INSURABLE INTEREST   247

the proof. His interest was this: Van Middlesworth and the plain-tiff, together with certain other persons, had entered into an association called The New Brunswick and California Mining and Trading Company, the capital stock of which consisted of forty-five shares, of six hundred dollars each. The members were partly shareholding members and partly active members; the shareholders being required to furnish a substitute to proceed to the mines of the company. The plaintiff owned one share, advanced six hundred dollars of capital, and procured Van Middlesworth to go out as his substitute, which he did and acted as his agent and substitute, and the assets of the company having been divided in California, before his death, the received the plaintiff's share, dying before the had re-turned and paid over the same. By one of the articles of the association, all treasures and all the proceeds of the labor of each member, and all profits, were to go into the general fund for the benefit of the whole.

On behalf of the plaintiffs in error, it was insisted that the con-tract of insurance is simply a contract of indemnity, and that the plaintiff below having failed to show an interest in the life of Van Middlesworth, to the extent of five hundred dollars, was not entitled to recover that sum, and that the judge erred in not so charging. Our first inquiry, therefore, must be as to the nature of the contract itself.

The case of Godsal v. Baldero, 9 East, 72, is the leading case re-lied on to show that a contract of life insurance is simply a contract of indemnity, not only requiring an interest in the assured in order to give validity to it at its inception, but continuing good only so far as it is rendered so by the permanence of such an interest. This case has been since adhered to and has often been considered as founded on the common law, an impression to which some countenance is given by some of the language used by Lord Ellenborough in giving the opinion of the court. It is evident, however, that the decision was warranted, not by the common law, but by the statute of 14 Geo. 3, c. 48, which does not purport to be a declaratory act, but enacts in express terms, that no insurance shall be made on the life of any person wherein the person for whose use such policy shall be made shall have no interest, and that in all cases where the insured bath interest in the life, no greater sum shall be recovered or received from the insurers than the amount or value of the interest of the insured in such life. This statute not extending to Ireland, the courts in that country have held in several recent cases, that at the common law, policies of insurance are valid without any

interest. * * a>

No such statute exists in this state. Whether an action can be sustained on a policy without interest, which is therefore in some respects like a mere wager on the life of a third person, or on any other wager relating to a transaction in itself legal, does not ap-