John R. Bowne, surviving partner of John R. Bowne and Samuel Embree, v. John Shaw; The same v. William Neilson and George Bunker, 1 Cole. & Cai. Cas. 304

Per Curiam, delivered by Lewis, C. J. The question between the parties to this suit arises upon the warranty against loss by capture or detention for trading in articles contraband of war. The effect which contraband shall have upon lawful goods, when going to the port of a belligerent, would be here a proper subject of inquiry, had the fact of the Polly’s ■ carrying such contraband been secreted from the insurer at the time of subscribing the policy. But it is stated in the casé, that the circumstance was within his knowledge.

It is, therefore, only necessary to inquire into the understanding the parties had of the contract they entered into. The goods covered by the policy on which this suit is brought were lawful, and insured at a premium of nine per cent. Certain contraband articles were shipped in the same vessel by the plaintiffs as agents, and insured at a premium of 30 per cent.

With a knowledge of this fact, the defendant subscribed the policy, and as both parties must be presumed equally acquainted with the law upon the subject, he doubtless took the risk of all the consequences that might result to the lawful from the illicit goods ; The warranty extending, in the understanding of the parties, to the goods only, which were the subject of the policy, I am, therefore, of opinion, the plaintiff is entitled to recover as for a total loss, In the case of the same plaintiff against Neilson and Bunker, I think the former entitled to a return of-premium.

The broker who held funds of both parties, debited the plaintiff in account, with the whole .amount of premium due on the policy, and credited the defendants for their proportion. In May, 1801, he settled with the plaintiff, and paid him a balance which did not include the premium in question. On two several accounts rendered the defendants, the amount of premium still stood to their credit. And although a balance in their favour has always Iain in the hands of the broker to a greater amount than the premium, it does not appear to have been left there for the purpose of re-payment to the plaintiff.

No authority for this purpose has ever been given, and the defendant must be considered as still withholding it from the plaintiff.