was a full disclosure of the circumstances of the case; Shepherd v. Chewter, 1 Campb. 274; and fraud opens an adjustment. Christian v. Coombe, 2 Esp. 489. An adjustment does not require a stamp. Wiebe v. Simpson, 2 Šelw. N. P. 917, 4th ed. In an action on insurance of goods, if the declaration allege the ship to have been sunk, whereby the goods were spoiled, and it appear that some of the goods were saved, the plaintiff may give the expense of salvage in evidence, though not specifically averred. Cary v. King, Rep. temp. Hard. 304. Salvage on the re-capture of a ship must be proved by producing the proceedings of the admiralty court ascertaining the amount. Thellusson v. Shedden, 2 N. R. 229. In open policies the assured must prove the extent of his loss; but in valued policies, if the loss be a total one, he is only bound to prove some interest in the ship or goods, in order to take the case out of the statute 19 Geo. II. c. 37, for ever since that statute, the constant usage has been to permit the valuation fixed in the policy to stand, unless the defendant can show that the plaintiff had a colourable interest only, or that he has greatly overvalued the goods. But where the loss is partial it opens a valued policy, and the plaintiff is as much bound to prove the value of the goods that have been lost, and to ascertain the damage he has sustained by the loss, as in case of an open policy. 2 Saund. 201 (n).

The certificate of an agent of Lloyd's, resident abroad, is not admissible to prove the amount of damage sustained by goods, though the defendant is a subscriber to Lloyd's. Drake v. Marryatt, 1 B. and C. 473.2

Proof of amount of loss-abandonment.] Before the plaintiff can recover for a total loss, it is necessary in some cases to prove an abandonment. "The late cases show that a mere loss of the adventure by retardation of the voyage without loss of the thing insured, either by its being actually taken from the ship or spoiled, does not constitute a total loss, under a policy of insurance, unless by the aid and effect of an abandonment." Per Ld. Tenterden, Naylor v. Taylor, 9 B. and C. 723, citing Anderson v. Wallis, 2 M. and S. 240, and Holdsworth v. Wise, 7 B. and C. 794. In order to justify an abandonment, there must have been that in the course of the voyage, which at the time, constituted a total loss. Thus, capture or the necessary desertion of a ship constitutes a total loss. Per Bayley, J., Holdsworth v. Wise, 7 B. and C. 799. The effect of an adandonment, therefore, is to prevent a loss at the time total, from becoming, by the operation of subsequent circumstances, partial.

An abandonment may be by parol, but it should be certain, and therefore a statement of the facts, a request to settle for a total loss, and to direct the disposal of the ship, have been held insufficient.

* 8 Eng. Com. Law Reps. 137. a 17 Id. 482. b 14 Id. 129.

Parmeter v. Todhunter, 1 Campb. 541.

The notice of abandon

ment must be given within a reasonable time.

Read v. Bonham,

3 B. and B. 147; Hunt v. Royal Exchange Assurance, 5 M. and S. 47. Hudson v. Harrison, 3 B. and B. 106. So the underwriter is bound to say, within a reasonable time after receiving notice of abandonment, whether he will accept it or not. Hudson v. Har

rison, 3 B. and B. 97. A party jointly interested in the subject matter of the insurance, and who has effected the insurance, may give notice of abandonment for all. Hunt v. the Royal Exchange Assurance, 5 M. and S. 47.

Where the damage sustained makes the loss a total loss, as where a ship is reduced to a mere wreck so as not to be worth repairing, it is unnecessary to prove a notice of abandonment. bridge v. Anderton, 2 B. and C. 691, R. and M. 61, S. C.

Defence.

Cam

Under the general issue the defendant may show that the plaintiff is not entitled to recover, on account of fraud, or misrepresentation, or concealment of circumstances, or non-compliance with representations, or non-compliance with a warranty.

Fraud, misrepresentation, or concealment.] If the assured conceals any material fact which relates to the ship, the policy is void. Carter v. Boehm, 3 Burr. 1905. And the assured is bound to communicate all the information he has received, though he does not know it to be true, and it afterwards turns out to be false. Lynch v. Hamilton, 3 Tauut. 37. It is sufficient to communicate facts, without the opinion or conclusion founded upon these facts. Bell v. Bell, 2 Campb. 475; see Durrel v. Bederley, Holt, 283. Underwriters may, as it seems, be called to state their opinion, as to whether the communication would have varied the terms of insurance. Berthon v. Loughman, 2 Stark. 258, ante, p. 98, and see 3 Stark. Ev. 1175, but see Durrell v. Bederley, Holt, 286, contra. It is a question for the jury whether any particular fact is or is not material. Lindenau v. Desborough, 8 B. and C. 586. It is sufficient if a representation be substantially performed, and not like a warranty, strictly and literally. Pawson v. Watson, Cowper, 785. And it has been ruled by Lord Tenterden, that the mere fact of a misrepresentation, without fraud, will not be enough to prevent the plaintiff's recovery; for the contract between the parties is the policy which is in writing, and cannot be varied by parol. Flinn v. Tobin, 1 M. and M. 367.

In an action against a second or subsequent underwriter, it is the practice to admit evidence of representations to the first underwriter, on a presumption that the subsequent underwriters give credit to such representations. Ibid. Marsden v. Reid, 3 East, 573. Stackpole v. Simon, Park's Ins. 583, 6th ed. The rule is con

7 Eng. Com. Law Reps. 384. d 7 Id. 364. 9 Id. 224. 13 Id. 104.

fined to representations made to the first underwriter (that is, the first on the policy), Ibid. Bell v. Carstairs, 2 Campb. 543, and is, it seems, to be taken with great qualifications, and with regard to the time and circumstances under which the communication was made. Forrester v. Pigou, 1 M. and S. 9.

Fraud.] If goods are fraudulently over-valued, with intent to defraud the underwriters, the contract is void, and the assured cannot recover even for the value actually on board. Haigh v. De la Cour, 3 Campb. 319.

Deviation.] A deviation from the voyage insured is a defence to an action on the policy. Where the insurance is on a voyage to a given place, and the captain when he sails does not mean to go to that place at all, he never sails on the voyage insured. But where the ultimate termini of the intended voyage are the same as those described in the policy, although an intermediate voyage be contemplated, the voyage is to be considered the same until the vessel arrives at the dividing point of the two voyages. The departure from the course of the voyage insured then becomes a deviation; but before the arrival at the dividing point there is no more than an intention to deviate, which, if not carried into effect, will not vitiate the policy. Per Bayley, J., Hare v. Travis, 7 B. and C. 17.1

Non-compliance with warranties.] The defendant may defeat the plaintiff's claim, by showing a non-compliance with a warranty, either express or implied, vide ante, p. 180.

As to the want of proper stamp, and an alteration in the policy, vide ante, p. 128.

Competency of Witnesses.

An underwriter is a competent witness for another underwriter, who has subscribed the same policy, Bent v. Baker, 3 T. R. 27, unless he has entered into the consolidation rule, or has paid the loss upon an agreement to be re-paid in case the plaintiff fails. Forrester v. Pigou, 1 M. and S. 14. In an action on insurance of goods, the owner of the vessel is not a competent witness to prove the seaworthiness of the ship, for he would be liable to the plaintiff, if un-seaworthy. Rotheroe v. Elton, Peake, 84. So the captain is not a competent witness for the defendant, to disprove the charge of barratry. Bird v. Thompson, 1 Esp. 339. But in an action on a policy on goods, where the ship was lost by putting into a port out of the line of the voyage, it was held that the captain, who was also part owner, was competent to prove that the ship originally sailed on the voyage insured, by the direction of the owner of the goods, though not to prove that the deviation was justified by

14 Eng. Com. Law Reps. 4.

necessity. De Symonds v. De la Cour, 2 Bos. and P. N. R. 374. See also Taylor v. MViccar, 6 Esp. 27. One who is jointly interested in the property, whether at the time of effecting the policy, see De Symonds v. Shedden, 2 Bos. and Pul. 155, or afterwards, Perchard v. Whitmore, Ibid. (n), is an incompetent witness for the plaintiff. The captain's protest is not admissible evidence of the facts there stated, but may be read for the purpose of contradicting his testimony. Senat v. Potter, 7 T. R. 158. Christian v. Coombe, 2 Esp. 490.

ASSUMPSIT ON WARRANTY OF A HORSE.

When a horse has been sold, and warranted sound, but is in fact unsound, the purchaser may maintain an action upon the warranty, or, in some cases, may rescind the contract, and recover the money paid, under the count for money had and received. Thus, where by the contract the purchaser has the power of returning the horse, should it prove unsound, and does return it, or offers to do so, the contract is at an end, and money had and received will lie. Towers v. Barrett, 1 T. R. 133. So, where the contract is rescinded with the assent of the defendant. Per Buller, J., ib. But the purchaser must return the horse within a reasonable time; Dr. Compton's case, cited 1 T. R. 136; and see Adam v. Richards, 2 H. B. 574; and he must return him in the same state as sold, and not diminished in value by doctoring, &c. Curtis v. Hannay, 3 Esp. 82. See 5 East, 452. Where a horse was warranted sound, and the vendor said, in a subsequent conversation, that if the horse were unsound he would take it again and return the money, it was held that the original contract was not abandoned, and that assumpsit for money had and received could not be maintained by the purchaser, the horse not being taken back. Payne v. Whale, 7 East, 274. If the plaintiff sues for money had and received, he must prove the purchase, and warranty, and power to rescind (and, for this purpose, show a breach of the warranty, if necessary), and also the rescinding of the contract by returning the horse.

Where the plaintiff proceeds on the contract of warranty, he must prove, 1. The contract, viz. the consideration and the promise; 2. The breach of the warranty; and, 3. The damage sustained..

The consideration.] This is usually proved by the production of the receipt. If the defendant took another horse in part payment, it is no variance to state that the whole price was paid in money. Hands v. Burton, 9 East, 349, Brown v. Fry, Selw. N. P. 630; but see Harris v. Fowle, cited 1 H. B. 287. If an agent sell to A. two horses belonging to B. and C., and warrant them, A. must not de

Symonds v. Car, 1 Campb. 361. Where the declaration stated the contract to be, that in consideration the plaintiff would buy of the defendant a horse for a certain price, to wit, 557., the defendant undertook that the horse was sound, and the contract proved was that the defendant warranted the horse sound, and agreed to give 17. back if the horse did not bring the plaintiff 47. or 57., this was held a fatal variance. Blyth v. Bampton, 3 Bingh. 472, Gaselee, J., diss.

The promise or warranty.] The plaintiff must prove an express warranty, a high price not being tantamount thereto. Parkinson v. Lee, 2 East, 322. Where the plaintiff wrote to the defendant, "You will remember that you warranted a horse as a five-year old, &c." to which the defendant answered, "The horse is as I represented it," it was ruled that this was sufficient evidence for the jury to infer a warranty at the time of sale. Salmon v. Ward, 2 C. and P. 211. If the seller says, "The horse is sound to the best of my knowledge, but I will not warrant it," and the seller knows it to be unsound, he is answerable on this qualified warranty. Wood v. Smith, 4 C. and P. 45," 1 M. and M. MSS. S. C. Where the warranty was, "To be sold, a black gelding, five years old-has been constantly driven in the plough-warranted," this was held to be only a warranty of soundness. Richardson v. Brown, 1 Bingh. 344, 8 B. Moore, 338, S. C. A servant employed to sell a horse, has an implied authority to warrant; Alexander v. Gibson, 2 Campb. 555; and even though the servant have express directions not to warrant, but does warrant, the master, it is said, is bound, because the servant, having a general authority to sell, is in a condition to warrant, and the master has not notified to the world that the general authority is circumscribed. Per Bayley, J., Pickering v. Busk, 15 East, 45; see Helyear v. Hawke, 5 Esp. 75. But this doctrine has been confined to the cases of sales by servants of horse-dealers, who may be supposed to possess a general authority. Bank of Scotland v. Watson, 1 Dow, 45; and see Fenn v. Harrison, 6 T. R. 760, Anon. case, cited 15 East, 407. What is said by the servant at the time of sale is evidence, but an acknowledgment at another time is not so, and the servant must be called. Helyear v. Hawke, 5 Esp. 72. A receipt for the price, containing the warranty, is admissible to prove the latter, though only bearing a receipt stamp. Skrine v. Elmore, 2 Campb. 407.

Where the plaintiff declared on a warranty that the horse was sound, and the warranty proved was, that the horse was sound everywhere, except a kick on the leg, it was held a fatal variance. Jones v. Cowley, 4 B. and C. 445.o

Breach of the warranty.] The plaintiff must give positive proof

13 Eng. Com. Law Reps. 57. 12 Id. 94. I 19 Id. 267.8 Id. 339. • 10 Id. 377.