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![handle is hein.slavery/ssactsengr0039 and id is 1 raw text is: THE KING V. PRICE
there the clause in the policy upon which the question turned was very different from
this; for it did not stipulate that there should be no other proof of interest than the
policy ; but the stipulation was that there should be no other voucher of the profits
being valued at 10001. than the policy : voucher therefore referred to the quantum of
value. And it is not sufficient here to say that the plaintiff may recover if he prove all
interest in fact; for the contract oil which he must recover is entire, and if void in
part is void for the whole.
Lawrence J. here observed that the stipulation as to the proof of interest was all
independent part of the [321] agreement of the parties, which might be void, and yet
the other part of it as to the contract itself of insurance might be good. Here the
parties first agreed that the profits of the adventure should be insured at a certain
premium, and they have also agreed that less proof of the interest of the assured
should be accepted than the law requires to be given. The latter stipulation is
therefore void, because it is not competent to parties to make an agreement of that
sort to bind a Court of Justice not to call for that proof which the law has made
necessary : but still the contract of insurance itself may be good if proved by legal
evidence.
Giles then objected that the plaintiff had declared for a total loss, and it appeared
that the greater part of the slaves had arrived safe at a market and been disposed of :
and non constat but that there has been a profit upon that part of the voyage which
was insured, though upon the whole voyage there may have been no profit. Then
the plaintiff cannot recover as for a total loss: or the loss may have arisen from
something not within the perils insured against, namely, the state of the market.
Richardson in reply said, that there could be. no average loss in a case of this sort,
which was in effect a valued policy: but that it was sufficient to entitle the plaintiff
to recover the whole sum insured if he proved an interest in fact in the adventure
and a loss. That this resolved itself into the same objection which was made in
Barclay v. Cousins against the insurability of profits. That if no profits. would have
arisen, supposing the slaves had all arrived safe without any accident, and therefore
that the loss must have arisen by something not insured against, [322] that would
have been a defence on the general issue : but here a peril within the policy is stated
to have happened, in consequence of which some of the slaves were in fact lost, and a
loss is stated to have happened upon the profits of the whole adventure, which must
therefore be attributed to the only cause which is stated.
Lord Ellenborough C.J. At all events the objection is decisive that the plaintiff
does not show that he has sustained a loss by the perils of the sea. He does not show
that if there had been no shipwreck, and the slaves had all got to a market, any
profit would have been produced. It should have been shewn that but for the peril
insured against, which happened, there would have been profit upon the adventure.
Grose J. According to the plaintiff's argument, that there call be no average
loss in a case of this sort, if he had obtained profit to within 201. of the whole interest
insured, yet he might recover on this policy as for a total loss.
Lawrence J. According to the plaintiff's own shewing this is only an average loss.
The case of Barclay v. Cousins did not go the length of deciding that the plaintiff was
at all events entitled under a policy upon profits to recover to the full extent of the
sum insured. What was there said was only to show the general insurability of
profits; but the assured must still prove what in fact his loss was. But this case is
defective in not shewing that if there had been no shipwreck there would have been
some profit.
[323] Le Blanc J. The plaintiff here goes for a total loss. And can we say that
there has been a total loss where it appears that a great part of the cargo, the profits
of which were insured against the perils of the sea, &c. got to the market, and we are
not informed what profit it produced.
Judgment of nonsuit to be entered.
THE KING against THOMAS PRICE, alias JOHN WRIGHT. Thursday, May 9th, 1805.
Upon an indictment for perjury in falsely taking the freeholders' oath at an elec-
'tion of a knight of the shire, in the name of J. W. ; it appearing by competent
evidence that the freeholders' oath was administered to a person who polled on
the second day of the election by the name of J. W. who swore to his freehold
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