บ. Lord MANSFIELD, C. J.-The statute of the 11 Geo. 1(d), Corporation of arose from a constitutional jealousy, that, if corporations could COLCHESTER 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. decide in the Colchester Case." Grose, J." I have attentively considered that case; and it appears to me, 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." Postea to the plaintiffs. 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; R. v. Amery, 2 Bro. P. C. 336, (Tomlin's ed.); and see S. C. 1 T. R. 575, 2 T. R. 515. See also R. v. Morris, 3 East, 213, 4 East, 17; R. v. Mayor of Monmouth, 4 B. & A. 496; Vin. Abr. Corporations, (I); Bac. Abr. Id. (G); Com. Dig. Franchises, (G 4, 5). (d) C. 4. SEABER. ECCLESAL BIERLOW v. WARSLOW. S. C. Burr. Sett. Ca. 562. with his master SAMUEL Wilshaw and two children were removed from Parish apprenWarslow to Ecclesal. Order confirmed on appeal, stating, tice may agree "That the pauper, S. Wilshaw, being sixteen years old, was to cancel his inbound by the parish an apprentice to Wm. Ashfuth, at Ecclesal, dentares at 21, for eight years: that he resided there under that indenture for though bound five years, and, being then twenty-one, he and his master till 24, [without agreed to cancel the indentures, which was done accordingly. the parish.] The pauper was then hired for a year to Robert Meller, of Warslow, and served there for a year under that hiring, and received his year's wages, and has gained no settlement since." Objected, that the indentures could not be cancelled without consent of the parish. But by the consent of *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 (d) 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, ECCLESAL v. WARSLOW. 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. (e) R. v. Harberton, 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; R. 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 Orders quashed (e). 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. Cookson, 16 East, 13; 54 G. 3, c. 96, and R. v. St. Luke's, ante, 553. private facts, not of public CARTER V. BoEHM. Concealment of ACTION on a policy of insurance made at London, 9th May, 1760, at 4 per cent., interest or no interest (ƒ), upon Fort Marlborough, alias Bencoolen, in the East Indies, for twelve calendar months, from 1st October, 1759, to 1st October 1760, against any European enemy: On 3d April, 1760, the fort was taken by the French. fects, or conclusiens from facts, wil! vacate a policy. 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, 1. 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 (f) Stat. 19 G. 2, c. 37, s. 1, which makes insurances "interest or no interest" void, extends only to insurances made on ships, and goods laden on board such ships. See ante, 277, n. (b). (g) "And an action would lie to recover the premium;" per Lord Mansfield, S. C, 3 Burr. 1909. to the state of war or peace, &c (h). If he insures a privateer, he need not be told her destination. And as men reason differently from the same facts, he need not be told another's conclusion from known facts. The question must always be, whether at the time there was a fair representation or concealment of the facts. CARTER v. ВОЕНМ. 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 (i). 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. (h) See Eden v. Parkison, 2 Doug. 732 a. (i) It has been expressly decided, that a sailor can neither insure his wages, nor any commodity he is to receive in lieu of wages; Webster v. De Tastet, 7 T. R. 157. But the captain of a ship in the African trade may insure his "commission, privileges, &c." Mansfield, C. J.-"The chief pay of captains in many trades, as for in- CARTER v. ВОЕНМ. 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[ *596 ] 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 nisi, for a new trial, discharged (k). (k) The principles laid down in this case 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 foreigu 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. P. Eden v. Parkison, 2 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; Haywood v. Rodgers, 4 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; Freeland v. Glover, 7 East, 457. It is not incumbent on the assured to communicate to the underwriter the circumstance of a ship being foreign built; Long v. Bolton, 2 Bos. & P. 209; and see Bridges v. Hunter, 1 M. & S. 15; Gladstone v. King, Id. 35; Foley v. Moline, 5 Taunt. 430, 1 Marsh. R. 117; Vallance v. Dewar, 1 Camp. 503; Campbell v. Innes, 4 B. & A. 423. But see Mr. Serjeant Marshall's observations on the case of Carter v. Boehm, where he says, that he has not been able GULLIVER on the demise of TASKER v. BURR. A. DEMISES to B. from year to year, commencing the 10th of October. B. dies the 27th August: A., the 9th September, gives notice to the executor to quit at the end of the Term: Query, If the notice is sufficient? The Court held 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 (m). (1) 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 ; Roc 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. a certificateman no part of 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 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 ] 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 197.; that Edward Tansur laid out about 157. more to repair it, and built a new shop, and was taxed at the value of 307., 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 20s. a year, but declared she could have let it for 30s. 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 20l. 3s. 6d., and, by deed |