A new dictionary of trade and commerce compiled from the information of the most eminent merchants

A new dictionary of trade and commerce compiled from the information of the most eminent merchants, and from the works of the best writers on commercial subjects in all languages

Ex libris THE CHARTERED INSURANCE INST I TUTE
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LETTEB,.S
l’R OM A
GE:-JTLEMA:l” OF · GRAY’s INN’) TOH!~
CORREsPONDEl\’T IN EDINBURGf£
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FItOM A
GENTLEMAN oF GRAY’s INN, TO HIS
CORRESPONDENT 1~ EDINBURGH l fJPON THE
CASEoFASHIP
BY POL ICY INStrRED TO ONE POR.T BUT
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CLEARED OtrT OR CONSIGNED TO A DIFFERENT POR.Tl
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CONSIGNED TO ONE PORT,
BUT INSURED T O A DIFFERENT PORT;
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htNTED AND SOLD BY G. SCOTT, CHANCU,Y LAJII?/.
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A D V E R T I S t! M E N T.
THEPublication of the foliowing Sheets, will, it is prefumed, be acceptable to Merchants and Tra~ers, becaufe they throw light upon the law concerning infurance on ihips in this kingdom, and fuow, that, that law here, ought not to be different from what has been eftabliihed in Holland, as pro- ved by a learned Book, or Treatife on
Infurance, by Bynkerjhoek*, a celebrated civilian, and eminent judge in Holland~ who for his jurifprudence, may juftly be confidered equal, at lea!l, to any lawyer, civilian, or judge, who lived before, or after him.
* CorneliusVan Bynlerjhoek,Prd!fesSenatusfupremiHollan• di,z, Zealandide!tFrijid!,Nat. I 673. Denat. I 743•
LETTERS’
CES TL EM,\N of CRAY'<INN,
(2)
fhi;:w,as,bythepolicy,infuredfromMarylandirt America to Cadiz, and a Market, but was cleared out for Fa/mouth, by miftake. That having been loaded with a cargo of American wheat and flour, fhe was feized by order of Lord Dunmore, the gover- nor of Virginia, under a fufpicion, that the cargo was or might have been intended, for fuplying the American rebels. He added, that his client had, in Michaelmas Term, moved the Court of King’s- Bench, for a new trial, and that upon the matter be- ing argued before the Court, the new trial was re- fufed, and the verdicl: confirmed; notwichftanding whereof, he and his client were diffatisfied with the
Iverdict, and the fubfequent opinion of the Court, and would try to get the better of it, as well as they
~”I~ o, “””” o, dreIike,ff,fr. LETTER II.
Sm,
IHAVE received yours, with the printed peti- tion for two merchants in Glafgow, in a caufe wherein they, as being the infured are plaintiffs, and feven other merchants, infurers, are defendants, ad~ dreffed to the Lords.ofSellion, complaining ofa decree of the Judge Admiral at Edinburgh, and alfo of an Interlocutor of the Lord Ordinary, approving of the Judge Admiral’s decree; and, according to your de- fire, will, as foon as conveniently can be, lay the matter before the counfel you mention, for his opi- nion, which, when obtained, I will tranfmit to you.
Sm,
LETTER
III.
IHA VE lately tranfinitted to you a copy of the counfel’s opinion taken upon the cafe of the in- fured, and now here inclofed, I fend you, the origi- nal opinion, and the cafe in writing whereupon’ the opinion was given; and you will obferve, that, -be- tides the cafe in writin g, the printed petition, print-, ed a1:fwersthereto, and alfo a fecond printed petition for the infured, were all laid before the counfel, previous to his giving his opinion. ·
The cafe of the infured here referred to as being inclofed, was as follows:
” Two merchants partners in Glafgow, who, fo’r many years had carried on a fair and extenfive foreign trade, had in 177 2, two !hips, one called the Argy lie, Capt. Fijher, the other, the Jeanie, Capt. Dennijfon, to fend out to the Bay of Honduras, for cargos of ma- hogany and logwood. One of the partners, who refides at Greenock (the other partner refiding at Glafgow, at the di!l:ance of about fifteen miles from Gree; nock) wrote a leeter of the 8th of February 1772, to their agent, at the Bay of Honduras, accompany- ing their faid /hip the Argylle, 11nd defiring the agent to load her with mahogany and logwood, and order her to London; and as they were to fend the Jeanie back to him immediately, by the way of Ame- rica, defiring him to load her as above, and fend her direc:1:lyto Brijfol. And by letter, or failing orders, of the fame date, to Capt. Fifher, he defired him to proceed to the Bay of Honduras, there to deliver his goods to the agent, and that the port he fhould come to on his return, might be London, but in that he Jhould follow the agent’s orders.
Thereafter, an opportunity offered of a !hip cal-
~ed the Fam’l, going from Cl)de ·to Honduras Bay, and
)
nd by her one of the partners, 16th March 1772, 11
wrote to the agent, that notwi_thftanding what_they had wrote to him about confignmg the vejfe!sgoingto Briflol, to two gentlemen there named, they de!ired 1 he would for the future, conlign them to another gentlema~ there named, and give Mr. Filher orders to proceed 1to Bri.ftol,~nd a~ply to that other gentleman, :j!y this Jetter, the intention of the partners, appeared to be, that both the velfels lhould proceed to Bri.ftol, ;,.nd be there cpn!igned to the laft named gentleman, inftead of their former ~onfignees at that place.
‘ 19th March, I 77 2, _one~f the partners wrote to their agent, by the fa1d lh1p, the Fanny, that the Jeanie, John Dennifton, was to go ftreight from :{.,ondon to, the Bay of Honduras; and if he loaded her with mahogany, de!iring him to fend her to London, and referr.ing to his partner, at Greenock, for him to add what he pleafed.
This letter having been tranfmitted from Glaf- gow to Greenock, unfealed, for the perufal of the partner there, and to be forwarded by him, by the faid !hip Fanny, it was fealed and forwarded by him, without his making any alteration, or recollect- ing or attending to the orders, which he himfelf had formerly given,. for con!igning the !hips to Briftol.
· In June, July, and Auguft, 1772, the agent a~ flonduras advifed, that both the !hips were fafely ;irrived at the Bay of Honduras; that he would fcion load, and fend them agreeable to the orders he .had ieceived.
After this, feveral letters of correfpondence palfed between the partners and their correfpondent at Brif- tol; by which it appeared, they expected, that both. the !hips were to fail from H9nduras to the Port of Briftol, and we1:ethere to be fold by their corref- :pondent.
[l.f,er receiving advice from their :;gent at Hondu- I~s”that thei_r!hi11swe!~l.Qa\iin~,a1.1d foon to fai), ~he
s’
they refolved on having their cargos and freiohts ln..:
fured. Having, accordingly, on the 19th of Novem- ber, 1772, given an order for infuring, to the extent of 1050 l. on the Argylle, IOol. was immediately fub- fcribed thereupon, bya Glafgow underwriter-, at five per cent. pr~mium; but after this, accounts hav~ ing been received at Glafgow, of a bad hurricane having happened at St. Kin’s, the underwriters raifed in their demand of premium, which obliged the partners to have the remainder on their !hip, the .drgylle, done at the high premium of ten guinea£ per cent. and as to this !hip, the Argylle, !he having afterwards arrived fafely at Briftol, there arofe no. queftion concerning her.
But as to the faid !hip Jeanie, a policy having, on the fame 27th of November, 1172, been opened, for infuring her cargo and freight; that policy wa$ foon thereafter underwritten, to the extent of I05ol. all at the faid high premium of ten guineas per cent. This policy is in the following terms , ” We fub- fcribers, merchants in Glafgow, have. alfored, &c. the feveral fums of money annexed to our refpechve fubfcriptions underwritte n, upon all and whatfoever
kmd of goods and merchandife, laden and to be laden on board the Jeanie; as alfo upon the freight, goods and freight promifcuous, burthen, &c. begin- ning the adventure upon faid goods and freight, at and from the lading thereof at the Bay of Honduras, and to continue and endure, until the faid Jeanie, . with the faid goods and frei g ht, arrive at Briftol, l\nd be there fafely landed, and till the faid freight be there fafely difcharged.”
30th December, 1772, the infured received at Glafgow, a letter from their agent, dated at St. George’s Key, Bay of Honduras, the 21ft of September, 1772, advifing, that their fhip Jeanie, Captain Dennifron, and one Captain Fenton, of :NewYorke, had failed in company from that port, \lie ‘1⁄4t~Qf Sefte(nberi and on t(l_ezthi b.efore_day~
l1sf\~
light in the morning, were caft away on the Northern Triangles, about eighteen leagues from faid key or port; that Capt. Fenton being an old trader there, and well acquainted, he fincerely believed, nothing of the misfortune was occafioned by any ill conducl: of the commanders. The fhip had, perhaps, one of the beft cargos that ever ~ent from t~e _bay.
Immediately on the mfured receiving an ac- count of the lofs, they informed the underwriters thereof, and at the fame time, fairly ftated and ex- plained to them all the circumftances of the cafe, and of the inadvertent, though innocent miftake, which had happened, of the Port of Briftol being inferted in the policy, and the Port of London in the confignment ; and none of the underwriters then furmifed ~ny objection to their paying the lofs ; and even afterwards, at meetings had with them in_April, 1773, the infured underftood it to be fettled, that the infurers were to pay the lofs; and, accord- ingly two of them did pay their fhares: but, fome time after, the other infurers fignified to the infured, that they held the policy to be vacated, by what they called the alteration of the voyage; and, there- fore, refufed to pay the lofs.
Upon this, the infured brought their action in the High Court of Admiralty in Scotland, to recover the lofs from the Defendants, the Infurers ; and the Jud~e Admiral decreed the Defendants to pay; but atterward5, on a Petition of the Defen- dants, the Judge altered his former decree-Found,
it proved that, by the letter 19th of March, 1772, the Purfuers (Plaintiffs) did direcl: their agent to fend the fhip Jeanie and her cargo to London -that the agent did, 2d of September, 1771., ta ke from the Mafter, at the Bay of Honduras, a bill of lading, for delivering the cargo at the port of London, and not at the port of Briftol-that the fhip failed from the Bay of Honduras, upon her voyage for_ London, and not for Bri~ol, to which
pore
(7)
port of Briftol her cargo and freight were infured by the Defendants- That the !hip was wrecked foon after her failing from the faid Bay-That the Pur- fuers (Plaintiffs) did not difclofe and lay before the Defendants, at the time of their underwriting, the policy in queftion, their directions to their agent for the deftination of the !hip to the -port of Lon~ don, nor fee forth to them, the embarrafiinent which might be oc_cafionedby the_contrary orders given by them, relative to the delbned port of delive;y of the faid !hip in Britain, whereby the Defendants might have fuffi.cient lights, to determine, whether or not, in thefe circumftancc.-s, they would have infured. Therefore, upon the whole, found the Defendants not liable, and abfolved them, from the action.
To this deeree, the Judge Admiral adhered, after confidering a petition of the Plaintiffs, with the anfwers of the Defendants.
The decrees of the Judge Admiral in Scotland, being fubject to review in the Court of the Lords of Seffion, the Plaintiffs, for that purpofc, brought an Action of Reduction of the Judge Admiral’s De- cree, before the Lords of Seffion ; which coming to be heard before the Lord Auchinleck Ordinary, his Lordfhip, on the 29th of January, 1778, approved of the Judge Admiral’s .Decree, and abfolved the Defendants.
Againft this decree of the Lord Ordinary, the Plaintiffs prefered a reclaiming petition to the whole Lords of Seffion, on the following grounds-That the innocent miftake, of Bri.ftol being infertecl in the policy of infurance, inftead of London, and Lon- don, inftead of Bri.ftol in the confignment, fhould not make the infurance void.- That the policy is to be conftrued as if it had infured to Britain, in gene- ral, or to any port or ports in Great Britain, the true meaning of parties being in effect, to rnfure ·at
_11ndfrom HondurasBa to Brit ·11,-Th.it at the.
timeof making the infurance in queftion, tlie pre.:. mium from Honduras Bay to London and to Brif. col was the fame, and the courfe and line of failing the fame, for 49 parts of 50- The near equality
– therefore of the voyage from Honduras to Londort and to Briftol, is a ground in juftice fufficient to fubject the infurers, notwithftanding the miftake of inferting Briftol in the policy, or, of inferting Lon- don in the confignment. Efpecially fince the fhip was wrecked fo near as 18 leagues or 54 miles from the port where loaded in the Bay of Honduras, which being the fame, as if.infured at andfrom the Bay of Honduras; and if fhe had l:ieen burnt there, after her lading, the infurers would have been liable, with- out regard to her port of de(l:ination, it being a fet- tled point, that if a !hip is infured from the port of Lbndon, and is btirnt ln that port, the lnfurers are not liable; but if infured, at and from – the port of London, and is burnt in that port, the infurers are liable; without regard to the place of the !hip’s def- tination.-If the !hip in quefticn had arrived fafely at the port of London, the premium of infurance not paid; and the infured had objected to paying, becaufe of the miftake in the policy, of infuring a rilk to Briftol, not to London, fuch objection could not avail them, becaufe the infurers would fay, it was a matter- of indifference to them, which port in Britain was fpecified, the rilk and premium being thefame, and the fobftance of ,he agreement being an mfurance from Honduras to Britain; and if the infured muft, in fuch cafe, have paid the premium, fo on the other hand, the infurers ought to pay the lofs that has happened.
Further, that the rifk infured, being that of the fhip and goods, going in a certain line or courfe, or ~rack, from Honduras Bay to Briftol; and the !hip hav- mg been wrecked in the precifc line or courfe, leading to Briftol, it was within the very rifl< inf~tred againft. -But fa the defendants, it appear~ from the bill (9) -oflading, that there was an intention, in fome at.; ter part of the courfe, to deviate from the track to Brifl:ol, and take_the track to Loncl_on.-If the plain- tiffs fhould admtc fuch rntennon, tt would not avail the defendants, becaufe a bare intention to deviate has no effect ; and to give effcet to a deviation, it mufl: be carried into execution. As to cafes where bills of lading or coniignments ‘ !howed, that the infured !hip was deftined for a port different from that to which !he was by the policy in- fored, feveral fuch cafes had occured, wherein it might equally, as in the prefenc cafe, have been urged, and really was urged, that the voyage infured had never commenced, never was intended nor perform- ed; but in all fuch cafes, it had been decided, that where the lofs happened in the courfe or track in- fured, and before any actual deviation, the infurets were liable. N. B. The principal cafes here alluded to, are three Dutch cafes, reoorted by Bynkerjhoek, a celebrated Civilian, ~ho wrote a treatife upon infurance ; and who, for many years was pre(i- dent of a fuprcme court in Holland. ” Upon the whole of this cafe your opinion is ~e- ” fired, whether you think the defendants, the in- ” furers, are and ought co be liable to the plan- ” tiffs, the infured, for the lofs i,;1queftion_; and w~e- ” ther, if the matter .is determined aga111fl:the tn- ” fured in the courts in Scotland, you d;ink they will ” be well founded to appeal to the houfe of Lords.”-: C The ( 16 ) Thi coimfel’s opinion above refered ·to was as, follows, 6th March 1779: “If it had been the in- cc tention of the affured, at the time the !hip lefo ” her porf in the Bay of Honduras, to ptoceed Oil cc the voyage infured to the Port of Briftol, tho’ in cc her cour{e thither Jhg m~ant to go firft to Lon- ” · don, the lofs happening before lhe reached the ” · dividing poi-n.t, the infurers woukl have been an- ,, fwerable ; but the purpofe of going at aU to Brif- cc to! being abandoned, and London fubftituted in tl its place, the objecl:ion of the infuretl> feems to ” me wtll founded; the voyage was a different one;. « the rifqoe infured never con’m1enced; arid confe- ” quently the infurers are no further anfwerable than
‘ 1 for a return of the premium; I fee therefore no ob- ” jecl:ion to the interlocutor, but that it has not pto – , r vided for a return of the pr&mium.”
LETTER IV.
Si11.,
NOtwitlinanding the opinion bf the )’earned coun-
fel, lately fent you, the canfe of the infured ftiH appears a very good one. It is very remarkable, that tne opinion does not mention or refer to, or quote, any one precedent or authority whatfoever, in fupport of tbedocl!rinelai , books, concerning infurance; ahd, it muft therefore be a new and original doctrine, which ought not to pafs as an-e!fablifhed tlochlne, without a verycare- ful examination; the rather, beca11feie muft appear wonderful, in foch a comm1’:rcialcountry as England, that, at this late time of day, a new doctrine fhould liebroached concerning infurance on lhiJ?s.,
— ~—— { II
In regard to the comracrs of parties in general nQ court of (aw has a ri~l1t to fet a(ide or vacate any contracl:, fairly entered into, whether for infurance
or any thing elfe, unlefs the party has agreed tha~ the contracl: !hall be void in certain events, or unlefs fuch dofus ma/us !hall appear on the lide o( the party
as !hall be fufficient to warrant a court to fet th~ contracl: afide. This general rule applies more for- cibly, an In this cafe, if the fhip had not been 1oll:,no b9.. dy could fay that the lhip-ma/1:er woμld not hav.e o-oneto Bri/1:ol; in which cafe there would not have been a colour for the under-writers to fay or main. tain, that the policy was vacated. If fo, there is n<;> ju/1: ground for vacating the policy from the begin- ning, bccaufe the !hip was cleared out to London, but by the policy infured to Brijlol, which happened
by a mere innocent miftake, without any-fraud, and which is not imputed to the infured. The cafes o.f deviation, and the law and ufage concerning deui(f- tions, /how that every deviation is either barratry, which is the fame as fraud, but which does not dif-
charge the underwriters, becaufe they exprefsly un- dertake again/1:barratry, or a deviation that may be a breach of the policy of infurance, fufficient to vacate it, becaufe, fuppofed to contain fome degree of fraud.-But except the prefent, and the other cafe abovementioned, there does not appear to have been another infurance cafe, in Britain, where it was decided, that the infured !hip being cleared out from her port of lading to a different pore from that in the policy, v,acated and muft vacate the policy from the begin-
ning, whether there was or there wa~ not any fraud. . The

\ •ri——–.
de.red impoffible, by the !hip’s being ‘ loft in the out-fet of her voyage, but the contracl: itfelf ~vhichwas to pay the lofs. was purified, and becam; abfolutely g_oo~, _tho’the condition became impoffi- ble; and this, it 1shumbly conceived, on behalf of the infured, is the only juft and proper ,way of con- fidering the matter.-The infurers_inthis cafe, have ftated, and affrrted it to be a rule of law univer- .Jally eftablijherl, that an alteration of the v11yageputs an end to the infurance. But for this alfertion there is no foundation in the world ‘; there is- no fuch rule exifting, nor ever did exift ; there is none fuch jn any Jaw book in England concerning infurance,
nor in any Jaw book in the world, concerning con- tracl:s or agreements of any kind.-The learned counfel, in his opinion fays nothing of fuch a rule, and if exifting,’ he could not ‘ have failed to mention
where. But -fuppofing fuch a general rule exifting
fame where, ye1 it makes out n9thing in this cafe,
becaufe it is not, nor ever yet has been fettled,
what makes or conftitutes an alteraticn of a ~voyqge.
For the i’?fured, in this cafe, it ‘ ought to be- main-
tained, that the bill of )ading, or any order, ·or in-
ftrucl:ion in writing, or verbal, different from thc:i
policy or contracl: of infurance, ought nor, without
further circumftances, to be helc\ or deemed ah
alteration of the voyage.–Further circumftances,
fuch as the /hip being feen, or carched, or found or
loft, or feifed or taken, or burnt or foundered, in a
place or point, of a line or courfe, plainly and in
facl: leading to a place or port, proving the altera-
tion of the ‘VOJage.-TJ;iofrcircumftances, joined with
a bill of lading, or any clearaace at the pore of la-
ding, either written or verbal, might be evidence of
an alteration of the voyage, if in any ofe it could
poffibly be of utility to prove it; but nothir.g lefs
ought to be held evidence in fuch a matter; and as 1
in this cafe, the /hip was loft at fet:ing out on _her voyage, and loft in the V”eryline Qr courfe makmg to

to Brijlol, there never can be any conclulive or ad- miflible evidence of an alteration of the voyage, or that the fhip, if not loft, if not frifod, if ~ot taken, (f not bumt, if not compelled co go out of 1t-scourfe, 1f not foundered at fea, would or might not have gone to Briltol.-The fetting afide a policy of infurance, has been termed vacating the policy, not forfeiting the policy; but it is obvious, that vacating the policy is highly penal, and in effecl:a forfeiture of the benefit of the infurance, which lhatild require a better proof of an · alteration of the voyage, than a mere bill of lading, or confignment ever can be; and indeed it is nothing, and which this very cafe !hows, becaufe the bill oflad- ing happened by a men: innocent miftake, which can by no means ever juftify the forfeiting the infured of the benefit of their infμrance, fairly and bonajide ob. μined and paid for.
LETTER V.
S1it,
IRecei.ved yours, ddiring me to take the opinions
of other counfel upon the cafe of the infured, l have accordingly ob~ained the opinions of two fe- veral other counfel and feμd you them herein clofed.
One of thofe opinion, was as follows :-ANsweR.
!’ 1. “I am not aware, that there is any Ii/ageamongft’ !’ merchants in England, fufficiently frequent and uni- !’ for!l], to be of any we igbt in fuch a cafe ;is the pre- ” frnt; on the contrary, I think it probable, that if !’ Juch a cafe had happened upon an infurance made !’ in London, it would have created a difference of
opinions both among merchants, rmd laW)’ers, and ‘ z. ” I am mu~h inclined to think, that if this cafe
“were to be tried at Guild-Hall, it would be decided ” againll: the infured. For I conceive the infured can ~’ never re~over againft t~e tJnd,nnit<;rs~ unlefs at the
” time
” time of the voyage commenced, opon whicll the ” que~io~ arires, it ‘:’as intended t? go co the port of’ “deftmatton named In the voyage mfured: that is to “fay, unlefs in the prertnt cafr, it really was intended ” to go to the port of Briflol at the time the fhip failed ” from the Bay of Honduras, for if it had been defign~
1
” ed then to finifh the voyage at BriCT:ol,an intended
« deviation from the courre of fuch voyage, would not ” have difcharged the underwriters, till the velfel had ” pa/fed the dividing point, and a deviation had acl:u- ,, ally taken place. And I have always underftood the ” rule, that ” an intention to deviate !hall not avoid cc the policy,” ought to be taken with this limitation, ” that the velfel fails with a defign ultimately to go co ” the port named in the infurance, at the completion “of the voyage. Upon the care ftated, at the time the “fhip fet fail -from the Bay of Honduras, it was de- ” termined, under the authority of the ownel’s and in- ” fured (and the clearances of the velfd were agreea- ” ble to fuch determination) that lhe lhould not go to ” Bri!l:o\ but to London ; another voyage than that
” which was infured was clearly commenced and irr- ” tended; and therefore as-I conceive, the voya:ge acl:u- ” ally commenced is not within the policy, whether ” the queCT:ionarires upon the demand of alofs, or to ” recover the premium upon the ground, that no
“ri!k was infured by the underwriters. ·
3. ” The care is ftated and argued in the paper
” No. 3. with great ingenuity, 1ndtt!hy and abiri- · ” ty, and I ccmfefsmyfelf unable to add to it matt’- ” rially in any rerpecl:.
”
tention to go another voyage,” . Lincoln’s Inn.
4. ” I have al”eacly explained what I undcrftand to be the fort of intention codeviate, which does not affefr an infurance, and given my reafons, why the prefent care i&not t~ be conli~ered merely . as
”
”
”
” fuch an intention to de\liate, but 111 truth as an 1n 4
th 11/ l
1
{ 16 )
The other of thofe opinions was as follows :
cc The queftion does not in my opinion turn upon cc the fact of a deviation, or an intention to deviate, ” butuponthedefcriptionofthevoyageinthepoliry.Itis
” neceffary to defcribea voyagetruly, that the under- ” writer may form hisjudgment upon the premium he cc will take to indemnify the infured againft the rifquc ” ofthevoyagedefcribed, and above all, to deter- ” mine, whether he will chufe to become an infurer ” or not. A voyage from the Bay of Honduras to
cc Briftol, is not a voyage from the Bay of Honduras ” to London, unlefs Briftol lies in the courfc:of the ” voyage to London, which is not the cafe. It feems ” to me from the evidence, the fhip failed upgn a ” voyage to London-She was cleared out for Lon- ” don, and that ·even in confequence of orders from cc the affured; and there is no ground to fuppofe the cc mafter ever meant to go to Briftol. The cafes of cc deviation have· been, where a fhip was really in- ” · tended to go to the port of deftination mentioned ” in the policy, but in going there, deviated from the ” courfe of the voyage; and in fuch a cafe, whilft the ” fhip is in the courfe of the infured voyage, if an ” accident happen before fhe arrives at the dividing
” point, the underwriters are liable; but where the ” fhip fails upon a different voyage, without an in- ” tention to go to the port mentioned in the policy, ,” I am of opinion, the underwriters are not liable to ” the rifques of that voyage.-A cafe lately happened ” to be tried at Guildhall, where the doctrine of de- ” viations came to be confidered-An infurance was “made from Maryland to Cadiz-The Ship was cc cleared from Maryland for Falmouth, and the cc bills of lading were to Falmouth and a market, cc and it was contended the market was Cadiz-The cclhip was taken in the courfe to Falmouth, and alfo ccto Cadiz.-The Chief Juftice directed the Jury to ccfind for the Plaintiff, if they were of opinion the
” lhip was intended for Cadiz, as there could then
– — ·:-.. -.~ ·- ~ …,J_~ d….,;… . :, _i:..a.-‘L..i-
” the lhip Wasnot meant to go to Ca~iz; the voyitgt ” was not truly defcribed, and the underwriters not ” liable; and the Court co11firmedthe direction of ” the Chief Jufticc.”
Lincoln’s-Inn, ~th July, l 779,
LETTER VI.
SiR~
H, A VI~G received y~u~s, defiring me to take the _ opm10n of one cotmfel ;nore; upon the i:afe bf the infured, I have accordingly .obtained that \:oullfel’s opinion, and fend it herein dofed.
I:’
This opinion was as follows:-ANsWBR 1. cc I
1, underftand it to be i:he ufage of merchants, that, <“,lf the infured_voyage_is begun, notwithftanding’ ‘.’ ther_e is proof of an intentioh to deviate, yet, if cc there be not a deviation before the lofs, the under- ‘~ writers a·re liable upon the policy; but if the in- ” fured voyage is not begun, there is no rifque, and « the policy becomes void. So that the queftion, in ” this cafe, is, Whether the voyage the lhip began-, ‘.~was the infured voyage or not / This depends ” upon the evidehce, The letter of the 19th of cc March, 1772, is proof of orders to the correfpon… ” dent at the Ihy of Honduras, to fend the lhip to ” London, if lhe iliould be loaded with mahogany. ”. The lhip being (as it is to be prefumed from the “evidence) loaded with mahogany, was cleared out ” for London, and the timber configned to London, cc of which her cargo confil1:ed, So that ‘the evidence cc_proves, that the voyage which the lhip began, was cc not the infured voyage, that being a voyage from cc the Bay of Honduras to Briftol. In cafes upon ~’ policies of infurance, the infured has ufually every
D ~’.fayourablc
ff favourable conftrucl:ion that can be given to th~ “policy, when it comes- to be compared with. th~ ” event to make the underwriters liable; and this 1s ” fo for ,be benefit and encouragement of trade;
« b;,t when the fhip is cleared out for a different “voyaae, than the voyage infured, the cafe goes be-
0
” yond all power of confl:rucl:ion, and the words ” of the policy muft be changed. There is no in- ” ftance, I know of, which goes fo far. The ftrong- ” eft cafe, upon circumftances like the prefent, is ” Carter verjus the Royal Exchange Affurance, cited ccin Fofter verjus Wilmer. Strange, 1249. I do not ” find the cafe reported originally in any book; fo ” that an accurate ftate of the circumftances cannot ” be obtained. It feems to me, from the applica- cc tion of. the cafe €ited, to the principal cafe ofFofte~ “verjus Wilmer, that the fhip had fee out upon her ” infured voyage, but there being goods on board, ‘.’ configned to Amfterdam, this was frrong evidence ” of an intention to deviate, yet the fhip being loft ” before the deviatio11 happened, the infurers were
ccliable. This, was the point in Fofter wrfus Wil- ” mer; and it is to be prefumed, that the cafe was ” cited for the purpofc of proving the point before ” the court, and ,io, a different point. For the quef- ” tion in Fofter vt;jus Wilmer, turned upon an inten- ” tion to deviate, am! not upon a different voyage.
2. ” If this c:ife were depending in England, and ” to be tried at Guildhall, I am inclined to think, ” that the verdict would moft prooobly be for the ” Defendants, the underwriters.
3. ” I do not fee, that the cafe can be more folly ‘-‘ ftated, or placed in a better view, than it is by the « prin:ed _paper, No. 3. nor do I know of any au- ” thonty to be added to thofe there cited.
4· ” 1 think the Jpeciesfafti will admit of a diffe- .. rent decdion, than an intention to deviate. For ” the evidence appears to me to prove a different
·”‘ voyage-from the voyage infured,” Lincoln’s Inn. – ·
u/ I
SIR,
( 19 ) LETTER VII.
THE feveral opinions of Engli!h counfel fent . you. from hence, being the fame in effect, agam!l: the mfu’.ed, and contrary to the opi 1rion of Bynkerjhoek,which I am apprehenlive, the Eno-li!h counfel have difregarded, without conlidering o; at- tending to the extracts of the cafes quoted from him in the pleadings for the infured ; but as I am con- vinced, that Bynkerjhoekis the bell: authority now ex- tant in Europe, on a queftion of the law of infurance on !hips, and that his authority ought to govern the prefenc decilion, I have therefore taken the trouble of making extracts from Bynkerfhoek’s book, fome- what fuller than thofe given in the pleadings in the caufe for the infured; and have alfo taken the trouble of tranOating thofe extracts from the latin, and fome Dutch words of the learned author, into Englifh; and herein clofed, I fend you the tranflation,
and defire you will with yoor convenience, pleafe flgnify to me, whether you think the tranflation ju!l:, and agreeable to the author’s me~ning, becaufe if it
is, I fl1ould think, it would be advahtageous to the infured, to have the Englifh tranflation inferred in any after printed pleadings for the infured in the caufe.
The extracts or quotations from BJnkerjhoek,refr!’; red to in this letter, are as follows:
C A S E I. Of a fhip infured at Am.flerdam from Marje,/les to the river Elbe, and which was taken in the Mediterran€an Sea by the Turks, and burnt. -The infured having claimed from the infurers payment of the lofs, they defended themfelves “Hae una ratione, quod navis iter fuum rnutavent, vel certe mutare con!l:ituerit; nam qui iter fuurn mutat. aliumve portum, quam in contractu placuit, fubit,
( 20 )
nullam habet a~ionern: l\lμq cqn~\illm mμtanpj itineris probabant affecuratores ex 1111s naurar\l’n chircigraphis, qure cogf!of~eqiei;iten a~~ell~nt, et fane ex iis conftabat mag1ftr,um, Mal11hre merce\ quafdain nilvi ftire impofuilfe, quas preferr~t Duil]: kerk’am, et rurfus conftabat ·eum :rviaffilia navi: gaffe ‘Illicem,’ et ·ibi’ ·quoque_ 11:e~ces recepiffe, quas preferret ad ror~urn, qm d1c1tur ~a:vre de Grace, et hos locos in contracl:u alfeourat10n1s, non tffe expreffos, ‘ duo ‘ igitilr nova ‘itinera effe cogitata; quamvis non perfecl:a,’.’ ‘ ‘ ,, ‘ ‘
Affecuratus hrec quidem non negabat, fed ajebat, alfecuratam effe navem a Malfilia ad ./Jlbim,·nullo loco excepto, et ex lege alfecurationis potuiffe navem om~ nes portus fubire, qui funt medii, inter locum a quo, et locum ad qoem, ‘affecuratio facl:a eft, et a Ma/lilid ad Albim prreternavigandos ·effe portus ad Jllicem, Havre de Grace·et Duinkerkham. Addebat affecuratus; navem a turcis effe depreffam et cornbuft~m in marl .
Mediterraneo, et ld mare mique navigandum fuiffe, Albim verfus, de aliis urbibus et portubus, et an ad eas eofve deflecl:ere licuilfet, tune demum recl:e qureri, fi in iis vel circa eas ·eofve·; dai:nnum paffa fuiffet _na- vis—Alfecuratores deinde urgebant, omnino ex fola ,defl:inatione a’nirni, iter mutatum videri, neque adeo
referre, quo loco damnt1m paffa foiffet navis, con~ filmm mutandi ·non eventum m\ltati, itiperis, fpec- tandum effe. ‘ ‘ ”
.. Senattim movit (alfecuratus) quod navis ibi fueri t depreffa et combufta u’bi, · Albim verfus, navigandum era(, et mique ex loco damni dati, refl:imandum effe de prericul?, quod ·alfecuratores ·in’fe receperunt, fo- lum confi!Jum de mutando ilinere a!fe·curator.ibus nihi! nocere, · eventum mutati itineris nocere polfe, fed rnanem e~e querelam, ‘de·re plane infecl:a. ·
Tranflated rnfo ‘.Englilh thus-” ·The inftfrers de- fended theinfelves Opbrt this iingle ground, that the lh1p had altere~ her voyag _e, or had certainly ·deter- -:nmtoedalter It, for that he who.alters his yoya e, or
‘
jnte.nds_togo to any other_port but that expreffed iq fhe pohcy or contract of mfurance, has no action; and the infurers proved that determination of alter-, ing the voyage by.the writing, or inftrument of ma- riners, called conjigvment; and from thence it plainly appeared, that the mai1:erhad, at Marfeilles, agreed
to freight his fhip for Dunkirk; and again it appeared
that he failed fr.cm l\1arfeiJ!es to Alicant, and there – alfo freighted his !hip for Havre de Grace; and that thofe two place~ not ~eing expre!fed in the policy of
infurance, here were therefore, two new voyages 1
meditated or intended, though not perfecl:ed. · ” The infured did not deny this, but faid, that the fhip was infured from Marj eilles to the River Elbe,
without any place except~d ; and by ~he law of info~ ranee., the fhip could go to or touch at all ports in- termediate, betwen the · place from which, and the place to which, the infurance was !Jlade; and !he mui1:, from Marjeilles towards the Elbe~ navigate and pafs by .dlicant, Havre de Grace, and Dunkirk. The infured added that the !hip was taken by the Turks and burnt in the Mediterranean Sea, and that the !hip inuft verily have failed, through that Sea, coward!\ the Elbe; for as to other cities, towns, or ports, ;md whether. it was lawful foi: her to go t.Q them, or any of them, it would indeed be a proper fubject of inquiry, if at or about thofe other cities, towns, or ports, the !hip haμ fuffered th~ lofs in queftion.
” The infurer.sthen infifted, that the l\lteration of
the voyage appeared from the de;enninatio11 of the
mind alon~, nor was it material, in what place the
ihip foffered the lofs, the fole determination or r.efo.-
lution of altering the voyage, not the event of its
being actually altered~ being what o.ught to be rea. fpected. – . . . . .. .
”. Hereuμon the Senate was moved, that the fhip. was there deftroyed and burnt, when !he was failing towards, or in clJeproper courfe towards, the Elbe; and veril che r· · o.. eril hich the inform too
<22 r
upon themfelves, mull: be eftimated or judged of” from the place where the lots happened;_ for that the naked determination, or bare refolut1on, for or concerning any alteration of the voyage, did, irt no refpeel:, hurt the infurers; the event of an alteration of the voyage might pollibly have hurt them, but it would be in vain to complain or inquire
about a matter, which plainly ..yas not effected or carried into execution.” ‘
Judgrnent was given for the infured, 28th Fe• bruary, 1708, 432. Ed. 1767, torn, 2.
CASE II. Of an infurance at Amjlerdam,upon a !hip, on a voyage from Lifbon to Hamburgh. The fuip was loft near the coaft of .England; and the inft.i ers refufed co pay the Jofs; becaufe, from the bills of lading, it appeared that !he was deftined not for Harnburgh, but for ‘l’onningenin Holftein. The infured anfwered, that though the bills of lading indeed bore Tonningen, yet this was merely to protect the veffel from French privateers, Tonnin- gen being a neutral port, and that in fact Ham- burgh was the real pore of the !hip’s deftination.- But further, and independent of this,” Negabat affe- curatus iter fuiffe rnutaturn cum navis periiffet inter ea loca qure in pacl:o affecurationis expreffa eranc,
. nempe inter Ulfjjiponemet Hamburgun(-And the in- fured further maintained: ” Tune enim duntaxat iter mutatum intelligi, fi quid ejus rei fiat in prcju- dicium affecuratoris quo fcilicet plus pericletetur quam ex deftinato itinere periclttatus fuiffet, lici- tam utique effe ftipulationem, uc non totum iter, fed vel pars aliqua itineris periculo lit ejus, qui affecuravit, atque adeo nihil ad rem pertinet, fi vel revera hrec navis Tonnino-am tffct ddlinata, et !pfe affecuratus id manda!f~t; neq•Je tnim periic rnter Hamburgum et Tonningam, fed inter Ulif•
on. ~mb um”
\
TranOated into.Englin1 ·thus: “The infured deny• cd, that the voyage was alter~d, fince the fhip was loft be~ween _thofe places which were exprefsed in the policy of tnfurance; to wtt, between Lijbonand Hmnburgh.-That an altera~ion of the voyage was to be nnderftood 1n the cafe only of fome prejudice ac-
cruing to the infurer, fuch as that he run a oreater rifk than _henndenook by the policy on the -~oyage infured; 1t was verily lawful to fttpnlate, that not the whole, voyage, but even fome pare of it lhonld b within the policy or rifk of the infurer; and it is therefore nothing to the purpofe, that the fhip was uuly deftinated for Tonningen, and the infured had fo defired it to be, fince the foip was not loft between Hambnrgh and Tonningen, but between Lilbon and Hambnrgh.”
Judgment was given for the iufured, – April 12th, 1714. 436. tom. z.
CASE III. Of a !hip infured from Amfterdam to London, but which having been caktn in her conrfe, by a French Privateer, was ranfomed for a certain fum; and having afterwards proc~eded on her voyage to England, ~nd arrived at the Nore, at the mouth of the Thames, from thence, inftead of going to London, aimed her courfe, and failed co Lynn Regis in the county of Norfolk, which from her bills of lading appeared to have been from the beginning her port of deftin acion.
In an acl:ion brought by the infured againft the infurers for the ranfom money, the infurers refufed to pay ” ~ia navis nunquam Londinum :,dvenerac, qui camen locus contracl:u a!fecurationis erat expref- fos. A!fecuratores quo abfolverentur in primis nrge- bant, non tantum hie cogitatum effe de mutando iti- nere, fed revera mutatum fuiffe neque enim navem
Londinum naviga!fe ut debeb,:t ex ftipula.tione, fed ad Lynn Regis, q ui locus contracl:u a!fecurationis expreffus non erat, et non e::prelfus contrattum re- fcinditt
In anfwerto thi~, the infured m~in~ained;_thht it was notrequifite,” Utlocus exo~erat1on1sexpnmatur; fed locus, daar’t Jchzp z-at wzttenvaren_; ut cortft~t fcilicet de termino ad quern penculum rn fe fufcep1t alfecurator, polfe autem et t?tum ittr et parterri itineris in ftipulationem deduct; atque adeo _navem, ex mari Mediterraneo Amfterdamum deftmatam; polfe alfecurari; vel ad ufque Amfter~amum, vel ad
ufque Gades, et Ii ad Gades ufque, per_1culumalfecu- . ratoris elfe tot op de hoogte van Cadzx; nee def1de- rari ut navis ipfum portum ejus urbis necelfario fu~ beat, quamvis Ii velit poffit; Ii igitur navis pere- at priufquam ad Gades pervenerit; periculo alfecu- ratoris periilfe. Atque ita in fpecie propolita; nav-is ndn poterat navigare ad Lynn Regis nili prreter n:i- vigaret oftiuin Tamelis, quare eo ufque navigabat periculo alfecuratoris, et · antequam · eo perveniret; ab hoftibus capta et redempta fuit. Poterat Navi~ Londinum navigare ex contracl:u alfecurationis : fe·d qui periculum in .fe fufcipit ufque ad Londinum; utique et in fe fufcipit ufque ad oftiuin Tame/is; nee ex eo, quod navis ad Londinum non navigaverit, majus, 1mo vero minus, periculum alfecuratorem manere, res oppido certa eft, nihil igirnr quicqtiam ad eum pertinet, etiamli •navis ad Londinum non na- vigaverit. Si capta fuilfet navis ab oftio Tame(is navigans ad Lynn Regis, nulla procul dubio eifet nctio adverfus alfecuratorem, fed ilia ulterior defti: natio ejus periculum non auget.”
Tranilated into En a li{h thus: “That it was not re- guilite t? exprefa the place or port of the !hip’s unload- mg or d1fcharg10g, but the place daar’t jd3ip zat wil- len varen, that is, the place or point to which the fhip ~all or may navigate or arrive at; it being fufficient if lt appears how far, or to what point, the infurer under- took th~ ri!k; the whole voyage, and part of the voy- age, might be _agreed for, and fo the !hip conligned ~rom the Mediterranean to Amfterdam, might be mfured to Amftqdam, or to Cadiz i and if to Cadiz, it
mult
Srn,
( 25 )
l’nuft.be at the ri!k of the infurer iot op de hoog~eva”‘n Cadix; chat is, to the height of, or as high; or as far as, Cadiz, nor could he dem~nd that the fhip lhould
· heceffarily enter the very port of Cadiz, altho’ fl1e might, if fhe would: i(.therefore th_efhip is loft be- fore her arrival at Cadiz, the lofs 1s at the rilk of the infurer; and fo in the cafe that has happened, th~ ·ihip could not fail to Lynn Regis, without firft fai!’- ino- to the mouth of the Thames; wherefore, fo f~r fh~ failed at the ri!k of the infurer, and before fhe ar- rived there was taken by enemies and ranfo~ed; the !hip might have failed to London, according to the policy ofinfurance; but he who undertook a riik, as far as London; has verily undertaken the ri!k as far as the mouth of the Thames; and tho; the fhip did not fail from thence to London, it ls obvious, that the infurer did not thereby run a greater, but verily a Jefs, rilk; and ther efore it is of no qmfequence, a- vailable to him, that the fhip did not fail to London. If the fhip had been t aken at the mouth of the Thames, failing to Lynn Regis, undoubtedly no action, in fuch cafe, would lye againft the infurer, but fuch· further deftination, to Lynn Regis, does not increafe his rifle”
Judgmcnt was given for the infured, June the, 27th, 1720. 445. tom. z.
LETTER vm.
JHave received your favour, covering a copy of an opinion of thirteen gentlemen, merchants
and underwriters in the city of London; which was tranfmitted to the infured; and which thirteen gen- tlemen, feveral of whom are known to me, and to be po!fe!fed of refpectable characters, have,_ on coll• fidering the cafe of the infured, declared it unan·i-
mn.ufl
· ( 26 )
moufly to be their opinion, that the infurers in thit ·tafe were liable to pay the lofs. . • . I am glad the infored have obta,med fuch an opi-
nion, which joined wit!, the authority of B)•nkerjhoek, fuould, I think, be decifive of the qudl:ion, notwith- ftanding the opinion ~f the Engli_fh lawyers; and I will therefore take this opportunity of ftating, and
·fobmitting, the following obfervations, on bthalf ·of the infuted.
1nall civilized countries, a certain political current of decilion and determinations in courts of law and ‘juftice has been made to Bow, uniformly, for the be-
nefit of fo~iety; and when continued for a confidera- ble length oftime, ought not to receive a contrary direltiori, or to fuff’er an alteration without the moll: obvious neceffity.
Thus in particular, in commercial and greatly civilized countries, foch as that of their High Mightinejfes the States of Holland, where the law, a- bout the infurance of fhips, has been as well under- ftood, and the decifions and dett’n11inations _thereup- 011 as well, and uniformly fettled, as in any civilized country in Europe, it has been again and again de- termined, that nothing vacates, or can vacate, a po- licy, or contracl:, of infurance, except a criminal, or
·fraudolent, and actual, deviation, from the voyage or courfe infured .-As to vacating the polity, merely hecauje a Jhip injured, had either by mi/fake or willfully, heen configncdto a port different from that dejcribed in the policy, it never entered the heads of the judges or tribunals in Holland, that it could be don~, with- out injuftice to the infured; and accordingly, in all Cafes where infurers infifl:ed on vacating the policy, on eh~ above account, which frequently happened, thofe 3udges and tribunals, uniformly refufed fo to do, on the b;ft and moll: obvious ground of juftice in the work!, viz. ~11a ex locodamni dati eflimandum e.ffe deperi,ulo ‘]tiodaj[emratoreisnJe recepenmt,Joltlmcon-
. · •jili11m
( 27 )
.filium de mutando itinere ajJecuratoribus nihil nocer, ventum tnutati iJineris nocerepojfe; Jed inane,n ejjeque- relam de re plane tnfefla. In l,nglI01 thus, Verily the . risk or peril, which the injurers took upon them/elves muft be eft:mated or judged off rom the plar e wh ere th; lofs happened; far th at the naked determination, or bare refolutton, ; or, or concerning, an alteration of the voyage, did tn no refpefl hurt the iefurcrs; the event of an alte- ration of the v oyage, might pq/Jibly have hurt them; but· it would be in vain to complain, or inquire about a mat-
ter, wh ich plainly was not ejjefled, pr cution.
carried
info
exe-
But here comes the cafe, lately determined in England, where a contrary doctrine has been fet up, and a policy vacated, becaufe-the !hip hactbeen con~ figned to a port, different from the port defcribed in the policy; ‘l,nd this maintained to be good law i11all cafes whatever. The infurers have laid it down in this caufe as an eftablifhed propofition, ‘[bat the law upo11quejlions of infurance is the fame in all countries, as from the J ame premifes, thefmne conclu- ;,~ns of equity and j uj!ice muft f ollow univerjally :’ Now
it appears from Bynkerfhoek (Lord Bynkerfhoek- Lord Chief Jufrice in Holland, probably of as great and as refpecl:able a court, as any court in this country) that in Holland, the law upon queftions of infurance, has been fettled very differently, from
the novel doctrine, now fet up in England; and that the difterence between Eng .and and Holland is, that inEngland, infufficient premiffes are, and have been, fet up, for vacating a policy of infurance_;” but in Holland, no fuch premifes ever were permitted to be fee up, for any foch purpofe. It is therefor? a ve~y plain confequence, from the very propofit!on, fa1d by the infurers to be an eftabltfhed propolitton, that th~ Jaw of England ~aμno~ be cjifferenc from che
· 1aw
* InfufficientPremifcsareeLJ_ualilnyjudoustQjufti~ca;;$\11,.luRCQ.DiQ cluf:ons, Soenote a1tbefoot of F· 31•
1
e-
·
law.of Holland, upon queftions of infurance; and there can be no_doubt _oft_he)aw of Holland, being Rrefera~le for its fupenor ;uftice, _upo~ the queft1on, and it is fufficient for the rnfured In this cafe, 1f they can lhielci themfelves, by the law of Holland, of which’ ~hey· ire ··certainly intitled to claim the pro- tection, it b!!in_ga commercial law,
~.In con!idering the grounds affigned for fupport- ipg the judament in the cafe lately tned at Guildhall, they don’t ~ppear fatisfacl:ory, . Thofe grounds are; that the !hip was not meant or intended to go to the port infured; fhe intended a different rilk; the voyage . qr;ri,J,k\!lfured never was intended, never commenced, never was e11ter~d upon 9r performed; the . infured voyage was not truly defcrfbed, and therefore ch·e .ljnderwri~ers not liable, &c,
Th~ folid, and lhort anfwer to all chefe grounds,- iJ, that the fhip depa~ted from _the port a quo lhe was infured, and was loft in the very track or courfe in- fure9, and that \t is therefore not only unjuft, but c_pntraryto law, to feeup a bareintention, to go ano~ ther voyage, a different rifk, a commencement or
performance of a voyag~ or rilk different from that· 1
1£lfured, or that the infored voyage waS’ not truly defcribed. As cq this l~ft mentioned ci1cumftance of qefcription, notJ-i.nig can-be more erroneous,or inore.. tJaleapropos; far, certainly the yoyage was properly and accurately difcribes in the policy; and the pre: fomptior arifing from a different confignment, wh~~ {)ler fuc,h co9fignment _)Vaswilful or by miftake, can ;ivaiJ_nothing to make ollt; con~lufively and with cer:,unty, that the lhip iric~nded a different voyage~ a d1ff~rent rd1<, or com,pericement or Virformanc~ qf a different voyage or rilk; the infured, haying ve- rily ns_verag~eed, _chatfu’ch·co1;fignment fbou11 have the errt4 of vacating 1bepolicy, or any thing like 1t; an<;~lfuppofing fuch intention _as the infurers have fet up, on il1epart of the infured in this cafe, where is
{be W’!J;lf.Cf_r§Cede1f1ot; vacating the p9licy on chat · · ‘ ·- ·· account.
( 29 ).
account.* And fince the inftired nave by rio mealls
af(reed to any fuch thing, being cbnfcious of no
f(aud or trick, in the matter, they have a right co hold,
and ought to hold the jnfurers to their cootracl:,
and to recover the lofs of their .!hipand car~o, whiclil
happened in the very tract or courfe inlured, the
/ocusdamnidati, as Lord Bynker/hoekfays, and which
locus being in the very tract infurecJ, is therefore
within the policy.-To what purpofe then do the·
infurers fay, or where is the fenfe or juftice of their
faying, that the infured voyage never was intended~
fhe !hip m_~ant_and intended a different rifk, the
voyage or tdk rnfured never was· rn,ended, never 1
~ommenced, never was entered upon, or performed, ihe infured · voyage was not mily defcribed, and; therefore, the underwriters not liable, &c.-This
is all nothing to the purpofe-By che policy ot ~ourts of law and juftice, i;1 Holland, as well as iq. England, a very certain, as well as a very juft doctrine, has been eftabli{hed concerning deviations._ from an infured_voyage; anti in both oounc,i.es; .when an unfair, hurtful, or frauduk nt devierion appeared;
the court s vacated the policy : but it. is in England· only,that it was ever thought of, to vacate the poli~ cy, on account of the fi1ip being configned to a dif-
,ferent port from that infured, when ibe \Vasloft in the very tract infur ed . This rule o, . dqctrine being Oliilt only on ‘\ notion, that the !hip, per cogneff~mentm (conjignment) as_it is in Lord Bynierjhoek, alter- ed her infured voyage, and had entered upon, commenc~d, defcribed, or performed a different voyage; which was no voyage, at leaft none that the infurers had any concern in, and being n • One.f’wa_llo,wdoesno~make 4 fummer, L~a proverbial faying in EnglatJd as well as in Scotlaud., and fo one ca~e do~s not m:i.ke a Ja”-:
Bu~
( 30 )’
But fo Jong as the fhip was in the line o_rtracl: ac- tually infured, it was impoffible for the infurers to get rid of the relation and obligation they came under and bore to the lhip, which having fet out from the port aquo!he was infured, and having been ]oft in the very courfe to Briftol, that is fufficient for fubjecl:ino-the infurers.-But independent of this, the new dofrrine about infurance, appea:s at the very firft glance, to be a playing with the words of the policy and confignment, it appears a gratp• mg at the mere Jhadow of juftice, and difregard- ing its fubftance; a diftributing the hulks of juftice,
and with-holding the kernel; and on behalf of the infured, who have been very ill treated, and oppref- fi:d in this matter, it appears that their caufe is, o-ood, and that every perfon poffeffed of ideas a- bout this matter, will prefently fee the fallacy of the docl:rine maintained by the infurers, and give the detennination of the caufe, in.favour of the in. fored.
But it is by means of the great and folid authority of Bynkerfhoek, and hi~ book only, that the infured jn this cafe, can ever expefc to obtain the juftice that is du~ to them, buc which, it is hoped, Byn· jeer/hoe!<;will be powerful enough to accomplifh.
Some of the perfons interefted in this caufe, may pretend to fet up an objecl:ion, either open- ly or tacitly, that Bynkerfhoek, a foreigner, ought Rot to be admitted or received here as any autho, iity, for that it does not appear, that he has any ~uthotity in his own country. That the book \S_ of the greateft a1.1thority in Holland, is a mat- ter ca_pableof the cleareft proof; and that the book, 1seven of th_at high and confim:ed authority, if 1cwas a p1.1bhcbook of legi!lative ftatutes ; ic 1s alfo . a book of auth?rity all over Eurqpe, and ftand~ 10 every learned library; wit.nefs its being i” the library of the faculty of advocates in Edin- P.urgh, though ver:r difficu,lt to b~ found in the
· London__
f( 3t,)
London libraries. If any objecl:ion is feriouily fef up again!l: the book, the prop~r anf’wer is, that the infurers themfelves have, by their counfel, quoted part of the book, and thereby admitted its autho- tity, after which it cannot be denied. *
It is tt’ue, that there have been various Tre’atifes publilhed in this country, on the Law of lnfurance, within forty years ; bnt in any of them, there has not been mention made of Bynkerjhoek,or of the decilions of the courts of Holland, as authorities, on :my point of the law of infurance.-Whether this argues for the iearning and knowledge of the writers of thofe Englilh Treatifcs, or for their illiterature and ignorance, will readily appear, in cafe Bynker-
Jhoekand the deciliot.s of the courts in Holland, are perufed and compared with the Englilh Treatifes ; and in fuch cafe, it will alfo probably appear, that the Englifh Treatifes are dry, poor, and deficient in every refpecl:; but that By;ikerjhoekcontains the moft fatisfacl:orycopioufoefs, of law, of learning, of phi- lofophy, of reafon, and of ju!l:ice, upon the law of infurance; and that thofe who publifhed Treatifes in England, upon that law, without confulting and quoting B;·nkerjhoek,may ju!tly be faid to have been abundantly illiterate and ignorant, as to the law of infurance, lam domi quam extra. But co do thofe Englilh Treatifes julbce, fo far, it may properly be obferved, th.,t there is not the finalleft inlinuation in any of them, of the modern doctrine, of an in- fured voyage or rifque, being altered by a bare con- fignment or clearance, or of the infurance being thereby void; a doctrine, pregnant with the mo!l: obvious tendency to deftroy all faith and confi- dence in infurance~, to difcourage infurance, and, of courfr, to injure commerce, trade and nwi- gation.
• After hunting for the hook, in vain, in f~vcr:it law libn1ries ancl ihops in London, I difcovered it to be in the private, ~ut excellent and learned, ~:bra•; o~ John Coxe, of Lincoln’s Inn, Etq; who frankly
( 32 ) LETT’ER iX.
SIR,
WHEN I fent you the opinion of the Engli/li
counfel, Jail: above fet out, I mentioned to you that I was fatisfied of his being miftaken in the ftat; or account given by him in his opinion, of the Englifl1 infurance cafe of Fojlerverfus Wrlmer, Strange 124 9; and of the other cafe therein cited of Carter ‘llerju1the Royal Exchange_injurancecompan7,and that inftead of thofe cafes berng any authority for the doctrine laid down by him in his opinion, they are clear authorities againft his doctrine.
But before coming to particulars regarding the faid two cafes, I beg leave to ftate fome general obferva- tions upon the opinion, which tho’ the fame, in ef- fect, with the other opirtions, affects to be more par- ticular, and niore plaufible; and to remark upon and invalidate this opinion will be fofficient for the whole. The opinion underftands it to be the ufage of t11er- chants, that if the infured voyage is begun, notwith- ftanding there is proof of an intention to deviate, yet if there be not a deviation, before the lofs, the un- derwriters are liable. [So far, it is notorious, is the ufage of merchaqt~ as well as of law; but what fol- lows, tho’ reprefented as ufage, is neither the ufage of merchants nor of law.] To go on with the opinion, it fays; but if the infured voyage is not begun, there is no rifque, and the policy becomei void; and tho’ the infured has ufually every favourable conftrucl:ion that can be given to the policy, for the encourage- 11?entof trade, yet when the fhip is cleared 01,1tfor a different voyage than the voyage infured, the cafe goes b,yoncl aHpower of col)ftruction. ‘
This with a wi~nefs is puting the matter ip the ftrongeij: light agatnft the infured, if they cannot have the benefit of a favourable conftruction. But it is remarkable, that none of the other counfel in their opinions,. f~y, that the cafe is ?e_yond the power of
( 31 )
tlidly, that he is not ,aware of any uf’age among mer.; chants in England, fufficiently frequent _and uniform, to be of any weio-ht in fuch a cafe as the prefent; on the contrary thinl fhe was infnred, and never quitted the line infureci, how it comes, that her movement is not within the policy. Without {)-iowing this, the infurers _mull: ~;ainrain, due the infur ed (hip does fail in the line 1nfured, anci does not fail in that line at the fame time, becaufe the !hip was ultimately to go to Lon- don, not to Brill:ol, which may be good law, but very bad natural philofophy; and it were to be wifo-
ed the opinion had fee out, where fuch a law could be found.
Acc or ciing to the opinion, the intention of the in- fured in this cafe, having by the letter of the 19ch of March, 1772, once appeared to be, that the fhip i’hould be cleared out for London, not for Brifl:ol, and the !hip having been actually cleared out for 1:,ondon, there is no room or place for adrnit- t1ng a different intention, or an intention of go- in&to Brifrol, or even for admitting a po!Iibilicy of gowg to Bri!lol.
But
34 )
But with great aeference to the opinion, there does not appear to be the fmallefl: foundation in law cfrjoftice for holding the infured bound by one un- changeable intention, which is faying, that tho’ in- tetltion is an ambulatory, a flucl:uatrng, and unfet- tled thine- in its nature, yet in this cafe, tho’ the c’afe of a ~tfbken and erroneous intention, it muft ffand fixed and unchangeable.-Buc the poffibility, the phyfical poilibility, not to talk of the intentional poffi&ilitv, of the fhip’s going co_Bri~ol, tho’ er- roneoufly cleared out for London, 1sa c1rcum!l:ance, of itfelf, fufficienc to overthrow the whole fabric, fet up ‘againft the infured, in this cafe, and make it tumble in ruins about the fabricators ears.
But, fay they, the voyage which the fhip began, was not the voyage infured, was not the r,ifque in- fured, and therefore the policy be , ame void; and it the fhip had not been loft, where fhe was loft, and had actually gone towards Brijlol, and h1d been loft near Brijf~l, the infurers, neverche!efs, would not have been liable, beca.ufe the fhip had been cleared
out for London, not for Briftol.
I have mentioned in a former letter, that the in-
furers faying, that the fhip began a voyage different from the voyage infured, and went on a different rifque, is a playing with the words of the policy, ancl the words of the bill of fadino-, or clearance.-lt is faying, in effect, that a poli~y of infurance is no_ !:>etterthan a bill of ladin g , and chat a bill of lading Js as good as a policy ofinforance; and that if they are different from one another, they deftroy one an- other, and there being no infurance, the parties in- furers mu~ ~e _reponed and reflored in integrum.
Now this 1s1n elfecl: the fame thing with what Bynkerjhoekexpre{fes in the followino- words-Alfe- curatores nihil teneri flricriflime enrn inh::erendum verbis inftr:1menti, iifque exprelfum elfe, ibi jacere n_avem, u: 1ta demum ad a!fecuratorem incipiat pe_r- tlnerepenculum, quod acc1d:c, pofl:quam ibi jacu?f-
fet
( 35 )
fetnav,s; nunquam autem jacui/fc, atque ita condi- tionem tmde inc ipere t defrci/fe. Sic certo vohrnt mulio vaborum agmine, et advocatis aliqu 0t.aucl:o- ritatibus femibarbaris. Seel profrclo, iis rat1onibus, nihil quicquam calumn :o!ius, ni_hil eriam ftultius. 4 27. [0411. 2. •
This pa./fage of Bvnkerjhoek need not be tranO ated into Englilh. It alludes In another palfage, Bynke rlhoek, obferving oh merc~ nts who had given their opinion on a certain p oint of the law of infor ance, fays Neque enim ullam attulere ratioJtemqu£ ‘conj11ett1dinemargueret, Jed dun- taxat, qua otinionem Ju.am ex mente Jua j}abi/irent. Ob
rei tanzen mercatori.e utilitatem r,.;a/eat etiai;i ratio, qu.e ratio nM eft.430. tom 2.
Here it is remarkable, that Bynkerflrnek fays, let that !l:an.! or paf.s for reafon, whicl1 is not reafon, fince it is for the bendi.t of commerce.-Now the va- cating of a policy of infurance, in!lead of being a bendir, is a dif.ouragement to comm tr ce, tend1r,g to the deltruclion of naviga cioo and tra de, by putting an end to all fa”h anJ c-0nfidence ,n contracts of infurance, as Bynke: 010ek fays, and ought to be better founded, than on a ,·atio qu,e non ejtratio, not being pr.pter utilitatera rei i»£rcaicric, but cli-
recl:ly the reverfe.
Then, as to the point or cafe, of rell:orino- the in-
furers and infured in iutegrum, ,ga; na a pol~y of in- furanre, Bynkerjhoekhas the rollowin 6 paffa”‘e-Seni-
tus nli, et explo1it diam rdb:m ionem m m,,g ru:n, nam li bane, ex cauta 1mpru :knt ire, in a!ftcma nombus admittas, at1um ell de omni tide in ,jufm c,di concrac- tu~m, nee fcio illas machinationes unqc.am ab ailecura- tonbusdfe adhibitas, 11t u~fa!J.e~da:fakiil~lkrdo!eanr.
~n·
tom. 2 .–Which in Engli!h is, that if you 437· f ft · · . .
once admit the rule o _r’: ormg parties tJZ mtcgrum,
there is an end of all fa1rn m thefe forts of contracts; nor do I know (fays BynkerJl?oek) that thGfe con- trivances were ever urged by mfurers, for any other purpofe, than what they ufua_llyft~dy, that is, in one word, for the purpofe of zmpojitzonor deceit.
Ao-ain another paffage of Bynker01ockis asfol- lows~ ]~ litibus qure de a!fecuratione occurrunr, fe. re omnis queftio eft de defcnfionibus feu exceptioni. bus guibus ad evirnnda damna a!fecu~aroresutuntur; urnntur autem in d1verfisfrepe caufis, uJaem tamen ex- ceptionibus, eafgue quamvis decies rejecl:as, decies tamen repenmt. 433. tom. 2,
Another paffage is bonam !idem in affecuratopre- fumendam donec concranum probetur. 441.
I come now to remark upon the opinion in queftion, relative to rbe two cafes mentioned, of Fojler verjus Wtimer, and Carter verfus the Roral ExchangeIefur- ance Compal!)’, which, l Jay, are a clear Englifh autho- rity for the infured in this cafe, and againft the doc- trine laid down in the opinion. . In Foj/er verfus lVi!mcr, the infurance was from Carolina ro Lift on,
,and at and from tbence to Brij!ol; ic apptared the Caprain had taken in falt, whicn he was to deliverat Fa/mouth before he went co B rif/ol, but the !hip was ,taken in tbe direct road to boch, and beforelhe came to the point where foe would turn off to Fal- mauth : And it was held the infurer was liable; for itisbutani;itcntiontodeviate and chatwasheldnoc fuffi.cienttod1:charge th~ tl;derwri:er. In thecafo
of Carter verfi1s the Royal Exchange /ljfurance Company, where the infurance was from Ho11rfurasro London,and a conjignment ro Amlterdam, a lofs happened before/he came to the dividin”‘ point between the two voyages, which the infurer w:hseld ‘ro pay for.
Thofe are the ward, of S:r John Strangr, rhe _re-
porter of che cafe Fo.eJrl w rfus lVi l;ner. According — -•. t(!
( 37 )·
to the report, any man of common fenfe, muft thin that in the cafe of Carter, tbe infurancehaving bee from Hondurasto London, and a confignmenJto Amfte dam,both the lnfurance and the confignment, wer total, of the whole lh1p, cargo and freiuhr and th it was a cafe exactly in point with and firn{lar to th prefent, the infurance being to London, bur the con
Jignment to Arnlterdam ; and y,;t, It was not lifrene to at chat time of dullnefs, r 9. Geo. II. that the in fured voyage to Londonwas altered by the con(jgnmen to Amjlerdam, or that the fhip had begun a differen voyage, a different rifque, from that infured, or tha the pol·cy was thereby vacated.* lnfread of this curi ous doctrine of our modern lawyers, thofe of the 1 Gm. II. difregarded the alteration of the voyage, th difference of the rifque, and found the infurers liable.
But the opinion in queftion attempts to fhow, that i the cafe Carter verfus the Royal Exchange Ajjuranc Company,thefhip had fe~out upon her infured voyage but therebeinggoodsonboard;co~fignedto Amfterdam
this was ftrong evidence of an intention to deviate yet that the fhip being loft, before the deviation hap pened, the infurers were liable; he fays that this wa the point in Foflerverfus fVi/mer, and it is to be pre fumed, that the cale of Carter was citt.d for the pur pofe of proving the point before the court, and not different point; for the qodl:ion in Fojlerverfus Wit ,ner,turneduprinanintentiontodeviate,andnetupo a different voyage.
It is fingularly unfortunate for the opinion in que tion, that in Sir John Strange, the reporter, ther is not the fmalleft authomy for entertaining any foci notiqns, but the contrMy. Sir John exprdsly ll:ates that in the cafe of Carter, the ini’urance wasfrom Hon duras to London,and a coef,gmnento .dmjferdam.-No the natural way of underll:anding this, is, that th
$ The advocates for the inforcrs, confl:antly:lfi”mn:ci~d ~ak_cit foi z·:mted, that the lhip beg-an a diff..:rent _voyage! &c. but 1t JS in lhi, ,
·- · · · :._o_Wlu!u:..r.u:e.m.i.f.i•..P.-::orGO
co:,Ji.1
o»figmnmlwas as br?ad, or as large, as the i_nfu_rance, nd direcl:ly contradicted the infurance; this 1s alfo
o be foppofed fro:n the nature of the goods imported om Honduras, wh’ch ceing nothing but ponderous ahogany or logwood, it cannot be fuppo_fecl that e conlignment to Amfl:erdam was a partial con-
gnment of part of the cargo, or of fome maho. any or logwood, and the re!l: to London, but
at the whole !hip and cargo were infured co ndon, and conligned co Amftenlam.-Befides, the otion of the opinion, chat the cafe of Carter was nly a queftion of deviatior., and was cited in
‘ofterto prove, that an intention to deviate did not acate die policy, mutt be entirely groundlefs, lince e cafe of Carter, being a cafe, where an entire alte-
ation of the voyage or r,lk was intended, or refolved pan, by a co»jignmento Am!l:erdam, it was a more avourable cafe for the infurers; and fince, they were ev:en;belefs .found liable in th at cafe, much more
ug~t ,they to be found liable in the cafe of Fojler, hich was only of an intention to deviate, and 1hat his was the way in which the cafe of Carterwas ap-
\ie et forth, and not at all .s conjectured by the opinion. In lb.ore, there can be no reafonable doubt enter- ained, that the i:;a(eof Fefter v.erfus Wilmer, lind the afe of Carter, are cl.ear authorities for the infured,
and dir;c1:ly_oppofite to the dos’.hiQe ltc up again!l: them, m this cafe ; et quad magis intel/ecltt percip., quam _ex_lccutto_ne~xpnm1, pote!l:, ut dcgamcr, quamv1s m re d1ffim1li, Julianus ai’t in I. 13. ff. de Solut. as obferved by Bynkerjhoek,46, tom. 2.
LET:
( ·39 )
~ETTEJ:l ~-
SIR,
YOUR Ja[l brought me a copy of the followin
London inforance caie.-19th Augufl: 1777 a policy of infuraoce wa, underwritten on goods, in the (hip Sally, at and from the Bay of Hondurasto Lt’ ‘Uerpool,at twenty guineas per cent. Before the lhi1 failed trom Hon.Juras, a captain who had failed man years from the pore of Bnftol, offered his fervice to the owners, who were thereby induced to alter th !hip’s dd1:ination; and having failed from the bay, for Briftol, and not for Li’Verpool; lhe arrived fate a Briftol, before any advice was received concerning
‘ The infured demanded a return of the whole pre
mium, conceiving, that as the lh1p’s deftination was alte,ed, there was no in fnr anee, and in care of Jofs, the infured would not be intitled to recover, ·
The matter being referred to the arbitration of three gentlemen, merchants and underwriters in London, they awarded the infurance vaiid, till the lhip cam to the point of deviation, between proceeding to Li- verpool and Bri!l:ol, and therefore that the itifured were not intitlecl to a return of the premium. ‘
This, I hope, is a furt her clear amhority for your clients, the inlured to intit!e them to recover the Jofs in queltion; bm as you feem to have nothing to au- thenticate the cafe, except the hand of the gentleman Broker who fem it to you, or your clients, from Lon- don, it appears to me, thac it would be proper t have the cate proved in the caufe, according tb your mode of proot, after which, it may be relied upon as an undoubted good authQrity for your clients,
LETTER xr.
S1R,
N my former letters, I mentioned, at’ different
times, in the interfperfed way, what occurred to e, proper to be ufed and maintained, on behalf of he infured in the cauf~, as materials for their coun- 1 with you, to enlarge or iniifl: upon, or put in their refs, if rhey thought their doing fo proper or ad- ifeable; and a;, what occurred to me to fay upon the ubjdl:, has been interfperfcd in different letters, I onlidcr it proper and pertinent of me, in this letter,
o make fame recapitulation of the principal points.
r. The policy of infurance in queftion was fairly nd bonafide purchafed, by the infured in this cafe; or as to the infured not having dirclofed to the in- ~urers, that one of the infured partners had by mif- ~ake, direcred the !hip to be cleared for London, this Fan be of no confequence, lince the premium was the fame for London as for Brill:ol, and the courfe the fame for 49 parts of 50; the infured could not offibly have di!cloled a fact to the infurers, of which e infured had no knowledge or recolltll:ion at the im~.; but on this point, it 1s folly fufficient to fay, hat the mi!l:ake or forgetfolnefs of the infured, did ot occsiion any injury or prejudice to the infurers,
ho are therefore liable for th~ lofs.
2. If the fh,p, in this cafe, after being loaded,
had been burnt _ac_herport of lading, in the Bay of Honduras, the miurers would have been liable, with- out regard to her port of ddl:ination.
3. The fni~ having been loadtd at the port, a quo,_!be was miured, ~neldepartcd from thence, and havmg been loft, in the very l:nc:, courfe, or ttatr, lead mg to Brill:ol, “hich was the courfe info red, her movement therctore was within the policy.
4. After )ofurar,ce is made on a fhip, there can be no alterat:on of the voyage, without the lhip’s
( 4r )
,nwement. Words in a conjgimnent, bill of l,,di,1gor clearance,whether before or after the policy of infu- rance is perfrcl:ed, however exprdlive of an intencir,n’ to alter the fhip’s deflinatio1z,cannot alter .the voyaoe or rifque, without the movemem of the lh:p. 1\i argue on words only, wi:hout regard co the fhip’s movement, is a logomacbia, a contention or difpme on words, et pr£terea nibil
5. An ideal or intentional movement of the fl1ip, from,or out of the line infured, wili not av1il the inlurers; they mull: fuow that the lhip acl:ually mov- ed OLlt of the infured line, otherwife the y fhow no- ·· thing available to them.
6, Th e clearing out, or conogning of an infured fhip, from the port, a quo, fhe was inl”ured, to a port, different from the por e to whicb fhe was by the po- licy infured, does not prove, or make om an altera-
·rion of the voyage, or of the riique, or,of any thing material, fuch clearance or conlignment, being no- thing more than an ideal matter, a Jo!umco11ji!iumde mutando itinere (as Bynkerlhoek has it) doing no hurt to the infurers, can never be a jul1: ground for holding, either the voyage or the rifquc: altered, to the e/fecl:of vacating the policy; on the contrary, as the lhip was loll: in the very line or tract infured, and the place where fne was lo[t, being tile locusdamnidati, a quo£.flimandumefl de periculo, quod aj/ecuratoresin J~ i-eceperunt,this is fofficient to make: the: infurtrs
liable. ·
7. The intention appearing from the erroneou•
hill of ladina-, or clearance ot the !hip to London, inftead of Bri{tol, being no pro of of an alteration of the voyage, or rifque; and a bare intent ion or refolu- tion, tho’ dignified with the name of a determination, being inter vivas, the moll: ambulatory, moll: flucl:uat. ing, and the mofl: changeable and unfi:eady thing io the world, cannotjul1:ly be made the foundation for va- _ca1ingthe po’.icy of infurance in this cafe; and t~r the
G rnlurers
( 42 )
‘l’n!”urer~to infitl:upon thi~, is, i? effect, the (amething v.1th what Bynkerjhoekfays, tho upon another or di!. fimilar point; et ~·ix bominisJani rjf, ea de r_·dubitari, 430.-In lhort, it plainly appe::rs, that in Holland no regard is paid to a bare intention, refolmion, 0; determination for altering 1he. voyage or the rifqu~, and that 1t 1s nothmg, unlefs 1t ach,ally hurts tht’ in. furers; and, it is common Jenfo, and common juf. tice, that it ought to be fo in England, and every where elfe.
8. No other judgmrnt con juflly be made on the inaner, than as in the c::fe of an intentional or actual deviation by the Jliip, from an infured voyage
·O, nfque.
9. The Englilh cafe of Foflerverfus Wilmer, and
the cafe therein cited of Carter ve,Jus the R”)al Ex-
change infurance company, are clearly an amhority for ‘ the infured in this cale, and will be found fo by every body, who attentively confiders the matter. The o- pinion above mentioned of thirteen gentlemen, mer- chants nnd underwr:ters, of refpclbble char2cler in
Lendon, and the arbitraticn ea!,; alfo above ftated, ‘ · are very confidirable auhorit:es for the infured; and joined witb the authority of the celebrated Bynker- jhoek, there can be no doubt, but what they 6’1ght_to prevail, and recover from the infurers, the lo!s which
· bas bap!5rned in this cafe. · LET,
:,
f 43 t, LE.TTER xrr.
Sm,
Have yours, informing me of your having ap-
I
behalf of the infored, for leave ro give in a reply for them to the anfwcr of the infurers, and that the court havin” refofec.lto allow any reply to be given in, and havin~ confic.lercdthe matter, upon the petition and anfwe~s, have determined the q uefrion in favour of the infurers, by adhering to their tormer interlocutor, and refofing the petition of the infured.
plied to the Lords of Seffion, by petition, on
This information, I confefs, furprized me ; for af- ter writing fo much on the caufe, ! did expecl:, that the quefrion would not be finally or u!timatly determined, without the lucub ,ations which I fen~ you, or fome of them at leafr, being ufed in the pleadings for the infurrd: but fince it has fo happen- ed, and 1 am fatisfie to you before now) to publilh in print, the whok,
or fubf1:ance of the whole, which I wro te to you on · this caufe; but as my ufing the name or names, ei- ther of the parties, or of the counfel, or others con- ~erned tor them, n1ight give offence, I am to avoid lt, for lt is not my intention to give offence to any man; bur if any man friall be offended at my being pofTefTedof the ideas, which I have fet forth in my letters to you, or ar my publilhing thor~ ideas, or at my not fupprtffing ·them, it will give me no concern, becaufr I ‘am laristied I have a right to publiih, an<.1 will publi!h my ideas, on all foitable and decent occa- fions, as often as I chink, that my doing fo, can !:leof
any miliry or ad1•ancage,either to myfelf or o,hcrs.-
. – Your
r
I
{llp
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Your objec1ion, that fuch a_pu_blicatio~is extreamr, unufual, is, l gr~ijf, a true oby::.cbon. Tne reafonof ict beino-unufoal is, that hardly any perfon bred inthelint of a; attorney or folicitor, either in England or Scot. _la.(ld,is q~a.lified1_0 write on any intri~ate_fubjecr,Or queftion qf law, rn the argumentative way; bur what _isthat t9 ,me, if I am poJfdfed pf the proper ideas, qualifying m,e·for, fuch a ran<; and whether I am or nor, mult be left lO thofe to decide, who may re,q
my publication.
Sm,
L.ETTER XIII.
J Have received your favour infonniirg me, tbat rho’ the court had determined the prtn~ipal, quefrion againft the infored, they have neverthekfa•
referved to rJ1e infured to prove, that the infurers had, fubfegurnt to ,the lofs, promifed or agreedto pay, and that having ordered the infured to give in a con- <!<:fcendenceor !?articular of v,hat they offered w· prove for making om the faid promife,or agreement; lt1chparticular was accordingly given in,, and anfwers being given in thereto, for the infurers, bu~not ha•. ving recei_ved the judgment of the. courr, before·the ‘determination of the !aft frffion, or rc>rm,the matter. tlud thtis gone off, till next feffion–;-Upoothis μornr, ! w:lh iuccds to the infored ; ·,rnd ir· they prove.the p:·omifoor3greem~nt, I hope rhcy will 1,,cc_cd, n9t- ,yirhf1:andingtbe principal queft-1011has. b~c~,:iQ ludden and abrvpt m2nrier, ac:errnined aga10!tht’m,
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