liable for goods damaged or lost while being moved from a building, through apprehension of its being burned by a conflagration then raging, and for the expense of so moving them. In Pennsylvania, it was held that they were not liable where the fire at the time was four houses off. Hillier v. Alleghany Ins. Co., 3 Barr, 470. In Case v. Hartf. F. Ins. Co., 13 Ill. 676, the policy contained the following clause: "In case of fire or loss or damage thereby, or of exposure to loss or damage thereby, it. shall be the duty of the insured to use all possible diligence in saving and preserving the property; and if they shall fail to do so, this company shall not be held responsible to make good the loss and damage sustained in consequence of such neglect." The store of the plaintiff, though not on fire, was in immediate danger of catching, and the circumstances were such that a neglect to remove the goods would have been gross negligence on his part. It was held that he was entitled to recover for all damage done, and expenses incurred. And the existence of such a clause does not seem to impose any greater obligations on the assured than would exist without it. Firem. Ins. Co. v. May, 20 Ohio, 211. It seems very clear, that, if the house should be burnt after the goods were taken out, the insurers would be liable for all damage done and expenses incurred, and there is no sound reason why the same rule should not apply where the danger was such as to excite apprehension in the mind of a man of ordinary prudence. See Beaumont on Ins. 41. In Webb v. Protection Ins. Co., 14 Mo. 3, the policy contained a clause exempting the com

pany from loss by theft; or any loss or damage by fire which might happen in case of an invasion, insurrection, or riot, &c. It was held, that the two clauses were independent of each other, and that the company were not liable for a loss by theft, in case goods were removed to protect them from an ordinary fire, although the court were of opinion, that ordinarily the insurers would be liable for such a loss. In Agnew v. Insurance Co., Dist. Ct. Philadelphia, 7 Am. Law Reg. 168, affirmed in Indep. Mut. Ins. Co. v. Agnew, 34 Penn. St. 96, and in Tilton v. Hamilton Ins. Co., 1 Bosw. 367, the underwriter was held liable for a loss by theft, where the goods had been removed. See also Babcock v. Montgomery Co. Mut. Ins. Co., 6 Barb. 637, 640, per Pratt, J.

1

In Case v. Hartford F. Ins. Co., 13 Ill. 676, 680, Turnbull, J., said: “Surely an injury to the goods by water thown to extinguish a fire would not be an injury to the goods by actual ignition, and yet no case can be found where an insurance against damage by fire has been held not to extend to such a case.” See also Hillier v. Alleghany Co. Mut. Ins. Co., 3 Barr, 470, per Grier, J.; Agnew v. Insurance Co. Dist. Ct., Philadelphia, 7 Am. Law Register, 168; Babcock v. Montgomery Co. Mut. Ins. Co., 6 Barb. 637, per Pratt, J.; Scripture v. Lowell Mut. F. Ins. Co., 10 Cush. 356, 365, per Cushing, J. In Nimick v. Holmes, 25 Penn. St. 366, it was held, that, where a vessel or its cargo takes fire without the fault of the crew, the damage done by the application of water or steam for the purpose of extinguishing the flames, and by tearing up part of the deck of the ves

sel, should be contributed for in general average. But there seems to be no reason why the insurer against fire should not be liable in such a case.

1 In Pelly v. Royal Exch. Ass. Co., 1 Burr. 341, during the voyage, in accordance with a usage of trade, the sails were taken on shore while the vessel was being repaired, and were burnt, and it was held that the insurers were liable. So in Brough v. Whitmore, 4 T. R. 406, where provisions were lost under similar circumstances, the underwriter was held liable.

* In Martin v. Salem Mar. Ins. Co., 2 Mass. 420, a vessel and cargo were insured "from Marblehead to one or more ports in the West Indies, for the purpose of selling the outward and purchasing a return cargo, and at and from thence to Marblehead." The outward cargo was landed and sold, and the proceeds, in the form of specie, with which the homeward cargo was to be bought, were in the hands of the factor there, according to the usage of the trade, when the house was burnt and most of the specie lost. Held, the risk did not continue

after the goods were landed. In Harrison v. Ellis, 7 Ellis & B. 465, a vessel and cargo were insured. The risk on the cargo was to continue till it should be discharged and safely landed. The policy also contained the memorandum : "With liberty to load, reload, exchange, sell, or barter, all or either, goods or property on the coast of Africa and African islands, and with any vessels, boats, factories, and canoes, and to transfer interest from this vessel to any other vessel, or from any other vessels to this vessel, in port or at sea, and at any ports, or places she might call at or proceed to, without being deemed a deviation." It was held, that the underwriters were not liable for a loss occasioned while part of the cargo was in a factory on the coast, and the vessel was engaged in loading native produce, by the factory and its contents being burned.

It is so stated by Chancellor Kent, 3 Comm. 303, citing Brown v. Smith, 1 Dow, 349. Mr. Phillips says, citing the same case: "Under the risk of pirates and rovers, or under perils of the seas, the insurers are liable for losses by

ter of the vessel is bound to take all the care of the goods in his power; and, when they are stolen while in the vessel, it is considered as proceeding from negligent custody, and not from accident. Roccus, note 42; Emerigon, c. 12, § 29 (Meredith's ed.), p. 419. In this country Chancellor Kent has followed the authorities above cited, 3 Comm. 303, and has been sustained by a decision in Tennessee, Marshall v. Nashville Ins. Co., 1 Humph. 99, where part of the goods were alleged to be stolen by persons connected with the boat on which they were shipped, and it was held on demurrer that the assured could not recover. In New York, on the other hand, the underwriters were held liable for a loss by simple larceny, while the boat was at a wharf. Atlantic Ins. Co. v. Storrow, 5 Paige, 285. And in Am. Ins. Co. v. Bryan, 1 Hill, 25, 26, Wend. 563, it was held, both by the Supreme Court and by the Court of Errors, after most elaborate arguments, that the word "theft" did not necessarily mean only a stealing by violence, but would also include a simple larceny. The goods had been stolen while the vessel was on the voyage, but it could not be shown by whom, whether by a passenger or by one of the crew.

In England, Mr. Arnould says of this case: "In this country it cannot be considered law." 2 Arnould, Ins. 818. In this assertion he is supported by all the early text-writers. Mr. Park says: "But that the underwriter is liable for a robbery of the goods insured, when committed by thieves from without, cannot be doubted; as thieves are a peril expressly insured against by the policy." Park, Ins. 31, citing Harford v. Maynard,

before Lord Mansfield, 1785. In De Rothschild v. Royal Mail Steam Packet Co., 7 Exch. 734, 14 Eng. L. & Eq. 327, ́ eleven boxes of gold-dust were delivered to the defendants at Panama to be delivered at the Bank of England. The bill of lading contained the following exceptions: "The act of God, the queen's enemies, pirates, robbers, fire, accidents from machinery, boilers, and steam, the dangers of the seas, roads, and rivers, of whatever nature or kind soever, excepted." The boxes arrived in safety at Southampton, but in the course of their transmission to London by railway one of the boxes was stolen without violence. The jury found that the defendants were guilty of negligence in the conveyance of the boxes to London, and that this negligence caused the loss. The defendants pleaded that they were exempted by reason of the exceptions of loss from "robbers” and “dangers of the roads." Judgment was given for the plaintiffs on grounds which would seem to modify to some extent the rule as previously laid down by the English authorities. Pollock, C. B., said: "In construing such instruments, it was contended that the ordinary meaning of the words used must be followed. We think that position is correct, but we must also look at the circumstances under which the contract was made, and the peculiar subject to which it applied; and, taking these into consideration, we cannot doubt that the meaning of the contract was, that the defendants were not to be liable for the loss of the gold-dust in instances where it was taken by force, by a vis major which they, the defendants, could not resist, but that they were to be liable

where it was pilfered from them, or taken by stealth. It is very unreasonable to suppose that the shippers of a very precious article, of which a large value is comprised in a very small space, which is capable of being easily abstracted by any person employed in carrying it, meant to exempt the persons to whom they gave the custody and care of it from all responsibility for theft committed by their crew, or others, against whom, presumably, they could guard by the exercise of reasonable care; but it is likely that they should agree to exempt them where the goods were taken by a force which they could not resist. The nature of the transaction shows clearly, therefore, that the word 'robbers' means, not 'thieves,' but robbers by force, to whom the term is more usually applied, although in common parlance it is often applied to every description of theft. It is explained also by the word with which it is associated, pirates,' who certainly take by force and not by stealth. We have no doubt, therefore, in this bill of lading, that this is the proper meaning of the word 'robbers,' and, this being so, the loss in this case was not by robbers."

1 Paddock v. Commercial Ins. Co., 2 Allen, 93.

Bondrett v. Hentigg, Holt, N. P. 149. The goods, in this case, were plundered after they were saved from the wreck, but before they came into the hands of the owners. Pothier, n. 55, says: "The loss of effects insured happening through pillage, in case of shipwreck, by wreckers and others, on the shore on which the waves have cast them, is a peril of the sea, to be borne by the insurers." Emerigon adopts this decision, c. 12, s. 29 (Meredith's ed.), 419.

In two old cases it is held that a loss by piracy is a loss by a peril of the sea, though piracy be not specifically insured against. Pickering v. Barclay, 2 Roll. Ab. 248, pl. 10; Barton v. Wolliford, Comb. 56. See Santerna De Ass. part 3, n. 61-65; Straccha, Glossa. 22, passim, where this question is discussed.

Considerable discussion has arisen in regard to the meaning of this word. In very many of the cases it is defined to be a fraud, cheat, or trick on the part of the captain against the interest of the owners. See Knight v. Cambridge, 1 Stra. 581, 8 Mod. 230, 2 Ld. Raym. 1349; Phyn v. Royal Exch. Ass.