1803. GAMBA et. al. versus which would be the means of assisting him in war, could only be suspended by the intervention of war; and this contract to indemnify against the loss of a ship, LE MESURIER. Would likewise only be suspended in its performance, but would not be absolutely void. That the performance of it, after the war, was not liable to the same objections, on the ground of assistance to the enemy, and injury to our own government, it would apply to the performance of it during the war. THE COURT, upon the argument, said, there could be no doubt as to the law, or policy of the case; but they would look into the statutes 34 Geo. III. c. 9 and 79; and this day Lord ELLEN BOROUGH, C. J. delivered the opinion of the court, in effect, as follows, after noticing that it was in the course of the argument in this case that the point on the construction of those statutes was urged. "The other grounds suggested have not induced us to change the opinion which we had formed; for it by no means follows, that because a particular act was made to prohibit ransom bills, and they were till then permitted to be enforced by an action, an action may now be maintained upon a contract detrimental to the interests of the country; for, as was argued at the bar, they were then considered to be advantageous to its interests. As to the case put by the counsel for the plaintiffs, on a contract to supply the enemy with ships or goods, which would only be suspended by the war, that would not apply to this case, unless the supply were to depend upon the losses sustained during and by the war; and if so, it would be void absolutely, and not merely suspended. For it matters not whether the loss be indemnified during the war, or after the war. The effect of such an indemnity is exactly the sane, whether it be made immediately, or not; for it operates prospectively as an encouragement, and lessens the evils of war to the enemy." NONSUIT ENTERED, BRANDON versus CURLING.-Same day. GOODS are shipped on board an American by a merchant in London, during peace, to a French merchant at Bayonne; before the ship quits Gravesend war is declared; the goods are afterwards seized as prize by the Spanish government, in alliance with Great Britain: Held, that an underwriter on a policy of insurance on these goods, effected before the war, and averring the interest in the French merchant, is not liable for the loss Accruing during the war. All policies of insurance on foreign interests are to be understood, with a proviso, that they shall not extend to cover any loss occurring in the course of a war between the two nations, to which the assured and insurer respectively belong. THIS action was brought against the defendant as an underwriter, on a policy of insurance on goods in the ship Greyhound, warranted an American ship, on a Voyage at and from London to Bayonne, and the loss was stated to have arisen by seizure and detention. At the trial before Lord ELLEN BOROUGH, C. J. at the sittings after Hilary term, a verdict was found for the plaintiff, subject to the opinion of the court upon the following case: The plaintiff being a merchant, residing in London in the latter end of the year 1792, received orders from the persons averred to be interested in the goods insured, resident at Bayonne in France, to purchase and ship for their account on commission sundry East India piece-goods, which he accordingly purchased for them. These goods were shipped by the plaintiff on board the ship in question (being a general ship) in the port of London, in January, 1793; and on the 4th of February, 1793, the bills of lading were signed by the captain, and on the following day were forwarded by the plaintiff to the consignees of the goods at Bayonne, for whom the same had been purchased and shipped, accompanied by in 1803. BRANDON versus CURLING. 1803. BRANDON versus CURLING. voices thereof. On the 4th of February, 1793, an order Spain, and before he could prosecute his voyage to Bayoune, the cargo was seized by officers acting under the authority of the king of Spain, and afterwards condemned as prize. The ship was American, as warranted; and the persons interested in the cargo were French subjects, resident at Bayonne, at the time the goods were ordered, purchased, and shipped, and also at the time the ship sailed on the voyage, and at the time of the capture. The question for the opinion of the court was, "Whether the plaintiff was entitled to recover in this action; if the court should be of opinion that the plaintiff was entitled to recover the verdict to stand; if not, then a nonsuit to be entered?" GILES, for the plaintiff, contended, "that the purchase and shipment of the goods being in time of peace, it was a lawful trading. The signing of the bills of lading, and all that was necessary to be done upon the contract between the plaintiff and his correspondent abroad, was completed on the 4th or 5th of February, at which time hostilities had not been declared. For the order of council, on the 4th of February, was only in the nature of an embargo, and if at that time the ship had been burnt in the river, there could have been no question as to the plaintiff's right to recover; and the policy having then attached, no subsequent act of hostility could deprive the plaintiff of his right to have his contract performed, or to be indemnified against the risks of it. Even the declaration of hostilities, which did not happen till the 12th of February, would only go to suspend the right of action on a contract in which an alien enemy was a party. The underwriter was at that time. apon the goods, and the plaintiff could only look to him for indemnity, because, having delivered the goods to the captain under the bill of lading, he could not get them out of his possession again, and unless he is indemnified by the underwriter, he is left without remedy, upon a loss incurred by a legal shipment of goods in time of peace. If the bill of lading did transfer the property in the goods to the consignees, in transitu, still the plain 1803. BRANDON versus CURLING. 1803. BRANDON versus CURLING. tiff may recover now in time of peace, though for a lo for which during the war he could not. The very for He contend of the plea of alien enemy proves this." R. CARR, contrà. "The material fact in this case i he |