Buck v. The Chesapeake Insurance Co. 1 P.

incidents of which a competent understanding cannot be imputed to them?

A knowledge of the state of the world, of the allegiance of particular countries, of the risks and embarrassments affecting their commerce, of the course and incidents of the trade on which they insure, and the established import of the terms used in their contract, must necessarily be imputed to underwriters. According to a distinguished English jurist, Lord Mansfield, in Pelly v. The Royal Exchange, &c., 1 Bur. 341, "The insurer, at the time of underwriting, has under his consideration the nature of the voyage and the usual manner of conducting it?" And what is usually done by such a ship, with such a cargo, in such a voyage, is * understood to be refer- [* 161 ] red to by every policy. Hence when a neutral, carrying on a trade from a belligerent to a neutral country, asks for insurance "for whom it may concern," it is an awakening circumstance. No underwriter can be ignorant of the practice of neutrals to cover belligerent property under neutral names, or of the precautions ordinarily resorted to that the cover may escape detection. The cloak must be thrown over the whole transaction, and in no part is it more necessary than in the correspondence by other vessels, so often overhauled by an enemy, for the very purpose of detecting covers on other cargoes. Letters thus intercepted have often been the groundwork of condemnation in admiralty courts; and underwriters, to whom the extension of trade is always beneficial, must and do connive at the practice in silence. They ask no questions, propose their premiums, and the contract is as well understood as the most thorough explanation can make it.

There is nothing in the letter in evidence calculated to mislead an insurer of ordinary vigilance, but what was fully explained away by concomitant circumstances. It is true, that in the letter Fitch writes, to have insurance done for him, on "the brig Columbia and her cargo," that he cannot say what amount of cargo to have insured for him. Yet, when the offer was submitted, it was indorsed on the back of this letter, and expressly declared to be upon the same cargo, of "which you have $6,000 insured, some time since."

The insurance alluded to was made "for whom it may concern," and this second policy is expressed in the same terms.

Here, then, was a neutral, professing himself to be owner of a cargo, consisting of produce of the hostile island, on a voyage having for its object to find a market for that produce-most unnecessarily, if himself the real owner, or if there were no owners but neutrals most unwisely subjecting himself or them, to an increase of premium, which could not but result from such an offer.

Buck v. The Chesapeake Insurance Co. 1 P.

This was a circumstance calculated to induce inquiry. The defendants had a right to make what inquiries they pleased as to the real character of the cargo; and if they did not make those inquiries, the law imputes to them the use of the phrase, "for whom it may concern," in its ordinary effect and signification. We are, therefore, of opinion that this instruction, if so modified as to be confined to the case before the court, ought to have been given.

The second prayer, amounting only to an affirmance of the general proposition, as relates to the policy of the 6th May, we are of opinion ought to have been given.

The third prayer, having the same bearing upon the pol[*162 ] icy *of the 24th May, we are of opinion, for the reasons expressed in the first prayer, ought also to have been given. By the fifth prayer, the plaintiffs ask of the court to instruct the jury, "That if the said Daniel Fitch, at the time of said policies, was legal and equitable owner of part of the cargo insured; and the legal, though not equitable owner of the residue, policies for whom it may concern' do cover the entire cargo; and said Fitch is competent in law to recover the whole, in his own name, though the belligerent character of a part of said cargo was not disclosed at the time of effecting said policies."

The language in which this prayer is couched, obviously imports two propositions: 1. That a policy "for whom it may concern" will cover the whole cargo, though the assured had only the legal, without the equitable interest in part, and a legal and equitable interest in the residue; and, 2. That Daniel Fitch is competent in law to recover the whole, in his own name, though the belligerent character of part was not disclosed when the policies were executed.

It is a very great objection to this prayer, that the language used is too general and abstracted, and not adapted to the case with that studied precision which the law requires, thereby rendering it scarcely possible for the court to meet it with a simple, positive, or affirmative answer.

To the first of the two propositions it may be further objected that it is difficult to perceive how it came to be introduced into the cause. Abstracted from the effect of belligerent interest in the cargo, the defence admits that the policy covers all other interests, whether legal or equitable.

And, with regard to the second, it is not easy to perceive why the court should be called upon to charge the jury that Daniel Fitch was competent in law to recover the whole in his own name, when the suit is in fact prosecuted in the name of the agents; and they count upon the interests of both Medina and Fitch.

Buck v. The Chesapeake, Insurance Co. 1 P.

But the cause has been argued upon the assumption that this prayer brings up the question of insurable interest in Fitch, by whose instructions Buck and Hedrick effected this insurance; and, as it is better to follow out the concessions of counsel than to let the cause come up here again upon this point, we will consider that question as being raised by this, in connection with the other prayers.

And here, we think, the facts make up a clear case of insurable interest. The only doubt, probably, arises from one of the most prolific grounds of uncertainty on many subjects, namely: The use of terms originally unaptly selected, but now rendered legitimate by use. It is only necessary to inspect a few cases on this

doctrine, to be satisfied that the term interest, as used in [* 163 ] application to the right to insure, does not necessarily imply property in the subject of insurance.

In the case of Craufurd et al. v. Hunter, 8 D. & E. 13, the plaintiffs were commissioners appointed by the crown, under an act of parliament, to superintend the transportation, &c., of Dutch vessels, seized in time of peace, without any present designation for whom - whether to be held in trust for the original owners, the crown, or the captor. The vessel had been carried into St. Helena; and the policy was effected with a view to her safe transportation from that island to England; and, after much consideration, it was adjudged that this was a good insurable interest, and the plaintiffs recovered.

The same point was afterwards decided in Lucena v. Craufurd et al. 3 Bos. & Pul. 75, on a writ of error to the exchequer, after three arguments, and great deliberation, yet the seizures were made before declaration of war; and the interest of the plaintiffs amounted to nothing but a power over the subject, with a claim by quantum meruit, for their services.

Putting down the present case, therefore, to its lowest grade of insurable interest, it is equal to that of the plaintiffs in the two cases alluded to; for Daniel Fitch was, at least, the agent or trustee of Medina, to transport his goods from Porto Rico to a market, and to secure them from the chances of capture and loss.

But this case is stronger than the English cases cited; for, by the act of Medina himself, Fitch was exhibited to the world, clothed with all the national documents which evidence an absolute property; and for many purposes, the real owner would have been estopped to deny it.

We will instance the payment of duties; for which, either as owner or consignee, our laws held Fitch absolutely liable. We

Buck v. The Chesapeake Insurance Co. 1 P.

have, therefore, no doubt of the sufficiency of the insurable interest in this case.

The last prayer, on which the court below divided, is in these

terms:

"That the court instruct the jury that the letter of the 27th April, 1822, with the order written thereon, do not, in law, amount to a representation that the property to be insured was the sole property of Daniel Fitch; or that the whole, or any part thereof, was not belligerent."

We have already expressed our opinion on the proposition here presented. It is to be regretted that this prayer, also, is so defective in precision. But it was obviously intended, and so argued, to be confined to a representation which would vitiate the policy. With

relation to the first policy, we are all of opinion that it was [* 164] unaffected by the letter specified; and, *with regard to the second policy, whatever might have been the effect of this letter, had it stood alone, yet, taken in connection with the concomitant circumstances, it was not fatal to the contract.

On this point, a majority of the court would be understood to express the opinion that this letter, connected with the order indorsed upon it, the previous insurance referred to, and considered in relation to the state of the world, and the nature, character, and ordinary conduct of the voyage insured, was not such a representation, as, per se, vitiated the policy.

And this opinion will be certified to the court below.

This cause came on, &c.; on consideration whereof, this court is of opinion: 1. That as the policies of insurance in this cause purport to insure the plaintiffs "for whom it may concern," they are not bound to prove that, at the time of effecting the said insurance, or any other time, they disclosed to the defendant that Spanish property was intended to be covered by the said insurance, unless inquiries on the subject were propounded by the insurer, prior to the insurance. 2. That if the jury believe the policy of the 6th of May, 1822, was founded on the order of the same date, the said policy being "for whom it may concern," does cover belligerent as well as neutral interest. 3. That if the jury believe that the policy dated 24th of May, 1822, was founded on the letter of the 27th of April, 1822, and the order written thereon, the policy being "for whom it may concern," does cover neutral as well as belligerent property. 4. That if the said Daniel Fitch, at the time of the date of the said policies, was legal and equitable owner of part of the cargo insured, and legal though not equitable owner of the residue, the policies being " for whom it may concern," do cover the entire cargo; and that the said Fitch

Wright v. The Lessee of Hollingsworth. 1 P.

had a good insurable interest in the whole cargo; and the plaintiffs, as his agents, are competent to recover the whole sum insured thereon, on proof of such legal and equitable interest in the said Fitch. 5. That the letter of the 27th of April, 1824, whatever might be its effect if taken alone, yet, taken in connection with the indorsement thereon, with the previous policy to which it refers, the actual state of the world, &c., and the nature of such transactions, is not such a representation as vitiates the policy. All which is ordered and adjudged by this court to be certified to the said circuit court.

8 H. 234.

HENRY WRIGHT, WILLIAM CAROTHERS, ROBERT DENNISTON, WILLIAM PATTON, THOMAS BURMAN, and JAMES ROBERTSON, Plaintiffs in Error, v. The Lessee of LEVI HOLLINGSWORTH and JOHN KAIGHN, Defendants in Error.

1 P. 165.

An allegation that the lessor of the plaintiff is a citizen of the State of Missouri is sufficient, without an averment that Missouri is one of the United States.

This court will not review the decision of a circuit court allowing a new count to be filed, in an action of ejectment, alleging a demise by a lessor not named in the old counts, nor its refusal to allow costs on the leave to amend.

When a new count is filed, the defendant has a right to plead de novo; but if he goes to trial on the old plea, which puts the whole declaration in issue, there is no error.

THE case is stated in the opinion of the court.

White, for the plaintiff.

Isaacs, contrà.

[* 167 ]

TRIMBLE, J., delivered the opinion of the court. This action of ejectment was commenced in the circuit court held in East Tennessee, by suing out a writ of capias ad respondendum, accompanied with the declaration, and the tenants in possession held to bail to answer to the action, in the manner provided for by a statute of the State. The original declaration contained two counts: the first, on the demise of Hollingsworth and Kaighn, citizens of Pennsylvania; the second, on the demise of Joseph Blake and Daniel Green, citizens of Massachusetts.

The tenants appeared and pleaded not guilty, upon which issue was joined. A trial was had, and a nonsuit suffered by the plaintiff, which was set aside on the payment of costs. After these pro.

ceedings, the court, on the motion of the plaintiff, permitted the