Though we think it neceffary thus to enter our caveat against the too eafy admiffion of these new doctrines, let it be underftood that it is only the too hafty and indifcriminate application of their principle to which we object. It cannot be doubted, we think, that the aggregate body of private perfons, whofe profperity is to be immediately affected by the fuccefs of their bufinefs, will, in general, when left entirely to themfelves, be better able to difcover in what manner that bufinefs can beft be conducted, than other people; who, only viewing it at a diftance, fet themfelves to contrive regulations for conducting it properly. Neither can it be doubted, that a few artful men, who carry on a particular bufinefs, may be able to discover that their own individual intereft may be highly promoted by certain regulations, which would very much tend to prejudice the concern at large-and that where a fpirit of regulating bufinefs by laws in general prevails among the legiflators, thefe artful men will find it an eafy matter to impofe on thofe perfons who are entrufted with legislative power, fo as frequently to obtain regulations that operate in a manner directly the reverse of what was intended by those who made the law. Of fuch regulations we have frequent occafion to complain. To guard against this evil, we ceafe 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 hurtful, they never can be beneficial when used in moderation. We wish to fee the defire 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 doubt, there is furely 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 applaufe, yet we can truly fay that the reader will here meet with many acute obfervations which deferve attention, and which will convey a confiderable degree of useful information. What we moft object to in the execution of the work, is a certain indecifive manner of writing, by which conclufions are plainly enough infinuated, without being clearly eftablished. In every philofophical difcuffion, we think no good reafon can be affigned why a man fhould not, in the plaineft and moft perfpicuous manner, state the conclufions which he thinks well informed reafon authorifes him to draw. This would have an air of candour, openness, and fincerity; and why fhould he, who is only engaged in the fearch after truth, aflume that appearance of ambiguity, which only those who wish to mislead ought to employ? An... ARREAR

ARREAR ACCOUNT OF LAW-Books, No. III.

ART. XIV. Elements of the Law relating to Infurances. By John Millar, Junior, Efquire, Advocate. 8vo. 570 Pages. 75. Boards. Printed at Edinburgh; and fold in London by Mcflrs. Robinfons. 1787.

TH

THE reader will find in this work, a complete collection of the cafes 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 thefe are not to be found in any other printed collection. The infertion of the decifions of the Supreme Court in Scotland makes the work particularly valuable, as the greatest 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 fome valuable obfervations on the contract of infurance, its nature, and utility, and a fuccinct account of its hiftory.-The work is divided into three parts. The first treats of the circumstances requifite to produce a valid infurance: the fecond, of the nature of an infurance contract, and the obligations arifing from it: the third, of thofe circumftances peculiar to infurance, which extinguish the obligation of parties and vacate the policy. As a fpecimen of Mr. Millar's manner of treating his fubject, we prefent the reader with the following extract:

Lord Kaimes, in his Principles of Equity, has adopted an idea that, in cafes of jetfon, goods ought to contribute, not according to their value, but their weight. He obferves, that it is the heavy goods which occafion the danger; and if there were leifure for fuch a tranfaction, every owner of valuable goods would purchase an equal quantity of thofe that were heavy, and each would throw the fame number of pounds weight overboard. Proceeding upon the fame reafoning, the Roman law," fays he, appears uncouth in fome of its confequences; jewels, and I may add bank-bills, are made to contribute to make up the lofs, although they contribute not in any degree to the distress; nor is a fingle ounce thrown overboard upon their account; nay, the ship itfelf is made to contribute, though the jetfon is made neceffary, not by the weight of the fhip, but of the cargo."

The whole of this reatoning is founded on a fuppofition which has been already fhewn to be erroneous; that in jetfon, as in other cafes of partial lofs, the obligation to contribute arifes 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 fhould contribute, not according to value, but weight; becaufe it is according to their weight, that they increafe the danger; and that the fhip, for the fame reafon, ought to be exempted.

• But

But in cafes of jetfon, the contribution does not arife from any idea that the lofing party is intitled to a recompence, for having acted factorio nomine; but merely that he may claim reftitution, fo far as his lofs has been directly converted to another's gain. Upon Lord Kaimes' fuppofition, many abfurdities would follow. Put the cafe, that a valuable jewel is thrown away in the hurry, and is to be contributed for by weight. The rest of the cargo confifts of a 1000l. bill of exchange, having no fenfible weight, and fome Cruts. of coals, the whole of which, taken together, are not worth the lofs incurred. If goods are to contribute by weight, the bill of exchange will contribute nothing. The coals may be all given towards the lofs, without fenfibly indemnifying the owner of the jewel. Here the holder of the bill will be the only gainer; the proprietor of the jewel will lofe a part; and the owners of the coals will lofe their all. Would this be an equitable diftribution? Or can we prefume, that the owners of bulky commodities would ever confent to any jetfon upon fuch terms?

The modern nations of Europe, accordingly, have, in this refpect, almost unanimoufly 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 cafe of general average, the owners of fhip ought to contribute, not only for the hull of the veffel, her tackle and appur tenances, but in refpect of the nett freight. The nett freight will be a clear gain to them, if the fhip accomplishes her voyage. By the Ordinance of Hamburgh, accordingly, it is declared, that "the owners of fhip fhall contribute for the whole amount of both hip and freight *."

The following Scotch cafe (ftated by Lord Kaimes) does not coincide with thefe principles, as it feems to imply, that the fhipowner fhall not contribute for freight at all.

LUTWITCH contra GRAY.

In a fhipwreck, part of the cargo being fished out of the fea, and faved, was delivered to the owners for payment of the falvage. The proprietor of the fhip claimed the freight of the goods faved pro rata itineris. The freighters admitted the claim, but infifted, that as the falvage 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 fuftained 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 cafe, his Lordship obferves, that it feems to have proceeded on the erroneous idea, that no contribution was due, unless the fufferer had acted factorio nomine. Whereas here a much more powerful principle operates, that the fhip-owners had reaped a pecuniary benefit at the expence of others; and it was therefore immaterial, whether that benefit was intended or not.

*Ord: of Conib. 885.-Of Copenhagen, No. 1284.-Of Genoa, 137.-Practice of Britain. -Ord. of Hamb. No. 981.'

• There

There are fome exceptions to this rule, that fhip and freight ought to contribute to the full; but thefe are not numerous.

The Ordinance of France (No. 579.) fays, that both fhip and freight are to contribute for one half. The Antwerp Regulation provides, that the owners of the cargo fhall have an option to make the hip contribute, either according to her real value, or her whole contracted freight. Thefe regulations feem applicable to grofs freight, which includes a confideration for the outfit; but they are, furely, in a confiderable degree imperfect.

Not only ought the fhip and cargo to contribute, but all who have an afcertainable intereft in their prefervation.

A lender on bottomry, it should feem, is in the precife fituation of a fhip-owner. The extent of his intereft in the hull of the fhip, diminishes fo far that of the borrowers. He ought, therefore, like the other owners of hips, to contribute towards a ranfom, jetfon, or other common difaller. In Spain, accordingly, where the great expence of fitting out a fhip to the Spanish colonies, renders bottomry a very frequent contract, and where, confequently, it is better understood than in most other countries, a bottomry-bond contains this condition, that the lender fhall run, in partnership with the owner, the risk on the hull, keel, and earnings of the fhip.

The French ordinance fays, that those who lend money on bottomry fhall bear their proportion of all grofs or general averages, but not of fimple or particular averages, without an exprefs agreement to that effect. Ord. Fr. No. 660.

From Mr. Magens's Effay it appears, that the rule upon this point, in feveral other European flates, is far from being laid down with precision; and it does not appear to be always confiftent with principles. In England there are, it is believed, no fixed rules univerfally established, for fettling partial loffes on a bottomry-interest.

The owner himself of the goods thrown overboard, muft contribute his own fhare, in proportion to the extent of his property on board for as he is indemnified by the contributions of his fellowadventurers, the jetfon is beneficial to him, as well as to the reft.

In short, every perfon for whofe benefit expence or trouble has been ufefully incurred, with a view to indemnification, is liable in a recompence for fuch expence and labour; and every perfon who has directly reaped an actual pecuniary advantage from another's lofs, is liable in reftitution, 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 excufed in refpect of their wages; partly from humanity, it being thought hard to deprive them of any part of their fmall earnings; and partly from utility, that they may be induced, with lefs reluctance, to confent to a jetfon.

The Roman law excepted paffengers, in refpect of their lives faved by the jetfon; becaufe the life of a freed man does not admit of a pecuniary eftination. A fimilar rule is adopted in modern Europe. Paffengers are, befides, free from contribution for the ufual articles of money, jewels, and neceflaries, which may be confidered as appendages to their perfon. Molloy fays, that, in general, money and jewels, and even clothes, and all things in the fhip

(except

.

(except a man's apparel in ufe, or victuals put on board to be spent), are liable to average and contribution." It is believed, however, to be a general rule with regard to fuch fubjects, that what pays no freight, pays no average.

In eftimating the intereft on board, in order to contribution, a queftion may arife, whether regard is due to the value of fhip and goods at the port of loading, or that of discharge. The Roman law adopted a diftinction fomewhat metaphyfical upon this fubject. The goods loft were estimated at their original coft; thofe faved, were valued at the price which they might probably bring; because, in the former cafe, the prime coft afcertains the actual lofs of the goods thrown overboard; and attention to the market-rate, at the port of difcharge, is neceffary to determine the extent of actual profit that fhall accrue from that lofs.

The point seems to be in fome meafure arbitrary. It appears more reafonable, however, that the lofs and gain fhould both be judged of by the fame criterion; and none of the modern ftates have therefore followed the rule of the civil law, although they differ very much from one another upon the point.

By fome regulations, the whole goods are estimated at their prime coft, or values in the port of difcharge, according as the veffe! has, at the time of the lofs, executed half her voyage or not. This diftinction prevails in the Confolato del mare, and in feveral foreign ordinances; thofe in particular of Genoa, of Rotterdam, of Stockholm, and of Copenhagen. It appears likewife, from Gerard Malynes, to have been the old rule in England.

The greatest number of modern mercantile ftates, however, have been of opinion, that the whole goods, loft and faved, ought to be eftimated according to their value in the port of difcharge. This is the rule adopted by the Hamburgh ordinances; by thofe of Coningberg, Antwerp, and France; by the Spanish West Indian laws, and by the general practice of Britain.'

This extract will, no doubt, give the reader a favourable impreffion of the work now under confideration. The other parts of it are executed with equal ability.

We are happy to find by this work, and fome other recent publications, that it is become a frequent practice for gentlemen of the long robe to commence their profeffional career, by prefenting to the public, either a treatife on fome important branch of legal learning, or an edition of fome former writer of authority. By this, at the fame time that they acquire a confiderable portion of ufeful knowlege, with the habit of arranging it methodically and applying it properly, they are benefactors to the public, by contributing to the general ftock of profeffional information. But while we approve of this practice, and fin cerely wish it may gain ground; we muft recommend to the young adventurers, not to be too hafty in prefenting themfelves to the public eye. They fhould ever carry in view, the important confequences of commencing authors; that, not only their fame, as writers, but their characters, as profeffional men, and

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