The opinion of the Court was drawn by
The plaintiff, in his declaration, alleges, that, "on the 13th day of September, 1856, he was the owner of one-eighth part of the schooner Fred. Wording, and that the defendants, in consideration of a premium therefor, paid to them by him, on the 15th day, of said September, made a policy of insurance upon said schooner for the term of one year, commencing on the 13th day of September aforesaid, at noon, and thereby promised to insure for him five hundred dollars upon said schooner for the term aforesaid, against the perils of the sea, and other perils in said policy mentioned; and avers that afterwards, and within the year aforesaid, to wit, on the 24th day of December of that year, the said schooner was by the perils of the sea wrecked and totally lost; of which the said defendants thereafterwards, to wit, on the same day, had notice and were bound to pay the same in sixty days. Yet, although requested,” &c.
To this declaration the defendants*file the following specification in brief of the nature and grounds of their defence, to wit: — "They expect to prove the act of barratry on the part of the master of the vessel insured by them, which act was not covered by the policy declared on in the plaintiff’s writ.”
Upon these pleadings, the only point at issue, at Nisi JPrius, was the alleged barratry of. the master. No one of *190the allegations in the writ was denied, but were admitted, and the plaintiff, after having read his writ to the jury, could with safety have rested his case and was legally entitled to a verdict, unless the defendants, taking upon themselves the burden of proof, had maintained their specified defence, which they wholly failed to do.
But the plaintiff appears not to have rested his case upon the pleading, but unnecessarily introduced evidence tending to show, as the defendants contend, an intentional concealment of a material fact as to the ownership of the property insured, at the time of its insurance, and a subsequent transfer of the policy, either absolutely or .in pledge, without their consent, whereby the contract of insurance was, or'became ineffectual.
The defence, as now presented, rests principally .upon the testimony of Oalces Angier, (a witness called by the plaintiff,) who states, "that the master (Greo. O. Euss) took the vessel in the spring of 1856, and sailed her at the halves, the usual terms, manning and victualling her, and paying half her port charges, and so continued to sail her till shé was lost, Dec. 9, 1856.” Hence’it is contended by the defendants that the master was the. owner gyro hac. vice, which fact was not disclosed to them. But, if not disclosed, was such fact material to the risk ? It became material to the defendants in one respect but wholly for their benefit, for it allowed them to introduce evidence to prove the barratry of the master; otherwise that fact is immaterial, unless it should be, as the defendants have argued, that the master, under such circumstances with no insurance, would be induced, by selfish and corrupt motives, to disregard his duty to all parties interested in the safety of the vessel, himself among the rest. Courts do not assume that men so conduct in the management of their affairs, but rather that all are honest and faithful until the contrary appears.
Mr. Angier further testified, " that, sometime before the loss, the plaintiff, being bound on a voyage at sea, went with him to the office of the defendants, and there Mr. Brad*191bmy, their secretary, wrote the order on the back of the policy, and the plaintiff signed it and left it with him for collection in case of loss in his absence, being then‘indebted to him on a balance of account, and, as security for said balance, which was soon thereafter settled and paid.”
The indorsement, referred to on the policy, was in these words, — "In case of loss pay loss to O. vAngier. J. A. Russ.”
It is not now contended, as it was at the trial, that the indorsement constituted an assignment, but it is conceded, in the defendants’ argument, that it only created Angier the plaintiff’s agent. In the order of time, then, the case finds that the policy was indorsed (not transferred) and left with Angier for collection in case of loss in his, the plaintiff’s absence, and, as security for said balance. It is the latter part of the foregoing testimony which the defendants rely upon as establishing a pledge.
One of the essential elements in the contract of pledge, is the delivery of the thing pledged to the pledgee, and the possession retained by him until the debt secured thereby shall have been paid, or the pledge forfeited. Was there here such'a delivery of the policy? We think not. The evidence, as a whole, amounts to this, — I leave this policy with you (Angier) for collection in case of loss in my absence, and, from the proceeds, you may deduct my indebtedness to you. It is inferable that the policy was to be restored to the plaintiff on his return, in case no loss had occurred or collection made. Or, in other words, the security depended upon the loss and collection during the plaintiff’s absence. Any other construction would defeat the very object of the parties, and render the policy void as to both. We cannot infer any such intention.
Judgment for the plaintiff" for the sum insured, with interest from the time it became payable.
Appleton, C. J., Davis, Kent, Walton, Dickerson and Barrows, JJ. concurred.