begun de novo by the new representative. As the suit in Equity does not abate upon the return of the executor I think we are warranted in saying that it continues until the appointment of a new representative notwithstanding the death of the executor. If this construction be not put upon the act great inconvenience may ensue. Suppose the executor to die in India and no intelligence to arrive in England of his death till six months afterwards; if all the intermediate acts of the special administrator are to be set aside great confusion will follow. I am therefore of opinion that the authority of the Plaintiff, though it became voidable by the death of the executor, was not rendered actually void.

་

CHAMBREJ. I entirely concur with my Brother Rooke in thinking that the plea is bad, and that the Plaintiff is entitled to judgment, and I will add that I have no great difficulty in form→ ing this opinion. This act of Parliament was certainly made for very beneficial purposes, but many of its provisions have been framed with a very short-sighted view of legal consequences of this I could point out many instances, but it is not necessary in the present case. The special administration in the present case has been compared to other limited administrations; which however appear to me to be of a very different sort. Where adminis tration is granted durante absentiâ, or durante minoritate, it expires by the terms of the authority upon the executor returning or coming of age and if we could find that the Legislature had prescribed any express limitation in the present instance by the terms in which the authority is directed to be granted, we should be bound to abide by the expressions of the statute. But I think that the intention of the Legislature was not to limit the autho rity to the return or death of the executor: and certainly I am not inclined by argument from analogy to narrow the beneficial effects of this act, but on the contrary where the construction is doubtful I should rather be disposed to enlarge them. Great inės convenience might arise from the construction contended for by the Defendant. And though, when all the parties are resident in: England, these inconveniences may be easily remedied by taking out administration, yet other cases might give rise to great em-G barrassment, and the present affords a striking instance of this sort. It is said that Johnstone Hannay died in India, but under * what circumstances, and whether he left a will and appointed an executor, does not appear. Till these circumstances can be ascertained,

VOL. III.

D

ascertained, and the will of the deceased executor proved, or ad-
ministration to the original testator taken out, all proceedings to.
do justice to the creditors must be suspended, and two years may
elapse before any thing can be done. This is a limited adminis-
tration, and the nature of the limitation must be collected from
the form of the letters of administration which the act prescribes.
Now the letters take no notice of the Courts of Law, but direct
that the party shall be administrator for the purpose of becoming
a party to a suit in equity and of carrying the decree in that
suit into effect, and no further or otherwise. The authority is
limited and strictly limited. The party therefore is not a gene-
ral administrator of the effects, but is only an administrator for
the purposes of the suit in equity: yet being created by the act
administrator for the purposes of the suit he is administrator dur-
ing the suit, and is to do every thing necessary to give effect to
the suit. Then what has the Court of Equity directed him to
do? The declaration says that he is appointed to collect and
get in the outstanding debts, which implies an authority to bring
actions for them, and that authority he has exercised in bringing
the present action. This construction appears to me to be strictly
warranted by the latter part of the fifth section, which, looking
to the arrival of the executor and regarding the special adminis-
trator not as a substitute for the executor to all intents, but
merely for the purposes of the suit, does not suppose that such
arrival would absolutely supersede his authority, but directs that
the executor shall be made a party to the suit in equity upon
which the authority of the administrator would cease. And
though no provision is made in this section in case of the denth
of the executor, yet I should think that upon his death without
a will, if any person should take out a general administration as
next of kin to the original testator, or in case of his having
made a will and that will being proved by any person capable
of acting as executor, such administrator or executor might ap-
ply to be made a party to the suit in equity, and it would be
matter of course for the Court of Equity to put an end to the
authority of the special administrator. But though I think that
a Court of Equity under these circumstances would be autho
rised by analogy to adopt this line of conduct, it is unnecessary
for me to give an express opinion upon that point. I take it to
be clear that the Plaintiff must be considered as administrator
during the continuance of the suit in Equity, until some act has

been

been done either by the Court of Chancery or the Ecclesiastical Court to determine his authority. In this case nothing has been done. Under these circumstances therefore I am of opinion that the authority of the Plaintiff remains, and that judgment ought to be given in his favour.

Judgment for the Plaintiff.

MORCK and Another v. ABEL.

THIS was an action on a policy of insurance effected on the 26th July 1797 on goods on board the Juliana Maria, warranted Danish ship and property," at and from Bengal and all and every port or place wheresoever and whatsoever, as well on the other side as at and on this side the Cape of Good Hope, in port and at sea, in all places and at all times, with liberty to touch, stay, and trade, load and unload and reload, at all and any of the said ports and places, until the ship's arrival at Copenhagen." The declaration alleged that the cargo was put on board at Calcutta in Bengal, that the Plaintiffs were interested, and that the ship and cargo were afterwards captured" by certain then enemies of our Lord the King."

The cause was tried before Lord Alvanley Ch. J. at the Guildhall Sittings after last Michaelmas Term, when it appeared that the Plaintiffs were subjects of Denmark and resident in Copenhagen, and the ship Juliana Maria a Danish ship; that the cargo which was the subject of the present insurance was taken on board at Calcutta on the 5th March 1797; and that the ship and cargo on the voyage from Calcutta to Copenhagen were captured by the French and condemned as prize. An objection was taken to the Plaintiff's recovery on the ground of its being illegal under the provisions of the 12 Car. 2. c. 18. s. 1. to export goods from Calcutta in any ship not belonging to a British subject: and this objection prevailing the Plaintiffs then insisted that if the exportation from Calcutta were illegal, the risk never commenced, and that the Plaintiffs therefore were entitled to a return of premium. The Jury were directed by his Lordship to find a verdict for the Plaintiffs, liberty being reserved to the Defendant to move that such verdict might be set aside and a nonsuit be entered.

Accordingly a rule nisi for that purpose having been obtained, Shepherd and Best Serjts. now shewed cause. Admitting the prin

Vide Lubbock v. Potts, 7 East, 449, 456. Chalmers v Bell, post. 604. Shiffner v. Gordon, 12 East, 296. Cowie v. Barber, 4 M. & S. 17. Hentig v. Stuniforth, 5 M. & S. 122. Stringer v. Murray, 2 B. & A, 248, 256. Bate v. Cartwright, 7 Price

1. the Court

held that the assured was

not entitled to recover back the premium: even though it appeared that

the practice of loading foreign ships at Cal

cutta had prevailed for a length of time, authorised by act of Parlia

and had been

ment soon after the shipment in question.*

1802.

MORCK and Another

บ.

ABEL.

ciple laid down in Vandyck v. Hewitt, 1 East, 96. that where a policy is effected to insure a trading with an enemy, the contract is such a complete violation of the general law of the country, that the assured cannot recover back his premium, still that principle cannot govern the present case. The loading the cargo insured at Calcutta by the Plaintiffs was merely a violation of a particular law, to which though the British subject is bound to pay implicit obedience, yet, as against a foreigner, a knowledge of that law cannot be implied so as to subject him to the same penalties for the disobedience of the law which a British subject would incur. Now the policy in the present case being effected in favour of a Danish subject and being contrary to the munici pal law not of his own country but of Great Britain, is certainly not an immoral contract: for though it be immoral in the subject of any state to violate the laws of his own state, yet it is not immoral in him to violate the local regulations of another state. In Vandyck v. Hewitt Lord Kenyon observes, "there is no distinguishing this case in principle from the common case of a smuggling transaction: where the vendor assists the vendee in running the goods to evade the laws of the country he cannot recover the goods themselves or the value of them," Undoubtedly that position is completely established by the cases of Clugas v. Penaluna, 4 Term Rep. 466. and Weymel v. Read, 5 Term Rep. 599. But it is to be observed that the principle on which those decisions in part proceeded was, that where a foreigner assists in the attempt to evade the British laws, as by packing the goods in a manner convenient for smuggling, he thereby evidences his knowledge of the law which he violates, and cannot therefore avail himself of the plea of ignorance to which the present Plaintiffs are entitled. If there be any case in which the Court will presume a party ignorant of the law which he has violated for the purpose of enabling him to recover, they may do so in this: for it may well be presumed that the Plaintiffs were not aware that it was unlawful to export in any other than a British ship, since previous to the shipment in question, such a practice had prevailed and been encouraged: so much so that on the 19th of July 1797, only four months after this cargo was taken on board, the 37 Geo. 3. c. 117. was passed, which after reciting the expediency of allowing ships belonging to states in amity with this [37] country to bring goods from India, removed under certain restrictions the prohibition imposed by the navigation act.

་

Vaughan

Vaughan Serjt. contrà. In Howson v. Howson, 8 Term Rep. 577. Lord Kenyon says, "there is no case to be found where when money has been actually paid by one of two parties to the other on an illegal contract, both being participes criminis, an action has been maintained to recover it back again." His Lordship adds, "here the money was not paid on an immoral, though an illegal consideration: and though the law would not have enforced the payment of it yet having been paid it is not against conscience for the Defendant to retain it." If the proposition laid down by Lord Kenyon be true where both parties are participes criminis, surely it will apply with double force to the present case where the Plaintiff is the sole offending party; for this policy being general from Bengal, where the Danes have settlements, to Copenhagen, was not illegal when effected, though the subsequent illegal act of loading from Calcutta has deprived the Plaintiff of his right to recover. The case of Vandyck v. Hewitt has been distinguished on the ground of the Plaintiffs in that case having violated the general law of the country, whereas the present Plaintiffs have, it is said, offended against a mere municipal regulation. But the act of navigation, which was in fact passed against foreigners, and has formed so essential a groundwork of our naval strength, can hardly be deemed a mere municipal regulation, or wholly unknown to foreigners. It is to be observed that the present Plaintiffs never claimed the return of premium until they had failed in their demand for a total loss; the risk therefore was run before the contract was attempted to be rescinded, and the distinction sometimes taken between contracts executory and executed will not help the Plaintiffs claim. The cases of Lowry v. Bourdieu, Doug. 468. and Andrée v. Fletcher, 3 Term Rep. 266. are decisive to shew that the Plaintiffs are not entitled to recover; for in both those cases the policies being illegal and the risk been run the assured were not allowed to recover the premium.

Lord ALVANLEY Ch. J. Unfortunately this policy was effected previous to the passing of the 37 Geo. 3.; and though I believe that before the passing of that statute the provisions of the navigation laws had been relaxed in practice with respect to foreigners, still in a Court of Law the Plaintiffs are not entitled to recover if the trading in question contravened the regulations of that act. The point however upon which this case comes before the

1802.

MORCK and Another

ABEL.

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