A SYSTEM OF THE LAW OF MARINE INSURANCES. WITH THREE CHAPTERS, ON BOTTOMRY, ON INSURANCES ON LIVES, ON INSURANCES AGAINST FIRE. BY JAMES ALLAN PARK, Efq. ONE OF HIS MAJESTY'S COUNSEL. PRINTED BY A. STRAHAN, LAW PRINTER TO THE KING'S MOST EXCELLENT MAJESTY, FOR J. BUTTERWORTH, LAW BOOKSELLER, FLEET-STREET, 18c9. CHAPTER THE FOURTEENTH. Of Wager-Policies. HAVING in the four preceding chapters ftated the various CHA P. cafes, in which the contract of insurance is void from its very commencement, on account of its repugnancy to those principles of justice, equity, and good faith, which are the great foundation of all contracts between man and man; we proceed to treat of thofe policies, which by the pofitive ftatute law of the country are declared to be abfolutely null and void. Of these the largest class are wager-policies, or policies as they are called, upon intereft or no interest. The nature of the contract of insurance, in its original state, was, that a fpecifick voyage fhould be performed free from perils; and in cafe of accidents, during fuch voyage, the insurer, in confideration of the premium he received, was to bear the merchant harmlefs. It followed from thence, that the contract related to the fafety of the voyage thus particularly defcribed, in refpect either of fhip or cargo: and that the perfon infured could not recover beyond the amount of his real lofs. In process of time, however, variations were made, by exprefs agreement, from the first kind of policy; and in cafes where the trader did not think it proper to disclose the nature of his intereft, the insurer dispensed with the infured having any interest either in the ship or cargo. In this last kind of policy (of which we are now to treat) "valued free from average," and "inte"reft or no intereft," it is manifeft, that the performance of the voyage or adventure, in a reasonable time and manner, and not the bare existence of the fhip or cargo, is the object of the infurance. XIV. VOL. II. or DD Such СНАР. XIV. Affievedo v. Cambridge, 10 Mod. 77. Goddard v. Garrett, 2 Vern. 269. Depaiba v. Ludlow, Comyn's Rep. 360. Such an object as that, from a reference to the real nature of an insurance, as stated in the outfet of the chapter, namely, that it is a contract of indemnity from a real and manifeft, not from a fuppofed and ideal lofs, must have been originally bad. Indeed it has been declared from the bench, prior to the difcuffion of Affievedo v. Cambridge, in the reign of queen Anne, that fuch insurances were formerly bad; for it is taken for granted in 1692 to be fettled law, that in former times, if one had no intereft, though the policy ran, intereft or no intereft, the infurance was void; because insurances were made for the benefit of trade, and not that perfons unconcerned therein, or uninterested in the fubject matter, fhould profit by them. The idea thus ftarted feems to receive fome confirmation from the counfel, and was not contradicted by the Court in the cafe of Depaiba v. Ludlow, for the counfel there observed, that infurances upon interest or no intereft were introduced fince the revolution. If this was the law of England in this respect, previous to the revolution, as thefe cafes fuppofe it to be, it was confonant to the pofitive laws of most of the commercial ftates and countries in Europe. For we find that by pofitive regulations of Middle65.88.189. bourg, Genoa, Konyngfourg, Rotterdam, and Stockholm, all infurances upon wagers, or as intereft or no intereft, are declared to be abfolutely void, and of no effect. 2 Mag. 70. 257. Goddart v. But though this mode of infuring gained footing in Eng. land, yet when introduced, the courts of juftice looked upon thefe contracts with a jealous eye; and by their determinations fhewed the ftrong prejudices which they entertained against them. The courts of Equity in particular manifed that their inclination would lead them as much as poffible to fupprefs such a species of contract: nay, that they ftill confidered them as void. This is evident from two cafes in Vernon's Reports. In one of them, the defendant had lent money on a bottomry Garrett, bond, but had no intereft in the fhip or cargo; the money lent 2 Vern. 269. Trin. Term. was 300l. and he infured 450/. on the ship; the plaintiff's bill 1692. was |