66 EVANS V. ASTLEY. make out the testator's meaning, but the word "descendants," or "male descendants." The words," for want of such issue," will then have their effect; though, otherwise, "such issue," will easily mean, "for want of the same kind of issue, as before prescribed, in case of the elder brothers." This is not the case of an heir-at-law, but strictly of remainder-men only; for there are three intervening remainders between this devise and the reversion. As to what kind of estate tail the after born sons, if more than one, would have taken; I answer, not a joint estate, but a sole one in regular succession, conformable to the testator's intent expressed in the three preceding devises.* Lomax and Holmden, Hil. 1732, 3 Wms. 178, and afterwards [ *505 ] coram Lord Hardwicke, 1749 (w): devise to the first son of Caleb, and the heirs-male of his body, remainder to the second, third, fourth, and fifth sons of Caleb successively, without saying for what estate. Lord Chancellor inclined strongly, that this was an estate tail in all of them: but it went off on another point. Humberston and Humberston, 1 Wms. 333: devise of fifty life-estates to several Humberstons and their sons, as well unborn as born; Lord Cowper held, the unborn sons should take estates tail, and those that were in esse only life-estates. But if it cannot be argued from the intention, that the testator gave Sir William Duckenfield an estate tail, I submit, that, by the letter of the devise, he has given him an estate in feesimple, by devising to him, "All my manors, &c. wherein I "have any estate;" which is equivalent to a devise of all my estate to A. B., which gives a fee-simple, if the testator were tenant in fee. And, in either case, judgment must be given for the defendant. Blackstone, in reply, observed, that the determination in Robinson and Robinson, went clearly upon the words, in default of such issue, which overpowered the words, and no longer, in the devise to Lancelot Hicks. The condition of taking the name had no influence in that determination, it being repeated after every estate, whether for life or in tail. Besides, in fact, Sir William Duckenfield never took the name and arms of Daniel for his descendants, but for himself only. The bill came down from the Lords, to empower Sir William and the heirsmale of his body to take and use them. The Commons, in a second committee, struck out every clause that tended to sup- Vide Journal pose an estate-tail in Sir William, altered the title, and confined H. of C. May, the name and arms to himself for life only. This, therefore, so far as it goes, is an argument rather against, than for the estate tail. Lomax and Holmden is questioned by the reporter himself; and Lord Hardwicke, in order to effectuate what he thought the testator's intent, had recourse to the astute reason 1746. ing of Sir Joseph Jekyll, and construed the second son to be [506] the first, the eldest being dead without issue. Had he conceived, that the second devise ought to be conformable to the first, that alone would have solved the difficulty. In Humber (w) 1 Ves. S. 290. EVANS v. ASTLEY. ston's Case, the words, " in default of such issue," were held not to create an estate tail. Besides, Sir William was not an unborn son at the testator's death. Ulterius concilium. [S. C. Post, 521.] WESTON V. COULSON. Where a sheriff ACTION by a sheriff, against one of his bailiffs. is plaintiff, a latitat directed to himself is ill. Before appearance, the Attorney-General moved to set aside the proceedings, because the latitat was directed to the sheriff himself, and not to the coroners. Morton argued, that this was only process, which the sheriff, though interested, might as well serve as any other man; but, when his partiality may be of material importance, as on a venire, fieri facias, &c.; there, it must be directed to an indifferent person. And he said, that, when a sheriff suffers a common recovery, the writ of entry is directed to himself, but the writ of seisin to the coroner. But the Court held it was irregular, and set aside the proceedings without costs (x). (x) Com. Dig. Viscount (E); Vin Abr. Sheriff (P); Bac. Abr. Id. (M). site on error of a judgmentin an action of debt on judgment. BIDDLESON v. WHITEL. S. C. 3 Burr. 1545. No bail is requi- LORD MANSFIELD delivered the opinion of all the Judges.This was a writ of error, in an action of debt upon judgment. The question was, whether, under the statute 3 Jac. 1, c. 8(y), bail ought to be put in upon this writ of error. The point had occurred in both this Court and that of Common Pleas, and had been differently settled by the two Courts. 10 Ann. Goodwill and Goodwill (2), King's Bench; that in error upon actions of [ *507 ] debt brought upon a judgment, no bail was *required by the statute, as when brought on obligations, &c. But 2 Geo. 1, in Common Pleas, Leaptrot and Atkinson, it was held, that the contract is the foundation of all the actions that are brought for its non-execution; and that, where bail was required on the original action, it ought also to be given on error brought thereon. This made it necessary to refer the point to the twelve Judges, that an uniform rule of practice might obtain in both the Courts. And all the Judges are of opinion, that, where the action of debt is brought on a judgment, there, upon error brought, bail ought not to be required. And they ground themselves on these reasons: 1. That the original contract is drowned in the judgment; and that no implied contract arises between the parties from the judgment. Nam judicium red (y) Extended by 13 C. 2, st. 2, c. 2; 16 & 17 C. 2, c. 8; 19 G. 3, c. 70, s. 5; 51 G. 3, c. 124, s. 3. (2) 10 Mod. 16, by the name of Goodwin v. Godwin. BIDDLESON V. WHITEL. ditur in invitum. 2. The statute having enumerated debts of an inferior nature, it excludes those of a superior. 2 Rep. 46, Archbishop of Canterbury's Case. 3. The Case of Taylor and Baker, 3 Keb. 802, is direct in point, that no bail shall be given. The question is not what the Legislature should have done, but what it has done. And the statute ought not to be extended, in this case, beyond the letter; because actions of Debt on judgdebt upon judgment ought not to be favoured, being for the ment not to be most part odious and oppressive. It was therefore ruled that no bail should be given (a). (a) Recognized in Trinder v. Watson, 3 Burr. 1566. See Rafael v. Verelst, post, 1067; Pulteney v. Townson, post, 1227— Com. Dig. Bail (G 2)—Costs (B)-Pleader favoured. WILSON v. SMITH. S. C. 3 Burr. 1550. unless general, storm. CASE reserved at the trial of an action on a policy of insur- Insurance free ance, dated 16th February, 1760, at five guineas per cent., on from average goods aboard the Boscawen from Lancaster to Rotterdam. In does not extend a printed N. B. at the bottom of the policy, "Corn and fish to the damage 66 are warranted free from average, unless general, or the ship received by the "stranded: sugar, tobacco, and some other specific goods, goods in a "free from average, under 5 per cent. (and all other goods, [ 508 ] "under 3 per cent.) unless general, or the ship be stranded." The ship with a cargo of wheat belonging to the plaintiff sailed from Lancaster 21st February;-met with a violent storm 22d February;-was obliged to cut away her cable and anchors for the safety of the ship and cargo (b), and to put into Liverpool to refit; the expence of which refitting amounted to 381. 15s. per cent. The hatches were not opened at Liverpool; but afterwards, at Rotterdam, upon unloading the wheat, it appeared that it had received damage by the storm to the amount of 561. 19s. 8d. per cent. Qu. Whether the plaintiffs can, under these circumstances, recover in this action-over and above the 381. 15s. per cent. for the refitting, which was not disputed. The Case was argued last Term, by Dunning for the plaintiff, and Morton for the defendant; and again this Term, by Norton, Attorney-General, for the plaintiff, and Burland, Serjeant, for the defendant. For the plaintiff it was insisted, that the clause was first introduced into policies in 1749, because the underwriters (being frequently called upon to make good very trivial losses) did not care to insure a perishable commodity without a large pre (b) If the master of a vessel, compelled by necessity, cut away and abandon his masts, sails or cables 'to lighten and preserve the ship, such loss becomes the subject of general average, and their value must be made good by contribution. But if sails are blown away or cables broken by the violence of the wind, the owner alone must bear the loss; Abbott on Ship- WILSON v. SMITH. mium, and without knowing what they were, and whither bound; the discovery of which was frequently inconvenient to the merchant; and therefore this N. B. was added, to give the merchant the benefit of insurance. That nothing is intended to be discharged thereby, but losses arising from the perishable nature of the commodity. Else it will be better for underwriters to insure perishable commodities than bale goods, in case general average be understood in the legal sense of contribution, to which ship, cargo, and freight are all proportionably liable; for they are answerable for bale goods if they receive damage above 3 per cent., but not at all for corn or fish; and as the same premium is paid for all, the risk ought to be the same. The true construction therefore is, that the insurer shall be free from average (i. e. partial loss) unless there be a general average (i. e. a contribution raised upon the whole cargo); be[*509 ] cause if the ship be in such a situation, as that a general average shall arise, or if the ship be stranded; then it is certain, that some loss must accrue from the distress and danger of the ship: and as it cannot be ascertained how much arose from the nature of the commodity, and how much from the external accident, in that case the insurer shall pay for the whole of the loss. For the defendant it was urged, that general average has a known signification in law, viz. that contribution, which every parcel of goods pays for the damage done in securing the whole. The insurer is bound by his contract to provide against nothing but such a general average, or a total loss. It would be absurd, that, if by the loss of a cable or the like, the goods should pay 6d. per cent. average, the insurer should be liable to 50l. per cent. arising from the nature of the commodity. The rational construction is, that the insurer shall make good no other loss, but what arises from a general contribution in respect to corn and fish;-and no loss under 3 or 5 per cent. in respect to other goods, unless in case of such general contribution. Or, in case the ship be stranded, then he shall bear all losses the insured shall suffer, because the insured has then a right to abandon, and give notice to the insurer. Afterwards Lord MANSFIELD, C. J., delivered the opinion of the Court. Nothing is more inaccurately penned than the form of our policies of insurance. One proof of which, among many others is, that the words used therein have often very different significations. This very word average sometimes signifies loss, and sometimes contribution. And it did so in Spelman's time; See his Glossary, tit. Averagium. But whichever sense it is here used in, the plaintiff cannot recover. If it signifies loss, then here there is no loss at all; only the commodity is damaged, and depreciated in value. If it signifies contribution, then the insurer shall be free from it, unless where the contribution is general. Therefore we are all clear, that judgment must be for the defendant (c). (c) This N. B. or memorandum, which is now always annexed to policies, has given rise to many decisions; and from the consideration of them the following principles may be collected;-that the insurers are not liable for any loss arising from the perishable nature of the commodities therein enumerated, or from any damage they may have sustained, unless such loss be in itself the subject of general average, or unless the ship be stranded, or there be a total loss: -and that the circumstance of a general average having taken place as to other goods, or to part of the commodities themselves, or to the ship, as in the principal case, will not make them liable for a partial loss. The cases rather disagree as to what shall be considered a total loss. Where a cargo of corn was so much damaged on arrival at the port of delivery as to be worth less than the freight, the loss was considered not to be total, and as it was not a general average, and the ship had not been stranded, the underwriters were held not to be liable; Mason v. Skurray, Parks. Ins. 191 (ed. 1817). Marsh. Ins. 226 (ed. 1808). So where a ship sailed laden with fish, a quantity of which was hove overboard for the preservation of the ship and cargo, which of course was a general average, and afterwards she was obliged to put into Lisbon though bound to Figara, and it was found by the board of health there, that the remainder was rendered of no value; yet the Court held that as the articles specifically remained, it could not be considered as a total loss, and therefore that the underwriters were only liable for the general average on the cargo, and the particular average on the ship; Cocking v. Fraser, Park's Ins. 181, Marsh. Ins. 227. The same principle was adopted in M'Andrews v. Vaughan, Park's Ius. 185, Marsh. Ins. 232. However Lord Kenyon said, alluding to the Case of Cocking v. Fraser, he could not subscribe to the opinion there given, that if the commodity specifically remain, the underwriter is discharged; 7 T. R. 222. And where fruit was so much damaged by sea water, that the government prohibited the landing of it, and it was necessarily thrown overboard, and the ship also was so much damaged as to be unable to proceed and was necessarily sold, the insured recovered as for a total loss. There Heath, J., said, "As the cargo was necessarily thrown overboard, the case does not fall within the exception in the memorandum, and is not governed by the Case of Cocking v. Fraser. Had it been the same as that case, would have been necessary for us to consider, how far that case has been impeached by the observations of Ld. Kenyon;" Dyson v. Rowcroft, 3 Bos. & P. 474. See also Anderson v. Roy. Ex. Ass. Comp. 7 East, 38; Thompson v. Roy. Ex. Ass. Comp. 16 East, 214. On an insurance on rice "free of particular average," until landed at L., the ship was wrecked within the limits of the port of L., and the rice was so much damaged as not to produce sufficient to pay the freight; this was held not to be a total loss, and that the underwriters were discharged; Glennie v. London Ass. Comp., 2 M. & S. 371. Note, the two Insurance Companies omit the words "unless the ship be stranded," in their policies, and therefore are only liable for general average or in case of a total loss: See Cantillon v. London Ass. Comp., cited in 3 Burr. 1553. It is now settled by a case which underwent great discussion, that if a ship be stranded, the insurer is liable for any partial loss, in any of the excepted articles, though it did not arise from the stranding, but from some other cause. Lord Kenyon: "The words of this policy are in general terms, including all cases; then comes this memorandum, 'corn, fish, salt, fruit, flour and seed, warranted free from average unless general, or the ship be stranded.' This therefore lets in a general average, and I do not know how to construe the words grammatically, but by saying, that if the ship be stranded, then it destroys the exception, and lets in the general words of the policy;" Burnett v. Kensington, 7 T. R. 210. The same point had been determined in Bowring v. Elmslie, 7 T. R. 216 (a); Nesbitt v. Lushington, 4 T. R. 783. As to what shall be considered a stranding, see Dobson v. Bolton, Park's Ins. 177, Marsh. Ins. 239; Baring v. Henkle, Id. 240; M'Dougle v. Roy. Ex. Ass. 4 Camp. 283, 1 Stark. 130, 4 M. & S. 503; Carruthers v. Sydebotham, 4 M. & S. 77; Hearne v. Edmunds, 1 Brod. & B. 388, 4 B. Mo. 15; Rayner v. Godmond, 5 B. & A. 225; Barrow v. Bell, 4 B. & C. 736, 6 D. & R. 244. WILSON v. SMITH. THE KING V. D'EON. S. C. 3 Burr. 1513. THE Attorney-General, by command of the Crown, had filed an information against the defendant, Charles Genevieve Louis Augustus Andrew Timothy D'Eon de Beaumont, a French gentleman, who was originally secretary to the Duke de Nivernois, when embassador here from France, and at his recall was made plenipotentiary, and charged with the affairs of that |