amount thereof, or as to the mode in which the tender was made, it can not thereafter object to the sufficiency of the offer of the insured to pay. Carter v. Brooklyn Life Ins. Co. (N. Y. C. A.), 12 Central Reporter (July 19, 1888), p. 756; 17 Northeastern Reporter (July 20, 1888), p. 396; 17 Insurance Law Journal (August, 1888), p. 606.

Tontine Policy-Relation of Insured to Company-Accounting. -The relation of a life insurance company to a policy-holder under the tontine plan is not that of trustee and cestui que trust, but is simply one of contract; and a court of equity can not, therefore, direct an account between said parties concerning the funds arising from said plan, by reason of its jurisdiction over trusts; nor has a court of equity jurisdiction to order such account simply because the transactions of the company, from which the fund to be apportioned under said plan arises, are complicated and intricate.

Uhlman v. New York Life Ins. Co. (N. Y. C. A.), 17 Northeastern Reporter (July 13, 1888), p. 363; 12 Central Reporter (July 12, 1888), p. 639; 17 Insurance Law Journal (August, 1888), p. 561.

LIVE-STOCK INSURANCE.

Action on Policy-Pleading. In an action on a policy of insurance on a span of mules, where it is alleged in the petition that the death of the insured mules did not result from any act, design, procurement or fault on the part of the plaintiff, and there is a distinct allegation in the answer that the plaintiff "suffered and permitted said mules to be overworked in plowing, and by such overwork caused their death," and there was no reply or denial of such allegation, and the cause was submitted to the trial court on the pleadings, without other evidence, a judgment for the plaintiff will be reversed and the cause remanded to the district court, with leave to the plaintiff to reply, and for further proceedings.

Western Horse & Cattle Ins. Co. v. Timm (Neb. S. C.), 37 Northwestern Reporter (May 5, 1888), p. 308.

Practice-Reserving Exceptions-Supreme Court.-Where an assignment of error specified the refusal of the court to enter judgment in favor of the defendant on a point reserved, and it appeared that no exception was taken to the judgment on the point reserved, the assignment of error will not be sustained.

Lower Providence Lire Stock Ins. Association v. Weikel (Pa. S. C.), 11 Central Reporter (May 10, 1888), p. 709.

MARINE INSURANCE.

Liens-Maritime and Statutory--Preference.--In the distribution of the proceeds of a sale of a vessel, maritime liens are to be preferred over liens created by state statute for premiums of insurance.

Casey et al. v. Steamer D. W. Woodward (U. S. D. C.), 18 Pittsburgh Legal Journal (Nov. 23, 1887), p. 153.

Abandonment-Notice-Carrying Cargo to Destination.-In getting out of the Bay of Fundy the vessel stranded. The vessel was sold where she lay. Her cargo, with the exception of a small portion, which could not be profitably carried by the owner, was reshipped to the port of destination at a cost exceeding the amount of the chartered freight. Held, the insurers were the proper parties to decide whether to carry the cargo forward or not, so as to earn any difference that could be made between the charter value of the freight and what it could have been carried for, and that the plaintiff, having been in possession of the cargo at the time of the loss, and in a position to carry it forward, was bound to give notice of abandonment in order to recover against the underwriters.

Patch v. Pitman (Nova Scotia S. C.), 7 Canadian Law Times (Oct 1887), p. 374.

Loss-Proximate and Remote Causes-Negligence. Where a loss happens from the perils of the river, it is not a defense that the remote cause of the loss was the negligence or misconduct of the assured or his agents, unless effected with fraud or design.

Same-Same-Breakage of Machinery. The derangement or breaking of the machinery of the vessel, or any consequences resulting therefrom, mentioned in the policy as relieving the insurer, must be such as is the immediate or proximate cause of the loss.

Right of Abandonment as for a Total Loss.-The right to abandon as for a total loss depends upon the high probability of a total loss, and it is to be determined from the facts as they exist on the day it is exercised; if good when made, the rights of the parties are thereby fixed, and do not become changed by subsequent events, even if the vessel is afterward recovered and repaired for half its value. The latter is not the "best evidence" that it was practicable to recover and repair it on the day the right to abandon was exercised.

Orient Mutual Ins. Co. v. Adams (U. S. S. C.), 18 Pitttsburgh Legal Journal (Dec. 7, 1887), p. 163; 24 The Reporter (Nov. 23, 1887), p. 641; 8 Supreme Court Reporter (Dec. 5, 1887), p. 68; 15 Washington Law Reporter (Nov. 30, 1887), p. 829; 36 Albany Law Journal (Dec. 24, 1887), p. 514.

Policy Construction-Injury to Pumping Engine.-A steamer was insured by a time policy in the ordinary form, on the ship and her machinery, including the donkey-engine. For the purposes of naviga

tion, the donkey-engine was being used in pumping water into the main boilers, when, owing to a valve being closed which ought to have been left open, water was forced into and split open the air-chamber of the pump. The closing of the valve was either accidental, or due to the negligence of an engineer, and was not owing to ordinary wear and tear. Held, reversing the decision of the court of appeals (17 Q. B. D. 195), the injury was not covered by the policy.

Thames and Mersey Marine Ins. Co. v. Hamilton et al. (Eng. H. of L.', 12 Law Reports (Pt. 4, Dec. 1, 1887), p. 484.

Concealment of Loss by Agent Through Whom Policy Not Effected-Lost or Not Lost.-The plaintiffs instructed a broker to reinsure an overdue ship. While acting for the plaintiffs the broker received information material to the risk, but did not communicate it to them, and the plaintiffs effected a reinsurance for £800 through the broker's London agents. Afterward the plaintiffs effected a reinsurance for £700, lost or no lost, through another broker. The ship had, in fact, been lost several days before plaintiffs tried to reinsure, but neither the plaintiffs nor the last named broker knew it, and both he and the plaintiffs acted in good faith. Held, reversing judgment of court of appeals, that the knowledge of the first broker was not the knowledge of the plaintiffs, and the plaintiffs were entitled to recover upon the policy for £700.

Blackburn et al. v. Vigors (En. H. of L.), 12 Law Reports (Pt. 4, Dec. 1, 1887), p. 531.

Expert-Foundation for Testimony - Competent Witness.-A witness was called as an expert to testify as to the value of ship at the time of her loss. He testified that he had been a ship broker and owner for fifteen years, in which time he had bought and sold over two hundred ships and steamers; that he had seen the ship in question once, and knew her from the published reports in the American Lloyds, the Green Book, and the Record Book, which were used by underwriters and merchants to guide them in the valuation of vessels; that he had never made a personal examination of her. Held, to be a competent witness. Exclusion of Evidence. The exclusion of the testimony of a witness, called as an expert to testify as to the value of a ship at the time of her loss, and who had not been on board of her for more than five years the testimony showing that within that time a large amount of repairs had been made upon her-is not reversible error.

Negligence-Burden of Proof-Instruction.-Held, the court properly refused to instruct the jury that the plaintiff should establish by a clear preponderance of testimony that the loss occurred without any agency or instrumentality of theirs.

Same Same.-Held, where there is an insurance against loss by fire, nag it is proved or admitted that the property insured has been destroyed are. the loss is brought literally and exactly within the terms of the

policy, and the burden of proving the violation of any of the obligations of the policy is on the company.

Policy--"Port Risk.”—In an action on a policy of marine insurance of a "port risk in the port of New York," the exclusion of evidence defining "port risk," in the absence of any explanation of the purpose of the question, is not error.

Slocovich v. Orient Mut. Ins. Co. (N. Y. C. A.), 14 Northeastern Reporter (Feb. 17, 1888), p. 802; 10 Central Reporter (Feb. 23, 1888), p. 456.

"Improper Navigation "-Loading-Port Insufficiently Closed.The members of the defendant association agreed to indemnify one another against "loss or damage of, or to, any goods or merchandise caused by improper navigation of the ship." The plaintiffs neglected to efficiently close a loading-port in the side of their vessel, so that the cargo was damaged by sea-water which leaked in during the voyage, but the leak did not endanger or impede the navigation of the ship. The act of negligence occurred before the completion of the loading. Held, that the damage was caused by improper navigation of the ship" within the meaning of the articles of association of the defendant.

Carmichael v. Liverpool, etc., Assoc'n (Eng. C. A.), 37 Albany Law Journal (Feb. 18, 1888), p. 136.

Seaworthiness-Subsequent Damage. In the insurance of a vessel upon a time policy, the warranty of seaworthiness is complied with if the vessel is seaworthy at the commencement of the risk, and the fact that she subsequently sustains damage, and is not properly refitted at an intermediate port, does not discharge the insurer from subsequent risk or loss, provided such loss is not the consequence of such omission.

Policy-Limitation of Liability-Broken Machinery-Proximate Cause of Loss. -The policy provided that the company should not be liable for loss occasioned by the breaking of any part of the machinery. It appeared that the tug broke her shaft and was taken in tow by another tug, and, while being towed, sprung a leak and sunk. Held, that the insurer would not be released from liability because of the existence of one of the excluded causes, unless the loss was shown to be due to that

cause.

Towing Disabled Tug Past Port-Negligence-Question for Jury.—It appeared that the shaft of the tug broke, and, being taken in tow by another tug, she was towed past two ports of repair on her way home, and then sprung a leak and sunk. Held, that it was proper to instruct that permitting the tug to be towed in that condition past two ports of repair would not, of itself, constitute a breach of the policy, but it was for the jury to consider whether the master of the vessel was guilty of a lack of ordinary care, and also whether the condition of the vessel was the cause of the ultimate loss. And in such case it was proper to charge that, while the breaking of the shaft rendered the tug unseaworthy