should not be obliged to refund, but the assurer should stand in his place for the salvage.

Cazalet and others v. St. Barbe, 1 T. R. 187.-This was an action on a policy of assurance upon the ship Friendship, from Wyburg to Lynn, subscribed by the defendant for £100 at two guineas per cent. The defendant pleaded a tender, and paid £48 into the court. The cause was tried at Guildhall before Mr. Justice Buller, when a case was reserved for the opinion of the court, stating, that the damage sustained by the ship in the voyage assured, did not exceed £48 per cent. which sum the defendant had paid into court upon pleading in the action. That when the ship arrived at the port of Lynn, she was not worth repairing. The question for the opinion of the court was, whether the plaintiff had a right to abandon?

This case came on to be argued when Lord Mansfield was absent, and the three other judges were unanimous in opinion for the defendant. Mr. Justice Buller said, "Nothing can be better established than that the owner of a ship can only abandon in case of a total loss. But there is no instance where the owner can abandon unless, at some period or other of the voyage, there has been a total loss. No such event has happened here; for the jury have expressly found that the loss amounted only to £48 per cent. Even allowing total loss to be a technical expression, yet the manner, in which the plaintiff's counsel has stated it, is rather too broad. It has been said, that the assurance must be taken to be on the ship as well as on the voyage; but the true way of considering it is this, it is an assurance on the ship for the voyage. If either the ship or the voyage be lost, that is a total loss; but here neither is lost.".

In another case, an action was brought on a policy of assurance on the Prince of Wales, in port or at sea, for six months, from the 18th of July, 1777 The ship in question was in government-service, bound from Cork to Quebec. She arrived there; but the season being too far advanced before she was ready to return, she was removed into the basin; but, on the 19th of November, she was driven thence by a field of ice, and damaged by running on the rocks. The condition of the ship could not be examined till April following, after the expiration of the policy. She was then, however, found to be bilged, and much injured, but not thought irreparably so. progress of the repair, difficulties arose from want of materials; and the captain, after consulting the merchants and agents in the country, sold her. An account was made up, charging the assurers with the whole amount, and crediting them with the sums for which the ship sold, as salvage.

Lord Mansfield, at the trial, said, “The great point in the cause is, whether this is a total loss by this accident. It is a new question, upon which I shall reserve a case for the opinion of the court." After argument by counsel on both sides, his Lordship said, “The justness of the case seemed to be, that the loss in November should be taken as an average, not a total one: and that the whole court were of opi nion, that the ship should be considered as damaged on the 19th of November, but not totally lost."—Ferneaux v. Bradley, East. T. 20 Geo. III.

In a case before Lord Kenyon, M'Masters v. Shoolbred, sittings after Michaelmas, 35 Geo. III. (Esp. Cases, 237.) he held, the action being on a policy for six months, and the ship having been captured and carried into Charlestown, sold by the captors, by the authority of

the French consul there, and purchased by the captain for account of the original owners, that this was only a partial loss, and that the owners could not abandon. His lordship was of opinion, that the captain was agent for the owners; and that he, having recovered the vessel upon their account, and having paid a kind of salvage, (the amount of which would be the loss sustained,) it only constituted an average loss. At the time the ship was captured and carried into port, in the enemy's possession, the assured at that time might have abandoned. But not having done so till the vessel was recovered, they could now go only for an average loss. Upon the trial of this cause, it did not occur to the defendant to make objection, that the act of the French consul was illegal, and that, consequently, the money paid by the original owners was in the nature of a ransom. This objection was made, however, and admitted to prevail, in a subsequent case, (Havelock v. Rockwood,) which is fully detailed in a former part of this work, under the head of losses by "CAPTURE AND DETENTION OF PRINCES."

Although almost all these cases of abandonment were after a capture, yet many of the rules there laid down were general in their nature, comprehending cases of wreck and detention, as well as capture. This will be best explained, by putting the two following possible cases:

Suppose a neutral ship be arrested and detained by a foreign prince by an embargo, the owner immediately, upon hearing this accident, would have a right to abandon; because no man is bound to wait the event of an embargo. But if the same ship, that brings the account of the embargo, should also inform him that the embargo was taken off, that the ship had only been detained two or three days, that very trifling damage had arisen, then it is impossible to say that the merchant may abandon; because, as we have seen, it is a principle of good sense, that a man cannot make his election, whether he will abandon or not, till he receive advice of the loss; and if, by the same conveyance, it appear that the peril is over, and the thing assured be in safety, he has lost his election entirely; because he has, and can have, no right to abandon when his property is safe.

The same principle governs in the case of wreck; for let us suppose a trunk of bullion, as in the case of Da Costa v. Frith, to be the property assured; and that, the ship being wrecked, this trunk, of course, goes to the bottom; the owners would instantly be entitled to abandon to the underwriter, and call upon him to contribute as in the case of a total loss. But, if it should so happen that, before the action was brought, or before the offer was made to abandon, the bullion should be recovered and restored to the owner, at the place of destination, upon paying a moderate salvage; in that case it would fall within the rule of Hamilton v. Mendes; and the assured would only be entitled to recover an indemnity, according to the nature of his case, at the time when the action was brought; and, consequently, he would not be allowed to abandon.

If, on account of an hostile embargo, the assured abandon both ship and freight to the underwriter, and the ship afterwards earn freight on the embargo being taken off, the underwriters are not bound to pay for a total loss of freight; although they have accepted the previous abandonment; since the freight has in fact been earned.-M Carthy and others v. Abel, Term Rep. Trinity, 44 Geo. III.

It has been settled, by a solemn decision of the court of :.

bench, in Manning v. Newnham, Trin. 22 Geo. III., in what cases a loss should be deemed to be total, after an accident by perils of the sea. A policy was effected in London upon the ship Grace, her “cargo and freight, at and from Tortola to London, warranted to depart on or before the 1st of August, 1781. The ship valued at £2470, the freight at £2250, and the cargo at £12,400, at a premium of 25 guineas per cent. to return 10 per cent. if she departed the West Indies with a convoy for England, and arrives." At the head of the subscriptions is the following declaration, viz.-On the ship, freight, and goods, warranted free of particular average. This ship, with her cargo, was a Dutch prize, taken by a privateer off Tortola, and was condemned; during the whole of her stay at Tortola (four or five months) she was never unloaded. On the 1st of August the whole fleet of merchantmen got under weigh, under convoy of the Cyclops, &c.; but, not being able to get clear of the islands that day, they cast anchor during the night, and the next day got clear of the islands. About ten o'clock on the 2d of August, several squalls of wind arose, which occasioned the ship to strain and make water so fast, that the crew were obliged to work both pumps; and, on the 3d, the captain made a signal of distress in consequence of which she was obliged to return to Tortola, under protection of one of his Majesty's ships. The captain made his protest, and a survey was had, by which the ship was declared unable to proceed with her cargo, and that she could not be repaired in any of the English islands in the West Indies; and that many of the sugars in the bilge and lower tier were washed out, and several of the casks broke and in bad order. The ship and the whole of the cargo were sold at Tortola accordingly. The assured claimed a total loss of ship, cargo, and freight, which the jury thought right, and found accordingly. A motion was made for a new trial, which, upon full consideration, was refused.

Lord Mansfield, after stating the evidence, and that his prejudices at the trial were in favour of the underwriters, proceeded thus: "But notwithstanding this inclination of my opinion, upon full consideration, we think the jury have done right. If by a peril assured the voyage is lost, it is a total loss: otherwise not. In this case the ship has irreparable hurt within the policy. This drives her back to Tortola, and there is no ship to be had there which could take the whole cargo on board. There were only two ships at Tortola, and both could not take in the cargo. To show how completely the voyage was lost, that no ship could be got, the assured have not been able to send that part of the goods, which they purchased, forward to London. It is admitted there was a total loss on the freight, because the ship could not perform the voyage. The same argument applies to the ship and cargo. It is a contract of indemnity; and the assurance is, that the ship shall come to London. Upon turning it in every view, we are of opinion that the voyage was totally lost, and that is the ground of our determination."

Where a vessel was so damaged by a sea peril that, in order to render her sea-worthy, it would cost as much as she was originally worth, and the captain sold her to a purchaser, who partially repaired her and sent her upon a voyage which she never completed, in consequence of her infirmity: it was held, first, that the underwriters were liable as for a total loss, though the vessel remained in specie at the time she was sold; and second, that notice of abandonment was unnecessary to entitle the owner to recover.-Cambridge v. Anderton,

+ Dowl. & Ry. 203, and see Robertson v. Clarke, 1 Bingham, 445.

From what has been said in the preceding part of this subject, it appears that the assured has a right to call upon the underwriters for a total loss, and of course to abandon, as soon as he hears of such a calamity having happened, his claim to an indemnity not being at all suspended by the chance of a future recovery of part of the property lost: because by the abandonment, that chance devolves upon the underwriter, by which means the intention of the contracting parties is fully answered, and complete justice is done.

In a modern decision it has been held by the court of king's bench, that as soon as the assured receive account of such a loss as entitles them to abandon, they must, in the first instance, make their election whether they will abandon, or not; and, if they abandon, they must give the underwriters notice in a reasonable time, otherwise they wave their right to abandon, and can never afterwards recover for a total loss.-Mitchell v. Edie, 1 T. R. 608.

But the assured is entitled to a reasonable time for examining into the state of a damaged cargo, before he makes his election on the question of abandonment.-Gernon v. Exch. Ass. Co., 6 Taunt. 383.Mullet v. Shedden, 13 E. R. 304.

And an insurer who rejects an abandonment must do so within a reasonable time. 3 Brod. and Bing. 97.

But if the assured, hearing that his ship is much disabled, and has put into port to repair, express his desire to the underwriters to abandon, and be dissuaded from it by them, and they order the repairs to be made; they are liable to the owner for all the subsequent damage occasioned by that refusal, though it should amount to the whole sum assured.-Da Costa v. Newnham, 2 T. R. 407.

Freight was insured from A. to B.: the ship sailed, but was obliged to put back from stress of weather, when she was found to be incapable of complete repair, and the cargo was accordingly unloaded, and the ship sold. In an action on the policy for a total loss, it was holden, that there was no necessity for an abandonment of the freight, but that the insured was bound to use all reasonable endeavours to repair the ship so as to have carried the cargo, or part thereof, which would have operated as a salvage.-—Green v. Exch. Ass. Co.,6 Taunt. 68.

10. FRAUD IN POLICIES.

The assurers and assured are equally bound to disclose circumstances that are within their knowledge; and therefore if the assurer, at the time he underwrites, can be proved to have known that the ship was safe arrived, the contract will be equally void as if the assured had concealed from him some accident which had befallen the ship.

It is necessary to consider this head in three divisions: First, The allegation of any circumstances, as facts, to the underwriter, which the person assured knows to be false. Secondly, The suppression of any circumstances which the assured knows to exist; and which, if known to the underwriter, might prevent him from undertaking the risk at all, or, if he did, might entitle him to demand a larger premium: and, lastly, a misrepresentation. Of each of these in order.

First, In a case before Lord Chief Justice Holt, in the reign of William and Mary, that learned judge held, that, if the goods were assured as the goods of a Hamburgher, who was an ally, and the goods were, in fact, the goods of a Frenchman, who was au

enemy, it was a fraud, and that the assurance was not good-Skinner, 327.

In another case, a letter being received, stating that a ship sailed from Jamaica to London on the 24th of November, after which an assurance was made, and the agent told the assurer, that the ship sailed the latter end of December: this was also held, by Lord Chief Justice Lee, to be a fraud, and the defendant had a verdict.-Robarts v. Fonnereau, Sitings after Trin. Term, 1742.

And, in another case, where the policy was underwritten thus, "Warranted neutral ship and property :" and the jury found "that the ship and property were not neutral property, as warranted by the said policy." Lord Mansfield and the rest of the court were of opinion that it was too clear a case to bear an argument. This was no contract; for there was a falsehood in respect to the condition of the thing assured; because the plaintiff assured neutral property, and this was not neutral property.-Woolmer v. Muilman, 3 Burr. 1419.— Fernandez v. Da Costa, Sittings after Hilary, 4 Geo. III.

From the preceding case we may collect this principle, that a false assertion in a policy will vitiate the contract, even though the loss happen in a mode not effected by that falsity.

Secondly, The second species of fraud which affects assurances, is the concealment of circumstances known only to one of the parties entering into the contract. The facts, upon which the risk is to be computed, lie, for the most part, within the knowledge of the assured only. The underwriter must therefore rely upon him for all necessary information; and must trust to him, that he will conceal nothing, so as to make him form a wrong estimate. If a mistake happen, without any fraudulent intention, still the contract is annulled, because the risk is not the same which the underwriter intended.

One having a doubtful account of his ship, that was at sea, namely, that a ship, described like his, was taken, assured her, without giving any notice to the assurers of what he had heard, either as to the hazard or the circumstance, which might induce him to believe that his ship was in great danger, if not actually lost. Lord Chancellor Macclesfield." The assured has not dealt fairly with the assurers in this case; he ought to have disclosed to them what intelligence he had of the ship's being in danger, and which might induce him, at least, to fear that it was lost, though he had no certain account of it. For, if this circumstance had been discovered, it is impossible to think that the assurers would have assured the ship at so small a premium as they have done, but either would not have assured at all, or would have insisted on a larger premium, so that the concealment of this intelli gence is a fraud." Whereupon the policy was decreed to be delivered up with costs; but the premium to be paid back and allowed out of the costs.-Da Costa v. Seanaret, 2 Peere Williams, 170.

But as to paying back the premium in these cases, the courts now hold a contrary doctrine. See Chapman v. Fraser, Trin. 33 Geo. III. post, p. 625.

In another case it appeared, that on the 25th of August, 1740, the defendant underwrote a policy from Carolina to Holland. It came out in evidence that the agent for the plaintiff had, on the 23d of August, (two days before the policy was effected,) received a letter from Cowes, dated the 21st of August, wherein it is said: "On the 12th of this month I was in company with the ship Davy, (the ship in question,) at twelve at night lost sight of her all at once: the captain