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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.

as well in

THE ASSURED.

own name as for and in the name

The assured, his broker, or agent.

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 commencement 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 employed 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 1. What perthis country considered as capable to represent the character ble of being the of the assured in a marine policy of assurance?" To this assured. question the answer is, that all persons whatsoever of sane All persons memory, wherever domiciled, are permitted by law to be the may be the

B

sons are capa

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

until

suspended
the return of

peace, if the

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 mencement of 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 perpetual 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 transaction 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 personal 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

contract were legal and made before the com

the war.

(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.

tion of the persons enabled to

sue on the policy by the act, 28 Geo. 3,

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 2. The descripstatute 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."

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.

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