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venants which a court of equity would not enforce, that did not destroy the effect of the whole ".

A private understanding or agreement between husband and wife to live separate, is not recognized by law b. A deed of separation between husband and wife, was held not to bind the wife surviving, nor to deprive her of her share in her husband's personal estate, to which she was entitled by the custom of the city of London c.

a Wilson v. Mushett, 3 B. & Ad. 743.

v. Smyth, 1 Hagg. 514.

с

Slater r. Slater, 1 Younge &

b Per Sir John Nicholl, in Smyth Coll. 28.

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OF THE CONTRACT OF INSURANCE, AND THE PARTIES THERETO,

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whereby one party, in consideration of a stipulated sum of money, undertakes to indemnify the other against certain perils

VOL. II.

EE

or risks to which he is exposed; or to pay him a certain sum upon the happening of some uncertain event. The party who takes upon himself the risk is called the insurer, and sometimes the underwriter, from his subscribing his name at the foot of the policy; the party protected by the insurance, the insured or assured; the sum paid to the insurer as a consideration for his undertaking, is called the premium; and the instrument, in which the terms of the contract are set forth, is called a policy of insurance. Though there are various events which may become subjects of insurance, the following pages will be confined to the consideration of marine insurances, insurance upon lives, and insurance against fire; as these species of insurance are the most usual subjects of litigation, and of the greatest public utility. And first of marine insurance, which is made for the protection of persons having an interest in ships, or goods on board, from the loss or damage which may happen to them from the perils of the sea, during a certain voyage or fixed period of time b.

In this country all persons, may in general be insured; the case of an alien enemy.

2. Who may be insured.] whether British subjects or aliens, the only exception to this rule is, For reasons of public policy the property of an alien enemy cannot be legally insured; or if insured, the policy cannot be enforced in any court of law or equity. Even though the policy be effected in the name of a British subject, as a trustee for the person interested; or though the property insured be British manufacture exported from this country; or though the insurance be effected, and the risk commenced before the war breaks out; in no case can a policy of insurance extend to cover a loss happening during the existence of hostilities

* Marshall on Insurance, 1. b Id. 2.

Brandon v. Nesbitt, 6 T. R. 23. Furtado v. Rogers, 3 B. & P. 191. Touteng v. Hubbard, id. 291. Casseres v. Bell, 8 T. R. 166. Willison v. Patteson, 7 Taunt. 439. Albretch v. Susman, 2 Ves. & B. 323. Ex parte Boussmaker, 13 Ves.

71.

d Bristow v. Towers, 6 T. R. 35. Kensington v. Englis, East, 289. Brandon v. Nesbitt, supra.

e Id. Flindt v. Waters, 15 East, 260.

f Brandon v. Curling, 4 East, 410. Touteng v. Hubbard, 3 Bos. & P. 299.

between the respective countries of the insured and the insurer; because during the existence of such hostilities, the subjects of the one country cannot be permitted to lend their assistance to protect, by insurance, the property and commerce of the subjects of another a. But where the insurance, the loss, and the cause of action had arisen before the insured had become alien enemies, it was held, that a British agent in whose name the policy was effected, might recover on the policy, even during the war, where the defendant pleaded the general issue only, which is a plea of perpetual bar; for the contract was only suspended during the continuance of hostilities, and was capable of being enforced at the return of peace, if the debt was not in the mean time seized by the crown b.

considered

an alien

Any person, whether a British subject or a neutral, who re- Who is sides in an enemy's country, and carries on trade there, is for all civil purposes to be regarded as an alien enemy; he is enemy. thereby incapacitated from suing in an English court of justice, and consequently he cannot be insured. The mere residence, however, of a British subject in an enemy's country, is not sufficient to subject him to the disabilities of an alien enemy, inasmuch as he may be detained there against his will; there must be some evidence of the purpose of his residence, or of his adhering to the enemy, as that he traded there d. But where a neutral, and an alien enemy, insured their respective interests in three vessels, by separate agents, and in separate policies; it was held, that the neutral was entitled to recover on the policy for a loss arising from one of the perils insured against ®.

The disabilities ordinarily attaching upon alien enemies, or License. upon British subjects trading with them, may be removed by a license from the crown; and a license of this nature, legalizing a particular adventure, incidentally legalizes all the measures necessary to be adopted for its due execution. Therefore

a

Per Lord Ellenborough, C. J., Wilson, 1 Camp. 482. 4 East, 417.

Flindt v. Waters, 15 East, 260. Harman v. Kingston, 3 Camp. 153. M'Connell v. Hector, 3 B. & P. 113. Roberts v. Hardy, 3 M. & S. 536. 6 Id. 98. Albretch v. Susman, 2 Ves. & B. 323. O'Mealey v.

d Harman v. Kingston, 3 Camp.

153.

533.

Roberts v. Hardy, 3 M. & S. Willison v. Pattison, 7 Taunt. 439. The Ocean, 5 Rob. Adm. Rep. 90.

Rotch v. Edie, 6 T. R. 413.

where a ship belonging to an alien enemy is protected by the king's license, an insurance may be effected on such ship by a British subject, as trustee on behalf of the ship-owner, and an action on the policy may be maintained at the suit of the trustee, even in time of war, because the public policy of the country is not contravened by sustaining and giving effect to such trust; and although the king's license cannot, in point of law, have the effect of removing the personal disability of the ship-owner (being an alien enemy) in respect of the suit, so as to enable him to sue in his own name, yet it purges the trust in respect to him of all the injurious qualities in regard to the public interest a. So, a license granted upon the representation of W. V. on behalf of different British merchants, for permitting a ship (by name) to proceed under any colours, except the French, with a cargo of such goods as were permitted by an order in council to be exported from London to any ports within certain limits, the whole of the country within those limits being in hostility with this country, was held to protect the property of an alien enemy residing in the hostile country, shipped on his account in this country, and therefore an insurance for his benefit was held legal .

3.-Who may insure.] At common law any person might insure on his own separate account, or any number of men might associate and form a company for that purpose. But by 6 Geo. I. c. 18. s. 12, a charter was granted by the crown to the Royal Exchange Assurance Company, and the London Assurance Company, whereby they were incorporated and invested with the privilege of effecting marine insurances, to the exclusion of all other partnerships or societies. By that statute any insurance effected on the joint responsibility of two or more persons was illegal and could not be enforced; but any private person might underwrite on his own individual account.

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