and part of the cargo sold, and the
remainder sent home in another vessel,
held that this was a total loss of the
cargo the moment the act of "bar-
ratry" was committed,
326
5. The loss must take place during
the voyage, and within the time li-
mited by the policy,
328

6. Where the owner of a ship, by a
contract, placed the entire vessel for a
time under the sole control of the
freighter, an act done by the general
owner, or with his consent, in fraud
of the freighter, is an act of "bar-
ratry,"
329
7. Mr. J. Willes's definition of
"barratry,"
329

8. If the master deviate from the
voyage on a private speculation of
his own it constitutes "barratry,"
325, 330

9. If a master, contrary to his in-
structions, cruise for and take a prize,
it is "barratry,"
331

10. The master of an American
slave ship sails to an enemy's settle-
ment on the coast for the purpose of
trading to more advantage than at a
British settlement without having in-
structions to go there; his ship was
seized by a British frigate: this trading
was held to be "barratry," 331

11. The master must do nothing
contrary to the laws of his country,
whether with or without a view to
the advantage of his owners,

335

12. In the sense in which "bar-
ratry" is used, as applied to subjects
of British marine insurances, it is
considered precisely tantamount to
fraud,
334

13. If the master of a ship sail out
of port without paying port dues,
whereby the goods are forfeited, lost
or spoiled, this is "barratry," 335

14. If the master sail out of port
without leave in breach of an em-
bargo, in consequence of which the
owners afterwards sustain a loss, in
respect of sailors' wages and provi-
sions, by the detention of the ship,
this is "barratry,"
336

15. If the conduct of the master is
criminal with respect to the state it is
"barratry," although likely in his
opinion to advance his owner's in-
terest,
337

16. A deviation by the master
through a mistake as to the meaning
of his instructions, or a misappre-
hension of the best mode of carrying
them into effect, will not constitute
"barratry,"
338

17. The freighter for the voyage is
owner of the ship, pro hac vice, and
"barratry" cannot be committed with
his consent,
339

18. But an act of the captain with
the consent of the owner of the ship,
though without the privity of the
owners of the goods, does not con-
stitute "barratry,"
340

19. "Barratry" cannot be com-
mitted against any but the owners of
the ship,
341

20. If an owner be likewise master
he cannot commit "barratry," 242

21. The mortgagor of a ship is suffi-
ciently the owner to disable him from
committing "barratry" if he also be
master,
342

22. And the Court of Chancery,
in a case in which the owner and
master after mortgaging his ship had
committed "barratry," and when the
mortgagee brought an action against
the underwriter to recover damages
for the loss he had sustained by this
act of "barratry," still considering
the mortgagor the owner, granted an
injunction,

342

the ordinances of some foreign na-
tions, for the punishment of those
who have been found guilty of the
more heinous acts of "barratry," 345
26. And of piracy,
347

BROKER.

1. The insurance broker goes be-
tween the assured and the underwriter,
533

2. He is answerable in an action
by his employer (the merchant) if he
accepts a retainer, and fails in per-
forming his duty,
533, 536

3. The broker is agent both to the
assured and the underwriter, 534
4. He sometimes acts under a del
credere commission,
534

5. As the brokers transact the
principal part of the business for the
merchants, the law gives them a lien
upon the policy,

535

6. Although the broker has a lien,
he may be served with a "subpœna
duces tecum," on a trial between the
assured and the underwriter, to pro-
duce the policy, for he does not
thereby lose his lien,
536

7. There are three cases in which
a merchant has a right to expect that
a broker will obey an order to insure,
537

8. If a broker in making a policy,
omits any circumstance, which will be
a defence in an action by the assured
against the underwriter, he is liable in
an action to the amount of the as-
sured's loss,
538

9. In an action against a broker
for negligence, though the evidence of
brokers and underwriters is not ad-
missible upon a matter of fact upon
which the jury are to give their ver-
dict, yet they may be called to shew
whether other persons of skill and
experience in the same profession,
would or would not have come to the
same conclusion as the defendant, 539

10. In an action against an agent
for a breach of undertaking according
to special instructions, the declaration
alleged the duty of the defendant to

11. And where in an action against
a broker for not making an insurance
according to his undertaking, and the
plaintiff recovered a verdict, on a mo-
tion for an arrest of judgment, on the
ground that the duty alleged in the
declaration to make an insurance was
larger than the duty of the defendant,
who only ought to have used reason-
able care and diligence to perform
what he had undertaken. Held, that
the action was founded on an express
contract, and the breach not larger
than the terms of the contract, and
the allegation that the defendant, to
perform his promise "wrongfully and
in breach of his duty and retainer,
and of his acceptance thereof, wholly
neglected and refused," was a legal
charge on the face of the declaration,
and sufficient to call on the defendant
for an answer,
545

12. If in an action against an agent,
the neglect complained of, be the non-
communication of a material fact to
the underwriters by which the policy
was voided, the agent may by way of
defence make it appear that the fact,
if communicated, would have made it
impossible to get the insurance made
at the premium limited by his in-
structions,

545

13. Settlement between the broker,
the underwriter, and the assured, 546

14. The receipt of the premium on
the face of the policy, is a bar to an
action by the underwriter against the
assured, except in the case of fraud,

547

15. But between the underwriter
and the broker the receipt is no bar,
547

16. In an action by the assured
against the underwriter, the latter
cannot set off the premium though he
has not been paid by the broker, 549

12. There is no book, ancient or
modern which does not say, " that in
case of the ship being taken, the as-
sured may demand as for a total loss
and abandon. And what proves the
proposition most strongly is, that by
the general law he may abandon in
the case merely of an arrest on an
embargo, by a prince not an enemy,
296

13. The chance of restitution does
not suspend the demand for a total
loss upon the assurer, but justice is
done by putting him in the place of
the assured in case of recapture,

14. In the Treatise called "Le
Guidon," where, after mentioning the
right to abandon upon a capture, he
adds, " or any other such disturbance
as defeats the voyage, or makes it
not worth while, or worth the freight
to pursue it,"
297

15. Where a neutral ship was un-
justly seized as a prize, and being

4. And where a fire was lighted in
a ship and by negligence set her on
fire, this was held to be a loss by
"fire" within the terms of the policy,

282
5. And where an insurance on
"ship and furniture," provisions
provisions
which had been sent out for the use
of the ship, were taken out of the
vessel while refitting and put in a
warehouse in the regular course of
the trade, and were burnt by accident,
it was held, that as the underwriters
had insured against "fire" by the

6. Where a ship was warranted a
Portuguese, and the assured by his
answer to a bill, admitted that she
was condemned for not being a Por-
tuguese. Policy void.
574

7. A representation (contrary to
the truth) that the insurance sought
to be made, had been made by other
underwriters at the same premium,
vitiates the policy made by means of
such misrepresentation,
575

8. Secondly,-case where the as-
sured has stated something to be true,
which he does not know to be true,
and at the same time suppressing
material circumstances,

576

9. The concealment of material
circumstances vitiates all contracts on
the principle of natural law, 576

10. On a representation to induce a
party to make a contract, it is equally
false for a man to affirm that of which