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on in the name of Robertfon, who, at the time of his bank- CHAP. ruptcy, had paid a much larger fum for loffes than he had received for premiums; and to recover a moiety of this fum from Tyler's estate was the object of this action. The Lord Chief Justice Eyre having nonsuited the plaintiffs at the trial, and a motion having been made to set the nonfuit aside, the Jearned Judges, after argument at the bar, delivered their opinions.

Ld. Ch. J. Eyre." This question depends on the true construction of the stat. 6 Geo. 1. c. 18. By that act, the two corporations became the purchasers of the exclusive privilege of infuring on a joint stock; and to give effect to that privilege all other perfons are prohibited from insuring on a joint stock. Now it appears clearly on the firft view, that the provifions of the act are at an end, if a perfon, by merely infuring in his own name, can have the advantage of a joint capital, which the act meant to prohibit. This partnership therefore is contrary to the spirit of the act; and it is also contrary to the letter of it. The 12th fection directs, that all focieties, &c.* This does not at all go to confine the meaning of the legif lature to an avowed partnership, insuring publickly in their own names; but the object is to prevent any other joint flock being embarked in infuring. This being fo, the confequence unavoidably is, that no contract can arife directly out of fuch a proceeding, fo as to be the foundation of an action."

Mr. J. Heath." I am of the fame opinion. It feems to me that the object of the statute would be totally defeated, if it were to extend only to thofe policies, in which the names of all the partners were inferted. It exprefsly declares, that every policy fubfcribed by any person acting in a partnership shall be abfolutely null and void, though it may be true that the party fubfcribing, fhall be eftopped from fetting up a secret partnership to defeat a bona fide infurance. And the reafon is obvious; trade is carried on according to the capital employed. Now the insurances would run to the extent of the capital, in whatever name the policy might be fubfcribed.

• Vide fupra, p. 6.

The

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CHAP. The object therefore of the ftatute was to prevent the employment of a joint capital, which would afford the greateft competition with the established corporations."

Mr. J. Rooke." As to the second point, I agree that if the contract be illegal, no action can arife out of it. But as to the first question, whether this contract were illegal or not, I must confess I had great doubts, till I heard the opinions of my Lord Chief Justice and my brother Heath, and alfo the cafe cited from Park's Infurance, for it feemed to me that the statute only meant to prohibit insurances where both parties knew that a partnership exifted, but not where there was a fleeping partnership. But I was very much ftruck with the obfervations of my brother Heath, that the extent of the inBoothv. Hodg- furance would be in proportion to the capital employed, and if there were an increased capital, there would be an increafed rivalfhip with the corporations. Whatever doubts therefore I had, I fubmit to the authority of the other Judges.”

fon, 6 Term

Rep. 405, Acc.

Sec. 24. 26. 28.

[9]

Rule for fetting afide the nonfuit was discharged.

There are claufes, in a fubfequent part of the ftatute, fecuring to the South Sea and Eaft India Companies all the rights and privileges which they had enjoyed previous to the paffing of that act, and the right of lending money on bọttamree to the captains of their own ships.

This ftatute is the only pofitive regulation to be found in the law of this country, with refpect to what perfons fhall, or fhall not be infurers. By virtue of that regulation, the two offices under the names of the Royal Exchange Affurance Office, and the London Assurance Office were created and eftablished, by charter of George the First, under the great feal of Great Britain, bearing date the twenty-fecond day of June, in the fixth year of his reign; and they ftill continue. offices for the infurance of property. The legislature having thus anxiously provided for the fecurity of those merchants, who might be defirous of carrying on an extenfive trade, but who were deterred from doing fo, through fear of the infolvency of underwriters, having ftipulated with the company that they should have fufficient funds for the payment of all de

mands

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mands that might be made, and, at the fame time, allowing CHA P. to private underwriters the full liberty of insuring to any amount with thofe who were fatisfied to truft to their private fecurities only; it is not to be wondered at, that the business of infurance increased to a degree almost inconceivable. Indeed, any perfon, fince this ftatute, may. infure as at the common law, with this fingle exception, that any policy subscribed by a private firm or partnership, is abfolutely void.

2dly. What things may be infured. I beg leave here to premife, that I do not mean at present to go into the great queftion of infurance, upon intereft or no intereft, having referved that for the fubject of a diftinct chapter. My defign in this place is only to fhew, what kinds of property are the fubject of infurance, upon fuppofition that every person, making insurance, is interested in the goods as the law requires.

The most frequent subjects of insurance are ships, goods, I Magens 4. merchandizes, the freight or hire of fhips: alfo houses, ware-houses, and the goods laid up in them from danger by fire, and infurance on lives. more will be faid hereafter. But although infurances upon fuch property as we have juft enumerated, moft frequently occur in practice; yet in the law books we meet with cases which can hardly fall within any of those descriptions.

Of the two laft of which, See poft. chap.

Thus bottomree and refpondentia are a particular fpecies. of property which may be the fubject of insurance. But then it must be particularly expreffed in the policy to be refpondentia intereft; 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.

22 and 23.

This was folemnly decided in an action upon a policy of [10] infurance "upon goods and merchandizes, loaden, or to be

"loaden

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CHAP. "loaden aboard the Denham, William Tryon, commander, "at and from Bengal, to any ports or places whatsoever in "the East Indies, until her fafe arrival in London." The Gloverv.Black, evidence appeared to be, that before the figning of the pol3 Burrow 1394. and 1 Black icy, the plaintiff had lent Captain Tryon, upon the goods, then ftone Rep. 405. loaden, and to be loaden on board the said ship, on account

of the faid Captain Tryon, the fum of seven hundred and fixty-four pounds, at refpondentia, for which a bond was executed in the usual form: that the ship, at the time of the lofs, 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 confumed and loft. Upon these facts, the question was, whether the plaintiff could recover. This cafe was twice argued at the bar; the court took time to confider it, and were unanimous in their determination.

Lord Mansfield."I inclined, at the trial, and fince upon the argument, to fupport this infurance, being convinced that it is fair, and that the doubt has arisen by a flip in omitting to specify (as it was intended to have been done) that this was a refpondentia intereft. The ground of fupporting this insurance, if it could have been fupported, was a clause of the 19 G. 2. c. 37.. 5. which, as to the purpose of infurance, confiders the borrower as having a right to insure only for the furplus value, over and above the money he has borrowed at refpondentia. Yet we are all fatisfied that this act of parliament never meant, or intended to make, any alteration in the manner of infurances; its view was to prevent gaming or wagering policies, where the infurer had no intereft at all; and if the lender of money at refpondentia were to be at liberty to infure for more than his whole intereft, it would be a gaming policy; for it is obvious, that if he could infure all the goods, and insure his refpondentia intereft befides, this would amount to an infurance beyond his whole intereft. In defcribing refpondentia intereft, the act gives the lender alone a right to make infurance on the

money

money lent fo that the act left it on the practice. I have looked into the practice, and I find that bottomree and refpondentia 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 domeftic, that the refponden tia creditor may insure upon the goods, as goods. I find too, by talking with intelligent perfons very conversant in the knowledge and practice of insurances, that they always do mention refpondentia interest, whenever they mean to insure it. It might be greatly inconvenient to introduce a practice contrary to general ufage, and there may be fome 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 refpondentia and bottomree must be speci"fied and mentioned in the policy of insurance."

CHAP.

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[ 11 ]

It is to be obferved, that in this judgment the court confined itself entirely to the cafe then before it, but did not mean to decide, that a perfon, having a special intereft in goods, could not recover under an insurance upon goods generally. Lord Mansfield, indeed, expressly said, at the conclufion of his argument, that they did not mean to de- Burr. 1401. termine, that no special interest in goods might be given in evidence, in other cases than in those of refpondentia 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 infurance upon fuch an interest seems to have been admitted, if not abfolutely held, to be good, in the cafe of Godin v. London Affurance Company, which will be fully stated in that part of this Burr. 489. work, which treats of double insurances.

But although the cafe of Glover and Black is certainly good law, yet it has fince been ruled, that money expended by the captain for the use of the ship, and for which refpondentia intereft was charged, may be recovered under an infurance on goods, fpecie, and effects, provided the ufage of

the