contract of indemnity only, upon which the assured could never recover without proof of an interest (n). 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 a mischievous kind of gaming or wagering, under the pretence of assuring the risk on shipping and fair trade, the institution, 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 Geo. II. 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 (0), 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 sect. 2, it is provided, "That insurances on private ships of war, fitted out by any of his Majesty's subjects, solely to cruise against his enemies, may be made by or for the owners thereof, interest or no interest, free of average, and without benefit of salvage to the insurer." And by sect. 3, it is also provided, "That any effects, from any port or places in Europe or America, in possession of the crowns of Spain and Portugal, may be insured in the same manner as if this act had not been made." Having detailed the provisions of the stat. 19 Geo. II. 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 (p). 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 anywise 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 (n) See the opinion of Chambre, J., in Lucena v. Craufurd, 3 B. & P. 101, and of Lord Hardwicke, in The Sadlers' Company v. Badcock, 2 Atk. 556. (0) This section does not apply to the case of foreign ships, and 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 declaring on such policy, it is not necessary to aver that the assured had an interest. Craufurd v. Hunter, 8 T. R. 13; Nantes v. Thompson, 2 East, 385. (p) Per Lawrence, J., in Lucena v. Craufurd, D. P., 2 N. R. 300, where this subject is very elaborately discussed. 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 interest 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 (q). So also has an executor before probate. In like manner it has been held, 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 Geo. III. c. 72, s. 3, whereby the crown gave 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 (r). The owner of a ship, who has chartered her for a particular voyage, has an insurable interest in the ship during that voyage, although the charterparty contain a stipulation, that, in case the ship be lost, the charterer shall pay the owner the estimated value of the ship (s). Assumpsit on a policy of insurance. The plaintiffs were entitled, under a verbal agreement, to a cargo on board a ship when it should arrive at port. The ship was lost at sea: it was held, that the plaintiffs had no insurable interest in the goods, as the contract which they had entered into, being verbal only, was incapable of being enforced (t). An interest in profits arising out of contracts entered into by the assured is insurable; but care should be taken where the goods. have not been shipped on board, that the interest is specially provided for by the terms of the policy (u); and such insurance of (q) Per Lord Ellenborough, C. J., 11 East, 628. (r) Stirling v. Vaughan, 11 East, 619; 2 Campb. 225; S. C. cited in Robertson and others v. Hamilton, B. R. M. 52 Geo. III. (s) Hobbs v. Hannam, 3 Campb. 93. (t) Stockdale v. Dunlop, 6 M. & W. 224. (u) The Royal Exch. Ass. Comp. v. M'Swinney, 14 Q. B. 634; S. C. 19 L. J., Q. B. 222. See also Halhead v. Young, 6 E. & B. 312; S. C. 25 L. J., Q. B. 290. profits is within the statute 19 Geo. II. c. 37 (x). Warehousemen and wharfingers, with whom goods are deposited, have an insurable interest in such goods, although there has been no previous authority to insure given by the real owners, nor any notice given to them of such insurance; and such goods are properly described in a policy as "goods in trust" (y). X. Evidence. Damages, p. 1030. In order to support his action, the plaintiff must be prepared with the following proofs, if put in issue by the pleadings (2);-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 at the time of the loss (a). In insurances upon ships, the mere fact of the possession of the assured, as owners, is sufficient primâ facie evidence of ownership (b), 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 primâ facie evidence of ownership, in consequence of the adduction of some contrary proof on the other side. As in an action on a policy of insurance on freight, where 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 held, 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 (c). Although the production of the registry in which the plaintiff's name was omitted was thus conclusive evidence against him; its production with his name inserted, was no evidence of his title (d). Now, however, by the Merchant Shipping Act, 1854, the register, or an examined or certified copy thereof, and also the certificate of registry, are prima facie proof of their contents (e). 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 assured (x) Smith v. Reynolds, 25 L. J., Exch. 327. (y) Wood v. Dwarris, 25 L. J., Exch. 129. (z) Vide ante, p. 994. (a) Clay v. Harrison, 10 B. & C. 106. (b) Robertson v. French, 4 East, 136. See also Thomas v. Foyle, 5 Esp. N. P. C. 88. (c) Camden v. Anderson, 5 T. R. 709, recognized by Le Blanc, J., in Marsh v. Robinson, 4 Esp. N. P. C. 98. (d) Pirie v. Anderson, 4 Taunt. 652. (e) 17 & 18 Vict. c. 104, s. 107. 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. Where the plaintiff's declared on a policy of assurance and averred that they were the persons residing in Great Britain who received the order for and effected the insurance; this was considered as a material averment, and not sustained by evidence of a letter received by them after the policy was effected, directing them to make assurance; although the policy was originally on goods on board the ship called The Ann, or ships, or by whatsoever other name the ship should be named; and the plaintiffs, upon the receipt of the letter, procured a memorandum to be made on the policy, signed by the defendant, declaring the interest to be on board the Herald, the ship mentioned in the letter (ƒ). 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 handwriting, has been held to be sufficient proof of the interest of the assured (g). 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 show anything more than that they had an interest; and if they had shown an interest to the extent of one hundredth part of the cargo, it would be sufficient. The spirit of the stat 19 Geo. II. only required that the policy should not be a gaming policy (h). 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. Goods were insured at and from Mogadore to London. The declaration averred, "that after the loading the goods, the ship departed on her intended voyage, and while in the course of her said voyage was lost by perils of the sea." It was held, that this was a material allegation; and therefore, the ship having been lost while at her moorings, and before the cargo was completed, the insured could not recover (i). 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 (j). And if the proximate cause of the loss be in consequence of the perils insured against, that is sufficient, although the remote cause be the negligence of the master or crew (k). 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 (1). Under an averment, that after loading the cargo, the ship sailed on the voyage, and was lost, the plaintiff cannot recover on proof that the ship, before she had half of her cargo on board, was driven from her moorings and lost (m). 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 sea, 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 held, 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 (n). It is a general rule, that nothing which depends on the proceedings of a court can be proved by parol testimony (o); hence, in cases of capture, and recapture, neither the salvage, nor the expenses incurred for ascertaining the amount of the salvage, can be otherwise proved than by producing the proceedings of the Admiralty Court. The copy of a sentence of condemnation of a ship or cargo in a foreign admiralty court is not made admissible evidence for the underwriters, by being handed over to them, by the assured, along with other papers, to satisfy them of the loss (p). 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 (i) Abitbol v. Bristow, 2 Marsh. Rep. 157; 6 Taunt. 464, S. C. (j) Cary v. King, Ca. Temp. Hardw. B. R. 304. (k) Redman v. Wilson, 14 M. & W. 482, ante, p. 953. (1) 2 Burr. 904. (m) Abitbol v. Bristow, 6 Taunt. 464. |