convenience to the plaintiff, and the injury is proximately caused by the plaintiff unreasonably trying to remedy such inconvenience, the defendent will not be liable. Thus, where from a defect in the latch of a railway carriage, the door flew open, and a passenger, in endeavoring to shut it, fell out, it was held that the company were not responsible. (i)

592. Negligent management or navigation of vessels.-The liability of a shipowner for damage done by the negligent management of his vessel, causing a collision with another vessel, is, as we have seen, limited to the value of his vessel and freight at the time of such collision; and if the vessel instantly founders, he is not thereby exempt from liability. (j) The value is to be taken at the moment of collision. (k) Where the plaintiff, in consequence of the collision, has been obliged to avail himself of the assistance of persons who demand an exorbitant sum for salvage, and it is reasonable and prudent to resist this demand, and costs are incurred in resisting it, the plaintiff will be entitled to recover these costs, if he claims them in his declaration as part of the damages. (1) The proceedings in the Court of Admiralty in cases of collision, are, as we have seen, generally speaking, against the ship; and where both vessels are found to blame, and the Merchant Shipping Act does not preclude the recovery of damages, the shipowners can only recover a moiety of the damage which they have respectively sustained; and the same rule applies to actions by the owners of the cargoes on board the delinquent ships. (m) Nor can the one recover salvage from the other in such a case. (n)

593. Damages when the plaintiff is insured against loss, or has received full indemnity under a contract of insurance.—The recovery by the plaintiff of full compensation for the loss or damage his property has sustained under a contract with insurers, can not be given in evidence in reduction of damages in an action against the wrong-doer who has done the mischief. The plaintiff's contract with the underwriters or insurers is res inter alios acta, of which the defendant who is sued for negligence can not avail himself. If it were not so, the wrong-doer

(i) Adams v. Lancashire and Yorkshire Rwy., L. R., 4 C. B. 739. See Re United Service Co., L. R., 6 Ch. App. 212.

(j) Brown v. Wilkinson, 15 M. & W. 391.

(4) The Mary Caroline, 3 W. Rob. 101.
(1) Tindall v. Bell, 11 M. & W. 228.
(m) The Milan, ante.

(2) The Capella, L. R., I Adm. & Eccl. 356.

would take the benefit of a policy of insurance without paying the premium. (o) A plaintiff, however, who has received a full indemnity for his loss under a contract of insurance, and has afterwards recovered compensation in an action for damages against the wrong-doer, is not entitled to a double satisfaction, but is bound to hand over the damages to the insurer or underwriter, who is the person really damnified by the wrongful act. (p)

594. Damages recoverable by personal representatives in cases of death from negligence.—In all actions by the personal representatives of persons killed by negligence, brought under the 9 & 10 Vict. c. 93, to recover damages proportioned to the injury resulting from his death to the persons for whose benefit the action is brought, the jury, in assessing the damages, must confine themselves to injuries of which a pecuniary estimate may be made, and can not lawfully increase them by adding a solatium to those persons in respect of the mental sufferings occasioned by such death. They can not, therefore, lawfully inquire into the degree of mental anguish which each member of the family has suffered from the bereavement, and can not take into consideration the mental sufferings of a widow or child for the loss of a husband or parent. (2) It is clear, also, that the damages are not to be given merely in reference to the loss of any legal right against the deceased, which might have been turned to profit if he had lived, and which has been lost by his death, for the damages recovered are to be distributed amongst the relations only, and not to all individuals sustaining loss; and, accordingly, the practice has been to ascertain what benefit could have been claimed from the deceased, if he had lived, by the person seeking to obtain damages; and if the latter can show that he had a reasonable expectation of pecuniary benefit from the continuance of the life, and is also within the requisite degree of relationship, his claim may fairly be considered by the jury in assessing the amount of damages. (r) Thus the loss of the benefit of education and of the comforts and conveniences of life, and of an expected pecuniary provision, may, as we have seen, be taken

(0) Yates v. Whyte, 4 B. N. C. 283. (p) Post, ch. 22.

g) Blake v. Mid. Rail. Co., 21 Law J.,

Q. B. 233; 18 Q. B. 93.

S. E. Rail. Co., II Jur. 759.

Armsworth v.

(r) Franklin v. S. E. Rail. Co., 3 H. & N. 214.

into consideration; and it is for a jury to say, taking into account all the uncertainties and contingencies of the particular case, whether there was such a reasonable and well-founded expectation of pecuniary benefit as can be estimated in money, and so become the subject of damages. (s) No damages can be given in respect of funeral expenses and mourning, there being no language in the statute referring to these expenses and rendering them recoverable. (t)

(s) Pym v. Gt. North. Rail. Co., ante.

(t) Dalton v. S. E. Rail. Co., 4 C. B., N. S. 296 27 Law J., C. P. 227.

CHAPTER IX.

OF NEGLIGENCE ON THE PART OF BAILORS AND BAILEES

DETENTION AND LOSS OF CHATTELS BY BAILEES. (a)

(a) See further, as to bailments, Addison on Contracts ch. 12, 6th ed.

garnishment and by inter-
pleader.

634. Declarations against bailees for
loss of chattels.

635. Declarations against bailees for damage to chattels.

636. Plea of not guilty. 637. Plea of non-detinet.

638. Pleas of delivery to one of several joint plaintiffs.

639. Pleas denying the plaintiff's property.

640. Pleas justifying a detention under claim of lien.

641. Pleas of payment of money into

court.

642. Evidence-Proof on the part of
the plaintiff.

643. Evidence for the defense.
644. Proof of abandonment of posses-
ion before commencement of
action.

645. Damages recoverable-Orders for
delivery of the specific thing
detained.

646. Assessment of value.

647. Assessment of damages where the whole, or part of the goods have been delivered up after action.

648. Evidence in mitigation of damages.

SECTION I.

OF NEGLIGENCE ON THE PART OF BAILORS AND BAILEES— DETENTION AND LOSS OF CHATTELS BY BAILEES.

595. Of bailments of chattels.-"There are," observes. HOLT, C. J., "six sorts of bailments. The first is a bare, naked bailment of goods delivered by one man to another, to keep for the use of the bailor; and this I call a depositum, and it is that sort of bailment which is mentioned in Southcote's case. The second sort is, when goods or chattels that are useful are lent to a friend, gratis, to be used by him; and this is called commodatum, because the thing is to be restored in specie. The third sort is, when goods are left with the bailee, to be used by him for hire; this is called locatio et conductio, and the lender is called locator, and the borrower conductor. The fourth sort is, when goods or chattels are delivered to another as a pawn, to be a security to him for money borrowed of him by the bailor; and this is called, in Latin, vadium, and in English, a pawn or a pledge. The fifth sort is, when goods. or chattels are delivered to be carried, or something is to be done about them for a reward, to be paid by the person who delivers them to the bailee, who is to do the thing about them. (b) The sixth sort is, when there is a delivery of goods (b) If property is delivered on a con- tract for an equivalent in money, or some