This is an insurance of an expectation of an expectation. If Courts of Justice were to give effect to insurances of this kind, they had at once better repeal the statute against wagerpolicies. The plaintiff was nonsuited. A motion was, in the following Term, made to set aside the nonsuit, which was refused by the whole Court (a). A similar doctrine to the above was held in a late case of Stockdale v. Dunlop, in the Exchequer of Pleas (b), in which Messrs. Harrison and Co., being the owners of two ships, called the Antelope and the Maria, trading to the coast of Africa, and which were expected to arrive at Liverpool with cargoes of palm-oil, agreed verbally with the assured to sell them two hundred tons of oil, "one hundred tons to arrive by the Antelope and one hundred by the Maria." The Antelope afterwards arrives with one hundred tons of oil on board, which were delivered to the plaintiffs. The Maria, having fifty tons, was lost "by the perils of the seas." The plaintiffs having insured the oil on board the Maria, together with their expected profits thereon, it was held that they had no insurable interest, because they had entered into no contract with the Messrs. Harrison and Co. which was capable of being enforced by law; Lord Abinger observing, "The argument of the plaintiff's counsel rests upon an analogy drawn from the law relating to insurance on freight. It is very true where a party is entitled to the ship, either wholly or in part, the law will allow him to make a separate insurance on the freight. If thereby a charter-party and the ship is lost, he is entitled to recover for the freight. But if a ship be sent out for goods, and none are received on board, there is no interest to maintain an insurance on the profits. Where goods are received on board a vessel, and a contract is made to secure them, then if a loss happens the assured may recover, because his receipt of the goods has been prevented by the perils of the seas; for he has made a contract which he has great reason to expect will be performed. But cases of freight are not analogous to cases of insurance on the (a) See Kent v. Bird, Cowper, 583. (b) 6 M. & W. 224. E The captors of a prize have an insurable in profits to arise from the sale of goods, they stand upon the assumption that the assured has in his own power the subject-matter upon which the insurance is effected. If contracts for goods to be purchased in future were allowed to be insured, it would be allowing a wager-policy to be made (a). But such a doctrine would defeat the Legislative enactment on the subject, and create an imaginary interest, which has no foundation in law. Here there was no written contract, or any contract which the plaintiffs could have enforced. The cases of freight suppose the contract capable of being enforced. Here no interest in goods passed to the plaintiffs. There is a contract to sell one hundred tons of palm-oil, to arrive by the Maria: if the vessel do not arrive, or the goods, the contract is void. Then where is the interest?" In the case of De Costa v. Firth (b), an insurance was made upon any of the packet-boats which should sail from Lisbon to Falmouth, or such other port as his Majesty should direct, for one year, from October, 1763, to October, 1764, upon any kinds of "goods and merchandises" whatsoever. And it was agreed that the goods and merchandises should be valued at the sum insured on such packet-boats, without further proof of interest than the policy, and to make no return of premium, for want of interest being on bullion or goods. The insured had an interest in bullion on the Hanover packet, being one of the king's packets between Lisbon and Falmouth; and it was totally lost within the time mentioned in the policy. The Court held that was a policy of a peculiar sort, and was an exception out of the 19 Geo. 2, c. 37. It is a mixed policy-partly a wager-policy, partly an open one; and it is a valued policy, and fairly so without fraud or misrepresentation. Therefore, the loss having happened, the insured is entitled as for a total loss. Ninthly, we come now to another class of insurances under this head of profits, viz., those which arise upon a joint cap (a) See the case of Knox v. Wood, ante p. 48, the transaction amounting in effect to an insurance on a void contract. (b) 4 Burr. 1966, ante, p. 22. ture of the army and the navy, before condemnation, to the officers and crews of the ships, who have an insurable interest by virtue of the Prize Act, which usually passes at the commencement of a war. This was held in the case of Le Cras v. Hughes (a). terest in such prize, on the ground of their having a rea sonable expectation of their receiving from the Crown the property cap It was an action upon a policy of insurance of the ship tured. St. Domingo, "at and from Omoa to London," upon which a case was reserved for the opinion of the Court. The facts of the case were these:-Captain Luttrell, commanding five of his Majesty's ships, and Captain Dalrymple, commanding a party of land forces, captured two Spanish register ships, lying under the protection of Fort Omoa: that the ship St. Domingo (on which the insurance was made) was one of the prizes, and was coming home, laden with the property then captured, upon which ship the defendant underwrote 500%.: and the ship was lost by perils of the sea. The question was, whether, by virtue of the Prize Act of 19 Geo. 3, c. 67, the officers and crews of the ships under Captain Luttrell, had such an insurable interest in the ship St. Domingo as to entitle them to recover. Lord Mansfield.-"There are two questions in this cause; 1st, whether the sea officers had an insurable interest? This will depend upon the Prize Act and proclamation; 2nd, whether possession would entitle them to insure upon the bare contingency of a future grant from the Crown? As to the first, consider the act of Parliament which gives to all the people on board, that is, to the flag officers, commanders, and other officers, to the seamen, marines, on board every ship and vessel of war, the sole property of in all and every ship and vessel, which they shall take during the war after condemnation. Does the act say that the seamen only should take? Does it leave a joint capture by the army and navy undefined? Certainly not. Suppose, for instance, a case which I remember to have happened: a Dutch and English fleet combined, captured some ships: the English sailors could not take solely; nor could the act mean they should have (a) B. R. East, 22 Geo. 3; Park Ins. 568; see also 1 B. & P. 324. Observations Le Cras v. nothing. In the case in question, suppose Captain Dalrymple had given no assistance, is there any doubt that Captain Luttrell would have taken the whole? The only difference is, that he has not now the merit of a sole captor. The word soldiers in the proclamation, means soldiers on board the ship. Thus it stands on the act and proclamation. But supposing that doubtful, as far back as from Queen Anne's time down to the present, wherever a capture has been made by a King's ship or a privateer, the Crown has always given a grant of it after condemnation. There is no instance to the contrary. Is then the contingency of the ship's coming safe such an interest as the captor may insure? Insurance is a contract of indemnity, some interest is necessary, but not any particular form of interest-it does not depend upon a vested formal interest. The question is, whether this contingency is such a benefit to the assured as will make it a loss to him if the ship does not arrive? An insurance on the profits of a voyage was holden to be good (a). An agent of prizes may insure the arrival of a ship which will produce him profit; for though he has not the possession of the property, he has an interest in the ship's coming safe as that he may insure. Here the possession is in the assured, and a certain expectation of receiving the property captured from the Crown, which gives him an interest in the arrival. It is not a vested interest, but such an expectation as never was defeated." Judgment for the plaintiff. Lord Eldon, in the case of Lucena v. Craufurd (b), speaking of the case of Le Cras v. Hughes, says, "If the Omoa case was decided upon the expectation of a grant from the Crown, I never can give my assent to such a doctrine; that, though founded upon the highest probability, was not interest, and it was equally not interest whatever might have been the chances in favour of the expectation. That which was wholly in the Crown, and which it was in the power of his Majesty to give or withhold, could not belong to the captors, so as to create any right in them." I have mentioned (a) Grant v. Parkinson, ante, p. 38, 43. (b) 2 N. R. 323. this reported opinion of Lord Eldon's, on the decision of that great master of "insurance law," Lord C. J. Mansfield: at the same time I apprehend, that the opinion of a lawyer, even so great as Eldon, is not, upon such a question, to be mentioned after the opinion of Lord Mansfield, and that the decision of that great Judge in that case, is considered by the Courts, "Law," at the present time (which I shall presently show). Lord Eldon's adoption and use of the term "chances," is not fair nor correct. Lord Mansfield calls "the expectation" a "certainty," there had been no instance to the contrary. Was not the certain expectation of the grant from the Crown (supposing the ship to have arrived safe), greater than the expectation of the profit to arise from the sale of a cargo of molasses, belonging to a man who had a contract with government, and who, at the time of the insurance, could not have a perfect contract with regard to the sale, and that the government might have, at all hazards, disregarded their contract with him; might not the faith of the executive government have failed in that case, rather than in a case of such importance to the honour of the Crown, and to the welfare and success of the British navy? I will now refer to the judgment of Lord C. J. Tindal, whose legal reputation is inferior to neither of the two, upon this opinion of Lord Eldon's upon Lord Mansfield's decision. His Lordship, in delivering judgment in the case of Devaux v. Steele (a), says, "this argument is founded upon the cases of Grant v. Parkinson (b), Le Cras v. Hughes, and other cases of the same class, which were cited and relied on at the Bar. It is undoubtedly true that in the case of Le Cras v. Hughes, Lord Mansfield expressed a decided opinion, that the "expectations" of future benefit founded on the contingency of a future grant from the Crown, but warranted by universal practice, did amount to an 'insurable interest.' But after the observations of Lord Eldon on that case, in giving judgment in the House (a) 8 Scott, 637; 6 B. N. C. 358. (b) The molasses case, decided by Lord Mansfield, |