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When actions

have understood the principles of that law, which is fupposed to be in force in this. Valet pro ratione, non pro introducto jure.

Though foreign commerce increafed confiderably in on policies were the reign of Queen Elizabeth, and insurance probably first brought in the courts of increafed in a like degree, yet it appears to have furWeftminster. nifhed but few fubjects of litigation in the courts of Westminster, till towards the clofe of that reign. The first cafe upon infurance which we find in any book of reports is mentioned by Sir Edward Coke, (a) and he notices. it as a mere novelty.-It appears to have been an action brought in the 30th year of Queen Elizabeth, on a policy on a fhip, from Melcombe Regis to Abbeville. The lofs alleged was by detention of the King of France in the river Soane. After a verdict for the plaintiff, the defendant moved in arreft of judgment, on the ground that the fact in iffue, namely, the detention, arofe out of the realm, and therefore could not be tried in London. But it was refolved by the court, that the promife, which was the ground of the action, being made in London, the cause might be tried there; and that the detention, which was the fact in iffue, was not the ground of the action, but a breach of the affumpfit.

Ancient mode

The reason why fo few actions at common law were brought on policies of infurance before the above period, is very diftinctly fet forth in the preamble to the stat. 43 Eliz. c. 12, which recites, that Whereas heretofore affurers have used to stand fo juftly on their credits, that few or no controverfies have arifen thereupon; and if any have grown, the fame have, from time to time, been ended and ordered by certain grave and discreet merchants, appointed by the Lord Mayor of London, as men, by reafon of their experience, fittest to understand, and fpeedily to decide, thofe caufes.' It further recites, that of late years, divers perfons have withdrawn themfelves from that arbitrary courfe, and have fought to draw the parties affured, to feek their monies of every feveral affurer, by fuits commenced in her Majesty's courts, to their great charges and delays.'

From this recital it appears that, before the paffing of of fettling dif- that act, almost all difputes arifing upon contracts of in

putes.

furance,

(a) 6 Rep. 47, b.

furance, were fettled and adjusted by arbitration, and with out reforting to any legal proceedings. And there feems to have been a particular tribunal for fuch arbitrations eftablished in London, compofed of perfons annually appointed by the Lord Mayor, in imitation of fome fuch establishments in other countries. Malyne informs us that there was an Office of Affurances in the weft fide of the Royal Exchange, where infurances were made, and to which belonged certain commiflioners who were annually chofen, and who were probably the grave and difcreet merchants, alluded to in the above recital.

The fame author adds, that the authority of thefe commiflioners was confirmed by act of parliament, in the latter time of Queen Elizabeth, for the obtaining whereof, says he, I have fundry times attended the committees of the faid parliament, by whofe means the fame was en• acted; not without difficulty, because there were many fuits in law by action of affumpfit before that time, upon matters determined by the commiffioners for affu rance, who, for want of power and authority, could not compel contentious perfons to perform their ordi'nances; and the party dying, the affumpfit was accounted 'to be void in law.' (a)

rance erected.

From this it is plain that the decifions of the commif- The court of fioners did not give entire fatisfaction in all cafes; and policies of infu either the infurers began to decline their jurifdiction, and fo drove the infured to feek their remedy by actions at common law, or the infured themfelves began to prefer that mode of proceeding. But be this as it may, the novelty was thought a great grievance, and the more fo, as a feparate action was brought against each underwriter; so that it was thought expedient to give a check to this practice, and therefore the ftatute we have just mentioned, gives 'power to the Lord Chancellor to award, under the great 'feal, a commiffion to be renewed yearly, for the deter'mining of caufes arifing on policies of infurance entered in the office of infurances in London; to be directed to 'the Judge of the Admiralty, the Recorder of London, 'two doctors of the civil law, two common lawyers, and eight difcreet merchants, or to any five of them, who are empowered to hear and determine all fuch

(a) Mal. Lex merc. 106.

caufes

Its powers enlarged.

Fallen into difufe.

'causes in a fummary course, without formalities of pro'ceeding; and to bring parties before them, examine 'witnesses, and enforce their decrees by imprisonment of 'the parties disobeying them.' From these decrees, however, an appeal is given by bill in chancery.

This feems to have been little more than a confirmation of the authority affumed by the commiffioners of the Office of Affurances, with a grant of the power of enforcing their decrees. But it happened in this, as it has in most cafes where it has been attempted to innovate upon the modes of adminiftering juftice prescribed by the common law, that this new jurifdiction was found defective in many respects, and therefore the ftat. 13 & 14 C. II. c. 23, provides, that three instead of five commiffioners, (of whom a doctor of the civil law, or a barrister of five 'years standing, fhall be one,) may act; that they shall have power to punish witneffes for wilful delay; to direct admiralty commiffions to iffue for the examination of witneffes beyond fea; to enable one commiffioner 'to examine witneffes going to fea before a court can be fummoned, notice being given to the adverse party.' But with all these additional powers, the court did not long continue to exercise its functions, and foon fell into difufe. To this many caufes contributed; 1. Its jurif diction being confined to fuch infurances only as related to merchandize, the court could not proceed in a cafe upon any other species of infurance, (a) and the parties, in fuch cafe, were obliged to refort to the courts of common law.-2. It was determined, how properly it is not now neceffary to inquire, that it was no bar to an action on a policy in one of the courts of Westminster, to allege that the plaintiff had before fued the defendant, for the fame cause, in the court of policies of insurance, and that his fuit was there dismissed. (b) And it is not a little fingular, that though this was decided in the year 1656, before the ftat 13 & 14 C. II. ; yet the framers of that act made no provifion to remedy a defect that muft fooner or later prove fatal to the jurifdiction of the court.

3. It was doubted whether its jurifdiction was not confined to fuits brought by the infured against the insurer, and

(a) R. Bendyr v. Oyle, Sty. 166, 172,—-(b) R. Came v. Moy, 2 Sid. 121.

and whether it could afford any relief upon a complaint made by the latter against the former. (a)-It has been faid alfo, that the jurifdiction of the court was confined to fuch causes only as arofe in London. (b)-It is true that the power given by the act is, to hear and deter'mine causes arifing on policies of affurance, fuch as are 'now, or hereafter fhall be, entered in the office of af furances in the city of London.' But we learn from Ma

lyne (c) that in this office all policies were registered verbatim, to the end that if a policy should be loft, the insured might not be without evidence of the contract; fo that it would seem that the object of the above clause was not to confine the jurisdiction of the court to policies made in London.

But befide the defects of jurifdiction in the court, and the constant partiality of Englishmen for the common law forms of judicature, another caufe, appearing on the face of the ftatute itself, must have, in fome degree, contributed to its downfal. The act directs, that the commif'fioners fhall, once in every week at least, meet and fit upon 'the execution of the commiffion; and that no perfon, by virtue of the act, might claim or exact any fee, for any matter or 'caufe concerning the execution of the commiffion. With such a clause in the act, it will not be wondered, if the judges and officers of this court did not attend with the requifite punctuality to the difpatch of bufinefs. Indeed it would feem, from an observation of Mr. Juftice Twifden, in the case of Suifter v. Coel, that the proceedings in this court where no forms of proceeding were to be obferved, were even more dilatory than in the courts of Westminster. (d) -It is remarkable, too, that the ftat. 6 G. I. c. 18, which authorizes the establishment of the two infurance companies, exprefsly provides that all actions on the policies of these companies fhall be brought in the courts of Weftminfter. This fhews that, at that time, the court of policies of infurance was already fallen into difufe, or, what is more probable, that it was fallen into difrepute, and that those who promoted these establishments meant to ouft that court of all jurifdiction in fuits upon their policies.

From this time, it may be reasonably supposed, that all Common law fuits on policies of insurance were brought in the courts of courts.

common

(a) Delbye v. Proudfoot, 1 Show. 396.-(b) Park, Introd. 45) Lex merç. 115.-(d) 2 Keb. 930.

Lord C. J. Lee.

Lord Mansfield.

common law; and yet but few queftions on this subject appear to have been determined in the courts of Weftminster before the middle of the last century. Whether this arofe from the number of infurances in England being inconfiderable, compared to what they have fince become, or from the parties being ftill in the habit of fettling their differences by arbitration, or from both these causes united, it is not eafy now to determine. This, however, is certain, that after fome of the decifions of the courts of Weftminfter, upon queftions of infurance, came to be generally known, the confidence which the juftice, impartiality, and ability of thofe courts infpired throughout Europe, foon induced the merchants of all countries to prefer English infurances to thofe of any other country. Even our enemies, in time of war, were not afraid to rely on British justice, and they still continued to cause the greatest part of their infurances to be effected in London, fuch infurances being for a long time most unaccountably tolerated by the British government. (a)

During the time when Lord Chief Justice Lee presided in the court of King's Bench, many cafes came before him which were chiefly decided at Nifi prius, but upon fuch just and found principles, that very few of them afterwards came before the court for reconfideration.

Upon Lord Mansfield's fucceeding to the fame high office, upon the death of Sir Dudley Ryder, he foon found a confiderable influx of bufinefs to the court of King's Bench, arising, in a great measure, from the celebrity of his own talents. A great increase of infurances, not only upon British commerce, but likewife upon that of other countries, produced, about this time, a number of caufes upon this fubject, to which it besame neceffary for him to turn his particular attention; and indeed he feems to have taken pleasure in the difcuffion of queftions arifing upon this contract, in which, more, perhaps, than upon any other fubject, he difplayed the powers of his great and comprehenfive mind. From the books of the common law very little could be obtained but upon the fubject of marine law, and the particular fubject of infurances, the foreign authorities were numerous, and in general fatisfactory. From thefe,

(a) See this fubje&t fully confidered inf. ch. 2, f. 1,

and

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