The Sun.
London, England, 1802-07-05 00:00:00

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COURT' OF KINC'3 BENCH; Jett J:
•
IN the courbe ofdibcubsing a Cow on the „Annuity
AA, when, sotne objections to the Annuity wt.re
started, that were not pointed out in moving ter
the Rule for setting abide the Warrant of A trdria y
for entering up Judgment to secure the Annuit),,

&C.\

Lord ELLENEUROUGH said, he thought it ri'ouid
be. a very convenient pratfi:ze in these cases•to lay
down a Rule of the Court, that in future ail Objec-
rionS to be made to, Annuities, ..should he iwerted
in the Rule calling on the Parry to shew Can't why
it should not be set aside, Thar this would • avoid
much conshomption of time in thehe discussions.
• The (Diner ...Judges concurred in opinion with
the Chief Justice, and, therefore, it is ordered ac-
cordingly. . ,

William Bird, a person against whom- his Wife
exhibited Articles of th.e Peace, and of which► we
gave a particular account in our Paper, came into
court to be, bailed, and after a short discussion,
Was admitted to bail, himself in 2001. aild•two
Sureties in 5o1: each, for h►s keeping the Pe.:::e fcir 12
►nonths towards all the King's Suujeds, and parti-
cularly towards his Wife.

COURT OF COMMON FLEAS, juLy

FthtTADO V. :AUGERS.

This was a case of great importance to the Corn.
mercial World, and, therefore, we have taken more
than ordinary pains twgive an account of it to the
Public. It was an Athol: upon a policy of Insur-
ance, dated the t9t-li of October, 1792, on a Ship
called the Patroh•elle, from Bayonne to Mart iaique,
and at and from thence to Bayonne, to rre,,vi-r a
loss by capture. The cause was, tried before the
'Right Hon. Lord ALVA NLEY, Chief ju nee of the
Commons Pleas, at the Sid dugs in Trinity- 'Venn,
1"8o1, when the Jury found a verdict for-the Plain-
tiff, • s•ubje4t to the opinion of the Cohrt, upon the
following ease : •
That the Plaintiff was Owner of the Ship, which
sailed upon the voyage, imuted in -Oetebt.r 17,02,
and arriv.ect at Martiorque in Novenitro- :
remained there until March -1794, be- her
mainiog was justified by necessity., and War having
[token out between this Country and Fraoce,--lie
was then,- upon the. capture UI the iseeee
niquee by the British .Forties, yti:
prize, with 4o other French Vessels.
- The Plaintiff, at the time the Polity
• and from thence until the Attion was corvine et I,
was or, French Subject, resident at Daypiine,
France, which country was in amity with Great
Britain'when the Policy was effteted, and until diet
montW•ofFebruary, 1793, ittewloch time liwtilities
commenced between
.Engfand and France.
These.were the maitertai facts of this case, 'which
was argued withegreariearfihrg and ability by Mr.
Serjeant BAYLEY, for the Plaintiff, and by Mr.
Serjeant BEST, on behalf of the large body of Un-'
derwriters, whoolefended this Attion.
Mr.. Seljeant.BAYLEY observed,-that the Ties- •
tion in this cause for the decision of the Court, was,
whether the -subjed of • the Insurance, belonging to
a person who was in amity with this kingdom, 'at
the time the Insurance..waseffeded, arid being of ter-
wards, in. consequence of a breach of that
,amiryce.
taken by one of the Vessels of this" Country, whether
such 'a Plaintiff, had or had not a right to recover ?
The Learned Serjeant said, he should first consider
this case on the Authorities,, because it seemed Do
him those Authorities were so strong, that it was
not necessary to recur to the principle on which
these' uthorities were founded. These Autin
are in Douglas 238; and 75 1, Edward I. and in
251, 705, and 781, of Edward 11. First Term
Rep. 6t t ;' Third Term Rep. 477 ; Sixth Term
Rep. 23 and 35 ; Eighth Term...Kep-. -548; First
East. 475;. and Lord Chief Baron Parker's Rep.
265. He observed,. that in these cases, the very
same objedion might .have been taken, that wits
meant to be taken in this case by his Brother BEST,
but it had not, in fart, been taken. But, though the
question was never raised, yet as it might have
been raised in these eases, and as the Parties never
did raise it, an•inferencearose, • which he thought, -
could not be got over, that the Plaintiff was en-
.titled to recover. , These different Authorities took
in a very considerable period oft joie ; namely, from
the year 1773 to the year 1,302. He had 'made
use of those Authorites for the purpose of shewirg
that they constituted a series of Decisions, for a great
length 'of time, by which 'he conceived that this
Country-was, as it were, pledg-W, to Foreigners,.
to perforin such a Contrad :is that which was con-
tained in this Policy. His Learned Brother would
probably argue; that if the Court were to decide,
that pn such a Policy,: the Plaintiff was entitled to
recover, the consequence would be, that of raking
out olthe POckets of the British Underwriters, the
amount of this loss, which it was meant the Enemy
should -sustain, and, that, in fad, the only IPS3
•sustained would be by one-part of the King's Sub-
jets, instead of . the Enemy. 'He- contended
• there -Was 'a great deal
.of fallacy in that argu..
ment. He observed that an- Alien 'Enemy could
bring no Adion during War, and it would he
for the King, when he -made -Peace, to &cne on.
what terms that Peace should be made, and whether
that an Alien Enemy should ever have a toght of
Action vested id him, and whether die Uoderw rivers
• should pay this money.. The King, it he ch ,se
had a right to insist on the payment of that money.
The King, upon Inquisition found; woujd be entitled
to the payment of that money. The King might
either exert the right which his Prerogative gave
him, to insist on the payment -of It hitt motley to
him, - or he ought dispense. with that tight in
favour ofsume of his Suojetts.; and it was oil) by,
the licence of the Crown, ur the negligence of the
Crw-Vn, that the Alien Enemy could afterwards in.,
list ors his right of Action. No loss, *Oct-A.4,re;
was thrown on any subj.:ft of this Country during
,
the War, except it was by the iuterv, otioli of the.
King. The ground, therefore, on 'wliico hula_.Oly submitted he was entitled to the It r.:' a1g.,0 of
the Court, was this, That there had beco a iong
series of authorities for a long eeriod of time, during
whiel this question had repeatedly escorted, but
had, Dever been 'raised in any orte wt these Cant ;

1 z.,

Jed this furnished a strong argument in his favouf,'
anless his Learned Brother could produce either
some astral decision, or, some settled principle, of
taw which excltded the Plaintiff' from recovering
in such a Caseats this. He then cited the,2sth
11. cap. 4.. and 33. Gen. 111.. cap. 27, sea. 4. to
thew that the Legislature, in passing these Ads,
'conceived that but foi them, the insurance of Ene-
. my's property in time of War might be.legal. No
Case had been decided saying that a Polity of In-
surance on Enemy's property "during, the War, was
illegal.
Mi. =gerjeant BEST, on behalf of the Under.
writers) said, he was to address the Court in
support of the objeCtion which he had the honour
to take before his Lordship at the trial ; and he
should take up very little time in answering the
argutnent of his Learned Brother, because it appear-
- td To him that argument was built on grounds which
wereato longer tenable in Westminster Hall. His
Learnad Brother had thought it necessary to cite a
vast number 'of Cases ; but one observation, 'he
• thought, would dispose of all those Cases. In no
one of them was this point ever taken. It was
impossible, therefore, that these Cases couldbe con-
sidered as any Authorities on this point, when
the point did not come under discussion before the
Court. -It was also material to observe that at the
time'these Cases came under discussion, it was no-
•der,rovd that the property of. Enemies could he in-
tured fiagrante Bello. The question to be decided
was, Whether an InSorance effeaed antecedent to
the commencement of War, could be legal, when
that property was afterwards taken by the Force of
this country ? As the • Cases cited on the other
side, furnished no authority on the point, he con.
ceived the Case must depend entirely upon principle;
for, after looking into all the Books, he had not
been able to fiod one Cate in which the point in
question had been decided. But re conceived that
on principle, .as' old as the Law itself,a it was im-
possible the Plaintiff could recover in this Adtion.
Ile trusted that what he was about to.state *was not
only applicable, to the law of Insurance, but was to
be considered as a general principle of Law—it was
this —"..pat whatever was against the general
interests of any. Stater was against the Law, of that
State."
.What was the first 'objca of the Law ?
It was to proted the Public Interest, abd there was
nothing more common on that principle, than to
_ make the interest of individuals give way to that
of the Public, so that the preservation of the rights
of individuals was only .a secondary consideration.
The great and first prinCiPle of the Law was, to
preserve the Rights of Society. If he could satisfy
the Court that the interests of the Country required
that this contract should not be carried into execu_
tion, then it would appear on the principles of Law,
that this Plaintiff could not recover. It was a
general principle of the Law of England, that
whenever it was shewn that the enforcing of a
contract would be against the general interests
of the Community, there the Court was vested
with a general power to declare that that con.
trait should not be carried into executiop.—He
should state several- eases in which the Court
bad, on that ground, declared, that an section would
not lie. Suppose a. contra& to be entered. into, the
enforcing of which would be contrary to the morals
of the Country P There was no particular law which
said, that contra& should not be carried into execu.
tion ; but their Lordships were deplored by the law of
the Country to be the Guardians of the Motals of the
Ciuntry, and therefore, on that principle, the Court,
would not allow any contract to be enforced which
was against the principles of Morality. In the
same manner the Court would not allow any con.
tract to be carried info effed which had a tendency
to injure, the Revenue of the Country, and in this
they tided as the Guardians of the general interests
Of the Country. So, in various instances of Betts
or Wagers (and these, and Policies of insurances
were not to be distinguished from each other), which
had a tendency to bring into discussion things that
Were unfit to be discussed in public Courts of Justice;
so the Court would not enforce any contra& which
militated against any Civil Establishment, as against
Marriage—or that affeEfed the trade of the Coun-
try, or that would tend to the breach of any law of
the Country. • There was no law that said these
contracts should not be enforced; but the same
general principle which required that the Court,
in ell these cases, in which they should be satisfied
that he carrying the contract into execution would
be injurious to the interests of the Public—would
induce them to,say, that this contrast; should' not be
carried into effect. He would submit that the Law
had gone further on the subject--it had not only
said, that no contrast should be enforced which
was detrimental to_the pubficinter ests, but the Law
would not allow. a man to place himself in any
Situation in which his interest, as a subjeEt, should
be at variance with the interests of the Country.—
'That appeared to be the strongest _reason in support
Of the dodrine he was contending for.—Ac: the
Guardians of the general interests of the Public, the
Court would see that no contract should be enforced
by which the Public might be prejudiced.
In support of this argument the Learned Serjeant
cited a number of Authorities; and, among others,
those which are to be found in First Term Rep.
56—Third Term Rep. 702 Second Term Rep.
to—First Salkeld 198—and made a tiamber of in.
. enious observations upon them.
Lord ,ALVANLEY—" You contend that it is
illegal for an Englishman to insure against an Ad
of Hostility committed by his own Prince ?''
Mr. Serjeant BEST said, •he certainly contended
that. He admitted that the contrast was good
as to all the risks that fell within it, but that this.
was not one of those risks—it was good for every
purpose consistent with the Law, but it could not be
extended beyond the Law. He could shew, on the
authority of those cases he had cited, that this con.
trait had a tendency to place a man's interest in
dired opposition to the interests of the State, and
to make-him a bad subjea ; on the same principle on
which these cases been decided, the Court would
hold that the Plaintiff could not recover. He con_
ceived there Was no difikulty in making out that
proposition ; he was well aware that 'some of the
most celebrated charafters that ever came into