* 
 the infurers, yet, the rifk having been commenced, there 
 ftiall be no apportionment, or return of any part of the 
 prsmium, in refpe6t of the diminution of the rifk. — 
 Though the voyage be to feveral different places, and 
 confift of feveral diftind parts ; yet, if in faft it be one 
 entire rijkj for one entire premium, and not feveral diftinft 
 rifles, there fhall be no apportionment, or return of the 
 premium, on account of any contingency which puts an 
 end to the contract, before the commencement of any part 
 of the voyage infured {b) . 
 
 Thus : — An infurance was made on a French fhlp and 
 
 iri^gTuoug^vlt. ber cargo, ' At and from Honfeur to the coaft oi Angola^ 
 
 T J * duringf her ftav and trade there ; at and from thence 
 
 A fliip is infured o J r ^r^ • n t\ • 
 
 " At and from < to her port or ports of difcharge m St. Domingo j and at 
 
 her ftay tt"'e^ * a^^l f^om St. Dotningo back to Honfeur ; at a premium 
 
 and from thence t qJ eleven per cent.^ — The fhip failed to Angola., and from 
 
 difchargr at c. thcncc, after ftaying fome time there, to the Wejl Indies. 
 
 and at and from q^ ^^^ ^^„ f^^jj^ Angola, flic put into Cayenne, on the 
 
 C. back to y?." ' ° ^ . - . . 
 
 Theniipistaken coaft of America, and from thence went to Martititco, 
 
 rW°rat*^c.:^ confeffedly out of her courfe to St. Domingo, where the 
 
 Thereftialibeno captain was obliged to difpofe of his cargo. The fliip 
 
 mium "for^the failed for Hunjleur \ but was taken by a privateer on her 
 
 voyage from /:. ^Qyage thither.— -As the deviation difcharged the under- 
 
 Xo A. this being *"; o ° 
 
 •ne entire rifk vvriters, the Only queflion was, whether there fhould 
 
 and one voyage. . , , . r\ ^ ^ r i. 
 
 be a return or part ct the premium. — Un the part oi the 
 plaintiff it was contended, that the voyage infured con- 
 
 (a) Vid. Emer'tg, torn. I, p. 62, 6^-). PoilAer, h. t, n. 
 
 179- 
 
 {b) By the ordinance of Louis XIV, h. t. art. 6, if an in- 
 furance be made on the outward and homeward voyage, at an 
 entire premiunti, and the fnip arrive at her outward port of def- 
 tination, but never returns, the infurer fhail return one th.rd of 
 the premium. 
 
 filled
 
 Ch. XV. § 2.3 The Rijh not commenced, 662 
 
 , fifled of three diftin£t: parts or voyages; viz. from HaiX' 
 fieur to Angola^ from Angola to 5/. DoiningOy and from 
 St. Domingo back, to Honfleiir ; anal tliat, as this laft voyage 
 had never been commenced, the piemiiun ought to be 
 apportioned, and the part of it returned which was paid 
 to infure the rifk from St. Domingo to Hwi/ciir. —Bnl the 
 jury, upon that point, were clear that there ought to be 
 no return. — Lord Mansfitld, who tried the caule, upon 
 turning the queflion in his mind, entertained fome doubts 
 upon it, and defired that a new trial might be moved 
 for ; which being done, the court, upon great confidera- 
 tion, determined that this was one voyage, an-d one entire 
 riOc ; and that there could be no return of premium.-— 
 His lordfhip, in delivering the opinion of tlie court on 
 this point, faid; — "On the fuUeil confideration, and 
 after looking into all the cafes, (though my opinion has 
 fludtuated), we are now all clear that there ought not to 
 be any any return. The (jueftion depends upon this : 
 Whether the policy be upon one entire rifle on one voyage, 
 or whether it is to be fplit into fix different rilks ; for by 
 fplitting the words, and taking at Midfrom, feparately, it 
 will make fix. The principles are clear. When the rifle 
 has never begun, there rauil be a return of premium ; 
 and if the voyages in this cafe are diftinct, the voyage 
 from St. Domingo to Honjleur never began. On the other 
 hand, if the rilk have once begun, you cannot fever it, 
 and apportion the premium. In an infurance upon a lifcj, 
 with the common exception oifuicids and the handsy ofjaf- 
 ticc:, if the party commit fuicide, or be executed in 
 twenty-four hours, there (hall be no return. The cafe h 
 the fame if a voy;^ge infured be once begun. Is this one The premium 
 entire riik ? The infured and infurers confider the pre- ap"V"hinh« 
 niiiim as an entire fum for the whole, without divifion. nflt u entire. 
 It is eftimated on thewliolo witltvan per cent , and, which 
 is extremelv niat^'vlal, tliere is no where any contingency 
 at any period, out or home, mentioned in the policy, 
 which happening, or not happening, is to put an end to 
 the infurance. The argument mult be, tint if the fliip 
 had been taken between Honjiair and A:igo!ay there mud ^ 
 
 have been a return. By an implied warrauty^ every (hip 
 
 N 4 murt
 
 664 Q/" Return of Premium [B. I. 
 
 muft be fea-worty when flie fails on the voyage hifnred ; 
 but (lie is not neceflarily to continue fo throughout the 
 voyage ; io that, if this be one entire voyage, if the fhip 
 was fea-worthy when flie left Honflcur^ the underwriters 
 would have been liable though fl;e had not been fo at 
 Angola^ &c. but according to the conftrudion contended 
 for on the part of the plaintiff, (lie muft have been fea- 
 worthy, not only at her departure from Honfleur, but 
 alfo when fhe failed from Angola^ and when flie failed 
 from St. Dofrjiigo. The caies of ^tevevJoK v. Snow (c), 
 and Bond v. l^utt (^), were quite different from this. 
 They depended upon this, that there was a contingency 
 fpecified in the policy, upon the not happening of which 
 the infurance would ceafe. In Stevenfon v. SnoiVy it de- 
 pended on the contingency of the fhip failing with con.^ 
 voy from Partfinctdh^ whether there fhould be an infur- 
 ance from that place or not. This necefTarily divided the 
 rilk and made two voyages. In Bond \\ Nuit, it was 
 held that there were two rilks upon the fame principle. 
 « At JatrMica," was one. The other, viz. " From Ja- 
 maica," depended on the contingency of the fhip ha\ ing 
 izxl&ci. ^' qn or before the firfi of Augiifi.'" That was a con- 
 dition precedent to the hifurance on the voyage frotn Ja- 
 viaica to London. The two cafes oi Tyrie v. Fleicher^^nA 
 Loraine v. Thomlinfon, are very flrong ; for,' if you could 
 apportion the premium in any cafe, it would be in infur- 
 ances on time.'' 
 wi^erR t'ne infu- gp^ wlicrc the infurancc is for a term fpecified in the 
 ^ '!" and'ihe policy, aud for one entire premium ; if the rifle be begun, 
 pifc.uiufM IS fo- and an event happen immediately after which determines 
 lire, if «'e nfk '^ i n n u r 
 
 Le begun, riiere the coutraCf, thcrc fhall he no return ot premium. 
 
 fhaiibcncretum. 'x^j^^s 1— A fliip was infured, « At and ixom London, 
 r'-r* ^\iV^^' * ^^ ^"y P*^^^ °^ .place wherefoever or whatfoever, for 
 < twelve months^ from the 19th of Augiijl 1776, war- 
 * ranted free from capture or feiz«re by the Americans." 
 The premium was pL per cent.. — ^The fiiip was taken by 
 an American privateer, ■ about two motUhs after flie failed. 
 
 id) Sup. ^SS' (^J Sup. 353. 
 
 Ths
 
 Gh. XV. § 2.] The Rl/Ji 7ict commenced. 665 
 
 —The infured brought an a£lion to recover a proportion 
 of the premium for the refidue of the time. The court 
 determined that the rifk was entire ; and, having been 
 once begun, there could be no return of any part of the 
 premium. Lord Mansfield fald, — " This cafe is ftript 
 of every authority. There is no cafe, or practice, in 
 point ; and therefore we mull argue from general prin- 
 ciples applicable to policies of infurance. And I take it, 
 there are tvvo general rules efiablifiied, applicable to this 
 queftion. 'Y\xtfi;jl is, that where the rifk has not been 
 begun, whether this be owing to the fault, pleafure, or will, 
 of the infured, or to any other caufe, the premium fliall 
 be returned ; becaufe a policy of infurance is a contvaft 
 of indemnity'; the underwriter receives a premium for 
 running the riilc of indemnifying the infured ; and, to 
 whatever caufe it be owing, if he do not run the rifle, 
 the confideration, for which ihe premium was put into 
 his hands, fails, and therefore he ought to return it. 
 Another rule is, that if the riilc has once commenced, 
 there (hall be no apportionment or return of premium 
 afterwardo : For though the premium is ellimated, and the 
 rifk depeuds upon the nature and length of the voyage ; 
 yet, if it was commenced, though it be only for 24 hours 
 or lefs, the rilk is run ; the contract is for the entire riilc ; 
 and no part of the confideration fhall be returned ; and 
 yet it is as eafy to apportion for the length of the voyage, 
 as it is for the time. If a fliip had been infured to the 
 Eafl Indies^ agreeably to the terms of the policy in this 
 cafe, anvl had been taken 24 hours after the rifk was be- 
 gun, by an American captor, there is not a colour to fay 
 that there fhould have been a return of premium. So 
 much, then, is clear ; and indeed perfectly agreeable to 
 the ground of determination in Sievenfon v. Snonu {a). 
 J'or, in that cafe, the intention of the parties, the nature 
 of the contract, the confequences of it, fpoke manifeftly 
 iwo infurances, and a droifion between them. The flrit 
 
 (a) Slip. 6'jS. 
 
 objc(3t
 
 66'6 Of Return of Premium fS-^' 
 
 obje^ of the Infurance was from Lchdon to Halifax : But if 
 the fhip did not depart from Portfmotiih with the convoy 
 fpecified, then there was to be no contradl from Portf- 
 mouth to Halifax. The parties, then, have faid, < Wc 
 
 * make a contract from London to Halifax j but, on a cer- 
 
 * tain contingency, it fliall only be a contract from Lon- 
 
 * don to Portjhiotith.' That contingency not happening, 
 reduces it, in fact, to a contract from London to Portf- 
 mouth only. The whole argument turned upon that dif- 
 tinftion, and all the judges, in delivering their opinions, 
 lay the ftrefs upon the contract comprifmg t-wo di/linJ^ 
 conditions, and confidering the voyage as being, in fact, 
 iivo voyages : And this was the equitable way of confider- 
 ing it ; for though it was at firft confolidated by the par- 
 ties, there was a defeuzance afterwards, though not in 
 words. I think Mr. Juftice JFilmot put it particularly on 
 that ground} but that was the opinion of the court. 
 There was an ufage alfo found by the jury in that cafe, 
 that it was cufomary to return a proportionable part of 
 the premium in fuch cafes, but they could not fay 'what 
 part. The court reje£ted this, as a void ufage, for the 
 uncertainty ; but they argue from it, that there being 
 fuch a cuitom, plainly fliewed the general fenfe of the 
 merchants, as to the propriety of returning a part of the 
 premium in fuch cafes : And there can be no doubt of 
 
 If a m.in's life the reafonublenefs of the thing. There has been an in- 
 be Mfurerf for ^^^^^ put where the meafure is by ///«?, which feems to 
 
 It montlis, with *^ •/ ' 
 
 an exception of nic to be Very ftrong, and appofite to the prefent cafe ; 
 kill himfeif the and that is, an infurance upon a man's life for twelve 
 
 rext day ; there j^onths : There can be no doubt but the rifle there is con- 
 
 fliall be no le- 
 
 RirB. ftituted by the meafure of time, and depends entirely 
 
 upon it ', for the infured would demand double the pre- 
 mium for tivo years that he would take to infure the fame 
 life for one year only. In fuch policies there is a general 
 exception againft fuicide. — If the perfon put an end to 
 his life the next day, or a month after, or at any other 
 period within the twelve months, there never was an idea 
 that part of the premium fliould be returned. A cafe of 
 general practice was put by Mr. Dunning, where the 
 words of the policy are, " At and from, provided the Oiip 
 
 " U\\i 
 12
 
 Ch. XV. § 2.] The Rifi not commenced, 667 
 
 " fails on or before the firft of Augujl {a) •," and \Ax.WallMe 'f >n irfinnce 
 confiders, in that cafe, that the whole policy would de- ;,^M;/l7tV.e flblp 
 pend upon the fliip's failing before the ftaied day. I do f-'i'sonorkefwe 
 not think fo. On the contrary, I think, with Mr. Dun- Whether ihit be 
 ning^ that cannot be. A lofs in port, before the day ap- ir"ow''«tire' 
 pointed for the fliip's departure, can never be coupled "^• 
 with a contingency after the day : But if 2 queftlon were 
 to arife about it, as at prefent advifed, I flaould incline to 
 be of opinion, that it would fall within the reafoning of 
 Stevenfon v. Smnv, and that there were two parts, or 
 contradts, of infurance, with difl;in£t conditions : The 
 frfi is, * I infurc the fliip in port, againft lofs before the 
 
 * firft of Auguji :' And^ fecond/y ; < If flie fliould not be loft 
 
 * in port, I infure her then, during her voyage, from the 
 ' firft of Augujlf till flie reach the port fpecified in the po- 
 
 * licy.' The lofs in port muft happen before the rifk upon 
 the voyage could commence j and, vice verfa, the rifk in 
 port muft ceafe the moment the rifk upon the voyage be- 
 gan [b) .—Let us fee then, what the agreement of the par- 
 ties is, in the prefent cafe. They might have infurcd from 
 two months to two months ; or in any lefs or greater 
 proportion, if they had thouglit proper fo to do : But uic 
 fa<^ is, that they have made no divifofi of time zt all"; but 
 the contraft entered into was one entire contract from the 
 19th of Avgiijl 1 776, to the 19th of Augitfl 1777; wliich is 
 the fame as if it had been exprefsly faid by the itifured ; * If 
 
 * you, the underwriter, will infure mc for 1 2 months, I 
 
 {a) It mad be owned that the cafe thus put has much of 
 fubtilty in it. One part of it feems repugnant to the other. 
 Mr. Wallace appears to have given it the beft anwer it would 
 admit of. Tne word provided makes the failing on or before 
 the firft. of AugUjfl a condition upon which the contradl is to take 
 cffecl ; and if this be fo, the word " a/" in the policy is quite 
 
 nugatory. {b) This extrajudicial opinion, feems to have been 
 
 rather haflily delivered, or perliaps, not very accurately reported. 
 See the cafe of Meyer v. Gregfon, fup. 658, which feemi to 
 be nearly the cafe put by Mr. Dunning, and in which Lord Mant- 
 fcld and the reft of the judges of the King's Btnth decided that 
 there Ihould be no return of premium. 
 
 *>riU
 
 ^68 ^f R^^^ir^^ € 'Premium [B. I. 
 
 * will 'give you an entire fum •, but I will not have any ap- 
 « pointment.' — The fiiip falls, and the underwriter runs 
 the rifk for tn.vo months ; no part of the premium, then, 
 fiiall be returned.— I cannot fay, if there had been a re- 
 capture before the expiration of the 1 2 months, that the 
 pohcy would not have revived." 
 Even if the pre- In the foregoing cafe, Lord Mansfield intimated an 
 TeTon^puferat Opinion that where the premium is entire, it is one proof 
 /' »*"^^' f<=>-' that the rifK is meant to be entire. In the following cafe, 
 i!J'« ill 'uraj the court of Kings Bench carried this idea ftill farther, 
 LmhTy ^nfur- 3"^ decided that if, upon an infurance for a year, a grofs 
 a'lf^e. premium be given ; but it is expreficd in the policy to be 
 
 atfo much per cent, ptr-monih -, this fhall be deemed only a 
 mode of computing the grofs fum, and does not make the 
 contraft a monthly infurance. 
 Lcr>2!ne V. Tom- An infurance was made on a fliip againd capture only, 
 [ij,pt, Doug. j^^ twelve months^ in i,he coafting trade. The plaintiff under- 
 — \ — ; — wrote 20oi. In the body of the policy it was dated, 
 %M-<^i rl/^rf * That the infurers confeffed themfelves paid the confider- 
 for 12 months, < ^^Jq^^ ^l^g jq \}^zm bv the infured, at and after the rate of 
 wi'hin two < 15 s. per cent, per month. At the bottom oppolite the 
 
 Bvonths. The pi^ii-jtiff 'g fubfcriptioD, was written, * Premium received 
 
 pi em! am is o r r •* 
 
 jc- cent, and « j^e 15th oi March I'l'i^^ and on the back was indorfed, 
 pohcv to bVa't * —Newcajlle I 5th March 1 779, Mr. J. G. ThoniUnfon, on 
 the ratr oF 15s. < j^jg £j^jp ChoUerford, himfelf mafler,/or twelve months^ in 
 
 i>c( month; yet . •' , , t • 7 y y. rn f' 
 
 I .,e (hall be no * the coadmg trade, at and between Leith and the IJle of 
 return. , Wighty beginning the 13th of March 1779, and ending 
 
 < the 1 2th or March 1780.' — The premium was, in fa6r, 
 not paid, it being the ufage in Newcaflle not to pay the 
 premiuins at the time of making infurances, but at cer- 
 tain timec afterwards. — The fhip v.-as kfi in a form within 
 the firfl. two months ; and the infured tendered the under- 
 writer 3I. as the premium for two months. — ^The under- 
 writer brought his a(n:ion againd the infured to recover 
 the whole premium of 1 81. The defendant pleaded the 
 tender, and paid the 3I. into court. — The court v/ere 
 clearly of opinion that the plaintiff was entitled to reco- 
 ver the v.'hole premium. — Lord Mansfield faid, — " This is 
 a mere que (lion of conftrudlion, on the face of the in- 
 (trumcnt, and therefore, parol evidence ouglit not to 
 
 have
 
 the XV. §3-] By Stipulation. ^c^ 
 
 have been admitted to explain it. It is an Infurance for 
 12 months, for one grofs fum of i81. They h:»e cal- 
 culated this fiini to be at the rate of 15s. per month. 
 But ^vhat wa's to be paid down ? Not 15s. for the fivft 
 month, and fo from month to month; but 18J. at once. 
 Two cafes have been mentioned. Ste-ih'iifon v. Siiciv (a), 
 vas decided on the ground of theje being two voyages. 
 T'yrie \. Fletcher {h) is^ireclly in point againll the defen- 
 <lant." He then repeated the two rules lai'.l down by him- 
 felf la this lafl cafe. 
 
 Sccl. III. 
 
 Upon the Verformance sffome Stipulation. 
 
 IT^is frequently agreed between the parties that, upon u'heie part ;st« 
 the happening of a certain event, or the performance of ^"^ reiumcd oa 
 
 *^5 . '' * pertoim^nce 
 
 fomc llripulation, the infured fhall return a part of the o^ lome Hipuia- 
 
 11 r. !• f'-'-^ .1 •r^i* tian, this fh:*!! 
 
 premivim j ana claules to this ericct arc then mierted m j_^ returned 
 the policy. If, in fuch cafe, the event do happen, or the """'g'' the in- 
 
 . ^ .■^ . f^ * J ,^ , j^^ obliged 
 
 thing flipulated be performed, the infuved fliall be entitled to \^>y a jj^iia 
 to the return of premium agreed upon. ""'• 
 
 In time of war it .is frequently flipulated that a part 
 of the premium (hall be .returned, " if the Jlnp fail with 
 " convey and arrive." Ajid upon the conftruclion of this 
 claufe, feveral important queftions have arifen. 
 
 If the ftipulation be for a mere failing with convoy, 
 witliout fpecifying to any particular place, a failing with 
 convoy from one port to another in the fame country, for 
 the purpofe of there joining convoy for the voyage, will 
 be a failing with convoy witliin tlie meaning of the ftipu- 
 lation. 
 
 Thus : —The flilp Ceres was infured, « At and from ^^m,^ y, jj,,^^ 
 < Oporto to Lynn^ with liberty to touch and ftay at any ^ ^'Z- ^ ^''•'• 
 
 * ports or places on the coad of Portugaly to join convoy, 
 
 * particularly at Li/bon ; at 13 guineas /"^Ti-.?;;/., to return ^^^ ,j'^i.n,I","D% 
 
 aut . to icfurn 61. 
 
 •». ' — — ■ ■ -' ■ " ~ -if ihc Mil win 
 
 conviiy TroT. th« 
 {a) Sui).6>C. ii) Sup.66z. CO.l)ofP../.v;,./,
 
 570 Of Return of Premium [B.I. 
 
 voy from (7/>9r/9 « 61. if die failed with convoy from the coaft of Portugal 
 
 g°enetifTend«! * and trrivcd.'— In an adion to recover this 61. per cent. 
 
 vous, inoider to of the premium, it appeared that, at the time the Certs 
 
 wl!h Th^ Vh"o" was to fail, there were many merchant (hips colleaed in 
 
 fleet. The ihips, j^ different ports of Portupaly and Lord St. Vincent^ the 
 
 in their pallage ^ <=> er a r 
 
 from Oporto to commander of that ftation, hemg unable to afford ieparate 
 
 difcTfed^'i'i^ convoys for Etiglandy from each port in Portugaly fent 
 
 (hip iniured ^ cuttcr and a Hoop to fetch the trade from Oporto to 
 
 WandarrTes: Lijhoti, wherc they were to lie in the bay of Doyrasy with- 
 
 —This is a fail- entering the port of Li/botiy to avoid the Lijbon duties. 
 
 wig with con- O * •> •jrrt.l 
 
 roy, fo as to en- from that placc a convoy vv'as appomted for the whole 
 la't'hJ'ftip^aled trade to England. The Oporto fleet in proceeding to Lijbon, 
 leturn. being difperfed, loft the convoy, and the Cerest then 
 
 judging it for the beft, ran for England^ and arrived. — 
 It was contended on the part of t\\e defendant, that the 
 Ceres never left the coaft of Portugal with convoy. — Lord 
 Eldon, who tried the caufe, told the jury that, as the 
 Oporto trade had put themfelves under the convoy of the 
 cutter and floop which formed a part of the aggregate 
 convoy for England^ they had deprived themfelves of all 
 power of afting for themfelves, and had therefore de- 
 parted with convoy from the coaft of Portugal. He added, 
 tfeat the liberty given by the policy to touch at other portJ 
 on the coaft of Portugal^ did not vary the inference of 
 her being under convoy for England from the moment 
 fhe received failing inftruftions ; and from that time the 
 liberty fo given was at an end. The jury, under this di- 
 reflion, found a verdicl for the plaintiff. — Upon a mo- 
 tion to fet this verdi6l afide, and enter a nonfuit, the 
 court were clearly of opinion that the event had happened 
 on which the plaintiff's title to a return of premium was 
 ' to attach, and therefore that the verdicl was right. — 
 Lord Eldon faid, — " It being unknown in England from 
 what port or coaft of Portugal the convoy would fail, the 
 claufe for a return of premium was to be adapted to the 
 circumftances of the cafe. The departure with convoy 
 might be from Oporto, or it might be from fome other 
 place. It became neceffary, therefore, to introduce fome 
 expreffion, which extended to fomethlng more than a 
 mere departure from Oporto. The fair interpretation of 
 the agreemeiit is, that the infured fliall have tlje benefit 
 
 of
 
 Ch. XV. § 3.] By Stipulation, £y, 
 
 cf the policy, though the fliip fhould fail from Oporf 
 •without convoy ; but that if fhe failed from Oporto, 
 which is on the coaft of Portttgal, with convoy, th«n there 
 Ihould be a return of premium." 
 
 Upon the effetl of the word *^ arrives y* feveral cafes The word -irr.^n 
 have been determined. In the firft of thcfc, it was the///., °e"vf n 11 
 holden that this word relates to the arrival of the fhip. ^ P"''*-y »« 
 
 ■' goodi. 
 
 and not to the arrival of the goods on board, even where 
 the infurance is on the goods only. 
 
 Thus : — An infurance was made, — * At and from any Smtnd v. j«-* 
 
 * port or ports in Grenada to Lo/uhriy at 18 guineas /^r "^'^^f ^'>"e- ^Si' 
 
 * ceut. to return 81. per cent, if fails from any of the f'FeJl Goodf aie in- 
 « India iflands, with convoy for the voyage, and arrives.' ^^^Jy^^2o?It' 
 At the bottom of the policy there was written a decla- ^t iS^uineas/fr 
 ration that it was on fugars, valued at 20I. per hogihead. "%\^ puJc»^!^{ 
 The (hip failed with convoy wiihin the time limited, hav- '' f-"*''* with con- 
 ing 51 hogiheads of fugars on board. She arrived fafe in <« rives."— The' 
 the Downs, where the convoy left her as ufual. She ^;''^*' °[ «ho 
 
 ' ' J"'p i« what IS 
 
 afterwards ftruck on a fand bank near Margate, and 1 1 of meant, and the 
 the 51 calks of fugav were waflied overboard, and the ed w.'th"co^nvoyi 
 rell damaged. The fhip was afterwards got off, and ar- '^ic iniured it 
 
 , r r , TT^y r r y entitled to a rc- 
 
 rived fafe in the port of London, The fugars faved were turn of 81. fir 
 carried to London in other vefiels, %iid the 40 hogiheads "^''/..^^^.J^^^JiX 
 beinT fold, produced ^40!. inftead of 800I. their valua- itandmganypar- 
 tion m the policy. An action was brought agauut the g.^ds. 
 underwriters for a return of premium. — The defendant 
 paid into court 81. per cent, on 34oh The plaintiffs in- 
 filled that they were entitled to have 81. per cent. 
 returned on the valued price of the whole 5 1 hogdieads- 
 
 At tlic trial, before Lord Mansfitld^ the plaintiffs had 
 
 a terdicl tor their whole demand. — Upon a motion 
 for a new trial, the principal queltion was upon the cffcd 
 of the word " arrives." — For the plaintiff it was infilled 
 tliat this word related only to the arrival of the /hip i 
 that, in policies of this fort, the intention is, that the 
 underwriters (hall take the war rifk upon then)felves ; 
 but that, if the veffel be protected by convoy from t/jjt 
 rijhy and a6lually arrive, they flv.ill then return as nmeh 
 of the premium as was neceilUry to cover it. — On the 
 other fide, it was contended that, as the words of ih: 
 policy mull be applied lo the fubject matter of tlio infu- 
 rance.
 
 6/2 
 
 CJ Return of Premium 
 
 [B.l. 
 
 flow the fiipiah- 
 Tton th.it a p;irl of 
 the premium 
 Ihillbe returned, 
 if the fliip fail 
 with convoy, 
 ■inuft be under- 
 wood. 
 
 The words " and 
 '• arrivis" refer 
 tothe_/5/'/), not to 
 the goodi in- 
 jured. 
 
 ratice, wlaieh in this cafe was on the goods^ not on the flrip, 
 the return of premium could, at moft, be only on the valiie 
 of the fugars which aClually came to London ; whereas, 
 if the defendant muft pay the valued amount of th'e 
 fugars loft, and the difference between the valued price 
 and tlie actual produce of the fugars faved, and alfo re- 
 turn 81. per cent, upon the whole, the inifared would be 
 confiderable gainers by the lofs. — The court determined 
 that the arrival of thtjlnp was what wa;s meant by the po- 
 licy ; and that the plaintiff" was entitled to a retutn of full 
 8\. per cent, on the fura infurcd, notwithftanding the par- 
 tial lofs on the goods.— Lord Mans/ield, after obferving 
 how very inattentive thofe who introduce additional claufes 
 into policies are to their import, faid, — " I do not doubt,, 
 however, how we are to conilrue this policy. Dangers 
 of the fea are the fame in peace and war : But war in- 
 troduces hazards of another fort, depending on a variety 
 of clrcumftances ; fome known, others not, for which 
 an additional premium mufl be paid. Thofe hazards 
 are diminifhed by the prote£lIon of convoy j and if the 
 infured will warrant a departure with convey, there is a 
 diminution of the additional premium. If the infured 
 will not warrant a departure with convoy, he pays the 
 full premium ; and in that cafe, the underwriter fays : 
 « If it turn out that the Ihip do depart wilh convoy, 
 « 1 will return part of the premium." But a fhip may 
 fail with convoy, and be feparated from it by a ftorm^ 
 or other accident, in -a day or two, and lofe its protec- 
 tion. On a warranty to fail with convoy, that would not 
 be a breach of the condition : But, to guard againft that, 
 the infured adds, in policies of the prefent fort ; *' The 
 " Ihip muft not only fail with convoy, but ftie muit arrive 
 _ « to entitle you to the return." The v/ords, " a/>d ar- 
 *< rives*' do not mean that the fiiip fliall arrive in the com- 
 pany of the convoy ; but only that (lie herfelf fliall arrive. 
 If flie do, that fliews, either that fiie had convoy the 
 whole way, or did not want it. But, in the ftipula- 
 tion for the return of premium, no regard is had by the 
 parties to the condition of the goods, on the arrival of 
 the fliip. The conftru£lion contended for by the de- 
 fendant is adding a comment longer than the text. If it had 
 
 been
 
 Ch* XV. § 3.] By Stipulation, Cy^ 
 
 been meani. that no return (hould be made unlefs all the 
 «f goods arrive fafe, they would have faid ; " If the (hip 
 nrrive " luith all the goods ; or, fafe/y tuith all the goods." 
 The total or partial lofs of the goods was the fubjecl of 
 the indemnityy and muft be paid for by the underwriter. 
 But as to the return of the additional premium ; whe- 
 ther the goods arrive fafe or not, makes no part of tlie 
 queftion. The fmgle principle which governs is, that, 
 in the events that have happened, the war rifk has been 
 rated too high." 
 
 So, where the freight of the flilp Jachfon was infured, ^gu;i,tr and 
 
 * At and from Jamaica to London^ warranted to fail on °^''"V- ^''^' 
 
 * or before the 26th of Juh 1 796, with convoy for the 
 
 _' . The infuicr on 
 
 * voyage, at a premnim of lo gunieas/»fr cent, to return f,e,ghr agrees to 
 « 2I. per cent, if fhe failed on or before the I ft of Juh ff'"'" P^'t °f 
 
 ■* _ y/ -f the premium, 
 
 * 1796, and arrived.' — Afterwards, by a memorandum " if the rhip 
 indorfed on the policy, on the 15th oi Augujl I'j^S, and ^,']'' ]|^'V' „^!;'"* 
 figned by the underwriters, it was agreed, in confider- '■'•w.'."— The 
 ation of 10 gumeas per cent, additional premium, that failed with con- 
 the warranty of failing with convoy fliould be annulled, voy and arnved, 
 and the defendant undertook to return io\. per cent, huve the rcum, 
 « if the JJjip failed ivith convoy and arrived." The fhip 'J^";;!'' [^^.^^^ 
 
 failed from Jamaica on the 26th of Jid^y with convoy, an«l recninured, 
 
 , • , . 1 1 1 1 the uridciwiiteri 
 
 but feparated in bad weather, and was captured on the were ohiiged t» 
 26tli of Ocloher^ recaptured on tlie 5th of November ^ and ^^^ falvag*. 
 carried into Corh^ where (he was delivered up to the own- 
 ers, on paying 9I. 14s. 7d. per cent, for falvage. She 
 afterwards arrived at the port of London with her cargo. 
 In an adlion on the policy, with a count for a return of 
 premium, the defendant paid into court ic;l. 9s. 2d. tlie 
 amount of the falvage on 300I. his fubfcription. — The 
 plaintiffs obtained a verdicl for the premium, and, upon 
 a motion to fet it afide, the court determined that, accord- 
 ing to the true conftrutlion of the memorandum, tlic 
 infured was entitled to the return of premium there 
 ftipulated. — Lord lOnyon faid, — " I agree with the defen- 
 dant's counfel, that every arrival of tlie fliip at her port 
 of deftination, would not be an arrival within the fair 
 conftru£lion of the memorandum ; fuch, for inftancc, 
 as an arrival in the poflTeflion of an enemy at a neutral 
 port -, or an arrival at her port in England^ as the pro- 
 VOL. II. o P<;rty
 
 €74 Of Return of Premiuni. [B. I. 
 
 petty of other perfons after a capture. But, in order to 
 fatjsfy the memorandum, it fhould be an arrival at the 
 tleftined port, in the coitrfe of the vc^age ; and, in this cifi?, 
 the fhip did arrive at tlie port of London, in the courfe 
 of her va}'agp. It is now too late to controvert the 
 authority of Haviiltci) v. Aletidez (i?), even if we were 
 difpofed fo to do, which I am not, where it was holden 
 , that though the infured may abandon on hearing of a 
 
 capture, yet if they do not abandon, and the fhip be 
 afterwards recapl-ired, it muft be confidered as if fhe 
 had never beep out of the poircfhon of the owners. It 
 13 1 8 years fince the cafe of Slmond v. Boydell {b) v>'?s 
 decided. That cafe mull be well known in the com- 
 mercial world 5 and if the parties in this cafe had in- 
 tended to make an agreement different from that which 
 the words ufed in this memorandum import, they would 
 have added,- after " arrived" the M'ords " f^f^'hf^^om the 
 ^' efiewy" or fome others to that effect. But the words 
 here ufed are not equivocal, and we ought not to depart 
 from them. It would be attended with great mifchief 
 and inconvenience if, in conflruing contra6l:5 of this 
 kind, we were not to decide according to the woMs ufed 
 by the contra£l:ing parties. On the grammatic. i con° 
 ilru£tion of the words, which is the fafeft rule to go by, 
 I am of opinion that the verdicl ouglit not to be fet afide." 
 So, if the fliip fail with convoy and arrive, this wiM 
 entitle the infured to iht flipulated return of premium, 
 though the goods infured be afterwards lo{^, and the 
 underwriters be obliged to pay a total lofjr. 
 Hir»ca/Iev.}^a' Thus : Goods wcrc infurcd oh board the Marquis af 
 
 nvorth, r.efore ^ ., f -r , t^ ■ • • r 
 
 ^n J. Manxfu'hii Latifdoiuti ixoxxi Londcfi to Uomifiica, at a premmm oi 
 C. J. at G. H, g gruineas per cent, to return 4I. per cent. " if fails -with 
 
 26th ttbiuary o -T ^ -f ^ j j 
 
 1806. *< convo"^ and arrives.^' — The. fhip failed with convoy, and 
 
 The fhip Tails anivcd on the 6th of Fehrimn 1S05, at the port rf AV- 
 with convoy and /.^^^ j^ X)ominicay and began unloading, and continued ti2l 
 
 «i rives, but the -' * . 
 
 ^•ud. infurtd arc the 2.2d of February, when a French fleet arrived, and, 
 tin Toft'-— The Jif^'Ongft others, captured the Marquis cf Lanfhivn, with 
 infured is entU the goods infurcd on board. — In an a6lion onthe policy', 
 
 l!cd to a return 
 
 of p^erT!iunl, a'i . -,^ . 
 
 Avell as tu a t«;ai 
 
 ''''• (ij)Sup.r/2- — (^) Sup. 67 1. 
 
 thsi
 
 th. XV. § J.] By Snpu!atwn\ . ^^ ' 
 
 t^ne plaii-.tiff claimed not only a total lofs by the captuifj 
 but alfo 4I. per cent, return of premium, the Ihip having 
 fn-'ed with convoy and arrived.— Sir James Mcf.^dds 
 • , J. who tried the caufe, was at firft of opinion that the 
 the plaintifFwas not entitled to any return of premium ; but 
 the Tihovtcz^QoiSimondy.Boydell (^7) being cited, he yielded 
 to the authority of it, and directed the jury to give the 
 plaintiff the 4I. per ce^t. return of premium, together 
 with the total lofs. 
 
 If It be agreed to return different portions of the pre- tu , ,, . 
 
 „ • • r 1 <i • - ., . , * The words "«if/y 
 
 mmn m cafe the Jhip lad - ith convoy for different por- ""'--"•' mea., 
 
 tions of the voyage, and a, ive ; this means an arrival at Z''l'"1,u' "" 
 
 the iinp s ultnnate port of dedination. deftination. 
 
 As where a fhip was infured ' At and from Lijlon to. ^'it^ 4 flf" 
 
 « Cadiz., and at and from ihence to FlupAng, at a pre- 3';<i- ' "^ 
 
 *mium of 20 guineas percent, to- return '^\. per cent, if Poixy on a ftip 
 
 ' the fhip failed from Cadi-z with convoy for England, and ^'°"' '-'^''" '" 
 
 t^i. , r ^ ' t> f C'idiz, and from 
 
 21. per cent, more for convoy from England to Flujl}mg ; thence to i-/;.^'*- 
 « or lol. percent, if with convoy for the voyage, and ar^ S^" 'L'"o 
 * rive:: — The (hip having failed from Lijhon to Ll/J/z, ^""•■" ^A for 
 Tailed from thence under convoy for England a^;d ar- "duZ ^zTg^n}, 
 rived; but was there feizcd and taken as prize, in an ^onvo^ Zm ^"' 
 action upon the policy, one queftion was, whether the ^"g'-^'"' fo 
 infured was entitled to a .return of 81. per cent, the wi^.-rh"c''nnp 
 fhip haying failed with ccnvoy from Cadiz to England^ ^Z^ ^nX- 
 and arrived there .? — Upon this queflion the court deter- i""'^> ^'"'f' ^* 
 mined that no return of premium was demaildable within The'^Infuf^r i. 
 the meaning of the policy, the fhip never havinj! ar- ""' ^"'i'l^^J/o » 
 
 rived at l<lnjhingy her ultnnate port of deftination '^'"f- 'he fhip 
 
 The reafon given for ths decifion was, that the words S'a'w^'-^: 
 ''■and arrives" annex a condition which over-rides and 
 governs equally all the feveral ftipulations for a return of 
 premium, in the events of a failing with convoy for the 
 different parts and fubdivifions of the voyage ; and that, 
 as the whole lol. per cent, is made returnable upon a 
 failing with convoy for each part of th^ -oyage, r.nd ar- . 
 riving at FluJlAngs there could be no reafon why the 81. 
 and the 2I. per cent, fhould be made refpeaively return- 
 able on account of the mere failing with convoy for tlic 
 
 '^-^ — ^ • • — »——.*••.*___ , ^ 
 
 {a) Sup, 671. 
 
 • ^' rcfpc(fllvc
 
 Cy$ Of Return of Premium* [B. I. 
 
 refpe£llve parts of the voyage, independently of the fame 
 event of ultimate arrival -, and efpecially when the under- 
 writer could derive no benefit from fuch partial convoy, 
 but would have a total lofs to pay. 
 If, before the If it be ftipulatcd that there fhail be a return of part of 
 (hip can fail j.j^g premium for failing with convoy and arrival, and, in 
 
 with convoy, f^ r i i i r r . .i. 
 
 the underwriters confcqucnce of the breach of fome warranty, or the non- 
 S'c inS^iha'ii performance of fome ftipulation, or of a deviation, the un- 
 \t entitled to a derwriters be difcharged before the fhip can fail with con- 
 «ujia or - ^^^^ ^^^ infured fhall be entitled to the ftipulated return 
 of premium ;becaufe the difcharge of the underwriters is, to 
 them, equivalent to a failing with convoyand arrival. — As 
 where a fhip was infured at and from Jamaica to Liverpool^ 
 warranted to fail on or before the firft oi Augti/iy at a pre- 
 mium of 20 guineas per cent, to return 8/. per cent, if (he 
 failed with convoy. The fliip did not fail till Septetriber, 
 and in an action for a return of premium, it was admitted 
 that the infured was entitled to a return of $1. per cent, for 
 convoy (a) . 
 
 Sea. IV. 
 
 Of the Dedudion of one-half per Cent, upon a Return 
 of Premiu??u 
 
 AS the infurer can never, by his own aft, difcharge 
 hlmfelf from the contra6l, it feems but reafonable that, 
 where the infured thinks proper to put a flop to the 
 adventure, and prevent the rifk from ever commencing, 
 he Ihould make fome compenfation to the infurer for his 
 trouble and difappointment ; it is therefore the general 
 cuftom in all the maritime countries of Europe, to allow 
 him to retain onc~hz\i per cent. {b). — This the French de- 
 nominate droit defignature.^ Pothier (c) thinks it is given to 
 compenfate the infurer for the lofs he fuflains by the non- 
 
 (a) Meyer v. Grc^fan, fup. 65S.---— (i) Molloy, b. 2 c. 7, 
 
 § la. (c) h. t,' n. 181. 
 
 performanc«
 
 Ch. XV. § 4."] Half per Cent, deduded, 677 
 
 performance of the contrail on the part of the infured; 
 Emtrigon [a) fays, it is for his trouble in figning the policy, 
 and making the proper entry in his books ; and this is the 
 reafon given in Ls Guidon (b). 
 
 It is allowed to the infurer where the contra£l is void 
 for fome radical defect, provided this were unknown to 
 him when he entered into the^contra£l: (c). But if he were 
 informed of the fault, or niuft have known it, before he 
 fubfcribed the policy ; as if he were to infure a fhip or 
 goods, when he knew of their fafe arrival, or feamen's 
 wages, or contraban.i goods, knowing them to be fuch, 
 he could have no claim to this allowance {d). 
 
 Pothier holds that if the contraft become void, not by 
 the Vi£t of the infured, but by fome caufe which he could 
 net prevent or control, the infurer fhall not be entitled 
 to the \\z\i per cent {e). — Rmerigon^ on the contrary, main- 
 tair.s that in all cafes where the policy becomes void, 
 without any fraud on the part of the infurer, he {hall 
 have this allowance {f). 
 
 {d) Tom. 2, p. 168. {h) Ch.2, art. 16. {c) Ord. of 
 
 Antiverpi art. 14, 2 Mag. 27. {d) Val'in on art. 10, 16, 
 
 I7,h. t. Pothier, h. t. n. 183, Emerig. torn. 2, p. 169. — — 
 
 {(?) Pothier^ h. t. n. 181. (/) Emerig. torn, l, p. 169. 
 
 Vid. Le Guidon, ch. 2, art. 16, ord. of Amjl. art. 24, vrd. of 
 Anfwerp art. 16. 2 Mag. 27, 28. 
 
 o 3 CHAP.
 
 ^yS ^ • 0f the Proceedings. [J^'h 
 
 CHAP. XVI. 
 
 Of the Proceedings in Actions on Pclicies of 
 hfurance. 
 
 IN treating of a£lions on policies of infurance we wili 
 inquire, 
 
 I. In what courts they may be brought ; 
 
 II. Of the declaration ; 
 
 III. Of the plea, and bringing money into court ; 
 
 IV. Of the confolidafton rule ; 
 V. Of the trial' ;. 
 
 Vh Of the recovery back oflojesy improperly demandech 
 
 Sea. I. 
 
 In what Courti Anions on Policies of Infurance 
 may be brought. 
 
 Tre courts of Infurancc being a marine contra6l, the law which re- 
 commoi) law gulates it, is confidered in moil of the commercial dates 
 
 Jiave tlie fole '^ 
 
 jurifdiaiun in of Europty as a branch of marine law, and therefore, where 
 no commercial tribunal is. eftablifhed, quellions arifing 
 upon this contradl, generally belong to the jurifdi6lion 
 of the courts of admiralty {a). In Scotland this is, ii; 
 ^the firll inftaRCCj a/ubje£l: of admiralty jurifdidlion. But 5 
 do not find that in England courts of admiralty have ever 
 had jurifdi£lions in queftions of infurance [b). In a former 
 part of this work [c) Itookoccafion to obferve, that although 
 the modes of adminiflering jullice in our courts of com- 
 inon law, are fo well fuited to the inveiligation and de-? 
 cifion of all commercial queftions •, yet, that it was not 
 ^ill towards the end of Queen Elizabeth's reign, that ac- 
 
 m utters of 
 iurance 
 
 (*) Vid. Emerig. t. 2, p. 319 {b) For this confultj, 
 
 Zcvtch on thejurifdidlionof the admiralty. (c) Sup. 24. 
 
 ". '■■■'.■■■-■ ■ ■ > ^^^^^
 
 Ch. XVI. §1.] Of the Proceedings. 5;^ 
 
 tions upon policies of infuraiice began to be brouglit In 
 the courts of WiJlminJ}er\ and that the legillature, even 
 then, conceiving that queftions upon this contrail ought 
 not to be litigated in thole courts, being governed bv cer- 
 tain rules unknown to ihe common law, erecled a court 
 for the fole purpofe of determining fucii caufes; but 
 that, though the powers of this court were greatly en- 
 larged in a fubfequent reign, yet it foon fell into difufe, 
 and the determination of all queftions arifing out of this 
 contracl has long fince exclufively belonged to the courts 
 of common law. 
 
 Courts of equity have no more jurifdiclion in cafes of Ctfiuti cf equicy 
 infurance than in ihofe of the pureft common law cog- iio'nMi° lilch'^"^ 
 nizance. They do, indeed, fometimes, in cafes of in- '■'*'"• 
 furance, as in all other cafes, interpofe their authority 
 for the advancemeiit of juftice, Th^y will compel a 
 truftee to permit his name lo be ufed by the cejlui que 
 trujl in an a£lion .on a policy of infurance («) j they will 
 ilTue commilTions for the examination of witnefles rcfiding 
 abroad, or out of the jurifdidlion of the court, and grant 
 injunctions to Itay the proceedings at law till the return 
 of fuch com millions {b) \ they will compel a party charged 
 with fraud to make a full difcovery upon oath of all cir- 
 cumftances, within his knov/Iedge, which may lead to a 
 difcovery of the real fafts of the cafe -, and deliver up, 
 or permit an infpeciion of, all papers and documents 
 which are material to the matters in difpute. But, ex- 
 cept in fuch cafes, it has been folemnly determined, that , 
 courts of equity have no jurlfdi£tion in queftions of in- 
 furance (c), 
 
 It may be proper, in this place, to mention, that t!ic The pirtifscsn. 
 authority of the fupreme courts oi ff^ejlmiii/lcris fo tran- "pV ,J ^fu'i!m*ic 
 fecndant, that nothing but the exprefs words of an a6l tiuir dittcicncci 
 
 - ,. , 1 • 1 I • • Ti-T to aibiir.iiion, 
 
 or parliament can take away or aoringe their jurildiction ouft the fupumc 
 
 ciiiirtii of ilie 
 . . , — . juiifdidion. 
 
 [n) Per Lord Hard'wid% i Atk. 4^7. {I) R. Ch'itty s. 
 
 Sthvin, 2 ^/i. 359. (<:) R. upon demurrer in Chaucory, 
 
 and confirmed in the Houfe of Lordii upon appeal, Dc Gljilijf 
 V, Lond. yfjfur. 3 Bro. Pari. Ca. 525 ; Per Lord Ilardwtckcy 
 1 Ath. 457. 
 
 Q 4 ^'^
 
 6B:> 
 
 Of the Proceedings. 
 
 [B.l. 
 
 in any cafe (a) ; and therefore a claufe inferted in a po- 
 licy, that, in cafe of any difpute between the parties, it 
 ihall be referred to arbitration, is merely nugatory •, for, 
 without it, the parties may, if they think proper, fubmit 
 their differences to arbitration ; and with it, neither can 
 compel the other to do fo ; for the agreement of the par- 
 ties cannot oufl the fupreme courts of their juriftUc- 
 tion (b). If indeed, an award be actually made, it will 
 be a bar to an aSion ; or if the parties have fubmitted 
 their differences to arbitration, and the reference be ftill 
 depending, that, perhaps, may alfo be a bar (t-j. 
 
 Sea. iL 
 
 Special ajjumpji/ 
 is the proper 
 /orm of ad ion 
 agninlt private 
 anderwrjters. 
 
 Heads of the 
 ^cUratioii. 
 
 Of the Declaraiicn. 
 
 THE common policy of infurancc; fubfcribed by pri- 
 vate underwriters, being only a written undertaking, not 
 under feal, is but a fimple con tract, and therefore, af- 
 fumpfit is the proper form of action to be brought upon 
 it, againll the underv/r iters. And as the aftlon in fuch 
 cafe is founded on a paiticular and exprefs undertaking, 
 made upon a confi deration upon which the law would 
 not, by neceflary implication, raifc the promife fpeci- 
 fied in jhe policy, tjie plaintiff mult declare fpecially 
 upon it. 
 
 In this, like every other cafe of fpecial ajfiwipftt^ the 
 contra6l muft be fet forth with precifion ; for any ma- 
 terial variance or omiffion will be fatal {d). — The de- 
 claration muft therefore recite the policy, which is al- 
 ledged to have been made according to the cuftom of 
 
 {a) 2 Haiok. P. C. 286, 2 Bur. 1042. {h) R. Ktlls. 
 
 J-loUijleri I JVilf. 129. The fame principle prevails in the French 
 courts. There the judges will permit queflions o^ fad or of 
 vfa^e to be referred to merchants ; but they will never fuflfer any 
 queflion of law to be fubmitted to the decifion of fueh per- 
 
 fons. Folhier, h. t. n. 201. (c) Per Cur. I Wilf. ;2p, 
 
 fedQ. (d) Vid. Gill), law ofevid. 193. 
 
 msrcha;its,)
 
 Ch. XVI. §2.] The Declaration. 68 1 
 
 merchants), with fuch warranties and ftipulations as may 
 have been introduced into it, with an averment that the 
 defendant had notice of the policy. — It then alledges, 
 that in confidcration that the plaintiff had paid his pre- 
 mium to the defendant, and had promifed to perform 
 all things on his part to be done, the defendant pro- 
 mifed to become an infurer for the fum fubfcribed by 
 him, upon the terms mentioned in the policy, and that 
 he would perform all things, on his part, as to that 
 fum J and alfo that he had fubfcribed the policy as an 
 infurer for that fum. That the infured was, at the 
 time of the infurance, and at the time of the lofs, 
 interefted in the fliip or goods infured, to the amount of 
 the value in the policy, if it be a valued one, or to the 
 amount of the fums fubfcribed, if it be an open one. 
 — It then ftates that the fliip, &cc. on a certain day was 
 in good fafety at her port of departure j that (lie failed 
 on the voyage infured within the time mentioned in the 
 policy, if a time be limited for her falling ; and with 
 convoy, if there be a warranty for her fo doing •,— • 
 and it likewife avers an exa£t compliance with every 
 other warranty exprefled in the policy. — The lofs is thea 
 Hated, which mult appear to have been occafioned by 
 fome of the perils infured againft ; and this muft be 
 {liewn with reafonable certainty, that the infurer may 
 have notice of the cafe againft which he is to prepare 
 his defence. — Notice to the defendant of this lofs, and 
 a demand of the fum fubfcribed by him are then averred: 
 And laftly, the breach of the contrail by the non-pay- 
 ment of the fum fubfcribed by the defendant. 
 
 This is the general outline of a declaration upon a 
 common policy, fubfcribed by individual underwriters in 
 an ordinary cafe. "When there are any particular cir- 
 cumftances, it behoves the plaintiff to be careful to adapt 
 his declaration to them. — It is ufual to add a count coimt for m.v 
 for money had and received by the defendant to the J^vJ'^^'' ^"'^ '^' 
 plaintiff's ufe, to enable the plaintiff to recover back liis 
 premium, if, under all the circumftances, he Ihould ap- 
 pear to be entitled only to that, or a part of it. 
 
 8 When
 
 582 Of the Proceedings [B.L 
 
 It Is not nccef- When a lofs has been adjufted, and the adjufbment 
 fpccia^i?.- upoi^^ figned by the infurcr in the ufual manner, the infurcd, 
 an adjuftrnent. jn Order to rccovcr this lofs, is not obliged to declare 
 
 The inlured may r • n i i- n ^ 
 
 give It in cvi- ipccially upon the adjuitment as upon a new contract •■, 
 dence I'pun the j^m j^^y declare upoH the policy in the ufual manner, 
 upon the policy, and give the adjuitment in evidence, •which, as we 
 formerly obferved {a), is equivalent to an admifilon, 
 though not conclufive, of all the facts necefTary to be 
 proved, to entitle the infured to recover upon the po- 
 licy (^). 
 Theaverme-itof Tht avertnent of iniereft in the infured may be either 
 
 intcreft may be i r • i tt i i r • n. 
 
 fither ^ner'ai or general or Ipecial. Under a general averment ot mtcrelt 
 T^*^'^'* the plaintifF may give in evidence any intereil he njay 
 
 have in the thing infured. But if the interefl be averred 
 fpecially,.it mull be proved as Hated. The general aver- 
 ment is, therefore, in molt cafes, to be preferred. Nor 
 can I fee any necelFity for a fpecial averment, unlefs the 
 queftion of intereft be the only matter in difpute between 
 the parties, and the plaintifF mean to put this upon the 
 record, in order to fave the expence of a trial (r). 
 ^ut the general Xlic general averment is fufhcient, not only as to th? 
 
 averment is fiif- .,,.,- i • r i i ir ^ 
 
 licient not only Utle OX Claim ot the iniured, b^t alio as tp the quantum 
 
 h ^^Ko'L to'thc ^ interejl. In aflumpfit the plaintifF recovers damages 
 
 quantum of in- according to the evidence, pro tanto \ and, therefore, if 
 
 he aver intereft generally, in the entire thing infured, he 
 
 fhall recover for the lofs in proportion to the quantum of 
 
 intereft he proves {d). 
 
 The declaration If in the poHcy the infurance be declared to be on a 
 
 tTe^ />«/e/^cff particular fpecies of goods, it is fufhcient in alledging 
 
 goods put on the loading thefe goods on board, to ftate " that divers 
 
 fcigard the fhip. , r j- c r \. i 
 
 goods, wares, and merchandizes oi luch a value were 
 
 (fl) Sup. cl).i4, § 3. (^) Per Lord Kenym,'^'^ N. P. Rodgers 
 
 V. May lor, fup. 634. (f ) See ihe cafe of Craivford v Hunter, 
 
 fup. 8j, v\here the intereft was fpecially averred, probably to 
 bring the queflion of intereft, which, in that cafe, was a merei 
 
 queftion of law, to an immediate decifion upon demurrer. - 
 
 (*/) R. R'lfng V. Buraetti infi 
 
 jQ^Je4
 
 Pirchard V, 
 
 yrhitm 
 
 'ire, at 
 
 N. F. 
 
 ^■Ker 
 
 Mich. 
 
 1786, 
 
 1 Bo( 
 
 & PuL 
 
 155. n. 
 
 
 Ch. XVI. § 2.j The Declaration. ^ ^83 
 
 loaded on board," &c. without fpecifying tlie particular 
 goods (a). 
 
 Ir' the infurance be made \n the name of an agent, "^ ',^« infaran« 
 the action may be brought cither in hig name or in the of m ncmt, it 
 name of the principal ; and in either cafe it mufi: be '""'* ^« -^ye^ 
 averred that the policy was made in the name of the 
 agent, as agent, for the ufe of the principal, who is 
 averred to have been interefted in the lliip or goods 
 infured, to the amount of the fum infured, or the value 
 in the policy. 
 
 In averring intereft in the infured, it is fufficient to 
 fliew it to have been in thofe who had the property 
 at the time of tnakifig the policy,— Thereiore, where it was 
 averred in the declaration, that P. Maingy and N. Maingyy 
 until, and at the time of making the policy^ and alfo at the j., avening the 
 time of thelofs, were interefled in the goods mentioned in micie(i,itisiufli- 
 
 ■. . ° cieiit to (hew it 
 
 jhe policy ; and that the faid mfurance was made for the to iiave been in 
 faid P. M.y and N. M., and for their account.— In the V^'"^'^ *''° '"'f 
 
 ' ' ihc property at 
 
 courfe of the caufe it appeared that a 'M.x. Le Mefurier the time of mak- 
 
 had, fmce the policy was efFe6lsd, become a partner witji ["^^.g, 
 
 P. Jil. and N. M, and had taken a fhare of all the 
 
 Itock, including the good! injured. Upon this it was urged 
 
 pn the part of the defendant, that the plaintiff fhould be 
 
 nonfuited ; for as Mr. Le M. was interefted in the goods 
 
 infured, the averment of intereft in the declaration was 
 
 difproved. — But Mr. Jufbice Buller^ who tried the caufe, 
 
 refufed to nonfuit the plaintiff, being of opinion that as 
 
 Mr. Le M. was not interefled at ihe time of making the 
 
 policy^ to which the averment 'of intereft related, the 
 
 plaintiff had brpught the aO:ion properly for thofe only 
 
 who were interefted at that time {b). 
 
 In this cafe it feems to have been taken for granted, 
 that if Mr. Le M. had been a part owner at the time 
 the policy was effedled, the plaintiff niuft have been 
 nonfuited. Yet the following cafe fliews that, even in 
 
 (a) R. on fpecial demurrer, De Symons v. Johnjlon, z New 
 
 Rep. 77. (i) And yet, the ufualform of the averment al-. 
 
 jegea that the infured was interefted not only at the time when 
 th*^ iufurancc was cffcft;.d, but alfo at the time of the lofs. 
 
 H
 
 iSs 
 
 Of the Proceedings, 
 
 [B.l. 
 
 Fage V. Fry, 
 2 Hof. and P«/. 
 240.— 3 E/j>, 
 Rep. T85. 
 
 A cargo is pur- 
 ciiafed by .4. 
 who parts whh 
 a fh:ire in it to 
 JB., and after- . 
 wauls infures it 
 on his own ac- 
 count; ^. nuy 
 aver iiitcieft in 
 himfelf .-ilonc. 
 The f::a of B.'s 
 having been let 
 into a (hare in 
 the adventure, 
 does not nega- 
 tive the aver- 
 ment,^, having 
 itill an intcreH 
 in the entirety 
 •f the cargo. 
 
 Whether it b« 
 neceffary to aver 
 intereft in a ciife 
 not prohibited 
 by the 15 G. 2. 
 C-37. 
 
 Craufurd V. 
 Jluntcr, 8 T. R. 
 13, fup. 109. 
 
 Commiflioncrs 
 for the care of 
 feicignfiiips and 
 
 ihat cafe, the averment would be fufficlently fupported by 
 the evidence. 
 
 A policy was efFefted on a cargo of corn by the 
 plaintiff, as agent to Hyde and Hobbs. — In the decla- 
 ration on this policy, it was averred that Hyde and 
 Hobbs were, * at the time of loading the faid corn on 
 * board the faid fhip, and at the time of fubfcribing the 
 < policy, and alfo at the time of the lofs,' intereftcd in the 
 faid corn, to the amount of oil the money injured thereon, 
 and that the faid policy fo made in the name of the 
 plaintiff, was made for the ufe, rilk, benefit, and account 
 of the faid Hyde and Hobbs. ~-'\5'^on the trial before Lord 
 Eldon, it appeared that after Hyde and Hobhs had pur- 
 chafed the corn on their own account, they, thinking 
 the engagement might be too large for them, offered 
 another houfe a fhare in the corn, which was accepted : 
 Hyde and Hobbs having informed the plaintiff of this, di- 
 re<Slcd him to efFe£l: the infurance on the cargo. Hyde 
 znA. Hobbs paid for the cargo, and invoices were made out 
 
 to them It was obje6led, on the part of the defendant, 
 
 that this evidence negatived the averment in the declara- 
 tion, that the whole intereft was in Hyde and Hobhs. — Lord 
 Eldony however, dire(9:ed a verdidt for the plaintiff, with 
 liberty to the defendant to move to enter a nonfuit. — . 
 Upon that motion, the court Were clearly of opinion that 
 Hyde and Hobbs had' an intereft in the entirety of the 
 cargo, fufficient to fupport the averment in the declaration, 
 notwithftanding other perfons had a beneficial intereft in 
 part, 
 
 It has been holden {a) that before the ftat. 19 G. II, 
 c. 37, infurances without Intereft were not illegal j and 
 that, before that a£t,, it was unneceffary to aver intereft in 
 the infured in any cafe whatever j and confequently that, 
 fince that aft, it is unneceffary to aver intereft in any cafe 
 not prohibited by it. 
 
 Therefore, where commiffioners, appointed under the 
 ftat. 35 G. III. c. 8. § 21. were authorized to take into 
 
 {a) Vid, fup. 109. 
 
 their
 
 Ch. SVI. § 2.] The Declaration. 685 
 
 their pofleffion and care all Dutch (hips and effefts brought iooi''.% feized by 
 into or detained in the ports of Great Britairiy and to dif- miure m tllcfr 
 pofe thereof accordinc; to fuch dlreftions as thcv might '^"'"^ "•'"'es, and 
 
 *^ o _ _ ; b derliirc on their 
 
 receive from the privy council, it was determined that own intercit. 
 
 thefe commiflloners might infure, in their own names, the 
 
 Ihips and efFecVs thus put under their care, while they 
 
 were on their paflage ta this country ; and that a count 
 
 ftating the nature of their truft, and averring an interefl 
 
 In them, as fuch commifTioners, was good. — In the fame 
 
 cafe it was alfo determined, that a count averring that 
 
 the {liips infured did not, at the time when the in- 
 
 furance was effe6led, beloiig to his Majejly cr any of his 
 
 Subjeclsy was likewlfe good, without any averment of 
 
 interefl {a). 
 
 (fl) The queftion in the above cafe of Craufurd v. Hunter 
 was, in another aftion on the fame policy, brought by writ of 
 error into the Exchequer Chamber, where, after feveral argu- 
 ments, the judgment of the King's Bench was affirmed, vid. 
 Lucena v. Craufurd, 3 Bof. and Pul. 75, where the arguments 
 of counfel, and of the judges are fully reported. — The caufe 
 was afterwards removed, by writ of error, to the Hevfe of I,ords, 
 where a number of queflions were propounded to the judges, 
 who, diflFering upon feveral of them, delivered their opinions 
 ferlatim. Lord Eldon, who diOTented from the judgment of the 
 King's Bench and Exchequer Chamber, took a mofl mafterly 
 and comprehenfive view of the whole fubje6l, and maintained his 
 opinion by arguments which will, I am perfuadedj have the 
 effeft of refloring the doftrine of infurable interefl to its origi- 
 nal and genuine principles, which, on feme occafions, fcem to 
 have been lofl fight of. The refult was, that a venire de novo 
 was awarded^ the caufe was again tried before Lord Ellen- 
 boroughy when a verdift was found for the plaintiffs upon the 
 fecond count of the declaration, which averred the interefl to 
 be in the King. — A bill of exceptions was tendered, which if 
 perfevered in will bring the cafe once more before the Exchequer 
 Chamber. — See a vei-y full report of the arguments in the Houfe 
 of Lords, 2 New Rep. 269. which, unfortunately, was not 
 publifiicd till after the fourth chapter of this imprefiion on infura- 
 tie interefl had been worked off. 
 
 This
 
 586 = D/ibe Proceedings, [B.t? 
 
 This point has Gnce, in the following cafe, beeii 
 
 brought to a folemn decifion. 
 
 Nantn x.Thomp. An infurance -was made, in the ufual form, on the {hip 
 
 lup. 41. ^ ^ Hoopi valued at .^1400, and goods on boardj at and from 
 
 '■ Elfmcnr to Ferrol^ Cadiz^ and Carthagena^ warranted to 
 
 A declaration on '' • r i r^i j i • 
 
 a policy oil a depart With convoy tor the voyage, ine declaration 
 foreign jhif need avciTed, that the plaintiff gave the order to the agent em- 
 
 not aver any m- ■ ^ «-' • ,;_'-' 
 
 tereft in the in- ployed to efFeft the policy, * that the faid fhip was not, at 
 wo^rdi ^^^iDlrrp * ^^^ time of effe61:ing the policy, or at any other time, 
 r "" ''"'<^'-'/ '' « the property of his Majefiy or any cf his fubj eels' It then 
 Iblicj-. ftated, that the fliip, in the courfe of her voyage, arrived 
 
 and aticliored in Plymouth Bound, and was there atrefted 
 and detained by order of his Majefty, and afterwards con- 
 demned as lawful prize; whereby fhe became wholly loflto 
 the plaintiff, and to every other perfon to •whom the fame 
 did or might appertain. To this there was a demurrer, 
 aiiigning for caufes, that it was not alleged for whofe ufe, 
 or on whofe account, the policy was made, nor to whom 
 the fhip belonged ; nor ivhat perjon or ierjons ivere inte- 
 rejled in the faid infurance j nor that the plaintiff, or any 
 other perfofl, had any inter efl or property in the Jhip.—^ 
 In the argument it was contended, on the part of the 
 defendant, that though it is competent to a foreigner, 
 notwithftanding the flat. 19 G.ll. c. 37, to lay a wager 
 on the event of a (hip's fafe arrival* without any intereft 
 in the property \ yet, that a policy, in the terms and 
 principle of it, Unlefs otherwife exprefTed, imported a 
 contraB of indemnity, and therefore nccefTai-ily fuppofed 
 an intereft in the party for whofe benefit it was made. 
 That if that were the underflanding of the parties, fuch 
 intereft ought to be averred, otherwife it w&uld be a de- 
 ception upon the underwriter, who woiild, of courfe, 
 demand a higher premium, bccaufe, upon a mere wager 
 policy, every lofs muft be total ; for in fuch cafe there 
 could be no abandonment or benefit of falvage. And, 
 moreover, that the infured in fuch cafe has no intereft 
 In the prefervation of the fhip, or her ability to perform 
 the voyage, but is rather interefted in infuring the moft 
 defperate rifles ; againft which the Underwriter ought to 
 iiav£ due warning, by the ulual words^ *' intereft or na 
 
 iraerefti'i
 
 Ch. XVI. § 2.] The Declaration. 687 
 
 interej}.^' — But the court, oil the authority of the above 
 mentioned cafe of Cranfurd v. Hunter^ detcrmuied that, 
 though thefe words were not in the policy, the dcehira- 
 tion need not aver interefl in the infured {a). 
 
 If a policy be made in the names of two perfons, one ^^"^"^ "/ '"'=^"»* 
 
 , . ^. infureds may 
 
 01 them may brmg an a6tion on it alone, and aver the aionc fuc, and 
 
 fole interefl in himfelf ; and proof of this will entitle him ^'in In^Ccir 
 to recover ih). 
 
 With refpeifl to the averment of the lofs. — As this faft is The Ufs muff bit 
 
 r^ ^t • • 1 ■ ,r ■ ■ ^ r> avrrred to li:iv« 
 
 otten the prmcipai matter m difputc, it is neceflary to ftate ^riien from th« 
 the true caufc of it with reafonable certainty, that it may ''"* '^•'"'*» *"^ 
 
 •' 'no other. 
 
 appear to have been a lofs within the policy, and for which 
 the defendant is liable ; and alfo, that he may have notice 
 of the cafe which he is called upon to anfwcr. — There- 
 fore, if a fliip be dcilroyed by the worms which infefl 
 the rivers in hot climates, the infured cannot declare 
 upon a lofs by the perils of the fea (f). So, if a number 
 of flavcs perifh for want of fufEcient and proper food, 
 occafioned by extraordinary delay in the vpyage* arifing 
 from tenipeftuous weather j the infured cannot declare 
 on this as a lofs by the perils of the fea (d). So, if a 
 fliip be drii'en by llrefs of weather on an enemy's coaftj 
 and fhe be there captured, though not materially damaged ; 
 this mufl be averred as a lofs by capturej and not by the 
 perils of the fea [e)^ 
 
 So, if part of the fhip's crew be taken away from their 
 employment, at a critical moment, by an irrefiftablij 
 force, and in confequence the fliip drive on fhore, the 
 injury, thus occafioned, is a lofs by the perils of the fepy 
 and mufl be fo averred in the declaration (f). 
 
 If) in a declaration upon a policy without intereft, 
 the lofs be averred to have been occafioned by capture^ 
 
 (a) Vid. 4 Jlo/I 400. Ktllner v. Le Mefurier. {h) Per /,f 
 
 £hncJ. at N.P. Marjhv. Robin/on, 4 Efp. Rep. 98,—^ 
 
 ic) R. Rhul V. Parr, i Efp. Rep. 444, fup. 492. (,/) R. 
 
 Tatham v. Hod^Jon^ 6 T. R. 6(^(3, fap. 491. [e) Per Lord" 
 
 Kenyon at N. P. Green v. Elmfle, Feakc Rep. 212. (/) K. 
 
 fh'l^fon V. Mtikoltn, 2 New Rep. 336, fup. 490, 
 
 4 ^ vrhQiif
 
 6SS 
 
 Of the Proceedings. 
 
 [B.I. 
 
 Kulf/t Kemp V. 
 P'igrie, I T. R. 
 394, flip. 130. 
 
 A fhip i'lfured, 
 interel* or no Vi- 
 tereft, is cap- 
 tured, but after- 
 wards fet at li- 
 berty in a con- 
 diiion to putfue 
 the vuyage in- 
 furcd; but in- 
 ilead of that, 
 f.iiU on a dif- 
 ferent voyage, 
 and is lofi : — 
 Thf infured can- 
 not recover as 
 for a I'jfs by cap- 
 ture. 
 
 Tvlien, in fa^, the fhip was releafed from the capture, 
 arid might have proceeded on her voyage ; the infured 
 cannot recover; for the fhip might have reached her 
 deflined port, which was the event infured. — Had it been 
 a policy upon intere/?, the infured might have abandoned, 
 and then the averment of a lofs by capture would have 
 been good. 
 
 Therefore, where goods were infured on board the fhip 
 Emanuel, at and from Falmouth to Marfeilles^ interejl or no 
 nterejly warranted a Danijh fhip. — In declaring on this 
 policy it was averred, that < Whilft the fhip was proceeding 
 in her voyage from Falmouth to Marfeilles, and before fhe 
 could arrive at Marfeilles, fhe M^as captured by the 
 Spaniards ; and thereby the faid fhip, and alfo the goods 
 and merchandizes on board her, were totally loft to the 
 plaintiffs.' — Upon the trial it appeared, that the fhip was 
 taken by a Spani/h privateer, and carried into Ceutoy where 
 flie was condemned, but, upon appeal, was afterwards 
 releafed, and in a condition to purfue her voyage ; but 
 inflead of proceeding to Marfeillesy which fhe might have 
 done, fhe firft failed to Malaga to refit, and from thence 
 (he went on a voyage to Bremeny and in that voyage 
 was loft. — It was objected, on the part of the de- 
 fendant, that the plaintiffs could not recover upon this 
 form of declaring, for a lofs by capture ; for though the 
 velfel was captured, yet having afterwards been reftored, 
 Ihe might have reached her deftined port, in which cafe 
 the underwriters would have been difcharged by the terms 
 of the memorandum ; that if this had been a policy upon 
 interejiy the averment that the fhip was loft by capture 
 would have been good ; becaufe, in that cafe, the infured 
 might have abandoned : But this being a wager policy, and 
 the event infured againft being the non-arrival of the fhip 
 at Marjeillesy the infured could not abandon (^).— Mr. 
 Juftice Bullery who tried the caufe, being of this opinion, 
 nonfuited the plaintiffs. — Upon a motion to fet afide thi» 
 
 (a) Vid. Fitz^trald^. Pole, 5 Bro. Pari. Ca. J31. fup.584. 
 
 nonfuit.
 
 Ch.XVI. § 2.] The Declaration 689 
 
 nonfult, it was contended, on the part of the plaintlfFs, that 
 the objedl of the voyage was defeated by the capture 5 
 that the moment the voyage was defeated, the infurers 
 became liable, and after that, it was immaterial what 
 courfe the fliip took.^ — But the court adopted the fame 
 opinion upon which Mr. Juftice Biiller had nonfuited the 
 plaintiffs, and held that this could not be averred to be a 
 iofs by capture ; becaufe, after the capture, the (hip might 
 ftill have proceeded to Marfeilles, which was the event 
 infured. 
 
 So, if a mob of rioters board a fliipj for the purpofe of mjlnt v. Iv3i 
 obligiag the captain to fell af cargo of corn at an inferior '"S'"'' 4 T. Ri 
 price, and in confequence of this boarding, the fliip be 436. 
 ftranded, and a quantity of the corn loft ; this is a Iofs by j^- niters board 
 Jlrandingy within the ufuai memorandum, and, in an a ihip and occa= 
 action on a pohcy on the corn, it mult be lo laid m tlie ,hg iofs cannot 
 declaration i nor could the infured recover in this cafe, ^" recovered on 
 
 a count Jci- dt- 
 
 i:pon a count for a Iofs by detention cf people ; becaufe this unthn of people, 
 mob did not confti^ute a people within the meaning of the °'>^^j^ \.j" only 
 policy: Neither could the infured recover for a Iofs by wpon a count for 
 
 . . . .a Iofs hyjlrand- 
 
 jpirates ; becaufe, this being a policy on corn^ the infurer - ing^ 
 Was liable for no partial Iofs, vmlefs it were a general 
 nveraget or the fhip '.vere ftVanded ; and this was not % 
 general average, becaufe the whole adventure Was never 
 in jeopardy ; for the perfons who took the corn intended 
 no injury to the (hip, or any part of the cargo but the 
 corn. 
 
 So where goods were infured on board a SpaniJIj Ihip, MattVie and 
 from N^tjau to Canjpeachy. — ^The (hip, having a licence ?2I^&>5.'jX 
 
 from the Brltipj governor at Ncjfau, failed for Cam- 
 
 peachj in the Spanijh niain ; and having arrived off that feiicd fn^^an at^ 
 port, made fienals for launches to conie cut, (as is ufual ^^'"P^ '" '"" 
 
 ^ \ ^ , . . them into ttiiS 
 
 in this contraband trade), into which the goods infured Spani/i main, 
 
 ^ r ^1 re-- n t 1 -* being contra- 
 
 were put, tor the purpole oi oenig run on ihore. In the band.— The in- 
 attempt the goods were leized by two Spani/h government ^^.^^ '^-""^de^'iare 
 brigs, — In an action on the policy, the declaration ftatedj as for a iofs by 
 
 * That, before the goods were difcharged or fafely YJui. ^ 
 
 * landed, they were, in a hoflile and forcible manner, 
 
 * fcized, captured, and carried away by perfons, then be-« 
 < ing at war with our lord the king, to tjie plaintiffs un- 
 
 voL. II' f * known,*
 
 ^9^ ^J'the Proceedings. [B. I. 
 
 * known.' — It was obje£led at the trial that this aver- 
 ment was not fupported by the evidence. But Lord 
 Ahanley, who tried the caufe, over-ruled the objection, 
 and the plaintiffs had a verdidl. — ^The court, however, 
 upon motion, fet the verdiiit afide. Mr.Jullice Chamhre 
 faid, he had no hefitation in faying, that, in his opinion, 
 the plaintiffs ought to have been nonfuited, becaufe the 
 evidence produced did not lupport the averment of lofs 
 In the declaration. 
 If a lofs happen 'pjjg caufe of the lofs muft be Hated according to the 
 of I He captjin's truth of the cafe. The defendant has a right to infift 
 Mrf-m'ij'e d'ecla- ^poi^ this, in ordcr that he may have an opportunity of 
 red upjn, as for demurring, or moving in arreft of judgment, if it be not 
 
 a lo(8 bv the pe- . . - i r i 
 
 jils ml the fea. fufficienlly averred. If, thererore, a lofs happen \\\ con- 
 
 fequence of the captain's miftaking his courfe; and, in the 
 
 declaration, it be alleged that it arofe from the perils of the 
 
 fea., contrary ivi/idsf and other misfortunes^ the plaintiff 
 
 caiinot recover. 
 
 Cregfftn v. Gil- Thus : In a declaration on a policy on f aires it was ftated, 
 
 £?. III. Farkbz. — * ihat, hy the. perils cj the J cay contrary luindSi currentSy 
 
 -^ '. , * and other misfortunes, the voyage was fo much retarded. 
 
 The caprain of a J ' . . 
 
 Have ihip mif- « that a fufficient quantity of water did not remain for the 
 vhereby' Tfiar- * fupport of the llaves and other people on board, and that 
 city of water en- < ^ certain number of the flaves perilljed for ivant ofnxiater.* 
 
 fues,and anum- • 1 i n ■ - • 1 
 
 beroF the Haves — UpoH the trial it appeared that the Ihip, bemg bound 
 JoarTto hve"' ^^^^ Guinea to Jamaica, had miffed the ifland, and that 
 the reft : It is the crew were reduced to great diflrefs for want of water ; 
 ftate^iii'thrdl- that the captain confultcd with the crew, and it was 
 ciaration that, by unanimouflv agi'eed upon, that fome of the flaves ihould 
 
 contrary luindi, J " ~ y_ n 1 1 
 
 turrerits, Sec , be thrown overboard,morder to preierve the reft ; and that, 
 the (hip was re- j^ • j^j^jg j-gfoiution was fonucd, there remained 
 
 tardea, and the 
 
 flaves perifhed jj^t onc day's fuU allowancc of water at two quarts per 
 for w-an: of wa- '_, , 1 • • 1 r 1 1 • ^ 
 
 «er, man (a). Tne jurv, UDOn tius evidcu<:e, tound a verditt 
 
 ' * for 
 
 (^^) It were impoffible to pafs over the mention of this, 
 tranfadlioii without fome fentiment of reprobation. Falfe rea- 
 foiiing has never been carried to the length of maiittaining that 
 liuman beings, however degraded their condition, could be juflf- 
 inably call isitu the iea, like fo many bales of goods, to lighten 
 
 a fhip
 
 Ch. XVI. §2.] The Declaration. ^oj 
 
 for the plaintiff, with 30I. a -head for every ilave thrown 
 overboard. — ^The court, upon motion, granted a new trial, 
 being of opinion, that the declaration did not ftate the 
 lofs according to the truth of the cafe, — Lord Mansfield 
 laid, — " This is a very uncommon cafe, and deferves 
 further confideration. There is great weight in the ob- 
 jection, that the lofs is ilated in the declaration to have 
 arifen from the perils of the Jea^ and that the currents, 
 &c. had made the fnip foul and leaky. Now, does it 
 appear by the evidence that the (hip was fonl or leaky ? 
 On the contrary, the lofs happened by miftaking Jamaica 
 for another place."— Mr, Juftice Buller faid,— « The 
 declaration does not, in any part of it, ftate the lofs 
 which has been the occafion of this demand ; and it 
 would be very mifchievous if we were to overturn this' 
 objeclion. Suppofe, for a moment, that the under- 
 writers, in fome cafes, are liable for the mifah of the 
 captain ; yet, if they are not liable in others, the nature of 
 the lofs muft be ftated in the declaration, that the de- 
 fendant may have an opportuniry of moving in arreft of. 
 judgment, if it be not iufliciently alleged. But it would 
 be impofiible for the defendant, in this cafe, to move 
 in arreft ef judgment ; for the facls of the cafe, as proved, 
 iare different from thofe ftated in the declaration. The 
 point of law in arreft of judgment cannot be argued from 
 the facts ftated on the record ; and the declaration in 
 this cafe ftates the lofs to have happened by the perils of 
 the fea." 
 
 a fhip in aftorrc.Every thing on board, however precious, ought 
 to be thrown overboarc foonei than the meaneft (lave. Some have 
 fuppofed that, in a cafe of extreme neceffity, a part of the crew 
 might be facrificed to fave the reft, and that the fate of the vic- 
 tim fhould be determined by lot equally among ft ail. But others, 
 upon jufter principles, maintain, that whoever, under pretence of 
 faving tlie (hip, fhould throw any human creature into the fea, 
 whether by lot or otherwife, is guilty of homicide; for no 
 man, in oider to fave his own life, has a right to take away the 
 hfe of another, who makes no attack on him. Vid. PuJJ'tnd. 
 Lb. 2. c. 6. % 3. ff. de reg, jur. 32. Cic. off. I. 3, c, 23.
 
 6<^t OfihePrc::edings. [B.I. 
 
 Eut the lofs need \^ ftatln? tlie cavife of the lofs, the beil way is to alledsrc^ 
 
 not he ftated in . f t • , , r i r a 
 
 toe veiy woids itj ^^s nearly as may be, m the words ci the policy ; As 
 
 ot the pohcy. •£ jj^^ j^j-g T^^ l^y larrntr'^y it ought regularly to be ftated to 
 
 have been occafioned " hy the hairatvy cf the majler and 
 
 *' ?}7anfiers." But it will be fufhcient if it be ftated in 
 
 words which import the fame thing. 
 
 }Cn!gJif V. Cam- Thus, v/hcre it was alledgedj that, perfrnudeni et fiegli" 
 
 Rcy. I lie, ; gentiam magtjiri^ nav'is pradiSfa deprejfa et fubmerfa fuitj et 
 
 ijti. 581. 8i\W. {ofalitur perdita et amlffa fuit, et mdl'w.s valoris devenit:-—' 
 
 230, (up. 443. ^ ^ JJ J ' 
 
 It was objected that this was not within the meaning of 
 
 that tiie \iit t^<2 word harratryy ai'Kl that the ai»;g:.iion fhould have 
 happened by been exprefs, th?t the fiiip was 'left bv the barratrv of 
 
 the Jraud and ■*■ iii ''- r 1 
 
 r.eeiigence of th>e the mafter ; and that, though barratry may ivc\-^ort frauds 
 
 fuiTicknVaiLsa- Y^^ '^^ ^^^^ ^^°^ import negleci.'—V)\xt the court were unani- 
 
 t:on olUrratrji. moufly of Opinion that there was no occafion to aver the 
 
 faft in the very ivords of the policy \ but if the fadl al- 
 
 ledged came within the meatiiug of the ivordsy it was fuf- 
 
 ficient {a). 
 
 ■^hcre faivagc is Where falvage is to be recovered it is not neceffary to 
 
 to be lecovisrcd, ,, r r t ■ t • r rr • n 
 
 k IS luiScient to declare tor ialvage, eo nomine. It is lumcient to itate 
 i^ate tne injuiy ^j^g acciclcnt or injury which occafioned that charge, 
 
 which occahon- n • r • ■ • 
 
 ed it. without ftating fpecially the particular circumftances 
 
 which led to it. 
 Carey v. King, Thus : — The plaintiff declared, * that the fliip 
 
 'J'ard^^^,' 'fpf'^^'g ^ leak and fimk in the river, whereby the gooda 
 
 * infured were fpoiled :' — ^The evidence was, that fome 
 of the goods were fpoiled, and fom.e faved ; and the quef- 
 tion was, whether the plaintiff might give in evidence 
 
 (a) The particular manner in which the lofs'in that cafe was 
 occafioned does not appear in afny of the printed reports of it. 
 But in a MS. note of the arguments o^ Stanima v. Brown, taken 
 by Mr. Ford, (cited by Lord Elhnlo;oxigh in EarJe v. Roivcroft^ 
 8 Ecjl 135-.) the cafe oi Knight v, Cambridge is cited to fhew 
 that " if the maflerfail out rf the port ivithout paying the port duties, 
 tuherehy the goods are forfeited, lofl, or fpoiled^' that ii barratry i 
 and Lord C J. Lee, in the fame cafe of Stamma v. Brown, 2 Sir. 
 1 174, compared it to the c.:fe oid^faiUng Gist of port, without pay- 
 ing the duties, whereby thejfjip was fubjeBsd to forfeiture, which, 
 ■fee faid, had been hclden to be barratry 5 probably alluding to 
 Knight V, Cambridge. 
 
 4 ths^
 
 Ch. XVI. § 1.3 The Declaration, 693 
 
 the expence of fahage^ that not being particularly laid 
 in the declaration as a breach of the policy. — Lord Hard- 
 nvicke, C. J. faid j— « I think it may be given in evi- 
 dence ; for the infurance is againft all accidents. The 
 accident laid in the declaration is, that the fliip funk in 
 the river j it goes on and fays, that, by reafon thereof, 
 the goods were fpoiled, which is the only fpecial da- 
 mage laid ; Yet it is but the common cafe of a declara- 
 tion that lays fpecial damage, when the plaintiff may 
 give evidence of any damage that is within the caufa 
 of action as laid ; and though it was objeded that fuch 
 3 breach of the policy fhould be laid, as that the infurer 
 may have notice to defend it •, it is fo in this cafe, for 
 they have laid the accident, which is fufncient." 
 
 The tv,'o infurance companies being corporations can Only debt or 
 
 , -,,,,,,. r \ T-1 • covenant willli? 
 
 do no aul but by deed under their common ieals. Ineir ^^ ,j,e policies 
 policies of infurance, therefor-^, being under fe?.l, no °f ^'^^ ''"'' i"^"* 
 
 r ' ' o ranee compa- 
 
 ^(Slion of ajfuntpfit will lie upon them, b't only debt or nies. 
 covenant. 
 
 By the flat. 6 G. I. f. 18. §4.;, each of the fe com pa- Tlie6 C.r.c.i?. 
 nies is direaed to provide fuch u flock of ready money ^rScda.ing",^ 
 as (hall be fufEcient to anfwer all juiT. demands upon debt, 
 their policies for any lofTes that may happen, and to pay 
 the fame from time to time, according to the tenor of 
 their policies : * And in cafe of refufal, the infured may 
 
 < bring his a6l!on of debt) or on the cafe («), bill, fuit, or 
 
 < inform.:tion of the money demanded, againll the cor- 
 
 * poration refufing to pay as aforefaid, in any of His Ma- 
 5 iefly's courts of record at fVeJiminper. — And in fuch 
 
 * a6lion the plaintiff may declare, " That the fame cor- 
 ** potation is indebted to him in the money fo demanded, an4 
 'I have not paid the fame according to thi-: aSf;'' and 
 
 < therei^pcn the plaintiff or plaintiffs fhall recover againfl 
 « the fam? corporation double damages befides full coft:^ 
 « of fuit/ 
 
 (a) This a£l muft have been drawn by fome perion veryl ittle 
 fliillcd in legal forms. An adtion oa the cafe 's here giveti o^ 
 their policies under fed \ and this is followed by a form oi de« 
 iclj.ring in dtht* 
 
 p 3 Th
 
 694 ^I ^^•'^ Proceedings, [B. 1, 
 
 This lad claufe abfurdly fubjeded tliefe companies to. 
 (double damages, bcfides coils, in afclions which they 
 could not prevent or avoid, for want of a provifion in 
 the adl to obHge the infurcd to make difcovery of his lofi 
 before a£lion brought. This being found to encourage 
 fuits for the fake of double damages was foon repealed by 
 a claufe in 2, fubfequent ftatute. Thefe corporations are 
 now, therefore, only liable to pay their lofles in the fame 
 manner as private underwriters {a). 
 The venue may If the venue in the declaration be laid in a wrong 
 be changed if ^>ountv, the court, upon motion, w-ill change it to the 
 
 ■wrong laid, uii- ^ 1', ' X ' o _ 
 
 leis ii be by county where the policy was made {b)y unlefs it be by 
 °' defd-y in which cafe the court will not change the venue, 
 
 without fome fpecial ground being laid to induce them to 
 
 depart from the general rule (c). 
 The premium If the infured feek only to recover back his premium; 
 
 "d'*^ba^cV'ii°'au'^" the proper form of adion is mdebitatus- ajfuvipfity for 
 adion ff>r ino- moncy had and received by the defendant to the ufe of 
 
 nev hac and re- i , . ■ ,« ' ' 
 
 cened, the plamtitf. 
 
 Sea. IIL, 
 Of the Plea, and bringing Money into Court. 
 
 ?.i what cafes THE moft ufual plea to an action on a policy of in- 
 
 ''i'd.f'.rpa'^"'^ furance is the general ifiTue, noji ajfumpjity which not 
 i;i«a. only puts in iflue every fa6t alledged in the declara- 
 
 tion, but alfo enables ihe defendant to give in evidence 
 any matter that goes to difafhrm the contra61:, or to 
 difcharge the plaintiff's demand under it {d). — If, there- 
 fore, the deiendant would difpute the legality or the 
 validity of the policy ; if he would deny the intereft of 
 the infured, and fhew the po!:cy to have been a wager- 
 ing one 5 if he would prove that the infured has been 
 
 {a) Vid. flat. 8 G. I., di. 30, § 25. {h And. 66,^2 Str. 
 
 1180, Say. Rep 7, 2T. R. 2,5. (c) iT. R. 781. ■ 
 
 id) D^ug. 106, 7. Vid. Bui. N. P. 152. Penfon v. Luy 2 Bof, 
 icFuL^^o, fup. 655. 
 
 guilty
 
 Ch. XVI. § 3.] The Pka. 695 
 
 guiliy of mlfreprefentatlon, concealment, or a.ny other > 
 
 fraud ; tliat the fliip was not fea-worthy ; that the voyage 
 
 infurecl was not the voyage intendcJ ; that the fiiip lailed 
 
 on a different voyage from that defcribed irl the policy ; 
 
 that there had been a deviation; that no lofs, or at leail 
 
 not to the amount claimed by the plaintiff, had happened, 
 
 ■—the general iflue is the proper plea {a). 
 
 Though the compliance with every vrarranty exprefl'ed Uode-the jene- 
 in the policy, or implied in the contracl:, is an aflirniative ":•'' I'^" » '''^ «**- 
 
 ■I • • . . . . lendmt rmy 
 
 which it is incumbent on the plaintiff to prove ; yet, in Oicw i on-per- 
 anfwer to the general evidence from which fuch com- a'^wawanty 
 pliance is ufually prefumed, the defendant may, under 
 the general iffue, give exprefs evidence of a non compli- 
 ance : As, that the fliip did not fail with convoy ; that 
 fhe never obtained failing inftructions, or had unneceffa- 
 rily quitted the convoy j that fhe was enemy's property, 
 though warranted neutral ; that flie had forfeited her 
 neutralitv, &c. 
 
 (fl) In the cafe of Coram v. Sweeting (2 .'■atind. 205), the 
 defendant, to a declaration for a total lofs by the perils of 
 the fca, pleaded that the fhip arrived fafe ; ■' alfque hoc, that 
 ♦* the fhip, her tackle, apparel, and furRituie, were funk in the 
 " fea and loll." — Upon demurrer to this plea, it was objefted 
 that the traverfe being in the conjundtive, if iffue had been 
 taken on it, and fo much as an anchor or cable had been 
 faved, the defendant would have been entitled to a verdid, 
 though every thing elfe had been lofi. — The court gave judg- 
 ment for the plaintiff. — 'launders, who was counfel for the de- 
 fendant, and probably drew the pica, concludes his report in 
 much difpleafure at thejudgment of the court, who, he fays, 
 decided luithout much confideralion, or ivell widerflanding the cafe. 
 The plea was one of thofe artful expedients to gain an unfair 
 advantage, in which the bar, in Saunders'?, time, and, indeed, 
 Saunders himfelf, were but too fertile. Special pleas, in affump' 
 ftty to avoid or difaffiirm the contradt, or difchargc th plaintiff's 
 demand under it, are now quite exploded. The plea of non 
 ajfumpftt which puts in iffue every material allegation in the de- 
 claration, and under which the defendant may prove whatever 
 fhews that, ex equo et bono, the plaintiff has no right t( recover, 
 is now the only plea ever plead' d in a6f ions on polii -es of infu- 
 rance, which are meant to be tried upon the merits only. 
 
 F4 So
 
 €g^ 
 
 Of the Froceedings. 
 
 [B. 
 
 Or that the in^ 
 (urance was 
 double. 
 
 |!y f!5t. 19 C.II. 
 c. 37. the infilled 
 njuft diTclofe 
 how much he 
 has infured ia 
 th? whuie. 
 
 When ihe de=. 
 fendant may 
 plead a tender. 
 
 V/hea he fnnll 
 bring raoney in- 
 to cuurtu 
 
 So the defendant may fliew that it was a double in^ 
 furance, and that the plaintiff had already recovered ta 
 the amount of his intereft againft the underwriters m 
 another policy, to v/hom the defendant has m^de contri- 
 bution (fl). 
 
 To enable the defendant to difcover whether there be 
 a double infurance in an'y cafe, he may, under the ftat,. 
 19 G. II., c. 37. § 6, call upon the plaintiff to declare in. 
 writing, within 15 days, what fum lie has infured in. 
 the whole, and how much he has borrowed on bot- 
 tomry or refpondentia, for the voyage in queftion or any 
 part of it {h). — It is a little fingular, however, that this 
 ad provides no means of compelling the plaintiff to de- 
 liver this declaration, nor any punifhnient for delivering 
 a falfe one. The court would, probably, after the ex« 
 plration of the 1 5 days, ftay the proceedings till a fatis-^ 
 faftory declaration were delivered. An a6tion would^ 
 perhaps, lie at the fait of the infurer againft the infured^ 
 either for refufing to make fuch declaration, or for deli- 
 vering a falfe one {c) . 
 
 Where the queftion between the parties is, not whe- 
 ther the underwriters be liable to pay any thing to the 
 infured, but only ho%v. much they (hall pay, it will be ad-, 
 vifable for them to tender^ before any adion brought^ 
 the fum which, under all the circumftances, they con- 
 ceive to be fully fufficient to fatisfy every fair claim of 
 the infured* When fuch tender has been made and 
 rejected, it may be pleaded, with non-aflumpfit as ta 
 the refidue of the plaintiff's demand. — ^The plaintiff, by 
 his replication, may either deny the tender ; or confefS 
 it, and join iffue on the plea of ncn ajfumpftt as to the 
 refidue, and upon that iffue proceed to trial for further 
 damages. 
 
 When the underwriter in fuch cafe, has omitted to make 
 a tender before proce'fs has been fued out againft him, he 
 {hould Inng the vioney into court [d).-^Bdoxe theftat. 1 9G.II, 
 
 (a) Vid. flip. ch. 4. § 4. (3) Vid. fup. 129. (f) Vid. 
 
 2 lull. 74, 104. F. N. B. 161. {d) Vid. fup. ch, ij, § i.
 
 Ch. XVI. S 3.] The Plea. ' 697 
 
 c. ^7, it would feem that this was not permitted in aaions 
 on^pJliciesofinfurance: and yet, mafurnpfitynnd covenant 
 for the payment of money, and in debt alfo, even where 
 the plaintiff might have recovered lefs than the fum de- 
 manded, this praaiee had been allowed long before (a). 
 But by this ad (§ 7.) it is provided, ' That in debt, 
 
 < covenant, or any other a6lion on any policy of infu- 
 « ranee, the defendant may bring into court any funi or 
 
 < fums of money ; and if the plaintiff fliall refufe to ac- 
 f cept the fame, with cods to be taxed, in full difcharge 
 * of fuch a£lion ; and ihall afterwards proceed to trial, 
 « and the jury ihall not affefs damages exceeding the mo- 
 
 < ney brought into court ; the plaintiff {hall pay the d^^ 
 i fendant m fuch adion, the cofts to be taxed.' 
 
 It has been already fhewn that an infurance on the pro- Whcthc ;■ alu^ 
 
 • -1 J 1 rj.' U tnemy ought CO 
 
 perty of an alien enemy is void ; ana that no attion can De ^^ pieadtd, or 
 maintained on any fuch infurance, either at his own fuit, f';;;,;^'^;;;; ^^^ 
 pr on his behalf {b). If, therefore, an adion on a policy general iflUe. 
 be meant to be defended on that ground, it may be fpe- 
 cially pleaded in bar, being matter of law, which does 
 not go to the gift of the adion, but only to the dijchar^e 
 
 of it (f). 
 
 As to the two infurance companies, though the claufe The two infu, 
 
 , . , 1 1 1 J ranee companies 
 
 of the ftat. 6 G.I. c. 13. § 4- which gave double da- ^.^^.^ ,^ ,y,^,^ 
 mages againft them, was repealed by the ftat. 8 G.I. £t ^f.:; 
 c. ^o. $ 2C. ; yet the form of the policy remained, and w.h infngu ««- 
 
 ' ~, r 1 -1 • A \ ^ -. veniionevi ; and 
 
 it was ftill neccffary to fue them either in debt or co- ^^e .iu.y may 
 
 venant; from whence this inconvenience arofe, that 8,""^^^';,^ p^Jf J^ 
 
 thefe companies, when fued, were obliged to plead fpe- the Cum mfured 
 
 cially {d) ; becaufe the general ilfue, tjQjf ejl fa6lum, only 'J entkied'to ic- 
 
 puts 
 
 cover. 
 
 («) 5 Mod. 213. I Vent.Z^G. 2 ^alh. 596, 7. i Lord Ray. 
 %t^^. (h) Vid. fup. ch, 2. § I (c) In the cafe of Bran- 
 don V. IJrJbiiiy 6 T. R. 23, fup. 38, it was pleaded; but in 
 Bryioivv. Towers, 6T. R..35, fup. 39, the defendant pleaded 
 the general ifTue, and the faft was found by the fpccial verdift, 
 
 hi) If the forni of declaring mentioned in the ftat. 6 G I. 
 
 c, 18. ^ 4. ' (which does not mention or even refer to the policy) 
 Vad been adopted io adlions apjainll thefe companies, the in- 
 
 c'jnvcnicncies
 
 698 Of the Proceedings. [B. I. 
 
 puts in IfTae ihe exiftence of the inftrument upon which 
 the plaintiff declares {a). The confequence mufl have 
 been, that the parties were often entangled in the in- 
 tricacies of pleading; and even vv^hen an iffue was at 
 leno-th joined, it frequently happened that the whole me- 
 rits could not come in queftion, and the jury were obliged 
 to find a verdiCl for the whole fuminfured, though in jufticc 
 only a fmall part of it was due. This drove the defendants 
 to feek relief in courts of equity, when the matter in quef- 
 tion might as well have been determined at once by 
 the jury, in like manner as in the cafe of private infu- 
 rers {b). — To remedy this inconvenience, the flat. 1 1 G. I. 
 ch. 30. § 43. provides, — * That in all adions of debt 
 
 < againft either of the faid corporations, upon any poli- 
 
 * cies of infurance under their common feal, it fhall be 
 
 * lawful for them to plead generally that they owed nothing 
 
 < to the plaintiff in fuch a6lion ; and in aftions of co- 
 
 < venant upon fuch policies to plead generally, that they 
 *■ have not broke the covenants in fuch policy contained, or 
 
 - < any of them. And if iffue be joined thereupon, it (hall 
 « be lawful for the jury, if they fee caufe, to find a 
 
 < verdict for the plaintiff', and to give fuch part only of 
 « the fum demanded, if m debt, or fo much damages, 
 
 < if in covenant, as it fhall appear to them, upon the 
 
 * evidence, fuch plaintiff ought in juflice to have.' 
 
 > conveniences here enumerated might have been avoided ; be- 
 caufe, to fuch a declaration the defendant might have pleaded 
 nil debet, and upon that plea the parties might have gone to 
 trial upon the merits, whatever thofe merits might have been, 
 in hke manner as upon the general iffue in an a£lion of ajiimpjit 
 upon a common policy. But, unfortunately, plaintiffs were 
 not compelled by the ftatute to adopt the form of declaration 
 therein given ; and they^ or at leaft their attornies, were to» 
 much interefted to purfue a different courfe, 
 
 (a) 5 Co. 119. '{b) Vid. recital to the ftat,. 11 G, I. 
 
 c. 30. §43.
 
 Ch. XYI. § 4.3 Confdldation Rule, 
 
 699 
 
 Sea. IT. 
 
 Of the ConfoUdatlon Rule. 
 
 The nccefTiiy of 
 coiitvjlul.uin^ ac- 
 tions <)1» i^iullClCS 
 
 of inluraiice. 
 
 WE have already feen that the underwriters on com- 
 mon policies only bind themfelves feverally^ that is, each 
 for the amount of his own fubfcription, and not jointly j 
 becaufe it would be impofiible to find any number of 
 underwriters who would be willing to bind themfelves for 
 each other, as they muft do if the contraft were /£?/«/; 
 and, indeed, fmce ithe eftablilhent of the infurance com- 
 panies, fuch a policy would be void by the flat. 6 G I. 
 c. 18. {a). Hence the infured, even if he were fo dif- 
 pofed, cannot bring a joint adljon againft all the un- 
 derwriters on a common policy, but muft feek his re- 
 medy by a feparate action againft each. This, though it 
 neceflarily refults from the form of the contrail, was a 
 fubjecl of complaint fo long ago as the time of Queen 
 FJizabeth {b) ; and it cannot be denied that it enabled the 
 infured, if his demand were difputed or delayed, to pro- 
 ceed to trial in all the atl-^ions, however fmall his de- 
 mand might tje againft each underwriter, and thus fub- 
 je6t each to the entire cofts of an action. They there- 
 fore often found it to be the wifer policy, rather to 
 fubmit to an unjuft demand, than fubje£l themfelves to 
 fuch heavy charges. Sometimes, indeed, they fought re- This was for- 
 lief in courts of equity, which granted iniunftions to "^^''^ done by 
 
 ■ ,^ ° ■' couits ot equity. 
 
 flay the proceedings in all the a£lions but one, the 
 defendants in the reft undertaking to pay, according 
 to their fubfcriptions, if the plaintiff ftiould recover in 
 that one. 
 
 This being found to be very inconvenient, and little lefs 
 expenfive than the opprefTive proceedingagainft which the 
 underwriters fouirht rf'lief, an attempt was at length made 
 
 Fird atlrmpt to 
 cuuri of lair. 
 
 {a) ?up. 46. {h) Vid, the preamble to ftat. 43 
 
 13, fup,75. 
 
 E:iz. 
 
 by
 
 700 Of the Proceedbigs. [B.I. 
 
 by Mr. Scfjeant \£jT^j-, in the year 1731, in a cafe where 
 28 aftions had been brought on a policy, to flay the pro- 
 ceedings in all but one, the defendants in the reft entering 
 into a rule of court that thofe caufes fhould abide the 
 event of that one. But the plaintiff refufing to give up his 
 advantage, and confent to fuch a rule, the court declared 
 they could do nothing in it {a). — It has been faid (^) that 
 * Mr. Juflice Denifon intimated, that if the plaintiff per- 
 fifted, againft his own intercft, in his right to try all the 
 caufes, the court had the power of granting imparlances 
 in all but one, till there fhould be an opportunity of trying 
 that one ad ion j that Lord Mans f eld then ftated the great 
 advantage refuking to each party by confenting to the 
 application which was made ; and added, that if the 
 plaintiff confented to fuch a rule, the defendant fhould 
 undertake not to file any bill in equity for delay, or to bring 
 any writ of error, and fhould produce all books and papers 
 that were material to the point in iffue ; and that this rule 
 was afterwards confented to by the plaintiff." — It is not 
 precifely ftated when, or upon what occafion, this paffed, 
 From the manner in which it is introduced, it would feem 
 
 as if it had paffed in the above cafe of v. Glover. But 
 
 neither Mr. Juftice Denifon or Lord Mansfield was a judge 
 till many years after that cafe. It is extremely probable 
 that after Lord Mansfield c-^vat to prefide in the court of 
 King's Bench, he and Mr. Juftice Denifon did, upon fome 
 occafion, exprefs fentiments fimilar to thofe afcribed to 
 them ; becaufe it is well known that Lord Mansfield^ 
 foon after his coming into that court firft eftablifhed 
 thfe confolidation rule, and fettled the pra£lice upon it in 
 its prefent form. It is fingular, how^ever, that Sir James 
 Burronvy who has reported the decifions of the court 
 of King's Bench for many years after Lord Mansfield 
 came to prefide there, has publilhed no report of the cafe 
 in which fo important an alteration of the practice firft 
 took place. 
 
 (a) Vid. V. Glovert Hil. 5 G. II. 2 Bcr-ardift. 103. 
 
 '{b) jPfirk introd. p, 50. 
 
 1q
 
 Ch. XVI. §4-] ConfoUdation Riile» 701 
 
 Be this as it may, it is now the conftant praGIce, where The nature of 
 a number of aftions are brought upon the fame policy, to liTmsonwl.lcMt 
 confoHdatc theui by a rule of court, or by a judge's order, " "'"■»")■ m^^c. 
 which refltains the plaintiff from proceeding to trial in 
 more than one, and binds the defendants in all the others 
 to abide the event of that one. But this is done upon 
 condition that the defendant fliall not file any bill in 
 equity, or bring any writ of error, for delay. 
 
 But befides tliefe, the court, upon a proper ground being Mutual admif* 
 made by the plaintiff, will impofe any other terms upon 
 the defendants, which, under all the circumftances, appear 
 reafonable : As, that they fliall produce, at the trial, all 
 books, papers. Sec. in their cuftody, material to the point 
 in ilfue ; that the defendant in the aft ion to be tried fliall 
 admit his fubfcription to the policy, the intereft of the 
 infured, the lofs, or any other fa61;, upon which the 
 queflion intended to be tried does not turn, or which is 
 not meant to be ferioufly difputed. But the court will not 
 impofe any terms on the defendant out of the ordinary 
 courfe, without his confent, which, however, a defendant, 
 who only means to litigate fairly and honorably, will never 
 refufe, when it is only to fave the trouble and expence of 
 proving fadis which are not difputed. On the other hand, 
 the court, in confideration of thefe unufual concefTions, v'W 
 impofe any reafonable counter-terms on the plaintiff, which 
 the defendant may have to propofe. 
 
 It is no par*: of the confolidation rule that the plaintiff It is never made 
 fiiall be at liberty to try the other caufes if he pleafe. \Sr\\l^ !.S 
 Such a liberty would defeat the end propofed by the '^'■•y t y ^i^ otner 
 confolidation rule j and, therefore, if the plaintiff will pleafe. 
 not confent to the rule without this term, the court 
 will grant imparlances in all the caufes but one, till h^ 
 confent {a). 
 
 Thus has a pra6lice, which was often attended with Bencfituefuitinf 
 ruinous confequences to the one party or the other at ''"'"' ^'' '" *' 
 length, by the wifdom of the judges, been converted into 
 an effectual means of obtaining fubftantial juftice for 
 
 {a) Per Cur. Brotvn y, Newnham, E. 25 G. III. B. R. MS. 
 
 both,
 
 7^2 Of the Proceedhigs, [B.t 
 
 «• 
 
 both, at a moderate expence, in cafes where the obftinac^ 
 
 or diflionefty of plain tiffs might, before this regulation 
 
 ' took place, have rendered that almoft impoflible. — Oil 
 
 the one ha^.d, the court may flay the plamtiff s proceedings 
 
 for any length of time, if, through perverfenefs, or th.t 
 
 - cunning of interefted or illiberal advifers, he refufe his corl- 
 
 fent to confoiidate the adlions upon proper terms : If, oii 
 
 " the other, the defendants will not accede to fuch terms, 
 
 the court, to punifh them, may permit all the actions ta j 
 
 proceed. 
 
 All the dcfcnri- ^K* though, by the rule, the defendants undertake to be 
 
 ant!, are hound [-jQund bv a verdi^l in the adiion which is to be tried, yet 
 
 by rhe verdiift in ' n ■, ri i-o t. 
 
 ihe caufe cried, this muft, be underftood to mean iuch a verdict as ought 
 to (land, as a final determine lion of the caufe. It is cer- 
 tainly very beneficial to the parties that thei-e fhould be 
 but one trial for all the underwriters on the policy j but 
 then that trial fhould be a fatisfaclory one {a). And 
 therefore, if the plaintiff obtain a verdid, but the defendant 
 apply for and obtain a new trial, the other defendants fhall 
 not be obliged to pay their money till the ultimate decifion 
 of the cauie in fr.vour of the plaintiff {b). And in cafes 
 cf infurancc, therefore, the courts fhould, in general, be 
 lefs flrift, and fomeiinies grant new trials upon lefs decifive 
 grounds than in other cafes. Sometimes, indeed, the 
 infvred, where he is not aware of the nature of the defence 
 that is meant to be fet up by the underwriters, or where ' 
 tliere is a very doubtful or difhcult oueftion to be tried, 
 will not agree to confoiidate ; but will proceed to trial in 
 one caufe at a time, referving to himfelf the power of 
 bringing hie cafe again and again under difculhon, fo long 
 as he has any hope of fucccfs. 
 If an attornfy ^^y the tcrms of the confolidation rule, the defendants 
 tue out a wilt of ^.g bound penevalh not to bring rt;;v nvrit of error ; the 
 
 trior, though for . . o J J 
 
 maiiifcrt f rror, meaning of which is, that, after a fair trial, and fubftantial . 
 brelch^' «rf ''ihc juflice has been done, no writ of error fhall be brought, 
 '»'>«• though manifeft error appear on the face of the record. 
 
 For even then, the writ of error being againfl the juflice 
 
 (rf) Per Lord Mansfield, i BL 464,—:/') R. HodgfoH v. 
 
 Richard fori; ■] Bur, 147''. 
 
 of
 
 Ch. XVI. § 4.] ConfoHdation Rule. 703 
 
 of the cafe, the court will hold the party ftricbly to the 
 terms of the rule by which the plaintit^' has been pre- 
 vented from proceeding in the ordinary courfe of law. 
 If, therefore, under fuch circumflances, the defendant's 1 
 attorney bring a writ of error, the court will grant an 
 attachment againfl him for his contempt in fuch a breach 
 ©f the rule {a) , 
 
 Sea. V. 
 Oft/je Trial. 
 
 IF the parties proceed to trial upon the general ilTue, Proof of the 
 which mod frequently happens, the plaintiff, as has been ^ *'" ' 
 already obferved, muft, as in all other cafes, begin by 
 proving every material allegation contained in his de- 
 claration. — If any of the fafts of the cafe, on either 
 fide, have been agreed to be admitted, thefe admiffions 
 are reduced into writing and figned by the attornies on 
 both fides, and being read, they fupply the place of actual 
 proof. 
 
 In every litigation upon commercial fubjecls, and par- The neceffity <,f 
 ticularly in matters of infurance, it is highly proper, nay fi'JI,"* ** ^ " 
 in fome cafes abfolutely neceffary, that the parties fiiould 
 mutually admit e\ery facl that is not meant to be ferioufly 
 difputed, in order that the cafe may be put upon its 
 true merits with as little expence, vexation, or delay as 
 pofTible. Commercial liberality and profeiTional honour 
 both equally require that this fpecies of candour fliould be 
 carried as far as the fair and juft prctenfions of tlie panict; 
 will admit. Nothing can more conduce to tlie ends of 
 juftice, nothing can more exalt our national charader, or 
 promote the true interefts of commerce, than fuch mutual 
 conceffions. 
 
 The rules of evidence are, in general, the fame in 
 trials upon policies of infurance as in other cafes. There 
 
 («} R. Camden y.Edie, I H. Si 21, 
 
 Arc
 
 yc4 Of the Proceedings^ [B.I. 
 
 are only three cafes to be found in our books upon points 
 
 of evidence which may be thought peculiar to infurance. 
 
 Ridoutv.Jchi. Xhe firft is a very fliort note, in which it h faid to haveJ 
 
 fe. N. V. li'i. been determined, that in an a£lion on a policy of infurance, 
 
 ^ any who have infured upon the fame ^ip cannot he 
 
 underwiiter'can- witneffcs. — Mr. Jufticc BuUcry from whofe book the above 
 rnLl'Iaira'oa^I note is cited, in delivering his judgment in the follcM'ing 
 |)olicy. cafe of Bent v. Baker^ fays, that he took great pains, but 
 
 without fuccefsj to get the real ftatement of that cafe, think- 
 ino- that it might have been determined on its ov.'n particular 
 circumftances. " However," fays he, '' in cenfequencc 
 of that determination, judges at nifi prius have frequently 
 rejefted underwriters as witnefles. Nor is it extraordinary « 
 that, at ?iifi prius, they fliould have been guided by the only 
 cafe upon the fubject, without much examination into the 
 grounds of it." 
 Bf>it V. Baker, In the fecond cafe, which was folemnly determined 
 
 3 T. R. 27- upon great confideration, one BowdeKy the broker who had 
 
 But if the broker effe6ted the poHcy, was produced as a witnefs on behalf 
 HcT/Scn'bel: of the defendant. It appeared that Bo^uden had fubfcribed 
 Sumuit, after the ^^^ ^^j^jg policv immediately after the other underwriters ; 
 eri have fubfc.ib* that an aftion was then dependmg agamit mm tor the lame 
 bt a i^nefsT^r ^^^s J and that he and the other underwriters had filed a 
 the other under- j^jjj \^ equity againft the infured for a difcovery, in order 
 ^icaii'him from to avoid the policy. — It was objefted on the part of the 
 ail contribution „j^jj^^jfjs j-^at he was not a competent witnefs for the 
 
 for cons, though r ' ■* i r 
 
 an adion be de- defendant. Upon this the defendant produced a releafe 
 bim.'and he""at to Boiuden of all demands for any contribution of cofts 
 joined in a bill ^qj.|^ Jj-j j^^ ^^-^^ eouitv, and the cofls of the fuit in equity 
 
 in equity againft ',,..„ . , , , . 
 
 the infured, for were tendered to the plamtitts, with an undertakmg to 
 a difcovery. ^ifmifs their bill, which the plaintiffs refufed.-— The 
 watnefs was reje6ted by Lord Loughborough •, and the quef- 
 tion of his competency coming before the court of King's 
 Bench upon a bill of exceptions, it was there determined^ 
 that, under the circumilances, he was a competent witnefs 
 for the defendant, and that his tellimony ought to have 
 been received. — Lord Kenyon founded his opinion on the 
 grounct that the witnefs was not interefted. — Mr. Juflice 
 Afhurjl thought that, as he had acCled as broker, he 
 could not afterwards, by fubfcribing the policy^ or by 
 
 any
 
 Ch.iVI. §5.] Trial. .-,^ 
 
 any other a£l o£ his own, deprive either party of his 
 teftinriony. — Mr. Juflice Bulkr was cf opinion, that if the 
 witncfs was competent to anfwer any queftion, he ouglit 
 not to have been rejefted generally \ and that, on the 
 principle of neceflity alone, he ought to have been received ; 
 as he might be the only perfon vvho, from the nature of 
 the thing, could fpeak to a reprefcntation, for inftance, 
 made by himfelf to the un lerwriters. 
 
 This cafe affords a fufHcient proof, that brokers and 
 others, who a£l as agents, either for the infured or the 
 infurers, ought never to be underwriters {a). 
 
 The laft of thefe cafes was a policy on goods from DcSymon.hM.t)t 
 London to Einden\ and it appeared that the fliip, meeting 
 with difficulties in her voyage, put into the Texel, where flie 
 was feized by the D.-z/r-A.— The defence fet up was, that I" !'"^'^ti°" «"» 
 
 ■' . _ ^ -^ ' policy oil goods, 
 
 the goods were originally deftined for the Te>:e!,^nd. not for ti^c c^pr-iin, wh.. 
 Emdcn. — To prove that Emden was the real deflination of ihcftiip,ira"com- 
 the fliip, and that (lie failed for that place by the direaion P'""' wtncis to 
 
 ^ \ ' _ pruve that the 
 
 of the owners of the goods, the plaintiffs called the captain, po>t of cieflina- 
 
 1 ^ c l\ -ix^' r. 1 • o 1 1 tiui) in tlie policv 
 
 wno was a part owner or the Itiip. — It was objected, that was the true d<-i- 
 lie was not a competent witncfs. But Sir Javies Mansfield^ xwm\m of the 
 Chief Juflice. who tried the cauic, overruled the objeclion, prove tiut a df- 
 and the plaintiffs had a verdicf^. — In fupport of an applica- h'l^tl'ly utccitiy* 
 tion to the court to fet this verdi£l afide, it was contended, 
 tliat, asthc fhip had deviated from the voyage infured, the 
 plaintiffs were bound to fliew that flie was driven into the 
 Tcxel by necefiity ; but that, if flie deviated without 
 neccihty, the owners cf the Ihip were anfwerable to the 
 owners of the goods, and confequently, the captain, being 
 a part owner, had a dire6l interefl. — But the court held, 
 that he was a competent witnefs to prove that, by the direc- 
 tion of the owners cf the goods, the fhip originally failed on 
 the voyage infured ^ though not to prove that the deviation 
 was juftifted by nccefhly. — Mr. Juftice Rcoh faid, that the 
 groun<I upon which he concurred in this decifion was, that 
 as the captain atlcd as the agent of the owners of the 
 goods, -^^vA with tlieir knowledge,they could have no action 
 
 [a) Vid. fup. 30 r. 
 VOL. lu Q againft
 
 ye^ , Of the Froceedings. [B. L 
 
 againft him, as had been alleged on thi part of the de- 
 fendant. 
 
 The evidence generally adduced on the part of the 
 plaintiff is reducible to the following heads : 
 
 1. froof of the contract ; 
 
 2. payment cf the premium ,♦ 
 
 3. ' tie intcrefi of the injured ; 
 
 4. ccmpliance 'with ivarranties ;. 
 
 5. ■ the lofs. 
 
 I. Proof of the Contract, 
 
 Th« policy being ^^^^ ^^^ ^^P °" '^^ P^^*^ °^ "^^^ plaintiff IS tO piC^e 
 
 proved,isronciu- thc contrn<Sl, 'which is done by producing the policy 
 thecontraajjnd and proving the defendant's fubfcription to it. This, 
 no parol evi- j£ there be no variance, is conclufive evidence of thc 
 
 dence can be re- _ ' 
 
 ceivedtovarythe contra£l llatcd in the declaration; and the general 
 
 rule is, that no evidence can be received of any parol 
 
 ftipulation or agreement to alter,, control, or qualify 
 
 it {a). 
 
 Kahuiv. Knight. As, where an infurance was made *' ironiArchangel io 
 
 /y, 5^/>j. 454. «( Leghorn -y" and upon a trial at bar, the defendant 
 
 A parole agree- endeavourcd to fet up a parol agreement, made before the 
 
 iiiOLiid begin at fubfcription, that the adventure lliould only begin from 
 
 a place difieient '^i^q Doivfis '. — It was obie6led, that unlefs fuch agreement 
 
 from th it infert- . . _ ■* . ^ ■ r 
 
 td in the p .licy, be put in writing, it fnall be taken that the policy fpeaks 
 ed i""cvTde^-xcr *^^ minds of the parties \ and to fufFer policies to be 
 defeated by agreements not in writing, would be to 
 lefTen their credit, and render them of no vrdue — Lord 
 C. J. Pemberton faid, that policies were facred things ; 
 and that a merchant fhould no more be allowed to go from 
 what he had fubfcribed in them, than he that fubfcribes a 
 bill of exchange, payable at fuch a day, fhall be allowed 
 to fay that it was agreed to be upon a condition. &c. 
 
 (a) Yet fee the cais of Bates v. Grahhfyn, Salh, 444. fnp, 344. 
 aisd the ether authariticL:' cited ;:i ch '8. ;: 4.
 
 Ch. Xn. § 5.] Trial^Proof of Contra&. 707; 
 
 when the bill may have been negociateJ : For though 
 neither of them is a fpecialty, yet they are of great credit, 
 and much for the fupport, convenience, and advantage 
 
 of trade The jury, however, found contrary to the 
 
 direction of the court. But this verdid was let afide ; 
 and upon another trial at bar,, the next term, there was 
 a verdi£l for the plaintiff, according to the diredionof the 
 court. 
 
 Witnefles may be examined, however, to prove nn Witneffes may 
 njage, as explanatory of a claufe m a policy ; but their expianaro.7 of a 
 cpinion of its meanine is not admiflibk evidence /'«'). «'s"fc '" the po- 
 
 . ^ ■> ^- licy : but ihcir 
 
 Queftions of conltrudlion are quellions of law, which opimom are nuc 
 the judges only are competent to determine; and the 
 opmion of no other perfon, whatever may be his ability 
 or experience, can ever be looked upon as of authority 
 in our courts, or received in evidence before a jury. 
 
 With refpetft to ufage^ it is a fort of natural law, ij„w f.ir th? 
 formed out of our habits, our intereils, and the uni- '"'f 0' '/''^* 
 
 . oui>iit to be 1?- 
 
 verfal confent of mankind. In all maritime affiurs, it gardni. 
 is regarded as the fureft interpreter of the law. There 
 the maxim. Optima ejl legum ■ inter pves, confuetudo, par- 
 ticularly applies. In quelVions of infurance, eftabliihcd 
 ufages muil in all cafes be adhered to ; and in doubt- 
 ful cafes, they are the fafefl guide we can follow. If 
 the ufdge of trade in any inflance be not fufficiently 
 known or rightly underftood, it is advifable to confult 
 the mofl experienced merchants. Still, however, the 
 force of ufage is not to deflroy the law. Ufagc is to 
 be confulted only v/here the law is doubtful. Where 
 the law is clear, it mufl prevail. The law is per- 
 manent j but ufages fometimcs change, and often difap- 
 pear with the circumftances which gave them birth. 
 
 Policies are often fubfcribed by an agent in the name How procuration 
 
 r 1 , • n • -^ r f ■ ^>^" l-c proved. 
 
 or the underwriter, and ni llrKtnefs, the procuration or 
 authority of the agenl, thus to fubfcribc for his principal, 
 ©ught to be proved. Few defendants, however, would 
 
 (a) Per I. Old Maiiyltld, in Lyons v. Bridge, D:vf. 5 i 2. V:J. 
 alfo I,(/rJ 7!/.j-vyy:V/,/'« judgment in Carter v. B:thm-, iu;;. 47y. 
 
 g 2 ever
 
 7o8 Of the Proceedings > [B.L 
 
 ever think of availing themfelves of the want of fuch proof 
 in an adion which ought never to be tried but upon fome 
 point fairly difputable. An inflance, however, occurs 
 where the attempt was made. 
 }^eah\. Er-vhg, ^^ ^^ aclion on a policy, the broker was called to prove 
 the fubfcription. He faid that the defendant's name 
 had been fubfcribed by one Hutch'uis ; he did not know 
 by what authority, but that Hut chins was in the conftant 
 habit of fubfcribing policies in the defendant's name, 
 and had done feveral for him and for others to his 
 jcnowledge. — It was objefted that Hut chins might have 
 done this by a power of attorney, v.hich might have 
 been limited, or for a particular purpofe •, and there- 
 fore fliould have been fliewn, that it might appear that 
 Hutchins was properly authorifed. — But Lord Kenycn 
 over-ruled the obje£lion, being of opinion that the a£ls 
 of Hutchins held him out to t!-\i world as properly autho- 
 rifed ; and his having fubfcribed feveral policies in the 
 defendant's name, was fufficient evidence of that autho- 
 rity to charge the defendant : That if Hutchins was only 
 a particular agent for the defendant, it lay on him to {loew 
 it, not the plaintiff. 
 
 2. Proof of Papisni of the Prernium. 
 
 Proof of the po- Every policy contains a claufe by which the under- 
 
 t\I pavment of writers coufcfs the receipt of the premium, after the rate 
 
 the premium. of fo much per cent. ; and the policy being proved, is 
 
 therefore evidence of its having been paid. 
 
 Policies are, in general, effe^Lcd by the intervention 
 of brokers, between whom and the underwriters open 
 accounts ai^c ufually kept, in which the brokers make 
 themfelves debtors for all premiums, and take credit for 
 all lofles which they are authorifed to receive from the 
 underwriters ; and thefe accounts are fettled and adjufted 
 at ftated periods. In general, therefore, the underwriter 
 looks to the broker only for his premium. It often, in- 
 deed, happens that the underwriter knows not M'ho the 
 jnfured is •, and as he gives the infured a receipt for the 
 premium upon the face ,of the policy, it mull be fuppofed 
 I that.
 
 Ch. XVI. § 5* Trial — Payment of Premium. yog 
 
 that, having thus difcharged him, if the premium be left 
 unpaid, he gives credit only to the broker, and from him 
 only can he recover it (a). 
 
 3. Proof of the Intereji of the Jnfured, 
 
 The next thing to be proved is tlie intereji of the in- How theinrercft 
 fured {h). This may be done by any documents which *" *^P'""- • 
 are evidence of the property which the infured has in the 
 (lilp or goods infured, and of the value of that property ; 
 fuch as bills of f.ile, bills of lading, invoices, and proof 
 that the goods were on board (r), bills of charges of the 
 out-fit, cuftom-houfe clearances, Sec. •, and any deficiency 
 in this fpecies of proof may be fupplied by parol evidence. 
 So, if the infured have exercifed acSls of ownerfhip, by 
 directing the loading, &c- of the fhip, it has been holden 
 that proof of the payment of the people employed, is fuf- 
 ficient proof of intereft in the fliip [d). 
 
 The rules of evidence in fuch cafes, where no fraud is t, „., „ , 
 
 ' Ruffd V. B nm,9 
 
 fufpe6ted, are not very rigidly adhered to: — Therefore z-i/r. 1127- 
 where an a£lion was brought upon a policy of infurance a bin of parc«it 
 on a carco of goods purchafed at Peter[burzh\ the plain- *'th thevendor's 
 
 , ^ . . J O •> r receipt, for goods 
 
 tiff, in order to prove his intereft, produced a Ijill of par- bougst abroad, i» 
 cds from the vendor at Peterfburgh^ with his receipt to it, jl^ten:*' ^'^°° '* 
 and proved his hand-writing. The defendant obje<3:ed 
 that this was no evidence againft the underwriters : But 
 Lord C. J. Lee^ who tried the caufe, held it to be fufficient 
 evidence of the plaintiff's intereft. 
 
 In the fecond fcftion of this chapter ie\ it has been ^P°" ^ s<'nf"l 
 
 ■' averment of iii- 
 
 fliewn that, in the declaration, the intereft may be averred tenfiihc ir.fured 
 
 'cither generally or fpecially ; and that, under a general "neJicfcrintctrft 
 
 averment of intereft, the infured may prove any fpecies '^^^ ", f'"'"<:^ 
 
 ' ' ^ ii)!urab!c, in any 
 
 oHijuot [•iirti of 
 
 ' ■ — — tiie tiling inluied. 
 
 i^d) Vid. fup. 29!.- '{h) .As to what (hall amount to an in- 
 
 furable intereft^ iid.fup. ch. 4, pa/Jiin. (c) Per Lord Kenyon 
 
 in M'JncIreivs v, Beii, i I^fp. Rep. 373. fup. 469. (d) Per 
 
 Lord Kenyon, at N. P. Amery v. Rogers, I Efp, Rep. 309, fup. 
 619.' ■ ► (?) Sup. 682. 
 
 Q 3 of
 
 m-iQ Of ihc Proceedings. [B. I. 
 
 of intercft he may have in the fnip or goods infured. Ifc 
 is alfo there fliewn that it is unneceffary to (late the 
 quantum of the interell in the declaration •, for as the 
 plaintiff in affumpfit recovers according to the evidence 
 pro tiVito, he may under a general averment of intereil 
 in the entire thing infured, prove an intereft in v.ny aliquot 
 part, and recover damages for the lofs in proportion to 
 fuch part. 
 UpoTi a v<2.'ued If the policy be an open one, the real value of the 
 mcrffarV'to""'^ plaintiff's intereft muft be proved j— if it be a -jalued one, 
 prove /owe in- jj. i^^^ hcen holdeu that the infured needs only to prove 
 fomc intereft, to talce the cafe out of the ftat. 19 G. 11. 
 c. 37 J becaufe the underwriter, by fubfcribing the policy, 
 has admitted the value there ftated ; and if more were 
 reqtiired, the agreed valuation would (ignify nothing (n). 
 And yet the value in the policy is only to be taken as 
 lellTir^^m" prima facie e\-idQnce of the amount of the intereft of the 
 ly p'imA f.uii infured. For though this value is admitted by the in- 
 
 evidt'ice, ;ii:d ... , ^ . 
 
 xnay bcdifputed. furer J yet, as he admits it upon the mere reprelentation 
 of the infured, if he find it to be fallacious, and that the 
 fpccified value was fictitious, and only a cover for a 
 wager. It cannot be fuppofed that he i.? fo far concluded 
 by his admiffion, as not to be at liberty to difqute the 
 value, and fliew by evidence, that it was n-ieant as a 
 ■ mere evafion of the a£l {b). 
 ,■ „ In an aftion upon a policy on "-ccds, the plaintiff can- 
 
 I : pv>n a policy i a ^ u * 
 
 on gcodi, a !c- j^Qf. gi^-e jn evidence a refpondenUa bond, as proof of in- 
 
 is Ik, evidenGe"jf terejl iu tlie goods upon which the money was borrowed, 
 
 jiuoeft. though they were of greater value than the fum infured ; 
 
 becaufe bottomry and refpondentia intejrells are always 
 
 infured as fuch, and there is no inftance of an infurance 
 
 r/,'7 India <^i'' refpondentia under the denomination of goods {c). — 
 
 vov.iges ihc Where money has been lent on refpondentia on Eafi India 
 
 toraiy c:.n only voyages, tlie ftat. 19 G. II. c. 37, § 5:, confiders the 
 
 infure the fuin 
 
 lent, and the _ , 
 
 Vnrrowcr the 
 
 firplus value of 
 
 th^ goods. (a) Per Lord Mansfield, in Letuh v. Rucher,, 2 Bur. 1171, 
 
 {up. 624. (3) Vid.fup. 288. [r.) R. Clover v. Black, 
 
 3 Bur. 1594, 1 Bl. 359, 405, 422.. flip. 317, 
 
 borrowerj
 
 Ch. X \T;. § 5 .] Trial— Proof of Inter ejl. 7 1 1 
 
 borrower as hiving a right to inlurc only for the fur- 
 plus value of the goods, above the money borrowed-, 
 Slid the lender as having a right to infure for the fum 
 lent. If eitiier v.-tre to iiifure for more, it would be a 
 ivager (a). 
 
 Bur the ufar^e of a particular trade may function a But the ur<.pe of 
 
 ^ ^ ' ^ trade nuy farc- 
 
 depavture from this rule —-As wlwre the captain of an ticn a departure 
 
 Eaji Indiavian made an infurancc on ^^ goods ^fpecic and Z"^"* 
 
 «' effacir on board ; he was permitted, in an aclion on 
 
 his policy, to give in evidence of his intcrelt, money 
 
 whi-ch he had laid out in the courfe of the voyage, and " 
 
 for which he charged refpondentia intereft ik). 
 
 It would feem, however, that, upon a policy on goods ^„"d,'"may^' be 
 cenerallv, the inlurcd may be permitted to give in evi- proved by a 
 
 ■' . ^ r • \ '■ t \ mortgage or 
 
 dence of his inlerelt, a mortgage or other ipecial hen [c). otherfpecial //Vi. 
 In an acliou upon a policy on bottomry or refponden- T^^ exccuuan 
 
 _ ^ ^ . ' of a bottomry 
 
 tia fecurities, evidence of the execution of the bottomry bond, and the 
 or refpondentia bond, and of the intereft of the obligor ohngor^'^aie'ruf- 
 in the Ihip or goods, is fulhcicnt proof of intereft in the fi^ient proof of 
 
 ^ " 1 • r ir • ifueieft in the 
 
 i-nfured ; and in fuch cafe, the obligor himfelf 13 a compe- oMigce; and the 
 tent witnefs to prove his own intereft In the fhip or goods ^J'^J^^^hirowfi 
 on which he borrowed the money {d). intereft. 
 
 Upon a policy upon a fliip, the pofiefllon of the infured, Pmof of poflTef- 
 as owner, is prima facie evidence of property, until fur- j^."",e'.£'^e „f 
 ther evidence be rendered necefiary in fupport of the liuc to a ihip. 
 title thus made, in confequence of its being impeached 
 bv contrary proof on the other fide. 
 
 Therefore, where it was proved by the captain that the ^oicn/on and 
 Infured were the perfons by whom, as owner.-, he was ^ E.jt ly^. 
 appointed and employed •, this v/as holden to be fuilici- 
 ent evidence of ownerflilp, though it afterwards appeared 
 by his anfwers, on crofs examination, tltat the ownerfliip 
 
 (a) Per Lord Mamfcld, \- c 3 Bur. 1400. {h) Vid. 
 
 Gregory V. Chrijlte, fup. 272. [c) Semb. G!ov;r\'. Blacky 
 
 I Bl. 423. fup. 317. [d) Vid. I BL 396. 
 
 o A was
 
 713 Of the Frocedlngs, [B.l. 
 
 was derived to the infui'ed under a bill of fale executed 
 by himfelf, as attorney to one L. W, the former owner. 
 For it did not, on that account, become neceffary for the 
 infured to produce that bill of fale, or the (hip's regilter, 
 or to give any further proof of their property ; thefe do- 
 cuments being perfectly confiftent with a title in the in- 
 fured. 
 M,irfk V. 'Rohin- So, whcrc a fhip was infured in the name of ^^ Elizahdh 
 /'>n,4.E/i> Rep. jf j[ja,-^j and fon," and the fon brought an action on the 
 policy in his own name only, and averred in the declaration 
 
 One of (cy^rA ^. / r i i • r, i ^ i • ^ 11 T 
 
 iiifureds m.'y rie- that he was folcly uitereited ; and, to prove this, ne called. 
 nnd^Ter ivmidf ^^^^ Captain, who fworc that he had been employed by 
 foie owner— \ {j^q plaintiff who verbally ordered him to take the com- 
 
 verbal i.ppolnt- ^ . 
 
 mentof checap- mand, to pjy the leamen, and draw buls on aim on ac- 
 tMin is fima count of the fnip.— It was obic£l:L^d, ift, that the averment 
 
 jecie swidence ■ f ^ -' 
 
 ownciiliip. .-N» in the declaration did not enable the plaintiff to prove a 
 l."h!ljrMe in! ^'"^^ intereft in himfelf ; and, 2dly, that the evidence of 
 teted in a ihip, j'^g captain was not fufficient to eftablifh that fa6t ; as 
 
 uolels he lie ^ ^ 
 
 upon the icijif. the orders given by the plaintiff might have been given 
 by an agent or broker.-— But Mr. Juftice Z? ^/--m^, who 
 tried the caufe, overuled both objedtions, and held that 
 the a£ls done by the plaintiff were ^r/w^y^aV evidence of 
 fole ownerfliip, and fufficient to call on the defendant to 
 prove the contrary. The defendant then ihev/ed that at 
 the time when the policy was effected the fhip flood 
 regiftered in the names of Cummins ^ M^MaJlers and Co., 
 and that there was no change in the regiftry till after 
 
 the policy was effe6i:ed Mr. Jufcice Le Blanc held this 
 
 to be conclufive againft the plaintiff's title, the ftat. 
 36 cm. c. 5o. (Lord Liverpool' B a£t) requiring that, 
 where there is a change of owners, there fhall be an in-> 
 dcrfement on the certificate, accompanied by the oath of 
 the parties ; and that till this is done a purchafer has no 
 infurable intereft {a). 
 
 Though the fen- With refpe£t to fliips, it has been determined in the 
 
 tence of a court 
 
 of priae, fitting 
 in a neutralcoun- 
 try, be illegal ; 
 
 Vll '^J^r:'Z (^) Vid. Camden v. Jnderfon, fup. 6s, 1 15. 
 
 High 
 
 t;al country ac- 
 
 ^n'e^'ce in it, a
 
 Ch. XVI. § v] Trial — Proof of Compliance. 713 
 
 Hicrh Court of Admiralty (a), that afentence of condem- ti'Je to a (hip 
 
 '^ , , ^ . ^ . . , may be <lerived 
 
 nation pronounced by a court ot prize, iitting in a neutral ^nder its ic:i- 
 
 country, was illejTal •, and that a fale under foeh fentence *"i«- 
 
 would not transfer the property to a neutral vendee.— - 
 
 This deciGon, and the reafons upon which it was founded, 
 
 were afterwards recognifed in the court of King's Bench, 
 
 where it was holden that a condemnation by a Frencjj 
 
 conful at Be I gen in Norway had not the eiTe61; of divelU 
 
 ing the property of a captured fhip out of the original 
 
 owner (b). Since then Lord Keuyoiiy in a cafe at tiifi 
 
 pritisy faid that, tliough he approved of that dccifion, yet 
 
 where the neutral country acquiefced, and permitted tJic 
 
 court of prize of a foreign belligerent to exercife its 
 
 funclions there, it varied the cafe ; and that a Britipj 
 
 fubjetl might derive a title to a flilp under a fentence 
 
 pronounced by fuch court (<:). — But it is not eafyto difcover 
 
 a good ground of diflinfbion between thcfe cafes. 
 
 4. Proof of Compliance with Warranties. 
 
 Every material averment in the declaration mufh be The truth of af- 
 proved. One of the moft material is that of the truth „^g perfu'mmce 
 of fuch afTirmative warranties, and the peformance of ^^ executory, 
 
 r I • I • 1 1- r 1- wiiraiities, moft 
 
 lucn executory ones, as are contamea m the policy j lucn be ftnifiiy and 
 as, tiiat the ftiip or goods infured were neutral property 3 •"orally proved, 
 that the Ihip fi.iled within the time limited by the policy 5 
 that fhe departed with convoy ; that (lie was of the force 
 warranted ; that (he was manned with the ftipulated 
 complement of men, &c. — Such averments muft be 
 ftriftly and literally proved ; for thefe warranties being 
 in nature of conditions precedent, the compliance with 
 them is an eflcntial part of the plaintiff's title ; and a 
 noij- compliance with any warranty contained in the po- 
 
 {a) Vid. Cafe of the Flady Otu:n, \Roh. Adm. Rep. 135, fup. 
 
 389. {b) Vid. Havilod v. Rockwocd, 8 T. R. c6S, fup. 
 
 5y6. — iO Vid. Smith v. Surridgs, 4 E/p. Rep. 25. 
 
 licy,
 
 fi4 Of the Proceedings. P- ^' 
 
 licy, to whatever caufe this may be imputable, and what- 
 ever may have been the caufe of the lofs, deprives the in- 
 fured of all claim to the indemnity meant to be fecured to 
 him by the contract. 
 Preof . f neutral I'l ^^'^ cafe of a Warranty that the thing Infured is ncU" 
 |)rppe)ty. tra! property^ it is ufual at the trial to give general evi- 
 
 dence of the truth of that warranty-; and leave it to the 
 defendant to falfify it, or prove a breach ov forfeiture of it. 
 The evidence adduced by the defendant, for this purpofe, 
 is ufually a fentence of condemnation as prize by one of 
 the belligerent powders, either on the ground of the thing 
 infured having origi'ially been enemy's property, or be- 
 caufe the fhip, by fonie niifcondu6l, had forfeited her 
 . neutrality. Copies of the fentence and of the other pro- 
 ceedings in the court of admiralty, properly authenticated, 
 .:3re always deemed fvilBcient evidence of the faft of con- 
 demnation, and of the grounds upon %yhich it pro- 
 ceeded {a). 
 
 5. Proof of the Lofs. 
 
 The true caufe The accident or misfortune which was the caufe of 
 t^ltZTm t'ne lofs muft, as we have already feen {b), be diftinaiy 
 the decididtiun. and explicitly fet forth in the declaration, in order that 
 
 the infurer may have notice of the cafe againll which he 
 
 is to prepare his defence. 
 TUe lofs mull be To charge the infurer, the lofs muft appear to have 
 proved to lave j^jppgjigji during the continuance of the rifle ; and cafes 
 
 happened clunng rx o ' 
 
 continuance havc frequently occurred in which this v/as the principal 
 queftion. What (hall be the commencement and dura- 
 tion of the rifk has been already fully treated [c) ; and 
 
 cf therilk. 
 
 (a) Vid. fup. ch. g, § 6. n. 2, where it is fully flicwn in what 
 cafes the fentence of a foreign court of admiralty fhall have va- 
 lidity in our courts, and be deemed conclufive evidence to falfify 
 this warianty. Confult alfo the other feftions of the fame 
 
 chapter. -—(^) Sup. 687. — — (r) Sup. 246, 
 
 little
 
 Ch. XVI. § 5.] Trial— Proof ofLcfs. yi^ 
 
 little need be added here upon this fubject. SufTicc it to Inti.ecauof a 
 fay, that in the cafe of a /Jjipy if fhe be infured from a ■^'''^' 
 place, it will be fufficient to prove iliat fiie weighed an- 
 chor, or broke ground, in order to fail on the voyage in- 
 fured. If the infurance be at and from a place, the rilk 
 commences from tlie time of fubfcribing the policy, if 
 the (hip be at home ; or from the firft moment of her 
 arrival at the place fpecified, if that be in a diftant part 
 of the world. — If the rift: on the Oiip be from the loading 
 of the goods on board, then proof that any part of the cargo 
 lia- been (hipped, will be evidence of the commencement 
 of the rilk. 
 
 If the infur:ince be on goods, the underwriter may, in the cafe of 
 if he think proper, call on the infured to prove that they ^" '" 
 were put in rilk. This may be done by the tefllmony 
 either of the perfons who fhipped them, or of thofe who 
 received them, on board tlie lliip mentioned in the policy. 
 But the beffc evidence of this is the bill of lading, which, 
 if botidfde made, is in all countries confulcred as an au- 
 thentic document, and conclufive evidence ot the quan- 
 tity and fpecies of goods laden on board ; bepaufe the 
 captain, who mud exhibit it on his arrival at the port of 
 deftination, is interefted that it (liall notincliide more in It 
 than he has on bo-ard to deliver. — It is, as Valin juftly 
 obferves, the true and fpecinc proof of the loading, and 
 not only evidence, as between the captain and the mer- 
 chant, but alfo againli infurers and all others ia). — The 
 underwriter may, however, impeach the bill of lading 
 on tlie ground of fraud or collufion. But the infared 
 cannot allege any thing in contraditlion to it. 
 
 The lofs may be proved by the parol teftimony of the 
 mafter, officers, and crew of the (hip, or by any other 
 legal evidence that can be adduced for tliat purpofe. 
 
 The protefl of the captain, fo long as he is living, is in ,^ pioteft \% not 
 ro cafe evidence on the one fide or the other: the only ';>''f"«> while 
 
 / the pel (on who 
 
 life that can be made of it is to contradicl his tcllimony, if m.tdeit is living. 
 
 {a) Valin, h t, p. 604. Vid, Pothier, h. t. il. 144-. Emerig. 
 
 h«
 
 71 6 Of the Proceedings. [B.J. 
 
 he vary from it. And its being (hewn by the infurance 
 broker to an underwriter as containing an account of 
 the lofs, for which the infured claimed, will not make it 
 evidence even againll the infured whofe broker thus pro- 
 duced it. 
 Sinat^ V. Torterf Thus : — An infurancc broker applied to an underwriter , 
 
 1____L' for payment of a lofs, producing the different paj/crs re- 
 The broke. 's Intir.n; to the fubiefl, and, amone the reft, the proteft 
 wndcrwiiter, figncd by the captain. The underwiter told him he had 
 with other p.- looi^e^i Ji^j-q {\^q papcrs, and as there was a point in the 
 
 pers relaiing to 1 r ' r 
 
 the lofs, on de- cafe, he would not pay the lofs. In an a£lion on the po- 
 
 jnanding pay- . riirj i, 
 
 jpciu, will not licy, It was contended on the part of the detendant, that 
 ^afnft'the^'Tn" ^^^ protcft was made evidence by the plaintiff, as a paper 
 fared. delivered by his agent to the defendant, containing an ac- 
 
 count of the lofs on which he rciled his claim •, and 
 therefore, that it amounted to a declaration made by the 
 plaintiff to the defendant of the fa£ls on which he re- 
 quired payment. — Lord Kenyan^ who tried the caufe, be- 
 ing of opinion that the proteft was not admifhble evi- 
 dence, the plaintiff obtained a verdidl. — On a motion for 
 a new trial, the court were clearly of opinion that the 
 proteft, of itfelf, could not be evidence ; and its having 
 been in the broker's hands, and (hewn by him to the de- 
 fendant, on an application for payment, wouhl no more 
 render it evidence, than a bill in equity could be made evi- 
 dence againft the plaintiff, becaufe its contents muft have 
 been fhewn to the defendant. 
 Tf a }rfs by cap- ^he lofs muft appear to have arifen from the very caufe 
 thrpiniiuiffcan- alleged in the declaration, and no other. If, therefore, a 
 no: piuvc a 1 fs Yq{^ ije allep-ed in the declaration to have been occafioned 
 
 ivy per, Is ot the o 
 
 sea. by capture^ the plaintiff cannot, under fuch an averment, 
 
 prove a lofs by the perils ofthefeoi or by any other caufe 
 than capture (a). 
 
 Ff^moh board g j£ j^ l^ ^ counts in the declaration, one for 
 
 3 fhip and run ^ 
 
 jier on (hore, ^ j^fg j^y detention of peotky the other for a lofs by pirates ; 
 
 ■whereby goods . . r^ . , r ^ r ' ' 
 
 aieioii; this is the plamtiff cannot, on either of thefe counts, give in 
 a i.,f. by Ar^r.d- g^idence that a mob of rioters had boarded the fhip, in 
 
 1117, /itio nor i)y 
 
 dcteniion f/f 
 
 feopte or hy ^ — ■ ■ 
 
 pitatd. 
 
 (a) Vid. Kulen Kemp v. Figne, I T. R. 304. fup. 130. 
 
 order
 
 Ch. XVL § 5.] Trial— Proof of Lofs. 717 
 
 order to compel the captain to fell a cargo of corn at an 
 inferior price ; and that in confequence of this boat ding, 
 the fhip was fbranded and a quantity of corn lod. This 
 could only be given in evidence upon a lofs hyJIrarJing {a). 
 
 Though it is a maxim in law that fraud fhali never be Pro^t' that the 
 prefumed, but mult be ftridly proved ; and it is a rule, gXy'^./barra- 
 founded on that maxim, that in aueilicns of infurance. 'ly. is f'lfficicnt; 
 he who charges barratry, mult lubllantiate it by conclu- mgativeiy ihai 
 five evidence {b) ; yet it has been determined tliat proof Xnc'r"&"? 
 of the captain's having carried the fliip out of the regular 
 courfe of the voyage, for fraudulent purpofes of his own, 
 15, pr'wiafacis, fufficient to entitle the plaintifr to recover 
 as for a lofs by barratry ; without fliewing negatively, that 
 he was not the owner, or that this was not done with the 
 owner's confent (c). 
 
 No evidence can be given of any lofs unlcfs it be the Every lofs muft 
 
 ,. y- r ^ .,..,. be an immediate 
 
 immediate conlequence or lome peril mfured agamft. coufcqucnce of 
 That which is only a remote confequence of fuch peril ^'^'^ 'f thcpe- 
 
 ' ^ _ ^ i Ills iniured 
 
 is not within the policy. If this rule were not adhered as-iinft- 
 to, It would be ImpofTible to draw the line, and the in- 
 quiry into the remote confequencesof an accident or mif- 
 fortune would be infinite. 
 
 Therefore, where the plaintiff, upon a policy on Haves ^" ^^^ ^^^^ *^ 
 
 (IdVCS. 
 
 in the African Have trade, declares for a lofs by the perils 
 cfthe feoy he cannot give in evidence a lofs occafioned 
 by throwing flaves overboard on account of a fcarcity of 
 water, occafioned by the captain's miltaking his courfe {d)\ 
 nor a lofs by the death of Haves who periflied for want 
 of proper food, occafioned by extraordinary delay in the 
 voyage arifing from bad and tempeftuous weather [e). 
 
 So, where an infurance was made on a fliip and carfro. J""''"''- ^^ '•»».'.', 
 in the flave trade, ' At and from Brifol to the coalt of Vac. 178^,""' 
 
 I T. R. 130, n. 
 
 Slaves are in- 
 
 (a) R. N.Jhlt ^.Lujhlnzton, i T. R. 7S3, fup. 230, 504 [^ollS";* 
 
 {h) Baratarite crimen nunquam eji prefumenJum, fed conclucknt'ifftme ^""'i'ly- and, yi 
 
 proLandum. Cafaregis, 6:xic. i, n. 60; difc. 225, n. 99. Vid. I^ZZCTJ, 
 
 Emerij. torn, i, p. 372. (c) R. Rofs v. Hunter, 4T. R. 33, «^'« ^f tl^fir 
 
 r / ]\ n /"• r /T71 r wounds, other* 
 
 fup. 531. (d) R. Gregfon v. Gdbert, lap. 491,554. of ch;n;ri,>, &c. 
 
 {e) K.Tathamw, Hodgjon, 6 T. R. 656, fup. 491. The inlurcr i« 
 
 yij- ■ hablc fjf itiole 
 AJricat
 
 7iS 
 
 Of the Proceedings. 
 
 [B.!. 
 
 who were killed 
 or moitiilly 
 woujuledjiii the 
 liiuuny J but 
 Dot fur thoCe 
 who died i'ruiii 
 otlier cauics, 
 though the re- 
 mote conft- 
 
 qiicnces of *he 
 
 imiiiiiy ; nor 
 
 for 
 
 the diminution 
 in value otca- 
 (ioneJ by the 
 d'ifpofitioii m.i- 
 nifelUd by the 
 tnuiiiiy. 
 
 * --Y/rrV.'7, during her (l.iyand trade there, and from thence to 
 
 * her port or ports of discharge in tlie ff'''ej} Indies.' There 
 was a memorandum on the policy, in thefe words ;— 
 
 * The infurers are not to pay any lofs that may happen 
 
 * in boats during the voyage, (mortaUty of negroes by 
 « natural death excepted) and no-t to pay for mortaUty 
 < by mutiny f unlefs the fame amount to lol. per cent, to 
 
 * be computed upon the firft coll of the fhip, out-fit, and 
 
 * cargo, valuing negroes fo loft at 25I. per head.' — In 
 an action upon this policy, the demand was for the value 
 of a number of flaves lojl by mntiny.-^The evidence of 
 the captain was that he had Ihipped 225 prime flaves on 
 board •, that on the 23d of May, before he failed from 
 the coaft of Africa, an infurredion was attempted ; that 
 the women feizcd him on the quarter-deck, and altempted 
 to throw him overboard, but he was refcued by the crew ; 
 that the women, and fome men, threw themfelves down 
 the hatchway, and were much bruifed •, and 1 2 men and 
 a woman died of their bruifes, and from abftinence j 
 that there was a general infurre£lion, and the crew 
 were from innninent neceffity, obliged to fire upon the 
 flaves, and attack them with weapons; that feveral 
 flaves took to the fhip's fides, and hung down in the 
 water, by the chains and ropes ; fome for about a 
 quarter of an hour ; that feveral were killed by firing, 
 feveral wounded, feveral died from fwallowing fait water, 
 or of their wounds, or from bruifes, fome from chagrin 
 at their difappointment, fome from abftinence, fome 
 from fluxes and fevers^ — in all to the amount of ^^y who 
 died during the voyage, — The underwriters had paid for 
 19, who were either killed during the mutiny, or died of 
 their wounds, which amounted to 1 5 per cent. For the 
 plaintiff it was contended that, though the reft did not 
 a6tually die in the mutiny, or of any wounds received 
 at that time ; yet, as they had all died in confe^ucnce of 
 the mutiny, the underwriters were liable. Another con- 
 fcqnential lofs was, tint the circumftance of the mutiny 
 had fo leiTcned the value of the flaves, in the eftimation 
 of the planters, that they were fold for 17I. a head Icfs 
 than Lhey wguld oLhci'syifc. have fetched. — LorJ Jltans-
 
 Ch. XVI. § 5.] Trial— Proof cf Lofs. 7 i 9 
 
 feldy who tried the caufe, faid ; — «■ I think the under-* 
 writers not anfwerable for tlie lofs of the market, or the 
 price of it : That is a remote confequence, and not witliin 
 any peril infured againft by the policy. The queftion for 
 the jury will be, whether any of thole, who died by any 
 other means, except the being fired upon, or in confe- 
 quence of the wounds aiid bruifcs which they received 
 during the druggie, are within the meaning of the policy, 
 which infures againft damage by mutiny. It is very clear 
 that thofe who were killed by the firing, or died in con- 
 fequence of their bruifes during the mutiny, are within 
 the policy ; the other complicated cafes mult be left to 
 the jury- I think, clearly, thofe not within the policy, 
 who, being baffled in their attempts, in defpair, chofe a 
 mode of death, by fafting, or died through defpondency. 
 That is not a mortality by mutiny, but the veverfe ; for 
 it is by the failure of a mutiny — The great clafs are fuch 
 as received fome hurt by the mutiny, but not mortal, 
 and died afterwards from other caufe s ; as thofe who 
 fwallowed fait water, jumped overboard, Sec." — This is 
 the great point." — The jury found, — that all who were 
 killed, or died of their wounds or bruifeSj which they 
 received in the mutiny, though accompanied with other 
 caufes, were to be paid for : But, that all who had died 
 by fwallowing fait water, or leaping into the fea, or hang- 
 ing upon the fides of the fhip, without being otherwife 
 bruifed, or died of chagrin, were not to be paid for. 
 
 So, where tlie fiiip FN was infured from Exeter to '^'^"'' "^ ^''"f''* 
 
 . n • at N P. Fca/ie, 
 
 Londofi, againft capU-ire only j and the fnip on her voyage 212. 
 
 was driven by a gale of v/ind on the coaft of France^ a (hij, is drivei*. 
 
 and there captured by the enemy. — In an a£lion on the byy.Vr/t o/wm- 
 
 ' ther oil an enr» 
 
 policy It was contended on the part of the defendant, niy's cont, and 
 
 that this was a loishy \ht perils cf the fea, and not by xitiTi'Tioflby 
 
 capture. — But Lord Kenpn,\\]\o tried the caufe, held that c<ip!u,f, not by 
 
 this was clearly a lof> by capture ; for had the finp been ica. 
 driven on any other coafl than that of an eiicriiy, QiC 
 would have been in perfect fafety. The jury^ under this 
 direction, found a vcrdift for the pla'intiff. 
 
 ii the plaintiff declare upoa a lofs by fire, in order to ^po" > dMara. 
 
 prevent Uie veilei ana her cargo fron: iall;ag into the /;,e, ,hc piaiti, 
 
 S • h^iids '!''' "''" ^''""
 
 7^® Of the Proceedings, [B. L 
 
 fet fire ro the hauds of the enemy, he may prove that the veflel being 
 hc'/faUing into purfued by a privateer, the captain and crew difcharged 
 
 the hands of the j^ vun^ down her hatchway, and having fet her on fire 
 enemy. o '' *^ _ 
 
 in feveral places, left her, and rowed aOiore in the long- 
 boat {a). 
 Ctrey v. King, ]3ut thc plaintiff may give in evidence any lofs or 
 
 Ca. temp. HnrJ. ,.,. . ,. ^ j~ ,. , 
 
 -J,, damage which is an immediate conlequence or the acci- 
 dent or iniurv alled^cd in the declaration. — As where 
 
 The plaintiff . , 
 
 may give ill evi- it was avcrrcd ill the declaration, that the flup fprung 
 immediatd '"'* ^ ^^^^ ^"^^ ^""^ "^ ^^^ river, whereby the goods were 
 proceeding from (poikd : And the evidence was, that many of the goods 
 
 the caufe al- ^ ■, ^ r r ■> f-ni n. 
 
 ic^ed. Were fpoiled, but fome were laved. Ihe queiiion was, 
 
 whether the plaintiff" might give in evidence the expence of 
 falvage^ though not particularly ftated in the declaration, 
 as a breach of the policy. — Lord Hardiuiche faid, — *' I 
 thhik they may give it in evidence \ for the infurance is 
 againft all accidents. The accident laid in the declara- 
 tion is, that the iliip funk in the viver : It goes on and 
 fays, that by reafon thereof the goods were fpoiled. This 
 is the only fpecial damage laid : Yet it is but the com- 
 mon cafe in a declaration that lays fpecial damage, where 
 the plaintiff may give In evidence any damage that is 
 within his caufe of aftlon as laid. It was objetled that 
 fuch a breach of the policy fnould be laid that the in-* 
 , furer may have notice to defend it. Now it Is fo in this 
 
 cafe, for they have laid the accident, which is fufficient 
 notice, becaufe fome damage mud have happened." 
 But it muft be a The lofs niuft appear not only to have proceeded from 
 medfaie"1:an"c' the vcry caufe alleged In the declaration, but alfo to 
 ^jencc of thc \^q ^ dircffc and Immediate confequence of the accident 
 
 caufe alleged. .. i ■ i i ^ t r i ■ • 
 
 or misfortune which has happened to t/je very thing ih" 
 ftircd. Therefore an expence which is incurred in con- 
 fequence of the accident or misfortune ftated in the de= 
 claratlon, but which is not incurred In repairing the da- 
 mage occafioned by it, cannot be given In evidence as 
 proof of the lofs within the meaning of the policy. 
 
 {a) Per Lord Elknhorou^h, at N, P. Gordon v. Rlr.m'mgiortf 
 \ Cam^r Rep. 123. Vid. fup. 494. 
 
 As
 
 Ch. XVI. § 5.] Trial'-ProcfofLofs. 721 
 
 As where a fhip was infured, ^ At and from London to FUichn v. Tcalt^ 
 
 * Newcajile and Marfeilles, and from tlience to the Weji' E^h i-fic)^ Far 
 
 * Indies' — The fliip, in diftrefs, bore away for Mhiorca^ 5-- 
 
 where it being found necelTary to repair her, fhe was un- Wa^t-- and pro- 
 avoidably detained there a confiderable time.— The in- ;.'^'"'" ^■='P-"'«d 
 fured brought an aclion on the poKcy, to recover the ex- °^ fea-damage, 
 
 J. , r 1 . . • 1 • , is not a lof$ 
 
 traordmary ivagcs and provijtjns expended during this de- within a policy 
 
 tention : But Lord Mansfaldy who tried the caufe, was "^ ^^^J^'^- 
 of opinion that fuch a demand could never be allowed as 
 a charge againft the infurer on the JJAp •, and a verdi£t was 
 accordingly given for the defendant. 
 
 So, where an infurance was made ^ o\\ JlAp and goods y ^^^^^ ^, p^^, 
 
 * from OJiaid to Dominique.' — The fliip in her voyage at N. P. after 
 having met v/ith bad weather, and being in great diftrefs, 5^.' ' • ' "' 
 the cre%v threatened to take the command from the mailer, „ . 
 
 , - , 1 1 1 r 1 ^ r> Upon a p "licv 
 
 unleis he would make for the firft port. The maftcr on/-// ^WooWJ, 
 bore away for Ferrol to repau" the flilp : but by the time '^^ '"''""'' "Z" 
 
 •' ^ r ' J ^ not recover tor 
 
 the repairs were finifhed, the crew dcfertedihicr. He wages piovu 
 
 •■ ' , , , . fijiis or dtiTtUT- 
 
 then got another crew, and at the moment he was gomg ^gc, tiuring a 
 to fail, the Span ijh Poxernor flopped him, and after de- ^'i>\'> ^"^^y -^^^ 
 
 .. ,..- repair, and dc- 
 
 tammg him 37 days, difcharged him, and he proceeded temion by a f«- 
 on hia voyage, and at length arrived at Dominique. — An "■«'»" P"***^- 
 action was brought on the policy to recover the lofs in- 
 'curred by ivagcs, provificnsy and demurrage, during thfi 
 fhip's detention at Ferrol. On the part of the under- 
 writers it was contended that the freight^ and not the 
 fhip, is liable for this lofs, and tliat tlie charge of de- 
 murrage could not be allowed upon tliis policy. — Mr. 
 Juftice Buller^ who tried the caufe, was of this opinion, 
 and non-fuitcd the plaintiff. 
 
 So, where a fiip was infured, ^ At and from Lo7idsn RoIct'Jm v. 
 
 * to Africa, during her flay and trade there, and to her ^'^'''> ' T. R, 
 
 * port of difcharge in the fFeJi Indies ;' — the fhip on 
 
 her voyage from yjjnca, with a cargo of llaves, to her port en a policy on 
 
 of difcharge in the TTeJI Indies touched at Barbadoes for jfjo^f \""cx! 
 
 the purpofe of watering, where fhe was detained a con- V'^^'^'^ °^ wages 
 
 . . or provirions cc- 
 
 fiderable time by an embargo, which had been before cafioncd by a 
 laid by the commander in chief on all fhips at that ifland. au'JwZM''L"" ' 
 The captain applied for leave to depart, and being re- 
 fufed, he failed without leave, but was purfuedbya floop 
 VOL. ji. R of 
 
 \
 
 f29 ' Of the Proceedings. [B, L 
 
 of war, and after a flight engagement, brouglit back, and 
 the crew diflributed among the men of war. The em- 
 bargo continued horn the i8th of Dece77tberf till the 27th 
 of January. 1 he fmall pox broke out among the flaves 
 on the 22d of January. In confequence of all this, and 
 for want of mariners to navigate the (Iiip, fhe was de- 
 tained at Barbadocs above two months after the embargo 
 was taken off. She then failed to Jamaica^ her place of 
 difcharge. — In an aftion on the policy to recover the 
 amount of the additional lunges and provijions occafioned 
 by the ftiip's detention under the embargo, Mr. Jufticc 
 Buller was of opinion that this policy, being upon the 
 body of the fliip, and the average lofs thereon, exclufive 
 of the charge for wages and provifions, being lefs than 
 3 percent.^ the plaintiff was non-fuited. Upon a m.otion 
 to fet afide this nonfuit, it was contended on the part of 
 the plaintiff, firj}, that this lofs, being occafioned by the. 
 embargo for which the infured might have abandoned, and 
 recovered as for a total lofs, he might recover a partial lofs 
 to the amount of the damage a£lually fufbained [a) ; and 
 fccondlyy that this was a lofs occafioned by the barratry 
 of the mailer, by his refillance to lawful authority. — But 
 the court determined that the plaintiff had no right to 
 recover on either ground. — Lord Afansfeld hidy — " There 
 is no authority to fliew that, on tliis policy, the infured 
 can recover for fuch a lofs ; but it is contrary to thecon- 
 flant praftice. On a policy on a fh.p, failor's wages, 
 or provlficns, are never allowed in fettling the damages. 
 The infurance is on the body of the (hip, tackle, and 
 furniture , not on the voyage or crew. Here it is ad- 
 mitted that no damage v/as done to the fhip, tackle, 
 or furniture •, and therefore i think the diredlion was 
 right, and that the plaintiff ought not to recover." — Mr. 
 Jufticc Buller faid •, — " If the Ihip had been detained in 
 confequence of an injury which ihe had received in a 
 ftorm, though the underwriters muft have made good 
 the damage j yet the infured could not have claimed 
 
 [a] Vid. Rotch v.. Ed'ig, 6 T. R, 4:15. fup. 44, 511. 
 
 the
 
 Ch. XVI. §5'J Trial— T roof of Lofs. 72'^ 
 
 the nmount of wages or provlfions, during the t'me fpent 
 in repairing. The court only look to \\\cJuhjsEl matter of 
 the hfurance. Here the ihip was fsfe ; and the wa^cs 
 and provifions are no part of the thuig infured." 
 
 Yet, in the following crife, which is not eafily recon- Yetadiip'spro. 
 cilable with the three foregoing cafes, It was the opinion f.'SaY^a""/ 
 of the court that a fnip's provifions are protected by the "''■A>'/"d ^rc 
 
 , ^ ^ ^ ' pn tcctcd by the 
 
 policy^ even when landed on a Banh Saul during a re- policy, 
 pair ; and that they were to be conddered as a part of 
 thefklp. 
 
 An infurance was made on a China flilp, and, In the ^rcugh v.irhit. 
 
 ufual words, « On the tackle, ordnance, ammunition, "'06? "^ 
 
 * artillery, and furniture of the fhlp.— In an adion on ;, ~ . 
 
 ,-,..,. A Ihip s provi- 
 
 tnis policy, It appeared that while the fliip was lyino- off (^on?) riining a 
 Eanh-Saul If and, in the river Canton, it became necelfary o'n^f z'^-'S 
 to refit her, for which purpofe, the ftores and pro\i- ^'^'' '''^'"'^ '^°"- 
 fions were taken out of her, and put into a warehoufe Ti'Tun'Zrt?;^' 
 called a Bank-Saul, where thev were deflroved bv acci- '^'^ t-nthcd.ip 
 tientai hre. — At tne trial, this accident was confidered l'^^'!». 
 as if it had happened en board the pip [a), and it was 
 admitted that the policy covered all the articles but the 
 provfons j and if they were not proteded by the policy, 
 
 then there would not be a partial lofs of o^ per cent. Oa 
 
 the part of the defendant it was contended that the pro- 
 vifions, which were merely for the fliip's crew, were not 
 prote£led by a policy on the fip. But one of the jury, 
 obfcrving that it had been determined in Lord Mansf.ela^ 
 time, that they were included under the word ^ furni- 
 ' ture,' and that the merchants in the city had ever 
 fmce acquiefced in this decifion, there was a vedicl for 
 the plaintiff. — On a motion for a nev/ trial the above 
 cafe of Rcbertfon v. Eiver was relied on as a clear au- 
 thority to fhew that the fiiip's provifions were not pro- 
 tected by a policy on the fiiip j and that, if provifions 
 v/eve included in the term < furniture,' there could never 
 be a total lofs, after a confumption of any pai't of tliem. 
 — The court, however, were HnanimouHy of opinion that 
 the underwriters were liable for the expence of the pro- 
 
 (^} Vid Pelley t, Roy. Ex. JJ. I i?«;-.34:, fup. 269. 
 
 R 2 vifions
 
 ■ 724 ^f /^^ Proceedings, [B. L 
 
 vifions which were bought to replace thofe confumed 
 by the fire, v.'hich was an accident within the words of 
 the pohcy. — Lord Kenyon faid ; — " When it was dated, at 
 the trial, th^t provi/Jofis were included in the word '/ur- 
 * future' I confefs I was fomewhat at a lofs to know to 
 what extent the underwriters were liable on words fo in- 
 definite as thofe which are ufcd. If the provinons be 
 infured as part of the out-fit of the fh'p, and they were 
 deftroyed by one of the perils infured againft, there is 
 an end of the queftion ; a lofs has happened within ihe 
 meaning of the policy, and confequently the defendant 
 is liable. But it was faid in the argument, that the in- 
 ftant any of the provifions were confumed on board, there 
 could not be a total lofs . But the anfwer is, that that 
 comes within the ivear afid tear of the pip ; and it might 
 as well be faid, that if a maft were a little injured, there 
 Diftinftionj could HOt be a total lofs. The cafe of Robertjon v. E-ner 
 cll7lTdthn is clearly diftinguifhable from the prefent. Here the pro- 
 af Rohrtjcn V. vifions v/ere confumed by an- accidental fire on board the 
 fhip, (for the ifland and the fhip were, for this puvpofe, 
 the fame), and within the meaning of the policy j but, 
 in that cafe, they were confumed hy the negroes^ during 
 the detention of the fhip ia)."-—l.lr. Juftice Buller faid, 
 — " It is perfectly clear that, in every inftance where 
 
 (a) According to the Report of Rohcrtfoii v. Enver, Lord 
 . Mansfitld laid it down as a general rule, not reftridled to any 
 particular trade, that on a policy on a Jh'p, failor's wages or 
 prov'ifions are never allowed in fettling the dann.ages ; nor was it 
 ever objefted in that cafe, that the provifions had been con- 
 fumed by the flaves. It is not likely, indeed, that fuch an ob- 
 jeclion could have been made ; for ,it is well known, that the 
 food provided for the flaves was part of the cargo, and ver^^ dif- 
 ferent from that which was provided for the fliip's company ; 
 befides, the fliip's company mull: have confumed a part. jBut, 
 be this as it may, if it be neceffary. in order to fupport tho cafe 
 ci Robert/on V. Etver, to fuppofe that the provifions, for which 
 the infured wanted to charge the underwriters, were covfuincd 
 hy ihejlaves, and not by the crew, then the cafes of Fletcher 
 V. Poole, and Eelen v. Poole, where no fuch ground could be 
 allegedi cannot be fullained. 
 
 lofles
 
 Ch. XYi. § 5. J Tr:c:I~- Prcaf of Lc/s. ^2 ^ 
 
 loffes have been fettled, the provifions put on board the 
 vellel, when ihe failed, ha-/e been confidered zs parf of 
 the Jhip. The value of the (hip alone comprehends the 
 hull, the m?.fts, the tackle, and the provifions. Then, if 
 the provifions be included in a policy on the fliip, and 
 all the provifions be loft, the underwriters xnuft make 
 good the whole lofs, whether it be a valued or an open 
 policy. But it has been faid, that if an accident happen 
 after fome of the provifions are confumed, the under- 
 writers are entitled to a deduction to the amount of fuch 
 provifions : I will anfwer this, as the argument applies, 
 firfl to a valued, and then to an open policy. As to 
 the firft : From the nature of the policy, the piovifions 
 are not infured againft all events ; they are only infured 
 agalnft particular rifks. Again, there is nothing from 
 which there can be falvage : If the body of the Ihip, and 
 every thing on board, be funk, or burned, there can be 
 no falvage. And, in cafe of an open policy, the in- 
 fured muft prove, by evidence, what was the value of the 
 whole ; and then the fame reafcns apply as in the cafe of 
 a valued policy. With refpett to the cafe of Rohertfon 
 V. Ewer, I thought at firft that it applied ftrongly to the 
 prefent ; and if 1 ftlll eniertained the fame opinion, I 
 would not, on account of any ufage to the contrary among 
 underwriters, overturn a folemn determination of this 
 court : But that cafe, and the two others there men- 
 tioned, are clearly dillingaifhable from the prefent. — In 
 all thofe cafes the infured \rifhed to charge the under- 
 writers with the amount of the provifions confumed, 
 duriog the time when the fhips were detained. Of thofe, 
 therefore, it is fufficient to fay, that an infurance is on 
 the {hip fr the voyage ; but during a detention, the fhip 
 is not proceeding ; and therefore the underwriters are not 
 liable (a\ This cafe alfo diiFers from Rohertfon v. Enver 
 in another circumftan<;e : There, the provifions were con- 
 
 (a) There muft be fome miftake of the reporter in this place. 
 It cannot be fuppofed that the learned judge ever meant to fay-j 
 that while a (hip J3 detaiuedj fhe is not under the prjtcdlioij of 
 tiie policy. 
 
 V. fumed
 
 y2S Of the Proceedings. [B.I. 
 
 fumed by the (laves on board, and net by the (hip's crew, 
 and the flaves are conHdered as a part of the cargo. The 
 words of Lord A-IamJit'Id, in that cafe, muft be taken with 
 reference to the cafe then before him. He was then 
 fpeaking of a charge for provifions and during the deten- 
 tion of the {hip, and for the maintenance of the flavcs \ 
 and he faid j — " There is no authority to fliew that, on 
 *^ this policy, the infured can recover {or fuch a lofs \ but 
 " it is contrary to the conftant practice." Then he pro- 
 ceeded to fay that, on a policy on a fhip, failor's wages 
 or provifions are never allowed in fettling the damages. 
 Now, even if ihofe latter words be taken in their general 
 fenfe, and not confined to the cafe immediately before 
 the court, they are accurate ; for provifions, eo tiowifjey are 
 not taken into confideration. — If the captain be obliged, 
 in confecuence cf the detention, to purchafe other fbores 
 for the remainder of the voyage, the underwriters are not 
 anfwerable for thefe ; but only for thofe which were on 
 board at the time of the infurance, fince they only formed 
 a part of the value of tbe fliip. — The ufage of merchants, 
 as to the conl1ru£lion of thefe inftruments, ftands unim- 
 peached, and therefore it muft prevail in this cafe." 
 vVhen t>ie fx- By the lav/ of France («), the expence of wages, and 
 
 and* p°oviii'onr P'^o'^i'''<^^'^s of the fcamen, during a detention, are reputed 
 ihall be a gene- 5 PTi'/j-, or zsr^-cral averap-e. if the fliip was hired h the 
 
 ral, when a p,ir. , •; , "^ . . , • , / - ,• " . 
 
 tjcuiar, average, "lyionth '., but II hired /or the voyage, tms expence u 
 t)btne by the flrip alone, as a fimple average. — Pc- 
 ih'ier (b) gives the following reafon for this diftinftion. 
 The wages of the failors being included in the freight, 
 Kvhen the fhip is charteredy^r the voyage^ the ov/ner, who 
 deceives freight for the whole voyage, is bound to fupply 
 {he labour of the failors for the whole time of the voyage, 
 of which the time of the detention makes a part. — On 
 the other hand, when the fliip is chartered l>y the months 
 the owner, receiving no freight during the detention, 
 owes no fervice of the failors to the affreighter. The 
 affreighter therefore, ought, in confideration of the be- 
 
 (a) Ord. de la mar. tit. des avar'm, art. 7. Vid. .EeHfn^. 
 t torn. I, p. ^2)^^ i^h) Tit. des charies fartie/i n. 85.
 
 Ch. XVI. S 5.] Trial^Praof of Lofs. ;:; 
 
 ncfit he derives from the labour of the failors, to pay for 
 their labour and provifions during the detention. 
 
 But the ufage of trade often controls the general con- But tV.e ufige of 
 
 rtruaion of the policy ; and what (liall or fhall not be u'rm.ncl' whaf * 
 
 protected as part of the (hip and furniture depends, in i^»">f deemed 
 
 r r ^ r r , part ^.■i the Ihip. 
 
 lome caies, on the ulage of a particular trade. 
 
 As whire an iufurance was made, in the ufual form, Ht-Jkim v. pick* 
 
 on a fliip employed in the Greenland fiihery ; and, in an ac- G.^iii. ^'li, 
 
 tion on the policy, the queftion was, whether the fJJjing- ^^^J_ 
 
 iacele was included in the infurance on the Jl'ip, furni- Whether the 
 
 iure. &CC.— Lord Ma^^sJIe/d, who tried the caufs, faid, fn'^Gl'"'!/™ 
 
 that there was no doubt but that the boats, and riegintr. '''''''''', '''^"'^ ^'^ 
 
 in i_ 1 • in- Ob fo» included 1.1 a 
 
 and itores, belongnig to the lliip, were included ; and as po icv on the 
 to the fifldng {lores, it muft depend on the ufage of the t!\^S^ 
 trade. Or: this, there was contradictory evidence. The t''*<^«- 
 plainufF, however, obtained a vcrdid, which the court 
 afterwards fet afide, and granted a nesv trial, upon the 
 ground that the evidence of the ufage was principally in 
 tavour of the defendant. 
 
 In a former chapter we had occafion to obfcrve that the The c^ptain't 
 captain's c!::kes, the j7:ip's froviftons, d.nd goods lufhed to fhi ''''"•'.';'''' /^"f' 
 tiece zre not comprehended under the general denomina- go^ds injhcd to 
 tion of ^^ goods, luares, and merchandizes," in the policy ; wTtlt^'a 'pdky 
 and that the infurer is not, therefore, liabfe for any lofs on °" ^'""■^'' 
 diefe articles unlefs they be fpecifically named (a). 
 
 Therefore, where an action was brought on a policy R"/' v. Hu^Kr, 
 on goods, the property of the captain, for fix months, Hif fe'c! m. 
 the lofs proved was chiefly for goods lapsed to the deck, the ■''•"^ 20- 
 captain's clothes, and the Jljip's provificns. — On the part 
 ot the defendant it whs proved by an underwriter and 
 a broker, that none of thefe things are within a general 
 policy on goods ; becaufe the rilk is greater, as to goods 
 Jafhed on deck, than on other goods ; and that a policy 
 on goods generally, means only fuch goods as are mer- 
 chantable, and a part of the cargo. They alfo fwore 
 that v/hen goods like the prefent are meant to be in, 
 furedj they are always infured by name, and the pre- 
 
 {a) Vid. fup. 3f9. 
 
 ^ 4 mium
 
 723 Of fhe Proceedings. [B.T. 
 
 rnium is greater. — Lord Mansfield fald he thought it 
 conrillent with reafon, and underftood the ufage to be fo j 
 and therefore the plaintiff withdrew a juror, the premium 
 having been paid into court. 
 The infured on jj^^ ^^ atlion on a policv on goods^ the infured cannot 
 
 goodi, is not en- . . , .....,, -. 
 
 tititfd to freight rccover for freight pro rata itinens paid by the owner of 
 
 capture. capturcd and detained by a foreign power, and after- 
 wards reftored. 
 B^'c V. Modi. Thus : In an action on a policy on goods, * At and 
 
 f?'Ti'[ "'' R.^ ^ ^^"^""^ tlevis to Brijhl,' it appeared that the fhip on her 
 
 MS- voyage was captured by the Fre?ich) carried into Mor~. 
 
 Goods aie in- laix, and there condemned. Upon an appeal to the 
 
 fured, the fliip parliament of Paris, this fentence was reverfed, and 
 
 and goods are ^'"•'•** j j 
 
 captured ai.d the fliip and cargo were decreed to be rqjlored ; ox 
 fcnicncc re- the net proceeds thereof, if fold, to be paid to the 
 rerfs^, and the r]aimants. TiiC fhip and cargo having been fold before 
 
 piocceds ordered i o o 
 
 to be paid ro the this fcntencc was obtained, the money, after dedutling 
 Vl\ghl'''^o ^.^ta all charges, was remitted to the plaintiff, who was 
 i:!neyis, paid by gggnt for the owners of the fliip, for the owners of the 
 
 the owntr of the ° . ^ 
 
 jT'jods,. is not a goods, and for the underv/nters.-— Ihe underwriters paid 
 theT,nuers'''on the charges of the fuit, and all other expences. The 
 ine goods are plaintiff" (the common agent) paid to the owners of the 
 fhip, freight /'?'(5 rataititiens\ and the queltion was, whe- 
 ther he was to be reimburfed by the owners of the gooda, 
 or whether this was a lofs within the policy, for which" 
 the underwriters were liable. — The court, after tin>e 
 taken to deliberate, were unanimoufly of opinion, that 
 the underwriters were not liable to this charge. — Lord 
 Mansfield faid ; — " The queftion is, whether the owner 
 of the goods can charge the underwriters with this it-eiiz, 
 ■svhich was paid for freight j:)r<j rata itinerisy by the owners 
 of the goods to the owners of the fliip. As between the 
 owners of the fliip, and the owners of the cargo, in 
 cafe of a total lofs, no freight is due : Eut, as between 
 iketn, no lofs is total, v/here part of the property is faved, 
 and the owner takes it to his own ufe. Here the value of 
 pf the goods was reflored in money, which is the fame 
 as the goods : and therefore freight was certainly due 
 iro rata ithieris. Kutj^ as between the infured and the 
 
 underwriters
 
 Ch. XVI. §5.] Trial^'Proof of Lofs, 
 
 7 '"9 
 
 underwriters u^on the cargo, it is a contrad cf indemnity, 
 and the latter have nothing to do with the freight. The 
 owner of the (hip has a lien for his freight ; but in the 
 cafe of a lofs, really total, no freight is due. In the cafe 
 of a lofsj total as between the infurer and infured, with 
 falvage, the owner may either take the part faved or 
 abandon ; but in neither cafe can he throw the freight 
 upon the underwriters ; becaufe they have not engaged 
 to indemnify him againft it, and have nothing to do 
 with it." 
 
 In aflumpfit the plaintiff recovers damages according 
 to the evidence ^rj tanto, and therefore he is not obliged 
 to prove all the damages alledged in his declaration. 
 Hence^ thougii vhe plaintiff declare as for a total lofs, 
 he may recover as for a partial lofs. — So, if he declare 
 as for a total lofs of the entire thing infured, when in 
 faft he was only owner of, or interelled in a part thereof, 
 and the lofs be only partial, yet he ihaii recover his pro- 
 portion of fuch partial lofs to part. 
 
 Thus : — An infurance was made on one fourth of a 
 fhip ; and the infured declared exprefsly as for a tctal lof: 
 of the fhip •, but the evidence only proved a partial lofs j 
 nor was it attempted to prove a total one, the damage 
 being fo fmall that it might have been repaired for 50I. 
 —It was objeded at the trials on the part of the de- 
 fendant, that evidence of ?l partial icfs, was not fuffi- 
 cient to maintain a declaration for a total lofs, and it 
 was fuggefted that the pradlice was contrary. — A ver- 
 dift, however, was taken as for a partial lofs, fubje6t 
 to the opinion of the court on the above queflion. — ^The 
 court were clearly of opinion with the plaintiff. — Lord 
 Mansfield faid ; — " I was fatisfiecl upon principles, pro- 
 vided the pracSlice did not interfere; but, having heard 
 of no determination in fupport of the pradice alleged, 
 the cafe muft ftand upon principles j and, upon principles, 
 it is clear that the plaintiff may, upon this declaration, 
 recover as for a partial lofs. This is an a£lion of 
 ajfiimpfty which is a liberal action ; and the plaintiff may 
 recover kfs than his declaration would fupport, though 
 jiot 7ncre. There arc two grounds of the plaintiff's de- 
 
 g duration 
 
 TVie undcT- 
 writcrs oil g'>^t 
 are in no cale 
 liable iaxfrtigit. 
 
 If the plaintiff 
 dcclate upon » 
 total i<,fs,heniaj- 
 recover for a 
 partial lofs. 
 
 So, if he declare 
 fur a lofs upon 
 an entire things 
 when lie is only 
 a part owner. 
 
 Gitrdintr T, 
 Croi'fdal', 2 But. 
 904, I Bl. 19S. 
 
 Upon an infur- 
 ance on one 
 fi'trtb of a fliip, 
 pl.iintifF declares 
 as for a tot a! lof\i 
 but proves onljr 
 »par!iat /ofs ; he 
 (liall recover 
 (uch partial lofx.
 
 ^3'o Of the Proceedings. [B. I. 
 
 claraticn •, the policy, ami the damage to the fh'.p. Whe- 
 ther this be a total or a partial lofs, is a quci\ion that 
 goes to the quantum cf damages^ not to the ground of the 
 acimu 1 he ground of the aaion is the fame, whether 
 , the lofs be total or partial ; both are perils within the 
 policy. As to the defendant's not coming prepared to 
 defend a partial lofs j this, indeed, would be an objec- 
 tion, if it were true : But the defendant does, in truth, 
 come prepared to fiiew, eitlier that no damage had hap- 
 pened at all 5 or, at kail, that damage had n^t happened 
 to the extent alleged. — Neither could the defendant have 
 been hurt by a judgment by default; for the plaintiff 
 could not have recovered upon the writ of enquiry, more 
 damages than he could prove that he had adually fuf- 
 iered. If this objedion were to prevail, it would in- 
 troduce the addition of unneceflary counts in the decla- 
 ration. In an ejectment for more, the plaintiff may re- 
 cover lefs : It is every day's praftice."— Mr. JuHice Be- 
 nifon concurred, and faid ; — <' In an aclion for damages, 
 the plaintiff is to recover according to his proof, pro tanio j 
 but he is not obliged to prove all that he has alleged. 
 If It had been an aiSlion of covenant for pulling down a 
 hcufe, might not the plaintiff' be entitled to damages for 
 pulling down a part of it ? This is no variance of the evi- 
 dence from the declaration. The evidence tends, in a 
 certain degree, to the proof of what is alleged in the de- 
 claration. Two counts would have been unneceffary." 
 in/lngv.Surnatf So, whcte the plaintiff was one of four part owners oi 
 ^' ^i)^c\mhe^' a {hip, and each infured the freight without mentioning 
 J79S. MS. t^jit it was only z JJjare of the fre/git that he was in- 
 
 One of feverai terefled in. — ^The plaintiff, in his declaration, dated hijs 
 SrmayTna!re intcrcft generally, and not as being an aliquot part of the 
 the freight gene- (^\-p^ — It was objected on the part of the defendant, that 
 rcentio'Jins''what the plaintiff ihould have alleged his intereft according 
 ihare he lus m j^^ ^^^^l^ ^^^ ^^^ j^ that general form. That the 
 
 the (nip ; and he *• ' *=> 
 
 may declare ge- reglfter of the fliip, which was produced, was conclufive 
 
 covn'^ccolding" evidence as to the perfons who were owners, and of 
 
 t« his intereft. thcir refpeftive {hares ; and the regifter fliewed that the 
 
 plaintiff was only owner of the fourth part. — Mr. Juftice 
 
 Sulkri who tried the caufe, held, that thts being an open 
 
 policy
 
 Ch. XV!. § 5.J Trial-^ProofofLofs. 731 
 
 policy (a), the plaintiff might recover according to his 
 intercll ; and he had a verdidl accordingly. 
 
 So, if the plaintiff prove a greater interelt than he al- A fonia-i if he 
 
 levied in his declaration, this fliall not preclude him from ?'?"" .' S't^iier 
 
 recovering to the extent of the intereft he has alleged. i^Hcged, 
 
 Thus, where the declaration ftated that the phiintiiT ^^"l' ^- ^'S^'', 
 
 • ^ . a; N. P auf f 
 
 was poflefled of one third cf the fliip infured ; and it was Hii. 1785, rj,i 
 Droved that he had purchafed the luhcle at one period j and '^"^* 
 there being no evidence to ihew that he had fince parted 
 with any (hare cf it, it v/as infilled that this was a va- 
 riance. — But Lord Mansfield held that this was fufficient 
 evidence ; for, onme majiis contmet in fe ininiiSy and over- 
 ruled the objection. 
 
 By the preamble to the fecond fe£lion of the ftat. Fyr^c. if, 
 19 G. II. c. 32, it appears that, before the pafTing of un^crwrife" 
 fhat adl, if an obligor in any bottomry or refpondentia be-orae bank- 
 bond, or an infurer in any policy of mfurance, became lois happen, the 
 bankrupt before a lofs happened, it was made a queftion c'l'.,"^ . a"'d^aftef 
 whether the infured in fuch policv, or the obligee in * ''^"' P""^^^ ^'* 
 
 ' ° debt under the 
 
 fuch bond, could be let in to prove his debt, or to re- commiflion, and 
 fcive any dividend under the commiffion : But now, by d?nT'^as 'if the 
 that feftion, it is provided, * That fuch obligee or infured '°^* "^^^^ "^P' 
 
 ' ■* _ "-^ pencd before tiie 
 
 * fhall be admitted to claim, and after the lofs or con- bankruptcy. 
 » tingency fhall have happened, to prove, his debt, and 
 
 * to receive a dividend of the bankrupt's eftate, in pro- 
 < portion to the other creditors ; and that the bankrupt 
 
 * Ihall be difcharged from the debt owing from him on 
 « fuch bond or policy, in like manner as if fuch lofs or 
 <^ contingency had happened, and the money had been 
 « payable, before the ifTuing of the commilTion." 
 
 As the words of the above preamble refer only to bot- This ftstate er- 
 tomry contracts, and infuranccs on flrips and goods on ances upon ijvcsl 
 board, it became a doubt whether it extended to infiir- 
 cnces upon lives, though the words of the enacling part are ' 
 general ; and it was fuppofed that the legiilature could 
 
 (^a) Had it been a 'ualned poliry , it would have made no dif- 
 ference in this cafe; for the infurer may difpute the amount of 
 the intereil of the infured if it be over-valued, as well in an 
 ijldicn upon a valued policy as upon an open one. 
 
 not
 
 73 a Of the Proceedhigs. _ [B.i, 
 
 not have had infurance upon lives in contemplation, be- 
 caufe the rifle in fuch infurances may remain unfettled 
 for many years : — But it has been determined that the 
 general words of the enabling part are not reftrained by 
 the preamble ; and 'that it comprehends all infiiranceSy and 
 eonfequenly infurances upon lives {a). 
 
 Sea. VI. 
 Of the Recovery back ofLoffes improperly paid. 
 
 If an under- IT fometimes happens that, after a lofs has been paid, 
 
 writer, after he ^j^g yj^^ej-^yj-Jtej- difcovers that there vs'as fraud in the ori- 
 
 has paid a lols, 
 
 difcovcr fraud, ginal contradl, or that there were circumftances attending 
 was not apprized the lofs, which, if known at the time the lofs was claimed, 
 of.'he may main- ^ould havc juftified his refifLinff the demand. In fuch 
 
 tain an adtion to J . . . ° _ 
 
 recover back the cafe, hc may maintain an aflion againfl: the infured for 
 iy "^a^d?''"^"^"^ money had and received to his ufe, to recover back 
 the fum fo improperly demanded. — But if, at the time he 
 paid the money, he knew, or might, upon enquiry, have 
 been informed of the grounds upon which he could have 
 refifted the claim, he cannot afterv/ards bring an aflion 
 to recover it back; for this would open a door to infi- 
 nite litigation. A fortiori if the underwriter had paid 
 the lofs under legal compulfion {b). — If, however, after 
 the infured has recovered the lofs, by procefs of law;, 
 I the underwriter receive intelligence of the fraud, which, 
 by no poflTibility he could have known while the fuit was 
 depending, he may, in that cafe, I conceive, maintain 
 an a£tion to recover back the money fo wrongfully ob- 
 tained from him [c) j for this would not be trying, ii^ 
 the new action, any ground'of defence of which he might 
 have availed himfelf in the firft. 
 
 {a) R. Cox v. Liotard, B. R. Hil. 24 G. III. Doug. 166, n. 
 Vid Patiijon v. Banks, Coivp. 540 ; and Mace v. Cadell, Cowp, 
 
 232. (i) R. Marriott v Hampton, 7 T. R. 269. Semb. cont. 
 
 Mojesv. Macfarlane, 2 Bur. 100$. Vid. Livefdy v. Rydsr^ 
 E. 22. G. 3. B. R. (c) Vid. Poihier, h. t. n. 14. 
 
 END OF THE FIRST BOOK.
 
 l 735 J 
 
 BOOK THE SECOND. 
 
 Of Bottomry and Refpondmtia, 
 
 npHIS fubjeil may be treated uuder the following dlf- 
 tribution ; 
 
 I. Of the nature a7id form of the ContraB; 
 
 II. Of the Parties to it ; 
 
 IIL Of the thing hypothecated ; 
 
 IV. Of the principal and marine Intereji ; 
 
 V. Of the perils or rifks to which the lender is liable 5 
 
 VI. Whether he be liable to general average ; 
 
 VIL Whether he be entitled to the benefit of falvage. 
 
 C H A P. I. 
 
 Of the Nature and form of this Co?itra&. 
 
 BOTTOMRY is a contra6l in nature of a mortgage of Eotromry de- 
 a fhip, on which the owner borrows money to enable him 
 to fit out the fhip, or to purchafe a cargo for a voyage 
 propofed ; and he pledges the keel or bottom of the fliip, 
 pars pro totOy as a fecurlty for the repayment : And it is 
 ftipulated that if the fhip fhould be loft in the courfe of the 
 voyage, by any of the perils enumerated in the contraifl, 
 the lender alfo fhall lofe his money ; but if the fhip 
 {hould arrive in fafety, then he Ihall receive back his 
 principal, and alfo the intereft agreed upon, which is 
 generally called the marine interejly however this may 
 exceed the legal rate of intereft {a). Not only the fhip 
 
 {a) Vid. 2 Bl, Com. 458. 
 
 and
 
 734 Of Boiicmrj and Rejpondentla. [B. II. 
 
 and tackle, if they arrive fafe, but alfo the perfon of tlie 
 borrov/er, is liiibie for the money lent and the marine 
 intereft. 
 D£n..rr.;nat!an. -j^g conttaft of bottomry is called by the French^ ccn- 
 
 trat de pret a la g-'ojp avanture., or contrat a la gi'ojfe. 
 In Le Guidan {a) it is called bomerie^ and Molloy {b) fays 
 that it is derived from homerie or bod merle ^ a FlemiJJj word 
 which fignifies the keel or bottom of a Ihip. 
 Sefiiondenria. When the loah is not on the fhip, but on goods laden 
 
 on board, which, from their nature, mull be fold or ex- 
 changed in the courfe of the voyage, the borrower's per- 
 fonal refponfibility is then the principal fecurity for the 
 performance of the contradl, which is therefore called 
 DhTerePce be- refpondentio, (c). In this con/lfls the principal difference 
 iVfci v.cn;. between bottomry and refpondentia. The one is a loan 
 upon the Ihip, the other upon the goods. The money 
 2S to be repaid to the lender, with the marine interellj 
 upon the fafe arrival of the fhip, in the one cafe, and of 
 the goods, in the other. In all other refpe6ls, thefe con- 
 tracts are nearly the fame, and are governed by the fame 
 principles. In the former, the fliip and tackle, being 
 hypothecated, are liable, as well as the perfon of the 
 borrower ; in the latter, the lender has, in general, only 
 the perfonal fecurity of the borrower. 
 
 According to the French writers, the perfonal refponfi- 
 bility of the borrower is not, in all cafes the only fecurity 
 of the lender. Where the money Is lent for the out - 
 ward and homeward voyages, the goods of the borrower 
 onboard, and the returns for them, whether in money, or 
 in other goods purchafed abi-oad, with the proceeds of 
 them, are liable to the lender {d). But the following cafe 
 (hewS; that in Englaf-.d, unlefs there be an exprefs ftipula- 
 tion to that efFeft in the bond, the lender has no lien on 
 the homeward cargo, nor any other fecurity for his de- 
 
 9r~- — — 
 
 {a) Ch. 18. [h) De jur. marlt, b. 2, c. 11, § 12. 
 
 {c) 2 5/. Com. 4.58. (</) P(thk>-; h. t, n. 34. Emerlg. 
 
 torn. 35 p. 4/6. ^61, 
 
 tnand
 
 Ch. 1.3 Their Nature and Fcrm, 7 jr 
 
 mand than the perfonal refponfibility of the borrower or 
 his fureties, if he lias any. 
 
 A refpondentia bond, upon an £<?/? India vovr.'^e, M-as ^'-'-^ "• ^"""''' 
 
 given by Pearon and Douglas in the ufual form {a) ; and 31 ). ' 
 
 the condition, after reciting < that the money was lent The i-ndcr 1 
 
 * upon the goods laden, ajid to be ladetiy on board the fhip =« refpondemia 
 
 < Belvedere outward bound to Ckbuy was, that if the (hip fo,m,'h's n"/'v-l 
 « fliould proceed on her voyage and return within -t:/^ up-.n, or imceit 
 
 * months, (the dangers of the feas excepted) and if the "r^o, purchafed 
 « borrowers, within 30 days after her arrival, fliculd pay Tf ''he' goot'' 
 
 * to the lender the fum lent, with the marine itiicreft "P'-"' *'"=" ''^' 
 
 * agreed on; or if, within the 36 months, the fliip {houM ™""''' 
 
 * be loft, and the borrowers fhould, withhi fix months 
 ' after fuch lofs, account for and pay to the lender a 
 
 * pioportionable average on all goods carried out, tiwd ilie 
 
 * net proceeds thereof, ar.d on all ether goods nvkkh the lor- 
 
 * rovjer Jhoiild acquire during the voyage, for cr by reafcn of 
 'fuch goods, and which Ihould not be unavoidably loft, 
 ' then the obligation to be void.'— The goods were dif- 
 pofed of in Chlnay and other goods purchafed there with the ' 
 produce thereof, with which the Ihip returned home, and 
 arrived in the Thames. The goods fo brought from China 
 were depofited in the warehoufes of the India Cotnpany^ 
 and Douglas being dead, and Fearon having become bank- 
 rupt,— the queftion was, whether the lender had fucii a 
 lien upon, or intercft in, the iiomew.Trd cargo, or the 
 proceeds thereof in the hands of the Ccuipan^, as entitled 
 him to claim it to the extent of his den)and upon the 
 bond. — The court determined that lie had no fuch linn 
 upon, or intereft in, the homeward cargo. 
 
 Though it is extremely probable, as we have already tn uf. ,mo::g 
 lliewn {b)y that the contraft of iufurance was unknown ^'"^ '^'''"''""• 
 among the ancients, it is certain that the Romans were well 
 acquainted with that of bottomry, or rather refpondentia, 
 which they denominated naiiticum foemis or contra5fus tra- 
 jeclitia pecuniae 'y and it is treated of both in \\\^ Digefl 
 and the Code^ de nauticofocmre. They called the fum lent 
 
 (a) Vid. Appendix Ny. V.~(h) —Sup. 5. 
 
 pecunia
 
 73^ Of Return of Premium, [B. IL 
 
 Ttcunia ttajeEit. pecutt'ta trajeclltta, perhaps becaufe the borrower -was ufed 
 
 to take the money on board with him in fpecie, in order 
 
 to employ it in trade in the courfe of the voyage; 
 
 for fuch was probably the original deftination of fuch 
 
 loans among the Romansy vi^ho exported very little from 
 
 Rome, but fent money from thence to purchafe the mer- 
 
 chandife vi^hich the confum-ption of that immenfe city 
 
 demanded. The money thus lent was to be repaid, if the 
 
 voyage proved fortunate, with a ftipulated intereft, which 
 
 . was called perictdi pretlum, fometimes ufura maritimay or 
 
 iijura naut'ica \ but upon this condition, that if the fhip 
 
 fhould be loft by the perils of the fea, in the courfe of 
 
 the voyage propofed, the lender fhould lofe both principal 
 
 and intereft. 
 
 If the money was If the money was fpent in the place where It was 
 
 irwas'm.?'"^^^' ^^^^'' ^"^ ^^'^^ ^^^ pecimia trnjeSlkia {a). But if it was 
 
 cuaiii imieaitia. laid out in the purchafe of goods, which were embarked 
 
 at the rific of the lender, then it retained its quality of 
 
 pecun'm trajeElitia. So that, with the Romans, as with 
 
 the moderns, it was of the eiTence of this contraft that 
 
 the loan fhould be expofed to the perils of the fea, at the 
 
 rifk of the lender. 
 
 Whether the The author of Le Guidon {b) fays that there is but 
 
 Reman nauticum \\\^\\q refcmblance between the ccntradt of bottomrv, 
 
 foetiui be materi- .... ' 
 
 ally different as it is in ufc in modern Europe, and the naiiticum fanin 
 
 IrtomTy?""''"' of tlie Romans. But, with all due deference for the 
 learned author of that treatife, it feems to me that, upon 
 an attentive comparifon of the one with the other, it will 
 be found that they are fWl in principle the fame ; and only 
 differ in the forms which modern regulations have given 
 
 How bottomry 'o the contraft now in ufe. 
 
 differs from a Bottomry differs materially from a fimple loan. In 
 
 a loan, the money is at the rifle of the borrower, and 
 mufl be paid at all events, Incendium are alieno non U- 
 herat dehitorem [c). But in bottomry, the money is at 
 the rifle of the lender during the voyage. Upon a loan, ■ 
 
 (a) Si eodem loco confumatur, ncn erit trajeditia, fF. de naut. 
 
 fan. I {b) Ch. i8. art. i.~(<r) Cod. 1. Ji, / cert. pet. 
 
 only
 
 Ch. L] Their Nature and Form. 737 
 
 only the legal intereft can be referved : Hut upon bottomry, 
 any intcrcft may be IcgPiily referved which the panics 
 agree upon. 
 
 The anaiocs' between this contrail and that of infur- An^i-ey *>«- 
 ance is much ftronger. In the one the lender, in the and ni.uraDce. 
 other the infurer, is liable to the perils of the fea j the 
 one receives the marine intereft, the other the premium, 
 as the price of the rilk, which .varies in each according to 
 the length and danger of the voyage. The lender and 
 the infurer are, in general, e.rpofcd to the fame perils, 
 which have the Time commencement and end. Both are 
 entitled to the benefit of falvage, and liable to general 
 average. The marine intereft,like the premium of infur- 
 ance, is not due, if no lifk be run, though this be pre- 
 vented by the voluntary a61^ of the borrower. 
 
 But thoi'gh thefe contrafls thus far agree, they differ How t'.cy differ 
 cflentially in many refpeils. In bottomry, the lender 
 lurnilhes the borrower with the money to purchafe tiie 
 goods which are put in ri£k j an infurer, on the con- 
 ti-ary, furnifhes nothing of the fubjett matter of the in- 
 furance. — The lender, in taking upon himfelf the rifle of 
 the goods, does not contia£l any obligation to the bor- 
 rower ; a lofs by the perils of the fea does not 'make him 
 a debtor to the borrower, but only prevents the bor- 
 rov/er from becoming his debtor : Whereas, upon a 
 lofs happening, the infurer becomes a debtor to the in- 
 fured to the amount of fuch lofs, not exceeding the fum 
 jafurcd (a).— In cafe of fhipv/reck, the lender, by the 
 general lav/, has a lien on the efFefts faved, to the ex- 
 tent of the fum lent and the marine intereft, to the exclu' 
 f;sn cf the borroiver ; whereas an infured has an intereft 
 in the efte£ts faved, in common ivith the infurer, io f.ir as 
 he was uninfurcd. — The lender is not liable for particular 
 average •, but the infurer is liable for this, unlefs he be 
 exempt by exprefs flipulation. — By the claufe, free of 
 overage^ infurers may be exempted from general average j 
 but, in a cafe where the lender is liable by law to gcne- 
 
 (c) Potblsry h. t. D. 6, 
 
 VOL. u. 8 ral
 
 738 Of Bottomry and Refpondentia. [B. IL 
 
 ral average, fuch a claufe would be illegal and void {a). 
 If the voyage be divifible into feveral di.lind rifks, the 
 premium of infurance may be apportioned to each, and 
 there may be a return for fuch a^ have not baen begun j 
 but, in bottomry, if the rifle be once commenced, and 
 no lofs happen, the marine intereft mull be paid en- 
 tire {b). 
 The uritijv of This contract is of great utility in a country where the 
 
 tliis COiltrjd. r 1- 11 ' r ,r • ■ , 
 
 perions angagedin trade have not aiufhcient capital to carry 
 on their foreign commerce, by inducing thofe unfkilled 
 in tra4e to embark their money in it ; and thus is formed 
 a fort of partnerfhip between the lender and the bor- 
 rower, in which the one fupplics capital the other (kill 
 and experience : The one takes upon himfelf the perils 
 of the fea, and th« other compenfates him by a (hare of 
 the profits of the adventure. But, except in this re- 
 fpe<£l, this coiitra£l has no refemblance to a regular part-» 
 nerfliip, having in it no community of capital, no com- 
 munity of lofs (f). 
 Kot now much Formerly the praiftice of borrowing money on bot^- 
 
 in ufe in this i r \ • i • i ■ 
 
 country. tomry and reipondentia was more general in tins country 
 
 than it is at prefent. The immenfe capitals now engaged 
 in every branch of commerce, render fuch loans un- 
 neccfTary \ and money is now fcldom borrovved in this 
 manner, but by tlie'mafters of foreign fhips who put 
 into our ports in need of pecuniary afhftance to refit, to 
 pay their men, to purchafe provifions, Sec. Sometimes 
 ofScers and others belonging to fhips engaged in long 
 voyages, who have the liberty of trading to a certairj 
 extent with the profpefl of great profit, but without 
 capitals of their ov/n to employ in fuch trade, take up 
 money on refpondentia to make their invefiments : But 
 even tlds, as I am infornaedj is now not very frequently 
 done in this country. 
 
 It IS ■uftiaiiy ei- This coutraft, which muft always be in writing, is 
 
 c/a deed poll' or fometimes made io the form of a deed poll, called ^ 
 a Lend, 
 
 (a) Pothkr, h. t. n. 46 ; Fal'in on art. 16, h. t. ; Emeiig. 
 
 t. ^, p. 505- [b) Emerig.t. 2t p. 397. {c) Sav, Diet, 
 
 h. t. Ca/aregis diic. 7, n. 2 ; Emerig, t. 2, p. 294. 
 
 bill
 
 Ch. I.] Their Nature and Form. / 739 
 
 bill of bottomry, executed by the borrower (/j), fome- 
 times in the form of a bond or obligation, with a pC" 
 Hrtity {b). But whatever may be its form, it muft con- 
 tain the names of the lender and the borrower, thofe of 
 the {hip and the mafter ; the fum lent, with the ftipu- 
 lated marine interefl j the voyage propcfed, with the 
 duration of the rifs which the lender is to run : It muft 
 (hew whether the money be lent on the {hip, or on goods 
 on board, or on both ; and every bther (lipulation and 
 agreemens which the parties may think proper to intro- 
 duce into the contra<ft {c). 
 
 It is eflential to this contract that the marine intereft be "^^^ maiin* in. 
 
 7 / ■ J 1 1^ 1 tereft niurt be 
 
 CT-prefsly refervcd \nn{d). Straccha {e)^ mdeed, holds exprefsiy referv- 
 
 that, without this, the law would look upon the contradt ^'' '" "' 
 only as a fimple loan, upon which the lender had gra- 
 
 tuitonfly taken upon himfelf the perils of the fea. Eme- Whether equity 
 
 t 1 1 / />. 1 1 • 1 • o would funply 
 
 Tigor.y however, holds {/) that this bemg a contratt the omiiritu «f 
 founded in good faith, equity will fupply the omiffions '^'** 
 occafioned by milUke or inadvertence; and that, as 
 the lender fubjec^s hin)felf to the perils of the fea, and the 
 borrower reaps the fruits of the adventure, commutative 
 juftice requ'.res that the former fliould receive, beftde the 
 legal intereil of his money, a fatisfadlioa for the rifk he 
 he has run. 
 
 {a) Vid. Append. No. VI. {b) Vid. Append. No. VII. 
 
 ( c) Vid. Poihtsr, h. t. n. 30 ; Emer'tg. t, 2, p. 402. 
 
 {</) Pothlery h. t, n. 19, (,?) Introd. n. 34. -. — (_/) t. 3« 
 
 p. 406.. 
 
 is 1
 
 74<5 Of Botiemry and Refpondentla. f E. ll. 
 
 CHAP II. 
 
 Of the Parties io this Contrail. 
 
 Who mny lend THE parties to the contract of bottomry are the lender 
 
 uiu,y. ^^^^ ^Y^^ l>orrower. Of the former, it is fufiicient to fay, 
 
 that any perfon, who is in a capacity to contract, may lend 
 
 money on bottomry. 
 
 Wo «- bo - With refpeft to the borrower, every perfon who has a 
 
 .uA. vefled affignable property in a fliip or cargo, may, by the 
 
 general law of merchants, borrow money on bottomry 
 
 or refpondehtia thereon, to the extent of }iis rnterefl. 
 
 \v>ier the mafter This contract fccms originally to Iiave arifen from the 
 
 theVnip. practice of permitting the matter or a Ihip, in a torerga 
 
 country, to hypothecate the fhip, in cafes of neceffity, 
 
 in order to raife money to refit {a). And it is eflentiai 
 
 to the fafety cf the fhip ar.d the fuccefs of the voyage, 
 
 that, the mafler, in the abfence of the owners, (liould 
 
 have this power,, which is, indeed, by the marine law, 
 
 implied in his appointment {b). 
 
 He can only f?o But as the owncTS are prefumed to give entire aytho- 
 
 •his in ihe ab- j-jty to tbc maftcr, onlv in their abfence, and for fuch 
 
 owiie-s. affairs as they cannot themfelves 'Conveniently tranfacl, 
 
 he is not in fact niafler till after he fets fail. Till then, 
 
 he is fubjecl to their orders, and they have the power 
 
 of difmifling him at pleafure j till then, therefore, he 
 
 can tranfaft no bufinefs of importance, but under their 
 
 immediate directions [c]. Hence, if the mafler borrow 
 
 money on bottomi'y in the place where the owners refide, 
 
 without their exprefs authority, it can only afFecl his own 
 
 Yer, if money int^rell on board. Yet, it is fliid that if the money thus 
 
 thc'^^rwner's %- borrowed be beneficially employed in fupplying the ne- 
 
 fide be laid out ^efTities of the fhip and in difchar^e of the owners, they 
 
 on the ftiip, the , r i i • i / i t» ^ • ^• 
 
 ownes Qi.'.ii be are liable for the money tnus laid out \d). But this lia- 
 iubk tur It. bility mufl be underftood as for money paid for their ufe, 
 
 not upon the contradt of bottomry. 
 
 (a) Vid. 2 Bl Com. 458 'b) Per Holt, C. J. in Bernard 
 
 V. Bri^geman, Hob. T2. {c' Confolato del mare, ch. 236. — 
 
 — (^) Vinniusi ad iT. de exercit. § 4, p. 844.
 
 Ch. 11. 1 Parties to the Contra^}, t < j 
 
 Even in a foreign country, and in die abfence of the Evm in ? foreign 
 owners, the mafter cannot t.ike up mcney on bottomry, ^er^^a^o'nr w' 
 for any debt of his own (a), but only for the ufe of the ^"^ money it, 
 Inip, in calcs oi necelilty ; and thjs muit appear m the 
 written contracl^ otherwife the lender will neither have a And this m-i} 
 lie'i on the fiilp, nor 3n adlion againtl the owners. The co^raW" '^^ 
 mailer in fuch cafe would be alone liable, though it 
 iliould appear that the money was fpefit in fupplying the 
 neceflities of the iliip (^), Hence it would feem that 
 originally the lender v/a? bound to ict to tfie application of 
 the money advanced bv him, and that he was oblip-ed to 
 prove this, to entitle himfelf to recover againft the owners. 
 But, as the law nov/ (lands, if i: appear that the money Rut the !.^n,?er 
 has been fairly and regularly lent to fupply the necEuities ," "f ^'^""^ "• 
 
 ^ ' . Ijok to the ea«; 
 
 or the fhip, the mifapphcation of it by the mailer will i^ppiicuivn wt 
 not afFe(£l the claim of the lender, who will have his ac~ ""' "'°""^^' 
 tion againil the owners, and his lien on the fin'p, without 
 proving that the moDey was properly applied. He has 
 no reafon to millruil the mailer, whom the owners have 
 employed. But if he be an accomplice in any fraudulent 
 mlfapnlication oftlie money, the owners may impeach the 
 contrail upon that ground (r). 
 
 In a former part of this work (i/), it was fhev/n thit v."ie ber --icv 
 no Brkip i\kh]tQi can legally trade with the enemies of i"' 't on''b."rr;.nrv 
 the (late in time ot war : and that therefore an infurance '° ^n enemy, lu 
 
 r ^ !•• IT irn 1 1 ti.ncof war. 
 
 upon lucn tradmg is void. It was alio ihewn that the 
 infurance of the fhips and efFe£ls of the er.ciViT has, on- 
 feveral occafions, been prohibit; 1 by Itcitute ; and many- 
 arguments and author. ties have been adduced to prove 
 that, even at common law, fucli infurances are illegal. 
 It is needlefs to repeat thof-: arguments here, every one 
 of which applies with equal, if not greater, force, to prove 
 that the lending of money to the enemy upon bottomry is 
 illegal, if not highly criminal. 
 
 («) Molloy, b. 2, c. 2, § 4. Lav,-3 oiQler. art. i, 22. • 
 
 {h) ff. de exercit. art. 7, Ftr.r.ius, ad id. Efr.erig. t. 2, p. 454- 
 —- — [c) Loccen. 1. 2, c. 6. n. 12. Lmir'ig. t. a, p. 441.— 
 {I) Sup. 85. 
 
 s 3
 
 74^ Of Bottomry and Rcfpondenila. [B. 11 
 
 C H A P. m. 
 
 Of the Thing hypoihccaied. 
 
 Money may »it ^^ IS a general ruIc that money may be lent on bot- 
 kn: on wiiatcver tomry or rcfpondentia, en v/h?.tcvcr may be the fubjedl 
 
 may be aifured- e • r r 11 ^ \ i 
 
 matter or miurance. It may be lent on the bodyy 
 tackle, furniture, and provifions of the Hiip, or upou 
 alj, or any part of the cargo j or upon both (liip and^ 
 cargo (fl). 
 _, . But money may be borrowed on refpondentia without 
 
 Tne borrower , , . ' . , '^ 
 
 may take the hypotheeat'uig any thing. The borrower may, and fre- 
 '";'"h^hi'" ^"^"^"^ quently does, take the money on board with him in 
 fpecie, in order that he may employ it in trade in the 
 courfe of the voyage j which, as has been already ob- 
 ferved {b)y was probably the original intention of iuch; 
 loans. 
 But the monfu ^^^^ i^ Js of the ciTence of this contrav^ that the money 
 or its equivalent, \Qxvty or fomethlng equivalent to it, be expofed to the 
 tc the peiiij of perils of the fea, at the rifk of the lender. And the 
 rifli o^'the lea- ^^"^^ reafons of policy which forbid gaming infurances 
 «^<:r. equally apply to wagers in the form of bottomry loans. 
 
 If the borrower hjiVe no eflefts on board ; or having 
 fome, he borrow much beyond their value, and agree 
 to pay high marine intereft, this will afford a ftrong 
 ground to fufpe£t; fraud, and that the voyage will have 
 an unfortunate end. Cum capltaneuSf ad cambium recepe - 
 rit knge majorcm picunia ^ummam quamfucrit rifuum fuper 
 navi exif.ensy pmfumi deVit finiftrum fuijje dolofum {c). 
 TMs pra^ice q^^^ legiflature long fince found it neceflary to reflrain 
 
 rfrttaintd by _ o & 7 
 
 ftat. £z C. X the rr.ifchiefs refulting from this pra£lice, and therefore 
 by fLat. 16 C.ll. c. 6, re-ena<Sled and made perpetual 
 by the flit. 22 C. II. c. 11, ^ 12, after reciting that^ 
 
 (a) Pothier,\i. t.n.g. (^) Sup. 735, 6. c) Cafaregls^ 
 
 «?ir. 6i> n« 7 ; Vid. Le Guidon, ch, 19^ art, 10, 
 
 « Wliereas 
 
 C. It,
 
 B. UL] T/jing hypsthccateiL 743 
 
 *' Whereas it often happqneth that maftcrs and mariners 
 *' of fliips having infured or taken upon bottomrj'-, greater 
 " fums of money than the value of their adventure, do 
 " wilfully cad away, bum, or otherwife deflroy the fnip 
 ** under their charge, to the merchants and owners 
 «* great lofs ;" for the prevention thereof for the future, 
 enadis, ♦ That if any captain, mafter, marhier, or other 
 
 * officer belonging to any flnp, fliall wilfully caft away, 
 
 * burn, or other vvife dertvoy the fliip unto which lie be- 
 
 * longeth, or procure the fame to be done, he Ihall fuffer 
 
 * death as a felon,' 
 
 i\t Leghcrn and fome other parts of Italy^ where \Va5c-5, in the 
 
 r ^ 1 ^ J • ^u r C form or bo: torn ry 
 
 gammg nuurances are tolerated, wagers m the iorm 01 ^onrraas are 
 bottomry contrails are alfo allowed (a). — In France^ it peimitted in 
 
 r • r t r ' ' ^ f • f"-""^ parts cf 
 
 was the wife policy of the framers of the famous ordi- lt„/j. 
 nance of 1681, to prohibit all gaming and wagering upon They are pmhi- 
 the events of maritime adventure j and therefore they did "* '" '"^"^'' 
 not only forbid all gaming infurances, but alfo all wagers 
 in the form of bottomry contracts. It is therefore pro- 
 vided {b) that, in cafe of lofs, the borrower upon goods 
 fliall not be difcharged without proving that he had goods 
 on board at the time of the lofs, on his own account, to 
 the amount of the fum lent. 
 
 In EnoIa?id it was not unufual, before the flat, to 7^0:9(7.11.0.37, 
 
 ^ ^ ' § 5> <l!'«'<n* that, 
 
 G. II. c. 37, for perfons to borrow xnonty o?i the voyagCy upon £«/ Indu 
 
 ,, , , . , 11 I " . vmapes the ino- 
 
 2S It was called-, that is, where the borrower, havmg n^y Oi ri only be 
 nothins, either in the fliip or cargo, which he could hy- l*""- o" f^e Oiip 
 
 o' . .or goods on 
 
 pothecate, took up money on his own perfonal credit, board, wirr be- 
 and on the credit of his furetles, if he had any. The to ["he ^nder?^' 
 money thus borrowed was often taken on board, and 
 ufually eniploycd in fome comm.ercial adventure depen- 
 ding on the fuccefs of the voyage ; and therefore this might 
 generally be confidered as a legitimate loan upon refpon- 
 dentla. Bui the fpirit of g.aming having atjiled itfelf of 
 this form of contract to cover wagers, particularly in long 
 
 {a) Cnfaregis, difc. 14, 15. ib) Old de la mar. h t. art. 
 
 3, 14; vid. Emsrl^. t. 2, p. 496, ^co ; Valirif on art. $, 14, 
 
 h. t. 
 
 s 4 voyages,
 
 744 Of BotfoT.ry and Refpondentla, [B. IL 
 
 voyages, the flat, [q G. II. c. 37, after prohibiting 
 infurances without intereft, declares (§ 5-)> * '^'^^'^ ail 
 
 * money lent on bottomry or at refpondcntiE, upon any 
 
 * fhip or ihips belonging to any of hisMajefty's fubie6l3, 
 ' bound to or from the Eaji Indies^ fhall be lent only on 
 « the fhip, or upon the merchandizes on board, and {hall 
 « be fo exprefTed in the condition of the bond ; and the 
 « benefit of falva^e (hall be allowed to the lender, who 
 ■ alone fhall have a right to make infurance on the money 
 
 * fo lent ', and in cafe; it (hall appear ihat the value of his 
 
 * fhare in the (h'p, or the effefts on board, does net 
 « amount to the full fum or funis he has borrov/ed as 
 
 * aforefaid, fuch borrower fhall be relponHble to the 
 
 * lender for fo much of the money borrowed as he lias 
 « not laid out oa the fliip or merchandize laden thereon, 
 
 ,^ * with lawful intereft for the fame, in the proportion the 
 
 * money laid out fhall bear to the whole money lent, 
 
 * notwithftanding the fliip or merchandize fhall be totally 
 
 MoH:.' . 
 
 W'-rtVer a wa- It is faid (.'v) that, as £'^/«t/w vcvagcs onlyarc mentioned 
 ger, 111 the form • j^ ^j^jg ^£^ ^^-^^ ^jj^j ^g extreffto utiius efl CKclufto alterius, 
 
 of a botromry r u/ j j * 
 
 loan, be a Kg-ti it foUows that bottomry loans, where the borrower has 
 ter ra J o - j^^^jjj,jg ^^^ bcard, may be legally made in all other cafes, 
 as at common lav/, except in the cafes prolubiied by the 
 flat. 7 G. I. c. 21, § 2. (p). 
 
 It is certainly not a little fmgul.jr that the fame legiila- 
 ture which thought it necefl'ary to prohibit fuch loans 
 upon EaJ} Ittdia voyages, fliould not have thought the 
 fame prohibition equally necefTary in all other cafes. 
 I cannot, however, admit the application of the maxim, 
 e:^prejJ'io ufiius efl e>:clufio alferius. If, indeed, the maxim 
 "vrcrc, exclufo w.ius ejj reeognlito aUaiuSf it might be more 
 applicable. But fuch a maxim, would have the efTecl of 
 proving, that a ftatute which fhoulJ be made to reftrain 
 one particular abufc, would fan£iion all others of the fame 
 nature; which is manifeflly abfurd.' But, be this as it 
 
 ia) Pari, ^11. {bj Vid. inf. 754. 
 
 may, 
 
 ravo uw„
 
 Ch. III.] TiAng hypothecated, yj^^ 
 
 may, fuch an inference is not fuflicient to prove 
 that a fpecies :of gaming fo mifchievous in its ten- 
 dency, had ever been fan^ioin^d by the common law. 
 Nothing fliort of a folemn decifion of one of the (u- 
 preme conxXsoi IVeJlmifiJIer, could give to fuch do«Slrlne 
 the ftamp of authority \ and I believe there has not yet 
 been fuch a decinon. 
 
 Many ^rrV.y^^ fubjefls .having, in the reign ci Georgel.^ The rmi. 7 c. T. 
 fitted out fliips and clandedinely traded to the Eaft If::!ies ^- ^f- I'l^^i.ibits 
 
 ' , _ ^ ^ "^ the lauding mo- 
 
 undcr colour of foreign commilTions, the flat. 7 G.I. ney on buti mry 
 c 21,^2, n)ade to rcllrain thcfe practices, and to protect "/^J^'^y^fl ^"■'* 
 tiie monopoly of the Ea/i India company, amongft other 
 regulations, dedans, ' That all contra£ls and agreements, « 
 
 * made or entered into by any of Ins majefty's fubjecis, 
 ' or any perfon or perfons in truft for them, for the loan 
 
 * of any money by v\-ay of bottomry, on any (hip or fliips 
 
 * in the fervice of foreigners, and bound to, or defigned 
 « to trade in, the Erjl Ljdies, fhall be void.' 
 
 It is faid {a) that this a£t does not mean to prevent Whether this aa 
 the king's fubieas from lending money on bottcna-y on '•^"'•^'"siheiend. 
 
 o J o ; J )ng of money to 
 
 foreigns fliips, trading to their own fettlements in the f^^uigners ttad- 
 
 »- n T 7- 1 • n 1 11 - 1 ''^S to their own 
 
 hajllndu's\ audit muit be owned that, irom the pre- letiiemaus la 
 amble lo the acl, it would feem that it had only in view ^'■'''"'" 
 to r^Ilrain the illegal commerce o^ Britlfo fubjedls with 
 the Eaft LidL's, without any reference to that of forcignersj 
 yet the above claufe exprefsly, and m the moll un- 
 qualified terms, reftrains the lending of money on bot- 
 tomry on any iliip or {hips in the fervice of foreigners {b). 
 Whether a Ihip, the property of Britiflj fubjedls, fitted 
 out by them, and laden with their merchandize, can be 
 faid to be in the frvice of foreigners ^ merely becaufe flie 
 Is farnifhed with a comm;{lion from a foreign flate, is a 
 quellion upon which there has not yet been any judicial 
 decifion. 
 
 In the year 1789 an aflion was brought in the court S.-mmr v.Cretn, 
 of Common Pleas on a refpondentia bond, executed by 
 
 die defendant, an American, to fccure paymcjit for a ''«'•" •'^^*™ 
 
 ^ ■' thai a iclpuiiden. 
 
 til hoLd f.r 
 
 ' "^ ~- — ' — —~~~~— niori' y Icnr Lv a 
 
 Britjh iiil>r'<ft, 
 
 {a) Pari, ^12. [I/) ViJ. fup. iaS. u»o'> E^ua* ui. 
 
 car;:o
 
 74^ Of Botiomry and Refpondeniia. [^B. II. 
 
 board an ^mcri- cargo of goods fliipped by the plaintiff, a Britijh fubjc£^ 
 
 tan fliip, on a . • n • t 11 1 
 
 voyjgc from at LakuliayOn board an American ihwp^ homeward bound, 
 f"S'^J'"^^f^ from Cah-ulta to Rhode Ifland. The (hip had failed from 
 England and landed a cargo of European gopds in Bengal^ 
 previoufly to her taking in the cargo, on which the bond 
 was given. — The defendant, being arrefted on the bond, 
 moved to be difcharged out of cuftody on entering a 
 common appearance, on the gjround that, fmce the inde- 
 ' V pendenee of the United States^ an Amsrican fliip was a 
 
 foreign Jfnp within the meaning of the above ftat. 7 G. I. 
 c. 21, § 2. — ^The court difcharged the defendant. — Lord 
 Loughborough faid, — " We do not think it neceflary upon 
 this application, to give any decided opinion upon this 
 acfl J but it would be improper to hold the defendant in 
 cuftody, if there appear a probable ground that the 
 contract which is the foundation of the action is voido 
 1 do not chufe to enter into the conftru61:ion of the fta- 
 tute ; but I think it probable that, in its true meaning, 
 it would reach all trading to the Eafl Indies for the pur- 
 pofe of fending goods to other parts of the world, con- 
 trary to the provifions of the company's charter." 
 Mon?v'mny he ^1 ^^^^ '^^^ °^ England, freight, as we have already 
 borrowed on fliewu ia), Hiav be infurcd, and confequently it may be 
 
 frciglit. •^ / J >■ i I 
 
 hypothecated upon a bottomry contract. 
 In frrfwc m.iney In France the borrowing of money by the owners 
 rowed on/rr/^/;/, of a ihip, o'.i freight not earned, is prohibited (/>). The 
 I pro//. reafon, as F'a/zV/ informs us (^), is, becaufe the lender 
 
 would be at the mercy of the borrower, who would not 
 much concern himfelf about freight, from which he 
 could derive no profit. But it is permitted to borrow 
 money on freight, already earned \ that is, where the 
 money borrowed is to be employed by the affreightevy in 
 paying freight which he is bound to pay at all events. 
 Freight, in that cafe, being an expence which the af- 
 freighter muft lofe if the fhip fhould be loft without 
 completing her voyage, is a proper fubje6l of infur- 
 ance, and confequently of a bottomry loan {d). Nor is 
 
 (fl) Sup.b. I, c: 3, f. 6, p, 91. (Z) Ord. de la mar. h, 
 
 t.art.4. [c) Falin on art. 4, h, t. {,d) Vid. fup. 
 
 cr on ;
 
 Ch. III.] Thin^ hypothec aied. 747 
 
 it permitted by the French law to borrow money on bot- 
 tomry on the profits expe£led upon goods, bccaufe profit 
 is uncertain, and has no phyfical or fubftantlal exilleucc 
 on board {a). 
 
 Seamen may undoubtedly borrow money on any goods Sca-nenmaybsr. 
 they may have on board ; becaufe, as far as relates to fuch T*^ ™""7 "" 
 
 I J ' ' llifll- goods ork 
 
 goods, they are in the fame fituation asthofe of any other HoaiH; hut nwt 
 
 f, • . 1 • 1 <- r r 1- ^^ thcil wares, 
 
 inippcr. As to their wages^ the lame realons or policy, 
 drawn from the neccflity of inter;;ftlng them in the pre- 
 fervation of the fliip, which prohibit tiieir being infured, 
 equally forbid their borrowing money on them (1^). 
 
 Whether money may be lent on a {hip or goods al- Whether morey 
 ready expofed to the perils of the fca, is a queftion a'^iVjip^or^gl d" 
 upon which fome learned men have differed. — Valln (c) ^ireHdy tn nik. 
 holds, that it makes no difference whether the loan be 
 made before the (liip's departure or afterwards j 'becaufe/ 
 fays he, * the prefumption is, either that the money 
 
 * has been ufefully employed in the things put in rifk, 
 
 * or in paying what was due on that account.' — E/neri' 
 gon (J)f on the contrary, fuppofes that the original idea 
 of bottomry was, that the money borrowed fliculd be 
 bellowed on the fliip, or vefled in goods for exporta- 
 tion (1?) ; and that, upon this principle, this fpecies of 
 loan has been permitted and encouraged : But that, as 
 foon as the fhip fets fail the motive to this ceafes; and 
 a loan, after the fnip's departure, could not be faid to 
 have purchafed the goods already e;<pevfed to the perils 
 of the fea. — ^This is piaufible, but Valine reafoningfeemS 
 the moft fatisfaclory. 
 
 {a) OrJ. de la mar. h. t, art. 4, Pothler, h. t. n. 14. Erne- 
 rig, t. 2, p. 480. Vid. fup. 94. Vid. Byrik qtuefl. jur. priv. 
 lib. 4, c. 5, in which he cites a decifion of the fenate of Roller- 
 dam, to fhcvv that lucrum qund fperalur^ per leges naul'icas, njfecw 
 
 rari non pojfe. {b) Evxer'ig. t. 2, p. 480. (t) On art. j6, 
 
 tit. de la f.ijie, tom. i, p. 3 l<5 {d) Tom i, p 484. 
 
 (e) TrajeSitia ta pecunia rjlqua trans mere veh'Ui.r ; — ^'e.i vhkiuluin 
 an merces ex ea pecunia conip'ir.itt;, in lA caufd h ilearil: r . et 
 intenj}, ulrum et'tam ipfe., perlculo crediLjris, navigent ; lunc cuim 
 trajediiia pecunia fil. J", dc naut.faii. i.
 
 748 Of Bottomry and Refpondentia» [B. IL 
 
 CHAP. IV. 
 
 Of the Principal, and marine Interejl, 
 
 Of^>*V,attheioan ^^ conftitute this conrraft, one party muft lend 
 may toaftit. the Other a fum of money upon the ufual conditions. 
 Not that this contrail could only be made upon a loan 
 Oi money; for, as a loan, it may confift, according to 
 the Roman law, of all thofe things qua pondere, numerOf 
 et menjurd confaut^ et qu£ iifii confumimiur [a) . In prac- 
 tice, however, fuch loans are fcarcely ever made but 
 in money {b). Etnertgo?iy iiideed, mentions an inflance 
 of a loan of fix dozen of Morocco flcins, which were 
 lent on refpomientiny and a fecurity given for the fum 
 at which they were valued, with marine intereil at cent. 
 per cent. [c). 
 
 The rinci 1* Bottomry, as has been already obferved, differs 
 
 upon which wa- from a fimple loan in this, that, in the latter, the bor- 
 
 riiie intiieil is , . ■„ ,.^,. , „ , 
 
 allowable. rower takes the rilk upon himlelr, and mult repay tne 
 
 money at all events; whereas the lender on bottomry 
 takes on himfelf the rifk arifmg from the dangers of 
 the fea, and is only to be repaid in the event of a fafe 
 arrival. He may therefore legally ftipulate that, in the 
 event of a fafe arrival, he fhall be paid, befide the 
 fum lent, not only a compenfation for the ufe of his 
 monev, but alfo the price of the rifk. And as it is im- 
 pofTible to fix any rule by which this can be precifely 
 afcertained, it mufl in all cafes be fettled by the agreement 
 of the parties {d) . 'Trajeclitia pecumOy propter periculum 
 credttorh j quamdiu navigai navls infjiitas ufur.ts recipere 
 potejl ((?). JuJIimariy however, after prohibitiug the 
 centefima (which was one -per cent, per month, or twelve 
 
 {d) fF. 1. 2. dc rih. cred. § i. {h) Pothier, h, t. n. 8. 
 
 — — {c) Emer'tg. t. 2, p. 412. [d] Vid. Pothier^ h. t. il. 3. 
 
 {e) Paul. fent. 3, 1 1, 14. 
 
 psr
 
 Ch. I V.J Principal and marine hi ere/}, j.^ 
 
 per cent, per anmmi), in ordinary cafes, permitted it 
 in this contraa, and forbid any higher inrerell {a). 
 — nSuch a rule might have been proper in a country 
 where navigation was conHned to mere coaftmg voy- 
 ages, and %vhere the principal difference between the 
 rifk of one voyage and of another confifted in the time in 
 which each might be performed. But, in modern times, ^ 
 when commerce is carried on between countries the nioft 
 remote from each other, it would be impoffiblc to fix any 
 precife ftandard by which the rate of marine interdt 
 could be propsrly regulated. 
 
 The marine intercil, therefore, however high or exor- ^^S^'ity of It 
 bitant it may feem, cannot be deemed ufury, provided 
 the money lent be honufide put in rifle. Several attempts, 
 however, have been made to call in queftion the legality 
 ot fuch contrads ; but, in every inftance, the courts, 
 both of law and equity, have held that if the principal 
 be bona fide put in rifle, the contraft is legal, however 
 high the marine intereft referved may be (/^).— If, in . 
 deed, the form of a bottomry or refpondentia loan be 
 ufed a3 a cloak to an ufurious contrad, there can be 
 no doubt, but that it would be illegal and void. 
 
 It is of the eflbnce of this contrad that the fum lent i' is •niy due 
 be put in rilk; and it does not, in truth, become a bot 1^*"'! "'' ''* 
 
 . r 1 • ,-N n2s bfen com- 
 
 tomry or refpondentia contrad, till the rifk commences. "»««"<»• 
 Therefore, 'by the Rowan law, if the borrower had fpcat 
 the money on Ihore, and did not expofe it to the perils 
 of the fca, it was not deemed bottomry, but only a 
 fimple loan at common interefl (.). And by the general If rh. rifle h. not 
 law of meichants, at this day, the contraa: of bottomry "'"'"^^"«''. "-■« 
 like that of infurance, is merely e>;ecutory. till the rifk has l^cf^^!^"' 
 been commenced j and the borrower, like the infured, \Z^\:: ^^,. 
 may, at his pleafuie, by giving up the voyage propofed ''''"'" C'^^'^^'^t 
 
 *^ ^ 'to pcrfoim ihe 
 
 (a, Cod. lib. A,, tit. 32, de ufur.zS. (b). R. Sharf!,y 
 
 T. hurrell, Cro. J. 2,8 j [\r DodderU^e, J. in Roberts v. Trc 
 nayne, Cro. L 508; R. in ^oy v. Kent, Hard, ^i ^ ; R. in 
 ^oome V. G7.r//, I ^id. 27, i L,v. 54; Vid. D^ndy v. Turnn; 
 I Eq. Ca. Ab 372 ; K. Dc Guilder v. Depel/Ier, i Fern. 236 J 
 R. Anoii. ^ Ch. Ca, 30. {c) J. dc naut. Jen. x. 
 
 or
 
 75^ Of Bottomry and Refpondeniia, (]B. II. 
 
 or by not (hipping the goods on which the money was 
 
 lent, prevent its ever taking efFe£t. For, however it may 
 
 have happened, that the rift was never commenced, it 
 
 is fufficient that it has happened, to turn the contract 
 
 into a funple loan, at common intereft. The marine in- 
 
 terefl: can only be due in refpecl of the principal having 
 
 been adlually pur in rifk ; nothing elfc can give the 
 
 lender a legal claim to it. And this is fo, even where the 
 
 borrower covenants to perform the voyage mentioned m 
 
 the contract within a limited time {a). 
 
 Dt Gueii'.r V, Therefore, where the borrower was bound, in confi- 
 
 I V'/n "ix deration of 400 1. the fum lent, to perform the voyage 
 
 mentioned in the bond, within fix months 5 and alfo, at 
 
 the expiration of that time, to pay the 400 1. and 40 1. 
 
 premium, in cafe the velTel arrived fafe ; and it happened 
 
 that the (liip never failed on the voyage, whereby the 
 
 bond became forfeited. — The borrower brought his bill 
 
 in equity to be relieved; and it was there decreed, that, 
 
 as there had been no hazard of lofing the principal, the 
 
 lender mufl give up the premium, and be content with 
 
 his principal and ordinary interejl. 
 
 What aHowance To the fimplc intcreft payable, In fuch cafes, on the 
 
 made to the ^^^^ borrowed, Fal'in (3), by analogy to the praftice In 
 
 kodrr.where the ^afcs of infurancc, holds that one half per cent, upon 
 
 rifle has not been .. •iiii 
 
 (spmmsnced, the marme intereu:, ought to be paid by the borrower 
 who has failed in the contract, in cafe the lender has 
 infured his principal. — Einerigon [c] approves of this j 
 but adds, that if the borrower be not in fault, it will be 
 fufficient to repay the fum lent, with the ordinary Inte- 
 reft. To me It feems but reafonable that the lender 
 fhould. In every fuch cafe, receive not only his principal 
 and intereft, but alfo one half per cent, upon the marine 
 intereft, and all charges of infurance. 
 "When the rifk jj^ general, as foon as the rifk ceafcs, {difcujfo periculo) 
 rinc intereft either by the fhip's fafe arrival, the expiration of the 
 
 ceafcs. 
 
 {a) Pothier, h. t. n. 38, 39. ; Vnlin on art. 15, h.t. ; Emt'^ 
 
 rig. t. 2, n. 494. \b) On art. i 5, h. U (c) Tom. 2, 
 
 p. 49^- 
 
 1 term^
 
 Ch. IV.] Principal and marine Intcrejl, -7-1 
 
 term, or any other event, the marhie intereft ceafes, and 
 the debt becomes abfolute. From that thiie, if the bor- 
 rov/er delay payment, it bears only ordinary intereft {a). 
 
 If the contraihl be for a certain number of month^1, When the time 
 either at a fpecific fum, or at fo much/^r month, and fo n,,i?d, "iL'^ilk 
 at that rate, for any lono-er time, not exceeding a fixed ^"^ ^''^ mmine 
 period ; and the voyage be pcrrormed vvithm the period with the time, 
 firll limited, the marine intereft for the whole of that t'^'t '^' '°''" 
 
 ' nge be not 
 
 period, will neverthelefs be due : But if it exceed the <='»'i«d. 
 latter period, the rifk of the lender will ceafe, and the 
 debt become abfolute, though the voyage ftiould not be 
 ended. Pojl dumproijlitutamy et conditionein impletam., peri- 
 iuliim ejfe creditor is dcfmet [h). 
 
 And this holds, even wliere the fliip has been prevented Inghdiw v. 
 
 bv inevitable accident from performinG; her vovaee within ^''j^"\ 4 ^'"^ 
 
 the time limited. — As where money was lent on bot 
 
 ■ tomry, with a condition that if the fliip, which was ^e'^iJ,1dcr''tSf 
 
 bound to the Eajl Indies^ fliould return to LQ7ulon within *"*'"'' ^''""sh 
 
 36 months, or it the ihould not return withm that time, prevented by 
 
 and fliould not be taken or loft within that time, the '"l'^"" ^'°f 
 
 » pcrtoimiiig her 
 
 money to be paid, &c. Thi jhip luas detained at Surat v..yage wiTiiin 
 in India, by an embargo laid by the Mogul, till after the 
 3 6 months were elapfed, and in her return home was taken ; 
 fo that the bond was forfeited. But there being no fault 
 in the mafter, and the voyage being thus delayed by in- 
 evitable accident, the borrower brought his bill to be 
 relieved againft the penalty of the bond. - But Lord Har- 
 courti Ch. faid, — " I cannot relieve in this cafe, againft 
 the exprefs agreement of the parties. — If the lender has 
 infurcd this money upon the fliip, the borrower fhall have 
 the benefit of the infurance, upon allowing the lender 
 the charges of the infurance, and paying him the money 
 in three inontl»." 
 
 Emerigon puts a cafe, where it is ftipulated that 12 per If the marine 
 cent. Ihall be paid for the firft fix montlis j and that this 'ITtl pV.rftf 
 iliall be payable, though the jhip Jliould be afterwards lofl. ''''* '^'^ ''" 
 
 . . 1 r 1 r • • 1 T I o ■ , . „ ni)nfhs, though 
 
 And he feems to be ot opimou that, if the (hip be loft the i^ip ftio„!d 
 
 l)f li)(t ; whether 
 
 _^ ''''' '"" ^ Iffi*' 
 
 ^^ ~ ' ' ~ ~ Ctfntra(fl. 
 
 {a) £, de naut. fan. 4. i^)J'- ut.fip. 
 
 after
 
 75^ Of Bottomry and Refpondentia. [B. II. 
 
 after the fix months, the lender is not entitled to the 
 fix months' intereft — He fjys, that if the borrower had 
 remitted the intereft for the firfh fix months, the lender 
 might fairly receive it ; but that, if he ftiould not, from 
 the profits of his trade, have been enabled to do this, 
 he would be difcharged from all obligation [a). — This 
 diftin<Slion is founded on principles much too vague and 
 indefinite lo be received as law. With us, the contrail 
 would not be ufurious, becaufe the fum lent would be 
 put in hazard ; and being legal, it would be binding upon 
 the borrower, whatever might be the ultimate fuccefs of 
 the adventure. In fuch a cafe^ the firfl fix months would 
 be confidered as a diftindt rilk. 
 Commcn jnif- If, when the fea-rilk is ended, the borrower delay 
 run orfthe p°n- Payment, the common intereft begins to run^ ipfo jure^ 
 cipal, ;*s fooi. as -without any demand. Difcujfopericulo inajus legkimd ufur& 
 nor. debehitur {b). But this intereft runs only on the prin- 
 cipal, not on the marine intereft ; for this would be in- 
 tereft upon intereft : Accejfio accejjionis non eji {c). 
 
 (fl) Emerig.t.. z, p. 51 8. [b) J". Je naut./an. ^.--"—{i) Po^ 
 
 ikUr, h, t. n.jjl.; Emerig.t 2, p. 414.
 
 Ch, v.] The Rijks, 753 ' 
 
 CHAP. V. 
 Of the Perils or Rljks io 'whicjp the Lender is liable. 
 
 IT J3 eiTential to tliis confraft, not only that the It is enentiai to 
 money be lent on a fhip or goous, b':*: hkewife that ti,at the lendei 
 theie be expofed to the perils of the fea, at the rifle of the ■■"" ^"^ fea-nOc, 
 Jender ; that is, that the repayment of the fum lent, and 
 the marine intercfl, fhall depend on the fafe arrival of the 
 fliip or goods (a). The perils of the fea, in a large fenfe, 
 comprehend all thofe accidents and misfortunes,- to which 
 (hips at fea are expofed, and %vhich no human forefight or 
 precaution can avert or reilfl ; f^/s divinay qu£ prcecaveri, 
 Isf ad rejijli, nott potejt. This idea feems to be very fully jhe perils are" 
 
 exprefled in the ufual terms of our bottomry and refpon- "">iy '^^^ *^^"i« 
 , . _. , , . , . . . , , , .■^ . as m infurance. 
 
 dcntia contratts j by which it is providea that, 'ifyin 
 
 * the courfe &f the voyage^ and within the time prefcribed^ an 
 
 * utter lofs of thejhipy by fire^ 'enemies ^ men of. war, or any 
 
 * other cafualties, fhall unavoidably happen^ the bond fhall 
 be void, and the borrower difchai-ged. So that the perils 
 to which the leader is expofed, are nearly the fame as 
 thofe to which the underwriters upon a policy of iufu- 
 rance are liable [h). , 
 
 . Though a lofs by pirates is not ufually exprefled in a lofs by piratei 
 bottomry or refpondentia fecurities ; yet this is a rifk contTad"^ ^^^ 
 within the meaning of the words ; piracy being one of 
 the cafualtics to which fhips at fea are liable [c). 
 
 {a) Potbler, h. t. n. 16, 38. [b) Vid. Le Guidon^ ch. 18, 
 
 art. 2. Valin on art. 1 1, h. t.' and on art. 6, tit. des .tjfurances ; 
 Fothier, h. t. n. 16. Vid. fup. 487. — -(r) R. \n Barton v. 
 Wolliford, Comb. ^6. But this was not a qwelUon upon a bot- 
 tomry contradt, as has been fuppofed. Park /^2i. It arofe in 
 an aflion on a bill of lading, to which the defendant pleaded 
 piracy ; and upon demurrer to this plea, it was contended, that 
 rohbery is no more an excufe to a mailer of a fliip than to a 
 common carrier : But the court held that piracy was an excufe 
 in this cafe, being one of the dangers of the feas, 
 
 VOL. U T But
 
 .^j^ Of Bottomry and Refpondeniia, [B. It 
 
 Nothing (hort of 'gut wJiatever may be the perils to which the lender is 
 difcharge the liable, — nothing fliort of a total lofs will clifch:irge the 
 borrower. borrower. The obligation remains, however the goods 
 
 may be damaged by the perils of the fea. Nor is there 
 any deduftion on account of fuch damage •, for the lerdet' 
 is not bound to contribute to fimple average or parti- 
 cular damage, unlefs by exprefs agreement. In this 
 refpefb, the lender on bottomry is in a better lituation 
 than an infurer, who is obliged to indemnify the infured> 
 to the extent of the fum infured, fl-cm all damage uvifing 
 from any of the perils infured a^ainft. A capture, there- 
 fore, to have the effedl: of difchi-rging the borrower, muft 
 be fuch a taking and detention as would amount to a 
 total lofs in a cafe of infurance : A mere temporary de- 
 tention will not difcharge the borrower, unlefs the voyage 
 be thereby loft, 
 Jdyce V. Wth Thus : — An aiSlion was brought on a bottomry bond,- 
 
 Mich. 23 G. 111. on a voyage from the Tagtis to Nenv Tork; and the con- 
 ^^^- dition of the bond was, that if, upon the fliip's arrival at 
 
 A fhip is cap- Neiu Torhj the defendant fhould pay the plaintiff the fum 
 t."[ned *for a ^' ^^"^5 vj'\.t\\ the ftipulatcd intcrefl •, or if the fhip fhould be 
 month, recap. Jofl;, taken by the enemy, mifearry, or be call away, the 
 li^d 10 a port cut bond to be void, otherwife to remain in force.— The de- 
 of the courfe of fendant pleaded, i[\, Nou ejifaamn-, 2dly, that the fliip' 
 florcd on pay- did not arrive fafe at Neiv Tork ; 3dly, that the fhip 
 
 nieni of Islvajre, 1 i 1 r n- • • 1 t 
 
 and at lai* ar "'^'^s captured by the enemy.— iiiue was jomed upon the 
 nves at her part j^q fj^ft p]eas J and to the thii-d the plaintiff replied re- 
 "the borrower is Capture. IfTue being joined on this replication, it ap- 
 ' '^^'^^^ ' peared upon the trial, that the fliip was taken on her 
 paffage to Ne%u Torky detained for a month, and plun- 
 dered of her florcs ; that flie was then retaken by an 
 Englijh privateer, and carried into Halifax \ where the 
 cdurt of admiralty decreed that Hie fhould be refhored to 
 the original owners, on payment of falvage, which was 
 raifed by fale of part of the cargo ; that after a cpn- 
 fiderable repair there, fhe failed for New Tork, where 
 ■fhe arrived with the I'emainder of her cargo, and earned 
 her freiiyht : That the fhip and freight were then wortli 
 the fum mentioned in the bon4 ; but net worth that 
 4 fum^
 
 €h. v.] The Ri/ks. 75i 
 
 fum, and the fum laid ou: in repairs. — There was a ver- 
 dict for the phintliF, and the court, upon a motion for 
 a new trial, determined that the verdidl vras right, and 
 the plaintiff entitled to recover. — Lord Mansfeld, in 
 delivering the opinion of the court, faid ; — ** It is clear 
 that, by the law of Englandy upon a bottomry contraft, 
 there is neither ave^-age nor falvage. It has been con- 
 tended on the part of the defendant, that this cafe is 
 within the faving words, that in cafe of lofs by capture^ 
 the bond Hioald be void ^ and that here was a capture 
 and detention for a month. But, upon confideration, 
 we are all of opinion, that a taking, within this con- 
 dition, does not mean a temporarv taking, which is only 
 an obftruftion which niay lad for a day, it muft be fuch , 
 a taking as, between infurer and iufured, would amount 
 to a total kfs. But this Was not fuch a capture. The 
 voyage was not loft ; for the fhip arrived at her port of 
 deftination and earned her freight : And, as freight de- 
 pends on the fafety of the fhip, (he muft have ar rived fafe 
 to have earned her freight. Either way there muft be a 
 hardftiip \ butlhe law allows no average or falvage in bot- 
 tomry bonds." 
 
 No lofs will have the effeft of avoiding the contraft, The kndfr it 
 
 ,r\ • 11 1 1 I r 1- not liable frlcfj 
 
 tor difchargmg the borrower, but a total lots proceedmg p.^cpcding from 
 From the perils of the fea, during the voyage, and v/ithin |."^ ihicmni de- 
 
 the time fpecified in the contrail. Creditor fubit peri- uniefsby expiefs 
 
 , .... f, . . . - ^ < fy . HipiiUtion. 
 
 {ttlum navjgnttoms vi cajimis jortuitis ianttim- \a)> cut no 
 
 lofs fhall be reputed to have arifen from the perils of the 
 
 fea, which arofe from the internal defcifl of the thing 
 
 hypothecated. As *.vhere a fhip is not fea-v/orthy, and 
 
 perifhes from age, rottennefs, or other fuch caufe ; or 
 
 where goods pcrifh of themfelves, liquors run out through 
 
 the defed}: of the cafks ; dry goods heat and ferment by 
 
 jength of time (J), 8cc. Valin (c) feems to condemn j 
 
 (j) Roccus de naVIb. n. 51 — [I) Ord de la mar h. t. art. 1 2 
 
 Emerig, t. 2, p. 569. Potkiert h. t. n. ^4. U) On art, \2, 
 
 h. t, 
 
 T a ai
 
 y^6 Of Bottomry and Refpcndentm. ['B.II, 
 
 as illegal, any claufe by which the lender is made liable 
 for lofs occ ifioned by the internal defect of the thing : 
 But Emengon {a) holds, that the lender may, by exprefs 
 ftipuiation, make himfelf liable for fuch loffes, provided 
 the caufe did not ex at before the fnip's departure. 
 He is net liable The a£l of the owners of the fliip, of the mafler, 
 lw,lerVofnfafler or of the borrowcr, is not a peril at the rifk of the 
 of the (hip. lender, ^na Jufcipit in fe per'tculuin navigationls^ fufcipit 
 
 pericidum fortume^ nsn culpa [b). As if the voyage be 
 changed by order of the owners of the {hip ; or if a lofs 
 happen by the barratry of the mafter, or by the mlf- 
 condu£l of the merchant ; this will not difcharge the 
 borrower. Si infortunium vel naufmgium, ex culpa debt' 
 to} is procejferiti tunc creditor non ienetur de pericido et damno 
 in quod inctnritur, ex culpa 'ueheittis aut alterius (c). This 
 is the general rule ; but, by exprefs llipulation, the lender 
 may be made liable for every lofs not occafioned by the 
 zQ. of the borower {d). 
 Nor for a lofs i)y If the fhip be forfeited, or the goods confifcated, for 
 ScwTpiivy Smuggling, in which the lender had no concern, he is 
 «^ "• , not liable for the lofs ; for this does not arife from the 
 
 perils of the fea, but from the impatient avarice and 
 lawlefs temerity of the borrower. Non ex marina tempef' 
 tatii difcrimim\ fed ex pracipiti avaritia^ et incivili debitoris 
 audacid (e). — Yet it is faid, that if the lender were privy, 
 and confenting to the contraband trade in M'hich the 
 money was to be employed, he flrall be liable for the lofs. 
 Si fciente, et confentiente illo fiat^ confenfusjus facit {/). — In 
 England if the money were lent to be employed in a trade 
 prohibited by law ; the contrail would be abfolutely void ; 
 and the fum lent coidd never be recovered from the bor- 
 rower, even thou^^L no lofs had happened {g). 
 If the (hip rfo The lender, like an infurer, is only anfwerable for 
 
 not la,',l on the 
 
 \ 
 
 {a) Tom. 2, p. 509. (b) ff. denavt. fan. {c) Rocciis ■ 
 
 de navih. n. 51. {d) Vid. Emerig. t.'2, p. 510. {e) J- 
 
 de naut.fan. s- (/ ) Kurichy tit, 6, p. 762. Vid. Faliti 
 
 . oa art. la, ii. t. \g) Vid. fup. book 1, ch. 3, § i, 2. 
 
 lofles
 
 Ch. v.] Ths R[fhs, y^y 
 
 lofles which happen within the time and place of the ^oytgt dekrib- 
 rifk, as fpecified in the contra^. Therefore, if the fliip, "^{.^Z **„«ef! 
 without neceifity, deviate from the voyage defcribed in '''>',» '^' lender 
 the bond, the lender will not be liable, any more than an *Vrged f.'om 
 infurer, to any lofs that may afterwards happen {a). Upon ^''' "'^■ 
 this point I would refer the reader to the fubje6l of devia- 
 tion, in cafes of infurance (^), the dodrine of which is 
 equally applicable to the prefent fubjedl. 
 
 Our courts, both of law and equity, have adopted the 
 fame principle in feveral inflances. 
 
 Thus: — The plaintiff lent 500 1. upon the hull of a ^f^'ft':'n^.wu<fyt 
 fhip, and the defendant covenanted to pay, if the fliip " '^^' 
 went from London to Bantam^ and returned from thence "^ '^'?.,'' '°* 
 
 alter a wilful de- 
 
 direclly to Londcn^ within 12 months, 550 1. ; if from ^'a^' '". 'he 
 
 London to Bantam, and from thence to Ch'pia or Formofa, ViixiJ. 
 
 and returned to London within 24 months, 650 1.; and 
 
 if file returned not within 24 months, then to pay r \. 
 
 per mom\\ above the 650I., till 36 months; and if ihc 
 
 returned not within 36 months, then to pay 7 10 1, unlefs 
 
 it could be proved that the fhip was loit within the ^6 
 
 months. — The Ihip went from London to Bantam^ and 
 
 from thence to Surat and other parts, and fo returned 
 
 to Bantam ; and in her voyage from Bantam to Londoti^ 
 
 was lo/l within 36 months,— In an aclion upon the bond ;' 
 
 after a feries of long and intricate pleadings, the above 
 
 fa£is appeared upon demurrer. — The court inclined to 
 
 think, that, by reafon of the deviation in going to Surat, 
 
 the plaintiff was difcharged from the rifk, and therefore 
 
 entitled to recover ; and after time taken to deliberate, 
 
 they adjudged accordingly (r). 
 
 So, where, to an aftion upon a 'bottomry bond, the jruiiams v: 
 defendant pleaded, that the (hip went from London to ^'''j"""'y SHn. 
 Barbadoesy fine dev'iatione, and afterwards, on her return i26.'s. c. 
 
 from Barbadoes toward-s London, (he was loft //; via^'io r-~ T- 
 
 o It the (iiip be 
 
 : __^ prpfTcd into the 
 
 Kjiig's lervicr, 
 
 (a) Pothler, h. t. n. 18. Emcrl^- t. 2. p. r^22. '"is will cxcufe a 
 
 ' S i" J cirvi.ition ; bur if 
 
 ib) Sup. jBj. (<r) Vid. Aaon. i Eq. Ca. Abr. 372. 2 Ch. the borrower 
 
 Ca. i'^Q. ^"^S'-' a <lcvia- 
 
 ■• tion, tills niuft 
 
 T 3 predlao. ''' '•■'^''''''"y ''«" 
 
 •* ' nied.
 
 fS^' Of Botiomry and Refpondent'ia. [B.il= 
 
 prxdicio. The plaintiff replied, that the fliip, in her re- 
 turn, went from Barhadoes to Jamaica ; and that after a 
 flay there, {he failed from Jamaica for London^ and was 
 loft ; and fo fhews a deviation : The defendant rejoined, 
 that fhe was preffed into the King's fervice, and fo was 
 compelled to go to Jamaica^ which is the deviation pleaded 
 by the plaintiff; ahjaue hoc^ that fhe deviated after (he 
 was preffed. Upon demurrer to this rejoinderj the plain- 
 tiff had judgment. — The court held that the plea of the 
 defendant was not good ; for he alleged that the fhip 
 went from London to Barhadoes, without deviation, and 
 that, in her return from Barhadoss to Londouy {he was loft 
 in the voyage nforefaid ; but did not (hew, •without deviation. 
 And as the condition was fo in e.xprefs words, the de- 
 fendant ought to have {hewn exprefsly that he had per- 
 formed it according to the words. 
 Charging the So where money is lent on goods, on board a certain 
 
 ceffity "<iif-'^ "^" ^^P> *^^ lender is only confidered as liable for the rifle 
 charges the qj-j thofe goods while they are on board that fhip ; and 
 , '^ ° if they be removed to another ihip, without neceffity, 
 
 the lender will be difcharged {a). — But if the change be 
 occafioned by any neceffity, he will ftill continue liable. 
 As if the firft fhip be preffed into the king's fervice, or 
 be declared unnavigable, 8cc.', the borrower may load 
 the goods on board another veffel at the rifle of the lender, 
 and the increafe of freight, &:c. will be a general ave- 
 rage, to which the lender will be liable [b) . 
 Duration of the Money is generally lent for the whole voyage 
 ^}^h outward and homeward j or for either feparately ; oi: 
 
 for a limited time. The contra£t ufually fpecifies the 
 commencement and end of the rifk ; and any misfortune 
 happening before pr after, is at the rifk of the bor- 
 rower {c). If the voyage be defcribed in the bond ; but 
 
 {a) Pothier, h.t n. i8 ; Emerig. t. 2, p. 524 (i) Erne-- 
 
 rig. MtivL-p. Vid. flip, book I. cb. 5, §2, {c) Vid. Valine 
 
 on art. 13, h. t. Emerig. t. 2, p. 51/J.. 
 
 the.
 
 Ch.V.] TheRifis. 755 
 
 the time of the commencement and end of iii\Q. rifle be 
 not fpecified, the rifl:, as to the fliip, {hall commence 
 from the time (he fets fail, and continue till flie anchors 
 in fafety at her port of deftination ; and, as to goods, 
 from the time they are fliipped, till they are fafely 
 landed {a). 
 
 "When the loan upon goods is botli for the outward 
 and homeward voyages, the lender continues liable to 
 the rilk during the liomeward voyage on the goods, by 
 which thofe have been replaced on which the money was 
 lent ih). 
 
 {a] Yid. flip, book ij ch. 7, % 5, (^) Pothler^ h.t, n. ^4. 
 
 1 4
 
 7^0 Of Bottomry and Refpondentia> [B. IL 
 
 ' CHAP. VL 
 Whether the Lender be liable to general Average. 
 By the geriera! rpHERE is this difFerence between infurance and bot- 
 
 law of mei- A t • 
 
 chants, the lenrier tomry, that an infurer, unlefs he ftipulate to be free 
 
 jf liable to gene- r -• i • i i* i.i ,. ^i. ^ i. 
 
 raiavenise. "^ particular average, is always hable to that charge; 
 
 whereas a lender is not Hable to it, unlefs by exprefs fti« 
 pulation : But, by tlie general law of merchants, in cafe 
 of grofs or general average, the lender fhall contribute to 
 difcharge the borrower {a) : The reafon of tliis difference 
 is, that particnl.ir average in no degree contributes to the 
 fafcty of the fhip ; whereas it is to thofe facrifices which 
 are the fubject of general average, that the lender owes, 
 / the prefervation of his money, which, without fuch fa= 
 
 orifices, v.-ould be loll with the Ihip [U). 
 
 The nature of Foreign writers even hold that a ftipulation on the. 
 
 the contrdfl r i i i \ c r ^ 
 
 feems to lequire P^^t 01 the lender, to DC ircc ot general average, would 
 *'^'^* be abfolutely void, as being inconfiftent with the nature 
 
 of the contract, contrary to good policy, and injurious 
 to the intereils of the lender himfelf, who mufl lofc all, 
 if the fhip be loft (c). Indeed the nature and obje£l: of 
 bottomry contracts, feem, of thernfelves, to require that 
 
 {a') ' IS argent a profit riejl contribualle en aucune avarie, 
 
 * referve i^u aux rachapis, compofit'ions , et jets fails pour la fal~ 
 
 < vatlon du totals et pour le foulagement ou Pevajlon, des dangers. ' 
 Le Guidon, ch 15, art. 5. — ' Ce qui eji fort jujie,'' {?lj?, Cleiracy 
 in bis commentary on this paffage, * afn que cette grojfe iifure 
 *■ pajfe au paroiJfe,f^en{zX.io vel cequamentum periculi, comme dit 
 Du Moulin, fur la loi, periculi pretium. Dig- de nautico fas- 
 « uGrc,e?ifon traite, Contrad. ufur. quajl. 3. de trajedlitiis. L'ar- 
 ' Tent a profit ne charge pas le navire mais raffecle par kypotbeque, 
 
 * laquelk nejubfifie que par lafalvation dUcehiy ; -cefl pour quoy il eJi 
 
 < raifonnahle que la dite hypotheque contrtinte a ce qui concerne la con- 
 *■ fervalion du toted, ou defonfiijet, Ut omnium in tributione far- 
 
 * ciatur quod pro omnibus datum eft.' Vid. Pothier, h. t. n. 42, 
 
 ^y. i^b) Einerig. t. 2, p. 505. > [c) Confult on this point 
 
 Valin, oa art. 16, h. t. ; Pothlcr, n. 46; Emerig. t. 2, p. 505. 
 
 p the
 
 Ch. VI.] Average, ^g, 
 
 the lender (hall be liable for general average. The bor- 
 rower generally takes up die money bccaufe he has not 
 a capital of his own upon which | he can carry on his 
 trade. Knowing that it would be iitipoflible for him to 
 repay the fum borrowed, but in the event of a fortunate 
 return, he means to run no rifk, and agrees to part with 
 a large {hare of his pronts, to be free from all perfonal 
 refponfibility. But if he fhould be held liable to general 
 average, then, by takmg up money in this way, he muft en- 
 gage in a game of hazard, perhaps without being aware 
 of his danger, in which he may eventually be ruined. 
 
 It has been faid, however, by a very diftinguiftied Whetlier by r;,e 
 judge, that,**^j; the laiv o/" England, there is neither average '*"' ^'^ ^''^■•'^- 
 nor falvage upon bottomry contraEls (<?)" And diis dodlrine, 
 fo far as it relates to average, has been fince adopted by 
 another noble perfon, no lefs eminent for his learning 
 and abilities (^). I have anxioufly fought, however, but 
 fought in vain, to find any decided cafe, or authority 
 in the law, which could warrant this dodlrine. — I cannot 
 agree with a learned writer (r) on this fubjed, that the 
 flat. 19 G. II. c. 37, § 5 {d)i which provides that the 
 benefit of falvage Ihall be allowed to the lender, on Eajl 
 India voyages conclufively proves that there was neither 
 average nor falvage upon bottomry contraifls at common 
 law. — I never could look upon that a6i: as having intro- 
 duced any new principle into the law either of infurance \ 
 or bottomry contrails. On the contrary, it feems to me, 
 after the bci^ confideration I have been able to give the 
 fubjeft, that it merely reftored them to their original 
 and only proper ufe, from which a fpirit of gaming had been 
 fufFered to pervert them. I cannot even ...Imit that, be- 
 caufe the ftatute gives the benefit of ftdvage to the lender 
 upon EaJl India voyages, therefore he was not entitled to 
 this at common law. As v/ell might it be faid, that be- 
 caufe the infurance of enemy's property, in time of war, 
 
 {a) Per Lord Mansfield, in Joyce v. WilTiamfon, fup. 7 1^4. — 
 
 {h) Per LordiirfHjon at N. P. in IValpoks, F.iver, inf'.763. 
 
 [c) Park, ^2^. (d) Sup. 128, 
 
 has
 
 762 Of Boitomry and Refpondcniia. [B. IT, 
 
 has been occafionally prohibited by ftatute, therefore the 
 
 - infurance of enemy's property is a legal contraft at 
 
 common law («). — But even admitting the inference, that 
 
 becaufe the flatute gives the benefit offalvage to the lender 
 
 upon EaJ} India voyages, therefore he was not entitled to 
 
 this at common law ; does it from thence follow that he 
 
 was not liable to general average at common law ? The 
 
 ftatute no where mentions general average. 
 
 1^ the infured But whatever may be the true rule of law which 
 
 dentia Llre^on ""g^-" "-^ prevail OH this fubje£l:, it has been determined, 
 
 a foreign ihip be that if an iiifurance be made in England upon a re- 
 
 ebhged to con- . j.-n. r • n- \ ■ ^ 
 
 tribute to a gene- Ipondcntia intercit upon aycr^fo-«y/2p, and it appear that 
 rai^vcijge, the jj^g lender is liable by the law of the country to which 
 
 uiuitrrvwriteis will ' ' 
 
 be liable. thc fhip belongs, to contribute to a general average j 
 
 the underwriters upon the policy will be liable for fuch 
 contribution. 
 
 H^alpoie v.^iy^r, Thus : — Where a refpondentia loan an a Danifb fhip and 
 
 at N. P. affrTr 
 
 '17S9. ' ' goods was infiired in England, and an average lofs was 
 fuftained upon the goods to the amount of 6 1. 15 s. per 
 cent, to which the holder of the refpondentia boud was 
 obliged to contribute. He brought his a6lion againfi: the 
 Englijh underwriters to recover the amount of this con- 
 . tribution. — Lord Kenyan, who tried the caufe, faid, — 
 •^^ By the law of England, a lender upon refpondentia is 
 not liable to average lofles , but is entitled to receive 
 the whole fum advanced, provided the (hip and cargo ar- 
 rive at the port of deftination. The plaintiff contends that 
 as, by the law of Denmark, fuch lenders are bound to 
 ^ contribute to average lofTes, according to the amount of 
 their interefl, the infurer here mufl anfwer to them. 
 The Danijh conful has proved that he received a judgment 
 of the court of Copenhagen, the decretal part of which 
 proves the law of Denmark to be as the plaintiff has 
 
 t^t decifion of fl-^ted it. The opinions of feveral men of eminence in 
 
 a foreign couit ^ 
 
 of competent that country have been offered on each fide : But I rejeft 
 the'b^ ev*i'de!,ce them, becaufe the folemn decifion of a court of corape- 
 to (hev<r what rue ^^^^ jurifdiclion is of much greater weight than the 
 
 \aw of the couii- ■' o o . • 
 
 try is. ^ _ 
 
 {a) See this fubjecl fully'confidered, fup. book i, ch. 2, § i. 
 
 opuiions
 
 Ch. VI.] Average. 765 
 
 ppinions of advocates, however eminent, or even the ex- 
 trajudicial opinions of the moft able judges. It feems as 
 if, in this cafe, the underwriters were bound by the law 
 of the country, to which the contract relates." — ^The jury 
 found a verdidt for the plaintiff {a). 
 
 {a) Vid. the cafe of Neivman v. Cazakt, Beaiucs lex mere. 
 2149, wher^ an infured had been obliged by the judgment of a 
 foreign court to* pay a larger average contribution than by the 
 law of England could hare been demanded, but it appeared to 
 have been cuPiomary in adjufting loffes to allow the whole of 
 fuch contributions ; Mr, Juftice BuHer at N. P. ruled that if the 
 ufaee were clearly proved, it ought to govern.
 
 7^4 Of Bottomry and Refpondentm. [B.II. 
 
 CHAP. vir. 
 
 Whether the Lender be entitled to the Benefit cf 
 Sah age. 
 
 The flat. 19^7.2. ^-f^HE^provlfion of the flat, lo G.ll. c. q 7, which gives 
 
 c. 37, gives the i r r i i 
 
 benefit of faivage the benefit of lalvage to lenders on bottomry and 
 
 y^^rfyoTl^"^^ refpondentia, being confined to Ea/i India voyages, it 
 mav be proper here to enquire, whether, before that a6t, 
 the lender, upon any voyage, was entitled to the benefit 
 of falvage. 
 Whether the By the general law of merchant?, the' event upon 
 
 voyages he i,^&. which the borrower is difcha--ged, is the total lofs of the 
 b^^cH '^^ ^^™* ^'P °^ goo'ls upon which the money is lent , provided 
 this happen by the perils mentioned in the contrad. 
 Though the borrower is bound to pay the fum lent and 
 the marine intereil, in cafe the fliip or goods on which 
 the money is tent arrive at the port of deftination, how- 
 ever damaged or reduced in value by the perils of the 
 fea ; yet if part fliould be. captured or loft, the bor- 
 rower is only bound to pay in proportion to what re- 
 mains {a). — ^Thus, if loool. be lent on goods, the half 
 of which are loft, the reft faved, the lender will lofe 
 500 1. of his principal, and the borrower will pay the 
 remaining 500 1. with the marine intereft upon that fum. 
 If the (hip be loft, but the goods, on which the money 
 was lent are all faved, tlib contra£t will remain in force, 
 and the borrower will be liable, provided another {hip 
 can be procured to convey the goods to the place of their 
 deftination. But the charge of the other veflel will be 
 at the expence of the lender, and if no other can be 
 procured, the borrower will be difcharged on accounting 
 to the lender for the proceeds of the goods faved. 
 
 {a) Pothier, h- t. n. 47.", Val'tn, art. ir, 14, 17, h. t. 
 
 Emerig. t. 2, p. 453- Conf^lt on this point Bynk. quttjl.jur. 
 
 prlv. lib. %, c. 16. 
 
 ^ ^ But,
 
 Ch. VII.] Salvage. , * y6^ 
 
 But, by the law of Englandy according to the opinions Lord SUmfidd't 
 of Lord Mansfield and Lord Kenyoriy which we have al- it. "' ^**" 
 ready had occafion to refer to («), there is neither average 
 norfalvage upon bottomry contrails: It muft be admitted, how- 
 ever, that, without the benefit of falvage, this contract 
 muft partakfe greatly of the nature of a wager, even when 
 the money is lent upon goods on board of equal value. 
 If there be a total lofs of the fliip the lender lofes all, 
 though all the goods are faved. 
 
 (a) Sap. 761. 
 
 As to the infurance of bottomry and rejpondentia loans^ 
 via. fup. 117, 317. 
 
 As to the remedy of the lender^ nvhere the borrower becomes 
 bankrupt f before the r'tjkis ended^ and the lender entitled to 
 repayment f vid. fup. 731. 
 
 END OF THE SECOND BOOK.
 
 Of Infurance upon Lhes> [B. IIL. 
 
 BOOK THE THIRD. 
 
 Of Irfurance iipoh hives. 
 
 The fubjeft of this book mr.y be difiributed Under th^ 
 foUo'W'ing heads \ 
 
 I. Of the Nature of this Contrafl. 
 
 II. Of the Warranty of the Jge and Health ofth's 
 
 Life infured. 
 
 III. Of the Interefi of the ijifured. 
 
 IV. OftheRiJki. 
 
 C H A P. L 
 
 Qf the Nature of this CoJitrafl. 
 
 I^efincd. 'T~'HE infurance of a life is a contraiQt whereby the m- 
 
 furer, in confideration of a certain premium, eithef 
 in a grofs fum, or periodical payments, undertakes to 
 pay the perfon for whofe benefit the infurance is made, a 
 ftipulated fum, or an annuity equivalent, upon the death 
 of the perfon whofe life is infured, ivhenever this jhalt 
 happefiy if the Infurance be for the whole life, or, i?t cafe 
 this Jhall happen ivithtn a certain period^ if the infurance be 
 for a limited time. 
 
 fTtiiity of it. The precarious dependence of a numerous family upon 
 
 the life of a fingle perfon, naturally fuggefts the idea of 
 feeking fome protedtion againll a calamity, which fooner 
 or later muft befal them ; and this, probably, fuggefted 
 the firfu idea of infurances upon lives, as an expedient 
 by which a pecuniary indemnity, at leaft, might be fe- 
 cured to the fufFerers fufficient to refcue them from the 
 poverty and difhrefs which otherwlfe awaited them. 
 
 Upon this principle refts the utility of infurances upon 
 lives. Perfons having incomes determinable upon their 
 own lives, or the lives of others, arifing from landed 
 |)roperty, fVom profefllons, from church livings, from 
 
 public
 
 Ch. I. j Nature of the Co7iira ft: ' ^Sf 
 
 public employments, peniions, annuities, 8cc. by paying 
 iuch an annual premium as they can fpare from their 
 prefent ncceflitiesy may fecure to their widows, their chil- 
 dren, or other dependants, an adequate fum oi" money, or 
 an equivalent annuity, payable upon their deaths. By 
 fuch infurances) alfo, may the fines to be paid 'upon the 
 renewal of leafes, or upon the defcent of copyholds, be 
 provided for. So^ where a perfon, having only a life in- 
 come'. Wants to borrow moiiCy, but can only give his 
 own perfonal fecuvity for it j he may, by infuring his life, 
 fecure to the lender the repayment of his money, though 
 he fhould die before he is enabled to difcharge the 
 debt (a). 
 
 Thefe confideratlons induced the bifliop of Ox/curl and EftaHirtiment of 
 feveral other benevolent perfons in the reign of Queen [.'^^^ j'nie^fJr 
 ^tin, to apply for the charter by v/hich the corporation, 'he infuranceof 
 called the Amicable Society, was eflabliflied ; to enable per- 
 ions to fubfcribe a part of their incomes, in order that 
 the reprefentative of each fubfcriber fliould, upon his 
 death, receive fuch a fum^ as the funds of the corporation 
 would enable them to pay, upon the feveral deaths hap- 
 pening in each year. 
 
 But as the benefits of this fociety were confined to a 
 limited number of fubfcribers, and thofe only for fmall 
 fums, feveral other corporations and companies upon 
 more extenfive plans have been eftablifhed, — The Royal Roval 'Exchar.^r 
 Exchange and London JJfurance companies obtained char- ^ji^a^cT ILyl- 
 ters from king George I. to enable them to make infur- "'"• 
 ances upon lives. The Society for Equitable Ajjhrances on fj"Jl^^^^' ^^" 
 ^ lives and furvivorfliips, was eftabliilied in the year 17(52, 
 by deed inroUed in the court of King's Bench at PFeJl- 
 minjlet-y in which every perfou who infures becomes a 
 member, participatiwg in the profit and lois of the ibciety. 
 The fuccefs attending this eftablifliment has given rife to 
 haany other inftitutions of the fame nature, in the country' 
 as well as in the metropolis .; but all greatly i.ifcrior to 
 
 («) Vid. inf. ch. 3. 
 
 th?
 
 76S ^f Infurance upon Lives. [B. Illi 
 
 the Equitable Afurance, in the extent of their dealings, and 
 the magnitude of their funds. 
 Legality of in- We are not informed at what time this fpecies of in- 
 Curance on lives. ^^^^^^^ ^^s £r^ introduced into this countrv ; probably 
 becaufe it came into ufe by flow and imperceptible de- 
 grees. Koccus {a) has taken fome pains to prove that 
 infurances upon lives are legal contrads. Yet in moft of 
 the ftates of Europe fuch infurances have been prohibited 
 by pofitive law. In this country, however, fuch contrafts 
 have been repeatedly fandioned by legiflative authority, 
 and indeed the legality of them is now indifputable. 
 Perhaps it might favour too much of national partiality 
 to afiert that in this country alone can infurances upon 
 lives be fafely tolerated. In France^ they have always 
 been deemed illegal {b)y and they are exprefsly prohibited 
 by the ordinance of 1681 (f), becaufe, fay the FrencJj 
 wiiters, it is an offence againft public decency to fet a 
 price upon the life of a man, particularly the life of a free- 
 man, which is above all valuation {d) 5 thus glofling over, 
 with a fme fentiment, a motive of policy which could 
 not be mentioned without conveying an infmuation to the 
 difcredit of the national character. 
 
 {a) Be affecur. n. 74. {h) Le Guidon, ch. 16, art. 5. 
 
 {c) T\t. des ajjfurancesy art. 10. {d) Valin, on art ic. 
 
 tit. des ajfurances. Vid. fup. 215 j Pothier, tit. des ajfurances, 
 ». 137.
 
 Ch.. II.] Warranty of Health* 
 
 7^ 
 
 CHAP. IL 
 
 0/tbg Warranty of the Age and Health cf the Life 
 infured, 
 
 IT is generally a condition, or warranty, in an infurance 
 upon a life, cither infertcd in the policy, or contained in 
 a declaration or agreement figned by the infured, that the 
 perfon whofe life is meant to be infured has not any dif- 
 order which tends to the ihortening of life ; that he has, 
 or has not, had the fmall pox ; and that his age does 
 not exceed a certain period ; that this declaration (hall 
 be the bafis of the contradl between the infurers and the 
 infured j and that if any untrue averment be contained 
 therein, the contract (hall be void, and all money paid on 
 account of the infurance forfeited. 
 
 As ihis declaration is to be taken as part of the written 
 contraft (c), amounting to a warranty, it behoves every 
 perfon who makes an infurance upon a life, to be very 
 circumfpc£l in afcertaining the truth of the allegations 
 contained in it ; becaufe upon that the validity of the 
 contraft mud depend. 
 
 By the warranty that the perfon, whofe life is to be 
 infured, *has no diforder ivhich tends to thejbortening of life ^ 
 is not to be underftood that he is perfectly free from the 
 feeds of all diforder. The warranty is fufficiently true 
 if he be in a rcafonably good ftate of health, and, that 
 his life may be infured on the common terms, for a per- 
 fon of his age and condition : And the following cafe 
 will fhew, that though he labours under a particular 
 infirmity, yet, if it can be (hewn that this had no 
 
 The dfclaption 
 figntd by the 
 infurfd. 
 
 A warranty that 
 the party is in 
 guud health will 
 not be f^lfified 
 by proving diat 
 he laboured un- 
 der a particul.ir 
 infiimity ; ifihij 
 had no tei'.denry 
 to Q)ott»n i;f«. 
 
 ifi) See the cafe of Routhdgi v. BurreU^ Inf. book 4, c. 4. 
 TOt.n. U tendency
 
 -s^j^d Of Infiirance upon Lives > [B. Ilfi 
 
 tendency to {horten life, and that, in fa£t, it did not, in 
 any degree, contribute to his death, the warranty is fuf- 
 ficiently true. 
 Ro/i v. ^rai. Thus : — An infurance was made on the lift of Sir 
 
 jU w, I PL 3 12. j^^^^^^ j^^j^ fo^ one ye^j.. from Oaoher 1759 to OBoher 
 The life infurcd 1-760; ivar ranted in good health at the time of making the 
 goor'heaith LI policy.— In an aBion on this policy, it appeared upon the 
 the time of mak- ^xidX^ that Sir Trtw^j- had received a wound at the battle 
 
 ing rhe polity; ,•' ..... ■l't.t.j 
 
 — Itwiii notfai- oi LaFeldt, m the year 1747, in his loins, which had 
 ftfy this war- ^^^^^^^^^^ ^ partial reia.xation or palfy, fo that he could 
 
 lantyj tnaij in i * ' 
 
 confequence of a ^ot retain his u^inc or j/^f^j, 'and which was not men- 
 a partial paify in tioned to the infurcr. Sir Jatnes died of a malignant 
 Jia'nor.endt /^^^^ within the time of the infurance. All the phyfi- 
 fliorten life. cians and furgeons who were examined for the plaintiff, 
 
 fwore that the wound had no fort of connexion with 
 the fever ; and that the want of retention was not a dif- 
 order which fhortened life '; but he might, notwithftand- 
 ing that, have lived to the common age of man ; and 
 the furgeons who opened him faid that his inteftines 
 were all found. One phyfician, who was examined for 
 the defendant faid, that, the want of retention was pa- 
 ralytic J but being aflced lo explain, he faid it was only 
 a local paify, arifing from the wound, but did not afle£l 
 life : But, on the whole, he did not look upon him 
 as a good life. — Lord M,ansfeldy who tried the caufe, 
 in fumming up the evidence to the jury, faid ; — " No 
 queilion of fraud can exift in this cafe. When a man 
 makes an infurance upo;i a life generally, without any 
 ■warranty of the ftate of the life infured, the infurers 
 take all the rifk, unlefs fome fraud be committed by 
 the perfon infuring, either by fuppreffing fome circum" 
 fiances^ which he hieiv, or by alleging nvhat luas falfe. 
 But if the infured knew no more than the infurer, 
 the latter takes the rifk. Wherever there is a warranty, 
 it mufl, at all events, be proved that the party was a 
 -g«od life, which makes the queflion on a warranty 
 much larger than on fraud. , Here there was a war- 
 ranty, and it is proved that there was no reprefentation 
 at all, as to the ftate of the life, nor any queflion afked 
 12 about
 
 Ch. IL] Warranty of Health. qji 
 
 about it: Nor was it neceflary. Where an infiirancc 
 is upon a rcprefcntatiotiy every material circumftancc 
 fhould be mentioned ; fuch as age, way of life, Sec. 
 But where there is a warranty, then, nothing need be 
 told ; but it mult, in general, be proved, if litigated, 
 that the life icas, in fact, a gcod one : And fo it may be^ 
 though he had a p.iriicular infnnity. The only queftion is, 
 whether he was in a reafonahy good fate of health, and 
 *fuch a life as ought to be ififitred on common terms." — The 
 jury, upon this dlred^ion, witliout going out of court, 
 found a verdict for the plaintiff. 
 
 So, where an infurance was made on the life of Sir m^i v. p.^v, 
 Simeon Stuart^ from the ift of April lyyg, to the ift of ^E^i\%^]^^" 
 April 1780, and durincr the life of Eliza Edgley Eiver. 
 
 , ° . Nor will it falfi- 
 
 The policy contained a warranty that Sir Simeon was fv this wjinanty 
 about 57 years of age, and in good health when the p^r-y'^^as trlu! 
 policy was underwritten, and that Mrs. Ewer was about bicfiwithfp.umi 
 
 and cramps, flora 
 
 78 years of age. Two qu'^ftions were intended to have violent fit* of tiie 
 been made; ill. As to the plaintiff's intereft ; 2dlv. ^""^' 
 On the warranty of health. The former was dif- 
 pofed of by the plaintifi' s proving a judgment debt.— 
 As to the latter, it appeared in evidence that though 
 Sir Simeon was troubled with fpafms and cramps, from 
 violent fits of the gout, he was in as good a ftnte of 
 health when that policy was underwritten, as he had • 
 enjoyed for a long time before. It was alfo proved by 
 the broker who efH'flsd the policy, that the underwriters 
 were told that Sir Simeon was fubje6t to the gout. — 
 Doctor Hderdin, and other gentlemen of the faculty 
 proved that fpafms and convulfions were fymptoms in- 
 cident to the gout — Lord M^nsfdd. who tried the 
 caufe, {iiid ; — " The imperfection of language is fuch, 
 that we have not words for every diflcrcnt idea ; and 
 the real intention of the parties muft be found out by 
 tlie fubjedt matter. By the prcfcnt policy, the life, 
 is warranted, to feme of the underwriters/// health \ to 
 others, in good health ; and yet there was no difference, 
 in point of fact : Such c ivarranty can never mean, that 
 ft man has r.ct in him the feeds of feme diftrder. "We 
 u 2 are
 
 jy^ Of Infutcince upon Lives, [B. Ill, 
 
 are all born with the feeds of mortality in us. A 
 man, fubjeft to the gout , is a life capable of being in- 
 fured (a), if he has no fickuefs at the time, to make 
 it an unequal contract/* — ^There was a verdift for the 
 plaintiff. 
 If there be no When there is no warranty the xnfurer takes the rifle 
 warranty, the himfelf, whatever may be the ftate of health of the 
 
 infurer takes the *^r ' ^ v 
 
 riflt upon him- perfon whofe life is infured, unlefs there be feme fraudu- 
 lent mifreprefentation or concealment. 
 
 Stacipco! V. Si' Thus : — An infurance was made on the life of Drt4ry 
 
 m Vac.^*779: Sheppeyy from the ift of ^^nV 1777, to the lit of ^^n7 
 
 FarA. 437. J 778. — In an adion on the policy, the queflion was, as 
 
 The infured to the rcfprcfentation of Sheppey's health, at the time the 
 
 JamI"but'^Jhe policy was effeaed. The intereft in the life was a debt 
 
 broker tells the ^f gool- due from Sheppey to the plaintiff. It appeared 
 
 that, from the' that Zheppey^ who had a place in the cuftom houfe of 
 
 account he had J j ^ went to the io\xxhoi France, for the benefit of 
 
 received, he be- -^ " J 
 
 tievedit to he a j^jg j^galth, or to avoJd his creditors, and there died within 
 
 geodlife. — There , rr-i l i 1. r 
 
 being no fraud the time limited in the policy. The broker who ef- 
 dlrwriters^'ruT ^eded the policy, told the underwriters, that the gentle- 
 all jiiks. jj^^j^ £yj. ^.Jiom he a£led would not warrant any thing j 
 hvX from the account he (the broker) had receivtd, he be- 
 lieved it to be a good life. — Lord A'lanfeldy who tried the 
 caufe, faid ; — " As to the intereft, this policy may be 
 confidered as a collateral fecurity for the debt due to the 
 Every fubfequcnt plaintiff. When there is no warranty, the underwriter 
 grvtiiT evidrce runs the i'ilk of its being a good life or not. If there 
 any reprefeiua- tg a Concealment of any knowledge of the ftate of the 
 
 tion made to the ,.r- r ^ -r • i1 r ■< r 
 
 ftift, life. It is a iraud. It is a rule that every lubf^uent 
 
 underwriter gives credit to the reprefentation made to 
 the firft {h) •, and it is allowed that any fubfequcnt un- 
 derwriter may give in evidence a mifreprefentation to the 
 
 {a) It is now a praftice, in moft of the ofEces for infurance* 
 upon lives, to require that, in the propofal for every infurance, 
 it fhall be ftated, whether the perfon, whofe life is to be infured, 
 has ever been afflifled with the gout.— — {h) Vid. fup. b. i» 
 C. lOj § I. 
 
 firft.
 
 Ch. II.] Warranty of Health, 77, 
 
 firft. The broker here does not pretend to any know- 
 ledge of his own, but fpeaks from information {a). There 
 is no fraud in him.^ — The jury found a verdid for the 
 plaintiff. 
 
 (a) It ia not ftated, in the above note, from what informa- 
 tion he fpoke ; but if it had appeared that he fpoke without 
 any information on the fubjeft, this, I conceive would have been 
 a mifreprcfentation that would have avoided the C0Qtra&. Vid, 
 fup. . b. i)C. 10) § I. 
 
 u 3
 
 yn^ :• [O/Infurance Upon Lives, [B.IIL 
 
 CHAP. nt. 
 
 Of the Inter e/i of the Inf tired in the Life infured, 
 NeoejTity of pro. r-y^ pj£ {mxil OX gamins;, whlch is always ready to infi- 
 
 hibiri»g iitfur- I ^.^,^? ° .-,. , L ^1 
 
 ances upon lives, nuatc itfelf iiito evcry tranfadtion, and to ailume tne 
 
 wixhuut mtcieit. form of every contraa, which depends upon uncertain 
 events, long fincc availed itfelf of infurance upon lives, 
 as affording abundant opportunities for fpeculating upon 
 chances. Wagers came to be daily made upon the dura- 
 tion of men's lives, in the form of infurances, by per- 
 fons who were neither connefted with the parties, nor 
 in any manner interefled in the duration of their lives •, 
 nor did the infurers much concern themfelves to know 
 upon what intereft, or for what reafon, fuch infurances 
 were made. Such pra£l:ices were big with mifchiefs of 
 various defcriptlons ; nor is it probable that even the 
 lives, thus prefumptuoufly infured, were always free from 
 danger. The evil, however, at length became apparent 
 to the legiflature : But it being admitted, that infurances 
 upon lives, under proper reflri£lions, might, in many 
 inftances, be highly beneficial to the public, it was deter- 
 mined, that fuch infurances ought not to be aboliflied, 
 but only regulated. 
 By 14 G. Ill-, Therefore, by flat. 14 G. III. c. 48, § i.> it is en' 
 furtr!ct^m!)de"on aflcd, '■ That no infurance fhall be made by any perfon 
 any life, or other < ^^ perfons, bodics politic or corporate, on the life or 
 
 event, wherein "^ ^ t ' j 
 
 the infured fliail i Uves of any pcrfou or perfons, or on any other event or 
 (haU be void? ' * events avhatfoever {a), wherein the perfon or perfons, for 
 
 * whofe 
 
 (a) The title of this ftatute is, * An aft for regulating 
 
 * infurances upon lives, and for prohibiting all fuch infurancef, 
 
 ' except in cafes wheie thg perfons infuring fhall have an in- 
 
 * terefl
 
 Ch. HI.] biter eft of the Infure'd. ff^ 
 
 whofeufeor benefit, or on whofe account, fuch po- ' 
 iicy or policies (hall be made, Jljall have no intcrejf, cr 
 by ivay ofgami/ig or ivagerltig : And that every ihfurancfi 
 made contrary to the true intent and meaning of this 
 act, fhall be null and void to all intents and purpof^s 
 whatfoever.' 
 And (by § 2), it is further enafted, ' That it (hall And the name 
 
 1 1 r 1 1 1- 1- . ot the pcrfonm- 
 
 not be lawiul to make any policy or policies on the tcrerted in iiie 
 life or lives of any perfon or perfons or other event or ^^^^^^1)^ iaiht pr- 
 events j without inferting in fuch policy or policies, ^^Y- 
 the name or names of the perfon or perfons interefted 
 therein, or for what ufe, benefit, or on whofe account, 
 fuch policy is fo made or underwrote.' 
 
 And (by § :?,) it is further enacted, < That in all And the iniured 
 
 cafes, where the inlured hath an interelt in fuch life more than the 
 
 or lives J event or events, no greater fum fliall be re- ""f"^"' «'' i"''^< 
 
 , -If 1 • /• ■ r , of his imereil. 
 
 covered, or received trom the mlurer or infurers, than 
 
 the amoufit or value of the intereft of the infured in 
 
 fuch life or lives, or other event or events. 
 
 The fourth feftion contains a provifo that this a(Sl This aft not ro 
 (liall not extend to infurances hon^ fide made on (hips or ^nfurlnMs"^"" 
 goods. 
 
 Very few queftions have ari fen upon the intereft of Acreditorhasan 
 the infured, in the life infured. — A bond fde creditor has Jl^ ^,'^. liyo/h.: 
 undoubtedly an intereft in the life of his debtor, at leaft ilebto: 
 where he has only the perfonal fecurity of the debtor ; 
 and it has been holdea by a great authority, that this in- 
 tereft is infurable within the ftatute. 
 
 * tereft in the life or death of the perfons inrureJ.' — Frorri tlas 
 title it would feem, that the frainers of this bill oritjinally intended 
 to confine the operation of it to infurances upon lives only. But 
 the words, ' or any other event or events •whalfoeier, introduced 
 not only into the cnafting parts, but alfo into the prcaniole, 
 plainly fhew that the legiflature meant, that the regulations of 
 this aft fhould extend to every fpecies of infurancje, except ma- 
 rine infurances ; to which, by the provifo in the 4th feflton, it 
 is declared that it fliall not extend, — Acco^-dingly, in tlic cafL ut 
 Roebuck V. Hammerion, Coivp. 737, the court held that a policy 
 upon the feK of the chevaUcr D'Eon wa> a wagering j)olic\ , and 
 void by this aft. 
 
 U 4 Thuj- ;
 
 77« 
 
 0] hfurance up6n Lives* [B. Ill, 
 
 at y. p. B. R. 
 
 Hil. 1795- 
 fari 430. 
 
 Whether this 
 ought not to be 
 confined to the 
 cafe Wheie, by 
 the death of tht 
 debtor, the cr«- 
 riitor muft lufc 
 h;5 deb:. 
 
 THus :— An infurancc was made on the life of Lord 
 Nrwiavtrtt from the ift of December 17^2, to the ift of 
 December 1793. — In an a£lion on the policy, the only quef- 
 tion was, as to the plaintiff's intereft in the life infured, 
 which, it was contended, was not fufficient to take this 
 cafe out of the above ftatute. It appeared in evidence, 
 that Lord Newheeven was indebted to the plaintiiF and a 
 Mr. Miuhelly in a large fum of money j part of which debt 
 had been afligned by them to another pcrfon j the remain- 
 der being more than the amount of the fum infured, was, 
 upon a fettlement of accounts between the plaintfF and 
 Miuhelly agreed by them to remain to the account of 
 Mitchell only. — Lord Kenyotiy who tried the caufe, was of 
 opinion, that this debt was a fufficient intereft. He faid 
 It was lingular that this queftion had never been diredlly 
 decided before ; that a creditor had certainly an intereft 
 in the life of his debtor, becaufe the means by which he 
 was to be fatisfied might materially depend upon it j and 
 that, at all events, the death muft, in all cafes, in fome 
 degree, leflen the fecurity. — ^The jury found a verdidl for 
 the plaintiiF. 
 
 From the above note of this cafe, though it feems to 
 be a defective one, it may reafonably be fuppofed that 
 the plaintiff had only Lord Neivhaveii's perfonal fecu- 
 rity for the debt, and that with him died all hopes of re- 
 payment from his eftate. Upon this ground I think there 
 could be no doubt but that the creditor had an infurable 
 intereft in Lord Neiuhaven's life, to the amount of the debt. 
 But Lord Kenyon is ftated to have faid, that, « j^t all 
 ** events, the death mujly in all cafesy in fome degree, lejfen 
 «< the fecurity.*' — As an abftraft propofition,this is, in ge- 
 neral, true. But it cannot be inferred from this, that 
 his lordftiip meant to lay it down as law, that every 
 creditor, however his debt may be fecured, has an in- 
 furable intereft in the life of his debtor, to the amount of 
 the debt. Lord Ma7isjieldy in the cafe of Stackpoot v. 
 Simon (fl), fays that a policy may be confidered as a col- 
 
 (a) Sup. 773. 
 
 htcral
 
 Ch. III.] IntereJ of the Infured, 
 
 lateral fecuilty for the debt due to the infured. — And 
 yet it would feem that, even where the creditor has only 
 the perfonal fecurity of the debtor to rely upon for re- 
 payment, the infurer, before he pays the fiim infured, 
 might, perhaps, have a right to call upon the infured, to 
 {hew, that nothing could be recovered from the cilate of 
 the deceafed debtor. Where the debt is amply and 
 fatisfaftorily fccured by mortgage or otherwifc, the cre- 
 ditor can have but the fliadow of an intereft in the life 
 of the debtor. But, by the third fedion of the above 
 ad, it Is declared, that « No greater fum fliall he recovered 
 *from the infurer than the amount or "value of the intereji 
 * of the infured in the life infured.^ — Now, what can be 
 the amount or value of the intereft of the creditor, In the 
 cafe put ? — Surely nothing that a jury could eftimate. 
 
 Since the former impreflion of this work a cafe has been 
 determined in the court of King's Bench, which ftrongly 
 exemplifies and confirms this doftrine. 
 
 The plaintiffs, who were coachmakers in Long Acre^ 
 on the 2gih o{ November 1803, efFe<Sled an infurance with 
 the Pelican life infurance company, on the life of the late 
 Right Honourable William Pitt fcr 500 1, for feven years 
 at an annual premium of 15 1. 1 5 s. — In an aftion on the 
 policy, the plaintiffs averred that, « at the time oj mnling 
 ** the infurance^ and from thence until the death of Air. Pitt, 
 ** they were interefed in his life to the amount of the fum 
 ** infured." — Upon the trial it appeared that Mr. Pitt, at 
 the time of the execution of the policy, and from thence 
 to the time of his death, was Indebted to the plaintiffs in 
 more than 500 1. and died infolvent; and that, after his 
 death, and before the commencement of the fuit, the 
 executors of Mr. Piit paid to the plaintiffs, out of the 
 money granted by parliament for the difcharge of his 
 debts, 1109 1. IT s. 6 d. in full for the debt due to them 
 from Mr. Pitt. — The court determined that the plaintiffs 
 were not entitled to recover. — They held that this infu- 
 rance, like every other to which the law gives effect, is, 
 in its nature, a contract of indemnity , as diftinguiflied 
 from a wager j that the intereft which the plaintiffs liad in 
 the life of Mr. Pitt was that of creditors, in a cafe 
 It wlicrc 
 
 77T 
 
 Godfall it oth«? 
 V. Baldtro Sc 
 others, 9 Eafi 
 
 If afierthedeatk 
 ofa debtor whof* 
 life is infure*! by 
 a creditor, a:^ 
 brfare any ac- 
 tion brought an 
 the policy, rbe 
 debt be paid, no 
 a<5lion Tf ill lie*
 
 77^ Of Infurance upon Lwes* [B.IIL 
 
 where the probability of payment depended on the con- 
 tinuance of his life, and the indemnity fought by the in- 
 furance was againfl the lofs that might refult from his 
 death ; that the aftion was therefore founded on a lup- 
 pofed damnification of the plaintiffs, occafioned by his 
 death, ajid exijling at the time of the aElion brought ; and 
 therefore if, before the adtion brought, the damages occa- 
 fioned by his death were prevented by payment of his 
 debt, the ground of the a£lion was taken away. 
 The holder of a No creditor has an infurable intereft in the life of his 
 wun at play has debtor, unlcfs the debt be incurred upon a good and legal 
 imlrdt '' hl'^thc confideration \ and, therefore, the holder of a note given 
 life of the for money won at play, has not an infurable intereft in 
 
 the life of the maker of the note. 
 
 DwytT V. I-iie, As where a policy was effe61ed on the life of yames 
 
 K^x^tpark ^^'If'^h from the firft of June 1784 to the firft of June 
 
 43*' I7^^5' — By a memorandum at the foot of the policy 
 
 it was declared, that it was intended to cover the fum 
 
 ' of 5,oool. due from Rufdl to the plaintiff, for which he 
 
 had given his note, payable in one year from the 14th of 
 
 Ma'^ 1 7 84. — ^Two objections were made on the part of the 
 
 defendant; ift. That part of the confideration for the 
 
 note, was money won at play ; 2dly, That RuJfeUi at the 
 
 time he gave the note, was an infant.— Mr, Juftice Bul/eKf 
 
 who tried the caufe, nonfuited the plaintiff, upon the 
 
 ground that part of the confideration for the note, being 
 
 for a gaming tranfa£l:ion, there was a want of intereft 
 
 The mf;»ncy of in the plaintiff. But as to the obje6tion of the infancy 
 
 n« he o^hjcS of Rnjfdly he faid the intereft was contingent ; for 
 
 by an infurer. Rujfell might or might not have avoided the note ; and 
 
 he doubted much whether, till fo avoided, the note muft 
 
 not be taken, as againft a third perfon, to be the note 
 
 of a perfon of full age \ and the maker of the note only 
 
 could take the objection. 
 
 TiJfv.rU V. y?«- A truftec may infure for the benefit of the cefiuy que 
 
 i^'y''"y ' trujf. — As v.here an infurance was made on the life of 
 
 ' one Hoi Jen, from the 17 th of Au^ufl 1700, to the 17 th 
 
 A naltee may ' , , • , yr r ^ i ■ /-/r 
 
 iniue for the of Aiiguft 1 79 1, and duruig the hie of the plamtitf. 
 b.net^t of the j/j^.,^; \^^^ granted an annuity to the plaintiff's late 
 
 tejiuy que truji. o J i 
 
 brother
 
 Ch.UL] Interejiofthelnfured, ^^^ 
 
 brother, which annuity he had bequeathed to perfons not 
 parties to this infurance, having made the plaintiff ex- 
 ecutor of his will, and direded him to make infurance. 
 — In an aftion on this policy, brought by the executor, 
 it was objected that, as the annuity was not devifed to him 
 by the grantee, he had no infurable intereft in the life of 
 Holden the grantor. — But Lord Kenyon thought this a fuf- 
 f.cicnt intereft in the executor to fupport the a^ion.-
 
 fJa 
 
 ty Infurance upon Lives. f C III* 
 
 CHAP. IV. 
 
 Of the Rijks in Infurances upon Lives* 
 
 Ator$.up3n this 
 cuntradt, mutt 
 altraysbe total. 
 
 The ufual cx- 
 eeptiaus. 
 
 To make thein- 
 lurer liable, not 
 merely the caufe 
 of the death, but 
 the denth itfelf 
 muft appear to 
 have happened 
 •ivithin the time 
 limited. 
 
 A S, by the terms of this contradl, the entire fum in* 
 lured is to be paid upon the happening of one Gngic 
 event, which cannot partially happen, and by the hap- 
 pening of which, the infured muft fuffer all the injury 
 againft which he meant to be protefted by the infurance, 
 the lofs muft always be total, and never can be partial. 
 
 The different infurance companies annex to the contra£l; 
 certain conditions or exceptions, 
 
 The Ro-jal Exchange AJJitrance declares every infurance 
 made by a perfon on his own life to be void, if the per- 
 fon, whofe life is infured, fhall depart the limits of Eu' 
 rope, (hall die upon the feas, or enter into any military or 
 naval fervice whatfoever, without the previous confent of 
 the company ; or fhall die by fuicide, duelling, or the 
 hand of juftice. 
 
 Where the infurance is made by a perfon, on the life of 
 amthery death " byfuicidey duellingi or the hand of jufice^* 
 is not excepted. 
 
 The Wefminjler Society adopts the fame exceptions. 
 The Equitable Infuranccy and the Pelican Infurance^ adopt 
 the fame exceptions, only^omitting the word duellings even 
 where the party infures his own life. 
 
 We have already ittn that, in the cafe of marine infu- 
 rances, not only the caufe of the lofs, but the lofs itfelf, 
 muft appear to have happened during the continuance of 
 the rifk {a). The fame principle applies to infurances 
 upon lives. And therefore, if a man's life be infured fof 
 a year, and fome fliort time before the expiration of the 
 
 (a) R. Lochyer v. Offley^ i T, R. 25*, fup. 263, 533.
 
 Ch.IV.] TheRiJJ^, .J, 
 
 term, he receive a mortal wound, of which he dies after 
 the year, the infurer would not be liable {a) . 
 
 But where it is uncertain whether the death happened This is aiwayj « 
 within the time limited, this is a queftion of fad tliat l*^^"'*"* ^^ *^'*- 
 muft be left to the decifion of a jury. 
 
 Thus : An infurance was made on the life of L. Mac- FotrnJ*-- v. 
 leane Efq. from the 3cth oi January 1772 to the 30th of H^fvac. fyj* 
 January 1 778. In an action on the policy it appeared, 
 that, about the 28th of November 1777, he failed from 
 the Cape of Good Hope, in the Sivallciv floop of war ; 
 which (hip, not being afterwards heard of, was fuppofed 
 to have been loft in a ftorm off the Wejierr. Ifands. — The 
 queftion was, whether Macleane died before the 30th of 
 January 1 778. To eftablifh the affirmative of that quef- 
 tion, the plaintiff called witneffes to prove the (hip's de- 
 parture from the Cape with Macleane ; and feveral cap- 
 tains fwore that they failed the fame day ; that the Swalloiu 
 mufl have been as forward in her courfe as they were on 
 the 13th or 14th of January^ the period of a nioft violent 
 ftorm, in which fhe probably was loft j and that the Swal- 
 low was much fmaller than their veffels, which, with dif- 
 ficulty, weathered the ftorm. — Lord Manfield, who tried 
 the caufe, left it to the jury to fay, whether, under all 
 the circumftances, they thought the evidence fufficient 
 to convince them that Macleane died before the time li- 
 mited in the policy ; adding, that if they thought it fo 
 doubtful as not to be able to form an opinion, the de- 
 fendant ought to have their verdi6l. — They found for the 
 plaintiff. 
 
 A queftion which has often puzzled lawyers, namely; sir noicrt /f.w- 
 whether a period of time, to commence from the dav of «"/'»«•'''•. i-^""/*- 
 the date, was inclufive or exclufive of that day, occurred 480. 
 in an aflion upon a policy upon the life of Sir Robert ,. T T , 
 
 * * « * \\ n policy uc Id 
 
 Howard, for one year, from the day of the date thereof, •»'*'; "^^'^ /"••• 
 
 1-1 t 11 r CI f y ry the day of tk: 
 
 which was the 3d day ot September 1097. Sir Robert t/uft, I'hc djy of 
 died on the 3d of Septemb.r 1698, at one o'clock in the 
 
 (lie (l;itc it 
 eluded. 
 
 (a) Per IVillei, J. in delivering the opiiii«n of the court ia 
 JjQckyer v, OJiey, i T. R. 254. 
 
 inornmg.
 
 ^8j^ Of Infurance upon Lives, [B. TIL 
 
 morning.— Lord C. J. Holt held that, from the day of the 
 date excludes the day ; but from the date includes it ; and 
 therefore, thq^ day of the date being excluded in this cafe, 
 the infurer was held liable {a) , 
 
 Resfons why fo ^ ^^^^ "^^ S°"^ through all that feemed to be ma- 
 few litigated tcrial upon the fubjedl: of infurances upon lives ; from 
 arifcn in iniu- which it appears that many of the principles which go- 
 j?^^** "P°" vern marine infurances are alfo applicable to this con- 
 tra£l:. Confidering the great multiplicity of infurances 
 which have of late years been made upon lives, the num- 
 ber of litigated cafes that have arifen upon them is ex- 
 tremely fmall. One principal reafon is, that the happen- 
 ing of the event infured againfl is always a fa£l of eafy 
 proof, which can fcarcely ever afford any fubje6l of dif- 
 pute: Another is the great difficulty of pra^lifmg any 
 fraud in fuch infurances : But to no caufe is this fortu- 
 jiate circumftance more to be afcribed than to the honour, 
 
 (a) See the cafe of Pugh v, the Duke of Leeds, Comp. "^14, 
 m which, after great deliberation, it was held that the words 
 yrom the date, and from the day 0/ the date, mean the fame thing j 
 that they are taken to be either inclufive, or exclufive, accord- 
 ing to the context, and fubjeft matter ; and that either mean- 
 ing (hall be adopted which fhall mod effeftually fupport, not 
 defeat, the intention of the parties. — This may be a very good 
 rule, in the cafes to which it applies : But it would have been 
 of no ufe in the decifion of the cafe above cited ; becaufe the 
 intention of the parties, in that cafe, could only be collected 
 from the policy ; and whether they meant to include, or ex- 
 clude, the day of the date, depended on the grammatical con- 
 ftruflion of the wotds contained in it. If, therefore, fuch a cafe 
 were again to occar, it muft be decided v/hether the day of the 
 date /hould be excluded or included ; and then, perhaps. Lord 
 Holt's opinion might be thought the beft authority upon that 
 point • — Such a queftion, however, I's not again likely to arife ; 
 becaufe it is now the ufual praftice to mention the day both of 
 the commencement and end of the policy, and to deckre both 
 Xo be inclufive. 
 
 jntepty^
 
 Ch. IV.] The Rif.: ^8^ 
 
 integrity, and liberality of the feveral companies engaged 
 in this branch of infurance. 
 
 As to return of premiumj no queftion upon that fubjeft Rftum of pro. 
 has ever yet, as far as I have been able to learn, occurred in """"** 
 any cafe of infurance upon lives. If fuch a queftion fliould 
 arifc, it muft be governed by the fame principles which 
 prevail upon that fubjed in marine infurances. Thefe will 
 be found under the proper head in the firft book {a). 
 Indeed Lord Mansfeldy on two occafions, exemplijicd 
 his dodrine, upon the fubjedl of return of premium, by 
 {hewing their application to the cafe of an infurance upon 
 a life {b). 
 
 "With refpeft to the claim which the infurcd upon a Remedy afaiuft 
 
 life ihall have upon the eftate of an infurer become bank- f'^'^ . '*"^ «f * 
 
 , . , . bankinpt in- 
 
 rupt durmg the contmuancc of the life infured ; this has furer, 
 been determined to be the fame as in the cafe of marine 
 infurances {c). 
 
 ' .{a) See book i, cL 15, § 2. -{b) See his judgment ia 
 
 Bermon v. Woodhridge, fup.662, and in Tyr'ie v. FktchcrSu^. 659, 
 f,See the cafe of Cox v. Liotard, Doug. 166, n. fup. 732. 
 
 END OF THE THIRD BOOK.
 
 7H 
 
 Of Infurance againjl Ftre, [B. IV, 
 
 BOOK THE FOURTH* 
 
 Of Infurance again/i Fire, 
 
 VX/'E are now arrived at the fourth and lafl; branch of 
 our fubject, which may be moft conveniently 
 treated under the following heads 
 
 I. Of the Nature of this Contrail* 
 
 II. Of the Interejl of the Infured. 
 
 III. OftheRiJk which the Infurers engage to ruru 
 
 IV. Of the AJftgnment of the Policy, 
 V. Of the Proof of Lofs, 
 
 Infurance 
 againft fire de« 
 &ned, 
 
 The time of its 
 iitrodufliun 
 into England 
 ynkiiown. 
 
 Very little in 
 V^e in other 
 countries. 
 
 CHAP. I. 
 
 Of the Nature of this Contra^* 
 
 BY this contrail the infurer, in confideration of a cer- 
 tain premium received by him, either in a grofs fum, or 
 by annual payments, undertakes to indemnify the infured 
 againil all lofs or damage which he may fuftain in his 
 houfes or other buildings, flock, goods, and mcrchan» 
 dize, by fire, during a limited period of time. 
 
 I have not been able to afcertain the period of the intro- 
 duction of infurance againft fire into this country. But it 
 has certainly been in ufe here confiderably more than a 
 century. Of late years, notwithftanding a very heavy 
 ftamp duty impofed upon thefe infurances, they have been 
 brought into very general, I might almoft fay univerfal, 
 ufe, in this country ; particularly in London and other 
 cities and large towns," 
 
 I do not find, however, that this fpecles of infurance is 
 much in ufe in other countries. It was not till the year 
 1754 that it came into ufe at Paris, In that year, one of 
 the companies inftituted there for marine infurances, ob- 
 tained from the government permiflion to make infurances 
 againil fire, But they have never, as Poth'ur informs us, 
 
 become
 
 Ch. I.] "Nature of this CsniraB. 7S5 
 
 become general even at Paris (-7). In HoUandy though 
 infurance agaiuft fire is not altogether unknown, few 
 people feek its prote£lion ; perhaps becaufe in that coun- 
 try thev can rely fo much on their own caution, that they 
 think it unneceflary to pay for any greater fccurity. In- 
 deed I have heard it confidently niierted, by perfons well 
 acquainted with the cities both cf Louden and Amjltrdmny 
 that, after making all fair allowances, there is, upon an 
 average, more property deftroyed by fire in the former in 
 one year, than in the latter in ten. 
 
 It cannot be denied that this fpecies of infurance affords W'Kfrher in a 
 great comfort to individuals, and often prcferves whole '""""i"' t-'^''^^ °f 
 
 o ' ^ .V.J .. iiv/n. View It he more 
 
 families from poverty and ruin. And yet it has been 'luf*""' ^hatj be 
 
 much doubted, by wife and intelligent perfons, v/he- 
 
 ther, in a general and national point of view, the bene- 1""« oi.j«aioni 
 
 fits refulting from it are not more than counterbalanced '" '^' 
 
 Iby the mifchiefs it occafions. Not to mention the carc- 
 
 Icffnefs and inattention which fecurity naturally creates, 
 
 every perfon who has any concern in any of the fire- 
 
 ofHccs, or who has attended the courts of M'^cflmwjler 
 
 Halt for any length of time, mnfl ov/n that infuranee has 
 
 been the original caufe of many fires in London, with all 
 
 their train of mifchievous confequences. 
 
 On the other hand, the advocates for this fpecies of More than roun, 
 infuranee, though they admit it to have been fometimes i"benc6ti. ^"^ 
 the caufe of intentional fires, infift, that, even as a na- 
 tional concern, the benefits vaftly outweigh the mifchiefs 
 which proceed from it. And when we recolletSl the pre- 
 'cautions ufed by the difierent infurance companies, to 
 prevent the fpreading of fires, by providing a number of 
 fire engines, which are kept in conftant repair, and fit 
 for immediate ufe, not only in all parts of tlie metro- 
 polis, but in every other confiderable town in the king- 
 dom ; — by keeping in conftant pay, a number of engi- 
 neers and fire-men, expert in extinguifhing fires, and 
 porters for the removal of goods ; — by employing a num- 
 ber of thefe in patrolling the ftreets at all hours of the 
 night, in conftant readinefs to fly to the fpot from whence 
 
 (a) WA.Poilter tit. Dfs ajfurances, n, 3. 
 VOL. II. X any
 
 7S<5 Of Injur ancc a'gahift Fire. [B.IV 
 
 any alarm of fire may proceed : When we rccolleft that 
 the courage, promptitu'.le, and addrcfs of thefe people 
 often flop the progrcfs of the mod dangerous fires, and 
 , tliereby rcfcuc many valuable lives, and immenfe property 
 from dcffru6lion : — W nen tht-fe benefits, I fay, are fairly 
 confider«d, they fcem to out^Veigh all the difadvantages 
 that can be put in the oppofite fcale. 
 liie iiiruiancc A coniTderable number of companies have been efta- 
 
 blifhed in London and other parts of the kingdom for in- 
 furances againft fire. Of thefe fome are called Contri- 
 bution Societiesy in which every pcrfon infured becomes a 
 nicdiber or proprietor, partic pating in profit and lofs. 
 Such are the iHand in Hahd^ and the W'ejlminfler fire- 
 ofHces, foi" the infiirance of houfes and otnei: buildings ; 
 and the Union fire-ofhcej for infurancc of goods. The 
 other companies infure both houfes and goods, at their 
 own rifle. Of thefe the principal arc the London^ and Ro'^al 
 ^Exchange^ aflurance corporatioKS, the Sutiy the Phoenix^ 
 the Bihyiiy arid rriany other ofiiceiB recently eflablifhed for 
 this branch of infurance. 
 i^o'ic'es a^'siiift As to the dtitiis, to which this contraft is liable, the 
 Z\%m^^ris. i^^t. 44 G. III. c. 98, § I, repeals all the former JIamp 
 and \o Aytaiiy ^^ttes (a) impofcd on policies of infurance againft fire; 
 fer rent, on the and, (by § 2.) unpofes on every policy, m lieu thereof, 
 lum iniurtd. ^ j,g^, jy^y ^^ onefjiUingy and alfo the yearly fum of two 
 
 Jhillhigs and fixpcnce {b)y for every lool. and fo in propor- 
 tion for any greater or lefs fum infured, is laid on every 
 policy for infuring houfes, furniture, goods, wares, and 
 merchandize, or other property, from lofs by fire. — ^This 
 ftatute (r) ena£ts that the provifions of the former a6l$, 
 ^ except where they are altered by this aft, Hiall extend to 
 
 the duties impofed by this aft. 
 
 {a) Vid. the fchedule A. annexed to this ad. (3) Via. 
 
 fehedule B.— *— (0 S ^'
 
 feft; ti:] 
 
 ti"J Ifrte'r^}^. ^J"^ 
 
 CHAP. IL 
 
 0/ the Intere/i of thi Infur^d. 
 
 DO not find thdt it has ever been a praclice to make Whether m ir,- 
 infxirances agiimlt nre, avowcaly without intcrelt. ine ^^^ without m- 
 probable confcquences of f-ich hiiuranccs would, I con- ttrcTt be void .it 
 ceive, afford a poweriul argument againlt the iegaiity ot 
 any inlurance without intercity at common law. If a 
 wager pohcy be good-, at eornmoh la\!'', I do not know 
 that it mull neceflarily affume tlie form of any particular 
 l^ecles ol inl'urance: But if the tiuellion-. whether a wager 
 policy be a legal contract at common law, were to arile in 
 the cafe of an infurance agalufl fire, it is impofhbie Id fup- 
 pofe that the judges could ever be prevailed upon to tanc- 
 tion by their authority a contract of fo niifchievous a ten- 
 dency.-— Lord Chancellor King, in the cafe of Lynch v. 
 Duhelly which we fhall prefently have occafidri to cite 
 at large, {a) fays ; " ^e party infuring mujl have a pro- 
 *^ pcrh at the time of the lofsy or he can fujlain no Icfsy 
 «* and conjequcnily can be entitled to no fatisfu^Jion.'* 
 And Lord Hardivicke-y in the cafe of the Sad/ers Company 
 V. Badcock {b), lays it down as law, " that the Injured mujl 
 " have an interejl or property at the time of infuringy and at 
 « the time the lofs happens" So that, according to thcfe ' 
 two great authorities, it is clear that an infurance againll ^ 
 
 fire, without interelt, would have been void at common 
 law. But if any doubt remained upon that queltlon. It. 
 ha« been removed by 'the flat. 14 G.\il. "c 48. That since chcflil 
 a^t, though it is entitled, an act for regulating ?>//«r.7mYJ l^fi;^\W^"^'^' 
 upon liviSy yet, by the enu6luig claufe, (feet 1.) (c), it tk-uriy void. 
 prohibits all ipfuranees without interelt, " upon any event 
 
 {a) Inf Sc:. it) Inf. Pc4. Mc) Sv.p. 774. 
 
 \ % **^r
 
 ^SS Infurance agalnjl Fire. [B. IV, 
 
 The infured can <s or events ivhatfocver' The 4th fedioHj indeed, provided 
 
 only recover, in , ... 1 • 1 n 
 
 cafe of lofs, to that it mall not extend to marine inlurances, which fliews 
 JnuS!"^ ^'^ '''' that it was the intention of the legiflature that it fnouM 
 extend, according to the above words in the ena£ting 
 claufe, to every other fpecies of infurance, and therefore 
 there can be no doubt of its extending to infuranccs 
 againft fire ; and confequently the infured, whatever may 
 be the amount of his infurance, can only recover to the 
 extent of his intereil. 
 The r.ecfffity ©f There is reafon to believe that infurances againfl fire 
 preventing iiiiu- ^^^ often made to a large amount upon property of very 
 £re, without fmall value. This can only ae done with a fraudulent 
 iQiercii. view, and a premeditated fire muft be the necelTary con- 
 
 fequence. — Where a lofs has happened, and there is no 
 colour to fufpecl: any unfair pra6tice on the part of the 
 infured, I think the offices ought not to content ihemfelves 
 with being merely juft : They ought to be generous and 
 liberal towards a fair fuilerer. But where there is any 
 reafonable ground to fufpecl fraud, it is to be hoped that 
 the managers of no office will, from any falfe notion of 
 generofity, or any wiih to acquire popular favour, fo far 
 forget what they owe to the public, as well as to their 
 own characters, as to fufPer the claim to be fatisficd, with- 
 out the moil fcrupulous invefi;iga,tion. 
 If tliere be fevc. It often happens that no one office wiH infure to the 
 rai infariinces on r^i| ;>i-nount required by a' particular perfon, who has a 
 
 the farae pro- . . 
 
 petty, each of- large property to infure 5 and in fuch cafe, tlie party 
 BotkeTf^his!'^ c^" °"^y cover his v/hole intcreft, by fcveral infurances 
 made at different offices. But then it is proper that each 
 offiCe Ihould have notice of every infurance thus made 
 on the fame effe£ls , for otherwife great frauds might be 
 practifed by nifuring the fame property to its full value, 
 at feveral different offices at the fame time. To guai-d 
 againft fuch frauds, there is, in the printed propofals of 
 each of the cffxces, an article which declares that, per^ 
 fons infuring mud give notice of any other infurance 
 made elfewhere upon the fame houfes or goods, that the 
 fame may be allowed by indorfenient on the policy, in 
 order that each office may bear its rateable proportion of 
 
 4 »"y
 
 T- 
 
 Ch. II.] The Inter ejl. 7S9 
 
 »ny lofs that may happen [a). But unlefs fuch notice be 
 given of each infurance to the ofTice where another in- 
 fiirance is made on the fame effefts, the infurance made 
 without fuch notice will be void. 
 
 It is not necefTary, however, in order to conflitute an But a perfon 
 infurable intereft, that the infured fliall, in every inilance, ^*^ havm^'the 
 have the abfolute and unqualified property of the efFc£ts abfoiute proper- 
 infured. A truftee, a mortgagee, a reverfioner, a factor 
 or agent, with the cuftody of goods to be fold upon com- 
 miflion, may infure ; but with this caution, that the na- 
 ture of the property be diftin^lly fpecified (^) ; and that 
 all the infurances upon the fame property, taken together, 
 fhall not exceed the full value thereof. 
 
 (a) Vid. fup. 146. (3) See the 6th articls of the propo- 
 
 fals of the Sun fire-office, and 7th article of the propofaU of the 
 fhi^nis fu'c-offiee. 
 
 * 3
 
 ^a hifiti^OfUf^q^ C^m^nftt -P'K*. £§•. 4"^?. 
 
 ^. I-i A p. m, 
 
 ^ />&^?. i?^, 'whk-h lnfuv£ri a.gainjl Fire engage to, 
 1-un. 
 
 If he ri-flj ufunUy T>Y- the tcrms of the ufual ppircy the infurcTS, Vs^di.qr-i 
 i-furcdagamit, I> ^^^^ ^^ ^^^^^ make gooci; and fatis.fy to, the. infuved^ 
 
 aU lofs or damage, which may h:tpper> by fire,^ during \h^ 
 
 t^^rn fpecified in the policy, to the houfes or other burld- 
 
 ings, furniture, or merchandize infured. 
 
 Tiic prcvlfo, ex- ]3y an article of the printed propofals, which, as 'W'^ 
 
 cafioned ij.y ex- fhall prcfcntly lee {n),zxtno\v to be conlidered as rnak.ii,ig 
 
 ci'cmlr'^ 3. P^''* P^^ ^^^ cotitraa, it is provided that, y No. Ipfs^ or 
 
 »' damage by fire, happening by any inyafion^ foreign 
 
 * enemy, or any miHtary or ufurped power whatfocver, 
 
 «, will be made good by this company.' 
 
 l)r:>!hi>-'-ti;r y. j^i the following cafe, a queflion arofe upo,n ^he con-. 
 
 zln/f.iel'. ftrudlion of the words ufurped power, in this provifo.— . 
 
 It was an action of coyenant on a policy of the London. 
 
 The words 
 
 ufurped p'jivcT, JJTuyance company againft Gre, upon a malting office at 
 TOean^n'rHva-' ^orivick. The defendants, am^ongft other pleas, pleaded 
 
 Ijon fr:'in abroad 
 or an intei 
 
 that the maltiiiig office was burned by a?! ufurped poiver \ 
 
 rebellion; not and ilTue being joined on this plea, the caufe was tried 
 
 coinmcn mob. ^ at Norwich affizes, and a verdidt found for the plaintifFs, 
 
 - ^ (lamages 469I. fubjcci; to the opinion o,f the court upon 
 
 a cafe, which ftated, ' I'hat on the 27th of I^'ovanbery a 
 
 « mob arofe at Norivic/:, on account of the high price of 
 
 < provifions, and fpoiled and dellroyed a confiderable 
 * quantity of flour j that thereupon the proclamation was 
 *. read, and the mob difperfed for that time. That after- 
 
 < wards another mob arofe and burnt down (he malting; 
 
 ^ office mentioned in the policy.*' Lord C. J. IFi/mot, 
 
 Mr. juftice Cliv^, and Mr. Juflice Bqthurf}, r-gainft the 
 
 id) Vid. Oldman v. JBe'wickey Routkdge v. Burrdl, and Wood 
 V. Warflej, inf. cli. 5. 
 
 oplpion
 
 eh. III.] The Rijh. jo^j, 
 
 opinion of Mr. Juftice Gou]d>, daenriincd thai iVc. tixic 
 ^mpQrt of tlic worUs u(ui:p,cih pcy^^sr- ^n ^le proviib, >V4S^ 
 ■^^ ^lYafiGun froi[i^ ahvouH^ or- ^\\ ^^\^e.\-nu\ i;c\jeHiojn^ \^,'h??^ 
 
 aie ffieiu ^ and y,'hci^ th(^ f^f^uj^- \v(- 'tc^-.v.ii^ fe'ci-VM\\?^ W^Tt^A'pJ't^.- 
 
 -^^ \ ^^\ '^■^\ ^9kk ww^.^ twVA ftv,u\^tA>A \\\k ^vjAv^v- G|f 
 
 a cpiruTifxn ^nph. 
 
 The Xfi»w/ib/i Apir^ruc. Ganip.>,py iiiW^ ^WVeV-^h ^^'^^^^ 'riilJ^l"^ p\i 
 the provifo in it* prit;inai ionw. The Sufi, 4iv<i-uiRue, )'*^ ii" ;^^tns«i 
 
 ; ^ ...,>-£. . . . 1 . r. — ^ H'-U'^V^ UiH 
 
 iu the year l7a7^ aildeil the worcis c'wllt coi^umlipri^ («) ^ V,(i"8^. 
 ami upon the coultru6\ion of thefe worch anather (^ueiUpq 
 arofe in confequence of the tumuUs \yith which the pic- 
 tropoliij of the Britijh empire was dit^^racc^ in the fuiii,;nev: 
 of the year 1780. Tiiete tunmits were cxeitk'^l bv cer- 
 tain perlons who, under the uiafk of religion, pretended 
 to feek tlu- repeal of a law th.en lately palled, granting to, 
 Roman c.itholics, cen.'in indulgenees and fonie mitigation 
 of the hardiliips vindcr which they, al that time, laboured 
 in this country 5 but their objett was nothing Icfs than 
 the entire fubverfion of the government. And to acconi^ 
 pliih this purpofe, they excited to univerfal dcvaltation, ^ 
 defperate and lawlefs rabble, made up of malefaflors and 
 fanatics, who, though a(fl:uated by different motives, are at 
 all times equally prone to milchitrf and rebellion. For- 
 tunately for this countrv, rhe militia was at that time em- 
 bodied, the rioters were reprclled, and tlie conllitutiuU 
 prefer ved. 
 
 Anion tjil others devoted to deftnn5lion bv ihli defne- ^ "■3''''' v- If^-- 
 
 ^ _ ■ ■ ; ' * J'-,'! .ir.(l ottltlS, 
 
 rate banditti, was Mr. Laug/laiv, a catholic, and a conh- nt K. y Midi. 
 derable dillilier. They fired his premifcs ; and all his lloek ^'''- ^"^^- ^''• 
 
 (a) Moft of the other 0(11093 hav«.' ii»tro<Juced tl e fame worrls ; 
 and feme have the MTords ''riot, tumult, ond tivil commotion.' It 
 IB raiher remarkable, however, that neither the Hand in Hand 
 or the Union Fire Office haw aay provilo or exception of tliis na- 
 ture in their printed piopofals. \\, were, i)erhaps, to be wilhcd, 
 that none of the offices would iiifiire againll llie inifchiefs oi.ca- 
 fioned by riot and civil commotion. Men eiinnot be too deeply 
 interefted in the prefervation uf the jiublic peace, and tjie laj- 
 pcrt of lawful authority. 
 
 X 4 (4v
 
 79^ ' Injur ance agarnjl Fire. [B. IV* 
 
 of liquors and other efFecls were there deilroyed. — Be- 
 ing infured in the Sun Fire Ojpce^ he brought his a£tioa 
 upon the pohcy, to recover a fattsia^iiou for the lol's he 
 had thuu fuftained. The office defended this action on 
 the ground that this iofs was occafioned by civil commotion . 
 ' — ^^rhe caufe was tried by Lord Mansfield , who, in hia 
 addrefs to the jury faidj — " Moft undoubtetlly every 
 man's leaning mud be to the fide of the plaintiff, in order 
 to divide the Iofs in fo great a calamity. But that incli- 
 nation muft be governed by the rules of law and juftice j 
 and the only queilion to be determined arifes fingly upon 
 the conftruftion of two words in the policy. It appears 
 that in the year 1720, the London AJfurance company put 
 into their policies all the words here ufed, except civil 
 commotion ; and any fire happening by a foreign enemy is 
 cleavly provided againft, whether they burn houfes, or fet 
 fire to a town. The words military or ufurped pozuer are 
 ambiguous-, but they have already been the fubjeft of a 
 judicial determination {a). They muft mean rebellion, 
 conduced by authority; as in the year 1745, when the 
 rebels came to Derby ; aud if they had ordered any part 
 of the town, or a fuigle houfe, to be fet on fire, that 
 would have been by authority of a rebellion. That is the 
 only diftindlion, in the cafe : — It muft be by rebellion got 
 10 fuch a head, as to be under fome authority. In the 
 year 1726, the Sun Fire Office^ in imitation of the Lon- 
 don AJfurance company, inferted the fame exception ; 
 This provided againft rebellion, determined rebellion, 
 with generals who could give orders : But the Sun Fire 
 Office did not think this fuflicient ; and therefore, in the 
 vear 1727, they introduced the words civil commotion \ 
 words as general and un technical as can poflibly be ufed. 
 They do not fay civil commotion^ fuch as amounts to high 
 ireafon. They avoid faying civil commotion amounting 
 to felony or to a mifdemeanour^ but they ufe the term " civil 
 commotion," taking the largeft and moft general fenfc 
 of the words that the language will allow : They do not 
 
 (a) Vid. Drinkwater v. Land. Jffar. fup . 790. 
 
 evert
 
 Ch. III.] The Rijtc, 
 
 even fay a riot. It may be a queftion, in point of law, 
 whether an alTembly or multitude be a riot. But the 
 fingle queilion here is, whether this has been a ci\il 
 commotion. If there be a cafe, to which thefe words 
 can be applicable, it is to a cafe of this fort. I caonot 
 fee any of the other words, to which it can be applied. 
 Ufurped power takes in rebellion, a£ling under ufurpcl 
 authority. From a foreign enemy the ofhce is fecured : 
 But what is a civil commotion ? It is fomcthing elfe. 
 The prefent was an infurre£lion of the people reCfting 
 all law, fetting the authority of the government at 
 nought ; and depriving of its protedlion whoever was 
 obnoxious to tliem. What was the objc£l: and end of 
 this violent infurre£tion ? It took place in many p?.rts of 
 the town at the fame time, and the very fame night ; 
 the mob were in Broad Jlrevt^ St.Catherine'Sy in Ccleman- 
 Jireety at Blackfriars Bridge^ and at the plaintiff's. What 
 is their object ? General dejlni^loii^ general confufwti. It 
 certainly was meant to aim at the very vitals of the cofifiiiutioti. 
 It was not a private matter, under a cry of No popery only^ 
 to deflroy all papifts. Newgate is burnt down: The Fleet 
 prifon^ the King's Bench prifon, the new Bridewell, are 
 burnt down, and all the prifoners fet at liberty. The Bank 
 attacked ; the Excife and Pay ofBces in Broad-Jlreet threat- 
 ened. The houfcs of a vafi number of pspifts burned and 
 deftroyed. Military refiftance neccffury, and an exlraordi- 
 nary Itretch was made, which was judified by neceflity. 
 Many men have been killed. Wliat is this but a civil 
 (cininotion, if any precife meaning can be affixed to thofc 
 words. It is faid that this is a civil commotion diftinil 
 -from ufurped power and rebellion. It is admitted, that 
 this kind of infurredtion may amount to high trcafon : 
 and, to be fure, it may. But the office do not mean to 
 try whether thefe rioters were guilty of high treafon or not. 
 It is not put upon that^ but on the ground of a civil 
 commotion. It is not an occaf-onal riot : That would 
 be another queftion. I do not give any opinion what 
 that might be. You will give your opinions, whether the 
 fadts of this cafe bring it within the idea of a civil com- 
 motion. I think a civil commotion is this; an infurrec- 
 
 tion 
 
 793
 
 Infwance againji Fire, 
 
 [B. IV, 
 
 ^y,t »a Lnfuranfa 
 ^on^pany who 
 p,ay a lofs, occa- 
 l^aned l?y riot, 
 may fue the 
 UunJrfd upon 
 ^he riot adt, in 
 the name et the 
 inf^rcd. 
 
 M'ofon v. Sainf- 
 
 i>urj,,E. 2zG Ml. 
 
 B. K.— MS- 
 
 ^/f, of- i^e. people, for general: purpofesy though it may not 
 2fcm|0un,t to, ^ rebellio,n^ ^rhere there is an ufurped poweu 
 If y,pu thinif i;t wa^ (uc^ an infurret^iori of if^e pe<?im^ 
 for- the purpofes ol generalj pa^fchief, ^h,9ug-h not aniount- 
 \n^ ^0, a rebelliorij but vit][iin, the exccp,lfiiOit\ of th^ 
 policy, you will fin^ fpi the defendants. If i^ot, yau, y>-'\\\ 
 ^n(i for the plairi,tiff5."-r-The jury found a yerd^fl for the 
 defendants. 
 
 But Mr. LangdaU was not without remedy. He after-. 
 wards bro.ught his aftion againft the Hundred^ upon the 
 riot a£t, i G. I. c. 5, § 6, and recovered a full fati5fa£lion 
 for the damage he had fuilaine?!. — Had the office not 
 been exempted from this lofs by the words chnl comtno- 
 iron in their propofalsj they would have had their remedy 
 pver againft the Hundred: In the following cafe, whicJ^ 
 came before the court of King's Bench in the y^ar 1782, 
 it was determined that an infurance company, having paid 
 ^ lofs occafioned by riots, may recover back fuch lofs, in 
 an adion againft the Hundredy on the above a£t, brought 
 in the name of the infured. 
 
 That was an a<Slion brought againft the Hundred on the 
 riot act, ftat. i G. I. c. 5, § 6, to recover a fatisfa6tion for 
 the damage fuftaincd by the plaintiff, by the demolition 
 of his houfe, in the riots of 1780. — Upon the trial of 
 the caufe, there was a verdi£l for the plaintiff, with 2591. 
 damages, fubje£l to the opinion of the court on a cafe, 
 which ftated, in fubftance, that the plaintiff had infured 
 his houfe in the Hand in Hand fire ofhce ; that the fire 
 office had paid the lofs, without any aftion being brought 
 againft them ; and that this a£lion was brought againft 
 the Hundred in the plaintiff's name, and with his con- 
 fent, for the benefit of the infurance office, and to re- 
 imburfe them the lofs they had paid. — ^The queftion was, 
 whether, as the plaintiff had already received a fatisfaiif ion, 
 this aftion could now be maintained againft the Hundred 
 on behalf of the infurers. — It was contended on the 
 part of the Hundred, that it was the policy of the act, 
 befides the inducement to fupprefs riots, to divide the 
 lofs, and prevent the ruin of individuals j but there 
 could be no reafon of policy or juilice to extend this, 
 
 beyond
 
 ^.^.Ve \Y^i(uyy. put them(e\v^S^ ^r;tQ ^his ^ar^cr*: T^.i:^ 
 ^ho^^>» U was t^ue ^hat a pia^, h:\yi^. ^iffcij^^t \e^^^e^^^% 
 niny purfue either, and it is no defence t^ the ci.r\c^\hav 
 he might have purfucd the other ; yetj \^'hci{ jie ha5\cco-' 
 yered by one, he (hall not afterwards fcek a (ecoud (atif- 
 faaion by the pther.— But ;hc court \ycreunanimo,ufly 9.? 
 ^pinion that the office had a right in this cafe, to rtcover 
 againit the Hundred, in the narnc 9^ ^he ^nfuv^d.^rr 
 Lord Mansfitld faid j— « Thoug}^ the pfHce paid witl^- 
 9ut a fuit, this muft >>e confidercd ^s Y.-'.^liout prejudi9c -, 
 and it is, to all intents, as if it had ncY?r been paid. Xhe 
 queflion comes to this: Can the pwn^er- <^i \i\z^ houfe, 
 having infured it, come ugainfl ^he Hun^red,^ un^kr. thi;^' 
 aa ? "Who is firft liable I If the Hun^lred be %l( ^iabje, 
 ft'.M 't makes no difference : If the infurers h,e ^ift ^iab.^e, 
 t^?n pynient by them is a fatisfadion, am^ the Hun- 
 ^y^^. is. not liable. But the contrary is evident, from ^l^e 
 ?.?^^.T? Pf the contrad of infurancc. It is an hidtmmty. 
 "We every day fe^ the infured put in tlie place pf ti^e \^-_ 
 furer. In ab'andonrnent \\ is ' fo ^ and the infurei^- \ife$^ 
 the name of the infured. It i^ an extremely clear ^afc. 
 The ad puts the Hundred in the place pf ^he 'trefpafle^s : 
 and on principles of policy, I am' fatisficd that it is tci ^c 
 confidered as if the infurers ha^l not pal^ a farthing.' 'rrn 
 lAx. Juftice Willes faid ;— « I cannot d'illinguini this^fr^i^^ 
 the cafe of an efcape. If the fherifF pays, he has hrs^ 
 remedy over againft the party. Though the Hundred 
 ^s not anfwerable criminally, yet they arc not to be coa- 
 fidered as wholly free from blame. They may have 
 been negligent, which is partly the principle of the aft." 
 Mr. Juftice AJhurJl faid •,— « At all events the plaintiff 
 is entitled to a vcrdid to the amount of the premium, 
 having had no compenfation as to that. But, on the 
 larger ground, I am of opinion that the Hundred is liable 
 |n this a£^ion for all the damage fuflaincd, by the plaintiff. 
 It is like the cafe of an abandonment, and the office is 
 not to be in a worfc fituation for having paid (he lof» 
 without a fuit."— Mr. Juftice BuUer faid ; — « Whether 
 this cafe be confidered on ftria, or on liberal, principles 
 of infurancc lavi', the p'.aintifl' mufl recover. Stridly, 
 
 no 
 
 ^$1
 
 jg6 Infurance againji Fire. [^B. IV. 
 
 no notice can be taken of any thing out of the record. 
 The contract with the office, ftridiy taken, is a wager ; 
 liberally, it is an indemnity : But?, on the words, it is 
 only a wager, of which third perfons fhall not avail them- 
 felves. It has been rightly admitted that the Hundred 
 is put in the place of the trefpaiTers. How could the 
 trefpaflers have availed ^-h .-felves of this fatisfa£lion 
 made by the Office ? Coulci iney have pleaded it by way 
 oi accord and fatisfaclion ? It was not paid as a fatisfaflion 
 for the trefpafs, and the facts of the cafe would not 
 hare fupported fuch a plea. The beft way is to confider 
 this cafe as a contract of indemnity, in which the prin- 
 ciple is, that the infurer and the infured are as one per- 
 fon j and in that light, the paying before or after, can 
 make no difference." 
 How fir the \n- In general, the rifk commences from the figning of 
 fured IS prottc- j^ policy, uulcfs fomc Other time be fpecified ; and it 
 
 fed hy the po '.cy ir J ■> * ' 
 
 (iurins the 15 will of courfc end with the term for which it is made, 
 
 days allowed tor _ . - r> c • 1 • 1 1 
 
 paying tie re- Infuranccs againit fire are, m general, either annual, 
 iiewedpieniium. ^j. £qj. ^ iqx^ of fevcn ycars at an annual premium ; and 
 the offices, as an indulgence to the infured, generally 
 allow 1 5 days from the expiration of each year for the pay- 
 ment of the premium for the next fucceeding year. But 
 the infured has always been confidered as being under 
 the protection of the policy till the expiration of the 
 35 days, provided tlic premium were paid within that 
 time. 
 How far in the ^" ^^^ printed propofals of the Sun Fire Office^ and 
 
 cjie of a half- of feme Others, there is this article : — ' On befpeaking 
 jiaiypoicy. « policies all perfons are to make a depofit for the po- 
 
 * licy, ftamp duty, and mark 5 and fhall pay the pre-- ♦ 
 ' niium to the next quarter day, and from thence for one 
 
 » year more at leaft ; and ffiall, as long as the managers 
 
 * agree to accept the fame, make all future payments 
 
 < annually at the faid office, within 15 days after the 
 
 * day limited by their refpeci^ive policies, upon forfeiture 
 
 < of the benefit thereof ; and no infurance is to take place 
 « till the premium be adually paid by the infured, his, her, 
 « or their agent or agents.' — In the following cafe it became 
 a queflion how far the infured, upon a half-yearly policy, 
 
 was
 
 Ch. III.] ' The R-iJk. 
 
 97 
 
 Avas proteaed during the 15 days, before the new pre- 
 mium was actually paid and accepted. 
 
 It was an adlion agp.inll the Liverpool fire office, which T<>^'a,n and 
 
 had adopted the above article. The phiintiiT declared /cr/Tand c?h'c«: 
 
 on a policy dated the icth of December J 788, in which, ^ T- K. 695. 
 
 (after reciting that the plaintiiFs had paid 7I. ics. to \ii! 
 
 the office, .Mid had agreed to pay 7L los. on the loth The ir.rurcd i„a 
 
 of June 1780, and the Hke fum every fix months during ^''''S^' "S'*" '" 
 
 the contniuarice ot the pohcy), it was declared ihat, han-ycHrij'.with- 
 
 from the date of the policy, fo long as the plaint-iTs cxpiJaSonu 
 
 fhould pay the fum of 7I. los, at the times and places f""""!" iiaifycar. 
 
 aforefaid, and the trultees or ading members of the wich°in ^7^l'l* 
 
 fociecy (hould agree to accept the fame, the funds of fu^'^' ""^ ''.'^"'* 
 
 •','-' ^ ' Ins renewed pic- 
 
 the fociety {hould be liable to pay the plaintiff fuch mium ispaid.- 
 damage and lofs as they fnould fuffer by fire, not exceed- BoU:a'bic,7hoL''gh 
 ing 6000I. according to the exadl tenor of their printed ^^^ P'"'"'"'"'^ i-«= 
 
 ri T-t.i- r r ■ r tendered brfurc 
 
 propolals. — Ine declaration, after fettmg forth the above the end of the 15 
 article of the printed propof.ils, ftated that tlic focietv ^'''" 
 had, frotn the year 1777, been in the pradice of in- 
 furing for periods lefs than a year, by policies fimilar to 
 the prefent, referring, in like manner, to the fame printed 
 propofais ; and that they had received the premiums 
 within the 15 days after the times limited in fuch poli- 
 cies, and the policies thereupon remained in force. It 
 then dated a lofs, to the amount of 6000I. on the nth 
 of Deceviber 1789, before the expiration of the 15 days, 
 and before any refufal to accept the renewed premium, 
 or to continue the poHcy. There was a fecond count, 
 ftating that before the expiration of the i^ days, the plain- 
 tiffs tendered at the office 7I. 1 os. to the managers of the 
 fociety, they not having then difagreed or refufed to accept 
 the fame. — The defendants, amongfl: other pleas to the 
 firit count, pleaded that thj phuntiffs did not pay the 
 fum of 7I. I OS. on or before the loth of December^ as 
 they ought to have done, in order to have continued 
 the policy to the time when the lofs happened. To the 
 fecond count they pleaded, that the fum of 7I. los. 
 was not tendered to the managers, until after the loth 
 of December. — Upon a demurrer to thefe picas, tlie court 
 determined that, under the above circumftancss, the plain- 
 tiffs
 
 |§» ' ihfurante agamfi ¥i'/i; [8. 5V; 
 
 Hffs were not entitled to recoveri and gave judgment 
 for the defendants. — Lord Kenyon faid;— "It is admit- 
 ted that the infurance did not extend to half a year and 
 15 days •, and that completely puts an end to the whole 
 cafe. The plaintiffs ftipUlated to jiny 7I. los. half 
 yearly, on the loth of Jtitte, and the loth of December \ 
 and tliat they v ould, as lo?ig as the 77U!)iagci's agreed to 
 accept the fatncy make their payments vdthin 15 days 
 after the day limited ; but vo infurance is to take place 
 until the premiura be actually paid. The continuation of the 
 termi therefore, depends on two circumftanc es which 
 mull both concur ; namely, that the infured fliould 
 pay tlie 7I. los. and that the infu'rer^ fliOuld agree to ac- 
 cept that fum. Barely ftating thefe fails is fufficient to 
 fhew that the plaintiffs are not entitled to recover,— 
 'Jliis judgment was afterwards affirnied in the Exchenue'r 
 Chamber. 
 L'uifcvcr.ii.rtic. s Soon aftei: the above declfion, the Rcml Exchame, thb 
 ijibic (iiJiing the Fha:nixyZ.Vi^ lomc other mfurance companies, gave notice 
 ■efciV.Z'i"'''^"'""' ^^'^^ ^^*^y ^^^ "°^ mean to take advantage of this judg- 
 ment ; but would hold themfelves liable for any lofs dur- 
 ing the 1 5 days that arc allowed for the payment of the 
 renewed premium upon annual policies, and others for a 
 longer period : But that every policy for a fhorter period 
 than a year, would ceafe at fix o'clock in the evening of 
 the day mentioned therein. 
 If the iiiriTat^e It it be agreed by the policy that the infurance fhall 
 company.havrng <>Qntineie as lone as the infured fhall continue to nay the 
 ftrmine the iii- ftipul^tcd premium, and the company Jhall agree to accept 
 
 ■furjiicc ai Oie .,,•,., r i t i 
 
 <inci ot the year, ?/ } and, by the prmted propolals, the company agree that 
 givi- trie inijied p^j-f^rig infurcd for a year or more fhould be confrdered 
 
 noucf ot their 111- r J 
 
 .xcmjoii to Hjfu, aS infured for 15 days beyond the txpiration of their policies ; 
 
 Ibk fl!- a lofs and the company, before the expiration of the year, give 
 happenng with, ^^i^ infured notice to pay an increafed premium, other- 
 
 }n t'.ie j;; days ^ \ i • r i i • 
 
 after tie <cndttf Wife rhey would not continue the infui'ance, and the m- 
 * ' ''*"'* fured refufe this •, the company is not litible for any lofs 
 
 upon this policy happening within the 15 days after the 
 expiration of the year, though the infured, after the lofs 
 happened, and before the expiration of the 15 days, 
 tender the full premium which had been demanded. 
 
 For
 
 Ch. Iri.j Th€ RiJ^. -^^^ 
 
 For the effed of the whole contrail being only to give 
 the infured an option to continue the infurance, or not, 
 during the 15 days after the expiration of the year, by 
 paying the premium for the year enfuing, notwithftand- 
 ing any intervening lofs, provided the company have 
 hot, before the end of the year, determined the option 
 by giving notice that they would not renew the cou- 
 traa (a). 
 
 {*) R. Salwin and others v, Jammn^ another, 6 Eaft 571.
 
 8 CO injur ance againji Fir^. [B. IV. 
 
 CHAP. IV. 
 
 Of the AJpgnnmit of the Policy^ 
 
 Annffisnmeniof A .POLICY of mfurn'.Tce, being a r,Y^ m ^/5/;«, is, in 
 
 the policy to one ^^ ftri£inefs, not aflijrnable at law. But, like every 
 
 lefl inrhctficJ'.s othcT cliolc lu a6lion, it may be affigned in equity; and 
 
 lufusea, ib void, ^^^j^^g ^£ j^^^ jji^^^ ^.}.g notice of fuch afiignment •, fo 
 
 that the ancient rule of the common law, being often 
 found injurious to the interefls of a commercial country, 
 is now, in a manner, difregarded, or at lead evaded. 
 But the mere aflignment of the policy, would be of little 
 avail, without an afTignraent of the fubjecl matter of the 
 infurance alfo. The aiTignee could derive no benefit 
 from the policy, unlefs the intereil of the infured were 
 transferred with it -, becaufe, as we have already fhewn, 
 the infured mull not only have an intcreft in the fubjeft 
 matter of the infurance, at the time of infuring, but alfo 
 at the time the lofs happens {a). 
 , , ., In the printed propofals of all ihc offices it is declared 
 
 Upon the death f i i _ _ 
 
 of the infured, that, upon the death of an infured, his intereft in the 
 tSt?imTel policy (hall be continued to his reprefentative to whom 
 picieiuativc. ^^g property belongs, provided fuch reprefentative, be- 
 fore any new payment be made, procure his right to 
 be indorfed on the policy at the office. 
 The contribution I" ^'^^ propoliils of the Hand in Hand fire office, it 
 focitties fcpm to jj, jeclared, that if the prcmifes infured fnould be affigned, 
 
 allow the affign- j i rr j l ^ 
 
 ment of their the affignmeut mutt be entered at the omce ; and that 
 
 fnytxprct' p°e"- affignmcuts of policies iliali be entered at the office, widiin 
 
 Bjifliun. ^2 days after they are executed ; or eife the affignee 
 
 Jhall have no benefit thereby. And in the propofals of the 
 
 (a) Per Lord .^/V;^, Ch, in Lynch v. Dahell/m^. 8oi ; Per 
 Lord liardwich Ch. in the Sadkrs Company t. BeJcick, inf. 804; 
 \id. fup. 787. 
 
 Un'ion
 
 Ch. IV.] 4f^gnmc7it cf Policy. 8oi 
 
 Union fire oiKce, it is declared that every member trans- 
 ferring his policy, fliaU, within three month.^, give notice 
 to the dire6tors, and bring his policy to the oflice, to 
 have fuch transfer Indorled. 
 
 The Wejlminf.er ofEce merely requires that the afTign- 
 ment Ihall be entered at the office as foon as poffiblc. So 
 tliat, it would fecm, the policies of thefe three contribution 
 focietics may be affigned, without any exprefs permiffion 
 from the refpettive offices for that purpofe; and that it 
 is fufficient if the aflignment be brought there to be 
 entered. 
 
 But the other offices give notice, generally upon the Bui the other or- 
 policy, that it ffiall be of no force if affigned, unlefs fuch a^.n^w,:" 
 affignment be allowed by an entry in the books of the o"^'*^=''' exprefs 
 office, or mdorled on the policy. So that it feems to be 
 a fettbd rule in all thofe offices, not to allow any transfer 
 of any policy, without the confent of the managers. 
 This is perfedlly reafonable. The offices may chufe for 
 whom t':ey will infure ; they are not obliged to infure 
 for every ptrfon that may apply to them. In fome in- 
 fiances, chara£ler may be a fufficient reafon for a refufal. 
 But the oQices would be deprived of this option, if any 
 perfon infured might affign his policy to whom he plcufed, 
 without their concurrence. This will appear from the 
 followlne cafe. 
 
 On the 28th of Jul^ l'}2l, one Richard Ire/and ob- A>""^« and «no- 
 tained a policy from the Sun fire-office for the infurance and others, 3 i?r». 
 of his hcufe, being the Angel inn at GravefencJy w.th his ^' "''' ^^ 497 - 
 goods therein, from lofs and damage by fire : And it The infured up- 
 \yas agreed, that fo long as Ireland ihould pay five fhil- ^^Jl\^ Iffi'ns'he 
 lings a quarter, the fociety would fatisfv the faid Ire- ''^"'^ '" ^- •^"<' 
 
 1 • 1 • -ri \ 'er i • i r <nC goods 10 ^. ; 
 
 landf his executors, admaniltrators, and affigns, his lofs b. afiigns the " 
 not exceeding loool. accordinsr to the exa£t tenor of Eo^fi^ "■'^'■tov/. 
 
 o o to Iccuic to ^1. 
 
 their printed propofals. — Some confiderable time after- 'he money ad- 
 
 I- • ^ • r yi J 1 • r ^ vanced for B. to 
 
 wards, Ireland died, leaving nis fon Anthony his fole ex- purchafe them, 
 ccutor, who brought the policy to the office, and had Afterwardsafi,* 
 
 ' o r J ' happens, and ihc 
 
 an indorfement made thereon, that the fame belonged infurcn.iirigt.sric 
 
 , . 1 1 r 1 • 1 ) • policy to /I; ind 
 
 to him -, and he afterwards paid one year s premium up ^. aifonfTignj to 
 to Chri/lmas 1 727. In Aujrufl 1727, the houfe was dc- !>''"'"» "undt 
 
 J I ' t> J I n in tliB policy. 
 
 ftroyed by fire-, and fome time afterwards, the plain- Th-^c afngn- 
 VOL.11. Y tiffs ">•"^"'"«^«•
 
 So2 In/urance againji Tire: [B. IV. 
 
 afterthe"lr"!'i! ^^^^ ^PP^'^^^ *^ t^'^ ^^e^' ^"^ ^U^ge^ that they had 
 j)enefi, and with- purchafed the houfe and goods of Anthony Ireland \ that 
 theoffice7thra°- the fame were their property at the time of the fire ^ 
 fignee cannot re- g^d that they had an -aiRsnment of ihe policy made to 
 
 •cover the lofs •' , '^ i i r 
 
 under it. them, at the fame time that the houfe and goods were 
 
 affigned ; and they produc ed an affidavit from Roger Lxnch^ 
 in which he fwore that their lofs, by the burning o!' the 
 houfe, amounted to q'ool. and upwards j and upon this 
 affidavit was indorfed the ufual certificate from the mi- 
 nifler and churchwardens, hiz. : But neither in t\e affi- 
 davit or certificate, was any mention made of any lofs 
 being fuflained by the plaintiffs by the burning of any 
 goods 5 nor was any affidavit tnzdt by Anihotiy Ireland, 
 that he had fuffered any lofs.— rThe plaintiffs, however, 
 infifiied that the office fliould pay them loocl. for their 
 lofs by the burning of the houfe and goods •, and they 
 filed a bill in chancery, fetting forth, that Anthony Ireland,, 
 on the 24th oi June 1727, for 250I., affigned to them 
 a leafe of the houfe and flubics ; but that the goods 
 for which the plaintiffs, as they alleged, were to pay 
 500!,, being intended for one Thomas Church, who was 
 to hold the inn under them, Ireland^ by bill of fale of 
 the fame date, fold the fame to Church for his own ufe. 
 The bill alfo ftated the affignment of the policy to the 
 J)laintiffs 5 and that, although the bill of iAo. of the goods, 
 was made to Church ; yet that the plaintiffs paid the 
 purchafe money, and Church affigned the bill of fale to 
 them for fecuring it ; and alfo releafed to the plaintiffs, 
 his intereft in the policy. — The defendants, by their an- 
 fwer, alleged that the affidavit produced was not agree- 
 able to the propofals ; that no affignment of the policy 
 was made to the plaintiffs, nor any affignment of it made 
 to them by Church, till after the fire. They inHRed that 
 the policies iffued by the office were not in their na- 
 ture affignable, being only contrails to make good the 
 lofs v/hich the contradling party himfelf ^\o\x\d fuilain ; 
 and that no other perfon was entitled to any benefit from 
 it. The caufe proceeded to iffue •, and witneffes being 
 examined on both fides, it appeared upon the plaintiff's 
 own evidence, that the agreement for the affignment of 
 the poficy, (if any), was not till after the agreement for 
 
 the
 
 (.h. IV.j 4/fignment cf PoIUy. ^03 
 
 the purchafe of IrelamFs term in the houfe ; and that 
 •the aflignment of it, though bearing date before^ was not 
 made till fomc time after the fire : So that the agree- 
 ment for affigning the policy was a voluntary conceflion 
 on the part of Ireland^ and independent of the bargain 
 for the houfe, and not made till after Ireland'^ intcrclt 
 in the houfe was determined; nor carried into execu- 
 tion tPiI aft;;r the Icfs had happi;ncd. And as to iJie 
 pl.iintifF's property in the goods, they proved an aifign- 
 ment from Church to them, as a fccurity for 300I. \ but 
 omitted to ftate vuheii this afTjgnment was made, though 
 the defendants, by their anfwer, had put the time in 
 ifiue — Upon this cafe, the Lord Chancellor King dif- 
 mified the plaintiff's bill. — He faid ; — « Thefe policies The policy d^es 
 are not infuranccs of the fpecific things mentioned to be "„? P"'*' " ''"'^'' 
 infured , nor do fuch infuranccs attach on the realty, or 
 in any manner go with the fame, as incident thereto, 
 by any conveyance or aflignment : But they are only fpe- 
 cial agreements with the perfons infured, againft fuch 
 lofs or damage as they may fuftain. The party injured mujl 
 have a property at the time of the lofs, or he can fiijlairi na 
 lofs : and confequetitly can be entitled to no fatisfaclion. There 
 was no contrail ever made between the office and the 
 plaintiffs for any infurance on the premifes in queflion. 
 Not only the exprefs words, but the end and defign of 
 the contract with Ireland^ do, in cafe of any lofs, limit 
 and reftrain the fatisfaftion to fuch lofs as (hould be 
 fuflained by Richard Ireland only •, and. tlie indorfement 
 on the policy transferred th.at right to his executor An^ 
 ihony Ireland only. Thefe policies are not in their na- -.,^ ^j^.^ ;, 
 ture affignable ; nor is the interell in them -ever intended only aiiignsV'i*- 
 to be transterable from one to another, without the ex- of the ofSc*. 
 prefs confent of the office. The tranfa£^ions iti the 
 prefent cafe, by changing the property backwards and 
 forwards, and rendering it uncertain wliofe the true pro- 
 perty really was, raife a fufpicion, and fully juftify the 
 caution of the office in preventing the affignment, with- 
 out the confent of the managers ; which method is pur- 
 iucd by all the infurance offices. Befidcs, the plaintitT's
 
 8 04 Jnfurance ago infl Fire, [B,IV. 
 
 claim is, at beft, founded only on an aiTignment never 
 agreed for, till the perfon infured.liad dcterniined his 
 intereft 'in the policy, by parting with his whole pro- 
 perty, and never executed till the lofs had actually 
 happened." — Upon appeal to the Houfe of Lords, the 
 decree of the Court of Chancery was affirmed. 
 The Snihr's The fame principles were adopted in another cafe. 
 
 Company v. Bad- ^J^gj-g Q^g Anne Strode^ having fix years and a half to 
 
 cock and cthrrs, -,° ,,.._, 
 
 ^Atk.^^^. come in a leafe of a houfe from the piamtiffs, on the 
 A ~7Z ; • 27th cf Jpril 17^4, infured the houfe for 400I. in the 
 
 A klTee having ■^ / r i J >' ^ 
 
 ail unexpired Hiwd in Hand fire office, for fevcn years, and thereby 
 
 term of (ix years . , . , _ ,,. 
 
 andan iiaif in a bccaine a proprietor; and, on p-ymg twelve in;lhngs 
 houfe, infures for | ^j ^1^ foP^g ^Ime after, the coniuany agreed, out 
 
 leven years. At- jo ' r j sd ^ 
 
 ter ihe term ex- of thclr contribution (lock, * to pay the f aid f urn -f 40CI. 
 
 *ire<l the houfe , 7 it r r i t r 
 
 is burnt and af- * to her^ her exectitoi's ana ajfignees^ Jo ojien as the noiije 
 terwards,butbe- < n^ ^^ ^^^^,„^ ^^^^^^ durir.fr the [aid term, urJe's the di- 
 fore the expna- -' o j j 
 
 tion of the poii- < reclors Jloould rebuild ike fame \ and on the back of the 
 air'gns it to the policy it was indorfed, * that if the policy fhotdd be affignedy 
 reverfioner.wifr- , ^^^^ aff.^nment muft be ente-ed nvithin 21 davs after the 
 
 out the concur- -^ o -^ . 
 
 rejice of the of- « making thereof- — Mrs. Strode' 5 leafe expired at Midfwi- 
 figneT'cannot ' ^^>" 174° j 'he houfc was bumt down in January 1741 ; 
 claim any bene- g^d ffic affigncd the poiicy to the plaintifl-s on the s^td 
 
 nt under the po- ° . . 
 
 licy, oi February I 'J ^i. The plaintiffij tendered the affignment 
 
 to the defendants to be entered in their books, but they 
 refufed to accept it. The company, in 1738, which was 
 fubfequent to Mrs. Strode' s policy, made an order, <That 
 
 * whereas policies expire upon the property of the in- 
 ' * fured's ceafing j if there is no application of the in- 
 
 * fured to affign, or to have the lofs made up, then 
 
 * the perfon having the property, may infure the faid 
 
 * houfe in the faid office, notwithftanding the term 
 
 * for which the faid houfe was originally infured is 
 
 * not expired.' The queftion upon this cafe waSj 
 whether the plaintiffs, the affignees of Mrs. Strodey were 
 entitled to the benefit of the policy. — The court de- 
 termined that they were not entitled to any benefit 
 under it. — The Lord Chancellor Hardwiche faid ; — 
 <« During the progrefs of this caufe, while the defend- 
 ants feemed to depend chiefly upon the fubfequent order, 
 
 I was
 
 Ch.IV.] y%':gnmeni of Policy. S>- 
 
 I was of opinion againfl them. But, upon hearing what 
 was further offered, I think the plaintiffs are not en- 
 titled to be relieved. There may he three queftlons made 
 in this caufe. Firf, Whether this accident, which has 
 happened, be fuch a lofs, as obliges the defendants to 
 make fatisfaftion to the plaintiffs. Zecondlyt whetlier 
 upon the terms of the original policy, the ofi'ice be ob- 
 liged to do it. Thirdly^ which is rather confequential 
 of the former, whether the pUrlntilTs are properly afhgnees 
 of Mrs. Strode under this policy. If this matter relied 
 fmgly upon the policy itfelf, I fhould not think it fuch 
 a lofs, as would oblige the defendants to make fatisfac- 
 tion. Under this policy, the flate of the cafe is, Mrs. 
 Strode was only a leiTee ; her time expired at Adidfummer 
 1740 ; the houfe was burnt down in January after, 
 'ivithin the /even years ; the plaintiffs, the Sadler s Company y 
 v/ere ground landlords, and entitled to the reverfion of" 
 the term : Upon the 23d of /tv^v/ /ry, feven months after 
 the expiration of the term, and one m juth afier the fire, 
 the alignment was made, and in confidcraticn of five 
 fiiillings only ; fcrthat it muil be taken as a voluntary 
 affignment, as it ftands before me. It has been infilled, 
 on the part of the defendants, that the plaintilrs are not 
 entitled to x-ecover, as (landing in the place of Mrs- Strode, 
 becaufe fhc had no lofs or damage, her interefl ceafiiig 
 before the fire happened. And this introduces the fe- 
 cond and third queftions, I am of opinion, that it is 
 neceffary the party infured fliould have an intercll or 
 property at the time of infuring and at the time the fire 
 happens. It has been faid for the plaintiffs, that it is in 
 nature of a wager laid by the infurance company, and 
 that It does not fignlfy to whom they pay, if loll. Now 
 tliefe infurances from fire have been introduced in later 
 times, and therefore differ from infurance of fhips, be- 
 caufe there, intercjl or ;m interejl is almofl: confiantly 
 infcrted ; and if not. infertcd, you cannot recover, unlefs 
 y/DU prove a properly. By the fird claufe in the deed of 
 contribution in 1696, the year this focie;y, called tlic 
 Hatid in Hand Office^ incorporated thcmfclves, the focicty 
 are to make fatisfuclion in cafe of any lofs by fire. To 
 
 y 3 whom
 
 to6 Infurancc ^'igainjl Fire, [B. IV* 
 
 wliom, or for what lofs, are they to make fatlsfa^tion ? 
 Why to the perfon infured, and for the lofs he may have 
 fuftained ; for it cannot properly be called infuring ihi 
 thingy for there is no polhbility of d-oing it^ and therefore, 
 muit mean infuring the perfcn from damage. By the terms- 
 Cff the policy, the defendants might begin to build and 
 repair within fix days after the l>re happens. It has been 
 truly faid, this gives the fociety an option to pay or re- 
 build, and fhews mofl manifeftly that they meant to in- 
 fure upon the property of the infured> becaufe nobody 
 elfe can give them leave to lay even a brick ; for an- 
 other perfon might fancy a houfe of a diderent kind. 
 Thus it (lands upon the original agreement. The next 
 queftion will be, whether the fubfcquent order made by 
 the defendants in 173 8, has made any alteration. lam 
 of opinion that it has not •, for k was made only to ex- 
 plain a particular cafe in the policy, for it might have 
 been a queftion, whether Mrs. Strode could have com& 
 before the expiration of the term, to examine the bjoks 
 of the oljice, and therefore this order was made to give 
 her fucli a power. It has been ftrongly objected that 
 the fociety could not make fuch an order. I am very 
 tender of faying, whether they can or not. Becaufe, on 
 the one hami, it might be hard to fay, that, as a fociety^ 
 they cannot make any order for the good of the fociety ;> 
 On the other hand, it would be a chmgerous thing ta 
 give them a power to make an altera.tion, that may ma- 
 terially vary the«iHtereft of the infured. The afhgnment 
 is not at all Vv^thin the terms of this order, becaufe it i» 
 plain^ it meant an afilgnment before the lofs happened. 
 Nov/ vv^ith regard to tlie Ic^s happening before the adign- 
 ment made, Mrs. Strode was emiiled to nothing but 
 \ilrat %v;;3 to be paid back upon the depofit. It is plain 
 fhe thought fo, for if ihe had imagined {he had been en- 
 titled to 400i. would any friend have advifed her to make 
 3. prefent of ir to the plaintiff? 'Ihe cafe oi Lynch v^ 
 Dal-zelly in tiie Houfe of Lords, fiiews how ftri£l thi» 
 court and that houfe ai*e, on the conflruction of policies* 
 to avoid frauds." 
 
 -^ ^, 
 
 7 The
 
 Ch. IV.] AfignmntofFoUcy. Sd; 
 
 The foregoing determinations (hew that, upon an if >n afiignor of 
 
 aflignment or other transfer of the property infureil, the fur.U "iJ^'diUki 
 
 afiignee fhould be very careful to get the policy reeu- ' b*' t'''' policy 
 
 kriy transferred to him, by the proper indorfemcnt at the affiinec, he will 
 
 office. And in a former part of this work, {a) it was af^ion 'for°n«- 
 
 (liewn that if the affignor undertake to get this done, he Uilmg to do fu. 
 will be liable to the afligncc for all the confequcnces of 
 negle6):ing or omitting to do io ; even though his under- 
 taking were merely gratuitous. 
 
 (a) Vid. Willwjon v. Co^^crdalc, fup. aSg. 
 
 Y ^
 
 So 3 Injur ance againfi Fire. [B. IV, 
 
 CHAP V. 
 
 Of the Proof of Lofu 
 
 The account of 'T^'HE form of the policy is nearly the fame in all the 
 aifidHntl'of the offices (-'/). The principal difference between them 
 
 infured, and the confifts in the temis of certjin propofals, as they arc call- 
 certificate from . , . , . , J^ J. J 1 
 theminiftcr,&c. ecl, to which It retcrs, as making a part of the contradl. 
 required by the Qnc principal article, which is found in the propofals 
 fats. * of feveral of the offices imports, — * That pcrfons in- 
 
 < fured fuftaining any lofs or damage by fire are forth' 
 
 * with to give notice thereof at the office, and, as focn as 
 
 * poffible afterwards, deliver in as particular an account 
 
 * of their lofs and dam.age, as the nature of the cafe will 
 
 * admit of ; and make proof of the fame by their oath or 
 
 * affirmation, according to the form pratlifed in the faid 
 
 * office j and by their books of accounts, or other proper 
 
 * vouchers, as flrall be reafonably required •, and procure 
 
 < a certificate under the hands of the minifter and church- 
 « wardens, together with fome other reputable inhabitants 
 
 * of the parifh, not concerned in fach lofs, importing, — 
 « That they are well acquainted with the character and 
 
 * circumftances of the perfon or perfons infured, and do 
 « know or verily believe, that, he, ffie, or they, really 
 « and by misfortune, witliout any fraud or evil pracfticev 
 « have fuftained by fuch fire, the lofs and damage, as 
 
 * his, her, or their lofs, to the value therein-mentioned : 
 « But, till fuch affidavit and certificate of fuch hifurcd's 
 » lofs (hall be made and produced, the lofs money fhall 
 
 * not be payable. And, if there appear any fraud or 
 < falfe fwearing, fuch fufferers ihall be excluded all be- 
 
 («) Vid. Appendix No. VII. 
 
 9 * nefit
 
 Ch. v.] 
 
 Proof of Lofs, 
 
 809 
 
 < nefit by their policies.' In the policies of thefe offices 
 the iniurers undertake to pay the lofs, not exceeding tlie 
 fum infured, < according to the exa£i tetior of their printed 
 * propofalsy' defcribing their propofals by their refpedive 
 dates. 
 
 The above article, though not worded in the befl pof- 
 fible manner, has undoubtedly a very beneficial ten- 
 dency. Nothing can be more reafonable in a cafe where 
 there is fo great a temptation to fraud, than to require 
 a teftimonial from perfona in public fituations in the pa- 
 rifh where a fire has happened, who have opportunities 
 of informing themfelves as to the chara6lers of the in- 
 fured, and the fairnefs of their claims ; and who are 
 not likely to connive at any fraud. " It is a duty," fays 
 Mr. Jullice Laivrence (a), « that the office owes to the 
 public as well as to themfelves, to take every precau- 
 tion to protect themfelves againft fraud. And unlefs 
 fome fuch check as the prefcnt were interpofed, the of- 
 fice v/ould be holding out a premium to wicked men to 
 fet fire to their own houfes." — Perhaps it may, fome 
 time or other, be thought advifable for all the infurance 
 companies to agree among themfelves to have this article 
 revifed, and put into a more unexceptionable form, and 
 to adopt it univerfally. The conflrudion of this article 
 has given occafion to feveral judicial decifions. 
 
 The firfh was an aftion againft the diredlors of the 
 Sun Fire Office^ upon one of their policies. The plain- 
 tiiFs, in their declaration, aftei* ftating that the bank- 
 rupt, the infured, had conformed to the above article, 
 as to the notice, account, and affidavit of the lofs ; 
 ftated that the minifter of the parifh of Portfea, in which 
 the lofs had happened, refided at a di fiance from the pa- 
 rifh, and was wholly unacquainted with tlie charadler 
 and circumftanccs of the infured, and unable to make 
 the certificate required by the policy ; but that the in- 
 fured had procured and delivered to the office a certifi- 
 cate under the hands of feveral reputable inhabitants of 
 
 The reafonabk- 
 nefs of requiring 
 this proof. 
 
 ia) 6T.R. 722. 
 
 OUman and 
 othcis, adigneei 
 
 of Ingram, V. 
 
 BnuicKc and 
 oihers, 2 H. BL 
 577. n. 
 
 To cxcufe rhe 
 •,vant of the cc i« 
 tificatc, it is not 
 enough to allcRe 
 that ilic miniller 
 rtfido out of the 
 p: rifh, and doei 
 not know the 
 infured. And 
 the want uf thil 
 certificate is a 
 defea of title, 
 for which the 
 court will arrcft 
 tlic juflgmcnr, 
 after the I'huntrff 
 iia* obt.uiied k 
 
 the
 
 8 ro Infurance agamjl' Fire, [B. IV. 
 
 verdiA on the the tcnor required by the article. The defendants pleaded 
 fraud, and want I ft, That the premifcs were wilfully fet on fire, and 
 of intereit. hmvit down by the infured. adly, That at the time of 
 
 the fuppofed lofs the infured had no intcreft in the pre- 
 mifes. No notice was taken in any of the pleas, of the 
 want of the certificate. — Iffues being joined on the above 
 pleas, the caufe went to trial, and the jury found a ver- 
 did: for the plaintiffs, damages 300I. — The demand was 
 15001. the fum infured. — The defendants moved in ar- 
 refl of judgment, on the ground that the plaintiffs had 
 not fet forth in their declaration a fufficient tiile to re- 
 cover upon the policy againft the defendants. — In anfwer 
 to this application it was faid that it was grounded either 
 on the title being defective, or defectively fet forth : 
 TTiat the latter objeftion was cured by the vcrdi£t, and 
 the former waived by the defence fet up in the pleas. — 
 The court, however, arrefted the judgment. — Lord Lough- 
 horoKgh faid, — " Though I am fatisfied the verdidt was 
 right, that the fire was accidental, and that the certificate 
 could not have been procured, becaufe the infured had 
 not fuflained all the lofs he claimed ; yet the rule of in- 
 tendment after verdidt cannot be applied where there is 
 an abfolute defed of title, as there is in this cafe. — As 
 to the pleas, they are wholly collateral to the title." — 
 Mr. Juftice Gould faid,—" Till the aflSdavit is made, and 
 the certificate procured, the money is not payable . The 
 time of payment, therefore, is not yet come. — ^Though 
 ' a perfon were a bona fide fuiTerer, ftill he is not entitled 
 
 without a certificate. The ftipulation is a condition pre- 
 cedent, that there (hall be a certificate to fhew that there 
 is no kind of fraud. Nothing is faid about the church- 
 wardens ; and the excufc of the minifter living at a 
 diftance is frivolous." 
 ^outMzi\.Bur. The next cafe upon this fubje£i: was an a£tion of co- 
 %^!TsT'''' ^"" vs"^"^ brought by the executrix of the infured on a po- 
 • licv of the Sun Fire Office. — The declaration, by way of 
 
 The article of ^^ ^ ^ , • t -n • \ ^. \-L 
 
 the punted pro- cxcufe for not producmg the certificate required by tne 
 S^c^'cert'iZre,"^ abovc article, ftated that the teflator, the infured, after 
 though without f]^e lofs, being entitled to fuch certificate, applied to the 
 
 (t;imp, leal, or ■ . , \ ^ i i ^ ui •« 
 
 fisnatuie, and i^inifter z^A churchwardens, and to many reputable m- 
 though only re- j^abitants to procure fuch certificate ; but that the de- 
 
 i^sndants.
 
 :h. v.] Proof of Lofs. §„ 
 
 fendSnts, by falfe infinuations, and proinifes of indem- ffi-td to in the 
 jiity, prevailed on the miniRer, &c. to refufe to fign it. of 'iS' cInrr'S, 
 — ^The defendants, as to the firfl breach of covenant, *"'' 'V tindim 
 pleaded, ift, That the infured had no intereft in the 
 goods, &c. infured ; and 2dly, That they did not pre- 
 vail on the minifter, &c. to refufe to fign the certificate. 
 — And as to the fccond breach, they pleaded, ift, No 
 intereft ; and 2dly, That neither the teftator in his life 
 time, nor the plaintiff fince his dealh, had procured 
 fuch certificate. — IfTue was joined upon the three firft 
 pleas, and the plaintiff demurred to the lafl. — In ar- 
 guing that demurrer, it was contended on the part of 
 the plaintiff, ift. That a condition or reftriclion could 
 not be annexed to, and made part of a deed, by words of 
 mere reference .to a printed paper, diflinguiflied only by 
 the date of the year in which it was printed, without 
 any fignature, feal, or flamp, to give it authenticity ; 
 and 2dly, That the reftriclion in queftion, though it were 
 properly annexed to tlie deed, was bad in itfelf. Many 
 authorities were cited in fupport of thefe propofitions : 
 But the court faid that the matter was too clear to admit 
 of a doubt, and gave judgment for the defendants. 
 
 At lengtli, in the following cafe, it has been fully j^ j, ^^^ f^,,,^^ 
 fettled, after folcmn argument, and upon full delibera- ^^^'^ ^^e procur- 
 
 . , ing the ccrtih- 
 
 tion, that the printed propolals are to be taken as part c..tc is a conHi- 
 of the policy ; that the procuring of the certificate from """ precedent 
 
 r / ' i^ o ^ ^ to xMz payment 
 
 the minifter and churchwardens, &;c. is a condition prece- of any lois; and 
 dent to the payment of the lofs ; and that the infured wmngfuiiy're- 
 has no title to demand any lofs, without this certificate, f"f^td will not 
 
 ^ . cxcufe the wane 
 
 though he fliould be able to fliew tliat the mmifter and of it. 
 churchwardens had wrongfully refufed to (ign one. 
 
 That was an aftion brought by the afTignecs of the ;^r^,^; ^j, ^ ^^j^^, 
 infured, who had become bankrupts, againfl the Phoenix ;,frignces of 
 infurance company. The plaintiffs in tlieir declaration, jjZIml'^ir.r. 
 after ftating the lofs, and notice to the office, alleged Jh, t,R. ^A 
 that the bankrupts, foon after the lofs, procured and 7,0. 
 delivered to the company a certificate under the hands 
 of divers reputable houfcholdcrs in the parifh, in the 
 ufual form j and tliat, * as foon as poffihlc after the lojs, 
 ' the-j^ appiied to, arJ requ^^ed, the riinlfler avd churchivur- 
 
 * dint
 
 '12 ' Injuranci againji ¥ire. [B> IV, 
 
 * dens of the pari/b to Jlgn fuch certificate ; hut that the faid 
 ' niinijler and churchivardensy ivithout any reajonahle or pvo- 
 
 * bable canfe whatfoever, did wrc'rgfully and unjujlly refufe tf 
 ^Jtgn any fuch certificate as aforefaid.' — There was another 
 fimilar count, only omitting the requeft to the minifter 
 and churchwardens to fign the certificate, and their re- 
 fufal. — To the firll count, the defendant pleaded \ 
 ill, Want of interefl in the bankrupts j adly, That the 
 lofs happened by fraud ; and 3dly, That the minifter and 
 churchwardens did not wrongfully, and without pro- 
 bable caufe, refufe to fign the certificate. — To the 
 fecond count, ^he defendant pleaded fimilar pleas, as to 
 ■want of intereft and fraud \ and 3dly, That neither the 
 bankrupts nor the plaintiffs had procured any certificate 
 from the minifter, churchwardens, and reputable in- 
 habitants, as is required by the faid printed propofals. — 
 By the replication ifiue was joined on the firft five picas ; 
 and as to the laft pie?, the plaintiff's affigned the fame 
 cxcufe for the want of the certificate from the minifter, 
 &c. as in the firft count of the declaration ; and this 
 having- proceeded to ifiue, the caufe was tried and the 
 plaintifi^s obtained a verdicl for 3,000!. — The defendant 
 moved inarreft of judgment on the fame ground, as in tlic 
 cafe of Oldman v. Eetviche (a), namely, that the produc- 
 tion of the certificate was a condition precedent to the pay- 
 ment of the lofs, and that the plaintifi"s not having averred 
 performance, had (hewn no title to recover. — After the 
 argument, Lord C. J. Eyre, Mr. Juftice Bullery and Mr. 
 Juftice Roohe, feemed to be of opinion that, fuppofing 
 the printed propofals to be conditions precedent, there 
 had been a performance cy pres ; but that, in truth, the 
 policy beingacom mercial cont radt, was to be conftrued 
 liberally, and the true queftion was, whether the lofs 
 had been fairly incurred. If it had, and it appeared 
 on the record to have fo happened, the refufal of the 
 minifter and churchwardens was without caufe, and 
 therefore the plaintiffs were entitled to maintain their 
 aftion. But Mr. Juftice Heath appeared to difi^er from 
 
 {fi) Sup. 809. 
 
 the
 
 Ch. v.] Proof of Lofs, Srj 
 
 the reft of the court, and time was taken to deliberate. 
 Afterwaids, judgment was given for the plaintiffs, pro 
 forma., as it was underftood that a writ of error would 
 be brought, whichever way the judgment ftiould be given. 
 — Upon this writ of error, the court of King's Bench, 
 after two arguments, reverfed the judgment of the court, 
 of Common Pleas, being unanimouHy of opinion that the 
 produflion of the certificate waj^a condition j)recedent. — 
 Lord Ke?i\on faid he did not fee how the term cy pres was 
 applicable to this fubjedl ; that the argument founded on 
 this, went to (hew that if none of the inhabitants of 
 this parifh would certify, a certificate from the inhabi- 
 tants of the next, or of any other parifh, would have an- 
 fwered the purpofe. But he faid that the infured could 
 not fubftitute other terms or conditions in lieu of thofe 
 which all the parties to the contraft had originally made. 
 
 END OF THE FOURTH BOOK.
 
 C S15 ] 
 
 APPENDIX. 
 No. I. 
 
 rorm of a valued Pclicy of hifurance upon Ship and 
 
 Goods, by Piivate Undcrivritcrs. 
 £.iOtOcr:> j In the name of God, ^"Inun. 
 
 . g Q ( 
 
 D.l,vercdr„c \ . as wcU in own name 
 
 Dny of J as for and in the iiame and names of all and 
 
 every other perfon or perfons to whom the fuiK- d^>th, may, or 
 fliall, appertain, in part or in all, doth make afTurance, and 
 ca'ife and them, and every of them, to be 
 
 infured, I'.ft or not loft, at and from 
 
 upon any kind of floods and tnerchandizes, and alfo upon the 
 body, tackle, ap.jarel, ordnance, munition, artillery, boat, 
 and other furniture, of aid in the g'ood Oiip or v.-frel called 
 The whtreof is mailer, under God, for 
 
 this prefent voyan:e or whofoe>-er 
 
 elfe fhall go for mr.fterin the faid fhip, or by vvhatfoever other 
 name or names the fame iliip, or the m.after thereof, is or 
 fhall be named or called : Beginning the adventure upon the 
 faid goods and merchandizes from the loading thereof aboard 
 the faid Ihip upon the faid fhip, ^V. 
 
 and fo fliall continue 
 and endure during her abode there, upon tlte faid fhip. ^r. • 
 And further, until the faid fhip, with all her ordnance, tackle, 
 apparel, &c. ar.d goods and merchandizes vvhatfoever, (hall 
 be arrived at ypon the 
 
 faid fhip, i^jr. until fhe hath moored at anchor twenty-four 
 hours in good fafety, and upon the goods and merchandizes 
 until the fame be there difcharged and fafely landed : And it 
 fhull be lawful for the faid fhip, Ijc. m this voyage, t procee4 
 isnd fail to and touch and Hay at any ports or places what- 
 soever without pve. 
 judice to this infurancc ; the faid fhip, isfc. goods and mer- 
 chandizes, ^c. for fo much as concerns the afTureds by agree- 
 ment between the afTureds and affurers, in this policy are 
 and fliall be valued at 
 
 Touching the adventures and perils which we the affurers are 
 {:&ntcnled to bear and dp take upon ue in this voyage, they are, 
 
 of
 
 Appendix, No. I. 
 
 of the fcas, men of war, jire, enemies, pirates, rovers, thieves, 
 jettifons, letters of mart and countermart, furprizals, taking 
 at fea, arrefts, reftraints, and detainments of all kings, prince* 
 and people, 'of what n^.tion, condition, or quality foever, bar- 
 ratry of the matter and mariners, and of all other perils, loffes, 
 and misfortunes, that have or fhall come to the hurt, detri- 
 ment, or damage, of the faid goods and merchandizes, and 
 Ship., i5:c. or any part thereof; and in cafe of any lofs or mis- 
 fortune it {hall be lawful to the afTureds, their ...aors, feryants, 
 and affigns, to fue, labour and travel, for, in, and about, the 
 defence, fafeguard, and recovery, of the faid goods and mer- 
 chandizes, and fnip, ^c. or any part thereof, without preju- 
 dice to this infurancc, to the charges whereof we the affurers 
 will contribute each one according to the rate and quantity of 
 his fum herein affured : And it is agreed by us the infurers 
 that this writing or policy of affurance {hall be of as much 
 force and effeft as the furelt writing or pohcy of aflTurance 
 heretofore made in Lombard Street, or in the Royal Exchange^ 
 or elfewhere in London ; And fo we the alTurers are contented, 
 and do hereby promife and bind ourfelves, each one for his own 
 part, our heirs, executors, and goods, to the a{ruredf, their ex- 
 ecutors, adminiftrators, and affigns, for the true performance of 
 the premifes, confelTing ourfelves paid the confideration due unto 
 lis for this affurance by the affured 
 at and after the rate of 
 
 In witnefs whereof we the affurers have fubfcribed our names 
 and fums affured in London. 
 
 N. B. Corn, fifli, fait, fruit, flour, and feed, are warranted 
 free from average, unlefs general, or the {liip be {Iranded ; 
 — Suoar, tobacco, hemp, flax, hides, and {kins, are 
 warranted free from average under five pounds per cent. ; 
 and all other goods, alfo the fliip and freight, are war- 
 ranted free of average under three pounds per cent, unlefi. 
 general, or the fliip be ftranded.
 
 Appendis, No. II. Si 7 
 
 No. II. 
 
 Form of a PcUcy of Injur ance on Ship and Goods ^ by 
 the Royal Exchange Affurance Company » 
 
 S. G. \ S. G. No. 
 N. / L. 
 
 By the Corporation of the Ro-jal E>:change AfTuraiice. 
 
 In the Name of God, Atr.cn. 
 
 as well in own name as for and in the namp and names 
 
 of all and every other perfon or perfons to whom the fame doth, 
 may, or fliall, appertain, in part or in all, doth make afTurance, 
 and caufeth and them, 
 
 and every of them to be afTiired, loil or not loll, 
 
 upon any kind of goods and merchandizes 
 whatfoevei*, loadcn or to be loadcn, and alfo upon the body, 
 tackle, apparel, ordnance, munition, artillery', boat, and 
 other furniture, of and in the good fliip or veflel called Tht 
 
 burthen, or thereabouts, 
 whereof is mailer (under God) for this j.refent voyage 
 
 or whofoeverelfe fhall go for mafterin the 
 faid ftiip, or by whatfocvjr other name or names the lame 
 ihip or the mafttr thereof is or fl^.all bo named or called; Be- 
 ginning the adventure upon the faid goods and merchandizes 
 from and immcdhtely following the loading thereof on board 
 the faid fhip and upon the faid 
 
 Hiip, ■3'f. and fo (hall continue 
 
 and endure during her abode there upon the faid fhip, l^c. and 
 further until rhe faid fnip, with all her ordnance, tackle, ap- 
 parel, i!jc. and goods and mercliandizes whatfoevcr, fhall be 
 arrived at upon the faid fhip, 
 
 \^c. until fhe hath there moored at anchor twei;ty-four hours 
 in good fafety, and upon the goods and merchandizes, until 
 the fame be there dirdiarged and fafely landed : And it fliall bt 
 lawful for the faid fliip, Sif^. in this voyage, to proceed and fail 
 to, and touch and flay at, any ports or places whatfoever, with- 
 out prejudice to this Affurance, the faid fhip, ^c. goods and 
 YOL, li. 2k merchandize!.
 
 Appendix^ No. II. 
 
 merchandizes, l^c. for fo much as eoncerns the affvueds, (by 
 agreement made between the afTureds and the faid corporatien 
 in this poHcy)' are and fliall be rated and valued at 
 
 Sterhng, without farther account to 
 be given by the afTureds for the fame. Toucliing the adven- 
 tures and perils which the faid corporation are contented to bear 
 and do take upon them in this voyage, they are, of the feas, 
 iiien of war, fire, enemies, pirates, rovers, thieves, jcttifons, 
 letters of mart and countermart, furprizals, takings at fca, 
 arrrds, rcllraints and detainments of all kings, princes, and 
 people, of vvliat nation, condition, or quality foever, barratry 
 of the mailer and mariners, and of all other perils, lofies, and 
 misfortunes, that have or fiiall come to the hurt, detriment, or 
 damage, of the faid goods and merchandizes, and {hip, t5V. 
 or any part thereof : And in cafe of any lofs or misioitune 
 it fliall be lawful to the afTureds, their factors, fervants, and 
 afficrns, to fue, labour, and travel, for, in, and about, the de- 
 fence, fafeguard, and recovery, of the faid goods and mer- 
 chandizes, and fiiip, l^c. (or any part thereof), without pre- 
 judice to this alTurance, to the charges whereof the faid corpo- 
 ration will contribute according to the rate and quantity of the 
 fura herein afTured ; And it is agreed by the laid corporatioB 
 that this writing or policy of affurance fhall be of as muck 
 force and effeft as the fureft writing or policy of affurance here- 
 tofore made in Lombard Slreetf or in the Royal Excbang:, or 
 elfcwhere m, Louden : And fo the faid corporation are contented, 
 and do hereby promife and bind themfclves and their fucceflors 
 to the afTureds, their executors, adminiltrators, and afligns, for 
 the true performance of the premifes, confeffing themfelvcs 
 paid the confideration due unto them for this affurance by 
 
 at and after the rate of 
 per (mt. In witnefs whereof the faid Corporation have caufed 
 their common feal to be hereunto affixed, and the fum or fums 
 by them affured to be hereunder written, at their ofBce in the 
 Reyal Exchange of London this Day of 
 
 in the year of the reign of our Sove- 
 
 reign Lord by the grace of God, of the 
 
 united kingdom of Great Britain and L-eland, King, Defender of. 
 the Faith, and in the year of our Lord 
 
 The faid corporation are content with this affurance for 
 
 Free 
 
 K
 
 Appendix^ No. HI. 81^ 
 
 Free from all average on corn, floury fifh, I'alt, fruit, feed, 
 
 hides, and tobacco, ur.lefs general, or otherwife fpecially 
 
 agreed. 
 Free from average on fugar, rum, lliins, hemp, and flax, under 
 
 five/>fr cent. ; and on all other goods, and on fliip, under three 
 
 percent, except general. 
 
 By order of the Court of Direciori- 
 
 No. III. 
 
 Fonn of a Policy of Infurance on Ship and Goods by 
 the London AJfurance Company. 
 
 SHIP AND GOODS. 
 
 London AfTurance Houfe. 
 
 No. No. in London. 
 
 By the Governor and Company of the London AfTurance. 
 
 In the name of God, Amen. 
 
 as well in own name as for and in the name and names of 
 
 all and every c«t.her perfon or perfons to whom the fame doth, 
 may, or fhall, appertain, in part or in all, doth make affuvanCe, 
 and caufeth and them, and every of them, to 
 
 be affured, loft or not loft, at and from upon 
 
 any kind of goods and merchandizes whatfoever; and alfo upon 
 the body, tackle, apparel, ordnance, munition, artillery, boat, 
 and other furniture, of and in the good fliip or veflel called 
 The whereof is mafter (under God) forth'U 
 
 prefent voyage or wlioever elfe fhall go for 
 
 mafter in the faid fhip or vefTel, or by whatfoever other name or 
 names the fajd fhip or vcfTclj or the mafter thereof, is or fhall be 
 named or c?lled ; Beginning the adventure upon the faid good* 
 and merchandizes from and immediately following the loading 
 t^icrcof aboard the faid fliip or vefTcl at and upon 
 
 z 2 the
 
 !2o Appendix, No. III. 
 
 the faid flilp or vefiel, '^c. and fo fliali 
 
 continue and endure during her abode there, upon the faid ftiip 
 or vefTelj ^e. ; and farther, until the faid ftiip or veftl, with 
 all her ordnance, taclde;, apparel, ^c. and goods and merchan- 
 dizes \vliatfoever, fliall be arrived at 
 
 and upon the faid fliip or veflll, Sffc- until (he hath moored at 
 anchor twenty- four hours in good fafety, and upon the goods 
 and merchandizes, until the fame be there fafely difcharged and 
 landed ; And it (hall be lawful for the faid fhip or vefTel, ^c. in 
 this voyage, to proceed and fail to, and touch and ftay at, any 
 ports or places vvhatfoever without prejudice 
 
 to this afTurance, the faid fhip or vefTel, idc. goods and mer- 
 chandizes, l3c. for fo much as concerns the affureds, (by agree- 
 ment between the aflureds and the London afTurance), are and 
 ihall be rated and valued at without farther or 
 
 other account to be given by the affureds for the fame. Touch- 
 itig the adventures and perils, which the faid London afTunmce 
 are contented to bear and do take upon them in this voyage, 
 ihey are, of tlie feas, men of war, fire, enemies, pirates, rovers, 
 thieves, jetlifons, letters of mart and countermart, furprizals, 
 takings at fea, arrefts^ rellraints, and detainments of all kings, 
 princes^ and people, of what nation, condition, or quality fo- 
 evcr, barratry of the mailer and mariners, and of all other 
 perils, loffcs, and misfortunes, that have or fhall come to the 
 hurt, detriment, or damagCj of the faid goods and merchandizes, 
 and fhip or vefTel, l^c. or any part thereof; And in cafe of any 
 lofs or misfortune, it fhall be lawful to the affureds, their faftors, 
 fervanis, and afligns, to fue, labour, and travel, for, in, and 
 about, tDc defence, fafeg-uard, and recovery, of the faid goods, 
 mercliandizes, and Ihip or vefTel, iSc. or any part thereof, 
 without prejudice to this afTurance, to the charges whereof the 
 faid London afTurance will contribute according to the rate and 
 ciuanlity of the fum herein alTurcd : And it is agreed that this 
 writinp or pohcy of afTurance fliali be of as much force and effeft 
 r.s the turelt writing or pohcy of afTurance heretofore made in 
 J.oiriLurd Street, or in ih^Roy-d Exchange or elfewhere mLondon : 
 And fo the faid Londtti afTurance are contented, and do hereby. 
 promife and bind themfelves and their fuccefTors to the alTureds, 
 their executors, adrainiilratcrs, and afiigns, for the true perform- 
 ance of the prcraifes, confefling themfelves paid the confideration 
 due unto them for this afTurance by the affured, at and after the 
 -otg of percent. In wit nefs whereof the 
 
 m
 
 Appendix, No. KI. y^i 
 
 faici London affurance have caufed their common feal to be here- 
 
 unto affixed, and the fum or fums by them affured to be here- 
 
 under written, at their office in London, this day of 
 
 in the year of tLe rwgn of our Sovereign Lord 
 
 by the grace of God, of the united kingdom of Great Britain 
 
 iind Ireland, King, Defender of the Faith, and in the year oi" 
 
 our Lord 
 
 Free from all average on corn, flour, fruir, fifii, fait, and feeds, 
 
 except general. 
 Free from average on fugar, rum, hides, flcins, hemp, flax, 
 
 and tobacco, under five pounds /fyfc«/. ; and on all other 
 
 goods, and fhip, under three pounds per cent, except 
 
 general. 
 
 The faid governor and company are content; with this affar- 
 ,ance for 
 
 2 S Na IV
 
 8'22 Appendix^ No. IV. 
 
 No. IV. 
 
 Form of a Bill of Bottomry, by deed poll, where the 
 Ship is to go to fever al Ports. 
 
 To ALL People, cffc. I Jl. B. of, &c. marinev, mailer, and 
 part owner of the good fhip or veflel called, i^c. of Londoriy 
 of the burthen of two hundred tons, or thereabouts, now 
 riding at anchor in the river Thames, within the port of Lon- 
 don, do fend greeting ; Whereas the faid fliip is now bound 
 out upon a voyage from the faid port unto the ifland of Bar' 
 ladoeSf and from thence, if occafion ihall be, to the ifland of 
 Mayy and fo to return back again to the faid ifland of Barba~ 
 does, and thence to London, to end her voyage ; Now know ye, 
 that I the faid A. B. for myfelf, my executors and adminiftra- 
 tors, do covenant and grant, to and with C. D. of l^fc. (who, 
 before the fealing and delivery hereof, hath paid and advanced 
 unto me the faid A. B. the fum of 500I. of lawful money of 
 Great Britain, and is contented and hath agreed to ftand to, and 
 bear the adventure of the faid fum upon the body of the faid 
 fhip, during the faid voyage), and to and with the executors, 
 adminiftrators, and afligns of the faid C. D. by thefe prefents ; 
 That the faid fliip, with the firil good wind and weather after the 
 
 day of next enfuing the date hereof, fliall 
 
 depart from the faid river Thames, on the faid intended voyage, 
 and fliall by God's grace, (the perils and dangers of the fea, and 
 reftraint of princes and rulers excepted), return into the faid 
 river Thames from her faid voyage before the expiration of 
 fourteen months, to be accounted from the date of thefe 
 prefents ; and that the faid fliip, in her faid intended voyage, 
 fliall not fail or apply unto any other ports or places than thofe 
 before mentioned herein, unlefs flie fliall be neceflitated thereto, 
 by extrem.ity of weather, or other unavoidable accident. And 
 that I the faid A. B. my executors, adminiftrators, or afligns, 
 {hall and will well and truly pay, or caufe to be paid, unto the 
 faid C. D. his executors, adminiftrators, or afligns, at, ^c. 
 the fum of 560I. of lawful miOney of Great Britain, in refpeft 
 of the adventure aforefaid, if the faid fliip fliall go only to the 
 ifland oi Barb a does, and from thence return to London to finifli 
 her faid intended vovage ; and the fum of 600I, of like money, 
 
 if
 
 Appendix, No. IV. g2-5 
 
 jf the faid fhip fiiall go from thence to the ifland of May, and 
 fo return again to the faid illaiid of Barladots, and thence to 
 London to end her faid voyacre ; and that within one 'month 
 after the return of the hull or body of the faid ihip unto the 
 river Thames, from her faid voyage. Provided always, 
 and it is nevertherlcfs the true intent and meaning of thefe pre- 
 fonts, That if the faid fiiip, in her intended voyage, Hiall hap- 
 pen to be loft, mifcarry, or be taken by men of war, or pirates, 
 that then thisprefent writing or deed, and ever)' covenant, pay- 
 ment, matter, and thing therein contr.incd', on the part and beln'f 
 of me the faid .'. B. to be done, paid, and performed, fhall b? 
 Toid a'ui of none effeft : And that then I the fud j1. B. my ex- 
 rrutors or adminiftratois, lliall not be anywife chargeable or 
 liable to -pay the faid feveral fums before mentioned, or either 
 of them, or any part thereof, to the faid C. D. his executorrr. 
 adminiilrators, or afiigns, but that he and tliey are to lofe ;:.?; 
 fome, and ever}' part thereof ; any thing herein -befoi-e contained 
 to the contrarj- thereof, in anywife notwithflanding. And it 
 is agreed, by and between the faid parties to thefe prefents, 
 that in cafe the faid (hip (hall not be returned unto the rivev 
 Thames, from the faid intended voyage, at the end of fourte.ii 
 months, to be accounted from the date of thefe prel'ents ; and 
 that, at the expiration of the faid fourteen months, there flial! 
 not be juft; proof made of the lofs happening within the time 
 aforefaid ; that then, I the faid Jt. B. my executors, admii.ir- 
 trators, or affigns, fhall and will, within twenty days next after 
 the end and expiration of the faid fourteen months, well and 
 truly pay, or caufe to be paid, unto the faid C. D. hij execu- 
 tor--, adminiftrators, or afiigns, at the place of payment aforefaid, 
 the faid fum of i;6o /. in cafe the faid fliip fhall go unto the faid 
 ifland of Barlatloes as aforefaid, and the faid fum of 6co A In 
 cafe the faid flwp fliall go unto the faid ifland of May as afore- 
 faid ; and that the faid C. D. fhall not run tlie haaard and ad- 
 venture of the faid fum by liim adventured as aforefaid, upon 
 the body of the faid fliip, any longer than fonrteen uionths, to 
 te reckoned and accounted as aforefaid. In wltnefi, •. \ . 
 
 7. + No.V.
 
 appendix f No. Y. 
 
 No. V, 
 
 rorm of a Refpondentia Bond, upon an Eafl indii 
 
 Voyage. 
 
 K.NOW ALL fTEN by tliefe pvefents, that I, A. B. 
 of in the county of , mariner, am held 
 
 and firmly bound to C. D. of, l^c. in the fum or penalty 
 of I, coo /. of lawful money of Great Britain, to be paid 
 to the faid C. D. or to his certain attorney, executors, 
 adminiftrators, or afiigns, to which payment, well and 
 truly to be made, I the faid J. B. do bind myfelf, my 
 heirs, executors, and adminiftrators firmly, by thefe pre- 
 fents, fealed with my feal, dated this 23d day of Janu- 
 ary, in the forty-fecondyear of the reign of our Sovereign 
 Lord George the third, by the grace of God, of the united 
 kingdom of Great Britain and Ireland, YJing, Defender of 
 the Faith, and in the year of our Lord 1802. 
 Whereas the above-named C D. on the day of the date above 
 ■written, ad\'anced and lent unto the faid A. B. the fum oi ^ool. 
 upon the goods, merchandize, and effefts laden and to be laden on 
 board the good fhip or vefTel called The Saint George, now ridiag at 
 anchor m the river Thames outward bound, and whereof one E. F- 
 as commander. Now the condition of this obligation is 
 fuch, that if the faid (hip or vefTel d© and fhall, with all con- 
 ▼enient fpeed, proceed and fail from and out of the faid river 
 Thames, on a voyage to any port or place, ports or places, m 
 the EaJI Indies,. China, Perjia, or elfewhere beyond the Cape of 
 Good Hope ; and from thence do and fhall fail, return, and 
 come back into the faid river Thames, at or before the end 
 and expiration of 36 calendar months, to be accounted from 
 the day of the date above written, and there to end her laid 
 intended voyage, (the dangers and cafualtics of the feas except= 
 ed) ; And if the faid J. B. his heirs, executors, or adminiftra- 
 tors, do and ftiall within thirty days next after the faid fhip or 
 vefTcl fhall be returned to the faid port of London, from her 
 faid intended voyage, or at and upon the end and expiration of 
 the faid thirty fix calendar months, to be accounted as aforefaid,, 
 (which of the -faid times Hiall firft and next happen), well and 
 truly pay; or caufe to be paid, unto the faid C. D. his executors, 
 
 sdminiftratori.
 
 Appendix, No. V. 825 
 
 adminiftrators, or afligns, the full fum of 500/. of lawful money of 
 Great Britain, together with the fum of i 2 /. of like lawful money 
 per kalcndar month, for each and ever)' kalendar month ; and fo 
 proportionably for a greater or lefs time tlian a kalendar month 
 for all fach time, and fo many kalendar months as (hall be 
 elapfed and rua out of the faid thirty-fix kalendar months, 
 over and above twenty kalendar months, to be accounted from 
 the day of the date above written ; Or if, in the faid voyage, 
 and within the faid thirty-fix kalendar months to be accounted 
 as aforefaid, an utter lofs of the faid fhip or velTcl by fire, ene- 
 mies, men of war, or any other cafualties, fhall unavoidably 
 happen, and the faid ^. ^. his heirs, executors, or adminiftra- 
 tors, do and fliall, within fix kalendar months next after fuch 
 Jofs, well and truly account for (upon oath if required), and 
 pay unto the faid C. D. his executors, adminiftrators, or 
 alfigns, a juft and proportionable average on all the goods and 
 efFefts of the faid A. B. carried from England ou board the fa/d 
 fhip or veffel, and the net proceeds thereof, and on all other 
 goods and efFcdls which the faid y/. B. fliall acquire during the 
 faid voyage, for or by rcafon of fuch goods, merchandizes, and 
 effefts, and which fliall not be unavoidably loft ; then the above 
 written obligation to be void and of none cfFeft, clfe to ftand 
 in full force and virtue. 
 
 ^.B. (l 6.) 
 Sealed and delivered, 
 (being firft duly ftamped) 
 Jn the prefence of 
 
 No. VI
 
 ^^6 Appendix, No. VI. 
 
 No. VI. 
 
 Form of a Policy of hfurance upon a Life ^ for the Life 
 of the infured, by the Society for eqijitable 
 Assurances upon Lives. 
 
 J. HIS PRESENT INSTRUMENT OR POLICY OF INSURANCE, 
 
 witnefTeth, that whereas A. B. of in the 
 
 county of hath entered into and become 
 
 a member of tlve fociety for Equitable Assurances on 
 lives and furvivordiips, according to a certain deed of fettlement 
 bearing date the feventh day of September y which was in th« 
 year of our Lord one thoufand feven hundred and fixty-two, 
 and inrollcd in his majefty'a court of King's Bench at IVeflmin- 
 Jler J and whereas the faid fociety, relying upon the truth of a 
 certain declaration, dated this day of 
 
 made and figned by the faid A. B. touching the age, flate of 
 health, and other circwmftances attending the faid A. B. have 
 affured to the faid J. B. the fum of 
 
 pounds, to be paid to his executors, adminiftrators, or afligns, 
 after the deceafe of the faid A. B. whenfoevcr the fame fliall 
 happen ; provided the faid affured does not exceed the age of 
 
 years on this day of 
 
 has had the fmall-pox, and is not a/Ricled with any diforder 
 which tends to the fhortcning of life, (as in the faid declaration 
 more fully is fet forth), at and under the annua! fum or pre- 
 mium of 
 
 And whereas the faid alTured hath executed the covenants 
 ufually entered into by members of the faid fociety, and hath 
 paid fuch premium for one whole year, commencing from the 
 date of thefe prefents : Now we, whofe names are hereunto 
 fubfcribed, and feals afidxed, being two of the truftees of the 
 faid fociety, do, for ourfclves, and our afligns, truftees of the 
 faid fociety, covenant, promife, and agree, to and with the 
 faid affured, and the executors, adminiftrators, and tihgns of 
 the faid affured, that if the faid affured, or the afhgns of the 
 faid affured, fliall yearly and every year, during the term of 
 this J^urance, continue to pay to the truftees of the faid 
 14 fociety.
 
 Appendix, No. VI. %.y 
 
 Tociety, or to any two or more of them, the annual Turn or pre. 
 miuni aforefaid, on or before the day of 
 
 in every year ; and fliall obfer%-e, perform, fulfil, and keep all 
 and fingular the covenants, articles, claufes, provifos, condi- 
 tions, and agreements, which on the part and behalf of the 
 faid aflured, are and ought to be obfervcd, performed, ful- 
 filled, and kept, according to the true intent and meaning of 
 the faid deed of fettlement : We, or our aflTigns, truftecs of the 
 faid fociety for the time being, will or fhall, within fix kalendar 
 months, after fatisfaftory proof fhall liave been made of the 
 death of the faid afTured, well and truly pay, or caufe to be 
 paid, out of the flock or fund of the faid fociety, unto the 
 executors, adminiftrators, or aiTigns, of the faid affured, the 
 full fum fo hereby afTured : Provided always, and it is hereby 
 declared to be the true intent and meaning of this policy of 
 affurance, and the fame is accepted by the faid affured upon 
 thefe exprefs conditions, that in cafe the faid affured fhall die upon 
 the feas, or fliall go beyond the hmits of Europe, unlefs hcenfc 
 be obtained from the court of directors, or fnall die by his own 
 hands, or by the hands ofjufticej or if the age of the faid 
 afTured does exceed years ; or if the faid 
 
 afTured be now afflifted with any difordcr which t^nds to the 
 fliortening of life ; or if the above-mentioned declaration con- 
 tains any untrue averment, this policy fliall be void. 
 
 In witcefsj See. 
 
 No. VII.
 
 \2B. appendix, No. VII. 
 
 No.VIL 
 
 form ef a Policy of Infurance againfi Fire. 
 
 By the Corporation of the Rcyal Exchange AfTurance of Houfss 
 and Goods from Fire. 
 
 1 HIS prefent inftrumentor policy of afTurance witnefleth, that 
 whereas y^. B- hath agreed to pay into the treafury of the cor- 
 poration of the Royal Exchange, London, for the affiirance of 
 
 from lofs or damage by fire. Noiv knoiu all 
 •menhy thefe preftnisy That the capital ftock, eftate, and fecurities 
 of the faid corporation fhall be fubjeft and Hable to pay, make 
 good, and fatisfy unto the faid affured, his heirs, executors, or 
 adminidrators, any lofs or damage which fliall or may happen 
 by fire to the faid goods aforefaid, (except fuch 
 
 goods as hemp, fiax, tallow, pitch, tar, turpentine, glafs, china, 
 and earthen wares, writings, books of accounts, notes, bills, 
 bonds, tallies, ready money, jewels, plate, piAures, gun-powder^ 
 hay, ftraw, and corn unthrefhed), within the fpace of twelve 
 calendar months from the day of the date of this inftrument or 
 pohcy of affurance, not exceeding the fum of 
 and (hall fo continue, remain, and be fubjed ami liable, as afore- 
 faid, from year to year, to be computed from the day 
 of in every year^ for fo long time as the faid affured 
 fhall well and truly pay, or caufe to be paid, the fum of 
 
 into the treafury of the faid corporation, on or 
 before the day of which fhall be in each 
 
 .fuceeeding year, and the faid corporation fliall agree thereto by 
 accepting and receiving the fame ; which faid lofs or damage 
 fhall be paid in money immediately after the fame fiiall be 
 fettled and adjufted j or otherwife, if the faid lofs or damage 
 fhall not be adjufted, fettled, and paid within fixty days after 
 notice thereof fhall be given to the faid corporation, by the faid 
 affiired, that then the faid corporation, their officers, workmen, 
 or afiigns, fhall, st the charge of the faid corporation, at the 
 end and expiration of the faid fixty days, provide and fupply 
 the faid affured with the like quantity of goods of the fame fort 
 and kind, and of equal value and gcodnefij with thofe burnt or 
 
 darnnified(
 
 Appendh^ No. VII. 5 
 
 iiamnified by fire. Provided always neverthelefsy and it is hereby 
 declared to be the true intent and meaning of this deed or 
 policy, that the faid ftock, eftate, and fecuritics of the faid 
 corporation Ihall not be fubjedl or liable to pay or make good to 
 the affured any lofs or damage by lire which Ihall happen by any 
 invafion, foreign enemy, orany mihtary or ufurpcd power what- 
 foever. Pro-Aded alfo, that tliis deed or pohcy fhall not take 
 place or be binding to the faid corporation, until the prcmiara 
 for one year is paid, or in cafe the faid affured fhall have already 
 made, or ftall hereafter make any other affurance upon the 
 goods aforefaid, unlefs the fame (hall be allowed of and fpecified 
 upon the back of this policy : Or if the faid y/. B. at the 
 time when any fuch fire fhall happen, fliall be in the poffefTiou 
 of, or let to any perfon who fhall ufe or exercife therein the 
 trade of a fugar-baker^, apothecar)--, chemift, colour man, dif- 
 tiller, bread cr bifcuit baker, fliip or tallow chandler, flable 
 kee-?r, innholder, or m.altftcr, or fhall be made ufe of for the 
 flowing or ffjeping of hemp, flax, tallow, pitch, tar, or tur- 
 pentlne ; but that in all or any of the faid cafes thefe prefents, 
 and eveiy claufe, article, and thing, herein contained, fhail 
 ceafe, determine, and be utterly void and of none effect, or 
 jotherwife fhall remain in full force and virtue. In witnefs 
 whereof, the faid corporation have caufed their common feal to 
 be hereunto affixed, the day of in the 
 
 year of the reign of our Sovereign Lord by the grace 
 
 of God, of the united kingdom of Great Britain and Ireland^ 
 King, Defender of the Faith, c5'f. and in the year af our Lord 
 one thoufand eight hundred 
 
 N. B. This policy to be of no forcti 
 if afligned, unlefs fuch affi^n- 
 ment be allowed by an entry 
 thereof in the bookS'of the com- 
 pany. 
 
 No. VIII.
 
 Ho 
 
 Appendix, No. VIIL 
 
 Vtfgtr V. Prff- 
 cili,l Ffp. Rep. 
 
 rS4j 
 
 The infuratice 
 ef noutrril .pro- 
 perty, povided 
 »r coiitiavtne no 
 p ilicy of tl>e 
 i'iate, will be 
 good, though iSe 
 court of Adrii- 
 rtltv pronounce 
 th.ct there was 
 good caiife for 
 rhc iei/.urc ot it, 
 hut order it to 
 ke rcttoicd. 
 
 No. VIII. 
 
 Cafes reported too late to be injerted in their proper 
 Places. 
 
 vj OODS, the property of perfons at Leghorn, were infured 
 on board the Fox, from Neio York to Gibraltar. — In an ac- 
 tion to recover for a lofs by capture, it appeared that the Fox 
 failed from New Tork on the ift of June 1803 for Leghorn, 
 with orders for the captain to touch at Gibraltar for informa- 
 tion on the fubjedl of war between England and France ; and 
 if, on his arrival at that place, fuch a war exilled, and he could 
 not proceed to Leghorn^ he was then to fail to Genoa, Naples, 
 or Palermo ; that at the time of the fhip's faihng from Neiu 
 Yorh, and at the tim:? of the capture, Leghorn w&% garrifoned 
 by French troops; that on the 12th of Jiily^ tite Fax wag 
 captured by a Br'it'ijh fhip of war, and carried into Gibraltar^ 
 where the Vice Admiralty Coyrt, after relloring the Fox^ and 
 all the cargo, except the goods infured, ftated : ' That, as it 
 ' appeared doubtftd, under all the circumllances, whether 
 
 * the property of the inhabitants of Leghorn was liable to be 
 
 * treated indifa-iminately as the property of Citizens of the 
 
 * French republic, the judge referved the final adjudication of 
 
 * the croods in queftion for fix months for further information 
 
 * refpeAing fuch doubts, pronounced for juft caufe of feizure of 
 
 * the fhip and goods, directed freight to. be paid to the captain, 
 
 * and the captor's expences to be charged on the goods fo re- 
 ' ferved :' That on the 20th ol Augnjl, a commiffion iffued for 
 the unloading and fale of the goods, and on the 14th of Febru- 
 ary 1804, a final decree was made direfting the value of the 
 goods to be reftored to the owners, fubjefts of the king of 
 Etrur'ia, and pronounced for juft. caufe of feizure. — It was 
 pbjeAed that, as it appeared by the provifional and final fen- 
 tences, that there was a juft caufe of feizure, this aftipn could 
 not be maintained, for though the underwriters infure againft 
 capture generally, yet this cannot extend to captures for juft 
 caufe by a Dritipj fhip, according to the do6trine laid dowa in 
 Kellner v. Le Mefurier {a) — But Lord Elknhorough, who tried 
 
 {a) Sup. 67;. 
 
 tlie
 
 Appendix, No. VIII. g , j 
 
 the cmk, faid, that when the Vice Admiralty Court pro- 
 nouaced for juft caufe of feizure, it did not adjudge that the 
 goods infured were condcmnable ; that this was a capture of 
 neutral property, the infurance of which contravened no policy 
 «f the ftdte, which conftituted the principal difference between 
 this cafe, and that which had been cited. 
 
 An infurance was made by the captain of a (hip in the Khg v. Clor-er, 
 ^ytVan flave trade, «' on his commilhons, privilejres, Sec. as » ^'- ^- »o6. 
 «' may be hereafter valued." — It appeared tliat the infured, Thecommi(r,,,n. 
 befides his wages, was entitled, for his trouble in purchafing and privileges of 
 flaves on the coaft of Jfrtca, and difpofing of them again in ftiTp'iTthc j/r* 
 the IVeJl Indies, to 2/. per cent, on the grofs fales, and j/. for '^'"' ^^'''^ ^'^•'^^ 
 every no/., after deduding the above 2/. per cent, mid the pri- """^ ^^ '"'""'^ 
 vileges and commiffions of the other officers.— It was objeded 
 that the commiflions and privileges of the infured, being in the 
 nature of wages, the policy was void, within the authority of 
 the cafe of fVebJler v. De Tajfet (a) —But the court determined 
 that the rule which prohibited the infurance of the wa<res of 
 the mariners did not apply to the captain ; and therefore tliat 
 the plaintiff was entitled to recover. 
 
 B. 
 
 In this CJ.fe, the only queflion was, whether rice was Scou 
 
 tcrrtt within the meaning of the ufual memorandum. — On the '^"'.'/»n, 2 N. 
 
 trial, the ufage was proved to be againft its being fo con- ^^' "^' 
 
 fidered. — The court held, that the common fcufe of the words Rice is not com 
 
 ought to decide, unlefs a clear ufa^jf to the contrary were wi'l^'othe mean- 
 
 ° •' injot the eom- 
 
 Ihewn ; and that here the ufage accorded with the plain fenfe mon meiuoran- 
 
 of the words, to fliew that rice was not intended, to be exempted **""*■ 
 
 from partial lofs [b). 
 
 (a) Sup. 90. 
 
 (b) Vid. Ma/on v. Siurray, fup. 326.
 
 832' ' Appendixy No. VIII. 
 
 Thellufon and In an a^ion on a policy on goods from Jamaica to Londbd 
 
 ox\\eci\r.SIieddon, ^^ recover for a lois by capture, it appeared that the fhip, on 
 
 2 N. R. 225. ■' ^ ^ ^ 
 
 her voyage, was captured, and the next day re-captured and 
 
 In ail aaion for ^,i.ouorbt back to Jamaica, where, no perfon claiming on behalf 
 
 a partial lofs, ° . . 
 
 upon a capture of the infured, the Admiralty court ordered a fale to pay the 
 
 and re-capture, falvag-e and expences. — The proceedinp;s in this court were not 
 
 the pUinflfF mult *',,,,. -rr 1 j- • , , 
 
 produce tli<; pro- proved by the plaintitts, but credit was given to the under- 
 cecdings of the •^yriters for the fum received cut of court by the agent of the 
 to TheV^^ilie'^ infured, and the difference only between that fum and the in- 
 amount of the voice price of the cargo was claimed. — It was objefted that the 
 Sncfrfo"rthkh plaintiffs could not recover for this partial lofs without duly 
 the underwriters proving the proceedings in the court of Admiralty, by which 
 alone the amount of the partial lofs could be afcertained. — But 
 Q\r James Maiisfieid, C.J. v/ho tried the caufe, overruled this objec- 
 tion, and a verdid. was found for the plaintiff for the partial lofs. 
 — Upon a motion to fet this verdidl afide, and grant a new 
 trial, the court were of opinion that, though a capture limply 
 proved, be evidence of a total lofs, and the reducing of it to a 
 partial lofs might be faid to come in by way of defence ; yet, 
 that, where the plaintiff in the fame breath proves a capture and 
 re-capture, there is an end of the total lofs, and he can only 
 claim as for a partial lofs, in which cafe he could legally make 
 out this claim only by the produdlion of the proceedings of the 
 Admiralty court, whi<ih had fixed the amount of the falvage 
 and expences to v/hich the underwriters were liable. 
 
 JS'eek'withy/.Syde. In an adion on a policy on a fhip, " at and from FiSou in 
 
 hotkam, «f Nova Scotia to Liverpool,* it appeared that the fhip arrived at 
 
 "^'"^' ^* Pi3.ou on the icth of Ma^^ 1803, and having failed on the voy- 
 
 A wiriicis who age infured on the 2d of September^ met with ft or my weather, 
 
 ^n^ (^py 3?^|^(. and was dbliged to put into Halifax on the 9th of Oaoher, fo 
 
 enaniiiied, to difabled as to be unfit to profecute the voyage. — It v/as ob- 
 
 ihcw that, ac- :g^g(j jl^at the fhip when fhe failed from Piaou was not fea- 
 
 cording to the •* ^ . , . j„.^ 
 
 ftatcmtiuof an- worthy ; and, to make tins out, a depofition of a man who fur- 
 other witiieis, veved her on her arrival at Halifaxy and who defcribed a great 
 
 who h:id exa- ,^.-iit i • ^ it 1 
 
 mined her (he many deficiencies he ditcovered m her, was read. It was ihea 
 
 was, or was not, propofcd to call fome eminent furveyors of fliips, who had- 
 
 A letter u7n, never feen the fliip in qucflion, to prove that a fliip in the flate 
 
 whicti it nii-ht defcribed in the depofition, could not have been fea-worthy 09 
 
 t^ih"" ui t ^S- the 2d of September.— It. was objcded, that this would be aflcing- 
 
 wijjn^oi; niigh: 2* tha
 
 >»i::cis. 
 
 Append! Xy No. VIII, S3 3 
 
 the opinion of witnefTes, on an ex part: ftatement, which rr'-jht l>ed't:»in«l by 
 befalfe.— But Lord ElUnboyough, who tried the caufe, over- pi^.T.'nec^noi 
 ruled the objeAion, upon the ground that the jury might be b? con.n^unicit- 
 aJifted in matters of il<ill and fcience by the opinion of perfons *'* ' ' ^^^ under- 
 particularly converfant with tlie fubjedt. — Another jxround of 
 defence was, that before the poHcy was etTedled, a letter had 
 teen received from the captain of the fhip, dated at PiS.u the 
 nth of May, in which he ftated the damage the Hiip had fuf- 
 taineJ on the outward voyage, and defcriijing her as buing un- 
 fea-worthy and in need of great repairs, which letter ought to 
 have been communicated to the underwriters, as it would have 
 fhewn that the fliip mull be detained a much longer time than 
 would be necciTary to take in her cargo ; which would have 
 the efreft of turning a fummer rifle into a winter one. — But Ijord 
 Elknborough held, that if it were neceflary to difclofe this letter, 
 as indicating the time when the fliip might fail, it would in all 
 cafes be neceffary to inform the underwriters where any re- 
 pairs are wanting ; that if they wiihed for information oa 
 this fubjeft, they might have afked for it ; and if they would 
 only infure a voyage during a particular fcafon, they ought to 
 require a warranty that the fhip fhould fail by a certain day ; 
 and therefore that the communication of the letter was ashttle 
 neceffary to (aew the probable (lay of tl'.e fhip at PiUou, as to 
 ftiew whether fhe was fea-worthy at the commencement of the 
 voyage. 
 
 In an aftion on a policy on the Hiip Ganges and her f^ores, to H^'kn v. C/'tm~ 
 and from the Southern Whale f.fhery, with liberty to feek, join, P''^"' ' '^''""^^• 
 and exchange convoys, it appeared that the fhip fiiled from the ' 
 
 Doiuns under convoy of the Fury fioop of war, on the I2th of ^n adjuit ncni 
 December 1805 ior Port/mouth, and in her pafTage was captured. J^"^, , ^^,'1 ^,|-_ 
 --The defence was, that a letter from the captain, dated the dtHire uf :.ll 
 Kthoi December, ftating that he was to fail under convov of f^'^'^- " ""' t""- 
 the Fury, and received on the 6th, had not been communicated 
 to the underwriters before effecting the policy, which was not 
 till the X2th or [3th o( Jan-ajy, the broker merely fiying, 
 that the fhip had failed about three weeks — To this twD an- 
 fwcrs were given ; ifl,that the defendant on the i 2th of AlarJj 
 jSc6, after reading this letter, together with feveral others from 
 the captain, while a prifoner in France, giving a full account of 
 all the circumftances of the cafe, hadadjulted the policy as for 
 a total lofs, which it was contended was conclullve ; and 2dly, 
 that the Ittter itfelf was not material. — Lord ElUnborou^h, 
 VOL. M. A A who
 
 834 Appendix, No. VIII. 
 
 who tried the caufe, faid, — " There are two queftions here to 
 be confidered ; as to the conclufivenefs of the adjuftment, and 
 as to the materiahty of the letter. The cafes are clearly drftin- 
 guifhable, where, upon a dlfpute, the money is paid, and where 
 there is only a promife to pay. If the money be adlually paid, 
 it cannot be recovered back, without proof of fraud ; but a 
 promife to pay will not, in general, be binding, unleis founded 
 on a previous liability (a). An adjuRment is an admiffion, on 
 the fuppofition of the truth of certain fafts ftated,thatthe infured 
 is entitled to recover on the policy. Perhaps, if properly ftampedj, 
 it might be declared on as a promifTory inftrument. Here it is 
 a mere admiflion, and there is no confideration for the promife 
 it is fuppofed to prove. An underwriter mull make a ftrong 
 cafe, after admitting his liability ; but, until he has paid the 
 money, he is at liberty to avail himfelf of any defence which 
 the fafts or the law of the cafe will furniih." adly, Refpec- 
 ing the letter, his lordfliip direfted the jury to confider whether 
 itwould have had the effeft of inducing the underwriters to regard 
 the Ganges as a miffing fliip, and require an increafed premium ; 
 or, whether it might not have excited their curiofity, or led them 
 to fome ufeful information. — The jury found a verdift for 
 the plaintiff. 
 
 R,iiie V. BeUt The (hip Rio Nova and freight were infured '• From her 
 
 9 ^''/^ '95- " loading port or ports on the coaft oi Span to London, with 
 
 A fiiip ni:.v " liberty to touch and Jlay at any port or place whatfocver, 
 
 trade, where (he « without being dccmed a deviation." — It appeared that by the 
 
 tTuch ' withou*i ^""S continuance of the voyage from port to port in Spain, and 
 
 cxpitfs peniiif- the difficulty of obtaining pruvifions on the coaft at that tiuie, 
 
 th1s'(>cc:<ii''Mi MO ^^ (hip's provifions ran ver)' ihort. which obliged her to put intp 
 
 oel.iy,dfviaiion, Qihraltar ioT ?l fupply : that while the fhip lay there for that 
 
 \\^_ purpofe the captain received on board fome chefts of dollars on 
 freight, but that this occafioned no delay beyond that which 
 
 (a) The adjuftment has been holden to amount Xo prima fade 
 evidence of all «-bp fafts which conftitute a previous liability, 
 fubjedl to be impeached by fraud, or mifconception cf the law 
 or fad. Vid. fup. b, I. c. 14. § 3. where the effed of an ad- 
 iuftment is difcuffed at large. 
 
 was
 
 Appendis^ No. VIII. 835 
 
 was juftified by the necefiity. — In an aftlon to recover for alofs 
 bythe perils of the fea off the coaft o(Corn'waI'.,\i\ the home-ward 
 voyage,it vras objcfted on the part of the underwriters on the au- 
 thority of St'ttt V. WanMU and Sherijfw. Potts, that the taking 
 in of theadditional cargo of dollars at G':l>i-jltar, where there was no 
 liberty to/r/z^z-javoidedthe policy. — But the court determined that 
 as this occafioned no delay, nor any increafe or altei-ation of ihe 
 rifk, the plaintiff was entitled to recover. — Mr. Juftice La'wrense, 
 in delivering his opinion, feemed to queftion the authority of 
 Stkt V. IVarM.—Mr. Juilice I e Blanc faid, '♦ That the reafon j^ ,;j,g^fy ,^ 
 why a liberty is fometimes exprefily referved for a (hip to touch, tiadc it given 
 ftay, and trade, in the courfe of the voyage, is not becaufe this is ThefwV.'no'tTo 
 impliedly excluded in every poUcy in which no fuch liberty is auniorue ihe 
 referved, but to juftify the (klay in trading there ; and that, 
 where no delay is occafwned by the trading, he could fee no 
 reafon why the court fliould imply a condition which the partie« 
 had not made." 
 
 truiit. 
 
 A policy, dated the 4th ai .Ut^uJI 1803, was effeifled on a S.,rir'v. HUci, 
 
 quantity of oil, the property of the plaintiff, an /Imerlcun citizen, ^ "J ' ^' 
 
 refident there, "At and from New Tork to Havre dc Grtice,'^ on Aquaniityoff.il, 
 
 board the Hannah, an Ameneun fliip, duly documented. The '„''/^,^'/^7J;,'7„''/^^ 
 
 fhip failed on the 4th oi July 1S03, and in the courfe of her » nfutrii ihip, n 
 
 voyaee was arretted on the 17th and fent into Bri/lol, where '">""<; ''o-" * 
 
 fhe arrived on the 30th. The Court of Admiralty, on the Sth ^..^^jy., ^^,^1. 
 
 of Oao'-er, ordered the (hip and cargo to be rellorcd, fubjed The (h-p ii 
 
 ' '^ n 1 aneltcd and 
 
 to freight and expences, but without colts or damages ; except i,„,ught lu 
 
 a box of books.fome bar'.:,and fome whalebone, which we; e con- ^^'^^^';'J'.^' ^^''^"^^ 
 
 'demned as French property. The agents of the infured aban- „„ t.u.ird. The 
 
 don-d the oil in queftion on the 14th of OHol^er. 1 hey were f^^P ^"^ c.rgc 
 
 apprized of the detention of the veffel and the iuit m the Ad- ccpt ti.c encmv • 
 
 miraltv foon after they refpedively took place; but were not go.df, «, i h.r. 
 
 parties to the fuit, nor did they know of the reiteration ot the -j.,,^ p„,^ ^ 
 
 fliip and cargo till the 17th o^ OHober, three days after the ^I^J'J^jj'^^^J''.^ 
 
 abandonment. On the 6ih oi Sepumber, the ^nV//7j Govern- Z*',J;,X\,^l' 
 
 ment declared Havre de Grace to be in a ftate of blockade, undci hl..ck..<-c. 
 
 Theca;,tainofthei/^«n^A refufsrd to proceed to Havre, and ^".j;"; 'p^J'^S 
 
 returned to Neii< Toih, leaving the oil at Brijiol, where it was ih.u.e, :— Ti.c 
 
 fold by agreement without prejudice to the queltiou ; and tnc ,^^^, . ^,_^ ^^^^_ 
 
 lofs amounted to W- ^^' 8^- Z^'" ''^"'- "^ ^^^"^^ ^^" ^^'S^' T^m "^'o u':";; 
 
 and expencesof reftoration amounted to ao/ \<)ut,er .w/.— Upon ^^^^ ^^^^^ ^^^^ 
 
 .... this
 
 836 
 
 Appendix^ No. VIII. 
 
 age, and would 
 entitle the iu- 
 fured tc a totol 
 Icils : — But an 
 ai>;iiil(inment, 
 fivi *ieits after 
 rh<' i'lock-idehad 
 rendf cd 'lie fur 
 ther p'ofi^cu'ion 
 of tne voyage 
 iraprafticitble, 
 was our of time, 
 and the infured, 
 therefore, enti- 
 tled ro a j(artul 
 lofs only. 
 
 this cafe it was objefted on the part of the underwriters, ift. 
 That the lofs did not arife from any rifk within the policy ; for, 
 as fome of the goods were enemici* property, the detention ivas 
 lawful I and that the poHcy did not proted the infured againft 
 the efFeds of a lawful Br'tetjb capture or detention, zdly. That, 
 fuppofmg the plaintiff entitled to recover any thing, it could 
 only be a partial lofs, the abandonment being out of time. — The 
 Court dctcrm ued, ill. That the mere zSi of carrying enemies' 
 goods on board was no breach of neutrality ; that the Ameri- 
 eaii was at liberty to purfue his commerce with France., and to 
 be the carrier of goods for French fubjeds, at the rifle, indeed, 
 of having his voyage interrupted by the goods being feized, 
 or the veirel itfelf detained ; that the indemnity fought was 
 not fecured by the policy to an enemy, or to a neutral forfeit- 
 ing his neutrality ; but to a neutral, as fuch, againft the confe- 
 quences of an a£l juftifiably done in the exercife of his neu- 
 tral rights, and as juftifiably controlled on our part, in the ex- 
 eicife of our belligerent rights againft enemies' property found 
 on board ; and that the voyage and the commerce in which 
 the veflel was engaged not b^ing of an hoftile defcription, nor 
 in any manner forbidden by the law or policy of this country, 
 there was no ground for the firft objed^ion. 2dly, That the 
 lofs of the voyage, (the only defcription of lofs that could be 
 contended for in this cafe) was occafioned by the detention in 
 qucfticn, which contiui ed till after the blockade, which ren- 
 dered the further profecution of the voyage imprafticable, 
 took place, would have entitled the infured to recover as for 
 a total lofs, if he had abandoned in due time : but that the 
 abandonment on the i6th o^OBobeKf above five weeks after the 
 blockade oiHavre (the lateft event to which the lofs of the voyagt 
 could be referred) had been publicly notified, was not in due 
 time ; and that, therefore, the amount of the lefs muft be re- 
 ftriiSted to 20/. i9r. per cent, the amount of the freight and ex- 
 pences, to which the infured was fubjefted by the fenteoce of 
 the Court of Admiralty. 
 
 N<,rn:,ll V. St. 
 
 Burhe, 2N. R. 
 
 Afliip isliecnfed 
 by the India 
 6vw/a;y' for three 
 
 The (hip Venus was infured « At and from the Cape of 
 " Good Hope to Botany Bay, Port Jackfon, and all other porta 
 « and places in New Soaib IVaks, &c. and all places beyond 
 « Cape Hamt the Eajl Indies, Perfta, Chlnoy the north-weft 
 " coaft of America, and to all places whatfoever after her de'- 
 
 " parture
 
 Appendix^ No. VIII. g^jj 
 
 " parture from the Cape of Good Hope, and at all limci, until years to take a 
 
 •* her fafe arrival and fnal dt 'charge at Canton ; with leave to '^^'^^q '[1* ^". 
 
 ** fell, refell, &c. and to load, unload, &c. at any port or i.'r nouh wert 
 
 *• place, without inquirinfj into the reirularitv of her proceed- •^^^""f '^"'''"•'» 
 
 f ■ . . . Itierclotradtand 
 
 " ings, and to continue unti^l her arrival as above ; with leave to pu-chafe i mw 
 
 ** touch and trade at all ports and places in the E fl In/iicT, "'K"! '° f''' 
 
 *- Per/:u,and China, in whatever latitude or longitude, jnrticu- r^t.-ndihcrrdii. 
 
 " larly beiween CaU Htrn and Kamjkatha, and all iHaiKls, after ^^'^' \'^'''**^^ 
 
 J ' -^ remit lie pro- 
 
 ** her departure from Botany Bay ; and, after her liual difcharge, < '■'■<<• lo F-gUmd 
 
 " on her homeward voyage to England.'' (»> — A licence was pl^y"Virtaiu*rv" 
 
 obtained from the Eajl In ia Company, dated the 29lh o^Ofiolier T >» ih d ..ils to 
 
 iSoo, forthefaid (hip, for a voya^re into the Pacific O fan, »''-•'> tf..».iioin 
 
 to fell her cargo on the north-weft coaft of /Ime ica, aitd frona r* unu i .Botany 
 
 thence to Japan, Koma, and Canton, and there difpofe of ^■'^ '"i^^ ^■"'* 
 
 her cargo, obtained on tlie north-wefl coaft of America, and tinnce, Hut it 
 
 remit the p^oceed^ t!iror.gh the Company's treafury to London, "1"^' ^^y^,^y. 
 
 and then return to En^lami ; but not to touch at any place in (hf wu confi- 
 
 China but Canton, with a provifo that it fliould not authorize '^"'"^ '' l'^'''"^ 
 
 ... r- • c ab.indon(.d all 
 
 the Venus to continue within the Company's limits for more iniciwionof pro- 
 
 than three years. The Venus arrived at IJcf.niy Bay in Oao er ^'"'''"8 '" ^''"'- 
 
 1 So r, from whence (he failed to Otahtite tor a cargo of pork, nr. an :.ban(lon- 
 
 witb whith fhe returned to Botany Bay, and agan. failed from me^>rof the vay 
 
 thence m February 1803, but was never heard ot more. — co..iinu.rt 1 gal, 
 
 Upon the trial it was objected on the part of the defendant though r'f»»nole 
 
 that it was evident from the date of the fliip's leaving Botany ^''^'^^^f ,„ ^\,ce. 
 
 Bay the fecond time, that the voyage defcribed in the licence became im^jrac 
 
 and the policy had been abandoned, and that therefore the un- ilnrii-rwriteu 
 
 derwriters were difcharged — Sir James Mar.sjield. C. J., who were held liable. 
 tried the caufe, left it to the jury to confider whether it was 
 ptofllble for the (hip. after leaving Bolwy Bay the fecond time, 
 to go to the north-weft coaft of America, from thence to Can- 
 ton, and from thence out of the Company's limits, on her return 
 to England, within the three years limited by thehcence. — The 
 jury found a verdift for the plaintjfF.— Upon a motion for a 
 new trial, it was contended, on the part of the defendant, that, in 
 the cafe of a deviation, the terminus ad quern remains, but the 
 courfe thither is changed ; but that, where the terminus ad 
 quem is changed, it is not a deviation, but an abandonment of 
 
 («) This is a fhort abftratl of the farago of words in which 
 ihe voyage in this inoft fingular policy was defcribed. 
 
 A A 3 tlie
 
 838 Appendixy No. VIII. 
 
 the voyage ; and that fuch an abandonment, at whatever time 
 it takes place, whether before or after the an ival of the (hip 
 ^ at the dividing point, difcharges the underwriters. That in 
 
 this cafe, the terminus ad quern was Canton^ and this being 
 abandoned, the terms of the licence were violated. But the 
 court determined that the verdift Ihould flaad. They held, 
 that if it fliould happen that the fliip, could not, by the dif- 
 pofal of her cargo, raife funds to purchafe furs or other goods 
 oji the north-well coaft of America, or in the Pacific Oc an, to 
 make it worth while to go to Canton, there was nothing in the 
 iicence from which it muil of neccffity be itoplied that flie was 
 to go to Canton at all events.
 
 GENERAL INDEX. 
 
 Ab. 
 
 Page. 
 
 ANDONMENT. 
 
 Nature of - . . ,^ 
 
 - 559 
 Whethercoevalwlth infurance - . jb. 
 
 Probable origin of . . - c6o 
 
 Whether carried too far . . Jb. 
 
 In what cafes it may be - - 562,580 
 
 Upon what principle . . ib. 
 
 When permitted in France - - ib. 
 
 Upon capture and arreji * ' S^Z 
 
 When it may be - . ib. 564, 5, 836 
 
 It may be upon an arreft or embargo by a friendly 
 
 power - , . . ^6^ 
 
 But not upon a fniall temporary hindrance - 569 
 
 When prevented by recapture - - ^6^ 
 
 When not - . . 566, 568 
 
 A capture does not neceffarily make a total lofs, 
 
 nor recapture prevent it - - 565, 579 
 
 The infured is not obliged to abandon - 564, 570 
 
 Upon a luager the infured cannot abandon - - 564 
 Wheth r a lofs be total or not depends on the 
 
 final event - - . 565, 571 
 
 They'wj ^2^ //Ww continues for ever - - 573 
 
 The infured cannot, by abandoning, turn a partial 
 
 into a total lofs - - - jjo, 5S3 
 
 Nor can he abandon but while it is a total lofs 57 1, 574 
 Nor after the fhip's arrival, unlcfs the voyage be loft 57^ 
 He cannot abandon five weeks after a blockade had 
 
 rendered the further profccution of the voyage 
 
 impradlicablc - - . 836 
 
 While the /hip is in the enemy's hands it is a total 
 
 lofs - - - - 57^ 
 
 A A4 lim
 
 INDEX. 
 
 ABANDONMENT— fow/inW. Page. 
 
 Upon capture and arreji. 
 
 But the property reverts upon a recapture - 573 
 
 There is no veiled righc to a total lofs till abandon- 
 ment - - - - 575 
 
 If the fhip be recovered after a long detention, it is 
 not a total lofs, even on a wager policy - ib. 
 
 When the uiip is faie, and the voyage not loft, the 
 infured cannot abandon - - 577 
 
 If, upon a recapture, the captain fell the fliip and 
 cargo, as being the beft for all concerned, yet 
 the infured may abandon - - 57^ 
 
 It the captain purchafe from the recaptors, thcfum 
 paid is only a partial lofs - .581 
 
 Bnt the money paid on fuch purchafe cannot be 
 charged to the underwriters, being a ranfom 596, 59S 
 
 Jn other cafes - . - - 582 
 
 ShipwTeck is^riOTijyirnV a total lofs - ib. 
 
 But a (tranding, of itfelf, is not fo - - ib. 
 
 No injury, however great, is a total lofs, if the 
 
 fhip arrive - - - 5^3 
 
 Or furv'ive the term infured - - 584. 
 
 But whenever the voyage is loft, the infured may 
 
 abandon - - - 5^5 
 
 As where a fliip cannot be repaired, or another 
 
 procured - - - ib. 
 
 Or where the cargo is reduced in value to lefa than 
 
 the freight _ - . 5S7 
 
 Within ivhai time it may be - - 589 
 
 In foreign countries - - - ib. 
 
 In Englanl - - - - ib. 
 
 At what time the notice muft be given ib. 592,835,6 
 EfFeft of ngleding to abandon - - 590, 593 
 
 Till notice of the lofs, the captain's afts will not 
 
 prejudice the right to abandon - - 593 
 
 When the captain fliall be deemed the agent of the 
 
 underwriters - - ib. 
 
 What adl of the infured will preclude his right to 
 
 abandon - - - 593 
 
 Hemufl makehis eleftion fpeedily - 594, 836 
 
 He muft notfirft treat the lofs as partial, and then 
 
 abandon - - - ib. 
 
 The inlurers requiring an abandonment of too much, 
 
 will not excufe the want of an abandonment - 595 
 
 If
 
 INDEX. 841 
 
 ABANDONMENT— fon/Znwf^. Page. 
 
 Within what time it may be. 
 
 If, in the cafe of a total loss, the underwriter prevent 
 
 an abandonment, they muft pay a total lofs » 598 
 When the infured may abandon upon a prefumcd 
 lofs - - - 5P5 
 
 Form of - - - ib. 
 
 There mufl be fome notice of it - ib. 600 
 
 There is no particular form of it - - 599 
 
 It muft be expHcit - - - ib. 
 
 And unconditional - - - 601 
 
 And not for part - - - 600 
 
 When a particular article may be abandoned - ib. 
 
 Efe^of - - - 601 
 
 How it transfers the property - - ib. 
 
 To what time it relates - - lb. 
 
 Whether the abandon iiient of a fliip transfers the 
 
 freight - - - 602 
 
 It can only be in proportion to the fum infured 603, 60S 
 What (hall be the concurrent claims of infurers, and 
 
 borrowers on bottomry - - ib. 
 
 The Uiiderwriters, and not the lender, on bottomry, 
 f have the legal title - - - 60S 
 
 To whom the freight earned after abandonment fhall 
 belong, where ihip and freight are feparatfly in- 
 fured. and feparately abandoned 604, 6o!5j 607, 60S 
 If there be a policy on fhip and cargo, and a 
 feparate one on each, how the claims of the differ- 
 ent fets of underwriters fhall be afcertained - 6zg 
 What fhall be the claim of the underwriters, where 
 the infured receives compenfation after aban- 
 donment - - - 611 
 Or where the fhip arrives fafe - - ib. 
 Or the thing infured is recovered - - ib. 
 In fuch cafe, th« infured is not bound to take it back 61 j 
 Abandonment once made and accepted is irrevocable 6 1 j 
 But if it be not upon a fuflicient ground, it will be 
 void - - - - ib. 
 
 Difpofal of the effeds abandoned - -614 
 
 Duty of the infured to fave all in his power - il)- 
 
 Duty of the captain and failors - - ^"j'l 
 
 The captain's power over the things faved - - >b. 
 When he fhall be deemed the agent of cither party - ib. 
 
 ABANDON-
 
 U2 
 
 INDEX. 
 
 Fage. 
 ABANDONMENT (of the voyage.) 
 
 What flaall be - - - 615 
 
 What not - ■ - • 837 
 
 ACCEPTANCE OF BILLS, 
 
 When this will conllitute an infurable intereft: - 30S 
 
 ACTION. 
 
 As to the form of action on a pohcy of infurance, 
 Vid. Proceedings {Declaration), 
 
 ADJUSTMENT OF LOSSES. 
 
 What - . - - 617 
 
 What {hall be deemed a fair indemnity - - 648 
 
 How the quantity of damage is afcertaincd 6 1 8 
 
 Upon a valued policy - - - ib. 
 
 Upon an open one - - ib. 
 
 Where the lofs confifts of an entire individual - 619 
 
 Where part of the goods are faved - - ib. 
 
 Where all are damaged - - - 6i() 
 
 Where only one of feveral articles infured is put in rifle ib. 
 * Where the policy is free of average under fo much 
 
 fer cent. - - - ib. 
 
 How the lofs Jhall be appreciated - - ib. 
 
 What is deemed the true value of a thing - ib. 
 
 The firft price is not always the true value - 621 
 
 Different modes of appreciating a lofs r - ib. 
 
 How goods fhall be valued in fettling an average - ib. 
 How this is done in France ' - ib. 
 
 How in England . - - 62Z 
 
 The infurer is not to be involved in the rife or fall 
 
 of the market, or the courfe of exchange - ib. 62.8 
 How a fhip fhall be valued - -623 
 
 How damage to goods fhall be appreciated - ib. 
 
 The rule is the fame in a rifmg or falling market -626 
 What is the mcafure of indemnity fecured by the 
 
 policy - - - 628 
 
 The amount of the lofs ought not to depend on 
 
 after [peculations - - - 620 
 
 The relative prices of found and damaged goods 
 
 mull be taken from the grofs produce, not from 
 
 the net proceeds - - - ib. 
 
 The computation mufl: be made upon the real inte- 
 
 rcfl, not th^ value - ~ " 6$l
 
 INDEX. 
 
 ADJUSTMENT OF LOSSES—continufJ. page. 
 
 Effed of ... 632 
 
 It \s prima facie evidence againft the underwriter - ib. 
 This rule objedled to - -633 
 
 Vindicated - - - ib. 
 
 But the claim may be impeached after adjuftment - 654 
 An adjuftment is not conclufive, though made upon 
 
 a full difclofure of all fafts - - 83"? 
 
 An adjuftment may be given in evidence in an adlion 
 
 on the policy - - - 639 
 
 How the claims of different fets of underwriters fhall 
 
 be adjufted upon an abandonment - - 609 
 
 ADMIRALTY. 
 
 Vid. Court of Admiralty . 
 
 ADMISSIONS. 
 
 The neceflity of mutual admiffions in anions on com- 
 mercial queftions - - - 703 
 
 AGE. 
 
 Warranty of - - - - 7/^9 
 
 "Vid. Li'ves {Injurance iipcn.^ 
 
 AGENT. 
 
 Where he may infurc in hi* own right ■. 1 1 jj, 310 
 
 His authority - - 2j;6 
 
 A fliip's huft)and, as fuch, is not an agent, fo as to 
 enable him to infure - - 297 
 
 In what cafes an agent is bound to infure for his prin- 
 cipal - - - - ib. 
 
 In what cafes an aAion will lie againft him for negli- 
 gence - - - ib. 
 
 He ishable, if he Hmit the broker to too fmall a pre- 
 mium - - - 298 
 
 Even a voluntary agent is liable - - ib- 
 
 An agent is liable if he do not furnifh the broker v.-iih 
 all his inftruftions - - 299 
 
 How the principal ftiull recover in an adtion againft 
 an agent - - - ib. 
 
 Duty of an aeent as to reprefentations made to the 
 underwriters - - 45' 
 
 Any fraud or concealment by him will avoid the 
 policy though the infured be innocent •• - 300 
 
 J3ut if he a6t in the ufuul mani.er it is fufiicicnt - ib. 
 
 He 
 
 843
 
 IN D E X. 
 
 AGENT— conlinued. Page. 
 
 He ought not to be an underwriter - - 301 
 
 If he pretend that he efFeded a policy, trover will lie 
 
 againft him for it, aud the lofs recovered - - ib. 
 
 A general Agent may infure without a particular 
 
 order - - - - 218 
 
 Where the maflcr fhall be deemed the agent of either 
 
 party, Vid. j^handonment {D'ljpofal of effect). 
 Whea a general agent may infure in his own name, 
 
 Vid. Policy {Form — -Name ofhifured). 
 What fhall be fufficient proof of the authority of an 
 
 agent to underwrite for his principal - - 707 
 
 ALIEN. 
 
 When a natural-born Britl/Jj fubjed may become a 
 citizen of a foreign ftate for the purpofes of trade - 71 
 
 ALIEN ENEMY. 
 Vid. Enemy. 
 
 AMERICA. 
 
 Difcovery of - * * '3 
 
 How the trade between tha Jlx erica ns and the JBriftJh 
 fettlementa in I/idia is regulated, Vid. Foyage {ilh- 
 galky of) . 
 
 ANIMALS (death of). 
 
 When a lofs within the policy - - ^5 j 
 
 Vid. Lofs {By the death of animals). 
 
 APPORTIONMENT. 
 
 When the premium may be apportioned, Vid. Return 
 of Premium {Ri/h not commenced). 
 
 ARBITRATION. 
 
 Vid. Proceedings {In luh at courts). 
 
 ARMED NEUTRALITY. 
 
 Vid. Northern Confeuera y, — Warranty t {Neutrality). 
 
 ARREST OF PRINCES. 
 
 Y'li. Lofs {By detention of princes). 
 
 ASSIGNMENT (of fire policy). ■■ ;;; 
 
 How madC;, Vid. Fire, \Infurance agahtfl). 
 
 u AT
 
 INDEX. 
 
 I 
 
 Page. 
 « AT AND FROM." 
 
 How thefe words are conftrued, Vid. R'l/h, (duration of). 
 
 Under a policy " at and from ^ an ifland, the fl»ip is 
 
 protected from port to port in the illar.d - 35S 
 
 AVERAGE. 
 
 Vid. Lofs {By a-'erj^e cotitr'tbutisns). 
 
 AVERMENT. 
 
 Of intereft, vid. Proceedings {Declaration), 
 Of lofs, vid. ib. 
 
 BANKRUPT. 
 
 Hov7 an infured or a lender on bottomry fliall claim 
 againfl the eftateof a bankrupt infiirer or borrower 73 i 
 
 BANK SAUL. 
 
 Vid. Ri/h [Onjbip)— Proceedings ^Trlal). 
 
 BARCELONA. 
 
 Ordinance of - - . ao 
 
 BARRATRY. 
 
 Vid. Lofs {By Barratry). 
 
 BEANS. 
 
 Are comprehended under the word corn - - 223 
 
 BELIEF. 
 
 Whether matter of belief amounts to a reprefentation, 454 
 
 Vid. Reprefentation, 
 
 BILL OF HEALTH. 
 Vid. Documents, 
 
 BILL OF LADING. 
 
 Vid. Documents, — Tntereji (Infurahle). 
 
 When the indorfee of has an infurable intereft - 105 
 
 BILL OF PARCELS. 
 
 When proof of intereft - "7^9 
 
 BLOCKADE. 
 
 Commerce with a place blockaded - - So 
 
 The cffeft of a notification of a blockade So. Si, 835 
 
 Of the port of deiUnation, when a lof« of the vopgc '^^^,6 
 
 EOTTCMR.Y 
 
 845
 
 846 
 
 INDEX. 
 
 BOTTOMRY AND RESPONDENTIA. Page. 
 
 When an infurable interell, Vid. Intcrejl {Infurahle). 
 
 Natureand form of this contrad - '7^2^ 
 
 Bottomry defined . . - ib. 
 
 Derivation of the term - - . t,. 
 
 Diflin£lion between bottomry and refpondentia - ib. 
 
 The lender has no/;V/z on the homeward cargo - 735 
 
 Its antiquity^ - - - ib. 
 
 Whether the nautkum fanus of the Romans differed 
 
 materially from bottomiy - _ - 1\^ 
 
 Pecunia trajeclHia - _ - ib. 
 
 How bottomry differs from a fimpleloan - - 73^)' 
 
 Analogy between bottomry and infurance - - 737 
 
 How they differ - - - ib. 
 
 Utility of this contrail - . "7^8 
 
 Not now much in ufe in Englani - - fb. 
 
 Form of it - • . '^ 
 
 How the intereft muff be referved - ^ - 7^0 
 
 Whether equity would fupply the omiffion - ib. 
 
 Parties to the contra6l - - 740 
 
 Who may lend on bottomry - ' - ib. 
 
 Who may borrow - - - ib. 
 
 When the captain may hypothecate the (hip - ib. 
 
 The owners arc hable for money taken up by him, 
 even in the place where they re fide - - ib. 
 
 To what extent he may borrow in a foreign country 741 
 
 Whether the lender be bound to look to the applica- 
 tion of the money - - - ib. 
 
 W^hether the loan may be to an alien enemy - ib. 
 
 Thing hypothecated - - 742 
 
 On what things money may be lent - - ib. 
 
 The borrower may take the money on board with 
 
 him - - - - ib, 
 
 ^ Biit the money, or its equivalent, muft be expofed to 
 
 the pciils of the fea, at the rifk of th<; lender - ib. 
 Wagers in the form of bottomry' loans are permitted 
 
 in Italy - - - - 743 
 
 Prohibited in France - - - ib. 
 
 Piohibitcd in En:;lanJ, on E J hd'a voyages - ib. 
 Whether a vrager in the form of a bottomry loan be 
 
 a legal contra£l at common law - - 74.}. 
 
 Loans on foreign Eaji Ind'a (hips prohibited - 74^ 
 
 Whether
 
 INDEX. 
 
 BOTTOMRY AND RESPONDENTIA— jor/mtt^y. 
 
 Thing hypothecated. Page. 
 
 Whether money may be lent to a Bnt't/h fubje£l on 
 
 goods on board an American Ea'} Ind'i i (hip - 745 
 In England money rmy be lent on freight - 746 
 Sailors may borrow on their goods on board, not 
 
 on their wages - - 747 
 
 Whether money may be lent on a (hip or joods 
 already in rifk - - ib. 
 
 Principal and marine inter eji - 74S 
 
 Of what the loan may confift - ib. 
 Upon what ground the marine intereft is deemed 
 
 legal - - ib. 
 
 It can only be due where the rifle has commenced 749 
 
 Till the rifk be commenced, it is a fimple loan ib. 
 What allowance the lender Hiall have where the 
 
 rifk has not commenced - 750 
 
 At what time the marine interefl ceafes - ib. 
 Whether it be legal to contrail for fo many months' 
 
 intereft at all events - 751 
 
 When common intereft begins to run - 752 
 
 Perils or riJI^s to which the lender is liable 753 
 
 The lender muft run the fea rifk - ib. 
 
 The perils are nearly the fame as in infurance ib. 
 
 They include capture and piracy - ib. 
 
 Nothing fhort of a total lofs will difcharge the bor- 
 rower - - 754 
 
 The lender is not liable for the internal defeft of 
 the thing - - 755 
 
 Nor for the a£l of the owner or Captain - 75^ 
 
 Nor for fmugghng - ib. 
 
 Nor for any lofs, if the (hip do not fail on the 
 voyage defcribed - - 7^7 
 
 Or if (he deviate without necefllty - ib. 
 
 Or be changed without neceflity - - 758 
 
 But her being prcfTed into the King's fervice will ex- 
 cufe a deviation - ■ 7'7 
 
 What fhall be the duration of the rifle - 75 S 
 
 TVhether the lender beliabjeto general average 760 
 
 By the law of merchants - - ib. 
 
 By the law of ^n^ /aw:/ - - 7^* 
 
 The lender upon a Dantjh fhip is liable - - 7^* 
 And the Infurers on fuch loan muft make good the lofs 76 j 
 
 Whether 
 
 847
 
 848 INDEX. 
 
 BOTTOMRY AND RESPOlJDENTlA-^conslnueJ. Page. 
 
 Whether the lender be entitled to the henejit of 
 falvage - 764 
 
 Upon Eq^ India voyages he is - - ib. 
 
 Whether upon other voyages - ib. 
 
 How bottomry loans fhall be infured 117,118,1281317 
 The borrower cannot underwrite a policy on the loan 118 
 If goods be partly infured,and money borrowed on the 
 
 refidue, what fnall be the efFedl of aba;idonment 60S 
 When the claim of a lender is preferred to that of 
 ' an infurer - - 609 
 
 Vide Abandonment {EffeSl of) . 
 What remedy the lender fiiall have againft the 
 
 eftate of a bankrupt borrower - - 731 
 
 BRITISH SUBJECT. 
 
 When he may become the fubjedl of a foreign ftate for 
 the purpofes of commerce - - - 183 
 
 BROKER. 
 
 Vide Injurance Broker. 
 
 BULLION. 
 
 When it may be infured " tuithout further proof of in- 
 
 terefl than the policy" - 132, 320,6x2 
 
 If clandcftinely exported a policy on it will be void 320 
 
 CABLE. 
 
 When the lofs or dellru6lion of it fhall be a geaeral, 
 when a particular, average - - 540 
 
 CAPTAIN. 
 
 May infure his goods on board - '9^ 
 
 When he may infure his prize - • 108 
 
 Vide Iritereft {Infurable) . 
 Whether his ignorance or inattention be a peril of the 
 
 fea - - - - - 487 
 
 Whether his miftake be a rifle within the policy 4S7, 490 
 His power as agent for all concerned 500, 578, 580, 61 j 
 Money paid by him upon a compromife, to obtain 
 - reftitution of the fliip, is a lofs within the policy 
 
 501,502 
 His duty in fettling averages . - 544 
 
 Vide Lofs [By average contrilutlotu.) 
 
 •4 His
 
 INDEX. 
 
 CAPTAlN-f*«/;«i/^^. Pagp^ 
 
 His power in borrowing money and hypothecating the 
 
 (hip . . -^3 
 
 Vide Bottomry {Parties to the cont ad). 
 His duty in the ftowage, care, and delivery of the 
 
 goods . . i^i 
 
 For what loffes he fhall be habi* - - ib. 
 
 Vide Rl/h iC tuners and m Jler liable). 
 How he (hall be named in the pohcy - - 31a 
 
 Vide Pol cy [Form and requifitcs). 
 When he oug't to hire another (h'p - - i-j 
 
 When a legal difqualifii ationof him fliall avoid the policy 177 
 
 Vide Ship (Ccndudof). 
 His clothes are not comprehended under the denomi- 
 nation of *' goods" - '319 
 
 Vide Po'^ly {Requifites — Suljea matter). 
 
 CAPTURE. 
 
 Lofs by — Vide L of s {By eapture). 
 
 CARRIERS. 
 
 Liability of the owners and maflers of a fhip as car- 
 riers ' - 243, 4 
 
 CERTIFICATE. 
 
 Of minifters and churchwardens, &c. upon a lofs by 
 fire — Vide Fire ( Proof of lofs ) . 
 
 CESTUI QUE TRUST. 
 
 In what cafe he has an infurable intereft • JJ'+ 
 
 CHARTER-PARTY. 
 
 Vide Documents. 
 
 CHANGING RISK. 
 Vid^tRiJi {Changed). 
 
 CHANGING SHIP. 
 . Vide Ship {Changing). 
 
 CICERO. 
 
 His rule refpe£ling concealmeot ; • 475 
 
 Vide Concealment. 
 
 849 
 
 VOL. II. 
 
 B a CIVIL
 
 INDEX. 
 
 CIVIL COMMOTION. Page. 
 
 The efFeft of tliefe words in a policy againft fire — Vide 
 Fire {Ri/i:). 
 
 CLOTHES .(Captain's). 
 
 Infurance of - - - "3^9 
 
 Vide Captain. 
 
 COIN. 
 
 How infured - "3^9 
 
 If clarideftinely exported, a policy on it will be void - ^eo 
 
 COLLISION. 
 
 V^ide Lo/s {By CoU'ifion). 
 
 COLONIAL TRADE. 
 
 Vide S:ubjed Matter {Prohibited colonial trade). 
 
 COLONY. 
 
 Enemy's — Vide Enemy, — Commerce. 
 
 Britijh — Vide Suhjecl Matter {Prehilited colonial trade). 
 
 COMMERCE (maritime). 
 
 Growth of in modern Europe - - 8 
 
 Caufes which contributed to its revival - ib. 
 
 Crufades - "9 
 
 Mariners compafs - - ib. 
 
 Coi-porations - ib. 
 
 Oi \\\e Lombards _ - - - lo 
 
 Of the Hanfeatic League - - 1 1 
 
 Of the Flemings and Dutch - - ib. 
 
 0{ the Briti/Jj - - - - 12 
 
 Checked by m.onopolies - " *3 
 As to commerce with the Briti/h colonies — Vide Sub- 
 
 jed matter {Prohibited colonial trade). 
 As to commerce with the enemy— Vide Lofs {By cap- 
 ture) , — Enemy. 
 
 COMMISSION. 
 
 Whether expefted commifTions tpon a confignment 
 
 be an infurable intereft - - 13$ 
 
 The comraiffions and privileges of the captain in the 
 Jfrican flave trade is an infurable interell - 83 1 
 
 Vide Inter cjl {Wager policies). 
 
 COMPENSATION. 
 
 If compenfation be made after a lofs paid, it fliall <go 
 
 to the infurer - •> 61 1 
 
 If before, the infvired ihall not recover - - 777 
 
 COMPROMISE.
 
 INDEX. 
 
 COMPROMISE. . Page. 
 
 Vide Loj's {By capture). 
 
 CONCEALMENT. 
 
 Its nature and effe6ls - 464 
 
 Avoids the conti\Lcl *■ - ib. 
 
 Though it be innocent - - 465 
 
 The iiifured is bound to difclofe all inatei ial cii cum- 
 
 ftances - " - ib. 
 
 When concealment by an £gent is fatal - - 466 
 
 Whe7i inaterlal - 467 
 
 Whatever refpe£ts the ftate of the (hip, time of fail- 
 ing, &c. is material - - ib. 
 
 A fa6l from which the time of failing may be in- 
 ferred - - - 4^9 
 
 That the fliip is intended for a fcr\-ice of peculiar 
 danger - - - "4/1 
 
 A material concealment is fatal, though the broker 
 thought it immatenal - - ib. 
 
 Even doubtful rumours refpefting the fafety of the 
 {hip ought to be difclofed - - ib. 
 
 Non-compliance with an ordinance, though maae 
 contrary to the law of nations, is material - 472 
 
 What things need not be difclofed - - 473 
 
 Ciciro\ rale - - ib. 
 
 How underftood - - ib. 
 
 It is unneceffary to difclofe what the undcr.vritcr 
 
 knows or ought to know - - ib. 
 
 Or what lefTens the rifk - - il). 
 
 Or general topics of fpeculation - - ib. 
 
 Or matters which are equally open to both parties 474 
 Or matters for which there is an implied warranty - 475 
 It is fufficient to fliew the true ftate of the fhip 
 
 when the /a/? accounts left licr, though a prior Icfs 
 
 favourable account had been received - - 477 
 
 A letter to fhew that the fhip might be detained in a 
 
 foreign port for repairs, need not be communicated 833 
 It is unneceffary to difclofe a circumllanco made 
 
 material by a foreign ordinance - - 478 
 
 Or the probability of an attack - - 479 
 
 CONDEMNATION. 
 
 Sentence of — Vide Warraniy (^NcutraP). 
 
 B b 2 CONSIGNEE. 
 
 '51
 
 S^2 INDEX. 
 
 CONSIGNEE. Page. 
 
 When he fliall have an infurable intereft in the con- 
 fignment — Vide Inter ejl {^Injuralle). 
 
 CONSOLATO DEL MARE. 
 Vide Marine Law, 
 
 CONTAGION. 
 
 Vide InfedJon. 
 
 CONTRABAND OF WAR. 
 
 Vide SvhjeB Matter {Contraland of ti'Mr) . 
 
 CONTRIBUTION. 
 
 Vide Ateiage. 
 
 CONVOY. 
 
 When a fliip may deviate to join convoy ' iSS 
 
 What {hall be a failing with convoy — Vide War- 
 ranty {Convoy). 
 
 CORN. 
 
 Vide R't/k {Memorandum). 
 
 CORPORATIONS. 
 
 Contributed to the revival of commerce - 9 
 
 COURSE OF EXCHANGE. 
 
 Vide Adjiiflment of Lojfes {How lofs appreciated), 
 
 COURT OF ADMIRALTY. 
 
 For the efFeft of the fentence of — Vide Warranty 
 {Neutral). 
 
 Ought to proceed on the jus gentium where not al- 
 tered, as between the parties, by particular treaties 419 
 
 Kas jurifdi6lion in cafes of infurance in fome coun- 
 tries, not in England - - - 67& 
 
 Its fentence in a proceeding in rem. is Gonclufive in all 
 courts, and againfl all perfons - - 424 
 
 But only fo upon the points vrhich it profefles to de- 
 termine - 411 
 
 COURTS OF EQUITY. 
 
 Have no jurifdiftion in quelllons of infurance - 679 
 
 COURTS (foreign). 
 
 Authority of thei^ fentenceSj Vide Warreinty {Neutral) y 
 
 "^ Foreign wdgment, 
 
 *% COUP-^T
 
 INDEX. 
 
 S53 
 
 COURT OF POLICIES OF INSURANCE. Page. 
 
 When and for what reafon crefted . -26 
 
 Its powers enlarged . _ ji,^ 
 
 Fallen into difufe • "27 
 
 CRUISE. 
 
 When cruifing in queft of pri/e is barratry - 520 
 
 When a deviation - . - 106 
 
 How a liberty to cruife is conftrued - . 109 
 
 Vide Letters of mar que ^ — Voyage {Deviation from) , 
 
 CRUSADES. 
 
 Contributed to the revival of commerce • o 
 
 DATE (of the policy). 
 
 Vide Policy [Requiftes'^Date), 
 
 DECLARATION. 
 
 For the form of a declaration on a policy— Vide Pre 
 ceedings {Declaration.) 
 
 DELAY. 
 
 When it (hall amount to a deviation^— Vido Foyjge 
 {Deviation from). 
 
 DEMURRAGE. 
 
 When a lofs within the policy - •731 
 
 DETENTION OF PRINCES. 
 Vide Lofs [By detention). 
 
 DEVIATION. 
 
 
 
 Vide Voyage {Deviatiot 
 
 I from). 
 
 
 DOCUMENTS. 
 
 
 
 Neutral fhips ufually require 
 
 
 PalTport, fea-bricf. 
 
 or fea-letter - 
 
 - 405 
 
 Proof of property 
 
 - 
 
 - 407 
 
 Mufter-roll 
 
 . 
 
 . ib. 
 
 Charter party 
 
 . 
 
 - ib. 
 
 Bills of lading 
 
 - 
 
 - ib. 
 
 Invoices 
 
 - 
 
 - 408 
 
 Log-book 
 
 ^ 
 
 - ib. 
 
 5iU Qf health 
 
 • • 
 
 - ib. 
 
 " 
 
 B B,3 
 
 liut
 
 854 INDEX. 
 
 ' DOCUMENTS— fo«/;««^^. Page. 
 
 I3i!t the want of any of thefe is only prefumptive evi- 
 dence againil the fhip's neutrality - - 408 
 
 The eflFe£l of a fliip's fubjeding herfelf to detention 
 for want of any of thefe - - 4^9 
 
 How the habitation of the Captain Ihall be fet forth 
 in the paiiport •> "43*^ 
 
 Vide Warranty {Neutral). 
 
 EOUBLE INSURANCE. 
 
 Vide Inter'Ji (Double Infurance), 
 
 r URAT ' ON < ^^F THE RISK. 
 Vide R'ljli I Duration of). 
 
 EJST INDIA COMPANT. 
 
 Vide Voyage {Illegal"), — Inter ejl (IVagen), 
 
 EAST INDIA TRADE. 
 
 Vide Voyage {Illegal) . 
 
 EAST INDIA VOYAGE. 
 
 Vide Voyage {Illegal), — Rt/h {Duration of). 
 EA:.r INDIES. 
 
 rjii'carer-f of paflage thither by fea - - i;,. 
 
 Trade of the Americans thither (■ - 6S 
 
 EMBARGO. 
 
 What, and by what authority laid - - 50S 
 
 Is a lofs within the policy, whether it be legal or 
 not - - ib. 
 
 The infurance of a trade in contravention of it is il- 
 legal - - - 82 
 
 'The fufpenfion of the power of difpofal. is a total 
 lofs - - - 510 
 
 It h prima fac:e-x total lofs for which the infured may 
 abandon - - - ^6^ 
 
 Vide Abandonment { Upon capture ) . 
 
 It will not excufe the non-compliance with a war- 
 ranty - - 25^35^ 
 Vide Warranty {To fail Ly a gitea day). 
 
 Wages and provifions during an embargo cannot be 
 recovered on a policy on the fhip = - 721 
 
 Vide Proceedings {Trial), 
 
 EMBEZZLEMENT. 
 
 When the owners and mafter flxall anfwer for 241 
 
 ' ' ENEMY.
 
 1 K D E X. ?55 
 
 ENEMY. - r^ge. 
 
 As to the infurarxe of enemy's property. Vide Piir.'/Vj 
 
 to the C antral {fnfureJ — Enemy), 
 A Brit'iJJ:) fubjed cannot trade with an enemy 
 
 without a licence - - S5 
 
 And fuch licence mufi. be ftriftly obfervcd - ^7 , 
 
 Goods bought of the enemy cannot be infured ?6, S7 
 
 But this objcdion muflr be taken in the firft in- 
 
 ftance - - 2,^> ^9 
 
 Money cannot be legally lent on bottomrj' to an 
 
 alien enemy - - "74^ 
 
 In what cafe a neutral in partnerfiiip with an alien 
 
 enemy may infure his intcreft. - "44- 
 
 When the produce of the enemy's countiy fliall be 
 
 liable to capture in a neutral fliip - - 502 
 
 Whether there fhall be a return of premium upon 
 an infurance of enemy's property - - 645 
 
 Vide Siiljca Matter {Coviimne u-ith the Enemy) — 
 Return of Premium. 
 
 EQUITABLE TITLE. 
 
 When an infurable intereft - - - I'j 
 
 EQUITY. 
 
 Vide Court of Equity. 
 
 EQUITY OF REDEMPTION. 
 
 To what purpofe the pcrfon having the equity of re- 
 demption of a fliip is confidered as owner - 528 
 
 EVIDENCE. 
 
 When a foreign judgment fhall be conclufive in our 
 
 courts — Vide yrananty {Neutral). 
 Whether an ufagr. may be proved as explanatory of a 
 
 clauft in a policy - - ipS 
 
 When the ufage of a fimilar trade may be proved to 
 fhew the praftice of a newly eftabliflied trade - 259 
 Vide Ufa^e of Trade. 
 When a declaration of the infured, made abroad before 
 
 a magiftrate, may be read in evidence - I74 
 
 In what cafe a proteft is evidence - - 7 '5 
 
 When a fubfequent underwriter may give in evi- 
 dence a reprefentation made to the firft "77^ 
 The decifion of a foreign court is the beil evidence of 
 the law of that country - "*- - 7^^ 
 * U 4 -^ '
 
 INDEX. 
 
 EVIDENCE— ro«/;/?fW. Page, 
 
 To prove the amount of falvage upon a recapture, the 
 proceedings of the Court of Admiralty muft be 
 proved - - - 833 
 
 In general one underwriter cannot be a witnefs for 
 another - - - _ ^04, 
 
 But if the broker be alfo an underwriter, he may be a 
 witnefs for the other underwriter - - ib= 
 
 A witnefs who never faw the fhip, may prove that, 
 from the defc iption of her by another witnefs, Ihe 
 was not fea-worthy - - - 831 
 
 Vide Proceedings (Iriii/). 
 
 i:XPECTATION. 
 
 When an infurable intereft — Vide Iniere^ [In/urahk). 
 
 EXPEDIENCE. 
 
 Ought not to be the ground of a judicial decifion 33, 34 
 
 E ACTOR. 
 
 When he {hall have a lien upon a policy of his principal 15 j 
 When he may infure in his own name - - 308 
 
 FIRE, Infurance againft. 
 
 NaUire »f this contra6i - - 784 
 
 Defined - - - ib. 
 
 But little in ufe in foreign countries - - ib. 
 
 Time of its introdudlion into England - - ib. 
 
 Whether more hurtful than beneficial to the public 785 
 
 Objeftions to it aniwered - - ib. 
 
 Companies fbr this fpecies of ijifurance - 786 
 
 To what duties fubjedl - - ib. 
 
 Inter eft of the injured - ' I'^l 
 
 Whether fuch infurance be good without intereft at 
 common law - - lb. 
 
 Made void by ftatute - - ib. 
 
 The infurcd can only recover to the extent of his 
 intereft - - 788, 
 
 Neceffity of preventing fuch infurances without in- 
 tereft - - - ib. 
 
 In cafe of feveral infurances, Cuch office muft have 
 notice - - - ib. 
 
 What Iha 11 amount to a fufficient intereft - 7^9 
 
 mjk - - 790 
 
 What riik is ufually infured againft -. - ib. 
 
 Exception
 
 INDEX, 
 ^YlK'E-~-cont'inueJ. Parr 
 
 Exception of fires occafioned by extraordinary caufes 790 
 
 Meaning of the words " wyi/r/xr/y/o-ryrr" - ib. 
 
 " ch'il commotion" - 791 
 
 A Company which pays a lofs may fue the hundred 794 
 
 Duration of the rifle for the 15 days after the time 
 
 iufured - , - 79^ 
 
 AJftgnment of the policy , . 800 
 
 To one with intereft . - ib. 
 
 How made upon a death - - ib. 
 
 By what authority made - - 801 
 
 Not effefted by alfignment of the goods infured - 803 
 
 Muft be by confent of the office - - ib. 
 
 If the afligner of the goods engage to get the policy 
 
 transferred, he is anfwerable if he omit to do fo - Soj 
 If the infured gratuitoufly engage to get the pohcy 
 transferred, ajid negleft it, he is liable - 298 
 
 T roof of the lofs - . 8 j8 
 
 What are the ufual proofs - - - ib. 
 
 Neceffity of tl}efe proofs - - 809 
 
 Nothing will excufe the want of them - - ib. 
 
 The printed propofals requiring them are a part of 
 the contra£l - - Sio 
 
 The procuring of this certificate is a condition pre- 
 cedent - - 8u 
 
 PIRE(lofsby, atfea). 
 VideZo/j [Bvfre). 
 
 FISHING TACKLE. 
 
 Whether included in a policy on a Greenland whaler 737 
 
 FLEMINGS. 
 
 Commerce of - - \z 
 
 Ruined by Philip II. - - H 
 
 Transferred to England and Holland « - ib. 
 
 FLORENCE. 
 
 Ordinance of • - - 20 
 
 f OREIGN JUDGMENT. 
 
 By comity conclufiTe evidence in our Court! '39^ 
 
 Vide IVamnfy {Ntutral), 
 Thii comity not univcrfal * - ib. 
 
 «57
 
 INDEX. 
 
 FOREIGN JUTiGUE'NT—contmueJ. Page. 
 
 The Frent/j pay no regard to foreign judgments - 391 
 
 The coni'equence of the rule not at firll forefeen - 393 
 
 Means reforted to for evading it - jb. 
 
 FOREIGN LAW. 
 
 How proved in our courts » - 7"^ 
 
 FOREIGN SHIPS. 
 
 Reftriaions of 19 Geo. II. c. 37. do not extend to 
 
 them - - ^^9 
 
 But the claufe againil re-infurance does extend to 
 them - - H4 
 
 Vide Iiitere/i {F/jger, — Re-infurance). 
 
 FORT. 
 
 Whether the Governor of may infure it againft cap- 
 tm^ " - 9^>497 
 
 Vide Intereji. 
 
 FOUNDERING AT SEA. 
 
 Vide Zq/f {By perils of the f(a). 
 
 FRANCE. 
 
 Vide Foreign Judgment^ Warranty (Neutral). 
 
 FRAUD. 
 
 Vide Reprefeiltationir-Concealment. 
 
 Is not to be prefumed - - 4^*^ 
 
 FREIGHT. 
 
 In /"r^n^f freight not already earned cannot be infured 91 
 
 In England freight expefted, as well as the fhip, may be 
 infured - - 9a 
 
 The infured can only recover a lofs on freight, when 
 the rifk has been commenced - - ib. 
 
 What {hall amount to fuch commencement - ib, 
 
 Wl^ere fhip and freight are feparately infured and fe- . 
 parately abandoned, to vi^hom freight fubfequently 
 earned belongs - 604,606,607 
 
 It can only be infured by one who has n legal or equi- 
 table title to the fhip - "5 
 
 Money may be lent on bottomry or freight - 746 
 
 Vide Intcrefl {Tnfurable). 
 
 'J'he infurcr on goods is in no cafe liable for freight 
 
 6* 728,729 
 
 How
 
 INDEX, 
 
 TRTLlGVLT—centmuecL Page, 
 
 How a part owner may infure freight - 730 
 
 What fliall be the duration of the rifle on freight 278 
 
 What fliall be the efFeft of an abandonment on freight. 
 T'ide Abandonment {EffiS of). 
 
 FRUIT. 
 
 When the infurer fliall be liable for a damage to fruit 23 a 
 
 FURNITURE OF THE SHIP. 
 
 Vide Tackle. 
 
 GAMING. 
 
 Nature and effedls of this vice q - 1 19 
 
 Vide Inter eji iJVager polu'us). 
 
 GENERAL AVERAGE. 
 Vide A'^erage. 
 
 GOODS. 
 
 What may be infured under tliis denomination - 3^9 
 
 Lafhed to the deck, how infured - - ib. 
 
 Whether fifliing tackle be goods - •" 7 ^ 7 
 
 GOVERNOR. 
 
 Vide Fort^ — Interejl. 
 
 BANSEATIC LEAGUE. 
 
 Vide Commercti — Marine Law, 
 
 HEALTH. 
 
 Warranty of • - • • 7^^ 
 
 HOPE. 
 
 When an infurable intereft— Vid. Interejl {Injur ahU). 
 
 HUSBAND, (Ihip's). 
 Vid. Agent. 
 
 HYPOTHECATION. 
 Vid. Bottomry. 
 
 JETTISON OR JETSON. 
 
 Vid. At'erage. 
 
 ;[EWELS. • 
 
 How infured ■ . - - j20 
 
 If clandcflinely exported^ the policy will be void - ib. 
 
 JOINT INSURANCE. 
 
 Vid. Injurancs Companies^ 
 
 JUDICIAL 
 
 >59
 
 INDEX. 
 
 JUDICIAL DECISIONS. Page. 
 
 Authority of - • - "24 
 
 JUS POSTLIMINII. 
 
 With refpeft to captured ftiips, continues for ever - 573 
 
 INDIA COMPANY. 
 
 Vid. Eaji India Company » 
 
 INDEMNITY. 
 
 What fliall be deemed - - -617 
 
 INFANT. 
 
 Vid. Ziwj, {^Iftfurancetipon—Interejl). 
 
 INFECTION. 
 
 Whether the infurer be liable to make good a lofs 
 occafioned by burning a fhip to prevent infe£lion - 494 
 
 INQUIRY, (Writ of). 
 
 What evidence fufiicient upon * - I2<^ 
 
 Vid. Proceedings, 
 
 INSURANCE. 
 
 Defined ■« » -. • - i 
 
 Abufesof, reftrained - - - 2 
 
 Marine - • « - - ib. 
 
 Utility of - - "3 
 
 Origin of - * - "3 
 
 Chirac*^ account of •. * 4 
 
 Whether known to the ancients - - 5 
 
 Firft praftifed \n. Italy - - - 10 
 
 When introduced into .E'n^A^n^ • - 11, 18 
 
 I Not mentioned in the ancient fca laws • 17 
 
 Law of, a branch of marine law - - 18 
 
 Materials from which this law is coiledled 18 to 24 
 
 Regulated by few pofitive laws in England - 21 
 
 Treatifes on - - - - a» 
 
 Judicial decifions - - - 24 
 
 When actions at common law were firft 
 
 brought on policies - - ib. 
 
 Ancient mode of fettling difputes upon - 25 
 Vid. Court of poUclei oftnfuranfe. 
 Queftions on fhould not depend on fubtletiea 577 
 
 Ought not to be lucrative to the infured - 617 
 INSURANCE BROKER. 
 
 Nature of his dealings , „ - - 2pi 
 
 Account
 
 INDEX. S5; 
 
 INSURANCE BROKER— fc«//flwi. Pag^. 
 
 Account between him and each underwriter . 201 
 
 His liability for premiums extends only to legal in- 
 
 furances - _ _ . 202 
 
 Though the premium be due from him, the lufs is 
 
 due to the infured - - - - -93 
 
 He has a Fien on the policy for his general balance 292, 301 
 tJnlefs his employer acts as agent - - 301 
 
 If the under\vriters give credit to him only for the 
 
 premiums, he may recover them from the infured - ^94 
 If he eniploy another broker, he is aiifwerable for 
 
 not furnifhing him with all his inftruAions - 299 
 
 To what extent he is thur anfwerable - - ib. 
 
 He ought not to be an undo -writer - - 301, 704 
 
 If he fhould, he may neverthelefs be a witnefs for the 
 
 other underwriters - - - ib. 
 
 If he pretend that he has effe(5led a policy, trover will lie 
 
 againft him for it » - - 30a 
 
 How the plaintiff fhall recover in fuch action - i^i 
 
 He may infure in his own name wthout defcribing 
 
 himfelf as agent - - -311 
 
 His duty as to reprefentations - - 45 ' 
 
 He is refponfible for any reprefentation he makes 
 
 without authority - - "45- 
 
 INSURANCE COMPANIES. 
 
 Vid. Parties to the confrad (In/urance Companies) . 
 Eftablifhment of the Royal Exchangt and London 
 
 AJfurance companies - - * 45 
 
 Their charters - - - - 46 
 
 They have an exclafive right to infure (hips and goods 
 
 apon ^ joint capital - - - ib. 
 
 How other companies are reRrained from infuring as 
 
 fuch - - - 415, 47 
 
 But the right of individual infurers remains unaltered - 47 
 And the privileges of the Eajl India and South Sea 
 
 companies are referved - * ib. 
 
 How the Royal Exchange and London yljfursnc: 
 
 companies m?.y be diOTolved - • ib. 
 
 Whether the continuance of their monopoly be not 
 
 injurious to the public - - - 4S 
 
 One partner cannot recover from another his propor- 
 
 tio^? of lyfles incurred upon joijit infurances - 'b. 
 
 Nor
 
 ^^^ I N D E Xi 
 
 INSURANCE COMPANIES— cc«fin«^/. Pag^; 
 
 Nor can he recover, evea from the broker, the fliare 
 
 of a lofs received b) him from the other partner - 49 
 -Nor can the ofte" b'le underv/riter recover the profits 
 
 from the broker, on the ground that the partner- 
 
 (hip being illegal, he was fole infurer - - 49 
 
 But the contrail is binding as between the oftenfible 
 
 undenvriter and the mnocent infured - ~ S^ 
 
 An award tliat a balance is due from one partner to 
 
 another upon joint infurances is void - - ib. 
 
 In vhat cafe an lulurunce upon a joint capital may be 
 
 good - - - - - 52 
 
 How the common memorandum in their policies differs 
 j; from that of private underwriters - - 224 
 
 Vid. Riji { Excluded by the memorandum'). 
 May make agreements for infurances upon unftamped 
 
 labels - - .. _ 2)3g 
 
 In what form of aflion they mull be fued ■ - 693 
 
 Vid. Proceedings {Declaration). 
 
 How they may plead - • 6q8 
 
 Vid. Proceedings {Plea). 
 
 INSURANCE AGAINST FIRE. 
 
 Vid. Fire. 
 
 INSURANCE UPON LIVES> 
 Vid. j.i'-est 
 
 INSURED. 
 
 What ;:erfons may be * _ "! - Si 
 
 Whether an alien enemy " ^ - ibt 
 
 Vid. Enemy parties to the eontraH ( Enemy ) . 
 How he, his agent, or truftee faall be named in the 
 policy - - - . - ^06 
 
 INSURERS. 
 
 What perfons may be ■=, "44 
 
 Individual Underwriters - " - - - ib. 
 
 Charafter of the French underwriters - - 4^ 
 
 Engli/}} - - - ib. 
 
 A borrower upon bottomry cannot be an infurer upon 
 
 the loan - - - nS 
 
 What they are prefuraed to know - - 270 
 
 Vid. Conceahnent. 
 
 INTEREST,
 
 INDEX. 
 
 INTEREST. * Pag^^ 
 
 Viljatjljall amount io an hifuralhe inter ejl - 104 
 
 Qualified property - - 10' 
 
 In what cafe diflerent perfons may each liave an in- 
 
 furable iuterell in the fame thing to its full amount ib. 
 "When the indorfee of a bill of lading has an in- 
 
 furable iiitcrell - - - - ib- 
 
 When tlie indorfer ftill retains aninfurable intereft ib. 
 W^here an expcttation of profit, or ofa future intercll 
 
 in a thing, is an infurable intercft - - 107 
 
 In what cafe a captor has an infurablc intercfl - io3 
 Truftees for the care and difpofal of (hipj and goods, 
 
 under the diredion of third perfons have an in- 
 
 furable intereft - - - 109 
 
 Whether a truftee, a confignee, or a prize agent, has 
 
 an infurable intereft - - - 1 1 1 
 
 A lien on the thing infured is an infurable intereft 311 
 Whether an infurance without interell be a lecral 
 
 o 
 
 contrail at common law - - -112 
 
 Where a mere cejimquc trujl may infurc - - ' ^ + 
 
 Where a general agent may infurc in his own right 1 15 
 An infurable intereft can only be founded on a legal 
 
 or equitable title - - - ik. 
 
 A joint purchafer of a fliip, whofe name is not in thi 
 
 regifter, has neither title - - - ib. 
 
 What title to freight will make an infurable intereft 1 16 
 The lender on bottomry has an infurable intereft in 
 
 the fum lent - - - " ^ ' 7 
 
 And the borrower in the furplus value of the thing 
 
 hypothecated - - - - iiS 
 
 But the ufage of a particular trade may vary lliis 
 
 rule - - - - ib. 
 
 The borrower cannot be an infurer on the fum lent ib. 
 When there ftiall be a return of premium for wiy)t 
 of intereft in tlie infured, Vid. Return of premium. 
 How the intereft of the infured fliall be proved — 
 
 Vid. Proceedings (I'rial). 
 
 Wager policies. 
 
 Mifchiefs rcfuking from a fpirit of gaming - ir9 
 
 Legality of wagers confidercd - - 119 
 
 Difference between a wager and an infurance .121 
 
 Form of a wager policy - - - j^- 
 
 The 
 
 S6^
 
 t64 tN i>E ^> 
 
 iNTEREST— fon/iffWf/. PagCi 
 
 Wager policies. 
 
 The words '"^intereft or no interell'* do not uecef- 
 
 farily make a wager - - - I2i 
 
 ; Prohibited in moft countries - - - 121 
 
 Whether legal at common law in ^wg'/tjnii - 122 
 
 At what time introduced here - - ibi 
 
 Series of authorities on which its legality refts 123, 126 
 How reftrained by ftatute - - - 127 
 
 Exceptions as to privateers - - - ib. 
 
 Alfo as to goods imported from the Spani/b and 
 
 Poriuguefe colonies - - - 128 
 
 And as to foreign fhips and goods - - 129 
 
 The infured may be compelled to declare how much 
 
 he has infured, and borrowed on bottomry ib. 
 
 An infurance on one thing, to depend on the fate of 
 
 another, is a wager - - - 130 
 
 What the infured in a wjiger policy takes upon him- 
 
 felf to perfoi-m - - - 132 
 
 What ihall be deemed a good policy in the Li/bon 
 
 trade - - - - - ib. 
 
 A fmall intereft will not take the cafe out of the 
 
 ftatute - - - - - 133 
 
 An agreement in confideration of a premium, 
 
 to pay a certain fum, if a fhip do not arrive fafe, 
 
 is a wager - - - 134 
 
 How a valued policy is diftinguifhable from a wager ib. 
 Recovering beyond the true intereft is againft the 
 
 ftatute - - - - 13S 
 
 A valued poHcy upon expected profit has been 
 
 holden not to be a wager - * - ib. 
 
 So upon expefted commifiion - - lb. 
 
 Whether there may be a wager in the form of a 
 
 bottomry loan — Vid. Bottomry. 
 
 Re'infurance - - - - I43 
 
 What - - - - T43, J 45 
 
 To whom the re-infarer is refponfible - - 143 
 
 In what cafes legal - - - - ib. 
 
 The law reftraining it extends to foreign fhips - 144 
 
 Different forts of re-infurance - - 144 
 
 Infurance of the folvency of an infurer « - 145 
 
 Doulk
 
 INTEREST— ««/;;:W. • p,g^ 
 
 Double infurance - - •146 
 
 How'it difters iVom re-infurance - . jj,. 
 
 Though a wager, it is not void - . ib. 
 
 Bat the infured can on'j- recover one fatisfa£tion on 
 
 the feveral pclicies - - ib 
 
 Thofe who pay on one, may recover contribution 
 
 from the underwriters on the others - 147, i^f 
 
 \^hcther difteient perfons may iiifure the fame 
 
 thing, and each recover the full value - - 1^0 
 
 DiitinAioii between two infuranccs on different in- 
 
 terefls, and a double infurance - - i?^ 
 
 Whether a fecond infurcr, with notice of the former 
 
 infurance, be liable for the whole lofs . - l^t 
 
 The infured, if required, mull declare how much he 
 
 has infured in the whole - - " ^i* 
 
 « INTEREST OR NO INTEREST." 
 
 Vide Inter ejl iJVagcr) — Lcfs [By capture). 
 
 INTEREST (Proof of). 
 
 Vide Proceedings (Trud). 
 
 INVOICE. 
 
 Vide Documents. 
 
 JUS POSTLIMINIl. 
 
 In cafe of capture and recapture - 5oo> 5oi, 551 
 
 X.ANDING OF GOODS. 
 
 Vide Shipping and landing of Goods. 
 
 iAW OF MERCHANTS. 
 
 A branch of public law - - 18 
 
 LAW OF NATIONS. 
 
 Defined - - - 439 
 
 No individual ftate can vary it by its own ordinnances ^\6 
 It is the rule for deciding queftions of Prize - ib. 
 
 Alterations by treaty affeft only the parties to faeh 
 treaty - - - ib. 
 
 LEE (Lord C. J.). 
 
 Cbarader of his decifious • " ^9 
 
 J.ETTERS OF MARQUE. 
 
 Taken by a (hip, infured as a private tracier, will dif- 
 
 cliarge the infurcrs - - 233 
 
 VOL. u, « C Other\vil«,
 
 $66 
 
 INDEX. 
 
 LETTERS OF UARQVE—ccnt'mued. ^ Page. 
 
 Otherwife, if taken merely to entice feamen to enter, 
 
 and without any dclign to life them - - - 285 
 
 Vide Rijk [Changing). 
 In what cafe a fhip, having letters of marque, may 
 
 cruize in quefl of prize - - ipt 
 
 A liberty to cruize for 6 weeks means 6 fucceflive 
 
 weeks 
 
 •97 
 
 The power given to fiiips having letters of marque 
 muft be ftriftly purfued - - ip8 
 
 If it be to '^ chafe, capture, and man pri%esy^ it will 
 not enable her to coni'oj a prize - - iga 
 
 Vide Deviation. 
 
 " LIBERTY TO CRUISE." 
 
 Vide Letters of Marque — Ri/h {^Duration of) — Voyage 
 ( Deviation from ). 
 
 « LIBERTY TO TOUCH, STAY, AND TRADE.'* 
 
 How conftrued - - 188,191 
 
 A fhip, having liberty to touchy may trade, without 
 
 exprefs permiffion, if it occafion no delay, deviation, • 
 
 or additional rifle - - . _ gj^ 
 
 Vide Voyage {Deviatl:n from). 
 How, in the cafe of an Efl India voyage 272, 273 
 
 Vide Ri/h [Duration of). 
 
 LIEN. 
 
 When it is an infurable interell =■ - 311 
 
 Vide Fa'°or. 
 
 LIGHTERS. 
 
 When the lofs of goods put into lighter^ iLall be a ge- 
 neral average - '53^ 
 Vide Lofs {By av.^rage.). 
 When the rifk continues in lighters - - 254 
 Vide Ri/k {Duration of — On goods). 
 
 LIVES (Infurance upon). 766 
 
 Nature of this contraft - - ib. 
 
 Defined - - - ib. 
 
 Companies for - - - . 767 
 
 Waj-ranty of health and age of life - ?6g 
 
 Declaration of - - - ib. 
 
 Hovr
 
 INDEX. 
 LIVES (Infurance upon) — continue.!. PajTC. 
 
 Warranty of health and age of life. 
 
 How made - . ' iCq 
 
 A particular infirmity will not falfify it - Jb. 
 
 Without it, the infurer takes all rifles - . jj-j 
 Vide EviJince. 
 
 Intereft of the infured . - 7*^4 
 
 Without fuch intereft the contraft is void - ib. 
 
 In what cafe a creditor hm an iufurable inteieft in 
 
 the life of his debtor - -*'*"? 
 
 Whether this onght not to be where the payment 
 
 depends on the life - - ""6 
 
 If the debt be paid, even after the death, nothing 
 
 can be recovered on the policy - - 7 7 7 
 
 It muft be a legal debt - - 77^ 
 
 The infurer cannot objedt the infancy of the debtor ib. 
 A truflee may infure for his c(fiui que trvjl - "78 
 
 Rif/i which the infxircr runs - 780 
 
 The lofs mull always be total - _ jb. 
 
 What are the ufual exceptions wliere the party iri- 
 fures his own life - . - ib. 
 
 To fubjecl the infurers, not only the caufe of the 
 death, but the death itfelf, mufi. happen within 
 the time limited - - 7 So, 782 
 
 If the pohcy he /rem the day of the date, that day 
 is excluded - - -8 t 
 
 Why there are fo few litigated cjueftions on this 
 contraft - - 666, 783 
 
 Remedy of the infured agaisft the cllate of a bank- 
 rupt infurer - - - 7S3 
 
 When there (liall be a return oF premium . 666 
 
 V^ide Return of Premium {Rijk net commenced). 
 
 LOG BOOK. 
 
 Vide D.cuments. 
 
 LOMBARDS Commerce of). - . 10 
 
 Peticion agaiaft - - -12 
 
 Reltraiucd - - - '3 
 
 LVNDON ASSURANCE. 
 Vide Itijurance Companiet. 
 
 LOSS. 
 
 Total - - - a- 5 
 
 c c 3 Vaiv.A 
 
 SC'
 
 o6S I N D E 3i. 
 
 JLOSS—'Contintud, Pa^^- 
 
 Partial - • - 486 
 
 to fhip - - - - ib. 
 
 to goods - - - ib. 
 
 As to what fhall be a total or a partial lofs, Vide 
 
 Ahanhnment. 
 Average - _ „ \\j. 
 
 Every lofs mufl be the imiviediate coflfequenc of fome 
 • of the perils infured againft - 717,71^,720 
 
 What loiTes are not within our policies - 218, 220 
 
 If a lofs be within the general words, the infurerwill 
 
 be liable, unlefs he fhew that it arofe from a pe.il 
 
 not meant to beinfured againit - - I'JO 
 
 If the port of deftination be fliut, or in the enemy's 
 
 hands, and the voyage loll:, it is not a ioi's within 
 
 the poli y - - - 220 
 
 "When tliere fliall be a total lofs, though^ the goods 
 
 fpecifically rennain - 227, 23S 
 
 What {hall be a lofs within the policy, Vide Procesd- 
 
 ings {Deeluratlon). 
 Within wliat time a lofs muft happen to make the un- 
 
 dervvriters hable, -Vide i?:v^ {DurjiionoJ). 
 A lofs improperly paid may be recovered back - 732 
 
 Kow a lofs fliall be averred in the declaralion— Vide 
 « Pro-eedlr.js {Dec'larntlon). 
 
 Kow proved, Vide ProcecJhi^s [Tri.d). 
 
 By perils of the fea - - .487. 
 
 ' How theie words are ufually undenlood - 416, 487 
 
 Tl).ey comprehend every fpecies of fea damage 487 
 
 Foundering, ilranding, ftriking on fur.ken rocks - ib. 
 
 What damage to the fhip's tackle is a lofs within 
 the poKcy - - - 420 
 
 What is meant by perils of the fea - - ib. 
 
 The ignorance, &c. of the mafter, ^c. is not - ib. 
 
 Fonndenng - - - 48S 
 
 When a miffing fhip fhaU be prcfnmcd to have foun- 
 dered - - - 48R 
 
 If th2 damage cfin be repaired, it is only a partial lofs ib. 
 
 When a flup fhall be deemed a miffing lliip - ib. 
 
 Vv'^liat fliall be a lofs by capture, and act by 
 perils of the fea - - - 490- 
 
 If
 
 INDEX. 
 jLOSS — (oiitinueih p-"'e 
 
 By perils ofibc fm. 
 
 If part of a fliip's crew be impreffcJ at a ciitical 
 moment, and in confcqucnce tuc fhip drive oa 
 fhore, this is a lofs by the perils of the fea - 490 
 
 If flavcs be thrown overboard on account of a fear- 
 city of water, occafioncd by an uaufual Icngili of 
 the voyage, this is not a lofs by the perils of the fea ^ji 
 
 So, if they die from want of food, arliing from the 
 fair.e caufe - . . - ib. 
 
 If a fhip be deftroyed by worms, it is not a lofs by 
 the perils of the fea - . . .gj 
 
 Nor if file be damaged by the ordinary Hrvicc 
 in which Ihe is engaged - - - ib. 
 
 By coUi/ion - - . 403 
 
 I3 a lofs within the pohcy - • - ib. 
 
 The party (ufFering by colllfion, or tlie infiirers in 
 , his B?.me, have 3 remedy againft; the mailer or 
 owners of the vcfTel in fault - - 493 
 
 By fire - - . . ^pp 
 
 If this be by accident, it is within the policy - 494. 
 VvTiether, if imputable to the maflcr or mariners, it 
 
 be within the policy - - - ib. 
 
 Whether if it be by order of the State, to prevent 
 infedion, it be within the policy - . ib. 
 
 By capture - - - . 45 - 
 
 What fhall be deemed a capture - - 49^1. 7^9 
 
 Whether an adion will lie for a lofs by Biitljlj 
 capture - - 40. 4'. ^Z<^ 
 
 Vide Parties to the contraEl. 
 
 A feizure by an enemy iov /muggUng, is not a cap- 
 ture ^'art belli - ; - dc) 
 
 Whether hwful or unlawful, the infurer is liable - 493 
 
 And whether the property be thereby changed ib. 
 
 The effect of capture where ilie policy is " tntcrfjl 
 or nt interejl '' - - . 496-7-8-9 
 
 The effccl of capture and rcca{.ture in dlvcfling and 
 revefling the property - - - 499 
 
 The infurers are li-'ble for all fair charges occafioncd 
 by capture and recapture - - 501 
 
 c c 3 Ai
 
 S/S INDEX. 
 
 L,0^^-~-eontinued, Page. 
 
 By capture. 
 
 As money paid to the captors upon a compromife - 50* 
 In what cafe the produce of an enemy's country fhall 
 
 be liable to capture - - - ib. 
 
 Whether captured fnips may be ranfomed - 503 
 
 When a recaptured (hip may profecute her voyage ^o^ 
 Within what time the recapto.s fliall proceed to 
 
 iudgment in fuch cafe - - - ib. 
 
 Capture does not neceffarily make a total lofs, nor 
 
 recapture prevent it - - 5^S* 579 
 
 If the captain purchafe from the captors, the fum 
 
 paid is a partiallofs - - 5^°' 5'^' 
 
 Vide Ahandonment {Upon capture) — Enemy. — 
 i-^'fi {By falvage.) 
 
 By detention of princes - - ' - 506 
 
 Arrefl: of princes, what - - - ib. 
 
 Diftinilion between arred and capture - - ib. 
 
 If government feizc a corn fhip in a famine, this is 
 
 an arreft - - " 5<^7 
 
 But if done by a mob of rioters it is a capture by 
 
 pirates . . - - ^08 
 
 The; word people in the policy means a people, not 
 
 a mob - - - - - ib. 
 
 If a neutral be taken at fea, under pretence that fhe 
 
 is an en my, this is a capture - - 507 
 
 But if feized for a breach of the law of nations, ic 
 
 is an arrejl - - - -< ib. 
 
 Not fo, if fhe be feized for navigating contrary to law 508 
 An embargo is always an arreft within the policy - ib. 
 An arrefl; by the authority of the Br'itijh government 
 
 is a lofs within the pohcy - - 509, 830 
 
 A fufpenfionof thepcwer of difpofal isatotallofs - 510 
 If a (hip infured " at and fr w " a port be arrefted 
 
 in the port, it is a lofs within the policy - ib. 
 
 If a fhip be feized after a cellation of hoflilities, it 
 
 is an arrefl - - - " 5H 
 
 If a neutral fiiip bound to an enemy's port, be 
 
 feized for having enemy's goods on board, and 
 
 while under detention, her port of deflination be 
 
 biockadecl, and the voyage loft, this is a lofs 
 
 ii^ion her neuiral car^o - - - ^36
 
 INDEX. 571 
 
 LOSS — continued. Page. 
 
 By barratry - . -515 
 
 Barratry defined - , - ib. 
 
 In what cafe infurance againft barratry ou^jht to be 
 
 permitted - - . - ib. 
 
 What fliall amount to barratry - 516-17-18 
 
 Even dropping anchor with a fraudulent view is 
 
 barratry - . - - 5i* 
 
 Whether the captain may be infured againft the 
 
 barratry of the .lilors - - . ijig 
 
 When a deviation (hall not be barratry - - ib. 
 
 Whether the failors may commit barratr)- againft 
 
 the will of the captain - - - 520 
 
 When their difobedience amounts to barratry - ib. 
 
 When cruizing in queft of prize is barratry - ib. 
 
 What a6l of the captain amounts to barratry - cja 
 It can only be committed againft the owners - C24 
 
 It *annot be committed by the captain, if he be 
 
 owner - . . . rjg 
 
 Or even if he have the equity of redemption . ib. 
 
 A general freighter is owner fcr the voyage - ib- 
 
 A deviation without his knowledge, thouTh with 
 
 the confcnt of the oiuner, is barratry - . ib. 
 
 In proving barratry, it is not neccfTary to prove 
 
 negatively, that the mafter was not owner, or that 
 
 it was not done with the owner's confent ' S3^ 
 
 The words '* in any lanuful tra>e" will not exempt 
 
 the infurers from bairatry /cy/.-iwe^/yr^ - ^a 
 
 It is immateiial whether the lofs happen during the 
 
 a£l of barratry, or after - - - ^jj 
 
 But the infurers will net be liable if the loCs, 
 
 occafioned by barratry, do not happen during the 
 
 voyage - - - - ib. 
 
 How a lofs by barratry ftiall be averred in the 
 
 declaration. Vide Proceedings {DnLratior). 
 How it Ihall be proved, Vide Proceedings {^P roof of 
 
 lofs). 
 
 By average contribution . 
 
 Average dcfmed - - "535 
 
 Different furta - • - - ib. 
 
 General - - - 536, 54 j 
 
 Particolar - - - - ^^^ 
 
 Petty - - • - ib. 
 
 c c 4 Central
 
 S72 
 
 I N DE X. 
 
 LOSS-c:n'hiueJ. VagA 
 
 By average coniribiitlons. 
 
 General average is a charge againlb the infurer, when 
 
 the {hip or goods infurcd are faved by it - - 53 7 
 When average contributions may be claimed - 5 j 5> 53 7 
 When petty avera^'^-e fliall be a charge on the infurer - 5 36 
 When the lofs of goods put into lighters to lighten 
 
 the fhip fhall be a general average - - ib. 
 
 When wages incurred di;rii>g a repair fhall be a 
 
 general average - Si^^ l-^^ 1~^ 
 
 In the cafe of unlawful detention where the Ihip puts 
 
 into port to repair - 538, 539, 541 
 
 iJasp.age by wear and tear or ftrcfs of weather, is 
 
 not a general average - - - 540 
 
 Whether an injury fuftained, in an endeavour to 
 
 efcape an enemy be a general average - 543 
 
 How goods fnall be valued in fettling an average - 621 
 ^ What Ih.all be only a particular avcrn^e - - 542 
 
 What iliall be liable to contribute to a general 
 
 average _ , - - - 54JJ 
 
 Captain's duty in fettling a general average - 544 
 
 Kemedy agaiiiil him for neglecting this - - ib. 
 
 How the contribution feali be adjuftcd - - 545 
 
 In what degree the fhip and freieht are liable - ib. 
 
 How a jcttifon rnail be valued *- - ib. 
 
 How the underwriters fhall reimburfe average con- 
 
 tibutions - - - 54*5 
 
 Whether the lender on bottomry be liable to 
 
 general average, Vide Bcttomry. 
 What iliall be an average lofs within the common 
 /..morandum. Vide Rijhs {MeK:orandum). 
 
 Byfalvage - - ' - 547 
 
 Salvage defined - - - - ib. 
 
 The lien for it at common law - - - ib. 
 
 How regulated - - - 548 
 
 Hov/ fecured - - - - ib. 
 
 How adjufted when the parties difagree - - ib. 
 How the efFefts faved fhall be difpofed of - 549 
 
 Reward of perfons not emtloyed - - ib. 
 
 Who may employ perfons in the falvage of fhips, &c. 550 ' 
 By whom the quantum of falvagt fhaU be adjufled - ib. 
 How it fhall be levied on the ciTeds faved - - ib. 
 
 How
 
 INDEX. 
 XOSS — continued. -a 
 
 Bjfahage. 
 
 Hou' reguhtcd upon a recapture by the tr^'xnxx^ 
 
 !-«' - - - - 55, 
 
 Hokv \iy flatiite - - - ''ib 
 
 Where lecaptiiied by men of war - . iij. 
 
 by privateers - . - ib. 
 
 by both jointly - . r-^ 
 
 If a captured fhip be fct forth isajlip t>f c^-ar, Ihe 
 
 fhall be prize - - - - ib. 
 
 The iufured need not declare fpecially for'falvage ^S-il-<> 
 What (IihU be fuflicient evidence of lofs by filvage 
 
 upon a recapture - - - 8;2 
 
 Vide Proceedings [Proof of lofs.) 
 Ho-.v falvage is regulated in the cafe of recaptured 
 
 neutrals - - _ _ - ??2 
 
 How in the cafe of recaptured allies - - J''3 
 
 How the infured mud fliew his title to recover 
 
 for falvage - - - _ _ jb. 
 
 If the A\lvage be ver)- high the infured may abandon ib- 
 Whether a ler.der on bottomr)' be entitled ly the 
 
 beneht of falvage. Vide Bottomry. 
 
 By the death cfjlaves - - - 554- 
 
 Slaves formerly infured as goods - "93 
 
 How this trade was regulated - - ib. 
 
 Now totally aboUflied in the Brit'i/h empire - ib. 
 
 Whether natural death be a legal rilk - - ib. 
 
 Whether (laves thrown overboard in a fcarcity of 
 water, or who perifh for wani of food, be a lofi 
 ■within the policy - - - ib. 
 
 What (hall be a mortaUty by mutiny - * 555 
 
 By the death of animals - - - ib. 
 
 This, if occafioned by any of t!;e perils infured 
 
 againft, is a lofi within the policy - - ib. 
 
 Not fo, if they die of difcafe - - ib. 
 
 fraudulent lofjes - - - ' SS^ 
 
 Punifhment of piracy - - - ib. 
 
 Puuifhmcnt of the wilful deftruftion of fhips to the 
 prejudice of the owners _ _ _ <j ^y 
 
 Pumifhment of v. ilfuily ending away any fliip to the 
 prejudice of Uie underwriters or owncn of tlie 
 go'jds - - - - - SJ« 
 
 " LOiJT 

 
 INDEX. 
 
 « LOST OR NOT LOST." Paje. 
 
 Thefe words are not peculiar to Englijh policies - 332 
 
 Reafons for inferting them - - - ib. 
 
 Do not make the contrail a wager - "333 
 
 Nor more hazardous - - - - ib. 
 
 Account of his famous ordinance of the marine • - 18 
 
 MAGENS 
 
 His projeftforafyftem ofmarinelaw - .21 
 
 MJNSFIELD, (Lord). 
 
 Celebrity of h's, judgements in infurance caufes - 29 
 
 MARINE INTEREST. 
 Vide Bottcmry. 
 
 MARINE LAW. 
 
 Hiftory of - - - - 14 
 
 Rhodlan law - - - " '5 
 
 AmalpJnian code - - - - ib. 
 
 Confolato del mare - - - - - 16 
 
 Laws of O'eron - - - - ib. 
 
 Laws of Wijbuy - - - "17 
 
 Oidimnces of the Hanjiatic League - - 18 
 
 Ordinance of 'the marine of Zo?«j XIV. - - ib. 
 
 Law of infurance - - - - ib. 
 
 Law of meichaiits - - - - 19 
 
 Particular ufages of trade - - - ib. 
 
 MARINERS. 
 
 Vide Sailors. 
 
 MARINERS COMPASS. 
 
 Difcovery of - - - - "9 
 
 MARKET. 
 
 The infurer ought not to be involved in the rife or 
 fall of - - - - - 628 
 
 Vide jidjvjiment. 
 
 MASTER (of a fhip) 
 Vide Capicin. 
 
 MEMORANDUM (ufual) 
 
 Whatriiks are e::cluded by. Vide Ri/is (Memorandum). 
 
 MERCHANTS
 
 INDEX. 
 
 MERCHANTS (law of) p 
 
 A branch of public law _ - i S 
 
 MISRFPRESENTATION. 
 Vide hieprtjaitahan. 
 
 MISSING SHIP. 
 
 When prefumed to be loft - - . ^88 
 
 Vide Us {By perils of h'ie fia). 
 
 MISTAKE (ofthecapt^n). 
 
 Whether a riik within the policy - - ^8- 
 
 MONEY. 
 
 K ow infured - - _ . '. i n 
 
 Cannot be legally infured, if clandeftinely tranfportcd 370 
 When it fiiaJl contribute to a general average - <;j» 
 
 MONEY HAD AND RECEIVED. 
 
 When a count upo i, is neceflar)' in the declaration, 
 
 Vide P-oceedings [Declaration^. 
 Will lie to recover back a lofs improperly paid -731 
 
 Or to recover back the premium - . 694 
 
 MONOPOLIES. 
 
 E t£\ of - - - • *3 
 
 Abolifhed - - - - ib. 
 
 MOORED (in fafty.) 
 
 When a (hip Hir.U be faid to be - - - 262 
 
 Vide Rijk {Duration '.f—O.JlAp). 
 
 MORTGAGE (of a fhip.) 
 
 In what cafe the mortgagor (hall be deemed owner 52S 
 When a mortgage fhall be fuificieat proof of intercft 71 1 
 
 MUSTER ROLL. 
 Vide Documents 
 
 MUTINY. 
 
 When an cxcufc for deviation - - -312 
 
 Of flaves, what (hall be a lofs by - - 5jS 
 
 Vide Aland nmeni — Vcyagt [Dcviati' nfrem). 
 
 NAUTICUM FOENUS. 
 Vide Bottomry. 
 
 NAVIGATION 
 
 ^7S
 
 INDEX, 
 
 l^AVIGATION LAWS {BrUl/b.) ^age. 
 
 Siimmary of - - . 3- - - 621 
 
 'E^xtcxiAzA X.0 Scotb.nc! Z-vA Ireland - - 65 
 , Vide Subjcil maltcr [PrulAbited tolodal trade)^ 
 
 NECESSITY (voyage of) 
 
 Vide Voyage {Dev'tat'to:; frcra). 
 
 ne!gro slaves. 
 
 Vide Slav.Sy—Ry%—Lofs [By d^aih of Jlava), 
 
 NEUTRAL. 
 
 In what cafe a neutral, thotgli partner \yitli an alien 
 entmy, may infure _ _ _ - ^;*. 
 
 N^itral property may be irifured aga;nft Bntl/Ij cap- 
 ture, p!ovi''«i the infurance contravene no policy 
 oT the ftate - - - - S^c 
 
 Vide Emmy, — Parhes to the ccr.traS. 
 
 OUigations of n«utvality - - - 7^ 
 
 The riaht of viiitatiou and fearch of neutrals liindi- 
 
 cated - - - - 8-1^435 
 
 Vv'ho fhall be deemed neutral - - Z^6 
 
 In what cafes the produce of tlie enemy's coujitry 
 
 may be captured in a neutral vefiel - - 5°^ 
 
 If a neutral be bronght into port, having enemy's 
 property on board, and while detained there, her 
 port of deftination be blockade4, this is a lofs of 
 the voyage, for which the underwriters on neutral 
 goods are liable ■" - - - 83 jf 
 
 Warranty of neutrality - ? - 3^4 
 
 Vide Warranty {Neutral). 
 
 NEW TRIAL. 
 
 Is not granted to let in the objeflion of alien enemy 
 
 36, 84, 85. gp 
 Is granted with more facility in queftions of infurance 
 than in other cafes - - - 703 
 
 KORTHERN CONFEDER.'\Cy. 
 
 Account of iib indituVion - * -443 
 
 OLERON {'L^ws of.) 
 
 Vide Mnrine Laiv, 
 
 OPEN POLICY. • 
 
 Vide .FoUry, 
 
 OPINIOK.
 
 I TJ D E X. 
 
 OPINION. P,^ 
 
 Vide EvtJence. 
 
 ORDINANCES. 
 
 Vide Marine Law, — Infurance. 
 
 OVER INSURANCE. 
 
 Vide Inhrcjl {Double inJurjr,:s)--R:lurn of br:m'ium'. 
 
 OWNERS. 
 
 To what rifles liable. Vide Rl/i {Ounen Lio!e). 
 
 PAPERS ((hips'), . 
 Vide Documents. 
 
 PAROL AGREEMENT. 
 
 When it will control the -written policy - - 'i' 
 
 PARTIAL LOSS. 
 
 Vide Lofsy — Abandonment . 
 
 PARTIES TO TPIE CONTRACT. 
 
 What perfons may he infurcd - 3 r 
 
 Whether an alien enemy - - - ib. 
 
 Occafionally prohibited by ftatute - - ib. 
 
 "Whether at common law fuch infurance be valid 31 
 
 Opinions of foreign writcri - - - ib. 
 
 Reafons of policy again ft it - . 33,37 
 
 X-ord Mansfeld's fentiments - - .3^ 
 
 Whether the law outjht to yield to expedience 34., 35 
 
 Whetlier an aftion will lie fof a lofs by Brlltjh c.ip- 
 tm-e - - - -40.41^ 
 
 A neutral may recover for a lofi by Bnt'tJ}: capture, 
 provided the infurance contravene no policy of 
 the ftate ... - . Sj3 
 
 ^n enemy cannot recover on a policy on goods, 
 though (hipped before the war, and the aflion 
 brought after the pcice - - " 4^ 
 
 And though the goods v-ere of B/.t'iJl) manufac- 
 ture - - - * • l^y'y') 
 
 Nor can au agent, though a crcdito.-, mnint .i 1 an , 
 aftion for him - - - " *8 
 
 Vv'^hether an action would, in fuch cafe, li'-- for any 
 othsr Iof» • ... - ^j 
 
 ■i U'hc 
 
 87-7 
 
 5^ r
 
 INDEX- 
 
 PARTIES TO THE CONTRACT— ^o«/mt/^^. Page. 
 
 W/nat perfons may he infured. 
 
 The Lme rule holds in the cafe of capture frem a 
 
 co-belligerent - - - "43 
 
 Whether Britijh property may be infured again ft 
 
 Br'ttijh capture - - - - ib. 
 
 Whether a neutral refiding in the enemy's country 
 
 may be infured »• 
 
 Vide Enemy. 
 
 What perfons .may he injur ers 
 
 Underwriters - ' 
 
 Charafter of the French underwriters 
 Engl'i/h underwriters 
 
 Vide Underivriters . 
 The two infurance companies 
 
 Vide Infurance Companies. 
 
 PARTNERS (infurance by.) 
 Vide Infurance Companies* 
 
 PASSPORT. 
 
 Vide Documents, 
 
 PEAS. 
 
 Are comprehended under the word corn 
 
 FECVNIJ TRAJECTITIA. 
 
 Vide Bottomry, 
 
 PEOPLE. 
 
 Meaning of this word in the policy 
 Vide Rifky—Lofs {By arrejl of princes), 
 
 PERILS. 
 
 Vide Rifhsy—Lofs. 
 
 PETTY AVERAGE, 
 
 Vide Average, 
 
 PIRACY. 
 
 How puniflied - - 
 
 POLICY. 
 
 I^aUire and different forts of 
 Value* 
 Open 
 
 How the va^ue ought to be regulated 
 Eifeft of the valuation 
 
 - 44- 
 
 -44 
 
 - ib. 
 
 - 45 
 
 - ib. 
 
 - ib. 
 
 223 
 
 230^508, 689 
 
 - 285 
 
 - ib. 
 
 - ib. 
 283 
 
 - ib. 
 Hoif
 
 I.N D E X. 
 
 POLICY — continue J. « 
 
 Nature and different forts of. 
 
 How a valued policy difFers from a wager 135, 289 
 How the value is regulated by the French laws 290 
 
 How by the ^f?^/i/& law - - i" 4,201 
 
 Effect of the valuation before and after wao-er 
 
 policies were held legal - - ij f", i ^6 
 
 Whether the infured upon a valued policy oun-ht to 
 
 recover more than the true value - - 13$ 
 
 A valued policy on commilTioii or profit is good ib. 
 
 Upon a valued policy, the underwriters (hall be 
 
 liable as for a total lofs, though previous to the 
 
 lofs, part of the goods valued be difpofed of j 39 
 
 Yet the value is only prima faeie evidence of the 
 
 intereft - . , .289 
 
 The principal difference between an open and a 
 
 ▼alued policy, is in tlie cafe of a total lofs 291 
 
 How and by lohom effeded - - ib. 
 
 Ufually by an infurance broker - - ib. 
 
 Vide Infurance Broker. 
 When effeftcd the infured may maintain trover for 
 
 it - - . - - 301 
 
 If an agent pretend he has effeded it, trover will 
 
 lie for it - - - - - 30a 
 
 Vide Agent. 
 
 Form and requijites of - - 303 
 
 When the prefent form was introduced - ib. 
 
 How interpreted - - - 250, 304, 5 
 
 A witnefs may give evidence of an ufage explanatory 
 
 of a claufe, but not his opinion of iia meaning 19S 
 Occafional claufes - - ^05 
 
 Its requifites are, 
 
 1. The name of the infured • - - ib. 
 
 In whofe name it may be - - ib. 
 
 Policies in blank prohibited - - ib. 
 
 Who fhall be an agent to infure - 308 
 
 A general sgent may infure without order 310 
 When the name of the brcl.er is fafUciciit jxt 
 An agent, though not general, may infure jri 
 Z, The names of the fip and miifter - - ib. 
 
 When the flip fpecified may be chyngcd, 
 Vide Ship (Clan^in^). 
 
 5, N* 
 
 S79
 
 ^So^ INDEX, 
 
 POLICY — continued. ?af^, 
 
 Rcqiiifitcs. 
 
 The names of theJJj'ip avJ majler. 
 
 No goods are witliin the policy, but tnofe on 
 
 board the fliij:) named - ■3^5 
 
 But a midake in the name will boE vitiate, if 
 
 the identity be proved - - - ib. 
 
 AVhen an infurance may be on board ^'Jl^ip or 
 
 JJJps'' - - - - 314 
 
 Vide Slyp. 
 The fpccie^ of vcff*! mull be mentioned - ib. 
 
 If the veffel be aletler of marque or privateer, 
 
 rtie muit be fo defcribed - " 3^5 
 
 The rna'fter's name mud be mentioned ib. 
 
 When he may be changed .■ - ib. 
 
 3. Thcfubjccl matter - - - ib. 
 
 It may be on goods generally, or the goods 
 
 may be fpecificd - - - 31C 
 
 "What fhall be comprehended under a general 
 
 policy on gocds - - - 3 '9 
 
 What not - - - - 320 
 
 What is comprehended in the word Jhip ib. 
 
 Bottomry loans mud be defcribed as fuch 317 
 
 Unlefs the ufage of a particular trade fliould 
 
 make an exception - - 3 '9 
 
 il^. The d'fcrijjt'ion of the Toyage - - 331 
 
 Has 3 direft reference to all the circumftances 
 
 ?.ttending it - - - 2 7« 
 
 If a blank be left for the port of departure, or 
 
 of deftinalion, the policy will be void - 3JJ 
 
 liovv- the commencement and end of the ri/Ic 
 
 fliall be fpecified - - - ib 
 
 If for a term, it mull not exceed i-i months 32s 
 It mull not be calculated to induce a falfe con- 
 
 cluuon - - -, - ib» 
 
 A policy on goods from the loading at A. \vill 
 
 not proteft goods loaded at B. though they 
 
 come to A before the fliip fails on h^r voyage 32 j 
 A policy from feveral places of departure will 
 
 not cover a voyage from one to another of 
 
 them - - - - - ib.' 
 
 The port or ports of deftinatior. muflbe truly 
 
 fiated - '^ - - ib, 
 
 u
 
 I N D 1 X. 
 
 Requifites» ***' 
 
 Dtfcrlption cfthe voyage . 
 
 If the fhip fail on a different Toyage from that 
 mentioned, the underwriter* wiU be dif- 
 charged . , 
 
 f Uiftinftion between an intended deviation and 
 
 a different voyage 
 V^idc Foyage {Deviation from.) 
 If the (hip be to take a particular courfc, it 
 muff be fpecified - . . jj^ 
 
 I ■ 5. The perils injured aga-njl _ _ ,,, 
 
 What perils are not within the general words ib' 
 Of the claufe " loft or net loft' _ . ji^ 
 
 This does not make the pohcy a wager - , . 
 
 Nor the contraft more hazardous . . ih 
 
 6. The powers of the inf tired in cafe of misfortune 3 j 4 
 
 Meaning of this claufe - . - <ni 
 
 7 . Premife of the infurers end receipt f:r thr prem 'urn 3 j 4 
 
 Why the receipt is part of tiie pohcy - ib. 
 
 An aftion will lie for the premium notwith- 
 
 ftanding the receipt - . - ? ^ e 
 
 The non-payment will not affeft the contradl ib, 
 
 %. The csmmon memorandum - - "ifi 
 
 9. The date andfuhfcript'wn - . . j{j 
 
 How the fubfcriptions are made - - XX" 
 
 10. Thejlamp - _ . _ -^ 
 
 To what duties marine infurances »re liable 
 
 337. J40 
 In certam cafes the excefs of duty, upon an 
 
 over-infurance, is allowed - - IjS 
 
 What contraft rtiall be deemed a policy liable 
 
 to thefe duties . _ . Jb. 
 
 No policy on a ftiip to be for a term exceeding 
 
 12 months - - - - ib. 
 
 y^ When a pohcy may be altered without a new 
 
 ftamp . - . . j^p 
 
 No policy to be ftamped after written i»r 
 
 printed - - . . ib. 
 
 Penalties for effecting, or contradiinj fur, any 
 
 infurance, unlefs ftamped - . ib. 
 
 Penalties 00 the broker for negotiatinjj f«ch 
 
 iifurance - - - ib. 
 
 ▼ 01., Hi p D In 
 
 SSx
 
 882 ^'* , I N D E Xr 
 
 POLICY.-^o«/;««^^. Page, 
 
 Rcqidfites. 
 
 In what cafe the two infurance companies may 
 contraA on unftamped labels - - 339 
 
 A flip of paper to pi-ove who was the firft un- 
 derwriter, to whum a reprefentation was 
 made, muft be ftamped - - 341,455 
 
 But this objeftion iliould be made in the firft 
 inftance - - - - 455 
 
 A memorandum extending the time of failing 
 requires no new ftamp - - - ib. 
 
 But a policy on a " fhip and ouljlt," cannot 
 be altered to " iliip and goods,'' without -a 
 new ftamp - _ - 242 
 
 But a policy will cover fucceflive cargoes 
 without a new ftamp - - - ib. 
 
 When a policy tnay be altered or correEled 343 
 
 What will authorize an alteration - - ib. 
 
 In what cafe the court will order it - - ib. 
 
 In what cafe it may be done after a lofs - ib. 
 
 When a court of equity will direft an alteration 344 
 
 When it may be in purfuance of an agreement ib. 
 
 When a parol agreement ihall control the words 345 
 
 POLICY BROKER. 
 
 Vide Infurance Broker. 
 
 PORT OF DISCHARGE. 
 
 Where there are feveral, in what order to be taken 325 
 Vide Voyage {^Deviation from.) 
 
 PREMIUM. 
 
 Why the receipt for it is part of the policy - 334 
 
 An aftion will lie for it notwithftanding this receipt 335 
 The non-payment of it does not afFe£l the contraft ib. 
 Vide Policy {Premium)— Return of Premium^ — In- 
 furance Broker . 
 
 PRESUMPTION. 
 
 Upon what ground a legitimate prefurhption may be 
 
 founded - ' - - 426,427 
 
 When a fhip fliull be prefumed to be loft - - 488 
 
 PRIVATEER. 
 
 May be infurec', '' intereft or no intereft'* - - 127 
 To what felvage entitled upon a recapture - 55 ^ 
 
 PRIZE.
 
 INDEX. 
 
 PRIZE. 
 
 Pagt. 
 
 When infurable by the cap.tors, Vide Inierejl {lufurdu) 
 — JVarranty {Neutral.) 
 
 PRIZE AGENT. 
 
 When he {hail have an infurable interert. Vide /r.tfrfj 
 {Infurable.) 
 
 PROCEEDINGS. 
 
 When adions at common law were firfl brought on po- 
 
 licies 
 A • " ■ ■ •24 
 
 Ancient mode of fetthng difputes - . i- 
 
 Hiftory of the court of policies of infurance - ib. 
 
 In what courts anions on policies may be 
 brought - . (i-3 
 
 Courts of common law - . . jj^ 
 
 Courts of equity have no jurifdicl ion - -6-0 
 
 The Declaration - . - 6S0 
 
 What is the proper form of adion - . ib. 
 
 Againft private underwriters . . ,1, 
 
 Againft the two infurance companies - . t.,ui 
 
 Form of declaring againft thcni - . ib. 
 
 Heads of a declaration - . . q^q 
 
 Count for money had and received - C%\, 604 
 Nooccafion to declare fpecially upon an adjuftment. 
 
 Vide Aa'pijlment. 
 
 How the intereft fliall be averred - . 6S7, ~;^i 
 
 How in the cafe of a foreign fliip - . (jn^j^ 
 One of feveral infureds may aver intereft in himfclf 
 
 alone - - - - 7 ' 2 
 
 When the venue may be changed - - 61^^ 
 
 Flea^ and bringing money into court. ib. 
 
 When the general iffue is the proper pica - ib. 
 
 Inftance of a fpecial traverfc - - 6yj; n. 
 
 What may be given \\\ evidence under the general 
 
 iffue - - - - - ib. 
 
 In what cafe the infured maft declare how much 
 
 he has infured - - - 6^<i 
 
 When the defendant may plead a tender - ib. 
 
 When bring money into court - - ili. 
 
 On wl^^t count - - - - ib. 
 
 O XJ 2 Wlir'I r 
 
 8S
 
 S84 INDEX. 
 
 PROCEEDINGS— ton/iflW. Pug*. 
 
 Plea and bringing money into court. 
 
 Whether alien enemy ought to be fpecially pleaded 697 
 How the two infurance companies muft plead 699 
 
 Confolidatim Rule. - - ib. 
 
 Neceflity of confolidating adl'onS - - ib. 
 
 Formerly done by authority of courts of equity ib. 
 
 Firft attempt to confolidate in a court of law - ib. 
 
 Nature of the rule - - -701 
 
 Neceflity of mutual admifllons - - ib. 
 
 Terms impofed on each party - - ib. 
 
 Benefits refulting from the rule - • ib. 
 
 Effedl of confolidating - - - 702 
 When the fuing out of a writ of error is a breach 
 
 of the rule - - - - ib. 
 
 Trial - - - - 703 
 
 Proofs on the part of the plaintiff - - ib. 
 
 An underwriter cannot be a witnefs - 704 
 
 Unlefs he be the broker who effiefted the policy ib. 
 
 The captain who is a part owner may prove that 
 
 the place in the policy was the true deftination 705 
 But not that a deviation was juilified by neceflity ib. 
 The proof t on the part of the plaintiff' are , 
 
 1. The contraB - . > • yoG 
 
 No parol evidence can be received to proTC an 
 
 agreement inconfiftent with the policy - ib. 
 Whether an ufage explanatory of aclaufe may 
 
 be proved - - - - 707 
 
 How far the ufage of trade ought to prevail ib. 
 
 What fhall be fufficient proof of the authority 
 
 of an agent to underwrite for his principal ib. 
 
 1. Payment of the premium - - 708 
 
 ^.Interejloftheinfured - - 709 
 
 How this fliall be proved - - ib. 
 
 Upon a valued policy - - 710 
 
 Upon a pohcy on.goods - - ib. 711 
 
 Bottomry loans - - ib. 
 
 How a bottomry bond iliall be proved - ib. 
 
 Proof of poflefllon is prima facie evidence of 
 
 title to a fliip - -'-711 
 
 So the appoiutmcnt of captam -« - 712 
 
 33ut the regifteris conclufxve •• - ib. 
 
 •8 One
 
 INDEX, 
 
 PR0CEEDINGS-r5n/;„W. 
 Trial. 
 
 S8? 
 
 -Plgr. 
 
 Proof i on the part of the plaintiff'. 
 Inter cjl of the infured. 
 
 One of feveral infured's miy aver and prove 
 intereft in himfelf alone - -71; 
 
 What fliall b:? proof of title to a prize (Kip ib. 
 
 Whether upon a writ of enquiry the plainlifi 
 mull prove it - . -120 
 
 4. Compliance -with -warranties - - - '"M 
 
 What {hall be fufficient proof of neutral pro- 
 P^^-^y - - - 71 + 
 
 5. Th'¥^ - - . . ib.' 
 
 This mufl be Hiewn to hare happened during 
 
 the rifk infured . - - ib 
 
 One part owner may prove kis lof« upon a 
 
 general p«hcy on freight - . -j© 
 
 Upon a fhip - . . - 7J< 
 
 Upon goods - - - ib. 
 
 By capture . - 7,(3, ^,7 
 
 By detention of princes - - - 716 
 
 By barratry - . . -717 
 
 What lofs may be proved on a policy on flaves ib. 
 Whefl paymeat of falvage is evidence - 72* 
 
 To prove the anaount of falvage paid upon 
 a recapture, the proceedings of the 
 Court of Admiralty mud be proved 83 a 
 
 By fire - - .720 
 
 The lofs proved muft be an immediate confe- 
 
 quence of the caufe allcdged - 717,730 
 
 In what cafe wages and provifioni (hall be a 
 
 lofs within the policy - 721 ^ 
 
 Whatftall be evidence of lofi on a policy on 
 
 the (hip 
 An iiifurer on goods is not liable for frciglit 
 
 72S, 7:9 
 How the plaintiff (hall recover - • 72(j 
 
 If he declare for a total lofs, he may n-- 
 
 covcr as for a partial lofs - - ib. 
 
 So he may recover ai part-owaer of an entire 
 
 thing - _ - ib. 
 
 What remedy the infured fliall have ngainll 
 
 theellate ©f a bankrupt underwriter - 731 
 
 €. IVheit a lofs improperly pa'ttl may be recc -red LtA 73a 
 
 y r> 3 PROCUaCATION.
 
 886 INDEX. 
 
 PROCURATION; Page. 
 
 Vide Agent; — Proceedings^ (Triaf). 
 
 PROFIT. 
 
 Influence of difcufled - "94 
 
 Vide Suljeci matter {Profit}. 
 
 PROHIBITED GOODS. 
 
 Vide Smuggling. 
 
 PROTEST. 
 
 Vide Evidence. ^ 
 
 PROVISIONS (Hiip's) 
 
 How protefted by the policy - - 721, 723 
 
 In what cafe the confumption of is a lofs within the 
 policy - - - 721, 725 
 
 Vide Proceedings {Proof of lofs). 
 
 QUALIFIED PROPERTY. 
 
 When an infurable intereft - - 105 
 
 QUARANTINE. 
 
 When the rifle on a fhip fhall continue during quaran- 
 tine _>_--- 264 
 
 RANSOM. 
 
 How the law now (lands refpecting the ranfoming of 
 
 mips - - - 503 
 
 When the purchafe of a captured (hip fhall be deemed 
 a ranfoni - - " " 5 1 5 
 
 RATS. 
 
 When the owners and mailer are liable for injuries by 242 
 
 REGISTER (fhip's). 
 
 A purchafer has no title to a fhip, either at law 
 or in equity, unlefs he be in the regifter - " ^ ' J 
 
 RE-INSURANCE. 
 
 Vide Inter efl {Re-infurance). 
 
 RENDEZVOUS. 
 
 Vide Warranty (Couvoy). 
 
 REPAIRS. 
 
 Vide Average, — Proceedings, ( Proof of lofs) . 
 
 REPRESEN-
 
 « INDEX. 
 
 REPRESENTATION. ^ 
 
 What Jhall he material, and hoiu and -when 
 made . . . ^.^ 
 
 Defined . . - , ih. 
 
 DifFerent kinds - . - ib 
 
 When material . . - ib 
 
 Difference between a reprefentation and a waiTanty 45 1 
 Written inftruftions, unlefs iiiferted in the policy, 
 
 are only rcprelentations - . jb. 
 Duty of agents and brokers as to the reprefentations 
 
 made by tliem - . - ib 
 
 Their refponfibility for any reprefentation made 
 
 without authoritv - . . , - , 
 
 . ' 4>- 
 
 At what time to be made - . . i(,. 
 
 If made when the flip is prcfented for fubfcriptions, 
 it will not affed tlie contract - - - ib. 
 
 A material mifreprefentation, whether by the iiifiirod 
 or his agent, and whether fraudulent or innocent, 
 will avoid the contract - 4J3»45'^-"'. 
 
 Though the pcrfon making it know not whether it 
 be true or falfe - - - - ib. 
 
 Or believe it to be true - - - ib. 
 
 Othenvife, if he ftate it only as L/itf - - 494 
 
 Or as matter of expeclation - - - ib. 
 
 But it he ftate his computation n^/uH, and it prove 
 untrue, it will be fatal - - - 45^' 
 
 How far the reprefentation to tlie firft undcrwritir 
 is a reprefentation lo all - 454» 77' 
 
 When deemed fiifficiently true - - 4 ^ S 
 
 It is fufficient if it be true in fiibllance - - ib. 
 
 If the rifle be reprefented as Icfs than that wliich is 
 
 defcribed in the policy, it will not affedl the 
 
 contraft - - - - - 4'59 
 
 A reprefentation, thougli untrue, will not avoid 
 
 the contraft, if the infuier be not deceived by it 4')! 
 But if it be ilated that a (hip was ready lo fail, when 
 
 in fa6l flie had foiled^ this is fatal . - -I'S 
 
 Vide Coneealment, 
 
 RESPONDENTIA. 
 Vide Bottomry. 
 
 RESTITUTION. 
 
 Vide L"fs {By capture — Byfalva^r). 
 
 D D 4 UETUKN
 
 60v» INDEX, 
 
 RETURN OF PREMIUM. Page. 
 
 Upon what principle this is founded - - 638 
 
 When the contrad is void ^ - - ^39 
 
 l". For nuant of intereji - - - ib. 
 
 Upon an ©ver-infuranc? - - ib. 04.0 
 
 But there fhallbe no return upon a wager - 640 
 
 Unlefs the contrad be refcinded while it is 
 
 executory - - - 041 
 
 There fliall be no return upon a re-infurance - 643 
 The principle upon which the premium (hall be 
 retained upon a void policy >? - 643 > 4. 
 
 , 2. The infurance being Illegal ^ " "45 
 
 Though the infurance upon a trading with the 
 
 enemy be void, there (hall be no return - 647 
 
 And though the infured be a foreigner and igno- 
 rant of our laws - - - lU. 
 3. For fraud on the one fide or the other - 648 
 If the policy be void for fraud on the part of the 
 
 infurer, the premium fhall be returned - ib. 
 
 But otherwife, if it be void without fraud - 654 
 
 Formerly there was a return of premium if the 
 
 tontraft was void, even for fraud on the part of 
 
 the infured - - - ^^^ 
 
 But the contrary is now fettled law - - d'iX 
 
 Where the rijk has not been commenced - 653 
 
 Whether this may be, when it proceeds from the 
 
 aft of the infured - - Jb. ^^\ 
 
 And where the ri/lc is not begun - - 654 
 
 When the voyage is divifible and part not begun 
 
 Upon an infurance " at and from " - - 658, 
 
 In what cai> ufage will warrant an apportionment 
 
 of the premium - - - 659, 660 
 
 Where a contingency v/ill divide the rifle - - 660 
 Where the :iflc is entire - - - 661 
 
 Where the premium is entire - - 663 
 
 Where the infurance is for a term - - 664 
 
 Where it is upon a life - - - 666 
 
 Where tke premium is computed at fo much per 
 
 month - - - - 66S 
 
 Upon
 
 1 N D I X, 
 
 RETURN OF PREMIUM-«r/;«u.i, P^ige. 
 
 Upon the performance of fome JiipuLv.icn - 669 
 Upon the {hip'5 failing with convoy and arrivi.g 
 
 ib. 671 
 Reafon of this flipulation - . 6-<, 
 
 Meaning of the word *♦ arrfTr/ *' _ -^-j 
 
 What arrival will entitle the infured to a return ^■73,4 
 What /hall be a failing with convoy wiiliin the 
 
 ftipulation. Vide Warranty (Convoy). 
 If the underwriter! be difcharged before tlie (\up 
 
 can fail with convoy, there iiiall be a return - 676 
 
 pedudion upon the return - - 6j6 
 
 Upon what ground this dedu£lio» it allowed - ib, 
 Whea the infured fhall have a verdid for the pre- 
 mium though ther« be a verdift again (I him upon 
 the merit! - - , . ^ca 
 
 REVERSIONER. 
 
 How a fire pohcy fhall be affigned to him . , Soq 
 
 JtflODIANS. 
 
 Their marine laws, Vide Marine La-M. 
 
 |IICE. 
 
 Not comprehended under the word ctrn in the ufual 
 memorandum » > - . . 831 
 
 RIGGING. 
 
 Vide TachU. 
 
 IDIOTS. 
 
 Whether the riots of 1780 were a c'wil commoUon 
 vvithin the exception of a fire policy - -791 
 
 RISKS. 
 
 Aga'inji what rifis marine infurances may be 
 legally made - - - - ' 5 
 
 Not againfl the fault of the infured - - ih. 
 
 Whether againfl the miflake of the captain - 4S7 
 
 Not againft any rifk upon illegal commerce - ^'5 
 
 Whether the live* of men may be infured - - iW. 
 
 In the cafe of Ne^ro Slaves - - «l». 
 Vidt Slavet.
 
 890 INDEX. 
 
 RISKS— cont'tmcd. Page 
 
 What are within the common policy - -217 
 
 EfFe£l of the words which fpecify the rifles - 218 
 
 Shutting the port of dehvery is not a rifle within the 
 
 pohcy - - - - lb. 
 
 Nor its being in the hands of the enemy - - 220 
 
 What are excluded by the ufiial memorandum 
 
 221, 231 
 
 Purport of it - - - - 22 1 
 
 ~ It controuls the general words of the policy - 228 
 
 When introduced into pohcies - - - 222 
 
 For what purpofe - - - ib. 
 
 , Form of it - - - - 223 
 
 The word corn comprehends peas and leans - ib. 
 But not rice - - - - 831 
 
 Conftruftion of the claufe, " Free of average^ unkfs 
 
 general^ or thejhip beJirandecP' - - 224 
 
 The two infurance companies omit the words, " or 
 
 the Jhip be Jiranded'' - , - - ib. 
 
 Held that they make a condition - - - ib. 
 
 Held that they make an exception - - ib. 
 
 Whether the underwriters be liable for a lofs upon 
 the enumerated articles though they fpecifically 
 remain - - - • 227* ^38 
 
 Whether upon a ftranding they are put into the 
 
 fame ntuation as other commodities - - 228 
 
 What fliall be a lofs by ftranding within the memo- 
 randum - _ - - 230 
 In what cafe the infurers fliall be liable for a partial 
 
 lofs upon the enumerated articles - " ^3^ 
 
 It is now fettled that the claufe, " or the JlAp he 
 Jiranded" is a condition, ^nd a fl;randing lets in 
 all partial lofles - - - - 233 
 
 Whether the memorandum excludes the total lofs of 
 
 an entire individual - _ - - 239 
 
 If the fliip be ftrandedit deftroys theexception, and 
 
 lets in the general words _ _ _ 235 
 
 Meaning oi the word_/?ran£/i//^ - - 239 
 
 Running aground in the river by being run foul of, 
 is not a ftranding - - - 240 
 
 Damasre
 
 INDEX. 
 RISKS — continue J. Pacf. 
 
 To what r'ljhs the ou-Jicrs and majlcr of thejtnp 
 are liable - - - - 4 1 
 
 Damage occafioned by the fault uf the (hip - ib. 
 
 Bad ftowage, wet, theft, embezzlement, rats, &;c. 242 
 
 Difference between the refponfibility of carriers bv 
 land and by fca - - - 243 
 
 The latter are anfwerable for theft, though all pre- 
 cautions be taken - . > _ 2^2 
 
 Whether they are anfwerable for accidents in (hip- 
 ping and lauding goods - - - a.^f 
 
 To what extent tliey are liable - - ib. 
 
 At common law - - - ib. 
 
 By ftatute - - - - ib. 
 
 But the infurers as well as the owners and matter 
 are Hable for external theft - - - 24^^ 
 
 Remedy of the infurci-s againft the owners and 
 mafter - - - - ib. 
 
 Duration of - - - -246 
 
 I. Upon goods ■ - . . z^i 
 
 On board the fame (hip - - - -4g 
 
 Removed to another Ihip - - - ib. 
 
 On board a ftore (hip - - - ib. 
 
 When they continue in a new fliip, on goods 
 
 bought \nth the proceeds of goods faved - 169 
 In what cafe they continue on goods taken on 
 
 board in the courfe of the voyage - -Mi 
 
 They continue on goods during an unavoidable 
 
 delay - - - -57 
 
 If goods be infured from the loading thereof, the 
 
 policy attaches upon the loading - 260, 32 j 
 How long they continue in the lighters of tlie 
 
 infured - - - - - ^.1' 
 
 How long in common hghters - " -55 
 
 If the owner of the goods take charge of them, 
 
 the lighterman io difcharged - - 256 
 
 Where the goods remain on board longer than 
 
 ufual - - - - '^^ 
 
 Where they are fold without unloading - - ib. 
 Where the general rule is controlled by particu- 
 lar ufagc - - \^^8 
 • 7 Every 
 
 891
 
 INDEX. 
 
 RISKS— rryn/;«af</. I*ag* 
 
 Duration of. 
 
 Upon goods. 
 
 Every underwriter is prefumed to know th\?ufage 
 of the trade he infures - - - 259 
 
 The ufage of one trade may be proved to fhew the 
 praftice in another fimilar trade - - ib. 
 
 2. Upon thejhip - - - 260 
 
 When it begins - _ - - ib. 
 
 In France - - - - 261 . 
 
 In England - - - - ib» 
 
 When it is for a limited term - - ib. 
 
 Where the infurance is " from*^ a place - ib. 
 
 Where " at and from'* a place - - ib. 
 
 Where it is " at and from'* an ifland, like Jamaica 
 or Guadaloupe . - _ ^^S. 
 
 Objeclions to the time of ending the rifle on fhips 
 in Englijb policies - - - 26s 
 
 Whether the infurers be liable for any lofs after 
 the 24 hours, or the end of the term - 262, 3 
 
 Where the caufe of the lofs exifted before - ib. 
 
 X)uring quarantine - - - 264 
 
 During an embargo r - - ^S^ 
 
 At what time the rifle ends where a ftiip is in- 
 fured from A. to B. generally - - ib= 
 
 Where a (hip is infurcd to Jamaica generally ib,. 
 
 Where a fhip difcharges part of her cargo, and is 
 chartered for another voyage^ in which (he is 
 to deliver the reft - - - 26S 
 
 When the infurance is to the //£/? Indies gene- 
 rally _ - _ - 267 
 
 On the tackle and rigging, landed during a re- 
 pair - ': - - 26^. 
 
 During an Eq/? India voyage. - - 2 7 1 
 
 With liberty to " touch, Jlay^ andtradt in any forts 
 or places" - - - - - 27* 
 
 What is meant by " any ports and places " - ib. 
 
 Where the liberty is "to touch andjlay'* only 273, 4 
 
 The general words will not extend the rifli beyond 
 its defcription _ - - - 274. 
 
 A liberty to touch and ftay ** at any ports and 
 places" means only places in the ufual cour& 
 of the voyage - - '^75. 
 
 This liberty muft be flri<filv adhered to - ib. 
 
 The
 
 INDEX. 
 
 RISK — centinueJ. Picf 
 
 Duration of. 
 
 Upon ibejh'tp. 
 
 The rillc may be properly commenced, though 
 
 under unforefeen circumftances - - i-c 
 
 Whether faUing from A. for B. which is an ir.te. 
 
 gralpartof a voyage from A, to D. bo a com- 
 
 mencement of tlie rifk from A to D. - 276 
 
 Whether the rifk continues though the fliip do 
 
 not touch at the places in their proper order 277 
 Where a fliip has hberty to cruife for a certain 
 
 number of weeks - « - 107 
 
 $. Upon freight - . .278 
 
 When it commences - - - ib. 
 
 If part of the goods be fhippcd - - jb. 
 
 If the fhip be loft in her way to the port of 
 
 loading - . .379 
 
 When a policy on freight of a homeward voyage 
 
 attaches - - - 2 "9 
 
 A pohcy on freight from A. B. and C. to D. 
 
 will not proteA the freight from A. to B. 2S0, 325 
 
 Whether the rijk may he changed -281 
 
 EfFeft of changing the rifk - . . |V,. 
 
 In what cafe the taking of Utters of marque on 
 board will difcharge the underwriters - ib. z^\ 
 
 ROBBERY. 
 
 When the owners and mafter arc liable for, Vide R'tjlt 
 {Oivnen lUblt), 
 
 ROMANS. 
 
 Whether acquainted with th^ contraft of infurancc 5 
 
 To what extent they carried navigation - - ib. 
 
 ROTAL EXCHANGE ASSURANCE. 
 Vide In/urance Companies. 
 
 RUNNING FOUL. 
 
 Vide L oft {By collifion) . 
 
 SAILING INSTRUCTIONS. 
 
 Vide Warranty {^Convoy}. 
 
 SAILORS. 
 
 Duty of in cafe of misfortune - -616 
 
 '" -"S of, when a charge on the iufurcr - 5 J 8, 721 
 
 VVhco 
 
 S93
 
 INDEX. 
 
 SAILORS.—continued. Page. 
 
 When entitled to receive their wages - ^89 
 
 Cannot infure their wages - - - 90 
 
 But they may infure goods purchafed therewith. - 91 
 
 They may borrow money on refpondentia, on their 
 goods on board, but not on their wages - 747 
 
 SALVAGE. 
 
 Vide Lofs {By falvage). 
 
 SCOTTy SIR WILLIAM. 
 
 Charafler of his decifions t - - 3"^ 
 
 SEA LETTER. 
 
 Vide Documents. 
 
 SEARCH. 
 
 Vide Warranty {Neutral). 
 
 SEA RISK. 
 
 Vide Lofs {By perils of the /ea). 
 
 SEA-WORTHINESS. 
 
 Vide Ship {Sea-iuorthinefs of), 
 
 SENTENCE (foreign). 
 
 EfFed of, Vide Warranty {Neutral) — Ship {Conduci of). 
 
 SHIP. 
 
 Who fhall be deemed owners of - - 11$ 
 
 What fhall be deemed part of - - 727 
 
 Vide Regijler. 
 
 Sea-worthinefs of - ' ^S'^ 
 
 Implied warranty of - - - ib. 
 
 Different degrees of - - 1 54, 476 
 
 At what time (he muft be fea-worthy - ib. 
 
 What credit is due to a previous furvey ' - 155 
 
 A fhip infursd " at and from" need not be fea- 
 worthy when the pohcy attaches - - 201 
 
 Whether a fliip (hall prefumed lo have been fea- 
 worthy, till the contrary be proved - ^5^ 
 
 When the proof of unfeaworthinefs lies on the in- 
 furer _ _ _ - 1J9 
 
 A witnefs who never faw the (hip, may prove that 
 from the ftatement of another witnefs, (he was 
 not fea-worthy - • - 832 
 
 Nothing
 
 INDEX. 
 SHIP — continued. Pa?e 
 
 Sea-ivoribinejs of. 
 
 Nothing will exciile the breach of this implied war- 
 ranty - . . . , . ., 
 
 Not the ignorance of the infurcJ - - i Oj 
 
 Nor the infurer's knowledge of the Hate of the 
 fhip - ... ,6, 
 
 In what cafe the infurer fiiall be liable for damage 
 occafioned by the infufficiency of the fliip - 165 
 
 In what the owners - _ - ih. 
 
 In general it is fufficient if tlie rtiip be fea-worthy at 
 her departure - - - ih. 
 
 If a defeft appear foon after her failing, the iufcr- 
 rence is that (he was not fea-worthy - ib. 
 
 To be fea-worthy fhe mud be properly manned ib. 
 
 She is not fea-worthy without a pilot, where ne- 
 
 «95 
 
 cefTary 
 
 If fhe be not fea-worthy during anv part of her 
 voyage, nothing fubfequent will better her con- 
 dition - - - - 413 
 
 There need be no reprefentation rcfpcfting the ftatc 
 of the fhip before fading - -475>^^3 
 
 Changing the JJjip - - - 166 
 
 When this may be - - - ib. 
 
 No claufe neceffary to warrant a change of fliip, in 
 cafe of neceflity - - " i^'7 
 
 If a man infure upon any fljip he (hall come in from 
 A. to B. he cannot, by removing, cliangc the 
 fhip ... - 168 
 
 • If the fliip be changed by nccefTitr, the rilk will con- 
 tinue on new goods bought with the proceeds of 
 thofe faved - - - 16^ 
 
 When the bell is done for the intcred of all parties, 
 the infurers will be liable - - J 7 ' 
 
 In what cafe the captain ought to hire anotlu r 
 vefTel - - - - J;i 
 
 To what expences the infurers are hablc in ruLh 
 cafe - - - - - ib. 
 
 Jnfurancc of goods in '''' Jh'ip or Jhil<s'' - 172 
 
 When this may be ... jb. 
 
 If there be two policies on goods on board *^Jhip or 
 JIAps,'* and a fliip with part of the goods be 
 loll, tlic infurers on both flinll coiitrihu:.? ib
 
 §9^ t N D E is* 
 
 SH.lP'—eonlinued. IPtgit 
 
 Infurance of goods in ''^ Jhip or Jlnps^** 
 
 If goods be infured in a certain (hip, and others ia 
 ^'Jh'tp orjhips," and the latter be loft, the under- 
 writers on the latter policy alone fhall anfwer - I'j^ 
 
 If goods of larger value than the fum infured injhip 
 orJJjips, be put on board feveral fkips, and fome 
 are loft, how the lofs fliall be borne - 176 
 
 If goods infured in feveral ftiips, by feveral policies, 
 be all fent in one veffel to the feveral fhips, and 
 this be loft, how the l9fs fhall be borne - 176 
 
 Etnploy7nent and condu^ of - " ^77 
 
 ' This muft be according to law * - ib. 
 
 In what cafe a legal difqualification will avoid the 
 
 policy - - - - ib. 
 
 Whether the contraft will be avoided by the (hip's 
 
 adliag in contravention of a treaty - ijt 
 
 As to the offence of deftroying any fhip, Vide Lofs 
 
 (By Barratry) — Lq/s {Fraudulent). 
 As to the rifl< upon the ftiip, Vide Ri^ ( Upon thejhip). 
 As to foreign built ftiips. Vide Warranty {Neutntl). 
 How valued upon a lofs, Vide Adjujlment of Lojfes, 
 
 SHIPPING AND LANDING GOODS. 
 
 Who (hall make good loffes happening in. Vide Rifk 
 
 {Ozuners liable). 
 In private or public lighters, Vide Rifh [Duration of)» 
 
 SHIP'S HUSBAND. 
 
 Vide Jgent. " 
 
 « SHIP OR SHIPS" (infurafice in) ► - 173 
 
 Vide Ship. 
 
 SHIPWRECK. 
 
 Vide Lofs (By perils ofthefsa) Aiandofiment, 
 
 SIEGE. 
 
 Vide Blockade, ^ 
 
 SLAVES. 
 
 Formerly infured as goods » "' ' 93 
 
 How the trade ia them was regulated - - ib. 
 
 Tkii
 
 INDEX. 897 
 
 SLAVES— w«/mM^^. Page. 
 
 This trade is now totally abolKKed - - 93 
 
 Whether fla/es thrown overboard in a ftorm, or in a 
 . fcarcity, be a lofs within the policy - - C^o 
 
 Vide Rijiy^-Suljca maiur {S/avct). 
 
 SMUGGLED GOODS. 
 
 As to the infurance of. Vide SuhjiS matter {Smiir^UJ 
 goods ) . 
 
 Whether money, jewels, &c. intended to be clandcf- 
 tinely tranfported , may be infured - " 3'9 
 
 If the mafter be guilty of fmugghng it is barratry 263 
 
 But if the (hip be not feized for fuch fmuggling till 
 after the rifle ended, the infurers will not be liable ib . 
 Vide Ri/h {Duration of). 
 
 A feizure by aa enemy for fmuggh'ng is not a cap- 
 ture - - - . _ 6Sj> 
 
 STAMP. 
 
 Vide Policy {Stamp), — Fire {Infurance tgairfl). 
 
 STATUTES CITED. 
 
 An. Reg. Ed'-j.'ard /. 
 
 3. C.4. p.548n. 
 
 4. c. 2. p. 548 n. 
 
 Edivard III, 
 
 II. c. 2. p. 12. 
 
 25. c. 2. p. 556. 
 
 27. c. 13. p. 54Sn. 
 
 Richard III. 
 
 I. C.9.P.13. 
 
 Henry VIII. 
 
 28. c.i;. p. 556. 
 
 Elizabeth. 
 
 43. 3 c. 12. p. 3. ih-5* 26,6g() n. 
 
 James I. 
 
 21.- C.3. p. 13. 
 
 Charles II. 
 
 32. C. I S. p. 63, 64, 557, 64:. ■ 
 
 13 U. 14. c. 23. p. 2C. 
 
 16. c. 6. p. 74-i. 
 
 I'j. & %%. c. tip. 742.
 
 SgB. INDEX". 
 
 STATUTES CITED— condijued. Page. 
 
 An, Reg. William and Mary. 
 
 4 & 5. c. I5.P-57- 
 
 7 & 8. c. 22. p. 63, 64. 
 
 IVilUam in. 
 
 8 & 9. C.36. p. 57. 
 
 9 & 10, c. 44. p. 65, 66, 67. 
 c. 52. p. 182. 
 
 n & 12. c. 7. p. ^^6. 
 
 Anne. 
 
 1 Hat. 2. C.9 p. 557. 
 
 5. c. 8. p. 6311. 
 
 9. c. 6. p. 2. 
 
 12. c. 16. p. 649. 
 
 12 ftat. 2. c. 18. p.548- 
 
 George I. 
 
 I. c. 5; p. 794. 
 
 4. c. II. p. 557- 
 
 . c, 12. p. 558. 
 
 6. c. 13. p. 697. 
 
 6. c. 18. p. 28, 45, 48, 695, (:97. 
 
 7. c. a I. p. 744, 745. 
 
 7. c. 27. p. 47. 
 
 8.- c. 24. p. 90, 557. 
 
 . C.30. p. 697. 
 
 II. c. 29. p. 558. 
 
 . — ^— c. 30. p. 698. 
 
 George II. 
 
 7. C.5. p.794. 
 
 c. 21. p. 744, 745. 
 
 12. : 0.30.0.6311. 
 
 ' 13. c. 4. p. 55111. 
 
 15. c. 33. p. 63 n. 
 
 19- -c. 32. p. 144 n- 
 
 19. c.3:^. p. 60, 97, 103, 111, 116, 118, 122, 126, 
 
 133, 136, 143, 146, 152* 2S8, 587, 
 640,710,743,761,764. 
 
 £2,- c.33.p.3i7»3i8> 361. 
 
 26. -c. \<\. p. 54S. 
 
 29. c. 34. p. 568 n. 569. 
 
 George HI- 
 
 14.. C.48. p. 129, 306, 774, 787. 
 
 16. C.5.P.83. 
 
 19 c. 67. p. 108 n. 
 
 23.
 
 STATUTES ClTED-sonilmifd. 
 An. Reg. Georgf III. 
 
 22. \. 25. p. 504, 5- J. 
 
 24. c. 47. p. 263. 
 
 25. C.44. p. 306. 
 
 -'\ i. 60. p. 116, 3S.;. 7 '.?, 
 
 — C.86 p. 245. 
 
 27. c. I. p.-. 
 
 c. 19. P.3S4. 
 
 2 3. c. 38. p. 5s. 
 
 c. 56. p. 307, 309, J I r . 
 
 29. c. 68. p.8S. 
 
 31. C.54. p. 17S n. 
 
 33. c. 27. p. 32, 3S5 SS. 
 
 c. 52. p. C6, 67. 
 
 c. 66. p: 283, 3&1, 505, 593 n. 
 
 34 c.p. p. 88. 
 
 c. 68. p. 3S4. 
 
 3 c. c. 8. p. 684. 
 
 c. (iz- p. 261, 322, 337, 341. 
 
 ■ c. 80, p. 109. 
 
 37- C.97. p. 68, 75, 182. 
 
 38. c. 76. p. 379, 383, 474. 
 
 39 & 40. c. 67. p, 63 n. 
 
 41. c. 10. p. 338. 
 
 42. c. 99. p. 340. 
 
 43. c. 160. p. 50;, 551, 568 n. 
 
 44. 0.93. p. 341, 786. 
 
 47 ^- 3^- P- 93. 94. j54 '^' 
 
 STOWAGE. 
 
 Vide Rijh [Owners and mnjler liable). 
 
 STRANDING. 
 
 What fliall be - - 23 4» 239- 2 4°. (*^9 
 
 VAc R:JT:s [Excluded by mcmoranditm)—Lvfs [By 
 
 perils of the fia). 
 SUBJECT MATTiiR (of marine infurance). 
 
 Smuggled gc. is - - "5^ 
 
 Infurance upon is void - - ' ' ' 
 
 Wliat is meant by - 
 
 The infurer may take theobjcaiou ihon^-jh he kn'•^•• 
 the trade to be illegal 
 I k 2
 
 9^0 INDEX. 
 
 SUBJECT UArrER—co;i::r.u,J. Pagcv 
 
 Smuggled goods. 
 
 Dodlrine of foreign writers on this point ~ 6^ 
 
 Infuring the delivery of, rcRrained - "57 
 
 How theinfurance of the deHvery of woo/ in foreign 
 
 parts is rcftrained - - - - - r8 
 
 ' Whether a trade prohibited by the laws of one 
 
 country may be legally infured in another - j8 
 
 The laws of England pay no regard to the revenue 
 
 laws of other countries - - - 6o 
 
 Whether a policy on a fmuggling adventure in a 
 
 foreign country, contrary to a EriiiJJi treaty, be 
 
 legal - - - _ - ib. 
 
 Vide Stnuggled goodiy 
 
 ProhibHed colonial commerce - - 62 
 
 No infurance can be legally made on any com- 
 merce carried on contrary to the laws of the 
 dependencies of this kingdom - - 62 
 
 How the colonial trade is regulated by the naviga- 
 tion laws - « J - ib. 
 
 Goods cannot be infured from the Br'iujh JVeJl 
 Indies to Gibraltar - - -64 
 
 Nor on board a S'U>edi/7j {hip from Madras to 
 G'jttenburgh - - - ib. 
 
 No legal infurance can be made on a voyage to the 
 Eajl Indies in eontravention of the 9 & 10 
 IV. III. c, 44, though the penalties of that aft 
 are repealed - - - - 65 
 
 How a licence from the Eafl India Company fhall be 
 conftrued, where the whole of the voyage becomes 
 ' imprafticable - - " ^37 
 
 Though the yfniericans may trade to the Brlti/h 
 fettlements in In .'ia, they mull not carry on the 
 coafting trade - - - 6S 
 
 If a foreign fliip, trading to the Briti/h colonies 
 under a treaty, violate the treaty, this will 
 avoid a policy on her * - "74 
 
 But a policy on a legal cargo is not vitiated by a 
 previous offence of this fort - - ib. 
 
 Contraband of ivar - - • 7^ 
 
 Whjit articles are fuch - - - ib. 
 
 Infurance of, illegal - - -81 
 
 If fent to the enemy - - - ib. 
 
 If
 
 i N D E X. 
 
 SUBJECT MATTEK^con:inucJ. p,^_ 
 
 Coritraband of luar. 
 
 If exported ia contravention r f an embargo . 3, 
 
 If fent to a Brifi/h colony with which all inicrcjurfe 
 
 is prohibited - . - Sj 
 
 Or while it is in the hands of the cr.emy _ 3^ 
 
 Commerce with the enemy . . -8c 
 
 All trade with the enemy without a licence is ilh-al ib. 
 Such licence mull: be ftrictly obferved - "* - 87 
 
 Goods bought of the enemy cannot be infmcd 86, 87 
 But this objedion mali be taken in the lirll 
 
 inllance - . - 36, By 
 
 Goods fcnt to ZLBritylj fettlement, while in»thc 
 
 hands of the enemy canr.ot be inl'ured - - 3a 
 
 But oil, tl-.e property of a neutral, may be irifund 
 
 fron: a neutral port to an enemy's port - SI'S 
 
 The mere carrying of enemy's goods cu board is no 
 
 breach of neutrahty - - - ib. 
 
 If a fhip in fuch cafe be feized by a Br'tljb fliip of 
 
 war the infurcd may abandon - . jj,. 
 
 Vide Enemy. 
 
 IVages and effects of manners . . g^ 
 
 Mariners are to "cceivc but a moiety of their wages 
 
 abroad - . - ib 
 
 They cannot iiifure their wages - - go 
 
 But they may infure goods purchafed therewith - yi 
 The captain may infure his goods on board, or his 
 
 fliare in the fhip . . - ib. 
 
 Or he may infure his commiffions and privileges in 
 the African (lave trade - - y j i 
 
 Vide Sailors. 
 
 951 
 
 Freight 
 
 QI 
 
 In France freight not alreiidy earned cannot be 
 
 infurcd - . - io 
 
 In England freight f.r/rflf.'', as well as the Hiip, may 
 be infurcd - _ . 
 
 What (hall amount to a lofs upon frci-lit - it. 
 Vide Fre'^ht. 
 
 %- E I i • Slavft
 
 )^0 2 r 11 I) E X. 
 
 SUBJECT MAT'; £: -^«2/;;^«^^. Page. 
 
 Slaves - - - - - '92 
 
 Were formerly infured as goods - "93 
 
 Ho".v this trade was regulated - - ib. 
 
 Now totally abolilhed in this kingdom - - ib. 
 
 Frojit - - - , - 94 
 
 Hovv in furable abroad - - - ib. 
 
 Reafons againlt tlieinfuraiice of it - - ib. 
 
 Yet it bus been holden to belegal - ~ 97 
 
 If imaginary profit of a cargo of goods be infured, 
 the lofs of the fhip is a total lofs, though the 
 cargo be carried to the port of delivery in 
 another fltip - - - loi 
 
 But the infured muft fiiew that he would have made 
 a profit had not the lofs happened - - loz 
 
 TACKLE. 
 
 How proteAed by the policy - - - 26 j 
 
 Vide Rifi {Duration of~Onfi;p). 
 
 TENDER. 
 
 Vide Procee.:i!;g: {Pica). 
 
 TKEPT. 
 
 When the owners and matter fl:!all be hablc for - 243 
 
 Vide P.yi: {Civmrs liaik). 
 
 TIME (Infurance for). 
 
 Not to be for longer than twelve nionths - -33^ 
 
 Vide Polity [Stamp), 
 I When the lifks on a policy for time n-iall end 26I; 5S4 
 
 Vide Rif: { Duration of). 
 
 TOTAL LOSS. 
 
 Vide Lojs^ — Ahandommni. 
 
 TRADE AND TRADING. 
 Vide Commercs, 
 
 TREATY. 
 
 Wi-elher a trade carried on in contravention of a 
 Brltj/li treaty may be infured - ' 60, 178 
 
 TlllAL. 
 
 Vide Ptcceedi?igs [Trial). 
 
 TRUSTEE
 
 I N D r. X. 
 
 TRUSTEE. 
 
 Vv'lien he fhall have an infurable intereft 
 Vide Intereft {Infurable}. 
 
 UNDERWRITERS. 
 
 Vide Partus to the Contraa {InfurerA. 
 Charadler of the Fr:n:h underwriters 
 
 Engl'ijb underwriters - - lu. 
 
 An agent or broker ouj^ht not to underwrite ?oi, -04 
 
 If he do, he may from necefficy bo a w itacfs for l! c 
 other underwriters 
 
 USAGE OF TRADE. 
 
 What fliall be deemed - - - 1 ? ''. 
 
 A few inftanccs will not make an ufajrc - - ib. 
 
 Efteft of ufag? upon the contrafl of infuranrc - j^'. 
 
 Every underwriter is prefumed to know the practice 
 
 of tlie trade in which he iniures - - .- , 
 
 And he is bound by fuch ufage - - ■ - ^ 
 
 Defciibing the voyage is a reference to all the eircum- 
 
 fiancesofit - - - , ;»,. 
 
 The warranty to fail with convoy m controlled bv 
 
 ufage - - - - - 
 
 The ufage of one tra.'e may be given in evidence '.. 
 
 prove the praclice of another fimilar trade 
 Whether a practice prevaiUng for three years .n.v,, .; 
 
 to an ufage of trade - - 
 
 Upon what principle the authority of ufage rcfts - j^; 
 How far it ought ; rtvail _ _ - jh. 
 
 An ufage not inconfjftent with tlie terms of tiic 
 
 policy may be received in evidence - " i''^J 
 
 In what degree the terms of the policy arc controlled 
 
 by ufage - - - <^^'ii 7*7 
 
 Vide EviJencs. 
 
 «' USURPED POWER." 
 
 How thefe words are underflood in a fire policy - ' rj ■> 
 
 VALUATION. 
 
 How,fixcd in a valued policy - » - ; 1 
 
 Vide Adjujltnent {/Is to value). 
 
 VALUED POLICY. 
 
 Viuc PvHy {D'ljferent fort). 
 
 E t 4 VENUE.
 
 INDEX. 
 
 VENUE. Page. 
 
 When it may be charged in an a£lion on z policy - 694. 
 
 Vide Proceedings [Decldrai'ic/n). m> 
 
 VISITATION AND SEARCH OF NEUTRALS. 
 
 The right of vindicated - - 81, 436 
 
 Vide Subjea Matter ( Contraband of ivar), — Warranty 
 ( Neutral — Forfeiture ) . 
 
 VOYAGE. 
 
 Wkat - - - - 180 
 
 IV/jsn the illegality of it avoids the contract - lb. 
 
 No legal infiirance can be made on an illegal voyage 181 
 As being contrary to tho laws oi this kingdom or 
 
 any of its dependencies - - ib. 
 
 Or the law of nations - - - ib. 
 
 Or the laws for protefting the mcnopo'y of the 
 
 Erfl India Company - - - ib. 
 
 Though the penalties of the 9 & 10 V/. III. c. 44. 
 
 repealed - - - 182 
 
 But a voya:ge will not be illegal becaufe the iviJe of 
 
 the voyage Hcejifed by the India CimpJny becomes 
 
 impracticable - - ' ~ ^3^ 
 
 What fliall be a legal voyage between Ainerica and 
 
 the Br'itifo fettlements in India - - 182 
 
 If c^n entire voyage be illegal in its commencement, 
 
 an infuvance on any part of it is void - " 7^ 
 
 How the voyage Hiall be defcribed in the policy 321 
 The defcripticn of the voyage is a reference to all 
 
 the circumftances attending it - - 270 
 
 When the lefs of the voyage fhall be a total lofs. 
 
 Vide Ahandommut. 
 
 deviation from - - " ^ S3 
 
 Deviation defined _ > - ib. 
 
 Eifefl of - - - - ib. 
 
 Diflindlion between an intended deviation and a 
 
 different voyage - - 184, 326, 327 
 
 Vv^hy it difchargcs the underwriters - - 184 
 
 It determines the coiif raft, though the ihip refume 
 
 her proper courfe - - - 1 85 
 
 I. Wl-ntJIjaUhe - - - ib. 
 
 What is 0icant by the ufual coarie of the voyage ib. 
 
 Stopping
 
 INDEX. 
 
 VOYAGE^conthufJ. p, ,^ . 
 
 Dtination from. 
 IVhatJhallle. 
 Stopping at certain places i« no deviation, If 
 
 according to ujagt - - - t8 c 
 
 But a few inftances will not make an ufagc - ib6 
 The fmallnefs of a de>iation makes it not the lefs 
 
 fatal . - . . ib. 
 
 It is fatal, tliougU neither the rifle or the prr- 
 
 mium would be givater if it were permitlc-J - iS; 
 A liberty to ' touch and jiay '" will not warrant 
 
 a Ircahhig bulh or traJirg at a place 1 88, 275 
 
 Yet a fliip, with liberty to touch only, may trade, 
 
 provided this cccafion no delay, deviation or 
 
 additional rifk - - . 8^? 
 
 Nor will a liberty to di/charge goods warrant a 
 
 takicg of others - . _ 188,275 
 
 If th^rebe feveral ports of difcharge, the (hip ruiII 
 
 vifit them in their order - - - 189 
 
 Unlefs there be an ufagc to the contrar)- - ib. 
 
 She may go to any one place - - lyo 
 
 But if to more than one, fhe muft take them in 
 
 their order - - 190, 325 
 
 If the ports of difcharge be not particul.irly 
 
 fpecitied, Hie mufl take them in geographical 
 
 order - - - 190 
 
 But neceflity will juflify a variation ia the order 
 
 of the places - - - lyi 
 
 A liberty to touch " at any ports cr places'' 
 
 means ports or places in the ufual courfe of Wie 
 
 voyage - - - - ib 
 
 Such a liberty is fubordinate to the voyage 
 
 infured - - - - ib 
 
 It gives no power to r/^/TTf^ the voyage - lyi 
 
 In what cafe a cruifing in quell of prize (hall ivX 
 
 be a deviation - - ' ^')S 
 
 Whether a letter of marque nxiy chafe an enemy 1^6 
 How a liberty to cruiic for lix wcfks Ihall be 
 
 conllrued - - • • '97 
 
 A liberty to take l(?lters of marque is conftrucd 
 
 ftriclly - - • itjt 
 
 A liberty to chafe, capture, and manpn/cs, will 
 
 net judify convoying a prize - - i'/^ 
 
 W'lXA 
 
 905
 
 f)06 INDEX. 
 
 \'0Y \CKlL-cDrJlr.ued. Pa-. 
 
 Deviation from. 
 
 What fiall he. 
 
 When an unufuiil duration of the voya^\ 
 
 to a deviation - - - .',,9 
 
 Time fpent in repairs is not an unneccflary delay ioa 
 An inlended deviation will not difcaarge the 
 nnderwi iters - - - 201 
 
 When a previous defign to touch fh^ll be only an 
 intended deviation - - - 324 
 
 DiftinSion betv/een a different voyage, and an in- 
 tended deviation - - 3^,^-5 
 
 What rnrril be the confeqnence of failing on a voy- 
 age different from that defcribed in the policy 326 
 
 Vfiiatever may be the intention of the infured, if 
 the Hiip fail on a different voyage from that de- 
 fcribed, the underwriters are difcharged - ib. 
 
 If freight be infured from A. to B. but the goods 
 are intended to be fent to C. the policy is void ib. 
 
 If there be feveral tracks to the place of defliiia- 
 tion, the mailer fliould be at liberty tc chufe 20^ 
 2. When j-djt'ijied by necejfity - - - ib. 
 
 If the captain aim to perform the voyage in the 
 flioiteil and fafeft manner, a departure from 
 the direft courfe is no deviation - - ib. 
 
 The extent of the deviation mufi; be juftified by 
 the degree of neceffity - - 204 
 
 A deviation is juftined by neceffity, though tlie 
 caufe of the neceffity be notamongfl; the penis 
 infured again (l _ - .. ib. 
 
 -• T^y3^'^fi "J 'Z"^^^^'^'* " " - ib. 
 
 2. Want of necejfary repair - - - 207 
 
 Putting into port to lighten, if too heavily laden, 
 
 or to take in ballaft, if too light, is no deviation 2oS 
 Eut a iliip muft not trade when Hie puts into a 
 port for repairs - ' - ." - 209 
 
 Yet a fhip having liberty to touch, may trade, if 
 
 it occafion no delay or additional rifle - 835 
 
 3 To j oh convoy - - 210,354,355 
 
 4. Succouring JJj'tps in dijirefs - - - 21 1 
 
 _5 To avoid cuttwe or ditention - - . ib. 
 
 6. S'cknefs of the majler or mariners - - - 212 
 
 7 . Mutiny of the crenv - - - - il>. 
 When a deviation fliall amount to barratry^ 
 Vide Z.O;G- (By barratry). 
 
 WAGES
 
 WAGES 'of imriner..). r 
 
 When and l"o\v ravable 
 
 - • " ' ^ J 
 
 Incurred during a repair, when a general arrra^ 
 
 W hether mfurable - . r^n . . 
 
 on 
 
 9V 
 
 ' 747 
 
 Whether money may be lent on rcfpondcniia 
 wages - . . 
 
 Vide Sailors — Suljea Matter UVa^.-t). 
 
 WARLIKE STORES. 
 
 Y\<i<i Sithjt:! Mcitir (^Contrabj.id of lk'ur\ 
 WARRANTY. 
 
 Nature of . . .3^6 
 
 Different forts - - . . , 
 
 How conlbucd » _ - •■-. 
 
 How performed - - - ilj 
 
 Eficdl of the breach of - - - . ■•' 
 
 .J 1 ■" 
 
 Hozu made - - , . •^^q 
 
 It mnfl appear on tlic face of the policy - ib. 
 A paper wrapped in, or w afcre J tOj a policy, will not 
 
 make a warranty - - - S?o 
 
 But it may be written in the margin - - - ib. 
 In what cafe the contents of a fcparate paper will 
 
 make part of the contra>fl - - - ib. 
 
 21jat the Jhlp was fafe on a given day - ib. 
 
 It is luflicicat if flie was fafe on any pari of the day ib. 
 
 To fail by a given day - - -351 
 
 Nothing will ejccufe a non-(-():r;;!i:.iire - - ib. 
 
 Not even an eir.bargo 
 
 Or an inefilliblc-force - - - ib. 
 
 And a warranty to fail after the day mud be per- 
 formed with equal ftriftnefs - - ib. 
 
 What fhall be a compliance with this warranty - jjj 
 
 If (lie fail before t'le day, but not in the direifl courfc, 
 this will be a different voyage, unlefs it be to join 
 convoy - - - - -353 
 
 If an embargo be proclaimed, and the fliip put her. 
 felf into it, this will excufe a non-complianci." 358 
 
 Breaking ground with intent to lail, though im- 
 mediately obliged to put back, is a coMii)haiicc 359 
 
 What fhall be a departure from tin- pin uf L.n.l.n ib.
 
 908 I N D E X, 
 
 WA E RATsTY—eonthv.'eJ. Pag 
 
 To fail with convoy 
 
 - ib. 
 
 This muft be ftriaiy performed - - 359 
 
 Effeft of non-compliance - - ib. 
 
 Whether fhe may fail without convey, if fhe b- dif- 
 abled in her way to the place of rendezvous 360 
 
 1. It muji be ivith the regular conioy - - ih. 
 
 Convoy what - " - ib. 
 
 How the ofRcers, &c. of the convoying fhip 
 
 fhall be puniflied for mifbeha-.iour - ib. 
 
 What fort of convoy is meant by the warranty 361 
 The mtre proteftion of a (hip of war is not 
 
 convoy - - " S'-*^' 
 
 2. And from the place of renJef-vous appointed by 
 
 government - - - - ib. 
 
 When the (hip fhall be protefted by the policy 
 to the place of rendezvous - - 3<53 
 
 3. And 'With convoy for the voyage - - 364 
 
 What is meant by convoy for the voyage 364*5 
 Whether different convoys, for different parts of 
 the voyage, be convoy for the voyage 367, 8, 9 
 
 4. Thejlnp mufl have failing inflrua'ions - 3^8 
 
 How far thefe are eflential to faihng with 
 
 convoy - - - ib. 
 
 If the fhip arrive at the place of rendezvous 
 before the appointed time, and find the 
 convoy gone, this will not excufe the want 
 cithern - - -3^9 
 
 In what cafe the want of them will be excufed 
 
 371,2 
 If the mafter of the fhip lofe any opportunity 
 
 of getting them, it is fatal - * 373 
 
 The warranty mufl be expounded according to 
 the ufage of trade - - "375 
 
 5. The /hip mufl depart, and continue^ with the convoy 376 
 She muft get under weigh with the convoy ib. 
 And not leave it without necefTiiy - ib. 
 
 If feparated, fhe mufl rejoin the convoy as foon 
 
 as pofTible - - . "37^ 
 
 If file get under weigh in time, but wait for the 
 captain till fhe lofe her place in the convoy, it 
 is fatal - - - . 776 
 
 Cut
 
 INDEX. 
 
 WARRANTY-fo/7/,V,r;,i. p^ 
 
 To fail ivith ccnvoy. 
 
 TheJlAp mujl depart and continue tuith iht .tn^y. 
 
 But fhe is not obliged to keep wth the coa\oy 
 at all events - ..• 
 
 If the mafter, through fraud or negligence, de- 
 fert the convoy, iliis will difchargc the under- 
 writers - . . ;i 
 
 " • JO. 
 
 By ftatute no fliip (hall fail without convoy 3-j 
 Penalties forfailingwithout.ordefcrting.convoy i'b. 
 In fuch cafe the infurance Ihall be void - 389 
 
 And bond mull be g^ven to fail with, and not 
 
 defert, convoy - _ . ju 
 
 Exceptions - _ _ _ _ „ 
 
 When a Aiip fhall be within the exception -3^ 
 
 Duty of the captain with refpeft to li^niaJs 381 
 
 Of neutrality - - - "84 
 
 Meaning of this warranty - . -411 
 
 Defcribing a (hip as belonging to a neutral ftate is 
 
 equivalent to a warranty . - 43* 
 
 But if there be only a verbal reprefcntation it will 
 
 not affecl the contraft - - - -W- 
 
 Nature of it - - - "3^5 
 
 How exprefTed in the policy - . > ^j 
 
 What fhall be deemed neutral property - - ib. 
 
 When a neutral fubjedl lofes the protedion of the 
 • neutral flag - - - . iJ). 
 
 It is fuflicicnt if it be true when made - - 387 
 
 The chance of future war is a rifle within the 
 policy _ _ . _ 3SS 
 
 i ' lyjjen fa'Jlfial by condemnation (IS prixe - ib. 
 
 Wh It fhall be a court of competent jurifdlc- 
 
 tion in queflions of prize - - ib. 
 
 When the judgment of a foreign court Hull 
 
 be conclufive - - - ib. 
 
 The fentencc of a belligerent couful niuiont 
 
 ill a neutral country, has no authoniy 389 
 Otherwife if the neutral (late arquioUc 
 Or if the fcnlcncc be pronounced ill th-.* v 
 
 of a co-belligerent - '90 
 
 By comity, foaign fenlcncej aie c u... 
 
 ill our court* - - - 39* 
 
 S Due 
 
 q:*
 
 IIO INDEX, 
 
 WARRANTY— continued. 'Page. 
 
 Of neutrality. 
 
 Fal/ified by condemnation as prize » ' 2>9^ 
 
 But tills comity is not univerfal - - ib. 
 
 It is not regarded in France - - ib. 
 
 When lirft adopted in England - "59^ 
 
 Confequences of it - "393 
 
 Stipulations that certain proofs of neutrality , 
 fhall be conclufive - - - ib. 
 
 When our courts may examine the fentence 
 notwithftanding a foreign judgment - 391- 
 
 If it be ambiguous it will not be conclufive - ib. 
 
 Neutrals are not bound to take notice of re- 
 gulations made by belligei-ents contrary to 
 the law of nations - - - 397 
 
 Whether, being informed of them, they ought 
 to take notice of them for their own fafety 399 
 
 If an infurer know of them, he fliould give 
 notice to the infured - - 4C0 
 
 If both be ignorant, the non-obfervance of them 
 will not affeft the contraft - - ib. 
 
 The fliip muft be navigated according to 
 fubfifting treaties - " - 191 > ¥'^ 
 
 A fentence as good prize is conclufive without 
 ftating any ground - - 40 r 
 
 If it do not neccfiarily lalfify the warranty 
 its truth may be proved - - 4°* 
 
 A condemnation as enemy's property is con- 
 clufive, though manifeltly unjuft - 4^3 
 
 But it is conclufive only -as to the points which 
 
 it profefTes to tlecioe - - 4 H 
 
 The meaning of the warranty is that the fnip 
 {hall be neutral to the purpofes of beiii;y 
 protedled - ... 406,411 
 
 As to the documents which fiiips are recjuircd 
 to have, Vide Documents. 
 
 The want of any of thefe is only prefumptive 
 evidence againft ncutrahty - - 408 
 
 If the i'hip be not properly qualified to fail as a 
 neutral any part of the voyage, the under- 
 writers v.ill be difcharged - - 409 
 
 A?
 
 INDEX. 
 
 WARRANTY— ««/;/: W. • p,^^^ 
 
 Of neutrality, 
 
 Falfified by cond^iiwatkn as prh.-. 
 
 As if, for the lemporary want of a document, 
 file be fubjecl to detention - -413 
 
 A condemnation hccaufe the captain was a:i 
 enemy, contrary to a French ordnance, docs 
 not falfify the warranty - "414 
 
 Our courts are bound to give credit to forci;;n 
 feutences, though founded on a fyllcm of 
 plunder - - - - ib. 
 
 Ships ought to be furnifhed with the docu- 
 ments whicii, by treaty, mr jgri-od to '..•■ 
 evid-^nccs of tlicir neutraUty 
 
 A condemnation for want of a docun^,... ,,.,; 
 required by the law of nations, or by treaty, 
 is not conclunve - - - 4; a 
 
 If upon the whole of the feiitcnce it can be 
 collcded t'aat it proceeded on the ground 
 of enemy'* property, it is conclufivv? - 4Za 
 
 The parly objeftinir to a fentenic is bound to 
 fhew that it did nut proceed on the ground 
 of enemy's property - - - -i - j 
 
 Of what force are foreign ordinances in our 
 courts - - - - 4:^ 
 
 The want of any rcquifite to ]>i\,\c i.cutrality 
 is conclnfjve - - 4;5{ 
 
 By exprefs llipwlalion in the |j.,ii > , ihe in- 
 fnrcd may avoid the effect, oi a forci/u 
 fentcnce - - - - ^ ^ 
 
 If the fcnten.cc hive one lcg:d ;'r.)tind, it wiil 
 be ( onclufivc, tliougU juiitud to fcvera^ tnd 
 ones - - - - ^3J 
 
 A fentenco of pn:!e will be conchifive, lhou>-:h 
 it collctt the inci-cia frcm which that condi;- 
 fion is drawn from orijinaiiccs not L:r.Ji:i-; 
 in other Rates - - " -13 + 
 
 IVbatJljall amount to a forfeit arc cfntutraliiy 435 
 
 Refilling vifitation and fearch - - 4-*^ 
 
 Whether a neutral be hound to fubmil to vifilatiyn 
 
 and iearch confiderLd . - - 437 
 
 Law of nations defined - - * '°' 
 
 Doftriuc of Hubncr 
 
 - ill. 
 DoCU ii:c
 
 912 
 
 1 N D E X» 
 
 WARRANTY— ^o«/;«we^. Page, 
 
 Of neutrality-, 
 
 What Jhall amount to a forfeiture of neutrality, 
 
 Doftrine of the Confolato del Mare - - 440 
 
 Of Bynhrjhoek - - - - ib. 
 
 Of Fattel - - - - 441 
 
 French ordinances - - - ib. 
 
 Attempts of the Northern Confederacy - 442 
 
 Judgements of our Courts of Admiralty - 444 
 
 Belligerent cruifers have a right t o fearch all neutrals 445 
 No neutral fovereign can deprive them of this right 446 
 The penalties of refiftance - - - 447 
 
 But the neni-ral mud have had notice of the war 449 
 
 WEAR AND TEAR. 
 
 Is no lofs within the policy - - ^gz 
 
 Vide Lofs [By perils of the fed). 
 
 WET (damage by). 
 
 When the owners and mafter fhall be liable for - 242 
 ■ Vide Rifh {Oivners and mafter liable^, 
 
 WIS BUT (laws of). 
 Vide Marlm Lanv. 
 
 WITNESS. 
 
 Vide Eiidmce. 
 
 WOOL, (exportation of). 
 
 Vide Subjea Matter {Smuggled goods). 
 
 WOOLLEN MANUFACTURE. 
 
 When introduced into England - ^8 
 
 WORMS. 
 
 If a Ihip l»c Jeflroyed by, it is not a lofs by perils of 
 
 the fea - - - - - - S^ 
 
 Vide Lofs {By perils of the fea). 
 
 WI^T OF ERROR. 
 
 Suing out, is a breach of the confolidation rule, 
 though for manifeil error - 702- 
 
 FINIS. 
 
 Piinted by A Stishan, Law Printer fo His M^jcny^
 
 LAW LIBRARY 
 
 OF 
 
 LOS ANGELES COUNTY