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1798.

Davis

OWEN.

has been held that taking any step in a cause, as appearing (a),
is a waver of any irregularity. Now it does seem that the taking
out a summons in this case was a step; for unless the Defendant
was served with a writ in consequence of which he was obliged
to appear, why should he go before a Judge to be relieved ? By
so doing he allows that he has been served with process to which
he ought to be answerable. The only thing to be considered is,
on what terms the Court should stay proceedings on the bail-
bond. Now as the practice on the part of the Plaintiff has been
so exceedingly sharp, I think the order should be to stay pro-
ceedings on the bail-bond without cofts, the Defendant Owen
undertaking not to plead in abatement that Hughes, who has
fled the kingdom, is not joined in the declaration.
And in this way the Court made

The rule absolute:

(a) Fox and Another v. Money, widow, anie, 250. and peft, 39;.

1

Nov. 24.

directs the furinn

to cales where

DYER, Demandant, v. Bullock and Others, Tenants. The 8 & 9W.3. 2.31.9.1. which SHEPHERD Serjt. having obtained a rule to fhew cause why pro

ceedings on a writ of partition should not be stayed, on the to be pursued in ground of a notice of the writ, with a copy thereof, not having, a writ of partition, applies only according to the directions of the 889 Will. 3. c.31. §.1. been

served forty days before the return: the tenant does pot appear.

Le Blanc Serjt. shewed cause, and observed that the 889 Will.3. c.31.%.1. only applies to cases of ligning judgment (a) by default for want of appearance, whereas here the tenants had appeared.

Shepherd admitted the construction of the statute to be against him, And the Court being of the fame opinion,

Discharged the rule. (a) Vid. Halton v. The Earl of Thanet, 2 Bl. 1134.

Nov. 24.

Wyatt and Others v. SMEE.

An affidavit to
huld w bail,
sta in; “ that

LE BLANC Sjt. moved forarule to thew cause why the Defendant

fhould not be discharged out of custody on filing common bail, " 7.Š. has made on an objection to the affidavit to hold to bail, in which it was

pay in not s of the Bank of England" excludes the possibility of any other person having tendered for him, and sufficiently complies with 37 Gro. 6.45.8.9.

fworn

" no order to

WYATT

SMEL.

1

sworn that “no tender was made by the said J. Smee to pay in 1798.
“ notes of the Bank (a) of England,whereas it should have been
sworn generally that no tender was made; for though J. Smee
might have made no such tender, yet it might have been made
by some other person for him, consistently with the affidavit.

BULLER J. If any other person had made an offer for the
Defendant, it would have been an offer by the Defendant.
Le Blanc took nothing by his motion.
(1) Vid. 37 Geo. 3.6. 45. 8. 9.

Nov. 26tli.
8 Term Rep:
275. 552. where
this judgment is
reversed by B.R.

3 Bof.6 Pull. Bell and Others v. Gilson.

200.

15 Eaft, 6. TI This was an action on a policy of assurance underwritten If the name of

by the Defendant on the 8th December 1797, for 200l., on fecting a policy goods shipped on board the Elizabeth, Captain Spewce, from of insurance be

.inserted in the Rotterdam to Hull, at a premium of two guineas and a half per

policy as“ agent," cent. The first count of the declaration stated that the Plain- it is a fufficient tiffs caused to be made the policy of assurance, purporting there the place with by and containing therein that Barrett and Co. agents, the names 6.56. Goods, of Barrett and Co. being the usual style and firm of dealing of Holland, purthe persons residing in Great Britain, who received the order chased in that for and effected the said policy of assurance, as well in their country during own names, as for and in the name and names of all and every tween Holland other person or persons to whom the same did, might, or should tain, by a British appertain, in part or in all, did make assurance, &c.; and the agent resident

there and Mipped said first count averred the interest to be in the Plaintiffs, and for that the insurance was made on their account, and for their use jects, were inand benefit; that the ship failed on the voyage insured with the in this country: goods on board, and that in the course of that voyage she was held, that this

was a legal insu.

loft. captured by the French, and the goods and the voyage There were also counts for money had and received, and money paid. The Defendant pleaded the general issue non assumpfit, on which iffue was joined; and paid the premium into court on the count for money had and received.

This cause came on to be tried by a special jury at the last fitting in Trinity term at Guildhall, before Eyre Ch. J., when a verdict was found for the Plaintiffs for 1941. 155., subject to the opinion of the Court on the following cafe :

The Plaintiffs, being British merchants resident in London, gave orders to Messrs. Barrett and Co. insurance-brokers (also resident

rance,

1798.

BELL

GILSON.

in London) to effect the policy in question, who as brokers effected the same in their own name and usual firm of Barrett and Co., describing themselves therein agents. The ship Elizabeth was a neutral vessel belonging to H. Bauerman and Son, of Greetfyl and Embden in Prussia, bound on the voyage insured from Rotterdam to Hull, on which she sailed, and was captured as stated in the declaration; and the Plaintiffs had goods on board her for the voyage insured of greater value than the amount insured. The said goods, consisting of fixty casks of madders, were purchased for the Plaintiffs, and on their account, at Rotterdam, by Robert Twiss their agent refident there. When the goods were purchased on the Plaintiff's account, and also at the time of the shipping and capture thereof, and when the said insurance was made, open hoftilities had commenced and then existed between Great Britain and the persons exercising the powers of government in the United States. During all that time it was and is the constant practice to enter goods at the Custom-house direct from Holland, and was never impeded, though the officer at the Custom-house knew whence they came, as he always inquired whether they were aliens or neutrals, on account of the alien duty.

The questions for the opinion of the Court were, ift, Whether the name of Barrett and Co. agents, inserted in the policy, were a sufficient compliance with the stat. 28 Geo.3. C.56.? 2dly, Whether the said insurance on the said goods were legal ?

Heywood Serjt. for the Plaintiffs. The first question in thiscase is, whether this policy, effected in the name of Barrett and Co. as agents, has fufficiently complied with 28 Geo. 3. c.56.? As this point, however, has been decided in the course of this term, not only in this court(a), but also in the court of King's Bench (b), I shall leave it without any further argument, and pass to the second question, viz. whether an insurance on goods purchased by

316.

(a) Wolf and Others v. Horncastle, ante, us and effected the said assurance.” la

terest in the Plaintiff was averred. A ver(6) The following was the cafe alluded to: diet was found for the l’laintiff, and a rule

De Vignier v. Swanson, B.R. Nov. 16th. nisi for a nonsuit obtained, on an objection Action on a policy of assurance effected in to the form of the policy as not sufficiently the name of Grandclos Mesle and Co., who complying with the 28 Geo. 3. 6.56. because were brokers to the Plaintiff, and alio agents effected in the name of Grandclos and Co.g to her in several money tranfactions. The without ftating them to be agents.

This Plaintiff, as well as Grandelos and Co., re- point was to have been argued this day, but fided in London. The lat:er were not called Lord Kengon said he was furprised to find agents in the policy, but in the declaration the rule had been drawn up, as there was were stated to be the persons residing in nothing in the case. Accordingly the rule, " Great Britain who received the order for without argument, was discharged.

a British

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a British subject in an enemy's country, and shipped for this
country on his own account in a neutral vessel, be legal ? Sup-
pose the property in difpute to have belonged to the Plaintiff
before the commencement of the present war, will it be con-
tended that in such case he would be precluded from bringing
it home? Whatever may be the objection to allowing British
subjects to export goods, on the ground of such exportation
being of assistance to the enemy, there is no policy which for-
bids him to bring goods from thence, as that tends to distress
the enemy. It is not laid down as a general proposition in
Grotius, Puffendorff, or Vattel, that commerce is prohibited
between powers at war. There may be ordinances of particu-
lar countries to this effect, such as that of Barcelona (a), of the
year 1484, cited in Bristow v. Towers, 6 T. R.45., and though
Valin, tom. 2. p. 31., fays, that every declaration of war contains
a prohibition of commerce, yet it appears from the next para-
graph, p. 32., in which he relies on the ordinances of France of
the years 1543, art. 42. and 1584, art. 69., that his observation
must be confined to the law of his own nation: and this is con-
firmed by a passage in Emerigon, Traité des Asurances, tom. I.
p. 128., from which it appears that the declarations of war
iflued by the Kings of France always contained an express pro-
hibition of commerce with the enemy. Indeed if the decla-
rations of war issued by this country had usually contained the
fame prohibition, it would not affect this case, since the pre-
fent war with Holland commenced under a proclamation for
general reprisals only. With respect to the law of England,
Lord Mansfield, in Gist v. Mafon, 1 T. R. 85., said, that he
knew of two cases only in which a subject had been prohibited
from trading with the enemy. The firft of those cases (viz.
2 Roll. Abr. 173. Prerogative (L), Guerre, where trading with
Scotland, then in a general ftate of enmity with this kingdom,
was held illegal) goes much farther than this, for the party
there not only bought of the enemy, but fold to him: and the
second was a case of corn carried by a subject of this country to
the enemy; now corn is clearly a contraband article in time of
war; for, though the commencement of hoftilities does not
create a prohibition of all commerce with enemies, yet it does of
such commerce as may be the means of affording them assistance.
[Heath J. In the case in Roll. Abr. the keepers of the truce per-
mitted two persons to go into Scotland, which was clearly illegal in
(a) See also Ordn. of Stockholm 2. Mag. 257. No, 1028.

them,

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1798.

BELL

GILSON.

them, for by so doing they exceeded their authority, as information might thereby have been given to the enemy. The second cafe cited by Lord Mansfield happened in the time of famine (a), and probably a proclamation had issued prohibiting the exportation of corn (6).] In Henkle v. The Royal Exchange Assurance Company, 1 Vez. 320. Lord Hardwicke observed that it might be going too far to say that all trading with enemies is unlawful. With respect to the cases of Brandon v. Nesbitt, 6 T.R. 23. and Bristow v. Towers, 6 T. R. 35., it is sufficient to say that the actions in those cases were brought in favour of alien enemies: and it is clear that the decisions proceeded only on the ground of a disability in the Plaintiffs at the time of the action brought, since Lord Kenyon in Brandon v. Nesbitt, when commenting on the case of Ricord v. Bettingham, 3 Burr. 1734, and 1 Bl. 563. S.C., where it was held that an action by an enemy might be maintained on a ransom bill, observed that the action there was not brought until peace was restored. It is certain that the Legislature of this country has not considered hostilities as amounting to a general prohibition of importing articles from the enemy's country, since it has been thought necessary in every war from the reign of Charles the Second to this time, to pass acts of parliament (c) for prohibiting or regulating the importation of particular articles during particular periods, which would not have been requisite if such trade had been already prohibited in toto and for ever.

Williams Serjt. for the Defendant. ift, The case of De Vignier v. Swanson is distinguishable from this, Gince the brokers who effected the policy there were the general agents of the Plaintiff, whereas here Barret and Co. were only employed in this particular transaction; the same observation will apply to Wolff v. Horncastle, where that fact was much relied on by the Court. A mere broker is not within the words of the 28 Geo. 3., for he is neither the person interested, the confignor, the consignee, the person giving the order for insurance, northe person receiving it from those who are interested. By the expression “as agents,” used in this policy, the underwriter has been deceived, since he may have been led to suppose that Barrett and Co. were the gene

(e) This appears from Park's Infur. 238. the principle of Delmadav. Motteux, Pari's which is founded on the manuscript note Infur. 234. of Gist v. Mafon, cited in the margin of (c) See these acts collected in the arguthe fame book, p. 242. a.

ment of Bristow v. Towers, 6 T. R. 40, 1, (6) Which would bring the case within 2, 3, 4.

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