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policy. This cafe came before the court upon an action for a return of premium, on the ground that, the policy being without intereft, the contract was void. This cafe, as far as it relates to the queftion of return of premium, will be confidered in a future chapter: but in the courfe of the difcuffion, it became neceffary to determine, whether the policy, juft recited, was good within the ftatute. At the trial, which came on at the fittings after Trinity Term, 1780, the Chief Juftice was of opinion, that this was a gaming policy, prohibited by the ftatute of 19 Geo. 2. c. 37. and a verdict was given for the defendant. His lordship, however, having expreffed a doubt upon the propriety of his opinion on other points of the caufe, a motion for a new trial was afterwards made, and all the queftions came to be debated before the court: when the majority of the judges confirmed Lord Mansfield's first direction upon all the points. It is true Mr. Juftice Willes differed from his brethren upon that occafion; the learned judge being of opinion, upon the queftion relating to our prefent enquiry, that this was not a gaming policy: that it did not appear to him, that the parties had any idea they were entering into an illegal contract: that the whole was difclofed, and they thought there was an intereft; this was a miftake; but it is a new point of law.

The three other judges fupported their opinions upon the following grounds.

Lord Mansfield.It is certainly true, in many inftances, that first thoughts are beft. I am now very much inclined to my firft opinion. There are two forts of policies of infurance; mercantile and gaming policies. The firft fört are contracts of indemnity, and of indemnity only; and from that principle a great variety of decifions and confequences have followed The fecond fort may be the fame in form; but in them there is no contract of indemnity, becaufe there is no intereft

terest upon which a loss can accrue. They are mere games of hazard, like the caft of a die. In the prefent cafe, the nature of the infurance is known to both parties. The plaintiffs fay, "We

mean to game; but we give our reason for it; "captain Lawson owes us a fum of money, and

we want to be fecure in cafe he should not be "in a fituation to pay us." It was a hedge. But they had no intereft; for if the fhip had been loft, and the underwriters had paid, ftill the plaintiffs would have been entitled to recover the amount of the bond from Lawfon. This then is a gaming policy; and against an act of parlia

ment.

Mr. Justice Abburft.-A policy of insurance ought to be a mere contract of indemnity, and nothing more; but here the money might have been paid twice, which fhews decifively that this was a gaming policy.

Mr. Juftice Buller.-It is very clear to me that the plaintiffs ought not to recover. There was no fraud on the part of the underwriters, nor any mistake in matter of fact. If the law was mistaken, the rule applies, that ignorantia juris non excufat. This was a mere gaming policy without intereft. Agreeably to this opinion, the rule for a new trial was difcharged.

The fecond fection of the act in queftion, which allows of infurances being made on private fhips of war, intereft or no intereft, feems fufficiently clear, and requires no explanation.

The third fection, by which infurances upon any merchandizes or effects from any ports or places in Europe or America, in the poffeffion of the crowns of Spain or Portugal may be effected in the manner practifed before this act was paffed, feems to be obfcurely worded. The Mr. Juftice learned commentator upon the law of England Blackstone, obferves, that the reafon of this provifo is fuffi- 2. vol. Com. ciently obvious. Notwithstanding this authority, in order to comprehend the meaning of the

legiflature,

460.

legiflature, we muft obferve, that the trade from Spain and Portugal to their refpective colonies and establishments in South America, and the returns thereof, can only be carried on by their own fubjects; and all other perfons are prohibited from that trade by pofitive regulations of these refpective fates. The confequence of fuch a prohibition is, that all the goods and merchandizes, which the fubjects of this and other countries export from Spain and Portugal, must be in the names of Spanish fabjects. So that it was abfolutely neceffary to make this exception; (for no other proof, but the policy itfelf can be brought) otherwife all infurances upon that branch of trade must have been entirely void. The words, however, feem to allow a greater latitude than was meant by the legislature in making such a provifion for by adverting merely to the words, infurances from any ports or places in Europe or America, belonging to Spain and Portugal to England or other ports of Europe may be made, as if this act had never paffed. Whereas by attending to the prohibition of trade juft mentioned to any but the fubjects of Spain and Portugal, as the commerce between these colonies and the parent countries can only be carried on by subjects, it is evident, that the legislature intended rather to have faid, that infurances on goods from ports belonging to Spain and Portugal in Europe to any ports in America belonging to thofe courts; and from fuch ports in America to fuch ports or places in Europe, fhall be valid and effectual contracts, than to authorize infurances from the dominions of Spain and Portugal in Europe or America, to whatsoever place in the world the fhip, in which thefe goods are to be carried, may happen to be deftined. The words, however, certainly admit of that broad construction; for the place of deftination is not ascertained.

Upon this fection of the act, it may be obferved, that the equitable conftruction of fuch

contraâs

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contracts of infurance as are protected by it, feems to be, that they may be made without intereft, notwithstanding the cafe of Goddard v. Garrett, above cited: fince in fuch inftances it is impof- V. ante p. fible for the perfon infured to bring any certain 297. proof of intereft on board.

Hitherto we have spoken merely of that part of this very falutary act, which requires, that every perfon making fuch a contract, fhould have an intereft in that, which is the object of the infurance. Another part of it ftill claims our attention, that which prohibits re-affurances. What a re-affurance is; in what cafes it is prohibited; and when it is allowable, will form the fubject of the following chapter.

CHAPTER THE FIFTEENTH.

Of Re-Affurance: and Double Infurance.

R

E-ASSURANCE, as understood by the law of England, may be faid to be a contract, which the firft infurer enters into, in order to relieve himself from thofe rifks which he has incautiously undertaken, by throwing them upon other underwriters, who are called re-affurers. This fpecies of contract has obtained a place in moft of the commercial fyftems of the trading powers of Europe; and is allowed by them at this day to be politick and legal. The learned Roccus has decided exprefsly in favour of it; and has cited many refpectable authorities in fupport of his opinion. Affecurator, poft factam affecurationem, poteft fe affecurari facere ab alio Roccus de "affecuratore, et ifte fecundus affecurator tene- 12. affecuratione factâ a primo, et ad fol

tur pro

"vendum

Affecur. Not.

Le Guidon. c. 2. art. 19.

"vendum omne totum, quod primus affecurator "folverit, et ifta fecunda affecuratio valet." By the ancient law of France fuch affurances were reckoned valid, and perfectly confiftent with equity and good confcience. The author of the Guidon obferves, that if it fo happen that the infurers, after underwriting the policy, repent of their engagement, or are afraid to encounter the rifk, they are at liberty to re-infure; but ftill they cannot prevent the infured from making his demand upon them in cafe of lofs, for having, by their fignature, promised indemnity, they cannot, by any proteftations to the contrary, difcharge themselves from their responsibility, without the consent of the insured. Lewis the Fourteenth, when, by the affiftance of the famous Colbert, he promulgated thofe ordinances, which will be a lafting honour to the French nation, adopted the idea that prevailed when the Guidon was written for by an article in that celebrated 14. tit. Affur. code of laws, he exprefsly declared, " that it "fhould be lawful to the infurers to make re"affurance with other men of thofe effects, which "they had themselves previously insured." It is not in France alone that this law prevails; for by the pofitive and exprefs regulations and ordinances of Koningsberg, Hamburgh, and Bilboa, re-affurances are allowed to be effected, and confequently are lawful contracts.

Ord. Lewis

art. 30.

2 Mag. 190. 233, 419.

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P. 247.

By the paffage cited from the Guidon it might be obferved, that it was a diftinguishing character of this fpecies of contract, that notwithstanding a re-infurance, the firft contract subsists as at Emerigon. first, without change or amendment. The re-infurer is wholly unconnected with the original owner of the property infured, and as there was no obligation between them originally, fo none is raifed by the fubfequent act of the first underPothier, tit. writer. The risks of the infurer form the object of the reinfurance, which is a new independant contract, not at all concerning the infured; who

Affurance.

No. 96.

confe

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