necessary to the decision. BULLER, J., however, rests his judgment to some extent on the latter point.

Disablement of the crew by illness may constitute a necessity justifying deviation. In Woolf v. Claggett (1800), 3 Esp. 257, 6 R. R. 830, Lord ELDON said that if, by the visitation of God, so many of the crew, who were otherwise sufficient, became so afflicted with sickness as to be incapable of navigating the ship, such an illness of the crew was a necessity which might justify a deviation. As however, in the case in point, the putting into Plymouth, which was the deviation in question, was only for the purpose of procuring medical assistance which ought to have been available on board, the plaintiff was non-suited.

Where, at an early point in the voyage, it is found that the ship is not seaworthy for the voyage, and she puts into a port out of her course to have the defect remedied, it seems clear that this is not a deviation. This will appear from the two cases of Weir v. Aberdeen (1819), 2 B. & Ald. 320, 20 R. R. 450, and Quebec Marine Insurance Co. v. Commercial Bank of India (1870), L. R., 3 P. C. 234, 39 L. J. P. C. 53, 22 L. T. 559, 18 W. R. 769, in neither of which cases was it suggested that the insurance was determined by reason of deviation. But in the latter case, as it was shown that the defect rendering the vessel unseaworthy existed at the commencement of the voyage, it was held that the implied warranty of seaworthiness was broken, and the underwriter discharged. In the former case the ship had been overladen, and so unseaworthy, at starting, and ABBOTT, C. J., made some observations to the effect that the objection was removed owing to the excess of cargo having been unladen before any loss occurred. But, as it was pointed out in the judgment of the Privy Council in the case of the Quebec Marine Insurance Co. v. Commercial Bank of India, these observations cannot be relied on, and the true ground of the decision in Weir v. Aberdeen was that the warranty was waived by consent in writing and this waiver would hold good without a new policy being effected.

In Forshaw v. Chabert (1821), 3 Brod. & Bing. 158, 23 R. R. 596, referred to in the judgment in Quebec Marine Insurance Co. v. Commercial Bank of India, supra, a ship insured on a voyage from Cuba to Liverpool (which required a crew of ten men) sailed from Cuba with eight men engaged to navigate to Liverpool, and two engaged for Jamaica. It appeared that her full complement for the voyage was a crew of ten men, but that only eight could be procured in Cuba to sign for the voyage to Liverpool. The captain put into Jamaica to land the two men (who refused to proceed further) and to procure others to take their place. It was held that the vessel, having sailed from Cuba

without a proper complement of men engaged for the whole voyage, was not, at sailing, seaworthy for the voyage, and the underwriter was accordingly discharged. DALLAS, C. J., while concurring on this ground, puts the alternative that, if the captain had a sufficient crew for the voyage at Cuba, the touching at Jamaica would have been a deviation without necessity.

In Scaramanga v. Stamp (C. A. 1880), 5 C. P. D. 295, 49 L. J. C. P. 674, 42 L. T. 840, 28 W. R. 691, the law as to succouring vessels in distress was laid down by COCKBURN, J., in an elaborate judgment in which all the authority to be found in previous English cases - which indeed consists of mere dicta - is collected. In aid of the scanty current of English authority he calls in the aid of the American authorities, and deduces, as the result, the following principles: "Deviation for the purpose of saving life is protected, and involves neither forfeiture of insurance nor liability to the goods-owner in respect of loss which would otherwise be within the exception of 'perils of the seas;' and, as a necessary consequence of the foregoing, deviation for the purpose of communicating with a ship in distress is allowable, inasmuch as the state of the vessel in distress may involve danger to life. On the other hand, deviation for the sole purpose of saving property is not thus privileged, but entails all the usual consequences of deviation."

Scaramanga v. Stamp (supra) was an action by freighters of cargo under a charter-party against the shipowners for the loss of cargo. The charter-party excepted "perils of the seas," and the defence was that the ship had deviated out of her course and that the loss occurred after such deviation. The facts were that the ship (the S. S. Olympias) bound from Cronstadt to Gibraltar, when nine days out sighted another steamship, the Arion, in distress, and, on nearing her found that her machinery had broken down, and that she was in a helpless condition. The weather was fine and the sea smooth and there would have been no difficulty in taking off and so saving the crew. But, in order to save the ship as well, the master of the Olympias agreed for £1000 to tow the Arion into Texel. Having taken the Arion in tow accordingly, and on the way to Texel, the Olympias got on the sands off the Dutch coast and was lost. There was thus a double deviation, first, by taking the vessel in tow and thus retarding the voyage, and secondly, by going out of her course towards Texel. The Court of Appeal, affirming the judgment of the Common Pleas, held that the deviation was not justified.

AMERICAN NOTES.

It is a general principle that a peril that excuses a deviation must be real and urgent and serious, or there must be reasonable ground for believing it VOL. IX-27

to be so, and the deviation must be, or must be reasonably believed to be necessary to avoid the peril. As to danger of capture, Oliver v. Maryland Ins. Co., 7 Cranch (U. S. Sup. Ct.), 493; Whitney v. Haven, 13 Massachusetts, 171; Reade v. Com. Ins. Co., 3 Johnson (New York), 352; 3 Am. Dec. 495. Unreasonable apprehension does not justify deviation, such as unreasonable fear of capture. Riggin v. Patapsco Ins. Co., 7 Harris & Johnson (Maryland), 279; 16 Am. Dec. 302. The master of a vessel being advised that French privateers were cruising in the windward passage and in the usual route from Surinam, took the leeward passage to touch at Dennemara to take the protection of a British convoy about to sail, but shortly after arrival was driven to sea by a gale, proceeded on the voyage without convoy and was captured by a French privateer. Held, (KENT, J.,) a justifiable deviation: "A deviation, if done to avoid an enemy or to seek for a convoy, is justifiable. It is no deviation to go out of the way to avoid danger. It is in every such case a matter of fact whether the captain acted fairly and bonâ fide, according to the best of his judgment, and had no other motive or view but to come home the safest way, or to seek for convoy."

Necessity for repairs, springing from stress of weather, may justify deviation. Hutton v. Am. Ins. Co., 7 Hill (New York), 321; Turner v. Protection Ins. Co., 25 Maine, 515; 43 Am. Dec. 294; Merchants' Ins. Co. v. Clapp, 11 Pickering (Mass.), 56.

If a vessel is driven into a port of necessity, and is prevented from pursu ing her voyage by pestilence, the policy is not vitiated. Williams v. Smith, 2 Caines, 1.

If a vessel is driven from her destined port by blockade and is lost on her way to another, this is no deviation. Robinson v. Marine Ins. Co., 2 Johnson (New York), 89. So where a vessel is compelled to anchor in a port not described in the policy, by military power of a belligerent: Savage v. Pleasants, 5 Binney (Penn.), 403; 6 Am. Dec. 424, distinguishing several English cases, and Richardson v. Maine Ins. Co., 6 Massachusetts, 102; 4 Am. Dec. 92; which last holds that mere notice of blockade does not justify the deviation within the words "restraints" and "detainments of princes."

So where a vessel was driven by stress of weather into a port, and might have been repaired there, but proceeded for repairs to a neighbouring port where the owner lived, this is not a deviation. Silloway v. Neptune Ins. Co., 12 Gray (Mass.), 73.

Deviation is excused to save human life or relieve human suffering. Cases cited in note, 38 Am. Dec. 674. As to procure medical attendance for the captain's wife in case of an accident to her: Perkins v. Augusta, &c. Ins. Co., 10 Gray (Mass.), 312; 71 Am. Dec. 654. Or to procure necessary provisions. Kettell v. Wiggin, 13 Massachusetts, 68 (unless produced by the master's neg. ligence.) "It makes no difference whether the object of such departure is to alleviate the distress and administer to the necessities of persons who are lawfully on board, or of strangers suffering from disasters sustained by the loss or wreck of another vessel. The dictates of humanity are as forcible in the one case as in the other, and it would be strange and unreasonable if the law recognized any discrimination between them." Ibid.

No. 1.-Wise v. Metcalfe, 10 Barn. & Cress. 299. - Rule.

But it is equally well settled that a deviation merely to save property not on board the insured vessel will not be excused. See cases in note, 71 Am. Dec. 674. As where the vessel insured sailed from its port of destination in pursuit of a vessel which had been carried away by pirates: Hood v. Nesbit, 2 Dallas (U. S.), 137; 1 Am. Dec. 265. It was held however to the contrary in Settle & Bacon v. St. Louis P. Ins. Co., 7 Missouri, 379, the case of a voyage on the Mississippi, where deviation to succour another vessel in distress was justified although no life was in danger. Followed, Walsh v. Homer, 10 ibid. 6; 45 Am. Dec. 342.

A vessel insured to either or both of two ports, and prevented from going to the first port mentioned, may go to a third to ascertain to which of the two it would better sail. Clark v. United, &c. Ins. Co., 7 Massachusetts, 365;

AN ecclesiastical person who has a freehold in his preferment, is liable for dilapidations. This obligation extends to the maintenance, restoration, and re-building of the structure, according to the original form, but not to anything in the nature of ornamentation.

An incumbent of a living is bound to keep the parsonage-house and [299] chancel in good and substantial repair, restoring and rebuilding when necessary, according to the original form, without addition or modern improvement; but he is not bound to supply or maintain anything in the nature of ornament, such as painting (unless that be necessary to preserve exposed timber from decay), and whitewashing and papering; and in an action for dilapidations against the executors of a deceased rector by the successor, the damages are to be calculated upon this principle.

Action on the case by the plaintiff, as rector of the church of the parish of Barley, in the county of Hertford, against the

No. 1.Wise v. Metcalfe, 10 Barn. & Cress. 299, 300.

defendant, as the executor of the late rector, William Metcalfe, the immediate predecessor of the plaintiff, to recover the amount of the dilapidations of the rectory-house, barns, stables, and outbuildings thereto belonging, of the said rectory, and of the chancel of the said church, which had arisen at the time of the death of the said William Metcalfe. At the trial before GARROW, B., at the summer assizes for Hertford, 1828, the jury found a verdict for the plaintiff, damages £399 18s. 6d., subject to the opinion of this Court upon the following case:

The deceased, William Metcalfe, became rector of the church of the said parish in 1814, and soon afterwards received from the personal representative of his immediate predecessor the sum of £115, being the amount of the dilapidations of the rectory-house, outbuildings, and chancel, at the death of his said predecessor. Mr. Metcalfe continued to be rector until his death, which happened on the 16th of May, 1827, at which period the annual value of the said rectory was £600, out of which the sum of £46 was payable annually for land-tax. In the month of July, 1827, the plaintiff became the rector of the church of the said parish, and has so continued ever since. The rectory-house is an ancient structure, built with timber, and plastered on the out[300] side, and has upon it the date of 1624. The barns were also old, but not of equal age with the rectory-house. The dilapidations of the rectory-house, barns, stables, outbuildings, and of the chancel of the church amounted to £399 18s. 6d., provided the principle upon which the estimate had been made was correct. The principle was, that the former incumbent, William Metcalfe, ought to have left the rectory-house, buildings, and chancel, in good and substantial repair; the painting, papering, and whitewashing being in proper decent condition for the immediate occupation and use of his successor; that such repairs were to be ascertained with reference to the state and character of the buildings, which were to be restored where necessary, according to their original form, without addition or modern improvement. It was proved by the several surveyors of experience examined on the part of the plaintiff, and also of the defendant, that they had invariably estimated the dilapidations between the incumbent of a living and the representatives of his predecessors upon the above principle.

If, however, the rectory-house, buildings, and chancel were to