fecond ground of condemnation is given up by the counfel; and the remaining question is, whether the captain has been guilty of fuch a breach of neutrality, as should affect the owners. If a fhip be neutral, and fhe be stopped, thofe, who ftop her, muft pay for the detention. But it is faid, she must stop to be searched. I find no authority for fuch a pofition. Befides, the circumstances are very fufpicious. The captain seems to have acted properly. Stoppage is always at the peril of the captors. Mr. Juftice Afbburft.-I take the principle laid down at the bar to be true, that a ship, warranted neutral, must conduct herself so, as not to forfeit her neutrality. But the facts of this cafe do not admit of the application. I do not find, that a neutral ship muft fubmit to be fearched. It is rather an act of fuperior force, always refifted when the party is able; and the right falls within this position, that the fearcher does it at his peril. If he find any thing contraband, or the property of an enemy, he is juftified: if not, he pays cofts. Is there any thing to justify the fearch in this cafe? Certainly not, for the cargo was neutral. Mr. Juftice Buller.-It is not neceffary to give an opinion as to barratry; but I take it to mean a wilful act of the captain to the injury of the owners. This would have been barratry, if it had been an act, which forfeits the neutrality. I do not agree that the property must continue Vide fupra. neutral during the whole voyage. If it be neutral at the time of failing, it is fufficient; and if a war break out next day, the underwriter is liable. The answer given to the claim of fearch is conclufive, that the party does it at his peril; just like the cafe of Cuftom-houfe officers. The practice of the Admiralty. confirms it; for they give cofts in cafes of improper detention: which they would not do, if neutral fhips were, at all events, liable to be stopt. Detention, by particular ordinances, which do not form a part po part of the law of nations, is a risk within the licy. At first I compared this cafe in my own mind to that of an illegal voyage; but they are no way fimilar; for a fhip is only bound to take notice of the laws of the country fhe fails from, and of that to which fhe fails; but not the particular ordinances of other powers. Judgment was accordingly given for the plaintiff. Thefe are all the cafes, which have been decided, relative to the judgments of foreign courts being conclufive, and the effects which they have upon the contract of infurance; and from all of them, it should seem, that this general doctrine may be collected: That wherever the ground of the fentence is manifeft, and it appears to have proceeded exprefsly upon the point in iffue between the parties; or wherever the fentence is general, and no fpecial ground is ftated, there it fhall be conclufive and binding, and the courts here will not take upon themselves, in a collateral way, to review the proceedings of a forum, having competent jurifdi&tion of the fubject matter. But if the fentence be fo ambiguous and doubtful, that it is difficult to fay on what ground the decifion turned; or if there be colour to fuppofe, that the court abroad proceeded upon matter not relevant to the matter in iffue; there evidence will be allowed in order to explain. And if the fentence upon the face of it be manifeftly against law and juftice, or be contradictory, the infured fhall not be deprived of his indemnity; because, to use the words of Mr. Justice Buller, any detention, by particular ordinances or decrees, which contravene, or do not form a part of the law of nations, is a risk within a policy of infurance. CHAPTER THE NINETEENTH. HA Of Return of Premium. TAVING in feveral chapters fpoken fully of the various cafes, in which policies of infurance are either abfolutely void, or are rendered of no effect by the failure of the infured in the performance of fome of thofe conditions, which he had taken upon himself: the next object of our enquiry will be, in what cafes, and under what circumftances, there fhall be a return of premium. 1.2. c. 5. f. 8. it happen În all countries, in which insurances have been known, it has been a custom, coeval with the contract itself, that where property has been inLoccenius de fured to a larger amount than the real value, the jure marit. infurer fhall return the overplus premium: or if it happen that goods are infured to come in certain fhips from abroad, but are not in fact fhipped, the premium fhall be returned. If the fhip be arrived, before the policy is made, the infured being ignorant of it, he is entitled to have his premium reftored. The parties themfelves frequently infert claufes in the policy, ftating, that upon the happening of a certain Dougl. 255. event, there fhall be a return of premium. These claufes have a binding operation upon the parties; and the conftruction of them is a matter 1 Mag. 90. Farquharfon v. Raym at Guildhall. for the court, and not for the jury, to determine. 1 Vezey 3:5. In fhort, if the fhip, or property infured, was never brought within the terms of the written contract, fo that the infurer never has run any rifk, the premium must be returned. Pothier n. 179. The principle, upon which the whole of this docrine depends, is fimple and plain, admitting of no doubt or ambiguity. The rifk or peril is the confideration for which the premium is to be paid: if the rifk be not run, the confideration for the premium fails; and equity implies a con dition, dition, that the infurer fhall not receive the price of running a risk, if, in fact, he runs none. It 3 Burr, 1240. is just like the contract of bargain and fale; for Roccus, if the thing fold be not delivered, the party who Not. 88. agreed to buy, is not liable to pay. Thus to whatever cause it be owing, that the rifk is not run, as the money was put into the hands of the infurer, merely for the risk of indemnifying the Cowp. 668. infured, the purpose having failed, he cannot have a right to retain the fum fo depofited for a special caufe. I Accordingly in an action of indebitatus affump- Martin v. fit brought by the plaintiff for 51. received by Sitwell. the defendant to the plaintiff's ufe, where the Shower, general iffue was pleaded; it appeared in evi- 156. dence, that one Barkdale had made a policy of infurance upon account for 51. premium in the plaintiff's name, and that he had paid the faid premium to the defendant, and that Barkdale had no goods then on board, and fo the policy was void. To this action, two objections were taken: ft. That it fhould have been brought in Barkdale's name, which was over-ruled. 2dly. That this ought to have been a fpecial action on the cuftom of merchants. Lord Chief Juftice Holt cited a cafe of money depofited upon a wager concerning a race, that the party winning might bring an action of indebitatus affumpfit, for money received to his ufe; for now by the fubsequent matter it is become as fuch. And as to the cafe in queftion, the money is not only to be returned by the cuftom, but the policy is made originally void, the party, for whofe ufe it was made, having no goods on board; fo that by this discovery, the money was received without any reafon, occafion, or confideration, and confequently it was received originally to the plaintiff's ufe. And fo judgment was given for the plaintiff. I cite this cafe for two purpofes; because it ferves to fhew in what form of action the plaintiff Ee 2 ought Simond and ought to demand a return of premium: and it alfo points out, that as early as the beginning of the reign of William and Mary, the true principle, on which the premium ought to be returned, was fully established. It was faid in the introduction to this chapter, that claufes are frequently inferted in policies of infurance, containing conditions, on the performance or nonperformance of which, the premium is returnable; and that to decide upon the construction of fuch conditions is the province of the court, and not of the jury. Such a cafe occurs, which may properly be mentioned here. This action was brought against an underwriter, for a return of premium. The material part of the policy was in thefe words: "At and from any port or ports in Grenada to London, on any ship or fhips that fhall fail on or between the first of May, and the first of August "1778, at 18 guineas per cent. to return & per "cent. if he fails from any of the Weft India iflands, with convoy for the voyage, and arrives." At the bottom there was a written declaration that the policy was on fugars (the muscavado valued at 207. per hogfhead) for account of L. 2. being on the first fugars which shall be shipped for that account. The hip the Hankey failed with convoy, within the time limited, having on board 5 hogfheads of mulcavado fugar, belonging to L. 2. She arrived fafe in the Downs, where the convoy left her; convoy never coming farther, and indeed feldom beyond Portsmouth. After he had parted with the convoy, fhe ftruck on a bank called the Pan Sand, at Margate, and 11 of the 51 cafks of fugar were washed overboard, and the reft damaged. The fhip was afterwards got off the bank, and proceeding up the river, arrived fafe in the port of London, and was reported at the custom-house. The fugars faved were taken out at Margate, and, after undergoing a fort of cure, by a perfon fent from town for that |