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the contempt being every day increasing, the Court will dis- The King pense with their rule.—However, it being then objected, that wheelek
the defendant was not personally served with notice of this • v '>
motion, *but only that it was put under his chamber door, the [ *312 ] Court (for that reason only) refused the motion (y). nary cases, and
personal service (g) See I Tidd's Pr. S18 (ed. 1821); S. T. Edwards, pott, 637. of notice.
SITTINGS AFTER TERM.—MIDDLESEX.
S.C.3 Burr. 1241.
XROVER for a mare, which Pugh hired of the plaintiff, and «»• " piamtiff sold to Harwood, the other defendant, on the S 1st of March. ^TMTM; The declaration was of Easter Term, which began the 8th of the conversion u April: and no evidence was given of a demand from the plain- aft« *« first tiff to Harwood, till the 9th of April; whereupon Norton, for K^thedTM the defendant, insisted on a nonsuit; there being no conver- ciaration u desion till demand and refusal, as the mare still continued in the Uvered, though possession of the defendant. The plaintiff then proved, that |^°TMf^ue the writ was not sued out or served till the 2d of May, long out the writ after the demand and refusal. Lord Mansfield at first inclined, that the detention before action brought, coupled with the demand and refusal after, amounted to a conversion ab initio. However, a verdict was taken for the plaintiff, subject to the opinion of B. R. whether the verdict should not, in respect of costs, be entered, as if it had been found for the defendant, the mare being agreed to be delivered immediately.
N. B. It was agreed, if the plaintiff had declared on a special day in the Term; or had entered a memorandum on the roll, that the action was brought on such a day in the Term, it would have cured this defect.
[S. C. pott, 320.]
Ross v. Bradshaw.
ACTION on policy of insurance on the life of Sir James Ross, Concealment of for one year, commencing 22d of October, 1759, with warranty circumstances from the insured, that Sir James's was then a good life. Sir anceno'tsofiiMi, James had received a wound, at the "battle of La Feldt in r »313 j 1747, in his loins, which had occasioned a partial relaxation or iftheiifebewarpalsy, so that he could not retain his urine or faeces: which rap^d goo^i •» circumstance was not mentioned to the insurers at the time of '^n i^^^e. the insurance. At eleven months' end, Sir James died of a malignant fever.
Lord Mansfield gave it in charge to the jury, that there was a distinction between a common insurance, and one with
warranty. That the concealment of many circumstances will vitiate the first, which will not vitiate the second. Because in the second, the insured takes it upon him to prove, in case of death, that cestui/que vie was in a general good state of health. And it appearing by many witnesses, that the consequences of Sir James's wound were inconvenient only, and not dangerous to his life at the time of the insurance, the jury found a verdict for the plaintiff^).
(z) This case is more fully reported in Marsh. Ins. 770 (ed. 1S08), Park's Ins. 649 (ed. 1817). There Lord Mansfield is reported to have said—" Where an insurance is upon a representation, every material circumstance should be mentioned; such as age, way of life, ffcc. But where there is a warranty, then nothing need be told; but it must, in general, be proved, if litigated, that the life was in facta good one: and so it may be, though he had a particular infirmity. The only question is, whether he was in a reasonably good state of health, and such a life as ought to be insured on common terms." So where a policy contained a warranty, that A. B. was in good health, when the policy was underwritten ; and it appeared in evidence, that though he was troubled with spasms and cramps from violent fits of the gout, he was in as good a state of health when that policy was underwritten, as he had
etijoyed for a long time; Ld. Mansfield told the jury, that " such a warranty could never mean, that a man has not in him the seeds of some disorder. We are all born with the seeds of mortality in us. A man, subject to the gout, is a life capable of being insured, if he has no sickness at the time to make it an unequal contract." Verdict for the plaintiff; Willes v. Poole, Id. 771, III. 650. If there be no warranty, the insurer takes the risk upon himself; Staekpool v. Simon, Marsh. Ids. 772, Park's Ins. 648. Stat. 14 G. 3, c 48, provides, that no life insurance shall be made, where the insured has no interest; and that the insured shall not recover more than his interest. See Tuiswell v. Ankerstein, Peake's N. P. C. ; GodsaU v. Boldero, 9 East, 72. As to concealments in policies of insurance, see Hodgson v. Richardson, post, 463; Carter v. Boehmt, post, 593.
Berens V. Rucker.
ACTION on a policy of insurance, dated 21st July, 1758, on a Dutch ship called the Tyd, and its cargo, at and from St. Eustatius to Amsterdam;—warranted a Dutch ship and the goods Dutch property, and not laden in any French port in the West Indies. The cargo was worth 12,000/., and was insured at fifteen guineas per cent.; for, though the common premium before the French war was but three guineas per cent., yet it was thus advanced, by the number of captures, which the English had made of neutral vessels, on suspicion of illicit trade, and the detention of those vessels by the proceedings in the Courts of Admiralty. The defendant underwrote 82/. of the plaintiffs, for a premium of 12/. 18*. 3id.
In May, 1758, the ship was at St. Eustatius taking in her cargo, which consisted of sugar and indigo, and other French commodities, which were put on board her, partly out of barks from sea, partly from the shore of the island. The 18th of June, 1758, she sailed on her voyage: 27th of June was taken by an English privateer: 28th June was carried into Portsmouth. On the 1st of August, the sailors were examined upon the standing interrogatories, prescribed by stat. 29 G. 2, c. 34, and the captain entered his claim in the Admiralty Court.
*In October, 1758, the claimants were cited to specify, what
part of the goods were taken from the shore of St. Eustatius, and what from the barks. Citation continued from Court to Court, till February, 1759. The 24th of February, 1759, interlocutory decree was pronounced for the contumacy of the claimants, in not specifying what parts of the cargo were so taken, and that therefore the goods should be presumed French property.
Appeal to Lords Commissioners of Prizes. Many causes stood before it. The market was very high. The cargo in part was perishable. Wherefore the agent of the owners agreed with the captors, to give them 800/. and costs, to obtain a reversal of the sentence. The reversal was had by consent; and in order to give costs to the captors, it was decreed by consent, that there was a sufficient cause for seizure; and thereupon costs were decreed to the captors; and restitution of the cargo to the owners was also ordered.
The ship, when restored, proceeded to Amsterdam, and arrived there the 11th of August, and the Chamber of Insurances in that city settled the average of the plaintiff, towards the loss and the expences, at 14/. 3s. 8d., occasioned by the capture, detention, and litigation. And for this sum the action was brought.
Lord Mansfield.—The first question is, whether this was a just capture. Both sentences are out of the case, being done and undone by consent. The capture was certainly unjust. The pretence was, that part of this cargo was put on board off St. Eustatius, out of barks, supposed to come from the French islands, and not loaded immediately from the shore. This is now a settled point by the Lords of Appeal, to be the same thing as if they had been landed on the Dutch shore, and then put on board afterwards; in which case there is no colour for seizure. The rule is, that if a neutral ship trades to a French colony, with all the privileges of a French ship, and is thus adopted and naturalized, it must be looked upon as a French ship, and is liable to be taken. Not so, if she has only French produce on board, without taking it in at a French port: for it may be purchased of neutrals.— * Second Question, Whether the owners have acted bond fide [ *315 f and uprightly, as men acting for themselves, and upon a reasonable footing; so as to make the expences of this compromise a loss to be borne by the insurers. The Judge of the Admiralty's order to specify was illegal; contrary to the marine law and the act of Parliament, which is only declaratory of the marine law. Because, if they had specified, it could be of no consequence, according to the rule I before mentioned. Yet the captors were however in possession of a sentence, though an unjust one. And a Court of appeal cannot, or seldom does, upon a reversal give costs or damages, which have accrued subsequent to the original sentence: For those damages ai ise from the fault of the judge, not of the parties. Under all these circumstances therefore, the owners did wisely to offer a compromise. The cargo was worth 12,000/. The appeal was ha
Trading to a French port as an adopted ship makes a neutral ship lawful prize, not barely having French produce on board.
zarclous, the delay certain. Van de Poll, the Dutch deputy in England, negotiated the compromise. The Chamber of Commerce at Amsterdam ratified and thought it reasonable. Had the whole sentence been totally reversed, the costs must have sat heavy on the owners. I therefore think the insurers liable to answer this average loss, which was submitted to, to avoid a total one. Verdict for the plaintiff(a).
(a) This case seems to be the only one, in which this point has been expressly determined; but it was cited without contradiction in Tyson v. Gurney, 3 T. R. 479. By 33 G. 3, c. 66, s. 37, ike. (continued by 43 G. 3, c. 160, s. 33, &c.) all contracts to ransom vessels captured are declared absolutely void: and therefore, where, after
an illegal sentence of condemnation, the owner re-purchased his ship, which bad been captured, it was held, that he could not recover the money so paid from the underwriter; Havelock v. Rock-wood, 8 T. R. 268, where Berent v. Rucker is also cited.
Qu. Whether any and what part of the premium on a policy of insurance must be returned, if the policy be given up and vacated?
Stevenson V. Snow.
S. C. 3 Burr. 1237.
A HE ship the Earl of Loudon was underwrote at five guineas per cent, at and from London to Halifax in Nova Scotia, and warranted to depart with convoy (b) for the voyage, that is, either the Halifax or Louisburgh convoy. The convoy then lay at Spithead. The ship sailed to Spithead, and found the convoy was gone, and sailed to Plymouth after it, but missed it and completed her voyage without it. The insured, before any account came that the ship had sailed from Portsmouth, gave notice to the underwriter, delivered back the policy, and desired him, either to underwrite at the long premium (i. e. ten guineas per cent.; proviso, that if she departed with convoy, then that two guineas should be returned,) or to return back a proportionable part of the premium. The defendant, the underwriter, refused to do either; and the plaintiff brought this action, to recover back such proportionable part. [ *316 ] * It was proved for the plaintiff, that it was usual to return in such cases a part of the premium, but not how much. And Morton cited Stra. 1265, to the same purpose. The premium from London to Portsmouth was then one and a half per cent.
Norton for the defendant, insisted, that this was one entire contract;—And that you shall not split it upon equitable grounds, according to the quantity of the risque run, which would be endless, after the voyage is once begun.
Lord Mansfield.—Policies of insurance are more governed by principles of equity, than any thing else. It has been usual, even where policies are vacated by fraud, to return part of the premium. How the law in that case would be, I will not determine till it comes before me. But so the fact stands, which is very strong. If it be right to make a return, we can easily settle the proportion, by the quantum of the premium then payable in voyages from London to Portsmouth.
(6) It appears from the report in 3 Burr. "that it was warranted to depart with convoy from Portsmouth for the voyage; that when the ship arrived there, the con
voy was gone:" and it seems the report in Burr, is more correct; sec 2 Cowp. 669, and 2 Doug. 787.
Verdict for 31. 10*., subject to the opinion of King's Bench on the foregoing case, and this question—Whether the plaintiff is entitled to recover any thing, and what, against the defendant?
[See pott, 318, S.C.]
Gulliver V. Wagstaff.
rvULE granted, and afterwards made absolute, that service service of a deof a declaration in ejectment, at the house of a tenant in pos- ciaration in session, on a day past, might be good service; and that service lio^on'a'aav of the first rule, at the house of the said tenant, should be good plst, made good service (a). Vide Trin. 1 Geo. 3, Pag. 290. service.
(a) Douglau v. , 1 Stra. 575; Collint v. Dunch, 2 Burr. 1116; Tyrrell v. Demi, Id. 1181; Buckle v. Roe, 1 N. R. 293, ace. It must be shewn in the affidavit, on which the rule is moved for, that the deponent made diligent inquiry after the tenant, but was not able to find him, and
that he verily believes he has absconded
Sulston v. Norton.
S. C. 3 Burr. 1235.
ACTION on the statute (5) for bribery at the late election for Tamworth;—Five counts in the declaration. Jury found a general verdict for the plaintiff. He took it on the first count only; viz. for corrupting one Moor, by giving him 51. 10*. to vote for Lord Villiers and Sir Robert Burdett.
Caldecot moved for a new trial, on a suggestion, 1. That the person bribed did not vote for the candidate in whose behalf the bribe was given; therefore was not corrupted. 2. That Moor gave a note for the money; which it was agreed should be destroyed, in case he voted as desired, and a counter-note was given for that purpose. Therefore it was a loan, and not a gift; and the verdict should have been taken on the second count for a corrupt loan, and not on the first for a corrupt gift.
But per Lord Mansfield, C. J., Foster and Wilmot, Js. (absente Dennison, J.) The first objection has been * already solemnly determined. "Bush and Rawlins (c), Trin. 29 Geo. "2, B. R. action for corrupting one Harvey, by giving him 211.
(6) 2 G. 2, c. 24, s. 7.—See also, 18 son v. Fisher, post, 664; Sutton v. Bishop, O. 2,cl8;49-G. 3,c. 118; and R. v. Pitt, post, 665. pott, 380; Comber. Pitt, post, 523; Dick- (c) Say. R. 289.