
    Samuel Hemmenway versus John Eaton.
    It was agreed in a policy of insurance, that, in case of a loss, no proof of propen should be required, and no return of premium be made for want of interest; the assured agreeing, in case of capture, to claim as Swedish property, and stipulating that the vessel should be documented and manned as Swedish property. Upon her being captured, the assured abandoned ; but the property was finally restored, deducting certain large expenses attending the claim. It was holden, that the assured was entitled only to an indemnity for his actual loss, notwithstanding the agreement in the policy,
    This was an action of the case upon a policy of insurance on the Swedish schooner Sara, her cargo and freight, from her port of lading m the West Indies to a port of discharge in the United States. The policy was in common form, except that it contained an agreement, that, in case of loss, no proof of property was to be required, and no return of premium to be made for want of interest. In case of capture, the assured agreed to claim as Swedish property. In the margin was a memorandum in the following words ; “ Swedish register and papers complete. Swedish captain and crew, except one man.” The defendant subscribed $ 200, and the subscriptions of prior un derwrilers amounted to $ 2000.
    At the trial, which was had at the last November term in this county, before the Chief Justice, the plaintiff claimed to recover a total loss. It was in evidence, that the Sara sailed from Salem for 
      St. Bartholomew’s in December, 1813, with a cargo of lumber, the vessel and cargo being in the name of one Pierre, a Swede ; the principal object of the voyage being to procure Swedish papers for the vessel. At St. Bartholomew’s, the vessel and cargo were nominally transferred to J. M. Martins, Swedish subjects resident at that island. With a return cargo of molasses, partly the proceeds of the outward cargo, and partly shipped on freight by Swedish subjects, the vessel sailed on the 4th of April, 1814, for the United States, and on her passage was captured by a British vessel of war, and carried to Halifax on suspicion of her being American property The vessel and cargo were there libelled as prize, but were finally restored. * While the vessel was under detention at Halifax, the plaintiff abandoned. After the abandonment, the vessel and cargo were sold by order of the Admiralty at Halifax, and the proceeds of the vessel, and of that part of her cargo which was the proceeds of the outward cargo, together with the freight of the remainder, were paid to J. Martins, one of the nominal owners aforesaid, who had followed the vessel to Halifax; and the same had come to the hands of the plaintiff, deducting certain large expenses incurred at Halifax.
    
    The defendant contended, that it was incumbent on the plaintiff to prove, by the production of the original documents, and by evidence of the Swedish laws, that the Sara and her cargo were properly documented as Swedish property ; and that no other evidence was admissible for the purpose.
    The jury were instructed, that the release of the vessel and cargo was evidence, from which, together with the other evidence in the cause, they might infer that they were properly documented as Swedish, and that, under the circumstances, it was not incumbent or the plaintiff to produce the documents themselves, nor to show by evidence what were the requisites of the Swedish law.
    The jury returned a verdict for the plaintiff for $ 206 ; and it was agreed, that the amount of salvage, deducting the expenses, should be ascertained by an assessor ; and the proportion of such salvage belonging to the defendant deducted from the sum found by the verdict.
    Several other points were taken at the trial, but not insisted on in the argument; which turned principally on the construction of the policy.
    
      Davis &/• Welsh, for the defendant,
    contended, that on the face of the policy it was a mere wager, and as such void ; or, if not a wager policy, it must be considered, not as a valued, but an open one, and the plaintiff was, therefore, holden to prove his interest, as in other cases of open policies. The intention of the parties in the particular clause * in this policy was, that the assured, being obliged by the war, in which the country was involved, to trade in the name of neutrals, should not be held to produce the customary and legal proof of property ; and not that he should receive more than an indemnity for his loss.
    
      Prescott &/• Gallison, for the plaintiff,
    insisted, that, having proved some interest in the subject of the insurance, and thus shown it not to be a wager policy, the plaintiff was not to be held to prove the amount of his interest. The particular stipulation was introduced to avoid the necessity of any such investigation ; and it amounts to an agreement on the part of the underwriter, that the assured was interested to the amount insured, for which he also was willing to pay a premium.
   Parker, C. J.,

delivered the opinion of the Court. The question which has been argued in this case is, whether the policy, on which the suit is brought, is a valued policy, so as to preclude the necessity of proving the amount of interest insured. The words on which this question has arisen are, “In case of loss, no proof of property to be required, and no return of premium to be made for the want of interest.” And it is added, “In case of capture, the assured agrees to claim as Swedish property.” It is agreed, that the vessel sailed in the character of a Swede, being documented as such.

The object and intent of the agreement not to require proof of property is sufficiently evident. It was to prevent, on the one hand, the underwriter from denying his liability, for want of legal evidence of property in the plaintiff; and, on the other hand, to prevent the plaintiff from withholding the premium, on the ground that he had no legal interest. To give it any other construction would be to violate the good faith which ought to subsist between parties who, by the necessities arising from a state of war, have been driven to pretences of this kind, in order to be able to carry on commerce of any kind. It never was intended that the insured should recover *more than he had at risk ; and, if the construetion now contended for by the plaintiff should prevail, the consequence would be, that the policy would be wholly void, being, on that supposition, a wager policy.

Policies held to be valued have become so by virtue of certain words, which may be considered technical; and they are well understood by all who concern themselves in commerce. It would be dangerous to give to any other form of words that meaning, where any doubts may exist as to the intention to give them that effect.

We are all clear that the plaintiff can recover only according to his interest insured by the policy, after deducting what had been previously insured ; and that there must be an abatement of the premium in proportion.

Assessors are to be appointed, who shall ascertain the amount justly due to the plaintiff; and they must be liberal in receiving evidence of the plaintiff’s interest, that he may obtain a full indemnity for his loss.  