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1812.

John Bell, R.

R. G. BEASLEY, and WALTER Bell, surviving Partners of William Bell, deceased, against Ansley.

Tuesday, June 16th.

and on their

cannot recover

THIS was an action on a policy of insurance on Joint owners goods on board the ship Herald, as in the case of of property

insured for Bell v. Bromfield (a), on a voyage at and from Virginia their joint use to her port or ports of discharge in the United Kingdom, joint account, or any ports or places in the Baltic, backwards and for- upon a count wards, &c. The same evidence was given, and the on the policy, same general questions arose in this as in the other case: terest to be in

one of them The policy was effected by the plaintiffs acting as a only. house of agency; and the only additional point made was upon the interest, which was averred in the different counts to be, Ist. in John Bell; 2dly, in John Bell and Wm. Cumming ; 3dly, in John Brown, Wm. Cumming, and James Brown. At the. trial before Lord Ellenborough, C. J. at Guildhall, the proof of interest in the goods, as it appeared by a letter of the 26th of January 1810, from John Bell, in Virginia, to Wm. and John Bell and Co., merchants, in London, and so found by the jury, was in John and Wm. Bell and John Brown ; and it was upon the order for an insurance contained in that letter that the insurance was effected on the 27th of March. The loss was averred to be by hostile capture, and the terms of the averment in the declaration as to the interest in John Bell, under which alone it was admitted that the plaintiffs could recover, if at all, were that the goods were loaded on board the said ship

(a) 15 East, 364.

in

1812.

BELL against ANSLEY,

in Virginia, on the 7th March 1810, “and that the said John Bell then and from thenceforth until and at the time of the loss, &c., was interested in the said tobacco, &c. to a large amount, to wit, to the amount of all the monies ever insured thereon.” And the only question was whether joint-owners could recover a loss insured on their joint account, upon an averment of interest in one of them only.

This question was discussed upon a rule for setting aside a verdict taken for the plaintiff at the trial, and entering a nonsuit, by leave of Lord Ellenborough, C. J. before whom the case was tried at Guildhall. The rule was supported in the last term by Garrow, Holroyd, and Scarlett; and opposed by The Attorney-General, Park, and J. W. Warren. The case was then directed to stand over for the consideration of the Court; and their opinion was now delivered by

Lord ELLENBOROUGH, C. J. This was a question of variance. The declaration was upon a policy, and upon the only count that could be supported, the interest was averred to be in John Bell; and the policy was stated to be made to and for the use and benefit and on the account of the said John Bell. The persons really interested were John Bell and his brother William Bell, and the policy was really made for their joint use and benefit, and on their joint account : and the question is whether, where several are jointly interested, and a policy is made on their joint account, it is sufficient to state that one of them was interested, and that the policy was made on his account : and we are of opinion it is not. By the stat. 19 Geo. 2. c. 37., insurances without interest, by way of gaming, except in certain excepted cases, are made

null

1812.

BELL against ANSLEY.

null and void to all intents and purposes; and since that statute the constant practice has been to state in whom the interest is, and for whom the policy was made, and to make that statement according to the real fact. It was contended upon the argument that the only object of the statement was to shew that the policy was not a wager policy, and that this object was sufficiently answered by specifying the name of any one of the interested parties. But we are of opinion that this is not the only object, and that the underwriters are entitled to have it stated truly upon the record whose interest the policy was to protect. Though an action upon a policy may be brought in the name of the person who effected it, though he be not the person actually interested ; yet the persons interested are so far looked upon as parties to the suit, that the declarations of any of them are received as admissible in evidence against the plaintiff, and what would be a defence against them is in many instances a defence against the plaintiff: and with a view to apprize the underwriter whose declarations it may be material for him to be prepared to prove, and whose case he is to meet, he ought to be truly informed by the record for whose interest and on whose behalf the policy was made. It certainly is material also, in point of public policy and convenience, that a disclosure of the true interest meant to be covered by the policy should be made, in order to exclude the property of enemies from the benefit of British insurance. Two cases were relied on by the plaintiff, Page v. Fry, 2 Bos. & Pull. 240., and Hiscox v. Barrett (a MS. case,) at Guildhall in December 1747, before Lee, C. J. The case of Page v. Fry, however, is clearly distinguishable : there, the interest was averred to be in Hyde and Hobbs : the policy was on.

goods,

1812.

BELL against ANSLEY.

goods, for which Hyde and Hobbs had paid, but the concern being too large for them, they had offered Hacks a joint concern, which he had accepted. It did not appear that Hacks even knew of the insurance; and the question discussed was, not upon the allegation that the policy was made upon the account and for the benefit of Hyde and Hobbs, but upon the allegation that Hyde and Hobbs were interested in the goods to a large amount, to wit, to the amount of all the money ever insured thereon. The counsel argued it upon the allegation of interest only. Lord Eldon says, The question is, whether Hyde and Hobbs had such an interest in the whole cargo as will support the averment in question ? And, after commenting upon an insurable interest, he concludes, I think the plaintiff (meaning probably Hyde and Hobbs,) had a sufficient interest throughout the intirety of the cargo, notwithstanding other persons had a beneficial interest in a part, to support the averment in this declaration. Heath, J. says, I do not see why a joint tenant or tenant in common has not such an interest in the intirety as will entitle him to insure. A policy made by a person so interested is not to be considered as a wager policy. Rooke, J. said, I think Hyde and Hobbs had such an interest in the cargo as will satisfy the terms of the averment. And Chambre, J. says, The averment in substance is nothing more than that the parties, for whose benefit the insurance was made, had an interest in the subject of the insurance : they are not bound by the terms of the averment to shew any thing more than that they have an interest; and if they shew an interest to the extent of one hundredth part of the cargo, it will be sufficient. The spirit of the stat. 19 G. 2. only “requires that the policy shall not be a gaming policy.” This case, therefore, seems to have

proceeded

1812.

BELL against ANSLEY.

proceeded entirely upon the allegation, that Hyde and
Hobbs were interested in the cargo, without taking into
consideration the circumstance of its being made for the
use or on the account of

any
other person

than them; and, on the contrary, considering them, and them only, as the persons making it, and without once referring to the allegation, that it was made for their use and on their account. The other case was that of Hiscox v. Barrett, before Lord C. J. Lee at Guildhall, December 21, 1747. It was an action on an open policy of insurance on goods; and in the declaration it was averred that the plaintiff was interested in the goods. On evidence it appeared that the plaintiff had indorsed upon the policy a declaration of trust, that it was for the benefit of himself and one Reynolds. But this did not appear upon the record; and the goods were proved to belong jointly to the plaintiff and Reynolds. The defendant subscribed the policy for 1001., and had paid 501. into court, because Reynolds was jointly interested, and therefore the plaintiff entitled only to a moiety; and that the action was improper; for the plaintiff having averred that he was interested, the action was brought by him as one of the cestui que trusts, who could not bring it alone : and he could not be interested in any other manner, because as a bare trustee he had no interest; and this being an open policy, he must recover upon an interest. But the Chief Justice inclined to think “that the action was properly brought; “ and that the plaintiff was entitled to recover the whole “ sum subscribed; because he was the person with 66 whom the contract was made, and appears to be interested to the value : and though he has upon the policy “ declared that another person is jointly interested with

him, yet there is no hardship on the defendant, who Vol XVI.

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