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damage of moment was occasioned to any thing but 1815. the sugar; there was no greater fire than was ordinarily used for the purposes of sugar baking, "Another

Austin and and no part of the substance of the premises was injured by fire.

DREWE.

Vaughan, serjeant, for the defendant, contended, that this was not a damage by fire within the meaning of the policy.

The Solicitor General, contrà.

GIBBS, C. J.-I am of opinion that this is not a loss within the policy. No greater fire existed than was necessary for the purposes of the business. By omitting to open the register, heat and smoke have been forced into the rooms where the sugars were preparing; the heat produced the mischief: no sensible damage resulted from the smoke and sparks, and the occasion which produced the excess of heat was not a fire against which the defendant had undertaken to indemnify the plaintiffs. The servants had neglected to open the register. What is this but a bad management of their own machinery? The fire is where it ought to be ; no more than it ought to be. But it received a false direction by the irregular and improvident conduct of the plaintiffs' servants. As no substance, therefore, was taken possession of by the fire, which was not intended to be fuel for it; as the sparks and smoke caused no mischief, but as the damage arose from an excess of heat in the rooms, occasioned by the register being shut, I

1815. am of opinion, that the plaintiffs are not entitled to Austin and

, recover. Another

The jury found a verdict for the defendant. DREWE.

The Solicitor General, Lens, serjeant, and Gaselee, for plaintiffs.

Vaughan, and Copley, serjeants, and Tindall, for defendant.

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In the ensuing term the questionably be answerable in Solicitor General moved to set such a case. The spirit of the aside the verdict, but the Court decision of the present case is concurred in the opinion of the this : that there was no loss by Lord C. J. as expressed at fire, by whatever cause or mis. the trial.

conduct produced. The inIt is not to be concluded jury arose from the misdirecfrom this case that an insurer tion of heat, occasioned by the on a policy against fire is unskilful management of the exempt from a loss occasioned machinery in the sugar house. thereby, on the ground that It was not, therefore, in any the servants of the assured have fair and reasonable construcbeen careless or unskilful, and tion of the policy, one of those that the fire was occasioned by accidents against which the their negligence and miscon- defendant had engaged to induct. An insurer would un. demnify the plaintiffs.

1815. .,

GREGG and Another v. Scott.

ACTION on a policy of insurance on the Jonge A license

granted to a Grief, at and from London to her port of ship to sail in

ballast from discharge in Holland, or the Ems. In the first London to Hol.

land (which count the interest was averred to be in the plain

country was at tiffs; and there were other counts averring it to

that time in a

state of hostibe in one Wiger Harmens, who resided in Hol- lity) notwith.

standing any land, and to whom, in fact, the vessel belonged. thing contain.

ed in his Ma.. The loss was capture by a French privateer. jestv's Order The ship had been taken and the papers with April 1809,

of Council of it; the first license, therefore, was lost; but a

protect a ship second had been obtained, and was produced. It which was the

property of an bore date the 5th July, 1810, and was granted to alien enemy.

An insurance, the vessel on the petition of the brokers, who had therefore, on

mi such vessel is obtained the first license on a similar petition. The license was to the vessel to sail in ballast from London to Holland, &c. notwithstanding any thing contained in his Majesty's Order of Council of April, 1809. The petition, upon which the license was granted, was not produced.

void.

The Solicitor General and Spankie, for the defendant, objected; that this license did not protect a vessel owned by an alien enemy at that time resident in Holland. It might be desirable to license neutrals; but belligerents were differently circumstanced. In 1810, the coast of Holland was in a state of blockade; we were then at war with that country; the object of the license

VOL. I.

1815.

was to mali

GREGG and
Another

SCOTT.

was to relieve the blockade: it did not, like other licenses, adopt the Jonge Grief as a British vessel for the time. In consequence of that license, which carries no evidence on the face of it that it is granted to a vessel owned by a Dutchman, the enemy seize the ship; they have the value by capture; and an alien enemy, the owner, claims likewise the value from the underwriters. The council thought the license granted to a neutral; and the license is only consistent, by being a license to this ship, provided she were a neutral.

Vaughan and Taddy, for the plaintiffs.—This was in effect a license to the vessel to return to Holland in ballast. It is clear that she had brought a cargo from Holland with a sufficient license; and she is here with the knowledge of Government. It is objected that it may be a license to protect enemy's property. Government might use the ship for that purpose, and extend the protection to property of any description. This is not a license for goods, but specifically to the ship; to a Dutch ship, and to a Dutch captain. It would be a fraud in Government to allow an enemy to import goods into this country, and not to permit the vessel to return in ballast. The King may grant such a license; and it is evident that the vessel was only returning in ballast after depositing her cargo in this country. They cited Hagerdorn v. Reid, 1 Maule and Selw. 567.

GIBBS, C. J.-I think this license was not sufficient to cover enemy's property: we were at war with Holland. The Order of Council of 1809 had prohibited all vessels from sailing to any port within 1815. that district to which this vessel was bound. Some license was necessary. The King, receding from G

GREgg and

Another his belligerent rights, might grant a license to an alien enemy, and legalize the voyage; he might grant a license to the ship to proceed to the prohibited ports. The question is, whether the license protects the ship, being an enemy's property. If the object of this license were to protect an enemy's ship, and I could see this ship to be an enemy's property, it is sufficient. But if it be to protect her from the Order of Council, it is not sufficient. I can look only to the license : the petition we have not. In Hagedorn v. Reid the license was to import a cargo, though the insurance was on the ship; the license in that case included all flags, though the King's enemies, except a French flag. If I found that this was a license to brokers and neutral merchants to export a cargo to Holland in any vessel but a French vessel, I should say it extended to a Dutch vessel. Looking only to this license, which is granted for this ship to go back to Holland in ballast, and this being an insurance on the ship, I do not know how it can protect her as enemy's property. I cannot collect from the license a privilege to the persons who obtained it, to be interested in a ship belonging to an alien enemy. It is apparent that the object of this license was to remove the disability occasioned by the Order of Council.

Plaintiffs nonsuited.

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