ceived tending to show that the ship is in extraordinary peril he is bound to disclose, or the insurance effected by him is void; but is it reasonable to suppose that he enters into a warranty or submits to a condition which may avoid the policy with respect to a state of facts of which he can know nothing? We must further consider that this condition, in many cases, he may have no power to perform. Above all, if this condition was implied in time policies, their object might often be defeated, and the shipowner, acting with all diligence, and with the most perfect good faith, might altogether lose the indemnity for which he had bargained. Take as an example this policy, which is on the ship Susan, from the 25th of September, 1843, to the 24th of September, 1844. This vessel may have been employed on the South Sea fishery. It may have sailed from an island in the beginning of September, 1843, in all respects in a seaworthy state; but before the 25th day of that month may have encountered a gale of wind in which the sails may have been carried away, and other damage may have been sustained, and the master may have died of a malignant fever; but the ship touches at another island on the 26th of September, is completely re-equipped, takes on board a new master of * 421 competent skill, and prosecutes the adventure. * After wards, and before the 24th of September, 1844, the ship may be crushed between two icebergs. For any thing that appears on the record, such may have been the history of the Susan; and these facts are consistent with all the allegations in the declaration and in the plea. On this hypothesis the owner could not be indemnified, because the ship was not seaworthy when the risk was to commence, namely, on the 25th of September, 1843. If there is a condition - an implied condition that the ship must then be seaworthy, the policy neither attached then nor at any subsequent time, and the owner's only remedy would be to recover back the premium he had paid to the underwriters. Thus your Lordships are called upon to imply a condition which the parties could not have contemplated, which the assured had no power to perform, and which would effectually defeat the object of the contract. If the loss is caused by any culpable negligence of the shipowner, that may be a defence to the underwriter; but if the shipowner acts with good faith and reasonable diligence, it is surely much more according to the principles of insurance laws, and of common sense, that the risk of the ship not being seaworthy when the liability of the underwriter ought to begin, should be. cast upon him, who can easily indemnify himself by demanding an adequate premium for undertaking it. The only consideration pointed out for extending the implied. condition of seaworthiness to time policies, which made any impression upon me, is that it does extend to voyage policies on goods, although the assured can have no control over the repairs or equipment of the ship. But between the assured on goods and the underwriter there is the shipowner, who must be considered the agent of the assured, and he does undertake that the ship shall be tight, staunch, and strong, and every way fitted for the voyage. If this undertaking is broken, the merchant has no remedy against the underwriter, but he obtains a full indemnity 422 by suing the shipowner, and thus, either with the shipowner or the underwriter, the merchant is secure; so that the implied condition in his policy in no respect interferes with the object of insurance, or with the interests of commerce. * If your Lordships shall be pleased, on the motion of my noble and learned friend, to affirm the judgment of the Court of Exchequer Chamber in this case, it will be definitively established that, by the law of England, in a time policy such as this, no special circumstances being stated in the declaration or the plea respecting the situation or employment of the ship, there is not an implied condition that the ship should be seaworthy on the day when the policy ought to attach. The other questions which were debated at the Bar, and which were propounded to her Majesty's Judges, must be open for judicial consideration when they arise; but as your Lordships considered it expedient, for general information and for the advantage of the commercial world, that opinions should be given upon this very important subject, although they would not be binding, I think it right to say that, after great deliberation, I agree with those Judges who think that in a time policy there is no implied condition whatever as to seaworthiness. I never for a moment could concur in the notion that there was an implied warranty that the ship was seaworthy when it sailed on the voyage during which the policy attached. To lay down such a rule would, I think, be a very arbitrary and capricious proceeding, and, being wholly unsanctioned by usage or by judicial authority, would be legislating * instead of declaring the law. I likewise think that it would be very inexpedient legislation, as constant disputes would arise in construing the rule; for in fishing adventures, and where *423 ships are employed for years in trading in distant regions from port to port, the instances in which time policies are chiefly resorted to, there would be infinite difficulty in determining what was the commencement of the voyage during which the policy attaches. There would be a similar difficulty as to the terminus ad quem, in considering what the voyage truly is for which the ship must be fit. I have hesitated more upon the question whether, when a time policy is effected upon an outward-bound ship lying in a British port where the owner resides, a condition of seaworthiness is to be implied. This might be an exception to the general rule, that in time policies there is no implied warranty of seaworthiness, and it is free from some strong objections to the condition of seaworthiness being implied where the risk is to commence abroad. But in addition to the objection that as yet there has been no instance of an implied condition of seaworthiness in any time policy, and that the general rule is against such a condition, this would be a gratuitous and judge-made exception to the rule. I think it more expedient that the rule should remain without any exception, and, as at present advised, I should decide against the implied condition in all cases of time policies. There is a broad distinction which may always be observed between time policies and voyage policies; but when you come to subdivide time policies into such where the ship is in a British port and where the ship is abroad, and still more if the residence of the shipowner is to be inquired into and regarded, there would be a great danger of confusion being occasioned by the attempted classification. It is most desirable that in commercial transactions there should be plain rules to go by, without qualification or exception. Marine insurance has been found most beneficial, as hitherto regulated, and I am afraid of *424 injuring it by new refinements. I should be glad, there fore, that it should be understood, according to my present impression of the law, that there is in all voyage policies, but that there is not in any time policies, framed in the usual terms, a condition of seaworthiness implied. This rule, I believe, is adapted to the great bulk of the transactions of navigation and commerce, and when any case occurs to which it is not adapted, this may be easily provided for by express stipulation. My observations upon this last point I offer with the greatest diffidence, after what has fallen from my noble and learned friend, for whose opinion, on all subjects within the whole range of the law of England, I entertain the most sincere respect. I am glad to think that one important question of insurance law is now finally settled. Judgment of the Exchequer Chamber affirmed, with costs. Lords' Journals, June 3, 1853. *PADWICK v. WITTCOMB. 1853. June 23. DOE D. WILLIAM PADWICK, Plaintiff in error. Evidence. * 425 In an action of ejectment the question was, Whether certain lands, known as Kingston Pastures, were part of the manor of Hayling. The lands had been purchased from the Duke of Norfolk. An entry in a book found among the muniments of the Norfolk family was tendered in evidence, for the purpose of proving the affirmative of the issue. The entry, which was made by a steward of that family, spoke of an indenture which "recited a lease made by the Earl of Arundel," and which, tracing the lands into the possession of R. H., went on to say that "R. H. demiseth unto, &c. all those pasture grounds lying in Kingston, in the parish of Portsea, parcell of the manor of Hayling":Held, that this entry was a mere recital of some document which the writer had seen or heard of, and was not admissible either as an entry made by a person in the discharge of his duty, or as an entry against the interest of the person who made it, nor was it evidence of reputation to prove that the lands were parcel of the manor.1 : THIS was a writ of error on a judgment of the Court of Exchequer Chamber.2 Padwick was the plaintiff in an action of ejectment brought to recover possession of a piece of land just 1 See Sadlier v. Biggs, post 435, 446; Malcomson v. O'Dea, 10 H. L. Cas. 608. 2 6 Exch. 601. There were several other actions of the same sort. See Doe d. Padwick v. Skinner, 3 Exch. 84. outside the town, but within the parish, of Portsea, where a house had been built, of which Wittcomb had become the owner. The cause came on for trial at the spring assizes for the county of Dorset, in 1849, before Lord Denman, when it was proved that, some years ago, Padwick had purchased of the Duke of Norfolk the island and manor of Hayling, in the county of South*426 hampton. *This island is surrounded by the sea, and ap proached on one side by a bridge from a place called Langstone, near to Havant. Padwick claimed, as Lord of the Manor of Hayling, and contended that that manor stretched into Portsea, and that certain fields once known as Kingston Pastures were included within its limits. Wittcomb's house, the subject of the action, was alleged by the plaintiff to have been built on a part of these pastures. In 1604, King James I. granted to Thomas Earl of Arundel the manor of Hayling, with other hereditaments, in fee. In the third year of the reign of Charles I. an Act was passed annexing for ever to the earldom certain lands and hereditaments, of which the manor of Hayling was one. In the 6 Geo. 4 an Act was passed enabling the Duke of Norfolk (as the successor to the Earl of Arundel of the time of Charles I.) to sell the manor to Mr. Padwick. Receipts for rent between the years 1616 and 1622, signed by "Robert Spiller," who appeared to have acted at that time as agent or steward for Lady Ann Countess Dowager of Arundel, but who had plainly been connected with the management of the property for many previous years, were put in; and, with the view of showing that Kingston Pastures were parcel of the manor of Hayling, an entry from one of his books, found among the muniments of the Norfolk family, was proposed to be read. The entry was in the following terms:-. "Tho. Stoughton, by Indenture, bearing date 14° die Junii, Ano. 12 R. Eliz. resiting one Lease made by Henry Earle of Arundell, dated 9o Januarii, Ano. 1° Eliz., unto John Lo. Lumley, for 100 yeares, and one other Lease made by the said Lo. Lumley unto the said Stoughton, and one Humfrey Lloyde, declaring then the said Lloyde to be dead, and hymselfe to be sole seazed by surviver shipp, for and in consideration of the summe of lxxv, paid *427 unto the said Lo. Lumley by Raphe Henslowe, Gent., * demiseth and graunteth unto hym all those pasture groundes lyinge in Kingston in the Pishe of Portzee, pcell. of the manno of Haylinge, contayning 22 acres, &c. To have and to holde from |