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No argument is stated, no authority is cited, and I cannot set a high value on this case, great as is the weight of the considered and accurately-reported opinions of Lord Ellenborough, after argument. The reporter puts a most significant query at the end of the case, viz., "If the wife be killed on the spot, is this damnum absque injuria?" Why should the answer to it be, "Yes," as the defendant contends?

The next authority cited by the defendant is Higgins v. Butcher (1). According to that report the plaintiff shewed no damage to himself. He said his wife was beaten, and died to his damage. This shews no pecuniary damage to him. Then Tanfield, J., expresses an opinion which was overruled in White v. Spettigue (3), and which-as it does not give as the reason that death gives no cause of action-may be said by its silence on that to be in the defendant's favour. The same case is reported in Noy, who states the declaration; and in that report also no damage to the plaintiff is shewn. There the Court say the king only is to punish a felony ; and Tanfield, J., is stated to have said that the "action will not lie because the wife is dead, and she ought to have joined in the action, but otherwise if a servant." The case is rather an authority for the plaintiff than the defendant; it is mentioned by Twisden, J., in Cooper v. Witham (21), as depending on the act being a felony.

The remaining authorities are American, not binding on us indeed, but entitled to respect as the opinions of professors of English law, according to the position of those professors, and the reasons they give for their opinions.

The first in date are in the Supreme Court of Massachusetts (8). In one of the cases there reported, an action was brought by a father to recover damages for the loss of his son's service, killed by the negligence of the defendants, by an act not felonious. The other was brought by a widow to recover damages. for the death of her husband, killed in a like way. It seems strange, but the two cases are supposed to present a single

(21) 1 Levinz, 247.

question only for the Court-while it is obvious that the case of master and servant raises a different question to that of wife and husband. Nor do I understand why the plaintiff in the father's case-unless there was no damage to the father as master-was nonsuited. That looks as though he had not proved some fact. Possibly he had not proved damage, for the child was eleven years old only, and it is nowhere said there was any damage. If so, the decision is right. But the judgment is as follows: "If these actions or either of them can be maintained, it must be on some established principle of the common law." Now that is true, and the principle is that it is injuria and damnum, for which the defendant is responsible. The judgment proceeds: "And we might expect to find that principle applied in some adjudged case in the English books, as occasions for its application must have arisen in very many instances. At the least we might expect to find the principle stated in some elementary treatise of approved authority. None such was cited by counsel, and we cannot find any. This is very strong evidence that such an action cannot be supported." With great respect, the error of this reasoning is in supposing the burthen of proof or argument is on the plaintiff. The general principle is in his favour, that injuria with damnum gives a cause of action. It is for the defendant to shew an excep tion to this when the injuria causes death. If the case had been viewed in this way, the reasons of the Court tell for the plaintiff; for, in my judgment, the exception is not "upon any established principle of the common law;" it is not applied in any adjudged case in the English books; it is not stated in any elementary treatise. They then cite and rely on Baker v. Bolton (2), on which I have commented. They then cite a case (18) on which the contrary was assumed to be law by all parties and the Court, but suppose it may have passed sub silentio. I cannot be satisfied with this decision. The reasoning seems wrong, and the authority relied on insufficient.

The other case, Eden v. The Lexington, &c., Railway Company (7), is in the Kentucky Court of Appeals. That was an action by a husband for the negligent

killing of his wife. It is obviously, therefore, not in point. There is no relation of master and servant. If the wife had lived, she must have joined in the action, except to the extent of her husband's pecuniary loss for medicine, &c. But in the judgment the case of master and servant was mentioned. I do not very clearly understand it. The first position was that the rule that no action lies for a felonious act before prosecution does not prevail in Kentucky. The second is this: "But according to the principles of the common law, injuries affecting life cannot in general be the subject of a civil action. In other inferior felonies the civil remedy is merely suspended until after the conviction or acquittal of the supposed felon; but for injury to life, the civil remedy is considered as being entirely merged in the public offence." This was said to be the established common law doctrine in the case of Baker v. Bolton (2). It is true Lord Ellenborough is reported to have said that in a civil Court death could not be complained of as an injury, &c., but there is nothing else to justify the above opinion, and if this is the authority, White v. Spettigue (3) shews its inapplicability here. The judgment proceeds: "The cause of action for injuries to the dies with the person injured, and it follows as a necessary consequence that the cause of action having itself abated, no separate action can be maintained for such damages as are exclusively consequential." I have dealt with this argument before. It is this: Wrongful death which causes a damage gives no action, because it is death which causes it." The judgment proceeds to say that "damages may be recovered up to the time of death, but not beyond.' The reason of this seems to be that all injuries affecting life, caused by the misconduct of another person, involve the commission of a public wrong, which merges the remedy for all private loss arising after death has occurred and occasioned by it. Why every death caused by misconduct is to be assumed to be a public wrong, I know not. The misconduct may be actionable though not amounting to criminal negligence. Nor do I know



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why, however this may be, the remedy for private loss should merge in it.

I do not like criticising a variety of authorities, and escaping from their general effect by a variety of small differences and objections; but in this case it seems to me that the principle the plaintiff relies on is broad, plain and clear, viz., that he has sustained a damage from a wrongful act for which the defendant is responsible; that the defendant, to establish an anomalous exception to this rule, for which exception he gives no reason, should shew a clear and binding authority, either by express decision or a long course of uniform opinion, deliberately formed and expressed by English lawyers or experts in English law. I find neither. I may observe, too, that Mr. Manley Smith in his excellent work on Master and Servant, at p. 139, treats it as settled that an action like this lies. With the exception of a short note of the case of Baker v. Bolton (2), there is no semblance of an authority on this side of the Atlantic in favour of the defendant, and the cases from the other side are merely founded on that one, and on some vague notion of merger in a felony.

On the main question, then, I think the plaintiff entitled to judgment; but it seems to me clear that he is entitled to sue for the burial expenses. He says in his declaration that he necessarily incurred expenses in the child's burial. This must be taken to be true, if it can be. Now The Queen v. Vann (4) shews he was bound to bury the child if he had the means, which he may have had; and on this the judgment in Eden v. The Lexington, &c., Railway Company (7) is express. So also in Baker v. Bolton (2), the plaintiff recovered for loss up to the wife's death. In my opinion, then, the plaintiff is entitled to judgment.

Judgment for defendant.

Attorneys-Sharpe, Parkers, Pritchard & Co., for plaintiff; Flux & Leadbitter, for defendant.

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Marine Insurance-Voyage or Time Policy-South-West African Coast TradeDeviation-Meaning of "Stay and Trade.'

By the terms of a marine policy the insurance was expressed to be an insurance on a vessel and cargo "at and from Liverpool to the west or and south-west coast of Africa during her stay and trade therein and back to a port of call or and discharge in the United Kingdom." The premium was 8 guineas per cent. on the value insured. 20 per cent. of the premium was to be returned for the risk ending in ten months and 40 per cent. for the risk ending in eight months; and there was written in the margin "held covered at 13s. 4d. per cent. per month if longer than twelve months out." The vessel having stayed a month on the African coast for the purpose of earning salvage, and having been damaged there, and afterwards stranded on her voyage home, the owners sued for a total loss-Held, that the words "stay and stay and trade" meant "stay for the purpose of trade"; and that—no evidence being given that staying for salvage purposes was staying for an ordinary purpose of the SouthWest African coast trade-the risk had been substantially varied, that there was in the absence of such evidence no question for the jury, and that they were properly directed to find for the underwriters.

This was a bill of exceptions to the ruling of Kelly, C.B.

The declaration was on a policy of insurance on the ship William Dent and cargo. The material parts of the policy, the premium for which was stated to be at the rate of 8 guineas per cent., are as follows

"It is hereby agreed and declared that the said insurance shall be and is an insurance (lost or not lost) at and from


Liverpool to west south-west coast


of Africa during her stay and trade therein



and back to a port of call discharge in the United Kingdom,

"Returning 20°/. for risk ending in "10 months,

"Returning 40°/。 for risk ending in
8 months,

upon the body, tackle, apparel, ordnance,
munition, artillery, boats, and other fur-
niture, of and in the ship or vessel called
the William Dent, and it is also agreed
and declared that the subject matter of
this policy as between the insured and
the said company so far as concerns this
policy shall be and is as follows
Ship value

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£13,000 "

In the margin was written-
"Held covered at 13s. 4d.°/。 per month,
if longer than 12 months out."

The only plea material to this case was the ordinary plea of deviation, "That after the commencement of the risk and before any of the losses or the misfortune alleged the said ship without sufficient cause and excuse did not proceed on the said voyage and deviated therefrom."

The following facts appeared at the trial, before Kelly, C.B., in London:

The William Dent sailed in July, 1869, from Liverpool, bound to the coast of Africa with a general cargo, and arrived at Kinsembo on that coast on the 28th September, 1869, where she discharged her outward cargo and took in a cargo consisting of ivory and other articles. She left Kinsembo on the 8th of Novem ber, not then having a full cargo, and proceeded to several places on the coast of Africa, taking in more cargo at those places; and about the 21st of November she arrived at Cabenda Bay, which is an open roadstead or bay on the south-west coast of Africa, and at times exposed to heavy seas rolling into the bay. There are no ports at that part of the coast, but vessels load and discharge there. The William Dent was anchored in 34 fathoms of water, about half a mile from the shore, which was as near as she could properly get (vessels being always laden from lighters in Cabenda Bay); where the ivory put on board at Kinsembo was

discharged, and she then proceed to take in more cargo, and was on the 24th of November completely loaded with a full cargo, which belonged to the plaintiffs. On the same day the hatches were battened down and secured, and the ship was then ready to set sail on the homeward voyage to Liverpool. About the 25th of November, when she was ready to proceed to sea, a vessel, called the Robert Jones, struck on the rocks at a distance of about four miles off and close to the entrance of the bay. She was however got off the rocks and was towed towards the shore, but she sank in about 3 fathoms of water and about two or three cables length from the William Dent. The Robert Jones and her cargo, consisting of coal, were afterwards, about the 25th November, purchased by the plaintiffs' agent at Cabenda for a small sum, and the said agent wrote to the plaintiffs as follows: "I completed the lading of the William Dent to-day and she is now ready for sea; but I think it advisable to detain her for a day or two, in order that she may haul alongside the wreck of the Robert Jones, to remove the spars and if possible some of the cargo. I write to you at length via Bonny, of my purchase of the wreck, which I expect will turn out a very profitable transaction." He afterwards wrote as follows from St. Thomas, where he had gone from Cabenda Bay: the William Dent is loaded and at Cabenda, but I have left instructions to the master to remain at Cabenda as long as there is a prospect of him saving sufficient of the cargo and spars of the Robert Jones, to warrant the detention. I instructed him to haul the William Dent alongside the brig, and in that position he will be able to save a vast quantity of cargo and gear."

The William Dent was not moved from her first place of anchorage until driven therefrom as hereinafter mentioned, nor was she in any way employed in salving the wreck of the Robert Jones; but her master and crew, with the exception of one or two left on board as a watch, were so employed.

The vessel remained in Cabenda Bay, with her full cargo on board, until the 26th December, and her detention there was solely for the purpose of employing

her master and crew in saving portions from the wreck of the Robert Jones and her cargo.

On the 5th December, there was a heavy tornado from the south-east, which parted the cable of the William Dent, and before the ship could be brought up with second anchor, drove her athwart the Robert Jones, thereby causing some of the copper of the William Dent to be torn off, and also part of her bulwarks and rails to be carried away. The winds generally prevalent on the coast near Cabenda in November and December are southerly winds.

The bulwarks and rails were repaired and the copper (as far as it could be), the vessel being afloat, and on the 26th December, the William Dent loaded as aforesaid, left Cabenda Bay bound for Liverpool. The plaintiff's mate stated that, according to his judgment and opinion, the William Dent left in a perfectly seaworthy condition. He added that, in his opinion, the planking underneath was not injured, but he would not on his oath say that it was not injured.

During her said voyage to Liverpool the William Dent encountered bad weather, and was stranded at the island of Anna Bon, and during her said voyage events occurred in respect and on account of which the plaintiffs claimed in this action for a total loss.

Kelly, C.B., after the above-mentioned facts were proved by the plaintiffs' witnesses, expressed his opinion that the plea of deviation was proved. He proposed thereupon to nonsuit the plaintiffs, to which their counsel objected, asking that the jury should be directed according to the judge's opinion to find a verdict for the defendants on the issue joined on the plea of deviation, and thereupon Kelly, C.B., expressed his opinion to the jury, and they gave their verdict accordingly on the said issue, and were thereupon, by the consent of the parties, discharged from giving their verdict upon any other issue.

This bill of exceptions was then tendered and duly signed.

Cohen (with him C. P. Butt), for the plaintiffs.-The usual doctrine that delay constitutes deviation, though applicable to a voyage policy, does not apply to this policy, which is to some extent a time

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pool to the west or and south-west co Africa during her stay and trade and back to a port of call or and in the United Kingdom." was 8 guineas per cent, on the 20 per cent. of the premiur turned for the risk endir and 40 per cent. for + eight months; and the margin "held covere per month if lon out." The vesse on the Africar earning salve there, and

voyage hr


trade' trad




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heary tornado from the strap wa On the 5th December, there w with bond anchor, drove her athwart and before the ship could be brought as parted the cable of the Wilda,

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o act as hulks or ying the risk insured

the policies have been

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in the rage to

nd the

stay and policy in liberty to od the as

ject to the mium men

enious interplaintiffs upon the

and trade," viz., that the

enable the vessel to stay for any

purpose, and also to trade on the coast. I think they mean

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stay for the purpose of trade only." If for instance, after loading the cargo, the master was uncertain where it would be best to carry the

as in Hamilton v. Sheddon (4), cargo, a stay pending a decision to what Special reference to such employ

this case the ship was actually while remaining at Cabenda she was loaded. [He was then



stopped by the Court.]


in reply. It is not necessary for

the plaintiffs to contend that this is purely

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time policy. But it was clearly intended by the parties that the assured should have a discretion to remain a shorter or a longer time on the African coast, for the underwriters were to receive an increased premium for the longer time. If the policy be so framed as to allow a certain time on the coast, it is immaterial to the underwriters for what purpose the ship stays, and the plaintiffs might well have satisfied the jury that the purpose in this case was not unreasonable. The words stay and trade" should be inter

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port he should carry it would, in my opinion, be within the policy.

been varied.

No doubt in such a case, a question of fact may arise, as in Hartley v. Buggin (5), whether the staying had the voyage for its object, or whether the risk had If, for instance, there had been in this case any evidence that, by the custom of the South-West African coast trade, a ship might be applied to such a purpose as the William Dent was here,-that this purpose was in fact an ordinary purpose of the voyage within the contemplation of the parties, it would have been different, and there might well have been a question for the jury. Here, however, there was no evidence whatever that the employment of the vessel for salvage purposes was an ordinary purpose of the trade in question, and therefore the jury were properly directed to find for the defendants.

BLACKBURN, J.-I am of the same opinion. It is not necessary, in order to (5) 3 Dougl, 39.

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