It was afterwards intimated by the court that the rule might go for a new trial.

Bramwell and Willes showed cause.-The case was properly left to the jury, and they were warranted in finding as they did. There clearly was no consideration at the time the note was given. In 1 Wms. Saund. 210 c, note (c), it is said, that, "In all cases of forbearance to sue, such forbearance must be either absolute, (a) or for a definite time,(b) or for a reasonable time ; (c) forbearance for a little, (d) or for some time, (e) is not sufficient." There clearly is no consideration for payment immediately, and no agreement to forbear for any time.(ƒ)

W. H. Watson and Selfe, in support of the rule, submitted that the fact of proceedings having already been commenced against John Beale, proved that there must have been some forbearance, and dispensed with the *necessity of showing a contract to forbear for any definite *175] time. They also relied upon the fact of the note providing for the payment of interest, and referred to Lord Chief Justice DALLAS'S judgment in Child v. Monins.

JERVIS, C. J.—I see no ground for disturbing this verdict. The jury have, in effect, found that the collateral security was the only consideration. When the jury, as men of business, looked at the written contract, they naturally and very properly concluded that it expressed all that the parties meant to agree. I cannot say that they have come to a wrong conclusion.

MAULE, J.—It was a case for the jury: and I am far from thinking that they have done wrong.

CRESSWELL, J., concurred.

case.

TALFOURD, J.-I also think the jury came to a correct result in this The fallacy on the part of the plaintiff is, in confounding a hope or expectation of forbearance, with a consideration to forbear.

(a) Mapes v. Sidney, Cro. Jac. 683.

(c) 1 Roll. Abr. 24, pl. 33, Johnson v. Whitchcott. (e) Ibid. 23, pl. 26.

Rule discharged.

(b) Fisher v. Richardson, Cro. Jac. 47. (d) 1 Roll. Abr. 23, pl. 25.

(f) See Payne v. Wilson, 7 B. & C. 423 (E. C. L. R. vol. 14), 1 M. & R. 708 (E. C. L. R. vol. 17).

*ROSETTO and Others v. GURNEY, Chairman of THE ALLIANCE MARINE ASSURANCE COMPANY. May 30.

[*176

As a general rule, where the whole or any part of a cargo (having suffered sea-damage) is practically capable of being sent in a marketable state to its port of destination, the master cannot sell, nor can the assured recover as for a total loss.

If the damage cannot be repaired without laying out more money than the thing is worth, the reparation is impracticable, and therefore, as between the underwriters and the assured, impossible: if it can, the cargo is then practically capable of being sent in a marketable state to its port of destination, the master cannot sell it, and the assured cannot recover as for a constructive total loss. The same rule applies, if a part only of the cargo can be saved. A cargo consisting of 3700 quarters of wheat, valued at 64007., was insured on a voyage from Odessa to Liverpool. Shortly after she sailed, the vessel received sea-damage, and was compelled to put back to refit. The repairs and expenses amounted to 1800l., to raise which the master hypothecated the ship and cargo for 18501. by a bottomry-bond payable ten days after her arrival at the port of delivery. The ship again sailed, and, before her arrival, was wrecked, and carried into Cork by salvors, where, the cargo being found to be considerably damaged, and the vessel not worth repairing, both were sold.

The jury found that about one-half of the wheat might have been dried, and conveyed from Cork to Liverpool, at a cost less than its value on its arrival at Liverpool.

The vessel and cargo were taken possession of by the Court of Admiralty (who directed their sale), by whom 450l. and costs were awarded to the salvors, and 18811. and costs to the holders of the bottomry-bond:

:

Held, that the evidence disclosed a partial loss only: that, in ascertaining whether or not it was practicable to send the whole or any part of the cargo to its port of destination in a marketable state, the jury were bound to take into consideration the cost of unshipping the cargo, the cost of drying and warehousing it, the cost of trans-shipping it into a new bottom, and the cost of the difference of transit, if it could only be effected at a higher than the original rate of freight, adding the salvage allowed in proportion to the value of the cargo saved; but not the debt and costs paid to the holders of the bottomry-bond: and that the loss would be total or partial, as the aggregate of these exceeded or fell short of the value of the cargo when delivered at the port of discharge.

ASSUMPSIT on a policy of insurance effected by the plaintiffs, as agents of Messrs. Jump & Co., of Odessa, on the 27th of July, 1848, with The Alliance Marine Assurance Company, on 3700 quarters of wheat, valued at 64007., on board the Hebe, at and from Odessa to the United Kingdom; with a warranty free from average, unless general, or the ship should be stranded; *and alleging a total loss by perils of the sea, and an abandonment by the assured.

[*177

Pleas,-first, as to so much of the causes of action in the declaration as related to total loss, that the wheat was not wholly lost,-secondly, except so far as related to the wheat having been wholly lost, payment into court of 3505l., and no damages ultrà.

Replication, damages ultrà.

The cause was tried before PLATT, B., at the last Spring assizes at Liverpool, when the following facts appeared in evidence :-The Hebe sailed from Odessa for Liverpool, on the 18th of July, 1848, having the wheat in question on board, in bulk. On the 29th, she was stranded near Constantinople. She was got off, and repaired at an expense of 1800l., for which the master gave a bottomry-bond for 1850l., payable ten days after the ship's arrival at her port of discharge. By the charter-party, which was put in, the ship was to call at Cork or Fal

mouth for orders. The Hebe sailed again from Constantinople on the 11th of November, 1848. Arrived in the Bristol Channel, she met with bad weather, and the master bore up for Cork, when the vessel was stranded in the Cove, and was obliged to have her main and foremasts cut away. In this disabled state, she was towed into the harbour at Cove by a steamer called the Sabrina, and a boat belonging to the coast-guard. The cargo was landed at a warehouse at Cove in a very damaged condition, and afterwards carried in lighters to Cork, and sold.

It appeared that about 1700 quarters of the wheat might have been kiln-dried and rendered fit for shipment to Liverpool, its port of destination, at a comparatively small expense,-about 3001.

The cargo produced on the sale after deducting the expenses incurred, 30327. 198., and the ship 3801. 188. 8d.

*178]

*The owners of the Sabrina claimed for salvage 30007., and the officer of the coast-guard 1000l.

Proceedings were instituted in the Admiralty Court, under whose direction the sale took place; and ultimately that court awarded to the salvors 450., and to the holders of the bottomry-bond 18817., and

costs.

In answer to a question from the learned judge, the jury said, that, on the 1st of January, 1849, the plaintiffs might have dried and caused to be conveyed from Cork to Liverpool the 1700 quarters, at a cost less than their value on their arrival at Liverpool. And they further found that a prudent uninsured owner would not have entered into the controversies at Cork, for the purpose of recovering possession of the wheat.

A verdict was thereupon taken for the plaintiffs, with leave for the defendant to move to enter a nonsuit, if the court should be of opinion that the loss was not total.

W. H. Watson, in Easter Term last, obtained a rule nisi to enter a nonsuit or a verdict for the defendant, or for a new trial. He submitted that the evidence disclosed a clear case of partial loss only: and he cited Thornely v. Hebson, 2 B. & Ald. 513, and Navone v. Haddon, 9 C. B. 30 (E. C. L. R. vol. 67).

Knowles, Crompton, and Blackburn, showed cause.-The vessel, upon being brought into Cork by the salvors, was a perfect wreck, and, by the 9 & 10 Vict. c. 99, s. 19, both ship and cargo were subject to the jurisdiction of the Admiralty Court, till compensation was made to the salvors, or bail given on the part of the owners. The cargo being in this predicament, and in a damaged state, so as to render it impossible to pursue the adventure, that, within all the authorities, amounts to a constructive *total loss. In Roux v. Salvador, 3 N. C. 266, 1 Scott, 1, hides *179] insured from Valparaiso to Bordeaux, free of particular average, unless the ship were stranded, arriving at Rio de Janeiro, on their way

to Bordeaux, in a state of incipient putridity, occasioned by a leak in the ship, were sold for a fourth of their value at Rio, because, by the process of putrefaction, they would have been destroyed before they could have arrived at Bordeaux: the assured received the news of the damage to the hides, and of their sale, at the same time and it was held that the assured might recover as for a total loss, without abandonment. Lord ABINGER, delivering the opinion of the court of error, in a most luminous judgment, lays down the rule as to partial or total loss, in a manner which has ever since governed these cases. "The existence," he says, "of the goods, or any part of them, in specie, is neither a conclusive, nor, in many cases, a material circumstance to that question. If the goods are of an imperishable nature, if the assured become possessed, or can have the control of them, if they still have an opportunity of sending them to their destination, the mere retardation of their arrival at their original port may be of no prejudice to them beyond the expense of re-shipment in another vessel. In such a case, the loss can be but a partial loss, and must be so deemed, even though the assured should, for some real or supposed advantage to themselves, elect to sell the goods where they have been landed, instead of taking measures to transmit them to their original destination. But, if the goods, once damaged by the perils of the sea, and necessarily landed before the termination of the voyage, are, by reason of that damage, in such a state, though the species be not utterly destroyed, that they cannot with safety be re-shipped into the same or any other vessel; if it be certain, that, before the termination of the original voyage, the [*180 species itself would disappear, and the goods assume a new form, losing all their original character: if, though imperishable, they are in the hands of strangers, not under the control of the assured; if, by any circumstances over which he has no control, they can never, or within no assignable period, be brought to their original destination: in any of these cases, the circumstance of their existing in specie at that forced termination of the risk, is of no importance. The loss is, in its nature, total to him who has no means of recovering his goods, whether his inability arises from their annihilation, or from any other insuperable obstacle." [CRESSWELL, J.-Must not the hostile control there spoken of, have arisen out of a peril insured against?] Damaged goods in the hands of salvors, it is submitted, do fall within the rule laid down in that judgment. [JERVIS, C. J.-Suppose the corn not injured at all; but the ship damaged: would the detention of the ship by reason of the bottomry-bond, be a loss of the cargo within this policy?] The original detention here was not the result of the hypothecation. In Irving v. Manning, 2 C. B. 784 (E. C. L. R. vol. 52), a policy was effected upon a ship valued at 17,500l., from China to Madras, while there, and back to China: the ship had originally been purchased by the owners for 11,000l., and was, at the time of effecting the policy, together with her VOL. XI.-18 M 2

stores, seamen's wages, and other matters not constituting her permanent value, of the value to the plaintiffs of the sum mentioned in the policy: during the voyage, the ship was damaged by perils of the sea, so as to become incompetent to proceed on the voyage, unless repaired at an expense of not less than 10,500l., and, being so repaired, she would be worth a sum not exceeding 90007., which was her market value at the time of effecting the policy, and immediately before the damage. *Upon a special verdict finding the above facts, and also finding *181] that a prudent owner, being uninsured, would not have repaired the vessel, and that she was duly abandoned,-it was held, in affirmance of the judgment of the court below, (a) that the underwriters were liable as for a total loss. And this judgment was afterwards affirmed in the House of Lords, (b) where PATTESON, J., in giving the opinion of the judges, says: "The question whether a loss is total or partial, is a question of the same nature as the question what is the extent of a partial loss and there is the same reason, in both cases, for excluding the consideration of the value in the policy from the inquiry as to the extent of the loss, and for treating that value as binding on the question of how much the subject so totally or partially lost was worth: so that the mode of determining the question whether the loss was total or not, which has been adopted in this case, agrees, in so far as it excludes the consideration of the value in the policy, with that in which the inquiry into the extent of a partial loss on goods is always conducted." In Holdsworth v. Wise, 7 B. & C. 794 (E. C. L. R. vol. 14), 1 Man. & R. 673 (E. C. L. R. vol. 17), where a ship, being in a very leaky state, was deserted at sea by her crew, acting bona fide for the preservation of their lives, and was, on the following day, found and taken possession of by the crew of another vessel, who succeeded in taking her into port, where she was repaired, and afterwards sent to this country, but subject to claims for salvage and repairs equal to or exceeding her value,-it was held that the owners, having given notice of abandonment before they received any tidings of the ship's safety, were entitled to recover against the underwriters as for a total loss. [JERVIS, C. J.-There, there was at the time a total loss.] *So *182] here, there was a total loss: the wheat was out of the control of the assured, who had no means of getting it, but by paying more than it was worth. [CRESSWELL, J.-The underwriter does not insure against a loss by hypothecation.] In Gernon v. The Royal Exchange Assurance, 6 Taunt. 383 (E. C. L. R. vol. 1), 2 Marsh. 88 (E. C. L. R. vol. 4), it was held, that, if a cargo be so much damaged that it is not fit to be sent forward to a market, the assured may abandon as a total loss. In Navone v. Haddon, 9 Com. B. 30 (E. C. L. R. vol. 67), the facts found were, as the lord chief justice in his judgment observes, (a) Manning v. Irving, 1 C. B. 168 (E. C. L. R. vol. 50).

(b) See Irving v. Manning, 1 House of Lords Cases, 287, 6 C. B. 391 (E. C. L. R. vol. 60).