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 restored, 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 Hil. T. 1785. Thus where an action was brought by the in- Tyler v. fured to recover 1507. being the amount of the Horne. defendant's fubfcription; the ground of refufal Simgs at was, that the infurance was fraudulent; and that the plaintiff knew of the lofs of the fhip, at the time of effecting the policy. The counfel for the plaintiff were under the neceffity of admitting that their client had made fome fraudulent infurances upon this very ship, very fhip, fubfequent 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 "insured a ship on her voyage, which he priR 4 «vately Ord. of Amfterdam. art. 56. 2 Mag. 146. Art. 30. 2 Mag. 76. 2 Mag. 288. 1 Ann, ft. z. c. 9. f. 4. 4 Geo. 1. vately knew to be arrived; and an allion would "lie to recover the premium." Сс By feveral of the foreign ordinances, the punifhment of fraud, in matters of infurance, isexceedingly fevere. By thofe of Amfterdam it is declared, "that as contracts of infurance are «contracts of good faith, wherein no fraud or "deceit ought to take place, in cafe 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 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 fame. words. At Stockholm alfo, it has been declared, that fuch an offender, befides reftitution to the party injured, fhall, according to the circumftances 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 otherwife deftroy 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 shall load goods thereon, (or by a fubfequent statute, to the prejudice of any perfon or perfons that fhall underwrite any policy or 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 juftice 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 stop 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 difcovered, or even fufpected, will also 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 should 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 infurance law, that the infurers fhall not be refponfible for any lofs arifing from the infufficient or defective quality or condition of the thing infured. There is in the contract of infurance 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 insurance. 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 infured. 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 fhip in the common courfe of the voyage: and all of thefe are risks, 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 he fet out upon her voyage; yet he may 5 Burr. 2804 not be able to know the condition fhe may be in, after he 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 insurance, as fhe was fea-worthy at the time, the underwriter, it is prefumed, would be liable. Indeed, in a very late cafe upon another point, but where Eden. v. the fame principle was much relied upon, Lord Parkinfon. Mansfield faid; By an implied warranty every Doug. 708. fhip infured must be tight, ftaunch, and strong; "but it is fufficient if fhe be fo, at the time of "her failing. She may ceafe to be fo in twenty"four hours after her departure, and yet the "underwriter will continue liable." Every cafe of this kind, it is true, muft depend upon it's own circumftances, but when they are once afcertained, the rule of law is clear and decifive. The only material cafe upon this fubject in the law of England is that of the Mills frigate, which underwent a variety of difcuffion in feveral courts, and was finally determined in favour of the infurers. I have used my utmost endeavours to procure a copy of the opinions of the judges upon that cafe; but they have been ineffectual: therefore the reader must be fatisfied with a full ftatement of the circumftances, as they appeared upon the demurrer to the evidence, and with the judgment given upon that demurrer, as it is recorded. Before the proceedings in this case are stated, it will be neceffary to mention, that an action had been brought in the court of Common Pleas on the fame policy against one of the underwriters; and Lord Camden, who tried that caufe, directed the jury to find a verdict for the plaintiff but upon a motion for a new trial, his Lordship declared, that he had changed his opinion; and the whole court of Common Pleas laid down the principles above ftated, and directed a new trial. Upon the fecond trial, Lord Camden stated to the jury the opinion he had formed upon the fubject, and a verdict was accordingly given for the defendant, which, upon a fubfequent application, the court of Common Pleas refufed to fet afide. The plaintiffs then commenced a new action in the court of Exchequer against another of the under |