No. 95. Bermon v. Woodbridge, 2 Dougl. 784, 785.

taken by an American privateer on the 13th of October, 1776, and the plaintiff brought his action for a return of premium, in the proportion of ten-twelfths of the whole, the risk having ceased before the expiration of the second of the twelve months. The cause was tried before Lord MANSFIELD, at Guildhall, and a verdict found, by consent, for the plaintiff, in order to take the opinion of the Court, whether there ought to be an apportionment and return of premium; if there ought not, a nonsuit to be entered. The case was solemnly argued, and the [785] cases of Stevenson v. Snow, 3 Burr. 1237, 1 Black. 315, 318, and Bond v. Nutt, 2 Doug. 367, relied on by the counsel for the plaintiff. But the Court were clearly of opinion that there ought to be no return; that the case was similar to an insurance upon a life for a year, with an exception of death by suicide, where, if the life insured is put an end to by suicide within the year, there never is any return of premium; that the contract was entire, and when so, whether for a specified time or for a voyage, there shall be no apportionment nor return, if the risk has once commenced; and that the opinion of the Court, in Stevenson v. Snow and Bond v. Nutt, went upon there being two distinct risks,1 which there certainly were in those cases, but not in this. In the present case, if the parties had chosen to do so, they might have made three insurances in one policy, by dividing the voyage into three distinct parts and risks. There is no long voyage where that may not be done. But this contract is not so. It is on a voyage from Honfleur back to the same port, by Angola and St. Domingo. Many of the policies on our East India voyages run in the same way, and there is never any return of premium on them, in whatever part of the voyage the loss happens. difficulty of apportioning the premium is insurmountable. risk varies every day and hour in time of war, and it is impossible to ascertain how much shall be appropriated to each different part. The premium is mentioned in the gross - £11 per cent — on the whole voyage, not in separate distinct sums for different parts of it. Dunning said he had advised the action in the case

1 In Bond v. Nutt the reasoning of the Court went upon there being a divisible risk, or two risks united in the same policy; but I believe no question was agi. tated in Court about a return of premium;

The The

for the defendant in that case had tendered the whole premium, and it was taken out of Court by the plaintiff before the trial.

No. 95. Bermon v. Woodbridge, 2 Dougl. 785, 786.

of Tyrie v. Fletcher, having then an idea that Stevenson v. Snow had been decided on the broad ground that there should be a return in all cases where the risk could be ascertained to have ceased before the end of the voyage insured; but that on the argument of Tyrie v. Fletcher it came out clearly that the judgment in Stevenson v. Snow had gone upon the ground of there being two voyages.

For the plaintiff, it was contended, 1. That the certifi[786] cate produced was not at all inconsistent or incompatible with the captain's evidence. It did not follow, because the reason of want of water was there stated for his putting into Cayenne, that he had not also other reasons for adopting that measure. The captain alone was examined. He spoke to facts. and motives within his own knowledge; and the jury could not disbelieve him, without imputing perjury to him, which they had no right to do in a case where there was no incongruity in his evidence, and he was not contradicted nor his credit impeached by any other witness. The verdict was founded in part upon his evidence; for, as he was the only witness on either side, the fact of the supposed deviation could only be gathered from what he swore; and if one part of his testimony was to be adopted, the whole ought. If an affidavit or an answer in Chancery is read in evidence it cannot be mutilated, and part received and part rejected; but the whole must be taken together. 2. As to the return of premium, it is certainly most reasonable that there should be nothing paid for that part of a voyage in which no risk is run by the underwriter. This seems to follow from the very nature of a contract of mere indemnity, which a policy of insurance is; and in Stevenson v. Snow the determination went upon that general principle, not merely on there being two voyages. The cases of Tyrie v. Fletcher and Loraine v. Tomlinson were upon time; and in such cases the reason why there shall be no return is that, from the nature of the thing, it is impossible to ascertain the degree of risk in the different portions of the time insured. But where the insurance is upon a voyage consisting of different parts, from port to port, there is nothing so easy, because the respective premiums for the voyage between all the different ports. mentioned in the policy are always known and settled. If there were anything in the supposed difficulty of apportioning the premium in time of war, it ought to be considered that the war

But,

had not commenced when this contract was entered into. if it were necessary for the plaintiff to show that by the very words of the policy there were three different voyages insured, surely they are as distinctly marked out here as the two were in Stevenson v. Snow. The words" at and from" are repeated three times, which would have been unnecessary if one entire voyage and one entire contract had been in contemplation. In short, the form of expression here is fully as descriptive of several successive voyages as the words of the policy were in Stevenson v. Snow, and, indeed, much more so, if they were as stated in Mr. Justice BLACKSTONE's report of the case; for, according to [787] him, the words of that policy run, " Warranted to depart with convoy for the voyage" (1 Black. 315), not as stated by Sir JAMES BURROW, "Warranted to depart with convoy from Portsmouth for the voyage" (3 Burr. 1237). In all cases where there is an insurance on an outward-bound voyage, and also on the homeward-bound voyage from the ultimate port at which the homeward-bound cargo is to be taken in, though in the same policy, the division into two voyages and two risks is obvious and natural; insomuch that, by the French ordinance of 1681, which is, in some measure, a digest of the general law of merchants relative to maritime causes, it is expressly provided that a fixed proportion of the premium shall be returned if the homeward-bound voyage never commence. "Si l'assurance est faite sur marchandises pour l'aller & le retour, et que le vaisseau, étant au lieu de sa destination, il ne se fasse point de retour, l'assureur sera tenu de rendre le tiers de la prime, s'il n'y a stipulation contraire." Ordonn. de la Mar. 1681, art. 6. There, too, the words are assurance pour l'aller & le retour, are much less expressive of a divisible risk than those used in the present policy. Lee mentioned a case of Scott and others v. Rae, tried before Lord MANSFIELD, at Guildhall, as directly in point. The insurance there was, "at and from Grenada to Boston, in New England, and from thence back to Grenada and London." The ship sailed from Grenada to Boston, and from thence to Goldsborough, in New England, and from Goldsborough directly to London, and Lord MANSFIELD held that the contract was capable of being severed, that there ought to be a return of premium proportioned to the risk from Goldsborough back to Grenada, and from thence to London, and that this proportion might be ascertained, and had been

VOL. XIV. — - 33

proved by a witness to amount to £3 per cent.1 Howorth [788] stated that in the case of Lavabre v. Walter, 2 Doug. 284, the underwriters were so well satisfied that the risk might be apportioned, that they had voluntarily made a return of premium. Lord MANSFIELD said the reason why he had desired the motion to be made on the point concerning the return of premium, and why he should now direct that the case should stand over till the Court should consider of their opinion, was that, in all mercantile transactions, it is infinitely more important that the law should be certain and uniform, than that, at first, it should be one way or the other.

This day his Lordship delivered the opinion of the Court to the following effect:

The motion for a new trial in this case is

Lord MANSFIELD. made upon two grounds: 1. That the verdict is against evidence; 2. That there ought to be a return of premium for the voyage from St. Domingo to Honfleur. 1. There was but one witness examined, the captain, and he did give evidence that he was forced to go into Cayenne and Martinico on account of the breaking of his bowsprit and the deficiency of provisions, and averred that the whole was occasioned by inevitable necessity. If this was true, there was no deviation in point of law; but there were many suspicious circumstances in his evidence; and the jury expressly found, on the specific question being put to them, that his going out of the direct course was wilful, not necessary. They thought that when he sailed from Angola he did not intend to go to St. Domingo, but meant to try the Martinico market. It is said that as the case rests entirely on his evidence, you must take it altogether, and believe the whole; but though the whole of an affidavit or answer must be read, if any part is, yet you need not believe all equally. You may believe what makes against his point who swears, without believing what makes for it. It was an extraordinary circumstance that the ship should

case.

1 Nobody at the Bar recollected this Lee cited what Lord MANSFIELD said, from a note taken on the back of the brief at Guildhall, by Mr. Thoresby, who was attorney for one of the parties, and who has favoured me with the perusal of the brief, from which it appears that there was a warranty in the policy that the ship should depart from Grenada for

London on or before the 1st of August, 1772; so that, according to the original contract, and independent of the agree ments mentioned, infra, p. 516, there were two risks, viz., one absolute, from Grenada to Boston and back to Grenada, and another conditional, viz., from Grenada to London, in like manner as in the case of Bond v. Nutt

No. 95. Bermon v. Woodbridge, 2 Dougl. 788, 789.

be so soon in want of water, and a very suspicious one that she should fall short of provisions. How came the captain to set out on such a voyage so scantily provided? Then, there was a piece of evidence which, though not admissible for the plaintiff, was very strong against him. That was the certificate which was obtained out of the regular course of business, and manifestly intended to be a justification; and yet mentions nothing of the loss of the bowsprit, which the captain stated, on his examination, as his principal reason for going to Cayenne. There are also other strong circumstances. But, if this point was [789] doubtful, who but the jury were to decide upon it? No new evidence is pretended. It is not pretended that the plaintiff has any of the crew to produce, to explain or corroborate the captain's testimony. If we were to grant a new trial, on the ground of the verdict being against evidence, it would be sending the cause back to a jury, with an intimation that they ought to believe the captain. We are all, therefore, against granting a new trial on this ground. 2. If, however, the plaintiff should succeed on the second point, the determination would virtually allow him a new trial on the whole of the cause, because no special case was reserved. But on the fullest consideration, and after looking into all the cases (though my opinion has fluctuated), we are now all clearly of opinion that there ought not to be any return. The question depends upon this: Whether the policy contains one entire risk on one voyage, or whether it is to be split into six different risks? for, by splitting the words, and taking "at" and "from" separately, it will make six; viz. 1. At Honfleur; 2. From Honfleur to Angola; 3. At Angola, &c. The principles are clear. Where the risk has never begun there must be a return of premium; and if the voyages in this case are distinct, the risk from St. Domingo to Honfleur never began. On the other hand, if the risk has once begun, you cannot sever it, and apportion the premium. In an insurance upon a life, with the common exceptions of suicide and the hands of justice, if the party commit suicide or is executed in twenty-four hours, there shall be no return. The case is the same if a voyage insured is once begun. Is this one entire risk? The insured and insurers consider the premium as an entire sum for the whole, without division: it is estimated, on the whole, at 11 per cent. And, which is extremely material, there is nowhere any contingency,