CRAUFURD against interest, it has always been required, that if the right of property 1798. in the thing insured were not in the assured, at least he should have the actual possession or control over it; something which he might abandon to the underwriter, in case of damage or the HUNTER. loss of the voyage. In Le Cras v. Hughes (a), which was an insurance by the captors of a prize taken at Omoa by his Majesty's forces, there was a present possession in the assured, with an inchoate right of property, founded on the prize act and the King's proclamation. So in Grant v. Parkinson (b), which was an insurance on a valued policy on the expected profits of a cargo of molasses belonging to the plaintiff, who had a contract with Government to supply the army with spruce beer, the insurance was holden good: but there also the plaintiff had an actual property in possession in the subject-matter insured, out of which the profits were to arise; in other words, the subject matter itself was of such increased value to the plaintiff, in case it had arrived. So, in case of a consignment, tried before Lord Kenyon, at Guildhall, Flint v. Le Mesurier (c), the consignee, who, it was holden, might insure his interest in the commissions, had a direct property in the goods themselves. By virtue of the consignment, he might have maintained trover for them, or he might have assigned over his interest in the bill of lading. Such an interest was capable of being precisely calculated. But all those cases differ from the present, where the plaintiffs had neither jus in re, or ad rem. They had no property or right of possession in the goods, until their arrival in this kingdom. If, before that event, any wrong-doer had taken possession of them, they could not have maintained any action to recover them back. This is more like the case of Lowry v. Bourdieu (d), which was an insurance on a common bond for 26,000l. given by the captain of an East Indiaman, payable in the event of the loss of the ship: this the Court held to be a gaming policy, as the assured had no kind of interest in the ship itself, although, by the arrival of the ship, the captain would Lave been in a better condition to discharge his obligation. So in Tonge v. Watts (e) it was holden, that freight could not be insured until the goods were on board the ship, because till then the right of freight does not attach, whatever just expectation there may be of profit from the adventure. In Kulen Kempe v. Vigne(ƒ) (a) B. R. Easter, 22 Geo. 3. Park's Insurance, 307. (b) B. R. M. 22 Geo. 3. ib. 305. (d) Dougl. oct. ed. 467. VOL. VIII. (c) Ibid. Sd edit. 268. (ƒ) Ante, 1 vol. 304. this 1798. CRAUFURD against this Court held, that persons interested in the cargo could not insure against the non-arrival of the ship: and yet they were as much interested in the arrival as the plaintiffs were in this case. HUNTER. Persons having property at stake in foreign settlements, have a direct interest in the arrival of ships of force sent out for their protection, yet that is not an insurable interest, because not connected with the property in the ships themselves. Then as to the fourth count, in which no interest is averred in any particular persons, there is this preliminary objection, that it is repugnant in substance, and therefore void; for it avers negatively that none of the ships insured belonged to his Majesty, or any of his subjects (which averment was made in order to take the case, if possible, out of the 1st sect. of the 19 Geo. 2. c. 37; whereby insurances, "interest or no interest," or " without benefit of salvage to the assurer" on ships or goods belonging to his Majesty, or any of his subjects, are prohibited); whereas these ships having been seized, as appears upon the record, under his Majesty's orders, and being in the immediate custody of his Majesty's officers by whom the seizure was made, were ships and goods belonging to his Majesty. All ships seized, either as prize or otherwise, under the authority of the Crown, belong to the Crown, until the property is adjudged to the former owner, or to some other as captor. But at all events it ought to have been specifically averred in this count, that there was an interest in some person, especially since the act of the 19 Geo. 2. It was even necessary so to aver before; and that necessity was only obviated, or evaded, by agreeing to dispense with the proof of interest; to remedy which mischief the statute was made. In Depaba v. Ludlow (a) it is indeed said, that the words "interest or no interest," or "without further proof of interest than the policy itself," were introduced to obviate the necessity of proving the value: but, before that, it had been settled in Goddart v. Garret (b) in Chancery, that insurances by persons having no interest, though with such words in the policy, were void. Upon inquiry into the precedents (c) before the 19 Geo. 2, it appears, that either there was an averment of interest, or words in the policy dispensing with the proof of it, and sometimes both; this, with the exception of one in Clift's Entries, 77. One in 1653, precedents in the upper Bench, contains a direct averment of interest. Another of Goram v. Sweeting, and the same plaintiff (a) Com. Rep. 360. (b) 2 Vern. 269. against against two other defendants, 2 Saund. 200, contains the dispensation of proof in the policy; but there also is notice of abandonment stated, which is tantamount to an averment of interest. Vidian, 26 and 18, sets out precedents of valued policies" without further account;" though the latter also contains an aver ment of interest in an aliquot part of the ship insured. Another of Evans v. Lucas in Meth. Nov. 57, and another of Grantham v. Caryon, in p. 44, are both " without further account;" notwithstanding which the former contains an averment of interest. In modern times they referred to precedents of Serjeant Poole, one of Gutton and another v. Dickenson, in 1741, where, though the policy was without further account, yet there was also an averment of interest. Another from the same book, of Gostlin v. Thorpe, in 1786, where the insurance was on interest or no interest, and without further account. Another in 175S, of Blake and another v. Dancalf, contains an express averment of interest in a third person, for whose benefit the insurance was effected. All the precedents since the statute, contain an averment of interest. The necessity of that act arose from a notion that the Courts of law thought themselves bound by the agree ment of the party to dispense with any other proof of interest than the production of the policy itself. Yet the Courts of Equity would give relief against such agreements, where, in fact, there was no interest, by ordering the policy to be delivered up to be cancelled. The act, in form, is directed against policies. having such clauses: and in order effectually to prevent such insurances, it took away the means of effecting them. But even before this act, it was illegal to insure without interest, where the fact could be proved. Independently of the statute, the insurance, as stated in the count, is illegal according to the wellknown doctrine (a), that all wagers against the policy of the state are bad. Then as to the general allegation, that the insurance was effected by the plaintiffs for and in the names of all persons who might be interested; although it is large enough to comprehend all persons who are in fact interested, yet it was never holden, that an insurance purposely made for the benefit of one individual, could be transferred by him to the benefit of another not intended to be protected by it at the time. Neither could the insurance under those general words be considered as made for the benefit of the King, in whom no interest is averred in either the first or fourth counts: and it may even (a) Vide Good v. Elliott, ante, 3 vol. 693. 1798. CRAUFURD against HUNTER, CRAUFURD against 1798. be doubted whether such an insurance by individuals, in trust for the King, could be maintained in law, on account of the dignity of his office. Hardr. 461. He does not sue in the name of another, in the case of a chose in action assigned to him, but in his own name. Bro. Abr. Prerog. 40. Neither can the King have feoffees to his use. Ib. 41. HUNTER. Lord KENYON said, there was no doubt but that there might be a trust for the Crown. It was so considered in the great case of Burgess v. Wheate, 1 Black. Rep. 123. Arguments in support of the declaration. As to the objection to the first count, that there was no insurable interest in the plaintiffs, it may be answered, that they have an interest in the subject matter, not indeed for themselves, but as trustees for the public, under the act of Parliament, which was passed to secure the property of such persons as should be eventually entitled to it; and it never was doubted but that a trustee might insure for the benefit of his cestui que trust. The statute gives the plaintiff a power to manage, sell, and dispose of the property when it comes to this kingdom; and the produce is to be disposed of as the King and Privy Council shall direct. In giving this power the Legislature necessarily gave the means of doing whatever was necessary and proper for the security of the property itself, and amongst the rest, the authority to insure it. At the time when the insurance was effected, the property was in the actual possession of the King's officers, and in transitu to this kingdom, for the purpose of being placed under the superintendance and control of the plaintiffs: they were, therefore, clearly trustees, having a direct interest, in the event of the goods ar riving in this country, which were, in effect, consigned to their care. Their authority did not (as is contended) rest merely in expectancy; for their commission was actually issued at the time of the insurance. The difference, if any, between this case and that of Le Cras v. Hughes (a) is in favour of the plaintiffs; for in the latter there was no right whatever in the captors till condemnation; the right was either in the Crown or in the original owners. That was more truly the case of an expected interest, yet it was holden to be insurable. There, the contingency was the future condemnation which was to vest the right; here, it was the future arrival which was to give the exclusive possession: the principle of both is the same. But Lord Mansfield there also said, that a prize-agent had an insurable interest (a) Park's Insur. 307. CRAUFURD ag inst HUNTER. in his future commission; which is a much stronger case than 1798. the present; for such an agent has neither the possession nor the property of the subject matter. As to the case of Lowry v. Bourdieu (a), that was, in fact, an insurance on a debt; it was clearly, therefore, a gaming policy. The same answer applies to the case of an insurance on freight, where no goods are shipped at the time. This is most like the common case of a consignee, who (it has been holden) may insure his future contingent interest in the arrival of the goods; and there, if the goods never arrive, bis interest does not attach. It is not necessary that the assured should have the legal interest in the goods at the time of such insurance; for, suppose they are consigned either to Hamburgh or London, according to future contingent circumstances, yet both correspondents may insure. As to the fourth count, it does not appear to be necessary,, from the course of the precedents, to aver an interest in any person, unless the case falls within the act of the 19 Geo. 2; and that is negatived by the averment of this count. In Goram v. Sweeting (b) no interest was averred; and that omission is not supplied by the stipulation in the policy, that it shall be without further account; for that only means "further account of the value," and not of the interest; and therefore such a stipulation would not have superseded the necessity of averring and proving an interest, if that were required by law. Again: in the precedent from Vidian 48, though it is said that the plaintiff is possessed of an aliquot part of the ship, yet there is no averment of any interest in the goods, and the policy declared on was on both. It is admitted that there is no such averment in the precedent in Clift's Entries, 77. The case of Goddart v. Garret (c) cannot be accurately reported as to what is there said, that insurances by persons having no interest were void; for in Assievedo v. Cambridge (d), which was some years afterwards, the Court held, that it was immaterial whether or not the assured were interested in the subject of the insurance; and that determination accounts for the alteration of the law afterwards by the 19 Geo. 2. With regard to the objection of repugnancy in this count, it does not appear to be well founded; for, stating that the subject matter of the insurance was taken by the King's ships, is no averment of interest in the King, the property in prize not being altered before condemnation. Therefore, at any rate, this count may be sustained, where no interest (a) Dougl. oct. ed. 467. (b) 2 Saund. 200. (c) 2 Vern. 269. (d) 10 Mod. 77. |