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for the prosecution consenting that the second shall stand to all intents and purposes in the same plight and condition as the first would have done; and, after such evident delays, the counsel must be called upon to name the prosecutor.
Serjeant Glynn then named John Wilkes, Esq. as the prosecutor: who, having absconded from justice at the times when both the indictments were preferred, the Court demanded, by what authority he made that declaration: to which the Serjeant answered, by the instructions of James Philips, the solicitor in this prosecution.
N. B.—The defendant, at the Sittings in the same Term, was afterwards tried and acquitted, by a special jury of the county of Middlesex.
In older to exo- ASHHURST moved to stay proceedings on a scire faciat
aTed town's"" aSainst the bafl» for irregularity. The fact was, that Cook and
name must be Manning became bail for the defendant at a Judge's chambers,
•truck out of the the cause being removed by habeas corpus. Afterwards, the
bail-piece. ^ajj Demg excepted to, Cook and one Saunders justified in
Court. But Manning did not justify; yet his name was never
struck out of the bail-piece. Whereupon, a scire facias issued
against him. Barnes , Lafortune [and Wilson], was cited
in support of the objection.
By the Court.—It should have been part of the rule, that Manning's name should be struck out of the bail-piece. And, on motion, it was accordingly so amended, without costs. And being so drawn up, no cause was afterwards shewn; and the rule was made absolute upon payment of the plaintiff's costs hitherto incurred (c).
(c) S. P. Humphry v. Leite, 4 Burr. 2107; Gould v. Holstrom, 5 East, 580. But theugh bail be excepted to, unless their names be struck out of the bail
piece, they still remain liable; Waller v. Green, Say. 308; Bramteell v. Farmer, 1 Taunt. 427. And see Jones v. 7V'. 1 Wils. 337, Say. 58, as to bail in error.
Omission of trespass, and inserting only the plea of debt in a bill
Cox qui tarn v. Mundy.
ASHHURST moved to stay proceedings on the bill of Middlesex, which was in debt only (and not in trespass with an ac etiam in debt), for a penalty incurred by having foreign lace in of Middlesex by her house, being by trade a mantua-maker. for^ramend- Lord Mansfield, C. J., refused a rule to shew cause, unless able,' they would produce a precedent of a like rule within fifty years
past; absente Dennison, J. But the next day it was moved again, when Dennison was present; it being alleged, that no precedent could be found of a bill of Middlesex in debt only: and then a rule to shew cause was granted. Afterwards, Morton shewed cause; that the statute 22 Geo. 2, [c. 34], which inflicts the penalty, directs the penalty to be sued for in Cox 5. t. any of the King's Courts at Westminster, or in the Exchequer »•
in Scotland; which gives this Court a jurisdiction, allowing it ■
had none before, to hold plea in this action of debt.
•Lord Mansfield, C. J.—It certainly creates a new juris- [ *463 ] diction in the Court of Exchequer in Scotland, which has originally no civil jurisdiction. But to shorten this debate, let the bill be amended by inserting the plea of trespass, and discharge the present rule. Wilmot, Yates, Js., accord., Dennison, J., absent.(d).
(d) The Court refused to set aside a bill of Middlesex, which was " to answer in a plea of debt," instead of trespass, "and also to a bill to be exhibited in a plea of trespass upon the case j" Barber v. Lloyd, 2 T. R. 513. Amendments at common law, that is, while the proceedings are in paper, are allowed in penal actions; Bonjteid q. L v. miner, 2 Burr. 1098; Mace q. t. v. I.ovelt, 5 Burr. 2833, where Lord Mansfield said, that there is no distinction between qui lam actions and civil actions, where an amendment at common law is applied for; Cross v. Kaye, 6 T. R. 543; Maddock q. t. v. Harnmet, 7 T. R. 55; Pelre v. Craft, 4 East, 433; Dover v. Mestaer, Id. 435; Mcstaer q. t. v. Hertz, 3 M.
& S. 450, ace. But it is in the Court's
Soulsby v. Hodgson.
5. C. 3 Burr. 1474.
J>OND conditioned to perform the award of two arbitrators, if arbitrators and, in case of their non-agreement, the umpirage of a third Join with a" person as umpire (e). All three join in one instrument purport- de'edofuming to be an umpirage. Wallace argued it to be bad, on the pirage, it is only authority of lBulstr. 184. Wedderburne contra. And per Cur.— surplusage, and The case in Bulstrode is absurd. The joining of the arbitrators ,tan sg0°' is surplusage, and does not vitiate the act of the umpire (/").
Judgment for the plaintiff.
The King V. Openshawe.
S. C. Burr. Sett. Ca. 522.
A TENANT at rack-rent was assessed to the poor's rate, Assessment and and paid it; but, by a private agreement between him and his P«yment of a
the tenant will
landlord, the landlord was to pay the rate; and accordingly, when the tenant paid it, he told the overseers to observe, that he paid it for his landlord. This was adjudged by two justices not to be a sufficient rating and payment of taxes to found a settlement upon, and of the same opinion was the Sessions.
But by Lord Mansfield, C. J.—Pray, whom was the landlord to pay it for? Clearly, for the tenant: for it is a tenant's tax. The Court has nothing to do with their private agreement. And per tot. Cur.—The settlement is clearly good (g).
The orders were discharged.
may be a question whether the operation of 59 G. 3, c. 56, (which see, pott, 603), may not be the cause of settlements being again acquired by rating. Since the passing of 35 G. 3, it has been decided, that a custom-house officer, rated to the laud-tax for his salary of 50/. per ami., which rate was repaid him by the collector of customs, gained a settlement; II. v. Axmmtk, 8 East, 3S3.
(g) ft. v. Bramley, Burr. Sett. Ca. 75; ft. v. Chtdinrfold, Id. 415; ft. v. Fulham, Id. 488, ace. But by 35 G. 3, c. 101, s. 4, it is provided that, "after June 22d, 1795, no person shall gain a settlement by being rated, 8fc. for any tenement not being of the yearly value of 10/."; which statute confines this mode of gaining a settlement within narrow bounds; as the occupation of a tenement of the yearly value of 10/. equally confers a settlement: though it
Hodgson V. Richardson.
±N an action on a policy of insurance the case was, that the ship was insured at and from Genoa, [the adventure to begin from the loading to equip for this voyage,] liable to average (A); her loading consisting of potash, verdigrease, cotton, and other 1 * perishable commodities. This loading was put on board at Leghorn, the 10th of August, and the vessel had lain at Genoa above five months, being originally bound for Dublin; but, losing her convoy, she put into Genoa the 13th Angust, and lay there till the 5th January, when she sailed. And the insurance was made the 20th January, at which time these circumstances were known to the insured, but not communicated to the underwriter. A few days after she put to sea she was shattered by a storm, and the cargo considerably damaged. The insured brought his action on the policy, and the jury found a verdict for the plaintiff. And now, Morton and Dunning moved for a new trial, contending, that the policy was bad ali initio for want of a due disclosure of the circumstances; as Genoa, from the wording of the policy, imported to be the port of loading, and the goods were liable to take damage by having lain so long aboard: and therefore, though the present loss actually happened by a storm, yet if the policy was originally bad, the insured cannot recover. And they urged the propriety of granting a new trial here; because the several insurers
(A) By this must be understood particular average; for if the insurance had only extended to general average, the insurers would not have been liable for any lots arising from the perishable nature of
the commodities, either by their having lain so long aboard, or by their having been damaged in a storm. Sec WUtaa v. Smith, pott, 507.
were bound, by a rule of Court, to abide the event of this Hodqbos
Norton, Attorney-General, shewed cause:—That the jury have found this circumstance to be immaterial, and they are the proper judges of it. If a latitude is allowed to cavil for want of disclosing circumstances which a jury have judged immaterial, no policy would stand without communicating every circumstance of any the most trifling nature. And, that the rule entered into was intended to abridge, and not increase, the number of trials on one and the same policy.
Lord Mansfield, C. J.—It is certainly very beneficial to all parties, that there should be but one trial for all the several insurers on one policy. But then that one trial should be a satisfactory trial. I think that new trials in general are most beneficial for the furtherance of justice, and ought to be granted with great latitude. In all free countries there is allowed for the benefit of the subject a great variety of appeals. And the old law here in England never meant, that the verdict of a jury should by all means be final: but it pre*scribed an odious [ *465 ] way of new trials, by the criminal process of attaint. Whereas, the modern course of new trials answers the same end in a better way(£). In the present case, the verdict is suoh a one as ought not to stand.
The question is, whether here was a sufficient disclosure; i. e. whether the fact concealed was material to the risk run. This is a matter of fact; and, if material, the consequence is matter of law, that the policy is bad. Now who can say, that no risk was run during the five months' stay at Genoa, or no damage happened in that period? The policy is founded on misrepresentation; the ship is insured " at and from Genoa to "Dublin, the adventure to begin from the loading to equip "for this voyage." This plainly implies, that Genoa was the port of loading. And at the trial all the witnesses said, that by usage it was material to acquaint the underwriter, whether the insurance was to be at the commencement or in the middle of a voyage.
Wilmot, J.—Had this case been a doubtful one, I should not have been for concluding all the insurers by one verdict. But I see no doubt in it. The fact disclosed by this policy is not true, viz. that Genoa is the loading port; for so it must be understood. And in such cases, I will not speculate upon the materiality or immateriality of the fact. Not but that I think, the length of the stay at Genoa is very material in case of such perishable commodities.
(i) Norton, A. G., afterwards moved, Court thinks ought to stand as a final do
on behalf of the plaintiff in the other termination of the matter; 3 Burr. 1477;
causes, that the respective defendants Vulien v. Bulkeley, 5 Taunt. 165, ace.: and
should pay their money to the plaintiff, see Aylwin v. Favine, 2 N. R. 430. pursuant to their agreement: which the (t) See Lord Mansfield'i judgment in
Court would not grant, being of opinion, Bright v. Eynon, 1 Burr. 393; Foxcraftv.
that a consent " to be bound by a verdict Devonshire, ante, 195, & n. ib.; Camden
in one of many causes upon the same v. Cowley, ante, 418; Tidd's P. 912, (ed.
•luoition," means such a verdict as the 1821).
Hodgson Yates, J., of the same opinion. The concealment of a*
n„.u.TM.„„ terial circumstances vitiates all contracts, upon the prinoBb
i , oi natural law. A man, if kept ignorant of any material n
gredient, may safely say it is not his contract, And 1 tbthis fact material, for the reasons before given.
Rule for new trial made absolute(i;.
(/) See De Symonds v. Sliedden, 2 Bos. cases there cited j Ougier T. Jams.
& P. 153j Robertson v. French, 4 East, 1 Camp. 505, n. (a); and CWferf.&m
130; Gladstone v. Clay, 1 M. Se S. 418; poet, 593.
L 466 J Leeds V. Blackfordby.
S. C. Burr. Sett. Ca. 524.
Wife cannot be ANNE, the wife of Joseph How, was removed from tie teTemen/onol Pa.rish of Blackfordby, in Leicestershire, to Leeds, in Yobv in the occupa- shire, by order of two justices, dated the 25th June, lTtfi tion of the hus- Leeds appeals, and on 4th October, 1763, the Session* confim S.tbeUe^he the order5 stating» that Joseph How, in June, 1761, tooki where, [on the tenement of 10/. per annum in Blackfordby, by lease deterground that she minable half-yearly at Michaelmas or Lady-day. At MiclueJ
mo^edTronTw,' mas'. 1761' How and his wife went and resided thereM estate, he having Christmas following; from which time to May, 1762, hew a subsisting lease sometimes at Leeds, and sometimes at Blackfordby, bulbs
herhremTMi!] wife and family resided wholly at Blackfordby. In May, ITS, he took a tenement of 20/. per annum at Leeds, and occupis it in the trade of a coach-maker till June, 1763. From Mayr. November, 1762, he resided chiefly at Leeds; but, in that that, was twice with his wife and family at Blackfordby. From Sivember, 1762, to the 15th April, 1763, he resided constant at Leeds, where he was then apprehended by a warrant, ami brought into Leicestershire to make provision for his family, which he did; and promised to take them away. But,& being near her time, he and his wife staid in the tenement it Blackfordby from the 18th April to the 15th May, while & lay in. He then took her into Worcestershire, and returned to Blackfordby, locked up the door, and left the key with» neighbour to get in his hay for him. From thence he went to Hunslett, a third parish, and continued there ever since, t the mean time the hay was got in, and still remains on the premisses, and is his property. That, about a fortnight since, be ordered the neighbour to deliver the key to the landlord, whki was not done; but the key is now in his possession. That hi wife, returning to Blackfordby, and asking relief, was removal .by this order to Leeds, on 25th June, 1763.
Lord Mansfield,' C. J. — This removal was premature The husband could not be removed (and therefore not tof wife, who continues part of the husband's family) so Ion? as the tenement continued, that is, not till the occupstw
[ *467 ] * was determined. This would have opened the question d' the settlement.