The Chancellor.
The learned commentator on American law appears to suppose that the express provision against loss by thieves, contained in modern policies, does not embrace a loss by simple larceny, such as occurred in this case, but only that kind of theft kvhich is accompanied by violence. (3 Kent’s Com. 2d ed. 303.) So far as relates to losses by thieves, on shipboard, he is certainly suslained in this opinion by some of the ancient writers on the law of insurance. Malyne says, “ If there be thieves on shipboard, among themselves, the master of the ship is to answer for that, and not the insurer; though the words of the policy assures against losses by thieves, yet they are to be intended assailing thieves. (Maly. Lex. Merc., ch. 25, 4th ed., p. 295.) Weskett. also refers to this passage from Malyne, and concurs in the opinion that the insurers are not liable for losses by thieves who are [293]*293on shipboard. And he adds, “ When a theft has been com= mitted during the night, by land robbers, while the vessel is in port, then it seems the insurer is not bound; such pilferers being different from pirates,” (Weskett on Ins., tit. Theft.) It is evident, however, from what follows this remark, that lie did not intend to apply it to a case where the policy contains an insurance in terms against a loss by thieves. So Hoccus, concludes that the insurer is not liable for goods stolen on board the vessel; that is, by persons rightfully on shipboard. (Roccus on Ins., n. 42.) He says that where a theft is committed by robbers from the shore, while the ship is in port, it would seem that the insurers are not liable; for these robbers differ essentially from pirates. But he adds, “this, however, is_ only true when the insurance is against shipwreck, enemies and pirates; for those robbers not being mentioned, they cannot be considered as included in the insurance.” (Idem, n. 43.) Emerigon also recognizes the distinction between a simple theft and one accompanied by violence from without; and be concludes, that the former does not belong to the class of casualties insured against, because the law presumes it might have been prevented by proper vigilance. (Emerig. Trait Des Assur., Tom. 1, ch. 12, § 29.) I think, however, from, the authorities which he cites, that he only speaks in reference to the general contract against loss by sea risks, and without reference to the express clause, embraced in modern policies, against loss by thieves. The question is not presented here, whether the insurer is liable, under this clause in the policy, for loss from a simple theft by persons belonging to the ship. But he is clearly liable for a loss occasioned by the act of thieves who had no connection with the ship, although the master and ship owners may also be liable as common carriers, on their bill of lading. And it makes no difference in this respect whether the robbery was a simple larceny (furtum) or perpetrated by open violence, denominated latrocMum by the civil law.
It is insisted, however, on the part of the respondents, that, although they, have succeeded in satisfying the superior court that this was a loss for which the underwriters were liable on this policy, it was a case in which the underwriters [294]*294ship owners were equally liable, and that the equities of both were equal as to the assured. Even if this were so, it does not follow that the assured had a right to receive the amount of the loss from either, and assign over to the one from whom it was received the right to claim the full amount from the other party. It would rather present a case of equitable contribution, in which each should contribute a moiety towards the loss, as in the case of a double insurance. The insurers, however, are not liable to contribute for a loss, for which the master or ship owners are also liable to the assured. The Contract of insurance is a mere contract of indemnity to the assured against such losses as he may actually sustain by reason of any of the perils assured against. And upon an abandonment and payment, or upon a recovery, as for a total loss, the underwriters are entitled to subrogation, at least in equity, to all the rights and remedies which the assured has to the property which is not actually destroyed, including the spes recuperandi from any other source; unless the underwriters have relinquished that right by a stipulation in the policy. On this question, I fully concur with the vice chancellor in the conclusion at which he arrived, and also as to the reasons and weight of authority upon which his decision was based. If it had appeared upon the trial of the suit at law that the assured had received a compensation for his loss from the ship owners, or the master, and that the assignment was made for their benefit merely, to enable them to recover back the amount of the insurance-from the underwriters on the policy, there can be no reasonable doubt that it would have been a good defence at law, at least to the amount thus received. And the result would have been the same, if it had appeared that Boyd, the assignee, had received such compensation after the assignment of the policy to him. The defence would have been equally available, if the underwriters could have shown that StorrdW, or his assignee, had cancelled the bill of lading, or otherwise discharged his claim against the master and ship owners.
The particular manner in which the matter has been managed, probably with a view to defraud the underwriters of their remedy over against the ship owners or master, cannot, [295]*295in this court, vary the rights and equities of these parties. It was stated, in the letter of Storrow to the underwriters, in the latter part of July previous to the trial, that he assigned to the ship owners all claims against the company, upon being reimbursed by them the amount of the specie shipped on board the Charles Carroll. But before that time the complainants had been furnished with his affidavit, and a copy of the assignment; by which it appeared that he had assigned the policy absolutely to Boyd, and in his own right The letter of the nominal plaintiff could not, therefore, have been used as evidence on the trial to defeat the rights acquired by the assignee, under the previous assignment. Neither could Storrow himself have been a witness to prove the facts stated in his letter; as he was the nominal plaintiff in the suit. Even if the facts stated in that letter were true, therefore, I do not see how the complainants could have availed themselves of them, as a defence on the trial at law.
Whether Boyd was in fact a bona fide assignee of the policy, or only took the assignment under a fraudulent arrangement entered into between the ship owners and Storrow, for the purpose of depriving the underwriters of their legal and equitable right of subrogation, does not appear from the pleadings in this suit. The complainants do not pretend to know how the fact really was; and the defendants are entirely silent on the subject. They simply admit the writing of the letters referred to in the bill; but without saying whether the information contained therein was true or otherwise. In the absence of all proof on this subject, I must therefore presume, from the assignment itself, notwithstanding what was stated in the letters, that there was a bona fide assignment, to Boyd, who had a legal right to recover upon the policy, by being substituted in the place of the assignor.
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The Chancellor.
The learned commentator on American law appears to suppose that the express provision against loss by thieves, contained in modern policies, does not embrace a loss by simple larceny, such as occurred in this case, but only that kind of theft kvhich is accompanied by violence. (3 Kent’s Com. 2d ed. 303.) So far as relates to losses by thieves, on shipboard, he is certainly suslained in this opinion by some of the ancient writers on the law of insurance. Malyne says, “ If there be thieves on shipboard, among themselves, the master of the ship is to answer for that, and not the insurer; though the words of the policy assures against losses by thieves, yet they are to be intended assailing thieves. (Maly. Lex. Merc., ch. 25, 4th ed., p. 295.) Weskett. also refers to this passage from Malyne, and concurs in the opinion that the insurers are not liable for losses by thieves who are [293]*293on shipboard. And he adds, “ When a theft has been com= mitted during the night, by land robbers, while the vessel is in port, then it seems the insurer is not bound; such pilferers being different from pirates,” (Weskett on Ins., tit. Theft.) It is evident, however, from what follows this remark, that lie did not intend to apply it to a case where the policy contains an insurance in terms against a loss by thieves. So Hoccus, concludes that the insurer is not liable for goods stolen on board the vessel; that is, by persons rightfully on shipboard. (Roccus on Ins., n. 42.) He says that where a theft is committed by robbers from the shore, while the ship is in port, it would seem that the insurers are not liable; for these robbers differ essentially from pirates. But he adds, “this, however, is_ only true when the insurance is against shipwreck, enemies and pirates; for those robbers not being mentioned, they cannot be considered as included in the insurance.” (Idem, n. 43.) Emerigon also recognizes the distinction between a simple theft and one accompanied by violence from without; and be concludes, that the former does not belong to the class of casualties insured against, because the law presumes it might have been prevented by proper vigilance. (Emerig. Trait Des Assur., Tom. 1, ch. 12, § 29.) I think, however, from, the authorities which he cites, that he only speaks in reference to the general contract against loss by sea risks, and without reference to the express clause, embraced in modern policies, against loss by thieves. The question is not presented here, whether the insurer is liable, under this clause in the policy, for loss from a simple theft by persons belonging to the ship. But he is clearly liable for a loss occasioned by the act of thieves who had no connection with the ship, although the master and ship owners may also be liable as common carriers, on their bill of lading. And it makes no difference in this respect whether the robbery was a simple larceny (furtum) or perpetrated by open violence, denominated latrocMum by the civil law.
It is insisted, however, on the part of the respondents, that, although they, have succeeded in satisfying the superior court that this was a loss for which the underwriters were liable on this policy, it was a case in which the underwriters [294]*294ship owners were equally liable, and that the equities of both were equal as to the assured. Even if this were so, it does not follow that the assured had a right to receive the amount of the loss from either, and assign over to the one from whom it was received the right to claim the full amount from the other party. It would rather present a case of equitable contribution, in which each should contribute a moiety towards the loss, as in the case of a double insurance. The insurers, however, are not liable to contribute for a loss, for which the master or ship owners are also liable to the assured. The Contract of insurance is a mere contract of indemnity to the assured against such losses as he may actually sustain by reason of any of the perils assured against. And upon an abandonment and payment, or upon a recovery, as for a total loss, the underwriters are entitled to subrogation, at least in equity, to all the rights and remedies which the assured has to the property which is not actually destroyed, including the spes recuperandi from any other source; unless the underwriters have relinquished that right by a stipulation in the policy. On this question, I fully concur with the vice chancellor in the conclusion at which he arrived, and also as to the reasons and weight of authority upon which his decision was based. If it had appeared upon the trial of the suit at law that the assured had received a compensation for his loss from the ship owners, or the master, and that the assignment was made for their benefit merely, to enable them to recover back the amount of the insurance-from the underwriters on the policy, there can be no reasonable doubt that it would have been a good defence at law, at least to the amount thus received. And the result would have been the same, if it had appeared that Boyd, the assignee, had received such compensation after the assignment of the policy to him. The defence would have been equally available, if the underwriters could have shown that StorrdW, or his assignee, had cancelled the bill of lading, or otherwise discharged his claim against the master and ship owners.
The particular manner in which the matter has been managed, probably with a view to defraud the underwriters of their remedy over against the ship owners or master, cannot, [295]*295in this court, vary the rights and equities of these parties. It was stated, in the letter of Storrow to the underwriters, in the latter part of July previous to the trial, that he assigned to the ship owners all claims against the company, upon being reimbursed by them the amount of the specie shipped on board the Charles Carroll. But before that time the complainants had been furnished with his affidavit, and a copy of the assignment; by which it appeared that he had assigned the policy absolutely to Boyd, and in his own right The letter of the nominal plaintiff could not, therefore, have been used as evidence on the trial to defeat the rights acquired by the assignee, under the previous assignment. Neither could Storrow himself have been a witness to prove the facts stated in his letter; as he was the nominal plaintiff in the suit. Even if the facts stated in that letter were true, therefore, I do not see how the complainants could have availed themselves of them, as a defence on the trial at law.
Whether Boyd was in fact a bona fide assignee of the policy, or only took the assignment under a fraudulent arrangement entered into between the ship owners and Storrow, for the purpose of depriving the underwriters of their legal and equitable right of subrogation, does not appear from the pleadings in this suit. The complainants do not pretend to know how the fact really was; and the defendants are entirely silent on the subject. They simply admit the writing of the letters referred to in the bill; but without saying whether the information contained therein was true or otherwise. In the absence of all proof on this subject, I must therefore presume, from the assignment itself, notwithstanding what was stated in the letters, that there was a bona fide assignment, to Boyd, who had a legal right to recover upon the policy, by being substituted in the place of the assignor. But by giving up the bill of lading to the master to be cancelled, after the judgment was obtained, the complainants were deprived of their remedy over against the ship owners; and standing merely in the character of sureties, to indemnify the assured against actual loss, the judgment must, in equity, be considered as satisfied pro tanto. The vice chancellor has therefore very properly directed that the amount which the master and ship [296]*296owners would have been liable for upon the bill of ladings should be deducted from the amount of the judgment; instead of decreeing a perpetual injunction against the collection of the whole debt and costs.
The conduct of 3torrow in this matter has been such as to leave him without any claim to costs against the complainants. But as it does not appear, except from the statement in his own letter, which was not before the court as evidence upon the hearing upon bill and answer, that he was actually a party to a fraudulent arrangement with the ship owners to deprive the complainants of their rights, although such was probably the fact, I think the vice chancellor should not have charged him with the complainant’s costs. The decree must therefore be modified in that respect. As to Boyd, he was fully apprised of the complainants’ equitable rights, by what took place in the progress of the suit in the superior court; and having delivered up the bill of lading in fraud of those rights, he was properly charged with the costs necessarily incurred by the complainants in this court.
As both of the defendants have concurred in a joint appeal from the whole decree, and as they have substantially failed as to the whole, there is no good reason for excusing either from the payment of the costs of the appeal.