HERCULES INSURANCE COMPANY v JOHN HUNTER (Court of Session)

Certain machinery, the property of Hunter, the defender, was insured by Mr Salmond, agent at Glasgow for the Hercules Insurance Company, against damage by fire, for the period from 8th October 1831 to Martinmas 1832. The machinery was, on 22d October 1831, destroyed by fire. The parties submitted to two arbiters the claims arising from the damage done by the fire, and a decree was pronounced, finding the insurance company liable in a certain sum.

The Lord Ordinary, (Cockburn,) found that it was ‘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 decree under that submission be effectual;’ and remitted the case to the Jury-Roll.

Note. —‘The Lord Ordinary purposely couples the remit with a finding, because, in the circumstances of the case, he thinks the defender has a fair claim to have the opinion of the Court on the remit, if he wishes it.

After the submission was gone into and disposed of by a decree, the pursuers brought the decree under reduction, on certain legal grounds; and then, after the case had gone a certain length, they got leave, by interlocutor of Lord Moncreiff, to give in an amendment, which charges the defender with the fire-raising. It is maintained by the pursuers, the Lord Ordinary thinks justly, that if this charge be supported, it goes altogether to destroy the agreement to refer, and that therefore this fact must be first disposed of.

The following issue, prefaced by the admitted facts of insurance, fire, and decree-arbitral, was approved of by the Lord Ordinary, 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?’