Lewin v. lation, in which they ftand to the owners of the hip. The words ufed are, mafter and mariners, which are very particular. An owner cannot commit barratry. He may make himself liable by his fraudulent conduct to the owner of the goods, but not as for barratry. And, befides, barratry cannot be committed against the owner, with his confent for though the owner may become liable for a civil lofs by the mifbehaviour of the captain, if he confents, yet that is not barratry. Barratry must partake of fomething criminal, and must be committed against the owner by the mafter or mariners. In the case of Vallejo and Wheeler, the court took it for granted, that barratry could only be commited against the owner of the fhip. The point is too clear to require any further difcuffion. The poftea was delivered to the defendant. It is clear, that if the owner be also the master of the fhip, any act, which in another mafter would be conftrued barratry, cannot be fo in him; because fuch doctrine would militate against one of the rules laid down in a former part of this chapter; namely, that no man fhall be allowed to derive a benefit from his own crime, which he would do, were he to recover against the infurers for a lofs, occafioned by his own act. This rule has been extended in the court of Chancery to a cafe, where fuch an owner and mafter, after mortgaging his fhip, had committed barratry; and when the mortgagee brought an action at law against the infurer to recover damages for the lofs which he had fuftained by this act of barratry, the court, ftill confidering the mortgagor as the owner, granted an injunction. The facts of that cafe were thefe. The plaintiff in equity, having been fued at law upon a policy of infurance against the barratry of the mafter, which was alfo the lofs affigned in the deDictionary, claration, brought his bill in Chancery to be re1 vol. 147. lieved, and for an injunction. The voyage in 16 Geo, 2. Postlethw. fured fured was from London to Marfeilles, and from thence to fome port in Holland. The mafter failed with the fhip to Marfeilles, and then, inftead of pursuing his voyage, failed to the WeftIndies, where he fold the fhip, and died insolvent. The plaintiff by his bill fuggefted, that Matthews, the master, was alfo the owner of the ship: that he had, before the voyage, entered into a bottomry bond to the defendant for 200l. and afterwards, by a bill of fale, had affigned over his intereft in the fhip to the defendant, as a fecurity for the 200l.: that Matthews was, nevertheless, in equity, to be confidered as owner of the ship, though in law, the ownership and property would be looked upon to be in the defendant; and that the owner of a fhip could not, either in law or equity, be guilty of a barratry concerning the fhip; and therefore, he prayed an injunction, and that the policy might be delivered up. matters of fact being confeffed by the answer, an injunction was moved for on the principle, that a mortgagor is to be confidered in equity as the owner of the thing mortgaged; and that Matthews, the mafter, being owner, could not be guilty of barratry. The Lord Hardwicke.-Barratry is an act of wrong done by the mafter against the fhip and goods; and this being the cafe of a fhip, the queftion will be, who is to be confidered as the owner? Several cafes might be put, where barratry may be affigned as the breach of an infurance; and barratry or not, is a queftion properly determinable at law: but in this cafe it is not fo, for courts of law will not confider a mortgagor as having any right or intereft in the thing mortgaged; and a man may frequently come into equity for relief in respect of a part only of his cafe. It might, indeed, be confidered at law, whether what the mafter has done, whether he be owner or not, did not amount to a breach of contract as mafter, and fo to a barratry: it may likewife z Magens 77. 112. 215. ¡ Anne, flat. likewife be fo confidered in this court. But at law, a defendant cannot read part of a plaintiff's anfwer to a bill filed against him here: the whole anfwer must be read, which has often been a reafon for this court to interpofe by injunction upon a plaint at law; and confidering the mixed nature of this cafe, I think an injunction ought to be granted. Hitherto we have confidered barratry only, as it affects the rights of the infurer and infured, which is certainly the material point of view in our prefent enquiry: but, before we come to the conclufion of this chapter, it will be proper to take notice of thofe pofitive regulations, which exist in this and other countries, for the punifhment of those who are guilty of fome of the more heinous acts of barratry. By the ordinances of Middleburg, Rotterdam, and Hamburgh, if any act of barratry be committed by the mafter, various degrees of punishment, fometimes amounting even to death, are inflicted upon him, proportioned to the enor mity of his guilt. We do not find that any punishment was exprefsly provided, by the law of England, for offences of this nature, till the reign of Queen Anne, at which time, as may be collected from the preamble of the ftatute, the wilful cafting away, burning or deftroying of fhips by the mafter or mariners, was become very frequent. To prevent thefe evils that ftatute ordains, 2. c. 9. f. 4. that if any captain, mafter, mariner, or other "officer, belonging to any fhip, fhall wilfully "caft away, burn, or otherwife deftroy the ship "unto which he belongeth, or procure the fame "to be done, to the prejudice of the owner or "owners thereof, or of any merchant or mer"chants that fhall load goods thereon, he fhall "fuffer death as a felon." 4 Geo. 1. c. 12. 1. 3. Upon trial this act was found not to be fufficiently extenfive; and therefore, by a fubfequent ftatute, it was declared, "that if any owner of, or cap"tain, master, mariner, or other officer belonging to any ship, fhall wilfully caft away, burn, "or otherwise deftroy the fhip of which he is owner, or unto which he belongeth, or in any manner direct or procure the fame to "be done, to the prejudice of any perfon or per"fons that shall underwrite any policy or poli"cies of infurance thereon, or of any merchant "or merchants that fhall load goods thereon, "he fhall fuffer death." Notwithstanding this ftatute, doubts ftill remained as to the nature of the offence, and the mode of trial, and punishment to be inflicted for the fame; wherefore, it feemed expedient to the legislature to pass an explanatory law, declaring, "that if any owner of, or captain, master, officer 12 Geo. I. "or mariner belonging to any fhip or veffel, c. 29, f. 6. "shall wilfully caft away, burn, or otherwife de"ftroy the fhip or veffel, of which he is owner, "or to which he belongeth; or in any wife di"rect or procure the fame to be done, with intent or deign to prejudice any perfon or per"fons that hath underwrote, or shall underwrite any policy or policies of infurance thereon, or "of any merchant or merchants that fhall load goods thereon, or of any owner or owners of "fuch fhip or veffel, the perfon or perfons of fending therein, being thereof lawfully con"victed, fhall be deemed and adjudged a felon " or felons, and fhall fuffer, as in cafes of felony, "without benefit of clergy." The following fection directs, that if the of- 7th. Section. fence be committed within the body of a county, the fame fhall be tried as all felonies are in the common law courts: but if upon the high feas, then to be tried agreeably to the directions of the 28th H. 8. c. 15. Thefe are the only pofitive regulations, known to the law of England, for the punishment of those who wilfully destroy fhips to the prejudice of such persons as are interested in their preferva tion. СНАРТER THE SIXTH. Of Partial Loffes, and of Adjustment. HAV AVING, in the preceding chapters, treated fully of the different kinds of loffes, for which the underwriters are anfwerable, the fubject naturally leads one to confider, when loffes hall be faid to be total, and when partial, or average, as they have been most commonly denominated. When we speak of a total lofs, we do not always mean to fignify, that the property infured is irrecoverably loft or gone: but that, by fome of the perils mentioned in the policy, it is in fuch a condition, as to be of little use or value to the infured, and so much injured, as to justify him in abandoning to the infurer, and in calling upon him to pay the whole amount of his infurance, as if a total lofs had actually happened. But the idea of a total lofs, in this fenfe of the word, is fo intimately blended and interwoven with the doctrine of abandonment, that it will add much to clearness and precision, to refer what may be faid on this fubject, till we come 2 Burr. 1170. to the chapter on abandonment. In this place it will be fufficient to remark, that in cafe of a total lofs, properly fo called, the prime coft of the property infured, or the value mentioned in the policy, must be paid by the underwriter; at leaft, as far as his proportion of the insurance extends. This is evident from the nature of the contract; for the infurer engages, as far as to the |