insurable interest in them. They had merely a contingent expectation of managing and controlling them in case they should be brought into the ports of this kingdom, an event which at the time when the policy was effected had not happened, might not happen, and in fact ultimately never did happen. Now what is the nature of a policy of insurance? It is an instrument by which a party "causes himself to be insured" that is indemnified against any injury happening to certain subjects stated in the policy: but in order to be indemnified the assured must have the thing which he insures against peril. To constitute an insurable interest therefore there must be a present right of property in the subject matter, capable of being transferred by the ordinary means of transfer, and capable of being vindicated in point of right by the ordinary remedies of the law. The uniform course of the precedents upon policies of insurance has been to aver an interest in so many words, or to state those circumstances from whence a conclusion of interest must necessarily arise. The oldest entry of the kind is in precedents in the Upper Bench, page 77. where the declaration contains several allegations introduced for the sole purpose of shewing the Plaintiff's property in the goods. In Goram v. Sweeting, 2 Saund. 200. 205. though the insurance was from London to Gibraltar," without further account to be rendered for the same," yet the declaration alleges an abandonment, which shews that it was thought necessary that the insurer should have an interest capable of abandonment; and in the case Gallop v. Proudfoot, Vidian 48. the Plaintiff expressly averred, that at the time of the insurance he was possessed of a part of the ship; though he declared upon a valued policy " without further account." Indeed in the case of Martin v. Sitwell, 1 Show. 156. which was previous to the statute 19 Geo. 2. respecting wager policies, the Plaintiff who had made an insurance was allowed to recover back the premium, because no goods had been put on board; which he could not have been allowed to do if the policy would have been equally good whether the Plaintiff had any interest on board or not. That a mere wager is legal there can be no doubt, but insurance is a different thing from a wager. It is a contract respecting the indemnity of property against certain accidents which may befull it to the detriment of the persons interested in it. And it was so considered by Lord Chief Justice Willes in the case of Pole v. Fitzgerald, Willes' Rep. 645. who cites the authority of Roccas and Cleirac to that effect. Consistently therefore with this notion it is that all the precedents, printed and manuscript, previous to the statute 19 Geo. 2. with one single exception either aver an interest, or contain a dispensation of the proof of interest. The single exception is contained in Clift's Entr. 77. Grotton v. Aldworth; but that case does not appear to have come into discussion, and was probably a mere precedent inaccurately drawn. Indeed before the statute the Courts were extremely jealous of policies interest or no interest, sometimes compelling the parties to abandon what interest they actually had, and sometimes upon bills filed for that purpose, ordering them to be delivered up to be cancelled; as in Goddard v. Garret, 2 Vern. 269. And in Le Pypre v. Farr, 2 Vern. 716. the assured was ordered to discover what goods he put on board, though he had offered to abandon, in order that it might be referred to the master to examine the value of the goods saved and deduct it out of the sum insured. The touchstone therefore of insurances, not made in the form of a wager, is that there be something which may be abandoned; thus Lord Mansfield says that it is the criterion of wagering policies that you cannot abandon; and though in valued policies if there be something to abandon, a larger interest than really exists may be insured, yet such policies have only been allowed for the accommodation of traders who might be ignorant what sort of cargoes their factors might have to remit. Thus stood the law of insurance up to the 19.Gea. 2. c. 37. the object of which was to prevent the contract of insurance being made use of as the means of wagering and to place it from that time on the same footing on which it originally stood at common law. The statute, after reciting that many pernicious practices had ensued from wager policies, strictly prohibits any such to be made "interest or no interest," or without further proof of interest than the policy," which are specifications of the terms usually inserted in such policies: but the words which follow apply not only to the mode in which the evasion might be attempted, but to the very thing itself, or by way of gaming or wagering or without benefit of salvage to the insurer." With the exception of Le Crus v. Hughes, Park Insur, 269. Gregory v. Christie, Park Insur. 11. and Flint v. Le Mesurier, Park Insur. 268. in notis, all the cases subsequent to the 19 Geo. 2. are reconcileable with the principles of insurance contended for by the Plaintiffs in error. In Le Cras v. Hughes Lord Mansfield relied upon the authority of a case of 66 Grant Grant v. Parkinson (a) which had been previously determined, but which case if accurately examined will be found to bear no analogy to it. There the insurance was on 10007. being profits expected to arise from the cargo of the ship Providence in the event of her safe arrival at Quebec," and there was an allegation in the declaration that the Plaintiff "until and at the time of the misfortune hereinafter mentioned was interested in the profits expected to arise from the said goods, wares, and merchandizes to a large value, &c. Now the fact was, as indeed might be inferred from this allegation, that the assured was the owner of the goods on board, and consequently was interested in the profits to arise therefrom. Those goods he had insured by a separate policy; and therefore by making a distinct policy on the profits he had only secured those profits to himself by this second policy which he might have secured by the first had it been a valued policy upon the goods and profits to arise therefrom. Lord Mansfield begins his judgment by observing, "This was a cargo of molasses belonging to the plaintiff." The substratum and foundation of the insurance therefore was not a bare expectation of interest in a subject with which at the time of affecting the insurance the insured was not connected, but an expectation of profits on goods at that time his, and insurable together with the profits in a valued policy. Independent of these observatsons however Le Cras v. Hughes, whether properly decided or not is very distinguishable from the present case. There Lord Mansfield considered the main question to be, whether that possession which the joint captors had obtained of the prize was, when considered with reference to the prize act and proclamation, such a possession as vested in the captors an insurable interest; the distinction between that case and the present therefore is very essential, in the former the insurable interest being supposed to arise out of the actual possession, whereas in the present case the insurable interest is supposed to arise out of the expectation of possession. With respect to the observation supposed to have been made by Lord Mansfield that an agent of prizes not having the possession of the property may insure, it seems to be inconsistent with the rest of his judgment, which distinctly proceeds upon the ground of the assured having the possession as well as the expectation of the property. It may be added that Lord Mansfield in a great (*). This case was cited from Mr. Dunning's brief in the cause and a manuscript Bote of the judgment, measure 1802. LUCENA v. CRAUFURD and Others in Error. measure relied upon an idea that the prize act and proclama- which was the subject of the present insurance may be compared to that which was brought forward in a case of The Attorney General v. Smith before Lord Thurlow Ch. J. by the next of kin of a lunatic in order to have a bill to perpetuate the testimony of witnesses, and thereby secure his succession to the lunatic's estate which application was refused on the ground of want of interest. And Lord Thurlow said, "The present is a suit for something by somebody who may have, if God pleases, an interest against one who may have, if God pleases, also an interest." Perhaps some reliance may be placed upon the rule respecting life-insurances that a creditor has such an interest in the life of his debtor that he may insure it. Anderson v. Edie, Park Insur. 432. But there the security derived from the person of the creditor is the subject insured, and indeed the governing principle of all the cases upon that subject will be found to be consistent with the rule contended for by the Plaintiff in error, because they proceed on the ground that no insurance is good which is not made to insure something of which the party insuring is in the actual enjoyment, and which depends upon the duration of life. Arguments for the Defendants in error. The Dutch Commissioners were appointed to sell, manage, and dispose of effects which should be brought into, or which should hereafter come into the ports of this kingdom. But it is insisted that the words "to be detained provisionally" contained in the instructions to the commanders of the King's ships, connected with the alteration which took place in the state of things previous to the time at which the ships insured would have arrived in the ports of this kingdom, if not lost, materially change the character of the Commissioners with respect to the subject insured. It must be remembered however that the policy was dated on the 22d of August 1795, and that the proclamation for reprisals did not issue until the 15th of September following; at the date of the policy therefore the authority and interest of the Commissioners was precisely the same as when it first vested in them. Had no proclamation for reprisals issued the situation of the Commissioners would clearly have remained unaltered. Now the order of Council of the 10th October empowering the Court of Admiralty to condemn as prize all such Dutch ships as should be brought in, most cautiously preserves the old authority of the Commissioners, and referring to the act under which that authority was derived, says, "reserving 1802. LUCENA CRAUFURD and Others; in Error. |