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For the defendant it was contended, that evidence of the policy effected by Aikin ought not to be received ; that the testimony of Aikin ought not to be admitted to control the written document declared upon; and lastly, that upon the legal evidence in the cause, the loss was covered by the money paid into Court, inasmuch as the policy effected by the plaintiff must be understood to be upon gross freight, and that, consequently, he was his own insurer for the difference between the 4001. insured, and 8001., the amount of such gross freight. The learned Judge overruled these objections, and directed a verdict in favour of the plaintiff for the full amount of the sum insured, being of opinion, that as the policy was a contract of indemnity, in the case of an insurance upon freight, the amount insured, and at risk, was that net sum, which the plaintiff, at the termination of the voyage, would have put into his pocket, after deducting all sailing expenses (a). Leave was, however, given to the defendant to move to enter a nonsuit, or for a new trial.
Brougham now moved accordingly. 4001.was insured ; the amount of the risk was 8001., leaving the plaintiff his own insurer as to a moiety, and money was paid into Court upon that principle (b). The gross freight was 8001., and the plaintiff says, that seamen's wages, &c., are to be deducted from his half, and that the defendant, therefore, ought to pay the whole sum insured. Aikin was called by the plaintiff, and permitted to prove calculations entered into at the time when the policy. was effected, in order to shew what was intended by the parties in using the word “ freight.” [Lord Tenterden, C. J. The sum which the witness paid, he improperly called freight. The “freight" for which this insurance was made by the plaintiff, was
in case the ship is lost; that is all he loses. But the practice is as before stated ; and it is probable it will remain so, unless the law shall
(a) See Valin, 2d vol., 200, 201, edit. 1761; post, 165 note (a).
(6) Ante, 159 (a),
money which he was to receive from Aikin for the hire of the ship. Bayley, J. A common policy on freight would cover sailing charges (a). Here another policy was effected at the same time]. The terms of the contract ought not to be imported from another instrument. It was shewn to be the universal usage to settle upon the gross freight. Lord Tenterden, C. J.-Here there was another
policy for the express purpose of meeting the outgoings.
BAYLEY, J.-It was a plain explanation at the time of the species of interest to which the insurance was to apply.
Rule refused (6). (a) Vide ante, 163 (a).
to shew, ought to be deducted (6) And see Wilson y. Royal from the original value of the ship, Exch. Ass. Comp., 2 Campb. 626 ; and not from the amount of the Pothier, Traité du contrat d'Assu- freight." The passage in the rance, chap, 1, sec. 2, no. 36 et Digest here referred to, seems to 39; Davidson v. Walmesley 1 M. be the following :-“ Itidem agi& S. 313; Atty v. Lindo, 1 N. R. tatum est an etiam vestimentorum 236; Gibbon v. Mendez, 4 B. & cujusque et annulorum æstimatio A. 17; Stevens (on Average, 61, fieri oporteat ? Et omnium visum 2), says,
some persons hold, I est, nisi si qua consumendi causâ presume on the authority of the
imposita forent, quo in numero esDigest, (Dig. ad Leg. Rhod. 1, sent cibaria, eo magis quod si quando 2, s. 3. Ord. Ph. 2, art. 7 ; Vinn. ea defecerint in navigatione, quod in Peck., &c.), that not only the quisque haberet in commune conwages but the provisions ought to ferret, Dig. Lib. 14, Tit. 2, Leg. 2, be deducted from the freight, and sec. 2.” The same principle is a learned and excellent writer confirmed and extended in the before quoted, appears to be of Ordonnance de la Marine, Liv. 3, this opinion (Abbott, part 3, ch. 8, Tit. 8, Art. 11, “ Les munitions de sect. 10); for in a pro formâ state- guerre et de bouche, ni les loyers et ment given of a general average
hardes des matelots ne contribueclaim, he deducts the wages and ront point au jet, et néanmoins ce victuals from the freight, and this, qui en sera jetté sera payé par conthough the ship is supposed to tribution sur tous les autres effets. bave sailed from Portsmouth, and The non-liability of these matters to have put into Ramsgate in dis- to contribution in case of general tress. No satisfactory reason can average, does not appear to have be given, why the ship's provi- any connection with the propriety sions, which are part of the ship’s of considering them as a deduction stores, should be deducted from out of freight, whenever freight the freight; what is expended becomes the subject of general of them, as I have endeavoured average, or (as is allowed by the
law of England), of insurance. In payer leur loyers." And again, commenting upon this article of the (page 201), “ En fait de contribuOrdonnance, however, Valin says, tion au rachat du navire et de son (2 vol. 200), “ Mais la raison pour chargement, il y a cette difference, laquelle les loyers des matelots ne que le navire et le fret y entrent contribuent pas au jet, est—qu'au pour le tout, déduction faite toutefois fonds le proprietaire ou le maitre du des vituailles consommées, et des navire contribue à leur décharge pour avances faites aux matelots, et que leurs loyers en contribuant jusqu'à les matelots contribuent aussi à la concurrence de la moitié du fret à décharge du fret à proportion de raison duquel il est chargé de leur ce qui leur restera dú de leurs loyers.
HARPUR v. LUFFKIN.
7 PT 307 A father TRESPASS for assaulting and debauching plaintiff's may maintain an action of daughter and servant, per quod servitium amisit. Plea, trespass for
not guilty, and issue thereon. At the trial before the seduction of his daughter Gaselee, J., at the last Lent assizes for Essex, the case was and servant, whom he
this. The plaintiff's daughter was a married woman, but maintains in separated from her husband, who resided in London. She consideration of her services,
had three children, issue of her marriage, and resided with though she be them, near Colchester, in the house of the plaintiff, by a married woman ; for
whom they were all maintained. Here she acted in the though the
capacity of a servant; but she received no wages : and the relation of master and children were too young to perform any service.
While servant subsisting be
the parties were thus situated, the plaintiff's daughter tween them, became acquainted with the defendant, and entered into binding as
an illicit connexion with him, which ended in her being against her
delivered of a child, of which he acknowledged himself husband, it is binding as
the father. The plaintiff defrayed the expenses of her against a
delivery, &c. The illicit intercourse was never carried on stranger and a wrong
in the plaintiff's house. There was no evidence that the doer.
husband and wife had ever met during a period of two years previous to the birth of the child; but it was proved that it was physically possible that they might have met. Under these circumstances, it was contended on the part of the defendant, that the action was not maintainable, inasmuch as the plaintiff's daughter, being a married woman, and liable at any moment to be claimed by her
may not be
husband, was not competent by law to enter into any contract of hiring and service with her father, and could not in point of law be regarded as a servant, so as to give the plaintiff a right to her services, and to support his allegation of servitium amisit. The learned Judge overruled the objection, but reserved the point, and the plaintiff obtained a verdict, with 101. damages, with leave for the defendant to move to enter a nonsuit.
Jessopp now moved accordingly, and renewed the objection. The plaintiff cannot maintain this action, unless his daughter was legally his servant, at the time when the seduction took place. Now, the daughter being a married woman, liable at any moment to be removed from her father's house by her husband, and to be subjected to the marital control, was not sui juris, or competent to enter into any contract of hiring and service. She did not, therefore, stand in the legal relation of servant to her father, in which case the latter had no right to her services, and cannot maintain an action for the loss of them. No wages were paid by the father to the daughter, which is a circumstance in itself almost conclusive to shew that the relation of master and servant did not subsist between them. Then as the plaintiff cannot recover for the loss of service, neither can he for the expenses incurred by the birth of the child, for he was not liable to pay them, but the husband, who it was proved, might have had access to his wife at any period during their separation, and who must therefore, in the eye of the law, be presumed to be the father of the child. The relation of parent and child will not avail, unless there is a bona fide relation of master and servant subsisting; for a parent, in that character merely, cannot support an action for the seduction of his daughter, as has been repeatedly decided (a): but a master, in that character merely, though he does not stand in
(a) See 9 Co. Rep. 113 a.; Sir T. Raym. 259; 5 East, 45; 2 T. R. 168; 5 T. R. 360; Peake,
N. P. C. 233; 3 Burr. 1878; 2
the relation of a parent, may maintain an action for debauching his servant (a), because, the very gist of the action is the loss of service, and it is maintainable only in respect of the injury thereby sustained by the master. The present case presents a perfectly new question, and one that seems worthy of grave and deliberate consideration. The two cases which come the nearest to the present, are those of Irwin v. Dearman (6), and Edmonson v. Machell (c), the latter of which was cited in the former. It was held in the first that in an action on the case for the seduction of an adopted daughter, and servant, increased damages might be given on the ground of the servant's being the adopted daughter of the plaintiff: and in the latter, that an aunt, being in loco parentis, might maintain trespass for assaulting her niece and servant. But in both those cases, it was clearly made out, that the injured party was acting bona fide, in the capacity of servant to the plaintiff, and was capable of entering into an engagement for that purpose : here there was no bonâ fide relation of master and servant in point of fact, and the daughter was not capable of contracting such a relation in point of law. The argument of the present Lord Chief Justice of this Court, then at the bar, in Irwin v. Dearman, deserves great weight. He urged " that the allowing an action of this description, even by a legitimate parent, was an anomalous case; as enabling one person to recover damages for injury done to another : and the extension of the remedy to an action by an aunt with whom the niece was living, was very much doubted at the time. At least, that could not be called into precedent for a further extension of the principle.” Now, to allow the present action, will be a still greater anomaly, and will be to extend the principle far beyond that case, because it will be giving the remedy to a father whose parental rights and liabilities, quoad his daughter, have all merged in her husband, who is the only
(a) See Style, 398; Peake's, (b) 11 East, 23. N. P.C. 55.
(c) 2 T.R. 4.