have been liable; it is not therefore reasonable, that they should have been so liable without retaining a proportion of the premium. You should inquire whether there is any rate of premium among the underwriters from Hull to Portsmouth, and whether the premium has ever been apportioned where there has been only one insurance, without distinguishing the different risks in the policy. If you can find any rule, I recommend you to adopt it. But if you cannot agree, we think the whole premium ought not to be returned; and, therefore, the present verdict must be set aside, and the case go to a new trial. Rule absolute.

Where there is an agreement to return part of the premium, "if the ship arrive," the assured will be entitled to a return, in the event of an arrival of the ship at the port of destination, although it should appear, that the ship has sustained a loss occasioned by a sea risk', or that the ship has been captured and recaptured, and the assured has been obliged to pay the salvage. But every arrival of the ship at the port of her destination is not an arrival within the fair construction of the agreement; such, for instance, as an arrival in possession of an enemy at a neutral port, to which she was insured, or an arrival at her port in England as the property of other persons after a capture. In short, it must be an arrival at the destined port in the course of her voyage".

The captors of a ship and cargo effected an insurance; restitution was afterwards awarded to the owners (with the exception of a small part of the cargo); it was holden, that the captors were not entitled to a return of premium; for they had possession of the property insured; and if it were a legal capture, they were entitled; if it were not, the Court of Admiralty might amerce them in the damages and costs, and they had a right to insure themselves against a decision, which might have loaded them with damages and

costs".

Policy at and from Gottenburgh to Riga upon goods and ship, beginning the adventure upon the goods from the loading thereof aboard the ship at Gottenburgh-it appeared that there were not any goods laden at Gottenburgh but only at London; it was holden, that as the risk upon the goods never commenced, the plaintiff was entitled to a proportional return of premium". In the preceding case the adventure upon the goods is expressly mentioned to begin from the loading at Gottenburgh; but if the place had been omitted,

1 Simond v. Boydell, Dougl. 269. m Aguila v. Rodgers, 7 T. R. 421. n Adm. by Kenyon, C. J. S. C.

o Boehm v. Bell, 8 T. R. 154.
p Horneyer v. Lushington, 15 East,

46.

the court would have intended a loading at the place whence the voyage commenced.

The formal receipt in the policy is conclusive evidence of the receipt of the premium as between the assured and underwriter in an action for the return of the premium'.

Where the assured or his agent has been guilty of fraud, as where the assured knew that the ship was lost, at the time of effecting the policy, the premium cannot be recovered; and the same rule holds, where the contract of insurance is illegal", unless the assured was ignorant of the illegality at the time of effecting the insurance; or unless every thing has been done by the assured which lay in his power to legalize the voyage, though the endeavour has failed.

A policy broker is the agent of both the assured and underwriter, and is the trustee for the assured as long as the policy remains in his hands, to adjust and receive returns of premium for him when the events have happened on which they are to be made. Hence the broker, having notice that the events have happened which intitle the assured to such returns, is authorized to deduct so much from the gross amount of the premiums, and to pay over the difference only to the underwriterz.

In assumpsit, on a policy of insurance, with a count for money had and received, the defendant had not paid any money into court. The defence was, that the ship was not seaworthy; on which point, without any direct evidence of fraud, the case was submitted to the jury. General verdict for defendant. N. It was not intimated to the jury, that the plaintiff was intitled to a verdict for a return of premium. On an application to the court, it was holden that the plaintiff was intitled to a verdict for the premium on the count for money had and received; but the court hoped, that in future the counsel would in his opening demand the premium, in every case where it was intended to insist upon it on failure of his claim for the loss.

Where a total loss is recovered, there cannot be return of premium for convoy, because the total loss includes the entire premium added to the invoice price.

Upon a mere misrepresentation without fraud, where the, risk never attached, the assured is intitled to a return of the premium'.

XII. Of Bottomry and Respondentia.

Bottomry.-AN agreement entered into by the owner, or, under certain circumstances, by the master of a ship (63), whereby, in consideration of a sum of money advanced, (for the purpose of enabling the borrower to fit out the ship, or purchase a cargo for an intended voyage) the borrower undertakes to repay the same with a stipulated interest, if the voyage shall terminate successfully, and binds himself and the ship and tackle for the due performance of the agreement, is termed bottomry. The term " bottomry" is derived from the original language of the agreement, which merely spoke of the keel or bottom of the ship; but the expression was always considered as being used figuratively, viz. pars pro toto. This agreement is sometimes made in the form of a deed-poll, called a bill of bottomry, executed by the borrower, and sometimes in the form of a bond with a penalty.

66

An assured on bottomry cannot recover against the underwriter, unless there has been an actual total loss of the ship": for if the ship exist in specie, in the hands of the owners, though under circumstances that would intitle the assured on the ship to abandon, it will prevent its being an utter loss within the meaning of the bottomry bond.

Respondentia.-If the loan is not upon the vessel, but upon the goods and merchandize, which must necessarily be sold or exchanged in the course of the voyage, then by the terms of the agreement the borrower only personally is bound to answer the contract, who therefore, in this case, is said to take up money at respondentia.

Bottomry and respondentia differ very materially from a

y Feise v. Parkinson, 4 Taunt. 640.

z Thompson v. The Roy. Ex. Ass. Comp., M. & S. 30.

(63) In a foreign country, in the absence of the owners, and in cases of necessity, the master may take up money on bottomry for the use of the ship.

simple loan. 1. In the case of a loan the money is at the risk of the borrower, and must be repaid at all events. But where money is lent on bottomry or respondentia, the money is at the risk of the lender during the voyage. 2. Upon a loan, legal interest only can be reserved. But upon bottomry or respondentia, any interest upon which the parties agree may be reserved.

By stat. 7 G. 1. c. 21. s. 2. “all contracts and agreements made or entered into by any of his Majesty's subjects, or any person or persons in trust for them, for the loan of any money by way of bottomry on any ship or ships in the service of foreigners, and bound to or designed to trade in the East Indies, are void."

By stat. 19 G. 2. c. 37. s. 5. "all money lent on bottomry, or at respondentia, upon ships belonging to any of his Majesty's subjects, bound to or from the East Indies, must be lent only on the ship, or upon the merchandizes on board, and shall be so expressed in the condition of the bond, and the benefit of salvage shall be allowed to the lender, who alone shall have a right to make insurance on the money so lent; and no borrower of money shall recover more than the value of his interest on the ship, or in the effects laden on board, exclusive of the money so borrowed; and in case it shall appear that the value of his share in the ship, or the effects on board, does not amount to the full sum or sums he has borrowed as aforesaid, such borrower shall be responsible to the lender for so much of the money borrowed, as he has not laid out on the ship or merchandize laden thereon, with lawful interest for the same, in the proportion the money laid out shall bear to the whole money lent, notwithstanding the ship or merchandize shall be totally lost."

By stat. 16 Car. 2. c. 6. (made perpetual by stat. 22 and 23 Car, 2. c. 11. s. 12.) reciting that masters and mariners of ships, having insured or taken upon bottomry greater sums of money than the value of their adventure, do wilfully cast away, burn, or otherwise destroy, the ships under their charge, to the merchants and owners' great loss; for the prevention thereof for the future, it is enacted, "that if any captain, master, mariner, or other officer, belonging to any ship, shall wilfully cast away, burn, or otherwise destroy, the ship unto which he belongs, or procure the same to be done, he shall suffer death as a felon" (64).

a Marsh, 634.

(64) For other statutes relating to the destruction of ships, see ante, p. 991, n. (22).

XIII. Insurance upon Lives.

THE insurance of life is a contract whereby the insurer, in consideration of a certain premium, either in a gross sum or by annual payments, undertakes to pay to the person for whose benefit the insurance is made, a stipulated sum of money, or an annuity equivalent, upon the death of the person whose life is insured, whenever this shall happen, if the insurance be for the whole life: or in case it shall happen within a certain period, if the insurance be for lesser term than for life.

The utility of this species of insurance is obvious. Persons possessed of life incomes are hereby enabled to secure, after their death, a competent provision for their families; and they are also enabled, even in their life-time, in cases of urgent necessity, to raise money by way of loan, (which they could not do on mere personal security); for, by insuring their lives to the amount of the sum borrowed, the lender may be certain of having repaid the money lent in the event of their death. By these insurances also, the fines to be paid upon the renewal of leases, or on the descent of copyhold estates, may be provided for.

Several corporations and societies have been established for the assurance of lives. Among these the following may be mentioned; 1. The Amicable Society, established in 1706. 2. The Royal Exchange and London Assurance, in the reign of George the First. 3. The Equitable Assurance, 1762. 4. The Westminster Society. 5. The Pelican Life Insurance, 6. The Globe Insurance. 7. The London Life Association, established May, 1806, No. 48, St. Paul's Church-yard. The distinguishing principle of the London Life Association is, that the assured are to be partakers of the benefit arising therefrom during life; the profits, when ascertained, are to be divided among the proprietors, in proportion to the amount of their respective interests in the society, on the most equit, able plan, and are to be payable to them during their respective lives, at such times and in such manner, as the court of directors, under the sanction of a general court of proprietors, shall appoint. 8. The Rock Life Assurance Company, (established A. D. 1806,) New Bridge-street, Blackfriars. In this institution, each proprietor is under the necessity of insuring a sum on his own life, if accepted by the directors, or on that of an approved nominee, to the amount of e Marsb, 664.

b Marsh, 664.