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. FULKE V. BOURKE. S. C. Cited in 4 Burr. 2107. ASHHURST moved to stay proceedings on a scire facias against the bail, for irregularity. The fact was, that Cook and Manning became bail for the defendant at a Judge's chambers, the cause being removed by habeas corpus. Afterwards, the bail being 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 [104], 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 though bail be excepted to, unless their names be struck out of the bail piece, they still remain liable; Waller v. Green, Say. 308; Bramwell v. Farmer, 1 Taunt. 427. And see Jones v. Tub, 1 Wils. 337, Say. 58, as to bail in error. Omission of tres pass, and insert→ ing only the plea of debt in a bill of Middlesex by a common informer, amendable. Cox qui tam 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 her house, being by trade a mantua-maker. Lord MANSFIELD, C. J., refused a rule to shew cause, unless 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 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. Cox q. t. v. MUNDY. *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;" Barber v. Lloyd, 2 T. R. 513. Amendments at common law, that is, while the proceedings are in paper, are allowed in penal actions; Bonfield q. t. v. Milner, 2 Burr. 1098; Mace q. t. v. Lovett, 5 Burr. 2833, where Lord Mansfield said, that there is no distinction between qui tam actions and civil actions, where an amendment at common law is applied for: Cross v. Kaye, 6 T. R. 543; Maddock q. t. v. Hammet, 7 T. R. 55; Petre v. Craft, 4 East, 433; Dover v. Mestaer, Id. 435; Mestaer q. t. v. Hertz, 3 M. & S. 450, acc. But it is in the Court's SOULSBY v. HODGSON. BOND conditioned to perform the award of two arbitrators, If arbitrators and, in case of their non-agreement, the umpirage of a third join with an umpire in his person as umpire (e). All three join in one instrument purport- deed of uming to be an umpirage. Wallace argued it to be bad, on the pirage, it is only authority of 1 Bulstr. 184. Wedderburne contra. And per Cur.- surplusage, and The case in Bulstrode is absurd. The joining of the arbitrators stands good. is surplusage, and does not vitiate the act of the umpire (f). (e) Where an umpire is appointed by the parties themselves, he may make his ampirage before the expiration of the time for making the award, if the arbitrators disagree; Smailes v. Wright, 3 M. & S. 559. As to the appointment of an umpire by arbitrators, see Wood v. Doe, 2 T. R. 644; Oliver v. Collings, 11 East, 367; Judgment for the plaintiff. Harding v. Watts, 15 East, 556; Neale v. (f) S. P. Beck v. Sargent, 4 Taunt. 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 payment of a poor's rate by THE KING v. OPENSHAWB. the tenant will gain a settlement, notwithstanding the landlord has privately agreed to pay them. landlord, the landlord was to pay the rate; and accordingly, (g) R. v. Bramley, Burr. Sett. Ca. 75; R. v. Chidingfold, Id. 415; R. v. Fulham, Id. 488, acc. 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, &c. for any tenement not being of the yearly value of 107."; which statute confines this mode of gaining a settlement within narrow bounds; as the occupation of a tenement of the yearly value of 101. equally confers a settlement: though it may be a question whether the operation of 59 G. 3, c. 50, (which see, post, 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 land-tax for his salary of 50l. per ann., which rate was repaid him by the collector of customs, gained a settlement; R. v. Axmouth, 8 East, 383. Concealment of the true port of loading will vitiate a policy of insurance. * HODGSON. RICHARDSON. IN 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 (h); her loading consisting of potash, verdigrease, cotton, and other [ 464 ] 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 August, 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 ab 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 (h) 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 loss 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. See Wilson v. Smith, post, 507. were bound, by a rule of Court, to abide the event of this action (i). 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. HODGSON บ. RICHARDSON. 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 prescribed 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 (k). In the present case, the verdict is such 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, on behalf of the plaintiff in the other causes, that the respective defendants should pay their money to the plaintiff, pursuant to their agreement: which the Court would not grant, being of opinion, that a consent "to be bound by a verdict in one of many causes upon the same question," means such a verdict as the Court thinks ought to stand as a final de- (k) See Lord Mansfield's judgment in HODGSON 10. RICHARDSON. YATES, J., of the same opinion. The concealment of material circumstances vitiates all contracts, upon the principles of natural law. A man, if kept ignorant of any material ingredient, may safely say it is not his contract. And I think this fact material, for the reasons before given. Rule for new trial made absolute (₹). (1) See De Symonds v. Shedden, 2 Bos. & P. 153; Robertson v. French, 4 East, 130; Gladstone v. Clay, 1 M. & S. 418; Mellish v. Allnutt, 2 M. & S. 106, and cases there cited; Ougier v. Jennings, 1 Camp. 505, n. (a); and Carter v. Boehm, post, 593. [ 466 ] tenement of 10% resides elsewhere, on the LEEDS v. BLACKFORDBY. Wife cannot be ANNE, the wife of Joseph How, was removed from the removed from a parish of Blackfordby, in Leicestershire, to Leeds, in Yorkin the occupa- shire, by order of two justices, dated the 25th June, 1763. tion of the hus- Leeds appeals, and on 4th October, 1763, the Sessions confirm band, though he the order; stating, that Joseph How, in June, 1761, took a tenement of 10l. per annum in Blackfordby, by lease determinable half-yearly at Michaelmas or Lady-day. At Michaelmas, 1761, How and his wife went and resided therein, till Christmas following; from which time to May, 1762, he was a enbesering jesse sometimes at Leeds, and sometimes at Blackfordby, but his wife and family resided wholly at Blackfordby. In May, 1762, be took a tenement of 201. per annum at Leeds, and occupied ground that she could not be re moved from his ette be having go the time of in the trade of a coach-maker till June, 1763. From May to November, 1762, he resided chiefly at Leeds; but, in that time, was twice with his wife and family at Blackfordby. From November, 1762, to the 15th April, 1763, he resided constantly at leeds, where he was then apprehended by a warrant, and brought into Leicestershire to make provision for his family, which he did; and promised to take them away. But, she being near her time, he and his wife staid in the tenement at Blackfordby from the 18th April to the 15th May, while she lay in. He then took her into Worcestershire, and returned to Blackfordby, locked up the door, and left the key with a neighbour to get in his hay for him. From thence he went to Huudett, a third parish, and continued there ever since. In the mean time the hay was got in, and still remains on the premis, and is his property. That, about a fortnight since, he ordered the neighbour to deliver the key to the landlord, which was not done; but the key is now in his possession. That his wife, returning to Blackfordby, and asking relief, was removed 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 the wife, who continues part of the husband's family) so long as the tenement continued, that is, not till the occupation | 407 | was determined. This would have opened the question of the settlement. |