Star.
London, England, 1802-07-08 00:00:00

JOHNSON V. SHEDDON.

This was an a&ion upon a Policy of Infurance, in
which the quellion was, upon what fcale of calcu.
lation a partial lots was to be computed ? a point
on which there has long been a great difference of
opinion among the Gentlemen at Lloyd's. Mr.
Oliphant and Mr. Vans, two very eminent perfons
in commercial affairs in the City, differed upon
this fubjeti, and gave their evidence upon two trials
before special Juries in Guildhall, when verdias
were found for the Plaintiffs upon the fcale of cal-
culation adopted by Mr. Oliphant, agreeably to
the opinion of Lord Kesvost.
A motion was made for a new trial, upon the
gttund that this calculation was erroneous. The
cafe has been before the Court for a twelvemonth,
and now Mr. Juftice LAWRENCE delivered the
non of Mr. Jutlice GROSE, who, from indifpofi-
uon, was prevented from attending, and his own,
(my LORD Cater Jurrics being Counfel in tin
caufe, took no fhare): they concurred in Clinkinl
that the principle on which Mr. Oliphant made hi
calculation, was erroneous in this cafe, for whir
reafon the Court ordered a new

This decifion governed the cafe of Johnfon am
Thompfon, in which a new trial was therefore
ordered. [Toni over,

ir

.r

I

LkW IN"1 F.I.I.IGENCL

FURTADO T. Roc rit s.

IN CONTINUATION FROM 1 NF. PRFCEDINCI PACE.

COURT OF COMMON PLEAS, JULY S.

This was an aaion upon .1 Policy of TM-mance,
dated the 19th of o.9ober, '792, on a Ship called
the Patronelle, from Bayonne to Martinique, and
at lird from thenCe to Bayonne, to recover a lots
1/V capture. The cattle wa•,...rkkl before the Right
Finn. Lord ALVANLEr, Chief jullice of the Com-
mon Pleas, at the Sittings in Trinity Term, iHo 1,
when the Jury found a verdiLq for the Plaintiff,
ftibiea to the opinion of the Court, upon the fol-
lowing cafe:
That the Plaintiff was Owner of the Ship, which
failed upon the voyage, infured in o.9ober 1792,
and arrived at Martinique in November following:
remained there until March 1794, but her to re-
maining; ava,juditied by necellity, and War having
broken our between this Country and France,—fhe
svas then, upon the capture of the bland of Marti-
nique, by the Britith Forces, taken by them as
prize, with 40 other French veffels.
The Plaintiff, at the time the Policy was effected,
and from thence until the adion was commenced,
wis a French Subject, refiding at Bayonne, in
France, which Country was in amity with Great
Britain .then the Policy was effefted, and until the
month of February 1793, at which time hoftilities
commenced between England and France.
Thefe were the material fails of this cafe, which
was argued with great learning and ability by Mr.
Serjeant BAYLEY, for the Plaintiff, and by Mr.
Scrjeant BE sr, on behalf of the large body of Un-
derwriters, who defended this aftion.
Mr. Serjeant BAYLEY obfer7ed, that the quer-
tion in thii saute for the decifion of the Court, was,
w:!ether the lubjed of the infurance, belonging to
a perfon who was in amity with this kingdom, at
t!.e time the infurance was effeeted, and being
afterwards, in confequence of a breach of that
amity, taken by one of the veffels of this country,
whether fuels a plaintiff had or had not a right to
recover ? The Learned Serjeant Paid, he fhould
Aril confider this cafe on the authorities, becaufe

it teemed to him thofe authorities were fo ftrong,
that it was not necefrary to recur to the prineipleon
which thefe authoritieswere founded. 'l'hefeautho-
rities arc in Douglas 235, and 751, 'Edward I. and
in 251, 7C5, and 78t, of Edward 11. Firft Term
Rcp. G► r ; Third Term Rep. 477 ; Sixth Term
Rep. 23 and 35 ; Eighth
Term Rep. 5411; Firlt
E.►tl. 475 ; and Lord Chief Baron Parker's Rep.
sos. He obferved, that in thefe cafes, the very
fame objedion might have been taken, •hat was
meant to be taken in this cafe by hiaßrother Bt sr,
but it had not, in fadt, been takcn. But though the
queftion was never raifcd, yet as it might have
been railed in thefe cafes, and as thepai ties never

did raife it, an inference arofe, which he thought
could not be got over, that the Plaintiff was en-
' titled to recover. There different authorities took
in a very confidera'.'e period of time; namely, from
the year /778 to the year 1802. lie had made
tile of acre authorities for the purpofe of fhewing
that they conllituted a (cries of decifions for agreat
length of time, by which he conceived that this
country was, as it were, pledged, to Foreigners,
to perform fuch a contra& as that which was con-
tained in this policy. His Learned Brother would
probably argue, that if the Court were to decide,
that on fuch a policy, the Plaintiff was entitled to
recover, the confequence would he, that of taking
out of the pockets of the Britilh Underwriters, the
amount of this lots, which it was meant the enemy
fhould fullain, and, that, in fail, the only lots
fuflained would be by one part of the King's rub-
je&s, inflead of the enemy. He contended there
was a great deal of fallacy in that argument. He
(Nerved that an Alien enemy could bring no ac-
tion during war, and it would be for the King,
when he made peace, to declare on what terms
that peace fhonld be made, and whether that an
Alien enemy fhould ever have a right of adlion
veiled in him,and whether the Underwriters thould
pay this money. The King, if be chore, had a
right to inf.& on the payment of that money. '(lie
King, upon inquilition found, would be entitled
to the payment of that money. The King might
ither exert the right which his prerogative gave
him, to intift on the payment of that money to
him, or he might difpenfe with that right in fa-
vour of fume of his fubje&s ; and it was only by
the licence of the Crown, or the negligence of the
Crown, that the Alien enemy could after wat ds in-
tia on his right of affirm. No lois, therefore,
was thrown on any fubje& of this country during
the war, exccpt it was by the intervention of the
King. The ground, therefore, on which he hum-
bly tubrnitted he was entitled to the judgment of
the Conic, was this : That there had been a long
ies of authorities for along period of time,during
which this quellion had repeatedly occurred, but
11.:d never keen railed in any one of there cares;
and this furnifhed a Ilrong argument in his favour,
milers his learned Brother could produce either
lonic aftual decision, or tome fettled principle of
law which excluded the Plaintiff from recovering
in fuel: a cafe as this. He then cited the 25th Geo.

11. cap..}. and 33 Geo. 111. cap. 27. fC'el. 4. to
thew that the Legitlature, in gaffing thefe /lets,
conceived that but for them, the infurance of ene-
my's property in time of war might be legal. No
cafe had been decided laying that a policy of in•
furance on en,my's property during the war, was
illegal.
Mr. Setjeant BEST, on behalf of the Under-
itet s, laid, he wits to addrefs the Court in fttp-
port ul the objeaion which he had the honour to
wk.:. before his Lordthip :it the trial ; and he
Should ta!:4: up very little time in anfwering the
argument of bus I.erned ISrother,becaufe itappear-
ed m that argiunent was built on grounds which
were no longer tenable in Weilminfter Hall. Ilis
learned Brother 'oat! thought it need-Jay to cite
vit'l number cafes ; but one obfervation, he

thc..lht, would diipofe of ..d1 thofe cafes. In no
one of th:ni was this point ever taken. It was
impofii., e, thetccorc, that thefe cafes could be con-
lidered as any anthorif ies on this point, when the

Crum It was alto material to obferve that at the
time thcfe cafes came under difcuffion, it was un
der flood that the property of enemies,could be in-
lured
Whether
Lego. The queftion to be decided
was, an infurance effeaed antecedent to
the commencement of war, could be legal, when
that property was afterwards taken by the force of
this country ? As the tales cited on the other fide
furnifhed no authority on the point, he conceived
the cafe mull depend entirely upon principle ; for,
after looking into all the books, he had not been
able to find one cafe in which the point in queltion
had been decided. But he conceived that on pin.
ciple. as old as the Law Will, it was impolEble
the Plaintiff could recover in this Action. He
tru fled that what he was about to (late was not
only applicable to the law of Infurance ; but was
to be confidered as a general principle of Law—it
was this—" That whatever was againft the gene-
ral interefts of any State, was againft the Law of
that State." What was the firft objed of the Law?
It was to protect the public Intereft, and there was
nothing more common on that principle, than to
make the intereft of individuals give way to that
of the Public, fo that the prefervation of the rights
of individuals was only a feconclary confederation.
'flue great and firft principle of the law was, to
preferve the Rights of Society. If he could fatisfy
the Court that the interefts of the Country required
that this contraft Ihould 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 !hewn that the enforcing of a
contrail would be againft the general interefts of
the Community, there the Court was veiled with
a general power to declare that that contradt
fhoufd not be carried into execution. He fhould
Rate feveral cafes in which the Court had, on that
ground, declared, that an ACtion would not lie.
—Suppofe a contraet to be entered into, the en-
forcingof which Would be contrary to the moralsof
the Country : There was no particular law which
faid,that contra& should not be carried into execu-
tion ; but their Lordfhips were declared by the law
of the country to be the Guardians of the morals
of the country, and therefore, on that principle,
the Court would not allow any contra& to be en-
forced which was againft the principles of Mora.
lity. In the fame manner the Court would not
allow any contraa to be carried into effea which
had a tendency to injure the Revenue of the coun-
try, and in this they acted as the Guardians of the
general interefts of the country. So, in various
inftances of Betts or Wagers (and the!?, and Po-
licies of Infutauces were not to be diltinguifbed
from each other), which had a tendency to bring
into dircuflion things that were unfit to be dircuff-
ed in public Courts of Juftice ; fo the Court
would not enforce any contraa which militated
againft any Civil Eftablithment, as againft mar-
riage—or that affeaed the trade of the country,
or that would tend to the breach of any law of
the country. There was no law that faid thee
contras fhould not be enforced ; but the fame
c'eneral principle which required that the Court,
in all thee cafes, in which they fhould be fatisfied
that the carrying the contraa into execution would
be injurious to the interefts of the Public—would
induce them to fay, that this contraa Ihould not
be carried into effea. He would fubmit that the
Law had gone further on the fubjea—it had not
only Paid, that no contraa fhould be enforced
which was detrimental to the public interefts, but
the law would not allow a man to place himfelf in
any fituation in which his intereft, as a fubjea,
fhould be at variance with the interefts of the
country. That appeared to be the firongefl rea-
fon in fnpport of the doarine he was contending
for.—As the Guardians of the general interefts of
the Public, the Court would fee that no contraa
fhould be enforced by which the Public might be
prejudiced.
In rapport of this argument the Learned Ser.
jeant cited a number of authorities; and, among
others, chore which are to be found in Firft Term
Rep. 56—Third Term Rep. 7o2.—Second Term
Rep. 610.—Firft Salkeld 198—and made a num-
ber of ingenious obfervartions upon them.
Lord ALvatii.xy—,, You contend that it is il-
' legal for an Englithman to infure againft an AEI
of Hoftility committed by his own Prince ?"
Mr. Serjeant BEST raid, he certainly contended
that. He admitted that the contraa was good
as to all the rilks that fell within it, but that this
was not one of chore rills—it was good for every
purpofe confiftent with the Law, but it could not
be extended beyond the Law. he could fhew, on
the authotity of thofe cafes he had cited, that this
contra& had a tendency to place a man's intereft
in dire& oppofition to the interefts of the State,
and to make him a bad fubjea ; on the fame prin•
ciple on which there cafes had been decided, the
Court would hold that the Plaintiff could not re-
cover. He conceived there was no difficulty in
making out that propofition ; he was well aware
that fome of the molt celebrated charaaers that
ever came into Weftminifer Hall had been of
opinion, on principles of policy, that not only In-
furance of Property before the war fhould be al-
lowed, to proud Property after the war, againfl
the force of that very State, but even that Ene-
mies' Property, during the war, might. be made
the fuhjaa of ',durance. But though he admit-
ted that celebrated perfon (Lord Mansfield) was
of opinion, that this was continent with good po-
licy, his Learned Brother could produce no au li
-
thority of that Learned Perron' fitting in a Court
of Jultice, and fuggefling thatdoarine, as a doc-
trine agreeable to the law of this land. That was
not an opinion given in any Court of Juftice, but
was an opinion given by him in his place in Par-
liament, and before he had a feat on the Bench.—
But whatever refpea was dui to that opinion, it
was impuffible to contend, at this time of day,
that it was confiftent with good policy •to infure
the Property of Enemies during the war. The
great point at which Lord Mansfield looked was,
toe Leeping of Ike Box wed receiving the Pryntiuns ; and
though it might poffibly be advantageous to trade,
it did not therefore follow, that it ought to be al
lowed. Maqy trades might be extremely gainful,
and yet it might be incontinent with the interefts
1..1.. C. St.

inconvenience refulting from tbefe trades, confi-
dered in a political point of view, mutt confider-
ably counterbalance any advantage that might
ante from them. This opinion of Lord Mani-
field was regarded almoft with contempt by fo-
reign writers on this fubjea, who confidered that
the fithjeas of this country, infuring enemies'
property, in time of war, had their interefts placed
in dire& oppotition to the interefts of the Stake.
He knew it had been fail, that in confecinence of
the Gentlemen At Lloyd's being allowed to infure
enemies' property, important information had been
lometimes procured. He believed the gentlemen
at Lloyd's were very good fubjeds, but they muft
be fomething more than good fubjeas before they
could turn !pies to the Government to enable them
to arrelt the (hips of the enemy at the very mo-
ment when they had inbred them, and when con-
fequently they were di, ealy interefled in their ar-
riving in fafety at their ports of deftination. Ano-
ther point deferving confideration was this. • It
could not poffibly be for the lcivantage of the
Country, that the effed of War thould be com-
pletely defeated, but this, was a neceffary confe•
quence of allowing the fubjets of this country to
infure the property of enemies. On whom does
the lots fall ? Not on the enemy, but on the fub-
jeas of this country. The objea of War was to
diftrefs and harafs the enemy, in order to bring
that enemy to terms, but it would not have this
circa ; it did not tend to ruin the enemy, but it
did tend to have that effect on our own fubjeits.
If this fort of vontraa were permitted, the Ene-
mies of the C3untry might defend themfelves
againft all the effeas of War, at an infinitely leis
expence than we mull be at in psotectiting it againit
them. By arithmetical calculation they could al-
certain the means whereby they could defeat all
the attempts of the Force of this Country. Was
it poflible that any man fhould be placed in the
fituation in which the carrying into effed this
policy would place him ? His intereft would be to
fight againft she State. It would be making one
part of the fubjeas of this Country place them-
felves in dired hoftility againft the State ; and,
therefore, whatever advantage Commerce might
poffibly derive by the adoption of fuch a mea-
fure, in a political point of view, it would be ex-
tremely prejudicial. One of the firft Reps corn.
monly taken at the commencement of a war, was
to feize all the property of the enemy in all the
Britilh ports. But the interefts of the State and
the objea of War were compleatly defeated by this
•contraa, if carried into effed, as was contended
for by his learned Brother, inafmuch as the lots
would fall on the Britifti Underwriters, inflead of
falling upon the enemy. The war, therefore, by
this pradice, mutt bring ruin on thole whom it
was its °hied, as well as the firft duty of Govern-
ment, to proted ; and the effed of it mull neceifa-
rily he, to palfy the efforts of the country againft
its enemies. To hold this a rifle within the policy,
muff be diretlly againll the general interefts of
the State in every way in which it could be viewed,
by inducing the fubjcas of this country to do every
individual ad which war was intended to prevent.
What was the great objet of war ? To injure die
commerce of the enemy.
Lord ALVANLEY (interpofing) " To annihilate
their commerce, if poffible.
Mr. Serjeant Barr obferved, that the great ob.
jai of infurance was to enable the fubjeas of this
country to carry on commerce to a greater extent
than it was poflible they could, if the rilks of it
were cart wholly on themfelves, inflead of being
divided among the Underwriters. The objed of
infurance was to encourage commerce ; the objet
of war was to deltroy the commerce of another
country ; and, therefore, the cited of infuring
enemies' property molt be to encourage them Coen-
gage in fpeculations and enterprifes to bring pro-
perty into their country, to increafe their ftrength,
to aid, to affift them, and to enable them to refit}
us; although the objea of the war was to deflroy
them. When it was to be confidered, that war,
in modern times, was carried on chiefly by the fi-
' nances of a State, and that money was the finew
of war, it was impoffible for any man not to fee,
that this policy of affurance was in direa oppofi-
tion to the belt and molt important interefts of the
country.
Mr. Serjeant BAYLEY replied ;--after which,
fuch was thought the importance of the cafe, that
it was agreed to turn it into a Special Verdi& in
I order that it may receive the molt folemn decifion
poflible.
Mr. Juftice Roosts, " It would be for the honour
of the Underwriters if they were not to take the
colts hitherto incurred from this Foreigner, as it
is very well known this has been always paid in
former times."

Mr. Serjeant BEST, on the part of the Under-
writers, Paid, they would not take the coils from
the Plaintiff. If they were entitled to the judg
meet of the Court, they would, of courfe, have
the coils, but he would enter into a Rule of Court
not to take them.

Lord ALVANLIIY..".." That is very fair in the
Underwriters."

JULY I.,FURTADIn O. ROOMS.
Lord Acvaiwt.ty delivered the opinion of the
Court, by which it was determined that the Poftea
thculd be delivered to the Defendant, thereby de-
ciding, •' That it an Eng Underwriter under-
writes the property of any perfon, at the time of
the Policy of Infnrance, living in amity with
Great Britain (as the Plaintiff an this cafe, who
is a Frenchman, then did, he having, as we have
alreadynated, effesled the Policy before the IA
war), and, that, before the voyage in queition is
completed, war breaks out, and the propetty thus
infured is captured by the force of Great Bri•
tain, the Law implies that there is An end of the
Contra&, as between the Underwriter and the
fubjea of the holtile Power, for that the Law of
England will not permit an Englifh fubjeCt to in-
fute againft the captures of his own Sovereign.—
That there is no difference between filch a Policy
entered into before the war, and a Policy after the
war in the affurance of the property of an enemy ;
fo that when a Foreigner infines his property in
this covintry in time of peace, he takes the chance
of its becoming illegal afterwards in cafe a war
T 11.:of

•
forry that in this cafe he could tan r,r,ler the he.
miurn to be returned, which he ftid, he rot:hi
do, becaufe as the Ihip had failed, part of the
had been incurred. His Lordfhip t!,.,,
this nneltion had never before been ju,!ici.:l?;
cided ; and that the parties had hen allow,i to
turn the cafe into a Special Verdia in (r.cl.Tr thn
if any one wa' difFatistied with this dczertninal.it,ll,
the queition thould go to the dernicr rcfort."
Judgment for Defendant.