SECTION VIII. DEEDS OF SEPARATION. THE law in respect of the validity of deeds made in contemplation of a future separation, does not appear to be clearly settled. In Rodney v. Chambers," the court decided that the *husband's covenant with the wife's trustees to pay her an an- *1122 nuity as a separate maintenance, in the event of a separation in future taking place between them, with the approbation of the trustees, was a legal and valid covenant; and that the trustees were entitled to recover, in an action against the husband, the arrears which had accrued on the annuity after separation. In Chambers v. Caulfield," the preceding case was thoroughly canvassed, and its authority never doubted. With reference to it, Lawrence, J., thus expressed himself. "In that case there was an averment that the separation was with the consent of trustees; we thought there was nothing illegal in the parties agreeing to refer the question what was a good cause of separation to a domestic forum. The court, therefore, only decided in that case, that a covenant for separation and a separate maintenance was good, not that a covenant was good generally, that a wife might separate herself from her husband whenever she pleased, for that would be to make the husband tenant at will to the wife of his marital rights." See also Lord Vane's case. But the decision of Rodney v. Chambers is considered as virtually overruled by the case of Durant v. Titley, which came before the court on a writ of error; there the judges said that the courts had already gone too far, consistently with policy and morality, in supporting deeds of separation; they decided that a deed providing for a future separation was void. The case of Durant v. Titley, however, differed from the preceding cases, for the effect of the deed in that case, was to provide a separate maintenance for the wife, whenever she should be living apart from her husband, leaving it to her to separate from him ut pleasure; whereas in Rodney v. Chambers, the deed provided for the wife only in the event of a future separation, with the approbation of the trustees. In Jee v. Thurlow, Abbott, C. J., said, that in deciding Durant v. Titley, it was not intended to shake any former decision; and Mr. Justice Bayley observed, that in Rodney v. Chambers the intervention of impartial persons was *required to decide, whether sufficient cause of separation did *1123 or did not exist. So that it is clear that the court in Jee v. Thurlow did not consider Rodney v. Chambers as overruled a 2 East, 283. e 2 Stra. 1202. 13 East, 171, in notis. 2 B. & C. 551. (9 Eng. C. L. 174.) b 6 East, 244. 47 Price, 577. Subse quent co habitation avoids a by Durant v. Titley. The principle laid down by Durant v. Titley was recognised and acted upon in Hindley v. the Marquis of Westmeath," in which "the deed of separation was in terms similar to that before the court in Durant v. Titley."b с With reference to Durant v. Titley, it is said, that it may now be considered that a deed or settlement providing a separate maintenance for a wife or an intended wife, in the event of future separation, either with or without the consent of trustees or other persons, is a provision which will not be enforced either at law or in equity. Yet see what the court said in Jee v. Thurlow, supra. A deed of separation is rendered void by subsequent cohabitation, unless it contains an express provision to the contrary. As where a husband gave a bond to trustees conditioned for deed of se- the payment of an annuity to his wife, &c. unless she should paration. molest him; and entered into a deed of separation, containing a provision for the maintenance of the wife, in which it was provided, "that if he and his wife should thereafter agree to live together again, such cohabitation should in no way alter the trusts created by the indenture." The defendant and his wife separated, and afterwards lived together again for a time, and this fact was pleaded to an action by the trustees upon the annuity bond as avoiding that security; held, on demurrer to the plea, that the reconciliation was no bar to an action on the bond; for there was nothing in the deed to show that the parties intended that the trust should be avoided, in case of their again cohabiting. But on the contrary it was expressly provided that the trusts should be continued, though a reconciliation should take place. Though the deed contained *1124 some covenants which a court of equity would not enforce, that did not destroy the effect of the whole. A private understanding or agreement between husband and wife to live separate, is not recognised by law. A deed of separation between husband and wife, was held not to bind the wife surviving, nor to deprive her of her share in her husband's personal estate to which she was entitled by the custom of the city of London. 6 B. & C. 200. (13 Eng. C. L. 141.) Per Abbott, C. J., 6 B. & C. 211. Westmeath v. Westmeath, 1 Jacob, 140. 1 Dow. & Clarke, 510. Westmeath v. Salisbury, 5 Bligh. N. S. 339. ⚫ 2 Roper, 281. d Bateman v. Ross, 1 Dow. 235. Durant v. Titley, supra. Scholey v. Goodman, 8 Moore, 350. Fletcher v. Fletcher, 2 Cox, 105. • Wilson v. Mushett, 3 B. & Ad. 743. (23 Eng. C. L. 175.) Per Sir John Nicholl, in Smyth v. Smyth, 1 Hagg. 514. Slater v. Slater, 1 Younge & Coll. 28. *CHAPTER XVI. INSURANCE. I. Of the contract of insurance, and the parties thereto. III. Of the interest of the insured.-Wager policies. V. Of the form and requisites of a policy of insurance. VII. Construction of policies. VIII. Of losses by the perils insured against. IX. Of a total loss and abandonment. X. Stranding. XI. General average. XII. Partial loss.-Particular average. XIII. Adjustment. XIV. Warranties. SECTION I. OF THE CONTRACT OF INSURANCE, AND THE PARTIES THERETO. PAEG 1. Of the contract of insu rance. PAGE 1-Of the contract of insurance.] INSURANCE is a contract, whereby one party, in consideration of a stipulated sum of money undertakes to indemnify the other against certain perils or risks to which he is exposed; or to pay him a certain sum upon the happening of some uncertain event. The party who takes upon himself the risk is called the insurer, and sometimes the underwriter, from his subscribing his name at the foot of the policy; the party protected by the insurance, the insured or assured; the sum paid to the insurer as a consideration for his undertaking, is called the premium; and the instrument, in which the terms of the contract are set forth *1126 is called a policy of insurance. Though there are various events which may become subjects of insurance, the following pages will be confined to the consideration of marine insurances, insurance upon lives, and insurance against fire; as these species of insurance are the most usual subjects of litigation, and of the greatest public utility. And first of marine insurance, which is made for the protection of persons having an interest in ships or goods on board, from the loss or damage which may happen to them from the perils of the sea, during a certain voyage or fixed period of time.b 2. Who may be insured.] In this country all persons, whether British subjects or aliens, may in general be insured; the only exception to this rule is, the case of an alien enemy. For reasons of public policy, the property of an alien enemy cannot be legally insured; or if insured, the policy cannot be enforced in any court of law or equity. Even though the policy be effected in the name of a British subject, as a trustee for the person interested; or though the property insured be British manufacture exported from this country; or though the insurance be effected, and the risk commenced before the war breaks out; in no case can a policy of insurance extend to cover a loss happening during the existence of hostilities *1127 *between the respective countries of the insured and the insurer; because during the existence of such hostilities, the subjects of the one country cannot be permitted to lend their assistance to protect by insurance, the property and commerce of the subjects of another. But where the insurance, the loss, and the cause of action had arisen before the insured had become alien enemies, it was held, that a British agent in whose name the policy was effected, might recover on the policy, even during the war, where the defendant pleaded the general issue only, which is a plea of perpetual bar; for the contract was only suspended during the continuance of hostilities, and was capable of being enforced at the return of peace, if the debt was not in the mean time seized by the crown.h Who is Any person whether a British subject or a neutral, who reconsider sides in an enemy's country, and carries on trade there, is for ed an alien all civil purposes to be regarded as an alien enemy; he is thereby incapacitated from suing in an English court of justice, and enemy. Brandon v. Nesbitt, 6 T. R. 23. Furtado v. Rogers, 3 B. & P. 191. Touteng v. Hubbard, id. 291. Casseres v. Bell, 8 T. R. 166. Willison v. Patteson, 7 Taunton, 439. (2 Eng. C. L. 167.) Albretch v. Susman, 2 Ves. & B. 323. Ex parte Boussmaker, 13 Ves. 71. Bristow v. Towers, 6 T. R. 35. Kensington v. Englis, 8 East, 289. Brandon v. Nesbitt, supra. Id. Flindt v. Waters, 15 East, 260. 'Brandon v. Curling, 4 East, 410. Touteng v. Hubbard, 3 Bos. & P. 299. Per Lord Ellenborough, C. J., 4 East, 417. Flindt". Waters, 15 East, 260. Harman v. Kingston, 3 Camp. 153. consequently he cannot be insured.a The mere residence, however, of a British subject in an enemy's country, is not sufficient to subject him to the disabilities of an alien enemy, inasmuch as he may be detained there against his will; there must be some evidence of the purpose of his residence, or of his adhering to the enemy, as that he traded there. But where a neutral, and an alien enemy, insured their respective interests in three vessels, by separate agents, and in separate policies; it was held, that the neutral was entitled to recover on the policy for a loss arising from one of the perils insured against." The disabilities ordinarily attaching upon alien enemies, or License. upon British subjects trading with them, may be removed by a license from the crown; and a license of this nature, legalising a particular adventure, incidentally legalises all the measures necessary to be adopted for its due execution. Therefore where a ship belonging to an alien enemy is protected by the *1128 king's license, an insurance may be effected on such ship by a British subject, as trustee on behalf of the ship-owner, and an action on the policy may be maintained at the suit of the trustee, even in time of war, because the public policy of the country is not contravened by sustaining and giving effect to such trust; and although the king's license cannot, in point of law, have the effect of removing the personal disability of the ship-owner (being an alien enemy) in respect of the suit, so as to enable him to sue in his own name, yet it purges the trust in respect to him of all the injurious qualities in regard to the public interest. So, a license granted upon the representation of W. V. on behalf of different British merchants, for permitting a ship (by name) to proceed under any colors, except the French, with a cargo of such goods as were permitted by an order in council to be exported from London to any ports within certain limits, the whole of the country within those limits being in hostility with this country, was held to protect the property of an alien enemy residing in the hostile country, shipped on his account in this country, and therefore an insurance for his benefit was held legal. 3.—Who may insure.] At common law any person might insure on his own separate account, or any number of men might associate and form a company for that purpose. But by 6 Geo. I, c. 18, s. 12, a charter was granted by the crown to a M'Connell v. Hector, 3 B. & P. 113. Roberts v. Hardy, 3 M. & S. 536. 6 Id. 98. Albretch v. Susman, 2 Ves. & B. 323. O'Mealey v. Wilson, 1 Camp. 482. Harman v. Kingston, 3 Camp. 153. Roberts v. Hardy, 3 M. & S. 533. Willison v. Patteson, 7 Taunt. 439. (2 Eng. C. L. 167.) The Ocean, 5 Rob. Adm. Rep. 90. Rotch v. Edie, 6 T. R. 413. a Kensington v. Inglis, 8 East, 273. Flindt v. Scott, 5 Taunt. 700. (1 Eng. C. L. 231.) Morgan v. Oswald, 3 Taunt. 368. Fayle v. Bourdillon, 3 Taunt. 546. Hullman v. Whitmore, and Same v. Scott, 5 M. & S. 337. Rucher v. Ansley, 5 M. & S. 25. Anthony v. Moline, 5 Taunt. 711. (1 Eng. C. L. 243.) Robinson v. Touray, 1 M. & S. 217. |