burden of proof from the assured to the underwriter; but by no means shutting out the latter from any ground of defence, which either the law or the facts would supply. In the particular case the jury thought the letter relied upon, would have made no difference; but it was submitted to their consideration by Lord Ellenborough: and the plaintiff had a verdict.

The other case was where the plaintiff in an action on a Shepherd v. policy, from Liverpool to Provence, with or without letters of Chewter, I Campbell, marque, had given in evidence an adjustment on the policy N. P. 274. signed by the defendant, and proved that, previously to its being signed, an account had been posted up at Lloyd's, which the defendant must have seen, stating, that the ship on her way out had chased every thing that she saw, and had at last been captured in the Gut of Gibraltar, through the cowardice and mismanagement of the master. The defendant, when he signed the adjustment, said, it was not likely the ship should have been lost by cowardice, when the captain was killed in the engagement. On the part of the defendant it was proved, that the ship, from the time of her sailing from Liverpool, had been in the constant habit of cruizing for prizes; and, therefore, it was said to be a deviation. On the other side it was contended, that as no fraud was practised upon the defendant, when he signed the adjustment, and as the notice had informed him of the supposed deviation, it was to be considered as conclusive against him. But

4 Taunt. 725.

Lord Ellenborough said, the adjustment was primâ facie Reyner v. evidence against the defendant: but it certainly did not bind Hall, him, unless there was a full disclosure of the circumstances of the case; unless they were all blazoned to him as they really existed(a). Therefore if the jury should think that the defendant, by reading the notice stuck up at Lloyd's, had his attention drawn only to the manner in which the ship was captured, and was not roused to the previous deviation with which he

(a) An adjustment and payment shall not prevent the mistake from being set right, if there was a mistake in fact; and that whether the name of the underwriter was struck off both the adjustment and policy. See post. Ch. on Return of Premium; May v. Christie, where there appears a knowledge of the facts at the time of the settlement.

Thelluson

v. Fletcher,

afterwards became acquainted, his liability to the assured would be discharged, notwithstanding the adjustment. His remark, when he signed the adjustment, seems to shew, that he had then only considered the conduct of the master at the moment of the capture: and the expression of the ship having chased every thing, did not of necessity imply a deviation, since from carrying a letter of marque she might be considered as at liberty to chase, so that she continued in the line of the voyage. (a)

The spirit of this rule was adopted in an insurance upon Dougl. 301. goods, on board a foreign ship," the policy to be deemed "sufficient proof of interest in case of loss." The defendant suffered judgment to go against him by default; and on a motion to set aside the writ of enquiry, the Court of King's Bench said, that although such a policy would be void, if made upon a ship of this country, by virtue of the statute of the 19th Geo. 2. c. 37., yet the statute did not extend to policies on foreign ships: and in this case the underwriter, having suffered judgment to go by default, has confessed the plaintiff's title to recover; and the amount of that loss was fixed by his own stipulation in the policy, and which he cannot

Vide post.
C. 14.

Da Costa v.

Firth,

4 Burr,

now controvert.

One rule relative to adjustments remains still to be mentioned, which is, that if an insurer pay money for a total loss, and in fact it be so at the time of adjustment; if it afterwards turn out to be only a partial loss, he shall not recover back the money so paid to the insured. But substantial justice is done by putting him in the place of the insured, and giving him all the advantages that may arise from the salvage.

This rule was settled by the King's Bench in the year 1766. It was an action on the case for 200l. upon an indebitatus as1966. post. sumpsit, for so much money had and received to the use of the plaintiff. Non assumpsit was pleaded, and issue joined. It against the insured, to recover

was brought by the insurer
back what he had paid him.

At the trial a case was reserved

(a) I cannot close this subject without saying, that the Reporter, Mr. Campbell, has, at the close of the last case, inserted a very sensible and learned note upon the effect of an adjustment.

for

for the opinion of the Court. The facts were; that a policy had been underwritten by the plaintiff, for the insurance of any of the packet boats that should sail from Lisbon to Falmouth, or such other port in England as His Majesty should direct, for one whole year, commencing the 1st of October 1763, and to continue to the 1st of October 1764, inclusive, upon any kinds of goods and merchandizes whatsoever: and it was agreed, that the goods and merchandises should be valued at the sum insured on such packet-boat, without farther proof of interest than the policy, and to make no return of premium for want of interest, being on bullion or goods.

The case then states, that the defendant had an interest in bullion on board the Hanover packet, being one of the King's packets between Lisbon and Falmouth; that on the 2d of December 1763, it was totally lost off Falmouth, in a voyage between Lisbon and Falmouth; and the loss was adjusted in writing under the policy, in the words following:-" Ad-"justed a loss on this policy at rool. per cent., the Hanover "packet, Captain Sherborn, being totally lost at Falmouth. "Should any salvage hereafter be recovered, the insured pro"mises to refund to the insurer whatever he may so recover, " in such proportion as the sum insured bears to the whole "interest. London, 23 October 1764, for Richard Seward, "Michael Firth."

The insurer paid the whole money insured, which was 2007. In April 1765, the iron trunk, which contained all the bullion, was fished up; and thereby all the bullion was recovered without prejudice, and delivered to the defendant. The de fendant's expence of salvage amounted to 63l. 8s. 2d., and deducting that sum for salvage, the nett proportion of his share came to 206l. 118. 9d. The plaintiff's proportion thereof, in respect of his subscription, amounted to 487. 4s. which was paid into Court.

The question was, Whether the plaintiff was entitled to recover?

The Court held, that this was a policy of a peculiar sort; Vide posto and that it was good within the exception of the 19th Geo. 2.

c. 14.

c. 37., which says, that certain policies of a particular form shall be void, except on effects from any port in Europe or America, in the possession of the crowns of Spain or Portugal. This is a mixed policy; partly a wager (a) policy, partly an open one it is a valued policy, and fairly so, without fraud or misrepresentation. Therefore the loss having happened, the insured is entitled to recover as for a total loss. The insurer agreed to the value; and cannot be allowed to dispute it. The insured has received the money for a total loss; and there is no want of conscience in retaining it. The cases cited at the bar, only tend to shew, that where it appears, before adjustment, to be but a partial loss, the underwriter shall pay no more than the real damage; the reason of which decision is, that the insured must shew the whole case as it then stood. But in the present case, there was a total loss at the time of the adjustment. The adjustment in this case makes an end of the question. Here is a solemn abandonment, and a solemn agreement, "that the insurers shall be content with "salvage, in such proportion as the sum insured bears to the "whole interest." There was a total loss at the time of the adjustment (which is the same as if the damages had then been recovered in an action). Here is no sort of fraud, nor any thing that is against any law: and to refund more than in that proportion would be contrary to the underwriter's own agreement. Therefore the nett proportion only, in respect to the plaintiff's subscription after deduction of salvage, ought to be returned, and that is paid into Court. The postea was ordered to be delivered to the defendant.

(a) Is not this a mistake of the Reporter; should not the word be ralued, and not wager?

CHAPTER VII.

Of General or Gross Average.

AVERAGE, in that sense in which we are now to consider 3 Burr,

it, signifies a contribution to a general loss: but in order 1555. to satisfy the reader, it will be necessary to give a more particular description of it.

Whatever the master of a ship in distress, with the ad- Mag. 55. vice of his officers and sailors, deliberately resolves to do, for the preservation of the whole, in cutting away masts or cables, or in throwing goods overboard to lighten his vessel, which is what is meant by jettison or jetson, is in all places permitted to be brought into a general or gross average; in which all who are concerned in ship, freight, and cargo, are to bear an equal or proportional part of the loss of what was so sacrificed for the common welfare: and it must be made good by the insurers in such proportions as they have underwritten. In the works of writers upon commercial affairs, we very often Beawes, meet with the word Contribution, also signifying the thing 147. just described: and in a marine sense, average and contribution are synonimous terms.

Birkley v 1

Presgrave,

East, 220. Covington

Mr. Justice Lawrence says,-" All loss which arises in consequence of extraordinary sacrifices or expences incurred for the preservation of the ship and cargo, come within the description of general average. A description which Lord Chief 2 N. R. 378.

Justice Mansfield adopts.

v. Roberts,

where the vessel carry

ing a press of sail to avoid a privateer, sustained damage, and the Court held it was not a general average.

This obligation, which, by the laws of all the maritime countries in Europe, binds the proprietor of the goods or ship saved to contribute to the relief of those whose goods are thrown overboard, is founded on the great principle of dis

tributive