against the interest of the state, and tending to defeat the necessary operations of the war, which the state is, at the time, carrying on, at least to the extent of the indemnity created by the insurance. And if an insurance against British capture in terms would be void, then an insurance in general terms, which would indirectly include the same thing, must, on the like grounds of obvious policy, be void also. In this there is a great analogy to the case of illegal adventures, in contravention of the revenue laws. For if an enemy's property should be covered under the general term capture of princes, as being every way virtually included in the words of the policy, the effect of which we have expressed already, so may other illegal adventures be included in the terms restraints of princes and people.. But yet policies are always construed with an exception against all such illegal adventures and upon grounds of the best national policy, all policies of insurance, affecting the question of capture, ought to be so construed in an English court of justice, that the designs of the government may not be countervailed by the private interest of the subject. Whatsoever opinions have been urged to the contrary, neither those opinions, nor the authority and zeal with which they have been pressed, have gone the length of producing one judicial authority on the subject, nor was it ever argued judicially. The practice indeed, if it has obtained, having been countenanced by opinions of great authority, has gone upon the mutual good faith of the parties, and the objection against it has never been taken. But if it had been taken, it cannot be said but that those even who thought it politic to allow the practice of it, might have held it not strictly lawful in itself; and when taken, and fully considered, as it was in a recent case of Furtado and Rogers, it was decided, that the insurance of the property of an enemy is illegal. On the general grounds of policy, I fully and entirely agree with the judgment in that case. The able manner in which Lord ALVANLEY has there laid down those principles of policy, render it unnecessary for me to make any 1803. KELNER versus LE MESURILE 1803. KELNER versus LE MESURIER. further comments upon that subject. I will now take no tice of one point, which was made in the case of Gamba v. Le Mesurier,* and arises upon the statute 34 Geo. III. c. 79, sec. 12, which enacts, that any persons who, before the 8th of May, 1793, had effected an insurance on any ship or effects belonging to persons resident in any of the dominions of France, or within any territory which, on the 1st of January, 1794, was, or during the war should, be under the government of the persons exercising, or who should exercise the powers of government in France, for the benefit of such persons respectively, to apply to the commissioners (appointed by that act) to direct the payment of any money due by virtue of such insurance, in such manner as the said commissioners should direct, which the said commissioners are thereby authorised to do. And that they may recover the same, notwithstanding any thing in the said recited act of that present session (34 Geo. III. c. 9.) to the contrary; and that it should not be pleaded to any such action, that the person or persons for whose benefit any such insurance was made, was, or were an alien, enemy, or enemies; provided always, that all money, which should be recovered by means of such action, should, in all respects, be subject to the provisions contained in the said recited act, 34 Geo. III. c. 9; and in that act (34 Geo. III. c. 79). And it has been contended, that as that statute enabled persons to recover upon insurances of enemies' property made even during the war, so the plaintiff in this case having a licence from the commissioners, may be at liberty to recover on this insurance at least, which was made before the war. But we are of opinion, that that clause was intended only to remedy the recent personal objections to the recovering upon such policies of insurance which had been enacted during that session; and that the legislator having expressly referred to the recent act, must have considered no other objects as within the * Vide the next case, 1 1803. KELNER versus provisions of that clause. But it is certain, that this being an insurance in effect against British capture, is not within that act, unless the taking away of the bar of pleading alien enemy is to be considered as enabling the LE MESURIER. plaintiff to recover. But that too was to apply to the particular cases there alluded to, with respect to the provisions of a recent statute. At any rate we are of opinion, that if it was intended to give that a general application, yet it is safer to determine that the legislature has defectively provided for the removal of the obstacles against the plaintiff in this case, and that it is casus omissus, than to adopt a construction, which should proceed upon a presumption, that the legislature meant to alter the great and leading principles of the law, to enable a plaintiff to recover in such a case as this, evidently against the true policy and interest of the state." JUDGMENT FOR THE DEFENDANT. GAMBA and Another versus LE MESURIER.-Same Day. INSURANCE on a French ship in time of peace; war is declared, and she is captured by a British force; the agents for the assured obtain the royal licence to receive the money for the loss from the underwriters, and upon the arrival of peace an action is commenced upon the policy under their authority: Held, not maintainable. 1803. GAMBA et. al. versus THIS was an action upon a policy of insurance, dated the 18th day of September, 1792, upon the ship called the Eole, and upon any kind of goods and mer- LE MESURIER, chandises on board, at and from St. Domingo to Dunkirk, to recover a loss by capture. The cause was tried before the right honourable Lord ELLEN BOROUGH, C. J. at the sittings in London, after Hilary term, 1803, when the jury found a verdict for the plaintiffs-damages 2001., and costs 40s., subject to the opinion of the court, upon the following case: 1803. GAMBA et. al. versus The plaintiffs, upon the 18th day of September, 1792, caused the insurances in question to be made on the ship Eole, and on any kind of goods and merchandise on board. LE MESURIER. The defendants subscribed the same for 2001.; which subscription was on the goods and merchandises. On the 16th day of October, 1792, the ship began to take her loading on board. From the time of the insurance, until the loss hereinafter mentioned, the plaintiffs were owners of the ship, and interested in the cargo beyond the amount of the sum insured. At the time the policy was effected, and from thence until the action was commenced, the plaintiff's were French subjects, merchants and partners, resident at Dunkirk in France, which country, when the policy was effected, was in amity with this kingdom, and remained so until the month of February, 1793, at which time hostilities broke out between this kingdom and France. The ship Eole, with her cargo on board, remained in good safety at St. Domingo, until the 29th day of September, 1793, when the ship and her cargo were captured by three British frigates, and were afterwards regularly condemned in the court of Admiralty, as prize to the British force. At the time this action was commenced, this country was again in amity with France. On the 3d day of May, 1795, his majesty granted a licence to Messrs. Bourdieu, authorising them to receive from the underwriters on this policy the money for which they had subscribed; and this action was brought under the direction of Messrs. Bourdieu, the plaintiffs' agents. The question for the opinion of the court is, Whether the plaintiffs are intitled to recover in this action? If the court shall be of opinion that they are, a verdict is to be entered for the plaintiffs; but if the court shall be of opinion that they are not intitled to recover, then a nonsuit is to be entered. Either party is at liberty to turn this case into a special verdict. This case was ably argued by C. WARREN, for the plaintiffs; and BEST, Serjeant, for the defendants. The course of argument was, in general, very similar 1803. GAMBA et. al. versus to that which was adopted in the other late cases, where the insurance of the property of an enemy came in question; and in addition to the argument on the statutes, noticed in the judgment in the last case, it was very LE MESURIER. strongly pressed, on behalf of the plaintiffs, that in opposition to the case of Furtado and Rogers,* against which it was competent then to argue, as if it were before the court on error, the whole current of authorities, for upwards of, at least, 60 years, was in favour of such insurances. That although the objection was never taken to their being lawful, when such actions were formerly brought, yet the question passing sub silentio, was an admission of their legality; and that the provisions of 34 Geo. III. c. 9 and 39, if they are to operate farther than to take away the right of British subjects to insure the property of an enemy during war, and also to prevent the assured from recovering during war, even upon an insurance made in time of peace, are a tacit admission of the legality of such an insurance previous to the statutes. And the opinions of Lord Mansfield and Sir Dudley Rider, when solicitor and attorney general, delivered in the House of Commons, in favour of these insurances, were much relied upon. As to these authorities Lord ELLEN BOROUGH, C. J. made some strong observations, in delivering the judgment of the court in the last case; and BEST, Serjeant, during the argument, cited what was said by Buller, J. in the case of Gilson v. Bell, to shew that the opinion of Lord Mansfield, as a Judge, was different; and that although he approved of the policy of such insurances, he had never actually decided that they were lawful. Upon the general principle, it was urged, that a contract during peace to supply an enemy with ships, • 3 Bos. and Pull. 191. * The cases of actions on ransom bills were also mentioned as similar; they having been at one time encouraged by the courts of law, and afterwards prohibited by statute. |
