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![handle is hein.slavery/ssactsengr0087 and id is 1 raw text is: THE ROYAL EXCHANGE ASSURANCE V. M'SWINEY 14 Q D. 646.
ances; and that, where there is a legal certainty that profit will be made if goods
arrive, and that the goods are ready to be shipped under a valid contract, there is an
insurable interest; and that, if the loss arises from a peril insured against, such as the
perils of the sea, the underwriters are responsible.
The risk of loss of profits attached when the vessel was at Madras, ready to take
in her cargo, and having actually begun to take it in ; and the loss occurred by the
ship being blown off and sustaining too much damage to take in all the cargo, which
was a peril of the sea.
[646] Upon the whole, we are of opinion that the plaintiff is entitled to our
judgment.
Judgment for plaintiff (a).
IN THE EXCHEQUER CHAMBER. (ERROR FROM THE QUEEN'S BENCH.)
THE CORPORATION OF THE ROYAL EXCHANGE ASSURANCE against M'SwINEY.
Tuesday, January 22d [1849]. (For note see p. 634, ante.)
[For note see 14 Q. B. 634.]
Judgment having been signed in this case for the plaintiff below, the defendants
below brought error in the Exchequer Chamber, assigning for errors that it appears
by the record that defendants have broken their covenants so far as regards the
matters pleaded to in the first plea, and that judgment is given for the plaintiff,
whereas judgment ought to have been given for the defendants. Joinder. The case
was argued on the writ of error in Michaelmas vacation (November 27th), 1849,
before Maule, Cresswell, Williams and Talfourd Js., and Parke, Alderson, Rolfe and
Platt Bs.
Sir F. Thesiger, for the plaintiffs in error (defendants below). The plaintiff below
could not have an insurable interest in the expected profits without having an insurable
interest in the goods ; and in those he could have no insurable interest till they were
put on board. Until then, neither goods nor profits could be the subject of perils of
the seas. The judgment of the Court [647] of Queen's Bench has proceeded too far
on a supposed analogy to the case of freight. The subjects of insurance are ship and
goods, to which freight and profits are incident. There can be no insurable interest
in freight without ownership of the vessel, nor in profits without an actual interest in
the goods, the corpus on which the profits are to arise. In Barclay v. Cousins (2 East,
544, 547), where profits of a cargo were held insurable, Lawrence J. (delivering the
judgment of the Court) treated them as incident to the goods insured. After describing
the protection by insurance as embracing generally those losses and disadvantages
which, but for the perils insured against, the assured would not suffer, he proceeds :
In every maritime adventure, the adventurer is liable to be deprived not only of the
thing immediately subjected to the perils insured against, but also of the advantages
to arise from the arrival of those things at their destined port. If they do not arrive,
his loss in such case is not merely that of his goods or other things exposed to the
perils of navigation, but of the benefits which, were his money employed in an under-
taking not subject to the perils, he might obtain, without more risk than the capital
itself would be liable to : and if, when the capital is subject to the risks of maritime
commerce, it be: allowable for the merchant to protect that by insuring it, why may
he not protect those advantages he is in danger of losing by their being subjected to
the same risks? Lord Ellenborough asked, in Eyre v. Clover (16 East, 218), Are
profits any thing more than an excrescence upon the value of the goods beyond the
prime cost's Refer-[648]-ence was made in the Court below to Lucena v. Craufurd
(2 New Rep. 269, 302), where Lawrence J. said : Interest does not necessarily imply
a right to the whole, or a part of a thing, nor necessarily and exclusively that which
may be the subject of privation, but the having some relation to, or concern in the
subject of the insurance, which relation or concern by the happening of the perils
insured against may be so affected as to produce a damage, detriment, or prejudice
to the person insuring: and where a man is so circumstanced with respect to
(a) See the next case.
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