Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1868-10-24
WAR AND INSURANCE.
Eject of the Late War ON InsuranG
POlFeies-ImDOrfnu DeefsIon.

'
the 18th inst. Judge Dobbin fled tn,
following important decision
The Lynchburg Hose and Fire Insu
rance Company as. James Knox. Thi!
is suit instituted by the plaintiff, a cor
poration created by the laws of Virginia
and having its principal Office in Lynch
burg, against the defendant, q citizen o
the State of Maryland, resident in BaIti
more, to recover the amount of a prOmis
sorry note given for the premium Of insu
rance on the schooner Graham for one
year from the oath Of March, 1861, the
date Of the policy being the 23d o
March, 1861. The defendant has pleaded
in bar to the action mot indebted anG
Limitations" and by an agreement il
the cause, any defense may be given ii
evidence which will be admissible under
any forms of pleading, and all errors o
pleading are waived. 1t is also admitted
that after. the execution Of the policy the
war between the United States and the
| States known as the Confederate States
broke out, and during its tendency the
period covered by the policy transpired
without loss aecruing under it. Under
the plea of mot indebted" the defendant
contends that upon the breaking out O
hostilities the policy was dissolved as 8
contract between parties whose respect,
i've governments were at war with each
other, and under the second plea he in
sists that as more than three years have
elapsed since the maturity of the note,
recovery upon it is barred by the statute.
Inasmuch as since the institution OF
the suit the question of limitations has
been disposed Of by the PRONUNCIATION Of
an authoritative decision of the Supreme
Court of the United States, to the effect
that in computing the time Of the run
ming of the statute, the period during
which the existence Of the war suspend
ed the remedy must be deducted, am
relieved from any further examination of
that question, and must determine against
the plea Hanger Us. Abbott, 6 Wallace.
532.) The defense first mentioned, is
therefore, the only one which needs'now
to be considered.
H seems to me that the solution Of
this question depends upon the applica-
tiofi ola few propositions which are now
definitely adjudged, and received as set
tied law First, the existence of war
does not now, as was formerly held, an
null contracts between citizens Of the re-
sp@tive contending nations, made ante
rior to its breaking out, but only sus-
ponds the remedy upon them during the
tendency Of the war unless they be
executory in their character, and require
for their execution that commercial inter-
course shall be maintained between the
contracting parties or unless they be OF
character calculated to hinder, or to re-
pair by indemnity, the acts Of war which
it is the effort Of the power Of the court
whose courts are invoked to sustain
them, to consent in which events the
policy of nations demands that they shall
be held to be dissolved by the declara-
tracts Of insurance, with a clause con-
corning capture by the assurred's own
government because that government
will not allow indemnity to be received
for the injuries it is itself endeavoring to
perpetuate but such contracts are dis
solved only to the extent Of the obnoxious
clauses, remaining good as to the rest.
Changer as. Abbott, 6 Wallace, $50 the
VIM. Bagely, 5 Wallace, 407 Furtado
as. Rodgers, 3 BOs. & Pull, 20l.)
Secondly, The right to sue upon con-
tracts thus affected with suspension Of
remedy revives upon the restoration OF
peace, and thereafter exists as amply as
if the war had never arisen. Applying
these principles to the premium note
which is the subject of this suit, we find
it is liable to none ofthe objections which
would dissolve its obligation as a contract
but must be associated with that class,
the remedy upon which was only sus-
pended during the tendency Of the war,
and is by the return of peace now re-
vived, unless it can be successfully main
tanned that the policy for which it consti-
tuted the consideration was itself dis
solved by the breaking out of hOstilities.
We must try the policy then by the same
rules to which we have subjected the
note.
1t was made before the war breke out,
and was then a valid contract. 1t is not
executory in its character, in the sense
in which that word is to be understood
in connection with this subject, and does
not necessitate any intercourse between
the contracting parties during the continu-
ance of the war. 1t is not chargeable
with being injurious to the government
of the United States, because the courts
will not construe the general clause
against capture to include capture by
the cruisers of that government; Bran
don Us. Gushing, East, All, and indem-
nity to the defendants against capture by
the Confederate cruisers would be rather
in aid of than in opposition to the gov
eminent of the United States. We find,
then, that this contract Of insurance,
being free from any Of the conditions
which would cause it to be dissolved by
the war, stands only in the category of
those the remedy upon which, if any loss
has within its risks had happened.
1t is a mistake, founded on loose state
ments Of text-writers, to suppose that
policies of insurance, effected before the
war between assured and underwriters,
respectively, belonging to opposite be-
ligerent powers, are, for all purposes, dis
solved by the breaking out Of the war.
For indemnity against all sea perilss bar
ratry, fire and the other usual sea risks,
except capture by the enemy Of the
nation, in whose courts such loss is sought
to be recovered, they are perfectly valid
and may be recovered on for any such
loss as soon as the right of action is re-
stored by the return Of peace. Upon
careful scrutiny Of the decided cases, it
will be found that in all Of them in which
recovery on such policies was desired,
the claim was founded on capture by the
enemy, and not on losses by any other
| peril. In the case of Furtade as. Rogers,
| in Bos. and Pull, chiefly relied on by
text-writers to maintain the dictum that
a policy, though executed before war, is
avoided, or, as it is said, is dissolved by
the breaking out of the war, is one where
the loss sought to be recovered was a loss
by capture by the forces Of Great Britain
| in whose courts the suit was brought.
The court held that it was not compe-
| tent lot DTlLlSH SUBJECT W lhSuIe gains
a capture by his own government, and
that claim for q loss founded upon such
a capture cound not be recovered, but IL
concluding the opinion of the court, Lori
Alvanley says: "The plaintiff is not en-
titled to areturn Of premium because tn
contract was legal at the time the risl
commenced, and was good insurance
against all other losses but that arising
from capture by the forces of Grea
Britain If then the policy of the cas-