581, Gamba v. Le Mesurier (1803), 4 East, 407, 7 R. R. 590, and Brandon v. Curling (1803), 4 East, 410, 7 R. R. 592.

Where an insurance is ignorantly made after the commencement of hostilities upon property which has already become enemies' property, the insurance is void, and the premium may be recovered. Oom v. Bruce (1810), 12 East, 225, 11 R. R. 367.

The principle of the rule depends upon the property which is taken by the act of our government being enemies' property, and does not apply to an insurance of neutral property, although loss or damage may be occasioned to the neutral by an act of the State intended against the enemy. Parker v. Blakes (1808), 9 East, 283, 9 R. R. 558.

Nor does the principle apply to an act of detention or restraint of property for a temporary purpose not connected with hostilities; the government of the country of the insured being at peace with that of the country of the insurers. See next case, Aubert v. Gray (Ex. Ch. 1862), 3 B. & S. 169, 32 L. J. Q. B. 50 (overruling Conway v. Gray, 10 East, 536, and other cases). The principle would probably be held to be further restricted in the case of a war between two countries which have adopted the Declaration of Paris. For as in that case the carrying of enemies' goods in a neutral ship would be protected, it seems to follow that the insurance of goods so carried would not be ipso facto illegal; and if the ship were captured and the voyage lost owing to a mistake as to the neutral character, a question might arise not exactly covered by the authorities. See on a similar point Esposito v. Bowden (1855), cited in notes to Potts v. Bell, No. 4 of "Alien," 2 R. C. 654.

AMERICAN NOTES.

Mr. May, citing the principal case (1 Insurance, sect. 36), remarks: "This last case was decided in the face of a practice which had grown up under the patronage of Lord MANSFIELD, who went so far as to try causes in which the same question arose, and permitted foreigners, in their own names and for their own benefit, during the war, to recover on policies of insurance on foreign goods against British capture. Yet Lord ALVANLEY, although he could not help animadverting upon the immorality of the defence, felt bound to sustain it on the ground that no subject can be permitted to enter into a contract to do anything which may be detrimental to the interests of his own country; and that such a contract is as much prohibited as if expressly forbidden by an Act of Parliament. When hostilities commence between the countries of the underwriter and the insured, the former is forbidden to fulfil his contract." Parsons cites this case (1 Marine Insurance, p. 18), and Duer (1 Insurance, pp. 420, 470), who says: "It was not until many years after the death of Lord MANSFIELD that the Judges in England, with apparent reluctance, arrived at the conclusion that an insurance upon enemies' property could not be sustained. The first decisions seem to have proceeded upon

the sole ground of the personal disability of an alien enemy to maintain a suit upon the policy during the war; but at length the entire invalidity of the contract itself, as repugnant alike to the dictates of sound policy and the clearest maxims of the law, was fully confessed and established."

This general doctrine is recognized in this country. The Rapid, 8 Cranch (U. S. Sup. Ct.), 155; Prize Cases,,2 Black (U. S. Sup. Ct.), 687; Kershaw v. Kelsey, 100 Massachusetts, 561; 97 Am. Dec. 124; 1 Am. Rep. 142, where GRAY, J., observed: "The result is, that the law of nations, as judicially declared, prohibits all intercourse between citizens of the two belligerents which is inconsistent with the state of war between their countries, and that this includes any act of voluntary submission to the enemy, or receiving his protection, as well any act or contract which tends to increase his resources, and every kind of trading or commercial dealing or intercourse, whether by transmission of money or goods, or orders for the delivery of either, between the two countries, directly or indirectly, or through the intervention of third persons or partnerships, or by contracts in any form looking to or involving such transmission, or by insurances upon trade with or by the enemy. Beyond the principle of these cases, the prohibition has not been carried by judicial decision. The more sweeping statements in the text-books are taken from the dicta which we have already examined, and in none of them is any other example given than those just mentioned. At this age of the world, when all the tendencies of the law of nations are to exempt individuals and private contracts from injury or restraint in consequence of war between their governments, we are not disposed to declare such contracts unlawful as have not been heretofore adjudged to be inconsistent with a state of war."

The question of the effect of war upon contracts was examined by KENT, Chancellor, with great learning and elegance in Griswold v. Waddington, 16 Johnson (N. Y.), 438, where he reviews all the English decisions, including the principal case, and concluding: "Here we have then a series of decisions at law touching the lawfulness of any commercial intercourse with an enemy, in which the language of the Courts appears to have been consistent and decided, and the question to have been as clearly, uniformly, and incontrovertibly settled as we can possibly expect in any case and from any human tribunals." He also recites and adopts the "plain, clear, and masterly reasoning" of Sir William Scott, in The Hoop (1 Rob. 196), and concludes: "I can only add, upon the conclusion of that decision, that any Court of justice that can expound the law with such admirable perspicuity, and maintain it with such intrepid firmness, in spite of all personal feelings and of the hardships and compassion of the case, must impart honor to the country in which it is instituted, as well as command the confidence and esteem of the rest of mankind." Commenting on the decision of the Federal Supreme Court in The Rapid (supra), he says: "Here then we have the final consummation of this discussion, and the sanction of the doctrine we have been tracing, solemnly given by the highest judicial authority in the United States. It reaches to all interchange, or transfer, or removal of property, to all negotiation or contracts, to all communication, to all locomotive intercourse, to a state of utter occlusion, to any intercourse but one of open hostility, to any meeting but in actual combat."

It must be observed that the American decisions are all in respect to contracts made during war, and not to the effect of war upon a previous contract, and the precise question of the principal case- - insurance before war- does not seem to have arisen except in Leathers v. Com. Ins. Co., 2 Bush (Kentucky), 296; 92 Am. Dec. 483. This was an action on notes for premiums for marine insurance, under a policy made before the Civil War; and the Court, without much discussion, said that "all pre-existing contracts of continuing performance, as those of partnership and insurance, are dissolved by intervening war," and that this principle applied to civil war; but this was obiter, for the Court concluded that the insurance had expired by its own terms before the war; and this expression in respect to insurance was disapproved by the same Court in N. Y. L. Ins. Co. v. Clopton, 7 Bush, 179; 3 Am. Rep. 290, as "inapposite," "immaterial," "inadvertent,” and “obiter,” and "entitled to no consideration.”

In Hallet v. Jenks, 3 Cranch (U. S. Sup. Ct.), 210, a vessel belonging to citizens of this country was driven by distress into a French port, in 1799, during the period of forbidden intercourse between the countries, and having landed her cargo to repair, was prohibited from reloading it, or taking away anything but produce. It was held that this was not forbidden by the nonintercourse act, and the voyage was not illegal so as to avoid the insurance on the new cargo. MARSHALL, Ch. J., was of opinion that even if actual war had existed, the result would have been the same.

But in respect to the late Civil War in this country, it has been held that it did not destroy, but merely suspended, a contract of life insurance, and that subsequent payment of premiums would revive it. Cohen v. N. Y. M. L. Ins. Co., 50 New York, 610; 10 Am. Rep. 610, citing the principal case; Mut. Ben. Life Ins. Co. v. Atwood's Adm'r, 24 Grattan (Virginia), 497; 18 Am. Rep. 652; Mut. Ben. Life Ins. Co. v. Hillyard, 35 New Jersey Law, 444; 18 Am. Rep. 741; New York L. Ins. Co. v. Clopton, 7 Bush (Kentucky), 179; 3 Am. Rep. 290; Semmes v. Hartford Ins. Co., 13 Wallace (U. S. Sup. Ct.), 158; Hamilton v. Mut. L. Ins. Co., 9 Blatchford (U. S. Circ. Ct.), 234; Statham v. N. Y. L. Ins. Co., 45 Mississippi, 581; 7 Am. Rep. 737; reversed, 93 United States, 24 (two Judges dissenting).

Contra: Dillard v. Manhattan L. Ins. Co., 44 Georgia, 119; 9 Am. Rep. 167; Worthington v. Charter Oak Life Ins. Co., 41 Connecticut, 372; 19 Am. Rep. 495, apparently referring to the principal case; N. Y. L. Ins. Co. v. Statham, 93 United States, 24, holding that the insurer was still bound to pay the equitable value of the policy at the time of the default in premiums. (The general question may be regarded as still open in that Court.) And see Hennen v. Gilman, 20 Louisiana Annual, 241; 96 Am. Dec. 396.

THE acts of the government of the country of the insured are not to be imputed to the insured, so as to deprive him of the benefit of a policy which is expressed so as to cover losses caused by such acts, there being nothing inherently unlawful in the object of the insurance.

Aubert v. Gray.

3 Best & Smith, 163–182 (s. c. 32 L. J. Q. B. 50; 9 Jur. (N. S.) 714; 7 L. T. 469; 11 W. R. 27).

Marine Insurance.

· Restraints of Princes, &c.— Hostilities.

[163]

1. The clause in an ordinary policy of marine insurance on a ship and goods which insures against losses occasioned by "arrests, restraints, and detainments of all kings, princes, and people, of what nation, condition, or quality soever," applies to a seizure of the ship in consequence of an embargo laid on her by the sovereign of the country of the assured, for the purpose of carrying on a war with another power: per CROMPTON and BLACKBURN, JJ., in this Court; and affirmed in the Exchequer Chainber, per ERLE, Ch. J., WILLIAMS and KEATING, JJ., and BRAMWELL, B.; dubitante, POLLOCK, C. B.

2. There is a distinction in this respect between an embargo, in a time when there is peace between the countries of the insurer and the assured, laid on for a purpose wholly unconnected with hostility either existing or expected, and an einbargo connected with such hostility: per the same Judges in the Exchequer Chamber.

3. Quære, if the act of seizure was a lawful act under the municipal law of the country of the assured? per the same Judges in the Exchequer Chamber.

The declaration alleged that the plaintiffs, on the 3rd October, 1859, according to the usage and custom of merchants, caused to be made a certain policy of insurance, purporting thereby, and containing therein, that the plaintiffs, by the name of Aubert, Powell, & Co., or as agents, as well in their own name as for and in the name and names of all and every other person or persons to whom the same did, should, or might appertain, in part or in all, did make assurance, and did cause themselves and them and every of them to be insured, lost or not lost, at and from London to Alicante, with liberty to call at any intermediate port or ports,

No. 61. - Aubert v. Gray, 3 B. & S. 163–165.

*

including all risk of craft, upon any kind of goods and merchandises, and also upon the body, tackle, apparel, ordnance, munition, artillery, boat, and other furniture of and in the good ship or vessel called The Jovellanos, whereof was master under God for the said Voyage or whosoever else should go for mas[*164] ter in the said ship, or by whatsoever other name or names the said ship, or the master thereof, was or should be named or called, beginning the adventure upon the goods and merchandises from the loading thereof aboard the ship as above, upon the ship, &c., and should so continue and endure during her abode there upon the ship, &c. ; and, further, until the ship, with all her ordnance, tackle, apparel, &c., and goods and merchandises whatsoever, should be arrived at as above upon the ship, &c., until she had moored at anchor twenty-four hours in good safety, and upon the goods and merchandises until the same should be there discharged and safely landed. And it should be lawful for the ship, &c., in the voyage, to proceed and sail to and touch and stay at any ports or places whatsoever and wheresoever without prejudice to the insurance. The ship, &c., goods and merchandises, &c., for so much as concerns the assured, by agreement between the assured and assurers in the policy, were and should be valued at £1800 on B. R. Y. thirty bales of carpets so valued, general average and charges as per foreign statement, if so made up. Touching the adventures and perils which they, the assurers, were contented to bear, and did take upon themselves in the voyage, they were of the seas, men-of-war, fire, enemies, pirates, rovers, thieves, jettisons, letters of mart and countermart, surprisals, takings at sea, arrests, restraints and detainments of all kings, princes, and people of what nation, condition, or quality soever, barratry of the master and mariners, and of all other perils, losses, and misfortunes that have or should come to the hurt, detriment, or damage of the goods and

merchandises, and ship, &c., or any part thereof; and, in [165] case of any loss or misfortune, it should be lawful to the assured, their factors, servants, and assigns, to sue, labour, and travel for, in, and about the defence, safeguard, and recovery of the goods and merchandises, and ship, &c., or any part thereof, without prejudice to the insurance, to the charges whereof they, the assurers, would contribute, each one according to the rate and quantity of his sum therein assured. And it was agreed by them, the assurers, that the said writing or policy of assurance should be