or excess of money he may receive over that he must pay, but any advances he makes, if they remain at his risk, and are not repayable by the owner in case of loss.1 But one advancing money on freight, has no insurable interest if the money so advanced is to be repaid to him if the goods do not arrive.2

The freight of any severable part of a voyage may be in

sured.3

The insurance is void if the interest is illegal; or if a material and inseparable part of the contract or transaction be illegal; or if the insurance itself be expressly prohibited; or if the interest and insurance be in themselves legal, but the whole transaction contemplates an illegal use of the subject-matter of the insurance. A good illustration is found in a case where a ship was bound to a port prohibited by the laws of this country, and the policy expressly provided that no exceptions were to be taken on account of "ports interdicted by the laws of the United States;" and the policy was held to be void. For the purpose of this

rule, an act subject to a penalty is illegal, although it be not prohibited in direct terms. And if by the laws of the country

1 Ellis v. Lafone, 8 Exch. 546, 18 Eng. L. & Eq. 559; Manfield v. Maitland, 4 B. & Ald. 582, 585, per Abbott, C. J. See also, Robbins v. New York Ins. Co., 1 Hall, 325; Sansom v. Ball, 4 Dall. 459.

2 Manfield v. Maitland, 4 B. & Ald. 582; Wilson v. Royal Exch. Ass. Co., 2 Camp. 623. See also, Winter v. Haldimand, 2 B. & Ad. 649.

Taylor v. Wilson, 15 East, 324.

"It may be laid down as a general rule, that, where a voyage is illegal, an insurance upon such voyage is illegal." Per Tindal, C. J., Redmond v. Smith, 7 Man. & G. 457, 474. See Mount v. Waite, 7 Johns. 434.

5. Russell v. Degrand, 15 Mass. 35. The insurance in this case was from Boston to a port of discharge in Europe. At the time the policy was made, a statute was in force prohibiting all vessels from going to any port in France or England. There was evidence tending to show that, at the time the policy was made, it was intended that the vessel should go to France, and that she afterwards sailed for and arrived at a port of that country. The contract was held to be illegal and void.

6 In Bartlett v. Vinor, Carth. 251, the law is thus stated by Holt, C. J.: "Every contract made for, or about any matter or thing, which is prohibited and made unlawful by statute, is a void contract, though the statute does not mention that it shall be so, but only inflicts a penalty on the offender, because a penalty implies a prohibition, though there are no prohibitory words in the statute." This is cited and adopted by Tindal, C. J., in De Begnis v. Armistead, 10 Bing. 107; and by Story, J., in Clark v. Protection Ins. Co., 1 Story, 109, 122. See also, Farmer v. Legg, 7 T. R. 186; Gallini v. Laborie, 5 T. R. 242; Law v. Hodgson, 2 Camp. 147, 11 East, 300; Langton v. Hughes, 1 M. & S. 593.

to which the ship belongs a certain traffic is forbidden, an insurance of the ship, as well as one on the cargo, is void.1

This illegality need not be express, or spring from the violation, actual or intended, of a positive law; it has the same effect if it be only in distinct opposition to the principles or policy of the law. It is upon these grounds that wagering policies,2 and the insurance of the wages of mariners or mates by themselves, are held to be illegal and void; but mariners may insure

1 Gray v. Sims, 3 Wash. C. C. 276.

2 In Amory v. Gilman, 2 Mass. 1, 13, Dana, C. J., said: "As wager policies are injurious to the morals of the citizens, tend to encourage an extravagant and peculiarly hazardous species of gaming, and to expose their property, which ought to be reserved for the benefit of real commerce, they ought not to receive the countenance of this court." See also, Stetson v. Mass. Mut. F. Ins. Co., 4 Mass. 330, 336; Lord v. Dall, 12 Mass. 115, 118; King v. State Mutual F. Ins. Co., 7 Cush. 1, 10; Alsop . Commercial Ins. Co., 1 Sumner, 451, 464. Such insurances were held to be valid in New York, before the Revised Statutes of 1830 went into operation. Juhel v. Church, 2 Johns. Cas. 333; Clendining v. Church, 3 Caines, 141. But in some of the other States wagers have been held void. Hoit v. Hodge, 6 N. H. 104; Pritchet v. Ins. Co. of North America, 3 Yeates, 458; Collamer v. Day, 2 Vt. 144. In Alsop v. Commercial Ins. Co., 1 Sumner, 451, the plaintiff was insured "ten thousand dollars on profits on merchandise on board the Brig Leonora at and from Callao to Baltimore free of average and salvage, and the policy to be the only proof of interest required.” This was held not to be a wager policy, as the assured had property on board. See also, Valton v. National Loan Fund Life Ass. Co., 22 Barb. 9. In England wager policies were valid at common law. Dean v. Dicker, 2 Stra. 1250; Assievedo v. Cambridge, 10 Mod. 77; Depaba v. Ludlow, 1 Comyns, 361; Da Costa v. Firth, 4 Burr. 1966; Lucena v. Craufurd, 3 B. & P. 75, 101; Good v. Elliott, 3 T. R. 693. See however the following cases in chancery. Whittingham v. Thornborough, Prec. in Chan. 20; Goddart v. Garrett, 2 Vern. 269; Le Pyre v. Farr, 2 Vern. 716. And by statute 19 Geo. 2, c. 37, they were made illegal. This statute only applies to British ships and goods. Thellusson v. Fletcher, 1 Doug. 315; Craufurd v. Hunter, 8 T. R. 13, 24. It must appear on the face of the policy whether it is a wager policy or not. Cousins v. Nantes, 3 Taunt. 513. See also, Murphy v. Bell, 4 Bing. 567; Smith v. Reynolds, 1 H. & N. 221, 38 Eng. L. & Eq. 292, where it is held that an insurance on profits is an insurance on goods within the statute 19 Geo. 2, c. 37, § 1.

3 Emerigon, ch. 8, s. 10, Meredith's Ed. 191. In The Juliana, 2 Dods. 504, 509, Lord Stowell states the reason of the law, as follows: "The mariner is not permitted to insure his wages by the policy of our law, in order that he may be stimulated to all possible personal exertion for the preservation of the ship, on which alone all his own interests are made to depend." See also, Lucena v. Craufurd, 5 B. & P. 269, 294; Webster v. De Tastet, 7 T. R. 157; The Neptune, 1 Hagg. Adm. 227, 239. Nor can they take advantage of an insurance effected by the owners upon the ship, freight, or cargo. The Lady Durham, 3 Hagg. Adm. 196, 200; M'Quirk v. The Penelope, 2 Pct. Adm. 276; Icard v. Goold, 11 Johns. 279.

A mas

their goods on board, although bought by their wages. ter may insure his commissions, his wages, or the freight of goods carried by him on his privilege.2 And if the master sails the vessel on shares, he has an insurable interest in the freight to the amount of his share, and his indebtedness on account of the freight in addition. But a master who sells a cargo at auction, and buys it in to prevent a loss, does not thereby become the owner of it so as to have an insurable interest. If it be uncertain whether the interest be illegal or not, the contract being subject to two constructions, or two modes of interpretation, one legal and the other not, the presumption of law is in favor of that which is legal. And if the transaction be legal in its commencement, and is made illegal by a subsequent law, the insured will not be affected by such subsequent illegality, until he knew of the law, or might, from the circumstances of the case, be reasonably presumed to have known it. Nor will a mere intent to do wrong, if not executed, or agreed upon by the parties, avoid the contract, nor will a remote, incidental, or collateral illegality, as smuggling on board stores or furniture, or not stowing provisions as required by law, or, perhaps, the not taking on board of

1 Galloway v. Morris, 3 Yeates, 445; 1 Mag. 18; Weskett on Ins. 587; Emerigon, ch. 8, 10, Meredith's Ed. 191.

2 King v. Glover, 5 B. & P. 206; Holbrook v. Brown, 2 Mass. 280; Foster v. Hoyt, 2 Johns. Cas. 327.

8 Haynes v. Rowe, 40 Maine, 181.

Barker v. Marine Ins. Co., 2 Mason, 369.

5 Muller v. Thompson, 2 Camp. 610; Wright v. Welbie, 1 Chitty, 49; Gill v. Dunlop, 7 Taunt. 193; Haines v. Busk, 5 Taunt. 521; Thornton v. Lance, 4 Camp. 231; Blackburne v. Thompson, 15 East, 81, 3 Camp. 61.

6 Walden v. Phoenix Ins. Co., 5 Johns. 310.

7 "A mere intention to do an illegal act, or other act, which would avoid a policy, if done, but which has never been consummated by any act, has never, as far as I know, been deemed per se to vitiate the policy. There is in all cases of this sort a locus pænitentiæ; there must be the act and the intent coupled together." Per Story, J., Clark v. Protection Ins. Co., 1 Story, 109, 124. See also, The Abby, 5 Rob. Adm. 251; Waters v. Allen, 5 Hill, 421. Where the act is that of trading with a country known to be hostile, the commencement of the voyage is a sufficient act of illegality. The Abby, supra; Lubbock v. Potts, 7 East, 449.

8 Clark v. Protection Ins. Co., 1 Story, 109, 132. See also, Ocean Ins. Co. v. Polleys, 13 Pet. 157; Ward v. Wood, 13 Mass. 539; Carruthers v. Gray, 15 East, 35. 9 Warren v. Manufacturers' Ins. Co., 13 Pick. 518; Deshon v. Merchants' Ins. Co., 11 Met. 199.

a pilot in conformity with statutory provisions, or purchasing goods with the proceeds of a previous illegal cargo or voyage.2

If a part of a severable voyage or cargo be legal and a part illegal, the insurance on the legal part will be good. But if a material part of the property of the party insured is illegal, this avoids the whole insurance.4

1 Flanigen v. Wash. Ins. Co., 7 Barr, 306; Keeler v. Firem. Ins. Co., 3 Hill, 250. See post, as to whether a vessel without a pilot is sea-worthy.

2 Bird v. Appleton, 8 T. R. 562. See also, Bell v. Gilson, 1 B. & P. 345, 353; Armstrong v. Toler, 11 Wheat. 258.

3 The Jonge Clara, Edw. Adm. 371, 373; Pieschell v. Allnutt, 4 Taunt. 792; Sewell v. Royal Exch. Ass. Co., 4 Taunt. 856.

4 In Clark v. Protection Ins. Co., 1 Story, 109, 125, Mr. Justice Story, after stating that Lord Kenyon, in Bird v. Pigou, 2 Selw. N. P. 991, decided that if any part of an integral voyage be illegal, a policy on the integral voyage is void, says: "It is true that Lord Kenyon is reported in Wilson v. Marryat, 8 T. R. 31, to have gone further, and to have said, that if there were any infirmity or illegality in any part of the integral voyage, it would have made the whole voyage illegal, so that the assured could not recover on a policy on any part of it, even a policy on that part alone which was legal. This was a mere obiter dictum, not called for by the case; and it is certainly somewhat shaken, although not overturned, by the decision in Bird v. Appleton, 8 T. R. 562. . . . . It will be found exceedingly difficult in point of principle to distinguish between an illegality in a former voyage, and that in a prior part of a sound voyage, where the policy covers only the part of the voyage which is legal."

In Parkin v. Dick, 11 East, 502, 2 Camp. 221, the action was on a policy of insurance on goods of the plaintiff of the value of £10,000, from London to Brazil. The exportation of a small part of the goods, valued at less than £600, was prohibited, under penalty of forfeiture of the ship and prohibited goods. It was held that the policy was void in toto, and Lord Ellenborough said: "It has been decided a hundred times, that if a party insure goods altogether in one policy, and some of them are of a nature to make a voyage illegal, the whole contract is illegal and void." See Camelo v. Britten, 4 B. & Ald. 184; Gordon v. Vaughan, 12 East, 302. But in Keir v. Andrade, 6 Taunt. 498, 300 barrels of gunpowder were shipped under a license covering 150 barrels, and the exportation of the other 150 was admitted to be illegal. The action was brought upon a policy of insurance covering the whole. The plaintiff recovered for the part protected by the license. See Butler v. Allnutt, 1 Stark. 222; Pieschell v. Allnutt, 4 Taunt. 792; Shiffner v. Gordon, 12 East, 296. The cases of Parkin v. Dick and Kier v. Andrade can hardly be reconciled, but there appears to be a somewhat nice distinction existing between them. At common law, if the consideration is illegal in part, the whole contract is void; but there appears to be no reason why a promise, founded on a valid consideration, should be void, because illegal in part, unless the promise be indivisible, or unless the whole contract is presumed to be entered into with the same intention. But it cannot be said in the case of Parkin v. Dick, that the contract was so far indivisible, that, if void in part, it must necessarily have been void in toto, for it is clear that the court would have severed it in case either of a partial shipment or a partial loss. Hence, the only ground upon which the decision is sustainable, is that the illegal intent, with which a part of the contract was entered

An owner of a ship insured abroad, cannot have his claim under a policy defeated in the country where the policy is made, by an inquiry into his compliance with the registry laws of his own country; and it seems to be the better opinion, that his claim is not defeasible at home by the want of such conformity, if his ownership be actual and bonâ fide.2

into, was presumed to extend to the whole. This appears from the language of Lord Ellenborough to have been the ground of the decision. For he relies upon the fact that the whole voyage was made illegal, although it is clear that, under the statute, none but the prohibited goods could be confiscated. This being the ground of the decision, it might well be held that the effect of the intent to commit an illegal act, should not extend beyond the goods actually prohibited, in a case in which the voyage had been expressly legalized by a license. This distinction, nice as it may seem, appears to be the only one which will reconcile these cases, and it was clearly in the mind of Mr. Justice Story, when, in the case of Clark v. Protection Ins. Co., 1 Story, 109, 129, he said, in commenting upon Keir v. Andrade : "But the court thought, that as the voyage was, under the license, in itself legal, the illegal exportation of a part of the property insured, did not affect that which was within the license." It is true that he considered Keir v. Andrade "a strong case," but it was expressly upon the ground, that the whole enterprise must be presumed to have been commenced and prosecuted with the same intent.

1 Rhind v. Wilkinson, 2 Taunt. 237.

2 In England, under the Registry Act of 26 Geo. III. c. 60, s. 3, all unregistered transfers of property in a ship were made "utterly null and void to all intents and purposes." Hence all insurances on freight, or any present interest in a ship by one who was not registered as owner, were held to be void. Camden v. Anderson, 5 T. R. 709; Marsh v. Robinson, 4 Esp. 98; Everth v. Blackburne, 2 Stark. 66; Campbell v. Stein, 6 Dow, 116; Rolleston v. Hibbert, 3 T. R. 406. But a mere clerical mistake will not vitiate the bill of sale. Rolleston v. Smith, 4 T. R. 161. But the early registry laws in the United States only rendered such transfer invalid, so as to deprive the transferree of the privileges of nationality, as we have seen in our first volume, p. 40-46. In Ocean Ins. Co. v. Polleys, 13 Pet. 157, it was held that an insurance was valid upon a ship sailing under circumstances which rendered her liable to forfeiture for a violation of the registry law of the United States. See this case discussed, ante, p. 79, n. 4. In Bixby v. Franklin Ins. Co., 8 Pick. 86, the policy was made in the names of Bixby, Valentine & Co., and Hibbert, the master. The firm consisted of Bixby, Valentine & Holmes. Before the partnership was formed, the brig was owned by Holmes and Hibbert, in whose names she continued to be registered at the custom-house, until the loss occurred. The court held that, Holmes having sold out a portion of his half, and the partnership being formed, the transfer on the books of the firm was, as between Holmes and his partners, a sufficient transfer, and that the fact of the vessel not being transferred on the custom-house register, could not affect the question, unless the sale were contested by a creditor of Holmes. See also, Vinal v. Burrill, 16 Pick. 401; Ring v. Franklin, 2 Hall, 1. Nor do we think that the Registry Act of 1850, c. 27, 9 U. S. Stats. at Large, 440, affects this question. This provides, "That no bill of sale, mortgage, hypothecation, or conveyance of any vessel or part of any vessel of the United States, shall be valid against