(as there is in Pennsylvania), (d) the assignee in a case of assignment in trust must sue in the name of the assignor, who will not be permitted to defeat or prejudice the right of action of the assignee. The declaration, in such a suit, may contain the averment that the plaintiff sues as mere trustee, and that the whole interest is in others. (e)

*

*(3) Of Insurable Interests. The assured must have 262 a lawful interest subsisting at the time of the loss in the subject insured, to entitle him to recover upon his policy. That interest may be absolute or contingent, legal or equitable. It may exist in him not only as absolute owner, but also in the character of mortgagor or mortgagee, borrower or lender, consignee, factor, or agent, and may arise from profits, freight, or commissions, or other lawful business. The subject will be better illustrated by considering it with its qualifications under the following heads, viz.: 1. Illicit Trade. 2. Contraband of War. 3. Seamen's Wages. 4. Freight, Profits, and Commissions. 5. Open and Valued Policies. 6. Wager Policies. I shall treat of each of them in their order.

1. (Of illicit trade.) - The proper subject of insurance is lawful property engaged in a lawful trade; and if the voyage, as

(d) 1 Binney, 429.

(e) 2 Condy's Marshall on Insurance, 800, 803, 805; 1 Phillips on Insurance, 11 ; Carter v. United Ins. Company, 1 Johns. Ch. 463; Wakefield v. Martin, 3 Mass. 558; Bell v. Smith, 5 B. & C. 188; Ashhurst, J., in Delaney v. Stoddart, 1 T. R. 22; Craig v. The United States Ins. Company, 1 Peters C. C. 410. A clause in a policy, that it shall be void if assigned without the consent, in writing, of the insurer, is taken strictly, and means an effectual transfer or pledge of the particular policy. In Massachusetts, it has been decided, that if there be an absolute transfer of the subject insured before loss, the contract of insurance is avoided, for the assured cannot sue, as he has not suffered any loss, and the assignee cannot sue, for he is no party to the contract. But if the assignment be in the nature of a mortgage, or in trust, the insured may nevertheless sue and recover to the extent of his residuary interest. Carroll v. The Boston Marine Ins. Company, 8 Mass. 515; Lazarus v. Commonwealth Ins. Company, 5 Pick. 76. In Delaney v. Stoddart, 1 T. R. 22, Ashhurst, J., said that a policy might be assigned in equity; and that in the K. B. an action would be permitted to be brought by trustees. So also in Powles v. Innes, 11 M. & W. 10, Parke, B., observed, that parties might sue as trustees for the purchaser. It would seem from the cases, that an assignment of a policy is only available when transferred in trust. Heath v. American Ins. Company, N. Y. Superior Court, May, 1841. See, also, infra, 371, 375, as to the assignment of policies against fire. The principle seems to be the same in both cases, that if the interest insured be assigned before loss without the consent of the insurer (and then it becomes a new contract), the policy ceases. [Post, 376, n. 1.]

originally insured, be lawful, a subsequent illegality does not affect it, if the loss be not tainted with such illegality. We have seen that the property of enemies, and a trade carried on with enemies, do not come within this definition. So, an insurance on a voyage, undertaken in violation of a blockade, or of an embargo, or of the provisions of a treaty, is illegal, whether the policy be on the ship, freight, or goods embarked in the illegal traffic. (a) Any illegality in the commencement of an entire voyage will render the whole illegal, and destroy the policy intended for its protection. (b) 1

It is a clear, settled, and universal principle, that an insurance on property, intended to be imported or exported, contrary to the law of the place where the policy is made, or sought to be enforced, is void. The illegality of the voyage in all cases avoids the policy, and the voyage is always illegal when the goods or trade are prohibited, or the mode of its prosecution violated the provisions of a statute. (c) No court, consistently with its duty, can lend its aid to carry into execution a contract which involves a violation of the laws the court is bound to administer. (d) *It has been a question of great discussion, whether a trade prohibited by one country might be made the subject of lawful insurance, to be protected and enforced in the courts

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(a) The Hurtige Hane, 3 C. Rob. 324; Dalmady v. Motteux, K. B. 25 George III. [1 T. R. 85, n. ;] Park on Insurance, 311; Harratt v. Wise, 9 B. & C. 712; Medeiros v. Hill, 8 Bing. 231; Sir W. Scott, in The Eenrom, 2 C. Rob. 6; Hughes on the Law of Insurance, 70.

(b) Wilson v. Marryatt, 8 T. R. 31; Bird v. Appleton, ib. 562. But the transportation of prohibited goods ought not and does not affect a distinct policy upon the lawful goods in the same voyage, of a distinct owner. The Jonge Clara, Edw. Adm. 371; Pieschell v. Allnutt, 4 Taunt. 792.

(c) Duer on Insurance, i. See Proofs and Illustrations, 380-387.

(d) Johnston v. Sutton, Doug. 254; The United States v. The Paul Shearman, 1 Peters C. C. 98; 1 Phillips on Insurance, 35; 1 Emerigon, 210, c. 8, sec. 5. And see his opinion in a note to 2 Valin, 130, in which he refers to Straccha de Assecur. Glossa, 5, n. 2, 3, where we have the establishment of the above doctrine, that the insurance of prohibited goods is null and void, founded on the sound principle, that in mercibus illicitis non sit commercium. The same principle is in Roccus, de Assecur. n. 21, and he copied it almost verbatim from Santerna, de Assecur. et Spons Merc. pt. 4, n. 17. A policy on goods shipped in breach of municipal laws affects not only the policy upon the goods themselves, but also those upon the ship and freight, for a voluntary reception of the goods on board is a violation of law. Gray v. Sims, 8 Wash. 276.

1 See Cunard v. Hyde, 2 El. & El. 1; Wilson v. Rankin, 6 Best & S. 208; L. R.

1 Q. B. 162; Kelly v. Home & Croton Ins. Co., 97 Mass. 288.

of another in which the prohibition does not exist. This question involves principles in politics and morals of momentous importance, and yet the jurists of England and France have differed widely in opinion upon it. Valin and Emerigon consider the insurance of goods, employed in a foreign smuggling or contraband trade, to be valid, provided the insurer was duly informed, when he entered into the contract, of the nature of the trade. The French Admiralty of Marseilles, in 1758, sustained and enforced a contract of insurance in favor of a French merchant who attempted to export silks from Spain, contrary to the law of that country, and whose vessel was, in consequence thereof, seized, and the cargo confiscated. Emerigon justified the decision in France, under the broad terms of the policy, which assumes the aversio periculi, and by the usage of the commercial nations, who permit their subjects to carry on, at their own risk, a smuggling trade, contrary to the revenue laws of other countries. (a) Valin concurs in the opinion with Emerigon; (b) but their conclusions were met and opposed by the manly sense and stern moral principles of Pothier, who denied that it was permitted to Frenchmen to carry on, in a foreign country, a contraband trade prohibited by the laws of the foreign country. (c) They who engage in foreign commerce are bound, by the law of nature and nations, to act in obedience to the laws of the country in which they transact business. Every sovereign possesses a rightful and supreme jurisdiction within his own territory. He has a right to * 264 regulate the commerce of his subjects in his discretion; and so far as foreigners interfere with that commerce within his dominion, they are equally bound with natives to obey the laws which regulate it. If Frenchmen, trading in Spain, were not bound by the Spanish laws, the subjects of Spain are bound by them, and it is immoral for foreigners to seduce Spaniards into an illicit trade. In every view, according to Pothier, the commerce was illicit, and contrary to good faith, and the insurance of it was equally inadmissible, and created no valid obligation.

Emerigon, who was enlightened, as he admits, in the whole course of his work, by the luminous mind of Pothier, as the latter was by Valin, bows to the irresistible energy of the principles of Pothier, and concedes, that the insurance of a foreign smuggling

(a) 1 Emerigon, 210-215; 2 Valin, 128, note. (b) Com., des Assur. ii. 127.

(c) Traité des Ass. n. 58.

or contraband trade is rather tolerated than justified, and allowed only because other nations have indulged in the same vicious practice. (a)

265 *In England, the law of insurance is the same as it is in France. A policy, unlawful by the law of the land where it is made, is void everywhere; but an insurance upon a smuggling voyage, prohibited only by the law of the foreign country where the ship has traded, or intends to trade, is good and valid, on the principle, which has been adopted from a motive of supposed policy, that one country does not take notice of the revenue laws of another, nor hold itself bound to repudiate commercial transactions which violate them. If the underwriter, therefore, with full knowledge that he was covering a foreign smuggling trade, makes the insurance, it is held to be a fair contract between the parties, and he is bound by it. (a) The decisions of Lord Mansfield on this subject must be considered as laying down an exceedingly lax morality, particularly in the case of Planché v. Fletcher, where an insurance upon a voyage in which it was intended to defraud the revenue of a foreign state was held not to be illegal, though fictitious papers were fabricated for the purpose of facilitating the fraud. Lord Hardwicke had advanced similar doctrines in Boucher v. Lawson, (b) when he declared, that the unlawfulness, by the Portuguese laws, of exporting gold from Portugal, made no difference in the action at London, for in England it was a lawful trade. The statute of 19 Geo. H. c. 37, was made even with a view to favor the smuggling of bullion from the Spanish and Portuguese colonies. Lord Kenyon, in the case of Waymell v. Reed, (c) seemed to have felt the pressure of the unsound and immoral principle involved in the doctrine of the English courts, for he purpose y waived the inquiry, whether

(a) It is admitted that such an insurance is not binding, if the underwriter was not informed of the prohibited trade. He must know that he was insuring a contraband or smuggling trade. Roccus, de Ass. n. 21, says, that such an insurance is not binding ignorante assecuratore; and Santerna, de Assecurat. pt. 4, n. 17, whom Roccus cites, uses the same words. Roccus copied from him; and yet those qualifying expressions, and which are so material to the question, do not appear in Mr. Ingersoll's translation of Roccus. I mention this without the least intended disparagement of that very useful translation, the general accuracy of which is undoubted.

(a) Planché v. Fletcher, Doug. 251; Lever v. Fletcher, Hil. Vac. 1780, cited Park on Insurance, 313, 6th ed.

(b) Cases Temp. Hard. [85, 89.]

(c) 5 T. R. 599.

or not it be immoral for a native of one country to enter into a contract with the subject of another, to assist the latter in defrauding the revenue * laws of his country. The Eng- *266 lish writers on insurance have not concurred entirely in opinion on the question; for while Millar, in his essay on the Elements of Insurance, approves of the English rule, and Mr. Justice Park admits it without any complaint, there are other writers, equally intelligent, who most pointedly condemn the doctrine. (a)

In this country, we have followed the English rule, as declared by Lord Mansfield, to the full extent; and the underwriter is liable for losses in consequence of violations of the trade laws of foreign states, provided he was apprised of the intention, on the part of the insured, to violate such laws, either by the terms of the policy, or the standing regulations of the place to which the vessel is insured, or the known usages of the trade. But it is well understood and settled, that the underwriter is not liable for any loss arising from foreign illicit trade, unless he underwrote with full knowledge, that such a trade was the object of the voyage. An insurance to a port does not include the risk of going into the port in violation of law, unless the peril of illicit entry at the port be also within the provision or contemplation of the policy. All the authorities, foreign and domestic, recognize this doctrine. If the trade be known by the underwriter to be illicit, and he makes no exception of the risk of illicit trade, it will be presumed he intended to assume it. The implication would be very fair and just, and would supply the place of more direct proof. (b) It is certainly matter of surprise and regret, that in such countries as France, England, and

(a) Millar on Insurance, 23; Park on Insurance, 313; Condy's Marshall on Insurance, i. 60; Chitty on Commercial Law, i. 82, 84.

(b) Valin, ii. 127; Planché v. Fletcher, Doug. 251; Roccus, de Ass. not. 21; Gardiner . Smith, 1 Johns. Cas. 141; Richardson v. Maine Ins. Company, 6 Mass. 102; Parker v. Jones, 13 id. 173; Andrews v. Essex Fire and Marine Ins. Company, 3 Mason, 18, 20; Archibald v. M. Ins. Company, 3 Pick. 70. It has been usual in American policies, for the assured to warrant "free from damage or loss in consequence of seizure, or detention of the property for, or on account of, any illicit or prohibited trade." But notwithstanding the warranty, the insurer is liable for loss by seizure and confiscation for an illicit traffic barratrously carried on by the master and crew at a foreign port, without the knowledge or privity of the owner. Suckley v. Delafield, 2 Caines, 222; Dunham v. American Ins. Company, 2 Hall (N. Y.)

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