[*39

ranted free from average unless general, was placed in so much *danger by perils of the sea, that the crew deserted her in order to save their lives; and the owners of the goods, upon receiving intelligence of this, gave notice of abandonment. A few days afterwards, the vessel was found by some fishermen, and towed into port, and repaired; but the goods (which were of a perishable nature) had been so much injured by the salt water, that they would not have been worth anything if forwarded to the place of destination. It was held that the assured, under the circumstances, were entitled to recover for a total loss. All the authorities underwent discussion in Roux v. Salvador, 3 N. C. 266, 4 Scott, 1, where the judgment of this Court (a) was affirmed on error. In that case, certain hides had been shipped on board a vessel at Valparaiso, for Bordeaux. The ship sailed from Valparaiso on the 13th of May, and on the 7th of July put into Rio de Janeiro, in consequence of damage by stress of weather. It being found that the hides were so much damaged that it would be impracticable to carry them in specie to the termination of the voyage, they being in such a state that they must either have been annihilated by putrefaction or thrown overboard, they were sold at Rio for one-fourth of their sound value. On the 23d of July, the ship set sail from Rio, on her voyage to Bordeaux, and was stranded, on the 29th of September, at the entrance of the Garonne. In an action on a policy containing a memorandum declaring hides free of particular average unless the ship was stranded, it appeared that the assured received the news of the damage, and of the sale of the hides, at the same time: and it was held that they were entitled to recover as for a total loss, without abandonment. Lord ABINGER, in delivering the judgment of the court of error, says: (b) "The *object of the policy is, to obtain an [*40 indemnity for any loss that the assured may sustain by the goods. being prevented by the perils of the sea from arriving in safety at the port of their destination. If, by reason of the perils insured against, the goods do not so arrive, the risk may in one sense be said to have terminated at the moment when the goods are finally separated from the vessel. Whether, upon such an event, the loss is total or partial, no doubt, depends upon circumstances. But the existence 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 of, or can have the control over, 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 reshipped into the same or any other vessel, and if it be certain, that, before the termination of the original voyage, the 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 circumstance 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, *41] the circumstance of their existing in specie at that forced determination 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." In Stevens on Average, 5th edit., p. 80, this very case is put :-"When a ship, on her voyage, puts into an intermediate port, in distress, to refit, &c., and, on unloading the cargo, it is discovered that some of the goods are damaged, which, to prevent further deterioration, are surveyed, and sold on the spot, in such a case, the claim must be adjusted as a salvage loss, and all the charge must be borne by the insurers; for, no particular average claim, according to the definition above stated, can be made up when the goods are sold at any other place than the port of destination. Here, the damaged goods are really (not as the term is often misapplied) sold on account of the underwriter, he paying all the charges, and even the freight, and the merchant is indemnified as for a total loss,—ex. gr. he receives the net proceeds from the person who effects the sales, and the balance from the underwriter." [CRESSWELL, J.-The author is there merely giving the mode of stating an average loss.]

The other view of the case is this:-The assured, having no agent at Gibraltar, clearly was not bound to incur expense for the purpose of putting the silk in a condition to be re-shipped. The master, under the circumstances, was the agent of the underwriter. In Mr. Justice Story's edition of Abbott on Shipping, 5th Am. edit. p. 447, it is said, that, if the cargo is of a perishable nature, "and there be no time or opportunity to consult the merchant, the master ought either to tranship or sell it, *according as the one or the other will be most beneficial to the *42] merchant." And, in a note thereto, reference is made to a case of Jordan v. Warren Insurance Company, Story, C. C. 342, where it was held, that, when a cargo is so much injured that it will endanger the safety of the ship and cargo, or it will become utterly worthless, it is the duty of the master to land and sell the cargo at the place where

the necessity arises, even though it might have been carried to the port of destination, and there landed. That is exactly this case.

Martin (with whom was Greenwood), for the defendants, was not called upon.

WILDE, C. J.-This is an action upon a policy of insurance on certain bales of waste-silk, valued at a certain sum, and warranted free of particular average, unless the ship should be stranded. The facts found are these:-That the vessel, with the silk on board, set sail on the voyage insured; that she encountered bad weather, and was compelled to put into Gibraltar; that, it being found necessary to unload the vessel, the silk was taken out; that, upon examination, certain of the bales were found to have sustained no damage, and others so little as not to render them incapable of being re-shipped and carried to their destination; and that certain other of the bales were found to be so much damaged by seawater, that it was thought advisable to sell them at Gibraltar; but that no one of the bales was so damaged as to make the whole contents useless for any mercantile purpose. There was, therefore, no entire loss of any one bale; consequently, the facts stated, as it seems to me, decide the case. It is a case of average, and not of total loss. It is found, that, by *incurring a reasonable expense, the silk might have been sent on [*43 by another vessel to its destination, though in a deteriorated state, still bearing the character of silk. What, then, is there to turn this into a total loss? From the nature of the article, and its being peculiarly susceptible of injury from various causes, the underwriter says he will not be liable to average loss on silk, except in a given event; and the premium is calculated with reference to his liability for a total loss only. Now, the facts found, are, that the silk in question was only partially damaged, that no one package was so injured as in the result to lead to its entire destruction, but that the whole might have been sent forward, as silk, in a reasonable time, and at a reasonable expense. There is, therefore, no pretence whatever for converting this into a case of total loss. The cases of Anderson v. Wallis, 3 Campb. 440, 2 M. & S. 240, and Hunt v. The Royal Exchange Assurance Company, 5 M. & Selw. 47, have settled that any delay within reasonable limits, would not suffice to make that a total loss which was not in its nature an entire destruction of the subject-matter of insurance. There was no unreasonable delay here; for, it appears that the Wanderer put into Gibraltar on the 11th of May, and was repaired and ready for sea on the 30th of June. To sustain the claim for a total loss, the case should have found circumstances which would have prevented the assured from having the benefit of the voyage. None such are found here: on the contrary, it is found, as before observed, that a reasonable expense would have enabled the master, within a reasonable time, to forward the silk to its destination. The facts bring the case within the authorities, which cannot be disputed, and which clearly entitle the defendants to our judg.

ment. The only ground upon which *it was sought to distinguish *14] the case from those which are adverse to the plaintiff's view, was, that it is found here that the assured had no agent at Gibraltar. But, when it is found that the goods might have been forwarded at a reasonable cost, and within a reasonable time, to their destination, I think that argument fails.

MAULE, J.—I also am of opinion that our judgment must be for the defendants. Roux v. Salvador was relied on for the plaintiff: but the decision there, proceeded upon the fact that the hides were damaged to such an extent that they could not have been forwarded to their destination in such a state as to retain the character of hides. The loss, therefore, clearly was total. Here, the silk was very much damaged, but not to such an extent as to prevent its being carried, as silk, to its destination. A partial loss cannot be turned into a total loss, because those who have the control over the goods, may act prudently in selling them at an intermediate port, rather than incur the expense of cleansing and re-shipping them. It may be that a prudent owner uninsured would not have thought it worth his while to carry these goods further, but would have left them behind: still, that alone would not make the loss total.

CRESSWELL, am entirely of the same opinion. Lord MANSFIELD, in the first case which I believe is to be found in the books upon this subject, expressed an opinion, that, upon a policy in this form, there could be no total loss, where the goods still physically existed. Some exceptions have, undoubtedly, been engrafted upon the rule so unequivocally laid down. Still, if the goods are in such a state that they are capable of being forwarded, however they may be deteriorated, the loss is not a total loss. The American courts seem to adhere to the *45] rule laid down in Cocking v. Fraser. Whether that is the better rule or not, it is not worth while now to consider; for, there clearly has been no total loss here, even according to the more liberal principle adopted by the recent English decisions.

WILDE, C. J.-My brother WILLIAMS, who was present when the argument took place, concurs in the decision we have pronounced.

Judgment for the defendants. (a)

(a) In Arnould on Insurance, Vol. II. p. 855, it is said that "It is quite certain that no amount of mere deterioration by sea-damage, however great, which does not annihilate the physical and distinctive character of the goods, will render the underwriter liable, especially where they arrive in bulk at their port of destination. (Citing M'Andrews v. Vaughan, Marshall on Ins. 219, Park, Ins. 252, 8th edit.; Mason v. Skurray, Marshall on Ins. 218, Park, 8th edit. 253; Glennie v. The London Assurance Company, 2 M. & Selw. 371; Anderson v. The Royal Exchange Assurance Company, 7 East, 38; Thompson v. The Royal Exchange Assurance Company, 16 East, 214; Hedburg v. Pearson, 7 Taunt. 154.) In this country, where a cargo, or part of a cargo, of memorandum articles is made up of several distinct packages, each capable of a distinct valuation, and any one of these be entirely lost, the underwriters are liable to the full value of the package so lost, this being considered a total loss of such part. (Citing Davy v. Milford, 15 East, 559.) But, in order to this, each package must be literally and entirely lost or destroyed in bulk: if its contents be only deteriorated, or in great part washed out by sea-water, whatever the extent of the depreciation may be, the rule

does not apply, and the underwriter is not liable. (Citing Thompson e. The Royal Exchange Assurance Company, and Hedburg v. Pearson.) In the United States, this whole doctrine of the total loss of part is exploded, and the construction of the memorandum settled to be, that unless there be a total loss of the whole species (as, of all the corn, or all the sugars on board) the underwriter is not liable, whether the article be shipped in bulk or in several distinct packages:" Wardsworth v. The Pacific Insurance Company, 4 Wendell's Rep. 33.

The insurer on articles in the memorandum is liable only for a total loss, which never can happen where the cargo, or a part of it, has been sent on by the insured and reaches its original port of destination: Moeran v. The United States Ins. Co., 1 Wheaton, 219, 3 Wash. C. C. Rep. 256; Hugg e. Augusta Ins. Co., 7 Howard, S. C. 595; Neilson v. Columbia Ins. Co., 3 Caines, 108; Ins. Co. v. Bland, 9 Dana, 143. To subject the insurers for the loss of goods specified in the memorandum clause, it is not necessary that there should be either an actual destruction of every part of the goods insured so as no longer physically to exist in specie, nor that there should be a total extinction of their value. It is sufficient if by reason of the peril insured against, the voyage is arrested and the goods neither come to the hands of the owners, nor reach their port of destination, nor are capable of being forwarded: Poole v. Ins. Co., 14 Connecticut, 47. Under a memorandum clause, warranting the insurer free from average unless general, the assured may recover for a total loss, although a few articles are saved at an expense not justified by their value: Bryan v. Ins. Co.. 25 Wendell, 617. Vegetables so damaged as to be of no value, and to exist only In the shape of a nuisance, are totally lost:

Williams v. Cole, 4 Shepley, 207. But in Robinson v. The Commonwealth Ins. Co., 3 Sumner, 222, in which Judge STORY decided tha it is a total loss, when by reason of the perils insured against, the cargo is permanently prevented from arriving at the port of destination, he remarked in summing up to the jury: "The principle of law is very clear, that as this is an insurance on a perishable cargo, the plaintiff is not entitled to recover, unless there has been a total loss of the cargo by some peril insured against. If the schooner had arrived at the port of destination with the cargo on board, physically in existence, the plaintiff would not have been entitled to recover, however great the damage might have been by a peril insured against, even if it had been ninety-nine per cent., or in truth even if the cargo had been of no real value. This seems to be the result of the authorities; although it is certainly pressing the principle of the memorandum clause to an extreme." As to the question, where the cargo consists of distinct packages, though of the same species besides the case cited in the reporter's note, see also Biays r. Chesapeake Ins. Co., 7 Cranch, 417; Brooke . Louisiana Ins. Co., 17 Martin, 530; Ins. Co. v. Bland, 9 Dana, 156.

*LYSAGHT v. BRYANT. Jan. 14.

[*46

A. and B. carried on business in partnership. The firm being indebted to C., A. (who acted as C.'s agent), with the concurrence of B., endorsed a bill of exchange in the name of the firm, and placed it amongst the securities which he held for C., but no communication of the fact was made to C. :-Held, a good endorsement by A. & B. to C.

The holder of a bill of exchange may, in an action against the drawer, avail himself of a notice of dishonour given in due time by any party to the bill, who, at the time of giving such notice, was under liability to him.

ASSUMPSIT. The first count of the declaration stated that the defendant, on the 7th of May, 1847, made his bill of exchange in writing, and directed the same to one Matthews, and thereby required the said Matthews to pay to his, the defendant's, order, the sum of 8007., six months after the date thereof; that the defendant then endorsed the said bill to one James Lysaght and one William Smithett, who then endorsed the same to the plaintiff; and that Matthews did not pay the same, although duly presented, of which the defendant had notice, &c.