INSLRABLE INTEREST   245

concludes by saying that "the necessity of an interest in the life insured, in order to support the policy, prevails generally in this country, because wager contracts are almost universally held to be unlawful, either in consequence of some statute provision, or upon principles of the common law." (3 Kent Com., 368.)

This obscure manner of treating the subject is plainly to be attributed to the reluctance of the learned author to admit (not-withstanding the impression that appears to have obtained in England), that gambling in life insurance could be tolerated at common law. That impression has been here traced, as I think, with justice to the very questionable doctrine of the English Courts in regard to marine policies. It has never, that I am aware of, been recognized and adopted by any American Court, and is so obviously repugnant to the plainest principles of public policy, that it is somewhat surprising that it should ever have existed. My conclusion. therefore, is, that the statute of 14 George III, avoiding wager policies upon lives was simply declaratory of the common law, and that all such policies would have been void, independently of that act.

It is said that the defendants, by issuing the policy upon the representation of the plaintiff that he had an interest, have admitted his interest, and that the production of the policy is at least prima facie evidence of such interest. This position can not be sustained. All the older authorities show, that even in actions upon marine policies, not containing the clause "interest or no interest," it was necessary to aver, and of course to prove, the interest of the plaintiff. It is an indispensable part of the plaintiff's case, to be made out affirmatively at the trial. Upon this ground, therefore, as well as that before considered, the judgment of the Supreme Court must be reversed ; and there must be a new trial, with costs to abide the event.

All the judges, except Davies and Mason, Js., concurred that the plaintiff must show an interest in the life insurance. On the question of evidence in respect to the prospectus being admissible as part of the policy or entering into the contract, Comstock, Ch. J., Davies and James, Js., dissented.

Judgment reversed, and new trial ordered.6

6 From the company's point of view we have seen that life insurance is essentially non-speculative; in fact, probably no other business operates with greater certainty. But it is equally important to remember that from the insured's point of view life insurance is also the antithesis of gambling. Nothing is more uncertain than life, and life insurance offers the only sure method of changing that uncertainty into certainty. Failure of the head of a family to insure his life against the sudden loss of his value through death amounts to gambling with the greatest of all chances, and the gamble is a particularly mean one since in case of loss the dependent family and not the gambler must suffer the consequences." Huebner, S. S., Life Insurance (1926) p. 12.

"Insurance is the exact opposite of gambling. In gambling two persons deliberately set about to create some hazard for pleasure or profit; they introduce the element of risk where it previously did not exist. Insurance, however, is