v. Duckett

450

Worsley v. Wood

511

Duffal, Esq. v.

347 Warrangham, Ogle v.

Lettson and Others v. 285, Wright v. Barnard

293 Wright and Others v. Riley

v. Shiffner

93

489

112

151, 324

v. Welbie

63, 82, 467

Y.

v. Millar

Omealey v.

Robson v.

Lavabre v. 194, 198, 202

v. Marryatt 63, 72, 81, 83,

v. Miller and Others

v. Royal Exchange Insur

309

248

400

Young, Gibbon v.

480

4

105

Green v.
Jolly v.

83, 185, 234

166

Younghusband, William v.

479

ance Company

20, 412, 447

It may be proper to notice that the above List does not include those Cases which appear in the Reports as Anonymous; nor those which are cited in the Treatise merely by the Books in which they are to be found.

J. Halsted p

Α

TREATISE

ON

THE LAW

RELATING TO

INSURANCE.

PART THE FIRST.

OF MARINE INSURANCE.

CHAPTER Í.

OF THE PERSON INSURED.

THE only disability which it appears essential to Alien enemies. notice, as affecting the person of the insured, is that which attaches on alien enemies.

From reasons of public policy, no insurance can be effected upon the property of an alien enemy. (a) No contract entered into between an enemy and a British subject is valid by the laws of this country, (b) or can be made the subject of enforcement in any court of justice, either of law or equity, (c) or at any time *whatsoever, either during the war or after its termination. (d) The reason is, that to allow such a contract to be operative, must presuppose the existence of pacific communications between the parties by whom it is entered into, and is therefore repugnant to the measures of our own government, in declaring war; that it has a tendency to betray the British subjects into breaches of their allegiance, and serves to strengthen and assist the enemy, by

(a) Furtado v. Rodgers, 3 Bos. & Pul. 199. Brandon v. Nesbitt, 6 Term Rep. 23. Bristow v. Towers, 6 T. R. 35. Rotch v. Edie, 6 T. R. 422. Kellner v. Le Mesurier, 4 East, 396. 404. Touteng v. Hubbard, 3 Bos. & Pul. 299, 300. Casseres v. Bell, 8 T. R. 166. Kensington v. Inglis, 8 East, 290. Bell v. Gilson, 1 Bos. & Pul. 354. Antoine v. Morshead, 6 Taunt. 239. Ex parte Lee, 3 Ves. Rep. 64. Dub. by Lord Hardwicke. Henkle v. Roy, Exch.

Ass. 1 Ves. 320. Emerigon Traite des As surances, ch. 4. s. 9. 1 vol. 129.

(b) Brandon v. Nesbitt, 6 T. R. 23. Wil lison v. Patteson, 7 Taunt. 439. 1 Moore, 133. 142. S. C.

(c) Albretch v. Sussman, 2 Ves. & Be. 323. Ex parte Boussmaker, 13 Ves. 71. As to bills for discovery, and not for relief, see Dawbigny v. Davallon, 2 Anst. 462. 2 Ves. & B. 325. 78.

(d) Gamba v. Le Mesurier, 4 East, 408;

opening to him avenues for traffic. Insurances upon enemy's property are, perhaps of all contracts, the most peculiarly liable to the objections just mentioned; and therefore it has been adopted as a general rule, that no insurance can be effected on the behalf of an alien enemy. Although the policy is entered into in the name of a British subject, as trustee for the persons interested ;(e) though the property insured is of British manufacture, and exported from this country;(f) though the contracting parties are ignorant, at the time of entering into the contract, of the relation of hostility superinduced by the acts of their respective sovereigns ;(g) though the war breaks out after the effecting of the policy, and after the commencement of the risk, (h) yet in no instance can the policy be inforced, or the interest insured be protected, whilst it remains impressed with the character of hostility. The effect of such an insurance would be, to rescue a foreigner, and through him the state of which he is a member, from those evils which a state of war is calculated to produce. Nor can it afford any just ground for distinction, where the loss has happened and the claim arisen during war, that the action is not brought until after the cessation of hostilities. (i) For whether an enemy is indemnified during a war for the losses he sustains, or receives a compensation for them afterwards, the difference is *only in the degree, and not in the nature of the satisfaction; in both instances, the effect of the contract is, to transfer the loss from the insured to a subject of that country which has declared itself his enemy; and in both, protection and encouragement are afforded to the enemy, either by the satisfaction immediately given, or by the prospect of eventual indemnification. Where the persons interested become enemies after the loss has happened, their contract is suspended during the continuance of hostilities, but is capable of being enforced (if the King should not in the mean time interfere, by virtue of his prerogative, to seize the debt,) at the return of peace; and a British agent, in whose name the policy is effected, may recover even in time of war, in respect of the hostile interest, if the insurer plead only the general issue, which is a plea of perpetual bar. (j) It is, indeed, extremely questionable, whether any country, on the breaking out of a war, has a right to confiscate debts due from its subjects to the hostile

but see 6 T. R. 28.

(e) Brandon v. Nesbitt, 6 Term Rep. 23. Bristow v. Towers, 6 T. R. 35. Kensington v. Inglis, 8 East, 289, 290. Ex parte Lee, 13 Ves. jun. 64.

(f) 6 Term Rep. 25.

(g) Oom v. Bruce, 12 East, 225-227. (h) Brandon v. Curling, 4 East, 410. Gamba v. Le Mesurier, 4 East, 407. Kellner v. Le Mesurier, 4 East. 403, 404. Touteng v. Hubbard, 3 Bos. & Pul. 299, 300, 301. Lubbock v. Potts, 7 East, 451. Flindt v. Waters, 15 East, 265, 266. 9 East. 292. Planche v. Fletcher, Dougl.

241. dict. of Lord Mansfield, contra. Furtado v. Rodgers, 3 Bos. & Pul. 201., confines the doctrine to losses by British capture, Abb. Ship. 439, 440. But see cases supra. In 2 East, 385., the objection was not taken.

(i) Brandon v. Curling, 4 East, 410. 1 Smith's Rep. 85. Gamba v. Le Mesuricr, 4 East, 407. 1 Smith's Rep. 81. S. C.

(j) Flindt v. Waters, 15 East, 260. Harman v. Kingston, 3 Campb. 153, 154. See also Venbrynen v. Wilson, East, 321.; and see further as to alien enemies, post, next Chapter.

nation; for the general rule appears to be, that incorporalia bello non adquiruntur; and although it has been laid down by high authority, (k) that "by the law of England, debts and goods "found in this realm belonging to alien enemies, belong to the King, and may be seized by him;" yet the books to which reference has been made do not furnish an instance of the seizure of debts, of a decided case in support of the legality of such a seizure. By Magna Charta, merchant strangers are upon the breaking out of a war to be attached, and kept without harm to body or goods, until it shall be known how the English merchants are treated by the sovereign of their state; and if the latter are safe there, the former are to be safe here; (1) so that foreign merchants could suffer nothing in England, unless by way of retaliation and reprizal. An ordinance of a state decreeing a seizure of debts due from its subjects to alien enemies, appears to be illegal and void, as contrary to the law of nations. Therefore, where an ordinance was made by the grovernment of Denmark, pending hostilities with Great Britain, whereby all ships, goods, money, or money's worth of or belonging to English subjects, were declared to *be sequestrated and detained; and all persons were commanded, within three days, to transmit an account of debts due to English subjects, in default of which, they were to be proceeded against in the exchequer; in consequence of which, a suit then depending in the Danish court for recovering a debt due from a Danish to a British subject was not further prosecuted, and the debt was afterwards paid by the Danish subject, at the rate specified by the ordinance, to commissioners appointed in virtue of the ordinance to receive payment, upon production of whose receipt the Danish court quashed the suit this was held to be no answer to an action against the Danish subject to recover the same debt in the courts of this country; for the ordinance not being conformable to the law of nations, was held to be void. (m)

The illegality of an insurance effected on the behalf of an alien enemy being thus established, it frequently becomes necessary to determine on the trial of an action on the policy, whether the person insured is or is not to be regarded as an alien enemy, within the meaning of this rule. When an individual resides and carries on the trade in an enemy's country, he is considered for all civil purposes as adhering to an enemy; he is not only by such conduct disabled from suing, but his property is rendered liable to confiscation in a Court of Prize. (n) It is plain therefore that he is incapable of effecting an insurance. This doctrine applies equally to an Englishman (o) and to a neutral. (p). If an alien,

(k) Hale P. C. 1 vol. 95. (1) Stat. Mag. Chart. c. 30. (m) Wolff and Others v. Oxholm, 6 M. & S. 92.

(n) M'Connell v. Flector, 3 Bos. & Pul. 113. Roberts v. Hardy, 3 M. & S. 536. 6 ib. 98. Albretch v. Susman, 2 Ves. & Bea. 323. The Harmony, 2 Rob. Adm. Rep. 322. The President, 5 ib. 277. The

Jonge Klassina, 5 ib. 302, 303. Omealey v. Wilson, 1 Campb. 483. Tabbs v. Bendelack, 3 Bos. & Pul. 207. 4 Esp. 108. S. C. De Luneville v. Phillips, 2 New. Rep. 97. 1 Hale's P. C, 165.

(0) 3 Bos. & Pul. 113. 1 Campb. 483. (p) 2 Ves. & B. 328, 329. 2 Rob. Adm. Rep. 322. 5 ib. 277.

resident in an enemy's country, in the capacity of consul of a neutral state, embarks in mercantile transactions with the subjects of the hostile power, he is to be regarded as an enemy, and is not protected by his diplomatic, character (q) So an Irishman residing in an enemy's country, and carrying on trade there, has been held incapable of suing in an English court of justice, although he had been naturalized by a neutral state. (r) However, the mere *residence of a British subject in the dominions of an enemy, is not of itself sufficient to establish this incapacity, (s) inasmuch as his residence may be the effect of compulsion; he may be detained as a prisoner of war, (t) or it may happen that no opportunity has been afforded him to withdraw himself from the effect of supervening hostilities. (u) And therefore, in order to prove that the persons interested were alien enemies at the time of the commencement of the action, it is not sufficient to shew that they were formerly resident in a place, which has since been annexed to the territories of the enemy, without giving some evidence as to the purposes of their residence or the place of their birth. (v)

Whether this country is to be considered in a court of justice as at war with a foreign nation, must necessarily be determined by the acts of state. In England the power of originating a war is confided solely to the king; (w) but no formal declaration of war is necessary to constitute a state of hostility. (x) The indications of enmity need not be reciprocal; and one nation, however submissive or prostrate her professions, may become an enemy to another, who does not think fit to accept the offers of pacification. (y) But a nation which continues to maintain the forms of an independent government, or which is allowed by existing orders in council to carry on commerce with this country, is not to be regarded as an enemy, although the territory may be occupied by the forces of a belligerent, and although the conduct of the foreign nation herself may have been such, as to entitle the government of this country to consider her as an enemy. (z) The most powerful evidence upon the subject of national character is *the declaration of the state; and if the government think fit to recognize a community as no longer standing towards us in a relation of hostility, that recognition is obligatory upon courts of justice. (a) Where a foreign power is so recognized, it is not to be

(7) Albretch v. Susman, 2 Ves. & Bea.

329.
(r) Omealey v. Wilson, 1 Camph. 482,
Roberts v. Hardy, 3 M. & S. 533,

1 Hale P. C. 165, 167, 168.

(1) Bromley v. Kesseltine, 1 Campb. 77. Autoine v, Morshead, 6 Taunt, 237. Willison v. Patteson, 7 Taunt. 449. Daubuz v. Morshead, 6 Taunt. 332.

(u) Harman v. Kingston, 3 Campb. 153. The Ocean, 5 Rob. Adm. Rep. 90. The President, 5 Rob, Adm. Rep. 277. The Indian Chief, 3 Rob. Adm, Rep. 12. and see Bell v. Gillson, 1 Bos. & Pul. 353, 355. (v) Harman v. Kingston, 3 Campb. 153. (w) Hale P. C. 159. 4 Inst. 152. Bro.

(x) Oom v. Bruce, 12 East, 226. 1 Hale P. C. 163, 164,

(y) The Nayade, 4 Rob. Adm. Rep. 253.

(z) Hagedorn v. Bell, 1 M. & S. 450. Pieschell v. Allnutt, 4 Taunt. 792. 1 M. & S, 454. S. C. Blackburne v. Thompson, 15 East, 81. 3 Campb. 61. S. C. Donaldson v. Thompson, i Campb. 429. Hagedorn v. Bazett, 2 M. & S. 100. 106. The Santa Anna, 1 Edw. Adm. Rep. 180. Johnson v. Greaves, 2 Taunt. 344. (a) 3 Campb. 667, 15 East, 91. 99.