ral agents of the Plaintiffs, which they do not appear to have been. 2dly, The fuppofition of this property having belonged to the Plaintiff before the commencement of the war, is excluded by the cafe. It is established by Briftow v. Towers that the infurance of enemies property is illegal; and though the judgment in that cafe appears to have been given with reference to Brandon v. Nesbitt, yet they were different; for as there was a plea of alien enemy in the one and not in the other, we muft conclude that Bristow v. Towers was decided on the illegality of the trade. With refpect to the policy of the queftion, this cafe is ftronger than the two above-mentioned decifions; for if it be not lawful for an enemy to spend his money here to the advantage of this country, it certainly cannot be lawful for a British fubject to enrich the enemy by purchafing his goods. By the cafe in 2 Roll. Abr. 173. Prerogative (L), Guerre, it distinctly appears that it is illegal for an Englishman to traffic in the enemy's country. The commencement of hoftilities puts an end to all amity and commerce (a). If this neutral veffel had been captured by an English fhip of war, though the veffel would have been restored to the owners, it is clear, both from the general practice of the Court of Admiralty, and from the exprefs decifion by the Lords Commiffioners of Appeal, in the Louifa Margaretha, Henflop, 3d April 1781, that the goods would have been condemned as lawful prize. (b) (a) Bynk. Quaf. Jurif. Pub. lib. 1. c. 3. P. 197. fol. ed. 1767. (6) John Kirkpatrick Efcott of London, Claimant and pellant, against Henry Smedley, Captor and Refpondent. (See printed Proceedings in the Court of Appeal, from which the following statement is abridged.) Kirkpatrick, Efcott, and Reed, of London, for many years previous to the commencement of hottilities between Great Britain and Spain, in 1779, traded to Malaga, and had an established house there: at which place Efcott, one of the partners, refided, till within ten months previous to the war. On his leaving Malaga confiderable quantities of wine and other merchandize belonging to the house, and depofited in vaults and warehoutes fet apart for the fame, were left in the hands of one Henry Grivegnee, a Fleming by birth, and brought up in the houfe, who was fuffered to remain at Malaga as agent for the partners, for the purpofe of preferving the wines for them during hoftilities, with directions to remit them to Heywood London if a favourable opportunity should The 1798. BELL V. GILSON. [ 350 ] Heywood in reply. The cafes of Brandon v. Nesbitt and Bristow v. Towers must both be confidered as having proceeded The ship fet fail on the 11th of April from Malaga, but being obliged to put back, Grivegnee, before he could fail again, received a letter from the partnership, order. ing him to fend the fhip direct to London, under the expectation of her being protected by the Levant bill [1] then pending in parliament. She accordingly failed direct for London on the 21st April; and on the 15th May was, captured by a Britif privateer near the English coaft. On the 1st June 1780 the Court of Admiralty, by confent of the parties, restored the fhip, referving the adjudication of the cargo; but on the 8th Julyfollowing condemned it as lawful prize. From this determination there was an appeal to the Lords Commiflioners. Reasons for the Appellant. ft, For that it is fufficiently proved that the goods claimed were at the shipping and capture thereof the fole property of Meffrs. Kirkpatrick and Co. British subjects, who had no other means of conveying them with fafety from Spain. 2d, For that the order of Council fufpending the Dutch treaty bears date the 17th April 1780, and the fhip laft failed from Malaga the 21ft of the fame month, fo that it was impoffible for Meffrs. Kirkpatrick and Co. to have countermanded the voyage, and that undoubtedly Mr. Grivegnee had reckoned on the peculiar privileges enjoyed by the States General of the United Provinces refpecting their trade and navigation in time of war, and it is fubmitted that the Judge of the Admiralty Court has conftrued the fufpenfion directed by the faid order of Council as referring to the times and places of capture; whereas, as is alfo fubmitted, that reference was intended to be had at the time of the ship's departure from the ports of loading; for that otherwife the avowed object of delay in the fuf-penfion by the said order, to wit, from a regard to the intereft of individuals, and a defire to prevent their suffering by any furprife, would not be answered, inasmuch as it is impoffible (as was the cafe in the pre fent voyage) to direct the alteration of the voyage, which had been already begun. on 3d, For that the Levant trade bill (which paffed previous to the arrival of this ship in England authorized the importation of fuch goods direct from the Mediterranean in neutral ships; and that this was the intention of the Legislature in paffing this act is manifeft, inasmuch as the act, which was not paffed till the month of June 1780, lad retrofpect to the 1ft of the preceding Fanuary, in order to comprehend many cargoes, the produce of Spain, within the Streights of Gibraltar, (which, in expectation that the act would have paffed fooner than it did,) had been imported by British subjects in foreign veffels, (and in every refpećt under the fame circumstances with this cargo,) and depofited by an order of the Lords of the Treafury in the King's warehouses, on bond that they should be either re-exported in a limited time, if the act should not pass, or pay the duties if it should; and when the act had paffed, they were admitted to an entry accordingly; and fince that period the produce of Malaga, and other ports of Spain within the Mediterranean, has continued to be imported directly from the places of their growth, in foreign veffels, in virtue, as is understood, of the said Levant trade bill. Reasons for the Refpondent. ift,Because after actual hoftilities between two ftates, and the iffuing of letters of general reprisals, all trade and intercourse between the fubjects of thofe ates is illegal, even though no express profbition of trade fhould be iffued, because every fubject is by virtue of his allegiance obliged to affift his King and diftrefs the enemy to the utmost of his abilities, and not to aid or affiit them either by trade or otherwise. 2d, Because if British merchants were permitted in time of war to import goods into this kingdom immediately from and the produce of the territories of the enemy, under a pretence that the articles imported were fuch as were their property and depofited in their warehouses prior to hoftilities, it would operate to a very alarming degree; their warehoufes might be conftantly fupplied by their agents during the whole war, and a continual and extenfive trade might [1] 20 Geo. 3. 6. 45. be on the fame principle, viz. that an action cannot be maintained in favour of an alien enemy: that having been exprefsly ftated as the ground of the former decifion, and the Court having profeffed in the latter cafe to be governed by the authority of the former. The cafe cited from the Cockpit may have been determined on two grounds very different from thofe on which this cafe refts. Ift, The goods at the time of the capture might have been confidered as belonging to perfons inhabiting in Spain: for though the Plaintiffs themselves were refident in London, they had a partner (a) refident at Malaga, where the houfe of bufinefs was continued. Which brings the cafe within the command of the proclamation for reprifals, "to feize the goods of all perfons inhabiting within the enemy's state." 2dly, As the bills of lading were made out to Oftend, which was not the real port of discharge, the documents were fraudulent. With refpect to the policy of allowing the trade in queftion, fince it is ftated in the cafe to be ufual for the Cuftomhoufe to permit goods to be imported under circumstances fimilar to the present, this fort of trade is at least allowed by the Government of the country, who must be prefumed to be the best judges of the mere policy. 66 BULLER J. (after ftating the cafe). On this cafe two questions have been raised; 1ft, whether the policy which is described to have been made by Barrett and Co. as agents fufficiently com be carried on, to the very great benefit and fupport of the enemy. 3d, Because in this cafe, befides the wines claimed by the appellant, as having been his property, and depofited in his warehoufes in Spain prior to hoftilities, there is a confiderable quantity of other goods claimed by him as his property, and as having been bought in Spain by his orders fince the commencement of hoftilities; which avowal of a trade fo repugnant to his duty as a Britifb fubject will, it is hoped, not only warrant the fentence of condemnation of the property claimed, but subject the claimant to exemplary cofts. 4th, Because the Levant act, on which Mr. Efcott the appellant, feems in a great measure to reft his caufe, is not applicable to the present cafe, fuch act being calculated only to permit an importation into Great Britain from neutral ports, and in neutral bottoms, of fuch goods as could not before have been imported in any other than Britifb fhips, but not to give any countenance or warrant to the subjects of Great Britain to carry on a trade directly or indirectly On the 23d April 1781 the Lords Com- See also the cafe of the Saint Elizabeth, (a) Quære tamen. See the case fuprà. 1798. BELL ข. GILSON. [ 352 ] 1798. BELL V. GILSON. plies with the 28 G. 3.? I think this question ought now at least to be quite at reft, two decifions having been already made upon this fubject within the term; one in this court, and one in the King's Bench; both of which are directly in point. It may be material to remember, that previous to the paffing of the 25 and 28 G. 3. many objections were made by the merchants, that policies in their frames were fo loofe and incorrect, that an underwriter had no opportunity of knowing the nature of the thing infüred, or who the perfons were for whom he infured. Great inconvenience arofe, as appears by the preamble of one of the ftatutes (a), from the circumftance of many policies being made in blank, in confequence of which the underwriters were not led to the knowledge of any of the parties. I remember it was the converfation both in Westminster-hall and out of that place, that the underwriters wanted to know the name of fomebody concerned, though it was not fo material who that perfon fhould be. And why was this? It was because though they might not know the name of the principal, yet if they were in poffeffion of the name of the perfon who brought forward the policy, they might have fome confidence, that if that perfon was a merchant of character, or a refpectable broker, he would not be engaged in a dishoneft tranfaction: fuch as I remember to have been not unfrequent in the courfe of laft war; viz. the infurance of fhips and cargoes, which were only carried out for the purpose of being funk. In this cafe the wish of the underwriters has been complied with, as well as what the Legislature thought fit to direct; for the name of the perfon immediately employed to effect the policy has been inferted. The cafe in the King's Bench goes farther than this, for there it was not even stated in the policy that the parties were agents, but only averred in the declaration that they were fo; whereas here it is exprefsly faid in the policy that Barrett and Co. effected the policy "as agents," by which is imported that they acted not on their own account, but on the part of fomebody for whom they were concerned. The fecond queftion is, whether this policy on goods being English property, purchased fince the (a) 25 Geo. 3. c. 44. Whereas it hath been found by experience that the making or effecting infurances on thips or veffels, and on goods, merchandizes, and effects in blank, and without fpecifying therein the name or names of any perfon or perfons for whofe ufe and benefit, and on whofe account fuch infurances are made and effected, hath been in many refpects mischievous, and productive of great inconveniences, for remedy whereof, be it enacted, &. com Commencement of hoftilities, and fhipped at Rotterdam, be legal or not? Now, in the first place, I take it to be extremely clear, that this is not an infurance on enemy's property, and that we have nothing to do with that confideration here. Let us fee what the cafe does ftate. It ftates that the goods were purchafed for the Plaintiff at Rotterdam by his agent. But whofe goods they were before they were fo purchased is not mentioned. They might have been the property of Danes or Swedes, and then no objection could be made: or they might have been the property of an Englishman; for it appears by the cafe, that the Plaintiff's agent in Holland was an Englishman; and if an Englishman could buy goods in Holland, why could not an Englishman alfo fell goods there; and if these goods were bought of an Englishman, it is perfectly immaterial whether they were purchafed in England or in Holland. I cannot diftinguish this from the cafe put by my Brother Heywood. Suppofe an Englishman, at the commencement of hoftilities, to have goods in an enemy's country; may he not bring them away? In fuch cafes a time is generally limited for the fubjects of the ftate against which hoftilities are commenced, to leave the country; and will it be faid, that during that time, they may not carry away their goods? But I will go one step further. I will fuppofe that the party has ftolen these goods; and that being in poffeffion of them at the time of the policy made, he wants to bring them home. The underwriter will have no right to go into the ftate of the property previous to the time when he infured. Suppofe certain requifites to have been neceffary, by the law of Holland, to make a good fale in Holland, fhall the underwriter fay that the goods were not fold according to the law of Holland? Or if they were feized by a pirate, and fold by him to the Plaintiff, fhall the underwriter fet up that as a defence? Thefe cafes are too monftrous to bear confideration. What is the nature of the contract of infurance? It proceeds on this ground, that a party being poffeffed of goods which he wifhes to bring home, defires to divide the rifk with other per fons. Whether the goods were improperly fold to him or not, provided he has paid the value, he is interefted to the amount of them and fhall he not infure them? The underwriter cannot be permitted to go beyond the time when the goods were shipped. It has however been contended, that the subjects of this realm fhall not bring home their own property from an enemy's country. Nothing but pofitive authority would warrant the VOL. 1. Court 1798. BILL บ. GILSON |