9. A modus of 4d. upon every orchard, in lieu of tithe of all fruit-trees within the parish. N. B. This was, lastly, overruled; because it is a modus of one tithe in lieu of another. Had it been in lieu of all orchards, or fruit growing in all orchards, it might have been good. TORRIANO v. LEGGE. *The Court, upon the whole, decreed an account for all the [ 422 ] tithes in kind, without directing any issue to try the existence of any one of them (g). Sewel, Hussey, Blackstone, Feilde, for the plaintiff. De Grey, Harvey, Bicknell, for the defendant. (g) See Pyke v. Dowling, post, 1257, and cases there referred to. IN THE KING'S BENCH. BOND v. SEAWELL. S. C. Ante, 407. THIS case was again argued by Serjeant Hewitt, for the plaintiff, and Thurlow, for the defendant. The Serjeant took a difference between the attestation of the act itself of making a will, to which three witnesses are clearly requisite by the statute, and the attestation that such a sheet is part of that act, to which one witness is (by common law) sufficient. And he cited Stonehouse and Evelyn, 3 P. Wms. 254. That, though by the statute, the testator must sign the will, yet the proof of his signing it may be by one witness only. Nothing else material was added to the former arguments. [S. C. Post, 454.] GLOVER V. BLACK. (Ante, 399, 405.) extend to a re LORD MANSFIELD, C. J., delivered the judgment of the An insurance on Court. At the trial of this cause, and since, I have leaned as goods does not much as possible to support the insurance. My reason was, spondentia inbecause it appeared to have been transacted in this form, not terest. through any design, but merely by a slip of a boy, the insurance broker's clerk, in not inserting the word "respondentia," according to his orders. To be sure, the statute 19 Geo. 2, (which contains a clause to regulate insurances on *money lent [ *423 ] on respondentia in voyages to the East Indies) does consider the owner of the goods as having a right to insure only for the value of the surplus not covered by the respondentia bond: and, to many purposes, the respondentia creditor has a lien on the goods (h). But we are satisfied, that this act did not GLOVER V. BLACK. mean to alter the law of insurances, so far as regards the form of policies: it only meant to prevent wagering policies. The act itself describes the insurance made by the creditor to be on the money lent: it refers to the old manner of insurance. Now, bottomry and respondentia have in practice always been considered as a particular species of insurance, and have taken a peculiar denomination. All the forms express the insurance to be on bottomry or respondentia. Nor is there a dictum, that respondentia can be insured under the word goods. It would be very dangerous therefore to establish a precedent to the contrary, since the consequence may be bad, and introductive of frauds, though we cannot now foresee the particular mode of them. The ground of our determination is, that, by the custom of merchants, respondentia is always insured under a special denomination. But we by no means say, that under an insurance on goods at large a man may not prove his interest by a mortgage, or other special lien (i). (i) "The lien which a factor, to whom a balance is due, has upon the goods of his principal, comes under the exception taken by the Court; and an insurance upon such an interest seems to have been admitted, if not absolutely held, to be good in the case of Godin v. London Assurance Comp., ante, 103;" Park's Ins. 14 (ed. 1817).— Plaintiff must be nonsuited. Money expended by the captain for the use of the ship, and for which respondentia interest has been charged, may be recovered on an insurance on "goods, specie, and effects;" there being evidence of express usage to sanction such a determination: Gregory v. Christie, Park's Ins. Ib.; Marsh. Ins. 118 (ed. 1808). Wharfingers in entitled to of barges fastened to their wharfs. STEPHEN v. COSTER. THIS case was again argued by Norton, Solicitor-General, for the plaintiff. The order of council must be considered as a recent, cotemporary, exposition of the statute. The malt in question into lighters out is subject to pay wharfage, both within the letter and the spirit of the statute, and order of council. 1. Within the letter; for it was unloaded at the wharf. A barge, which lies close to and fastened to the wharf, is always said to lie at such a wharf. It is allowed, that duty is payable for so much as was brought to land; why? because, unloaded at the wharf. [ *424 ] That which was water-borne is equally liable, for the barge continued in the same station. Either, therefore, the first was not liable at all, or both are liable; either none was unloaded at the wharf, or the whole was unloaded there. 2. It is within the spirit of the law. The wharfinger is obliged by the statute to give up his private property to the use of the public. He is, therefore, in justice entitled to his wharfage. The defendant has the full benefit of the wharf, and ought to pay for it. The present practice is a notorious fraud; it puts the wharfinger totally in the power of the barge-master. He may justify coming there for the purpose of unloading; and yet, by not landing any goods, evade all the wharfage. As to the incon venience pretended, that by this claim the goods are subjected to double wharfage, if landed at another wharf; that depends upon the owner's choice. If he sees it most convenient for himself, he will land them here; if otherwise, elsewhere. It was said, that an action of trespass would lie for fastening to the wharf. I deny it. You might justify in an action of trespass, by saying you fastened for the purpose of unloading; and this would be a sufficient bar. STEPHEN v. COSTER. Blackstone, for the defendant.-So far as the order of council is warranted by the statute, it is binding: if in any respect it exceeds it, it is unwarranted, and of no validity. Their discretion extends only to the quantum of the rate to be imposed, not to determine the act, by which such rate may become payable. The statute makes it lawful for all men to load or unload at the plaintiff's wharf, paying him a recompense for the same; which at common law they could not do. At the same time, to prevent a bad use of this general licence, it makes it unlawful to lie in the river before the wharf longer than is necessary for such loading or unloading; which at common law they might have done. In the present case, the * [*425 ] plaintiff is not entitled to the recompence claimed; because the fact stated is not an unloading at the wharf. 1. Not within the letter: for, at must be equivalent to, upon the wharf. The thing permitted by the statute is something not lawful to do by common law, viz. landing goods upon another's soil: not unloading them near to, or on the side of his soil; which was clearly lawful at common law, and therefore not the thing made lawful by the statute, and ordered to be paid for. 2. Not within the reason of the statute. In reason, the wharfinger is entitled to a recompence in proportion only to the use made of his soil, by the quantity of goods actually put on land. It is objected, that this practice is fraudulent, and inconvenient to the wharfinger. The fact is disputable; but, granting it both unfair and prejudicial, this remedy is unjust and inadequate. Because the defendant stays longer than is necessary for the goods he does land, therefore he shall pay wharfage for the goods he does not land. The injury, if any, must be measured by the space the barge occupies, and the time for which it continues. The remedy now claimed depends on the quantity of the goods sent off in lighters, and the rate at which they are prized in the order of council. One is not commensurate to the other. If this is equivalent to loading or unloading at (i. e. upon) the wharf; there will be two duties to be paid even here, besides what may be paid at other wharfs, where they actually land: the rate inwards, for unlading goods out of the barge; and the rate outwards, for lading them into the lighter. Which of these rates is the plaintiff entitled to? He is as much entitled to both, as either. The true remedy is by an action on the case for the special injury, if any be really suffered. Perhaps too an action of trespass might be maintained for unnecessarily fastening to the wharf; in which case the permission given by the statute ceases: and though the barge STEPHEN ย. COSTER. master has originally a right to fasten there; yet, if he makes a tortious use of that permission, which the law allows him, he will become a trespasser ab initio. Afterwards, in the same Term, Lord MANSFIELD, C. J., de[ *426 ] livered the opinion of the Court.-* Some cases are in themselves so plain, that reasoning upon them only serves to make them doubtful. Of this nature is the present. To go by steps: the wharfingers do not contend, that there is any meaning in the words, brought unto, in the order of council, they not being found in the act of Parliament: nor that any duty is payable for such part of the cargo as is not unladed at all: nor that any duty is payable for putting goods on board lighters in the river, when the barge is detached from the wharf. The particular circumstance on which the plaintiff founds his claim is, that the barge was fastened to the wharf. If any duty is due at all, it must be by the act of Parliament. The act gives a duty for the wharfage and cranage, the nature of which duty is, for laying goods upon the wharf. It differs specifically from a duty for anchorage or mooring. In common speech, loading or unloading at a wharf signifies from, or upon, the wharf. We are extremely clear, that this case is not within the act. The advantage of mooring is different from that of unlading. And for the unlading, another duty is payable if the goods are sent off to other wharfs. It is said, here is an injury to the wharfinger, in making use of his piles for mooring. But the remedy is left the same as before the act; besides that the practice, if unnecessary, is particularly forbidden by the statute. An action on the case, or perhaps other remedies, will lie for the wharfinger: or he may cut off the cordage by which they fasten. But supposing it an inconvenience, and a casus omissus, a Court of law cannot aid it by construction, where the statute, which gives the duty, has not thought proper to express it. Neither, as was observed at the bar, is it in the discretion of the Council to aid it. Their power relates only to the rates themselves, not to the thing rateable. The plaintiff must be nonsuited (k). (k) This case was recognized in Syeds v. Hay, 4 T. R. 260; from which case it also appears, that, in the port of London, a captain of a vessel is liable to a demand for anchorage and moorage, when wharfage is not paid for landing goods. See, also, Bolt v. Stennett, 8 T. R. 606; and post, 581. [ 427 ] Action on the case lies for suing ont a ma BROWN v. CHAPMAN. ERROR from the Common Pleas. This was an action on the case, for maliciously suing out a commission of bankruptcy. On not guilty pleaded, verdict for the plaintiff. Defendant moved in arrest of judgment, that the action did not lie; but ruptcy, notwith the Court of Common Pleas over-ruled the objection, and gave standing the spe- judgment. And now Hewitt, Serjeant, argued, that this action licious commission of bank BROWN บ. CHAPMAN. law. did not lie, because there is a specific remedy pointed out by the statutes relative to bankrupts. That by statute 5 Ann. c. 22, sect. 7, a bond for 2001. shall be given by the petitioning creditor (7), which shall be assigned to the party injured, if cific remedy in the commission is maliciously sued out. And the statutes 5 the bankrupt Geo. 1, c. 24, and 5 Geo. 2, c. 30, [s. 23], enact, that the Court of Chancery may examine into the same, and order satisfaction; and, if necessary, may direct the bond to be assigned. That the penalty being inserted in a subsequent act is the same as if it had been in the first statute concerning bankrupts, in 34 Hen. 8. All are one system; and the last act shall enure, as if all the old ones were thereby repealed and re-enacted. And for this he cited Cro. Jac. 643; Plowd. 206; 11 Rep. 59; Carter, 36; 1 Ventr. 246. Lord MANSFIELD, C. J.-This case is too clear to hear any argument on the other side. There is no clause to take away the jurisdiction of the common law ;-no clause that a man shall not receive more damage than 2001. What became of the subject from the 34th of Hen. 8 to the 5th of Q. Anne, if he had no other remedy than arose from this specific provision? (1) See the provisions of the last Bankrupt Act, 6 G. 4, c. 16, s. 13. (m) Chapman v. Pickersgill, 2 Wils. 145; and Ex parte Lane, 11 Ves. J. 415, acc. Lord Hardwicke, C., said, "It was in the breast of the Court (of Chancery), where the bankruptcy was a doubtful case, and the commission superseded, either to direct an enquiry before a Master of the damages sustained by the bankrupt, or a quantum damnificatus upon an issue at law, and after the damages were settled, the Court might, for the better recovery thereof, order the bond to be assigned, but in that case the bond was assigned without any enquiry to assess the damages whereby the assignee would recover the whole penalty; Ex parte Gayter, 1 Atk. 144. And the Lord Chancellor may either order a specific sum by way of damages to be paid by the obligor, or assign the bond, and enable the assignee to recover the whole penalty; and such assignment is conclusive evidence of fraud and malice; Smith v. Broomhead, 7 T. R. 300. The Lord Chancellor may, proprio vigore, ascertain the amount of the damages sustained by Judgment affirmed (m). the party grieved, without any suit insti- WOOLMER V. MUILMAN. S. C. 3 Burr. 1419. ACTION on a policy of insurance, dated 23 September, 1762, False warranty in a policy of at and from North Bergen to London, at two guineas per cent. insurance will The ship, &c. were warranted to be neutral ship and property; vitiate it, though but, in truth, the plaintiffs were British subjects, having in- [ terest on board to the amount of the sum insured. The ship the loss happens foundered at sea: and the defendant now refuses to pay the *428 |