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The King

WHEATLEY.

*Jones, Lord Raym. 1013(m), quashed for the same reason: Holt said, shall we indict one man for making another a fool?

FOSTER, J.-Same opinion. K. and Wilder is a very strong case:—too strong a case. For there were false tokens, which do not appear in the present(n).

Wilmot, J.-Imposition, against which common prudence may guard a man, is not indictable; but where it is accompanied by so cunning and artful a contrivance that a wise man may be easily deceived, it is otherwise. K. and Pinkney, P. 6 Ġeo. 2(o); indictment for selling a sack of corn, which he falsely affirmed to contain a Winchester bushel, quashed. The Court said, if a shopkeeper warrants a piece of cloth to contain six yards, and it does not, it is not indictable; because the buyer should see it measured. Of the same opinion.

· Judgment arrested per tot. Cur' (p).

(m) Salk. 379, s. C. Jones came to A. and received £20, falsely pretending that B. had sent him. See R. v. Murray, 2 Stra. 1127; Bryan's Ca., 2 Stra. 866.

(n) “Possibly the Court, in deciding the case, thought that those marks, not having even the semblance of any public authority, but being merely the private marks of the dealer, did in effect resolve themselves into no more than the dealer's own affirmation, that the vessels contained the quantity for which they were marked;" 2 East, P. C. 820.

(0) 2 East, P. C. 820; where the Court also said, "if a person selling corn should measure it in a bushel short of the statute measure, or should measure it in a fair bushel, but put something into the bushel to help to fill it up, he might be indicted for the cheat."

() This Case of R. v. Wheatley, is considered a leading one on the subject of cheats and frauds at common law : "for it seems to have clearly established the true boundary between those frauds that are, and those that are not indictable at common law:" Per Lord Kenyon, 6 T. R. 569. “The true definition of cheats and frauds punishable at common law is : The fraudulent obtaining the property of another, by any deceitful and illegal practice or token (short of felony) which affects, or may affect the PUBLIC;" 2 East, P. C. 818; adopted in 2 Russell's Cr. and Misd. 1374. Thus an indictment lies for cheats against public justice : See Omealy v. Newell, 8 East, 364, and cases there referred to; Fawcett's Ca. 2 East, P. C. 862: so for supplying prisoners of war with unwholesome food; T'reeves' Ca., 2 East, P. C. 821: so for supplying Chelsea Asylum with unwholesome bread; R. v. Dixon, 4 Camp. 12, 3 M. & S. 11. So against persons in official situations for rendering false accounts, relating to the public revenue; R. v. Bembridge, cited in 6 East, 136, 22 Howell's St. Tr. 1: so against overseers and

other parish officers for frauds practised by them upon the public, under colour of their office; R. v. Cummings, 5 Mod. 179; R. v. Martin, 2 Camp. 268; R. v. Minister of St. Botolph's, post, 443; R. v. Tarrant, 4 Burr. 2106. So cheats by means of false weights or measures are indictable, as clearly affecting the public; as selling cloth with the Alnager's, or other public seal or mark counterfeited thereon; Edwards' Ca., Trem. P. C. 103; Worrell's Ca., Id. 106; Pinkney's Ca., supra. This definition was recognized in the following case, where a pawnbroker was indicted for selling a gold chain under the sterling alloy, as and for gold of the true standard weight, and the offence was held not to be indictable. Lord Mansfield said, “It is certainly an imposition; but I incline to think it is one of those frauds only, which a man's own common prudence ought to be sufficient to guard him against, and which, therefore, is not indictable; but the party injured is left to his civil remedy." Aston, J., referring to R. v. Wheatley: “I rather think this is a private cheat : it is not selling by false measure, it is only selling under the standard ;" R. v. Bower, 1 Cowp. 323. On this case, Mr. East observes, “ if the stamps or marks required by the statute on plate of a certain alloy had been falsely used, it should seem that an indictment might have been sustained;" 2 East, P. C. 820 (b). “ To make an offence indict. able at common law, it must be public in its nature. And the distinction which has been taken in the case of using false weights and measures, shews it more clearly than any other. If a person sell by false weights, though only to one person, it is an indictable offence: but if, without false weights, he sell to many persons a less quantity than he pretends to do, it is not indictable:" Per Buller, J., in Young's Ca., 3 T. R. 104. Those cases of cheats and frauds in private transactions, which have been held indictable, will prove on

The King

WEATLEY.

examination to have amounted to conspi.
racy or forgery, which are substantive of-
fences in themselves ;-—see 2 East, P. C.
817. It is also necessary that the cheat or
fraud should have been effected by a false
token, and not by a bare lie or affirmation;
see R. v. Lewis, Say. 205; Reg. v. Jones,
supra ; Reg. v. Hannon, 6 Mod. 311; Ne
huff's Ca., Salk. 151; R. v. Bryan, 2 Stra.
866 : nor by a loken of no more credit
than an assertion, as by a check upon a
bank, on which the defendant knew he had
no authority to draw; Lara's Ca., 6 T. R.
565, 2 Leach, C. C. 647; see Wilder's Ca.,
supra, and R. v. Gibbs, 1 East, 173, and
the notes. But a similar offence, by means
of a check, was held indictable under 30 G.
2, c. 24; R. v. Jackson, 3 Camp. 370. So
a miller is not indictable for detaining a
certain quantity of wheat, sent to be ground,
it being a matter of a private nature; Chan.

nell's Ca., 2 Stra. 793. So where a miller
received good barley to grind, and return-
ed bad and musty meal, it was held not
to be an indictable offence.-Lord Ellen-
borough; “If the case had been that this
miller was owner of a soke-mill, to which
the inhabitants of the vicinage were bound
to resort in order to get their corn ground,
and the miller, abusing the confidence of
this his situation, had made it a colour for
practising a fraud, this might have pre-
sented a different aspect; but, as it now is,
it does not seem to be more than the case
of a common tradesman, who is guilty of a
fraud in a matter of trade or dealing, such
as is adverted to in R. v. Wheatley, and the
Other cases, as not being indictable; R. v.
Haynes, 4 M. & S. 214. See 1 Hawk. P.
c. č. 71, s. 2, East, P. C. 821; 2 Russ. C.
& M. 1361, and R. v. Rispal, post, 368.

EASTER TERM,-1 Geo. III. 1761.-K. B.

HAMILTON O. MENDEZ.

S. C. 2 Burr. 1198. Insured, who ACTION on a policy of insurance. Special case. Ship Selby, abandons, can burthen 200 ton, valued at 12001. was insured from Virginia to only recover for London on the common

ss at London on the common peril, at fifteen guineas per cent. Dethe time of his fendant underwrote 1001. Plaintiff had an interest in the ship. abandonment. On 12th March, 1760, she sailed from Virginia. On 6th May, [ *277 ] was taken by the Aurora * privateer, who took out seven hands

out of nine that were on board, and put a prize-master on board to carry her to France. On 230 May, she was retaken off Bayonne by the Southampton man of war, and brought into Plymouth. On 230 June, plaintiff, who lived at Hull, gave orders to abandon his interest. His agent, on 26th June, acquainted the defendant with these orders. Defendant refused to pay for a total loss, but offered to pay average, salvage and all losses and expences. On 19th August, she was brought into the port of London by order of the owners of the cargo and the recaptors. It was also stated, that the ship sustained no damage in the hands of the enemy.-Qu. Whether, on the 232 or 26th June, the plaintiff had a right to abandon the ship and recover for a total loss or only for an average loss. Damages in the former case, 981.; in the latter, only 101.

This case was argued in this Term, by Morton for the plaintiff, and Aston for the defendant; and again in Trinity Term following, by Norton for the plaintiff, and Gould for the defendant.

Morton argued, that notwithstanding stat. 19 Geo. 2(a),

(a) C. 37, s. 1. This act does not extend to insurances of foreign property and on foreign ships; Thellusson v. Fletcher, 1

Doug. 315; Per Lord Kenyon, in Craufurd v. Hunter, 8 T. R. 23.

MENDEZ.

there was no occasion to have the property of the insured va- HAMILTON lued afterwards, in case of a loss. If he proves any interest, however minute, he may recover the sum insured. That in this case he has his election, to abandon or not. If he does abandon, it is similar to an insurance, interest or no interest: If he does not, he must receive according to a valued interest, upon this which is a valued policy. In either case, no injustice is done to the underwriter, who has his premium; and underwriters had rather insure interest or no interest, because the premium is higher (6).- This is a total loss. Taking by the enemy and shipwreck æquiparantur; Roccus. 287.-Subsequent events, whereby the insured may be no loser, shall not prevent him from recovering. An insurance interest or no interest, that a ship arrives at such à port on such a day: If the ship never sails, plaintiff no loser; yet held he shall recover. Roccus. 227, not. 66.--According to Grot. I. 3, c. 6, pag. 814, twenty-four hours' capture alters the property. This is questioned by Bynkershock, l. 1, c. 4, who states it to be, *when [ * 278 ] all hope of recapture is gone. In either case, the present plaintiff had lost his property in the present instance, and then became entitled to recover against the insurer.

Aston, for defendant, argued that total loss was a technical expression, to signify an utter impossibility of pursuing the end proposed. It is not peril of loss, but a clear and absolute loss, that constitutes this total loss :-when all probable hope of recovery is gone; that is, when the ship is in the enemy's ports, in tuto, in loco securo; Consolato del Mare; Rocc. Notabil. 50; Ordinances of France, A. D. 1681, sect. Insurance, art. 46.

- of Bilboa, 1738, art. 32,- of Middleburgh, art. 26,-
of Rotterdam, art. 62, 64.-Insurances, interest or no interest,
are not to the purpose. There the whole wager is upon a total
loss ever happening. It is like a wager, that a man is robbed
between London and York. The man is robbed; the robber
taken; the money recovered; yet the wager lost. Stra. 1250(c).
If ships were to be rated according to the value inserted in the
policy, the insurers must always lose. If rated too high, the
insured would always abandon.-Valued policy has no other or
different effect from an open one, except in the case of a total

(6) A valued policy is not to be considered as a wager policy, or like 'interest or no interest: if it was, it would be void by the act of 19 G. 2. It is settled that upon valued policies, the merchant need only prove some interest, to take it out of the act, because the adverse party has admitted the value; and if more was required, the agreed valuation would sig. nify nothing. But if it should come out in proof, that a man had insured £2000, and had interest on board to the value of a cable only, there never has been, and I believe there never will be a determination, that by such an evasion the act of Parliament may be defeated;" Per Lord Mans. keld, in Lewis v. Rucker, 2 Burr. 1171.

“On the construction of the act, it has
uniformly been held, that a valued policy
is not void. It is incumbent on the plain-
tiff to prove some interest, but it is not ne-
cessary to go into the whole value:" Per
Lord Mansfield, in Grant v. Parkinson,
Park's Ins. 402 (ed. 1817); Marsh. Ins.
97 (ed. 1808), s. C. And Mr. Just. Park
lays it down, that to recover on this kind
of policy, the insured need only prove
that he has an interest, without shewing
the value ; but that if it appear, that the
interest proved is merely a cover to a wa-
ger, in order to evade the statute, there is
no doubt such a policy would be void. Id.
401.

(c) Dean v. Dicker, cited ante, 198.

MENDEZ.

no righn, for thet 'incomp Aband acti

HamilTON loss; then, indeed, the loss must be taken at the valuation in

serted in the policy: but, upon an average loss, a subsequent valuation must be made(d). (N. B. The verdict finds only 101. for the average loss, which is one-tenth of the sum insured; whereas the salvage on re-capture amounts to one-eighth of the real value. So that it appears, that the jurors found, she was overvalued at 12001. which the plaintiff's counsel urged, that they, the jurors, had no right to enquire into.)

In Trinity Term, Norton, for the plaintiff, argued, that abandonment and total loss are not incompatible. Total loss is, where nothing [is] left worth saving. Abandonment is naturally consequential on such a loss. Right of action,

once fairly vested; can't be taken from the plaintiff, without [ *279 * proof of fraud. It is like a breach of condition, which gives

action to covenantee; and which cannot afterwards be devested. This right of action accrued 6th May. In case the plaintiff can only recover for an average loss, and that average loss is to be adjusted by a public sale at a great distance from the owner, this is drawing such a line of property, as the owner never

meant to submit to. Average loss on Gould, for the defendant, cited Lewis and Rucker, P a valued policy. 1 Geo. 3(e), where it was determined that, in adjusting an estimated by the real value of the average loss on a valued policy, the real loss sustained on the goods on board. goods actually on board shall be the measure of the damages;

and not the valuation in the policy, on which the underwriter received his premium.

Lord MANSFIELD, C. J.-Plaintiff has averred in the declaration, as the basis of his demand, that the ship became wholly lost to him. And the question will be, whether the plaintiff, who at the time of his abandoning had sustained only a partial loss, has now, by abandoning, a right to recover for a total loss.

Four points have been insisted on by the plaintiff's Counsel. 1st. That by the capture, the property was changed from the owners to the captors. This, as between insurer and insured, signifies nothing; especially as, by the marine law, no property is changed till condemnation; and by our act of Parliament (f), the jus postliminii is perpetual. 2dly. That while the ship was in the hands of the enemy, it was a total loss. This is not controverted. 3dly. That recapture makes no difference. Here lies the difficulty. This case stands on its own circumstances.

It is not a general rule, that upon a recapture you can't abanOwner may don. If the voyage becomes not worth making, you certainly

e may. This was the case of Goss and Withers, 32 Geo. 2(g). voyage be not

There was great damage; the ship under a disability to pursue

her voyage, and the salvage amounted to half the value. This [ * 280 ] is a * very different case. Here the ship was in effect pledged

to the recaptors for one-eighth of its value, and, when that was paid, was in as good plight as before. The voyage was actu

abandon if the

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HAMILTON

MENDEZ.

ally performed. 4thly. That during the capture, a right vested in the plaintiff to recover of the insurers, which could not afterwards be taken from him. But the plaintiff's action is for indemnity; and it is repugnant to reason, that plaintiff, on an action for indemnity, should recover for the whole, when a part only is lost, or perhaps even nothing at all. If a tenant commits or suffers waste, and repairs before action brought, the landlord cannot recover; Co. Litt. (h). A surety can't be sued for more than the party suffers. This is the first attempt ever made to make the insurer pay for a total loss upon an interestpolicy after the goods [are] actually recovered. If the thing be recovered, no artificial reasoning shall vest a temporary property in the captors, merely to prejudice the insurers.

The consequences of the present case are decisive. No man under these circumstances would choose to abandon, but for one of these two reasons:-1. Having overvalued his interest; this ought not to be encouraged; it is productive of fraud, contrary to the spirit of the marine law, and the stat. 19 Geo. 2; no man should avail himself of it: 2. That the market is fallen since he insured. But as the insurer can have no advantage by the rise of the market, he ought not to lose by the accidental fall of it. Were there occasion to resort to it, this argument alone would be decisive. But upon principles it is plain enough. The property of merchants should not depend upon subtile niceties and speculative refinements drawn from the Roman jus postliminii, but upon plain reason. We desire it may be understood, that the only point now determined is, that on a valued policy a plaintiff cannot recover more than the actual loss which has happened, at the time when he chooses to abandon. We give no other opinion.

Judgment for the plaintiff, with damages for the average loss only (ë).

(b) 53 a.

(0) This may be considered as a leading case on the subject, and has been recognized and acted upon in several subsequent cases, particularly in Milles v. Fletcher, 1 Doug. 231 a; Cazalet v. St. Barbe, 1 T. R. 187; Bainbridge v.

Neilson, 10 East, 329; Parsons v. Scott,
2 Taunt. 363; Falkner v. Ritchie, 2 M. &
S. 290. See also M Masters v. Shoolbred,
1 Esp. 237. The cases on this subject
are collected in Park's Ins., tit. Abandon-
ment, 228 (ed. 1817).

[Zouch, Lessee of] Woolston v. Woolston. [ 281 ]

S. C. 2 Burr. 1136. CHRISTOPHER Woolston, in 1707, devises lands to trus- Power to make tees, and declares the trust in strict settlement to his sons, a life estate to

in one's wife may James and John, successively; with power for the persons in possession, from time to time, by deed or deeds, to limit and different times. appoint to and for any wife or wives, an estate for life of all or any part of said lands, which altogether were of the annual value of 1901. In 1712, James married, and by settlement appointed 981. per annum to trustees and their heirs, in trust for

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