If there were a partial loss of the goods, and the residue arrived, and were sold at a loss, making absolutely no profit, and then the insured should claim under his valuation for a proportionate part of the profits, on the goods lost, this would seem to be inequitable. No American case has gone so far as this, and indeed the assumption on which the American rule rests, that the goods would make some profit, is defeated by the facts, and it might well be that the valuation would not be applied. If, however, the goods which did arrive paid any profit, the valuation should stand. The insurers decisions, that of Barclay v. Cousins, 2 East, 544, certainly supports the doctrine that the profits sink with the cargo or at least that the loss of one is prima facie evidence of the loss of the other, and throws the onus probandi upon the defendant. Such is the intimation of the court, p. 551, and the recovery was had in that case, without proof that profit would have been made had the cargo arrived at the destined port. In the case of Henrickson v. Margetson, 2 East, 549, of which a note is given in that case, the recovery was also had without proof that profits would have been made, or any other proof than an interest in and loss of the cargo; and Lord Mansfield seems to have suggested the true ground for dispensing with such proof, to wit, the utter impracticability of making it, without the spirit of prophecy to determine the precise time when the vessel would arrive at her destined port. The two subsequent cases which are cited in the elementary books to sustain the contrary doctrine are not full to the point. In that of Hodgson v. Glover, 6 East, 316, there was another question of as great difficulty, to wit, whether in a clear case of average loss the plaintiff could recover as for a total loss, or recover everything without evidence to determine the average. Of the four judges who sat, two decided against the plain tiff upon the one ground, and two upon the other. In the second case, that of Eyre v. Glover, 11 East, 218, although the point was touched upon in argument, yet the court neither expressly affirmed nor denied it; it was not the leading question in the case; and at last judgment was rendered for the plaintiff without requiring such proof. But the case of Mumford v. Hallett, 1 Johns. 439, goes further. It was a case of insurance upon profits, in which there was no evidence given that profits would have been made upon an arrival, nor was any other loss proved than an incident to the loss of the goods. On that state of facts, Livingston, J., who delivered the opinion of the court, remarks: "It does not follow that a profit will be made if the cargo arrived, yet its loss would give a right to recover on such a policy. There are other questions in the case; but, after all were settled, this principle was essential to the plaintiff's right to recover. In the case of Fosdick v. The Norwich Ins. Co., decided in Connecticut, 3 Day's Rep. 108, the question was moved in argument, that to justify a recovery the plaintiff must show that profits would have accrued upon the safe arrival of the goods; but the language of the court, in expressing their decision, is not so explicit as to enable us to determine whether it was intended to apply as well to the would gain by it if the profit made were beyond the valuation, and the insured would gain if they were below the valuation. If the loss were total, as by the total loss of the ship, it would be impossible to say with any certainty when the ship would have arrived but for the loss, or what market it would have found. In point of fact, goods do generally sell for a profit; for, if they did not, the whole commerce of the world would be at an end; and a presumption of this fact is therefore reasonable. And then the valuation of profits, like that of other interests, determines the amount. It must, however, be remembered, that, as in the case of valuation of goods and of freight, it may always be shown that a part proof of loss as to the insurable interest. Yet, the right of the plaintiff to recover being affirmed in that case without other proof than the loss of the goods, this would seem to be an authority for the doctrine that no other was necessary. The report furnishes no other proof of loss of profits than what was implied in the loss of the cargo in which the insured had an interest. And on the question of insurable interest, which was the main question in the case, the chief justice asks if profits are anything more than an excrescence upon the value of the goods beyond the prime cost.' In the case of Abbott v. Sebor, 8 John. Ca. 39, which was a motion for a new trial, the decision turned chiefly on the question, whether the court had misdirected the jury in instructing them that the plaintiff must recover the whole sum insured on profits or nothing. That is, that he could not recover for an average loss. The question, if proof that profits would have been made had the vessel arrived in safety was necessary to his recovering, was not touched. Yet the right to recover is affirmed in that case, and it does not appear that any proof to that effect had been offered or required, beyond the loss of the goods on which the profit was expected. But the authority amounts to no more than an implication. We must now dispose of the question upon reason and sound principle; and here it seems difficult to perceive why, if profits be a mere excrescence of the principal, as some judges have said, or an incident to or identified with it, as others have said, the loss of the cargo should not carry with it the loss of the profits. This rule has convenience and certainty to recommend it, of which this case presents a striking illustration. Here was a voyage of many thousand miles to be performed, the final profits of which must have been determined by a statement of accounts passing through several changes, some of which might have resulted in loss, some in gain, and in each case, the good or ill fortune of the adventure turning on the gain or loss of a day in the voyage. What human calculation, or human imagination could have furnished testimony on a fact so speculative and fortuitous? To have required testimony to it, would have been subjecting the rights of the plaintiff to mere mockery. On this point we support the American decisions." of the subject-matter included in the valuation was not at risk, and then the valuation is diminished proportionally, so it would be in the valuation of profits. Thus, if the freight of five hundred bales of cotton was insured under a valuation of the whole, and only two hundred and fifty bales were on board, only one half of the valuation would be taken. But it would always be a question, partly of construction, partly of fact, whether it was not the intention of the parties to apply the valuation to the profits on property on board. It is no uncommon thing for insurance to be effected on an interest "to be thereafter declared and valued." Such an insurance is usually on goods. We know not why, however, if the parties saw fit, it might not be made on other interests. Under this kind of policy it has been held, that, if the kind and value of the goods are declared before the loss occurs, it is a valued policy; but if they are declared and valued after the loss occurs, the declaration is sufficient to make the policy attach, but the valuation is set aside, and the case is treated as an open policy.1 Where the insured made a mistake in declaring and valuing under such a policy, he was permitted to correct it without the assent of the insurers.2 We know no good reason for treating a mistake of this kind in any other way than that in which other mistakes in the policies are treated. It need hardly be added that a valuation, if intended to cover an illegal interest or an illegal risk, is wholly void. Of the effect of a valuation on a constructive total loss, we shall treat in connection with that subject. 1 In Harman v. Kingston, 3 Campb. 150, Lord Ellenborough said: "I have now fully made up my mind, that where there is an insurance on goods" as may be thereafter declared and valued, this gives the assured a power, by duly declaring and valuing before the loss, to make it a valued policy; but if the insured do not so declare and value, it is then an open policy, and the interest is matter of evidence at the trial. 2 In Robinson v. Touray, 3 Campb. 158, it was held, that where there is a policy on goods by ship or ships to be thereafter declared, if the broker by mistake makes a written declaration upon goods by a wrong ship, to which the underwriters put their initials, he may afterwards, in compliance with the orders of the assured, declare upon goods by another ship, without the as sent of the underwriters. CHAPTER VIII. OF PRIOR INSURANCE. IF the same property could be insured against the same risks by different insurers, it is obvious that there would be great danger of fraud. The insurers might not know the policies of other inIt is mainly to guard against this danger that the marine policies of the United States usually contain an express provision that the insurers shall be liable for only so much of the property as the prior insurance fails to insure. The intention of this is obviously to make the second policy attach only to the excess of interest remaining uninsured after the first policy; and the third policy to attach to a similar excess remaining after the second; and so on for succeeding policies. The priority respecting which this provision is made is not a priority as to the beginning of the risk, but a priority in effecting the insurance, and is determined by ascertaining the actual time of making the contract. For this purpose the date is prima facie evidence, but not conclusive, for it may be contradicted by proof that the contract was made on another day. It is a general This 1 Lee c. Massachusetts Fire & Marine Ins. Co., 6 Mass. 208. In this case it appeared on the trial that the plaintiff with others was interested in a shipment of merchandise valued at $ 38,000; that the whole body of owners effected an insurance on the shipment as a whole to the amount of $ 32,000. policy was underwritten by different individuals, who took shares at different times. The plaintiffs alone procured an insurance from the defendants on their separate interest, and allege that at the time of the making of the policy, the one now in suit, the amount underwritten on the general policy did not exceed the sum of $10,000. The defendants' policy contained the usual clause as to prior insurance, and on the strength of it they resisted payment, alleging that the plaintiff's interest was covered by the general policy, which bore date October 31st. Mr. Justice Sewall delivered the opinion of the court, from which the following extracts are taken: In the case at bar, two policies- the joint and the separate policies are before us. Taken together, the sums insured upon the same risk, described alike in both instru principle of law, that the fractions of a day are not regarded; but if two or more policies are made on the same day, insuring the ments, do not exceed the full amount and value of the interest and property of the parties insured, who are named in the two policies, all of them in one, two only of the concerned in the other. What amount had been insured upon the joint policy when the separate policy was effected? If a greater amount than $10,000 had not been then subscribed, the defence fails in the other view which has been taken of it. The defendants suppose this question determined by the written date of the joint policy, and by the words cited in the policy in the case at bar, particularly to the reference to policy prior in date. The plaintiffs contend that this reference is, constructively, to a policy prior in effect, of which the written date is only the presumptive evidence, liable to be controlled by other evidence, when it can be had, of the actual subscriptions of each underwriter. The general principle is, that every subscription is a new contract. Marshall (p. 241) states this in speaking of the importance of the true date, when necessary to compare it with the dates of facts connected with the transaction; and in this view of the subject he commends the practice in England, where each underwriter dates his own subscription. By the true date, in contradistinction to some other date, he must intend the time of the transaction, as distinguished from any date which may be affixed to the writing containing the contract; and because this last is presumptively the time of the transaction, as distinguished from any date which may be affixed to the writing containing the contract; and because this last is presumptively the time of the transaction, although liable to be controlled when it is not truly so, he commends the practice which avoids a general date, and gives to each contract, made by every distinct subscription, its true date. The rules of law as applied in construing the dates of other instruments, even the most solemn, such as deeds and writings under seal, certainly are, that the written date is not conclusive evidence of the time of the transaction. This, when controverted and material, may be proved by extraneous evidence, notwithstanding a written date. A deed, and without doubt a policy of insurance, executed without any written date, are nevertheless valid; and the latter may happen to be a policy of a prior date within the meaning of the stipulation cited, that is, an insurance by a prior transaction." Hogan v. Delaware Ins. Co., 1 Wash. C. C. Reps. 419, was an action on a policy of insurance from the Cape of Good Hope to Philadelphia, with a clause in the policy, that, if insurance on the policy had been made previously, it should be void as to all property covered by a prior insurance; and so much of the premium as would be proper should, under such circumstances, be returned. At the time the policy was signed, a memorandum was made by the president of the company, stating that, in case insurance on the property was made in England, where it had been ordered, it should supersede so much of the insurance as was covered by the policy, and one per cent of the premium should be retained. Insurance on the same property was made in England eight days after the policy was underwritten by the defendants. Held, that the terms of the memorandum do not alter the |