burrow glover versus black Tuesday that June SC black you respondentia and  bottomry interest must be express mention and specify in the policy but  special interest in good may be give in evidence if the circumstance of the  case shall admit of it distinguish simmonds v Hodgson bing Moo p Mackenzie v  Wilkinson lr ex ex d this be a case reserve at the sit before Lord Mansfield  at guildhall after Michaelmas term it be a action on the case upon a policy of  insurance bear date the that of a it seem by what be state as if there be no  other but Showler who be better than a labourer if so to what purpose shall  another appointment be make if only to appoint Showler by himself why not  quash it only as to the other?Note it afterward appear to the annotator from a  copy of the order of session t p part of S v sir I S burrow er p December make  on good and merchandise load or to be load on board the good shipor vessel  call the Denham whereof be master captain William tryon at and from Bengal to  any port or place whatsoever in the east Indies until her safe arrival in  London which policy be underwritten by the defendant for for a premium of per  cent the plaintiff declare for a total loss the defendant plead the general  issue the cause come on to be try at guildhall London on first December before  Lord Mansfield it appear in evidence that the defendant underwrite the policy  and receive the premium as state in the declaration that before the  underwriting of the policy the plaintiff have lend to William tryon the master  of the ship upon the good then load and to be load on board the say ship on  account of the say William tryon the sum of at respondentia for which a  respondentiabond be execute by captain tryon and one Joseph Bustoll to the  plaintiff the bind be in common form and recite that the abovenamed Alphonsus  glover have on the day of the date lend and advance unto the above bind  William tryon the sum of upon the merchandise and effect load and to be load  upon the account of the say William tryon on board the good ship or vessel  call the Denham of the burden of tun or thereabouts now in the river of Thames  whereof he the say William tryon be the commander and the condition be that if  the say ship shall with convenient speed proceed and sail from and out of the  say river of Thames on a voyage to part or place in the east Indies china  Persia or elsewhere beyond the cape of good hope and from thence shall sail  and return into the say burrow river of Thames at or before the end or  expiration of thirtysix calendar month to be account from the day of the date  of these present and that without deviation the danger and casualty of the sea  except and if the abovebounden William tryon and Joseph Bustoll or either of  they their or either of their heir executor or administrator shall within  thirty day next after the say ship or vessel shall be arrive in the say river  of Thames from the say voyage or at the end and expiration of the say  thirtysix month to be account as aforesaid which of the same time shall first  and next happen well and true pay or cause to be pay unto the say Alphonsus  glover his executor administrator or assign the sum of and S of lawful money  of great Britain together with and S of like lawful money by the month and so  in proportion for a great or lesser time than a month for all such time and so  many month as shall be elapse and run out of the say thirtysix month over and  above twenty month to be account from the date of these present or if in the  say voyage and within the say thirtysix month to be account as aforesaid a  utter loss of the say ship by fire enemy man of war or any other casualty  shall avoidable happen and the say William tryon and Joseph Bustoll or either  of they their or either of their heir executor or administrator shall within  thirtysix calendar month next after such loss pay and satisfy unto the say  Alphonsus glover his executor administrator or assign a just and  proportionable average on all the good and effect of the say William tryon  carry from England on board the say ship and all other good and effect which  the say William tryon shall acquire during the say voyage and shall not be  avoidable lose then the abovewritten obligation to be void or else to be and  stand in full force virtue and effect that on the first of march the say ship  Denham be at fort Marlborough in the east Indies within the limit insure and  have then and at the time of the loss hereafter mention diverse good and  merchandise on board her which be the property of the say William tryon and of  great value than all the money he have borrow that on the say first of march  the say ship with her lade on board her be burn at fort Marlborough aforesaid  and thereby all the good and merchandise aforesaid of the say William tryon we  re total consume and lose this proof be give of the plaintiff interest burrow  the jury find a verdict for the plaintiff subject to the opinion of the court  whether on this evidence the plaintiff be entitle to recover on this policy  see the statute of g c whereby it be enact that all money to be lend on  bottomry or at respondentia upon any ship belong to any of his burrow er p  majesty subject bind to or from the east Indies shall be lend only on the ship  or on the merchandise or effect on board of such ship and shall be so express  in the condition of the bind and the benefit of savage shall be allow to the  lender his agent or assign who alone shall have a right to make assurance on  the money so lend and no borrower of money on bottomry or at respondentia  shall recover more on any assurance than the value of his interest on the ship  or in the merchandise or effect on board exclusive of the money so borrow and  in case it shall appear that the value of his share in the ship or in the  effect on board do not amount to the full sum or sum he have borrow such  borrower shall be responsible to the lender for so much of the money borrow as  he have not lie out on the ship or merchandise load thereon with lawful  interest for the same together with the assurance and all other charge thereon  in the proportion the money not lie out shall bear to the whole money lend  notwithstanding the ship and merchandise be total lose this case be first  argue on Tuesday first of February by Mr Yates for the plaintiff and Mr Harvey  for the defendant and again on Tuesday that of April by Mr Morton for the  plaintiff and Mr solicitor general Norton for the defendant the counsel for  the plaintiff insist that the lender of this money have a interest in the good  though they be the property of the borrower the lender be the trader against  the risk of the sea respondentia be a interest that may be insure and it be  not necessary to specify in the policy that it be a respondentia interest only  which be insure it appear by g S c that a respondentia interest may be insure  as merchandise and this insurance be upon good and merchandise here can be no  fraud nor be any pretence of fraud prove if the insurer have have a double  interest both of good and of respondentia the insurance will have cover both  burrow they cite Godin et all v the London assurance company where Meibohm and  Tamez have both of they consign good to amyand and both insure and it be hold  that as each have a separate interest each may insure the counsel for the  defendant insist that the lender of money upon respondentia have no interest  at all in the good that the borrower either carry out or may acquire in India  and consequent he can not insure they the borrower have the whole disposal of  they he be only bind to allow for the savage if any happen upon the loss of  they the whole of the bind turn upon the ship return in safety the lender have  nothing to do with the good this therefore differ great from a mortgage where  the thing mortgage be bind to the payment of the debt and therefore a property  in the thing mortgage be vest in the mortgagee and he may insure it whereas  the lender on respondentia have no sort of property or interest either general  or special in the good upon east India voyage five thing may be insure  videlicet good respondentia bottomry fraught and the ship itself but it be  absolute necessary that each be particular specify in the policy and the  respondentia interest in this case ought to have be so for a insurance on a  ship be no insurance of fraught though it be the same owner much less be the  general insurance on good the property of one person a insurance of a  respondentiainterest of another person a insurance on good can only mean such  interest as the proprietor of the good have and here the property and  possession both remain in captain tryon only the underwriter ought to be  apprise what it be that he do insure and it be extreme easy for the insure to  specify this particular interest but the insurer can not otherwise be apprise  of it and it will be most unreasonable that the insure shall avail himself of  a conceal particular interest under a general expression contrary to custom  and usage there be a settle know form of insure the respondentia and the  bottomry interest specifical and nomination and this be the very first  instance of such a claim as this except that of one Mr Edward of a loss find  burrow upon a respondentiabond but there the insurer refuse to pay it and  Edward acquiesce and receive back his premium the custom of all insurance be  to mention the thing insure precise and a vide ante vol p burrow er p strong  reason why it ought to be ascertain be because the course of return the  premium or part of it differ accord to the different nature of the thing  insure the underwriter return to the insure so much of the premium as there be  in fact no risk upon but there will be a end of all chance of that if the  lender of money on respondentia can insure it as good for if the ship come  home safe he may receive his whole premium back upon show that he have no good  on board and yet may keep this his respondentia interest in petto to claim  upon it in case the ship shall be as it be here in fact lose therefore proof  of a respondentiainterest only be no evidence to subject the insurer to the  payment of the money thus pretend to be insure by the lender without specify  it accord to the latitude here take the insure may make his election after the  event and it will lie quite open to fraud and uncertainty if he shall be leave  to declare in future what it be that he mean to insure after the event have  happen this can notbut be introductive of fraud nay further this be a fraud  this money lend be to be repay on the return of the ship to the port of London  the risk be at and from London to London whereas the present insurance be only  at and from Bengal to London which be enough to answer for the safe bring home  of glover good from India but be only a insurance of half his  respondentiainterest as a insurer on respondentia run the risk of the whole  voyage therefore it never be original intend to include the respondentia  interest in the present policy so that here be a apparent fraud upon the face  of the policy by g c which be make to prevent wager policy the insure ought to  have a interest on board equal to the sum insure in respondentia insurance  there be always a clause that the respondentiabond shall of itself be a proof  that there be such a interest on board and the premium be accord many insurer  will riot insure respondentia interest at all and that very circumstance prove  that it ought to be specifical name burrow in case of a general average the  insurer of a respondentia interest never contribute the average be always  contribute to by the insurer on the good in godin case both the inn red have a  property in the good but that case be by no mean a proof that a respondentia  interest can be insure as good therefore they conclude that the plaintiff can  not recover upon this policy without show some interest in the good the  counsel for the plaintiff in reply say this be the plain case possible before  g c any man may have be insure though he have no interest at all since that  Act it be necessary to prove a interest a respondentiainterest be a interest  and there be no more reason for specify this interest than for specify the  particular sort of good insure the plaintiff be a creditor upon the voyage and  he have prove his loss the underwriter can not have be in a better case if he  have know what sort of interest the plaintiff have than if he do not know it  nor can he have expect a large premium it may perhaps sometime be the interest  of the respondentia creditor to name it in the policy because it free from  average and he be yet entitle to the benefit of savage as to fraudThe lender  may have be satisfy to stand his own insurer outward and may afterward see  reason to insure his interest homeward but no fraud appear nor be there the  least attempt to prove any therefore none shall be presume or imagine the  court take some time to think of this case and now Lord Mansfield deliver  their resolution which he say they have very full consider he own that at the  trial and also since upon the argument here he do lean to support this  insurance and his reason for so do be that he be satisfy of its be a fair  insurance and that the doubt which have burrow arise upon it be only occasion  by a slip in omit to specify as it be intend to have be do that this be a  respondentia interest lege recover sect burrow er p the ground of support this  insurance if it can have be support be a clause of the Act of g c videlicet  the that section which run in these word that all and every sum and sum of  money to be lend on bottomry or at respondentia upon any ship or ship belong  to any of his majesty subject bind to or from the east Indies shall be lend  only on the ship or on the merchandise or effect load or to be load on board  of such ship and shall be so express in condition of the bind and the benefit  of savage shall be allow to the lender his agent or assign who alone shall  have a right to make assurance on the money so lend and no borrower of money  on bottomry or at respondentia as aforesaid shall recover more on any  assurance than the value of his interest on the ship or in the merchandise or  effect load on board of such ship exclusive of the money so borrow and in case  it shall appear that the value of his share in the ship or in the merchandise  or effect load on board do not amount to the full sum or sum he bath borrow as  aforesaid such borrower shall be responsible to the lender for so much of the  money borrow as he bath not lie out on the ship or merchandise load thereon  with lawful interest for the same together with the assurance and all other  charge thereon in the proportion the money not lie out shall bear to the whole  money lend notwithstanding the ship and merchandise be total lose now this Act  to the purpose of insurance consider the borrower as have a right to insure  only for the surplus value over and above the money he have borrow on bottomry  or at respondentia and lender at respondentia or on bottomry may to many  purpose be say to have a lie yet we be all very well satisfy after a more  particular consideration that this Act of parliament never mean or intend to  make any alteration in the manner of assurance its view be to prevent game or  wager policy where the insurer have no interest at all and if the lender of  money at respondentia be to be at liberty to insure for more than his whole  interest it will be a game policy for it be obvious that if he can insure all  the good and insure his respondentia interest beside this will amount to a  insurance beyond his whole interest burrow the Act consider the form of the  policy just as they stand before the make of it and provide that on all action  bring on policy of assurance the plaintiff or his attorney or agent shall  within fifteen day after he shall be require by the defendant or his attorney  or agent declare in write what sum or sum he bath assure or cause to be assure  in the whole and what sum he bath borrow at respondentia or bottomry for the  voyage or any part of the voyage in question in such suit or action and in  describe respondentiainterest it give the lender alone a right to make  insurance on the money lend so that this Act leave it upon the practice his  lordship say he have look into the practice and he find that bottomry and  respondentia be a particular species of insurance in themselves and have take  a particular denomination and he can not find even a dictum in any writer  foreign or domestic that the respondentiacreditor may insure upon the good as  good and in this very case the respondentiainterest be intend to have be  specify but be omit to be so by mistake he declare that he find by talk with  intelligent person very conversant in the knowledge and practice of insurance  that they always do mention respondentia interest whenever theymean to insure  it this their present determination will not he say interfere with that of  Godin et be eager or anxious v London assurance company with regard to a lie  on the good because this kind of interest have take a particular denomination  it may be great inconvenient to introduce a practice contrary to general usage  and there may be some open to fraud if it be not specify he declare the ground  of the present resolution to be this that it be establish now as the law and  practice of merchant that respondentia and bottomry must be mention and  specify in the policy of insurance but he declare at the same time that they  do not mean to determine general I that no special interest in good may be  give in evidence in other case than those of respondentia and bottomry if the  circumstance of the case shall admit of it plaintiff to be nonsuit vide S  burrow er p