The plea of alien enemy, which goes merely in disability of the person, must be supported by the strictest proof. Hence, it is not sufficient merely to show that some time before action was brought, the party was domiciled in a territory which has become hostile, without showing that he was a native of that territory, or living there, at the time of action brought (f). The opinion of the underwriters as to the materiality of communicating information as to a particular fact, previously to the effecting a policy, is not admissible (g) in evidence. The materiality of such a communication is a question for the jury (h). (f) Harman v. Kingston, 3 Campb. 153. (g) Campbell v. Rickards, 2 Nev. & M. 542; 5 B. & Ad. 840, S. C. the party calling for it, of producing the attesting witness, yet where a person is called on to produce a deed to which he is a party, and under which he claims to hold an estate, and he produces it, it shall be taken to be a good deed, so far as relates to the execution, as against himself. Pearce v. Hooper, 3 Taunt. 60; Roe v. Wilkins, 4 Ad. & Ell. 86, S. P.; 5 Nev. & Mann. 434, S. C., by name of Doe v. W. See also Orr v. Morrice, 3 Brod. & Bingh. 139, where it was holden, in an action for use and occupation of premises, against the assignees of a bankrupt, that the deed of assignment of the bankrupt's effects, produced by the defendants, at the trial, under a notice from the plaintiff, was admissible in evidence, without proof of the execution by the subscribing witness, as it appeared that one of the assignees had continued to occupy the premises for some time after the bankruptcy. See also Burnett v. Lynch, 5 B. & C. 604. "It is not competent to a party, who has taken under a deed all the interest which that deed was calculated to give, to dispute its due execution, although at the time when the deed is produced, he has not any existing interest under it." Per Bayley, J.-N. This was an action by a lessee against the assignee of a lease, and the plaintiff having proved the execution of the counterpart, the defendant put in the original lease, which was produced by a person to whom he had assigned it; it was holden, that it was not necessary for the plaintiff to call the subscribing witness. See also Doe d. Tyndale and others v. Heming and others, 6 B. & C. 28, where the attorney for the lessors of the plaintiff obtained from one of the defendants, (the tenant in possession,) a lease of the premises granted to him for a term not then expired, in order to prevent the defendants from setting it up, to defeat the action; it was holden, that, as the lessors of the plaintiff were to derive a benefit from the possession of the lease, and as the conduct of the attorney amounted to a recognition of it as a valid instrument, when produced in pursuance of notice from the defendants, it might be read without calling the subscribing witness. But if the instrument be in the possession of the party producing it at the trial, the execution must be proved by the subscribing witness: although the adverse party may claim under the deed. Vacher and another, Assignees, &c. v. Cocks, 1 B. & Ad. 147, 8. Damages. By stat. 3 & 4 Will. IV. c. 42, [14th August, 1833,] s. 29, the jury, on the trial of any issue, or on any inquisition of damages, may, if they shall think fit, give damages in the nature of interest over and above the money recoverable in all actions on policies of assurance made after the passing of this act. XI. Premium-Return of. THE general rule (i) is, that the broker is the debtor of the underwriter for the premiums, and the underwriter the debtor of the assured for the loss. In cases where the contract of insurance is void, as on the ground of non-compliance with a warranty, e. g., to sail with convoy, seaworthiness or the like, and fraud cannot be imputed to the assured, the assured will be entitled to a return of premium; because, where the contract does not attach, there is not any risk (53). Where there is an insurance on ship and freight, and the ship has arrived in safety, and earned freight, the assured cannot afterwards claim a return of premium, on the ground that he had no insurable interest, on account of a defect in his title to the ship (k). In cases where the risk is entire, and has once commenced, as in the case of a deviation, there shall not be any return or apportionment of premium (1) (54). A ship was insured (i) Per Lord Tenterden, C. J., Scott v. Irving, 1 B. & Ad. 612. (k) M'Culloch v. Royal Exchange Assurance Company, 3 Campb. 406. (1) Tyrie v. Fletcher, Cowp. 668; Meyer v. Gregson, B. R. East. 24 Geo. III., Marsh. 568. (53) "If the risk be not run, though it be by neglect, or even by fault of the insured, yet the insurer shall not retain the premium." Per Lord Mansfield, C. J., in Stevenson v. Snow, 3 Burr. 1240. "Where the risk has not been run, whether its not having been run was owing to the fault, pleasure, or will of the insured, or to any other cause, the premium shall be returned; because a policy of insurance is a contract of indemnity. The underwriter receives a premium for running the risk of indemnifying the assured, and to whatever cause it be owing, if he does not run the risk, the consideration for which the premium or money was put into his hands, fails, and therefore he ought to return it." Per Lord Mansfield, C. J., in Tyrie v. Fletcher, Cowp. 668. (54) Upon an insurance at and from a place, if an usage can be proved warranting a division of the risk, the insured will be entitled to an apportionment of the premium, in case one of the risks be not run. Long v. Allan, B. R. E. 25 Geo. III., Marsh. 570. "at and from London to any port or place, for twelve months, at £9 per cent., warranted free from capture by the Americans" (m). The ship sailed from the port of London and was taken by an American privateer about two months afterwards. It was contended, that a proportionate part of the premium ought to be returned; that 9 was much more than adequate to the risk actually run, viz. only two months. But the court were of opinion that there ought not to be a return of premium; Lord Mansfield, C. J., observing, "that there were two general rules established, applicable to the question: The first is, that where the risk has not been run, whether its not having been run was owing to the fault, pleasure, or will of the insured, or to any other cause, the premium shall be returned; because a policy of insurance is a contract of indemnity. The underwriter receives a premium for running the risk of indemnifying the insured; and to whatever cause it be owing, if he does not run the risk, the consideration for which the premium or money was put into his hands, fails, and therefore he ought to return it. 2d. Another rule is, that if that risk of the contract of indemnity has once commenced, there shall be no apportionment or return of premium afterwards. For though the premium is estimated, and the risk depends upon the nature and length of the voyage, yet, if it has commenced, though it be only for twenty-four hours or less, the risk is run, the contract is for the whole entire risk, and no part of the consideration shall be returned." The same rules were laid down by Lord Mansfield, C. J., in Loraine v. Thomlinson, Doug. 587. A ship, employed in the coasting trade, was insured against capture for twelve months (n); at 15s. per cent. per month, 18. The ship was lost in a storm, within the first two months. An action having been brought for the amount of the premium (£18), the defendant pleaded nonassumpsit as to all except £3, and as to that a tender. The jury found a verdict for the defendant upon the tender, and for the plaintiff upon the other issue, for the sum of £15, subject to the opinion of the court, whether he was entitled to recover that sum of £15, or the sum of £3 only. It was contended, on the part of the defendant, that this was not one entire contract for a year, but an insurance from month to month for twelve months; if the policy had been for a year, or twelve months, and the premium a gross sum, the court could not have apportioned it, because the risk in one month might be greater than in another, but here the parties have apportioned the premium; that the insurance was the same as if there had been twelve policies for each month. But per Lord Mansfield, C. J., it is an insurance for twelve months, for one gross sum of £18. They have calculated this sum to be at the rate of 15s. per month. But what was to be paid down? Not 15s. for the first month, and so from month to month; but £18 at once. (m) Tyrie v. Fletcher, Cowp. 668. (n) Loraine v. Thomlinson, Doug. 585. A ship with her cargo was insured "at and from Honfleur to the coast of Angola (0), during her stay and trade there, at and thence to her port or ports of discharge in St. Domingo, and at and from St. Domingo back to Honfleur, at a premium of £11 per cent." The ship sailed to A., but in this part of the voyage she was guilty of a deviation. It was contended, on the part of the plaintiff, that there ought to be an apportionment and return of premium; but the court were clearly of opinion that there ought not to be any return. Lord Mansfield, C. J., said, the question depends upon this: Whether the policy contains one entire risk on one voyage, or whether it is to be split into six different risks? for, by splitting the words, and taking "at," and "from," separately, it will make six; viz. 1. At Honfleur; 2. From Honfleur to Angola; 3. At Angola, &c. The argument must be, that, if the ship had been taken between Honfleur and Angola, there must have been a return. By an implied warranty, every ship must be seaworthy, when she first sails on the voyage insured, but she need not continue so throughout the voyage: so that, if this is one entire voyage, if the ship was seaworthy when she left Honfleur, the underwriters would have been liable though she had not been so at Angola, &c.; but, according to the construction contended for on the part of the plaintiff, she must have been seaworthy, not only at the departure from Honfleur, but also when she sailed from Angola, and when she sailed from St. Domingo. But if the insurance be in effect on two or more voyages, and one or more have not commenced, there shall be an apportionment and return of premium in respect of those voyages which have not commenced, as will appear from the following case:— An insurance was effected upon a ship at five guineas per cent. (p), lost or not lost, at and from London to Halifax, warranted to depart with convoy from Portsmouth for the voyage (55). Before the ship arrived at Portsmouth, the convoy was gone. Notice of this was immediately given by the assured to the underwriter, and at the same time he was also desired either to make the long insurance, or to return part of the premium. The jury found that the usual settled premium, from London to Portsmouth, was one and one half per cent., and that it was usual, in cases like the present, for the underwriter to return part of the premium, but the quantum was uncertain. It was stated, that the plaintiff made to the defendant an offer of allowing him to retain one and one half per cent. for the risk from London to Portsmouth. It was holden, that the plaintiff (0) Bermon v. Woodbridge, Doug. 781. (p) Stevenson v. Snow, 3 Burr. 1237. (55) In Mr. J. Blackstone's report of this case, 1 Bl. R. 315, the words of the policy are, "warranted to depart with convoy for the voyage," omitting the words "from Portsmouth." was entitled to recover such part of the premium as had been given for insuring the ship on the voyage from Portsmouth to Halifax: Denison, J., observing, that it was most equitable that the defendant should retain the premium for such part of the voyage only as he had run the risk of; that the insured had a right to have the other part restored to him. And this was agreeable to the general principle of actions for money had and received to the plaintiff's use; where the defendant had no right to retain it, he must refund it. Foster, J., added, that there was not any consideration for the remainder of the premium, i. e. for the voyage from Portsmouth to Halifax, wherein no risk was run by the insurer, who only insured the voyage with convoy; therefore he had no right to retain the premium for this. Wilmot, J., said, that upon this policy there were two distinct points of time, in effect two voyages, which were clearly in the contemplation of the parties, and only one of the two voyages was made, the other not at all entered upon. It was a conditional contract, and the second voyage was not begun, therefore the premium must be returned; for upon the second part of the voyage the risk never took place. Lord Mansfield, C. J., commenting on the preceding case in Tyrie v. Fletcher, Cowp. 669, observed, "that the first object of insurance was from London to Halifax; but if the ship did not depart from Portsmouth with convoy, then there was to be no contract from Portsmouth to Halifax : why then, the parties have said, 'We make a contract from London to Halifax, but, on a certain contingency, it shall only be a contract from London to Portsmouth.' That contingency not happening, reduced it in fact to a contract from London to Portsmouth only." All the judges, in delivering their opinion, laid the stress upon the contract comprising two distinct conditions, and considering the voyage as being in fact two voyages. And in Bermon v. Woodbridge, Doug. 790, the same learned judge observed, that in Stevenson v. Snow there was a contingency specified in the policy, upon the not happening of which the insurance would cease. It depended on the contingency of the ship sailing with convoy from Portsmouth, whether there should be an insurance from that place. This necessarily divided the risk, and made two voyages. And in Loraine v. Thomlinson, Doug. 587, Lord Mansfield again remarked, that Stevenson v. Snow was decided on the ground of there being two voyages. The next case in which an apportionment has been allowed, is that of Long v. Allan, B. R. E. 25 Geo. III., 4 Doug. 276; Park, 589; Marsh, 570, S. C. There the terms of the policy were, "at and from Jamaica to London, warranted to depart with convoy." The ship sailed without any convoy. An express usage was found, that on insurances couched in the same terms with the policy in question, the premium had been returned, deducting one half per cent. if the ship departed without convoy. The court decided in favour of the return of premium, on the ground of the usage. In Rothwell v. Cook, 1 Bos. & Bul. 172, the policy was on ship, |