5. Last line, for "instruction," read "construction.'

7. In marginal note, insert "a policy" after "effect."

18. In the 5th line from top, for "plaintiff's," read "plaintiffs'."

29. In 18th line from top, for "leave," read "have."

65. In 3rd line from top, for " meritorious," read "mere tortious."

122. In second line from top, for "implied," read "of implied."

134. Last line but two, for "are," read "
"is."

212. In the 9th line from the bottom, for "instruction," read "construction."
397. In the 15th line from the bottom, for "for," read "beyond."

585. Last line but one after "had," read "not."

640. Last line but two, for " principal," read "principle."

THE PRINCIPLES

OF

THE LAW

OF

MARINE INSURANCES.

PART I.

SECTION THE FIRST.

THE ASSUred.

"as

well in

own name as for and in the name

A. B.
and names of all and every other person or persons to whom

the same doth, may, or shall appertain, in part or in all, doth
make assurance, and cause and them, and every of them
to be insured." The policy, it will be seen, in the commence-
ment of the first sentence above cited, sets out by declaring
on the face of the policy either the name of the assured
himself, or the name and firm of the broker or agent em-
ployed by him to make the insurance, and the name or
names of all and every other person or persons to whom the
same doth, may, or shall appertain, in part or in all, doth
make assurance and cause and them, and every of them
to be insured. And the first question that is necessary to
be inquired into is this, "What persons are by the law of
this country considered as capable to represent the character
of the assured in a marine policy of assurance?" To this
question the answer is, that all persons whatsoever of sane
memory, wherever domiciled, are permitted by law to be the

B

The assured, his broker, or

agent.

1. What perble of being the assured.

sons are capa

All persons may be the

assured.

Exceptions with regard to alien enemies.

Unless the

alien enemy come and reside with the license of the king in this country.

But the right of action is only

suspended until the return of peace, if the contract were

legal and made before the com

mencement of the war.

assured, with one single exception, and this is, in respect of
the disability of alien enemies. This rule of law (which is
not confined to this contract, but extends equally to all
known to the law) is founded upon grounds of public policy,
and it amounts, in fact, to saying that no contract between a
British subject and an enemy is valid by the common law,
and such a contract is as much prohibited as if it had been
expressly forbidden by act of Parliament; and a contract of
this description is incapable of being enforced in a Court of
Justice, either of law (a) or of equity (b), unless the alien
enemy come into this country and reside, with the license of
the Lord the King. Boulton and another v. Dobree (c). It
is to be observed, however, that the right of action is only
suspended until the return of peace, if the contract were
legal, and made before the commencement of the war. And it
has therefore been decided, in a case of Flindt v. Waters (d),
that a British agent who had made a policy of insurance on
behalf of alien enemies, who became enemies after the loss.
happened, but before the commencement of the action, was
entitled to recover against an underwriter, who had only
pleaded the general issue; for such temporary suspension,
during the war, of the assured's right to sue upon a contract,
legal at the time, and liable to be enforced upon the return
of peace, cannot be taken advantage of under a plea of per-
petual bar, there being no legal disability in the plaintiff on the
record to sue.
Lord Ellenborough says, "The defence of an
alien enemy must be accommodated to the nature of the trans-
action out of which it arises; it may go to the contract itself on
which the plaintiff sues, and operate as a perpetual bar; as
the objection may, as in a case of this sort, be merely per-
sonal in respect to the capacity of the party to sue upon it.
Here the objection is taken upon the general issue, which is
a plea of perpetual bar, and if found against the plaintiff

(a) Bell v. Potts, 8 T. R. 548. Furtado v. Rogers, 3 B. & P. 191. And see post, in this treatise, part

2, sec. 2.

(b) Albretch v. Sussman, 2 Ves. & B. 323.

(c) 2 Camp. 162. See the subject of insuring the property of an enemy, treated of in Park Ins. 8th edit. p. 522.

(d) 15 East, 260.

would have concluded him for ever: so that should peace be established to-morrow between the two countries, and the Crown should not have interfered to seize the debt, yet on this plea of bar the plaintiff would have been for ever estopped to sue for his debt. But here the objection is only of a temporary nature: the contract itself was perfect at the time it was made; the trade was made with an alien friend; the insurance, the loss and cause of action, had arisen before the assured had become enemies. When, therefore, they became such it was only a temporary suspension of their own right to sue in the Courts here as alien enemies; but that objection cannot be carried further, nor be applied to the plaintiff as their trustee, who is a subject of the king; otherwise, if it could avail upon this plea, it would be making that a perpetual, which is in its nature only a temporary bar."

Secondly, under this head it is necessary to refer to the statute 28 Geo. 3, c. 56, which, after repealing a former statute, 25 Geo. 3, c. 44, the provisions of which were thought too rigid, enacts, "That it shall not be lawful after the passing of this act for any person or persons to make, or cause to be made, any policy of assurance on any ship, or vessel, or upon any goods, merchandises, effects, or other property whatsoever, without first inserting, or causing to be inserted, the name or names, or the usual style 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 of the usual style 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 style and firm of dealing of the person or persons residing in Great Britain who shall receive the order for, and make such policy, or of the person or persons who shall give the order or directions to the agent or agents immediately employed to negotiate or make 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 purposes."

2. The descrip

tion of the persons enabled to sue on the

policy by the act, 28 Geo. 3,

c. 56.

The name, &c.

of the persons interested in

the assurance.

The name, &c. of consignor

or consignee. The name, &c.

of the person receiving the order to insure.

The person who shall give the order to

the broker.