ant, as where it was caused by the fraud or procurement of the plaintiff. In criminal cases, though insanity, as we have just seen, is ordinarily an excuse, yet an exception to this rule, is when the crime is committed by a party while in a fit of intoxication; the law not permitting a man to avail himself of the excuse of his own gross vice and misconduct, to shelter himself from the legal consequences of such crime. But the crime, to be within the exception, and therefore punishable, must take place and be the immediate result of the fit of intoxication, and while it lasts, and not the result of insanity, remotely occasioned by previous habits of gross indulgence in spirituous liquors. The law looks to the immediate and not the remote cause; to the actual state of the party, and not to the causes which remotely produced it.2

was, that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment. In answer to the last question, we state to your Lordships, that we think the medical man, under the circumstances supposed, cannot in strictness be asked his opinion in the terms above stated, because each of these questions involves the determination of the truth of the facts deposed to, which it is for the Jury to decide; and the questions are not mere questions upon a matter of science, in which case such evidence is admissible. But where the facts are admitted, or not disputed, and the question becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though the same cannot be insisted on as a matter of right." Ibid. p. 200-212.

1 Chitty on Contracts, p. 112, (4th Am. ed.); Story on Contracts, § 27, and cases there cited.

2 United States v. Drew, 5 Mason, R. 28, per Story, J.; 1 Russell on Crimes, p. 7, 8, (3d ed.) See Ray on the Medical Jurisprudence of Insanity, ch. 24. In the Jurisprudence of Continental Europe, drunkenness is generally distinguished into three kinds,— (1.) Intentional, voluntarily induced in order to the commission of a crime while in that state;-(2.) Culpable, by drinking without any intention to become drunken, but where the party might easily have foreseen that he would naturally become so; — (3.) Inculpable, where such consequence could not easily have been foreseen, or, where the party took due precautions against any injurious effects, as, by directing his servants to confine him if he should become drunk, or, where the drunkenness was justly attributable to others, or, was the result of disease. In the first case, it is no excuse; in the second, it reduces the degree of criminality and mitigates the punishment; in the third, the liability to punishment ceases. See Professor Mittermaier's learned Treatise on the Effect of Drunkenness upon Criminal Responsibility, § vi. vii. viii. ix.

INSURANCE.

§ 375. THE ordinary subjects of the contract of Insurance are, (1.) Marine Risks; (2.) Losses by fire; (3.) Lives; all which will be considered in their order.

§ 376. In an action on a policy of insurance, whatever may be the subject, the declaration1 contains the following

1 The following forms of counts, in the simplest cases arising upon marine policies, established in Massachusetts, are well adapted to the brevity of modern practice at Common Law in any of the United States:

1. On a SHIP, for a TOTAL LOSS. "In a plea of the case, for that on the plaintiff was owner of the ship John, then lying in the harbor of aforesaid; and the said Company, in consideration of a premium therefor paid to them by the plaintiff, made a policy of insurance upon the said ship for a voyage from the said to Cadiz in Spain, and at and from said Cadiz to her port of discharge in the United States; and thereby promised to insure for the plaintiff ten thousand dollars upon the said ship for the said voyage against the perils of the seas, and other perils in the said policy mentioned; (a) and the plaintiff avers that the said ship did on sail from said on the voyage described in said policy, and whilst proceeding therein, was, by the perils of the seas, wrecked and totally lost; of which the said Insurance Company, on had notice, and were bound to pay the

same on demand; (or in sixty days); yet they have never paid the said sum of ten thousand dollars, though requested, (or though sixty days have elapsed.) To the damage, &c."

2. Count for a PARTIAL LOSS, and for CONTRIBUTION TO A GENERAL AVERAGE. [State the plaintiff's interest, the voyage, and the insurance, as in the last precedent, to (a), and proceeds as follows:]

and the said Company did, in and by the same policy, further promise, that in case of any loss or misfortune to the said ship, it should be lawful for the plaintiff and his agents to labor for and in the defence and recovery of the said ship, and that the said Company would contribute to the charges thereof, in proportion as the said sum assured by them should be to the whole sum at risk; and the plaintiff avers, that the said ship did, on —, sail from said on the voyage aforesaid; and whilst proceeding therein by the perils of the seas, dismasted, and otherwise damaged in her hull, rigging, and appurtenances; insomuch that it was necessary, for the preserva

was,

allegations, which must be proved by the plaintiff, if not admitted by the pleadings;-(1.) the Policy; (2.) the plaintiff's Interest in the subject insured, and the payment of the premium; (3.) the inception of the Risk; (4.) the Perform

tion of the said ship and her cargo, to throw over a part of the said cargo; and the same was accordingly thrown over for that purpose; by means of all which, the plaintiff was obliged to expend two thousand dollars in repairing the said ship at ———, and also (or, and is also liable to pay) the sum of five hundred dollars as a contribution to and for the loss occasioned by the said throwing over of a part of the said cargo; and the said ship also suffered much damage that was not repaired in said Cadiz; of all which the said Company on had notice, and became bound to pay the same in sixty days; yet, though said sixty days have elapsed, they have never paid the said sum of ten thousand dollars, nor any part thereof. To the damage, &c."

3. Count for a TOTAL LOSS OF CARGO BY FIRE. "In a plea of the case, for that on a certain brigantine called the William, was laying at and the plaintiff was the owner of the cargo, (or of certain goods) then laden or about to be laden on board of the said vessel; and the said C. D., in consideration of a certain premium therefor paid to him by the plaintiff, made a certain policy of insurance in writing upon the said cargo, (or goods,) at and from said to Hamburg, or any other port or ports in the north of Europe, and at and from thence to said or her port of discharge in the United States; and the said C. D. by said policy, promised to insure for the plaintiff - dollars on the said cargo (or goods) for the voyage aforesaid, against the perils of fire, and other perils in said policy specified; and the plaintiff avers, that the said vessel, with the said cargo (or goods) on board, did on sail from said on the voyage aforesaid; and afterwards, during the said voyage, whilst the said vessel, with the said cargo on board, was lying at the Port of Altona in the north of Europe, the said cargo (or goods) was burned,' and wholly destroyed by fire; of which the said C. D. on had notice, and became bound to pay the same in sixty days; yet he has not paid the sum of dollars, nor any part thereof. To the damage, &c."

4. Count for a TOTAL LOSS OF freight, by rESTRAINT, DETAINMENT, &c.: ". for that on the plaintiff was interested in the freight of a vessel called the George, then bound on a voyage hereinafter described; and the said Insurance Company, in consideration of a premium therefor, paid to them by the plaintiff, made a policy of insurance upon the said freight for the voyage from to one or more ports beyond the Cape of Good Hope, one or more times, for the purpose of disposing of her outward, and procuring a return cargo, and at and from thence to and thereby promised to insure for the plaintiff three thousand dollars upon the said freight for the voyage aforesaid, against the perils of enemies, pirates, assailing thieves, restraints,

ance of any precedent Condition, or Warranty, contained in the policy; and (5.) the Loss, within the terms and meaning of the policy.

§ 377. And FIRST, as to MARINE INSURANCE. In an action by the assured, the first step in the trial is the proof of the policy. The instrument itself being the best evidence, must be produced and proved; or its loss must be accounted for, and its contents proved by secondary evidence.1 If it was signed by another person, as the agent of the defendant, his agency must be proved.2 And proof of the signature by an agent will satisfy an allegation of signature by the defendant himself.3 Parol evidence of what passed at the time of making the policy is, as we have heretofore shown, inadmissible to affect the written agreement. But the general usage of merchants may be shown to explain ambiguities or define the terms of the policy, though not to contradict its plain language.5 The general usage of trade, in the city where the insurance is effected, may also be proved for this purpose; but not the usage or practice in a particular office, or among a particular class of underwriters, where or to whom the party was not in the habit of resorting to effect insur

and detainments of all kings, princes, or people, of what nation or quality soever, and against other perils in the said policy mentioned; and the plaintiff avers, that the said vessel did on sail from said on the voyage

aforesaid, and afterwards, during said voyage, was forcibly taken on the high seas, (or, at the Island of Sumatra, in the Indian Ocean,) by certain persons to the plaintiff unknown, and detained and prevented from performing the said voyage, and thereby the said freight was wholly lost to the plaintiff;-of all which the said Insurance Company, &c."

1 See ante, Vol. 1, § 557, 558.

2 For the proof of agency, see supra, tit. AGENCY, § 59-67. See also ante, Vol. 1, § 416, 417; Brockelbank v. Sugrue, 5 C. & P. 21. Proof of a general agency is sufficient proof of authority to effect insurance on behalf of the assured. Barlow v. Leckie, 4 J. B. Moore, 8.

3 See supra, tit. BILLS OF EXCHANGE, § 158; Nicholson v. Croft, 2 Burr.

1188.

4 See ante, Vol. 1, § 275-305.

5 See ante, Vol. 1, § 292-294; Robertson v. Money, Ry. & M. 75; Uhde v. Walters, 3 Campb. 16.

ance,1 and which, therefore cannot be presumed to have been known and referred to by both parties, as the basis of the contract; for it is on this ground only that evidence of usage is admitted.2

§ 378. Secondly, as to the proof of Interest. The plaintiff's interest in a ship may be shown, primâ facie, by proof of possession, and acts of ownership; which may be made by the captain or other officer, or by any person having competent knowledge of the facts, without the production of any documentary evidence. But whenever the title to a ship comes strictly in question, no claim can be received in opposition to the modes of conveyance required by the statutes. Thus where the plaintiff claimed for a total loss as sole owner of a ship, whose register stood in the names of himself and another, parol evidence, offered to show that she was in fact purchased by himself, as sole owner, was held inadmissible.5 Where the interest is derived from a bill of sale, this document must be produced ånd proved as in other cases; accompanied by evidence of the registry, where this is required by statute, in order to render the other evidence admissible." But the certificate of registry is not alone sufficient to prove the plaintiff's interest in the ship, without proof of some correspondent act of ownership.8 Whether it is conclusive against the legal ownership of persons claiming title, but whose names are not found therein, seems to depend on the registry acts. In England it has been held conclusive; but

1 Gabay v. Lloyd, 3 B. & C. 793; Astor v. Union Ins. Co. 7 Cowen, 202; Coit v. Commercial Ins. Co. 7 Johns, 385.

2 Eager v. Atlas Ins. Co. 14 Pick. 141.

3 Robertson v. French, 4 East, 130; Sutton v. Buck, 2 Taunt. 302; Wendover v. Hogeboom, 7 Johns. 308; Amery v. Rogers, 1 Esp. 207; Thomas v. Foyle, 5 Esp. 88.

4 Abbott on Shipping, p. 78, by Shee.

5 Ohl v. The Eagle Ins. Co. 4 Mason, 172.

6 Woodward v. Larkin, 3 Esp. 287.

7 4 Taunt. 657, per Gibbs, J.

8 Pirie v. Anderson, 4 Taunt. 652; 2 Phillips on Ins. p. 487; Flower v.

Young, 3 Campb. 240.