law of merchants, and particularly by the law of England as it stood at the time of passing the act 19 G. 2., a wager policy, in which the parties by express terms, such as the words "interest or no interest," or, "without proof of in-. terest," disclaimed the intention of making a contract of in-. demnity, was then (contrary to older determinations) deemed a valid contract of insurance; but that a policy containing no such clause, disclaiming or dispensing with the proof of interest, was to be considered as a contract of indemnity only, upon which the assured could never recover without proof of an interest (53). But it having been found, by experience, that the making assurances, "interest or no interest, or without further proof of interest than the policy," had been productive of many pernicious practices, and by introducing at mischievous kind of gaming or wagering, under the pretence of assuring the risk on shipping and fair trade, the institu tion and laudable design of making assurances had been perverted; and that which was intended for the encouragement of trade and navigation, had, in many instances, become destructive to the same; it was enacted, by stat. 19 G. 2. c. 37. s. 1.," that no assurances should be made by any persons, bodies corporate or politic, on any ships belonging to his majesty, or any of his subjects (54), on any goods laden, or to be laden, on board such ships, interest or no interest, or without further proof of interest than the policy, or by way of gaming or wagering, or without benefit of salvage to the assurer, and that such assurances should be void.' But by s. 2. it is provided, "That insurances on private ships of war, fitted out by any of his majesty's subjects, solely to cruize against his enemies, may be made by or for (53) This opinion of Chambre J. is confirmed by an observation of Lord Hardwicke, in a case which was decided before the passing of the stat. 19 G. 2. c. 37. Speaking of the difference between insurances from fire and marine insurances, he says, "in the insurance of ships, "interest or no interest" is almost constantly inserted, aud, if not inserted, you cannot recover, unless you prove a property." Per Lord Hardwicke C. in the Sadler's Company v. Badcock, 2 Atk. 556. (54) In consequence of these words it has been holden, that this section does not apply to the case of foreign ships, and that insurances, "interest or no interest" may be made upon them. Thellusson v. Fletcher, Doug. 315. And although the words "interest or no interest" are omitted in the policy on a foreign ship, yet in de claring on such policy, it is not necessary to aver that the assured had an interest. Craufurd v. Hunter, 8 T. R. 13. Nantes v. Thomp son, 2 East, 385. the owners thereof, interest or no interest, free of average, and without benefit of salvage to the insurer." And by s. 3. it is also provided, "That any effects, from any port or places in Europe or America, in possession of the crowns of Spain or Portugal, may be insured in the same manner as if this act had not been made." Having detailed the provisions of the stat. 19 G. 2. c. 37., it will be necessary briefly to consider what that interest is, the protection of which is the proper object of a policy of assurance. And this is to be collected from considering what is the nature of such contract. Now insurance is a contract, by which the one party, in consideration of a price paid to him adequate to the risk, becomes security to the other, that he shall not suffer loss or damage by the happening of the perils specified to certain things, which may be exposed to them. This being the general nature of the contract, it follows, that it is applicable to protect persons against uncertain events, which may in any wise be of disadvantage to them; not only those persons, to whom positive loss may arise by such events occasioning the deprivation of that which they may possess, but those also, who, in consequence of such events, may have intercepted from them the advantage or profit, which but for such events, they would acquire according to the ordinary and probable course of things. That a person must somehow or other be interested in the preservation of the subject-matter exposed to perils follows from the nature of this contract, when not used as a mode of wager, but as applicable to the purposes for which it was originally introduced, but to confine it to the protection of the interest which arises out of property, is adding a restriction to the contract which does not arise out of its nature. Interest, therefore, with reference to the subject under consideration, does not necessarily imply a right to the whole, or a part of a thing, nor necessarily and exclusively that which may be the subject of privation, but the having some relation to, or concern in, the subject of the insurance, which relation or concern, by the happening of the perils insured against, may be so affected as to produce a damage to the person insuring: and where a person is so circumstanced, with respect to matters exposed to certain risks, as to have a moral certainty of advantage but for those risks, he may be said to be interested in the safety of the thing. Having endeavoured to explain the nature of an insurable interest, it will be proper to add, that it is not necessary such inh Per Lawrence J. in Lucena v. Craufurd, D. P. 2 Bos. & Pul. N. R. 300, where this subject is very elaborately discussed. terest should be indefeasible; for the consignee of goods, under a bill of lading, has an insurable interest in such goods, although they may be stopped in transitu on their passage home'. So also has an executor before probate. In like manner it has been holden, that where a ship was taken as prize by the conjoint forces of the army and navy, the captors, before condemnation, had an insurable interest under stat. 45 G. 3. c. 72. s. 3. whereby the crown gives up its right in the prize to the captors, although such interest was defeasible, as well by the release of the crown, as the adjudication of the court of admiralty. X. Evidence. In order to support his action, the plaintiff must be prepared with the following proof: 1. The policy must be produced in evidence, and the subscription of the defendant must be proved. 2. Evidence must be given of the interest of the insured in the subject-matter of the insurance (55). In insurances upon ships, the mere fact of the possession of the assured, as owners, is sufficient primâ facie evidence of ownership', without the aid of any documentary proof or title-deeds on the subject, such as the bill of sale or ship's register, unless such further evidence is rendered necessary in support of the prima facie evidence of ownership, in con sequence of the adduction of some contrary proof on the other side: As in an action on a policy of insurance on freight", where i Per Lord Ellenborough C.J. 11 East, 628. k Stirling v. Vaughan, 11 East, 619. 2 Camp. N. P. C. 225. S. C. cited in Robertson and others v. Hamilton, B. R. M. 52 G. 3. 1 Robertson v. French, 4 East, 136. See also Thomas v. Foyle, 5 Esp. N. m Camden v. Anderson, 5 T. R. 709. (55) In Amery v. Rogers, 1 Esp. N. P. C. 207. where an action was brought on a policy of insurance on a ship, Lord Kenyon C. J. was of opinion, that the proof of the insured having exercised acts of ownership, in directing the loading, &c. of the ship, and paying the people employed, was sufficient proof of interest. And in M'Andrew v. Bell, 1 Esp. N. P. C. 373. where the insurance was on a ship and her cargo, the plaintiff, in order to prove interest, produced the bill of lading, and the captain proved that it was his bill of lading, and that he had the goods specified in it on board. Lord Kenyon C. J. held, that the interest was sufficiently proved. the interest in a ship and its earnings were alleged to be in four persons, who were partners in trade, and it was proved by the plaintiffs, that the ship had been paid for by all the four partners; but the defendant having produced the register, wherein the ship was registered in the names of two of the partners only; it was holden, that as the title to freight arose only from ownership, and the register was conclusive evidence that only two were owners, and as there was not any count in the declaration, stating the interest to be in two only, the plaintiffs could not recover. In insurances upon goods, the mere production of a bill of parcels from the seller abroad", with the receipt to it, and proof of his hand-writing, has been holden to be sufficient proof of the interest of the assured. In a declaration on a policy of insurance effected by the plaintiff, as agent of A. and B., it was averred, " that A. and B., at the time of effecting the policy, and thence until the time of the loss, were interested in the goods insured, to a large amount, to wit, to the amount of all the money ever insured thereon." At the trial it appeared, that, at the time when the policy was effected, another person was jointly interested in the goods, together with A. and B. The court. were of opinion, that although A. and B. had not an exclusive interest, yet they had such an interest as would answer the terms of the averment; Chambre J. observing, that the averment in substance was nothing more than that the parties for whose benefit the assurance was made, had an interest in the subject of that insurance. They were not bound by the terms of the averment to shew any thing more than that they had an interest; and if they had shewed an interest to the extent of one-hundredth part of the cargo, it would be sufficient. The spirit of the stat. 19 G. 2. only required, that the policy should not be a gaming policy. 3. It must be proved, that the loss happened in the same manner as is stated in the declaration, that the underwriter may be apprized of the case, which he has to encounter by evidence. Where a loss is averred to be by perils of the sea, and some of the goods insured are spoiled, and others saved, the expenses of the salvage may be given in evidence (without stating them specially) on this averment, as being a damage within the cause of action as laid. n Russel v. Boehm, Str. 1127. per Lee p Cary v. King, Ca. Temp. Hardw. B. C. J. R. 304. o Page v. Fry, 2 Bos. & Pul. 240. But see Bell v. Ansley, B. R.E, T. 52 If a total loss of the ship is stated in the declaration", and damages laid accordingly, evidence of a partial loss may be received, and the plaintiff may recover to the amount of such loss as he is able to prove. In an action upon an insurance upon profits, the assured must prove a loss: for where, upon an insurance of profits of a cargo of slaves, valued at 4007., the plaintiff declared for a total loss by perils of the seas, and it appeared that the vessel was wrecked, whereby many of the slaves were lost, but the remainder got into the market, and were there sold; it was holden, that, although the produce of the slaves sold did not give a profit upon the whole adventure, the plaintiff was not entitled to recover, because it did not appear, that if there had been no shipwreck, and all the slaves had got to market, any profit would have been produced. It is a general rule, that nothing which depends on the proceedings of a court can be proved by parol testimony'; hence, in cases of capture and recapture, neither the salvage nor the expenses incurred for ascertaining the amount of the salvage (56), can be otherwise proved than by producing the proceedings of the admiralty court. A slip of paper, wherein the names of the underwriters were mentioned, in the order in which they had originally been applied to' and had agreed to underwrite, (and which was different from that in which their names appeared on the policy) having been tendered in evidence to shew the true order of the names, for the purpose of letting in evidence of a false representation made to the first underwriter in fact; the court were of opinion, that such paper could not be received in evidence, for want of a stamp, the effect of the evidence being to shew, through the medium of a writing, that the contract entered into between the parties was different from that which it appeared to be on the face of the policy. In a case where it appeared that a license to trade with an enemy", granted abroad, had been returned, after being used, to the secretary of the governor by whom it was issued, and the secretary was examined, who said that he had, as q 2 Burr. 904, r Hodgson v. Glover, 6 East, 316. s Thellusson v. Shedden, 2 Bos. & Pul. N. R. 228. 1 Marsden v. Reed, 3 East, 572. (56) By stat. 43 G. 3. c. 160. s. 40. which see ante, p. 859. it is expressly required on all cases of capture and recapture, that some proceeding should be had in the admiralty court, to ascertain what the amount of salvage shall be. 1 |