1827. ETCHES v. ALDAN. 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 4007. insured, and 8007., 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 nousuit, or for a new trial. Brougham now moved accordingly. 4007.was insured; the amount of the risk was 8007., leaving the plaintiff his own insurer as to a moiety, and money was paid into Court upon that principle (b). The gross freight was 8007., 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 decide otherwise." (a) See Valin, 2d vol., 200, 201, edit. 1761; post, 165 note (a). (b) 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. (a) Vide ante, 163 (a). (b) And see Wilson v. Royal Exch. Ass. Comp., 2 Campb. 626; Pothier, Traité du contrat d'Assurance, chap, 1, sec. 2, no. 36 et 39; Davidson v. Walmesley 1 M. & S. 313; Atty v. Lindo, 1 N. R. 236; Gibbon v. Mendez, 4 B. & A. 17; Stevens (on Average, 61, 2), says, some persons hold, I presume on the authority of the Digest, (Dig. ad Leg. Rhod. 1, 2, s. 3. Ord. Ph. 2, art. 7; Vinn. in Peck., &c.), that not only the wages but the provisions ought to be deducted from the freight, and a learned and excellent writer before quoted, appears to be of this opinion (Abbott, part 3, ch. 8, sect. 10); for in a pro formâ statement given of a general average claim, he deducts the wages and victuals from the freight, and this, though the ship is supposed to have sailed from Portsmouth, and to have put into Ramsgate in distress. No satisfactory reason can be given, why the ship's provisions, which are part of the ship's stores, should be deducted from the freight; what is expended of them, as I have endeavoured Rule refused (b). to shew, ought to be deducted from the original value of the ship, and not from the amount of the freight." The passage in the Digest here referred to, seems to be the following:-" Itidem agitatum est an etiam vestimentorum cujusque et annulorum æstimatio fieri oporteat? Et omnium visum est, nisi si qua consumendi causâ imposita forent, quo in numero essent cibaria, eo magis quod si quando ea defecerint in navigatione, quod quisque haberet in commune conferret, Dig. Lib. 14, Tit. 2, Leg. 2, sec. 2." The same principle is confirmed and extended in the Ordonnance de la Marine, Liv. 3, Tit. 8, Art. 11, "Les munitions de guerre et de bouche, ni les loyers et hardes des matelots ne contribueront point au jet, et néanmoins ce qui en sera jetté sera payé par contribution sur tous les autres effets. The non-liability of these matters to contribution in case of general average, does not appear to have any connection with the propriety of considering them as a deduction out of freight, whenever freight becomes the subject of general average, or (as is allowed by the 1827. ETCHES v. ALDAN. A father may maintain an action of trespass for the seduction of his daughter and servant, whom he of her services, a married woman; for though the HARPUR V. LUFFKIN. TRESPASS for assaulting and debauching plaintiff's daughter and servant, per quod servitium amisit. Plea, not guilty, and issue thereon. At the trial before Gaselee, J., at the last Lent assizes for Essex, the case was this. The plaintiff's daughter was a married woman, but maintains in separated from her husband, who resided in London. She consideration had three children, issue of her marriage, and resided with though she be them, near Colchester, in the house of the plaintiff, by whom they were all maintained. Here she acted in the capacity of a servant; but she received no wages: and the children were too young to perform any service. While the parties were thus situated, the plaintiff's daughter became acquainted with the defendant, and entered into an illicit connexion with him, which ended in her being delivered of a child, of which he acknowledged himself the father. The plaintiff defrayed the expenses of her delivery, &c. The illicit intercourse was never carried on in the plaintiff's house. There was no evidence that the 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 relation of master and servant subsisting between them, may not be binding as against her busband, it is binding as against a stranger and a wrongdoer. 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 107. 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 bonâ 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 1827. 167 HARPUR v. LUFFKIN. 1827. HARPUR: v. LUFFKIN. the relation of a parent, may maintain an action for de- (c) 2 T. R. 4. |