loss. According to the statement before us the facts are 1862. PENINSULA V. SAUNDERS. these. The carriage of the goods was prepaid, amount- GREAT INDIAN ing to 6291. 9s. 10d.; the ship sailed, and, having been damaged, was taken into an intermediate port under circumstances which constituted a constructive total loss of the ship; but the cargo was landed and delivered to the plaintiffs who were the owners of it, and by them taken to its destination in a state undamaged by sea in any way. After the happening of this misfortune to the ship, the plaintiffs paid 8251. 11s. 7d. more for the new voyage; and they now seek to recover this latter sum, or the difference between the two sums, from the insurer; and the question is, are they entitled to do so? It is certain that the plaintiffs cannot recover here as for a total loss of the goods, seeing that the goods were restored to them in specie, and forwarded by them to their place of destination, where, so far as any sea damage is concerned, they may have received full value for them. But Mr. James ably argues that the plaintiffs are entitled to recover this money; not as compensation for loss of the goods within the general language of the policy; but as the expense of forwarding them to their destination in other vessels, under what has been called "the labour and travel clause" which empowers the assured to sue, labour, and travel to save the thing assured from impending loss. The substantial ground, however, on which I decide this case is entirely beside his able argument. The expences that can be recovered under the suing, labouring and travelling clause are expences incurred to prevent impending loss within the meaning of the policy. Now, here, the goods were given up to the plaintiffs in perfect safety; and the question is, were these expences incurred to prevent a total loss? Had the owners a right B. & S. VOL. II. T 1862. when the goods were given into their possession to turn GREAT INDIAN the transaction into a total loss? Certainly not, for PENINSULA Railway they had the goods in specie, and consequently that Company 8257. 11s. 7d. had no reference to suing, labouring or SAUNDERS. travelling in order to prevent such a loss. V. A great part of Mr. James's argument turned on the different meanings of the word "average." If it were necessary to go into that point, I should clearly be of opinion that the words found in an instrument in common use should be taken according to the ordinary understanding of them when so used. It is agreed that "particular average" has two meanings, universally understood that when taken with reference to the common memorandum clause it excludes certain expences, but when taken with reference to the money to be paid by the underwriter it includes them. In Arnould on Insurance, vol. 2, 970, sect. 358, 2d ed., it is said that such expenses as these are to be included. But all this is beside the question now before us, as these expences have nothing to do with the labour and travel clause. I also think that it should make no difference in our judgment whether the freight was prepaid or to be earned. For these reasons, and also those given in the Court below, which are quite satisfactory to my mind, and where the difference between this case and the American case of Mumford v. The Commercial Insurance Company (a) is clearly pointed out, I am of opinion that the defendant is entitled to our judgment. POLLOCK C. B., KEATING J., and CHANNELL and WILDE BB. concurred. Judgment affirmed. (a) 5 Johns. (U. S.) Rep. 262. 1862. February 13th. The Churchwardens and Overseers of FAVERSHAM, Thursday, appellants, The Guardians of the ISLE OF THANET Union, respondents. 1. A justice of a borough not having a quarter sessions has no jurisdiction, under sect. 67 of stat. 16 & 17 Vict. c. 97., to send a pauper lunatic to an asylum; and this by reason of the meaning assigned to the word "borough" by the interpretation clause, sect. 132. 2. The jurisdiction of justices under sect. 97 of that Act to adjudge the settlement of a pauper lunatic and make an order for his maintenance, attaches where he is de facto confined in an asylum; and their order is not invalidated by the fact that he was sent there by a justice who had no jurisdiction: (per Wightman and Mellor JJ.; Crompton J. dissentiente.) CASE stated under stat. 12 & 13 Vict. c. 45. s. 11. This was an appeal against an order of G. C. Norton, Esq., one of Her Majesty's justices of the peace for the county of Surrey, and one of the Magistrates of the Police Courts of the metropolis, bearing date the 13th April, 1860, adjudicating the settlement of Sarah Martin, a lunatic, to be in the parish of Faversham, in the county of Kent, and ordering the guardians of the poor of the Faversham Union to pay, on account of the said parish, certain expences incurred in and about the examination and conveyance of the said Sarah Martin, and also for the expences of her maintenance. The order of G. C. Norton, Esq., contained the following recitals. "Whereas, by a certain order of David Price, Esq., one of Her Majesty's justices of the peace in and for the borough of Margate, in the county of Kent, heretofore made and now proved before me the undersigned, one of Her Majesty's justices of the peace Pauper lunatic 1862. FAVERSHAM V. Isle of THANET. in and for the county of Surrey, and being also one of the Magistrates of the Police Courts of the metropolis, sitting at the Lambeth Police Court, in the said county of Surrey, and within the Metropolitan Police district, and within whose jurisdiction the licensed house for the reception of lunatics hereinafter mentioned, and in which one Sarah Martin, a pauper lunatic, is now confined, is situate, bearing date the 12th July last past, and directed to the superintendent or proprietors of the Camberwell House Lunatic Asylum, being a licensed house for the reception of lunatics, situate at Camberwell, in the said county of Surrey; after reciting that he the said David Price had called to his assistance a surgeon, and had personally examined the said Sarah Martin, and was satisfied that the said Sarah Martin was a lunatic, and a proper person to be taken charge of and detained under care and treatment, it was by the said David Price ordered that the said superintendent or proprietors should receive the said Sarah Martin as a patient into his asylum; and subjoined to which said order was a statement respecting the said Sarah Martin, as required by the statute in such case made and provided. And, whereas it is now proved to me the said undersigned magistrate, upon oath, that before and at the time of the making of the said order the said Sarah Martin was chargeable to the parish of St. John the Baptist, in the Isle of Thanet Poor Law Union, in the said county of Kent; and that, by virtue of the said order, the said Sarah Martin was, on the said 12th July last past, conveyed from the said parish of St. John the Baptist to the said licensed house, and was there received. by the superintendent or proprietors thereof as a patient. by virtue of the said order, and that she hath since been and still is confined there as a lunatic, at the expense of 1862. V. Isle of THANET. the said parish of St. John the Baptist." The order then FAVERSHAM recited a complaint by the guardians of the Isle of Thanet Union, on behalf of the parish of St. John the Baptist, of the chargeability of the lunatic to that parish, and adjudged that the place of the last legal settlement of the lunatic was in the parish of Faversham: and ordered the guardians of the Faversham Union to pay, on account of the parish of Faversham, to the guardians of the Isle of Thanet Union, certain sums, being respectively the expences incurred in and about the examination of the lunatic, and in bringing her before the said justice, and in and about conveying her to the asylum, and the charges for her maintenance in the asylum for twelve months next before the date of the order; and a certain sum weekly for the future maintenance of the lunatic in the asylum. The order of David Price was as follows. "I, David Price, the undersigned, having called to my assistance a surgeon, and having personally examined Sarah Martin, a pauper, and being satisfied that the said Sarah Martin is a person of unsound mind, and a proper person to be taken charge of and detained under care and treatment, there being no available accommodation in the County Asylum, hereby direct you to receive the said Sarah Martin as a patient into your house." Subjoined is a statement respecting the said Sarah Martin. "(Signed) David Price, a justice of the peace "Dated the 12th day of July, 1859." "To J. H. Paul, M.D., Medical Superintendent "of Camberwell House Asylum." David Price had, upon his own knowledge, and without |