The Express.
London, England, 1848-09-02 00:00:00

BOMB OF LORDS.

The lord Chaneeliw, coracamiii;ll, and other peers,
met at 4 o'clock, to give judgments in the following curs:
Lana AND Osage V. Toon° AND OTNIIUI.-BT/1.-
ToTa.—CoNsTircrioN—Tirug so PROPIIITY-CONTIY-

iinme.—This was en appeal from the Court of Session in
Seadered, sod was first argued here in May, 1848, when
Lewd Cleasalems, Lord Broughton, and Lord Campbell,
Wag el gledea_that the cioustits was of to mush immt-
Mom la Neellsad that the home aught to have the opinions
of all **Mpg there on it, the ease for that pur-
pose. Thges eta kasha beat likes the ease was again
es the 1 argosi9de, sled !!ad divas last,ead Rowed
In thhisomal. garden, as may be remembered. arose
out el as asides brought by the respondents against the
cep he the purpose ef setting aside titles to certain
castle la A iidsatahtse, esataieed be a trust settlement OD-
:IA . 00141118. lathlaw, in favour of the appellants.
The tin the marl wag in hem of the respondents.
deshien was adhered is the remit, by ten of the
desist Judges, while Leeds frog, and Cunning-
bon gage et splakm MN It was wesog.—The Lord Chan-
ease we MOM the yostisa, 'Ma was a technical point
la ash* Wise Weems in lissehre4 depending on Scotch
sootier sad the pasties Or esamyeions ; and his lordship,
after zdaditi to the egadllesiegfigglaleas of the judges, cited
several sires, 'assist a doilies la Ais house in 1831,
which, is his eylMen sealed the pumice, moved that the
iaterleaMerms=aled hem, whisk wee In accordance with
AO sad prattles, be aimed, with mots.—
Led Osispbell add he was glad the Mose had Megted the
comes it did, h ressittieg the ewe, es, by that mans, this
case bed reedved the meet &Monte esoiderstion, and
world male tte Feeds segjesedgmehly he the future. He
also emserredia the medga-or the Lied Cloassilm, sad the
into/seater wee them @Mooed with cods.

Smwa.*T AND OMNI g. DIULIIISTOVII AID 011161 h.
—l4.auts Imauwatoa—TtrtAx. Loss—Yasiore ; wra•
Tact IM• OWs.llll/1 or TIM gaup 01. UNDISIMITNIS

Lae =MIND TO n.—This was an a 1 frees the Court
el Session in Beetlend, end less argaid Isere a the 14th,
155th, aad 17th of June, 1847, and a report edit wee then
given I. the Rayner.—The appellants were merchants
Ia Greenock, and semen of the ship Laurel. The rupee-
dents are the manger, directors, sad partnere in the
GONNIOIit Maria* brumes Company. They entered into
two poiithe of higanothe en *shell and materials of the said
ship; emisia tea Mardi, 1842, for 1,5001. ; the itecead,
dated bed April, 1842, far 6001. The ship was valued in
oath policy at 7,6001. Inenneseate were effected on her with
other anthrwriten to the amain of 4,6001., nuking 6,6001.
is all. The vowel was inured at and from Liverpool to
New York, and thence to any other port io the United
I Steer or is Quebee, thence to a port of discharge la the
United Kingdom, and for 10 days afterwards for discharge of
the cargo. The 'nursed voyage was performed in safety. At
Quebec the vessel took in a cargo of umber, sad sailed
tames on the 14th July, 1842, for Liverpool; and on the
27th, in about the middle of the voyage, she came in contact
with an iceberg, which carried away her bowsprit, stove in
her bow, and otherwise damaged her. She fitted i sae-
diately with water, but the cargo keeping her afloat, she
proceeded on the voyage, and arrived off the Brunswick
pier head, Liverpool, on the 11th of Asguat. The harbour-
master refusing to allow her, in her then condition, to he
brought into the deck, she was moored outside. The these-
queues was that, as the water ebbed and left her, she
grounded and fell on her aide and sustained much additional
damage, She was, after a day or two, floated and brought
into the dock, and then, and not before, her cargo was chs-
charged. She was then eismined by carpenter' and sur-
veyors, who reported that it would cost 3,0001. to repair all the
damage she had sustained, whereupon the owners wrote
(on the Ist of &rends. r) to the respondents, intimating ea
abandonment, which the latter refused to accept on the
ground that the ownen were not entitled to claim as for a
total loss of a vessel valued at 7,5001., for damage to the ex-
tent of only 3,0001. The ownerstheneot fun bersurveys made
of the vessel, and the damage war raised to 4,0001. In a
correspondence which followed, the respondents offered to
pay according to the proportion of the sum insured by them,
the difference between the value of the ship in her then
stele and her value if she had arrived uninjured, both
values to be ascertained by competent p none; or to pay
their prop,rtion of the cost of repairing and refitting the
nee 1. Ihe owners refused Loth offers, and brought their
action against the respondents for the full amount ot the two
sums insured by them, claiming as for a total Ices. The
respondents pleaded, in defence, that as the vessel sustained
only n partial loss by an iceberg, and afterwards brought her
cargo into port and earned her freight, the owners were not
entitled to claim for a total lens; but if they were entitled to
abandon the ship, and to claim a constructive total 1 ss, they
should first account to the respondents, as abandonnees
of the ship, for their proportion of the freight earned after
the accident which caused sued loss. The freight adult'y
earned and paid to the owners was stated to be 1,4021. The
court directed an issue, to try whether the ship, through the
injuries received on the 27th July and 11th August, and
during the currency of the po,icies, became a wreck and a as
',tally lose, and whether the respondents (defenders in the
action) wale indebted order the politics to the appellants
(pursuers in the action), in the sums of 1,5001. and 5001., or
any part the re of ? Tue jury on the trial of that issue (which
was in 1844) found tor the appellants, that the ship
war properly abandoned as not worth repairing ; that her
damage arose from the collision with the iceberg and her
grounding in Liverpool ; also that the ship was perfectly
at ae °edgy at the beginning of her voyage, and was a total
loss at the end of it. They gave no opinion uto the re-
spondents' title to a proportion ef the freight. That ques-
tion was afterwards argued befare the judges of the first
division of the Court of Session, who, be ing divided In their
opinions upon it, directel cases to be laid before the other
judge. (or their opinion,. Those opinions having been
afterwards given the judge of the first division pronaunud
an interlocutor (a juoginiut) to the effect that the insurance
company, the respondents, were entitled to these proportion
of the freight of 1,4021. That was the interlocutor appealed
from ; and the question argued was whether, when a ship
has been damaged by perils of the sea, so as to amount
to a constructive total 2oss, entitling the owners to aban-
don, the abandonnees (the uederwritere) are entitled to
the freight as from the date when the ship became, in law a
total loss, or only from the date at which the formal notice
of abandonment was given by them. In the argument on
the case (by Sir F. Thesiger, Mr. Watson, sad Mr. Ander-
son, for the appellants, and by Sir F. Kelly and Mr. Wilkins,
for the respondents) the question was put by them as ens of
Grit impression, never dec:ded even in England ; and a vast
number of cases in the reports of both countries were cited
on each side.
The Lord Chancellor. now giving judgment, after
stating the facts, and the finding of the jury, said
that in his view of the case it was not material
whether the damage, which was treated as occasioning
a total lees, occurred from the icebergs on the 27th of July,
or from striking the ground at the outside of the docks at
Liverpool on the 11th of August. Such cause of lass occurred
before the freight was fully earned, and the greater or lea
difference of time between the period of the cause of loss and
that of the earning of the freight could make no difference's
to the application of the principle of law. The facts of this
case were, so far as the right was concerned to recover as for
a total loss, identical with those in the caw of " Samuel v.
the Royal Etchings Insurance Company," where the imme-
diate reuse of the loss was the being kept out in the river,•
instead of coming at once into dock ; and where the river was
held not to be the port of discharge, and therefore the policy
on ctinued till the vessel should be moored into the doeks.
Several cases had decided that where the expense of repairs
exceeded the value of the ship, the owners, though the ship
still existed in specie, were not bound to make those
repair', but might abandon the emit, and claim as
for a total toes ; but was that what had been done in the
present instance ? Then came the question what was the
ormseeps nee of such an abandonment, so far sa the freight
was concerned ? In " Benson a. Chapman" (a este now
under appeal), the Court of Common Pleas held that where
the re was an abandonment of the 'hip in respect of damage
which had occutred to her abroad, but which bad been in
' fact repaired, though Ran ext.ense greater than the value
of the vessel, and the vessel itself reached this country, the
effect of the abandonment was :co vest in the underwriters
the right to the freight, for that by the abandonment of the
ship the assured lost the capacity to earn the freight. That
doctrine was to be found in a much earlier case, namely,
" Case v. Davidson," where it was held that an abandon-
ment to the underwriters on ship transfers the freight sub-
sequently earned as incident to the ship. Inasmuch
as the ship was the means of earning freight, it war clear
that, unless after abandonment the title of the assured to the
ship was better than the title of the abandouee, the actual
owner was entitled to receive the freight, because by the act
of abandonment the then owner of the ship was, as such,
entitled to the frei..ht which it earned. His lordship s iid
that, under all the circumstances, he war clearly at opinion
that the judgment of the court below ought to be affirmed,
and with costs. His lordship added that his noble and
learned friend, Lord Brougham, who bad likewise heard this
case argued, had seat him a written communication declar-
ing the same opinion : and he therefore moved that the
judgment of the court below be affirmed with costs; which
was agreed to.
BOWEN e. Evans AND 01111811.—This appeal from a
decision of Sir Edward Su sr' when Lord Chancellor of
Ireland, was argued In 1846, and the facts were then stated
in the report in this journal. The case is fully reported in
Vol. 1, " Jones and Latouche ;" and being of no inter, at to
genteel feeders it is not necessary here to restate it —The
Lord Chancellor moved that the judgment of the court below
be affirmed, with oats.—Agreed to.