
    * Joseph Taylor versus Jesse Sumner and Al.
    if an insurance be effected against the perils arising from a blockade, supposed by the parties to exist in a foreign port, and in fact no blockade existed at the time, or while the ship remained at such foreign port, the insurance is void, and the premium shall be returned.
    This was an action of the case upon two promissory notes made by the defendants and payable to the plaintiff, the first of which was dated May 26th, 1804, for 214 dollars and 15 cents, payable in six months from the date, and the second dated September 15th, 1804, for 1051 dollars 85 cents, payable on the 26th of November following.
    Upon non assumpsit pleaded, the action was tried before Parlcer, J., at the last November term. Upon the trial, it was admitted that these notes were given for the premium of insurance on a policy effected in the office of the plaintiff, an insurance broker, dated May 26th, 1804, whereby the defendants caused themselves to be insured in the sum of 3045 dollars on the schooner Mary and Eliza and appurtenances, at and from Boston to Surinam, or port or ports in the West Indies, (Gaudaloupe and Hispaniola excepted,) and at and from thence to her port of discharge In the United States, at sever, per cent., for which the note first described was given, and which was not contested at the trial.
    When the defendants heard of the arrival of the schooner at Martinico, they supposed that island to be blockaded by the British, and upon that belief applied to the same underwriters, to insure them against the increased risk on account of that blockade. The underwriters, upon the same belief, agreed to take the risk, as appears by the following memorandum endorsed on the policy and signed by the underwriters, viz.: “ Boston, 3d Sept. 1804. As the schooner Mary and Eliza has got into Martinico, we the subscribers, in consideration of an additional premium, of tiventy-six and one third per cent., agree to take the risk of the same at and from thence to her port of discharge in the United States, without prejudice to this policy.” For this additional premium the second described note was given. The policy was in the usual printed form, which provides that any prior policy shall first operate, and the latter shall be void when the interest is fully covered by the former.
    [ * 57 ] * At the trial, the defendants denied that Martinico was in fact blockaded at the time the vessel arrived there, or when she sailed from thence ; so that the risk contemplated, for which the additional premium had been given, was never incurred by the underwriters.
    The judge directed the jury, that if they were satisfied, from the evidence, that the note in the second count was given for the pre mium on the risk supposed to exist in consequence of a blockade, and that in fact no blockade did exist, — as all the other risks were covered by the policy, for the premium of which the first note was given, they ought to find a verdict for the plaintiff as to the first described note, and for the defendants as to the second ; and they found accordingly.
    The plaintiff moved for a new, trial for the misdirection of the judge, and that motion was argued at this term by Selfridge for the plaintiff, and Amory for the defendants.
    
      Selfridge.
    
    If the vessel was known to be in Martinico, and both parties believed that island to be blockaded, although such belief was groundless, yet it formed a sufficient and good consideration. Egress from a blockaded place is as much a breach of the blockade as ingress, and a blockade might have commenced after this vessel was in port, and the underwriters would have been held to such extra risk.
    This is within the reason of the decision in the case of Boehm vs. Bell, 
       cited by Marshall, (page 554.) The doctrine drawn from that decision, as laid down by Marshall, is, that if the insured have a contingent insurable interest in the thing insured at the time when the policy is effected, and the risk be once begun, there shall be no return of premium, though it should eventually turn out that he had no title to the thing insured.
    If, under any circumstances, the insurer might, at any time, have been called upon to pay the whole sum insured, the premium is earned, and he shall not be obliged to return any part of it. 
    
    The verdict negatives the actual existence of a blockade, but it does not, nor could it, negative the possibility of one, * and this was a sufficient consideration ; this was a risk, [ *58 against which the defendants wished to be protected; and the underwriters, for an agreed premium, assumed it upon themselves. It is quite immaterial how small or remote the contingency, or how exorbitant, the premium demanded and given, might be If the risk, or any part of it, has been run, there can be no" return of the premium.
    If the parties, at the time of effecting a policy, believe property to exist, the contract is good and valid, although it was in fact lost and gone before the contract was made. So, where a vessel has actually completed her voyage before the policy is made, the premium is not to be returned, if the fact was unknown. The present case is stronger than either of these; for here was a possible risk, though confessedly a remote one, and the underwriters, having taken it, are well entitled to their premium.
    
      The Chief Justice observed that it was a question of great importance whether an insurance against a blockade was a legal contract, inasmuch as a blockade derives its force from the law of nations, which constitutes a branch of the municipal law of every state.
    
      Amory
    
    said he had always considered a blockade to be merely a municipal regulation, and to derive its whole legal authority from the law of the state or kingdom enforcing it, which is binding not only on the natural subject of such state or kingdom, but on all others while within its power or jurisdiction. He was not, however, prepared to argue the point, and would only observe that if it was illegal to insure against a blockade, then this policy was void, and the premium could not be claimed.
    The general principle will not be contradicted, that where no consideration exists for a contract, such contract is void. Here the supposed consideration was the existence of a blockade. It turns out that no blockade in fact existed, as was supposed. Words cannot be invented to show more plainly that there was no consideration. The first policy covered every risk except this imaginary one. The memorandum contemplates an existing blockade, not the possibility that one might exist. The premium being given for a risk never run, the assured is entitled to a return of it. If * the [ * 59 ] underwriters retain it, they will in fact receive two premiums for one risk: in other words, this amounts to a double insurance.
    This is very unlike the cases put of a policy on property actually lost, or on a voyage actually completed, at the time of making the insurance. In both the cases, the underwriters actually incur a risk which they cannot, consistently with truth, and the common sense of the thing, be said to have done here by this memorandum, which is predicated on the supposition that the vessel had then actually broken the blockade by having got into the blockaded port.
    
      
       8 Term Rep. 154
    
    
      
      
        Marshall, 554.
    
   The opinion nf the Court was afterwards delivered by

Parsons, C. J.

The question referred to our decision in this case is, whether the direction of the judge to the jury was right.

As the schooner, by the first policy, was insured to, at, and from, Martinico, against all the usual risks, the assurers were already answerable for all those risks, in which the risks resulting from a blockade are not to be included. The words of the memorandum are also general, and by it no property is covered, and no risks are insured against, but those which are contained in the policy. On this view of the subject, without considering the motives or grounds of making the memorandum, the insurance thereby effected must be considered as a double insurance, and the premium cannot be recovered.

But the plaintiff contends that the representation of the motives and grounds of making the memorandum is to be considered as part of it; and taking them in conjunction, it appears that the underwriters took upon them a new risk, for which they were not answerable by the policy; that by the memorandum they were made liable not only for all risks arising from the supposed existing blockade of Martinico, but also from any blockade that might afterwards be formed of that island.

If the plaintiff’s construction of the representation and memorandum be right, the conclusion seems to be reasonable. His case will then be within the rule which entitles assurers to all premiums for assuming risks, for which they may, by any possibility, be answerable.

[ * 60 ] * But we are satisfied that the plaintiff is mistaken in his construction. To us it appears, from the representation on which the memorandum was made, that the parties contemplated no other risks, but those arising from an existing blockade, and that the memorandum can be extended to no other risks ; therefore any loss happening from any future blockade could not be a charge on the insurers.

If we are right in this opinion, the memorandum does not extend to any risks, except those which might arise from a blockade, which the jury have found never existed. There could not, therefore, be any possible loss incurred by the underwriters in consequence of making the memorandum. And as the memorandum was made through innocent error, and without any fraud, it is void, and the premium, stipulated as the consideration for making it, canna be recovered. It is, therefore, our opinion that the direction of the judge was right, and that the verdict must stand,

Bet judgment be entered according to the verdict. 
      
      
         [How could the Court properly ascertain what risks were contemplated, but by the terms of the memorandum, and the policy, on the back of which it was written ? Mellen & Al. vs. The National Ins. Co., 1 Hall, 452.— Ed.]
     