damage of moment was occasioned to any thing but the sugar; there was no greater fire than was ordinarily used for the purposes of sugar baking, and no part of the substance of the premises was injured by fire. 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. AUSTIN and v. DREWE. 1815. AUSTIN and Another v. DREWE. am of opinion, that the plaintiffs are not entitled to recover. The jury found a verdict for the defendant. The Solicitor General, Lens, serjeant, and Gaselee, for plaintiffs. Vaughan, and Copley, serjeants, and Tindall, for defendant. In the ensuing term the Solicitor General moved to set aside the verdict, but the Court concurred in the opinion of the Lord C. J. as expressed at the trial. It is not to be concluded from this case that an insurer on a policy against fire is exempt from a loss occasioned thereby, on the ground that the servants of the assured have been careless or unskilful, and that the fire was occasioned by their negligence and misconduct. An insurer would un questionably be answerable in such a case. The spirit of the decision of the present case is this: that there was no loss by fire, by whatever cause or misconduct produced. The injury arose from the misdirection of heat, occasioned by the unskilful management of the machinery in the sugar house. It was not, therefore, in any fair and reasonable construction of the policy, one of those accidents against which the defendant had engaged to indemnify the plaintiff's. GREGG and Another v. SCOTT. 1815. ACTION on a policy of insurance on the Jonge A license granted to a of ship to sail in London to Hol ballast from land (which that time in a standing any thing containjesty's Order Council of ed in his Ma of April 1809, held not to protect a ship which was the Grief, at and from London to her port discharge in Holland, or the Ems. In the first count the interest was averred to be in the plain- country was at tiffs; and there were other counts averring it to state of hostibe in one Wiger Harmens, who resided in Hol- lity) notwithland, and to whom, in fact, the vessel belonged. The loss was capture by a French privateer. The ship had been taken and the papers with it; the first license, therefore, was lost; but a second had been obtained, and was produced. bore date the 5th July, 1810, and was granted the vessel on the petition of the brokers, who obtained the first license on a similar petition. 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. It property of an to alien enemy. An insurance, had therefore, on such vessel is The 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. K 1815. GREGG and v. 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 Some prohibited all vessels from sailing to any port within 1815. GREGG and v. SCOTT. Plaintiffs nonsuited. |
