or lost, the defendant says that the same were not stolen or lost Against an in consequence of the negligence alleged in the 5th paragraph innkeeper for goods of the statement of claim, or of any negligence on the part of stolen at the defendant or his servants.

Action against Hotel-keeper for injury to Goods.

1. The plaintiff is a civil engineer. The defendant is a hotel keeper, and the proprietor of the " Beaconsfield Arms,” in H., in the county of which is an inn or hotel for the recep

tion, entertainment, and accommodation of travellers.

2. On the 8th of September, 1877, the plaintiff was received by the defendant into his said hotel as a traveller.

3. The plaintiff brought with him into the said hotel, among other goods, a box containing several valuable instruments connected with his profession of a civil engineer, and also certain documents, plans, and maps; and placed the said box and its contents on a table in a private sitting-room assigned to him in the said hotel by the order and direction of the defendant's manager.

4. On the 9th of September aforesaid the said box was by reason of the negligence of the defendant's servants thrown from the table on which it was so placed as aforesaid on to the floor of the said sitting-room.

5. The said contents of the said box were so injured and damaged in consequence of being so thrown that they became and are wholly worthless to the plaintiff.

The plaintiff claims £150 damages.

Statement of Defence.

1. The defendant denies that the plaintiff brought to his inn the goods mentioned in the 3rd paragraph of the claim.

2. The defendant denies that his manager ordered or directed the said goods, or any goods, to be placed in a private sitting

room.

3. The said box and its contents were not thrown down from the table on to the floor and damaged or injured by any negligence of the defendant's servants.

4. The defendant does not admit the allegations contained in the 5th paragraph of the statement of claim.

his inn.

Against an innkeeper for injury to goods at his inn.

Against an innkeeper. Defence of

the 26 & 27

Vict. c. 41.

5. The defendant further says that the said box and its contents were property brought to the defendant's inn (not being a horse or other live animal, or any gear appertaining thereto, or any carriage) within the provisions of the 26 & 27 Vict. c. 41, s. 1.

6. The defendant, at the time he received the plaintiff into his inn, and thenceforth while the plaintiff resided therein, had exhibited and kept exhibited in a conspicuous part of the hall or entrance to the said inn a copy, printed in plain type, of section 1 of the above-mentioned Act.

7. The said box and its contents were not deposited expressly for safe custody with the defendant, as such innkeeper.

8. The said box and its contents, if injured at all, were not injured through the wilful act, default, or neglect of the defendant as such innkeeper, or by any servant in his employ.

Defence of insanity.

Insanity (a).

Defence of Insanity to an Action on a Contract.

1. The defendant, at the time when he made the alleged agreement [or executed the said deed, or accepted the said bill, or as the case may be], was of unsound mind, and was thereby incapable of making [or executing, or accepting, &c.], or understanding the same.

2. The plaintiff, at the time of the making of the said agreement [or as the case may be] knew that the defendant was then of unsound mind.

Reply.

1. The plaintiff denies that he knew the defendant was of unsound mind, as alleged in the 2nd paragraph of the statement of defence, and he says that the said agreement was made fairly and in good faith.

(a) If a contract is made with a person of unsound mind, with knowledge of the fact by the other party, such contract cannot be enforced against him. If, however, such party was ignorant of the insanity, and the transaction was fair and bona fide on his part, the contract will be valid. See Molton v. Camroux, 2 Exch. 487; 4 Exch. 17; Baxter v. Earl of Portsmouth, 5 B. & C. 170; Read v. Legard, L. J. 20 Exch. 309.

Insurance-Marine Policies (a).

Claim under Policy for Total Loss, Particular and General On a marine policy Average Losses, and Expenses under Suing and Labouring for a total Clause.

1. The plaintiffs are a firm of shipowners carrying on business in the City of London, and were the managers and owners of a

loss, average losses, or under

the suing

or labouring clause.

insurance,

a contract of indem

(a) Marine insurance is a contract by which the insurers, called underwriters, undertake, in consideration of a certain sum of money called the premium, to indemnify the assured against any loss which he may actually sustain, not exceeding a specified sum, upon ship, goods, or freight, as the case may be, either during a certain voyage or for a certain time. In the former case the policy is called a voyage policy; in the latter, a time policy. The party entering into a contract of The ininarine insurance must have some bona fide pecuniary interest in the sured must subject-matter of insurance. He must have what is called an insurable have a interest, and this interest must exist not only at the time of entering pecuniary into the policy but also at the time of the loss. Marine insurance is a interest. contract of indemnity merely; and it follows from this, that if the assured Marine never had any interest in the subject-matter of insurance, or if his interest did not continue till the loss happened, he sustains no injury by the happening of the loss, and there is nothing for which to indemnify him. Another result which follows from the doctrine that the assured must nity. have an insurable interest is this. He can only recover from the underwriters to the extent of his insurable interest. It may be that in conse- Consequence of insuring with a number of underwriters the total amount written quences of on the aggregate of the policies he holds is in excess of the value of the this. subject-matter of insurance, but this will be no advantage to the assured. He must not make a profit out of the common misfortune of the underwriters and himself; and he can only recover against any one or all of the underwriters the actual loss he has suffered. He is not, however, bound to apportion the loss among the different underwriters, and can proceed against one of them and recover the total amount from him, provided he has underwritten the policy to that amount. In that case it will be for the underwriter who has had to pay all the loss to come upon the other underwriters who have insured the same risk for contribution. Insurable interest.]-In the statement of claim it is necessary expressly to aver the fact of the plaintiff's interest in the ship, goods, or freight insured, and the averment must be that the plaintiff was interested at the time of the making of the contract (except, of course, where an assignee of a policy is suing, then an allegation of the assignor's interest at the time will do), and also at the happening of the loss. Ship-owners have an insurable interest in their ship. Upon the principle already stated, where they assign away their interest in the ship before the loss, they cannot recover except as trustees for the assignee, and this only when there has been an agreement that the policy should be kept alive for the benefit of the latter (Powles v. Innes, 11 M. & W. 10) ; but an assignment by way of mortgage, though in terms absolute, will not prevent the assured from recovering. (Ward v. Beck, 13 C. B. N. S. 668; L. J. 32 C. P. 113.) A person who lends money for the repair of a ship has no insurable interest in it, and an hypothecation of a ship by a master gives no insurable interest to the creditor. (Stainbank v. Shepard, 13 C. B. 418; L. J. 22 Ex. 341.) A mere equitable interest in goods is an insurable

What constitutes an insurable interest.

On a ma

vessel called the "St. James;" and the defendant is an under

rine policy writer carrying on business in Liverpool.

for total loss, &c.

2. On or about the

day of

-, 1877, the plaintiffs

one (Hill v. Secretan, 1 B. & P. 315); and a lien on goods is insurable. (Briggs v. Merchant Traders' Insurance Ass., 13 Q. B. 167.) The interest of a shipowner on the profit expected from carrying his own goods is properly described and insured as freight. (Flint v. Flemyng, 1 B. & Ad. 45; Devaux v. l'Anson, 5 N. C. 519.) The assignee of a policy stands upon the interest which his assignor had at the inception of the risk, and his own interest at the time of the loss.

Beginning and end of the risk.]-This differs whether the policy is a time or a voyage policy. If the former, the risk begins at the first date and ends with the last date, and the underwriters are only liable if the loss happens on or between these dates. In the case of a voyage policy, the risk begins when the insurance is on a voyage "at and from," as soon as the ship is geographically within the port (Haughton v. Empire Marine Insur. Co., L. R. 1 Ex. 206); or, at the beginning of the voyage when the insurance is "from" the port. (Small v. Gibson, 16 Q. B. 156; L. J. 20 Q. B. 152, Ex. Ch.) The risk in the case of a voyage policy on the ship terminates in general at the end of twenty-four hours after mooring in safety in port, but where during the twenty-four hours the ship is compelled to go back for performance of quarantine, the risk continues. (Waples v. Eames, 2 Str. 1243.) In the case of goods, the risk depends on the agreement of the parties, but it usually begins with the loading on board, and ends with the safe discharge, including their passage to the shore by usual means. (Twiney v. Etherington, 1 Burr. 348.) The risk on insurance of freight begins when the goods or part are on board, or the ship is at the port of loading in a condition to take them on board. (Foley v. United Fire, &c., Insur. Co., L. R. 5 C. P. 155; Jones v. Neptune Marine Insur. Co., L. R. 7 Q. B. 702.

The loss.]-There must be an averment that there was a loss of part or all the subject-matter of insurance by the perils insured against. These perils are enumerated in the particular policy; but the usual perils insured against in marine policies are all perils of the sea, loss by fire, by capture, loss by restraint of princes, loss by barratry, and then follow general words "all other perils, losses, and misfortunes; but on the principle that general words of the kind are to be taken as ejusdem generis with those that have gone before, these words only refer to perils, losses, and misfortunes of a like nature to those already enumerated. If the insurance is with the words "lost or not lost," it will attach, although the subject-matter had been in fact lost at sea at the time of insurance, provided the party insured was then ignorant of the loss. (3 Kent Com. 258, 259; Mead v. Davieson, 3 Ad. & E. 303.) In determining whether a particular loss is within the perils insured against, the proximate and not the remote cause of loss is to be regarded. But where the insurance is against perils of the sea, and mischief is occasioned by the sea, the natural and unavoidable consequence of which is to cause a farther mischief, the consequential injury also is a peril of the sea, as where the sea-water damages part of a cargo, which thereby becomes putrid so as to injure another part of the cargo in contact with it. (Montoya v. London Assur. Co., 6 Exch. 451; L. J. 20 Ex. 254.) A loss by perils of the sea, though remotely caused by the negligence of the crew, is within the policy. (Walker v. Maitland, 5 B. & A. 171; Bishop v. Pentland, 7 B. & C. 219.) So a loss occasioned by the mistake of the master, provided he was a person of competent skill when the policy was effected. (Phillips v. Headlam, 2 B. & Ad. 380.) So though the ship was damaged by negligent loading, and

effected with the defendant a policy of marine insurance in the ordinary form for £1000, which the defendant subscribed for £50, at a premium of 7 guineas per centum, and became and

became leaky, and was run ashore to prevent sinking. (Redman v. Wilson, 14 M. & W. 476.) A ship never heard of after sailing is presumed to have foundered at sea. (Green v. Brown, 2 Str. 1199.) It is sufficient to prove that the ship has not been heard of in the country from which she sailed, without calling witnesses from the port of destination to prove that she never arrived there. (Twemlow v. Oswin, 2 Camp. 85.) The time within which a missing ship will be presumed lost must depend on the circumstances of the case; and in Houstman v. Thornton, Holt. N. P. 242, a ship which had sailed on a seven weeks' voyage, and had not been heard of for eight or nine months, was presumed to be lost. Though a ship is burned by the negligence of the master and mariners, this is a loss by fire within the policy for which the underwriters are liable (Busk v. R. Exch. Assur. Co., 2 B. & A. 73); but on an insurance of goods, if the goods are burnt in consequence of being put on board in bad condition, this being occasioned by the insurer's own act, would not be a loss by fire within the policy. (Boyd v. Dubois, 3 Camp. 133.) As to what amounts to a loss by restraint of princes, see Aubert v. Gray, L. J. 32 Q. B. 50; Bruce v. Nicopulo, 11 Exch. 129; L. J. 24 Ex. 321; Rodocanachi v. Elliott, L. R. 8 C. P. 649, and in Ex. Ch. L. R. 9 C. P. 518; Geipel v. Smith, L. R. 7 Q. B. 404. There is usually a memorandum on marine policies protecting the insurer from claims for loss on certain articles, or from liability to particular average "unless the ship be stranded; " and in a great num

On a marine policy loss, &c.

for total

"Perils of

the sea."

When a ship never heard of is

supposed

to have

foundered.

What con

stitutes a

stranding.

ber of cases there has been a keen contest as to what constitutes a stranding. The fact that the ship struck or took the ground is not enough; she must be stationary for some little time, as twenty minutes. (Baker v. Torry, 1 Stark. 436.) A stranding," said an eminent judge, "may be said to take place where a ship takes the ground not in the ordinary course of navigation, but by reason of some unforeseen accident. (Bishop v. Pentland, 7 B. & C. 219.) If therefore the ship takes the ground in the ordinary and usual course of navigation and management in a tidal river or harbour, upon the ebbing of the tide or natural deficiency of water, so that she may float again upon the flow of the tide or increase of water, such an event is not a stranding." (Per Lord Tenterden, in Wells v. Hopwood, 3 B. & Ad. 34.) If however there be a stranding, and the goods were on board at the time, the policy applies, though the loss or injury to the goods was not caused by the stranding, but by some other cause. (Ibid.) A loss may be total or partial; and a Losses total loss may be either actual or constructive. A total loss is where the subject-matter of insurance is either totally destroyed or is so damaged as to be worthless, and the adventure is thereby totally frustrated. (Roux v. Salvader, 3 N. C. 266.) A constructive total loss is where the thing insured, though still existing in fact, is lost for all useful purposes, so as to justify the insured in abandoning all his interest in it to the insurer, and claiming as for a total loss. (See Roux v. Salvader, supra; Naylor v. Taylor, 9 B. & C. 718; Holdsworth v. Wise, 7 B. & C. 794.) Notice of abandonment must be given to the underwriters. It need not be in writing, but it must be certain, it must be unconditional and unqualified (Mc Masters v. Shoolbred, 1 Esp. 239); and it must be given as soon as possible. (Hunt v. R. Exch. Assurance Co., 5 M. & S. 47.) Where the loss is total, that is to say where the ship is lost, or destroyed, or captured, or reduced to a mere wreck, or congeries of planks, so as to exist as a ship for no useful purpose (Farnworth v. Hyde, 18 C. B. N. S. 835; L. J. 34 C. P. 207; Cambridge v. Anderton, 2 B.

divided into total and partial; and total into actual or constructive.

Notice of abandon

ment.