Clendining v. Church , 3 Cai. Cas. 141 ( 1805 )

Per curiam, delivered by

Kent, C. J.

This must be considered in the light of a wager-policy. The words “ Policy to be proof of interest,” are not considered as being of themselves evidence of a wager-policy, 2 East, 390,^* although the statute of 19, G. 2. seems to prohibit policies with such clauses inserted, on the ground of their being wagers. Nor is the want in the declaration of an averment of interest in the plaintiffs, either in their own right or as trustees, to be considered as decisive evidence of no interest, since it has been ruled in the case of Nantes v. Thompson, 2 East 392, that such an averment is not requisite even in an interest-policy. But these circumstances taken in connection with a fact stated in the present case, that tíic captain was owner of the vessel, will determine the na-tore of die policy, especially as no agency or trust is any where pretended by the plaintiffs.

Assuming it then as a fact, that this is a wager-policy, the question is, whether the capture by the Spanish privateer amounted to a total loss ?

This was a bet upon the arrival of the vessel at Kingston in Jamaica. The perils which may have happened to the vessel on the voyage, are immaterial, provided she performed her voyage, for that determines the bet in favor of the insurer. It is stated that the vessel did arrive at Jamaica, and as no question is made about the particular port at which she arrived, we may intend that she arrived at Kingston. The intermediate capture was immaterial, as the voyage was performed before suit brought. This point does not, however, appear to be well settled in the books. Some of the cases, and particularly that of Dean v. Dicker, 2 Stra. 1250, go to prove, that even upon a wager policy, if the ship be taken, it is a total loss, however illegal the capture may be, and although the ship be taken or restored. Marshall, 424. But from what fell from Lord Mansfield, when speaking of the case of Pole v. Fitzgerald, in Goss v. Withers, 2 Burr. 695, and from what was observed by him, and the other judges of K. B. in Kulen Kemp. v. Vigne, 1 D. & E. 308, 310, the inference would rather seem to be, that a temporary capture, with a subsequent recovery and final arrival' at the port of destination, was not a total loss in the case of a wager-policy. This to me, appears to be the most advisable rule.

A temporary capture, in the case of an interest-policy, is a total loss only at the election of the insured, and unless he abandon pending the capture, he cannot make it a total loss. It is, therefore, not an absolute total loss, but a total loss at the election of the party. But in wager-policies, the loss should be absolutely and finally total, for otherwise a temporary embargo of only a day, without any other interruption of the voyage, would be a total loss, although the vessel should have arrived in safety. I the more readily adopt this opinion, because wager-policies ought not to be encouraged, and it is not pleasant that the time of the court should be occupied in discussing them.

* Nantes v. Thompson. Com. 361. 1. Wils. 2. Str. 1250. Willes Rep. 641. 2 Burr. 695. 1 D. & E. 304.