6 Coke's touching the recovery of losses, upon actions on assumpsits; and so little were the Rep. 47. b. judges acquainted with the nature of the contracts, that so late as the 30th and 31st of the reign of Queen Elizabeth, it became a question where an action upon a policy of insurance should be tried; the policy having been effected in London, and the ship detained in the river Soane in France. The policy was on a ship from Melcombe Regis in the county of Dorset, to Abbeville in France. The plaintiff declared, that the ship in sailing towards Abbeville, viz. in the river Soane, was arrested by the King of France. The parties came to issue upon the question, whether the ship was so arrested or not; and it was tried before Lord Chief Justice Wray, in the City of London: and a verdict was found for the plaintiff. In arrest of judgment it was moved, that this issue arising merely from a place out of the realm, could not be tried in London. But it was resolved by the court, that this issue should be tried where the action was in this case brought; for the promise, which is the ground and foundation of the action, was made in London; and the arrest now in issue, is not the ground of the action, which is founded on the assumpsit, and the arrest is the breach of the assumpsit. This," says Mr. Park," is the most ancient case I have been able to find upon the subject of insurances." Subsequent perplexities having arisen in the Courts of Judicature, the attention of the legislature to this national object was awakened, and it was found necessary to pass an act of Parliament, in which the principles of this species of contract are clearly defined, and made the basis of that legal protection and encouragement of the practice which was become essential to the extension and prosperity of commerce.

43 Eliz.

c. 12.

13 and 14 Car. 2. e. 23.

66

The purpose of this statute was, to erect a particular court for the trial of causes relative to policies of insurance, in a summary way; and to that end it ordained, that a commission should issue yearly, directed to the judge of the Admiralty; the recorder of London, two doctors of the civil law, two common lawyers, and eight merchants, empowering any five of them to hear and determine all such causes, arising in London; and it also gave an appeal from their decision, by way of bill, to the Court of Chan

cery.

And in pursuance thereof, an office was erected and kept on the west side of the Royal Exchange; but this act did not exclude others from making insurances, in whose policies was inserted, that they should be of as much force as those heretofore made in Lombard-street, at the Royal Exchange, or any where else. But there being some defect in the aforesaid act, touching the power of the commissioners, which was limited to London, its continuance was not of long duration.

And by a new act of Parliament the court was revived, and larger powers were given to the commissioners for carrying it into execution; so that, in consequence of this last act, insurances multiplied, and all disputes concerning them were determined by the commissioners; but as private persons were not excluded thereby from carrying on this business as before, and the commissioners taking no cognizance of any policies not made in their office, whilst the recovery of losses thereon were made easy at common law; and some partiality having been practised by the commissioners, and an appeal being 9 Ann. c. 6. allowed from their determinations to the Court of Chancery, the business of this Court fell off, and the granting commissions was discontinued.

c. 18.

After this, no law was made in England concerning insurances, except one to prohi bit insuring on marriages, births, christenings, and service; but all was transacted by, Geo. 1. private office-keepers, till an act was passed in the year 1720, by which his Majesty was enabled to grant two charters, for erecting two corporations for insuring ships and merchandize, and lending money on bottomry, which are now called the Royal Exchange Assurance, and the London Assurance; which corporations are to have perpetual succession, subject to redemption, or power of revocation, as is here under men

tioned; the corporation to have liberty to chuse their governors, directors, officers, and servants, as should be prescribed in the charters: the governors and directors to continue for three years; to have a seal, and be capable to purchase land not exceeding 1000l. per ann. and may sue and be sued in their corporate capacity.

Each corporation to pay into the Exchequer 300,000l. towards discharging the debts of the civil government.

Each to raise such sums as his Majesty should direct, not exceeding 1,500,000l. for paying the 600,000l. and to enable them to pay losses, and lend money on bottomry and government securities, which money is to be raised at general courts, by taking subscriptions, or by calls, or otherwise, as the general courts shall think fit or expedient, and stock liable to calls may be sold for that purpose; and proprietors refusing calls to pay 8 per cent. interest; may take up money to advance on parliamentary securities; stock transferable and devisable; a personal estate not to be taxed; governors, directors, &c. may be members of Parliament, but not to be bankrupts on account of such stock; to have 6 Geo, 1. power to make by-laws, as by charters; no other corporation or partnership to insure c. 18. ships, or lend money on bottomry, on penalty of forfeiting the money assured, and the policy to be void; and in case of bottomry, the security to be void, and the contract to be usurious. None to be governors, &c. or to have stock in both corporations. The Parliament, at any time within thirty-one years from the date of the charters, upon three year's notice in the London Gazette, fixed up on the Royal Exchange, and payment of 300,000l. to each corporation, may then, and not till then, void the said corporations. If, after thirty-one years, the King shall adjudge the continuance of the Ditto, said corporation to be hurtful, or inconvenient to the public, he may by letters patent void the same, without any inquisition, or scire facias, in which cases the like power shall never he grantable again.

The South Sea and East India Companies may advance money on bottomry to their captains, &c.

The said two corporations, having each paid into the Exchequer 111,2501. in part of 7 Geo. 1. the 300,000l. and having covenanted to pay 38,7501. further part thereof in three c. 1..26. months, the residue of the sums amounting together to 300,000l. shall be released.

Some acts have since passed to regulate certain proceedings at law, where the cor- 8 Geo. 1. porations were parties, giving them power to plead generally. And these are all the c. 15. acts relating to insurances in England, till the following, made for the better regulation, 11 Geo. 1. thereof, and to prohibit them on French effects, viz.

c. 30.

The preamble observes, that the making assurances, interest or no interest, or 19 Geo. 2. without further proof of interest than the policy, hath been productive of many perni- c. 37. cious practices, whereby great numbers of ships, with their cargoes, have either been fraudulently lost and destroyed, or taken by the enemy in time of war; and such assurances have encouraged the exportation of wool, and the carrying on many other prohibited and clandestine trades, which by means of such assurances have been concealed, and the parties concerned secured from loss, as well to the diminution of the public revenue as to the great detriment of fair traders; and by introducing a mischie vous kind of gaming, or wagering, under the pretence of assuring the risque on shipping and fair trade, the institution and laudable design of making assurances hath been Valued peperverted; and that which was intended for the encouragement of trade and navigation, not wagerhas, in many instances, become hurtful and destructive of the same. For remedy ing poliwhereof, it is enacted, that, after the 1st day of August, 1746, no assurance shall be therefore made by any person or persons, bodies corporate or politic, on vessels belonging to his not within Majesty or his subjects, or on any goods, merchandizes, or effects on board the same, Burr. Rep. interest or no interest, or without further proof of interest than the policy, or by way Park 267.

licies are

cies, and

this statute.

1167,1966.

Sect. 2.

See Park.

of gaming or wagering, or without benefit of salvage to the assurer, and that every such assurance shall be null and void to all intents and purposes.

Assurance on private ships of war, fitted out by his Majesty's subjects solely to cruize against his enemies, may be made by or for the owners, interest or no interest, free of average, and without benefit of salvage to the assurer.

Merchandizes or effects from any parts in Europe or America, in the possession of Ins, 274. the crowns of Spain or Portugal, may be assured in such way and manner as if this act had not been made.

Sect. 3.

Soet, 5.

Sect. 7.

Sect. 8,

21 Geo. 2. p. 75, 76,

After the said first of August, all money to be lent on bottomry, or at respondentia, upon ships belonging to his Majesty's subjects, bound to or from the East Indies, shall be lent only on the ship, &c.

In all actions, &c. brought after the said first of August, by assured, upon any policy of assurance, the plaintiff, or attorney, &c. within fifteen days after he shall be required so to do in writing by the defendant, &c. shall declare in writing the sums he hath assured, &c. in the whole, and what sums he hath borrowed at respondentia, or bottomry, for the voyage, or any part of the voyage, in question.

After the said first of August, any person, &c. sued in an action of debt, or covenant, &c. on policy of assurance, may bring the money into Court; and if the plaintiff shall refuse to receive the same, with costs to be taxed in full discharge of such action, and shall afterwards proceed to trial, and the jury shall not assess him damages exceeding the sum so brought, the plaintiff, on every such action, shall pay to the defendant costs, to be taxed.

This act shall not extend to, or be in force against, persons residing in any part of Europe, out of his Majesty's dominions, for whose account assurance shall be made before the 29th of September, 1746; nor against persons residing in any parts of Turkey, Asia, Africa, or America, for whom assurances shall be made before the 29th of March, 1747.

Insurance on ships or goods appertaining to the crown and subjects of France, or 17, and 78. lending them money on bottomry, is prohibited by this act; though, as it was only temporary, and its duration limited to that of the then war, it expired, and became void. This branch of business at first was confined to maritime affairs solely, though at present it is extended to the insuring not only shipping and merchandizes, but also houses, furniture, lives, liberties, &c. according to the different agreements for that purpose. These contracts are called Policies, from the Spanish word Polica, and that originally from the Latin Pollicitatio, or promise, and are now made either at the public or private offices. Of the former, we have only the two before-mentioned in England established by charters; though of the private ones, we have many in this city, and of late years in some others, as Bristol, Exeter, Liverpool, Hull, Newcastle, and Glasgow, where great business is transacted, and I believe on as fair a footing as in any part of the world; though policies having been filled up in such various terms, and such unprecedented expressions inserted, according to the different conceptions, fancies, or exigencies of the insured, it has naturally occasioned many disputes, and consequently brought on many remarkable trials, and wise decisions of the utmost importance to the mercantile world; for which reason all the modern cases are added in this edition to the more remote, and classed under several distinct heads, that they may be more readily referred to, when similar cases shall induce merchants and lawyers to search for precedents, to determine their own line of conduct, &c. I shall also take occasion to mention the method and obligation of insurances made in France and Holland, in order to give full satisfaction on this head, and render my book as complete as possible.

Assurances, as I have before observed, are of various kinds, both in regard of the

marine and terrene property; of the first, some being on ships, or parts of ships only; others on merchandize singly; and others on ships and goods jointly; and these are again branched out to run either by the month, or for a time stipulated, or to one single port, or out and home, with liberty to touch at the different places mentioned in the policy, or for a trading voyage.

Although policies of assurance are not to be ranked with specialty contracts, not skin, 54. being under seal, yet they have always been held as sacred agreements, and of the first credit; so much so, that, when once they are underwritten, they can never be altered by any authority whatever, because it would open a door to an infinite variety of frauds, and introduce uncertainty into a species of contract, of which certainty and precision are the most essential requisites.

the Royal

Exchange

Company.

In a case before Lord Chancellor Hardwicke, this doctrine was admitted in its full Hinckle v. extent. The plaintiff had insured a ship at and from London to Ostend, from thence to Rotterdam, and from thence to the Canaries, warranted an Ostend ship, which ship Assurance was afterwards taken. The bill was brought to have the policy rectified, for that the ivez.317. intention of the parties was mistaken therein; which was, that the warrantry was too general; and that the voyage should have been stated to take place from Ostend only, and not from London. His Lordship, as there was no evidence to vary the contract from the written words, ordered the bill to be dismissed.

But there are some exceptions to the foregoing general rule. For instance, after signing, policies are frequently altered by consent of the parties; and such policies are good, agreeably to the maxim consensus tollit errorem; though upon the making of such alterations a new stamp is required. See 9 East. 351.

Enumeration of Causes which make Policies null and void.

Those made on houses, lives, or liberties, must be paid according to the tenor of the agreement, in the full sum assured, as these sort of policies admit of no average; and for the first, often with their furniture, against fire, several offices are erected in London, with the limitation to this branch only.

Assurances may likewise be made on goods sent by land, or by hoys, &c. on rivers; and this is often done, more especially on jewels, &c.

They may likewise be made on ships and goods, lost or not lost, which is commonly done when a ship hath been long missing; and these words being inserted in the policy, oblige the underwriters to pay, although the ship was lost at the time of making such insurance, except the assured saw the ship wrecked, or had then certain knowledge of her being so; in which case the subscription shall not oblige, as this is accounted a Molloy 62. mere fraud.

So likewise, if the assured shall, on a rotten vessel, get insured more than she is worth, with the villainous design to destroy her, and shall afterwards give directions to have his roguish intentions put in execution, this fraudulent act will not oblige the insurers, but expose the perpetrators of it to condign punishment for their knavery.

If on a voyage a ship becomes innavigable she shall be presumed not to have been sea worthy at the beginning of the voyage, unless it be made appear that her disability arose from sea damages, or other misfortune. 2 Marshall, 365.

c. 50..

It shall not be lawful, from and after the passing of this act, for any person or per- 28 Geo. 3. sons to make or effect, or cause to be made or effected, any policy of assurance on any ship or vessel, or upon any goods, merchandizes, or effects, or property whatever, without first inserting, or causing to be inserted, in such policy, the name or names, or the usual stile and firm of dealing, of one or more of the persons interested in such assurance; or without, instead thereof, first inserting the name or names, or the usual 8 K

VOL. I.

Molloy,

p. 292. s. 9.

Ditto, p.

295, s. 14.

227.

stile and firm of dealing, of the consignor or consignors, consignee or consignees, of the goods or property so to be insured; or the name or names, or the usual stile and firm of dealing, of the person or persons residing in Great Britain, who shall receive the order for and effect such policy, or of the person or persons who shall give the order or directions, the agent or agents immediately employed to negociate or effect such policy. The statute further declares, that every policy made or underwrote, contrary to the true intent and meaning of this act, shall be null and void to all intents and pur

poses.

The name of the broker, in the policy described agent, is a sufficient compliance with the statute, 1 Bos. and Pul. 345.; and a general agent may insure without an express order where it is for his correspondent's interest that he should do so, and he need not describe himself as acting as agent. 1 Bos. and Pul. 316.

If a ship be insured from the port of London to Cadiz, and before she breaks ground is burnt, insurers not liable; but if the words are, at or from the port of London, they

are liable in such case.

An insurance from London to

void for uncertainty, though private in

1 Marshall, structions for the port; yet the blank in the policy will not bind the insurer, policies being now generally made free of average, and without benefit of salvage, many disputes on these heads are avoided.

Molloy, p.

An insurance made on prohibited goods not binding, unless they were prohibited after 296. s. 15. the insurance made; as on wool, leather, &c. for such insurances would tend to destroy commerce, which is directly to thwart the true intention of all policies.

28 Geo. 3. .. 38.

Jefferies v.

Persons who, by way of insurance or otherwise, shall undertake or agree that any sheep, wool, or any other of the enumerated articles in the statute, shall be carried or conveyed to any parts beyond the seas, from any port or place whatsoever within this kingdom, or, in pursuance of such undertaking or agreement, shall deliver, or cause or procure to be delivered, any sheep, wool, &c. in parts beyond the seas, such person or persons, their aiders and abettors, shall, upon conviction, be liable to the same punishments as the exporters. The like penalty follows, upon the person or persons paying any premium for such insurances, sect. 48. All policies of insurance which shall be made on goods and merchandize, laden or to be laden on any ship or vessel bound from Great Britain to foreign parts, which shall afterwards appear to be wool, woollen or worsted yarn, &c. shall be deemed and taken to be null and void, notwithstanding any words or agreement whatsoever which shall be inserted in such policy of insurance; and nothing shall be recovered by the assured from the insurer for loss or damage, or for the premium which shall have been given for such insurance. This clause liberates the underwriters in cases, which frequently happen, of insuring merchandize on board, without specifying to them the species of commodity insured.

Under the head of prohibited goods must be comprehended all commodities prohibited to be exported or imported by positive statutes, or by the King's proclamation, in time of war; or which from the nature of the commodity, and by the law of nations, must necessarily be contraband; and the policies insuring any such are absolutely nuli

and void.

Where the words of the policy are, the ship warranted to depart with convoy, it shall Legendra, be intended she shall keep with convoy during the voyage, if possible; and if she de3 Lev. 320; part wilfully from the convoy, it is a fraud; but if having departed with convoy, by stress of weather she loses the convoy, and is taken, insurers are liable.

Carth.216;

1 Show.

323;

Lex. Mer

The warranty to sail with convoy, means such convoy as government shall appoint, and sailing with any other force will not satisfy the warranty. 1 Marshall, 263.

If there be thieves on shipboard among themselves, the master of the ship is to answer eator. 151. for that, and not the insurer; though the words of the policy insure against losses by