This writ of error brings up for review a judgment against the Orient Mutual Insurance Company of New York, upon a policy whereby that company insured the defendants in error in the sum of $5,000 on the steamer Alice, of the agreed valuation of $27,000, against perils 'of the seas, lakes, rivers, canals, fires, and jettisons that should come to the damage of said vessel or any part thereof.' The policy provided, among other things, that the company should be free from all claim for loss or damage 'arising from or caused by * * * barratry, * * * or occasioned by the bursting of boilers, the collapsing of flues, explosion of gunpowder, the derangement or breaking the engine or machinery, or any consequence resulting therefrom, unless the same be caused by unavoidable external violence;' that there should be 'no abandonment as for a total loss on account of said vessel grounding or being otherwise detained, or in consequence of any loss or damage, unless the injury sustained be equivalent to fifty per centum of the agreed value in this policy; that the aforesaid vessel is, and shall be at all times during the continuance of this policy, tight and sound, sufficiently found in tackle and appurtenance thereto, competently provided with masters, officers, and crew, and in all things and means for the safe employment thereof;' and that 'in no case whatever shall the assured have the right to abandon until it shall be ascertained that the recovery and repairs of said vessel are impracticable, nor sell the wreck, or any portion thereof, without the consent of the company.' The insured sued as for a total loss arising from one of the perils specified in the policy. The company pleaded non assumpsit and payment, with leave to give in evidence the matters set forth in its affidavit of defense, which was adopted as a special plea. Those matters will sufficiently appear from the facts which will now be stated.
According to the bill of exceptions, there was evidence in behalf of the plaintiffs tending to show that, without willfulness or design on the part of her captain, the vessel was carried, April 28, 1880,-before the expiration of the policy,-over the falls of the Ohio river, at Louisville, Kentucky, and sunk, receiving damage in a sum equal to 50 per cent. of her agreed value; and that on the eighteenth of May, 1880, it being apparently impracticable to float her off and repair her, the vessel was abandoned to the insurers as a total loss, and the sum due under the policy demanded.