contained in it, though he admitted it to be read, to prove the mere fact of a condemnation having taken place; and this, notwithstanding an order of the Court of Exchequer, directing that it should be admitted in evidence.

A man having purchased goods beyond sea, in order to prove his property in the cargo, in an action upon a policy of insurance, produced a bill of parcels of one Gardiner, at Petersburgh, with his receipt to it, and proved his hand. The defendant objected that this was no evidence against the insurers; but the Lord Chief Justice allowed it. Russel v. Boheme (a).

If the policy is on freight, the assured must show either that the goods were on board, or ready to be put on board, under a contract capable of being enforced, or that there was an inception of the right by means of a charter-party. And the assured cannot recover for the whole freight under even a valued policy where only part have been put on board, and no inchoate right to freight had arisen under a charterparty or other contract (b).

The plaintiff must prove the happening of the loss as

averred in the

It is, in the last place, incumbent on the plaintiff to prove that a loss has happened, and that by the very means stated in the declaration. It is absolutely necessary that this rule should be strictly adhered to; for otherwise the insurers declaration. would come into Court prepared to defend themselves against one charge, and one species of loss; and they would then be obliged to resist a demand upon a quite different ground. This appeared clearly in the case of Gregson v. Gilbert (c), and also in the case of Kulen Kemp v. Vigne (d), which was an action on a policy of insurance, which came on to be tried before Mr. Justice Buller, who nonsuited the plaintiff. Upon performed the a motion to set aside that nonsuit, the following report was made by the learned Judge. The insurance was upon goods on board the ship Emanuel, at and from Falmouth to Mar

(a) 2 Stra. 1127.

(b) See Devaux v. I'Anson, 7 Scott, 507; 5 B. N C. 519, and ante, p. 173.

(c) B. B. East. T. 23 Geo. 3. Park Ins. 138, ante, p. 272.

(d) 1 T. R 304.

Where a ship

was captured

but afterwards restored and might have

voyage notwithstanding the capture, but was lost by the perils of

the seas, and

the declaration seilles, warranted a Danish ship, and on the policy was this
alleged a loss
by capture.
The proof of
the loss was
held not to
support the
allegation in
the declara-

tion.

memorandum :—"The following insurance is declared to be
on money expended for reclaiming the ship and cargo valued
at the sum which shall be declared hereafter. The loss to
be paid, in case the ship does not arrive at Marseilles, and
without further proof of interest than this policy; warranted
free from all average, and without the benefit of salvage."
It appeared that the plaintiffs were proprietors of the cargo,
but not of the ship. That the ship originally sailed with the
cargo on board from Riga to Marseilles, and that insurance
had been effected at Bremen upon the cargo for that voyage,
in the course of which she was taken and brought into Fal-
mouth by an English privateer. That a sentence of con-
demnation had been there obtained, which was afterwards
reversed, upon the prize having been proved to be a neutral
ship, but the expenses of procuring that reversal were ordered
by the Admiralty Court to be a charge upon the cargo. The
plaintiff's agents accordingly paid the sum of 1,0317. 14s. for
the expenses of reclaiming the ship and cargo; and imme-
diately procured the policy in question to be effected in
January, 1781, according to the purport of the memorandum.
In the February following, the ship set sail from Falmouth,
with the original cargo on board, in the prosecution of her
voyage to Marseilles, but, on the 26th of the same month,
before her arrival there, was captured by a Spanish ship, and
carried into Ceuta, in Spain, where she was again condemned.
An appeal was brought in the Superior Court at Madrid,
which promising to be of long continuance, the cargo, which
was of a perishable nature, was ordered to be sold, and the
proceeds to be brought into Court to wait the event of the
suit. In May, 1783, the vessel was restored by sentence of
the Court, and the surplus of the proceeds which arose from
the sale of the cargo was paid to the owners, deducting the
expenses incurred in Spain in prosecuting the appeal. After
all the charges paid, there only remained twenty-six rix-
dollars. As soon as the ship was liberated, she sailed from
Ceuta to Malaga, in order to refit, and having there made

the necessary repairs, set sail for Bremen, and in that voyage was lost. The insurance made upon the cargo at Bremen had been paid. The declaration averred that, "whilst the ship was proceeding in her said voyage from Falmouth to Marseilles, and before she could arrive at Marseilles, she was captured by the Spaniards, and thereby the said ship, and also the goods and merchandises on board her, were totally lost to the plaintiffs." At the trial, it was objected, on the part of the defendant, 1st, that this was not an insurable interest; and 2ndly, that the plaintiffs could not recover upon the policy in this form of declaring, for they stated the loss to have happened by capture; whereas, though the vessel was captured, yet, having been afterwards restored, she might have reached her destined port, notwithstanding the capture, in which case the underwriters would have been discharged by the terms of the memorandum. I was of that opinion, and upon the last ground I nonsuited the plaintiffs."

This case was very fully argued both upon the merits and the formal objection, after which all the Judges spoke upon the question.

Lord Mansfield.—" A loss accrued upon the cargo in the voyage, the underwriter is sued, and the loss is averred in the declaration to be by capture. The fact of the case is, that the ship was taken by a Spanish privateer, but was afterwards restored, and in a condition to pursue the voyage, and was afterwards lost in another voyage."

Mr. Justice Willes.-"Upon this case it is clear that the plaintiffs cannot recover. In the first place there was certainly a deviation, for the ship set sail for Malaga, instead of proceeding to Marseilles. Secondly, the plaintiff has declared for a loss by capture; but after the capture, the policy might still have been complied with by the ship's going to Marseilles, and therefore the loss cannot be said to have happened by that circumstance."

But where, in the case of Cary v. King (a), a loss is averred

(a) Cas. temp. Hard. B. B. 304. But salvage payable under a decree

of a Court of Admiralty must be

proved by evidence of the judgment of the Court. Thelluson v. Sheddon, 2 N. R. 229.

to be by perils of the sea, and some of the goods insured are spoiled and others saved, it is allowable to give the expense of the salvage in evidence upon such an averment, because it is a consequence of the accident laid in the declaration.

In an action on a policy of insurance for insuring goods on board the ship A., the plaintiff declares that the ship sprung a leak, and sunk in the river, whereby the goods were spoiled. The evidence was, that many of the goods were spoiled, but some were saved; and the question was,Whether the plaintiff might give in evidence the expense of salvage, that not being particularly laid as a breach of the policy in the declaration?

Lord Hardwicke, C. J.-" I think they may give it in evidence, for the insurance is against all accidents. The accident laid in this declaration is, that the ship sunk in the river: it goes on and says that, by reason thereof, the goods were spoiled; that is the only special damage laid, yet it is but the common case of a declaration that lays special damage, where the plaintiff may give evidence of any damage that is within his cause of action as laid. And though it was objected that such a breach of the policy should be laid as the insurer may have notice to defend it, it is so in this case, for they have laid the accident, which is sufficient notice, because it must necessarily follow that some damage did happen.

ADDENDA.

Case of Manning and Another v. Irving (a).

THIS was an action of assumpsit brought by the plaintiffs, managing owners of a vessel called the General Kyd, against the defendant, one of the directors and chairman of the Alliance Marine Insurance Company, under the provisions of an act of Parliament, making the company liable to be sued in the name of their chairman. The first count was upon a policy of insurance for 3,000l., duly subscribed on behalf of the company upon ship valued at 17,500l., at and from China to Madras, while there, and back to China, not east of Hong Kong, with leave to call at the Straits; and averred a loss by perils of the sea. The second count was for money paid, the third for money had and received, the fourth for interest, the fifth on an account stated. The defendant pleaded to the first count, that the vessel was not wholly lost, in manner and form, &c., and to the last four non assumpsit; upon both of which pleas issue was joined.

At the trial, before Cresswell, J., at Guildhall, at the Sittings after Trinity Term, 1844, a verdict was found for the plaintiffs, damages 3,000l., subject to the following case:The plaintiff's vessel, the General Kyd, of 1318 tons, had

(a) 1 Common Bench R. 168.

A policy was
June, 1843,
upon a ship
(originally
built for the
Company's

effected in

East India

service) valued at 17,5002. at

and from China to Madras, and back to China.

The vessel was

purchased by the plaintiffs in

1839 for

11,000Z. During the voyage, the

vessel was, by a peril insured against, dis

masted; and

by the wreck

of the masts and rigging falling over the ship's sides and striking under her hull, her copper and

sheathing were much injured.