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“ to forbear giving his vote for Mr. Morton, at the Abingdon
As to the second objection: The loan and note is all colour and device: It is clearly a gift; and the verdict is rightly taken (e). But suppose it taken wrong, by mistake of the officer, or the counsel (for the jury were certainly not mistaken; they gave a general verdict)-Will the Court grant a new trial; unless, upon the whole, the verdict was contrary to justice? They would rather amend the record, by putting the verdict on the right count.
(d) Say. R. 291, and Willes, 425.
(e) So if I lay a wager of five guineas with A. that he does not vote for me, it is a bribe; Anon. Loft, 552. A wager between two voters, as to the event of an
election, is illegal; Allen v. Hearne, 1 T. R. 56. A declaration stating, that “the defendant did receive a gift or reward," without specifying what he did receive, is bad; Davy v. Baker, 4 Burr. 2471.
STEVENSON v. Snow.
S. C. 3 Burr. 1237. If an insurance THIS case (Vide Trin. Vacation last, Page 315) was argued be made on two by distinct risks,
Wedderburn for the defendant. This usage is no law; not and one of them is not run, insur- the custom of merchants, but merely a voluntary usage.-The er shall refund a npemi
la premium was paid upon a valuable consideration, which aprateable part of Pemum was paid upon premium.
pears upon the face of the policy; and whether adequate or not, it is not the part of this Court to consider. The contract is one entire contract, and cannot by the rules of law be apportioned. The ship sailed from London to Portsmouth, at the risk of the insurer. There is no fault in the insurer, The insured warranted to depart with convoy, and departed
without it. He shall not be admitted to say, “because I have [ *
J * broke my warranty, you shall return part of my premium,
which you otherwise had a right to retain." Upon the principles of equity, the insurance was upon the particular voyage, and on the whole of that voyage. The insured shall not take the less hazardous part of the voyage upon himself, and throw the more hazardous upon the insurer. This would be substituting a different voyage instead of that contracted for. It has been determined, that if a ship sets out, and makes a deviation, or returns back, the whole premium belongs to the insurer. This is equal to the present case. The voyage was
begun under the contract, and at Portsmouth the insured re- Stevenson nounced it.
Yates, for plaintiff.-The reason of the strictness of law with respect to the entirety of contracts, is, to prevent a multiplicity of actions upon the same contract. With respect to their operation, every day shews they are divisible, as in rents, &c., which may be apportioned. The insured intended to insure to Halifax. Will you make him pay the same premium for not going under insurance, as if he had gone? The warranty here is no covenant, but merely a condition. There is no contract upon which equity operates more efficaciously, than upon insurances. If an insurance is made to a mere broker, the cestuy que trust may bring his action. This case is directly within two foreign ordinances, Magens, I. 190.II. 266.
Per Cur. Lord MANSFIELD, C. J.--I had not the least doubt at the trial, nor have now. These are contracts de jure gentium, and depend not on the legal import of the terms in the contract, but on mere equity. If the insurer runs no risk, he shall not have any premium. It has been determined, that if the insured departs wholly without convoy, having articled to depart with, the whole premium shall be returned, because no risk is then begun. So in proportion. The reason is, because there is no consideration to found a contract upon. It is here endeavoured to be distinguished, because there is an inception of the voyage, and part of the risk is run. There is no force in that objection. Here are plainly two distinct parts of the contract, Ist, a voyage to Portsmouth, 2dly, from thence to Halifax. These were both * in the view of the parties. The [ *320 ] second depended on a condition, that the ship should depart with convoy; which not being performed, the contract is at an end. It is just the same in reason, in case one part of the risk be not run, as if neither was.
DENNISON, J.-Same opinion. It is the most equitable construction in the world.
FOSTER, J.-Same opinion. There was no consideration for the remainder of the premium when no risk was run.
Wilmot, J.—Though this usage is not the custom of merchants, or strictly law merchant, yet it is a strong evidence of the equity of the thing. Where a risk is once begun, if it be one entire risk, the insured cannot recover back any part of the premium, whether the voyage be totally completed or no. But here are two distinct risks in the contemplation of the parties.
Per totam Curiam. Let the postea be delivered to the plaintiff ($).
(f) See the observations on this case in Rothwell v. Cooke, 1 Bos. & P. 172: there it was held, that, on an insurance on a ship at and from Hull to Bilboa, warranted to depart from England with convoy, the voyages from Hull to Portsmouth,
where she meets with convoy, and from thence to Bilboa, may be considered as distinct; and in case of a loss between the two latter places (she sailing without proper convoy) an apportionment and return of premium may be dernanded. These
cases appear to have been so determined, no apportionment, nor return of premium; on the ground of there being two distinct Loraine v. Thomlinson, 2 Doug, 585. On risks, viz. one from the port of lading to an insurance at and from Jamaica to L., the place of joining convoy, the other warranted to sail before Aug. 1st, and the from the latter place to the port of dis ship did not sail till September, whereby charge. But where there is only one en the insurers were discharged, and was tire risk, the rule is, that when such risk then lost; it was held to be one entire has not commenced from any cause what- risk, and that, as there could be no apporever, there the premium shall be return- tionment (in the absence of evidence of ed: when it has once commenced, then usage), the assured could recover no part there shall be no apportionment or return of the premium on the voyage from Jaof premium. See Tyrie v. Fletcher, 2 Cowp. maica; Meyer v. Gregson, Park's Ins. 588 666; Bermon v. Woodridge, 2 Doug. 781. (ed. 1917); Marsh. Îns. 658 (ed. 1808), So where a ship was insured for twelve S. C. But in a similar case, there being months, at so much per month, the con- evidence of such usage, the assured recotract was considered to be entire for one vered back the premium, deducting onewhole year; and though she was lost at half per cent. for the risk at Jamaica; the end of two months, and the risk then Long v. Allen, Park's Ins. 589; Marsh. ceased, it was held that there should be Ins. 660.
Morris v. Harwood and Pugh. In trover, evi- THIS case (Vide Trin. Vacation, page 312,) came on to be dence may be argued. And per MansFIELD, C. J., DENNISON and Wilmot, given to shew I
e of Js. (absente FOSTER, J.,)-The only question is, whether a suing out the party at Nisi prius is to be precluded from going into the real writ, so as to merits of the case, by this legal fiction of relation. This is a avoid the relation to the first
matter which lies merely in evidence; which may be different day of the from the case, where all lies upon the face of the record. In Term. a prosecution on the game law, before Wilmot, J., on the
western circuit, it appeared, that the writ was not sued out till after the time of limitation, though, by relation back to the first
day of the Term, it would have been within the time; plaintiff [ *321 ] nonsuited. We think there is no doubt, but that the *evi
dence of the real time of suing out the writ may be given in evidence(g).
Postea delivered to plaintiff. N. B. As the judgment against Pugh was by default, it was a doubt whether Harwood could have had costs, even if the verdict had been found in his favour; as not being within the statute of Car. 2(h).
(8) Rhodes v. Gibbs, 5 Esp. 163, acc. See A. G. v. Brown, Forrest, 110; Price v. Hundred of Chewton, 1 P. Wms. 437, and the note of Mr. Serj. Williams to the case of Mellor v. Walker, 2 Wms. Saund. 1, n. (1), where all the authorities on this point are collected; Tidd's Pr. 24, 165, 753, (7th ed.) and Johnson v. Smith, ante, 207, 215.
(h) See Shrubb v. Barrett, 2 H. Bla. 28; Noke v. Ingham, 1 Wils. 89; Day v. Hanks, 3 T. R. 656. Where, in an action of trover, two of several defendants were acquitted on the trial, they were held not to be entitled to costs, under 8 & 9 W. 3, c. 9, s. 1, which gives costs to defendants acquitted in trespass; Poole v. Boulton, Barnes, 139 (Svo, ed.).
Tonson 0. Collins. THIS case (vide Trin. 1 Geo. 3, page 301,) was again argued Qu. Whether by Blackstone, for the plaintiff.
exists in authors, The question is, whether the damage occasioned by the de- in fendant is, or is not, accompanied with injury. If so, he is stat. 8 Anne. liable to answer that damage: if otherwise, not liable. All injury being a privation of right, this brings it to a question of right. I contend, that by law, (independent of stat. 8 Anne), “Every author hath in himself the sole exclusive right of mul“ tiplying the copies of his literary productions;" which right is, by assignment, now vested in the plaintiffs. I shall consider this right,-1. As founded in reason. And therein, 1st. The natural foundation and commencement of property; viz. by invention and labour. Both exerted in a literary production; the present work is found to be an original composition. Original (ex vi termini) implies invention; as composition does industry and labour. Property may with equal reason be acquired by mental, as by bodily labour. This, the exertion of animal faculties, and common both to us and the brute creation, in their nests, caves, &c.: that, the exertion of the rational powers, by which we are denominated Men; and which therefore have as fair a title to confer property, as the other. The right of occupancy is referred to this original, of bodily labour. Locke on Go*vernment, Part 2, c. 5, same right of [ *322 ] occupancy in ideas, as in a field, a tree, or a stone. Both at first owing to good fortune: to casually lighting on a vacant possession, in the one; to a happy texture of the understanding, in the other. Both useless to the proprietor, unless cultivated and improved: neither liable to be taken from him, but by his own consent. 2dly. The end of establishing and protecting property; viz. its common utility to mankind. Agriculture and the Arts are supported by vesting a property in whatever a man's industry can produce. Without such a law, no man would build, plough or sow, weave, &c. Science equally encouraged by protecting the produce of genius and application. Without some advantage proposed, few would read, study, compose, or publish. This advantage can only arise from the profits of publication: and those profits can only be secured, by vesting in the author an exclusive right of publication. Universal law has established a permanent, perpetual property in bodily acquisitions: and reason requires, that the property in mental acquisitions should be equally permanent. 3dly. The one essential requisite of every subject of property is, that it must be a thing of value. Its value consists in its capacity of being exchanged for other valuable things; and if I can exchange it, it must be mine previous to the exchange: for, nemo dat quod non habet. Whatever therefore hath a value is the subject of property. For it would be absurd and unjust in any system of law, not to secure the enjoyment of that, by which (when lawfully acquired) a man may make a profit or advantage.
She is the court of
led to the
And it matters not, whether that value be intrinsic, or merely capricious. A man hath a property in an ape or a popinjay, and trespass lies for taking them away: Bro. Trespass, pl. 407 (i). So, every literary composition hath a value; which is measured by the sale it obtains. Hoyle on Whist has been protected by the Court of Chancery, and considered as a saleable book; it is equally entitled to protection as Newton's Principia. Notwithstanding, therefore, Mr. Thurlow's assertion, I must maintain, that “ A literary composition, as it lies in the au] “ * thor's mind, before it is substantiated by reducing it into
“ writing," has the essential requisites to make it the subject of
(i) See also 4 Burr. 2344; 12 H. 8, 3. Terence in his defence says:-
" Colax Menandri est: in eå est parasitus was not accused of having stolen his Co
Personas transtulisse in Eunuchum suam
Ex Græca: sed eas fabulas factas prius
Latinas scisse sese, id vero pernegat.
Nullum est jam dictum, quod non dictum sit