burrow lewis and another versus rucker Saturday d may a value policy be not to  be consider as a wager policy refer to Balmoral steamship company v marten  king b a c a rule have be obtain by the plaintiff the insure for the defendant  the insurer to show cause why a verdict give for the defendant shall not be  set aside and a new trial have the court after hear the matter full debate by  the counsel on both side take time to advice and Lord Mansfield now deliver  their resolution in do which he state every thing requisite to be know in so  full and ample a manner as to render it quite unnecessary and even impertinent  for I to pretend to prefix any preface or introduction to it what he say be to  the follow effect this be a action bring upon a policy by the plaintiff for Mr  James Bourdieu upon the good aboard a ship call the vrow Martha at and from  saint Thomas island to hamburg from the load at saint Thomas island until the  ship shall arrive and land the good at hamburg or Wingate yet see salk pl king  v chandler m Ann b r most direct a point to the contrary be a conviction on  the very same Act of parliament for that Act give no pecuniary forfeiture  burrow er p the good which consist of sugar coffee and indigo be value at l  per hogshead the play sugar and l per hogshead the muscovado sugar and the  coffee and indigo be likewise respective value the sugar be warrant free from  average under per cent and all other good free from average under per cent  unless general or the ship be strand in the course of the voyage the sea water  get in and when the ship arrive at hamburg it appear that every hogshead of  sugar be damage the damage the sugar have sustain make it necessary to sell  they immediate and they be accord sell and the difference between the price  which they bring by reason of the damage and that which they may then have be  sell for at hamburg if they have be sound be as l S d per hogshead be to S d  per hogshead I e if sound they will have be worth S d per hogshead as damage  they be only worth l S d a hogshead the defendant pay money into court by the  follow rule of estimate the damage he pay the like proportion of the sum at  which the sugar be value in the policy as the price of the damage sugar bear  to burrow sound sugar at hamburg the port of delivery all this be admit at the  trial though perhaps upon a accurate computation there may be a mistake of  about S upon the money pay in but no advantage be attempt to be take of this  slip at the trial it be admit that the money pay in be sufficient if the rule  by which the defendant estimate the loss be right and the only question at the  trial be by what measure or rule the damage upon all the circumstance of this  case ought to be estimate to distinguish this case under its particular  circumstance out of any general rule the plaintiff counsel call Mr Samuel  Chollett clerk to Mr Bourdieu who prove that upon the that of February the  time of the insurance sugar be worth at London and hamburg a hogshead that the  proposal of a congress to be hold and the expectation of a peace have on a  sudden sink the price of sugar that before the ship arrive at hamburg and  before he can know that the sugar have receive any damage Mr Bourdieu have  send order that the sugar shall be house at hamburg and keep till the price  shall rise above a hogshead that he have many hundred hogshead of sugar lie at  Amsterdam to which place he send the like order that in fact the congress not  take place sugar arise per cent that what he sell of the sugar he have at  Amsterdam bring per hogshead and upward that he may have sell these sugar at  the same price if they have be keep accord to his order and the only reason  why they be not keep be because they be render perishable from the seawater  which have get in therefore aid they the necessity of a immediate sale and the  consequence thereof ought to be compute into the damage the special jury among  who there be many know and considerable merchant find the defendant rule of  estimation to be right and give their verdict for he they understand the  question very well and know more of the subject of it than any body else  present and form their judgement from their own notion and experience without  much assistance from any thing that pass the counsel for the plaintiff in the  outset chief rest upon the particular circumstance of this case the counsel  for the defendant offer to call witness to prove the general usage of estimate  the quantity of damage where good be injure I be at first strike with the  argument that the immediate necessity of sell in this case may be take into  consideration as a exception to the general rule and burrow propose that the  cause may be leave to the jury upon that point then Mr win for the defendant  argue that the necessity of sell and the consequence thereof ought not to be  regard and what he say have so much weight that it very much change my way of  think there be nothing to sum up but the jury ask whether I will give they any  direction say I leave it to they whether the difference between the sound and  the damage sugar at the port of delivery ought to be the rule or whether the  necessity of a immediate sale certain occasion by the damage and the loss  thereby shall be take into consideration I tell they though it have strike I  at first that this case may be a exception yet what the counsel for the  defendant have say to the contrary seem to have great weight burrow er p the  counsel for the plaintiff not have reply nor go into the general argument upon  a apprehension that my opinion be with they upon the particular circumstance  of this case be dissatisfy with the verdict and say they will try the other  cause in the paper upon the same policy but instead of that they have move for  a new trial in this cause which I be extreme glad of No fact be dispute the  only question be whether all the fact be agree the jury have estimate the  damage by a proper measure to make the matter more Intelligible I will first  state the rule by which the defendant and jury have go and then I will examine  whether the plaintiff have show a better the defendant take the proportion of  the difference betweensound and damage at the port of delivery and pay that  proportion upon the value of the good specify in the policy and have no regard  to the price in money which either the sound or damage good bear in the port  of delivery he say the proportion of the difference be equal the rule whether  the good come to a rise or a fall market for instance suppose the value in the  policy O1 They be damage but sell for if they have be sound they will have  sell for O1 The difference be a five the insurer then must pay a five of the  prime cost or value in the policy that be l e converso If they come to a lose  market and sell for be damage but will have sell for u if sound the difference  be one half the insurer must pay half the prime cost or value in the policy  that be l burrow to this rule two objection have be make first objection that  it be go by a different measure in the case of a partial from that which  govern in the case of a total loss for upon a total loss the prime cost or  value in the policy must be pay answer the distinction be find in the nature  of the thing insurance be a contract of indemnity against the peril of the  voyage the insurer engage so far as the amount of the prime cost or value in  the policy that the thing shall come safe he have nothing to do with the  market he have no concern in any profit or loss which may arise to the  merchant from the good if they be total lose he must pay the prime cost that  be the value of the thing he insure at the outset he have no concern in any  subsequent value so likewise if part of the cargo capable of a several and  distinct valuation at the outset be total lose as if there be hogshead of  sugar and ten happen to be lose the insurer must pay the prime cost of those  ten hogshead without any regard to the price for which the other ninety may be  sell but where a entire individual as one hogshead happen to be spoil no  measure can be take from the prime cost to ascertain the quantity of such  damage but if you can fix whether it be a d that or that worse the damage be  fix to a mathematical certainty how be this to be find out not by any price at  the outset port but it must be at the port of delivery where the voyage be  complete and the whole damage know whether the price there be high or low in  either case it equal show whether the damage good be a three a four or a five  worse than if they have come sound consequent whether the injury sustain be a  three four or five of the value of the thing and as the insurer pay the whole  prime cost if the thing be whole lose so if it be only a d that or that worse  he pay a d that or that of the value of the good so damage d obj the next  objection with which this case have be much entangle be take from this be a  value policy I be a little at a loss to apply the argument draw from thence it  be say that a value be a wager policy like interest or no interest if so there  can be no average loss and the insure can only recover as for a total abandon  what be save because the value specify be fictitious burrow answ a value  policy be not to be consider as a wager policy or like interest or no interest  if it be it will be devoid by the Act of g c the only effect of the valuation  be fix the amount of the prime cost just as if the party admit it at the trial  but in every argument and for every other purpose it must be take that the  value be fix in such a manner as that the insure mean only to have a indemnity  if it be undervalue the merchant himself stand insurer of the surplus if it be  much overvalue it must be do with a bad view either to gain contrary to the  burrow er p that of the late king or with sole view to a fraudulent loss  therefore the insure never can be allow in a court of justice to plead that he  have great overvalue or that his interest be a trifle only it be settle that  upon value policy the merchant need only prove some interest to take it out of  g because the adverse party have admit the value and if more be require the  agree valuation will signify nothing but if it shall come out in proof that a  man have insure l and have interest on board to the value of a cable only  there never have be and I believe there never will be a determination that by  such a evasion the Act of parliament may be defeat there be many convenience  from allowingvalued policy but where they be use mere as a cover to a wager  they will be consider as a evasion the effect of the valuation be only fix  conclusively the prime cost if it be a open policy the prime cost must be  prove in a value policy it be agree to argue that there can be no adjustment  of a averageloss upon a value policy be direct contrary to the very term of  the policy itself it be express subject to average if the loss upon sugar  exceed per cent if it be not the consequence will not be that every partial  loss must thereby become total but the event to entitle the insure to recover  will not happen unless there be a total loss consequent the plaintiff in this  case will not be entitle to recover at all for there be no colour to say this  be a total loss beside the plaintiff have take to the good and sell they in  opposition to the measure the jury have go by the plaintiff contend that they  ought to be pay the whole value in the policy upon one of two ground burrow  first because the general rule of estimate shall be the difference between the  price the damage good sell for and the prime cost or value in the policy here  the damage sell at l S d per hogshead and the underwriter shall make it up l  answ it be impossible this shall be the rule it will involve the underwriter  in the rise or fall of the market it will subject he in some case to pay vast  more than the loss in other it will deprive the insure of any satisfaction  though there be a lease for instancesuppose the prime cost or value in the  policy l per hogshead the sugar be injure the price of the best be l a  hogshead the price of the damage be l S the loss be about a forty and the  insurer will be to pay above a three suppose they come to a rise market and  the sound sugar sell for l a hogshead and the damage for l the loss be a eight  yet the insurer will be to pay nothing the d ground upon which the plaintiff  contend that the shall be make up be that it appear the sugar will have sell  for that price if the damage from the seawater have not make a immediate sale  necessary the moment the jury bring in their verdict I be satisfy that they do  right in total disregard the particular circumstance of this case and I write  a memorandum at guildhall in my notebook that the verdict seem to I to be  right as I expect the other cause will be try I think a good deal of the point  and endeavour to get what assistance I can by converse with some gentleman of  experience in adjustment the point have now be very full argue at the bar and  the more I have think the more I have hear upon the subject the more I be  convince that the jury do right to pay no regard to these circumstance the  nature of the contract be that the good shall come safe to the port of  delivery or if they do not to indemnify the plaintiff to the amount of the  prime cost or value in the policy if they arrive but lessen in value through  damage receive at sea the nature of a indemnity speak demonstrable that it  must be by put the merchant in the same condition relation be have to the  prime cost or value in the policy which he will have burrow be in if the good  have arrive free from damage that be by pay such proportion or aliquot part of  the prime cost or value in the policy as correspond with the proportion or  aliquot part of the diminution in value occasion by the damage the duty accrue  upon the ship arrival and land her cargo at the port of delivery the insure  have then a right to demand satisfaction the adjustment never burrow er p can  depend upon future event or speculation how long be they to wait a week a  month or a year in this case the price rise but if the congress have take  place or a peace have be make the price will have fall the defendant do not  insure that there shall be no congress or peace it be true Mr Bourdieu act  upon political speculation and order the sugar to be keep till the price shall  be or upward but no private scheme or project of trade of the insure can  affect the insurer he know nothing of it the defendant do not undertake that  the sugar shall bear a price of a hogshead if speculative destination of the  merchant and the success of such speculation be to be regard it will introduce  the great injustice and inconvenience the underwriter know nothing of they the  order here be give after the sign of the policy but the decisive answer be  that the underwriter have nothing to do with the price and that the right of  the insure to a satisfaction where good be damage arise immediate upon their  be land at the port of delivery we be of opinion that the plaintiff be not  entitle to have the price for which the damage sugar be sell make up per  hogshead and it seem to we as plain as any proposition in Euclid that the rule  by which the jury have go be the right measure the rule must be discharge