army with spruce beer. Lord Mansfield thought it an insurable interest. But the part of the case which calls for our attention at present was a clause declaring "that, in the case of loss, it was agreed that the profits should be valued at 1000%., without any other voucher than the policy." This, it was insisted, rendered the policy void, within the spirit of the 19 Geo. 2, c. 37. Lord Mansfield, at the trial, inclined to think the contract was a fair one; but still he could not get over the objection, the instrument being void on the face of it. His Lordship, however, saved the point for the opinion of the Court, a verdict being entered for the plaintiff, subject to that reference. In Michaelmas Term following the matter came on to be heard, when, after full argument at the Bar, Lord Mansfield, C. J., said.—“ I have, since the sitting at Guildhall, on further consideration, changed my opinion. I then thought the present policy within the act of Parliament, I now think otherwise. On the construction of the act, it has uniformly been held that a valued policy is not void. It is incumbent on the plaintiff to prove some interest, but it is not necessary to go into the whole value. In the case of Lewis v. Rucker (a) this doctrine was much considered. (His Lordship read the words already mentioned in that case, and proceeded.) This insurance is on "the profits" of a cargo belonging to a man having a contract to supply the army, and if it arrive the profits are pretty certain. The meaning of the policy is not to evade the act of Parliament, but to avoid the difficulty of going into an exact account of the quantum. I cannot distinguish this from a valued policy: there is no pretence for saying it is a wagering one." The other Judges concurred, and the postea was given to the plaintiff. and wager policy, If the plaintiff must prove his interest, and the policy only Distinction besaves him the trouble of showing its amount, it is a valued tween a valued policy and good; but if it dispenses with all proof of interest, it is within the act and void. Thus in the case of Murphy v. Bell (b), where a policy of insurance stipulated, "that the The commissions of the assured, as consignee of the cargo, valued at 15001. held to be a good insurable interest. goods insured were, and should be valued at five tierces of coffee, valued at 271. per tierce, say, 1357.; the policy to be a sufficient proof of interest," it was held that the policy was void under the act. Best, C. J., said, "This is a full admission of all which the assured would be required to prove, as well as to his having goods on board, as to the value of those goods. The words 'should be valued at five tierces of coffee,' admit that five tierces of coffee belonging to him were on board. That would dispense with the necessity of proving that any coffee belonging to the plaintiff was on board. The words the policy to be deemed sufficient proof of interest,' are of precisely the same import as the words 'without further proof of interest than the policy.' As no inquiry is to be made whether the assured had any property in the ship insured or not, it is in effect an insurance 'interest or no interest.” In a case before Lord Kenyon (a), where the interest was stated in the policy to be "on the commissions of the plaintiff, as consignee of the cargo, valued at 1500l." His Lordship expressed a strong opinion that this was a good insurable interest, but the matter being compromised, it did not come to any decision. Afterwards the question was brought for the opinion of the Court upon a case reserved (b). The policy stated the insurance to be on profits valued at 2,0007. The declaration averred, and the fact was, that the assured was interested in the profits to arise, and be made, from the sale and disposal of the said cargo of goods. This case was twice argued at the Bar, once in the time of Lord Kenyon, and after taking time to deliberate the judgment of Mr. J. Grose, Mr. J. Le Blanc, and himself, was delivered by Mr. J. Lawrence, in a luminous manner, who declared at the close of it, that Lord Kenyon concurred in the judgment. The decision was, that such profits were the subject of insurance. Mr. J. Lawrence in this judgment, refers largely to the foreign writers on this subject. (a) Flint v. Le Mesurier, sit. after H.T. 1796, at Guild. Park Ins. 563. (b) Barclay v. Cousins, 2 East, 544. "The case states, that the insured shipped on board the ship Jonah a cargo of goods, to be carried on a trading voyage: so that it appears that he had an interest in the profits to arise from a cargo, which was liable to be affected by the perils insured against. And the question is, if, on an insurance made on the profits to arise from such cargo, the plaintiff can recover? As insurance is a contract of indemnity, it cannot be said to be extended beyond what the design of such species of contract will embrace, if it be applied to protect men from those losses and disadvantages which, but for the perils insured against, the assured would not suffer; and in every maritime adventure the adventurer is liable to be deprived not only of the thing immediately subjected to the perils insured against, but also of the advantages to arise from the arrival of those things at their destined port. If they do not arrive, his loss in such case is not merely that of his goods or other things exposed to the perils of navigation, but of the benefits which, were his money employed in an undertaking not subject to the perils, he might obtain, without more risk than the capital itself would be liable to: and if, when the capital is subject to the risks of maritime commerce, it be allowable for the merchant to protect that by insuring it, why may he not protect those advantages he is in danger of losing by their being subjected to the same risks? It is surely not an improper encouragement of trade to provide that merchants, in case of adverse fortune, should not only not lose the principal adventure, but that that principal should not, in consequence of such bad fortune, be totally unproductive; and that men of small fortunes should be encouraged to engage in commerce, by their having the means of preserving their capitals entire, which would continually be lessened by the ordinary expenses of living, if there were no means of replacing that expenditure, in case the returns of their adventures should fail. Where a capital is employed subject to such risks, in case of loss, the party is a sufferer by not having used his money in a way which might, with a moral certainty, have made a return not only of his principal Opinion of foreign writers on insurance. Santerna. but of profit: and it is but playing with words to say that, in such case, there is no loss, because there is no possession; and that it is but a disappointment. Foreign writers upon insurance, whose doctrines form the greatest part of our law on this subject, certainly do not treat of insurance on profits as a matter inconsistent with the true nature and design of such a contract; and where it is spoken of by them as a species of insurance which cannot be made, this latter doctrine will be found to be referable to the positive institutions of different nations, who have thought it wise to prohibit it. Roccus citing Roccus, an Italian jurist, inquiring how goods that are lost are to be valued, has in his Notabilia de Assecurationibus, No. 3, this passage: 'Distingue aut merces fuerunt æstimate pro certâ quantitate tempore contractus assecurationis, et tunc non sumus in dubia quia dicta quantitas æstimata solvenda est; aut assecuratio fuit facta pro asportandis mercibus salvis Roman, et tunc æstimatio inspicienda est Romæ. Aut assecuratio fuit facta simpliciter, de solvendo æstimationem seu valorem mercium, in casu periculi, si navis perierit, et tunc inspici debet tempus obligationis, et prout tunc valebant, debet fieri æstimatio, et sic damnum quod assecuratus patitur in amissione rei, non lucrum fasciendum consideratur." And for this he cites Santerna, a Portuguese lawyer, de Assecurationibus, part the 3d, num. 40 and 41; in which book there is a long disquisition to show that, in this latter case, the profit on the goods is not to be paid, but only the value at the time of the insurance. So that it seems the insurance of profit is so far from being inconsistent with the nature of insurance, that, e contrà, Santerna thinks it necessary to show by argument, that the profit is not to be considered in all cases; and that where the assurance is made simpliciter, then lucrum non spectatur. And Stracca, another Italian lawyer, agrees with Santerna in his Gloss, No. 6. In France such assurances were unlawful; but that depends, according to Valin, on the ordinance of the marine, which also forbids insurance upon freight; and the reason given by Valin for making these ordinances, with respect to the one and the Stracca. Valin, as the law of France. as to the law in other, is the same; so in Holland, it appears from Bynker- Bynkershoek, shoek's Quæstiones Juris Privati, book 4, c. 5, that such in- Holland. surances cannot be legally made there; but that is by the positive laws of that country; notwithstanding which, the practice has so generally obtained to insure expected profits, as that in a case he there states, the majority of the Judges of the Court where the question arose, determined in favour of the assured; and those who opposed that decision, rested their opinions on the positive laws of the country, and not on such contracts being contrary to the nature of insurance. In this country, there is no law forbidding such insurance; unless it could be shown that the insured had no interest in the profits, or that from its nature it must be a mere wager, so as to bring the case within the stat. 19 Geo. 2; and that they are not considered as contracts inconsistent with the general nature of insurance is proved, by the instance put of an insurance on freight; which, as was very truly argued at the Bar, differs only from the case now before us in the same degree as a return of capital vested in shipping differs from a return of capital vested in merchandise: and by the cases of Grant v. Parkinson, in Marshall, 95, 3d edit.; and Park. 561, 8th edit., which was an insurance on profits of a cargo of molasses; and the case of Henrickson and Walker, and Henrickson and Margetson, Mich. 1776 (a). The authority (a) Mr. Justice Lawrence read the following note of that case at the time: Henrickson v. Margetson, and the same against Walker. These were two actions on the same policy, against two different underwriters. It was a policy of insurance at and from Bordeaux to Hamburgh, on imaginary profit. The declaration stated the policy 14th December, 1775, on the ship Thomas, of Bremen, on indigo valued at 9,6007.; under which policy was a memorandum, viz. the following is on imaginary profit at 3 per cent., and in case of loss, to profit which the said cargo of |