general, are not considered to be subjects of judicial cognizance. Under this general doctrine, the validity of valuations in policies has sometimes come up, and the principles laid down in the above case have invariably been adopted.

In Glover v. Black,' it is decided that bottomry and respondentia interest must be insured by the lender eo nomine, or at least that the lender at respondentia cannot insure his interest in the cargo, under the general description of 'goods;' though it had been decided previously in Godin v. the London Assurance Company, that the lien of an agent might be insured under such a description. Lord Mansfield confesses that he at first thought the description in the policy sufficient, but as he could find no dictum of any writer, foreign or domestic, that respondentia interest could be insured as goods, and as it was the law and practice of merchants that 'respondentia and bottomry must be mentioned in the policy,' he changed his opinion, and decided as above stated. The round assertion in this opinion, that such was the established law of merchants, is one of those hastily assumed positions, of which the opinions of Lord Mansfield afford too many examples; for he knew it to be the law only from the fact that the practice, as he was told, had always been to specify bottomry and respondentia interest in the policy. No reason whatever is given in the opinion why this should be the rule. In a subsequent case, twenty-one years after, at nisi prius, Lord Mansfield held that the lender at respondentia on the captain's adventure on an East India voyage, might insure his interest under the description of goods, wares, and merchandise,' in virtue of a particular custom to this effect. Here was a usage very nearly contradictory, if not directly so, to that previously set up. The diversity of decision is the more striking, as the first policy related to an East India voyage, so that the result of these two alleged usages is that the lender to a master on his adventure, may insure his interest as goods, while no other lender can insure under such a description. This certainly seems to be a very futile distinction. But the truth is, that nothing is more uncertain than these statements about usage, and even admitting all that could have been proved and more than could have been proved, namely, that it had been the uni

13 Burr. 1394.

2 Gregory v. Christie, Marshall's Ins. 472, Loudy's ed.

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versal practice to insure these interests under a particular description, this constituted no objection whatever to a party's adopting another description, provided it did not amount to a misrepresentation or concealment of a material fact. The case then ought to have been decided upon the consideration of the question whether the underwriter was liable to be prejudiced by such a description. Suppose a loss happens upon the goods, where the respondentia interest is insured under the description of goods,' and when the assured comes to claim his loss, and for this purpose exhibits his proof of interest, he shows himself to be only a lender at respondentia, how can the underwriter be prejudiced, any more than if he showed himself only to have a lien as factor or mortgagee?

In Robertson v. the United Insurance Company, 2 Johnson's Cases, 250, Mr. Justice Kent gives as a reason in favor of this decision by Lord Mansfield, that this risk is peculiar, as 'there is neither average nor salvage, and the capture does not mean a temporary taking only, but one that occasions a total loss.' As to salvage, the St. 19 Geo. II., c. 37, quoted in Glover v. Black, expressly provides that in respect to East India risks, the lender at respondentia shall be entitled to salvage. And if a temporary capture was not a total loss to him, and if he was not liable to an average loss, so much the better for the underwriter. He could make no objection on this score, since he was the benefited party. It is not easy, indeed, to perceive on what ground the doctrine in question can be vindicated.

The case of Thelluson v. Fergusson,' in which it was decided that a mere intention to deviate, does not affect the policy until it is put into execution, has stood unshaken to the present time; and subsequent decisions on the same point have been only varieties in the application of the doctrine of that case, which has not been at all modified or called in question.

The case of the Earl of March v. Fletcher, in which it was decided that the warranty of seaworthiness has reference to the beginning of the risk, is a good exposition of the doctrine of this warranty, for it is quite evident that the vessel may be rendered unseaworthy by the perils insured against, in the course of the voyage. The doctrine of this case has never been doubted in any subsequent one.

1 Doug. 361,

21 Burr. 2802.

During the time of Lord Mansfield, the question of the conclusiveness of the sentence of a foreign court of admiralty, which has been since so much agitated, was brought under discussion, and the conclusiveness of the foreign sentence, as to all the facts established by it, is pretty strongly stated. The palpable injustice wrought by this doctrine, in many cases, has induced courts, both in England and the United States, to attempt to restrain its operation, and in some instances the judges have directly denied its force. It certainly cannot now be considered as standing firmly upon the ground on which it was formerly placed. It is a very difficult question, for if a sentence of a court having jurisdiction is not binding and conclusive, as to the matters adjudicated, there would be no end of litigation. On the other hand, it is very inconvenient and prejudicial, that a sentence of a petty foreign prize court, upon a question of capture, should indirectly decide a question between the assured and underwriters, as to the neutrality of the property. This is indirectly referring to the decision of a foreign tribunal, a question which the parties to the policy intended should be determined by the tribunals of their own country. But as it is dangerous to deny this doctrine generally, it has been the practice of courts to evade its operation, where it was practicable, by denying that the fact directly brought in question between the parties to the policy, was specifically decided by the foreign court. But this is an inadequate remedy, since the fact in question will, in many cases, be so directly and palpably decided by the prize court, that the decision cannot be evaded in this way. A clause has accordingly been introduced into some American policies to meet the case, by providing that a sentence of a foreign court shall not bind the parties, but that the point decided, shall, as between them, be open to proof and investigation, to the same effect as if there had been no foreign adjudication in relation to it.

The decision in Pelly v. the Royal Exchange Assurance Company,' that sails and rigging put on shore in a foreign port, in the course of the voyage, while the vessel was repairing, are still within the conditions of the risk, and must be paid for by the underwriters, if destroyed by fire while so on shore, is important in principle and extensive in its application. The point

1 1 Burr. 341.

is distinctly presented by the case, and the decision specific ; and it has never been shaken or doubted.

Among the cases under this title, reported in the first part of the first volume of the Term Reports, while Lord Mansfield continued to preside in the king's bench-for though he did not resign until the period at which that volume concludes, he had ceased to sit in court during the latter part of the time — that of Jones v. Schmoll, (1 T. R. 130, n.) a nisi prius case, involves a pretty important principle. It was on a policy upon slaves, insured, among other risks, against mutiny. Some of the slaves died of chagrin, on account of the failure of a mutiny, and the market value of the survivors was reduced in consequence of the circumstance that there had been a mutiny of the crew. Lord Mansfield instructed the jury that this was a remote consequential damage from the mutiny, for which the underwriters were not answerable. The opinion was important in principle, and has been cited in many cases.

But another decision, involving a very similar question, namely, Meretony v. Dunlope,' is very questionable. It was the case of a vessel damaged, and which, as it is expressed in the report, had 'received her death-wound,' during the period of the risk, but was not lost until three days after the policy had expired. This case is not particularly reported, being only cited and referred to as having been approved by the court, meaning, as we understand the report, the court of king's bench. But certainly, if a ship is damaged during the period for which the insurance is made, the underwriters ought to pay the amount of what the damage would have been, if the ship had been in port at the end of the risk. The point seems to us to be plain. And yet a case was decided, upon the same principle, in the time of Lord Ellenborough. It was that of a vessel insured against sea risks only, which, being very much damaged by ice in going out of the harbor of New York, was thereupon seized for a violation of the embargo, or non-intercourse law, and the court held that the loss by the sea damage could not be recovered. This seems to us to be an instance of adherence to precedent, to the sacrifice of principles.

These are the most important cases on insurance, decided by the king's bench during the thirty-two years of Lord Mansfield's

1 T. R. 260.

presiding in that court. The other cases on this branch of law either do not present questions of much interest or difficulty, or the doubt arises on the construction of the facts, and, however decided, they have not an important bearing upon other cases. Under the title of Factors and Agents, only five or six decisions are reported in the king's bench during this period.

In Buleer v. Harrison,' it is held that where money is paid to an agent by mistake, his merely passing it to the credit of his principal, in his books, will not prevent the party who paid it, from recovering it back, on discovering the mistake, and giving notice of it to the agent before he has paid the money over to the principal. In Downing v. Goodwin, the factor is held to have a lien on the price for which he sells his principal's goods, as well as upon the goods themselves. These are very clear points. Another of the cases, is not so clear, though we are not disposed directly to dispute its correctness. A foreign merchant ordered his agent in London to insure a shipment of fruit, and he effected the insurance with the Royal Exchange Assurance Company, in whose policies the memorandum being broader than that of the London Assurance Company's, or those in use at Lloyd's, the policy afforded no protection to the assured against a loss which took place; as most usually happens in policies on the memorandum articles, except in time of war; the premium being for the most part thrown away. As the premium at the other offices was the same, and as the loss might have been recovered had the policy been effected with them, the principal charged the agent with negligence, and on that ground brought an action against him for the amount of the loss he might have recovered of the underwriters had the insurance been made at one of the other offices. It was held, however, that he was not liable, as it was customary to insure as he had done. Lord Mansfield, in giving the opinion of the court in this case, took a liberty with the plaintiff's attorney which was more customary in those times than in our own; saying he had 'invented' two grounds of action in his declaration. This animadversion seems to us not to have been altogether merited. It does not seem to us to be so very clear that he had not a ground of action in the facts,

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