1832. MARGETSON v. WRIGHT. Wilde. From the finding of the jury, it appears that the mischief of a splint must depend chiefly, if not entirely, upon its position: if so, the possibility of its becoming mischievous was a patent defect, of which the Plaintiff had the means of judging as well as the Defendant. Taking it, however, as only an equivoca] indication of unsoundness, the uncertainty as to its future effect was the very point on which the Defendant proposed to guard himself by limiting his warranty to the time of the contract. But for the uncertain issue the splint he might have given an unqualified warranty: and he derives no benefit from the limitation, if it be not held to be satisfied by the fact that the horse had no symptoms of lameness when the contract was made. Cur. adv. vult. TINDAL C. J. This was an action upon a warranty, in which the Defendant warranted the horse to be sound, wind and limb, "at this time;" that is, at the time of the warranty made. The jury at the trial found a verdict for the Plaintiff. The learned Judge requested the jury to tell him distinctly whether, in their judgment, the horse was sound; or, if they believed him to be unsound, whether that unsoundness arose from the splint of which evidence had been given. In answer to which enquiry the jury said, "That, although the horse exhibited no symptoms of lameness at the time when the contract was made, he had then upon him the seeds of unsoundness arising from the splint." The question upon this application for a new trial is, Whether this finding of the jury sanctions the verdict for the Plaintiff or not; that is, whether the Court can see with sufficient clearness that the jury thought that the horse was unsound at the time of the contract, and consequently that the warranty was broken. It appears that the evidence before the jury was, in substance, that a splint might or might not be the efficient cause of lameness, according to the position which it occupied, and its size and extent; that this splint was in a very bad situation, as it pressed upon one of the sinews, and would naturally produce, when the horse was worked, inflammation of the sinew, and consequent lameness. The jury, therefore, drawing their attention to the particular splint, to which the evidence related, appear to us to have intended that this individual splint, though it did not at the moment produce lameness, was, at the time of the contract, of that sort and in that situation as to contain, in their language, the seeds of unsoundness, that is, the efficient cause of the subsequent lameness. If the lameness complained of had proceeded from a new or different splint, or from the old splint taking a new direction in its growth, so as to affect a sinew, not having pressed on one before, such a lameness would not have been within the warranty, for it would not have constituted a present unsoundness at the time of the warranty made. But the jury find that the very splint in question is the efficient cause of lameness. On the former motion, our attention was not called to any evidence, if any such was given, as to the different nature and consequences of splints which the learned Judge reports to have been given upon the present occasion; but it now appears that some splints cause lameness, and others do not, and that the consequences of a splint cannot be apparent at the time, like the loss of an eye or any visible blemish or defect, to a common observer. We therefore think that, by the terms of this written warranty, the parties meant this was not a splint at that time which would be the cause of future lameness, and that the jury have found that it was. We therefore think that the warranty was broken, and that the postea must be delivered to the Plaintiff. Rule discharged. 1832. MARGETSON v. WRIGHT. 1832. Upon the ebbing of the tide, a vessel took the ground in a tide har bour, in the she should; but, in so doing, struck against some hard substance, by which two holes were made in her bottom, and the cargo damaged: Held not a strand KINGSFORD V. MARSHALL. THIS HIS was an action on a policy of insurance on wheat on board the ship Lady Anne, at and from London to Dunkirk. The policy contained the usual memorandum, by which corn, &c. was warranted free from average, unless general, or the ship be stranded. The place where it Plaintiff declared for an average loss upon the wheat by was intended the stranding of the ship. At the trial before Tindal C.J., London sittings after last Michaelmas term, the only question that arose was, whether there was a stranding of the ship or not? As to which, the facts were as follow: Dunkirk harbour is a tide harbour, being nearly dry at low water. The ship entered the harbour about the time of high water, and was moored fore and aft to the shore, by order of the harbour master, in a place pointed out by him, where other vessels had been moored; and was also fastened by a running tackle from the mainmast head to a post on the shore, for the purpose of preventing the ship from settling over as the tide fell. Whilst the tide was ebbing, and before the ship took the ground, though as to the precise time there was contradictory evidence, the rope of the running tackle broke; and after the ship had settled, it was discovered, that, in taking the ground, she had struck against some hard substance, by means of which two holes were made in the bottom of the ship, in the second or third streak from the keel, and the water flowing through these holes had injured the ship, and also done considerable damage to the cargo. Upon the fact, whether the ship took the ground precisely in the place and in the manner she would have done, if no accident had happened to the rope, there was contradictory evidence: and the jury were directed, that if the ing for which the underwriters were liable upon an insurance on corn warranted free from average, unless general, or the ship be stranded. ship took the ground merely in consequence of the ebbing of the tide, and at the very place where it was intended she should at the time she was moored, then there was no stranding within the meaning of the policy; but if, in consequence of the breaking of the rope, or any other casualty, the ship took the ground, not in the place where it was intended she should settle by the ebbing of the tide, but in some other and different place, then there was a stranding. The jury found for the Defendant; thereby, in effect, declaring that the ship had taken the ground merely through the ebbing of the tide, and in the very place where it was intended she should, and negativing that from the breaking of the rope, or any other accident, she had settled in a different place. Taddy Serjt. obtained a rule nisi for a new trial, on the ground of an alleged misdirection, contending that in cases of this kind, the question is, whether or not the loss takes place in the ordinary course of navigation: that this loss did not take place in the ordinary course of navigation; for though it was in the ordinary course that a vessel should take the ground in Dunkirk harbour, it was not in the ordinary course that she should settle down upon a large stone which should perforate her bottom. The jury, therefore, should have been told that this was a stranding for which the underwriter was responsible. Thus, in Fletcher v. Inglis (a), where a transport in government service, insured for twelve months, was ordered into Boulogne harbour, the bed of which is hard and uneven, and, the tide having left her, received damage by taking the ground; it was held, that that was a loss by the peril of the sea. So, in Rayner v. Godmond (b), in the course of a (a) 2 B. & Ald. 315. Hh 4 (b) 5 B. Ald. 225. 1832. KINGSFORD บ. MARSHALL. voyage along a canal, it became necessary, in order to repair the canal, to draw off the water; the ship, having been placed in what appeared to be a safe situation when the water was drawn off, impinged by accident upon some piles, the existence of which was not previously known and this was held to be a stranding within the usual memorandum in the policy. Wilde and Stephen Serjts. shewed cause in Hilary term. This was a stranding in the ordinary course of navigation, for which the underwriter is not responsible; and Hearne v. Edmunds (a) is in point. There, a vessel in charge of a pilot, going up Cork harbour, took the ground in the ordinary course of navigation, and afterwards, when moored at a quay, on the ebb of the tide took the ground, fell over on her side, and was injured; and it was holden, that that was not a stranding, for which the insurer was liable. In Fletcher v. Inglis the loss was not occasioned by the vessel's taking the ground, but by succussation on the reflux of the tide; to which she could not have been exposed unless placed in an improper position. In Rayner v. Godmond, the accident did not happen in the ordinary course of navigation, for the drawing off the water of the canal for repairs was obviously an unusual occurrence. In Carruthers v. Sydebotham (b), a ship being under conduct of a pilot was, against the advice of the master, fastened at the pier of the dock basin at Liverpool, by a rope to the shore, and left there; when the tide retired she fell over on her side and bilged: that was held a stranding, for which the underwriters were liable. But the fact that the vessel was placed, contrary to the advice of the master, in a position which proved fatal to (a) 1 B. & B. 388. From Lord C. J. Dallas's notes of the trial, which Wilde now produced, it appeared that the bottom of Cork harbour is hard and stony. (b) 4 M. & S. 77. her, |