the case as one of a total loss, and demand the full sum insured.
But if he elects to do this, as the thing insured, or a portion of
it still exists, and is vested in him, the very principle of the
indemnity requires that he should make a cession of all his
right to the recovery of it, and that too, within a reasonable time
after he receives the intelligence of the accident, that the under-
writer may be entitled to all the benefit of what may still be of
any value; and that he may, if he pleases, take measures, at his
own cost, for realising or increasing that value. In all these
cases, not only the thing assured or part of it is supposed to
exist in specie, but there is a possibility, however remote, of its
arriving at its destination, or at least of its value being in some
way affected by the measures that may be adopted for the
recovery or preservation of it. If the assured prefers the chance
of any advantage that may result to him beyond the value
insured, he is at liberty to do so; but then he must also abide
the risk of the arrival of the thing insured in such a state as to
entitle him to no more than a partial loss. If, in the event, the
loss should become absolute, the underwriter is not the less liable
upon his contract, because the insured has used his own exertions
to preserve the thing assured, or has postponed his claim till that
event of a total loss has become certain which was uncertain
before. In the language of Lord ELLENBOROUGH, in the case of
Mellish v. Andrews (1), "it is an established and familiar rule of
insurance, that when the thing insured subsists in specie, and
there is a chance of its recovery, there must be an abandonment.
A party is not in any case obliged to abandon, neither will the
want of an abandonment oust him of his claim for that which is
in fact an average or total loss, as the case may be." Again, in
Mullett v. Shedden (2), the same learned Judge says, "If, instead
of the saltpetre having been taken out of the ship and sold, and
the property divested, and the subject-matter lost to the owner,
it had remained on board the ship, and been restored at last
to the owner, I should have thought there was much in the
argument, that, in order to make it a total loss, there should
have been notice of abandonment, and that such notice should
have been given sooner: but here the property itself was totally
(1) 13 R. R. 351 (15 East, 13).
(2) 12 R. R. 347 (13 East, 304).

lost to the owner, and the necessity of any abandonment was altogether done away." In that case, the sentence *under which the sale was made had been reversed, and the proceeds directed to be paid to the owner. So that there was a substitution of money for a portion at least of the matter insured. Both these cases are direct authorities that no abandonment is necessary where there is a total loss of the subject-matter insured. To which may be added the cases of Green v. The Royal Exchange Assurance Company (1), Idle v. The Royal Exchange Assurance Company (2), Robertson v. Clarke (3), Cambridge v. Anderton (4): this last is in all points similar to the present, and is an express decision that, when the subject-matter insured has, by a peril of the sea, lost its form and species, where a ship, for example, has become a wreck or a mere congeries of planks, and has been bonâ fide sold in that state for a sum of money, the assured may recover a total loss without any abandonment. In fact, when such a sale takes place, and in the opinion of the jury is justified by necessity and a due regard to the interests of all parties, it is made for the benefit of the party who is to sustain the loss; and if there be an insurance, the net amount of the sale, after deducting the charges, becomes money had and received to the use of the underwriter, upon the payment by him of the total loss. It may be proper to mention, however, that the assured may preclude himself from recovering a total loss, if, by any view to his own interest, he voluntarily does, or permits to be done, any act whereby the interests of the underwriter may be prejudiced in the recovery of that money. Suppose, for example, that the money received upon the sale should be greater than or equal to the sum insured, if the assured allows it to remain in the hands of his agent, or of the party making the sale, and treats it as his own, he must take upon himself the consequence of any subsequent *loss that may arise of that money, and cannot throw upon the underwriter a peril of that nature. This is the true principle of the case of Mitchell v. Edie (5), which was cited as an authority for the decision of the Court of Common Pleas.

(1) 16 R. R. 571 (6 Taunt. 68).
(2) 21 R. R. 538 (8 Taunt. 755).
(3) 25 R. R. 676 (1 Bing. 445).

(4) 26 R. R. 517 (2 B. & C. 691).
(5) 1 R. R. 318 (1 T. R. 608).

ROUX

v.

SALVADOR. [ *288 ]

[ *289 ]

Roux v.

SALVADOR.

[ *290 ]

There the insurance was upon sugar from Jamaica to London. The ship had been captured by a privateer, deprived of some of her crew and a portion of her stores, then released, and carried by the remainder of the crew into Charleston, where she arrived on the 18th of February, 1782. The report does not state when the intelligence of this event arrived in London, but it is probable that it must have reached the assured before the month of June following. One of the owners of the ship was resident at Charleston; he took possession of her, and, instead of dispatching her on the original voyage, he sold the cargo of sugar in the month of June, and sent the ship on another voyage. He had been connected with the assured in former adventures. He retained the money in his hands, and came to England in June. 1783. The assured pressed him for payment of the money, but took no step to recover it; he became insolvent the following year: no claim was made upon the underwriters till after this event; and then, after the expiration of three years from the alleged loss of the goods, notice of abandonment was given, and the action brought; upon which the defendant paid into Court a sum sufficient to cover a general average, and pleaded the general issue. The Court gave judgment against the plaintiff; stating that he had abandoned too late. And it cannot be disputed, that if he ever had any colour for claiming a total loss, it must have been upon an abandonment before he heard of the sale, as he afterwards gave credit to his agent for the money, and elected to treat it as his own, till the event of an insolvency, which prevented the underwriter from recovering it. But in fact there never was a total loss by a peril of the sea. The sugars were safe at Charleston, and the sale by the owner of the ship, was not a loss by a peril ensured against. The secret of the conduct of the assured may be discovered by a reference to the dates and the circumstances of the time. During the war with America, and especially towards the close of it, the intercourse between that country and the West India Islands was much interrupted, and the price of colonial produce was higher in Charleston than in London. It was therefore probably his interest to give up his claim upon the underwriters, and adopt the sale. If therefore the sale of the goods could have

been treated as a loss, the conduct of the assured had either deprived him of the right to claim it, or made him liable, if he had the right, to account to the underwriters for the amount of the sale. If indeed the Court must be supposed to have treated the sale at Charleston as a loss, for which the underwriter was at any time responsible, the case may be an authority for establishing the principle, that even when a total loss has occurred, by a sale of the goods, the assured may, by his own conduct in electing to take the proceeds instead of making his claim upon the underwriter, if he thereby alters the position of the facts so as to affect the interest of the underwriter, forfeit his claim to recover a total loss. But the case is in no view an authority for the judgment of the Court of Common Pleas, which for these reasons we think ought to be reversed; and a verdict entered for the plaintiff for 277. 15s. 6d. and 40s. costs.

Judgment for plaintiff.

ROUX

v. SALVADOR.

VIVIAN v. BLOMBERG.

Bing. N. C. 311-326; S. C. 3 Scott, 681; 2 Hodges, 255; 6 L. J. (N. S.)

C. P. 55.)

A lease, by a vicar, of messuages in the city of London, of which the dwelling-house used for the habitation of the vicar, formed no part, and the ground demised was less than ten acres, for twenty-one years from the date of the lease, made at a time when a former lease of the same premises, for forty years, was in being, but within three years of its expiration; Held, not void under either of the restraining Acts of Elizabeth.

THE following case was submitted by the VICE-CHANCELLOR for the opinion of this Court.

The vicarage of the parish, and parish church of St. Giles Without, Cripplegate, is a benefice with cure of souls in the city of London; and the several messuages or tenements hereinafter particularly mentioned (not being the capital messuage or dwelling-house used for the habitation of the vicar, nor having ground to the same belonging above the quantity of ten acres), are parcel of the possessions of the said vicarage, and are situate and being within the said city, and have been accustomed. to be demised by the vicars of the said parish, for the time

1836. Nor. 24.

[311]

being, for the term of forty years in possession, at the yearly rent of 31.

By indenture of lease, bearing date the 30th of October, 1793, and made between the Rev. George Watson Hand, since deceased, then vicar of the parish church of St. Giles Without, Cripplegate, aforesaid, of the one part, *and Thomas Smith and others of the other part, for the consideration therein expressed, the said G. W. Hand did demise unto the said other persons, parties thereto, the messuages or tenements, and other hereditaments hereinafter particularly mentioned, parcel of or belonging to the vicarage of St. Giles Without, Cripplegate, as aforesaid, with the appurtenances; To hold the same unto the aforesaid lessees, their executors, administrators, and assigns, from the 29th of September then last past, for the term of forty years; yielding and paying, therefore, yearly during the said term unto the said G. W. Hand and his successors, vicars for the time being of the said parish church, the yearly rent of 31. payable quarterly, on the four most usual feasts; the lessees being charged with the reparations, and subject to the covenants and agreements therein expressed and contained; and which said lease was duly confirmed by the patron and ordinary.

The said G. W. Hand departed this life many years since; after his decease the Rev. William Holmes was duly presented and instituted to and inducted into the vicarage of the parish and parish church of St. Giles Without, Cripplegate, aforesaid.

In the month of October, 1830, there were less than three years unexpired of the said term of forty years so granted as aforesaid, and the said William Holmes being then such vicar as aforesaid, duly executed another indenture of lease, bearing date the 8th of October, 1830, and made or expressed to be made between him William Holmes as such vicar, of the one part, and James William Vivian and Christopher Hodgson of the other part, whereby, for the considerations therein expressed, the said William Holmes did demise unto the said J. W. Vivian and C. Hodgson, all that messuage, house, or building, situate and being in Fore Street, in the parish of St. Giles Without, Cripplegate, London, called the *Quest House, and used by the inhabitants of the said parish as a vestry house, and the rooms and other