they remained the property of De la Torré, and the plaintiffs had no right in them.-But the court were clearly of opinion, that, as the goods were configned to Dubois, to hoid for the plaintiffs, he was to be confidered as trustee for them; and that the plaintiffs, being creditors of De la Torré, raised a good confideration for the confignment, and the plaintiffs had a good insurable interest. If the confignor of a cargo of goods fend the bills of lading, together with the bills of exchange for the amount of the cargo, to his general agent, with directions to deliver the bills of lading to the confignee, on his accepting the bills of exchange, and the confignee refufe to receive the goods or accept the bills of exchange: Such general agent becomes in effect the confignor, of the goods, and may infure them as agent for the confignor, or in own right, if he has accepted bills on the credit of goods (a). his ure them as confignor, or in his own right, if he has ac agent for the the cepted bills on From the authoritics which have been already cited, it. appears that, provided, the object of the contract be not. a wager, almost any qualified property in the thing infured, or any reasonable expectation of profit or advantage to arife therefrom, will conftitute that fort of intereft: which the party may legally protect by insurance.—Still, however, an infurable intereft muft be founded on fome legal or equitable title; and the following cafe will fhew, that though a perfon may have a fort of claim, which, as between him and the legal owner, might be thought reasonable, and fuch as the legal owner could not confcientiously difpute; yet if this claim be inconfiftent with the only title which the law can recognize, it will not be deemed to be even an equitable title, and therefore: not an infurable interest. In an action on a policy on freight valued at. 5000l. there were two counts in the declaration. The first aver red the interest to be in the three plaintiffs, Camden, Calvert and King, in whofe names the infurance was made; the fecond averred it to be in the plaintiffs and one Cure, account of them. in the freight, having neither (a) R. Wollf v. Horncafile, & Pul, & Bof. 316. poft. c. 7. §.3. a legal nor an Camden & al. v. Anderson, 5 T.R. 709. equitable title ta fis.On the trial, it appeared that the fhip, of which the hip, the freight was infured, had been paid for by the four perfons named in the last count, to whom a bill of fale was made. The defendant produced a register made in 1786, in pursuance of the ftat. 26 G. III. c. 60, (Lord Hawkesbury's act), wherein the fhip was registered in the names of Camden and Calvert only, and it was infifted, that, as the plaintiffs title to freight could only arife from the ownership, the register was decifive evidence that no other person than those two were interested in the property (a); and there was no count in the declaration stating the intereft to be in those two.-The plaintiff, however, took a verdict, with liberty to the defendant to move to enter a nonfuit.-Upon this motion, it was contended on the part of the plaintiffs; first, that it was competent to Camden and King, in whofe names the ship was registered and the bill of fale taken, to tranffer their right by parol agreement to the other two partners jointly with themselves; fecondly, that it was fufficient for them to fhew that they had an equitable interest to entitle them to freight; that upon the ftat. 19 G. II. c. 37, requiring that the infured fhould have an interest in the fubject matter of the infurance, there was no doubt; for whether it was a legal or an equitable intereft, or even a reasonable expectation of an intereft, it was still insurable.— But the court clearly held that the four partners had not any insurable interest in the freight, and a nonfuit was Whether a hope accordingly entered.-Lord Kenyon faid,-" I studiously avoid difcuffing the question whether or not a party may infure a hope or expectation, not having any intereft in the fubject infured: It will be time enough to examine that cafe when it arifes. But on the prefent queftion I cannot or expectation be infurable is not decided. (a) By ftat. 26 G. III. c. 60. § 17, When and fo often entertain Freight can only be due to the legal owner of the thip, and inture ite he only can entertain a doubt; for the right to freight refults from the right of ownership; and if the plaintiffs have no title to the fhip, they have no intereft in the freight. It is like the cafe of an action for ufe and occupation : If one perfon permit another to enjoy his eftate, it is not competent to the latter to difpute the title of the former. But if the former bring an action against a third perfon, which depends on his own title, he cannot fucceed, unless he fhew a title. So, if the plaintiffs had let out the fhip to other perfons, perhaps thofe perfons would not have been fuffered to conteft the plaintiffs title: ut here, the plaintiffs claim the freight in right of ownership: They had no right to infure the freight, unless they can fhew a right to the fhip: It is not pretended that they had any legal title to the fhip; and according to the decifion of Hibbert v. Rolleston (a), they had no equitable And no perfon title. It was there held, that the register act was equally binding in a court of equity, as in a court of law, and the court refused to compel the vendor to make a legal conveyance to the purchafer, who claimed under a defective bill of fale. And, indeed, if an equitable intereft could prevail in contradiftinction to a legal interest, it would repeal the wife provisions of that act, which has proved highly beneficial to the commercial interests of this country." can have either The lender upon bottomry and refpondentia has an infurable intereft for the Though refpondentia and bottomry loans are of themfelves a fpecies of infurance, yet the lender has an infur able intereft in his fecurities, and therefore may protect himself from the fea-risk by infuring them. If I lend 7. S. fums lent. 1000l. on bottomry at 12 per cent. for a given voyage, and the ship arrive fafe, he must pay me the fum lent with the ftipulated intereft. If she be loft 7. S. is dif charged from the debt. My capital is therefore put in rifk; and there can be no reason why I fhall not insure it. And this insurance is in nature of a re-infurance. In feveral parts of Italy it is permitted to lend money on bottomry and refpondentia, where the borrower has no (a) 3 T. R. 406, . The owner of the hip u goods has only an infurable intercft in the furplus value above the fum lent. But the ufage take a cafe out of rance on goods, 1pecie and effets in the India trade, thing on board. It is fingular, however, that in fuch cafe, if the lender infure his capital, and the fhip be loft, the infurer is not anfwerable, unless the infurancé was made in the form of a wager. At Genoa, even in that form, fuch infurance is prohibited (a).-In Italy the lender may infure, not only his principal, but alfo the maritime intereft. But upon the interest, the insurance is confidered as a wager. Even the honefty of the borrower may be infured (b).-In France the borrower is prohibited from infuring the fum borrowed; and the lender, though he may infure his capital, muft not insure the intereft (). The lender can infure only the amount of the fum lent, and the borrower has an infurable interest in the fhip or goods to the amount of the furplus value above the fum lent (d). If either were to infure more, it would be a gaming infurance, and void by the ftat. 19 G. II. c. 37, for all above the real intereft. Yet where the ufage of a particular trade has fanctioned a departure from this rule, an infurance made in conformity to fuch ufage will be good.-As where an infurance was made on behalf of the captain of an Eaft-Indiaman, on "goods, fpecie, and effects" on board his fhip.-In an action on the policy, the plaintiff claimed to recover, under that infurance, money which he had expended in the course of the voyage for the use of the fhip, and for the infured may which he charged refpondentia intereft.-On the trial of the caufe, it was proved by the teftimony of many captains in the Eaft India trade, that this kind of intereft was always infured under the denomination of goods, fpecie, and effects.-The court determined, that under this ufage the plaintiff might recover.-Lord Mansfield, after delivering his opinion upon another point which arofe in the cafe, faid;-"As to the question, whe recover for money laid out for the ufe of the thip, and for which he charged refpondentia interest; it being the ufage of the trade to infure in this form. Gregory v. (a) Cafaregis, difc. 14. n. 21.-(b) Cafaregis, difc. 1. n. 123, 124.-(c) Ord. of Louis 14, h. t. art. 16, 17. Pothier, h. t. 32, 44. Emerig. tom. 1. p. 236, 237.—(d) Vid. 19 G. II. c. 37,§ 5, and Lord Mansfield's expofition of it in Glover v. Black, Bur. 1394, 1 Bl. 399, 405, 422.— 3 "ther "ther goods, fpecie, and effects," comprehend this intereft, I should think not, if we were to confider only the words made ufe of. But here there is an exprefs ufage which must govern our decifion. A great many captains in the Eaft India service swear that this kind of interest is always infured in this way; and I obferve that the perfon here infured is the captain. cannot under write a policy on bottomry. It is plain that a policy on bottomry or refpondentia The borrower cannot be subscribed by the borrower of the money; be-cause it is only in confideration of the fea rifk, from which he is exempt, that he agrees to pay the marine intereft. If he were to become an infurer, this would be no longer a loan upon bottomry, but a cloak for ufury. Sect. 2. Of Wager Policies. MANY are the contrivances which men have fallen up- Gaming. on for the gratification of their propensity to gaming: And the uncertain events of maritime adventure afford an obvious and extenfive field for the calculation of chances, and the decifion of fortune. The practice of gaming, by nourishing a constant hope of gain, excites in the mind an intereft which engroffes the attention, and withdraws the exertions of men from ufeful purfuits. By pointing out a fpeedy, though hazardous mode of accumulating wealth, it produces a contempt for the moderate, but certain, profits of fober industry. It perverts the activity of the mind, taints the heart, and depraves the affections. By frequent and great reverfes of fortune, it becomes not only the fource of great private mifery, but fuggefts constant temptations to fraud and the perpetration of atrocious crimes. There are few well regulated governments in which gaming has not been laid under confiderable restrictions. In this country ideas lefs rigid have prevailed. Innocent wagers Legality of wagers in Fng land. |