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insurance, as he stands in the place of an insurer,(p) so he is entitled to any defence which an insurer could have made: for if nothing could have been recovered upon the policy, no actual damage has been sustained by default of it.(A) The plaintiff therefore in such an action must recover according to his inte[*20] rest,(q) which, as well as the *loss, he must establish in proof: and the defendant may avail himself of a deviation in the voyage ;(r) or the illegality of the intended insurance ;(s) or any other defence of the like nature. And if the policy, being illegal, could not in point of law

been paid, the law will not enable the party to recover it back, because it has been paid in discharge of a moral obligation. But, if a party undertaking to do a thing, does it so ill, that the other party suffers an injury thereby, there, the law will, in many cases, allow the injured party to recover a compensation to the extent of the injury. In respect, therefore, to gratuitous contracts, lying in feasance, such as mandates, the party may escape all responsibility by a simple refusal to do the act promised. This distinction has been long settled in our law upon principles of general policy; and although it may seem somewhat artificial, it is probably well founded in public convenience. It is generally true, in gratuitous contracts, that for non-feasance, even when the party suffers a damage thereby, no action lies; but for mis-feasance an action will lie." Story on Bailm. § 9 ; ante, p. 6; post, pp. 76, 77.||

(p) Ante, p. 18.||

(A) The case of re-assurance, seems to present an analogy; New York State Marine Ins. Co. v. Protection Ins. Co. 1 Story's Rep. 458-460.||

(q) Harding v. Carter, Park, 4; Delaney v. Stodart, 1 T. R. 24.

(r) Delaney v. Stodart, 1 T. R. 22.

(s) Webster v. De Tastet, 7 T. R. 157. In that case, the object of the insurance was a bonus to be paid to a seaman at the end of a voyage, which is not an insurable benefit. See ante, p. 8, n. (d), || 18 n. (1), where the case of De Tastet v. Crousillat, is cited: among the facts of which case is the following; that in consequence of a certain decision of the Court of K. B., declaring that policies made in England upon foreign vessels, seized as prize by any of his majesty's privateers, and condemned, were absolutely void; it had become a practice, in many instances, for the underwriters in London to execute a policy in common form, and to give a separate engagement, which they considered binding on their honor, to pay the losses in cases of captures and condemnations, whether by English cruizers or others.||

have been enforced, it makes no difference that in fact such insurances are frequent, and always paid without objection.(t) If the neglect complained of be, that by the noncommunication of a material fact to the underwriters, in making the insurance, the policy was avoided, the agent may make it appear, by way of defence, that the fact, if communicated, would have made it impossible to get insurance at the premium limited in his instructions. Thus a shipowner in London directed a broker at Hull to insure a ship, then on a voyage from London to Hull, limiting the premium to be given, and communicating the day of the ship's sailing from London. The broker effected the policy without any delay, but concealed the day of the ship's departure. Upon that ground, the assured having been nonsuited in an action brought upon the policy, brought another action against the broker for neglecting to make the *proper communication, in [*21] which the latter was permitted to show in his defence, that no insurance could have been made at the limited premium, if the date of the ship's departure had been communicated, that date being such as would have made her be considered a missing ship at the time the order was received.(u)(7)

If the agent do all that is usually done to get the insurance effected, it is sufficient. For he is no insurer, and not bound to procure insurance at all events. (v) Accordingly, where an agent, having ineffectually endeavored to get an insurance at the usual places, was obliged to employ another person, who got it done, but refused to give up the policy, and became insolvent after receiving the money from the underwriters, the first agent was held to

(1) Webster v. De Tastet, 7 T. R. 157.

(u) Anon. cor. Chambre, J. York Summer Ass. 1808.

(7) + The case of an insurance broker is here put as an illustration, for there is no doubt that the same or a like defence would be open to a factor or correspondent who had the charge of goods.4

(v) Smith v. Cologan, 2 T. R. 188, note.

be discharged, for it was not incumbent upon him to bring an action for the detention of the policy.(w) Upon the same principle, if the employer desire to have the insurance made at any certain office, in preference to others, he must express it in his instructions: for under a ge[*22] neral order, an agent is justified in *applying to any of the accustomed and reputed offices, though, from the nature of the commodity to be insured, a greater risk be covered for the same premium by some, than by other offices.(x)

The policy may be effected by the agent in his own name;(a) and it is not necessary that he should be described in it "as agent."(y) It is, however, necessary, if the name of the agent only be inserted, that he should appear in evidence, (and it is usually so averred in the declaration,) to come within one of the following descriptions of the statute 28 Geo. III. c. 56, viz. either the consignee, or the person residing in Great Britain, who shall receive the order for, and effect the insurance; or the party giving the order to the person immediately employed.(z) It is a sufficient compliance with this act, that the name of the broker employed by the consignees to effect the insurance, is inserted in the policy. (a) Also, where upon the refusal of the consignee of a cargo to receive it, a general agent [in this country] of the owner who resided abroad, took upon himself, without any instructions, to insure it in his [*23] own name, which was approved by the owner *upon

(w) Smith v. Cologan, 2 T. R. 188, note.

(x) Moore v. Morgue, Cowp. 479; Comber v. Anderson, 1 Campb. 253. (A) || De Forest v. The Fulton Fire Ins. Co. 1 Hall, 122, 126, 130.||

(y) Bell v. Gilson, 1 B. & P. 346, 19. (Mellish v. Bell, 15 East, 4.)

note; De Vignier v. Sanson, Park, The action upon the policy may be

brought either by the principal or the agent, in his own name. Post, 362.11

(z) 28 Geo. III. c. 56.

(a) Bell v. Gilson, 1 B. & P. 345.

notice of it, the policy was deemed sufficient within this act.(b)(8)

(b) Lucena v. Crawfurd, 2 Bos. & Pul. N. R. 291. As the law antecedent to the statute of 28 Geo. III., the reasons for passing that statute, and its general construction tend materially to explain the statements in the text, the editor extracts the following passage from the 3d volume of Stephens' Nisi Prius, pp. 2094, 5:"Formerly it was customary for the broker to produce the policy in blank to the underwriters, who signed it without seeing more than a short memorandum endorsed on it, and the broker afterwards filled it up at his leisure.

"This practice having been attended with essential mischiefs, induced the legislature to enact statute 25, Geo. 3, c. 44, by which it was directed, that where the insured resided in Great Britain, his name, or that of his agent should be inserted in the policy as the person interested; and where he resided abroad, the name of his agent should be inserted.

"It was adjudged under the foregoing statute to be requisite, that the agent's name should be inserted eo nomine, as agent, and that if the principal were abroad, the agent, in whose name the insurance was made, must be resident in England, (Pray v. Edie, 1 T. R. 313;) and that the names of all the persons interested must be inserted. (Willton v. Reaston, Park on Ins. 20.)

"This state of the law being unsatisfactory, stat. 25, Geo. 3, c. 44, was repealed by stat. 28, Geo. 3, c. 56, by which it was enacted, that no poli cy should be made on any ship or goods without inserting therein the name or names, or the firm of dealing, of one or more of the persons interested in such assurance; or the name of the consignor or consignee, or of the person residing in Great Britain who should receive or give the order for such policy; and that policies made contrary thereto should be void.

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"Upon the construction of this statute it has been holden, that it should not be taken in its strict literal sense, but ought,' as observed by Mr. Justice Buller, (Wolff v. Horncastle, 1 B. & P. 316,) to receive the most liberal construction that the words will bear; and, therefore, if bills of exchange drawn on the consignee of a cargo of goods for the amount of them, be sent, together with bills of lading, by the consignor to his general agent, with directions to deliver the bills of lading to the consignee on his accepting the bills of exchange-and the consignee refuse to receive the goods, or to accept the bills of exchange, the agent becomes in effect the consignee within the meaning of the statute, and may insure the goods as agent for the consignor, or in his own right, if he have accepted bills on the credit of the goods.' (Ibid.”)||

(8) "To make a man an agent in such a case, he must either have express directions from the principal to cause the insurance to be effected, or else it must be a duty, arising from the nature of his correspondence with the principal. And no general authority which he may have in relation to

The policy, when effected, becomes the property of the insured; and, if wrongfully withheld by the agent, an action of trover lies for it. And though no policy had in reality been effected, yet the broker, having represented to his principal that it had, was not allowed, in an action of trover for the policy, to contradict that representation, (although alleged to be made by mistake of his clerk,) in order to let in the objection, that trover could not be maintained for that which had never existed.(c)

SECTION 5.

Where duties are payable upon the importation or exportation of goods, it is the business of the [*24] *factor or agent employed in the receipt or dis

patch of them, to take care that the proper entries are made, and the duties satisfied. For if, by reason of a false or imperfect entry, (a) or by being landed before the customs are paid or compounded,(b) the goods be forfeited, the factor is liable to answer for the loss, (c) unless, indeed, the entry be pursuant to the invoice, or letters of advice. for then it is not his fault.(d)

a ship or goods will make him an agent for the purpose of insuring for the parties interested. Therefore a ship's husband, regularly appointed by deed executed by all the owners, with power to advance, lend, &c. to make all payments, and to retain all claims, &c. has no right to make insurance for all or any of the part owners without a general direction from all, or a particular direction from each." Marsh. Ins. 3d ed. 303.4 || Post, 108.|| (c) Harding v. Carter, Park, 4; + Ticel v. Short, 2 Ves. 229.4 (a) Lewson v. Kirk, Cro. Jac. 255; Cha. Ca. 25.

(b) 4 Bac. Ab. 599, tit. Merchant, B.

(c) Lewson v. Kirk, Cro. Jac. 255.

(d) Moll. 329. The onus probandi in such cases is thrown upon the factor. So, the Supreme Court of Massachusetts held, that a factor in a foreign country, from whom property consigned to him is taken for a breach of the revenue laws of the country, must nevertheless account for the property, unless he can show that in the management of it he conformed to

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