HERCULES INSURANCE COMPANY v JOHN HUNTER (Court of Session)

From the report of the trial of this cause, (collected as above,) it will be seen that the jury found for the defender on the first issue; and on the second, ‘that the insurance was effected by the defender upon a fraudulent over-valuation of the machinery, but not with the intention of destroying the same by fire.’

A question arose as to the construction of the verdict, both parties claiming the benefit of it. Counsel were heard before the Court. On advising,

About a fortnight after the insurance was effected, the property was destroyed by fire, and a claim was made by Hunter for the full sum insured. This claim the company refused to admit, alleging, inter alia, that the goods destroyed were not of the value put on them. The matter was submitted to arbiters, who, after having allowed a proof, found that Hunter had suffered a total loss; that the value of the machinery, at the date of the fire, was L.1450; and that the insurance company was liable in that sum.

The record having been closed, the Lord Ordinary issued the following interlocutor: ‘Finds that it is competent to inquire, under this record, into the fact of the fire having been wilfully raised by the defender; and that it is proper that this fact, which, if established, goes to destroy the whole submission, should be determined before deciding whether the decreet under that submission be effectual; therefore remits the case to the Jury Roll.’

The parties then went to the jury clerks, who prepared an issue as to the second of the pursuers' averments above mentioned, viz. ‘Whether the defender destroyed the said machinery, or caused the same to be destroyed as aforesaid, for the purpose of defrauding the pursuers of the said sum, insured as aforesaid?’