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![handle is hein.slavery/ssactsengr1033 and id is 1 raw text is: GOODRIGHT V. HERRING
Erskine, contra.-A policy of insurance is a contract of indemnity as far as it
extends, but the question is, whether the underwriter has undertaken to indemnify
the plaintiff as [297] far as the value of the fish extends. The memorandum is
inserted because no one would underwrite perishable goods without it. The under-
writer is only liable in one of two cases, neither of which has happened. Here is
a general average, and the underwriter has paid his contribution. A total loss there
is not, nor would there have been even if instead of 40 quintals all but 40 quintals
had been thrown overboard. Total loss must mean of the whole cargo, and not of
a part of it. [Buller, J.-In Mason v. Skurry the Court thought at first it was a total
loss, and it went down to a new trial on that idea; but on the second trial it appeared
clear that there never was an instance of a payment for a total loss in these cases,
where the thing existed though of no value.] Lord Mansfield then stopped Mr.
Erskine, adopting this idea of the meaning of loss.
Baldwin, in reply.-The remainder was as much a total loss as that which was
thrown overboard. The jury have actually found that the remainder was of no value.
In Mason v. Skurry it was found that the remainder was of some value.
Lord Mansfield.-In general litigation arises from the parties mistaking the
question, and not understanding the terms of it. The memorandum is a very old
clause in policies on perishable goods. The underwriter only undertakes to indemnify
against particular losses where the ship is stranded. Total loss means a loss of the
goods, and not of the value and condition of the goods. Here the fish comes to
port-it is stinking; that is damage to the value, against which the insurer does
not insure.
Nonsuit to be entered (c).
[298] GOODRIGHT, Lessee of Parson v. HERRING AND OTHERS. Tuesday, 26th
April, 1785. Devise to R. P. and his assigns for and during the term of his
natural life, and from and after his decease, to the use and behoof of the heirs
male of the body of the said R. P. lawfully to be begotten, and of the heirs of
the body of such heir male lawfully issuing; and for want of such issue male of
the said R. P., or in case such issue male should not live to attain his age of 21
years, then, &c. held that R. P. took an estate tail.
Ejectment tried at the last assizes for the county of Devon, when the following
case was reserved.
George Edgecombe being seized in fee of the premises in question, by his will
bearing date the 19th of January, 1769, and duly attested for passing lands, devised
them in the following words:-
I give and devise unto John Herring, of, &c. and Charles Hawke, of, &c. their
heirs and assigns (all the premises) in trust, and to and for the several uses, behoofs,
intents, and purposes hereinafter limited, expressed, and declared of the same, that is
to say, to the use and behoof of my nephew Richard Parsons, of, &c., and his assigns,
for and during the term of his natural life, and from and after his decease, to the
use and behoof of the heirs male of the body of the said Richard Parson, lawfully to
be begotten, and of the heirs of the body of such beir male lawfully issuing; and
for want of such issue male of the said Richard Parson, or in case such issue male
shall not live to attain his age of 21 years, then to the use and behoof of my nephew
Thomas Parson, of, &c., his heirs and assigns for ever.
The devisor afterwards died without altering or revoking his said will; and upon
his death, Richard Parson, the first devisee, entered upon the premises, and afterwards
duly suffered a recovery thereof, and by will, duly executed, devised the same to the
defendants as trustees for the benefit of his wife and daughter, and died without
issue male in January, 1783. Previous to the said recovery, the said Richard Parson,
by indenture dated 16th of January, 1771, demised the premises to George Parson
(c) The authority of this case has been frequently questioned by Lord Kenyon,
in Burnett v. Kensington, B. R., E. 37 Geo. 3, 7 T. R. 222; by Lord Alvanley, in
Dyson v. Roweroft, C. B., T. 43 Geo. 3, 3 B. & P. 476; and by Lord Ellenborough, in
Cologan v. London Assurance company, M. 57 Geo. 3, 5 M. & S. 455. But see the
language of Lord Kenyon in iMcAndrews v. Vaughan, sitt. at G. H. after H. t., 1793,
Park, Ins. 155, 6th edition.
890
4 DOUGL. 297.](ViewImageLocal?handle=hein.slavery/ssactsengr1033&div=1&collection=&method=preview&ext=.png&size=3)