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one particular instance would be sufficient to discharge the 1828. underwriters. Upon the second question in this case, HoldswoRTI namely, whether the plaintiffs, if entitled to recover at all,

Wise. are entitled to recover for a total or for a partial loss only, I entertain no doubt. I am clearly of opinion that the loss in this case ought to be considered as a total loss. In order to justify the abandonment of the ship, there must be a total loss; that is, not a total loss of the ship itself, absolutely and for ever, but a total loss at some one time of the possession and use of her by the assured. Capture is such a total loss, and justifies abandonment, though the ship remains in specie, and is eventually recaptured and restored. So, I think, the crew's being compelled by fatigue and exhaustion, or for the preservation of life, to leave the ship to the winds and waves, is a total loss, and justifies abandonment. That was the case here. The ship was on her beam ends; the pumps were choked; some of the masts had been cut away; and she appeared to be in a sinking state. Eventually the ship was saved, but not by the ship by which the crew were taken up. The crew of that ship made no attempt to save her; they evidently considered her as a hopeless ship, not worth the chance of endeavouring to save. She appeared to be totally lost, and they left her as such to her fate. Notice of abandonment was given. Ultimately the ship arrived in England, but she had, in my opinion, been once totally lost to the assured; and it seems to me, both upon principle and authority, that her subsequent restoration did not convert that total into a partial loss. Thornely v. Hebson (a) does not apply to the present case, because it was held there that the ship was never totally lost, and that was the ground of the decision. M'Iver v. Henderson (b), and Cologan v. The London Assurance Company (c), are decisive to shew that the restitution of a thing once totally lost will not convert the total into a partial loss, at least unless the

(a) 2 B. & A. 513.

(b) 4 M. & S. 576.

(c) 5 M. & S. 447.

1828.

HOLDSWORTH

WISE.

restitution be unfettered. It is not enough to restore the ship in specie, she must be restored in an unfettered state, iu a state which leaves her possession useful and beneficial to the assured. But that was not the case here. The ship was restored in specie, but with debts upon her altogether exceeding her value. Upon the whole, therefore, I am clearly of opinion that there was a total loss of this ship at one period of time, followed by uotice of abandonment by the assured, and not followed by any thing which converted the loss into a partial loss; and consequently that the underwriters continue liable for a total loss.

HOLROYD, J.I am of the same opinion. There was once a total loss of the ship, and her subsequent restoration under the circumstances proved in this case cannot reduce that to a partial loss. If possession of the ship had been taken by another crew before, or at the moment of her desertion by her own crew, the case would have been different. That is the circumstance which distinguishes this case from Thornely v. Hebson (a).

LITTLEDALE, J.-I am also of the same opinion. In Thornely v. Hebson the ship was never absolutely deserted or abaudoned. Here she was, and was left as and for a total wreck. I do not mean to say that a total loss can never, under any subsequent change of circumstances, be converted into an average loss; Hamilton v. Mendez (6), and Falkner v. Ritchie (c), are authorities that seem to shew that it may. Whenever that question arises, I shall give it further consideration. But I think it does not arise in this case, or at least tliat there are other facts here which decide this case in favour of the plaintiffs independently of it. Here the ship came back loaded with a debt and charges upon her exceeding her value. Her liability nearly equalled her value, without including the damage sustained

(u) B. & A.513. (b) 2 Burr. 1198; 1 W. Bla. 270. (c) 2 M. & S. 290.

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on her passage home; and if that be included, which I think it ought to be, there was a loss beyond her value.

1828.

HOLDSWORTH

0. Wrse.

Upon the first question, Cur. add. vult.

Subject to that question, Rule discharged (a).

(a) Afterwards, at the sittings depart in the course of her voyage; in banc after Trinity term, 1828, and with respect to the conduct of Buyley, J., mentioned the case, the crew having been so negligerit and said the Court were of opinion as to vacate the policy, they that the rule ought to be dis- thought it very difficult to say that charged upon the first question there had been any negligence at also. They were unanimous in all. The rule, therefore, for enthinking that the implied warranty cering a nonsuit must be discharged of sea-worthiness did not extend generally. to the ship being sea-worthy at

Rule discharged (1). every port from which she might (6) Vide ante, 680 (a).

Doe, on the Demise of ANN JAMES, v. Charles Price.
EJECTMENT for premises in the parish of Llantarnan, Where, in
in the county of Monmouth. At the trial before Vaughan, B., ejectment, the

plaintiff relies at the last Monmouthshire assizes (a), the case was this :

on the invali. The lessor of the plaintiff claimed title to the premises in dity of a se

cond marriage, question, as the niece and heir at law of one John James;, by reason of a and the only question in issue was, whether a marriage former mar

riage by lisolemnized in the year 1812, between John James and a cence, one of lady whose maiden name was Martha Absalom, and of which ing a minor,

the parties bemarriage there was issue, was legal: that is, whether that and defendant

bas notice that lady was or was not, at the time of such marriage, a married the question Notice had been given by the lessor of the plain- intended to

be raised is tiff to the defendant, some time previous to the trial, of her whether the intention to dispute the validity of the marriage in 1812, on was with con

first marriage the ground of a prior marriage solemnized in the year 1797, sent of the

minor's parent, between Martha Absalom and one John Evans; and it was it lies upon

(a) Counsel for the plaintiff, W. E. Taunton and Maule ; for the defendant to defendant, Ludlow and Russell, Serjts.

disprove con

sent. And the Court will not grant a new trial to let in evidence negativing such consent, where that evidence might have been produced at the first trial.

woman.

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proved in evidence that a marriage by licence did take place at that time between those parties, Murtha Absalom being then a minor. The entry in the register did not state the marriage to have been had with consent of parents; but much evidence was given on the part of the lessor of the plaintiff, to shew that the father of Martha Absalom knew and must have approved of the marriage. It was contended on the part of the defendant, that positive affirmative evidence of the father's consent was absolutely necessary to support the action, and to satisfy the requisites of the statute (a); but the learned Judge told the jury that in his opinion evidence of circumstances in the conduct of the father, importing knowledge and approbation of the marriage, was sufficient, without positive proof of a written or verbal consent. The jury, under this direction, found the fact of consent, and a verdict for the plaintiff. In last Michaelmas term, a rule nisi for a new trial was obtained upon affidavits stating various circumstances tending to negative the fact of consent, and setting out the affidavit made by John Evans for the purpose of obtaining the licence, in which he deposed that both he and Martha Absalom, were at that time, according to the best information he could procure, twenty-one years of age.

W. E. Taunton and Maule shewed cause. The balance of evidence was greatly in favour of the validity of the first marriage of Martha Absalom, that is, that it was bad with the consent of her father. The defendant did not give any evidence at the trial to negative the fact of consent, which, under the circumstances of the case, it was his duty to do. He received notice long before the trial of the lessor of the plaintiff's intention to dispute the validity of the second marriage; therefore he was fully apprised of the case to be

(a) 20 Geo. 2, c. 33, s. 11, which enacts that all marriages solemnized by licence, where either of the parties, not being a widower or

widow, shall be under the age

of twenty-one years, which shall be had without the consent of father, guardian, &c. shall be void.

1828.

Doe

set up against him, and might and ought to have gone to
trial perfectly prepared with evidence to meet it. He can-
not support this motion on the ground of surprise, for the
evidence which he now lays before the Court in his affida-
vits might have been produced at the trial by means of wit-
nesses, who would then properly have been subject to
cross-examination: and it would be highly dangerous for
the Court to allow a defendant, after he has by one trial
obtained a full knowledge of his opponent's case, to obtain
a second trial by means of affidavits, supplying facts which
he was bound to have known and proved at the first.
Upon every principle it is clear that it was for the defend-
ant to prove non-consent, and not for the plaintiff to prove
consent. The marriage took place thirty years before the
trial, and after such an interval proves itself, or at least
must be presumed to have been regular and legal; for the
law will presume every thing possible to be presumed in
favour of the validity of a marriage and the legitimacy of
children. The words of the statute 26 Gev. 2, c. 33, s. 11,
without consent," shew that it was the intention of the
legislature to cast the burthen of proof upon the party dis-
puting the validity of the marriage; and there are cases in
the books supporting that construction. In Rex v. Rogers(a).
it was held necessary, in support of an indictment under
the statute 42 Geo. 3, c. 107, s. 1, for coursing deer in an
inclosed ground“ without the consent of the owner there-,
of,” to call the owner of the deer to prove that he did not
give his consent to the prisoner to course them. In Wil-
liams v. The East India Company (b), where a plaintiff
declared that the defendants, who had chartered his ship,
put on board a dangerous commodity, by which a loss hap-
pened, without due notice to the captain, or any other
person employed in the navigation, it was held that it lay

v. PRICE.

(a) 2 Campb. 654.

(6) 3 East, 192; and see Monkev. Butler, 1 Rol. Rep. 83, there cited; Powell v. Alilbank, 2 W. Bla.

851; Lord Halifax's case, Bull.
N. P. 298; Rer v. Combs, Comb.
57; Gilb. Ev. 132; 1 Phil. Ev.(4th
ed.) 190, 220; Roscoe, Ev. 41.

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