1 Magens, 4. See post, chap. 21. and 23. Glover v. I Blackstone Rep. 405. 2dly, What things may be insured. I beg leave here to premise, that I do not mean at present to go into the great question of insurance, upon interest or no interest, having reserved that for the subject of a distinct chapter. My design in this place is only to shew, what kinds of property are the subject of insurance, upon supposition that every person, making insurance, is interested in the thing insured as the law requires. The most frequent subjects of insurance are ships, goods, merchandizes, the freight or hire of ships: also houses, warehouses, and the goods laid up in them from danger by fire: and insurance on lives. Of the two last of which, more will be said hereafter. But although insurances upon such property, as we have just enumerated, most frequently occur in practice; yet in the law-books we meet with cases which can hardly fall within any of those descriptions. Thus bottomree and respondentia are a particular species of property which may be the subject of insurance. But then it must be particularly expressed in the policy to be respondentia interest; for under a general insurance on goods, the party insured cannot recover money lent on bottomree. Such has been, and is at this day, the established usage of merchants. This was solemnly decided in an action upon a policy of insurance "upon goods and merchandizes, loaden, or to be loaden "aboard the Denham, William Tryon, commander, at and " from Bengal, to any ports or places whatsoever in the East "Indies, until her safe arrival in London." The evidence appeared to be, that before the signing of the policy, the plaintiff had lent Captain Tryon, upon the goods, then loaden, and to be loaden on board the said ship, on account of the said Captain Tryon, the sum of seven hundred and sixty-four pounds, at respondentia, for which a bond was executed in the usual form that the ship, at the time of the loss, had goods and merchandizes on board, the property of Captain Tryon, of greater value than all the money he had borrowed: that the ship was afterwards burnt, and all the goods and merchandizes were totally consumed and lost. Upon these facts, the question was, Whether the plaintiff could recover? This case was twice argued at the bar; the Court took time to consider it, and were unanimous in their determination. Lord Mansfield." I inclined at the trial, and since upon the argument, to support this insurance, being convinced that it is fair, and that the doubt has arisen by a slip in omitting to specify (as it was intended to have been done) that this was a respondentia interest. The ground of supporting this insurance, if it could have been supported, was a clause of the 19 G. 2. c. 37. s. 5. which, as to the purpose of insurance, considers the borrower as having a right to insure only for the surplus value, over and above the money he has borrowed at respondentia. Yet we are all satisfied that this act of parliament never meant, or intended to make, any alteration in the manner of insurances; its view was to prevent gaming or wagering policies, where the insurer had no interest at all; and if the lender of money at respondentia were to be at liberty to insure for more than his whole interest, it would be a gaming policy; for it is obvious, that if he could insure all the goods, and insure his respondentia interest besides, this would amount to an insurance beyond his whole interest. In describing respondentia interest, the act gives the lender alone a right to make insurance on the money lent: so that the act left it on the practice. I have looked into the practice, and I find, that bottomree and respondentia are a particular species of insurance in themselves, and have taken a particular denomination. I cannot find even a dictum in any writer foreign or domestic, that the respondentia creditor may insure upon the goods, as goods. I find too, by talking with intelligent persons very conversant in the knowledge and practice of insurances, that they always do mention respondentia interest, whenever they mean to insure it. It might be greatly inconvenient to introduce a practice contrary to general usage, and there may be some opening to fraud if it be not specified. The ground of our resolution is, "That it is now established, as "the law and practice of merchants, that respondentia and "bottomree must be specified and mentioned in the policy of "insurance." It is to be observed, that in this judgment the Court confined itself entirely to the case then before it, but did not mean to decide, that a person, having a special interest in goods, could not recover under an insurance upon goods generally. Lord Mansfield, indeed, expressly said, at the conclusion of 3Bur. 1401. his argument, that they did not mean to determine, that no special interest in goods might be given in evidence, in other cases than in those of respondentia and bottomree, if the circumstances of the case should happen to admit of it. The lien which a factor, to whom a balance is due, has upon the goods of his principal, comes under the exception taken by the Court; and an insurance upon such an interest seems to have been ad1 Bur. 489. mitted, if not absolutely held, to be good, in the case of Godin v. London Assurance Company, which will be fully stated in that part of this work which treats of double insurances. Gregory v. 1 Magers, 18. But although the decision in Glover and Black has never been called in question, yet it has since been ruled, that money expended by the captain for the use of the ship, and for which respondentia interest was charged, may be recovered under an insurance on goods, specie, and effects, provided the usage of the trade, which in matters of insurance is always of great weight, sanctions it. Thus in an action upon a policy of insurance on goods, specie, and effects of the plaintiff, who was also the captain, on board the ship, the plaintiff claimed under that insurance money expended by him in the course of the voyage for the use of the ship, and for which he charged respondentia in terest. Lord Mansfield, after delivering his opinion upon another point, which arose in the cause, and which will be mentioned in another part of this work, said, as to the second question, whether the words, "goods, specie, and effects," extended to this interest, I should think not, if we were only to consider the words made use of. But here there is an express usage, which must govern our decision. A great many captains in the East India service swear, that this kind of interest is always insured in this way, and I observe the person here insured is the captain. By the maritime regulations of most, if not of all, the trading powers in Europe, insurances upon the wages of seamen are forbidden; a regulation founded in wisdom and sound policy. In Great Britain, a great and commercial nation, ch. 24. s. 7. such an ordinance is particularly necessary, and it is agreeable to the policy of the general law of that country, by which it is declared, "That no master or owner of any merchant- 8 Geo, I. "ship shall pay to any seaman, beyond the seas, any money "or effects on account of wages, exceeding one moiety of the "wages due, at the time of such payment, till such ship shall "return to Great Britain or Ireland." By this salutary law, the sailors are interested in the return of the ship; they will, on that account, be prevented from deserting it when abroad, from leaving it unmanned, and in times of danger, arising either from perils of the sea, or the attacks of an enemy, will be more anxious for its preservation. But these good effects would be entirely defeated, if insurance on their wages were to be permitted; for to whatever cause the loss might be attributed, they would still be secure. It has been held in Webster v. an express case upon the subject, that a sailor can neither De Tastet, insure his wages, nor any commodity, which he is to receive 157. at the end of the voyage in lieu of wages. However, it 1 Magens, should seem, that this regulation does not mean to prevent mariners from insuring for the homeward voyage those wages which they have received abroad, or goods which they have purchased with those wages in order to bring them home; but, in such a case, they are considered in the same light with other men. com 7 Term R. 19. King v. Glover, These prohibitions do not extend to the masters of ships; and therefore it has been held that an insurance on the mission, privileges, &c. of the captain of a ship in the African 206. trade is legal. Boehm, 3 Bur. 1 Blackst. 593 field. In an action upon a policy of insurance upon Fort Marl- Carter v. borough, otherwise Bencoolen, in the East Indies, for twelve calendar months, from the first of October 1759, to the first of 1995. and October 1760, against an European enemy, for the benefit of the governor, it was doubted by the learned chief justice who Lord Manstried that cause, whether a policy against the loss of Fort Marlborough for the benefit of the governor was good, upon the principle which does not allow a sailor to insure his wages. But afterwards, when he came to deliver the opinion of the court upon all the points in that cause, after mentioning this doubt, which occurred to his mind, he went on thus: "But Ord. of Stockholm. Bynkershoek's Quest. Juris pub. lib. I. c. 21. p.153. "considering that this place, though called a fort, was really "but a factory or settlement for trade; and that he, though "called a governor, was really but a merchant; considering "too, that the law allows a captain of a ship to insure goods "which he has on board, or his share in the ship, if he be a "part owner; and the captain of a privateer, if he be a part "owner, to insure his share; considering too, that the ob"jection could not, upon any ground of justice, be made by "the insurer, who knew him to be the governor at the time " he took the premium; and as with regard to principles of "public convenience, the case so seldom happens, (I never "knew one before,) any danger from the example is little to "be apprehended; I did not think myself warranted, upon "that point, to nonsuit the plaintiff': especially too, as the "objection did not come from the bar. Though this point "was mentioned, it was not insisted upon at the last trial; "nor has it been seriously argued, upon this motion, as suf“ ficient alone to vacate the policy: and if it had, we are all "of opinion, that we are not warranted to say that it is void 66 upon that account." It has long been a question, how far insurances upon ships or goods of enemies are politick or legal. Upon the continent of Europe it should seem, that they are in general absolutely prohibited, under penalty of the insurance being void, and the delinquent's forfeiting the sum, to which he had subscribed. These laws have been passed from an idea, that such insurances are prejudicial to the interests of the country tolerating such contracts, by enabling an enemy to continue his trade, on account of the degree of protection thus afforded him against the maritime strength of the nation making the insurance. In England, till very lately, this question has been undecided; but the Court of King's Bench have, in some Nesbitt, and modern instances, been unanimously of opinion that such insurances are illegal and absolutely void. I shall, however, 6 T. R. 23. when I come to the chapter on illegal voyages, state the arguments on both sides of this important question. In this place I shall only observe, that in the year 1748, a bill was introduced into parliament, " to prevent assurances on ships belonging to France, and on merchandizes and effects laden. "thereon, during the then existing war with France." That Brandon v. Bristow v. Towers, and 35. Potts v. Bell, 8 T. |