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An insurance of British property, from all risks whatever, British Insurance.

in Britishcapture, capture, seizure and detention included is, legal; for it may be in

- Plantations. tended to guard the assured against unlawful or occasional seizure Stat. 12 Car. and detention ; aliter, if enemy's property.

II. c. 4, s. 8.

Navigation Colonial produce of the plantations cannot be transported from laws. thence direct to Gibraltar or any place in Europe, under the stal 12. Car. II. c. 4, 8. 8, &c. called the navigation acts, and an insurance upon a ship on such voyage, with colonial produce, is illegal, and there can be no return of premium.

1806. IN an action upon a policy of insurance on ship and

goods, British property, at and from Trinidad to LUBBOCK. Gibraltar, with liberty to touch ship and exchange Porrs. property at any one of the West India islands, particularly Martinique, against all risks, British capture, seisure, and detention, included, loss by perils ofthe seas, which was tried before Lord ELLENBOROUGH,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

versus

† See also St. 25 C. II. c. 7; 3 and 4 Ann, c. 5. s. 14; 8 Geo. 1. c. 18. s. 22; 4 Geo. III. c. 15, s. 27. NO. XXXIII. N. S.

3F

1806.

LUBBOCK

versus Ports.

gation acts. And a verdict was taken for the plaintiff's reserving the point as to the legality of the exception from British capture, and afterwards a rule was obtained 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 all risks whatever, British capture, seizure, and detention included,” The ship went first from Gibraltar to Martinique with fruits and wine, and thence to T'ri. nidad and took in sugar and coffee, plantation produce, and afterwards sailed for Gibraltar, and was lost in her voyage thither. She cleared out for Cork and London,

By statute 12 Car. II. c. 4. s. 18. No sugar, tobacco, cotton, &c. or timber of the growth, prodaction, or manufacture of any British plantation in Asia, Africa, or America, may be transported to any place whatsoever, other than to some British plantaiion, or to Great 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 and goods might have been forfeited, the plaintiff could not recover in this action.

Sir Vicary Gibbs anel R. Carr shewed cause, and contended, first, that the insurance mighl well be against British capture, seizure, and detention, because property is sometimes 'taken by mistake by British seisure, or taken by privateers, and afterwards delivered up, and insurance against such risks cannot be unlawful, although, if the property insured were foreign pro

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perty, to insure against British capture would necessa) rily be unlawful.

Lord ELLENBOROUGH, C. J. “ If the words can be · understood in a limited sense which is authorised, then

you might insure on it, against such capture. In Kelner v. Le Mesurier,* the property became enemy's pro. perty, and it was held that if an insurance against capture generally should be an iosurance 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, eo nomine, would be clearly illegal as directly against the interest of the state.”

Lord ELLENBOROUGH, C. J. “But an insurance of what? Of enemy's property. All words are to be anderstood secundum subjectam materiam.

LAWRENCE, J. “ That means authorised British capture.”

Sir VICARY Gibbs and CARR then proceeded to consider the question raised upon the construction of the navigation acts, and contended that the word

* ] Smith's Rép. 72.

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plantation in these acts must mean not only sach plan,
tations as were in the possession of the crown of Great
Britain, at the time of making the act, but also such
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 pos-
session of his majesty. That it might, indeed, be ar-
gued, 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 al-
low a privilege of carrying that to Gibraltar, which
was not to go 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 ELLENBOROUGH, C. J. “ Have you found any
act of parliamentin which Gibraltar is called a plantas
tion. 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 nae.
tural or suitable growth of the soil there, as a subject
of commerce; here they can only plant vegetables.*
I wish you cou.d find any thing to support your con-
struction.”

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'd be incurred because the goods were not landed, the Court obierved that the penalty attaches upon the goods being shipped.''

* It was mentioned in the argument that “they might plant soldiers there.” In that case, how pointedly do the lines of Goldsmith, in his l'raveller, apply:

No product here the barren rock afiords,
But man and steel; the soldiers and their swords.

1806. LOBBOCK to

versus Ротт.

Sir VICARY GIBBS, then attempted to establish a claim for a return of premium, there being no risk run whatever.

But, upon the cases of Hewelt v. Vandyke, * March V. Abell,t and other cases, it was held by the court, that, being upon an illegal insurance, there could be no return of premiun.

Lord ELLENBOROUGH, 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."

RULE ABSOLUTE.

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 free connay 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.

BOURX

versus RAWLING

THIS was an action of trespass in breaking and en

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 servant of the duke; and thirdly, that the duke, at, &c. was and still is seized, in his demesne as of fee, of and in the manor of Tynemouth, otheririse Tynemouthshire, in the said county, whereof as well the close aforesaid, as divers, to wit, 1000 acres of land in Backrorth 'aforesaid, then were and still are,

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