« PreviousContinue »
Lord Mansfield, C. J.—The statute of the 11 Geo. 1(d), arose from a constitutional jealousy, that, if corporations could only be revived by the King's charter, it might be in the power of the Crown to garble all such corporations. Therefore the act puts it in the power of the body to revive themselves.
Postea to the plaintiffs.
decide in the Colchester Case." Grose, J.—" I have attentively considered that case; and it appears to roe, that the true question there was, whether the new charter did not so far revive the rights of the old corporation, as to give power to the new corporation to sue for them. The Court thought that it did; and if it were otherwise, the consequences would be fatal to almost all the corporations in the kingdom; for there is hardly any, which have not at some time or other been dissolved in that point of view; and all those would lose their prescriptions. The Court indeed did seem to think in that case, that the corporation was not dissolved to any purpose: but, on looking into the cases there cited and relied on, they will not be found to warrant that general proposition."
While a corporation exists capable of discharging its functions, the Crown cannot obtrude another charter upon them; they may either accept or reject it; Id. 240. And where the King grants a charter to a corporation, there being a prior charter existing at the time, the new charter is void ab initio: because two corporations for the same purposes of government cannot exist within one and the same place, and at one and the same time; II. v. Amery, 2 Bro. P. C. 336, (Tomlin's ed.); and see S. C. 1 T. R. 575, 2 T. R. 515. See also 11. v. Morris, 3 East, 213, 4 East, 17; Yf. v. Mayor of Monmouth, 4 B. & A. 496; Vin. Abr. Corporation, (I); Bac. Abr. Id. (G); Com. Dig. Franchises, (G 4, 5).
(d) C. 4.
Parish apprentice may agree with his master to cancel his indentures at 21, thoagh bound till 24, [without the consent of the parish.]
ECCLESAL BlERLOW V. Warslow.
SAMUEL Wilshaw and two children were removed from
*Lord Mansfield, C. J.—There is no authority, that the [ *593 ] consent of the parish is necessary for that purpose, neither is there any reason.
Wilmot, J.—The reason why the act(rf) extended the term to twenty-four was, that parishes might put out children at less expence; because the latter part of the time is most advantageous to the master. Another reason was, because they could not bind an infant beyond the age of twenty-one without the aid of the act, which prevents such contract being rescind
(d) 43 Eliz. c. 2, s. 5. But now by 18 G. 3, c. 47, parish apprentices shall only be bound till they come to the age of twenty-one years. And see further pro
visions as to binding out parish apprentices, 54 G. 3, c. 107; 1 & 2 G. 4, c. 32; R. v. Tunstead, 3 T. R. 523.
ed without the consent of the master. But the act leaves the parties, when both are of full age, to act as they please.
Yates, J.—This is a strange objection to come from a parish not party to the indentures.
Orders quashed (e).
(e) R. v. Harbertm, 1 T. R. 139, S. P. But if the apprentice be under age, the apprenticeship cannot be dissolved without the consent of the parish officers; 11. v. Austrey, Burr. Sett. Ca. 441. Where a parish apprentice was, before the passing of 18 G. 3, c. 47, (preceding note), bound till twenty-four, and served till nearly attaining twenty-one, when his master, being about to leave the parish, and no longer wanting his service, told him he might leave him and go where he liked and shift for himself; but if he could not provide for himself, he might return to him; upon
which he quitted, and when he was about four months past twenty-one, bound himself by indenture as apprentice to another master for three years, and served with him the three years: he did not gain a settlement by service under the second indenture: inasmuch as there did not appear to have been any dissolution of the first contract, and therefore he was not sui juris at the time he entered into the second; R. v. Bow, 4 M. & S. 383. As to apprentices generally, see Gray v. Cookton, 16 East, 13; 54 G. 3, c 96, and 11. v. St. Lukt's, ante, 553.
Carter V. Boehm.
S. C. 3 Burr. 1907.
Concealment of ACTION on a policy of insurance made at London, 9th May, private facts, 1760, at 4per cent., interest or no interest (f), upon Fort Marlfic's" o?Uconciu- borough, alias Bencoolen, in the East Indies, for twelve calensiens from facts, dar months, from 1st October, 1759, to 1st October 1760, wir. vacate a against any European enemy: On 3d April, 1760, the fort was po1"*- taken by the French.
Lord Mansfield, C. J., delivered the opinion of the Court on a motion for a new trial; the jury having given a verdict for the plaintiff, who was Governor of Bencoolen.—To impeach this verdict it is insisted, that the not mentioning certain particulars at the time of insurance was a fraudulent concealment and vitiated the policy. I shall therefore consider, l.The nature of concealments: 2. Apply them to the present case.
1st. Insurance is a contract on speculation: the special facts usually lie in the knowledge of the insured only. The under[ *594 ] writer trusts to him, that he conceals nothing, so as to *make him form a wrong estimate. If a concealment happens without any fraudulent intention by mistake of the principal or his agent, still the policy is void, because the risk, which is run, is not that which the underwriter intended. So if the underwriter knew that the ship was arrived, the contract is void as to him(g). But aliud est celare, aliud tacere. There are many matters as to which the insured may be innocently silent: 1. As to what the insurer knows, however he came by that knowledge; 2. As to what he ought to know; 8. As to what lessens the risk. An underwriter is bound to know political perils, as to the state of war or peace, &c(A). If he insures a privateer, Carter
(/) Stat 19 G. 2, c. 37, s. 1, which See ante, 277, n. (6). makes insurances "interest or no interest" (g) "And an action would lie to recover
void, extends only to insurances made on the premium;" per I,ord Mansfield, S. C
ships, and goods laden on board such (hips. 3 Burr. 1909.
he need not be told her destination. And as men reason dif- „ *■ ferently from the same facts, he need not be told another's con- v —>
elusion from known facts. The question must always be, whether at the time there was a fair representation or concealment of the facts.
2. As to the present case: I had a doubt on a former trial on this policy, whether an insurance by the governor of a fort was good, on the same principle as the case of seamen's wages (t). But Fort Marlborough was only a mercantile factory, not a military fortress. The objection was not insisted on at this trial. If it had, we are all of opinion, it would not vacate the policy. The fort was only defensible against the natives: Its only security against European force was the difficulty of entering the harbour. The state of the fort was generally well known. There was no apprehension of an attack till the French attacked Nattal in February, 1760. It was taken 21st April, 1760, by Count D'Estaing, piloted by Dutch pilots. No evidence of any such design till the end of March, 1760. The Governor turned all his money into goods in the end of February, 1760, and lost much more than he insured. At the trial the defendants relied on some letters from the Governor to the India Company and to his brother, intimating that the French had a design, the year before, to attack the fort, and that he apprehended they might resume it again, and therefore giving orders to insure; which was not communicated to the underwriter. They relied also on the opinion of the broker, that these facts ought not to have been concealed. But we think the verdict well founded. *The risk depended on the chance, whether any European [ *595 ] power could attack the place by sea. Of this the insurer in London could judge better than Governor Carter in the Indies. The state of the French marine was better known here than there. He insures against the general contingency of an attack by any European power. No such design existed in September, 1759, when orders were sent to insure.—Consider the several concealments objected. 1st, He did not disclose the condition the place was in. The underwriter knew the governor himself insured, and could not in duty disclose it. He therefore took upon himself the knowledge of that fact. But the fort, it is said, was not in the condition it ought to be. That condition ought only to be to resist an Indian force: it was notorious it could not resist an European attack. Wherefore we are all of opinion, that in this point the verdict is good.
(A) See Eden v. Parkison, 2 Doug, pay of captains in many trades, as for in
732 a. stance the East India trade, being the pri
(i) It has been expressly decided, that vilege of carrying out investments to the
a sailor can neither insure his wages, nor settlement to which they are bound, and
any commodity he is to receive in lieu of there making the best advantage of them
wages; Webtter v.De Tastet, 7 T. R. 157. in their power, it would be absurd to say,
But the captain of a ship in the African that such investments were not the subject
trade may insure his "commission, privi- of a legal insurance;" King v. Glover, 2 N.
leges, &c." Mansfield, C. J.—" The chief R. 206.
2dly, He declares in his letters, that he imagined, that, as the French could not relieve their friends on the coast, they would attempt Fort Marlborough. This was mere speculation of the governor, and not a matter of fact. 3dly, That a letter to Mr. Winch was concealed. What were the contents of that letter does not appear. Taken in the strongest light, it is only supposed to be an intelligence of a design to surprise it the year before, but then dropped. It is said, that, if the insured knows of a design by a privateer to attack a ship, the concealment would be fraudulent. I agree it; but not if designed a year before, and dropped. A design, which had transpired and was dropt, was not likely to be renewed by a vanquished enemy. 4thly, a stronger objection is, that the governor suspected a Dutch war, and did not disclose his suspicions. This arises from political speculation only, and need not be communicated. It was therefore given up at the bar. As to the opinion of the broker, it was no evidence; being merely opi[ * 59G ] nion, and formed after the event had happened. *The governor's behaviour appears to be fair in all respects: his subsequent conduct shews that he thought the danger improbable. If the defendant's objection prevails, the rule against concealment would be an instrument of fraud. He took the premium without asking questions, knowing that if such concealment vacates the policy, it was thereby void, and drew the governor in to suppose himself insured when he was not so. He waived the objection then, and shall not now take it up. We may say of this rule, as has been said of the statute of frauds: "It shall not itself be turned into an instrument of fraud." , Rule ntsi, for a new trial, discharged (k).
(*) The principles laid down in this ease have been recognized and confirmed in several subsequent decisions. As if an insurance be made before the commencement of hostilities, but when every body expects a war immediately, the insured is not bound to give the underwriter notice, though the ship do not sail till after the war takes place; and the underwriter is liable in case of capture; Planche v. Fletcher, 1 Doug. 251. So the insured is not bound to disclose a circumstance made material by a foreign ordinance, of which he was ignorant If the underwriter knew of it, he might have enquired, whether it had been complied with: but if both be ignorant, both are innocent, and in such case the underwriter must run all risks; Mayne v. Walters, Park's Ins. 306 (ed. 1817), Marsh. Ins. 478 (ed. 1808). So there need be no previous representation of the state of a ship: and therefore letters describing her bad state in her outward voyage need not be shewn to the underwriters in a policy on a homeward One. Lord Mansfield—" It is a condition, or implied warranty, in every policy, that the ship is sea-worthy; and therefore there is
no necessity for a representation of that. If she sail without being sea-worthy, the policy is void;" Shoolbred v. Nutt, Park's Ins. 346, Marsh. Ins. 475; S. V.EdniParkism, 1 Doug. 735. And on the authority of this last cited case, as well as on principle, it was held, that whatever forms an ingredient in sea-worthiness is not necessary to be disclosed by the assured to the underwriter in the first instance, unless information upon the subject be particularly called for; and then the assured must disclose truly what he knows in the respect required j Haywood v. Rodgeri, i East, 590, where Lord Ellenborough recognises and approves of the doctrine laid down in Carter v. Boehm. So where the latest letter of advice was shewn to the insurers, containing a true account of the then state of the ship, and in which a prior letter was referred to; the not having communicated such prior letter was held not to vitiate the insurance; as the insurers might have enquired for that letter, and must have been cognizant of the usage of that particular trade; Fritland v. Glover, 7 East, 457. It U not incumbent on the assured to communicate
Gulliver on the demise of Tasker V. Burr.
Am DEMISES to B. from year to year, commencing the 10th A months noof October. B. dies the 27th August: A., the 9th Septem- tice not lumber, gives notice to the executor to quk at the end of the ^ fVomyear Term: Query, If the notice is sufficient? The Court held to year. And if clearly, that in a common case it would not be sufficient notice (/); but in the case of an executor they doubted. But Lord Mansfield inclined strongly, that the nature of the contract being to hold from year to year, unless reasonable notice was given on either side, and notice not having been given in reasonable time; the executor was bound to keep the farm, if required, another year: and therefore is at liberty to keep it if he chooses it (»»).
thepanydie.it is not sufficient to the executor.
(I) Doe dem. Dagget v. Snowden, post, 1224, and notes.
(m) This opinion is confirmed in Parker dem. Walker v. Constable, 3 Wils. 25. So the lessee of a tenant for life is entitled to regular notice from the remainder-man; Roe dem. Jordan v. Ward, 1 H. Bla. 97.
So an administrator has the same chattel
Dunchurch v. South Kilworth^
S. C. Burr. Sett. Ca. 553.
ELIZABETH TANSUR was removed from South Kilworth Subsequent imto Dunchurch. Order confirmed at Leicester Sessions, stating, Provements by "That Edward Tansur, the pauper's husband, was certificated manrnoCpart of from Dunchurch to South Kilworth, where he resided with his the purchase wife and family till his death. It appeared by parol evi- money*dence of the pauper and her son (which was objected to by [ * 597 1 the respondents' counsel), that twenty-five years ago, the pauper and her said husband were joint purchasors of a house, &c. ^ at S. Kilworth, for 19/. ,• that Edward Tansur laid out about 15J. more to repair it, and built a new shop, and was taxed at the value of 30/., and resided therein to his death; after which, the pauper continued ten months in possession, and then went to service for five years, and let the premisses to her son for 20*. a year, but declared she could have let it for 30*. to other persons: That the pauper, when she left her service about three years ago, returned to her house at S. Kilworth, and soon after sold the garden place for 20/. 3*. 6rf., and, by deed
VOL. I. I I