case george fitzgerald plaintiff Charles pole defendant in error saint march  Mews dig thirteen SC will insurance be make upon a privateer for a cruise of  four month the ship be value at pound without further account and free from  average during the cruise the crew mutiny and carry the ship into port whereby  the benefit of the cruise be lose but as the ship which be the thing insure  brown er p be in safety at the expiration of the four month the underwriter be  heid not to be liable judgement of the exchequer Chamber reverse judgement of  king b affirm see park on insurance c where it be say that the house of lord  confirm the judgement of reversal be of opinion with the majority of the judge  that the insurer be by the term of the policy free from all average the  plaintiff can not be entitle to recover but in case of a total loss and the  ship be find by the special verdict to be in good safety at her proper port at  and after the end of the four month for which the insurance be make there can  be no loss burrow cite in goss v wither Weskerts insurance p park Peter Joyce  a mariner be part owner of a ship call the goodfellow privateer together with  the other owner fit heir out in a warlike manner to cruiser against his  majesty enemy and obtain a proper commission for the at purpose from the lord  of the admiralty Mr Joyce be himself the master of the ship and abroad employ  messrs George fitzgerald uncle and nephew and partner to make a insurance for  his interest and use and they accord procure a policy of insurance for pound  to be sign by several underwriter among who the defendant Charles pole  underwrote for pound on the saint of August brown the purpose for which the  goodfellow privateer be fit out and employ during the time for which the  insurance be make be on the that of June total defeat by a mutiny of the  sailor on board their desertion from her and carry off the firearm belong to  the ship the plaintiff who have survive his uncle and partner in Hilary term  on the behalf and for the use of Peter Joyce bring a action in the court of  king bench against the defendant Charles pole to recover the money by he  subscribe as on a total loss for this purpose the declaration allege that on  the saint of August the say George the elder and George the young who the say  George the young have survive be partner together in the way of trade and  merchandise to wit at London aforesaid in the parish of saint mary Le bow in  the ware of Cheap and the say George the elder and George the young be so  partner together on the same day and year at London aforesaid in the parish  and ware aforesaid accord to the custom of merchant cause to be make a certain  write or policy of assurance purport thereby and contain therein that the say  George the elder and George the young by the name of George fitzgerald and  company as well in his own name as for and in the name and name of all and  every other person or person to who the same do may or shall appertain in part  or in all do make assurance and cause himself and they and every of they to be  insure lose or not lose at and from Jamaica to any port and place where and  whatsoever at sea or shore a cruise from port to port and place to place for  and during the term and space of four calendar month upon the body tackle  apparel ordnance munition artillery boat and other furniture of and in the  good ship or vessel call the goodfellow privateer whereof be master under God  for that present voyage Peter Joyce or whosoever else shall go for master in  the say ship or by whatsoever other name or name the same ship or the master  thereof be or shall be name or call beginning the adventure upon the say ship  etcetera from and immediate follow the that day of June then last and so shall  continue and endure until the say ship with all heir say tackle apparel  etcetera shall be arrive at any port and place where and whatsoever a cruise  from port to port and place to place for and during the term and space of four  calendar month commence as above write without prejudice to that insurance the  say ship etcetera for so much as concern the assure be and shall be value one  half part of the ship at pound sterling without further account to be give by  the assure for the same touch the adventure and peril which they the assurer  be content to bear and do take upon they in that voyage they be of the sea man  of war fire enemy pirate rover thief jettizons letter of mark and counterman  surprisal take at sea arrest restraint and detain brown er p ments of all king  prince and people of what nation condition or quality soever barratry of the  master brown and mariner and of all other peril loss and misfortune that have  or shall come to the hurt detriment or damage of the say ship etcetera or any  part thereof and in case of any loss or misfortune it shall be lawful to the  assure their factor servant and assign to sue labour and travel for in and  about the defence safeguard and recovery of the say ship etcetera or any part  thereof without prejudice to that insurance to the charge whereof they the  assurer will contribute each one accord to the fate and quantity of his sum  therein insure and it be agree by they the insurer that that write or policy  of assurance shall be of as much force and effect as the sure write or policy  of assurance theretofore make in Lombard street or in the royal exchange or  elsewhere in London and so they the assurer be content and do thereby promise  and bind themselves each for his own part their heir executor and good to the  assure their executor administrator and assign for the true performance of the  premise confess themselves pay the consideration due unto they for that  assurance by the assure at and after the rate of twenty guinea per cent and in  case of loss which God forbid the assure to abate but pound per cent the  assurer be free from all average of which say write or policy of assurance so  make as aforesaid he the say Charles afterward to wit on the say saint day of  August in the say year of our Lord at London aforesaid in the parish and ware  aforesaid have notice and thereupon he the say Charles afterward to wit on the  same day and year aforesaid at London aforesaid in the parish and ware  aforesaid in consideration that the say George the eider and George the young  at the special instance and request of the say Charles have undertake and then  and there faithful promise the say Charles to perform and fulfil every thing  in the say write or policy of assurance mention on their part and behalf to be  perform and fulfil and have then and there pay to the say Charles twenty  guinea as a reward for the assurance of pound upon the say premise mention and  contain in the say write or policy of assurance he the say Charles undertake  and then and there faithful promise the say George the elder and George the  young that he the say Charles will become and he do then and there become a  assurer to the say George the elder and George the young for the sum of pound  on the premise mention in the say write or policy of assurance and that he the  say Charles will perform and fulfil every thing in the say write or policy of  assurance contain to be perform on his the say Charles part and behalf as such  a assurer as to the say pound by he so assure and then and there subscribe the  say write or policy of assurance for the assurance of the say pound and the  say George the now plaintiff further say the say insurance so make by the say  George the elder and George the young as aforesaid be make for and on account  of and in trust for and for the use and benefit of Peter Joyce and that the  interest which the say Peter Joyce at the time of make the brown say insurance  as aforesaid and during the say cruise and voyager hereafter mention have in  the say ship be a privateer amount to a large sum of money to wit pound and  upward and that the say ship on the say that day of June in the say write or  policy of assurance mention in the say year of our Lord be at Jamaica  aforesaid in part beyond the sea in good safety set sail and depart from  thence in and upon her say intend voyage a cruise accord to the intention of  the say write or policy of assurance and from and after the say that day of  June be a cruise from port to port and place to place until the say ship  afterward and within the say four calendar month commence from the say that  day of June to wit on the d day of September in the say year of our Lord then  sail upon the high sea and at a great distance from Jamaica aforesaid and  proceed in her say voyage be in a mutinous manner by force and arm against the  will of the then master and officer of the say ship seize take restrain and  detain by the great part of the mariner then on board her and the command  direction and government thereof be take from the say master and the say ship  be not permit to sail and proceed in her say voyage a cruise any long but be  then and there contrary to and against the will of the say master and officer  by the say mariner in a mutinous manner carry back again to Jamaim aforesaid  where the brown er p say mariner afterward to wit on the that day of the same  September be then and there arrive with the say ship against the will of the  say master and officer run away from the say ship with the boat belong to the  same ship and total quit and desert her whereby and by mean whereof the say  ship do not nor can not perform her say voyage a cruise for and during the say  four calendar month accord to the intention of the say write or policy of  assurance but from the time of take seize and detain of the say ship as  aforesaid for and during the residue of the say four calendar month then to  come and unexpired be total disable to perform the same whereby the owner and  proprietor of the say ship total lose all profit benefit and advantage that  may have accrue to they in and from the say cruise during the residue of the  say four calendar month of all which premise the say Charles pole afterward to  wit on the saint day of may in the year of our Lord at London aforesaid in the  parish and ware aforesaid have notice and be then and there request by the say  George the elder and George the young to pay to they pound parcel of the say  pound deduct pound residue thereof in respect of the say loss which the say  Charles accord to the form and effect of the say write or policy of assurance  and of he say promise and undertake then and there ought to have pay to the  say George the elder and George the young to this declaration the defendant  plead the general issue and at the sit after Hilary term the cause be try  brown in London before the Lord chief justice by a special jury when at the  request of the defendant counsel a special verdict be find to the effect  follow that the say Charles on the say that day of August do sign and  subscribe the policy of assurance in the declaration mention in the word and  figure thereof as state in the declaration that the say ship goodfellow be  safe at Jamaica on the that of June and sail from thence the same day upon the  cruise in the policy mention and that the say ship be a English privateer and  duly commission as such that on the that of July the say ship goodfellow in  her say cruise meet with and take a French ship with money and good on board  to the value of pound sterling as a prize and that afterward to wit on the  saint day of August follow Peter Joyce the captain of the say ship goodfellow  be through illness unable to continue in the command of the say ship  goodfellow quit the say ship with the consent of all the crew thereof and the  first lieutenant John Hussey be by joint consent of the say captain and all  the sailor and mariner belong to the say ship appoint commander thereof that  the say ship goodfellow under the command of the say John Hussey on who the  say command will necessary have devolve in case of the captain Peter joices  death be sail on the say cruise for a port or place call the river of dog to  fetch water and afterward while the say ship be necessary sail for the river  of dog aforesaid and within the four month mention in the say policy videlicet  on the d day of September the crew of the say ship mutiny against the say  captain John Hussey and his officer and by force carry the say ship against  the will of the say captain John Hussey and other officer who can not resist  the same towards Jamaica and before her arrival in port there causeless  against the consent of the say captain John Hussey seize the boat firearm and  cutlass and carry off the same and desert the say privateer by which the say  voyage and cruise be total prevent and lose for the remainder of the say four  month from the say d day of September that the say ship arrive at Jamaica upon  the that day of September in the say year and be there in good safety at and  after the end of the four month aforesaid but be prevent by the say mutiny and  desertion from further pursue her say cruise that the insurance upon the say  ship goodfellow be make for the account of Peter Joyce the owner and also the  captain for the former part of the cruise and that the say Peter Joyce have  interest in the say ship goodfellow to the amount of the sum insure this ship  be afterward lose in a hurricane which happen in Jamaica on the that of  October and what be save out of the wreck do not answer the expense of the  savage but as this event happen four day after the expiration of the time  limit in the policy it do not fall under the consideration of the jury in this  action brown er p brown the special verdict come on to be argue in the court  of king bench in easter term when the court unanimous give judgement forth  plaintiff whereupon the defendant bring a writ of error in the exchequer  Chamber where the cause be argue and that court be please to reverse the  judgement of the court of king bench but to reverse this judgement of reversal  the present writ of error be bring in parliament and on behalf of the  plaintiff it be say W Murray a Hume Campbell to be find that by the mutiny  etcetera the voyage and cruise be total prevent and lose for the remainder of  the four month from the d of September that Peter Joyce have interest during  the cruise in the ship to the amount of the sum insure and that the ship be in  be at and after the end of the four month the general question therefore be  whether a event have happen upon which the underwriter by the term of the  policy be to pay though different account be give of the invention of  insurance yet they certain be bring into practice by merchant for the sake of  trade and in order to divide the risk the nature of the contract original be  that a specify voyage shall be perform free from peril and in case of accident  the insurer be for a certain price to bear the trader harmless hence it follow  that this contract original relate to the safety of a voyage particular  describe in respect either of a ship or cargo and that the insure can not  recover beyond the amount of his real loss therefore without abandon what be  save to the insurer he can not recover the whole value except in the case of a  total loss a very inaccurate form of this contract be ancient use among  merchant and draw by themselves it be bring into England by person who come  from abroad and settle in lombardstreet and the term of it though very  imperfect pen have acquire a sense from the usage of merchant the form be  follow to this day and every policy refer to those make in lombardstreet hence  contrary to the general rule parole evidence be admit to explain this contract  though in write and the word be control or liberal supply by the intent of the  agreement the usage of merchant and above all by judicial determination which  be the strong evidence of the receive law of merchant and upon these policy  the voyage and not the bare existence of ship and cargo be the subject matter  of the insurance in process of time however variation be make by express  agreement from the first kind of policy it be troublesome to the trader to  prove the value of his interest and ascertain the amount of the loss he give  the insurer a high premium to agree to estimate his interest at a precise sum  and to give up his claim to what may be save and the insure on the other hand  waive any claim of contribution in respect of accident which brown may  obstruct but not defeat the voyage to recover therefore upon this kind of  policy the insure need only prove that he have a interest without show the  value but case where it may not be proper for the trader to disclose the  nature of his interest introduce a three kind of policy where the insurer  dispense with the insure have any interest either in ship or cargo in these  two last kind of policy value free from average and interest or no interest it  be manifest that the performance of the voyage or adventure in a reasonable  time and manner and not the bare existence of the ship or cargo be the object  of the insurance and so it have often be adjudge Depaiba v Ludlow comens Rep  insurance on a hoy use for a packetboat from helvoetsluys to Harwich interest  or no interest without further account the hoy in her voyage be take by a  Swedish ship though no war then between Sweden and great Britain and after be  nine day in her custody the hoy be retake by a English man of war carry to  Copenhagen and from thence to Harwich where she be at the time of the trial a  verdict be give for the plaintiff subject to the opinion of the court of c b  the case be twice argue first by civilian and then by commonlawyers and the  court give judgement for the plaintiff though the ship be then in be at  Harwich the question be not whether the property of the ship be lose by the  capture but whether the capture be a peril insure against and have happen in  the voyage Barclay v collier b r mich insurance on the ship call the  ludlowcastle man of war from Jamaica to England interest or no interest free  of average etcetera the ship be in her voyage compel by storm at sea to put  into Antigua where admiral knoll be in want of a hulk for his majesty service  think proper to convert the ludlowcastle to that use but the treasure on board  her be bring home in the Scarborough the insure bring his action and though it  appear in evidence that the ship be exist and upon the establishment yet it be  determine and a verdict give by a special jury accord that the voyage from  Jamaica be lose the plaintiff be entitle to recover Stoney v brown b r Trin  insurance on the Sarah galley at and from London to Gibraltar and from thence  to London value at the sum insure this ship be charter from London for  Gibraltar and thence to the north to receiver order from the freighter and he  plaintiff be the sole owner of the ship the ship arrive at Gibraltar in June  and be load with wine by the freighter correspondent for her returnvoyage at  Gibraltar the ship be seize by the Salisbury and solebay man of war the  captain turn out of possession and several of the sailor impress the captor  proceed against the ship and cargo as forfeit but the ship be order to be  restore and be send by the freighter correspondent with a cargo for dunkirk  where she be afterward overset and lose a action be bring by the insure and  though it be rely on for the defendant that the ship be not total lose but  have be deliver after the capture to the agent of the freighter and by he send  on another voyage yet as the take at Gibraltar be a breach of the policy in  the voyage whereby the returnvoyage be prevent a special jury give the  plaintiff a verdict for a total loss and he have judgement accord Hanbury v  king b r mich insurance on the Anna at and from any port or place or degree of  latitude wheresoever the ship may be on the that of may to any port place and  degree of latitude until her arrival at London interest or no interest free of  average etcetera this ship be a tender to the ship send to the south sea under  the command of Lord anson and proceed to the island of Juan Fernandez where  she be unload and discharge the king service but be in want of store to return  to England she be sell by the captain for the use of the fleet for pound for  which he receive a bill on the commissioner of the navy which be afterward pay  to the plaintiff the sole owner together with the fraught and all the sailor  wage to the time of the sale of the ship the plaintiff also receive pound for  the fraught of the outward bind voyage and pound for seven month fraught as  the compute time for the ship return home a action be bring on the policy and  although it be insist on for the defendant that the ship have not be destroy  by any peril in the policy but sell by the owner for the use of government who  have for the conveniency of the service dispose of her as be think fit and  that the insure have actual receive a price and fraught for her as have  perform her homewardbound voyage so that if there be any loss in point of  value it will only be a partial and average loss which be express not to  charge the insurer yet upon all the above fact agree between the party as the  ship have be render incapable of perform the service for which she be fit out  videlicet attend the fleet in the south sea and home the plaintiff recover a  verdict for a total loss by a special jury agreeable to the direction of the  court dean v ditcher strange insurance on good in the Dursley galley interest  or no interest free of average etcetera at and from Jamaica to Bristol the  ship in her voyage be take by a Spanish privateer and carry into a port in  Spain where after be keep eight day she be cut out by a English privateer the  insure bring a action on the policy the insurer insist it be only a average  loss the ship and good exist and by statute be to be restore to the owner on  savage but it be determine by a special jury and a verdict give accord that  notwithstanding the existence of the ship and good yet the insure voyage be  lose the plaintiff be entitle to recover upon that policy Whitehead v species  of fish b r mich insurance on the dispatch galley interest or no interest free  of average etcetera from Jamaica to hull in her voyage she be take by a French  privateer and carry to hamburg and after be twelve day in the hand of the  enemy she be retake by a English ship and bring to London where she be adjudge  to be restore to the owner pay savage the owner sell the ship and pay the  savage a action be bring on the policy it be hold to have be a loss of the  voyage and the special jury give a verdict accord brown er p brown many other  kind of insurance upon other sort of thing in the nature of wager or bargain  upon contingency have be introduce as to which the agreement of the party be  the rule that govern as that a man shall live such a timeThat one man shall  outlive anotherThat a voyage shall be perform in a give timeThat a ship shall  arrive at such a port before such a fair And every other contingency may be  insure at a fix sum many merchant with a view to their own gain as well as the  public service desire to engage in fit out privateer the great expense of  which consist in the outset the victual store the advance money pay to the  sailor etcetera they bethink themselves whether they can divide the risk by  insurance by the first kind of insurance open policy they can not do it  because there be no cargo and the value of the ship be not the measure of the  owner expense and risk neither can they do it accord to the second or three  kind of policy as describe any particular voyage the brown er p way take  therefore be to insure the ship from all peril enumerate as a privateer to  cruise during a limit time and such insurance of privateer be a modern  practice the very end of this contract show that the capacity of the ship to  cruise notwithstanding the peril and not the existence or the property of the  ship at the end of the limit time be the subject matter of such a insurance  and this be not only the obvious meaning of the party to such a contract but  judicial determination have declare this to be the sense pond v king I Wilson  insurance for three month from the saint of December upon the salamander  privateer to any port or place whatsoever interest or no interest free of  average etcetera the privateer be take in the second month by a French man of  war who take the captain and most of his man with the commission and provision  on board his own ship and be carry his prize into France but soon afterward  the privateer be retake by a English ship which take her on a cruise and then  carry her into Lisbon where she remain a action be bring on the policy a  special verdict be find and upon argue it in the court of king bench judgement  be unanimous give for the plaintiff and no writ of error be ever bring against  this judgement Jenkins v Mackenzie mich insurance on a privateer for two month  in the first month she be take by the enemy and afterward retake by admiral  Martin who before the end of that month send her into Bristol the privateer  have receive no damage in the engagement in which she have be take but what  may have be repair without any great expense if she can have be put into a  dock but when she arrive at Bristol the dock be full and workman so scarce  that she can not be repair before the time in the policy expire the plaintiff  bring his action against which the defendant insist that the ship exist and he  not have insure against the fullness of dock and scarcity of workman he can  not be liable for a loss yet as the two month cruise be lose by a peril within  the policy the plaintiff have a verdict Fitzgerald v wainhouse b r mich a  action upon the very same policy now in question against another underwriter  in which the plaintiff declare verbatim as in this case it be defend at the  trial but a special jury give a verdict for the plaintiff agreeable to the  direction of the court and judgement accord the defendant indeed bring a writ  of error but despair of success suffer it to be nonprossed and pay the money  the legislature brown also have consider the insurance of privateer as  beneficial and plain understand that the existence of the ship be not the  subject matter of the insurance for a act of the Geo two c which prohibit  insurance interest or no interest provide that assurance on private ship of  war fit out by any of his majesty subject sole to cruise against his majesty  enemy may be make by or for the owner thereof interest or no interest free of  average and without brown er p benefit of savage to the assurer and there be  no occasion to except the case of privateer have the existence of the ship be  look upon as the only object for the value of the insurance may have be  confine to the interest in the ship upon some of these reason and authority as  well as other the court of king bench give judgement in this case for the  plaintiff but the objection to this judgement principal rely on be these I  that as the ship exist at the end of four month nothing be to be pay the  insurer only undertake that the ship shall not be total lose or destroy within  that time two that suppose the meaning be to insure the ship capacity to  cruise during four mouth notwithstanding the peril mention yet unless she be  prevent by any of the mean mention in the policy during the whole time nothing  be to be pay for the insurance must be take to be only against the entire loss  of the whole time but in this case the ship cruise for part of the time III  that if the ship capacity to cruise and not the bare existence of the ship be  the thing insure it be not find that Peter Joyce have any interest in the  cruise only that he be owner of and have interest in the ship during the  cruise as to the first objection it be say to prove that if during the whole  four month the ship have be by force turn into a fireship or transport detain  in port by a embargo take and keep by privateer arrest and detain by prince or  so disable in a storm the first day as not to be capable of go to sea during  brown the time provide the owner have the ship or her hull again the insurer  be to pay nothing but this beside contradict so many principle and authority  prove more than will be serious contend for as to the second objection accord  to that rate of argue if the ship be safe as any time on the that of June  there never can be a loss afterward and though she have be burn sink or take  on the that the insurer will not be liable which beside contradict all the  authority in the case of privateer in every one of which the ship have cruise  for some time reduce the four month to the first instant of that time and  therefore be a flat contradiction to the express term of the policy And to the  three objection it be answer that the property of the ship carry a interest in  her capacity to cruise a public law have give prize take by privateer to and  among the owner and owner of such ship or vessel and the several person who  shall be on board the same in such share and proportion as shall be agree on  with the owner or owner and to suppose the owner to have part with his whole  interest in the use of the ship during the cruise and yet to have retain his  interest in the privateer during the cruise be to make a intendment contrary  to the averment in the declaration and find of the verdict and to suppose a  case which never exist in fact namely that the owner of a ship let we her out  on fraught to cruise as a privateer but the party in this contract have agree  and understand that the use of this ship be attendant upon the property for  they have insure the ship capacity to cruise and value it on the ship last  that there have be judicial determination and one upon this very policy in  favour of what the plaintiff in error contend for unreversed and unappealed  from and people probable have transact loss upon their authority and enter  into contract accord to the sense judicial receive that in mercantile contract  especial for the sake of certainty it be better to adhere to decision even if  they be at first erroneous that all new contract be make in the sense of the  judicial determination and suppose a interpretation at first wrong it become  afterward unjust and high inconvenient to vary from it and therefore it be  hope that the judgement of the exchequer Chamber will be reverse and the  judgement of the court of king bench affirm on the other side it be contend r  Henley t jewel that the insurer be by the term of the policy free from all  average the plaintiff can not be entitle to recover but in case of a total  loss and the ship be find by the special verdict to be in good safety at and  after the end of the four month for which the insurance be make there can be  no such loss that the ship alone be insure and not the cruise and to contend  otherwise be not only contrary to the express word and plain meaning and  intention of the policy by which the ship alone be repeat express to be the  thing insure but it be also contrary to the nature of a insurance the safety  of the ship itself or of whatever else be the he brown er p brown mediate  object of the insurance be the only thing insure and not any uncertain benefit  which may arise to the owner by mean or in consequence of it nor can any such  consequential benefit be proper the subject matter of a insurance as it be not  capable of be estimate but suppose the cruise or the benefit of the cruise or  the free use of the ship for the cruise to have be the tile insure yet even of  any of these three there be no total loss the ship have actual cruise till  within about a fortnight of the whole time and take a rich prize of the value  of pound sterling and suppose that what be find by the verdict amount to a  total loss of any of these yet it be not find nor be it aver in the  declaration that Peter Joyce for who benefit the insurance be make have any  interest in the cruise but only in the ship itself and to recover in a action  upon a value policy the plaintiff must aver a interest in his declaration and  prove it at the trial it be therefore hope that the judgement give for the  defendant will be affirm with cost after hear counsel for three day on this  writ of error the judge be direct to deliver their opinion upon the follow  question videlicet saint whether the fact find by the special verdict in this  cause do amount to a breach of the policy of insurance upon which the action  be bring d in case they do whether the want of a averment in the declaration  that the plaintiff or Peter Joyce be interest in the cruise therein mention be  a error in this record and the judge have take time to consider and differ in  their opinion they deliver they with their reason seriatim whereupon it be  order and adjudge that the judgement give in the court of exchequer Chamber  reverse the judgement give in the court of king bench shall be affirm and that  the record shall be remit and it be further order that the plaintiff in error  shall pay to the defendant in error pound for his cost in the house in a  memorandum on the back of the print case it be say that the judge of the king  bench be of opinion with the plaintiff on both the question that the rest of  the judge together with the Lord chancellor be of opinion against the  plaintiff on the first question and that as to the second question they differ  in their opinion jour vol p