which country was at that time in a state of hostility, "notwithstanding any thing contained in his majesty's order of council of the 26th of April, 1809," was held not to protect a ship which was the property of an alien enemy, and the insurance on the vessel was determined to be void. (y) In this case the licence appeared to be only a dispensation with the order in council, and was not intended as a remission of the belligerent rights of the crown. If the licence granted be conditional, it is incumbent on the party who seeks to protect himself under it, to conform to its requisition (z) and if the conditions be only colourably complied with, the licence will be avoided by reason of the fraud. (a)

The rule which prohibits insurance on the behalf of an alien enemy, is not to be construed so largely as to preclude a person who labours under no incapacity from insuring property in which an alien enemy may be partially interested. When an insurance was effected on a cargo of goods, the interest in which was vested in a British subject, and in certain Hamburghers and Russians in various proportions, and a licence had been obtained to protect the adventure on behalf of all the owners of the cargo, which was considered incapable of protecting the subjects of Russia, a nation then at war with this country, it was held that the plaintiff, who had effected the insurance on behalf of all the parties interested, and who was himself entitled to a part of the cargo, might nevertheless recover, in respect of his own interest, and also of that of the Hamburghers who were then in a state of permissive neutrality. (b) Lord Ellenborough, C. J. in delivering the judgment of the court, observed, that the mere accidental circumstance of several persons having employed one common agent, did not communicate to the others, the vice belonging to the property of one of the insured: *that in this case there was no common or joint interest in the whole of the property insured, subsisting in the different individuals, nor was there any fraud. Had there been, (he said), a partnership amongst all the parties in the entire cargo; or even if any consent had been given to the employment of one common agent, the objection might have had a different effect. In like manner a British subject, who possesses an interest in a cargo, (for instance), in the proportion of four parts in nine on the whole cargo, may recover upon a valued policy to the amount of the value insured on a count alleging interest in himself, if he proves some interest, although alien enemies may also be interested in other shares of the cargo. (c) Where a neutral and a French subject insured their respective interests in three vessels by separate agents, and in separate policies, and the vessels were afterwards

(y) Grigg v. Scott, 4 Campb. 339. 1 Holt, 129. S. C.

(z) Vandyck v Whitmore, 1 East, 475. Morgan v. Oswald, 3 Taunt. 554.

(a) Gordon v. Vaughan, 12 East, 302. (b) Hagedorn v. Bazett, 2 M. & S. 100. Keir v. Audrade, 6 Taunt. 498. 2 Marsh Rep. 196. S. C. Pieschell v. Allnut, 4

Taunt. 792. Butler v. Allnut, 1 Stark. 222.; but see Parkin v. Dick, 11 East, 502. 2 Camph. 221. S. C. Shiffner v. Gordon, 12 East, 364. 2 M. & S. 105, 106. 6 Rob. Rep. 131. See also Roberts v. Hardy, 3 M & S. 533.

(c) Feize and Others v. Aguiler, 3 Taunt. 306.

detained by an embargo laid on in France in the year 1793, the neutral was holden entitled to recover. "If," said Mr. Justice Lawrence," this action had been brought by the French subject it would not have been maintainable, but the action is brought by a neutral." (d)

(d) Rotch v Edie, 6 T R 413. Vide 1 Campb 76.

10

*CHAPTER. II.

OF THE PROPERTY AND INTEREST INSURED.

INSURANCE, being a contract of indemnity, must be founded on the existence of some property or interest, which is liable to be damaged or affected by the perils against which the insurance is made. It becomes therefore important to inquire first, what things are insurable; and, secondly, what interest on the part of the insured, is necessary to render an insurance valid. The first division relates to the quality of the subject matter of insurance, as the second relates to the amount or quantity of interest which the insured ought to possess. The first branch of the subject requires us to consider the insurability of, first, enemy's property or property licenced by the the crown. Secondly, Slaves. Thirdly, The wages of seamen or the privilege or effects of the captain. And, lastly, freight, profits and certain other subjects of insurance. The second division of the Chapter will require us to consider, 1st. The ancient state of the law and the subsequent introduction of the statute 19 Geo. 2. c. 37. 2ndly. The distinctions between an insurance on interest and one without interest. 3dly. What are the species of contracts which must be founded on interest to render them valid. 4thly, What are the species of property in which the person insured is required to possess an interest, to render his insurance valid, i. e. Whether the property of British subjects or foreigners, or property engaged in particular expeditions. 5thly. The different sorts of insurable interest and therein-1. Of the general rules, and of the interest of commissioners appointed by the crown for the sale and disposal of ships. 2. Interest in unregistered vessels. 3. The interest of the crown, and of the captors in captured property. 4. Mortgagor and mortgagee. 5. Consignees of goods and indorser of bill of *lading. 6. Freighters of goods. 7. Interest in freight. 8. Profits. 9. Valued policies, double insurance, and re-insurance. 10. Several insurable interests in the same property, and bottomry and respondentia interests. 11. Interest unconnected with the event insured against. And, lastly, The period at which it is necessary that the interest should begin to exist.

First then, no insurance can be effected upon the property of an enemy although it consists of British manufactures, (a) nor can a British subject insure goods, purchased by him in an enemy's

(a) Bristow v Towers, 6 T R 35. Brandon v Nasbit, id 23. Adm Bell v.

Gillson, 1 Bos & Pul 353, and see last
Chap but see 1 Ves 320.

country. (b) When goods were purchased in Holland, during hostilities between that country and Great Britain, by the order and for the use of a British subject, and shipped for England in a neutral vessel, it was decided that an insurance on these goods was invalid. (c) The reason is, that at common law, it is illegal for a British subject to traffic with the enemy's country, (d) and the property engaged is subject to confiscation in a court of prize. (e) Consequently a contract of indemnity against the risks attendant on such trading, must also be illegal. In a former part of this treatise, in noticing the incapacities affecting the person insured, we had occasion to consider the illegality of insurance on behalf of alien enemies ;-the objection to which species of insurance may perhaps be more properly considered, as attaching on the person of the insured than on the property; and another branch of the same doctrine will be inquired into, when we come to treat of the voyage, and the commerce insured. In the former Chapter, it was also seen, that the property in which an alien enemy is interested may be protected by means of the king's *licence ;(ƒ) and that a licence of this nature, by which the crown legitimate a trading by an alien enemy with the king's subjects, is to receive a liberal construction. But questions have occasionally arisen under the licencing system, in which it has become a matter of nicety to determine whether in a particular case, the goods intended to be insured can-be deemed sufficiently protected by the licence granted; whether the terms of the licence extend to the adventure pursued. If a licence authorize the taking in of a cargo of British and East India goods at London, to be proceeded with to Newcastle, and thence to Archangel; and the returning from Archangel with a cargo of grain and other goods, permitted by law to be imported into any part of the United Kingdom; and the ship, after taking in a cargo of pitch and tar at Archangel, and setting forth upon her homeward voyage, be driven back by the fury of the elements to the port from which she sailed, and there unlade her cargo; and after having been laid up for the winter, sail again from Archangel with a cargo of wheat, the licence is not exhausted by taking in the first cargo of pitch and tar, but will also protect the cargo of wheat, for in this case there is but one cargo imported into the United Kingdom. (g) It is a fit question for a jury, whether the licence is abused by being treated as a floating protection to cover different cargoes; or whether it is promptly and fairly executed, and the second cargo bona fide substituted, without any unnecessary prolongation of the voyage; in the latter point of view, the second cargo will be protected by the licence. In a case where a homeward cargo, shipped under the protection of a licence, was unladen in the course of the voyage, for the purpose of repairing a damage which

(b) Potts v Bell, 8 TR 548. Bell v Gillson, 1 Bos & Pul 345 cont.

(c) Id ibid.

(d) 8 T R 571.

(e) 8 TR 556.

(ƒ) Ante, 8 East, 273. 5 Taunt 700. (g) Siffkin v Allnutt, 1 M & S 39.

the vessel had sustained through the perils of the sea, and part of the cargo was destroyed by fire; it was held by the court of Common Pleas, that another cargo, substituted with due expedition in the place of that which had been destroyed, was protected by the licence. (h) A licence obtained in order to cover an outward and a homeward voyage, and containing a condition that the grantee shall export a certain proportion of British manufactures for the outward voyage, will not protect an outfit, the greatest part of which is made up of Spanish goods, with only a small, and merely nominal quantity of British manufactures, for such conduct is colourable, and in fraud of the licence. (i) It seems, that a "return cargo means a cargo purchased with the produce of the goods sent out from this country. (j) If no licence be necessary for the particular adventure, (k) or if there be a pre-existing *licence which is competent to protect it, (1) a person will not be prejudiced, by having ex majori cautela obtained an additional licence, which turns out to be insufficient to cover the property insured.

A licence permitting the importation into this country from a hostile state, of goods of a particular description, and containing a prohibition of all others, will protect a cargo of the enumerated commodities, although other goods are imported in the same vessel which are not protected by the licence. (m) It does not appear to be necessary, in order to validate an insurance upon the licenced goods, that the part which is unlicenced should not be the property of the insured, or that it should not be comprehended within the terms of the insurance. (n) A licence authorizing the exportation of a particular number of barrels of gunpowder, the exportation of which is prohibited by proclamation, (o) will enure to protect a cargo to the extent of the specified quantity, although a greater number of barrels is in fact exported; and an insurance effected upon the whole cargo, will be available as to that portion for which the licence has been obtained. (p) In the case of a vessel importing into this country, from a hostile nation, a cargo consisting of goods for which a licence has been obtained, as well as others which are not licenced, if the ship and cargo be libelled in the Court of Admiralty, the unlicenced goods will be condemned, but the vessel and the licenced part of the cargo will, it seems, be ordered to be restored. (q) In the case which has been mentioned of the exportation of gunpowder contrary to a proclamation, the powder exported without a licence, together with the vessel carrying it, is exposed to confiscation, and the parties are rendered liable

(h) Siff kin v Glover, 4 Taunt 717. (i)Gordon v Vaughan, 12 East, 302 see 6 Rob Adm Rep 43, 44. 4 ib 11 96. (j) Johnson v Greaves, 2 Taunt 347 356.

81.

(k) Blackburne v Thompson, 15 East,

(1) Siffkin v Allnut, 1 M & S 39 45. Siffkin v Glover, 4 Taunt 718.

(m) Pieschell v Allnut, 4 Taunt 792. CP. Butler v Allnut, 1 Stark 222 K B. (n) 2 Marsh Rep 196. Keir v Audrade, 6 Taunt 408 S C.

(0) See 12 Car 2 c 4 s 12. 29 Geo 2 c 16 s 2. 33 Geo 3 c 2 s 4.

(p) Keir v Audrade, 1 Taunt 498. 2 Marsh Rep 196 S C.

(9) 4 Taunt 795, 796.