PREFACE. THE design of the Author in the following pages has been to exhibit a condensed and practical view of the Law of Insurance, for the purpose of affording to the professional or commercial inquirer a means of reference to this branch of the law, and to the principles and authorities by which it is supported. The subject is in itself of so great extent and importance, the decisions relating to it are so numerous, and the investigation afforded by learned and able men has been so elaborate, that considerable time and attention have been employed in endeavoring to consolidate its provisions, and reduce them into a simple and perspicuous order. The Law of MARINE INSURANCE is derived from a variety of sources. The ordinances of the most celebrated commercial states of Europe, and the Treatises founded upon them by foreign authors, require to be consulted upon a branch of mercantile law, so extensive as that which we are now considering. Among these Treatises, the most useful to the English lawyer are those of Pothier and Emérigon; the former, remarkable for the sound morality and correct judgment which he usually exhibits; the latter, peculiarly valuable, not only for the learned research displayed in bringing forward previous authorities, but also for the acute ness and sagacity of his own reasoning. A list of the greater part of the foreign authors has been published by Mr. Stevens, in a late Treatise on the Law of Average; and the present writer is not aware that any useful commentary can be added to the account given of them by preceding authors. Should the necessity of recurrence to these sources be less frequent now than at a former period, the reason may probably be found in the present matured state of the law, and in the existence of more immediate and direct authority. For it is scarcely necessary to remind the English reader, that the most celebrated codes of the European nationsthe rules which they enjoin-and the reasons upon which these rules are founded, are not in themselves of binding force in this country; they are to be regarded rather as affording materials to guide the judgment, than as possessing the weight to be attributed to authority. In a Treatise like the present, these authorities are only quoted by way of illustration: the design of the present Work has been rather to elucidate the Law of England. And whilst the systems of jurisprudence in other nations are mentioned with a due share of honor, it must not be forgotten, that the growth of commerce in our own country has been accompanied with a corresponding improvement in the law. On the subject immediately under consideration, two very able Treatises are already known to the Profession, viz.-"The System of Insurance," written by the present Mr. Justice Park, while in practice at the bar; and the Treatise of the late Mr. Serjeant Marshall, afterwards edited by his son. Both these Treatises have attained a very high celebrity; and the present writer feels happy in this opportunity of bearing testimony to their various merits. Considerable advantage has accrued to the Author from the period at which his Work has been undertaken. For he has been enabled to avail himself of much new and valuable discussion. The various forms assumed by commerce, and the changes which daily take place in the habits and dealings of mankind, have given rise to new laws and fresh topics of legal investigation. At the same time, he has been enabled, by reason of the law having become settled, to divest his pages of much elaborate argument, justly considered necessary at an earlier period; the introduction. of which into a Treatise of this nature, cannot, it is presumed, be deemed essential, with regard to points which are now laid up among the elements of our jurisprudence, and regarded as too well established to be shaken. In addition also to the alterations thus suggested in the plan of the present Work, it may be proper to observe, that some recent decisions of considerable importance have occurred, which now appear for the first time. In a Work professing to treat of a branch of the municipal law of this country, the most valuable part is generally to be found in the decisions of our courts of judicature. To these, therefore, a particular attention has been paid. In stating them, the Author has endeavored to disencumber the volume of all superfluous details of fact, and at the same time to present to the Reader the grounds or principles upon which the cases were decided. Without these grounds or principles, indeed, the quotation of cases is of little utility. The same elucidation appeared a matter of justice to the learned persons by whom the judgments have been given; whose opinions, solemnly delivered, are intended not merely for the determination of particular causes, but as guides for the decision of similar cases in all future times. The First Part of the Volume embraces the subject of Marine Insurance. The remaining divisions are occupied with the consideration of Insurance on Lives, and Insurance against Fire. The arrangement will appear from the Table of Contents. Some time has elapsed since the Author first entertained the idea of a publication of this nature. Indeed, he is indebted for its first suggestion to a gentleman at the bar of great experience and ability, to whom he is under much obligation for this mark of his kindness, and from whose friendship and professional instructions he has ever derived the greatest advantages. Considering the nature of the undertaking, and the variety of the subjects introduced, it is feared that some errors may have occurred: these, however, the Author presumes to hope, may be viewed with indulgence by the candid and intelligent Reader. INNER TEMPLE LANE, April 14, 1828. |