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conduct, and adopted their acts. Previous to 25 Geo. 3. c. 44. it was complained of as a great inconvenience that policies being made in blank, no name appeared by which any judgment could be formed of the character of the perfons interested in the risk. HORNCASTLE, By that ftatute it was therefore enacted, that no policy fhould be made without inferting the name or names of the perfon or perfons interested therein, or the name or names of the perfon or perfons who should effect the fame as agent or agents of the perfon or perfons interested, &c. After this act, many policies were effected in the names of agents, without its being stated that they acted as agents, and great inconvenience having arifen from this circumftance, it was found expedient to repeal that ftatute by 28 Geo. 3. c. 56. the object of which is, that the name of fome person refiding in Great Britain fhall appear on the policy, without requiring that he fhall be defcribed as agent. Then do not the Plaintiffs come within the meaning of this act? They are perfons refiding in Great Britain; they are the géneral agents of the perfon interested; they are the perfons to whom the confignees returned the bill of lading; they are the perfons to whom the owner of the cargo intimated the propriety of making an infurance, and whofe acts in having infured he afterwards approved. The 28 Geo. 3. having been made in order to remove the inconveniences occafioned by 25 Geo. 3. the Court will not put a ftrict conftruction on it, fo as to defeat the Plaintiffs' title to recover. 2dly, If it were neceffary for the Plaintiffs to have recourse to the fecond count, their right to infure on their own account might eafily be established, fince, on receiving the bill of lading from the owners, they accepted a bill for 300l. which created a lien on the goods to that amount.

Shepherd Serjt. for the Defendant: ift, The material question is, whether the Plaintiffs have effected a policy within 28 Geo. 3.? It is clear that this cafe is not within the words of that ftatute. The perfons whofe names are to be inferted are, the perfon interested, the confignor, or the confignee (none of which characters apply to the Plaintiffs); the perfon refiding in Great Britain who fhall receive the order, or the perfon who fhall give the order for effecting the infurance. Now this cafe ftates that the Plaintiffs had not received any order at the time when the policy was effected; the queftion therefore is brought to this, whether the fubfequent approbation of Lund be equivalent to a previous order? But whether the policy were well or ill effected muft depend on the facts exift. ing at the time when the policy was made; and as the Plaintiff's

had

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had then received no order they made an unauthorized infurance. Lund might have refolved to litigate the queftion with the Cudbear Company, and have difowned the act of the Plaintiffs, in HORNCASTLE. which cafe they would have been entitled to a return of premium, no risk having been run. If a fubfequent acquiefcence be held tantamount to a previous order, it will be in the power of any perfon refiding in England to effect a policy without order, and afterwards to fet up an acquiefcence, or demand a return of premium, according as the rifk may turn out. I contend that the agent muft have fuch an order at the time of infurance as will bind his principal. Now in this cafe, if the Plaintiffs had averred that they effected the policy by order, they could not have fupported the averment. There is no doubt that subsequent acquiefcence in the cafe of a general agent may be evidence of a previous order, but the fact of a previous order is abfolutely negatived by this cafe. 2dly, It is exprefsly ftated in the cafe that the Plaintiffs did not infure on their own account, but that they wrote to Lund to inform him that they had effected a policy on his account, and he agreed to credit them for the premium. However, had this not been the cafe, they could have had no infurable intereft, for Lund defired them to hand over the bill of lading to the Cudbear Company, and drew on the Company in favour of the Plaintiffs to the amount of the goods. The Plaintiffs therefore accepted the bill for 300l. drawn by Lund upon them on the faith of the confignees accepting the bill drawn for the value of the goods, not on the faith of the goods arriving.

BULLER J. This is an action on a policy of infurance made on goods on board the Fahrfund's Wharf at and from Fahrfund to London. The policy is made in the names of Wolff and Dorville, as well in their own names as for and in the name and names of all and every other perfon or perfons to whom the fame did, might, or fhould appertain in part or in all. This policy in its frame is very much like thofe which we used to fee fome years before the legiflature interpofed in the 25th Geo. 3., only I remember that the words "as intereft may appear" were then ufually added. The ship failed on her voyage with the goods on board; the premium was paid; it was a real bona fide tranfaction; and no fraud has been fuggefted; a lofs has happened, and the underwriter now chooses to fay, that for want of a ftrict compliance with the 28 Geo. 3. he fhall be excufed from paying the money. Time was, when no underwriter would have dreamed of making fuch an objection: if his folicitor had fuggefted a loop-hole by which he might escape,

he

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he would have fpurned at the idea. He would have faid is it not a fair policy? have I not received the premium? and fhall I not now, when the lofs has happened, pay the money? This would have been his anfwer, and he would have immediately ordered his HORNCASTLE: broker to fettle the lofs. If however the Defendant can bring his cafe within the ftatute, he has a right to do fo, and we are bound to give him judgment. But has the Defendant brought his cafe within the meaning of the ftatute? has he even brought it within the words of the ftatute? And even if he had brought it within the words and not within the meaning, I fhould be clearly of opinion for deciding againft him; and in fo doing I fhould follow the directions of the ftatute, which in the laft claufe fays, "every "policy and policies of infurance made and wrote contrary to "the true intent and meaning of this act, fhall be null and void." The objection is that the fiatute requires the names or style and firm of dealing of the perfons interested, or the names or ftyle and firm of the confignors or confignees of the goods infured, or the names or ftyle and firm of the perfons refiding in Great Britain, who fhall receive the order for and effect the policy, or of the perfons who fhall give the order or directions to the agents immediately employed to negotiate or effect the policy to be inferted in the policy. Now it is material to go back to a time previous to the paffing of this ftatute, in order to see what was the real meaning of the Legiflature. My Brother Le Blanc very properly went into a review of the 25 Geo. 3. though that act has been fince repealed. By putting the two acts together we may learn the true fpirit and meaning of the laft; what it was thofe who introduced it wifhed to be effected; and I might add from recollection what it was they profeffed. The inconvenience recited by 25 Geo. 3. was the making policies in blank, and therefore it was enacted, that where they were made by perfons refiding in Great Britain, the names of the perfons interested fhould be inferted therein, or the names of the person who fhould effect the fame as agents for the perfons interefted, and in cafe of perfons refiding out of Great Britain, the name of the agent. Under this act it happened that many perfons not understanding the meaning of these provifions, and not complying literally with them, loft the benefit of their policies (a). The Legislature therefore thinking that they had drawn the string too tight, recited in 28 Geo. 3. " that it had been found by ex

VOL. I.

(a) Pray and Others v. Edie. 1 Term. Rep. 313.

Y

"perience

1

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"perience that great mifchiefs and inconveniences had arifen to perfons interefted in fhips and to perfons ufing commerce, from "the 25 Geo. 3. c. 44. and that it was expedient that other and HORNCASTLE." more convenient provisions should be made for the regulating "infurances on fhips, &c. than those contained in the faid act," &c. Now we are bound to say that this second statute must receive the moît liberal construction that the words will bear. From the language of the two flatutes, as well as the confideration that we are conftruing a contract uberrimæ fidei; viz. a policy of infurance, we must avoid bearing harder upon the Plaintiffs than is abfolutely neceffary. Let us fee then whether the Plaintiffs do or do not come within any of the defcriptions of perfons in the laft ftatute. Thefe defcriptions are four: the confignor and the confignee, the perfon receiving and the person giving the order. It is perfectly clear that the Plaintiffs are not the confignors: but I am by no means prepared to say that they are not the confignees. It is true that the goods were originally configned to another perfon, but the cafe must be confidered as it flood at different periods: though the Cudbear Company were clearly the confignees at firft, it does not 2 New Rep.291. follow that they continued to be fo. What is a confignee? A confignee is a perfon refiding at the port of delivery, to whom the goods are to be delivered when they arrive there. Lund does not truft the Cudbear Company without fecuring himfelf: he therefore fends the bill of lading to the Plaintiffs, who are his general agents, in order that he may be fecure of being paid for his goods. Certainly if the Cudbear Company had received the goods, they would have been the confignees, but they refused to receive them; then who was entitled to receive them? It cannot be pretended that nobody had the right, and the captain could not keep them: then to whom could the right belong but to the perfons who had the bill of lading and were the general agents of the confignor? From the moment that the Cudbear Company refused to have any thing to do with the goods, the Plaintiffs became the confignees. If this be so, there is no objection to the policy, and I am fatisfied that I do not carry this conftruction too far when the juftice of the cafe is with the Plaintiffs. But there are two other characters mentioned in the ftatute. The next is the perfon who receives the order to infure. Let us fee therefore whether thefe Plaintiffs had not an order to make infurance. The goods were originally intended for the Cudbear Company; but they were fent, accompanied with a letter

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which flated in the cleareft terms that Lund intended that they fhould be infured. The Cudbear Company having refused to take the goods, could the Plaintiffs, who were the general agents of Lund, could any man of fenfe read his letter, and doubt of his HORNCASTLE. intentions? In giving his reafons he fays that the feafon is fo far advanced, that he does not think it fafe to fend the goods without their being infured. The Plaintiffs must therefore have 13 East, 280. been blind if they had not feen that it was his intention to have them infured. Then what was his intereft? Why that they fhould be infured. It is agreed that a general agent has a right to exercife his difcretion for the benefit of his principal: he must act on the fpur of the occafion, and if nothing elfe had paffed, I have doubts whether the confignor would not have been liable to pay the premium. But the Plaintiffs take the opportunity to inform the confignor of their having made the infurance, and he highly approves of their acts (a), which brings the cafe within the maxim that omnis ratihabitio retrotrahitur & mandato priori æquiparatur. I am clear therefore that the Plaintiffs were the perfons who received the order to make this infurance within the description of the act of parliament. But there is ftill another character to be confidered; the ftatute mentions, in the laft place, the perfon who gives the order to make infurance. Now, in my opinion it is impoffible to ftate a cafe that comes more directly within the act of Parliament than this. Who were the perfons immediately concerned, who immediately em- 2 New Rep. ployed the broker, who gave the immediate order for infurance, but the Plaintiffs? It appearing therefore that they come within the words of the act of Parliament, the cafe ftands clear of all objections, and is in law, confcience, and juftice with the Plaintiffs. With refpect to the fecond count, I hold that the Plaintiffs had a clear right to infure to the amount of 300l., for which they were 3 Bof. & Pull, interefted in the goods. My Brother Shepherd confiders them as 91. ftanding without interest in the goods, because they had only a debt against Lund. I agree that a debt which has no reference to the article infured, and which cannot make a lien on it, will not give an infurable intereft. But a debt which arifes in confequence of the article infured, and which would have given a lien on it, does give an infurable intereft. The cafe is not at all altered by the goods not having arrived. There is no more common tranf

(a) Vid. French v. Backboufe, and French v. Foulflom, 5 Burr. 2727.

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