In M Clure v. Commonwealth, Kentucky Court of Appeals, November 24, 1883, 7 Ky. L. Rep. and Jour. 468, it was held that on the trial of a boy under fourteen years of age for burglary, the court should of its own motion exclude improper testimony offered by the prosecution, and not objected to, and give proper instructions on the point of insanity, although there was no exception. The court, Hargis, C. J., said: "They were tried jointly and it does not affirmatively appear that they had an attorney present and watching their interest during the whole of the trial, for two things occurred which he certainly would have objected to had he been present when they were done. But in his absence or failure to oppose all illegal action by the Commonwealth's attorney, it was the court's duty, of its own motion, without objection or exception from any one, to protect these children from all illegal proceedings. The court permitted proof of the bad character of Fred. Woosley, the elder brother above-mentioned, who was a man grown, that he was a fugitive from justice, and that their mother keeps a house of ill fame and that Jo. lived with her. There is nothing more natural than for a boy of his age to live with his mother, no matter what she does. And there is no more illegal proceeding than to try the appellant by the character of Jo.'s mother, or either one of them by the character of Fred. or the mother, for even upon the trial of either of the latter upon such a charge as this, their characters could not be legally proven by the Commonwealth against their objection. * * The evidence clearly preponderates to the conclusion that the appellant was not of sound mind. He would drop down the sidewalk or platform whenever sleep came upon him, and there like the waif that he was, sleep the sleep of the innocent or unconscious, under no guard but the All Seeing Eye which watched over him. At home, if he had what might be termed a home in the proper sense of the word, he would lie down on the hearthstone or floor and take his sleep instead of repairing to such beds as his parents had. He would fly into a passion on an instant without provocation and straightway become affectionate and fondling. But no instruction upon this feature of his case was given as it should have been sua sponte by the court, on account of his tender years, and the duty of the court to see to it that his rights were carefully guarded and protected. He was entitled to an instruction on insanity as well as on the presumption of law in his favor based on his age. It would be strange law indeed if the courts were required to protect an infant when only his property was at stake, yet leave him to the tender mercies of a Commonwealth's attorney, who illegally traveled out of the record in search of arguments to secure his conviction for a crime which would consign his person to a dungeon, his name to infamy and his young life to associations which would blur and distort it forever. This is not law in this country, and we cannot give the seal of our approval to such a judgment so obtained, although no objections or exceptions were taken to the conduct of the Commonwealth's attorney, or the admission of illegal Willet v. Commonwealth, 13 Bush, 230." evidence. Free v. Buckingham, 59 N. H. 219, is interesting on the question of religious faith as a requisite for a competent witness. The court said: "There was no error of law in the referee's refusal to allow the plaintiff, Mr. Free, to be asked, on cross-examination, whether the spirit of Daniel Webster was present aiding him in the trial, and whether he had been assisted by departed spirits in obtaining information of his defense. Nor would it have been error of law to allow those questions to be put. It was a question of fact how far the proposed inquiry could usefully go for the purpose of discovering the credit of the witness. His testimony or other evidence might have been of such a character that light would be thrown upon it by a disclosure of his spiritualistic faith or practice; and his testimony and the case might have been such that there was no occasion to call for any disclosure on that subject. It is not claimed that the peculiarity of Free's religious belief affected his capacity as a witness, but only his credibility. Upon cross-examination, a witness may be asked any questions which tend to test his accuracy, veracity, or credibility, or to shake his credit by injuring his character; and to this end his way of life, his associations, his habits, his prejudices, his mental idiosyncracies (if they affect his *capacity), may all be relevant. Steph. Dig. of Ev., art. 129; 1 Greenl. Ev., § 446. mary in modern practice to permit an inquiry into a man's peculiarity of religious belief. This is not because the inquiry might tend to disgrace him, but because it would be a personal scrutiny into the state of his faith and conscience contrary to the spirit of our institutions. N. H. Bill of Rights, arts. 4, 5; Const. of U S., First Amendment. A man is competent to testify who believes in the existence of God, and that divine punishment, either in this life or in the life to come, will be the consequence of perjury. Clinton v. State, 33 Ohio St. 27. No judicial tribunal is bound to inquire, nor ordinarily will inquire, whether a witness be a Protestant or Romanist, Trinitarian or Unitarian, a Shaker, Mormon, Jew, or Gentile, a Spiritualist or a Materialist. Defect of religious faith is never presumed. The question whether a person is disqualified to testify by want of belief in God and punishment for perjury, is a question of fact for the determination But it is not custo success. * In Elliott v. Harris, Kentucky Court of Appeals, December 13, 1883, 7 Ky. L. Rep. and Jour. 499, it was held that one searching the public records for deeds is not bound to go beyond the index of each book. Hargis, C. J., said: "It appears that the deed was recorded in 1854, and that the records of the county are large, covering a period of eighty years, that the appellant and predecessors had not resided in the county since 1861; that during the war the deed-book and indexes thereto were so mutilated and torn that no reasonable amount of labor could have discovered the deed, and that every examination was made, except turning over the leaves one at a time to find the deed without No amount of diligence in the eye of the law could have discovered the deed, because the law does not require the appellant to do more than search for the deed in the usual way by the aid of the indexes and aid of the clerk, whose duty it is to index the deed-books used by him in recording deeds. He was not bound to turn page by page to find a deed embraced by so cumbersome a record, and she had the right to be content after having made reasonable search and failed to find it. Public authority should provide for indexing the deed-books whose indexes are lost or destroyed, and until this be done such books are not entitled to the legal force or validity of public records for the purposes of notice to all who may be affected by their contents." UPSTAIRS AND DOWNSTAIRS TENANTS. "Birds in their little nests agree." So saith the poet. But men living in the same house do not always so. Some of the grievances suffered from the fellow-lodgers and landlords, and the remedies and attempted remedies therefor, are herein treated of. Sometimes tenants object to noises made by other occupants of the same house, and ofttimes they have to object in vain, and can obtain no redress either against the landlord or their co-tenants. Where the rooms beneath the complainant's were used by another tenant for purposes of a highly immoral nature, and the frequenters thereof by singing immodest songs attracted a noisy crowd of boys in the street, the court held that this did not amount to an eviction of the complainant, and that he could not insist upon a diminution of the rent because the landlord did not put out the naughty tenant below according to promise. De Witt v. Pierson, 112 Mass. 8. Where one tenant has obtained from the landlord the privilege of erecting a sign in front of the house, other tenants in the same building cannot interfere with number one's privileges. And as according to Mr. Justice Fry, of the Chancery Division of the English High Court of Justice, it is in the nature of sign-boards to creak, the court will not interfere when the creaking is not in excess of what is naturally incidental to a sign-board. Snyder v. Hersberg, 11 Phila. (Pa.) 200; Moody v. Streggles, L. R., 12 Ch. Div. 261. It might have been useful if the learned judge had intimated how often a sign-board might, should or would creak in a day, and in how many notes; the key doubtless would be both high and flat. About the year 1870 poor Higinson had an infant child-some fifteen months old-which was teething, and consequently sick and fretful. H. also had a parlor baby carriage in which, to quiet his darling, he was in the habit of trundling his child up and down his carpeted rooms at divers times by day and by night. An unfortunate Mr. Pool had rooms below those in which the baby ruled supreme, and he objected to lying quietly and impassively beneath the juggernaut wheels of the youthful Higinson, so applying to the court he asked that the noise might be stopped. Pool failed to show that the noise was made unnecessarily, or that it was made for any purpose other than soothing the child's sufferings; so the injunction to stop the noise was refused. The court said that occupants of buildings, where there are other tenants, cannot restrain the others from any use of their own apartments, consistent with good neighborship, and with a reasonable regard for the comfort of others. "If the rocking of a cradle, the wheeling of a carriage, the whirling of a sewing machine or the discord of illplayed music, disturb the inmates of an apartment house, no relief by injunction can be obtained, unless the proof be clear that the noise is unreasonable and made without due regard to the rights and comforts of other occupants." To warrant an interference on the part of the law the noise must produce actual physical discomfort to a person of ordinary sensibilities and must have been unreasonably made. 18 Alb. L. J. 82; 8 Daly (N. Y.) 113. Lord Justice Mellish also thought that the noise of neighbor's children in their nursery, as well as the noise of a neighbor's piano, are such noises as men must reasonably expect, and must to a considerable extent put up with. Ball v. Ray, L. R., 8 Ch. 471. Probably both Judge Van Hoeson (who decided against poor Pool), and his lordship were both family men. Suffering humanity however will rejoice that both ad mitted that there was a limit even to the noise that must be endured from children. Modus in rebus, as Lord Kenyon would say. The law of gravitation, which started Newton thinking by hitting him on the nose with an apple, has frequently proved injurious to tenants occupying lower flats. The question has been frequently discussed whether the landlord, or some person or any person else, is liable for liquids percolating through from upper stories and falling upon, and so injuring the goods, wares or merchandise of sub-servient tenants. Firstly, let us consider where the landlord can be held responsible because of the rain oozing through or other fluids dropping down. Carstairs v. Taylor, L. R., 6 Ex. 223, settles that the landlord is not responsible for the peccadilloes or gnawings of rats (if he does not know of their doings, at all events). Taylor rented to the plaintiff the ground floor of a warehouse in Liverpool for the purpose of storing rice. Nothing special was said as to repairs. Taylor occupied the upper floor. The water from the roof was collected in gutters which terminated in a wooden box, resting on the wall and partly projecting over it in the inside; thence the water was discharged by a pipe into the drain. The gutters and box were examined from time to time, and on the 28th of April, when looked at, were found secure, but between that date and the 22d, a rat or rats willfully and maliciously-if not feloniously, gnawed, nibbled, bit and ate a hole in that part of the box which projected on the inside of the wall. On the 22d Jupiter Pluvius was active and a heavy storm occurred and the collected rainwater passed through the hole into the upper floor of the warehouse, and thence obeying the dictates of nature descended to the ground floor, injuring the plaintiff's rice. The Court of Exchequer held that Taylor was not liable, either on the ground of an implied contract, or on the ground that he had brought the water to the place from which it entered the warehouse. Kelly, C. B., remarked: "Clearly there is no duty on the occupier above, whether he be landlord or only occupier, to guard against an accident of this nature. It is absurd to suppose a duty on him to exclude the possibility of the entrance of rats from without." (Ex pede Herculem, verily, the learned chief baron, showed the laud of his origin in these last quoted werds.) His brother Bramwell evidently thought that he knew the general tactics pursued by these rodents in entering warehouses; he remarked: "It is said that rats can be easily got rid of out of a warehouse, but assuming it to be so, it is no negligence not to take means to get rid of them till there is reason to suppose they are there; and it cannot be said that persons ought to anticipate that rats will enter through the roof by gnawing holes in the gutters." In Maine it has been held that an action will lie at the suit of a tenant of a store in the lower story of a building against a landlord, who has the care and control of the upper stories, for an injury to his goods caused by the rain descending through the roof down upon the store below, if the accident happens through the negligence of the landlord in the management of that part of the building under his control. Toole v. Becket, 67 Me. 544; citing Priest v. Nichols, 116 Mass. 401. And in New York it was decided that where a landlord, who himself occupied the upper flat, allowed liquids to leak through into his tenant's rooms, he was liable. Stapenhurst v. Amer. Man. Co., 15 Abb. Pr. (N. S.) 355. In Georgia the courts considered that the landlord was responsible to the tenant down below for damages arising from the overflow of a bath tub, et cetera, in an upper flat, even though the water-works were properly constructed and another tenant who had access to and a right to use these modern conveniences was the one whose carelessness caused the injury. But the court said that the decision would have been otherwise had the proprietor shown that the exclusive possession and user of the bath room had been in a negligent tenant. Freidenburg v. Jones, 63 Ga. 612; 66 id. 505. But in Illinois it was decided that a landlord who had not expressly covenanted with his tenant to repair was not liable to pay the damages caused by water, either dirty or clean, coming upon the tenant from above through the carelessness of another tenant or otherwise. Green v. Hague, 10 Ill. App. 598; Mendel v. Fink, 8 id. 378. Nor must he pay if the water-pipe suffers a temporary obstruction, if he sends for the plumber so soon as he knows that his labors are required. The law is merciful and requires no man to keep a plumber always on his premises. Greene v. Hague, supra. And so in New York; there one A. hired the basement and first floor (according to CisAtlantic notions) of a building for a bake shop. The owner entered into an agreement with some builders to make alterations in the upper stories; the work was negligently done and A.'s bake-shop was injured by the dust and rain. The owner however was not to blame, and the careless acts of the contractors had been contrary to his wish and advice. The court, when asked to consider the case, gave it as their opinion that the landlord was not liable. Morton v. Thurber, 85 N. Y. 550. Now as to the liability of other persons in this direction. It seems clear that if a housemaid, whose duty it is to keep in order an upper room and attend to the lavatory attached to it and wipe out the basin, uses the basin for her own purposes and omits to turn off the water so that it floods the rooms of another oc cupant below, then the master of the said domestic will be liable to the gentleman down stairs; and that although the master had expressly forbidden his maid using the basin, and had told her never to leave the tap open, This liability attaches to the master be cause the servant's acts would be incidental to her employment. Per Grove, J., Stevens v. Woodward, 6 Q. B. D. 318. If however a law student should go into his master's private lavatory and leave the water-tap running, the solicitor would not be liable for the results. This was decided in the case lastly mentioned, which is a very interesting case and one that should be carefully studied by all law clerks. The plaintiffs were booksellers occupying the basement of a house, and the defendants, a firm of solicitors, who occupied the floor above. Water overflowing from a lavatory in the private room of one of the defendants escaped through the floor to the basement, injuring the bookseller's stock-in-trade. The flooding was caused by a clerk of the solicitors, who after Woodward had left for the day, had gone into the private room to use the water and had left the tap open. The clerk had no right to use the basin, and no business to go into the room after W. had left, and orders to that effect had been given. The jury gave a verdict for £15. When the matter came before the court the learned counsel for the plaintiff expressed his views of the daily routine and general practice of law students; and on the other side what was the duty of such necessary members of society was proclaimed. Candy was for the booksellers; he said: "Here the clerk was in the office during working hours, and it was part of the routine of the day's work to wash his hands. It is the general practice for such clerks to wash their hands in the offices where they are employed. That he was forbidden to do so (go into the private room) is irrelevant. He was acting within the scope of his employment. Venables v. Smith, 2 Q. B. D. 279. On the other hand, Petheram, Q. C., DeWitt and G. G. Kennedy, remarked in support of the rule for a non suit, that the principle is well stated in Whatman v. Pearson, L. R., 3 C. P. 422. Here the clerk was acting for himself, and on his own responsibility. His duty was clearly to keep in his own room and not to wash his hands in the room of his master. Could it have been said that the master would have been liable if the clerk had washed his hands at some tavern near by during office hours, and had left the tap there running? The court disposed of the matter by holding that the solicitors were not liable, for that the act of the clerk was not incidental to his employment, and that he was not acting within the scope of his employment. Grove, J., thought he would have come to the same conclusion as that he had arrived at, if there had been no express prohibition in the case, and it had merely been shown that the clerks had a room of their own and a lavatory where they could wash their hands," then what possible part of the clerk's employment" (he continued) could it be for him to go into his master's room to use his master's lavatory, and uot only the water but probably his soap and towels solely for his, the clerk's own purpose? What is there in any way incident to his employment as a clerk? I see nothing." His lordship said it was a very nice question, We wonder what would have been the decision if the clerk had had no basin of his own and been about to go into the Chancery Division of the High Court of Justice on office business, and his fingers were soiled with rumaging among dead suits. Would it not then have been within the scope of his employment and duty to wash his hands in his master's basin, using his master's soap and towels, for verily equity requireth a man to come into court with clean hands. One Ross (and his partners) occupied a ground floor of a building for business premises, and Fedden the second floor of the same house, each as tenants from year to year. On Fedden's flat there was that necessary of modern civilization invented by Sir John Harrington, and referred to by him in his celebrated tract called "The Metamorphoses of Ajax," and he and his had the exclusive use of it and none others had access thereto. After all parties had closed up on a Saturday evening, water percolated from this private room through the first floor to Ross' premises, causing damage to his stock-in-trade. The overflow of the water was owing to the valve of the supply pipe to the pan having got out of order and failed to close, and the waste pipe being choked with paper. The defects could not have been detected without examination, the Feddeus did not know of them and had been guilty of no negligence. The matter came before the judges of the Court of Queen's Bench, and they held that Fedden was not liable for the damage as there was no obligation on him to keep in the water at his peril. Ross v. Fedden, L. R., 7 Q. B. 661. To pass from water to fire. Suppose an upstairs tenant when he enters into possession finds a stove-pipe hole in his floor, and a pipe passing up through it into the chimney in his room, and that is the way provided by the landlord to enable the tenant below to get rid of the smoke from his fire, and it is necessary for the proper enjoyment by the man down stairs of his apartments; then the entrant if he makes no special contract does not become the absolute possessor of all the space comprised within the four walls of his holding, but only of that subject to the passage and use of the pipe; he takes his room with easement attached or upper appurtenant, and if he sever, cut and damage the pipe, and render it unfit for use, so that the smoke from the room below, instead of passing through its proper cylinder into the chimney, escapes from the pipe and fills the room downstairs, the upstairs tenant is a wrong-doer and liable for damages. Culverwell v. Lockington, 24 C. P. (Ont.) 611. We find it well established that a tenant on the second flat is entitled to the use of the stairs and passage-way and to the front door; he is not obliged to use either the fire escape or a parachute when he wishes to get in or out of his rooms. Nor is the landlord entitled to lock up at six o'clock, or any other unreasonable hour, or in fact any hour, and refuse to allow the tenant to have a key. This was so held in the case of some lawyers who had their offices on a second story; and the reason is that when a party rents to another premises, he impliedly grants all that is indispensable for their free use and full enjoyment. If the landlord thinks it necessary for any particular reason that the street door should be closed and locked at and between particular hours, he should be careful to insert such a stipulation in his lease or agreement. MacCunan v. Royal Ins. Co., 39 U. C. Rep. 515. Not only has a tenant of rooms on an upper floor of a house a right of ingress, egress and regress by the front door, but (unless otherwise agreed) he is entitled to use the knocker and to ring the bell attached to the door; and his visitors also have a right to notify people of their desire for admission in either way they choose, and may do so without any fear of an action of trespass being brought against them, no matter how humble their station, and although (as Lord Abinger remarked) at some houses servants ring the bell and persons of superior rauk knock. And not only has such a tenant the right to use the stairs but also the bannisters thereof, and further he is entitled to the benefit of the skylight to enable him to see his way up and down stairs. Lord Abinger decided this in 1835. A plaintiff declared to the effect that he was possessed of four rooms in a dwelling-house on Leicester street, Leicester square (i. e., as the evidence showed, he had rented two rooms on the first floor and two on the second floor of the defendant's house), by reason whereof he ought to have for himself, his family, friends and acquaintances, free access into and out of the said rooms, up and down the stairs and staircase leading to the said rooms, and the benefit of a skylight which before then had lighted the said stairs and staircase, and of a W. C. situated on the first floor of the said dwelling-house, and of the knocker affixed to the street door of the said dwelling-house and of a bell at the side of the said dwelling-house; yet that the defendant wrongfully bedaubed the bannisters of the staircase with filthy and adhesive matter (only tar, as the evidence showed,) blocked up the skylight, removed the W. C., took the knocker from the street door and cut the wire from the bell, whereby the plaintiff suffered immensely. The learned chief baron was against the naughty defendant on all these points, and under his direction the jury awarded the plaintiff £50 damages. Underwood v. Burrows, 7 C. & P. 26. The judge was of the opinion that if all these outrageous things had been done to drive the plaintiff away, the defendant might (in order to mitigate damages) have shown that the plaintiff and his family were bad lodgers and that he did these acts to get rid of them. In a tenement house the landlord must keep the stairs in order. In a Scotch case a child fell through the railing on the staircase, where a bannister was wanting and was killed; the house was occupied by twelve different families, all of whom had access by this one common stair to the various landings on which were their respective apartments. The Court of Session held that it was the landlord's duty to keep the bannisters in repair, and that he could not escape responsibility for the consequences of their being left in a dangerous condition. The owner had to pay damages to the child's father; here however the factor in charge of the property had been warned of the state of the railing. McMartin v. Hannay, 10 Ct. of Sess. Cas. (3d ser.) 411. Hedges was the landlord of a house in Red Lion street, Wapping, which he let out to several tenants, to each of whom he said (in effect if not in words,) I let you certain rooms, and if you like to dry your linen on the roof you may do so; the roof was flat and covered with lead, having a wooden railing on the outer edge, and one got to it through a low door at the stair-head, about two feet from the rail. Ivay, one of the tenants, went on the roof to remove some linen, he slipped against the railing, and it being out of repair (to the landlord's knowledge) gave way and let him down into the courtyard below, whereby he was injured. Lord Coleridge agreed with the county court judge, and was unable to see any liability on the part of the defendant-the landlord-he said that under the contract the tenant took the place as he found it, if he chose to use the roof he did so cum onere. If there had been an absolute contract for the use of the roof in a particular way, it might have been that Hedges would have been liable for not keeping it in a safe condition. Ivay v. Hedges, L. R., 9 Q. B. Div. 80. The plaintiff's counsel did not quote the law of Moses on this point, Deu. 22, 8, but then on many points the law of Moses does not now hold good in England. R. VASHON ROGERS, JR. FIRE INSURANCE CONTRACT ONE OF INDEMNITY MERELY. ENGLISH COURT OF APPEAL, MARCH 12, 1883. CASTELLAIN V. PRESTON, 49 L. T. REP. (N. S.) 29. After the date of a contract for the sale of a house which was insured against fire, and before completion of the purchase, the house was damaged by fire, and the insurance company, in ignorance of the contract, paid the vendors for the damage done. The purchase was subsequently completed, the vendors receiving the full amount of the purchase-money, and also retaining the moneys paid to them by the insurance company. In an action by the insurance company to recover the amount paid by the company to the vendors, held, that the contract of insurance was a contract of indemnity only, and therefore the receipt of the purchase-money by the defendants must be taken into account in calculating the amount of the loss sustained by the defendants, and as it had the effect of extinguishing such loss, the plaintiff was entitled to recover. ACTION by the chairman of the Liverpool and Lon don and Globe Insurance Company to recover from the defendants the sum of £330 paid them upon an insurance contract. The opinion state the facts. The judgment below was for defendants. BRETT, L. J. In this case an action was brought by the plaintiff as representative of the Liverpool and London and Globe Insurance Company, in respect of certain money which had been paid to the defendants on account of damage done to a building by fire. The defendants were the owners of the property so damaged, and they had made a contract for the sale of it to third persons, which contract, on the giving of certain notice as to time of payment, would oblige those third persons to pay the agreed price. The vendors would have to pay the price whether the house were burned or not. After the making of the contract and before the day of payment the house was burned. It was insured by the defendants with the insurance company which the plaintiff represents, and it could not be suggested that the defendants had no insurable interest; for in the first place, they were the legal owners of the property; and secondly, the vendees might never carry out the contract, and the vendors, the defendants, would then suffer the loss. The defendants made a claim upon the insurance company, and were paid the amount of the damage occasioned by the fire. After that the contract of sale was carried out, and the full price paid to the defendants, notwithstanding the fire. The plaintiff now sues the defendants, not properly speaking, to recover back the money actually paid to the defendants, but in respect of the money so paid, claiming that the insurance company is entitled to have the benefit of that money. The question to be decided is, can he recover? The case was tried before Chitty, J., and he has come to the conclusion that the plaintiff cannot recover. It seems to me that the foundation of his judgment is this: He does not consider that the doctrine of subrogation can be applied to the present case. What we have to consider is, do we agree with this view or not? In order to give my opinion on this question I feel obliged to revert to what is the foundation of every rule with regard to insurance law, which is this: Every contract of marine or fire insurance is a contract of indemnity, and of indemnity only, the meaning of which is that the assured in case of a loss is to receive a full indemnity, but is never to receive more. Every rule of insurance law is adopted in order to carry out this fundamental rule, and if ever any proposition is brought forward, the effect of which is opposed to this fundamental rule, it will be found to be wrong. There are many propositions bearing on the question, and many rules may be glanced at which are well known in insurance law. The doctrine in marine insurance law of constructive total loss is adopted solely in order to carry out the fundamental rule. It is a doctrine which is in favor of the assured, because where the loss is not an actual total loss, but is what, as a matter of business, is treated as equivalent to a total loss, this rule is adopted to carry out the fundamental doctrine and give the assured a full indemnity. Grafted on that doctrine came the doctrine of abandonment, which is only applicable to cases of constructive total loss, and is introduced in favor of the underwriters, so that they may have to pay no more than an indemnity. So it appears that these two doctrines were introduced in order to carry out the two limits of the fundamental doctrine to which I have referred, namely, that the assured shall get a full indemnity, and that he shall get no more. As I stated in the course of the argument, the doctrine as to notice of abandonment seems more difficult to support in principle than the other rules of insurance law. It was introduced in favor of the underwriters, in order that they might not by means of any fraud be obliged to pay more than a full indemnity. It is a technical doctrine, because if there was no notice of abandonment, although there was a constructive total loss, the assured did not recover for the loss. Probably the rule was originally adopted by merchants for the purpose of carrying on business, for otherwise it seems to me that the introduction of it by the courts would be an encroachment. The doctrine of subrogation is another proposition which has been introduced in order to carry out the fundamental rule. It was introduced in favor of the underwriters, in order to prevent their having to pay more than a full indemnity, not on the ground that the underwriters were sureties, for they are not so always, although their rights are sometimes similar to those of sureties, but in order to prevent the assured recovering more than a full indemnity. The question is whether the doctrine as applied in insurance law can be limited. Can it be limited to putting the underwriters in the place of the assured in order to enable them to enforce a contract or a right of action? Why should we limit it to this, if the effect of so doing would be to entitle the assured to more than a full indemnity? That is the fault of the judgment of Chitty, J., in the court below; it is limited to the enforcement of a right of action. In order to apply the doctrine properly we must go into the full meaning of subrogation, which is the placing of the assurer in the position of the assured. In order fully to carry out the fundamental principle we must carry the doctrine of subrogation so far as to say, that as between the underwriters and the assured, the underwriter is entitled to every right, whether of contract fulfilled or unfulfilled, or in tort, enforced, or capable of being enforced, or to any other right, legal or equitable, which has accrued to the assured, whereby the loss can be or has been diminished. That is the largest form in which I can put the rule. I use the words 'every right," because I think the doctrine requires to be carried to that extent. I think the decision in Burnand v. Rodocanachi, 7 App. Cas. 333, went on this foundation. In that case what was paid by the American Government was not salvage, but a gift, and the persons who received the money so paid had no right to it until it had actually come into their hands. I am aware that the cases as to reprisals, Randal v. Cockran, 1 Ves. Sr., 98, and Blaauwpot v. Da Costa, 1 Eden, 130, have been stated to be cases of a gift, but it seems to me that they came within the same rule of law, because although there was no obligation to make the payment, the government always made it, so that as a matter of business, it came to be considered as a right. This shows thut the doctrine goes much further than to extend only to what could have given |