No. II. 13 & 14 Car. II. c. 23. III. Be it also enacted by the authority aforesaid, That in case the said commissioners or any such three of them as aforesaid shall find cause to examine witnesses beyond the seas, or any remote parts of his Majesty's dominions, for the clearing of any doubt or matter before them depending, that in such case by direction of the said commissioners or any such three of them like commissions or process shall issue out of the Court of Admiralty as have formerly been for the purposes aforesaid, returnable Commissions before the said commissioners; and that the said commissioners or any out of the Adsuch three of them shall have also power to give and pass their final miralty Court sentence decree and executions as well against the body of the party to examine evicted or his goods as also against the executors and administrators of Witnesses besuch party so evicted; and to assess costs of suit upon such person or yond Sea. persons as shall be condemned by the decree of the said court as to them shall seem just. IV. And forasmuch as many witnesses (as seamen and others) come Witnesses and speedily go again to sea before a court can be summoned, by which going to Sea means the assured and assurers are many times much damnified;' For how to be exthe preventing of which mischief, Be it also enacted by the Authority amined before, aforesaid, That it shall and may be lawful to and for any one of the said commissioners to administer an oath to any witness legally summoned to give testimony, (timely notice being thereof given to the adverse party and set up in the office before such examination,) to the end that such witness or witnesses may be cross-examined. V. Provided always, That the said commissioners shall in no case Appeal to the proceed both against person and goods for one and the same debt; and Chancery. provided also, that any thing in this Act contained shall not in any wise 43 Eliz. c. 12. extend to prejudice the appeal to the High Court of Chancery given or allowed in the said former Act of Parliament. * of the Court of King's Bench, that the jurisdic❤ tion of this newly-erected court did not extend to suits brought by the assurer against the assured; but only to such as were prosecuted by the latter against the former. It is true, in Sir Bartholomew Shower's note of the case, no decision appears to have been made; but a rule to shew cause why a prohibition should not issue, was obtained; and no notice is afterwards taken of it, although the learned Reporter was himself the Counsel in the cause, who had obtained the original rule. • The following observations are made by Mr. Justice Park, on the Court, which is the subject of this and the preceding Number, in his valuable Treatise on the Law of Insurance. Speaking of the statute of Elizabeth, he says, that "the pur pose of that Statute was to erect a particular Court for the trial of causes relative to Policies of Insurance, in a summary way; and to that end the Statute ordained, that a Commission should issue yearly, directed to the Judge of the Admiralty, the Recorder of London, two Doctors of the Civil Law, two common Lawyers, and eight "But a case reported in Siderfin, seems to Merchants, empowering any five of them to hear have struck a more severe blow at the existence and determine all such causes arising in London; of this court than any of those cases I have menand it also gave an appeal from their decision, by tioned; for it was there held, that it was no bar way of Bill, to the Court of Chancery. But this to an action upon a Policy of Insurance at the Statute not entirely answering the intention of common law to say, that the plaintiff had sued the Legislature, some further regulations were the defendant for the same cause, in the Court made by a subsequent Statute: such as the re- erected by the Statute of Elizabeth, and that his duction of the number necessary to constitute a suit was there dismissed. quorum. I forbear entering at length into this matter, the Court erected by these Statutes being now entirely disused. The reasons of this may be collected from some few decisions in our Reporters: but one appears on the face of the Statute itself, namely, that its jurisdiction was not sufficiently extensive, being confined to such causes only as arose in London. "By a case reported in Style we find, that a prohibition issued to the Court of Policies of Insurance, to prevent it from proceeding in a case of insurance upon a life, the Court of King's Bench being of opinion, that the Statute only meant to give the Court below cognisance of such contracts only as related to Merchandize. "In another case it seemed to be the opinion VOL. II. "These causes co-operating, together probably with some instances of partiality in the Judges, this Court fell into disuse, no commission having issued for many years; but Insurance causes are now decided, like all other questions of property, and by that mode of trial most agreeable to the nature of our Constitution, by a trial in a Court of common law. "It has been much the fashion of late years to insist upon the advantages which the trading part of the nation would derive from the establishment of some equitable and amicable judicatory for the trial of all disputed points in matters of Insurance. This is only another proof of the weakness and fallibility of the human mind, which is never satisfied with things within its reach, however excellent they may be; but pants after those of foreign growth. Thus, a people who are possessed of a species of trial, the best calculated for the discovery of truth and the advancement of justice, and which has excited the admiration of the world, are desirous of parting with such an advantage for a mode of trial which is very unsatisfactory. "The Court erected by the Statute of Elizabeth, and which has now fallen into disuse, is perhaps one of the strongest arguments that can be adduced to prove that such a judicature is not congenial to the spirit and disposition of Britons, nor well adapted for the purposes of its institution. It is universally agreed by all writers upon jurisprudence, that nothing tends so much to the elucidation of truth and the detection of fraud, as the open viva voce examination of witnesses, in the presence of all mankind; before judges who from their knowledge of books and men, acquired by long study and experience, are well qualified to discriminate and decide between right and wrong; and before twelve upright citizens, who have an opportunity of observing the appearance, countenance, inclination, and deportment of those who are thus examined upon oath. Besides the subjects of those states, which have established these equitable tribunals, sensible of the superior advantages of the English institution, feeling that in great mercantile questions, the greatest attention is paid to the eternal and immutable principles of reason, and that all men, whether natives or foreigners, here meet with an equal measure in the administration of justice, fly to this country to make their contracts of Insurance, that in case of a dispute they may have the benefit of its laws." -Fully concurring with the learned writer, in his veneration of the justice and wisdom of the existing law, I entertain a very different impression with respect to the benefit of reviving, under proper modifications, an Institution similar in its principles to that which is the subject of his animadversions. Unquestionable and unquestioned as the rectitude and justice of the decisions of our existing tribunals assuredly are, it cannot be denied, that in the previous machinery of litigation there is a very great opportunity for the operation of chicanery and vexation; and although, doubtless, the great bulk of the transactions upon Policies of Insurance, like the great body of all the other intercourse of society, passes sub silentio, and according to the ordinary principles of rectitude and propriety, there is no class of cases, and I shall have occasion, more than once, to recur to the observation, that comes under the publick examination of Courts of Judicature, (from which alone I derive my knowledge of the subject,) that presents so many instances of contest, in opposition to the plain and manifest dictates of common integrity-or that could justify, in so great a degree, the kind of animadversion with which, in the Statute of Elizabeth, the subject is introduced. The advantage possessed by the assurers, of defending the claim against them, collectively or individually, is, in the hands of persons acting with fraudulent intentions, a powerful weapon of oppression; and, as such, I conceive is not unfrequently made use of. That the settlement of general questions of law is most advantageously referred to the publick tribunals of the country-and, that the decision of disputed questions of fact is best referred to za open examination, before an impartial jury, are propositions to which I unreservedly accede; but a party, in resisting a fair demand, has a great opportunity of harassing his opponent, by requir ing the strict and technical proof of circumstances, the existence of which is not susceptible of any real controversy, and the insisting upon a formal proof of which is of no other service than that of intimidation on account of the expenceand supposing the tribunal in question to be again resorted to, the beneficial objects of the Institution would be best accomplished by a course of procedure, upon which specific issues might be directed for the trial of any fairly disputed fact, and statements of the case might be submitted to the judgments of the regular tribunals of the country, upon any disputed question of law, with suitable provisions for making the determination subject to revision upon appeal, as effectually as can be done according to the existing course and practice of the law, and which is abundantly exemplified by the present course of appeal from the decisions of Courts of Equity, and the Courts of Scotland. The powers which may be given to a tribunal, constituted as the ancient Court of Policies of Assurance was to give specific directions operating in rem. to institute inquiries under a proper superintendence upon matters, the elucidation of which may be material to attain the proper justice of the case, and to make a general arrangement between conflicting parties upon questions of average and contribution would afford advan tages to such a tribunal, to which there is nothing analogous in the ordinary course of legal proceedings. The inadequacy of the existing law to settle proprio vigore complicated questions of average and contribution is very manifest and notorious. Such questions are by consent as matter of course, and from conviction of counsel that justice cannot be attained in any other way, referred to private examination; but a law can hardly be considered as perfect which is not possessed of adequate powers within itself to complete its purpose, and which requires the extrinsic aid of personal consent. Although these observations refer to a course of procedure which has been long obsolete, there is nothing in the principle of the measure which can be regarded as rash or experimental. The powers exercised by commissioners, under local Acts and Acts of Revenue, are as great and extensive as any judicial power, which it would be convenient to refer in a Court to be instituted.or revived for the purposes alluded to. The judicature exercised by the Lord Chancellor in bankruptcy, (wherein the facts, which are the subject of inquiry, are primarily examined upon affidavit, and the questions, the nature of which may render it expedient, are referred to the decision of a jury upon the fact, or to the opinion of one of the ordinary Courts upon a point of law, while other matters are, with greater convenience, referred to the officers of the Court, or commissioners,) may supply every thing which can be considered in point of model or principle, and probably embrace a mass of property not much inferior in amount to the whole of the property connected with commercial transaction, which is brought under examination before the Courts of Law. Amongst the causes which may have been most essential in producing the decline of the Court referred to, there is one not noticed in the preceding extract, which may probably have had a greater effect than those enumerated-the want of compensation to the persons to whom the authority is intrusted; and the observation is not made ludicrously, but with the conviction, that in very few instances gratuitous services can be relied upon, or reasonably expected upon a great and extensive scale; and that the most effectual mode of obtaining a desirable object is to connect with it such a compensation as may afford an adequate inducement for the exertions of those who would be most beneficially interested in its accomplishment. The preceding observations, considering the existing state of public opinion, may, I am aware, be regarded as purely speculative; but when I recollect the great increase which, within the time of my own memory, has taken place in the matters of inquiry submitted to Courts of Justice, and the number of arrangements, and expedients which have been resorted to for dispatch of it, and contemplate the probability of a similar increase with the further progress of population and national wealth, I anticipate, as a consequence, the arrival of the period when it will be beyond the power of mere arrangement, with all possible exertion of assiduity and ability, to meet the exigencies of publick justice with the existing judicial establishment, and when there must be either that general confusion and delay, than which nothing could be more extensively detrimental, or an alteration of system calculated to meet the increased demand for judicial labour, with an adequate addition of supply; and perhaps when the time arrives that the necessity of resorting to such expedients shall force itself upon the attention, the revival of the Court of Policies of Assurance may be found an object not entirely unworthy of regard. [ No. III. ] 6 George 1. c. 18.-An Act for better securing certain Powers and Privileges intended to be granted by his Majesty by two Charters for Assurance of Ships and Merchandizes at Sea, and for lending Money upon Bottomry; and for restraining several extravagant and unwarrantable Practices therein mentioned. P. MOST Gracious Sovereign; Whereas it hath for many ages past been 6 Geo. I. c. 18. esteemed good policy by all proper ways and means to secure and By 14 Geo. 2. ⚫ encourage the trade of this realm, whereby the wealth and strength of c. 37. this Act the same and particularly the shipping navigation and publick revenues is extended to thereof have been increased; and it hath been time out of mind a America, " custom or usage amongst merchants as well of this realm as of ⚫ foreign nations, when they make any adventures at sea (especially into remote or dangerous parts) to give a premium or consideration to par♦ticular persons to have from such particular persons assurance of or upon ships goods or merchandizes adventured or some of them, at such rates or prices as the parties assurers and the parties assured can agree, which kind of contract or dealing is commonly called a policy of assur" ance, and several laws and statutes now in force have been made concerning the same assurances; notwithstanding which it is found by experience that many particular persons after they have received large 43 Eliz. c. 12. premiums or consideration-monies for or towards the insuring ships 13 & 14 Car. 2. goods and merchandizes at sea have become bankrupts, or otherwise c. 23. 'failed in answering or complying with their policies of assurance whereby they were particularly engaged to make good or contribute towards the losses which merchants or traders have sustained, to the ruin or impoverishment of many merchants and traders and to the discouragement of adventurers at sea and to the great diminution of the trade wealth strength and publick revenues of this kingdom: And whereas it is conceived that if two several and distinct corporations with a competent joint stock to each of them belonging and under proper conditions rerestrictions and regulations were erected and established for assurance of ships goods or merchandizes at sea or going to sea (exclusive of all or No. III. 6 Geo. I. c. 18. any other corporations or bodies politick already created or hereafter to 'be created, and likewise exclusive of such societies or partnerships as now are or may hereafter be entered into for that purpose) several mer'chants or traders who adventure their estates or part of their estates in such ships goods or merchandizes at sea or going to sea (especially in remote or hazardous voyages) would think it much safer for them to depend on the policies or assurances of either of those two corporations so to be erected and established than on the policies or assurances of private or particular persons; and that such merchants or adventurers as shall hereafter be ininded to agree for assurance of their ships goods or merchandizes with private or particular persons may still be at liberty so to do according to their own option or choice: and whereas it has also been a custom or usage in this as well as in other nations for merchants or traders who adventure their ships and merchandizes at sea to borrow money to be repaid upon the return or arrival of such ships, which kind of borrowing is commonly called taking up money on bottomry; in which cases the lenders rùn a risque or hazard more or less of losing their principal, and are therefore allowed to contract for such interest or consideration-money for the use or forbearance of the principal as can be agreed upon between the borrowers and the lenders; and it is considered, that it may be a great advantage and encouragement to trade and navigation if such merchants and traders might have it in their power at their own election either to have recourse to one of the corporations to be erected and established in pursuance of this Act, or to private or particular persons for borrowing money upon bottomry as aforesaid, at such rate or rates as shall be agreed upon between such borrowers and lenders respectively: And whereas the sole right and ' prerogative of granting charters of incorporation (not being such as are repugnant to any law or statute of this realm) doth belong to your Majesty; and it is considered, that if your Majesty shall be graciously pleased to grant two such distinct charters as aforesaid, the members of each corporation so to be erected and established (for and in consideration of the advantages which may accrue to them respectively thereby and for having reasonable powers and privileges secured to them in pursuance of this Act) may be willing to pay to your Majesty's use such sums of money at such times and by such proportions as are ' herein-after mentioned:' Be it therefore enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled, and by the authority of the same, That it shall and may be lawful to and for his Majesty, by one charter or indenture under the great seal of Great Britain, to declare and grant, That such and so many persons (who shall be named therein and of whose abilities and fitness his Majesty shall thereby declare himself to be well satisfied) and all and every such other person or persons as hereafter froin time to time shall be duly admitted as members into their corporation, shall be one distinct and separate body politick and corporate for the assurance of ships goods and merchandizes at sea or going to sea and for lending money upon bottomry, by such name as his Majesty shall think most proper; and that it shall and may be lawful to and for his Majesty by another charter or indenture under the Great Seal of Great Britain to declare and grant, That such and so many other persons (who shall be named therein and of whose abilities and fitness his Majesty shall thereby declare himself to be well satisfied) and all and every such other person and persons as hereafter from time to time shall be duly admitted as members into their corporation shall be one other distinct and separate body politick and corporate for assurance of ships goods and merchandizes at sea or going to sea and for lending money upon bottomry, by such name as his Majesty also shall think most and that the said several and respective corporations by their to have perpe proper; tual Succession, respective names aforesaid shall have perpetual succession, subject nevertheless to such redemption or power of revocation as hereafter in this Redemption. Act is provided concerning the same. His Majesty may grant Charters to two distinct Companies for Assurance of Ships, and for lending Money on Bottomry. but subject to [They may choose their own governors, &c. The first governor, &c, to be appointed by his Majesty. To continue in their places for three years, &c. To have a common seal. May purchase lands to the value of 1000l. per annum. May sue or be sued.] II. [Each of the corporations to pay into the Exchequer 500,000l. for discharging the debts of the Civil List. 7 Geo. 1. c. 27. sect. 26. Times of payment.] III. [On failure of payment at the times of payment corporation may be sued. Ten per cent. Damages with full costs of suit. On non-payment for thirty days, corporation may be determined.] IV. [Each corporation to provide a sufficient stock to answer all demands on their policies. On neglect may be sued, &c. For pleas in such actions, 11 Geo. I. c. 30. sec. 43. Altered as to double damages by 8 Geo. I. c. 15. sec. 25.] V. [Each corporation to raise a capital stock not exceeding 1,500,000l.] VII. [Corporation may make calls of money from their members in proportion to their stocks. Penalty for not answering to calls.] VIII. [Each corporation may take up money under their common seal to advance money on Parliamentary securities. Not chargeable with the stamp duty.] IX. [Shares in the corporations transferable and deviseable. Stock a personal estate, and to go to executors.] X. [Stock not to be taxed. Governors, &c. may be Members of Parliament, &c.] XI. [His Majesty may empower them by charter to make by-laws, &c.] No. III. 6 Geo. I. c. 18. XII. And be it further enacted by the authority aforesaid, That from During the two and after the granting or making of the said respective charters or inden- Corporations no tures for erecting the two corporations before-mentioned and passing the other Societies same under the great seal for and during the continuance of the same may assure corporations respectively or either of them, all other corporations or Ships or lend bodies politick before this time erected or established, or hereafter to be Money on Boterected or established, whether such corporations or bodies politick or tomry. any of them be sole or aggregate, and all such societies and partnerships as now are or hereafter shall or may be entered into by any person or persons for assuring ships or merchandizes at sea, or for lending money upon bottomry, shall by force and virtue of this Act be restrained from granting signing or underwriting any policy or policies of assurance or making any contracts for assurance of or upon any ship or ships goods or merchandizes at sea or going to sea, and from lending any monies by way of bottomry as aforesaid; and if any corporation or body Penalty for politick or persons acting in such society or partnership (other than the Corporations two corporations intended to be established by this Act or one of them) assuring. shall presume to grant sign or underwrite after the four-and-twentieth day of June one thousand seven hundred and twenty any such policy or policies or make any such contract or contracts for assurance of or upon any ship or ships goods or merchandizes at sea or going to sea or take or agree to take any premium or other reward for such policy or policies, every such policy and policies of assurance of or upon any such ship or ships goods or merchandizes shall be ipso facto void, (1.) and all and (1.) In Lees v. Smith, 7 T. R. 338. where several persons mutually agreed to insure the vessels of each other, and there was a clause, that in case any of them should become insolvent the others should be answerable for his proportion, this mutual security was held to constitute a partnership, and to bring the agreement within the reach of the prohibition. I doubt whether the reasoning in this case was altogether correct; for although a joint and mutual liability necessarily attaches upon and results from a copartnership, it does not follow that it necessarily constitutes one ; or, that as there can be no partnership without a joint responsibility, there can be no joint responsibility without a partnership. Upon the case in question, it would not have been sufficient (supposing the statute out of the question) to have sued a contributor, as a partner primarily liable in respect of the original engagement, but would have been essentially requisite to have proceeded upon the special contract, with an express averment of the insolvency of the particular insurer, for whose deficiency the others were respectively liable to contribute. In Cockburn v. Thompson, 16 Ves. 328. it was said by Lord Eldon, arguendo, that any number of persons may associate for the insurance of each other; all in effect participating as a partnership. Where a partnership was entered into, in contravention of the statute, it was ruled, that one of |