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![handle is hein.slavery/ssactsengr0190 and id is 1 raw text is: executed to themselves. French and Co. sell to Caldas. Caldas goes to the Defen-
dant, and obtains the bill of lading of [436] these goods, but the Defendant signs that
bill of lading to Caldas in his own wrong, for he ought not to have given the bill of
lading but in exchange for the lighterman's note. In this state of things French and
Co. became insolvent, and we do not think the, right of stoppage in transitu is gone.
Nor do we mainly rely on the form of the receipt, though it is a circumstance to be
considered, but if the receipt had been in the old form, the principle is the same,
namely, that the vendors had never yet parted with the control over the goods in
that event.
DALLAS J. The jury were clear that the vendors had never parted with the
possession of the goods, and I see no reason to disturb the verdict.
PARK J. concurred.
Rule refused.
AUSTIN AND ANOTHER v. DREWE. Jan. 24, 1816.
[S. C. 2 Marsh. 130. At Nisi Prius, 4 Camp. 360; Holt N. P. 126.]
An insurance against all damage which the assured shall suffer by fire on stock and
utensils in their regular built sugar-house, does not extend to damage done to the
sugar by the heat of the usual fires employed for refining, being accumulated by the
mismanagement of the assured, who inadvertently kept the top of their chimney
closed.
This was an action of covenant on a policy of insurance effected with the Defen-
dant against all the damage which the Plaintiffs should suffer by fire, on their
stock and utensils in their regular built sugar-house, and the Plaintiffs averred that
their stock and utensils were very much damaged by fire in the sugar-house. The
Defendant pleaded that the stock and utensils were by and through the carelessness,
negligence, and improper conduct of the Plaintiffs and their servants, in regulating
and managing the fires usually employed in and about the sugar-house, damaged by
the smoke arising from such fires, and not from any other cause, without this, that
the stock and utensils were damaged by fire in the sugar-house within [437] the
meaning of the policy. The Plaintiffs replied, that the stock and utensils were
damaged by fire in the sugar-house, within the meaning of the policy, and the Defen-
dant joined issue on this traverse. Upon the trial of this cause at Guildhall, at the
sittings after Michaelmas term 1815, before Gibbs C. J., the evidence was, that the
building insured contained eight stories, and in each story, sugar, in a certain state of
preparation, was deposited for the purpose of being refined; in order for refining,
a certain degree of heat was necessary, and a chimney running up through the whole
building formed almost one side of each of the stories, and by means of this chimney
heat was communicated to each of the stories. At'the top of the chimney, above the
8 stories, was a register, which the Plaintiffs used to shut at night, in order to retain
in the chimney and building all the heat they could. They shut it one night, and
lighted the fires next day, and they soon afterwards found the building full of smoke
and sparks ; and on examination they found, that the register, which always ought to
be open whensoever the fire was burning, was continued shut down : sparks and smoke
had got out into the rooms ; the heat had slightly blistered the walls, and considerably
discoloured and damaged the sugars. There was much smoke, but the only injury
done to the sugars proceeded from heat; the smoke would not have hurt them. There
was no fire in the building that ought not to be there, nothing was on fire, that ought
not to be on fire, the damage was occasioned by the sparks, heat, and smoke taking
a wrong direction. Gibbs C. J. directed the jury, that inasmuch as the damage was
occasioned entirely by the increased heat, which was produced by keeping the register
closed, it was not a loss by fire within the meaning of the policy, but was occasioned
by the impro-[438]-per management of the register. The jury found a verdict for the
Defendant.
Shepherd, Solicitor-General, now moved for a new trial. The words of the policy
are not excess of fire, or improper fire, but damage by fire. The actual flame
which proceeded from the grates below, and would, if the register had not been closed,
have issued out of that chimney, being confined therein by the register, occasioned the
mischief. If actual flame was the causq of the damage, it matters not whether the fire
1104
AUSTIN V. DREWE
6 TAUN'T. 436.](ViewImageLocal?handle=hein.slavery/ssactsengr0190&div=1&collection=&method=preview&ext=.png&size=3)