1861. MORGAN v. RAVEY. held in 16 Eliz., Dyer, 206." [Pollock, C. B.—That is very different from the notice in this case. Probably at that time few persons could read.] If the guest is guilty of negligence, conducing to the loss, the innkeeper is not liable: Armistead v. Wilde (a), Story on Bailments, sect. 472, p. 439, 6th ed. Cur, adv. vult. The judgment of the Court was now delivered by POLLOCK, C. B.-This was a rule to set aside the verdict for the plaintiff and enter a nonsuit, or for a new trial. The action was by a guest against the executors of an innkeeper, whose property had been stolen during the night. The jury found a verdict for the plaintiff. We are of opinion that this rule should be discharged. We think the plaintiff proved the declaration as it stands. We think the cases have established that where a relation exists between two parties, which involves the performance of certain duties by one of them and the payment of reward to him by the other, the law will imply, or the jury may infer, a promise by each party to do what is to be done by him. We cannot distinguish this case from the case of a carrier. If so, the objection that such an action would not lie against executors because it is for a tort does not arise. It is not, however, necessary to determine this if the plaintiff elects to amend, which he may do, and we think successfully; because it seems to us, notwithstanding the ingenious argument of Mr. Phinn, that if the claim against the defendants is for a tort, it is for a "wrong committed," within the meaning of the 3 & 4 Wm. 4, c. 42, sect. 2. Then, being, for these reasons, of opinion that the action (a) 17 Q. B. 261. HILARY TERM, 24 VICT. will lie against the executors if it would have done so (a) This report is evidently incorrect. The judgment, which was written, commences thus (5 Q. B. 168): "This was a motion for a new trial on the ground of misdirection, the learned Judge having told the jury that the Rule discharged. innkeeper was not answerable for 1861. MORGAN v. RAVEY. 1861. Jan. 28. underwriters are not liable, under the ordinary form of policy, for general average in respect of the jettison of goods stowed on deck, is a valid custom and does not contradict the terms of the policy. MILLER and Others v. TETHERINGTON. A custom that DECLARATION.-That the plaintiffs made their policy of insurance in the words and figures following:-"Be it known that Miller, Houghton and Co., as well in their own name as for and in the name and names of all and every other person or persons to whom the same doth, may, or shall appertain, in part or in all, doth make insurance, and cause themselves, and them and every of them, to be insured, lost or not lost, at and from Miramichi to Liverpool, upon any kind of goods and merchandises, and also upon the body, tackle, apparel, ordnance, munition, artillery, boat, and other furniture of and in the good ship or vessel called the new ship, declared 'The Chatsworth,' 9th September, whereof is master, &c., beginning the adventure upon the said goods and merchandises from the loading thereof aboard the said ship as above, upon the said ship, &c., including collision clause, and so shall continue and endure during her abode there, upon the said ship, &c.; and further, until the said ship, with all her ordnance, tackle, apparel, &c., and goods and merchandises whatsoever, shall be arrived at as above, upon the said ship, &c., until she hath moored at anchor twenty-four hours in good safety, and upon the goods and merchandises until the same be there discharged and safely landed; and it shall be lawful for the said ship, &c., in this voyage to proceed and sail to, and touch and stay at, any port or places whatsoever, without prejudice to this insurance. The said ship, &c., goods and merchandises, &c., for so much as concerns the insured, by agreement between the insured and insurers in this policy, are and shall be valued at on ship, valued at 80007., HILARY TERM, 24 VICT. warranted to sail on or before the 1st September, 1859. Touching the adventures and perils which we, the insurers, are contented to bear and do take upon us in this voyage; they are, of the seas, men of war, fire, enemies, pirates, rovers, thieves, jettisons, letters of mart and countermart, surprisals, takings at sea, arrests, restraints, and detainments of all kings, princes, and people, of what nature, condition, or quality soever, barratry of the master and mariners, and of all other perils, losses, and misfortunes that have or shall come to the hurt, detriment or damage of the said goods and merchandises, and ship, &c., or any part thereof; and in case of any loss or misfortune, it shall be lawful to the insured, their factors, servants, and assigns, to sue, labour, and travel for, in, and about the defence, safeguard and recovery of the said goods and merchandises, and ship, &c., or any part thereof, without prejudice to this insurance, to the charges whereof we, the insurers, will contribute, each one according to the rate and quantity of this sum herein insured. And it is agreed by us, the insurers, that this writing or policy of insurance, shall be of as much force and effect as the surest writing or policy of insurance heretofore made in Lombard Street, or in the Royal Exchange, or elsewhere in London; and so we, the insurers, are contented, and do hereby promise and bind ourselves, each one for his own part, our heirs, executors, and goods, to the insured, their executors, administrators and assigns, for the true performance of the premises, confessing ourselves paid the consideration due unto us for this insurance by the insured, at and after the rate of 40s. per cent. In witness whereof we, the insurers, have subscribed our names and sums insured in Liverpool. N. B. Corn, fish, salt, fruit, flour, and seed are warranted free from average, unless general, or the ship be stranded. Sugar, tobacco, hemp, flax, hides, and skins are warranted free from average under 1861. MILLER v. TETHERING TON. 1861. MILLER v. TETHERING TON. 57. per cent.; and all other goods, and also the ship and freight, are warranted free from average under 31. per cent., unless general, or the ship be stranded. And we further agree, that in case the said ship shall come into collision with any other ship or vessel, and the insured shall, in consequence thereof, become liable to pay, and shall pay (as damages to the owners or charterers of such other ship or vessel, or to the owners or consignees of the cargo thereof, or to the master and crew or passengers thereof), for the loss of or injury to their goods and effects on board such other vessel, or for costs (but not for damages for loss of life or personal injury to individuals), any sums not exceeding the value of the ship or vessel, new ship, and her freight, by or in pursuance of the judgment of any Court of law or equity, or of the Court of Admiralty, or by or in pursuance of any award made upon any reference entered into by the insured, with our previous consent in writing, we will severally bear and pay such proportion of three-fourth parts of sums so paid as aforesaid, as our respective subscriptions hereto bear to the value of the said ship or vessel hereby insured, and her freight, warranted free from capture, seizure, or detention, and all other consequences of hostilities." That thereupon, afterwards, in consideration that the plaintiffs then paid to the defendant a certain sum of money, to wit 34s., as a reward and premium for the insurance of 85%. upon the premises in the said policy mentioned, the defendant became and was an insurer on the said policy, and duly subscribed the same as such insurer of the said sum of 851. upon the said premises in the said policy mentioned; and the plaintiffs, or some or one of them, were and was interested in the said ship, the matter of the said insurance, to the whole value so insured, and the said insurance was so made for their use and benefit, and divers goods were shipped on board of the said ship for the voyage in the said |