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one particular instance would be sufficient to discharge the underwriters. Upon the second question in this case, HOLDSWORTH namely, whether the plaintiffs, if entitled to recover at all, are entitled to recover for a total or for a partial loss only, I entertain no doubt. I am clearly of opinion that the loss in this case ought to be considered as a total loss. In order to justify the abandonment of the ship, there must be a total loss; that is, not a total loss of the ship itself, absolutely and for ever, but a total loss at some one time of the possession and use of her by the assured. Capture is such a total loss, and justifies abandonment, though the ship remains in specie, and is eventually recaptured and restored. So, I think, the crew's being compelled by fatigue and exhaustion, or for the preservation of life, to leave the ship to the winds and waves, is a total loss, and justifies abandonment. That was the case here. The ship was on her beam ends; the pumps were choked; some of the masts had been cut away; and she appeared to be in a sinking state. Eventually the ship was saved, but not by the ship by which the crew were taken up. The crew of that ship made no attempt to save her; they evidently considered her as a hopeless ship, not worth the chance of endeavouring to save. She appeared to be totally lost, and they left her as such to her fate. Notice of abandonment was given. Ultimately the ship arrived in England, but she had, in my opinion, been once totally lost to the assured; and it seems to me, both upon principle and authority, that her subsequent restoration did not convert that total into a partial loss. Thornely v. Hebson (a) does not apply to the present case, because it was held there that the ship was never totally lost, and that was the ground of the decision. M'Iver v. Henderson (b), and Cologan v. The London Assurance Company (c), are decisive to shew that the restitution of a thing once totally lost will not convert the total into a partial loss, at least unless the
(a) 2 B. & A. 513. (b) 4 M. & S. 576. (c) 5 M. & S. 447.
restitution be unfettered. It is not enough to restore the ship in specie, she must be restored in an unfettered state, in a state which leaves her possession useful and beneficial to the assured. But that was not the case here. The ship was restored in specie, but with debts upon her altogether exceeding her value. Upon the whole, therefore, I am clearly of opinion that there was a total loss of this ship at one period of time, followed by notice of abandonment by the assured, and not followed by any thing which converted the loss into a partial loss; and consequently that the underwriters continue liable for a total loss.
HOLROYD, J.-I am of the same opinion. There was once a total loss of the ship, and her subsequent restoration under the circumstances proved in this case cannot reduce that to a partial loss. If possession of the ship had been taken by another crew before, or at the moment of her desertion by her own crew, the case would have been different. That is the circumstance which distinguishes this case from Thornely v. Hebson (a).
LITTLEDALE, J.-I am also of the same opinion. In Thornely v. Hebson the ship was never absolutely deserted or abandoned. Here she was, and was left as and for a total wreck. I do not mean to say that a total loss can never, under any subsequent change of circumstances, be converted into an average loss; Hamilton v. Mendez (b), and Falkner v. Ritchie (c), are authorities that seem to shew that it may. Whenever that question arises, I shall give it further consideration. But I think it does not arise in this case, or at least that there are other facts here which decide this case in favour of the plaintiffs independently of it. Here the ship came back loaded with a debt and charges upon her exceeding her value. Her liability nearly equalled her value, without including the damage sustained
(4) 2 B. & A. 513. (6) 2 Burr. 1198; 1 W. Bla. 276. (c) 2 M. & S. 290.
on her passage home; and if that be included, which 1 think it ought to be, there was a loss beyond her value.
Upon the first question, Cur. adv. vult.
Subject to that question, Rule discharged (a).
(a) Afterwards, at the sittings in banc after Trinity term, 1828, Bayley, J., mentioned the case, and said the Court were of opinion that the rule ought to be discharged upon the first question also. They were unanimous in thinking that the implied warranty of sea-worthiness did not extend to the ship being sea-worthy at every port from which she might
depart in the course of her voyage;
Where, in ejectment, the plaintiff relies on the invali
dity of a se
DOE, on the Demise of ANN JAMES, v. CHARLES PRICE. EJECTMENT for premises in the parish of Llantarnan, in the county of Monmouth. At the trial before Vaughan, B., at the last Monmouthshire assizes (a), the case was this:The lessor of the plaintiff claimed title to the premises in question, as the niece and heir at law of one John James; former marand the only question in issue was, whether a marriage riage by lisolemnized in the year 1812, between John James and a cence, one of lady whose maiden name was Martha Absalom, and of which the parties being a minor, marriage there was issue, was legal: that is, whether that and defendant
cond marriage, by reason of a
has notice that
lady was or was not, at the time of such marriage, a married Notice had been given by the lessor of the plain- intended to
be raised is
first marriage was with con
tiff to the defendant, some time previous to the trial, of her whether the intention to dispute the validity of the marriage in 1812, on the ground of a prior marriage solemnized in the year 1797, between Martha Absalom and one John Evans; and it was (a) Counsel for the plaintiff, WV. E. Taunton and Maule; for the defendant, Ludlow and Russell, Serjts.
sent of the
the Court will not grant a new trial to let in evidence negativing such consent, where that evidence might have been produced at the first trial.
proved in evidence that a marriage by licence did take place at that time between those parties, Martha Absalom being then a minor. The entry in the register did not state the marriage to have been had with consent of parents; but much evidence was given on the part of the lessor of the plaintiff, to shew that the father of Martha Absalom knew and must have approved of the marriage. It was contended on the part of the defendant, that positive affirmative evidence of the father's consent was absolutely necessary to support the action, and to satisfy the requisites of the statute (a); but the learned Judge told the jury that in his opinion evidence of circumstances in the conduct of the father, importing knowledge and approbation of the marriage, was sufficient, without positive proof of a written or verbal consent. The jury, under this direction, found the fact of consent, and a verdict for the plaintiff. In last Michaelmas term, a rule nisi for a new trial was obtained upon affidavits stating various circumstances tending to negative the fact of consent, and setting out the affidavit made by John Evans for the purpose of obtaining the licence, in which he deposed that both he and Martha Absalom, were at that time, according to the best information he could procure, twenty-one years of age.
W. E. Taunton and Maule shewed cause. The balance of evidence was greatly in favour of the validity of the first marriage of Martha Absalom, that is, that it was had with the consent of her father. The defendant did not give any evidence at the trial to negative the fact of consent, which, under the circumstances of the case, it was his duty to do. He received notice long before the trial of the lessor of the plaintiff's intention to dispute the validity of the second marriage; therefore he was fully apprised of the case to be
(a) 26 Geo. 2, c. 33, s. 11, which enacts that all marriages solemnized by licence, where either of the parties, not being a widower or
widow, shall be under the age of twenty-one years, which shall be had without the consent of father, guardian, &c. shall be void.
set up against him, and might and ought to have gone to trial perfectly prepared with evidence to meet it. He cannot support this motion on the ground of surprise, for the evidence which he now lays before the Court in his affidavits might have been produced at the trial by means of witnesses, who would then properly have been subject to cross-examination: and it would be highly dangerous for the Court to allow a defendant, after he has by one trial obtained a full knowledge of his opponent's case, to obtain a second trial by means of affidavits, supplying facts which he was bound to have known and proved at the first. Upon every principle it is clear that it was for the defendant to prove non-consent, and not for the plaintiff to prove consent. The marriage took place thirty years before the trial, and after such an interval proves itself, or at least must be presumed to have been regular and legal; for the law will presume every thing possible to be presumed in favour of the validity of a marriage and the legitimacy of children. The words of the statute 26 Geo. 2, c. 33, s. 11, "without consent," shew that it was the intention of the legislature to cast the burthen of proof upon the party disputing the validity of the marriage; and there are cases in the books supporting that construction. In Rex v. Rogers (a) · it was held necessary, in support of an indictment under the statute 42 Geo. 3, c. 107, s. 1, for coursing deer in an inclosed ground "without the consent of the owner thereof," to call the owner of the deer to prove that he did not give his consent to the prisoner to course them. In Williams v. The East India Company (b), where a plaintiff declared that the defendants, who had chartered his ship, put on board a dangerous commodity, by which a loss happened, without due notice to the captain, or any other person employed in the navigation, it was held that it lay
(a) 2 Campb. 654.
(b) 3 East, 192; and see Monkev. Butler, 1 Rol. Rep. 83, there cited; Powell v. Milbank, 2 W. Bla.
851; Lord Halifax's case, Bull.