*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 Geo. 2(0); 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." (p) 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; Treeves' 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 indictable 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 V. WHEATLEY. THE KING บ. WHEATLEY. examination to have amounted to conspiracy or forgery, which are substantive offences 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; Nehuff's Ca., Salk. 151; R. v. Bryan, 2 Stra. 866 nor by a token 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 returned bad and musty meal, it was held not to be an indictable offence.-Lord Ellenborough; "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 presented 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. c. 71, s. 2, East, P. C. 821; 2 Russ. C. & M. 1361, and R. v. Rispal, post, 368. Insured, who abandons, can only recover for the actual loss at the time of his abandonment. *277 ] EASTER TERM,-1 GEO. III. 1761.-K. B. HAMILTON v. Mendez. S. C. 2 Burr. 1198. ACTION on a policy of insurance. Special case. Ship Selby, and 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. HAMILTON v. MENDEZ. there was no occasion to have the property of the insured valued 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 (b).-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. 1. 3, c. 6, pag. 814, twenty-four hours' capture alters the property. This is questioned by Bynkershock, 1. 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. 39, 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 (b) "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 signify 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 Mansfield, in Lewis v. Rucker, 2 Burr. 1171. "On the construction of the act, it has (c) Dean v. Dicker, cited ante, 198. HAMILTON v. MENDEZ. loss; then, indeed, the loss must be taken at the valuation inserted in the policy: but, upon an average loss, a subsequent valuation must be made (d). (N. B. The verdict finds only 107. 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 12007. 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. Gould, for the defendant, cited Lewis and Rucker, P 1 Geo. 3(e), where it was determined that, in adjusting an average loss on a valued policy, the real loss sustained on the 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 abandon. If the voyage becomes not worth making, you certainly may. This was the case of Goss and Withers, 32 Geo. 2 (g). There was great damage; the ship under a disability to pursue her voyage, and the salvage amounted to half the value. This 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 (d) Park's Ins. 164, acc. (e) 2 Burr. 1167. (ƒ) 29 G. 2, c. 34, s. 24. (g) 2 Burr. 683. 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 (i). (h) 53 a. (i) 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, HAMILTON บ. MENDEZ. [ZOUCH, Lessee of] WOOLSTON v. WOOLSTON. S. C. 2 Burr. 1136. CHRISTOPHER Woolston, in 1707, devises lands to trustees, and declares the trust in strict settlement to his sons, James and John, successively; with power for the persons in possession, from time to time, by deed or deeds, to limit and 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 1907. In 1712, James married, and by settlement appointed 981. per annum to trustees and their heirs, in trust for [ 281 ] Power to make a life estate to one's wife may different times. be executed at |