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cases, it is not too much to say that they meant to indemnify the assured against fire, proceeding from the negligence of the master and mariners." In Walker v. Maitland, 5 B. & Ald. 171, the underwriters were held liable for a loss arising immediately from a peril of the sea, but remotely from the negligence of the master and mariners: Abbott C. J. saying:-"I can not distinguish this case from Busk v. The Royal Exch. Assurance Co. (supra.); there the immediate cause of the loss was fire, produced by the negligence of one of the crew; yet the underwriters were held to be liable. Here the winds and waves caused the loss, but they would not have produced that effect, unless there had been neglect on the part of the crew." In Bishop v. Pentland, 7 B. & C. 219, Mr. J. Bayley, said "The cases of Busk v. The Royal Assurance Co. and Walker v. Maitland, establish as a principle, that the underwriters are liable for a loss, the proximate cause of which is one of the enumerated risks, though the remote cause may be traced to the negligence of the master and mariners."

In The Petapsco Ins. Co. v. Coulter, 3 Pet. R. 222, where the loss was by fire, and barratry also was insured against: Held, that in such a policy, a loss which was remotely caused by the master or the crew, was a risk taken in the policy; and the doctrine in the English cases was recognized and approved. Mr. Justice Story observes (in Waters v. The Louisville Ins. Co., supra):— "It is true that the Court (in The Petapsco Ins. Co. v. Coulter,) lay great stress on the fact that barratry was insured against; but it may also be stated that this ground was not exclusively relied on, for the court expressly refer to and adopt the doctrine of the English cases, that the proximate and not the remote cause of a loss is to be looked to. It is known to those of us who constituted a part of the court at that time, that a majority of the judges were then of opinion for the plaintiff, upon this last general ground, independently of the other." He adds :-" It was under these circumstances, that the case of The Columbian Ins. Co. of Alexandria, v. Lawrence, 10 Pet. R. 507, came on for argument: and the Court then thought, that in marine policies, whether containing the risk of barratry or not, a loss whose proximate cause was a peril insured against, is within the protection of the policy; notwithstanding it might have been occasioned remotely by the negligence of the master and mariners. We see no reason to change that opinion; and on the contrary, upon the present argument, we are confirmed in it."

The learned Judge in concluding his elaborate opinion, (in Waters v. The Merchants' Louisville Ins. Co. supra,) observes :-"Some suggestion was made at the bar, whether the explosion, as stated in the pleas, was a loss by fire, or by explosion merely. We are of opinion, that as the explosion was caused by fire, the latter was the proximate cause of the loss." The fifth plea in that case turned upon the ground, that the taking of gunpowder on board was an increase of the risk: And the same judge remarked :—“If the taking of the gunpowder on board was not justified by the usage of the trade, and therefore was not contemplated as a risk by the policy; there might be great reason to contend, that if it increased the risk, the loss was not covered by the policy.

But in our opinion the facts are too defectively stated in the fifth plea to raise the question."

Where a policy against fire stipulates that the company will make good any loss or damage "by fire, originating in any cause, except design in the assured, &c: Held, that the company in such case make themselves liable for losses by negligence, as well as by accident; for the exception of losses by design admits all losses not by design. Catlin v. The Springfield Fire Ins. Co. 1 Sumner, 434. The English decisions clearly are, that, on policies against fire generally, losses by the negligence of tenants are within the risks taken. And it is still more clear, that losses by the negligence of tenants, or by the criminal wantonness, or misconduct of mere trespassers, or intruders, or felons are within the common policies against fire. Per Story, J. in ib. The loss, to be by design of the assured, in the sense of the policy, must be by incitement, connivance, or co-operation of the assured, directly or indirectly, with the persons, who were the agents in the act. ib.

In a marine policy, which insures against the barratry of the master and crew :-Held, that insurers were liable, although it appeared that the vessel was lost in consequence of the Master's pursuing an illicit trade by smuggling ; and although a warranty was inserted in the policy against illicit or prohibited trade. American Ins. Co. v. Durham, 15 Wend. 9; 12 ib. 463 S. C. The leading case upon this subject in N. Y. is Suckley v. Delafield, 2 Caines' Cas. 222; Smith v. Del. Ins. Co. 3 S. & R. 82. See Wilcox v. The Union Ins. Co. 2 Binn. 579; Brown v. The Union Ins. Co. 5 Day, 1. The clause of warranty of the assured does not interfere with or alter the clause of insurance against the barratry of the master.

Where in an action against an insurance company to recover a loss sustained by fire, the defence was, that the plaintiff had wilfully set fire to the premises, and the judge directed the jury, that, in order to find a verdict against the plaintiff, they should be satisfied that the crime imputed to him was as fully and satisfactorily proved as would warrant them in finding him guilty on a criminal charge for the same offence :-Held, that such direction was right. Thurtell v. Beaumont, 8 Moore, 612; 1 Bing. 339.

Neither a loss of the outward cargo destroyed by fire on shore at the for ́eign port, nor damage to the vessel by worms and climate, nor an extraordinary expenditure of provisions, whether by the seamen, or by sentinels placed on board by the government, nor the possible earnings of a vessel during an embargo, are losses within a policy of insurance against the usual risks, on a vessel and cargo to, at and from a foreign port, for the purpose of selling the outward, and purchasing a return cargo. Martin v. Salem M. Ins. Co., 2 Mass. 420, 427. The Court says:-"If the words in this instrument, descriptive of the subject matter of the insurance, and of the duration of the risk, had beer. in the usual form of English policies, and instead of the cargo, the descriptioĽ had been goods laden on board the said Schooner, from the loading aboard, and to continue until the same be discharged and safely landed, it would hardly be pretended that goods landed from the vessel, or goods prepared to be put on

board, but lost by the burning of a dwelling house or warehouse on the shore, were within the words of the policy. Accordingly the general rule of construction in English policies is, that the risk on goods continues no longer than they are actually on board the ship mentioned in the policy."

The insurers must be intended to have known the course of business and the usage of trade in a manufacturing establishment insured. In Delonguemare v. The Tradesmen's Ins. Co. 2 Hall, 589, the policy was in the usual form, insuring the plaintiff, for the term of one year, upon the building composing his china or porcelain manufactory, and on the machinery, tools, horses, and stock, finished and unfinished, contained therein. It was objected, that a carpenter's shop was permitted on the premises, up to the time of the fire, without license or consent of the insurers, and against the express provisions of the policy, whereby the contract of insurance was avoided or suspended. It appeared that one room, at the time the policy was effected, did contain a carpenter's work bench and tools, and that a carpenter was constantly at work there, in making moulds and boxes, and in putting up shelves for the use of the establishment, from the date of the policy to the day preceding the fire, and that the apartment had not at any time been used as a store for painted

ware.

The plaintiff insisted that a carpenter was a necessary workman to be attached to the establishment, and that his employment and accommodation in the buildings insured, were justified by the ordinary requirements of the man ufactory, and by the usage of the trade, and he denied that such use and occupation of the store-room, by a workman attached to the establishment, was prohibited by the policy, or that he was bound to disclose the circumstance to the insurers, or that his silence in respect to it amounted to deception, or a culpable concealment or misrepresentation in the description he gave of the property and the purposes to which it was applied. Witnesses were called by him to prove that a carpenter was a necessary workman for him to employ in his manufactory, and that such a workman is usually attached to such manufactories, and at all times employed therein.

The agreement and provision of the policy to which the objection refers, is in substance as follows; that is to say, "that in case the buildings should at any time after the making of the policy, and during the time it would otherwise continue in force, be appropriated, applied, or used to or for the purpose of carrying on, or exercising therein any trade, business, or vocation, denominated hazardous or extra-hazardous, as specified in the memorandum of spe cial rates in the proposals annexed to the policy, unless in the policy other wise specially provided for, or thereafter agreed to by the corporation in writing, to be added to or endorsed upon the policy, then and from thenceforth, so long as the same shall be so appropriated, applied or used, those presents should cease, and be of no force or effect." And in the memorandum of special rates in the proposals attached to the policy, carpenters, in their own shops, are classed among the trades and occupations deemed extra-hazardous, and for the insurance upon which, an extra premium is to be charged. The defendants insisted, that the occupation of the store-room in the building,

by the carpenter for his shop, was conclusive evidence of the fact, that it was used for the purpose of exercising therein an extra-hazardous trade or vocation within the meaning of the prohibitory clause or provision of the policy, without the assent of the corporation, and therefore caused a suspension of the policy, which continued until and at the time of the fire.

Mr. Justice Oakley overruled these objections at the trial; and the Court upon consideration refused a new trial. Ch. J. Jones observes :-" All the witnesses who testify to the point, concur in the opinion that a carpenter is a necessary workman in such establishments.-This proof of the necessity of a carpenter, and of the usage of manufacturers to employ and keep one as an ordinary workman in such an establishment, is not contradicted, and if it was admissable evidence, of which no question is made, it must, we think, be sufficient to take the plaintiff's case out of the operation of the prohibitory clause or provision of the policy, and justify the assured in the use he permitted of the store-room in question; for one carpenter only was retained by him, and continued in his employ in the factory at the time of the fire. Such a workman was required for the ordinary purposes of the manufactory, and he must have a place to work in.

The restriction inhibiting the appropriation of the building to extra-hazardous trades, on the pain of the suspension of the obligation of the insurers, was considered inapplicable to a trade or vocation, however hazardous, appertaining, or usually attached to an establishment, which the underwriters, with a description of it before them, agreed to insure; such an occupation forms a prominent object of the insurance, and without which, the establishment cannot be profitably carried on. ib. And, however unwarrantable the use made of the buildings by the workmen might have been, the contract of insurance, by the terms of it, could be suspended during the continuance only of such unauthorised use of them. ib.

2. Damage by heat in the process of manufacture without ignition.

To found a valid claim under the policy, a loss or damage by fire must occur; for it seems that loss or damage by heat alone, without ignition, is not covered by the usual policy, against loss by fire.

The insurers, in consideration of the premium paid, usually undertake to pay or make good to the insured, his executors, administrators or assigns, all such loss or damage as shall happen by fire, (except loss or damage by fire happening by any invasion, foreign enemy, civil commotion or riot, or any military or usurped power whatever,) to the property specified, to the extent of the sum for which it is insured, but they sometimes also give notice, by the indorsements of the policy, that they will not be answerable for loss or damage on stock of any kind occasioned by the misapplication of fire heat under process of manufacture, or for loss or damage to hay or corn, or stock of any kind, occasioned by its own natural heating. It is obvious that to indemnify the insured against ignition under either of these circumstances, would be to open a door to negligence and fraud, if not directly to encourage it. On the other

hand, to remove any doubt in the minds of the insured, though little could exist upon the terms of most policies, it is sometimes expressly stated that losses occasioned by fire from lightning will be made good. (Ellis, p. 15.)

1. In order to recover upon a policy against loss or damage by fire, it is not sufficient to show that the property has been damaged by the heat of fires usually employed in the manufacture, and increased by the negligence of the insured, or his servants, beyond its usual intensity.

In Austen v. Drew, 6 Taunt, 436, the action was on a policy effected " "against all the damage which the plaintiffs should suffer by fire" on their "stock and utensils in their regular built sugar-house," and plaintiffs averred that their "stock and utensils were very much damaged by fire in the sugar-house." The defendants pleaded that the stock and utensils were, through the negligence and improper conduct of the plaintiffs and their servants in managing the fires usually employed in the sugar-house, damaged by the smoke arising from such fires, and not from any other cause, and traversed the damage by fire. It appeared 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 through the whole building, formed almost one side of one 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 eight stories, was a regulator, which the plaintiff used to shut up 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 the next day, and they soon afterwards found the building full of smoke and sparks; and it was found that the regulator, which always ought to be open when the fire was burning, was continued shut down. There was much smoke, but the only injury done to the sugars proceeded from heat; 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 regulator closed, it was not a loss by fire within the meaning of the policy, but was occasioned by the improper management of the regulator. The Jury found a verdict for the defendants; and upon a motion for a new trial, on the ground that the words of the policy were “damage by fire," not "excess of fire," or "improper fire." Shepherd, Sol. Gen., said, if flame caused the mischief, it mattered not whether the fire was properly or improperly lighted, the question was, whether fire occasioned the damage. It could not be necessary that the fire, to produce a loss within the policy, should be only fire as was communicated' to some substance not contained in the proper receptacle of fire. Suppose the intensity of heat necessarily required should be so great that the fire made in a chimney, though confined there, might ignite neighboring bodies, it might in that case as well he said that it was not a damage by fire. Put the case of a chimney on fire, there is only the usual quantity of heat below, but the mischief is occasioned by an accumulation of soot in the chimney, yet the insurers would be bound to pay any loss thereby occasioned. Gibbs, C. J.-I think