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- LunBocfe against Potts.—June 8th.
dtl insurance of British property,from ail risks whatever, British insurance.
capture, seizure and detention included is, legal; far it may be in- Bntishcapture.
tended to guard the assured against unlawful or occasional seizure Stat. 12 Ca
and detention; aliter, if enema's property. 11. c. 4,5. a.
Colonial produce of the plantations cannot be transported from law5_
JN an action upon a policy of insurance on ship and *'
goods, British property, at and from Trinidad to Lubboc*. Gibraltar, with liberty to touch ship and exchange property at anyone of the West India islands, particularly'Afarfiiiig'ue, against all risks, British capture, seisure, and detention, included, loss by perils oflhe seas, which was tried beforeLord ELLENnoRouGH,at Guildhall in the sittings after Michaelmas term last, several questions were made; first as to fraud, which was given up, and next as to the legality of the policy, and lastly, as to the legality of the voyage under the navi
1606. gation acts. And a verdict was taken for the plaintiff's Lubbock reserving the point as to the legality of the exception vcriui from British capture, and afterwards a rule was obtain
ed to shew cause why the verdict should not be set aside and a nonsuit entered. The exception against British capture was added, subsequently to the making of the policy, as follows, " I hereby agree, in consequence of the above mentioned letter," a letter wherein the correspondent was desirous of being made secure against all risk, " and in consideration of five guineas per cent, additional premium, to insure against sill riiks whalever, British capture, seizure, and detention included." The ship went first from Gibraltar to Martinique with fruits and wine, and thence to 2Vitiidad and took in sugar and coffee, plantation produce, and afterwards sailed for Gibraltar, and was lost in her voyage thither. She cleared out for Corfc and London. ■ • ..
By statute 12 Car. II. c. 4. s. 18. No sugar, tobacco, cotton, Sic. or timber of the growth, production, or manufacture of any British plantation in Asia, Afrii.a, or America, may be transported to any place whatsoever, other than to some British plantation, or to Gnat Britain, or to Ireland; upon penalty of forfeiting the ship and goods: and it was now contended that, as this was an illegal voyage, and the ship mid goods might have been forfeited, the plaintiff could not recover in this action.
Sir Vicary Gibus and R. Carp, shewed cause, and contended, first, that the insurance might well be tigainst British capture, seizure, and detention, because pioperty is sometimes taken by mistake by British fceisure, or taken by privateers, and afterwards delivered up, and insurance against such risks ennnot be unlawful, although, if the property insured were foreign property, to insure against British capture would necessal
rily be unlawful. . Lubbock
Lord Ellknborough, C. J. "If the words can be ???it. understood in a limited sense which is authorised, then you might insure on it, against such capture. In Kelner v. Le Mcsuricr,* the property became enemy's property, and it was held that if an insurance against capture generally should be an insurance against that, which, if the party had inserted it in terms would not have been legal, then it could not be a valid policy."
Park, for the defendant, observed that the detention of British property, was not a loss within the terms of the policy, if it was an unlawful detention.
Lawrence, J. "Is there any case to shew, that if there is any ship seised and carried into a court of apmiralty, and afterwards given up, the party may not protect himself against a loss and damage to accrue thereby; the case you allude to is where a vessel is seised by the order of the government."
Park. "In Kelner v. Le Mesurier, it is said expressly a policy against British capture, co nomine, would be clearly illegal as directly against the interest of the state."
Lord Ellenborougii, C. J. "But an insurance of what? Of enemy's property. All words are to be understood secundum subjeetam mnteriam."
Lawrence, J. "That means authorised British capture."
SirVicARY Gibbs and Carr then proceeded to consider the question raised upon the construction of the navigation acts, and contended that the word
1806. plantation in these acts must mean not only such planLi'bbock tations as were in the possession of the crown of Great
verms Britain, at the time of making the act, but also such 1" as should be acquired afterwards; for, otherwise, the converse of that proposition would also follow, and there would be no restraint against importation from a colony or plantation, which was not then in the possession of his majesty. That it might, indeed, be argued, as it was upon the motion for the rule to shew cause, that under these words, the goods could not be carried to Scotland, and that it would be absurd to allow a privilege of carrying that to Gibraltar, which was not to eo to Scotland: but, it might be considered, by the legislature, upon some other ground of policy, improper to import direct to Scotland, as at that time Scotland was governed by a parliament of its own.
Lord Ei.lenborough, C. J. " Have you found any act of parliament in which Gibraltar is called a plantation. Plantation is taken through all the acts of par* liament to mean a colony established for the purpose of planting and growing certain commodities, the natural or suitable growth of the soil there, as a subject of commerce; here they can only plant vegetables* I wish yorrcou d find any thing to support your construction."
By the Court. "These places such, as Gibraltar% Jersey, Guernsey, and others, are forts and not planta* tions; and, upon its being suggested that no penalty cou (1 be incurred because the goods were not landed, the Court observed that the penalty attaches upon *die goods being shipped.'*
* It was mentioned in the argument thai "they might plant soldiers there." In that case, how pointedly do tln> lines of Goldsmith, in his Traveller, apply:
No product here the harren ruck afford?,
JSut man and steel; the soldiers and their r*ord,st
Sir Vicart Gibbs, then attempted to establish a claim for a return of premium, there being no risk run whatever.
But, upon the cases of Hewett v. Vandyke,* March v. Abell,\ and other cases, it was held by the court, that, being upon an illegal insurance, there could he no return of premium.
Lord Ellknbobough, C. J. " There is a provision that it is illegal from the moment that the goods are shipped on board ; the forfeiture is only in case of their being landed on shore."
Bourn against Rawlins.—June 7th.
Where, in a manor, the copies of admissions were anciently Copyhold. 'to hold of the lord, according to the custom of husbandry of freehold'' the said manor,' but other copies were to ' hold at the will of the lord • also, and all the modern copies were so; held that this land was copyhold and not customary freehold.
'J'HIS was an action of trespass in breaking and en- Boor»
tering the close of the plaintiff at Backworth, in the county of Northumberland, and breaking up the soil there; to which the defendant pleaded first not guilty; secondly, that the close in the declaration was the close, soil, and freehold of the Duke of Northumberland, and justified as the servantof iheduke; and thirdly, that the duke, at, Stc. was and still is seized, in his demesne as of fee, of and in the manor of Tynemouth, otherwise Tijnemoutftshirc, in the said county, whereof as well the close aforesaid, as divers, to wit, lOOOacres of land in Backworth aforesaid, then were and still are,