head remains in specie, it is only an average loss. Hedbergh and another v. Pearson, Holt, 349. Gibbs, C. J.

1816.

202. Underwriters, on goods, are only liable for an average loss, where the ship, being captured and re-captured, is sent into port, stripped of all her hands, and the captain not being able immediately to procure a fresh crew, or to raise money to pay the salvage, sells

196. Nor does the answer of the underwriters requesting the assured to do the best they can with the property, amount to an assent to such an aban-ship and cargo, and breaks up the addonment. Ibid.

venture. Underwood v. Robertson, 4

197. The assured cannot abandon on Campb. 138. Ellenborough, C. J. 1815. the ground that on approaching the port

of destination he found it occupied by

the enemy.

Lubbock v. Rowcroft, 5

Esp. 50. Ellenborough, C. J. 1803. 198. Where goods are so damaged,

M. (b) At what time.

203. Where, before abandonment,

as to be unfit for the market for which the ship insured is re-purchased from they were intended, the assured may the captors by the master, the assured abandon. Gernon and another v. Royal cannot recover as for a total loss. Exchange Assurance Company, Holt, M Masters v. Shoolbred, 1 Esp. 237. 49. Gibbs, C. J. 1815. Kenyon, C. J. 1794.

And the court of C. P. discharged a rule for setting aside the verdict. Ibid. and 2 Marsh. 92.

204. Upon receiving intelligence of a loss, the assured must make his election to abandon or not; he cannot wait to see the issue. Abel v. Potts, 3 Esp. 243. Le Blanc, J. 1800.

S. P. Pothier, Traité du Contrat

199. In the case of an insurance on freight, a total loss cannot be recovered without an abandonment, if the cargo remain, although both ship and cargo d' Assurance, chap. 3. sect. 2. num. have been sold. Parmeter v. Todhunter, | 123. 1 Campb. 541. Ellenborough, C. J. 1808.

205. But it appears to be stated to have been ruled, that the assured may 200. On receiving intelligence of a abandon at any time before he can be capture, the assured abandon. It ap-shewn to have been conusant of a change pears afterwards, that before the aban- of those circumstances which constituted donment was made the vessel had been the total loss. Ibid. recaptured, and had continued her voy206. The assured is entitled to a reaage. Ruled, that the underwriters were sonable time for examining the state of liable for a total loss. Bainbridge and a perishable cargo, before he makes his another v. Neilson, 1 Campb. 237. El-election. Gernon and another v. Royal lenborough, C. J. 1808. Exch. Assurance Comp. ubi

S. P. adm. Grigg v. Stoker, Forrest, 12. And see Bean v. Stupart, Dougl. 11, 14; Hamilton v. Mendes, 2 Burr. 1198. S. C. 1 Bla. 276. Everth V. Smith, 2 M. & S. 278; Ritchie v. Falkner, ib. 290.

But upon a case reserved, the court of K. B. held, that only an average loss could be recovered. Ibid. 564, and 10 East, 329.

Vide tamen, Smith v. Robertson, 2 Dow, 474.

supra.

And the court discharged a rule for setting aside the verdict. Ubi supra.

But he cannot delay sending a notice 17 days after the examination. Aldridge v. Bell, 1 Stark. 498. Ellenborough, C. J. 1816.

207. Consignee in Ireland of flax-seed from America, receives in February intelligence of the detention of the vessel by an embargo; but he does not abandon till the 11th of June. Held, that though the assured might perhaps have waited 201. Whilst the timbers of a vessel till the expiration of the sowing season, hold together the assured cannot break which was on the 10th of May, the her up, and charge the underwriter with abandonment on the 11th of June was a total loss, without an abandonment. too late. Kelly and others v. Walton, Bell and others v. Nixon, Holt, 423.12 Campb. 155. Ellenborough, C. J. Dallas, J. 1816.

1809.

180. A sentence of condemnation can- | which he has not used ordinary diligence not be given in evidence, without proof to prevent. Pipon v. Cope, 1 Campb. that the vessel sailed on the voyage in- 434. Ellenborough, C. J. 1808. sured, and that she was captured. Mar- 188. A vessel wrecked by the barratry shall v. Parker, 2 Campb. 69. Ellen- of the master, may be stated to have borough, C. J. 1809. been lost by the perils of the seas. Heyman and others v. Parish, 2 Campb. 149. Ellenborough, C. J. 1809.

181. On a valued policy on goods, the assured are entitled to recover as for a total loss in case of condemnation, although the sentence direct the freight to be paid by the captors. Ibid.

182. A warranty against capture in port, does not extend to a capture in a place within the headlands of a river, but not within the limits of any port. Baring v. Vaux, 2 Campb. 541. Ellenborough, C. J. 1810.

And the court of K. B. refused a rule for a new trial. Ibid.

189. A capture made by collusion with the captain, may be described as a loss by barratry, or by capture. Archangelo v. Thompson, 2 Campb. 620. Ellenborough, C. J. 1811.

190. Smuggling by the captain under the direction of the agent of the freighter, cannot be treated by the owner as barratrú. Hobbs v. Hannam, 3 Campb. 93. Ellenborough, C. J. 1811.

191. Prisoners of war rise and confine 183. But if the place be the point at all the crew except one, who is heard which vessels on the particular voyage on the deck in conversation with them: usually unload, it is within the warranty. this is evidence of barratry to go to the Jarman v. Coape, 2 Campb. 615. El-jury. Hucks v. Thornton, Holt, 30. lenborough, C. J. 1811. Gibbs, C. J. 1815.

And the court of K. B. refused a rule for a new trial. Ibid. and 13 East, 894. 184. A warranty to be free from seizure in the port of discharge, extends to a seizure made two miles from the harbour by custom-house officers, who come out in the pilot-boat. Oom v. Taylor, 3 Campb. 204. Ellenborough, C. J.

1811.

185. Or to a seizure made at the same distance from the harbour in a roadstead, where ships occasionally unload. Maydhew v. Scott, 3 Campb. 205. Ellenborough, C. J. 1811.

Acc. Dalgleish v. Brooke, 15 East, 295.

L. (d) By detention.

186. Upon a loss by seizure, detention, and confiscation, it is sufficient to prove that the property was forcibly seized by the officers of government without shewing a condemnation. Carruthers v. Gray, 3 Campb. 142. Ellenborough, C. J. 1811.

S. C. not S. P. 15 East, 35.

L. (e) By barratry.

187. A ship-owner cannot recover for a loss occasioned by an act of barratry,

head remains in specie, it is only an| 202. Underwriters, on goods, are only average loss. Hedbergh and another v. liable for an average loss, where the Pearson, Holt, 349. Gibbs, C. J. ship, being captured and re captured, is sent into port, stripped of all her hunde,

1816.

196. Nor does the answer of the un-and the captain not being able imme derwriters requesting the assured to do diately to procure a fresh crew, or to the best they can with the property, raise money to pay the salvage, welle amount to an assent to such an aban-shup and cargo, and breaks on the w donment. tid. venture, Underwood v. Robertson, 4 157. The assured cannot abandon on Campb. 158. Ellenborough, 6, 4, 1815, the ground that on approaching the port

of destination be found it occupied by
the enemy.
Lutik v. Rowcroft, 5

En. 5. Eleborough, C. J. 1835.

15. Were gods are so amazed,

M. (c) In what form.

is not necessary to prove a direct notice from the assured. Abel v. Potts, 3 Esp. 242. Le Blanc, J. 1800.

But see BILLS AND Notes, G. (a).

208. An abandonment must be express and positive. It cannot be implied from a request on the underwriters, to pay a total loss and to give directions as to the O. (b) Limitation of action. disposal of the cargo. Parmeter v. Tod215. If the master barratrously carry hunter, 1 Campb. 541. Ellenborough, the vessel out of her course, and afterwards deliver her up to a fraudulent 209. Nor can it be fettered with con-purchaser, the loss is to be calculated ditions. M Masters v. Shoolbred, 1 Esp. 237, 9. Kenyon, C. J. 1794.

C. J. 1808.

N. ADJUSTMENT.

N. (a) How made.

210. An agent authorised to underwrite a policy, may adjust a loss. Richardson v. Anderson, 1 Campb. 43, n. Ellenborough, C. J. 1805.

N. (b) Effect of.

211. An adjustment was held to be conclusive where there is no fraud, and no mistake of the law or of the fact. Christian v. Coombe, 2 Esp. 489. Kenyon, C. J. 1796.

from the period of the delivery, and not
from the abandonment of the voyage.
Hibbert and others v. Martin, 1 Campb.
538, 9. Ellenborough, C. J. 1808.
And see LIMITATION OF ACTIONS,
A. (a) 2.

O. (c) Pleadings.

216. Where a policy in the common printed form, on ship and goods, contains a written memorandum, declaring the insurance to be on goods, the defendant is an assurer "on the premises in the policy mentioned." Haughton v. Ewbank, 4 Campb. 88. Ellenborough, C. J. 1814.

O. (d) Payment of money into court. S. P. Voller v. Griffiths, Selw. 876. 212. But it has since been held, that 217. The payment of money into the adjustment will not shut out a ground court, a count on a valued policy, of defence to which the attention of the averring a total loss, is not an admission party was not particularly drawn. Shep-that the loss is total. Rucker and another herd v. Chewter, 1 Campb. 274. Ellen- v. Palsgrave, 1 Campb. 557. Mansfield, borough, C. J. 1808. C. J. 1808.

And the court of C. P. refused a rule to set aside nonsuit; 1 Taunt. 419.

And see Waldron v. Coombe, 3 Taunt. 162. But it is an admission of the in

213. And in two earlier cases it appears to have been considered merely as prima facie evidence for the assured; and to have no other effect than that of throwing the burthen of proof upon the terest as stated in the declaration; Bell defendant. Sheriff v. Potts, 5 Esp. 96. v. Ansley, 16 East, 146.

Ellenborough, C. J. 1803. Herbert v. Champion, 1 Campb. 135. Ellenborough, C. J. 1807.

And see Garron v. Galbraith, Peake's Evid. 223, where the adjustment appears to have been considered as not even primá facie evidence of the loss. Gammon v. Beverley, 1 Moore, 563.

O. ACTION.

O. (a) Notice of loss.

214. Where the underwriter is to adjust the loss in 3 months after notice, it

P. EVIDENCE,

P. (a) Mode of proof.

218. Under a rule of court to admit a notarial copy of the condemnation of a vessel in evidence, such copy only establishes the fact of the condemnation, and is not evidence of the particular defects upon which the condemnation purports to be grounded. Wright v. Barnards, 2 Esp. 700. Kenyon, C. J. 1798.

219. The slip is not evidence of an Acc. Airy v. Bland, Park, 34. But insurance. Rogers v. McCarthy, 3 Esp. see Foy v. Bell, 3 Taunt. 493; Mavor 107. Kenyon, C. J. 1800. And see v. Simeon, ibid. 497, n; De Gaminde ante, pl. 61, 76, 114; post, 247. v. Pigou, 4 Taunt. 246; Wilkinson v. 220. Lloyd's books are evidence of a Clay, 6 Taunt. 110; ante, Evidence, capture; but they are not evidence of pl. 125. notice to a particular person, unless 228. To prove the contents of a licence coupled with other circumstances. Abel to trade with the enemy, which has been v. Potts, 3 Esp. 243. Le Blanc, J. 1800. lost, it is sufficient to shew that the 221. Semble, that the sentence of a licence was put on board the vessel, and prize court, sitting under a commission to produce an examined copy of the from a belligerent within a neutral state, order in council, and of the licence in would, if acquiesced in by the neutral, the secretary of state's office. Eyre v. be conclusive upon the parties. Smith Palsgrave, 2 Campb. 605. Ellenbov. Surridge, 4 Esp. 25, 7. Kenyon, C. rough, C. J. 1801.

J. 1801.

222. S. P. contra, Donaldson v. Thompson, 1 Campb. 429. Ellenborough, C. J. 1808.

Acc. Rhind v. Wilkinson, 2 Taunt. 237. 229. Parol evidence, from a person who has read the licence, is inadmissible. Ibid.

230. A mere representation of neutrality is not conclusively falsified by the sentence of a prize court. Von Tungeln v. Dubois, 2 Campb. 151. Ellenborough, C. J. 1809.

And see Havelock v. Rockwood, 8 T. R. 268, 74, Case of the Flad Oyen, 1 Rob. A. R. 135, 9, 40, 4. S. C. 8 T. R. 270, n. Case of the Harmony, 2 Rob. A. R. 210, n. S. C. 2 East, 477. Case of the Christopher, 2 Rob. 209. 231. The captain's protest is not evi223. That state is to be considered dence to invalidate a condemnation; it neutral, in which the form of an inde- can be read only for the purpose of pendent neutral government remains, contradicting the captain's testimony. although the country be occupied by Christian v. Coombe, 2 Esp. 489. Kenthe forces of the belligerent. Donaldson yon, C. J. 1796. v. Thompson, ubi supra.

And see ante, EVIDENCE, pl. 116. 224. A shipwright may give his opi- 232. To prove a shipment of goods, nion upon facts stated by others, relating a paper from the proper officer from the to the seaworthiness of the vessel. Beck-custom-house, stated by him to be a with and others v. Sydebotham, 1 Campb. copy made by direction of an act of 116. Ellenborough, C. J. 1807.

225. Although the parties making such statement are not examined at the trial; comme semble. Thornton v. Royal Exchange Assurance Company, Peake, 26. Kenyon, C. J. 1790.

226. The sentence of a foreign prize court is not evidence of facts which can be collected from it, merely by indirect inference. Fisher v. Ogle, 1 Campb. 418. Ellenborough, C. J. 1808.

parliament of the official paper which contains an account of the cargo, and which goes with the ship, is evidence, without calling the captain or the searcher, upon whose report the instrument was drawn up; although the witness did not copy or compare the paper himself. Johnson v. Ward, 6 Esp. 47. Chambre, J. 1806.

233. But the bill of lading, being merely the declaration of the captain, And the court of K. B. refused a rule is not evidence. Dickinson v. Lodge, for a new trial. Ibid. and Park, 495, 6.1 Stark. 226. Ellenborough, C. J. 1816. S. P. Bernardi v. Motteux, Dougl. 554, 74.

And see Wright v. Simpson, 6 Ves. 714, 30.

227. In an action for return of premium, the formal receipt in the policy is conclusive evidence of the payment of the premium. Dalzell v. Mair, 1 Campb. 532. Ellenborough, C. J. 1808.

234. To prove a vessel a Dane, it is prima facie sufficient to shew that the captain usually hoisted Danish colours, and that he addressed himself to the Danish consul. Arcangelo v. Thompson, 2 Campb. 620. Ellenborough, C. J. 1811.

235. An averment that a policy was effected by G. W. and Co. is proved