
    * Samuel F. Coolidge versus Martin Blake.
    ft was stipulated, in a policy of insurance on a belligerent vessel and cargo, sailing with neutral papers, that, in case of capture, the assured should claim the property as neutral. A capture happened, and no such claim was made. The assured still claimed to recover, on the ground that the making of such a claim would involve the guilt of perjury. But it was holden that he was not entitled to recover.
    Case for a total loss upon a policy of insurance, underwritten by the defendant for 200 dollars, upon the schooner Trinidad, and cargo, from Newport to Havana, with Spanish consular papers. The policy contained a memorandum, that, “ in case of loss, no return of premium and no proof of property should be required ; ” and also that, “ in case of capture, the assured agrees to claim and pros ecute for the property, as Spanish, until acquittal or condemnation in a high court of admiralty. The underwriters and assured agree to pay their proportion of the expenses in such case.” The premium was fifty per cent.
    The vessel was captured, on the voyage insured, by a British cruiser, and carried into New Providence, where she was libelled and condemned as prize. The only question before the jury, at the trial of the cause before Jackson, J., was, whether any claim was made for the property as Spanish, in the courts of vice-admiralty at New Providence; and if not, whether the defendant had waived all objections on account of the omission to make such claim. The jury were instructed that, if such claim was made, and if the defendant had not waived the objection, their verdict must be for the defendant; and a verdict was so returned.
    The plaintiff afterwards moved for a new trial, on the ground that the stipulation to claim and prosecute for the property, as Spanish, was immoral and illegal, and therefore void, as tending to produce perjury and subornation of perjury; and that the plaintiff was therefore entitled to recover, notwithstanding his non-compliance with the said stipulation.
    
      W. Sullivan, in support of the motion,
    argued that the stipulation in question involved a moral turpitude in its fulfilment. It should, therefore, be considered as void and out of the case; and then, the policy being good in every other respect, the plaintiff is entitled to recover. It may be likened to a grant of an estate upon an immoral condition; * the condition in such case being void, and the estate absolute. 
    
    
      Welsh for the defendant.
    
      
       1 Bac. Abr. tit. Conditions, K. — 1 Mod. 35) Maleverer vs. Redshaw.—2 Wils, 341, Collins vs. Blantern.
      
    
   Parker, C. J.,

delivered the opinion of the Court. The principle upon which the objection to the verdict rests, viz., that a contract, made for the purpose of carrying into effect an illegal intent, cannot be the support of an action, is unquestionably well founded. But we do not think it applicable to this case.

The vessel was undoubtedly intended to be insured quasi a Spanish vessel. She had Spanish consular papers on board; and the agreement was that, in case of capture, she should be claimed as Spanish property. Now, if it be possible to suppose that she might be so claimed without perjury, or other crime, we ought to presume that such was the intention of the parties; because no criminal intent is proved, and we do not know that any such unlawful act was necessary, in order to support such a claim; nor does it appear, in the case, that the vessel was not, in fact, Spanish.

But, even if we were obliged to consider the agreement as void for the reason suggested, the plaintiff’s case would not be helped thereby. For this agreement makes a substantial part of the contract of insurance; and if it is illegal, the whole contract is void, For it cannot be supposed that the party making the unlawful stipulation, which is one of the considerations of the contract, may avoid that stipulation, and claim under the contract notwithstanding. This would be to reward immorality, instead of punishing it. If the objection is available at all, it should be offered against the claim of premium, on the ground that the insurance is void. But, for the reasons before given, we do not think the objection can be maintained. r , , ,, , .

, . Judgment on the verdict. 
      
      
         Sed vide Norton vs. Simmes, Hob. 14. — Kerrison vs. Cole, 8 East, 231. — Gaskell vs. King, 11 East, 165.— Wigg vs. Shattleworth, 13 East, 87. — Monys vs. Lake, 8 D. & E. 411. — Pike vs. Puller, Lutw. 122. — Rcadshaw vs. Balden, 4 Taunt. 57. — Fuller vs. Abbott, 4 Taunt. 105.— Howe vs. Singe, 15 East, 440. — Morgan & Al vs. Edwards, 6 Taunt. 394. — Model vs. Middleton, 1 Vent. 237.— T. Ray, 222.—1 Saund. 161.
     