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does not apply where the government of the country has the control, although peculiar privileges are granted to the subjects of a particular nation. Although a foreign minister does not lose his domicil in his own country by residing in the foreign one to which he is accredited, yet if he engages in trade there, he is in respect to such trade considered as a citizen of the country in which it is carried on.?
Although for many purposes the domicil of a mariner or other person following the seas, is the country of his birth, yet if he engages in a ship or a trade which is hostile to a particular country, he will, as to that country, be considered as an alien enemy.4
A prisoner of war, for many purposes, is not considered as an alien enemy, and if a subject of a neutral power, he may sue and be sued for contracts entered into while a prisoner.5
The Indian Chief, 3 Rob. Adm. 12. And an officer in the service of the East India Company, residing in the East Indies, does not thereby acquire a domicil in that country. Attorney-General v. Napier, 6 Exch. 217, 2 Eng. L. & Eq. 397. A merchant carrying on trade at Smyrna, under protection of the Dutch consul, has been considered as a Dutchman. The Twee Frienden, cited 3 Rob. Adm. 29. The same has been held of a Jew living in a Dutch establishment under the sovereignty of the rajah of Cochin, on the coast of Malabar. The Rachel, cited 3 Rob. Adm. 30. And a Swiss in a French factory in China, is considered as a Frenchmen. The Etrusco, cited 3 Rob. Adm. 31. See also, Whitehill's case, cited 5 Rob. Adm. 60; The Boedes Lust, id. 233; The President, id. 277.
1 In The San Jose Indiano, 2 Gallis. 268, 292, a treaty between Portugal and Great Britain provided that British subjects should have the privilege of free trade within the Portuguese dominions, and should have the power of nominating, subject to the approbation and ratification of the crown of Portugal, judges conservators, who should try and decide all causes brought before them by British subjects. It was held, notwithstanding these liberties, that British-born subjects engaged in trade in Portugal, partook of the Portuguese character as to their trade. This case was decided on the authority of The Danous, 4 Rob. Adm. 255, note. See however, the remarks of Sir Wm. Scott in The Henrick & Maria, 4 Rob. Adm. 43, 61; The Flad Oyen, 1 id. 135, 142; The Nayade, 4 id. 251.
2 The Indian Chief, 3 Rob. Adm. 12; The President, 5 id. 277; The Aina, Eng. Adm. 1854, 28 Eng. L. & Eq. 600; The Johanna Emilie, Eng. Adm. 1855, 29 Eng. L. & Eq. 562; Arnold v. United Ins. Co., 1 Johns. Cas. 363.
8 Brown v. Smith, 15 Beav. 444, 11 Eng. L. & Eq. 6.
* The Soglasie, Eng. Adm. 1851, 33 Eng. L. & Eq. 587; The Embden, 1 Rob. Adm. 16; The Endraught, id. 19; The Vriendschap, 4 id. 166; The Frederick, 5 id. 8; The Ann, 1 Dods. 221. See Sparenburgh v. Bannatyne, 1 B. & P. 163, cited in
6 In Sparenburgh v. Bannatyne, 1 B. & P. 163, the plaintiff was the subject of a neutral State, but was taken prisoner while serving in a hostile fleet. He was sent to
In general, the courts of no country regard the revenue laws of another country, so far as to consider a contract void for illegality because it violates, or proposes a violation of them.
B. Of the Form of the Contract. The instrument by which the contract of insurance is expressed, is nearly always in practice, the policy of insurance in use where the insurance is effected; but it may be in another form; and we think it may be oral only, and yet binding, for many purposes, and under many circumstances.
England by order of the governor of the place to which he was first taken, in a British merchant vessel, which was then short of hands. On the voyage he did his duty as one of the crew, and on arrival in port was delivered over to the commissary as a prisoner of war. To an action for wages for the services performed, the defendant filed the plea of alien enemy, but the court held that he was only to be considered an alien enemy as to the act of hostility, because when he ceased to be hostile, owing no permanent allegiance to the enemy, his character as an enemy was determined, and that he was entitled to recover.
1 Thus, if an insurer knows that trade to a certain place is prohibited, and insures a cargo to that place, he is liable if it is seized. Pollock v. Babcock, 6 Mass. 234. See also, Lever v. Fletcher, Park, Ins. 313; McFee v. South Carolina Ins. Co., 2 McCord, 503. In Andrews v. Essex F. & M. Ins. Co., 3 Mason, 6, 18, Mr. Justice Story states the law as follows: “If the trade is known to be illicit, and can be carried on only by smuggling, and the underwriters do not make an exception of the risk of illicit trade, there is the strongest presumption of their intention to take it.” See also, Gardiner v. Smith, 1 Johns. Cas. 141.
2 There seems to be no reason why the general principle both of the common and of the civil law, that the evidence of a contract need not be in writing unless expressly required so to be, should not make a parol contract of insurance valid. It seems to have been so assumed in Smith v. Odlin, 4 Yeates, 468, by the majority of the court. In Hamilton v. Lycoming Mut. Ins. Co., 5 Barr, 339, a parol agreement to insure was enforced. See also, McCulloch v. Eagle Ins. Co., 1 Pick. 278, 280, per Parker, C. J.; Tayloe v. Merchants’ Ins. Co., 9 How. 390. The language of the court in the case of Real Estate Mut. Fire Ins. Co. v. Roessle, 1 Gray, 336, seems to imply that the contract is not complete till the policy is delivered. The action was brought by the company to recover the amount of the premiums, deposit notes, and assessments upon two policies of insurance. The policies were nade out, but the defendant refused to receive them. The case was submitted without argument, and no authorities are cited by the court. The judgment was for the defendant. Mr. Justice Dewey, in delivering the opinion of the court, puts this question : "Suppose a loss by fire had occurred, and the buildings, the subject of the proposed insurance, had been destroyed, would any liability bave thereby attached to the plaintiffs, by reason of these policies ? Clearly not; because they had not been delivered to the defendant.” This question may now be deemed to be set at rest by a recent decision of the circuit court of the United States, affirmed by the supreme court. Union Mut. Ins. Co. v. Commercial
If, however, by the act of incorporation of the company the contract is required to be in writing, a parol agreement to insure is not binding. It is provided by law in Massachusetts that all policies of insurance shall be subscribed by the president, or in case of his death, inability, or absence, by any two of the directors, and countersigned by the secretary of the company. This has been held to apply merely to the way in which the evidence of the contract should be furnished, and not to the contract itself. But in New York it has been held, in a case where similar formalities were required by the charter of the company, that a parol contract is not binding. In Pennsylvania, it has
Mut. Mar. Ins. Co., 2 Curtis, C. C. 524. A bill in equity was brought by the complainants to compel the specific performance of a contract for reinsurance on the ship Great Republic. Some of the facts in the case were in controversy, but the following are those found by the court, and on which the decision was rendered. The agent of the plaintiffs went to the office of the defendants on the 24th of December, and the president not being in, he filled up a blank proposal in the usual form. He called again that day and saw the president who offered to make the insurance at a certain
The agent said he would consult with his principal, to which the president assented; and on Monday, the 26th, receiving an answer accepting, he saw the president and told him that the offer was accepted. The rate as agreed upon was inserted in the proposal. That night the vessel was destroyed by fire. The proposal was in the usual form, with “Binding,” and a blank left for the president's name. This blank had not been filled up. Mr. Justice Curtis held that the contract was complete as soon as the proposal was accepted; and the decision was affirmed on appeal. Commercial Mut. Mar. Ins. Co. v. Union Mut. Ins. Co., 19 How. 318.
1 Cockerill v. Cincinnati Mut. Ins. Co., 16 Ohio, 148; Courtnay v. Miss. M. & F. Ins. Co., 12 La, 233. These cases proceed on the ground that a corporation is a mere creature of the law and can act only in the manner prescribed by the act of incorporation which created it. See Head v. Providence Ins. Co., 2 Cranch, 127. In Berthoud v. Atlantic Mar. & F. Ins. Co., 13 La. 539, a written application for insurance was made, and the rate of premium marked on the application by the secretary of the company. The policy was made out and signed, but the plaintiff was informed that it would not be delivered until the premium was paid. Five days afterwards the vessel was burned. The premium not having been previously paid, it was held that the insurers were not liable. See also Flint v. Ohio Ins. Co., 8 Ohio, 501; Sandford v. Trust Fire Ins. Co., infra. In England the contract is required to be in writing. Stat. 35 Geo. 3, c. 63. See also, Morgan v. Mather, 2 Ves. 15, 18. On the continent generally the maritime codes provide to the same effect. Code de Com. liv. 2, tit. 10, art. 332, 333, 337; Genoa, 2 Mag. 65; Rotterdam, 2 Mag. 94; Amsterdam, a. 23, 2 Mag. 128; Prussia, a. 3, 2 Mag. 189; Hamburg, 2 Mag. 212; Stockholm, 2 Mag. 407. See also, Emerigon on Insurance, ch. 11, $ 1.
2 Rev. Stats. Mass. c: 37, § 13.
3 Union Mutual Ins. Co. v. Commercial Mut. M. Ins. Co., 2 Curtis, C. C. 524, affirmed 19 How. 318.
+ Spitzer v. St. Marks Ins. Co., 6 Duer, 6. On page 14, the case of First Baptist been said that although the policy expressly requires that it shall be countersigned by an agent of the company, yet that this may be dispensed with if the intention to execute it is sufficiently plain.
An agreement to insure, entered and subscribed in the usual way on the books of the insurers, is undoubtedly a valid contract of insurance in this country. And it means insurance after the form of the policy commonly used by the insurers. If an agent of a company is authorized to make an agreement to insure, but not to make out the policy, his principals are liable, on his agreeing to take the risk. So if the insured has asked proposals or terms of the insurers by letter, and an answer is
Church c. Brooklyn F. Ins. Co., 18 Barb. 69, to the contrary, is said to have been re. versed by the Court of Appeals. In Sandford v. Trust Fire Ins. Co., 1 N. Y. Legal Observer, 214, before Hoffman, V. C., the charter of the company contained the following clause : "The policies must be subscribed by the president, and countersigned by the secretary, and shall be binding and obligatory as if under seal; and there shall be distinctly and legibly printed, or written upon the face of every policy of insurance, or other contract or obligation, made by the said corporation, the amount of its capital actually paid in.” It was held that this clause showed that the contract must be in writing, because otherwise the amount of capital could not be printed on the contract. When this case came before the higher court no opinion was expressed on this.point, as the Chancellor was of the opinion that no contract had been perfected by the parties. Sandford v. Trust Fire Ins. Co., 11 Paige, Ch. 547.
Myers v. Keystone Mut. Life Ins. Co., 27 Penn. State, 268. 2 Loring v. Proctor, 26 Maine, 18; Blanchard v. Waite, 28 id. 51. In Woodruff v. Columbus Ins. Co., 5 La. Ann. 697, the insurance company wrote on the application, " Taken at three per cent. premium.” This was considered an acceptance, and the company were held liable. See also, Perkins v. Washington Ins. Co., 4 Cowen, 645, 6 Johns. Ch. 485. In England such a slip, not being stamped, cannot be received in evidence. Rogers v. M'Carthy, Park Ins. 37; Marsden v. Reid, 3 East, 572.
$ In Oliver o. Commercial Mut. Mar. Ins. Co., 2 Curtis, C. C. 277, 291, Mr. Justice Curtis said : “Parties who contract for policies of insurance are not expected to insert in the contract every particular, needful to be inserted in the policy. The underwriters, on their part, agree to effect instrance; the numerous limitations of their liability as insurers, which appear in the different memorandums and other special printed clauses in the policy are not mentioned. Their obligation is understood to be, to make out a policy in the usual form, and containing the usual clauses, adapted to the case, made by the agreement of the parties.” See also, Franklin Fire Ins. Co. v. Hewitt, 3 B. Mon. 231, 239.
* Palm v. Medina Co. Fire Ins. Co., 20 Ohio, 529. The printed form of the application stated that the policy would be issued if the application should be approved of by the company, but it was held that as the refusal to make out the policy did not proceed on the ground that the risk was objectionable, the company was liable notwithstanding the elause.
made by letter, and the insured replies accepting the terms, this is a valid and completed contract as soon as the letter of acceptance is mailed, although it is to be carried out afterwards in point of form, by the giving and receiving of the policy and premium. But if the postmaster is acting as the agent of the party seeking to obtain insurance, the delivery to him of the acceptance of the offer does not complete the contract if the property, on which insurance was sought to be made, is destroyed before the acceptance is actually mailed. Either party may rescind, by a notice of rescission sent to and received by the other party before the contract is complete. Thus the insured may alter his mind, and if he can get his refusal of the terms offered by the insurers into their hands before his acceptance reaches them, there is no contract. And the insurers may rescind if they send their letter or notice thereof and it reaches the insured before he has mailed his letter of acceptance. But if their letter, although written and mailed before his acceptance, or before their letter offering terms had reached him, does not itself reach the insured until after the mailing of the letter of acceptance, the contract is complete. But the acceptance, on
Tayloe v. Merchants F. Ins. Co., 9 How. 390 ; Dunlop v. Higgins, 1 H. L. Cas. 381 ; Duncan v. Topham, 8 C. B. 225; Mactier v. Frith, 6 Wend. 103; Neville v. Merchants & Manuf. Mut. Ins. Co. of Cin., 17 Ohio, 192. The case of McCulloch v. Eagle Ins. Co., 1 Pick. 278, 281, has not been sustained by subsequent authorities. See note 4, infia, and the cases there cited.
2 Thayer v. Middlesex Mut. Ins. Co., 10 Pick. 326.
8 Routledge v. Grant, 3 Car. & P. 267, + Bing. 653 ; Payne v. Cave, 3 T. R. 148; Boston & Maine Railroad v. Bartlett, 3 Cush. 224; Eliason v. Henshaw, 4 Wheat. 225.
It seems to be settled law, as shown by the authorities already cited, that one who makes a proposition by letter is presumed by the law to be making that offer continually, until the party receiving it, has a reasonable opportunity to accept it; if he accepts it, the contract complete; if he declines, expressly or by silence or neglect, the offer is at end, and no subsequent acceptance makes a contract. It is also settled that the offerer may revoke and withdraw his offer before an acceptance of it. (See cases cited in the two preceding notes.) But the question occurs, whether that is a sufficient revocation, which is made by the offerer, by his mailing the revocation before acceptance, although the acceptance is made before the revocation reaches the acceptor. This precise question has not been determined. It may be stated as the question whether the presumption that the offer continues is so far a presumption of law that it cannot be rebutted by showing a revocation unknown to the acceptor, or whether it is merely a presumption of fact open to rebutting evidence. We suppose that the recent decisions lead strongly to the rule, that such revocation is not complete unless it reaches the