of Grant and Parkinson, as applied to this case, has been attempted to be gotten rid of by observing that the thing insured there was the profits of a specific cargo: but in that respect the two cases do not differ; for this is an insurance on a specific cargo; and we have no ground to say that the profits of a cargo to be exchanged in the African trade, from which exchange the profits will arise, are not, to use the expression of Lord Mansfield in Grant and Parkinson, pretty certain; admitting, for the sake of the argument, which it is not necessary for us now to determine, that in some mercantile adventures there may be so much uncertainty as to the profits, as to make it not possible to insure them without the policy being a wagering contract. This, however, we cannot presume of the returns to be made from an adventure undertaken according to a long established course of trade like that in question, in which numbers have been engaged to great advantage for a continued succession of years. It has been objected to this sort of insurance, that the subject having no physical existence, cannot be insured. This objection would hold against insuring freight, and bottomree,

on board to the value insured; "and that the plaintiff was interested in the cargo of indigo and the imaginary profit thereof;" and that the ship and cargo were on the voyage lost, by the perils of the sea; and the cargo and all profit thereof wholly lost to the plaintiff.

The cause was tried at the sittings after Trinity Term, 1776, at Guildhall, before Lord Mansfield, when a verdict was found for the plaintiff.

In Michaelmas Term, 1776, a motion was made for a new trial. It appeared by the report, that the ship was totally lost off Scilly; but that all the cargo, except one barrel of indigo, was saved and carried to Hamburgh in another ship, at the expense of the underwriters; and the question made on the motion

for a new trial was, Whether the ship being lost, but the cargo carried to Hamburgh in another ship, the assured could recover as for a total loss of the profits? But the Court held, that there should not be a new trial; that the underwriters were not at liberty to send the cargo to Hamburgh at what time and in what ship they pleased. Lord Mansfield said, the meaning of the policy seems to be, that the ship and cargo shall arrive at the destined port, and is on the profit of that particular ship and cargo; but the market varies, and may depend on twenty-four hours sooner or later, so that unless the very ship and cargo arrive, the profit may fail, and the insurance is lost. -Rule discharged.

and respondentia interest. Again, that the goods might be going to a losing market; in which case, the assured would gain by the loss of his goods; but if that were the case, it would be evidence on non assumpsit, as it would prove either that the plaintiff was not damnified as to profit by the loss of the goods; or that at the time of the loss, he had no interest in the thing insured. It was further objected, that there can be no average nor abandonment; but that objection does not hold in the present case; for if there be only a partial loss, the assured will only be liable to pay for the expected profits on the goods lost; and there may be an abandonment of the profits by abandoning the goods from whence the profits are to arise and as to general average, there would be no difficulty in the case of a valued policy; and in the case of an open policy, the difficulty would be no greater than in ascertaining the damages in case of loss: the impossibility of doing which, in every case, will not prove that an insurance can be made on profits in no case. A considerable time has elapsed between the first and second argument of this case, in consequence of a writ of error in the Exchequer Chamber in another case, the decision of which might have had weight in favour of the defendant, had it been determined otherwise than it has been. The grounds of that decision we are not acquainted with, so as to say whether they will support this case: but as that determination does not militate with the opinion Mr. J. Grose, Mr. J. Le Blanc, and I have formed, and I may add that of Lord Kenyon on hearing the first argument, we do not think it fit that we should longer delay the judgment of the Court."-Postea to the plaintiff.

In the case of Eyre and Another v. Glover (a), which was an action on a policy of assurance in the common printed form, on a voyage from Riga to Hull, upon "goods," and also upon the body of the ship Elizabeth, &c., it was stated "that the said ship, &c., goods and merchandises, &c., for so much as concerned the assured by agreement between the assured and assurers in the policy, are and shall be on profits

(a) 16 East, 218; 3 Camp. 276.

voyage; the

assured proving an interest in the cargo.

(without further description), &c." The declaration, after setting out the policy, alleged the promise of the defendant as an underwriter thereon for 2007., in consideration of forty guineas premium, and then stated that the ship on the said day (the date of the policy) was in good safety at Riga, and divers goods of great value were then loaded on board her, to be carried on the voyage insured, and that the plaintiffs were then and from thence until and at the time of the loss aftermentioned, interested in the said goods and in the profits expected to be made thereon, to the amount for the money insured on the said goods and the said profits respectively; and that the said policy was made on the said profits, and for the use and benefit of the plaintiffs. The declaration went on to state, that the ship sailed on a certain day, &c., on the voyage insured, and in the course of the same voyage, and on the same day, was captured with the goods, &c., whereby, &c., the defendant became liable to pay the 2007. At the trial before Lord Ellenborough, at Guildhall, it appeared that the plaintiffs had chartered the Elizabeth from Hull to Riga, to receive from their agents a full cargo of hemp, and at the time of the capture the invoice value of the cargo was 51167., the profit on which, supposing the whole of it to have been shipped, and arrived in a sound state, would have been to the amount insured-10007. An objection was taken at the trial that this was a gambling policy, and therefore void; but Lord Ellenborough overruled the objection, seeing no difference, in principle, between an insurance on profits valued, which had been held to be legal, and on profits without the valuations being ascertained in the policy, but left open to proof afterwards-" id certum est quod certum reddi potest;" and the flax must be taken to have been shipped in a sound state, the contrary not appearing. The plaintiffs having recovered a verdict, a motion was made for a new trial, or an arrest of judgment, on the grounds that profits generally, without more certainty, could not be insured.

Lord Ellenborough, C. J.-" Are profits anything more

than an excrescence upon the value of the goods, beyond the prime cost? The difficulty of calculation cannot affect the question of interest, or the legality of the contract."

Rule refused.

So in the case of King v. Glover (a) the Court were of opinion that an African captain, who was entitled, besides his wages, to so much per cent., and other privileges, for his trouble of buying slaves on the coast of Africa and disposing of them in the West Indies, had a good insurable interest in this remuneration.

But, in order to enable the assured to recover on an insurance on "profits," he must establish in evidence that he has sustained a loss by one of the perils insured against: that is, he must show that if the peril insured against had not intercepted the profit, that profit would have accrued to the assured.

And therefore in the case of Hodgson v. Glover (b), where a valued policy on profits was made, and a part of the cargo (slaves) were lost by shipwreck, though the remainder were brought to market and sold, but the assured did not show what profit was made, or, if all the slaves had arrived at the market, there would have been any profit, it being only stated that the produce of the part sold did not give a profit upon the whole adventure, the assured failed to recover in the action for want of proof in his interest.

Mr. J. Lawrence says,-" According to the plaintiff's own showing, this is only an average loss. The case of Barclay v. Cousins (c), did not go the length of directing that the plaintiff was at all events entitled, under a policy on 'profits,' to recover to the full extent of the sum insured. What was

there said was only to show the general insurable nature of profits."

In the class of insurances which has for some space been the subject of our consideration it is to be remarked that, although the subject-matter of the expected profit may not

In order to insurance on "profits," the

recover on an

assured must show, that, but

for the inter

vention of the perils insured against, there

would have

accrued a

profit to the plaintiff.

There must be certainty of the "profits," and

a reasonable

not a mere

(a) 2 N. R. 206.

(b) 6 East, 316.

(c) Ante, p. 40.

speculation ex- have an existence at the time of the insurance, there is, howpectation. ever, a description of certainty (distinct from what is merely a speculative expectation) required to render this species of property insurable. For where the benefit which the assured expects is only of a speculative nature, attended with no certainty of completion, and requiring the event he wishes to be insured to happen, before he can possibly know whether it can ever come to pass, is considered by far too remote an interest to make the subject of an insurance, and not sufficiently palpable to take the case out of act 19 Geo. 2.

The following case, reported by the late Mr. J. Park, in his Treatise, is illustrative of the general proposition just laid down:

It was the case of Knox v. Wood (a), and was an insurance "on the ship Friendship, at and from Bristol to St. Thomas's and Jamaica, and from thence back to Dublin, on commissions valued at 1,000l." The admitted facts were, that the plaintiff and one Alexander Robe, of Bristol, merchant, on the 26th March, 1807, entered into a charter-party for the voyage in question: that the said ship sailed from Bristol with a cargo for St. Thomas's, but which cargo was not the property of the plaintiff, nor insured by this policy: that the said ship delivered her cargo at St. Thomas's, and proceeded from thence in ballast to Jamaica, and was captured before her arrival and carried into Cuba, where she was ransomed by the captain, and again proceeded for and arrived at Jamaica: that the policy in question was meant and intended by the plaintiff as an insurance upon the commission expected to arise upon the sale and disposition by the plaintiff in Dublin of produce expected to be shipped on board the said ship at Jamaica. When the counsel for the plaintiff had opened this case, Lord Ellenborough said, "it is agreed that this insurance was on the commission of the homeward cargo; and it is also agreed that the vessel arrived at the place where that homeward cargo was to be shipped, and no reason is assigned why it was not shipped. No cargo appears to have been ready.

(a) Mich. sit. at Guild. 1808. Park Ins. vol. 2, 564.