of the policy with the date of facts, which happen afterwards, or are material to be proved, it will frequently appear, whether there is any reafon to fufpect fraud or improper conduct, on the part of the infured. The ninth and laft requifite of a policy of infurance is, that it be duly ftamped. It is enacted, that when any fhip, goods, or 11 Geo. 1. merchandizes shall be infured, a policy duly c. 30. l. 44. ftamped fhall be iffued within three days at fartheft, on the forfeiture of one hundred pounds, to be paid by the infurers for every fuch offence, and all promiffory notes for infurances fhall be. void. C. By a fubfequent ftatute, it was declared, that 5 Geo. 3. if the properties of more than one perfon in any c. 46. §. 3, 4. fhip, cargo, or both, or of more than a particular number of perfons in general partnership, or of more than one body politick or corporate, to a greater amount than one hundred pounds be infured in one policy, fuch policy fhall be void, and the premium fhall remain with the infurer: and if any adventure, diftinct from that mentioned in the original policy, and upon which any further premium fhall be given, fhall be by any writing not duly ftamped, added to the faid original policy, fuch additional affurance fhall be void, and the underwriters fhall retain the premium. Provided that the property of any number of perfons may be infured in one policy, ftamped with five ftamps at five fhillings each. C. This ftatute, however, having proved incon- 7 Geo. 3. venient to merchants refiding out of the king- 44. So 1. 2. dom. By another statute, it was ordained, that policies for any number of perfons, and to any amount not exceeding one thoufand pounds, on ship, or cargo, or both, might be infured upon a ftamp of five fhillings, and to any higher amount upon a stamp of ten fhillings. This ftatute alfo contains a claufe, which makes addi • 8 Geo. 3. & 5. tional affurances to the original policy, not be ing duly ftamped, void. A doubt having arifen, whether the insurance c. 25. 1. 4. upon the property of a fingle perfon required more than a five fhillings ftamp, whatever the amount might be, it was enacted, that wherever property, amounting to upwards of one thoufand pounds, is infured, there must be two ftamps of five fhillings each. And if any person be sued for infuring upwards of one thousand pounds on a five fhilling ftamp, the onus probandi shall lie upon him. 17 Geo. 3. 50. f. 17. 5 W. & M. There is ftill another act of parliament, which has declared, that upon every fkin or piece of vellum or parchment, or fheet of paper, on which any policy of infurance fhall be written, whereby the property of one or more perfons in houses or goods, or both fhall be infured to a greater amount in the whole than one thousand pounds, over and above the feveral duties already impofed, there fhall be an additional duty of five fhillings this ftatute feems only to relate to infurances against fire. From a review of the feveral statutes upon this c. 21. f. 3. fubject, the law feems to require that for every 9 & 10 W. 3. c. 25. f. 37. policy of infurance, not amounting to one thou12 Anne it. fand pounds, a fix fhilling ftamp fhall be necef2. c. 9. f. 21. fary; and above that fum, a ftamp of eleven o Anne chillings. 26. f. 67. 30 Geo. 2. c. 19. f. 1. 5 Geo. 3. c. 35. f. 4. 16 Geo. 3. c. 34. f. 5. Ord. of By the ordinances of France, and other mariFrance, Ar- time countries, all policies of infurance must be ticle 69. Tit. Afurance. registered; but no fuch regulation prevails in England, either by the law, or in practice. CHAP CHAPTER THE SECOND. Of the Conftruction of the Policy. A 18. 33 POLICY of infurance, being a contract of indemnity, and being only confidered as a parol contract, must always be construed, as nearly as poffible, according to the intention of the contracting parties; and not according to the ftrict and literal meaning of the words. The 1 Burr. 347. mercantile law, in this refpect, is the fame in Roccus Not. every part of the world; for from the fame premifes, the found conclufions of reafon and justice must ever be the fame. Thus, as the benefit of the infured, and the advancement of trade, are the great objects of insurance, policies are to be conftrued largely, in order to attain those ends: for it would be abfurd to fuppofe, that when the end is infured, the ordinary and ufual means of attaining it can poffibly be excluded; whatever, therefore, is done by the master of the fhip, in 1 Burr. 348. the usual course, neceffarily, et ex justâ caufâ, although a lofs happen thereon, the underwriter fhall be answerable. But in the conftruction of policies, no rule has been more frequently followed than the usage of trade, with refpect to the particular voyages or rifks, to which the policy relates; and in the cafes about to be quoted in fupport of these principles, it will be found, that the learned judges have always called in the ufage of trade, as the ground, upon which the conftruction turns. In ftating the different cafes upon this fubject, as the point is nearly the fame in all, the order of time, in which they were determined, is that which will be pursued, in order to prevent confufion. The first to be mentioned is an anonymous Anonymous, cafe in the time of James the Second; but it is Skinn. 243. D from Lockyer and ports, p. 252. from a reporter of very good authority. A policy of infurance fhall be conftrued to run until the fhip fhall have ended, and be discharged of her voyage; for arrival at the port, to which fhe was bound, is not a difcharge till fhe is unloaded: and it was fo adjudged by the whole court, upon a demurrer. But although this construction may be perfectly right, where the policy is general from A. to B. yet if it contain the words ufually inferted " and "till the fhip fhall have moored at anchor twenty four hours in good fafety" the underwriter is not liable for any lofs, arifing from feizure after the has been twenty-four hours in port; though fuch feizure was in confequence of an act of barratry of the mafter during the voyage, for, if it were extended beyond the time limited in the policy, it would be impoffible to lay down any fixed rule, and all would be uncertainty and confufion. This was decided in an action on a policy of infurance on the fhip Hope from Hamburgh, to London, fubfcribed by the defendant for two hundred pounds at one guinea per cent. At the trial for Eafter 26 before Mr. Juftice Buller, at Guildhall, a verdi& Geo. 3, was found for the plaintiffs, fubject to the opinion of the court, upon the following cafe: that the plaintiffs were interefted in the fhip to the amount of the fum infured. That' in the course of the voyage, the mafter committed barratry by fmuggling on his own account, by hovering and running brandy on flore in cafks under fixty galLons. That on the firft of September 1785, the ship arrived in fafety at her moorings in the river Thames, and remained there in fafety till the twenty-seventh of the faid month of September, when she was seized by the revenue officers for the fmuggling before ilated. That about three weeks after the feizure, the plaintiffs informed the underwriters thereof; and that they would hold them liable on the policy. That on the twentieth of October, the " plaintiffs prefented a petition to the commissioners of his majefty's customs, in which they imputed all the blame (which was certainly the truth) to the captain, and praying that their veffel might be restored, on paying fomething to the feizing officer. The anfwer was, "that the profecution must proceed, as the fhip had been guilty of a grofs violation of the laws, but "that the owners fhould be at liberty to compound, according to the rules of the Exchequer." That the fhip was appraised at the fum of three hundred and forty-five pounds, and by the courfe of the court of Exchequer, the fhip would have been restored to the plaintiffs, upon the payment of two hundred and thirty pounds, befides cofts and charges, which would altogether have amounted to three hundred and twentynine pounds, nine fhillings and feven pence. That in November, a notice was indorfed on the policy, binding the underwriters for all costs and charges expended about the recovery of the fhip. That this was fhewn to the underwriters, who refufed to fubfcribe it. This cafe was fully argued, in the abfence of Lord Mansfield, and the court having taken time to deliberate, Mr. Juftice Willes pronounced their unanimous opinion. There is no doubt in this cafe, but that the mafter was guilty of barratry, by fmuggling on his own account, with+ out the privity of his owners. Many definitions. of barratry are to be found in the books, but perhaps this general one may comprehend almost all the cafes: barratry is every fpecies of fraud or knavery in the master of the fhip, by which the freighters or owners are injured; and in this light a criminal or wilful deviation is barratry, if it be without their confent. The general question here is, whether, as the lofs, which was occafioned by the barratry of the master, did not happen during the continuance of the voyage, the infurers are liable. I must own this appears to me to be D 2 a novel |