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Though we think it necessary thus to enter our caveat against the too easy admission of these new doctrines, let it be undera stood that it is only the too hasty and indiscriminate application of their principle to which we object. It cannot be doubted, we think, that the aggregate body of private perfons, whose prosperity is to be immediately affecled by the success of their business, will, in general, when lest entirely to themselves, be better able to discover in what manner that business can beft be conducted, than other people; who, only viewing it at a distance, set themselves to contrive regulations for conducting it properly. Neither can it be doubted, that a few artful men, who carry on a particular business, may be able to discover that their own individual interest may be highly promoted by certain regulations, which would very much tend to prejudice che concern at large and that where a spirit of regulating business by laws in general prevails among the legislators, thete artful men will find it an easy matter to impose on those perfons who are entrusted with legislative power, so as frequently to obtain regulations that operate in a manner directly the reverse of what was intended by those who made the law. Of such regulations we have frequent occafion to complain. To guard against this evil, we cease not to exert our feeble powers. But we must again repeat, that it does not follow, that because certain powers, when carried to excels, are hutíul, they never can be beneficial when used in moderation. We wish to see the desire of regulating trade very much diminished; but that it ought to be entirely annihilated, the state of our knowlege, as yet, does not authorise us to lay; and where there is doub., there is surely room for caution.
But though we cannot go all lengths with our author in recommending this free fyftem of trade and commerce, or bestow on the execution of the work the highest degree of applause, yet we can truly say that the reader will here meet with many acute observations which deserve attention, and which will convey a considerable degree of useful information. What we moft ob- . ject to in the execution of the work, is a certain indecisive manner of writing, by which conclusions are plainly enough infinuated, without being clearly established. In every philosophical discussion, we think no good reason can be assigned why a man should not, in the plainest and most perspicuous manner, state the conclufions which he thinks well informed reason authorises him to draw. This would have an air of candour, openness, and sincerity; and why should he, who is only engaged in the search after truth, aflume that appearance of ambiguity, which only those who wish to mislead ought to employ?
ARREAR ACCOUNT OF LAW-Books, No. III.
Millar, Junior, Esquire, Advocate. 8vo. 570 Pages. 7s. Boards.
the cases which have been decided on the Law of Infurance, by the Supreme Court in Scotland, and the Courts of Law and Equity in England. Many of these are not to be found in any other printed collection. The insertion of the decifions of the Supreme Court in Scotland makes the work particularly valuable, as the greateft part of them never appeared in print before; and they are of importance to one branch of the British empire, in point of precedent, and to the whole, as matter of inftruction.
The author has prefixed an Introduction, containing some valuable observations on the contract of insurance, its nature, and utility, and a succinct account of its history.—The work is divided into three paris. The first treats of the circumstances requifite to produce a valid insurance : the second, of the nature of an insurance contract, and the obligations arising from it: the third, of those circumstances peculiar to insurance, which extinguish the obligation of parties and vacate the policy. As a fpecimen of Mr. Millar's manner of treating his subject, we prelent the reader with the following extract:
• Lord Kaimes, in his Principles of Equity, has adopted an idea that, in cases of jetjon, goods ought to contribute, not according to their value, but their weight. He observes, that it is the heavy goods which occasion the danger; and if there were leisure for such a transaction, every owner of valuable goods would purchase an equal quantity of those that were heavy, and each would throw the same number of pounds weight overboard. Proceeding upon the same reasoning, “ the Roman law,” says he, “ appears uncouth in some of its consequences; jewels, and I may add bank-bills, are made to contribute to make up the loss, although they contribute not in any degree to the distress; nor is a single ounce thrown overboard upon their account; nay, the ship itself is made to contribute, though the jetfon is made necessary, not by the weight of the ship, but of the cargo.”
• The whole of this reatoning is founded on a supposition which has been already shewn to be erroneous; that in jetson, as in other cases of partial loss, the obligation to contribuie arises from the principle, that benefit was intended, and that a recompence is due, whether any advantage is actually reaped or not. Upon this reasoning, it no doubt follows, that every commodity should contribute, not according to value, but weight; because it is according to their weight, that they increase the danger; and that the ship, for the same reason, ought to be exempted.
But in cafes of jetson, the contribution does not arise from any idea that the losing party is in titled to a recompence, for having acted factorio nomine ; but merely that he may claim reftitution, so far as his loss has been directly converted to another's gain. Upon Lord Kaimes' supposition, many absurdities would follow. Put the case, that a valuable jewel is thrown away in the hurry, and is to be contributed for by weight. The rest of the cargo consists of a 1000l. bill of exchange, having no sensible weight, and some Cwts. of coals, the whole of which, taken together, are not worth the loss incurred. If goods are to contribute by weight, the bill of exchange will contribute nothing. The coals may be all given towards the loss, without sensibly indemnifying the owner of the jewel. Here the holder of the bill will be the only gainer; the proprietor of the jewel will lose a part; and the owners of the coals will lose their all. Would this be an equitable distribution ? Or can we prefume, that the owners of bulky commodities would ever consent to any jetion upon such terms ?
· The modern nations of Europe, accordingly, have, in this refpect, almost unanimously adhered to the principle of the civil law. The ship contributes as well as the goods; and both according to their value; and money and jewels are understood, with very few exceptions, to be liable, as well as the heaviest and most bulky commodities.
• In every case of general average, the owners of ship ought to contribute, not only for the hull of the vessel, her tackle and appurtenances, but in respect of the nett freight. The nett freight will be a clear gain to them, if the ship accomplimes her vovage. By the Ordinance of Hamburgh, accordingly, it is declared, that the owners of ship shall contribute for the whole amount of both ship and freight *."
• The following Scotch case (ftated by Lord Kaimes) does not coincide with thele principles, as it seems to imply, that the shipowner Ihall noç contribute for freight at all.
Luswitch contra Gray. • In a shipwreck, part of the cargo being fished out of the sea, and faved, was delivered to the owners for payment of the salvage. The proprietor of the ship claimed the freight of the goods saved pro rata itineris. The freighters admitted the claim, but insisted, that as the salvage was beneficial to him, on account of his freight, as well as to them on account of their goods, he ought to pay a proportion of the falvage. His answer was sustained to free him from any part, viz. that the expence was wholly laid out on recovering the freighter's goods; and therefore that they ought to be liable. Jan. 18, 1755.
Upon this case, his Lord hip obferves, that it seems to have pro. ceeded on the erroneous idea, has no contribution was due, unless the sufferer had acted factorio nomine. Whereas here a much more powerful principle operates, that the ship owners had reaped a pecuniary benefit at the expence of others; and it was therefore imma. terial, whether that benefit was intended or not.
Ord. of Conif.885.--Of Copenhagen, No. 1284.-Of Genoa, 137:- Practice of Britain. -Ord. of Hamb. No. 981."
• There are some exceptions to this rule, that ship and freight ought to contribute to the full; but these are not numerous.
• The Ordinance of France (No. 579.) says, that both ship and freight are to contribute for one half. The Antwerp Regulation provides, that the owners of the cargo shall have an option to make the hip contribute, either according to her real value, or her whole contracted freight. These regulations seem applicable to gross freight, which includes a consideration for the outfit ; but they are, surely, in a considerable degree imperfect.
• Not only ought the hip and cargo to contribute, but all who have an ascertainable interest in their preservation.
• A lender on bottonry, it should seem, is in the precise situation of a ship-owner. The extent of his interett in the hull of the ship, diminishes so far that of the borrowers. Heought, therefore, like the other owners of thips, to contribute towards a ransom, jetson, or other common disaiter. In Spain, accordingly, where the great expence of fitting out a-tip to the Spanish colonies, renders bottomry a very frequent contract, and where, consequently, it is better understood than in most other countries, a bottomry-bond contains this condition, that the lender shall run, in partnership with the owner, the rik on the hull, keel, and earnings of the ship.
· The French ordinance says, that those who lend money on bottomry thall bear their proportion of all grofs or general averages, but not of simple or particular averages, without an express agreement to that effect. Ord. Fr. No. 660.
• From Mr. Magens's Effay it appears, that the rule upon this point, in several other European fiates, is far from being laid down with precision ; and it does not appear to be always consistent with principles. In England there are, it is believed, no fixed rules universally established, for settling partial losses on a bottomry-interest.
• The owner himself of the goods thrown overboard, must contribute his own share, in proportion to the extent of his property on board : for as he is indemnified by the contributions of his fellowadventurers, the jetson is beneficial to him, as well as to the rest.
• In Mort, every person for whose benefit expence or trouble has been usefully incurred, with a view to indemnification, is liable in a recompence for such expence and labour; and every person who has directly reaped an actual pecuniary advantage from another's loss, is liable in restitution, whether his advantage was intended or not.
• There are a few exceptions, both by the civil law, and the practice of modern Europe. Sailors are excused in respect of their wages; partly from humanity, it being thought hard to deprive them of any part of their small earnings; and partly from utility, that they may be induced, with less reluctance, to consent to a jetfon.
The Roman law excepted passengers, in respect of their lives saved by the jetson ; because the life of a freed man does not admic of a pecuniary eftiination. A similar rule is adopted in modern Europe. Passengers are; besides, free from contribution for the usual articles of money, jewels, and neceffaries, which may be considered as appendages to their perfon. Molloy says, that, in general, money and jewels, and even clothes, and all xhings in the ship
(except a man's apparel in use, or victuals put on board to be spene), are liable to average and contribution.” It is believed, however, to be a general rule with regard to such subjects, that what pays no freight, pays no average.
In eftimating the interest on board, in order to contribution, a question may arise, whether regard is due to the value of ship and goods at the port of loading, or that of discharge. The Roman law adopted a distinction somewhat metaphysical upon this subject. The goods loft were estimated at their original cost; those saved, were valued at the price which they might probably bring; because, in the former case, the prime coit ascertains the actual loss of the goods thrown overboard; and attention to the market-rate, at the port of discharge, is necessary to determine the extent of actual profit that shall accrue from that loss.
« The point seems to be in some measure arbitrary. It appears more reasonable, however, that the loss and gain should both be judged
of by the same criterion; and done of the modern states have there· fore followed the rule of the civil law, although they differ very much from one another upon the point.
• By some regulations, the whole goods are estimated at their prime coft, or values in the port of discharge, according as the veffe! has, at the time of the loss, executed half her voyage or not. This distinction prevails in the Consulato del mare, and in several foreign ordinances; those in particular of Genoa, of Rotterdam, of Stockholm, and of Copenhagen. It appears likewise, from Gerard Malynes, to have been the old rule in England.
• The greatest number of modern mercantile states, however, have been of opinion, that the whole goods, loft and saved, ought to be estimated according to their value in the port of discharge. This is the rule adopted by the Hamburgh ordinances; by those of Coning ferg, Antwerp, and France; by the Spanish West Indian Jaws, and by the general practice of Britain.'
This extract will,' no doubt, give the reader a favourable impression of the work now under consideration. The other parts of it are executed with equal ability,
We are happy to find by this work, and some other recent publications, that it is become a frequent practice for gentlemen of the long robe to commence their professional career, by presenting to the public, either a treatise on some important branch of legal learning, or an edition of some former writer of authority. "By this, at the same time that they acquire a confiderable portion of useful knowlege, with the habit of arranging it methodically and applying it properly, they are benefactors to the public, by contributing to the general stock of professional information. But while we approve of this practice, and fin. cerely will it may gain ground; we must recommend to the young adventurers, not to be too hafty in presenting themselves to the public eye. They should ever carry in view, the importa ant consequences of commencing authors; that, not only their fame, as writers, but their characters, as profesional men, and