2 Mass. 176 | Mass. | 1806
The opinion of the Court was afterwards delivered by
This action is brought on two policies of reassurance, the one, dated 1st December, 1795, being on * “ brigantine Columbia and cargo, from Newbury ¡port to [ * 185 ] any or all the islands or ports in the West Indies, and from thence back to Newbwryport; ” the other, dated on the same day, “ on the schooner Harmony, appurtenances and cargo, at and from Lisbon to Newbwryport ”
That a contract of reassurance is not prohibited by the principles of the common law, is admitted by the parties. It is a contract which, in itself, seems perfectly fair and reasonable, and might be productive of very beneficial consequences to those concerned in this important branch of commerce ; but, because it was much abused, and turned to pernicious purposes, it was prohibited by an act of the Parliament of Great Britain,
As an act of the British Parliament merely, it is not pretended that its binding force was extended to the colonies. But it is said, and, in my opinion, it is true, that, from the very nature of our relation as colonies to Great Britain, the parent state at the time the act was passed, it was competent to the Parliament to have extended this provision to the colonies, if it had seen fit to do it. But if that was the intention, it ought to appear by express words, or at least by inevitable implication. Blackstone, in his Commentaries,
There are no words in the section prohibiting contracts of reassurance, or in any other part of the act, which manifest, or even
There is another foundation, on which, it is said, a defence against this action may be bottomed. The constitution declares
I now proceed to the consideration of other circumstances in the case. The reassurance on the Columbia is on the vessel and cargo to any or all the islands or ports in the West Indies, and from thence to Newburyport; and it is a reassurance by which the assurers are to respond the full amount of all losses, damages, and misfortunes, to which the assured might be liable, on a like sum written by him on a former policy; and, in the same proportion, on vessel and cargo. The reassurance then, in express terms, extends' only to a policy of insurance, and which was a policy of insurance on vessel and cargo. Instead of confining the reassurance to one policy of insurance, the defendant in review would extend it to three. One is admitted as properly described by the policy of reassurance, and here I think he must stop. The policy of reassurance is confined, in the terms of it, to a reassurance of a policy of insurance, and cannot be extended to three. Besides, the policies on “ effects ” and on “ property ” are confined to cargo, and are
I am of opinion that the defendant in review has a right to recover the -130 dollars which he assumed as part of that which was originally subscribed by Hooper, because he was in fact, by agreement with all the parties at the time of the reassurance, an insurer for that sum, as much as for his own original subscription. My opinion as to this sum is founded solely on the evidence, which the case affords, that Prince had, before the reassurance, been received as a substitute for Hooper, to that amount; and [ *188 J that Hooper was, to the same amount, released *from his engagement: — in other words, that Prime was an insurer, and as such immediately responsible to the assured. This I consider as a case altogether distinct from Prime’s assuming the 100 dollars which had been underwritten by Bradbury. In this case, it is obvious that the agreement was not between Prince and the assured, but between Prince and Bradbury. The agreement does not, as is the case in the other instance, appear to have been subscribed by Prince, and it is certain the assured could have brought no action against Prince upon it. It could not therefore, in my opinion, be a reassurance to Prince of that sum, because Prince had never insured it.
But as to the 100 dollars assumed by Prince, which was originally subscribed by Bradbury, I have the misfortune to differ from both my brothers, who think that it is impossible to distinguish this from the 130 dollars which was originally subscribed by Hooper, and afterwards assumed by Prince. They think that his assent, as expressed in the broker’s memorandum, in the one case, constituted Prince as much an insurer as his own subscription in the other.
By a computation, it will appear that the whole reassurance on the Columbia will be completely covered by the subscriptions Previous to that of the plaintiff in review.
19 G. 2, c. 37, § 4.
Vol. i. pp. 107, 108
Chap. 6, art. 6.