Tyrie v Fletcher
| Jurisdiction | England & Wales |
| Judgment Date | 18 November 1777 |
| Date | 18 November 1777 |
| Court | Court of the King's Bench |
English Reports Citation: 98 E.R. 1297
IN THE COURT OF KING'S BENCH, CHANCERY AND COMMON PLEAS
[666] tyrie versus fletcher. Tuesday, Nov. 18, 1777. Upon a policy "at and from such a port to any other port or place whatsoever for 12 mouths, at 91. per cent, warranted free from capture," the risk is entire; and therefore, if once begun, there shall be no return of premium. This was an action on the case, for money had and received to the plaintiff's use; brought by the plaintiff, the insured in a policy of insurance, against the defendant, the underwriter, for a return of part of the premium.-The cause was tried before Lord Mansfield at Guildhall, at the sittings after last Trinity term, when, by consent, a verdict was found for the plaintiff, subject to the opinion of the Court upon the question, whether, under the circumstances of the case, a proportionable part of the premium ought to be returned, or notl If the Court should be of opinion, that a proportionable part of the premium ought not to be returned, then a nonsuit was to be entered.-It now came before the Court upon a rule to shew cause why a nonsuit should not be entered ; and the case, as it appeared from the report, was shortly this. " The policy of insurance was upon the ship ' Isabella,' at and from London to any port or place, where or whatsoever, for twelve months, from the 19th of August 1776, lo the 19th of August H77, both days inclusive, at 91. per cent, warranted free from captures and seizures by the Americans, and the consequences thereof." In all other respects it was in the common form, against all perils of the sea, &c. The ship sailed from the port of London, and was taken by an American privateer, about two mouths afterwards. Mr. Dunning and Mr. Davenport, for the plaintiff, shewed cause, and insisted, that a proportionable part of the premium in this case ought to be returned; that 91. the compensation estimated for the risk of twelve months, was much more than adequate to the risk actually run in this case, viz. only two months. That from the nature of the insurance, both parties must know the risk was divisible ; and of course intend, if it ceased before the twelve months, that the whole of the premium should not be retained. That this was the law in other cases, where, upon a suitable compensation for a given risk, the risk had turned out to be different from what was expected. In Stevenson versus Snow, 3 Bur. 1237, the risk ceased before the end of the voyage insured, and it was there held, there should be a return of premium in proportion to the risk that had not been run. It is true, that was a policy upon a voyage; but it is as easy, or easier, to apportion the risk in a policy upoti time, [667] as it is, in a policy upon distance. In the case of Bond versus Nutt, Triri. 17 Geo. 3, B. R.* which was a policy "at and from Jamaica to London,"...
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