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Wilfon v.
Duckett.

cery, was certainly agreeable to the two former cafes.

The cafe, in which this obfervation was made, was an action on a policy of insurance on a fhip, 3 Burr.1361. with a count of a general indebitatus affumpfit for money had and received to the plaintiff's ufe: and damages were laid at 98 1. The trial was had, under a decree of the court of Chancery, where the now defendant, the infurer, being there complainant, had offered to pay back the premium, which was 10l. No money was, in the prefent cafe, paid into court; though the ufual course in these cafes is for the defendant, the infurer, to bring the premium into court. The jury found a verdict for the plaintiff, for the ten pounds premium, on the count for money had and received to his ufe; although they were of opinion against the policy, upon the foot of fraud; and found againft it, as being fraudulent. In fact, the first underwriter was only a decoy-duck, to induce other perfons to underwrite the policy and it had been previously agreed between the insured and him, that he fhould not be bound by figning the policy; which this court confidered as a fraud, and therefore that the jury had given a right verdict in finding the policy fraudulent. With the concurrence of Lord Mansfield (before whom this caufe was tried) and of the counfel on both fides, it was agreed to bring this question before the court, whether, upon a policy of infurance being found fraudulent, the premium fhould be returned to the plaintiff (the infured) or retained by the defendant (the infurer.) The cafes above mentioned were quoted by the counfel for the plaintiff; but they being all in Chancery, Lord Mansfield faid, he wanted to know whether there was any common law determination to the fame effect. As it did not appear that there was, his lordship faid, It was plain what must be done in this cafe; for he looked upon the offer made by the complainant's

bill in equity, to be the fame thing as if the money had actually been brought into court in the prefent cafe.

But although the common law has been fo filent upon the fubject, as not to lay down any general rule; and although in all the cafes ftated, the premium was reftored; yet if the fraud is notorious, palpable, and grofs in it's nature, the court may order, and has ordered the underwriter to retain the premium.

Guildh. after

Thus where an action was brought by the in- Tyler v. fured to recover 150/. being the amount of the Horne. defendant's fubfcription; the ground of refufal Stings at was, that the infurance was fraudulent; and that H.T. 1785. the plaintiff knew of the lofs of the fhip, at the time of effecting the policy. The counsel for the plaintiff were under the neceffity of admitting that their client had made fome fraudulent infurances upon this very fhip, fubsequent to the one now in difpute; but contended, that news of the lofs of the fhip had not arrived, till after this particular one was effected. The evidence, however, was fo ftrong as easily to convince the jury, that the plaintiff had received information of the lofs before the order for making the infurance was given to the broker; and they found a verdict for the defendant.

Lord Mansfield faid, The fraud was fo grofs, that the premium fhould not be recovered from the underwriter.

It is proper, however, to obferve, that it has been laid down as clear law, that if the underwriter has been guilty of fraud, an action lies against him, at the fuit of the infured, to recover the premium. Thus it was faid by Lord Mansfield, in the cafe of Carter v. Boehm, which has already been quoted at large in this chapter: "The policy would be void against the under- 3 Burr. 1909. " writer, if he concealed any thing; as, if he "infured a fhip on her voyage, which he priR 4

«vately

"vately knew to be arrived; and an allion would "lie to recover the premium."

By feveral of the foreign ordinances, the punishment of fraud, in matters of infurance, is exceedingly fevere. By thofe of Amsterdam it is Ord. of Am- declared," that as contracts of infurance are fterdam. art. «contracts of good faith, wherein no fraud or 56. 2 Mag. "deceit ought to take place, in case it be found, "that the infured or infurers, captains, fhippers, "pilots, or others ufe fraud, deceit, or craft, "they fhall not only forfeit by their deceit and "craft, but fhall alfo be liable to the lofs and

146.

Art. 30. 2 Mag. 76. 2 Mag. 288.

Ann, ft. 2. c. 9. 1. 4.

damage occafioned thereby, and be corporally. "punished for a terror and example to others; " even with death, as pirates and manifeft thieves, "if it be found that they have ufed notorious "malverfation or craft." The ordinances of Middleburg contain a provifion exactly in the same words. At Stockholm alfo, it has been declared, that fuch an offender, befides reftitution to the party injured, fhall, according to the circumfances of every particular affair, be punished in his eftate, honour, and life.

Frauds in contracts of infurance have not as yet had any punishment affixed to them by the laws of England, that I have been able to learn: but there are one or two cafes which have been declared to be felonies by pofitive ftatutes, where the act committed has been to the prejudice of the underwriters.

By a ftatute in the reign of queen Anne, it was enacted, that if any captain, mafter, mariner, or other officer, belonging to any fhip, fhall wilfully caft away, burn, or otherwise destroy the fhip, unto which he belongeth, or procure the fame to be done, to the prejudice of the owner or owners thereof, or of any merchant or merchants that fhall load goods thereon, (or by a fubfequent ftatute, to the prejudice of any perc. 12. f. 3. fon or perfons that fhall underwrite any policy or

4

Geo. I.

policies

policies of infurance thereon) fhall fuffer death as a felon.

These are the only provifions, which the legiflature of this country has, as yet, thought proper to make for the prevention of crimes of this enormity but as the records of our courts of justice evidently prove that frauds are too frequent in policies of infurance, greater severity than merely annulling the contract feems neceffary, in order to put a ftop to fuch offences.

CHAPTER THE ELEVENTH,

H

Of Sea-Worthiness.

AVING in the preceding chapter treated very fully of the influence which fraud has upon the contract of infurance; we proceed to fhew, that other circumftances, in which no fraud whatever can be discovered, or even fufpected, will alfo vitiate and annul the policy. Of this nature is the doctrine of Sea-Worthiness. Upon this point it has been determined, that every fhip infured muft, at the time of the infurance, be able to perform the voyage, unless fome external accident fhould happen; and if she have a latent defect wholly unknown to the parties, that will vacate the contract; and the infurers are discharged. This doctrine is founded upon that general principle of insurance law, that the infurers fhall not be refponfible for any loss arifing from the infufficient or defective quality or condition of the thing infured.

There is in the contract of insurance a tacit and implied agreement that every thing fhall be in that ftate and condition, in which it ought to

be:

be and therefore it is not fufficient for the infured to fay, that he did not know that the fhip was not fea-worthy; for he ought to know that fhe was fo, at the time he made the infurance. The fhip is the fubftratum of the contract between the parties; a fhip not capable of performing the voyage is the fame, as if there were no fhip at all; and although the defect may not be known to the perfon infured, yet the very foundation of the contract being gone, the law is clearly in favour of the underwriter: becaufe fuch a defect is not the confequence of any external misfortune, or any unavoidable accident, arifing from the perils of the fea, or any other risk, against which the underwriter engages to indemnify the perfon insured. To fupport a contrary doctrine would introduce a variety of frauds, as it would probably fubject the underwriter to account for the lofs, diminution, or wafte, which may happen from the neceffary and ordinary ufe of the thing infured; or the wear and tear of the ship in the common courfe of the voyage: and all of thefe are rifks, to which the infurer has never been confidered as expofed. From what has been faid it appears, that the ground of decifion in this cafe is perfectly diftinct from any principle of fraud: that it depends merely upon this, that the infured is prefumed to be better acquainted with the ftate and condition of his fhip than any other man; and that he has tacitly undertaken, that fhe is in a condition to perform the deftined voyage. But although the infured ought to know whether his fhip was fea-worthy or not at the time fhe fet out upon her voyage; yet he may 5 Burr. 2804. not be able to know the condition she may be in, after she is out a twelvemonth: and therefore whenever it can be made appear, that the decay, to which the lofs is attributable, did not commence till a period fubfequent to the infurance, as fhe was fea-worthy at the time, the underwriter, it is prefumed, would be liable. Indeed,

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