brown case robert mac nair appellant james coulter and other respondent that  February Mews dig thirteen scot r r in the case of a value policy on both ship  and cargo the assure must recover the whole sum underwritten because he can  not have any claim for a return of premium for short interest if the ship have  arrive safe interlocutor of the court of session in Scotland reverse and the  cross appeal dismiss of policy there be two kind value and open the difference  be that in the former property insure be value at prime cost at the time of  effect the policy in the latter the value be not mention in the case of a open  policy the value must be prove in the other it be agree and it be just as if  the party have admit it at the trial burr a value policy be not a wager policy  it originate from the circumstance of its be sometime troublesome to the  trader to prove the value of his interest or to ascertain the quantity of his  loss he therefore give the insurer a high premium to agree to estimate his  interest at a sum certain in this case the plaintiff must prove some interest  although he need not prove the value of his interest but if a value policy be  use mere as a cover to a wager in order to evade the statute Geo two c it will  be void burr burr park c in the year Robert Mac nair the appellant in the  original appeal be concern in a sugarhouse at Glasgow in Scotland and be  desirous of they brown er p ploying his son James Mac nair he resolve to send  he out with a adventure of merchandise to barbados and to encourage he and  engage his attention and application to business the appellant give he one  four share in the adventure the appellant then fraught a ship at Glasgow and  ship a cargo on board her with which James Mac nair proceed to barbados where  have arrive he put his cargo under the care of messieurs harvey merchant there  to who he be address but find some difficulty at barbados to sell to advantage  all the merchandise he carry out messieurs harvey recommend what remain  undisposed of to Virginia and accord the same be ship in a proper vessel and  James Mac nair go in her as supercargo at Virginia he dispose of the whole of  his adventure and purchase of messieurs Hutchins and Tucker merchant there a  small ship or vessel call the Jean not exceed eighty tun burden for which and  her boat tackle and apparel he pay pound Virginia currency be equal to pound  sterling as appear by the bill of sale make thereof to he date the that of  November on the saint of November James Mac nair write a letter to the  appellant date at Virginia wherein inter alian he say I have purchase a vessel  of fortyseven foot keel for pound current money and be now purchase her a  cargo for barbados in order for purchase sugar again this vessel I have  purchase I believe she will answer you very well she be a brown new vessel  never be out to sea yet which will prove to your contentment her name be the  Jean have thus purchase the Jean ready fit and equip he get a cargo for her  and proceed therewith back to barbados and afterward return again to Virginia  where he then load another cargo in the Jean to be carry to barbados the  insurance make on the Jean and her cargo for this last voyage wall the subject  of the present dispute between the party on the that of may James Mac nair be  at Virginia write a letter to his father wherein after mention several  particular relative to the disposal of her last cargo he proceed to acquaint  he with the value of the cargo which he then intend to ship for barbados in  the follow word videlicet you advice I to acquaint you of the value I will  have on board in case you maker insurance she meaning the ship Jean will carry  barrel of corn which amount to pound and about sixty barrel of pork at S per  barrel pound total amount pound but she will not carry near the amount of the  cargo that I have buy here of which I must take bill for the remainder on the  d of the same month he write another letter from Virginia to the appellant  wherein he acquaint he that he hope to sail in about ten day and when at  barbados will write to he on the that of June the appellant by Mr stalker his  broker cause a policy of insurance to be effect at Glasgow fill up in the name  of the appellant and company meaning his son the say James Mac nair in the  usual form insure against the usual peril of the sea etcetera upon the say  ship Jean and her cargo for a voyage from Virginia to barbados and James Mac  nair be therein mention as master of the ship the ship and her cargo be  therein value at pound without any further account to be give by the assure to  the assurer or any of they for the same accord to which particular sum all  loss be to be pay by the underwriter proportionable to the several sum by they  underwritten and the assurer confess themselves pay the consideration or  premium at the rate of pound I S per cent and it be thereby agree that in case  of any loss there shall be a abatement of pound per cent at payment thereof  this policy of insurance be underwritten by the respondent coulter and bogle  for pound each by the respondent Graham and cross for pound each by Archibald  Ingram James Spreul and George Buchanan since decease for pound each and by  one James Johnson for pound so that the sum of pound in the whole be  underwrite and insure by the say policy of insurance when this policy be  effect the appellant do not produce to the underwriter the letter he have  receive front his son James Mac nair date the that of may wherein the son  inform he that the total value of his whole cargo on board will not exceed  pound neither do the appellant acquaint the underwriter with the kind of  vessel the Jean be or that she with her boat brown and all her tackle etcetera  cost only pound sterling although he be possess of a full knowledge of these  fact from his son letter of the saint of November and that of may and brown er  p from which he know or be acquaint that the value of both the ship and all  her cargo will not exceed sterling on the that of June the say ship Jean sail  from Hampton road in Virginia with some corn and other merchandise on board on  her say insure voyage to barbados but have lose a anchor and cable she put  back and sail again on the that of the same month on which day James Mac nair  write to his father the follow extraordinary letter which appear to be date at  Virginia the say that of June honour sir I meeting with this opportunity think  fit to acquaint you of my be in good health hope that you and all the family  be in the same I be here lie for a fair wind and all clear to sail of which  you have a account of the value of you I have on board and also of Baillie  James smith videlicet bushel Indian corn at S per bushel and fortyfive barrel  pork at pound per barrel and fifty barrel tar at S d per barrel barrel staff  at pound per thousand and of live stock and other good to the amount of pound  and the value of the vessel which amount to pound odd money sterling which in  all amount to pound S sterling and as I have do the utmost in my power since I  leave you concern your good and Baillie James smith of which there be pound of  his to be deduct out of the above sum of which I have make Thomas Craig master  of the bring Jean for barbados and then to Glasgow and as he be a young man  and I can get no other you will please insure at least pound sterling and that  you need not fear that it be more than the value that I have on board neither  delay any time after you receive this letter in get insurance for if you do  fail you may perhaps be a sufferer and acquaint Baillie James smith concern  his value that in case the vessel meet with any accident that he need not  blame I in not advice he but be sure you do not neglect to insure the above  value of you in time for there be a island call Bermuda that lie betwixt  Virginia and barbados that I be very much afraid of and that there be strange  notion run in my head that I will meet with some accident about it and I beg  of you to lose no time in insure the whole as all be well yet be sure that in  case you mistake and have any doubt about the master name be Thomas Craig  master of the Jean brigantine her burden be about tun I write you before that  I carry command of her but in case of insurance and any misfortune happen I be  a young man the insurer may have reflect on I but as I have put in a man that  have serve his time to the sea and be experience that way they can make no  reflection and I shall act every thing as if the whole be insure and hope as  before you will lose no time and I will not fail in it for I be very eager on  insurance brown as we be all bear to misfortune and in a postscript to this  last letter he add when you receive this letter if you can get insurance in  Glasgow be sure to write direct to London it do not clear appear on what day  the appellant receive this last letter from his son but it be evident he  receive it previous to or on the that of August and have communicate it to  Baillie James smith for on the that of August the appellant write a letter to  the say James Mac nair wherein he acknowledge the receipt of his say letter of  the that of June and give he very particular instruction about make out his  invoice and bill of lade in the follow word videlicet you will be sure to  write Mr David curry merchant in London what value you will have both of ship  and cargo for our account and you will also advice Mr David curry what effect  you will have of Baillie smith so as he may make insurance for he also and  what you order for he you will mark I S and what you bring for we you will  mark r m you will take care your invoice be clear and send we a copy of they  by London and also by any other ship offer for our place we will not grudge  the postage of at least three of they I make insurance from Virginia to  barbados for pound and have write to Mr curry to insure what you write for and  have receive his advice that he will do it as soon as you advice he and in  case of any misfortune the bill of lade and the invoice that you send by  London or any other ship will prove the value lose and on the same day Baillie  James smith write a letter to Mr David curry desire he to make insurance for  he for pound sterling for good on his account from Virginia to barbados on  board the Jean brigantine Thomas Craig master and add I be advice she be wait  for a wind and clear to sail the that of June last brown er p the appellant be  not satisfy with the insurance for pound which he have effect previous to his  receipt of his son letter of the that of June for it be in proof that on the  that of August he go to one Mr John Jamieson of Glasgow in order to effect a  further insurance but upon read the letter Jamieson answer that consider the  content of it he will not insure pound for pound premium and upon the  appellant ask the reason Jamieson reply that the good be over value in the  letter and that he do not like the dream which to he look like a wake dream  this answer and refusal do not however put a stop to the appellant attempt to  effect a further insurance for on the next day he give the follow order in  write to Mr stalker his broker for that purpose videlicet good aboard the Jean  brigantine Thomas Craig master bushel of corn at S pound barrel staff at S  pound fortyfive barrel pork at S pound fifty barrel tar at S pound live stock  and other good pound the vessel pound pound brown Mr Andrew stalker above be a  note of the value of ship and good fraught and of the Jean brigantine Mr  Thomas Craig master from Virginia to barbados which I value at pound sterling  when at barbados and desire you as there be only pound sterling insure that  you will get pound more insure in the term you get the other pound done My  last advice be date Virginia June that she be then clear to sail Yours Robert  Mac nair under this order stalker effect a further insurance for pound on the  Jean and her cargo but which he will not have effect nor will any insurer have  underwrite it have he be make acquaint of the ship have only cost pound and  with the content of the say letter of the that of may and that of June or  either of they not only for the reason hint at by Mr Jamieson but because on  be tell how small the vessel be and what a trifle sum she cost and upon  compare the appellant order to Mr StaIker with both or either of the son  letter of the that of may and that of June the very great difference between  the son first and second letter as to the quantity and value of the cargo and  the difference make also by the appellant even from both his son letter by his  order to Mr stalker be too strike not to draw the attention of any main and  deter he from become a underwriter on a policy where every circumstance must  inform he or give he the strong reason to believe that a fraud be intend soon  after this last insurance be effect the underwriter on both policy be call  upon for a total loss it be allege that the say ship Jean have strike upon the  rock which lie out near upon the island of Bermuda on the north side thereof  the crew thereupon leave her and land in the ship boat on the say island and  that the ship be there wreck she and all her cargo be lose save a few trifle  which produce about pound S Bermuda be many league out of the usual due course  off the voyage from Virginia to barbados the underwriter on both the policy  refuse to pay the loss and the appellant and underwriter on the say last  policy whereon pound be underwrite have agree upon a reference the arbitrator  after examine the evidence letter and paper have no difficulty in award the  appellant to deliver up this policy to be cancel the great difference and  contradiction between the content of James Mac Nairs letter to the appellant  of the saint of November the that of may and that of June couple with proof of  his great overrate the burden of the ship so very considerable over value both  her and the cargo and represent the cargo to consist of so much more than it  actual do consist of together with a vast variety of other circumstance  respect the character and conduct of James Mac nair all of which be in  evidence in the present cause furnish the underwriter on the policy in  question with the strong ground to conclude that brown he have wilful cast  away the ship and her cargo and therefore he be in march bring to a criminal  trial in the high admiralty court of Edinburgh but it unfortunate happen that  none of the crew can be find to give evidence except the second mate and a boy  from who every thing during the voyage have be industrious conceal the  evidence be think insufficient to induce a conviction and therefore he be  acquit though not very honourable for the jury return the follow verdict  videlicet they unanimous find the panel have endeavour to defraud the insurer  by give order to insure brown er p a great quantity of good than the ship Jean  brigantine can hold and by put a value both upon his ship and cargo much high  than their real worth but they be also unanimous of opinion that it be not  prove that he wilful cast away or destroy the ship and cargo at the time and  place libel or be art and part in so do the fact find by the former part of  this verdict together with the appellant conduct in obtain a further insurance  after he have receive his son say three letter and what the underwriter  conceive to be a notorious deviation couple with the very particular  instruction give by the appellant by the letter of the that of August to his  son James respect his make up and send home invoice and bill of lade induce  the underwriter from a principle of public as well as private justice to  commence a civil action in the same court against the appellant and his son to  reduce or vacate the policy in question and thereupon the appellant think  proper to commence a counter action in his own name against the underwriter to  compel payment from they of a total loss under the say policy these cause be  carry on with great spirit on both side and various question be make by the  counsel in the court below but the most material question be saint whether  there be any deviation from the due usual course of the voyage insure and if  there be then dly whether such deviation be wilful or only accidental but  suppose there be no wilful deviation then dly whether the underwriter be  liable to pay the appellant the full sum of pound under the valuation in the  policy or only so much as be the real exact and true value of the ship and  cargo insure a great variety of circumstantial and positive evidence be offer  by both party in support and contradiction of these question but the two first  respect the deviation be final settle upon a appeal to the house of lord by  the underwriter in march and therefore the notice the evidence relative to  those point be presume upon the present occasion to be unnecessary the  underwriter as to the d question insist that all insurance be a contract make  for the purpose of protect the property of a adventurer in ship and trade from  any loss which may arise by the peril of the sea and other peril insure  against brown on or for the particular voyage specify in the policy and if any  loss happen to the object of the insurance the assure be to be reimburse by  the insurer to the amount of the prime or first cost of the thing insure that  the assure ought never to gain more than the real value or amount of his loss  nor shall the underwriter ever pay less than the loss accord to the customary  and settle plan or rule of adjust loss on policy of insurance practice in the  country or place where such policy be effect that a over valuation in a policy  carry with it the strong badge of a bad or ill intent in the assure who never  will pay a premium for more than his real property unless he entertain some  doubt about the integrity or ability of the captain of the ship or about the  ship and propose to benefit by a loss that a over valuation be also contrary  to the spirit of the act that George two which be make to prevent the  pernicious practice of make insurance interest or no interest without further  proof of interest than the policy or by way of game or wager or without  benefit of savage to the assurer and the legislature seem to have have it in  view by this statute to correct two evil videlicet the obtain insurance upon  ship and cargo in which the assureds have no interest or if there be interest  the great over value that interest which be a temptation to the fraudulent  destruction of ship and also to oblige the assure to produce proof of interest  the appellant well know what be the customary method of settle loss at Glasgow  upon policy of insurance word like that in question and clear apprehend  himself oblige to prove the value of his ship and cargo in order to ascertain  the quantum of the loss to be pay by the underwriter and the underwriter  possess of a full knowledge of the custom of adjust such policy in Scotland  and therefore conceive themselves not liable under the say policy of insurance  to pay the appellant more than the real and true value and amount of the ship  Jean and such of her cargo as do not belong to Baillie James smith after  deduct the savage be pound S both party under this idea and brown er p satisfy  of its be the establish practice in Scotland for underwriter on policy word as  that in question to pay no more than the real true value or amount of the  property insure and to make a return of premium for short interest in case  where the ship perfect their voyage and there turn out to be short interest  enter into proof respect the value of both the ship and the cargo insure or  cover by the policy of insurance now in question but this evidence of value be  not before the court of admiralty when the decreet of the that of December be  pronounce the appellant endeavour to fix the value of the ship and cargo  insure at pound S d by produce a bill of lade sign by Thomas Craig as master  of the ship but what in fact be mate and a invoice appear to be date at  Virginia the that of June and sign by James Mac nair as follow videlicet to  brown barrel India corn at S d pound S d to fifty barrel pork at S pound S to  fifty barrel tar at s pound S to barrel staff at S pound to head at S pound S  the Jean cost charge and expense on her pound S d total pound S d the  underwriter on their part insist that this bill of lade and invoice be  fictitious and calculate by James Mac nair and his mate Thomas Craig who  appear to be privy to and assist he in his design to impose on they a value  great exceed the real and true value and that the value of the ship be clear  and indisputable fix by James Mac Nairs letter to the appellant of the saint  of November by the bill of sale of the ship from messrs Hutchins and Tucker  wherein pound Virginia currency equal to pound sterling be the consideration  and by the oath of John Hutchins and John Tucker who depose that they sell her  to James Mac nair for pound Virginia currency and as to the cargo a manifest  thereof from the naval officer at Virginia be produce in evidence which show  that bushel of corn thirtyfive barrel of pork fifty barrel of tar and barrel  staff be actual ship on board the Jean for the voyage in question and John  hood who furnish the cargo positive depose that the ship from her construction  can not stow or contain above eighty or eightythree tun of cargo and that he  be certain she can not have contain one half of the good mention in the bill  of lade produce by the appellant the good be represent therein as only half a  tun short of tun that James Mac nair tell the deponent he have write to the  appellant to make insurance on the ship and cargo to the extent of pound  sterling and thereupon the deponent say that it be too high a value but James  Mac nair answer that the same will be worth that or more when he come to  barbados and hood set the value of the whole cargo actual ship at pound S d  sterling in confirmation of hood evidence there be affidavit make by Robert  frank Thomas Godfrey John Hutchins and John Tucker who all have either be  owner or have sail between Virginia and barbados as master of the Jean before  James Mac nair buy her and they all prove that her burden correspond with the  evidence give by hood the only question before the admiralty court be respect  the deviation on the hear of the cause on the that of December the court of  admiralty assail the appellant Robert Mac nair from the reduction and decern  the underwriter in payment to he of the sum by they several underwritten with  a discount of pound per cent in term of the policy and of pound S sterling as  the acknowledge value of what be recover of the wreck and the underwriter be  further decern in payment to the appellant Robert Mac nair of pound S as the  expense of extract the decreet brown the underwriter be great dissatisfy with  this decree exhibit a bill of suspension to the court of session after which  James Mac nair die and as to he the action abate but it be afterward revive  against his brother and representative Robert Mac nair jun and after the party  have enter into evidence touch the value of the ship and cargo the cause come  on to be hear before the lord of session when their lordship by a majority of  six to five find the wilful deviation not prove and accord on the that of  February pronounce the follow interlocutor on the report of the Lord  Auchinleck the lord repel the objection to the policy of insurance upon the  act of the that of his late majesty find it not prove that there be any wilful  deviation in the voyage from Virginia brown er p to barbados find the policy  of insurance do not in this case oblige the insurer to pay the sum at which  the ship and cargo be insure but only the real value of the ship and cargo and  find the value of the ship to be pound Virginia currency be the original price  pay by James Mac nair for her and as mention in John hood oath find that James  Mac Nairs invoice be no evidence of the value of the cargo and with respect to  that and the other point in the cause remit it to the Lord ordinary to proceed  accord against this interlocutor even the appellant Robert Mac nair think  proper to reclaim because it restrict the value of the ship to pound Virginia  currency whereas he insist that there be sufficient evidence of that value  amount to pound currency the underwriter also reclaim against that part of it  find the deviation not prove and upon the saint of June follow both these  reclaim petition come on to be hear when with respect to the appellant Robert  Mac Nairs petition the lord think proper to refuse the desire of it and to  adhere to their former interlocutor but as to the petition of the underwriter  their lordship be please to vary their former opinion and to find that with  respect to the deviation in the voyage from Virginia to barbados no action lie  on the policy of insurance and remit it to the Lord ordinary to proceed in the  cause accord this last interlocutor the underwriter apprehend to be agreeable  to their evidence and the substantial justice of the case yet the appellant  think proper to present a reclaim petition which be answer by the underwriter  come on to be hear on the that of August when their lordship by a majority of  seven to six pronounce a interlocutor find it not prove that there be any  wilful deviation in the voyage from Virginia to barbados and upon the  underwriter reclaim from this interlocutor their lordship on the that of march  by a majority of six to five adhere to their former interlocutor and refuse  the desire of the petition George Buchanan and James Spreul two of the  underwriter on the policy in question die and the cause be revive against  brown Margaret Jean and Grizell Spreuls as representative of the say James  Spreul and against Andrew Buchanan as representative of his father the say  George Buchanan from the say several interlocutor of the that of February the  that of August and the that of march so far as they reject the evidence of a  actual deviation out of the due usual course of the insure voyage from  Virginia to barbados the say John Graham James coulter and the representative  of the say George Buchanan and James Spreul and also all the other underwriter  on the policy of insurance in question except James Johnson who underwrite  pound thereon appeal to the house of lord and in march the appeal come on to  be hear when the say interlocutor of the court below so far as appeal against  be affirm but the question agitate between the party upon that occasion be so  far from be clear in favour of the now appellant Robert Mac nair that no cost  be give he upon that appeal the print case on this appeal be near similar to  the present but the argument urge on each side be somewhat different it be  think proper to insert they in this note on behalf of the appellant who be the  underwriter it be insist I don I Dalrymple that there be clear evidence of a  deviation considerable out of the usual course of the voyage insure and attend  with circumstance which carry conviction of a intention in James Mac nair so  to do even before the ship leave Virginia that the fact of a deviation be  establish the respondent though he do not admit it be wilful have offer no  evidence which can induce a belief that it happen by mistake or the  irresistible influence of any storm or current or through any other  involuntary cause that the policy in question be make for a voyage from  Virginia to barbados and the assure by the tenor of it engage on his part that  the ship shall be navigate in and not out of the usual due course of that  voyage it follow that if the ship be not navigate accord but be intentional  carry or conduct out of the usual due course of the insure voyage the policy  be from that moment discharge agreeable to the establish law in case of  insurance which never subject underwriter to loss which happen out of the  voyage they insure for as they can at the time of the contract have a view to  any peril out of the voyage nor be any premium or satisfaction pay or make to  they for the same and equality be essential in such contract for if the law be  otherwise no insurer can underwrite a policy with any degree of certainty or  safety it will then be in the power of every commander of a ship either with a  view to benefit his owner or to serve his own purpose to increase the insurer  risk by run his vessel into peril by a deviation against which no adequate  premium or satisfaction can be pay or make at the time of effect the insurance  because the fact can not then be foresee or apprehend and this will put a end  to the practice of insure the only effectual mean which the wisdom of the  commercial world have hitherto find out of secure their property from the  common peril attend its necessary transportation that if ever there be a case  in which a policy of insurance shall be discharge by reason of a deviation it  be the present which be pregnant with circumstance that go near to vacate it  for fraud the action behaviour and conduct both of the respondent and his son  be utter inconsistent with that good faith which in such case ought to be  strict adhere to and to preserve which court of justice in all country have  invariable be attentive on the part of the respondent it be admit I Montgomery  a Wedderburn I Swinton that the ship be insure on a voyage from Virginia to  barbados the question between the party be whether there have be a wilful and  intentional deviation from the voyage insure so as to liberate the underwriter  and vacate the policy throughout the whole of the proceed the appellant have  endeavour to maintain two contradictory proposition saint that Mac n air  intend to run upon the rock on purpose to destroy the ship d that he intend to  go to Bermuda as a better market for his corn both these can not be true and  it be hope the respond have prove each of they to be false in support of the  first proposition the appellant have think it material to impeach James Mac  Nairs character that he be in general a bad man and capable of the crime  impute to he for proof of this they refer to John hood evidence as to his  character in general and tend in particular to prove that he endeavour to  defraud one colonel turner of pound but what hood swear upon this and other  particular he do not merit any credit for because he be partner or storekeeper  for one of the underwriter and agent for they all in collect and procure  evidence against James Mac nair he have show a zeal and even a rancour  inconsistent with the character of a witness and his deposition to prove the  quantity and particular of Mac Nairs cargo be falsify by write evidence  recover out of his own hand that no colourable reason can be assign for Mac  Nairs intend wilful to destroy the ship though the appellant dispute the  amount of the value yet it be prove by all the witness that the vessel be full  load and even hood and Craig prove this at the same time that Mac nair have  the strong reason to doubt of his be insure for though he know the respondent  inclination to insure yet by his letter of the that of march from barbados and  of the d of may from Virginia address to the respondent he have dissuade he  from insurance on this very voyage if he have have any view of destroy the  ship in this voyage he sure will have write the antedate letter from Virginia  before he sail that letter after the wreck plain show his fear that he be not  insure and all his letter to the respondent discover the same uncertainty and  that he be afraid to look the respondent in the face on that account and  because he have dissuade he from insurance it be in proof that he sell his  long boat before he proceed on this voyage and that he have nothing on board  but a yawl scarce sufficient to contain the whole crew it be also prove that  the coast of Bermuda be very dangerous and that no man in his right sense will  venture upon it in the night time that they actual do run the risk of their  life by the smallness of the boat the distance of the shore and the darkness  of the night that James Mac nair be the last man who leave the ship and come  into the boat and appear to be in great concern for the loss of the ship  Mathie the second mate express swear that in his opinion there be no foul play  that the ship be not industrious cast away but be lose by accident and that  after they come to Bermuda he be inform there be three or more sloop which  have be wreck upon the same side of the island either the same night or the  night after the Jean be wreck and that some of those sloop be bind from  Philadelphia to the southward John murchy a sailor corroborate this witness  and swear that James Mac nair be the last man who leave the ship and be the  most anxious person that he out the forejeers after all the crew have get into  the boat and propose to have a anchor heaven over for save the ship but this  the crew will not agree to he also prove the leave the large boat behind in  Virginia and though he assign as a reason for this that she be crazy and  shatter yet he add that the ship be so deep load that it will have be improper  to have carry the boat along with they as to the objection that Mac nair be  carry on a lose trade it hardly merit a answer when the above circumstance be  consider that he be uncertain if insure and full load have it even be true  that he have lose in trade will he cover one misconduct with a great not to  say a crime and that too at the imminent peril of his life but what strong  tend to put a end to all suspicion on this head be his letter to hood in  December at a time when he be to stand trial for his life he there say as some  of the crew go from Bermuda to Virginia you please acquaint they to come home  as soon as possible of which you will be so good as advice I if you have see  any of they particular John Mathie if you know he be in Virginia pray acquaint  he to come home as he be mate of the vessel to make it appear how that she be  for the underwriter want very much to see some of the hand and if you can know  where he be advice he to come home if Mac nair have be conscious guilty of  such a crime he never will have write in this anxious manner for the crew to  come home and it be a circumstance which must go far to presume his innocence  with respect to the second point insist on by the appellant videlicet that Mac  nair deviate from the voyage with a intention of go to Bermuda to sell his  corn at a great advantage it be say that as Bermuda lie in the very line of  the insure voyage and seaman only keep to the eastward of it to avoid its  dangerous rock as it be in proof that number of vessel without any intention  of go to that place be yet cast away there of which there be three or four  instance at the time of the shipwreck in question and that during the  beginning of the voyage there be exceed stormy weather which may occasion the  navigator to mistake their reckon so the ship be actual wreck there do not  find the small presumption that the navigator have a intention of go to  Bermuda and nothing be incumbent upon they to prove but the wreck which be not  deny that the only positive evidence which the appellant have produce be  Thomas Craig the first mate of the ship and conductor of the voyage but his  oath do not merit the small degree of credit saint because in the criminal  prosecution the appellant themselves prove he to be a person of bad fame and  not a honest man d it be in proof that he be bring over from the isle of man  on purpose to give evidence in this action against the respondent and receive  from the underwriter a previous discharge of all claim against himself d that  before examination he receive from the underwriter several sum of money and  promise to be provide for that that previous to his be examine he utter the  strong expression of malice and resentment against the respondent declare he  will sacrifice his soul to hell to get amends of the respondent that that  immediate after the shipwreck he depose before the governor of Bermuda that  the vessel be bind from Virginia to barbados and proceed on her voyage till  the shipwreck which be the very reverse of what he have now swear that that  when he first come home he tell James Wilson clerk to the tanwork at Glasgow  mudas have they intend that place from all which on consider mere the journal  of the voyage and the suppose course of the ship it be clear the navigator of  her do not intend for Bermuda but barbados and all the circumstance upon which  the contrary hypothesis be build amount only to this that consider the bad  weather which they have they be too rash and venturous in their course with  regard to the plan and opinion of shipmaster if there be no other evidence to  rely upon the four shipmaster name by the judge admiral upon the suggestion of  party on calculate the reckon as record in Craig journal exhibit a plan by  which the course of the ship will still have be more clear of the island than  accord to the observation in that journal and the opinion be confirm by a  great many shipmaster of skill and credit this must great preponderate against  the opinion of the shipmaster produce as witness for the appellant which be  that the navigator of the ship have a mind to see Bermuda more especial as  this opinion relate to plan which be make up upon erroneous principle one of  these shipmaster namely John grey after have depose like the other that in his  opinion the navigator of the ship have a mind to see Bermuda yet upon a  question be put to he suppose the ship to be where she be place by Craig  journal and Bermuda lie in or d in steer a S S e course can that course carry  her to Bermuda depose that if the ship and island be in the respective  longitude and latitude mention in the interrogatory a S S e course can not  have carry the ship on the island or so nigh it as to meet with any harm and  almost all the shipmaster agree that even if Mac Nairs intention have be to  have go into the island no man in his sense will have do it in the night time  and in the manner he do as it so evident endanger the life of the whole crew  Mathie swear that the night be quite dark the moon be set and that they do not  see the island till day light and one of the appellant shipmaster swear that  no person bind to the island will go upon it in the night time even suppose he  have see it in the day time but further the plan exhibit by the appellant be  erroneous some of their operator upon those plan swear that they be draw upon  the principle of plain sail which suppose a degree of longitude equal to a  degree of latitude over the whole globe other swear that they be delineate by  mercators sail and one of they swear that their chart be neither a plain nor a  mercators chart these plan do not mark the degree of longitude and it be  obvious to the eye that they be erroneous because they do not place the ship  accord to the observation on the and of July twenty mile to the eastward of  the middle of the island they place her considerable to the westward of it and  by so do bring the descriptive line of her course upon the north east part of  the island but if the ship be bring eastward to the suppose place by the  aforesaid observation the line of her course will fall considerable to the  eastward of the island but it be say by the appellant that the true course for  barbados be twenty thirty forty or fifty league to the northward of Bermuda  because a ship may have the benefit of the trade wind and come in upon the  north east of barbados to this it be answer by the respondent that the trade  wind begin about the tropic and blow from the n e barbados be about mile south  of Bermuda and mile east of it suppose the trade wind blow the whole way from  Bermuda to barbados which they do not a ship will have no difficulty in go to  barbados in a strait line because in such a line they will not be within ten  point of the wind and every ship can easy sail within six but by Craig journal  of the voyager which he make after the shipwreck as a passenger in the Bermuda  packet it do not appear that this ship take any such cast as the appellant  contend in order to get the trade wind but that she near follow the direct  course last that suppose even a fraud or misconduct in Mac nair the respondent  be express secure in the policy against the barratry of the master and the  appellant have bring no evidence whatever of any copartnership between the  respondent and his son and therefore the respondent hope that there lie no  solid objection in this case upon the statute of the that George two brown er  p brown afterward Archibald Ingram one of the underwriter die and the cause be  revive against his representative and son Archibald Ingram and the say action  come again to be insist on before the Lord Auchinleck ordinary and the  appellant brown move his lordship to ascertain the sum for which the under  brown er p writer be liable by the policy and after various proceed his  lordship direct the party to give in mutual information to the whole lord of  session brown this be do accord on the that of February the cause come on to  be advice by their lordship when the procurator for the insurer brown er p  have pass from the objection of res P  a and consent that the court may judge  in the cause brown with respect to the policy of insurance be a value policy  as if the interlocutor of the that of February have not be pronounce or be  still open and aver and offer to prove that accord to the invariable practice  of Glasgow where this policy be underwrite and where both party reside policy  such as the present be not hold value policy so as to relieve brown the insure  from the necessity of prove both the extent and value of the cargo their  lordship without permit the insurer to give Eve brown er p dence of the say  practice at Glasgow on the say that day of February pronounce a interlocutor  in the follow word videlicet upon report of Lord Auchinleck and have advice  the mutual information and whole proceed in this cause the lord find the  charger appellant Robert Mac nair be not entitle to recover from the  suspenders respondent the thousand pound sterling specify in the policy but  only a sum equal to the damage he sustain by the loss of the ship Jean and her  cargo find that in this circumstantial case the bill of ladin and brown er p  invoice which last be only sign by James Mac nair can be admit as good  evidence neither of the quantity nor value of the good which be put on board  the ship in Virginia but find that the quantity must be hold to be as  ascertain by the manifest of the naval officer and the value as ascertain by  the oath of John hood by who the good be most furnish find the suspenders  respondent be also liable to make good the value of the ship as former  ascertain expense of ship the good and the fraught thereof from Virginia to  barbados and likewise the sum pay for the insurance but find that out of the  sum afore brown er p say the suspenders respondent be entitle to have a  deduction of two per cent in term of the policy as also to have deduction of  the value of the good aboard the Jean which belong to Mr smith to the extent  of pound sterling and in the last place find the suspenders respondent liable  for the interest of the balance after deduct as above from the date of the  decree of the admiral court and remit to the Lord ordinary to proceed accord  from the interlocutor of the that of February and saint of June the original  appeal be bring and the interlocutor of the that of February be the subject of  the cross appeal in support of the original appeal it be contend I Montgomery  a Wedderburn that this be a value policy of both ship and cargo where not the  ship only but a considerable interest on board be admit to have exist that  under such policy the assure must recover the whole sum in the policy as he  can not have any claim for a return of premium for short interest if the ship  have arrive safe that in all value policy the assure have such a interest on  board as to take it out of the meaning of the statute Geo two the constant  rule have be to take the quantum of that interest from the value express in  the policy without any further proof of the quantity or value of the good but  if any further or particular proof of the extent of interest in ship and cargo  be require than the policy it be manifest that the value of the ship as  ascertain by the interlocutor of the that of February and saint of June can  not be hold to be her true value at the time she be lose for although James  Mac nair purchase brown her for pound yet it be prove and admit that she then  stand in need of many repair and want no less than two anchor and one cable to  fit her for go to sea so that the expense lie out in her outfit which it be  prove amount to pound be as much a part of her original price and value as the  pound accord James Mac nair in all his letter to the appellant when under no  temptation to say otherwise fair value her at pound the sum she cost he  without regard to the other expense lie out in keep her in repair and hood  himself swear that the ship be always keep clean and in good order and be  build of mulberry frame make her last better and less liable to decay than if  she have be build of oak and Alexander Montgomery shipmaster a witness for the  respondent swear that in may or June when he see the ship in Virginia he  reckon her worth pound or pound of that currency and it be also prove that two  year before James Mac Nairs purchase she have be build and sell for pound with  respect to the cargo the kind and quantity be full prove by the bill of lade  and other evidence in support of it the respondent themselves have admit and  prove the authenticity of that paper and in their plead have state that it be  of its true date and not make up ex post facto as the letter of the that of  June but independent of this admission it bear every mark of authenticity  because it be write or fill up in the handwriting either of hood or his clerk  the discrepancy between its content and the letter of the that of June further  confirm it and what be very remarkable although hood in his deposition go  every possible length to discredit the invoice off the cargo yet he do not  attempt the least insinuation against the bill of lade nay more no direct  attack have be make upon it since the commencement of the suit till the  present time and even now the respondent be force to combat it by inference  and implication only it be prove by the tonnage bill that the ship be rate by  the naval officer at tun and the appellant have demonstrate upon the principle  lie down by the respondent themselves that the cargo contain in the bill of  lade amount only to tun which be not near such a excess between the rate and  real tonnage as he allege and offer to prove be the practice in general brown  er p and point out several particular instance in support of it it be further  prove by all the witness that the ship be full load and if so by what cargo be  she fill the cargo furnish by Mr hood will not fill her by fifteen tun even  accord to his own computation of her tonnage neither accord to the same rule  can the cargo contain in the manifest fill her by several tun hood evidence  must therefore be reject and lie aside as well as the manifest but if the rate  of tonnage lie down by the appellant be adopt then it follow as a consequence  that the good contain in the bill of lade be necessary to fill her complete it  be also prove that James Mac nair have fund in his hand sufficient brown to  purchase the cargo contain in the bill of lade for saint it have all along be  state and not deny that when Mac nair first go to barbados he carry good with  he to the value of pound sterling d that front thence he go to Virginia with  the valuable part of his cargo leave with messrs harvey good and outstanding  debt to the amount of pound currency d that at Virginia he sell his cargo for  pound draw upon the appellant for pound sterling and so possess a stock of  pound Virginia currency that that there he purchase the ship and cargo and  return to barbados in march and it appear that the good sell by messrs harvey  on that voyage amount to pound and upon the whole he clear pound barbados  currency that that before the sale of this cargo be full complete he return  again to Virginia with a cargo value pound S d currency and sell it at the  advance price of pound S d and beside the three remain hogshead of rum he have  good on board to the value of pound S d prime cost thus matter stand at the  time of Mac Nairs purchase the cargo in question and agreeable hereto lie in  his letter to the appellant of the that and that of march uniform rate the  ship at pound and the cargo at between pound and pound currency it be prove  that the ship cost pound and the value of his cargo be equal confirm by the  write and account of three party so that it may be conclude the valuation put  on the ship and cargo by these letter on which the appellant make the  insurance in question be a fair and just one it must further be remark that  Mac nair in his letter have dissuade the appellant from make insurance and  therefore when he have no reason to expect a insurance be make and when he can  have no bad intention he uniform value the ship and cargo as above on the  other hand it be observable how great a difference there be in his valuation  by the letter of the that of June at that time when by the wreck of the ship  he be reduce to the utmost despair he do not content himself with a estimation  of pound for the ship and pound currency for the cargo the former value which  he put upon they but he estimate both at near double that value this valuation  therefore when there be a clear design of overrate the ship and cargo seem to  be conclusive that the former value be not overrate because it be a valuation  make when he lie under no temptation whatever and moreover confirm as before  observe by write under the hand of other party if therefore the value of the  ship be to be consider at pound and that he have in his hand when he purchase  the cargo in question pound which be pound more than by his letter he mention  to have have in the former voyage when he insure the like sum of pound  sterling it be clear that with this last sum he have more than sufficient to  purchase the good contain in the bill of lade the prime cost whereof amount to  pound currency to which be add fraught at one three of the value pound and  brown the price of the ship pound the whole amount be pound beside premium of  insurance commission and repair of the ship amount to considerable more than  the pound insure on account of the appellant and sufficient to answer the  value of smith good which be find to be only pound sterling both by the sum he  recover for they and by the last interlocutor of the court of session on  behalf of the respondent in the original appeal it be argue I don f Norton  that loss in policy of insurance be to be adjust and pay by the underwriter  agreeable to the mode or rule observe in such case in the country or at the  place where they be effect in regard the assure and insurer be both suppose to  have that in view when the contract be enter into and in the present case the  appellant have himself admit by his proceed and enter into evidence of the  value in the court of session that the policy of insurance in question brown  er p be not to be consider in Scotland as a policy which oblige the  underwriter to pay the whole pound and this be also confirm by the repeat  determination of the lord of session who have thereby point out the rule  observe in Scotland in settle loss on polices of insurance word as the one now  in question to be by allow the assure so far as to the full amount of his  interest in the ship and cargo which be the object of the insurance that the  rule of adjust insurance which the lord of session have adopt so far as it go  to the value of ship and cargo and charge of make the insurance be agreeable  to the spirit of the statute Geo two as it most effectual discourage the  pernicious practice of make insurance for more interest than the assure real  have in the thing insure and therefore it be substantial adhere to the  intention of the legislature and do complete justice to the appellant by give  he a satisfaction to the full amount of the original value and prime cost of  his ship and cargo and expense of insure they which full answer the purpose of  a insurance and full indemnified he from any loss arise from the peril insure  against by the policy that allow in all case the assure to recover from the  underwriter to the full amount of the valuation set by himself in his policy  be give the great encouragement to fraud and this ought the rather not to be  do in a case circumstance like the present where it be evident that both the  appellant and his son who have the command of and be interest in the ship and  cargo be contrive and plant scheme to overreach and impose upon the  underwriter by misrepresent both the value of the ship and the quantity and  value of the cargo and there be no doubt but that by the policy in question  the appellant have value property at pound sterling which in fact do not  exceed pound S d for pound Virginia currency the price of the ship at par be  equal only to pound sterling and deduct pound for Mr smith property at which  it be fix by James Mac Nairs letter of the that of June from pound S d brown  the value of the whole cargo as appear by hood evidence and it fix the  appellant interest in the cargo at pound S d to which add pound S d for the  premium and charge of the insurance and the whole of the appellant interest in  both ship and cargo be clear ascertain not to exceed pound S d that the  underwriter upon any policy of insurance on which a loss have happen be  entitle to the benefit of savage and therefore in the present case the insurer  be clear to have a proportionable deduction of the pound S be the produce of  what be save of the ship and cargo for if otherwise it will be admit the  policy to be void by the statute Geo two which express enact that no insurance  shall be make without benefit of savage to the insurer and by the express word  of this policy there be to be a deduction of pound per cent in case of loss in  support of the cross appeal it be say that by the policy of insurance in  question as in all other the underwriter do not engage joint and several for  the whole amount of the money thereby insure but only engage several and  respective each for himself to the amount of the sum or sum by they respective  subscribe so that to make they joint liable for any loss be not only express  contrary to their contract but to common justice and it be equal so to allow  the appellant Robert Mac nair to cover and recover under this policy the  fraught which the ship will have make on the voyage have she perform it for  the policy be on the ship and cargo only and not on the fraught and if Mac  nair have intend to insure the fraught he ought to have observe the method  which be daily practice by effect a policy upon the fraught in express term  that a policy of insurance be not a contract which carry interest for any sum  the underwriter may become liable to on account of a loss they only engage to  be answerable for the loss itself not for any interest for or upon such loss  and it can be compare to a bind note or other security which upon the face of  they carry interest or be Payable on a day certain and therefore entitle the  obligee or holder to recover interest for his principal money up to the time  of payment beside the quantum of the loss for which the underwriter be in the  present case liable still remain unliquidated that there never be any instance  where a assure recover interest from his underwriter on a unadjusted policy of  insurance contest in any of the court of law and in this case the question  between the party and the various decision of they evident appear to have be  such as well warrant the underwriter brown er p in litigate the payment of the  loss demand by the appellant Mac nair and from the complexion of the whole  business the great difficulty of the case and the different determination upon  it a case can seldom occur in which the assure be entitle to less favour or  have less pretence to hope for more than he be strict and legal entitle to  recover or where the underwriter can be better warrant in dispute a loss brown  but to this it be answer on the part of the original appellant that if he be  entitle to recover any part of the sum under the policy he certain have a  equal claim to the interest of it during the time it have be unjust withhold  from he and this point be now so well establish by the practice of the court  of session that none of the judge have any doubt upon it in all case where  there be a custom in the debtor pave whether arise from his dispute the  principal or otherwise interest under the name of damage be always award to  the creditor from the time that the sum find to be just owe become due or  ought to have be pay upon this principle the judge admiral have no difficulty  to find interest due from the commencement of the suit and the court of  session have also no difficulty in find interest due though they confine the  period of its commencement to the date of the judge admiral be decree as to  the objection that interest do not commence till the amount of the loss be  ascertain which in the present case be not yet do it be say that the establish  of such a rule will be tempt underwriter to dispute and procrastinate the  adjustment of loss and will enable they to maintain illgrounded litigation at  the expense of the insure a more point instance of which can not be give than  what the present case furnish beside it be ever the practice in open policy to  allow fraught premium of insurance and all charge to be bring in computation  of the loss for otherwise the insure will not be full indemnified after hear  counsel on these appeal it be order and adjudge that the interlocutor of the  that of February and the saint of June so far as they find that the policy of  insurance do not in this case oblige the insurer to pay the sum at which the  ship and cargo be insure and also the interlocutor of the that of February so  far as it find that the appellant be not entitle to recover from the  respondent the pound sterling specify in the policy but only a sum equal to  the damage he sustain by the loss of the ship Jean and her cargo shall be  reverse and it be declare that the appellant be entitle to recover from the  respondent the sum by they several underwritten and interest thereof from the  date of the decree of the admiralty court and of the sum of pound S sterling  as the expense of extract the decree of the say court with a discount of pound  per cent in term of the policy and of the sum of pound S sterling as the  acknowledge value of what be recover of the wreck and it be further order that  the cross appeal shall be dismiss and that the court of session in Scotland  shall give all proper and necessary direction for carry this judgement into  execution ms jour sub year p