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risk from St. Domingo to Honfleur never began. On the other hand, if the risk has once begun, you cannot sever it, and apportion the premium. In an insurance upon a life, with the common exceptions of suicide, and the hands of justice, if the party commit suicide, or is executed in twentyfour hours, there shall be no return. The case is the same if a voyage insured is once begun. Is this one entire risk? The insured and insurers consider the premium as an entire sum for the whole, without division: it is estimated on the whole at 117. per cent. And, which is extremely material, there is no where any contingency, at any period, out or home, mentioned in the policy, which happening or not happening, is to put an end to the insurance. The argument must be, that, if the ship had been taken between Honfleur and Angola, there must have been a return. By an implied warranty, every ship must be seaworthy when she first sails on the voyage insured, but she need not continue so throughout the voyage; so that, if this is one entire voyage, if the ship was seaworthy when she left Honfleur, the underwriters would have been liable, though she had not been so at Angola, &c.; but according to the construction contended for on behalf of the plaintiff, she must have been seaworthy, not only at her departure from Honfleur, but also when she sailed from Angola, and when she sailed from St. Domingo. The cases of Stevenson v. Snow (a), and Bond v. Nutt (b), were quite different from this. They depended upon this, that there was a contingency specified in the policy, upon the not happening of which the insurance would cease. In Stevenson v. Snow, it depended on the contingency of the ship sailing with convoy from Portsmouth, whether there should be an insurance from that place. This necessarily divided the risk, and made two voyages. In Bond v. Nutt, it was held, that there were two risks, upon the same principle. "At Jamaica," was one; the other, viz. the risk "from Jamaica," depended on the contingency of the ship having sailed on or

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before the 1st of August: that was a condition precedent to the insurance on the voyage from Jamaica to London. The two cases of Tyrie v. Fletcher (a), and Loraine v. Thomlinson (b), are very strong, for, if you could apportion the premium in any case, it would be in insurances upon time. Therefore, on very full consideration, we think this one entire risk, one voyage, and that there can be no return of premium." The rule was discharged.

In the case of Meyer v. Gregson (c), which was an action for return of premium, tried before Mr. Justice Willes, on the Northern Circuit, where a verdict had been given for the plaintiff, upon a motion to set aside the verdict, and to enter a nonsuit, a decision, similar to that of Bermon v. Woodbridge was made. The insurance was "at and from Jamaica to Liverpool, warranted to sail on or before the 1st of August, premium twenty guineas per cent. to return eight, if she sailed with convoy." The ship did not sail till September, and was lost. The jury apportioned the premium, and gave the plaintiff a verdict for eight guineas, the defendant having paid eight for the convoy into Court, which was allowing four for the risk run by the defendant at Jamaica.

Lord Mansfield.-"It would be endless to go into inquiries about the risk at Jamaica. It appears on the evidence to be different on different sides of the island. Besides the parties have divided the risk, with respect to convoy; for it is a premium of twenty guineas to return eight, if she sail with convoy: but there is an absolute warranty as to the sailing, and nothing said of the premium."

Mr. Justice Willes thought the premium should be apportioned.

Mr. Justice Ashurst and Mr. Justice Buller agreed with Lord Mansfield, the latter observing, that as the parties have not considered it as two risks, nor estimated the risk at Jamaica, the Court cannot do it for them. In all the

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insurances from Jamaica, the policy runs "at and from," and though in many instances, the voyage has not begun, yet there never was an idea of the premium being returned, and that no usage was found by the jury. The rule for entering the judgment of nonsuit was made absolute.

66

In another case of Gale v. Machell (a), upon an insurance

at and from any port or ports in Jamaica to London, following and commencing on her first arrival there, warranted to sail with convoy from the place of rendezvous to Great Britain," the same questions were again agitated. But as the counsel differed upon the evidence given at the trial, the main question was not fully discussed by the Court, but was sent back to a new trial.

Where the policy was "at and from Ja.

don, warranted to depart with convoy for the voyage and to

maica to Lon

sail on or

before the 1st of Aug" The

And in the case of Long v. Allen (b), which was an action for a return of the premium. The policy was "at and from Jamaica to London, warranted to depart with convoy for the voyage, and to sail on or before the 1st of August, upon goods on board a ship called the Jamaica, at a premium of twelve guineas per cent." The ship sailed from Jamaica to London on the 31st July, 1782, but without any convoy for the voyage. At the trial before Lord Mansfield, the jury found a verdict for the plaintiff, subject to the opinion of the Court upon a case stating the facts already mentioned. In addition to which they expressly find, that it is "the constant foun such cases and invariable usage in an insurance at and from Jamaica there was a to London, warranted to depart with convoy, or to sail on or before the 1st of August, when the ship does not depart with convoy, or sails after the 1st of August, to return the premium, Held, that the deducting one-half per cent."

ship sailed on the 31st, withand the jury

out convoy,

found that in

usage to return

the premium deducting onehalf per cent.

express usage took the case out of the

Lord Mansfield.-"An insurance being on goods war- general rule. ranted to depart with convoy, the ship sails without convoy, and an action is brought to recover the premium. The law is clear, that if the risk be commenced, there shall be no return. Hence questions arise of distinct risks insured by one policy or instrument. My opinion has been to divide the risks.

(a) B. R. East. 25 Geo. 3. Park Ins. 797.
(b) B. R. East. T. 25 Geo. 3. Id.

I am aware that there are great difficulties in the way of apportionments, and therefore the Court has sometimes leaned against them. But where an express usage is found by the jury, the difficulty is cured (a). They offered to prove the same usage as to the West Indies in general, but I stopped them, and confined the evidence to Jamaica.”

The rest of the Court concurred, and the postea was delivered to the plaintiff.

SECTION V.

OF RE-ASSURANCE AND DOUBLE ASSURANCE.

It is necessary, in a Treatise which proposes to treat of the principles of the law of Marine Insurances, not to omit any part of the subject, which is known and acknowledged by the law of England: and I, therefore, proceed to state the law applicable to this branch, which is the head of this section, of the subject of which I proposed to consider the principles. I must, however remark, in the outset, that though the law upon this subject is well settled and established, it does not appear in the present day, to hold any place among the questions on this subject which constantly are being brought under the consideration of the Courts of Law; and what proves this more strongly, is the fact that there are not, I believe, any recent cases to be found upon the subject. The late Mr. Justice Park, whose system of Marine Insurance is the best guide to any one who wishes to have an extensive knowledge on the law and practice of Marine Insurances; in the last edition by himself in 1817, does not mention any, what would be called modern cases in his time, and for a very sufficient reason, because there are none. Fortunately, however, the principles of the law relating to this subject, were laid down by that great Judge Lord Chief Justice Mansfield,

(a) See Meyer v. Gregson, ante, p. 770.

to whose talents and enlarged understanding and great industry, the world are indebted for the thorough explanations and illustrations of the whole of this subject, conveyed in language the most lucid, and beautifully impressive and convincing to the mind.

I shall now at once proceed to mention the important cases decided on this part of our subject, by that learned Judge.

By the fourth
Geo. 2, c. 37,

section of 19

First, however, I must refer back to that act of 19 Geo. 2, c. 37, which underwent a good deal of discussion in a previous part of this Treatise, on the subject of 'wagering policies,' and policies on interest or no interest.' Section the fourth, which has not been adverted to before, enacts" that it shall not be lawful to make re-assurance, unless the assurer should be insolvent, become bankrupt, or die; in either of which cases, such assurer, his executors, administrators, or assigns, may make re-assurance to the amount before by him assured, provided it be expressed in the policy to be a die. re-assurance."

it is unlawful to make re

assurance

unless the

assurer be insolvent, become

bankrupt, or

ance.

Re-assurance" as understood by the law of England, may 1. Re-assurbe said to be a contract which the first assurer enters into, in order to relieve himself from those risks which he has incautiously taken, by throwing them upon other underwriters who are called re-assurers." (a) This practice seems to have been copied in this country from many of the commercial states on the continent. Many foreign writers upon assurance have written in favour of it: amongst the most celebrated may be mentioned Le Guidon (b), Roccus (c), Emerigon (d), and Pothier (e). And the ordinances of Louis the Fourteenth, adopted and followed the idea that prevailed in France when the Treatise Le Guidon was written, and by an article in that celebrated code of laws (ƒ), it is expressly declared, "that it should be lawful to the assurers to make

(a) Park Ins. 595.

(b) C. 2, art. 19.

(c) De Assecur. note 12. (d) 1, art. 247.

(e) Tit. Assur. No. 96.

(f) Ord. of Louis XIV. tit. Assur.

art. 20.

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