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rest to be lawful, replied that B., with the consent of A., voluntarily released him, and that they afterwards imprisoned him for the time mentioned in the first count; the plaintiff having failed in proving the new assignment, by not shewing the consent of A.; it was holden that he should not be permitted to prove the same trespass against B. under the other count. The plaintiff declared for an assault, battery, and imprisonment, and having proved a trifling imprisonment b but not any battery, obtained a verdict, with one farthing damages. Sir James Mansfield, C. J. certified under stat. 43 Eliz. c. 6. An application was made to the court, that the plaintiff might have full costs, notwithstanding the certificate, on the ground that every imprisonment included a battery, and consequently, that this case fell within the exception mentioned in the statute; but the court were clearly of opinion, that the plaintiff was deprived of his costs by the certificate; observing, that it was absurd to contend that every imprisonment included a battery. It may be remarked, that Kenyon, C. J. had ruled otherwise, in Oxley v. Flower and another, B. R. Middlesex Sittings, December 4th, 1800, MSS. In another action for false imprisonment, the jury, by the direction of the C. J., found a verdict for the plaintiff with 1s. damages. Erskine, for the defendant, requested the C. J. to certify; but he refused, on the ground taken by the counsel for the plaintiff in the preceding case, that every imprisonment included a battery, and consequently that this case fell within the exception mentioned in the statute. It might be inferred from the preceding case of Emmett v. Lyne, that if a battery were proved, the judge could not certify: but it has been solemnly decided, in Wiffin v. Kincard, 2 New R. 471. that whether there be a proof of a battery or not, still the judge may certify, with respect to the imprisonment, and thereby deprive the plaintiff of his costs; and the same rule holds, although the imprisonment is laid in a separate count. Briggs v. Bowgin, 2 Bingh. 333. To a declaration in trespass for assaulting and beating plaintiff, imprisoning him for a long time, and during that time tearing his clothes, defendant pleaded the general issue, and, as to the assaulting, beating, and tearing the clothes, a justification. Plaintiff replied, that the detention was longer, and the other trespasses committed with more violence, than was necessary for the purposes alleged in the plea. Issue was joined thereupon, and on this and the general issue plaintiff had a verdict for one shilling. The judge certified to deprive of costs under stat. 43 Eliz.

b Emmett v. Lyne, 1 Bos. and Pul. N. R. 255.

c. 6. s. 2., and did not certify under stat. 22 & 23 Car. 2. c. 9. s. 136, that a battery was proved. Held, 1. That as the action appeared to be for a battery, the judge could not certify under stat. 43 Eliz. 2. That the battery was admitted on the record, and therefore the plaintiff was entitled to full costs without a certificate under stat. 22 & 23 Car. 2. c. 9.

c Bone v. Daw, 3 Ad. & Ell. 711.

CHAP. XXV.

INSURANCE.

I. Of Insurance in general.

II. Of Marine Insurance-The Policy-Different KindsRequisites-Rule of Construction.

III. What Persons may be insured-Who may be Insurers—

What may be insured.

IV. Of Losses,

1. By Perils of the Sea.

2. By Capture, and herein of the Effect of an Embargo on

the Contract of Insurance.

3. By Arrests, &c.

4. By Barratry.

5. By Fire.

6. By other Losses.

V. Of total Losses and of Abandonment.

VI. Of partial Losses.

VII. Of Adjustment.

VIII. Of the Remedy by Action for Breach of the Contract of Insurance, and herein of the Declaration-Pleadings-Consolidation Rule.

IX. Of the several Grounds of Defence on which the In

surer may insist;

1. Alien Enemy.

2. Illegal Voyage or illegal Commerce.

3. Misrepresentation, Concealment, Suppression.

4. Breach of Warranty,

Express

Implied {

1. Time of Sailing.

2. Safety of a Ship at a particular Time. 3. To depart with Convoy.

4. Neutral Property.

1. Not to deviate.

2. Seaworthiness.

5. Re-assurance.

6. Wager Policy.

X. Evidence-Damages. XI. Premium-Return of

XII. Of Bottomry and Respondentia. XIII. Insurance upon Lives.

XIV. Insurance against Fire.

I. Of Insurance in general.

INSURANCE is an agreement whereby one party, in consideration of a sum of money, either given or contracted for, undertakes to pay to the other party a certain sum of money upon the happening of some event. A policy of insurance is the instrument in which the terms of this agreement are set forth. To this instrument the insurer having subscribed his name, and in the case of marine insurances, the sum which he undertakes to pay, in case the contingency happens, is termed the insurer or underwriter. The sum of money, received by the insurer as a consideration for his undertaking, is termed the premium, and the party protected by the insurance the insured or assured. The subject matter of insurance is as various as the different species of property, and the different kinds of danger to which they may be exposed. In some cases, however, a contract of insurance may be void, as being against the policy of the common law; in other cases, as being contrary to the express provisions of a statute (1). These are the only limits to the subject of insurance. The following sections will be confined to an investigation of three species of insurance only: 1. Marine insurance. 2. Insurance upon lives. 3. Insurance against losses by fire.

(1) The interference of the legislature has frequently been deemed necessary to provide against the mischiefs arising from insurances calculated merely to excite and encourage a spirit of gaming, and thereby to subvert the morals and impair the industrious habits of the people. See the stat. 9 Ann. c. 6. s. 57, whereby a penalty is imposed on persons setting up offices for making assurances on marriages, births, christenings, and service. See also stat. 27 G. 3. c. 1, against fraudulent insurances upon lottery tickets.

II. Of Marine Insurance-The Policy-Different KindsRequisites-Rule of Construction.

Of Marine Insurance.-MARINE insurances are made for the protection of persons having an interest in ships, or goods on board, from the loss or damage which may happen to them during a certain voyage, or a fixed period of time. Insurance on ships and merchandize greatly conduces to the advancement of trade and navigation, and the extension of commerce, by dividing a risk which might be ruinous, and enabling parties to undertake larger adventures than it would otherwise be prudent for them to undertake. The nature of this contract is a contract of indemnity, and this principle ought always to be kept in view in considering questions relative to insurance. But although indemnity is the principle of insurance, yet the contract of insurance is, like other contracts, subject to explanation and construction, regulated in some countries by positive law, in this country by usage; and it will be found, that absolute and perfect indemnity cannot be attained in all cases and under every possible event. One familiar instance may be mentioned: if goods sustain damage on the voyage but arrive at the place of destination, the freight may become payable, although by reason of the damage the value of the goods may fall short of the amount of freight; but the freight cannot be added to the amount of the damage, and the assured has not a perfect indemnity for his loss.

The Policy.-The policy of insurance, which has been defined to be the instrument in which the terms of the agreement are set forth, is generally printed, with a few terms superadded in writing, calculated either to control and confine, or to enlarge and extend, the printed language, and thereby to render it subservient to the intention of the parties in the particular contract. The form of the policy is at this day nearly the same as that anciently used among merchants (2); every policy still referring to those made in Lom

a Marsh. 2.

b Godsall v. Boldero, 9 East, 81. recognized by Ld. Ellenborough in Bainbridge v. Neilson, 10 East, 344.

c Per Ld. Tenterden, delivering judgment, Winter v. Haldimand, 2 B. and Ad. 656.

(2) See the form of policy of insurance used in London on ship or goods in the appendix to Mr. Justice Park's valuable treatise. See the Scotch form, in Miller's Elements of the Law relating to Insurances, Svo, 1787. p. 30.

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