The doctrine of the European law, on this subject, was extensively discussed and explicitly recognized in New York, in the case of Griswold v. Waddington; (b) and as that doctrine is founded on the same principle of general policy which interdicts all commerce and trading with the enemy in time of war, it may be considered as the established law of this country.1

With respect to persons who may be insurers, the rule of the common law prevails with us; and any individuals, or companies, or partnerships may lawfully become insurers; and we have no incorporated companies, like those of the Royal Exchange Ass irance and the London Assurance companies, with the monopoly or exclusive right of making insurance as a company or partnership on a joint capital. Each part owner may insure for himself, and may act his pleasure as to the insurance of his individual proportion of interest. (c) During the colonial government of this country, as well as for the first fifteen or twenty years after the peace of 1783, the business of insurance was almost entirely carried on by private individuals, each taking singly for *257 (b) 16 Johns. 438.

(c) A policy is not divisible, and if bad in part, it is bad in toto; and if void in its inception as to one of the owners, it is void as to all. Parkin v. Dick, 11 East, 502; Camelo v. Britten, 4 B. & Ald. 184; Lord Kenyon, in Bird v. Pigou, cited in 1 Phillips on Ins. 91; [2 Selw. N. P. 18th ed. 932;] Clark v. Protection Ins. Co., 1 Story, 109. In Keir v. Andrade, 6 Taunt. 498, it was decided, that if part of the goods were lawful, and the residue not, the goods not subject to forfeiture were protected by the policy. But the rule is too well settled to be disturbed, that the partial illegality of an entire contract renders the whole void, and it applies as well to the contract of insurance as to others. The more equitable rule, that the policy is void only as to the illegal part, prevails in France. Pothier on Ins. n. 44; Duer on Insurance, 324-327, 393. Mr. Duer is for confining the severity of the English rule to contracts of insurance neces sarily entire, and not susceptible of being treated as distinct and several.

1 Effect of War. - It has been held in cases arising out of the rebellion, that a contract of insurance which was made and partly executed before the war and which cannot be dissolved without loss to one party, although it would be suspended if it could not lawfully be carried into execution, (Semmes v. City F. Ins. Co., 36 Conn. 543), will neither be dissolved nor Buspended, if it can be carried into execution consistently with the allegiance of both parties. Manhattan Life Ins. Co. v. Warwick, 20 Gratt. 614; New York Life Ins. Co. v. Clopton, 7 Bush (Ky.), 179;

ante, i. 67, n. 1. With regard to agreements made during the war, it may be added that since the above note in vol. i. was stereotyped, a decision contrary to that of Kershaw v. Kelsey, there mentioned, has been reached by the Supreme Court of Iowa. Hill v. Baker, 82 Iowa, 302. Cases arising out of the rebellion were thought to stand on a peculiar footing in McStea v. Matthews, 8 Daly, 349, where it was held that a partnership between resi dents in the two sections was not dissolved But see Howell v. Gordon, 40 Ga. 802.

himself, and not in solido, a risk to the amount of his subscription. (a) But incorporated companies began to multiply and supplant private underwriters, and the business of insurance in the United States is now carried on almost exclusively by incorporated companies. Individuals and unincorporated partnership companies are still at liberty to carry on the business of insurance to any extent they please, and the success of any such competition with the incorporated companies would depend upon the ability to command confidence, and the judgment and skill with which the business was conducted. (b)

(2) Of the Terms and Subject of the Policy, and the Force of Usage thereon. If the ship be specified in the policy, (c) 1 it

(a) As early as 1725, Francis Rawle, of Philadelphia, proposed the establishment, under legislative sanction, of a marine insurance office. This he did in a small volume printed by Dr. Franklin, and the first book he ever printed. See App. to Mr. Wharton's memoir of the late William Rawle, Esq.

(b) Marine insurance was formerly a lawful business in New York, equally open to all the world; but in 1829, the Legislature, by statute (Laws of New York, sess. 52, c. 336), prohibited marine insurance, or lending on respondentia or bottomry, effected within the state, to all persons and companies residing in any foreign country, acting by any agent here. Persons and associations in other states, effecting such insurances in New York, were taxed ten per cent on their premiums. The same check and prohibition applies to insurances in New York against fire. N. Y. Revised Statutes, i. 714. See, further, infra, 371. The statute law of Pennsylvania also prohibits all kinds of insurance by foreign corporations or companies within the state. Purdon's Dig. 545. The law in Massachusetts is more liberal, and it allows incorporated insurance companies in other states and in foreign countries to insure by their agents, upon compliance with certain conditions, intended to guard against abuse. Act of 1816, and Revised Statutes of 1836. Every incorporated insurance company in Massachusetts may insure vessels, freight, money, goods, and effects, and against captivity of persons, and on the life of any person at sea, and on money lent upon bottomry and respondentia, and against fire; on dwelling-houses and other buildings, and on merchandise or other property within the United States. Statutes, 1817, 1819. Revised Statutes, 1836, pt. 1, tit. 13, c. 37, sec. 2.

(c) A policy of insurance must be in writing, according to uniform usage and practice, and this is specially required by the statute of 35 George III., and by most of the

1 Oral and Written Policies. - Apart from statute, a contract of insurance need not be in writing Commercial Mut. M. Ins. Co. v. Union Mut. Ins. Co., 19 How. 318; Trustees of First Baptist Church v. Brooklyn F. Ins. Co., 19 N. Y. 305; Walker v. Metropolitan Ins. Co., 56 Me. 371; Mobile Marine Dock & M. Ins. Co. v. McMillan, 31 Ala. 711; Constant v. Ins. Co., 3

Wall. Jr. 313; Sanborn v. Fireman's Ins. Co., 16 Gray, 448; Goodall v. N. E. Mut. Ins. Co., 25 N. H. 169, 193. Compare Security F. Ins. Co. of N. Y. v. Kentucky M. & F. Ins. Co., 7 Bush (Ky.), 81; New England F. & M. Ins. Co. v. Robinson, 25 Ind. 536; with Henning v. U. S. Ins. Co., 47 Mo. 425. The last cited case differed from the others in hold

becomes part of the contract, and no other ship can be substituted without necessity; but the cargo may be shifted from one ship to another, if it be done from necessity, and the insurer of it will still be liable. (d) An insurance on the body of a ship, except

foreign ordinances. Printed forms of policies are universally in use. Duer on Insurance, i. 60, 62, and 64, n. 3. There are said to be six essential parts to every policy: 1. The parties; 2. The premiums; 3. The subject insured; 4. The amount insured; 5. The risks; 6. The voyage or term of the risk; and by the statute of 35 Geo. III. no duration of the term of any policy can be for a longer term than twelve months. Duer, ub. sup. 59, 101, 107, n. 3, 4. The application for insurance is usually made in writing. The policy need only be signed by the insurer, for the obligations on the part of the assured are conditions merely on the performance of which his right to indemnity depends. The policy itself contains an acknowledgment of the premium. Ib. 65. It is perfect and binding as soon as the terms are agreed on, and the policy signed by the designated officer, without actual delivery. Kohne v. Ins. Co. N. America, 1 Wash. 93. Even if the terms of the policy be agreed on in writing, equity will enforce the execution of the policy or payment, though a loss occurs in the mean time. Motteux v. The London Ass. Co., 1 Atk. 545; Perkins v. Wash. Ins. Co., 4 Cowen, 646; M'Culloch v. Eagle Ins. Co., 1 Pick. 278. This last case allows a remedy in such case at law. Mead v. Davison, 3 Ad. & El. 303.

(d) [Salisbury v. Marine Ins. Co. of St. Louis, 23 Mo. 553.] The owner may change the master of the vessel insured in his discretion, without prejudice to the

ing that the charter and by-laws of the defendant company made an oral agreement to insure invalid.

In those jurisdictions where a written policy is not necessary, there is a tendency to hold that a policy made in pursuance of an oral agreement is binding as soon as executed, while still in the hands of the company, and is held by them to the use of the insured. Kohne's case, cited in the note (c), seems to go no further than this. Hallock v. Commercial Ins. Co., 2 Dutcher, 268; 3 Dutch. 645; Baxter v. Massasoit Ins. Co., 13 Allen, 320. See Real Est. M. F. Ins. Co. v. Roessle, 1 Gray, 336; (explained 16 Gray, 454;) Lindauer v. Delaware M. S. Ins. Co., 18 Ark. 461.

When, however, as in England, an instrument in writing is required by statute, a delivery of the instrument seems to be as necessary as in other cases. Whether it has been delivered or not is rather a question of fact than of law. A policy purporting to be signed, sealed, and de

livered by an insurance company, and made in conformity to the terms assented to by the insured on a slip of the sort explained, post, 286, n. 1, was held binding on them by the House of Lords against the opinion of a majority of the judges, although it had never left the hands of the company; the custom being for the insurers to keep it until sent for by the assured or his broker. The grounds were that the statement on the policy was to be taken as conclusive against the company; that the policy was to be treated as delivered from the moment the parties intended it to be operative (having the custom in view); and that the practice of executing the policy in the absence of the insured, and waiting for him to send for it, assumes a previous assent on the part of the insured to the policy to be executed. Xenos v. Wickham, L. R. 2 H. L. 296; 14 C. B N. s. 435; 13 C. B. N. s. 381; an able statement of the opposite view will be found in the judgment of Willes, J., L. R. 2 H. L. 313.

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when varied by special agreement, sweeps in, by the comprehensiveness of the expression, whatever is appurtenant to the ship. This is the doctrine taught in all the continental writers on insurance, as well as in the English law. (e) An insurance on a ship means prima facie the legal interest in the vessel, and not the mere equitable interest, and if the policy be intended to *258 cover the equitable interest only, that * interest ought to

be disclosed to the insurer. (a) An insurance will be valid without naming the ship, as upon goods on board any ship or ships; and it becomes sometimes a nice question as to the application of the loss, when there are two or more policies of that loose description on different parcels of goods. (b)1 So, it will be valid if made on account of A., or of whom it may concern. (c) In England, the statute of 25 Geo. III. c. 44, prohibits insurances in blank, as to the name of the insured; and the name of the party in interest, or some agent in his behalf, must be inserted, and the policy cannot be applied to any property which does not belong to the party named, or in which he is not interested; but the suit on the policy may be brought in the name of the principal or agent. (d) The interest of the real owner may

insurance, provided it be done in good faith, and a substitute of competent skill be provided. Platt, J., Walden v. Firemen Ins. Company, 12 Johns. 128. It is immaterial whether the written words of a policy be inserted in the body of the instrument, or written on its face, or in the margin. De Hahn v. Hartley, 1 T. R. 343; Bean v. Stupart, Doug. 11; Kenyon v. Berthon, ib. 12, n. But Mr. Duer thinks, and justly, that a memorandum on the back of a policy, not referred to in the instrument, nor signed by the insurer, is a nullity. Duer on Insurance, i. 76. So a material alteration in a policy, without the consent of the insurer, though made in the margin or by interlineation, destroys it; if the alteration be immaterial, it is otherwise. The cases to this point are collected in Duer on Insurance, i. 143, n.; ib. 81. Insurances are to be liberally construed in favor of the assured, for that is most consonant to the intentions of the party. So an exception to the risks is to be construed strictly against the insurer, and for the same reason. Ib. 161.

(e) Emerigon, i. 423; Boulay-Paty, iii. 379; Pardessus, iii. n. 758; Plantamour ». Staples, 1 T. R. 611, note.

(a) Ohl v. Eagle Ins. Company, 4 Mason, 390. [Bailey v. Hope Ins. Co., 56 Me. 474.]

(b) Emerigon, i. 173; Kewley v. Ryan, 2 H. Bl. 343; Henchman v. Offley, ib. 845,

note.

(c) Boulay-Paty, iii. 528, 531, iv. 28.

(d) Cox v. Parry, 1 T. R. 464. It may be brought in the name of the party by

1 Running Policies. — Running policies upon goods on board ships as may be declared have become common. The assured

can appropriate such a policy to goods on board any ship, and if the appropriation is made in good faith, and the ship de

be averred and shown; but if one partner insures in his own name only, the policy will cover his undivided interest in the partnership, and no more. (e) If the policy has the words, and whomsoever it may concern, then it will cover the whole partnership interest; (f) and Valin and Boulay-Paty think it covers the whole, if the policy be generally on his goods. (g) On such a policy an action may be maintained by any one of the owners whose interest was intended to be insured by it. It will cover a person who has but a special interest, as by lien or otherwise. (h) Those general words, whom it may concern, will only apply to the person having an interest in the subject insured, and who was in the contemplation of the contract. (i) 2 But a policy

whom or for whom the contract was made. Bayley, J., in Sargent v. Morris, 3 B. & Ald. 280, 281. [Somes v. Equitable Safety Ins. Co., 12 Gray, 531.]

(e) Valin's Comm. ii. 34; 1 Emerigon, 293, 294; Graves v. Boston Marine Ins. Company, 2 Cranch, 419; Dumas v. Jones, 4 Mass. 647; Turner v. Burrows, 5 Wendell 541.

(ƒ) Lawrence v. Sebor, 2 Caines, 203.

(9) Valin, ii. 34; Boulay-Paty, iii. 386.

(h) Catlett v. The Pacific Ins. Company, 1 Wend. 561; s. c. 4 id. 75.

(2) Newson v. Douglass, 7 Harr. & Johns. 417; Bauduy v. Union Ins. Company, 2 Wash. 391; De Bolle v. Pennsylvania Ins. Company, 4 Wharton, 68. The insured must have an interest in the property when the insurance was made, and at the time of the loss. Hancox v. Fishing Ins. Company, 3 Sumner, 132.

clared to the underwriter at the earliest convenient opportunity, he will be bound, although the ship has been lost before he is notified. Gledstanes v. Royal Exch. Ass., 5 Best & Sm. 797 (a strong case); E. Carver Co. v. Manufacturers' Ins. Co., 6 Gray, 214. See Ionides v. Pacific Ins. Co., L. R. 6 Q. B. 674, 682. But compare Douville v. Sun M. Ins. Co. of N. Y., 12 La. An. 259; Hartshorn v. Shoe & Leather Dealers' Ins. Co., 15 Gray, 240, 246, 249; Pierce v. Columbian Ins. Co., 14 Allen, 320, 321; Edwards v. St. Louis Perpetual Ins. Co., 7 Mo. 382.

But it has been held that when the premiums, of which the receipt was acknowledged in the body of a running policy, were nominal, and were to be increased or reduced at the time of indorsement, according to the rating and nationality of the vessel, such clauses to apply

as the company might insert, as the risks were successively reported, the contract did not attach to a particular shipment until this was done. Orient Mut. Ins. Co. v. Wright, 23 How. 401; Sun M. Ins. Co. v. Wright, ib. 412. See Douville v. Sun M. Ins. Co. of N. Y., 12 La. An. 259; Hartshorn v. Shoe & Leather Dealers' Ins. Co., 15 Gray, 240; Pierce v. Columbian Ins. Co., 14 Allen, 320, 321. But see dissenting opinion of Clifford, J., 23 How. 414; Bunten v. Orient M. Ins. Co., 8 Bosw. 448; 2 Keyes, 667; Rolker v. G. W. Ins. Co., 3 Keyes, 17, 22.

2 Watson v. Swann, 11 C. B. N. 8. 756; Steele v. Franklin F. Ins. Co., 17 Penn. St. 290; Haynes v. Rowe, 40 Me. 181; Augusta Ins, & B. Co. of Ga. v. Abbott, 12 Md. 348; Protection Ins. Co. v. Wil son, 6 Ohio St. 553; Duncan v. Sur Mut Ins. Co., 12 La. An. 486. See 872, a. 1.