INSURABLE INTEREST   243

(3 Caines, 141), Juhel v. Church (2 John. Cas., 333), and Buchanan v. Ocean Insurance Company (6 Cow., 318), are supposed to have established the same rule in this State. No reason, that I am aware of, has ever been given for this difference between fire and marine policies. The latter, when of a wagering character, are vicious and evil in their tendencies as well as the former, and have been generally considered as noxious and dangerous, whenever the question has arisen. They should, therefore, as it would seem, for the reasons applied to policies against fire, have been held void, as contrary to public policy.

The distinction between these two classes of policies is, in my view, a mere matter of accident, and grew out of the peculiar manner in which the question was presented in respect to marine policies. The case of Depaba v. Ludlow (Comyn, 361), shows how the doctrine, that wagering policies upon ships are valid, originated. The defendant there had insured the plaintiff, "interest or no inter-est." On the trial it was objected that the plaintiff could not recover, unless he had a property in the ship; but the court said that the insurance was good, and that the import of the clause, "interest or no interest," was that the plaintiff had no occasion to prove his interest. Had the question been directly presented in this case, whether a mere wagering policy was valid, the decision would, I think, have been different. The case itself shows the court to have supposed that the plaintiff actually had an interest; and it is apparent, from the authorities, that it had always been previously held, in suits upon policies not containing the words "interest or no interest," or other equivalent words, that the plaintiff must aver and prove that he had an interest. This is distinctly asserted by Lord Hardwicke, in the case of Saddlers' Company v. Badcock (supra) ; and in the case of Cranford v. Hunter (8 Term, 14), the counsel, on looking into the precedents at the request of the court, found that it had been the uniform practice, in suits upon marine policies, to insert an averment of interest. To me, therefore, it seems clear, that the decision in Depaba v. Ludlow was made because the court failed to distinguish between a waiver of proof at the trial, which the defendant was, of course, at liberty to make, and waiver in the policy itself, by which it was converted into a mere wager.

In consequence of this case, and others which followed it, Parliament was forced to interfere, as it (lid, by the act of 19 George II (cll. 37),5 reciting the mischiefs which had arisen from the making of marine insurances, "interest or no interest," and prohibiting them thereafter; and when the question subsequently arose in Cranford v. Hunter (supra), as to the validity at common law of a mere wagering policy upon a ship, it was held to be valid, solely

5 For this statute, see infra p. 687.