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![handle is hein.slavery/ssactsengr0051 and id is 1 raw text is: TARLETON V. TARLETON
running the risk of indemnifying the assured, and whatever cause it be owing to, if
he does not run the risk, the consideration for which the premium was put into his
hands fails, and therefore he ought to return it. Also, in Neville v. Wilkinson (b)1,
the Lord Chancellor considered the rule as clear, that in all cases where money was
paid for an unlawful purpose the party, though particeps criminis, might recover at
law. Wharton v. De La Rive (c) seems to have been ruled upon that principle; and so
in Jaques v. Golightly (d), Jaques v. Withy (e), the premium was allowed to be recovered
back, though both parties were sharers in the offence. But, without insisting on the
rule to such an extent, it is enough that Oore v. Bruce(f) has expressly decided that
the illegality of the insurance shall not prevent the assured from recovering back the
premium, if no fault be imputable to him in making the insurance. And the Legis-
lature certainly so con-[19]-sidered it when they declared, by stat. 28 G. 3, c. 38, s. 48,
all insurances on wool to be exported illegal, and yet deemed it necessary to add, that
upon such insurances the premium should not be recovered. Now here, as in Oom v.
Bruce, the assured contemplated nothing illegal; on the contrary, they did all in their
power to comply with the law. The ship was sent to the river Plate by their agent
without their knowledge, and as soon as they knew it they applied to the South Sea
Company and procured a licence. Granting that the licence cannot operate retro-
spectively to make good the insurance, yet it may operate as a remission oil the part
of the Company of their portion of the penalty incurred by the plaintiffs; and thus,
though the insurance be void, give it so much of legality, if that be necessary, as to
entitle the assured to a return of premium. Toulmin v. Anderson (a) differs from this,
inasmuch as no licence whatever was obtained in that case.
Lord Ellenborough C.J. If the licence cannot operate retrospectively to render
the whole lawful it cannot do so in part only for the purpose of giving a right to
recover the premium. The ship itself was forfeited (b)2. If it had appeared that
orders were given for procuring a licence antecedently to the time when the risk
commenced, it might have been said that here was not a sinning against the Act of
Parliament ; but nothing of that sort appears. And this is an insurance at and from,
therefore it is incumbent on the assured to look to the insurance, that it is lawful at
the place [20] where the policy is to attach. Here he acquires the goods within a
prohibited district. The policy is effected, the obtaining the licence was an after-
thought. The most favourable supposition would be that there was a previous order
for procuring a licence, and under such circumstances perhaps a disappointment in
fact might not have precluded the assured ; but as it is, I am afraid, with every wish to
help the plaintiffs, we cannot do it.
Le Blanc J. In Oom v. Bruce the fact of a war was unknown to the assured; here
the fact of there being no licence was known.
Per Curiam. Rule absolute.
The Attorney-General and Richardson were for the defendant.
TARLETON against TARLETON. Saturday, April 15th, 1815. In covenant to
indemnify plaintiff from all debts due from the late partnership of plaintiff,
defendant, and D. B., and from all suits, &c. proof, on a copy of the proceed-
ings in a foreign Court in a suit there, instituted against the late partners for the
recovery of a partnership debt, in which a decree passed against them for want
of answer, per quod a sequestration issued against the plaintiff's estate, and he
was obliged to pay the debt, &c. ; was held to be conclusive against defendant,
and that defendant was not at liberty to. shew that the proceedings were
erroneous.
Covenant upon an indenture, of the 13th of September 1800, made between the
plaintiff of the one part, and the defendant and one D. Backouse, since deceased,
of the other part, whereby the defendant and the said D. B. jointly and severally
covenanted with the plaintiff to pay and satisfy, or cause to be paid and satisfied,
within two years from the 23d of July then last, [21] all such debts as were remaining
due from the late partnership of the plaintiff, defendant, and D. B., and to indemnify
(b)1 1 Br. Ch. R. 547. (c) Park. Insur. 376, 4th ed.
(d) 2 Bl. R. 1073. (e) 1 H. Bl. 65. (f) 12 East, 225.
(a) 1 Taunt. 227. (b)2 9 Ann. c. 21, s. 49.
742
4 M. &. S. 19.](ViewImageLocal?handle=hein.slavery/ssactsengr0051&div=1&collection=&method=preview&ext=.png&size=3)