
    Jonathan Merry, Plaintiff in Review, versus James Prince.
    A policy of reassurance is a valid contract. [The statute 19 Geo. 2, c. 37, did not extend to the then British colonies, and has never been adopted in this commonwealth.]-
    This was a review of an action of the case upon two policies of reassurance, both dated December 11, 1795, one of which was a reassurance upon the “ brigantine Columbia and cargo,” upon which Merry subscribed 350 dollars; the other was upon the “ schooner Harmony, appurtenances and cargo, upon which Merry subscribed 300 dollars. In the original action, there was a verdict for Prince for 836 dollars 35 cents, as for a total loss. °
    On the review, a verdict was also given for Prince, at April term, 1803, subject to the opinion of the Court on a state of facts drawn up and subscribed by the parties ; and it was agreed that, if the Court should be of opinion that the reassurance declared on was illegal, the verdict should be set aside, and the defendant in review defaulted, and judgment accordingly. But if the Court should be of opinion that the reassurance was legal, but that the verdict was for too large a sum, then the defendant in review should release on the record such *part of said sum as the [ * 177 J Court should think too much, and judgment should be rendered accordingly.
    The facts agreed were, in substance, that Merry subscribed the two policies declared on; the first of which was opened for 1050 dollars on the Columbia and cargo, “from Newburyport to any or all the ports in the West Indies, and at and from thence to Newburyport ; ” the other was opened for 300 dollars on the Harmony, appurtenances, and cargo, “ at and from Lisbon to Newburyport; both the policies were for a premium of ten per cent., and expressed that they were reassurances.—That Prince, before effecting these policies, had subscribed 500 dollars to a policy of insurance on the Columbia and cargo, the risk being described in terms similar to those used in the policy of re-assurance ; this last policy was opened for 2000 dollars on the vessel, and 2700 dollars on the cargo. T. W. Hooper also subscribed it for 200 dollars ; on the back of it was the following — “ N. B. James Prince takes the risk of one hundred and thirty dollars, wrote by T. W. Hooper,” written by the insurance broker, by order of Prince and Hooper, and subscribed by Prince.—That he had also subscribed to another policy, dated Nov. 17, 1795, “ upon effects on board the Columbia to one or all the islands in the West Indies,” for a premium of four per cent.; and a third policy, dated December 4, 1795, for 167 dollars, “upon property on board the Columbia, from Newburyport to any port in the West Indies,” at a premium of seven per cent. — That the Co lumbia was lost by the perils of the sea, on her passage from New buryport towards the West Indies, in the voyage insured.—That Prince had paid all the sums aforesaid, being, in the whole, 1297 dollars, as for a total loss, before he commenced the action now eviewed. — That he had also, previous to his effecting the said reassurance on the Harmony, subscribed 200 dollars to a policy, dated November 3, 1795, “upon the schooner Harmony and cargo, at and from Lisbon to Newburyport,” at a premium of four per cent. — That . T. Bradbury, Jun., had subscribed 200 dollars to the same policy. On the back of this last policy was the following memorandum : * “ It is agreed by Prince, and T. Bradbury, [ * 178 ] Jun., that the said Prince takes the risk on one hundred dollars, wrote by said Bradbury, on the within policy.” This mem orandum was subscribed by the insurance broker only, and was agreed to have been made by the parties within thirty days from the date of the policy. On this 100 dollars, Bradbury paid Prince a premium of eight per cent.—That the Harmony was lost by the perils of the sea, on her passage from Lisbon towards Newbury port, in the voyage insured; and that Prince had paid 300 dollars, the amount of the tw.o sums last mentioned; as for a total loss, before he commenced the action now reviewed.
    The principal question upon these facts was, whether the British statute of 19 G. 2, c. 37, among other tilings prohibiting reassurances, had, by its own provisions, extended to this country — or, if not, had been “ adopted, used, and approved,” here; in other words, whether a policy of reassurance was, here, a legal and binding contract.
    The cause had been argued at a former term, in this county, by Prescott for the plaintiff in review, and by the present Chief Justice and Jackson for the defendant in review. But Parker, J., not having heard the argument, the Court desired that it might be again argued at this term.
    
      Prescott, for the plaintiff in review, contended,
    1st. That the statute had rendered this a void contract. An act of the British Parliament was always considered as extending to, and binding upon, the colonies, when they were expressly named ; when the subject-matter, and the provisions of the act, were thought applicable to the situation and circumstances of the colonies; or when the act was in amendment of the common law already in force in those colonies. The authority of the Parliament to make and enforce commercial regulations for the colonies was at no time denied in this country.
    The mischiefs intended to be prevented by this statute were felt by all fair traders, as well in the colonies as in the mother country. One principal mischief consequent upon this practice of [*179] reassurance was the raising the rate of insurance. *This induced Parliament to' prohibit it, except in certain specified cases, as the death, or insolvency, of the underwriter. The title of the act is broad enough, and so are all the clauses of it, to include the colonies, and there is not a single expression which can be construed to exclude them.
    It would be difficult to show, by any direct evidence, that this statute has been formally adopted or recognized in our courts Our records are evidence of the judgments of the Court, but afford us no clew to the reasons on which those judgments were founded.
    When the colonies had adopted the common law respecting any particular subject, and a statute was made by the Parliament amend atory of the common law, our courts have always considered the statute as in force here. Thus, in the case of Palmer & Ux. vs. Downer, 
       decided in this Court, November * term, [ * 180 ] 1801, the stat. 11 and 12 Will. 3, by which a citizen may inherit from or through an alien, was relied on by the demand-ants. and, after two arguments, the Court considered that the statute had been adopted here, and gave judgment accordingly. Yet there was no evidence produced to the Court of the fact of the statute’s having been adopted ; and the statute itself seems to have originated in local and temporary considerations.
    The statute of 3 and 4 Anne, c. 9, respecting promissory notes, was immediately adopted in practice here: yet it would be difficult, if not impossible, to show this from our records.
    The same may be said of stat. 7 G. 2, c. 15, limiting the re ' sponsibility of the owners of vessels.
    [ * 181 ] * If the mischief which the statute under consideration was intended to remedy extended to the colonies, we think this a conclusive argument of its having been “ adopted, used, and approved, here.”
    But, 2dly. Should it be the opinion of the Court that this statute has never been adopted here, and that this is a valid contract, still it appears that Prince has reassured himself in a greater sum than his original insurance. He underwrote on the schooner Harmony but 200 dollars. For, as to the 100 dollars which he assumed of Bradbury’s underwriting, we contend that he was himself a reassurer. Reassurance is defined to be a contract, which the first insurer enters into, in order to relieve himself, &c. (Park. 276.) Then, as to this 100 dollars, Merry cannot be liable. Had he known the circumstances, as they in fact existed, and particularly the enhanced premium which Prince had received of Bradbury, it is reasonable to suppose that an alarm would have been excited in his mind, and that he would, at least, have demanded a higher premium for himself.
    In the 3d place we contend, that the subjects of reassurance, in the case of the Columbia, are different from the subjects of two of the original policies. The reassurance is on the Columbia and cargo: of the original policies, one only is on the vessel and cargoj one other is on property, and the third on effects on board. The policy of reassurance refers expressly to a former policy, and Merry undertakes to indemnify him from all loss by such policy. To cover the sum reassured, three former policies are now produced.
    The voyage described in the policy of reassurance is also different from that described in the two last-mentioned original policies. In the former it is at and from Newburyport to the West Indies, and at and from thence back to Newburyport; whereas Prince’s contract with the owners, in the original insurance, included only the outward passage from Newburyport to the West Indies. This is an indication of fraud, which, if Merry had discovered, he would have avoided any concern in the business.
    * But if we should be overruled here, still we say, that [ * 182 ] the policy of reassurance on the Columbia, being on vessel and cargo, covers no more than fyths of the amount which Prince had underwritten on the property and effects, that being the proportion which it was agreed the value of the cargo bore to the value of the vessel. “ If several articles be insured for one entire sum, but with a distinct valuation to each, and only one be put in risk, — if that one be lost, the insured shall recover such a proportion of the sum insured as the value of that article bore to the value of the whole.” 
    
    If we should be countenanced by the Court in these positions, there must be a considerable deduction from the amount of the former judgment, which can be calculated hereafter.
    
      Jackson, for the defendant in review,
    argued that reassurance is a legal and valid contract at common law, and by the law merchant; and he contended that the act of Parliament prohibiting it was not in force here, either from its own enactment, or by adoption. The colonies were not bound by any acts of Parliament, unless particularly named.  The statute of Anne, respecting promissory notes, was not received in our courts in virtue of the authority which en acted it; but was adopted as a kind of common law, and, in fact, some of its provisions have been altered in practice by our courts The same observations might be applied to several-other acts of Parliament.
    But it is not contended, on the other side, that the statute now under the consideration of the Court has ever been formally adopted by our courts, but that, by its own force, it became the law of the land. If it extended by its own provisions to this country, the whole of it was binding upon us ; but the sixth section, which requires the plaintiff, in an action on a policy of insurance, to declare in writing, within fifteen days after request, what sums he has insured in the whole, and how much he has borrowed on bottomry and respondentia for the voyage in question, has never been [ * 183 ] considered as law here. Nor can that part of the * act which relates to voyages to Spain, &c., be conceived to extend to the colonies.
    As to the 2d point made by the opposite counsel, it was insisted that there was no legal distinction between a first and second reassurance. Respondentia and bottomry bonds may be insured, being stated in the policy; the underwriters on such policy may cover their risk by another insurance, and no one ever thought such last insurance less valid than a common reassurance.
    The suggestion of fraud ought to have been made and proved to the jury on the trial, and will not be received by the Court at this' stage of the cause. If it is supported, the policy is vacated. But, on the contrary, the Court will presume the whole transaction fair, and that every fact was exposed to Merry, notwithstanding this suggestion— which is now for the first time made, although the cause has been a number of years in the Court, and several times argued.
    With respect to the 3d point, it appears that Prince was liable for 1297 dollars on the Columbia and cargo, and that he reassured but 1050 dollars. He had, then, more at risk than he covered by his reassurance. As to the difference in the description of the voyages, in the policies, it is unquestionably a blunder of the office-keeper who filled the policy. The Court know the frequent and great inaccuracies in policies, especially in clauses of a new impression, and out of the common course. Prince must be supposed to have stated his case truly to the broker, or he must willingly have paid a premium of ten per cent, for insuring the voyage round, when probably the single passage might have been insured for half the same rate, and when, too, he could never have proved a loss, if it had occurred on the passage homeward. The Court will never presume a misrepresentation, but must believe that all the former policies were exhibited to Merry, or that he voluntarily receded from the right which he had to see them, which will have the same effect..
    
      But, suppose this mistake to have been made by Prince, what cause of complaint does it afford to the reassurer ? Suppose one lias lent money on bottomry on a voyage to London; he insures *tlie amount, by mistake, to and, from London, [ * 184 j and gives a premium in proportion ; this would be a mistake against himself only: it is true, he could not recover for a loss on the voyage from London, because he had in fact suffered no loss; but would this vacate the policy, so that he could not recover for a loss on the outward voyage ? Suppose an insurance on goods out and home ; no goods are shipped home ; — is the policy void ?
    Upon the whole, this was a contract in the usual course of trade ; it was fairly made; the reassurer received the premium, and, had there been no loss, would lawfully have retained it; he cannot, then, have any legal or honorable objection to payment of the loss which has occurred. '
    
      Prescott, in reply.
    The fact of there being no wager policies made in this country, shows the general sense to be that the statute of 19 G. 2 is in force here.
    The reassurance on the Harmony does not attach to the 100 dollars originally underwritten by Bradbury; Prince was himself the reassurer of that sum. As to the case of insurance of moneys lent on bottomry and respondentia, the facts are specifically stated in the policy, and the parties know what they undertake, so it does not come within the mischief suggested.
    In the case of the Columbia, there was a misrepresentation of the risk which Prince was exposed to, which we contend was sufficient to avoid the policy.
    But if the Court should be of another opinion, we yet insist that the policy of reassurance attaches to the two last original policies only in proportion of 27 to 40; in other words, the reassurance being on vessel and cargo, and the original assurance on cargo only, Merry can at no rate he held for more than fZ-ths of the amount which he underwrote.
    As to the case, put on the other side, of money lent on bottomry on a voyage to London, and an insurance to and from London, we say the assured could not recover, because it was a different risk.
    
      
       Palmer & Ux. vs. Downer.
      A native of Massachusetts leaving this country after the commencement of hostilities with Great Butam, in 1775, continuing with the British until the treaty of peace, and thenceforward to his death, became an alien.
      The statute of 11 and 12 of Will. 3, c. 6, providing th it n itural-born subjects may make tl/eir titles by descent through alien ancestors, was adopted in Massachusetts before the establishment ol the canst! tution-
      1 have been favored with a note of this case of Palmer Ux,. vs. Downer, by the earned counsel for the plaintiffs. It was ejectment for one undivided eighteenth part of a messuage and land, with the appurtenances, situate in Ncwburyport. June term, 1800, a state of facts was agreed on, in substance as follows: — that John Downer, the father of the defendant, and grandfather of the wife of the plaintiff, died seised in fee of the whole messuage, and intestate, April 7,1778, leaving five children, amongst whom was Jeremiah, father of the plaintiff s wife and of two other children: that tile said Jeremiah was, in June, 3775, a citizen of the then province of Massachusetts Bay; soon after which, being on board a vessel as an J.huerican seaman, he was captured by a British vessel, and carried into Boston, then held by the British fleet and army. that he continued with the British until the close of the war, when he went with them to Nova Scotia, where he continued until his death, in the year 1790 : that during the way he had the care, under the British government, of a hospital ship, and received payment of that government for his services in that office.
      On these facts two questions were made: — 1. Whether the said Jeremiah was an alien at the time of his father’s death, in April, 3778. 2. If an alien, whether the statute of the 13 th and 12th of Will. 3, c. 6, (which enacts that all persons, being natural-born subjects of the king, may inherit and make their titles, by descent, from any of their ancestors, lineal or collateral, although their father, mother, or other ancestor, by, from, through, or under whom they derive their pedigrees, were born out of the king’s allegiance, as fully as if such father, mother, or other ancestor, had been naturalized, or natural-born subjects,) was adopted here before the establishment of the constitution of this commonwealth.
      The cause was argued at Salem, November term, 3800, and at Boston, August term, 1801.
      The defendant’s counsel contended, 1st. That the constitution had provided, that “ All the laws which have heretofore been adopted, used, and approved, in the province, &c., and usually practised on in the courts of law, shall remain and be in full force,” &e.: that there could be no evidence of the adoption of a British statute here, but the actual usage : and that there was no evidence of this statute’s ever having been used or practised upon in our courts. 2dly. That, if this statute should be considered as having been adopted here, it extended only to ancestors born aliens, and no* to those who became such.
      The counsel for the plaintiffs answered the first objection by observing, that we had adopted the common law on this subject, and that generally, wherever we had adopted the common law, we also, of course, adopted such British statutes as were in amelioration of it, as it was contended this was: that this statute was made to extend to all subjects within the king’s dominions : that we had practised upon it in the settlement of estates in the Probate Courts : that these settlements had been recognized in practice from an early period, as evidence of which, sundry cases were cited : that the evidence of the adoption of a British statute here could not be confined to judicial, decisions, for there must have been a first time when any such statute was used, and until it was once so used and adopted, there could be no evidence of its adoption in ihe courts of law. As to the second objection it was answered, that the reasons and principles of the statute extended as well to those who should have become aliens, as to those born such.
      On the first question, the Court decided that the said Jeremiah Dotoner was an alien at the time of his father’s death ; and
      On the second question, they determined that the statute of 11 and 12 Will. 3 was adopted and in force in the province of Massachusetts Bay: and they accordingly gave
      
        Judgment for the plaintiffs.
      
      
        Dane for the plaintiffs.
      
        Parsons for the defendant.
      
        Mote. — It seemed to be admitted on all hands, that no particular fact was known from which the adoption of this statute might be inferred. But the Court suggested, as the ground of their decision, that the statute might properly be considered as an act of favor in tfie king to his subjects, as it was a yielding of a part of his prerogatives for their advantage. It was to be presumed, without a question, that his subjects in every part of his dominions would accept a favor thus offered them; and that this presumption afforded sufficient ground from which to infer a virtual adoption of the statute, upon an equitable construction of the clause in the constitution applying to the subject. But what part of his prerogatives, it may be respectfully asked, did the king yield in this instance ? At common law, a subject could not derive a title to an estate through an alien ancestor; and of course an -state, thus failing of lawful heirs, would have resulted back to the original grantor, or lord of the fee, and not to the king. The object of this statute was to change the laws of descent, in a point where their operation was thought to be hard; and the consequence of this change in them affected only the rights of individual subjects, and not at all the rights or prerogatives of the crown. — Reporter
      
    
    
      
      
        Marsh. 531, cites Amory vs. Rogers, Esp. Rep. 207.
    
    
      
      
         1 Black Comm. 108.
    
   The opinion of the Court was afterwards delivered by

Sedgwick, J.

This action is brought on two policies of reassurance, the one, dated 1st December, 1795, being on * “ brigantine Columbia and cargo, from Newbury ¡port to [ * 185 ] any or all the islands or ports in the West Indies, and from thence back to Newbwryport; ” the other, dated on the same day, on the schooner Harmony, appurtenances and cargo, at and from Lisbon to Newbwryport ”

There are other facts which will hereafter be mentioned, for the consideration of questions which have been made in the argument of the case. At present, enough is stated to expose tó discussion the first and principal question in the case, viz., whether the contract itself, being a reassurance, is legal, and binding on the parties.

That a contract of reassurance is not prohibited by the principles of the common law, is admitted by the parties. It is a contract which, in itself, seems perfectly fair and reasonable, and might be productive of very beneficial consequences to those concerned in this important branch of commerce ; but, because it was much abused, and turned to pernicious purposes, it was prohibited by an act of the Parliament of Great Britain, by which reassurance was rendered illegal in all cases except where the original assurer should become insolvent, a bankrupt, or die. And the only question is, whether that statute, as stick, is law within this commonwealth.

As an act of the British Parliament merely, it is not pretended that its binding force was extended to the colonies. But it is said, and, in my opinion, it is true, that, from the very nature of our relation as colonies to Great Britain, the parent state at the time the act was passed, it was competent to the Parliament to have extended this provision to the colonies, if it had seen fit to do it. But if that was the intention, it ought to appear by express words, or at least by inevitable implication. Blackstone, in his Commentaries, while treating of the countries subject to the laws of England, speaking of these then colonies, lays it down without any restriction, that “ they were subject to the control of the Parliament, though (like Ireland, Man, and the rest,) not bound by any acts [ * 186 ] of Parliament, unless particularly * named.” If this be so, it is decisive in this case, as the colonies are not at all named in the act. And I think we may pretty safely conclude that that learned and elegant writer was well acquainted with the claims of Great Britain, in relation to her colonies, and that he had no disposition to narrow their effects. But, should we even go much farther, and admit that, although the colonies are not expressly named, yet if, from the whole purview of the statute, it manifestly appears to have been the intention of the legislature that reassurance should be prohibited in the colonies, that such ought to be the construction, yet I think that the case would be with the defendant in review; because I can discover no such intention.

There are no words in the section prohibiting contracts of reassurance, or in any other part of the act, which manifest, or even imply, such an intention. By the most attentive consideration of the statute, I can nowhere perceive such an intention, but, on the contrary, I think it evident that no such intention existed. The observation of the counsel for the defendant in review is undoubtedly just, that part, of the provisions of the act were not intended to extend, and indeed could not extend, to the colonies. Now, it can hardly be believed that the Parliament could have intended that part only of that act should, by indefinite expression, be construed to extend to the colonies. If such had been the will of the legislature, it would have been declared, and not left a subject of uncertain or difficult construction.

There is another foundation, on which, it is said, a defence against this action may be bottomed. The constitution declares that "All laws which have heretofore been adopted, used, and ap proved, in the colony, and usually practised on in the courts of law shall remain in force, until altered or repealed by the legislature.” It is true that many acts of the British Parliament have been adopted here, from causes which are now unknown. And it is said that wager policies, which are only rendered illegal by the same act, are here considered as invalid, and that this could result only from an adoption here, *in piactice, of that [ * 187 J act. In answer to this argument, I observe that., admitting wager policies are here illegal, I do not think the argument would be conclusive; for it is true that, at the time of the settlement of this country, and for some time afterwards, wager policies were, in' England, considered and held to be illegal at common law.

I now proceed to the consideration of other circumstances in the case. The reassurance on the Columbia is on the vessel and cargo to any or all the islands or ports in the West Indies, and from thence to Newburyport; and it is a reassurance by which the assurers are to respond the full amount of all losses, damages, and misfortunes, to which the assured might be liable, on a like sum written by him on a former policy; and, in the same proportion, on vessel and cargo. The reassurance then, in express terms, extends' only to a policy of insurance, and which was a policy of insurance on vessel and cargo. Instead of confining the reassurance to one policy of insurance, the defendant in review would extend it to three. One is admitted as properly described by the policy of reassurance, and here I think he must stop. The policy of reassurance is confined, in the terms of it, to a reassurance of a policy of insurance, and cannot be extended to three. Besides, the policies on “ effects ” and on “ property ” are confined to cargo, and are not in proportion on vessel and cargo; they also describe difierenl voyages from that which the instrument declared on reassures. It would be infinitely too loose a construction of this contract, and altogether unsafe, in my opinion, that all these policies of insurance were comprehended in it, and reassured by it.

I am of opinion that the defendant in review has a right to recover the -130 dollars which he assumed as part of that which was originally subscribed by Hooper, because he was in fact, by agreement with all the parties at the time of the reassurance, an insurer for that sum, as much as for his own original subscription. My opinion as to this sum is founded solely on the evidence, which the case affords, that Prince had, before the reassurance, been received as a substitute for Hooper, to that amount; and [ *188 J that Hooper was, to the same amount, released *from his engagement: — in other words, that Prime was an insurer, and as such immediately responsible to the assured. This I consider as a case altogether distinct from Prime’s assuming the 100 dollars which had been underwritten by Bradbury. In this case, it is obvious that the agreement was not between Prince and the assured, but between Prince and Bradbury. The agreement does not, as is the case in the other instance, appear to have been subscribed by Prince, and it is certain the assured could have brought no action against Prince upon it. It could not therefore, in my opinion, be a reassurance to Prince of that sum, because Prince had never insured it.

But as to the 100 dollars assumed by Prince, which was originally subscribed by Bradbury, I have the misfortune to differ from both my brothers, who think that it is impossible to distinguish this from the 130 dollars which was originally subscribed by Hooper, and afterwards assumed by Prince. They think that his assent, as expressed in the broker’s memorandum, in the one case, constituted Prince as much an insurer as his own subscription in the other.

By a computation, it will appear that the whole reassurance on the Columbia will be completely covered by the subscriptions Previous to that of the plaintiff in review. 
      
       19 G. 2, c. 37, § 4.
     
      
       Vol. i. pp. 107, 108
     
      
      
         Chap. 6, art. 6.
     