6

Brett, Q. C. (with him were Hannen and Cohen), for the plaintiff.-I agree, that in a policy of insurance the underwriter would be liable on these words. But in a policy of insurance the subject-matter of the contract is damage; in this case it is safe carriage. In the case of policies of insurance, you look to the proxima causa; in these, to the causa causans; that is, in the present instance, the negligence of the master's servants. (See Sadler v. Dixon, 5 M. & W. 405, and Ionides v. The Universal Marine Association, 32 L. J., C. P., 170). The declaration attributes the damage to the negligence of the defendants' servants, and that is the same as if it was their own. They have not protected themselves against that. In the cases of land carriage, cited contra, the words "of what nature or kind soever" follow the limitation of responsibility. He referred to Machlachan on Merchant Shipping, 458, citing 3 Esp. 67; Story on Bailments, 512. The phrase, perils of the sea, whether understood in its most limited sense, as importing a loss by natural accidents peculiar to that element, or, in its more extended sense, as including inevitable accidents, must in either case be understood to include such losses only to the goods on board as are of an extraordinary nature, or arise from some irresistible force, or from inevitable accident, or from some overwhelming power which cannot be guarded against by the ordinary exertions of human skill and prudence. Hence it is, that if the loss occurs by a peril of the sea, which might have been avoided by the exercise of any reasonable skill or diligence at the time when it occurred, it is not deemed to be in the sense of the phrase such a loss by perils of the sea as will exempt the carrier from liability, but rather a loss by the gross negligence of the party. . . . A loss immediately and directly occasioned by the ignorance and inattention of the master and mariners, is not deemed a loss by perils of the sea." (Kent's Commentaries, 278; Parson's Maritime Law, 190; Emerigon on Insurance (Meredith). [He was then stopped.]

Honyman, in reply.-Suppose The Black Prince had been lying at anchor and The Araxes had run into her? [Pollock, C. B.-Your demurrer must be good against every state of the case supposable on the pleadings.]

POLLOCK, C. B.-I think the plaintiff is entitled to judgment. The declaration distinctly discloses a cause of action; setting out an insurance, from which certain perils are excepted. Among these is barratry of the master or mariners, and that is the only allusion to the conduct of those persons. The declaration goes on to say, that the defendants did not safely carry the goods, but navigated so carelessly, that through the carelessness of the defendants, by their mariners in that behalf, and not otherwise, the goods were lost. The plea, in so far as it is of importance, says, that the loss was caused by the excepted perils; and the replication says, that it was wholly caused by the gross careless conduct of the defendants, by their mariners, and not otherwise. The question on the demurrer is, whether, under these circumstances, the plaintiff or the defendant is entitled to judgment.

I think that, on the authorities-that is, the textwriters and the decided cases-Mr. Brett is right. In cases of this sort we look at the real, not the proximate, cause of the loss. There is a distinction between the case of sea policies and insurances against fire. If a man's house be insured against fire, and he sets fire to it accidentally, under circumstances of negligence, arising from his own fault, he is as much entitled to be indemnified as if his conduct had been entirely free from blame. But in marine insurances, if the damage

be caused by the gross negligence of the master a mariners, the gross negligence is the cause of the lo and the insured cannot recover.

I think that the arguments of Sir G. Honyman ca not prevail over the authorities and decisions in favo of the plaintiff,

MARTIN, B.-Mr. Brett takes a reasonable view the case on the replication. But this is an unsatia tory manner of raising the question.

BRAMWELL, B.-I agree that this is an inconven way of raising the question; for the pleader pub case in a superlative mode, and it may appear at that the plaintiff fails to prove some material all tion. But my view of the pleadings is this-ther dent occurred through the negligence of the crew, through nothing else; there was no contributory n gence. Do, then, the exceptions extend to the of things appearing on the record? This is not portant as a matter of principle, but only to the e of the amount at stake in this case; for if parti minded to vary the terms of their contract to e so as to be responsible for no more than the defen contends for, they can do so by adding words to effect, and I do not think it would be unreasona do so. [His Lordship here read the list of cxc perils.] An accident to machinery cannot me case of injury to machinery from a wilful act, causes explosion; as reckless racing, for instance may be said, however, that it is damage, though accident. It was not an accident, for it might been avoided. I mean, that I think it would not called an accident in the language of commer If a man chooses to ride blindfold through the stre the person against whom he rides may be said to with an accident, but he does not. I think, theng case is not within the fair meaning of the word. is it "damage of seas?" No; for that means ca done by the sea; and the same construction app damage from steam or navigation. It is to marked, that all the accidents excepted are cas unavoidable accident. It may be asked if the is not liable for the barratry of his crew, why he be liable for their negligence? To this it mas answered, first, that there may arise mischiefst wilful conduct of the crew which is not barrat and which would not be excepted; secondly, that ratry is an offence against the carrier, which he ca guard against by carefully choosing a skilful and mariners. Now, suppose a man took goods the same contract, and injured them by unsk steering with his own hands, could he protect Lim by the terms of the contract? I think it makes difference that the defendant in this case is & poration, which cannot perform this service in p However that may be, this is not damage of t and the case is within the words of the replicar cannot conclude without saying, that the au on the subject, which are all American, are ent the greatest weight.

CHANNELL, B.-I do not say what may be ther of the traverse. I agree that the replication takes t case out of the excepted perils, and I shoul!! thought so independently of authority; but I that the case is concluded by the authorities, espe the American authorities on the subject.-Judgi the plaintiff.

COURT OF APPEAL IN CHANCERY.

HUNTER V. BELCHER.-April 23 and May 7.
Account settled-Agent.

servant and agent had been in the habit of rendering accounts from time to time of his receipts and expenses, which were duly entered in the books of his principals. Having left their service, he brought an action against them for salary. They thereupon filed a bill for an account, claiming also damages, and denying that the alary claimed was due:-Held, that the accounts could not be opened, that the question of damages and salary was a dry legal question, and that the bill could not be maintained.

This was an appeal by the plaintiffs from a decree
Vice-Chancellor Kindersley, dismissing the bill in
but giving relief as to other part. The facts are
ly stated in the judgment.

Cole and G. L. Russell, for the plaintiffs.
Baily and Cabell, for the defendant.
Sainton v. Carron (24 Beav. 346; 3 Jur., N. S., 1235);
rick v. Stanley (9 Hare, 627; 16 Jur. 586); and
v. Hill (2 H. L. C. 35) were cited.

G. J. TURNER, L. J., said-This appeal is from ecree of Vice-Chancellor Kindersley. The bill is by manufacturers at Sheffield against one of travellers, and it prays that an account may be en of all sums of money received by the defendant ich are properly due and payable by him to the intiffs, for damages or otherwise, in respect of the ters aforesaid, and of all moneys by the plaintiffs to the defendant in respect of salary, travelling enses, or otherwise, and a like account of all sums money which are properly due and payable by the intiffs to the defendant in respect of salary, traing expenses, or otherwise; and that the defendant be compelled to pay to the plaintiffs what shall found to be due from him, the plaintiffs being ing, and hereby offering, to pay to the defendant shall be found to be due from them to him;" for an injunction to restrain the defendant from beeding with an action brought by him in the nty court, "and from commencing or prosecuting other proceedings at law or otherwise against the intiffs, for recovering any moneys alleged to be due om them, or either of them, to the defendant, in spect of the matters" stated in the bill. The defendant entered the service of the plaintiffs as amercial traveller and clerk, in the month of April, il, and he continued in their service in those capaes down to the 16th October, 1861. The terms on ich the defendant originally entered the service of plaintiffs do not distinctly appear, further than he was to have a salary of 120l. a year; but on 11th October, 1855, the following agreement was e to between the plaintiffs and the defendant: n agreement made and entered into the 11th Ocer, 1855, between Michael Hunter & Son, of Shefd. merchants and manufacturers, and partners in de, of the one part, and William James Belcher, of field aforesaid, commercial traveller, of the other The said Michael Hunter & Son hereby agree gage the said William James Belcher as clerk traveller for them, for the term of three years and alf from the date hereof, on the following terms:salary to be after the rate of 1201. per annum the first half-year, and 2001. per annum during the aining three years. The said Mr. Belcher to be gaged in travelling for the said Michael Hunter & , as their commercial traveller in Ireland or elseere, not exceeding six months out of every twelve ths, and to employ himself in the warehouse of firm, as clerk, during the remaining time, in the No. 496, VOL. X., NEW SERIES.

same manner as now.

All travelling expenses to be paid by the said Michael Hunter & Son. And the said William James Belcher hereby agrees to engage himself to the said Michael Hunter & Son, on the terms and for the period aforesaid. And it is mutually agreed, that notwithstanding the expiration of the said term of three years and a half, this agreement and the said service shall continue, until one of the said parties hereto shall have given to the other six calendar months' notice in writing of his or their intention to determine the same." From the time of the defendant entering the plaintiffs' service he annually made several journeys, principally, it appears, in Ireland, on the plaintiffs' account, for the purpose of obtaining orders to be executed by them, and collecting moneys due to them from their customers; and in the course of these journeys he, out of the moneys he collected from time to time, made remittances to the plaintiffs, and payments on their behalf. On his return from each of these journeys, the defendant rendered to the cashier of the plaintiffs a detailed account of the monies which he had thus received and paid, and in each of these accounts the defendant charged his expenses in one gross sum, as so many days' expenses, according to the number of the days he had been engaged on the journeys. On each of these accounts being rendered, the defendant paid the balance appearing by it to be due from him, after deducting what for the time being was due to him for his salary; and all the accounts thus rendered were entered by the plaintiffs' cashiers in a book of the plaintiffs, called the "journey book." On the 16th April, 1861, the defendant, acting upon the provision for that purpose contained in the agreement of the 11th October, 1855, gave notice to the plaintiffs of his intention to leave their service on the 16th October then next; and on the same 16th April, 1861, the plaintiffs wrote to the defendant a letter, in which, after referring to and explaining a notice which they had given to him on the 9th April, not to draw money on journeys, but if he wanted money to draw an order upon them, they expressed themselves as follows:They refer first to the notice they have given on the 9th April, and explain what they mean by this notice, and then they proceed thus: "In writing this, we think it only proper to make this explanation, which should have been done at the time; but as you know us so well, you must have known it was not intended to cast any imputation, and no man of a proper feeling would have thought so one moment. We never asked you for security; you could have control over all; you say you have faithfully kept your accounts; your travelling expenses we have never questioned, but took the mere statement that you had spent all the money you charged properly. There is one item at least we will require full explanation—that is, the item of expenses of your return to Sheffield from Dublin last year on your own business; as we know you keep very accurate accounts as to your own expenses, it will be very easy to shew it correct." It was an item of 51. which was said to have been charged, but it appears not to have been charged, by the defendant for a journey from Dublin to London, which he made on one occasion on account of the illness of his wife. "We mention this to give you some clear idea of what we may want if we have reason to think you are not doing your duty. We want nothing at your hands but, during the time you are receiving our money, to do what you ought; that is, to do your best, the same as if you were going to continue in our service; and remember it is you who have given the notice. We should never have done so, or would it have made any difference as to your only being able to work half the day, though your illness was caused by your own mis

a a

conduct in stopping out late at night, and as sure as you are born will return again; and you have done your duty to us in attention to business; of this we never complained." Notwithstanding the notice above mentioned to have been given by the defendant, he continued to make journeys on account of the plaintiffs down to the month of October, 1861, and in the course of one of these journeys, on the 4th July, 1861, the plaintiffs wrote to the defendant as follow:-"We shall be obliged if you will keep a correct account of your journey expenses, stating the items of railway and coach fares, hotel bills, &c., such an account as you can refer to; we want every item above mentioned separate, and date. If you require any money, you can pass an order upon us through your bank; if not unreasonable it will be paid, but without prejudice to your accounts." The defendant, however, on his return from these journeys rendered his accounts as before, charging his expenses in the gross; and these accounts were dealt with as the previous accounts had been. On the 16th October, 1861, the defendant left the plaintiffs' service, and on the 17th October he entered the service, as commercial traveller, of some rival manufacturers at Sheffield, with whom he had previously been negotiating for employment. On leaving the plaintiffs' service on the 16th October, 1861, the defendant rendered an account to the plaintiffs, in which he claimed 50l. 16s. 9d. to be due to him in respect of salary; but the plaintiffs then rendered a counter account, in which they claimed 147. 118. 2d. to be due to them from the defendant. It is to be observed, with reference to this counter account, that it contains no claim, and no reservation of any claim, against the defendant in respect of the gross sums charged by him for expenses in the accounts which he had rendered. On the 28th November, 1861, the defendant brought an action against the plaintiffs in the County Court of Yorkshire for 501., part of the sum of 507. 16s. 9d. claimed to be due to him for salary, the 16s. 9d. being abated in order to bring the case within the jurisdiction of the county court; and the bill in this case was filed on the 16th December, 1861. The bill alleges various acts of misconduct on part of the defendant which do not appear to me to have any connexion with the accounts prayed by the bill. They have been brought forward, as I presume, in support of the claim for damages; and in that point of view, I do not think it necessary to refer to them, there not being, as I apprehend, any jurisdiction in this Court to give damages in a case of this nature. The plaintiffs, too, in their affidavit in support of the bill, have stated that they frequently complained to the defendant of the amount of his expenses, and that the defendant made excuse for the amount being so large; but I think no weight can be given to these statements, having regard to the plaintiffs' letter of the 16th April, 1861, in which they say, "We never complained of your travelling expenses," and to the evidence given on the part of the defendant by the cashiers of the plaintiffs; and even if these complaints were made, it is clear that they were not acted upon.

The decree made by his Honor the Vice-Chancellor was as follows:-"This Court doth order that the following account be taken :-An account of all moneys which since the 11th October, 1855, were received by the defendant for or on account of the plaintiff's, or paid by them to him; and of all moneys which since that time became due from the defendant to the plaintiffs for goods supplied to the said defendant; and of all moneys which since the said 11th October were remitted or paid by the defendant to or on account of the plaintiffs, or properly expended by him for travelling expenses, as the com

mercial traveller or agent of the plaintiffs; and of a moneys which became due from the plaintiffs to th defendant for salary; and in taking such accoun the defendant is to be accredited with all sums money which shall appear in any account rendered him to the plaintiffs more than six months prior the filing of the plaintiffs' bill in this suit to have be remitted or paid by him to the plaintiffs themsel or either of them, or to their cashier or bookkee and which were not disputed or questioned by plaintiffs within six months next after the time w such account was rendered; and with respect to a travelling expenses, it is ordered, that the sums chat by the defendant for the same in any account! dered by him to the plaintiffs prior to the 1st J 1861, be taken to be conclusive as to the amour such travelling expenses respectively for any jou prior to the 30th June, 1861;" pointing, therefor the notice of the 4th July, 1861, which the plai had given. "And it is ordered, that so much plaintiffs' bill as seeks to make the defendant for damages in respect of any alleged miscondu breach of duty on his part do stand dismissed, costs. And it is ordered, that the injunction aw pursuant to the said order, dated the 16th Jan 1862, be continued"—that is, an injunction to re the action in the county court. Reserve further sideration, and the rest of the costs of the suit. appeal is from the whole decree, except so much as continues the injunction. The whole case, fore, is in substance open by the appeal; and whole case being thus open, it has been contende the part of the defendant, that the bill ought to been dismissed.

The case appears to me to stand thus:-It co of two parts-the case as to salary, and the case the accounts. So far as the case as to salary s cerned, I can see no ground whatever for this independently of the case as to the accounts. question, whether the defendant is or is not ent to the salary claimed by him, was said, in the of the argument, to depend upon the point, we his salary was payable during an illness which whilst in the plaintiffs' service; but whether pends on this point or not, the right to the must, as it seems to me, be a dry legal question which this Court can have no concern, unless by son of its connexion with the accounts. The r the plaintiffs to maintain this bill must, there as I think, depend upon their right to the acc prayed for by it. These accounts may be consid in two points of view-first, as relating to the res and payments of the defendant on account of plaintiffs; and, secondly, as relating to the expe incurred by the defendant in his journeys. As to first point of view, these accounts must of cours due, unless they are to be considered as having settled; in which case, there being no fraud, a error alleged and proved, they cannot be opened to this part of the case, therefore, the questi whether the accounts ought to be considered as tled, and I am of opinion that they ought to be considered. Accounts rendered, although not obiec to, may not of themselves be entitled to be conside as settled accounts, although under special cint stances they may, as I conceive, be entitled to be considered; but where, as in the present case. only have the accounts been rendered, but the lances appearing to be due upon them have been! and the accounts rendered have been entered in ! books of the persons to whom they were render and not only so, but a subsequent account has be rendered by those persons, which raises no question to the accounts which have been rendered, I cann