2 Sri n"'^ ^ O =s I ft U ^ «w fe ^ v M^ •■ "■I ' so .5JAEUNIVERS/A A>clOSANCEl£f^ - 3 i ^ 5? ^iSOJIlVDiO'^ ^tfOJIlVDJO"^ ^^,0FCAIIF0% A-OFCAllFOftfc, f 1 ir-^ Si fr# ^ME•UNl\ey//i ^^^1 I 1— 7\ ll) = ^•lOSANCElfj-^ •AUFOI?^ ^IMEUNIVERS/,^ % ^lOSANCEltr^ •'.su.mfiUll^ ^iUAJNaStf^ nV3J0'^ ^^OJIIVDJO'^ ^vOFCAlIFORj^ ^OFCAtlFOI?^ <«f«INIVEl?% :5? A>:lOSAHCElfj> %a3AiNJiav^^' f^' >i bTi *4 j-sov"^ ■^/saaAJNn-jftv^ ^OFCAIIFO/?^ ^OFCAtlFOff^ ^^•AHvaaiii^ >- OS < ^ Wi ^^...^r:^ <J51JONVS01=<^ ameunivers/a "^i^UONVSOl^ ARYQa |UFO/?^^ ^^IIIBRARY(?^ ,5ji\EUNIVERy/A ^lOSANCEier^ vDjo^ ^.aojiivDJO'^ "^xiuowsoi=<^ "^/^aaAiNft-awv^ ^OFCAIIFOff^ .5!i\EUNIVERy/A: ^lOSANCEia^ <J^UDHVSOV<^ %a3AlNftMV ^lUBRARYd?/^ ^OFCAllFOff^ ^^Aavaan# IVERS/A IVER% ^lOS-ANCElfX;> %a3AiNn-3\<^ ^•lOSANCEl^^ Q .^t-UBRARY^/^ ^OFCAUFORj^ .5!flEUN!VER% ^<»0inVDJO=^ <J5U3NYS01^ ^.OFCAIIFOR^ ^^EUNIVERJ/^ ^<2AaV}iaill^ <f3UQNVS01^ — ' ^ 4^mBRARY^/^ lIFOMij^ ^OFCAUFOff/fc, ^l(MfUWVER% '^J'ilJONVSO)'^ vjclOSANCElft^ ,5ji\EUNIVERSy^ -^l-UBRARY(?/^ ii^i f/cTt i^t B BLK aH'^23./Si e. Blk PRACTICAL TREATISE COMMERCIAL AND MERCANTILE LAW OF ENGLAND. By HUMPHRY W. WOOLRYCH, OF lincoln's-inn, BARRISTER AT LAW. The Commercial Law " lies within a narrow compass, and it is far purer and freer from defects than any other part of the system. This arises from its later origin. It has grown up within two centuries, or little more, and been fonned by degrees, as the exigency of mercantile affairs required. It is accepted, too, in many of its main branches, by other States, forming a Code Commercial to all trading nations, which cannot easily be changed without their general consent." Brovghum's Speech on the Reform of the Law. LONDON: J. & W. T. CLARKE, LAW BOOKSELLERS AND PUBLISirERS, PORTUGAL-STREET, LINCOLN 's-lNN. 1829. 0.^^53/: T Luke Hansard & Sons, neat Lincoln's-Inn Fields, London. 5 V THIS VOLUME ON THE COMMERCIAL LAW OF ENGLAND As. BEDICATED TO LORD TENTERDEN, HIS LORDSHIP'S KIND PERMISSION. ADVERTISEMENT, THIS Treatise consists of Four Parts, — 1. THE LAW OF SHIPPING. 2. COMMERCIAL CONTRACTS. 3. BILLS OF EXCHANGE. 4. BANKRUPTCY AND INSOLVENCY, The Author has endeavoured to include in this Volume all the last alterations in the Law, together with the Cases recently decided upon the subject. He has also been particular in giving the opinions of great Judges upon various points of this important branch of our Jurisprudence, in order that its principles should be the more clearly illustrated. The Author submits his Work with much respect to the Public at large and to the Profession. 1, Cloisters, Temple, Jan. 1, 1829. a^ TABLE OF THE PRINCIPAL MATTERS. CHAP. I. SECT. I. Page OF the Navigation Law ------ i The new Navigation Act ----- ibid. Ships - --------4 Mariners --------5 Importation --------6 SECT. II. Registry of Ships ---.---7 Of what ibid. Where --•- - - - - 8 Registry de noto ------- ibid. Ownership - - -- - - - - 9 Oath 10 Bond 11 Loss of Certificate of Registry - - - - 12 Transfer of Ship - -13 Penalties _._----- 16 Liabilities and duties of Owners - - . - 20 For injuries to the Freight, &c. - - - - 26 Of Part-owners - ----- -29 Of the Master - - - - - - 33 His qualification and conduct - - ibid. Hypothecation - - - - - 34 a4 Viii TABLE OF THE PRINCIPAL MATTERS. Page Sale of Ship and Cargo by the Master - - - 40 His liabilities - -- - -- -42 Duties - - 43 Limitation of responsibility of Owners and Masters - 47 Pilotage 50 Licences '-------- ibid. Qualifications, duties of Pilots, &c. - - - - 5" Duties of Captains --.----54 Liabilities of Captains - - - ' - - 55 Rates of Pilotage -------56 How recovered -51 Penalties - - - - - - - -58 SECT. III. Bills of Lading 59 Stoppage in transitu - - - - - - 62 Goods, when in iransitu ------ 65 What will divest the right ----- 70 Factors - - - - - - - - 1^ Charter-parties - - - -- - "73 Date - 76 Description of Parties - - - ^ - - - ibid. Burthen ibid. Letting the ship ---.---77 Fitting ship for outward voyage . . - - ibid. Voyage _ - - ibid. Covenants in Charter-part}' - _ - - - ibid. Demurrage --------80 Supercargo -----.--84 Penalty of Charter-party - . _ - - ibid. Lien for Freight ------- ibid. Varying the Charter-party, or dissolving the Contract 86 Charter-parties governed by the usage of Trade - 88 Payment of Freight ------ 89 Amount of Freight - 90 Freight, when payable by Captors of ships - - 94 JABLV. OF THE PRINCIPAL MATTEfiS. JX Page Illegal Voyage . - . - - _ - 9G Right of Merchant to abandon f(E» Freight - - 97 Apportionment of Freight - - - - - 98 SECT. IV. X)f Insurance. The assured -------- 101 Voyage - - 102 Licence - - - -- - - -103 Goods - - - -.- - - - 107 Prohibited Goods - - - - - - -108 Ship, &c. - - - . - . - - ibid. Changing the Ship - - - - - -110 Insurance of Freight ------ ibid. Warranties - - - - - - - -111 To depart with Convoy - ibid. To Sail at a particular Day - - - - - 113 A neutral Ship - - - -- - -114 An American, Dane, &:c. - - - - - ibid. Sentences of Foreign Courts decisive - - - ibid. Warranted well, &c. - - - - - -iiG Duration of Voyage - - -- - -117 Deviation - - - - - - - -121 Value - - - - - - - - -126 Re-assurance and double Insurance - - - 128 Losses - - - - ' - - - -i2g By perils of the Sea _ - . . _ ibid. Fire 131 Enemies - - - - - - -132 Pirates, Rovers, Thieves • - - - - 133 Jettisons -------- ibid. Detentions - - - - - - - -134 Barratry of the Master and Mariners - - - 135 All other Perils, &c. - - • - - - 137 Abandonment - - - - - - -138 Salvage 143 Who may claim - - -- - - -144 X . TABLE OF THE PRINCIPAL MATTEKS. Page Salvage on re-capture - - - - - -147 TJe-capturcd property of Allies - - - - 148 Rate of Premium - - - - - - -149 Return of Premium 152 General Average - - - - - - -153 Partial Losses - - - - . - - 157, 160 Ship stranded - - - - - - -158 Adjustment _.-..--- 161 Seaworthiness - -- - - - -162 Fraud in Policies - - - - - - -165 Misrepresentation - - - - - - -168 Alteration of Policy - - ■■ - - - 169 Stamp 170 Proceedings upon Policies - - - - - 174 Bottomry and Respondentia " - - - - 175 Of Blockade. What a legal Blockade *L77 Notice of Blockade _----- ibid. Time allowed _.---_ . ibid. Commencement - • . - - . *i78 Who and what Ships liable ----- ibid. Extent of prohibition under Blockade - . _ ibid. Of the violation of Blockade, and the Excuses which are available — Egress and Ingress - - - *i7g Available excuses - - - - - - -*i8i Licence .-._--.. jbid. Condemnation for breach of Blockade - - - *i82 Extent of Condemnation _ - - - . ibid. What a neutral Ship may take away - - - *i83 End of Blockade *i84 Renewal - - - -- - - - ibid. Ships sharing Prizes for violation of Blockade - - ib d. SECT. V. Of Seamen — their Hiring and Wages, nnd other Matters. Hiring and Wages of Seamen - - - - - 177 The Voyage 178" TABLE OF THE PRINCIPAL MWTTERS. XI Page Wages ---- 180 Time of Payment - - - - - - -185 Forfeiture of Wages - - - - - -186 Actions for Wages - - - - - » -192 Apprentices - - - - - - - -193 Quarantine Wreck - 194 195 Carrying Passengers ibid. Dock Acts 199 CHAP. II. OF COMMERCIAL CONTRACTS AND LIABILITIES. SECT. I. OF Contracts for the Sale and Delivery of Goods - 203 Statute of Frauds ------- ibid. Illegal Consideration - - - - - -210 Absolute and conditional Contracts - - - - 212 Conditions precedent - - - - - -214 Warranties - - -215 Delivery of Goods - - - - - - -219 Vesting of Goods as between Vendor and Vendee - 222 Lien - - - -- - - « - 225 On regaining possession of Goods - - - - 229 Waiver of Lien - - - - - - -231 Liens generally, or in favour of particular persons - 232 Lien, on what accounts ------ 234 Power of the Crown to defeat lien - - - - 236 Assignment of Lien --._-_ 237 Rights given by the Lien ibid. Liens for and against third persons - - - - 238 Lien against assignees .----_ 241 Equitable Liens --___.. 243 Guarantees ------- - 044 Statute of Frauds ------- ibid. Sufficient Memorandum ------ 247 Signing --------- 248 XU TABLE OF Till!: PUINCIPAL MATTEllS. Page Surety's liability - 249 Subsequent Partnership ------ 253 Guarantees by persons in particular capacities - - 254 Guarantee, how discharged ----- 255 Contribution by Co-sureties ----- 260 Sale of Goods in lairs and Markets - - - 261 Sale of Goods by public Auction - - - - 262 Credit on sale of Goods - > i - - - - 264 Payment - - - -c - _ ^^ . - - 266 Statute of Limitations ., -; - '■ ^ ^''' .-' " - 272 SECT. 11.^ Of Contracts xvith, and Liabilities of. Particular Persons and Ffiblic Companies. Of Contracts with Aliens - ... - 276 Contracts concerning Auctioneers - - - - 279 Liabilities of the Bank of England - - - - 281 With respect to the transfer of Stock - - ibid. Contracts with and liabilities of Bankers - - - 283 Brokers _..--.-_ 286 Of Carriers -- ibid. East Lidia Company ----.. 294 Sales of the E. I. Company ----- 297 Of Partners -------- 298 Dormant Partners ------- 299 Liabilities of firm for the acts of Co-partners - - 301 Guarantee by Partners ..----- 303 Their liabilities by bill or note ----- 304 By deed, &c. ------- 307 Between themselves ----- ^09 Dissolution of Partnership - - - - - 310 Of Principal and Agent - - -- - -3^7 Liabilities of Principal ------ 319 Duty of Agent ------- 325 Negligence of Agent ....-- 328 Wharfingers -.----». ^^y TABLE OF THE PRINCIPAL MATTERS. XIll SECT. III. Of Commercial Agreements generally ; of rescindhig Cuiiiracls, and the Remedies for enjorcin g them. Page Commercial Agreements - _ _ - _ 330 Of rescinding Agreements - - - - - 331 Remedies for breach of Contracts, &c. - - - 336 Action for deceit ------- ibid. CHAP. III. OF COMMERCIAL SECURITIES FOR MONEk', AND INTEREST THEREON, (i'C. SECT. I. OF Bonds -------- 344 Remedy in case a Bond be lost . - - - 346 SECT. II. Of Bills of Exchange and Promissory Notes - - 347 1. What a good Bill or Note - - - - ibid. 2. Of the Stamp ------ 352 3. Alteration of Bills or Notes - - - - 355 4. Negotiation and trafisfer of Bills or Notes, and of the Title acquired thereby - - - 357 5. Acceptance - 365 for honour ------ 368 Varying the tenour - - _ - 36c) Revocation ------ 370 Waiver of Acceptance - - - - 371 6. Presentment for acceptance and payment - 373 7. Notice of dishonour ----- 37^ 8. Remedies on Bills and Notes - >. - 3^1 SECT. III. Of Interest 4O3 xiv I'ABI.E OF THK I'lUNCIPAL MATTERS. SECT. IV. Page Of Usury 407 By mistake ibid. Commission - - -408 SECT. V. Of the Stock-jobbing Act - - - - - 419 CHAP. V. OF BANKRUPTCY AND INSOLVENCY. SECT. I. BANKRUPTCY - ^ 421 1. Who Traders, and who not . - - - ibid. 2. Act of Bankruptcy ----- 425 3. Petitioning Creditor ----- 435 4. Commission ------ 440 Against particular Persons - - - 441 Partners ----- 442 Second Commission ----- 443 Meeting to open Commission - . - ibid. Proceedings under Commissions - - ibid. 5. Proof of Debts - 45° \Miat Debts proveable ibid. G. Assignees ------- 454 7. Dividend ------- 463 8. Certificate 4G5 9. Allowance - - - - - - - 470 10. Supersedeas - - - - - -471 SECT. II. Of Insolvency .-__.-- ^yi^ Of the discharge of Insolvents under the Lordo Act - 490 INDEX OF CASES. Page Abel v. Sutton - 306. 311 A'Court V. Cross Adams v. Gregg V. LindscU 177 Addis V. Baker Adelaide, ship Adonis, ship - - - Agace, ex parte - - - Aguilar v. Rodgers - - A gutter V. Wilson - - Aid, ship . ~ - - - Aikin, ex parte - - - Akerman v. Humphrey - Alderson t>. Pope - - Alers V. Tobin - - - Alewyn v. Prior Alexander, ship Alfred v. Home Allen V. Bennet V. MaM'son Allison V. Rayner Allnutt V. Inglis Amery v. Rogers Ames V. Milward Amies v. Stevens Amory v. Mery weather - 419 Ancher v. B. of England, 359 Anderson v. Hampton - 448 •272. 274 - - 371 - - 213 - - 18 178 179 303 153 498 145 285 «9 - - 300 - - 47 - 78, n. 39. *i83 - - 289 - 206, n. - - 349 - 478, n. - - 200 - - 157 - - 339 - - 29 Anderson v. Heath — ■ — V. Pitcher V. Wallis Anderton v. Beck Andree v. Fletcher - Andrew v. Moorhouse Page - - 367 - - 111 140, 141 - - 377 ■ - 129 - 89,^ 90, n. - 40 - 80 - 120 *l82 - 163 - 23 Andrews v. Glover - Angerona, ship - - Angerstein v. Bell Anna, ship - - - Annen v. Woodman - Annett v. Carstairs - Anonymous - 30. 48. 87. 92. 182. 184. 261. 496 Anson v. Bailey - o - 388 Anstey v. Marden - - 245 Anthony v. Moline - 103, n. Antoine v. Morshead - 278 Apollo, ship - - - *179 Appleby v. Dods - - 182 Archangelo V. Thompson 136 Arlington, Lord, t. Mer- ricke ------ 249 Armett v. Innes - - - 123 Armstrong v. Smith - - 183 Arnott V. Redfern - - 404 Artaza r. Smallpiece - 82, n. XVI Arthur, ship - *i8o Astey V. Emery - - Atkins V. Tredgold -■ Atkinson v. Carter z: Cotesworth V. Maling - - - . V. Ritchie - - - Attorney General v. Case INDEX OF Pa^e 186 - 20j - 275 - 247 39- 93 - 18 - 26 CASES. 55, n- 5, n- - no t , Wilson Atty V. Lindo - - T'. Parish - - 75, n- Atwood V. Crowdie - - 393 V. Partridge - - 468 Audley v. Duff - - - 153 V. Halsey - - - 24'i Augusta, ship - - - - 37 Auriol t;. Thomas - - 394. Id. n., 417 Austen ;'. Craven - 69, n. 224 Austin V. Hankin - - 496 Aynsworth, ex parte - - 417 Ayton V. Bolt - - - 27^2 B. Backhouse v. Ripley - - 107 Bacon v. Chesney - - 251 Baglehole v. Walters - 219 Baillie v. Moudigliani 97, 98 Bainbridge r. Neilson - 139 Baker v. Birch - - - 388 V. Buckle - - - 20 V. Langhom - - 151, n. r. Ridgway - - - 472 V. Towry - - - 159 Baldey v. Parker - - - 204 Baldney v. Ritchie - - 32 Ball V. Dunsterville - - 307 Ball V. Taylor - - Baltic Merchant, ship Bampton v. Paulin - Bancroft v. Hall - - Egge 345 188 245 382 Bank of England r. Davis 282 Barbara, ship - - Barber v. Fletcher V. Tilson Barclay v. Cousins V. Stirling V. Walmesley - 37 - 168 58, n. - 108 - 122 - 410 311, n. - 114 ibid. Bar foot v. Goodall Baring v. Christie V. Clagett - V. Royal Exchange Assurance - - - - 115 Barker v. Blakes - 106. 140 V. Hodgson - 81. 87 V. Parker - - - 255 V. Slater - - - - 500 Badovv V. Leckie - - - 321' V. M'Intosh - - 103 Barnard v. Palmer - - 433 V. Young - - - 41 3 Barnardiston r. Chapman 31 Barnes v. Hedley - - 397 Barrass v. London Assu- lance - - - - - 119 Barret v- Dutton - - - 183 Barrow, ex parte - - - 301 V. Bell ... - 159 r. Coles - - - - 61 Bartholomew r. Sherwood 425 Barton v. Boddington ■ ex parte - - - t'. Wolliford Barzillay r. Lewis Bastow V. Bennett - C8 - 429 - .27 - 114 - 25G INDEX OF CASES. Bathe i'. Taylor - Batson v. Donovan Baxter, ex parte - Beale v. Thompson Bean i'. Stupart - Beatson v. Haworth V. Schank Beauchamp v. Cash - Beck V. Evans - - Beckwith r. Sydebotham 167 Page 357 ■289 504 182 117 121 77 379 288 Beeching v. Gower Beete v. Bidgood Bell V. Bell - - V. Bilton - - V. Bromfield V. Carstairs - ex parte - ' V. Gibson V. Hobson - V. Humphries V. Jutting v. Kymer V. Nixon - - — — V. Puller - - V. Read - - Bellairs v. Ebsworth Belle, ship - - Bennet v. Moita Bennett v. Johnson • Benson v. Schneider Bentall v. Burn - Bentinck v. Dorrien Bentley v. Griffin - V. Northouse Berens v. Rucker - Bergstom v. Mill - Berkely v. Hardy Bernardi r. Motteux - - 379 - - 418 - 166, n. - - 504 - 116, n. - - 114 - - 303 - - 102 - - 118 - - 32 - - 321 - - 94 - - 139 - - 79 4, n. - 253 - 145 55> n- - 234 - 88 - 205 - 368 - 266 350, n. - 132 - 183 - 75 - 115 Berney v. Davison — — 1. Vyner - - Page 431 ibid. Bi *i77 84 269 27 382 280 Bessey v. Evans - - Betsey, ship - - Betsworth v. Clerk - Bevan n. Hill - - . Bever v. Tomlinson - Beveridge v. Burgis - Bexvvell v. Christie - Bickerdike v. Bolman, 384. 387 Biddell v. Leeder - 13, n. Binstead v. Buck - - - 235 Bird V. Appleton - - 102 Birdwood v. Raphael - 243 Bire V Moreau, 451, n. 453, n. Birkett f. Willan - - 289, n. Birkley v. Presgrave - - 154 Birley i'. Gladstone - - 85 Bishop V. Macintosh - 11, n. 76. 196, n. V. Pentland r. Shillito V. Ware - - ^59 - 270 " 45 151, n. - 98 - 298 Bize V. Dickason - ■ V. Fletcher - - - Blachford v. Pi-eston Blackenhagen v. London Assurance - - - - 142 Blackett v. Smith - - 20O Blackhan v. Doren - 386, n. Blackhurst v. Cockell - 117 Blake v. Nicholson, 227. 234 Blakey v. Dixon - - - 89 Blanck r. Solly . . . yg Blanckenhagen v. Blun- dell 349 Bland, ex parte - - 32. 35 Blanshard, re - - - 30. n. b INDEX OF CASES. Bleasby r. Crossley - - 437 Blenkinsop v. Clayton ■ 206 Blenden Hall, ship - - 144 Blewitt V. Hill - - - 24 Blight V. Page - - - 87 Bloxham v. Pell - - - 300 Boardman v. Sill - - - 231 Bcxldam v. Riley - - - 418 Bodenham v. Bennett -288, n. V. Purchas - - - 284 Bodily V. Bellamy - - 418 Boehm V. Campbell - - 353 V. Combe - - - 118 V. Sterling - - - 362 Bogle I'. Atty .... 25 Bohtlingk v. Inglis - 6,}. 85 Boldero v. Jackson - - 413 Bolland v. Bygrave - - 229 Bolton u. Gladstone - - 115 V. Richard - - • 267 t'. Tate - - - - 241 Bond V. Gibson - - - 302 V. Gonsales - - - 1 1 1 t). Nutt - - - - 1 13 Bondrett v. Hentigg - - 1 29 Bornmann v. Tooke - - 77 Bosanquet ^'.Dudman - 363 395> n- Bottomley r. Bovill - - 122 u. Wilson - - . 259 Boucher v. Lawson - - 28 Boulton I'. Dobree - - 107 Bousfield V. Barnes - - 174 Bovvcher v. Noidstrom - 28 Bowden t\ Vaughan - - 165 Bowness, ex parte - - 450 Bowring v. Edgar - - 497 Boyce v. BaylifFe - - - 35 Boyd V. Dubois - 1 Boydell v. Drummond Bracegirdle v. Heald Bradford v. Levy - - Brain v. Harden - - Bragg V. Anderson Brandon v. Curling V. Nesbitt - 1 Brandram v. Wharton Bray v. Had wen - - Bridges v. Hunter Bridget v. Mills - - Briggs V. Wilkinson - Bright V. Covvper - - Brisbane v. Dacres - Bristow V. Taylor - - V. Towers 7'. Waddington - Brix V. Braham - - Bromley v. Hesseltine Brooke v. Enderby t'. Pickwick - - , V. White - - Brotherston r. Barber Brough V. VVhitmore Brouncker r. Scott - Brown v. Maffey - - V. Messiter - - V. Milner - - V. Stapyleton r. Turner - - V. Vigne - - - Browne, ex parte - - V. Lee - - - Browning ». Kinnear - V. Stallard - - Bruce v. Hurley - - Brutt i;. Picard - - Page 32. 167 - 208 - 267 - 136 69, n. - 123 88. 106 oC. 278 - 275 - 380 - 166 450, n. - 22 - 99 - 97 - 314 - 106 - 215 - 468 - 106 - 315 - 289 - 265 - 139 - 109 - 83 - 389 - 392 - 183 - 155 - 419 - 142 - 236 - 360 382 246 228 356 INDEX OF CASES. Bryan v. Lewis Buck V. Attvvood ■ Buggin V. Bennett Bulkeley r. Lord • Buller V. Fisher - V. Harrison ■ Page - 214, n. - - 191 - ibid. - - 251 - - 27 - - 322 186, 187 330 Bulmer, ship - Bunn r. Guy - Burbridge v. Manners - 364 Burgess, in the matter of, 437 Burghall, assignees of, v. Howard 64 Burgon v. Sharpe - - - 28 Burmester r. Hodgson - 81 Burn V. Brown - - - 228 Burnett v. Kensington - 161 Burnyeat v. Hutchinson 210, n. Burrough v. Skinner - - 279 Burton r. Haworth - 476, n. V. Issit - - - - 497 Busk V. Bell - - - - 104 V. Davis - - - - 67 ■ V. Fearon - - 38, 237 V. Royal Exchange As- surance - - - - - 132 Butler V. Allnutt - - - 80 . V. Hearne ... 290 ■■ V. Wiidman - - - 134 V. Woolcott - • - 65 Buts V. Vine .... 490 Button V. Corder - ' - 217 Buxton V. Snee - - 25. 32 Buzzard r. Flecknoe - 363 Byfield, ship - - *i8o. *i82 Byrne v. Parkinson - - 98 CailifFr. Danvers - - Caldwell V. Ball - - Callow V. Lawrence - Calton r. Bragg - - Calvert f. Bovill - - Calypso, ship - - * Cambridge v. Anderton Camden v. Anderson V. Cowley - - Camelo v. Britten Camidge r. Allenby - Campbell v. Christie - r. French - - V. Hassel - - V. Innes - V. Stein • P«ge - 294 - 60 - 358 - 403 - 116 177, n. - 139 10, n. - - 119 . . 104 - - 376 - - 169 - - 345 - - 324 5, n. 166 - - 32 - 4i> 47 . - 420 41,49' "• - - 281 - 31, n- - - 357 - 471, n. - - 482 — — . Thompson - Cannan v. Bryce - V. Meaburn - Capp r. Tophani - Card r. Hope - - Cardwell r. Martin Carling, ex parte - Carpenter v. White - - Carruthers v. Sydebotham 55, n. 158, 159 Carstairs r. Rolleston - 400 V. Stein ... - 408 Carter v. Boehm - 108, 168 v. Dean - - - - 425 — — V Toussaint - Cary v. White - - - Case V. Davidson - - Castling v. Aubert Catley r. Wintringham Cazalet d. St. Barbe - b 205 25 143 245 47 140 INDEX OF CASES. Chalmers v. Lanion - Champion v. Plummer V. Short - - - V. Terry - - - Chandler v. Grieves - Chapman t'. Black V. Derby - - V. Fraser - - - P.ge - 364 - 206 - 212 392, n. - 183 - 397 238, n. - 169 - 494 - 439 - 453 Chappell V. Ashley , ex parte - - Charles, ex parte - Charleton v. Cotesworth 34, n. Charlotta, ship - - - *i8i Charlotte Caroline, ship - 149 -Christine, ship - *i8o Chase v. Westmore - - 227 Chater v. Beckett - - 246 Cheesman, ex parte - - 201 Chesterfield, Earl of, v. Janson 414 Child V. Morley - 329, 420 Chitty r. Selwyn - - - 102 Christiansberg, ship - *i82 Christina, ship - - *i8l Christopher, ship - - 19 Christian v. Combe - - iGi Christie v. Lewis - - - 84 V. Secretan - - - 116 Christy v. Row - - - 98 Clapham I'. Cologan - - 170 Claridge v. Dalton - 400, n. Clark V. Devlin - - - ^gg V. Hume - - - - 458 Clarke r. Capron - - - 463 V. Gurnell - ■ - 99 V. Noel - - . - 267 Clayton's Cojse - 313, n, 315 Page Clegg t'. Cotton - - - 386 Clement v. Gunhouse 177, n. V. Henley - - - 75 Clements v. Mayborn - 184 Clifford V. Hunter - - 163 Coates V. Railton - - 68, n. Cobb V. Symonds - - 434 Cobban v. Dovvne - - 43 Cobbold I'. Caston - - 209 Cochran v. Ratberg - - 80 Cock V. Taylor - 82, n. 94 Cocking V. Fraser - 160, 161 Cockran v. Irlam - - 73, n. Cockpit, Case in the - 5, n. Coe V. Duffield - - - 247 Cohen v. Hinckley - - 131 Colby V. Hunter - - - 202 Cole V. Shallett - - 77. 81 Collins t'. Lightfoot - 484, n, CoUott V. Haigh - - - 401 Collyer v. Willock - - 276 Cologan V. London Assu- rance - - - - - 141 Columbia, ship - - - *i83 Comet, ship - - - *i84 Conferenzrath, ship *179, n. Connor v. Smythe - - 83 Constable v. Cloberie - 77 u. Noble - - - - 102 Constant Mary, ship - 19 Constantia, ship - - - 64 Constantine v. Pugh - 497 Conway v. Gray - - - 134 Cook V. Jennings - - 100 V. Ludlow - - - 220 Cooke V. Oxley - - 213, n. Cooker v. Child - - - 75 INDEX OF CASES. Cooper r. Elston V. Smith - V. South Copenhagen, ship Coppin V. Craig - - Corlett V. Gordon Cormack v. Bain - - V. Gladstone Corney v. Dr Costa - Cornforth v. Rivett - Cory V. Scott - - - Courier, ship - - Countess of Harcourt, ship 187 Page - 204 - 207 21, n. - 98 - 266 - 61 ■ 497 - 123 ■ 390 - 66 ■ 387 *i8i Covington v. Roberts ■ V. Willan - - Cowie V. Halsall - - Cox V. Prentice - " V. Reid - - 22. V. Todd - - - V. Troy - - - Coxe V. Harden - - Craufurd v. Hunter - Craven v. Ryder - - Crawley v. Impey Crawshay v. Eades - - V. Homfray - - - ^55 • 292 - 355 - 333 24, n. - 220 - 370 62. 68 - 127 43-67 - 447 - 66 - 230 Craythorne v. Swynburne 261 Crofts V. Pick - . - 476, n, Crosse v. Smith - - - 381 Crossley v. Horn - - 364 Crowder v. Austin - - 262 Cruchley v. Clarance - 351 Cruickshank v. Jansen - 102 CuUen V. Butler - 27. 137 Cuming v. Brown - 72, n. Camming v. Forester - 150 Curling r. Long - 89. 100 Page Curry r. Edensor - - - 327 Curteis v. Willes - - - 428 Curtis t'. Perry - - 10, n. Cutler V. Powell - - - 184 D. Da Costa v. Edmunds - 107. 167 r. Firth - 108, n. 141' 162 V. Newnham - 143. 155. - 165 - 399 - 45 - 156 - 150 - 396 - 105 - 62 - 394 " 272 316 V. Scandrett Dagnall v. Wigley Dale V. Hall - - Dalgishe v. Davidson Dalzell V. Mair - • Daniel v. Cartony Darby v. Newton D''Aquila v. Lambert Darnell v. Williams ■ Daubuz V. Morshead David r. Ellice = • Davidson r. Gwynne - 78. 87 > u. Willasey - - - no Davies v. Arnott - ^ 485, n. Davis V. Bank of England, 282 - 229 - 392 - 330 - 466 - 290 55, n- - i6o • 439 - 116 - 191 V. Bowsher - - V. Dodd - - - V. Mason - - in re - - - V. Willan - - Davison v. Mekibben, Davy V. Milford - - Dawe V. Holdsworth Dawson v. Atty - - Day V. Sei-le - - - Deacon, ex parte b3 - 476, n. INDEX OF CASES. Page Dean v. M'Ghie - - 15, n. De Berdt v. Atkinson, 389, n. De Bergareche v. Pillin, 374 De Bernales v. Fuller - 286 V. Wood - - - - 405 Deeze, (x parte - - - 234 Deffell X. Brocklebank 79, n. Defflis V. Parry - - - 80 De Garey r. Claggett - 112 De Garron v. Galbraith - i6i De Gaminde T). Pigou - 150 Deguilder v. Depeister - 176 D'EgLiino I'. Bewicke - 112 De Hahn r. Hartley - - 117 De Havilland t. Bower- bank 403 Delamainer v. Wintering- ham - 1B3 Delany r. Stoddart - - 124 De la Torre u. Barclay - 399 Delauney r. Mitchell - 402 Dennistown v. Lillie - 168 De Silvale v. Kendall - 90 De Tastet v. Taylor - - 104 De Vignier v. Swanson - 102 Dewar v. Span - - Dewell V. Moxon Dick V. Barrell - - V. Lumsden - - Dickman v. Benson - Dimond r. Clarke Dingwall v. Dunster - Diplock V. Blackburn Ditchburn v. Spracklin, Dixon V. Baldwin V. Ewart - - - V. Hatfield - - V. Kcid - - - 61 418 28 110 , 70 - 178 - 499 - 371 - 34 21, n. - 68 75» n- - 245 - 138 Page Dobbin X: Thornton - - 82 Dobell x\ Stevens - 339, n. Dobree x. East India Company - - - - 296 Dobson X. Bolton - - 158 X. Wilson - - 154, n. Doddington v. Hallett - 33 Doe, d. Davidson v. Barnard - - - - - 4^3 d. Palmer x. An- drews - - - - 478* »• d. Pitcher x. Ander- son 43G Doe d. Spencer x. Clark 457» n- . d. Titford x. Cham- bers o . . . - - 416 Doman x. Dibden - - 406 Donaldson x. Forster - 88 XI. Thompson - -115 Doo X. Chippenden - - 32 Dorothy Foster, ship - 146 Dougal X. Kemble - - 94 Douthat, ex parte - - - 438 Dover x. Opie - - - - 33 Dowding X. Mortimer - 336 Down X. Hailing - - - 361 Downes x. Richardson, 357, n. Dowson X, Leake - - 22 Dowthwaite x. Tibbut - 274 Drinkwater x. Goodwin - 242 Driscol X. Passmore - - 124 Druce x. King - - - 492 Dry X. Boswell - - - 29 Du Belloix v. Waterpark 406 DufF X. Budd - - - - 293 — — X. East India Company 313 INDEX OF CASES, Page Dufresne, ex parte - --433 Duhammel v. Pickering 350, n Duncan v. Lowndes - - 254. 304, n. 49> n- - 184 - 3% - 261 . 46 - 166 - i6i Dundee, ship - - Dunkley v. Bulwer Dunn V. O'KeefFe V. Slee - - Dunnage v. Joliffe Durrell v. Bederley Dyson v. Rowcroft Eagleton v. East India Com- pany 297 Eaken u. Thorn - - 181, n. Earle r. Harris - - - 113 V. Rowcroft - - - 135 Eddowes v. Hopkins - - 404 Eden X', Parkison - - - 114 Edie V. East India Company 359 Edwards v. Dick - 380. 397 ■ V. East India Com- pany ----- 182, n. V. Footner - - 105, n. — — V. Hodding - - - 279 V. Sherratt - - - 287 Edwin V. East hidia Com- pany -.-.... 92 Egerton v. Matthews - 2c6 Ekins V. East India Com- pany - - - - 40. 418 Eland v. Karr - - - - 266 Eleanor, ship - - - 9, n. Eliza, ship - - - - - 187 Elizabeth, ship - 4, n. *i8o Elliott V. Davis 75. 307. 344 Ellis V. Hunt - V. Mortimer Turner - 213. xxni Page 67 336 27 207 205 130 Elmore v. Kingscote - V. Stone - - - Elmslie r. VVildman - Elsabe, ship - - *i8o, n. Elsworth v. Woolmore - 1 80 Elton r. Brogden - 124, 136 Emmei*son v. Heelis - - 204 Enderby r. Fletcher - - 125 English x\ Darley - - - 400 Erfurth v. Smith ... 86 Esdaile v. Sowerby - - 378 Evans x'. Marlett - - - 62 V. Williams - 25. 484, n. Everett v. Collins - - - 268 Everth t'. Smith 105. 111. 140 f. Hannam - ■• - 116 V. Tunno - 105. 136 Exchange, ship - *i83, n. Eyles V. Ellis - - - - 267 Eyre v. Dunsford - - 339 tJ. Glover - - - no Faikney v. Reynous - - 331 Fairlie v. Christie - - 170 Faith V. East India Com- pany 86 Falkner v. Ritchie - - 140 Fanny and Elmira, ship - 40 Farebrother v. Simmons 208 Farmer v. Davies - - 24. 42 t'. Legg ... - 164 V. Robinson - - - 326 Farquhar v . Farley - - 405 b4 INDEX OF CASES. Farquhar v. Morris - — — V. Southey, 357 Favourite, ship - • Fayle v. Bird - - • V. Bourdillon Fearon r. Bowers - - Feise v. Bell - - - V. Newnham 1 r. Parkinson V. Waters - - V. Wray - - - Feize v. Thompson Fenn v. Harrison - Fenton v. Pearson Fentum v. Pocock Fernandez v. Glynn - Ferris v. Bond - - Fillis V. Brutton - - Fish V. Hutchinson Fisher, ex parte ' - V. Leslie - - - — — V. Ogle - - - ■ I'. Samuda - - Fitzherbert v. Mather Fladoyen, ship - - Fleming v. Simpson - Fletcher v. Bowsher - V. Braddick - - V. Heath - - - V. Inglis - - V. Poole - - - Flindt V. Scott - • Flook V. Jones - - Flower v. Young - - Foley V. Moline - - Forbes v. Aspinall ■ V. Cowie - - - — — V, Wilson - - Page - ibid. , n- 393 ■ - 191 ' 370, n. - 104 - 60 - 104 - 103 - 169 - 106 - 80 - 319 ' 63 - 371 - 367 - 349 - 166 - 246 451, n. - 348 - 116 - 271 - 169 19- 115 - 271 - 219 24, 28 - 73 27. 130 = 109 103, n. 459. n- 22, n, - 167 - 110 - ibid. - 163 Forman v. Drew - Forshaw v. Chabert Forster v. Christie V. Clements - Forsyth v, Jervis - Fort V. Lee - - Fortuna, ship - - Forward v. Duffield V. Pittard - Foster v. Allanson — V. Frampton V. Jurdison - V. Wilmer FotheYffill V. Walton Fowler i\ M'Taggart Foy V. Bell - - - Franklin v. Hosier France v. Lacy - - Fraser v. Hopkins Frau Isabe, ship - - Frazer v. Marsh - - Freard v. Dawson Frederick Molke, ship. Free v. Hawkins - - Freeland v. Glover V. Walker - - Freeman v. Burgess - 485, n. — -— V. East India Com- pany 41 French v. Backhouse - 32 ». Patton - - - 172 Friends, ship - - - - 98 Friere v. Woodhouse - - 167 Frontine X'. Frost - 187,188 Fry V. Hill 373 Fryer v. Brown - - - 406 Fuller V. Abraham ^ - 263 V. Smith - - - - 284 Page - 481, n. 163. 169 124. 142 - - 284 - - 270 - - 167 - *i8i - - 184 - - 287 - - 310 - - 222 - - 383 - - 125 - - 78 - 67 - 150 - 25 384, n. 21, n. *178 - 23 164, n. *i83 - 390 - 167 - 105 INDEX OF CASES. Furneaux v. Bradley Furnival v. Weston Furtado v. Rogers G. Page - 140 - 308 88. io6 Gabay t'. Llo3:d - - - 130 Gale V. Laurie - - 49, n. Gallway, Lord, v. Matthew 305 Gamba v. LeMesurier 88. 106 Gammon v. Beverley - 162 Garbutt v. Watson - - 204 Gardiner v. Gray - - _- 217 Garnett v. Willan - - 291 V. Woodcock - - 374 Gamham v. Bennett - - 24 Garrels v. Kensington 115, 116 Garside v. Trent Navigation 287 Gates, in the matter of - 493 Geary i'. Physic - - 358, n. Geddes v. Geller - - - 441 Geill V. Jeremy ... 380 General Hamilton, ship, *179 George Home, ship - - 178 Germaine v. Burton - - 270 Gernon v. Royal Exchange Assurance - - - - 143 Geyer V. Aguilar - - - 114 Gibbins v. Phillips - - 503 Gibbon V. Mendez - - 99 V. Scott - - - - 402 V. Young _ - - 86 Gibbons, ex parte - - • 449 ■ u M'Casland - - 246 tj. Rule - - - 317, n, Gibson t'. Minet - - - 285 Gicnar v. Meyer - - - 1 86 Page Gildart v. Gladstone - - 199 Giles v. Edwards - - - 332 Gillan u. Bartlst - - - 499 V. Sirapkin - - - 199 Gladstone v. Birley - - 85 V.Clay - - - - 118 tJ. King - - 34. 166 Glaser v. Cowie - - - 325 Glassford v. Laing - - 408 Glassington v. Rawlins - 433 Gleadon v. Tinkler - - 31 Glennie v. Edmunds - - 150 '— — V, London Assurance 160 Glover v. Black - - - 107 Glyn V. Hertel - - - 250 Godfrey r;. Turnbull - - 311 Godin f . London Assurance 1 29 GofF V. Clinkard - - ■ 14 Golden v. Manning - - 291 Goldschmidt v. Lyon - 150 V. Whitmore - 135 Goldsmid v. Gillies - - 158 Goldsmith v. Taylor - - 501 Gomery v. Bond - - - 333 Goodall V. Dolley - - - 388 V. Skelton - - - 221 Goode V. Harrison - 299 V, Jones - - - - 241 Goodhart v. Lowe - 62 Goodman v. Chase - 249 Goodson V. Forbes - 172 Goom V. Aflalo - - - 208 Gordon ex parte - - - 304 V. Morley - - - Ill V. Rimmington - - 131 V. Swan - - - ■ 403 ■ V. Vaughan - - - 104 Gore, ex parte - - - 474 INDEX OF CASES. Gosling r. Higgins Goss V. Nelson - - V. Withers 20. 132 Goupyf. Harden - - Governor Raffles, ship Grace v. Smith - - Graham v. Jackson - Grant v. Fletcher - ■ V. Gordon Gratitudlne, ship • Graves v. Sawcer ■ Gray v. Cox - - V. Milner Greaves v. Ashlin — — V. Hepke Green v. Brown - V. Davies Green v. Elraslie ■ Page 28 348 138. - 327 - ^4-5 - 300 - 214 325, n. - 4H 36.38 - 30 - 2l8 - 373 - 335 - 223 131 349> n- - 130 V. Royal Exchange Assurance - - - • V. Waring - - V. Young - - Greening, ex parte V. Clarke - - Gregory v. Christie - V. Fraser - - Gregson v. Gilbert Gribble, ex parte - - Groning v. Crockett - Grote V. Milne - - Grove i\ Dubois - - Groves v. Buck - - Guibert v. Readshaw Guillaume Tell, ship - Gunnis v. Erhart - - Guthrie v. Fiske - - Gutz Erwartung - - - 12 - 211 - 126 - 360 457> n- - 107 - 352 - 131 10, n. - 105 72, n. 151, n. 204, n. - 124 *i84 - 263 - 318 *i8o Page H. Haddow v. Parry - - Hadkinson v. Robinson - Hadley v. Clarke - - Hagedorn v. Bazett - - ■ V. Bell - - 104. V. Laing - - - . V. Oliverson - - V. Reid - - - - V. Whitmore - Hague V. French - Hahn v. Corbett - Haille v. Smith - Haines v. Busk - Halkett, ex parte - Hall V. Cazenove - iJ. Fuller - - V. Molineux Hallett V. Bousfield - Haly V. Goodson - - Hamilton v. Houghton V. Mendez - - Hammet v. Yea - - Hammond v. Anderson V. Neame - - V. Reid - - - Hammonds v. Barclay Hamond v. Holiday - Hansard v. Robinson Hanson v. Armitage - V. Blakey V. Meyer - - Harden v. Smith - - Harder v. Brotherstone Hardy v. Innes - - Hare v. Travis - - Harford v. Maynard - 60 142 87 104 277 - 214 - 128 - 104 27. 130 349j "• - 130 - 64 - 212 - 38 - 76 - 283 - 109 - 156 - 31 - 404 - 139 ■ 409 69 283 122 238 329 392 - - 205 - 467. n- - - 66 200 25 141 125 133 INDEX OF CASES, Harman v. Anderson V. Clarke - - V. Gandolph V. Mant - - - V. Vanhatton X'. Vaux - . - Harrington v. Fry r. Halkeld - - Harris v. Huntbach - r. Packwood V. Watson - - Harrison, ex parte V. Harrison - - V. Jackson - - V. Wilson - - r. Wright - - Hart, q. t. a. Hawkins V. Sattley - - Hartfort v. Jones Hartley v. Buggin - V. Case - - - I'. Hitchcock V. Wilkinson Page - 68 - 82 - 81 - 82 - 129 - 159 - 21 - 124 - 245 289, n. - iBi - 33 - 346 74, n- - 82 - 84 - 491 - 205 - 237 - 122 - 379 - 330 - 348 - 411 - 499 Harvey v. Archbold - Haskins v. Morris Haussoullier v. Hartsink, 343 Havelock v. Geddes - 78. 98. 192 - - 135 - - 115 43, n. 70. - - 269 I5»n. 17 - - 339 - 40,41 - - 381 - - 452 214 — ^ t'. Hancill — — r. Rockwood Hawes v. Watson, Hawkins v. Rutt - Hay V. Fairbairn ■ Haycraft v. Creasy Hayman v. Molton Haynes v. Birks - ex parte - - Hayward v. Scougall Page Haywood v. Rodgers - 164 Hearn v. Griffith - - - 331 Hearne v. Edmunds - - 159 Heath field, ex parte - - 501 Hedbergh v. Rearson, 138, n. 160 Hedley v. Lapage - 90 Helena, ship - - - - 20 Henchman v. Offley - - 109 Henderson i. Bise - 420 TJ. Wild - - - - 313 Henkle v. Royal Ex- change Assurance - 170 Heni-ick f. Maria, ship 19, * 178 Henry x'. Lee - - - - 374 Hepper x', Marshall - 476, n. Hernaman v. Bawden - 183 Heselton v. Allnutt - - 125 Hesketh v. Blanchard - 301 Heslop X'. Jones - - - 97 Heylin v. Hastings - - 274 Hibbert v. Carter - - 61 ■ x. Halliday - - - 122 V. Pigou - - - - m Higginbottom, in re - 465, n. Higgins X'. Sargent - - 404 Hilberds x. Pettipien-e - 212 Hilhouse v. Davis - - 404 Hill, ex parte - - - - 202 V. Halford - - - 350 r. Idle - ... 81 X'. Patten - - - 172 X'. Secretan - - - 128 Hinde x'. Whitehouse - 204 Hilton V. Worrall - 485, n. Hoare ik Cazenove - - 368 X'. Clement - - - 25 Hobbs X'. Hannam - - 136 XXVIU INDEX OF CASES. Page Hodgkinson r. Travers - 442 Hodgson r. Anderson 272, n. V. Davies - - - 335 V. Ley - ' - ' 65 W.Malcolm - - - 130 -—U.Richardson - - 166 HofFnung, ship *i8i. *i84 Hog V. Goulding - - 161 Hogan V. Page - - - 405 Hogg V. Homer - - - 153 Holbrow V. Wilkins, 258. 379 Holcombe v. Hewson - 217 Holderness v. CoUinson, 234j n- Holding, ex parte - - 439 Holl r. Pinsent - - 77, n. Holland v. Hall - - - 212 Holman v. Johnson - ibid. Holmes v. Murcott - 484, n. Hoist V. PownaU - - • QQ Hooper v. Lusby - - 32 Hope V. Cust ... - 304 Hopley V. Dufresne - - 379 Hopper V. Richmond - 406 Horatio, ship - - - - 148 Hore V. Whitmore • - 113 Horn v. Gilpin - - ^ 30 V. Far ran - - - 86 V. Monk - - - - 339 Horncastle v. Suart - - 110 Horneyer v. Lushington, 44. ii6,n. 118. 120 Horsley v. Rush - - - 74 Hoskins v. Pickersgill - 109 " v. Slayton - - - 42 Hotham v. East India Company, 86, n. 97. 295, n, Houghton V, Matthews - 230 Page Houlditch V. Desanges - 227 Houviet V. Morris Houstman v. Thornton Houstoun V. Robertson Hovill I'. Lethwaite - Howe V. Bowes - V. Nappier - - X). Palmer - - ex parte - - - - 350 - 131 - 151 - 326 - 378 - 191 - 205 - 49» 358 398 Hubbard v. Jackson, 171 Hubner v. Richardson ■ Hucks V. Thornton, 136. 163 Hudson V. Granger - - 323 V. Harrison - - - 143 Hughes f. Cornelius - - 114 Hulle V. Wightman - - 186 Hullman v. Whitmore - 104 Hume V. East India Com- pany 295 Humphries 1?. Carvalho - 214 v. Wilson - - . 242 Hunt 17. Royal Exchange Assurance - - V. Silk - - W.Ward - - Hunter v. Beale ■ V. Fry - - V. M'Gowan V. Potts - - 141 77 143 332 ibid. 191 «. Prinsep - 49> n- 131- 164 - 40. 47- 74. 99 - - 424 - - 69 Hurd V. Brydges - - Hurry t'. Mangles V. Royal Exchange Assurance - - - - 120 Hurtige Hane - *178. *i8o Hussey v. Christie - - 39 Hutchins v. Hesketh - 495 INDEX 01- CASES. Hutchinson v. Bell - Hutton r. Braffgr . Hyde v. Willis - - Page 85 I. & J. I'Anson v. Thomas - - 354 Jackson v. Charnock - 155 V. Davison - - 483, n, V. Fairbank - - - 275 V. Hudson - - - 369 — — V. Irvin - . - . 242 V. Lowe - - - - 207 V. Pigott - - - 365 Jacob, ship - - - - 36 V. Shepherd - - - 431 James, ex parte - - - 446 James Cook, ship • *i83, n. V. East India Com- pany 92 X'. Holditch - - - 377 James v. Jones - - - 23 Jamieson v. Laurie - - 83 June & Matilda, ship - 183 Jaques v. Withy - - • 330 Jarratt r. Ward - - - 123 Idle V. Royal Exchange Assurance - - 41. 142 JefFery r. Legender « - 112 Jell V. Pratt - - - - 162 Jellis V. Mountford - - 436 Imina, ship - - - *i8i Jeudwine v. Slade - - 218 Jenkins v. Reynolds - - 210 Jennings v. Griffiths - - 21 Jesson V. Solly - - - 82 Ingham v. Agnew - - 105 Inglis f. Underwood - 63 XXIX Page Inglis V. Vaux - - - - 123 Ingram v. Shirley - - 269 John, ship ----- 25 Johnson v. Broderick - 182 V. Greaves - - 38. 80 — - r. Hill - - - 233, n. V. Machielsne - - 1 86 V. Marlborough, D. of 357 V. Sheddon - - - 158 V. Shippen - - - 40 Johnston v. Benson - - 27 Jolly V. Young - - 92, n. Jones, in the matter of - 494 V. Bowden - - - 217 V. Cooper . - - 244 V. Cox - - - - 496 V. Hibbert - - - 393 V. Nanney - - - 263 V. Pearle - - - 230 V. Ryde - - - - 365 V. Schmoll - - - 129 Jonge Peter, ship - *179 Petronella, ship *178 Joseph V. Knox - - - 41 Joyce V. Williamson - - 176 Irvine v. Young - - - 341 Isabella Jacobina, ship - 87, 89. 99 Isabella, ship - - - - 180 Juffrow Maria, ship - *i8i Julia, ship - - - - *179 Justin V. BuUam - - - 25 K. Keane v. Robarts Keato T'. Temple 343 245 XXX IMDI.X Of CASES. Page Keir i\ Andiade - - - 105 Kellner v. Le Mesurier - 88. 106. 153 Kemble v. Atkins - - 318 Kemp V. Vigne - - - 127 Kennedy v. Lee - - - 314 Kennerly v. Nash - - 405 Kensington v. Chantler - 460 u. Inglis - - 104. 171 Kent V. Bird - - - - 127 V. Lowen - - - 410 Kenwortliy v. Schofield - 208 Kenyon v. Berthon - - 117 Kerr v. Willan . - - 290 Kerrison t. Cole - - 13, n. V. Cooke - - - 371 Kewley v. Ryan - 109. 125 Keyser r. Suse - - 6q, n. Kierlighett, ship - - - 19 Kilby r. Wilson - - - 299 Kilsby V. Williams - - 286 Kill V. Hollister - - - 174 Kindersley v. Chase - - 115 The King v. Bank of England ----- 65 Thfe King v. Directors of Bristol Dock Company, 201 King V. Glover - - - 108 Kingston v. Knibbs, 120. 1G7 Kinloch v. Craig - - - G5 Kirby v. Malborough, Duke of - - - - V. Smith - - - Kirkley v. Hodgson - Kirkman r. Shavvcross Klingender r. liond - 103, n. Knight V. Crockford - - 248 — — V. Fowler . - - 493 252 166 236 Knill T. Williams Knox V. Wood Koster v. Eason - - V. Innes - - - V. Reed - - - Kymer v. Suwercropp Page - - :357 111. 127 - - 151 - - 131 - - ibid. 324 L'Actif, ship - - - - 148 Lar Henriette^ ship - *i84 Laing r. Fidgeon - - - 217 Lambert t). Liddard - - 123 Lang V. Anderddn - - 113 Langdon v. Rossiter - - 503 Langhorn r. Allnutt - - 122 V. Cologan - - - 169 V. Hardy - - - - 118 Langton I'. Hughes - - 211 Lannoy v. Worry - - - 82 Lanyon v. Blanchard 239, n. 240 Laroche v. Oswin - - - 123 V. W^akeman - - 7, n. Lateward v. Curling - - 155 Latham v. Stanbury - - 292 Lavabre t. Wilson - - 125 r. Hodson - - - 211 Law V. Hollingsworth - 164 Lawrence u. Aberdein - 139 r.Sydebotham - - 122 Laxton V. Peat - - - 371 Lazarus r. Waithman - 429 Leach v Hewitt - - - 389 Leadbitter v. Farrow - 325, n. Leadley t\ Evans - - - 250 Le Cras t). Hughes - - 158 Ledbettcr r. Salt - - - 503 INDEX OF CASES. KXXI Lee t'. Beach - V. Cass V. Munn - Page - - 162 - - 410 280. 404 Leeds v. Wright - - - 68 Leer v. Yates - - - - 81 Leevin v. Cormac - - 105 Leftley v. Mills - - - 378 Leggatt V. Read - - - 2G5 Leggett V. Cooper - - 271 Leigh V. Mather - - - 1 20 V. Smith - - - - 293 Lemcke r. Vaughan - - 103 Le INJesurier v. Vaughan - 109 Lemprere v. Pasley - - 229 Lench v. Pargiter - - 498 Leslie r. Wilson - - - 74 Lethulier's case - - - 1 1 1 Levi, ex parte - - - - 428 V. Waterhouse - 289, n. Levy 7'. Barnard - - - 230 Lewin v. Suasso - - - 137 Lewis V. Cosgrave - - 395 r. Rucker 126, 127. 158 Lickbarrow v. Mason 6i. 71, n. Liddard v. Lopez ■• 40. 82. 99 Lilly V. Ewer - - - - 1 1 1 Liralaiid r. Stephens - - 187 ! Lisette, ship - - - *i82 ! Lister v. Baxter - - - 37 | Litt t\ Cowley . . . ~ 66 Livie V. Janson - - - 130 ! Lloyd V. Ashby - - - 3^72 V. Peell - - - 485, n. Lockyer X'. Offley 119. 137 Lodge u. Dicas - - - 315 Loeschman v. Machin - 281 • V. Williams - - - 222 Long r. Allen - - . - 153 Long V. BailHe - - Lord Hobart, ship Lorymer v. Smith Lothian v. Henderson Lovell V. Martin - - Lowe V - - Lowes V. Mazzaredo - Lowry v. Bourdieu Lucas V. Dorrien - 6g. Lucena v. Crawfm'd - Luke V. Lyde - - - Luna, ship - - - - Lutwidge v. Grey - - Lynch v. Dunsford - r. Hamilton Lyon V. Mells - - Maajiss u. Henderson M 'Andrew r. Bell M'Andrews v, Vaughan Page - 39« 160, n. - 216 - 115 - 361 - 60 - 397 - 127 n. 228 - 128 97- 98 *i78 97- 98 - 166 - ibid. - 29 - 249 - 166 iGo Macbeath v. Coates V. Ellis - - . M'Combie v. Davies - M'Connel v. Hector - M'Dougle V. Royal Ex change Assurance - Macdonald v. Bovington Macdowall v. Eraser - Macintosh v. Haydon M'lntosh V. Voy - - M'lver V. Henderson - V. Humble - - V. Richardson - Mackenzie v. Rowe - Mackie v. Landon Mackrell v. Sirnond - M'Master v. Shoolbred M'Nair v. Fleminfr 462, n. - 504 - 241 - 277 iCo 393 - 168 - 355 - 5G - 140 - 21 - 249 - 23 54, n. 78, 98 - 140 - 307 M'Neill V. Cahill - - 483, n. INDEX OF CASES. rage Page Maddocks v. Rumball - 412 Mason v. Skurray - - - 160 V. Hammett - - - 4'9 Master of the Trinity H ouse Maeburn v. Leckie - - 41 v. Clark - - 23. 77. 85 Magalhaens v. Buslier - 112 Master v. Miller - - - 355 Maggs V. Hunt - - 474 Masterman v. Cowrie - 410 Mainwaring t'. Brand on - 328 Matson v. Wharam - 244 Mair v. Glennie - - 17, 18 Matthews, ex parte - . 18 Man :;. ShifiPner - - 226 V. Griffiths - - 409, n. Manfield v. Maitland 90, 107 Mavor r. Simeon - - - 150 Mann v. Forrester - - 239 Maxwell v. Jameson - - 260 V. Moors - - - - 382 May V. Christie - - - 162 V. Shepherd - - 437 Mayhew v. Eames 290, n. Manning v. Commissioners, Mayne v. Walter - - - 116 &c. under W. I. Dock Mayor v. Johnson - 391 Act ... - - 200 Mead v. Young - - - 363 V. Gist - - - 112 Mellish V. Allnutt - iiB Manton v. Moore - - 224 u. Andrews - - - 121 Maria Theresa, ship - 191 Melville v. Hayden - - 252 Maria, ship - - 11 6. 144 Menetone v. Gibbons - 37 Mai-ryatts v. White - 253 Mennett u. Bonham - 103, n. Marsden v. Reid - 12 3. 171' Mentor, ship - - - •180 Marsh, ex parte - - 236 Mercurius, ship - *178. *i82; V. Home - - 289, n. *i83 V. Martindale - 416 Mesnard r. Aldridge - 263 Pedder - - 46, n Mestaer v. Atkins 13, n. Marshal v. De la Torre - 83 Metcalf 1', Bruin - - - 254 Marshall v. Paiker - - 13' Metcalfe v. Parry - 123 V. Poole - - - - 404 INleyer v. Everth - - - 216 V. Wilson - - 39 V. Nias - - - - 266 Marsham v. Dutray - - 154 t\ Sharps - 243. 298 Marson v. Barber - - - 437 Meyne v. Walter - - - 168 V. Petit - - - - 357 Middlewood x. Blakes - 125 Martin v. Crockatt - - 143 Miles u. Rawlyns - - - 436 r. Morgan - - - 334 Millen v. Whittenbury - 468 Martini v. Coles - - 73, n. Miller V. Brant - - - 187 Mary Ann, ship - - 145, n- Milles V. Bainbridge - - 79 Mashiter v. BuUer - - 90 V. Fletcher - - - 139 Mason v. Pritchard - - 251 Mills V. Bainbridge - - 97 INDEX OF CASES, XXXlll Mills U.Bali - - Page - 60.65 V. Elton - " - 427 — V. Roebuck - - - 162 Minerva, ship - - - - 178 Minett v. Forrester 120. 150 Minnit v. Whinery Mitchell V. Glennie - - 302 - - 22 V. Scaife - - - 86, n. Moffat V. East India Com- pany - 296 Moir V. Royal Exchange Assurance - - - - 113 Moller V. Living - - - 91 Monkhouseiy. Hay Montagu v. Janverin 15, n. 17 - - 98 Montgomery x'. Egginton 110 Moore v. Bowmaker - - 256 Moores v. Hopper Moorsom v. Bell - - - 74 - - 81 V. Greaves - - - 92 V. Kymer Mordy v. Jones - Morgan, ex parte - 93, 94, n. - - 91 - - 140 - - 227 V. Davison - - - 374 V. Oswald - - 104 Richardson - - - 271 Morisset v. King - - - 415 Morison v. Graj-^ - Morris v. Cleasby - - 62 - - 321 r. Lee - - - - 395 V. Robinson - - 40,41 Morrison v. Bell - - - 81 V. Parsons - - 74 Morse v. Slue - - - - 27 V. Wilson - - 411 Mortimer v. Fleeming 14, n. Morton t'. Lamb - - - 215 Page Moss 1'. Byrom - - 124, 135 Motteux V. London Assur- ance - - - 102. 124. 170 Mount V. Harrison 142. 202 Mountague v. Tidcombe, 257 Mountford v. Scott - - 229 Mouse's case - - - - 133 Mucklow V. Mangles 224, 225 V. May - - . _ 428 Muilman r. D'Eguino - 383 Muir c. Fleming - - -229 Muller V. Gernon - - - ^7 Mullettu. Sheldon - - 138 Mulloy V. Backer - - - 100 Munn V. Baker - - 290, n. Murray v. East India Com- pany 319, n. V. King - - - - 384 Mussen r. Price - - - 065 N. Nares v. Rowles - - - 258 Nathan v. Giles ■ - - 61 Neale v. Reid - - - - 228 Neave v. Pratt - - - 187 Nelson, ship - . 35. 53, „. Nelson v. Macintosh - 45, n. Neptune, ship - _ - 183 Neptunus, ship - *i78. *i84 Nesbitt v. Lushington 134. 160 Neutralitet, ship - - *i8o Newby u. Read - - - 131 Newland v. Horseman - 92 Newman u. Cazalet - - 156 V. Newman - - - 344 V. Walters - - - 1 44 Newmarch v. Clay - 313, n. XXXIV INDEX OF CASES. Newsome v. Coles Newsom r. Thornton NichoUs V. Neilson 4 Nichols V. Clent - - Nicholson v. Chapman v. Gouthit - - . V. Willan - - Nickson v. Jepson Nicol V. Gooduil - - Nix v. Olive - - - Noble r. Adams - • V. Kennoway Nonnen v. Reid - Norris v. Aylett - - Northey v. Fied - - Norton v, Moseley V. Serle - - - Norville v, St. Barbe - Nossa Senhora da Adjuna Nunney v. Hall - ■ Nutt I'. Bourdieu - - O. Ocean, ship . - - Oddy V. Bovill - - Ogden V. Aspinall Ogilvie V. Foljambe - Ogle V. Atkinson - - V. Wranghara Olhsen v. Drummond Olive V. Eames - - Olive V. Smith - - Oliver V. Cowley - - Oppenheim v. Russell Opy V. Child - - - Orchard r. Thomas - Orr V. Churchill - - Page - 300 Orr t'. Magennis - _ Page 385, "• 73, n- }i.495 - 226 - 2.35 - 389 Osborne, ex parte V. Harper Osgood V. Groning Oshey v. Hicks Ossulston, Lord, v. - - 426 - - 316 - - 99 . . 76 Lord - 291 Yarmouth - - - - 417 - 265 Oswell r. Vigne - 116, n. 126, n- 66, 71 Ougier V. Jennings Ousten V. Hebden 120, 167 - - 31 - 68 Ovvenson f. Morse - - 232 - 120 Owston V. Ogle - - 33 - 118 Oxley V. Young - - - 259 - 393 - 66 - 486 P. - 92 - 123 a *iS4 Page V. Bussell Palmer v. Baker - V. Blackburn - 485, n - 40S - 156 - 501 - 136 V. Gooch V. Pratt - - - - 25 - 107 Parish v. Crawford - 23, n. Parle V. Hammond - - Ill *J79 9- 115 - 253 Parker v. Beasley - V. James - - V. Leigh - - t). Palmer - - 151 45.47 - 372 " 2l6 - 207 - 224 - 32 V. Ramsbottom V, Smith - - Parkin v. Dick - - 413 - 150 - 105 - 78 V. Tunno - - 142 - 292 Parkinson v. Lee - - - 217 - 232 Parmeter v. Todhunter 39-42 - 162 Parr v. Anderson - «• - 122 - 65 ■ 191 ex j^arte - - V. Eliason ^ - 229 - 397 - 492 - 405 Parsons v. Scott - Pasley v. Freeman - - 139 - 338 INDKX OF CASES, XXXV Page Pasmore v. Bousfield - 32 V. North - - - - 365 Paterson v. Gandasequi - 324 Patience v. Townley 377, n. Patten lu Thompson - Paul 15. Birch - - - V. Eden - - - - 65 - 85 - 185 - 117 - ibid. - 263 367, n- - 299 55, "• - 492 - 187 - 391 - 267 - 257 - 252 6, n. Page Pawson V. Barnevelt - V. Watson - - Payne v. Cave - - Peach t'.Kay - - - Peacock v. Peacock - Peake v. Carrington - Pearce v. Cowie - - V. Taylor - - Pearl, ship - - - - Pearse v. Pemberthy - Pedder v. Watt - - Peel V. Tatlock - - Peet V. Baxter - - Pelican, ship - - - Pelly V. Royal Exchange Assurance - - - - 120 Penrose v. Wilks - - - 93 Pensamento Fehz, ship - 148 Perham v. Raynall 274. 276 Perring v. Hone - - - 356 Peters u. Milligan - - - 133 Peto V. Blades - - - - 280 Philips V. Astling 258. 383 Phillimore v. Barry - - 208 Phillips r. Barber - - - 137 I). Champion - - 119 V. Fordyce - - - 257 V. Rodie - - - - 85 V. Sheriff of Essex 426 V. Whitmore - - 486 Phipson V. Kneller - - 382 Phyn V. Royal Exchange Assurance - - - - 1 36 Pickering v. Barclay - - 27 V. Busk - . - - 320 r r. Dovvson - - - 338 ' Pidcock r. Bishop - - 251 Pierson r. Hutchinson - 269 Pieschell r. Allnutt - - 104 Pike r. Ledwell - - -412 Pinder v. Wilks - - - 94 Pipon V. Cope - - - - 136 Pirie r. Anderson - - 22, n. Pittam V. Foster - - - 275 Planche v. Fletcher - - 168 Plantamour u. Staples - no Plummer v. Wildman - 154 Poingdestre v. Royal Ex- change Assurance - - 158 Pollard 1'. Bell - - - 116 V. Herries - - - 394 Poole V. Smith - . - 30)2 Pothonier u. Dawson 231. 237 Potts V. Bell - - - - 2 1 1 V. Reid . - - - 359 Potsdam, ship - - - *179 Powel V. Nelson - . - 324 Powell V. Gudgeon 129, 139 V. Parkinson - - a 75 Power V. Whitmore 155, 156 Preston, ex parte - - - 429 r. Jackson - - - 398 Price V. Bell - - - - 116 V. Lea - - - - 2 1 3 V. Mitchell - - - 375 V. Nixon - - - - 265 V. Noble - - - - 133 Prideaux v. Collier - - 378 Pringle t'. Hartley - - 138 c 2 INDEX OF CASES. Page - 148 - 444 - 218 - 354 - 127 79-91 - 431 - 239 Progress, ship - - Prosser, ev parte • - V. Hooper - - Prussing v. Ing - - Puller x\ Crlover - - V. Staniforth - • Pulling v. Tucker Pultney v. Keymer R. Raba v. Ryland - - Racehorse, ship - - Raikes, ship - - - Raine v. Bell - - - Raitt V. Mitchell - - Ramstrom v. Bell Randall v. Lynch - - Rann v. Hughes - - Raper v. Birkbeck - Rapp V. Allnutt - - V. Latham - - RatclifFe v. Shoolbred Rawlinson v. Jansen - Rayner v. Godmond - Rea V. Burnis - - Read v. Bonham - V. Nash - - - Reader v. Knatchbull Redhead v. Cater Redman v. Lowdon - Reed v. Deare - - r. Mestaer - - - 264 V. White - - - 31 Reeves r. Lambert - 481, n. Reid V. Darby - - - 40 V. Hollinshcad - - 298 Reusse v. Meyers, 21, n. lOO - 303 - 89 - 144 - 124 25, n. - 172 80, 81 - 203 - 357 173>"- - 308 - 166 - - 104 • - 159 ■ 90, n. 41- 139 - - 244 221 2 123 172 Page Rex V. Bailiffs of Ipswich, 493 V. Bank of England, 281 V. Belk - - - - 501 V. Bristol Dock Cora* pany Directors - - - 201 V. Collector of Cus- toms of London - 7, n. Tj. Clifford - - -503 V. Cuming - - 487, n. V. Curvven - - - 500 V. Davis - - 491. 497 v. Dunne ... 503 V. Hubbard - - - 502 r. Lee - - - - 236 V. Pixley - - 16, n. V. Post - - - 3^:17, n. T. Samson - - - 491 V. Tomkins - - - 495 V. Wakefield - - 492 Reyner v. Hall - - - 162 Rhadamanthe, ship - 37, 38 Rhodes v. Gent - - - 375 Rice V. Lee - . - - 495 Rich V. Coe - - - 22. 42 V. Parker - - - 114 Richards v. Porter - - 207 Richardson v. Anderson 162 V. Goss ^ - - - 65 -^ — V. Nourse - - - 47 Rickford v. Ridge - - 376 Ricord r. Bettingham ~ 278 Ridley v. Taylor - - - 305 Ridsdale r. Newnham - 114 1 . Shedden - 112.171 Rinquist v. Ditchell - - 28 Ripley v. Scaife - - - 92 Ritchie r. Atkinson - 78, 91 V. Boilsfield - - 55, n. Roberts v. Hardy r. Holt - V. Wetherall Robertson v. Caruthers INDEX OF Page - 277 - 94 - 19. n- 139 V. Clarke - r. Ewer - V. French V. Money Robins v. Gibson - - Robinson v. Bland - - V. Lyall - - - - f . Macdonell 13, n 42- 139- J73, n. - - 109 - - 117 - 173> n. - - 380 39^ 25 17- 18 - - 104 - - 33 104. 172. - - 47 37(3 25 170 81 180 V. Morris V. Thompson . V. Touray • V. Turpin - - Robson V. Bennett - Rocher v. Bucher Roderick v. Hovil) - Rodgers v. Forrester V. Lacey - - Roe, d. Hunter, t. Gal- liers 458 Rogers v. Hunter - - 201 V. James - - - 439 V. Kingston - - 483, n. u. MCarthy - - 171 Rogerson v. Ladbroke - 285 Rohl r. Parr - - - - 131 Rolla, ship - - - ^ *177 Rolt V. Watson - - 392, n. Roper V. Coombes - - 332 Roscovv r. Corson - - 136 r. Hardy - - - 391 Rose V. Green - - - 433 V. Hart - - - - 228 CASES. Rosher r. Kieran Ross V. Hunter I . Thwaites t. Walker XXXVll Pate - 379 - 130- - 107 - 134 - 153 - 303 - 128 - 27 - 67 Rotcli V. Edie - - Rothwell V. Cooke - V. Humphreys - Routh V. Thompson - Rowcroft V. Dunsraore Rovve V. Picktbrd Rowlandson, ex parte, 298. 442 Rowley v. Home - - 290 Roylance v. Hewling - 502 Ruck V. Hatfield - - 43. 67 Rucker v. Ansley - - 104 V. Hiller - - . 385 V. London Assu- rance - - - - -121 Rugg V. Minett - - - 223 Rushforth t. Hadfield - 233 Russel r. LangstafFe, 351. 364 Russell V. Bangley - 151, n. V. Hankey - - - 328 V. Moseley - - - 248 S. SafFord, ex parte - - 470, n. Sagart v. Scott - - - 82 Saint Martin, Overseers of, V. Warren - - - 468 Saint Saviour's, Wardens of, r. Bostock - - - 250 Salisbury v. Townson - 125 Salomons v. Nissen - - 70 Saloucci y. Johnson - - 116 t . Woodmas - - 114 Samson 'v. Bragginton - ^G Samuel v. Darch - - - 294 C3 XXXVlll INDEX OF CASES. Page Samuel v. Howarth - - 25G Sanders v. Kentish - - 420 Sanderson r. Busher - - 112 r. M'Cullom - - 170 Sandilands r. Marsh - - 303 Sargent v. Morris - - 62 Sarquy v. Hobson - - 1 39 Sarratt v. Austin - - 438 Saunders v. Wakefield - 209 Saunderson r. Jackson, 206, n. Saville V. Campion - - 85 Sawtell V. Loudon - - 171 Scales V' Jacob - - - 273 Schack V. Anthony - - 74 Schnakoneg v. Andrews, 103, n. Schmoling, ex parte - - 278 Schneider u. Heath - - 219 r. Norris - - 206, n. Scholes V. Hampson - - 246 Scholey v. Powell - - 494 ■ V. Ramsbottom - - 283 Schroeder v. Vaux - - 105 Schroder v. Thompson - 136 Scot V. Schatwz - - 4, n. Scott ti. Bourdillion - 160, n. V. Brest - - - 41 1 V. Gilmore - - 210, n. V. Pettit ... - 67 V. Scott - - - 1.4. 28 . V. Thompson - - 124 Scudamore v. Vanden- stone ------ 75 Seaman v. Fonereau - - 165 Selby V. Eden - - 370, n. V. Selby - - - - 210 Sellar V. M'Vicar - - 110 Sdway i. Holloway - - 293 Page Sewell V. Royal Exchange Assurance - 102, 133, n. Shadforth v. Higgin - - 78 Shank, ex parte - - - 25 Shaw r. Felton - - - 158 Shee V. Clarkson - - - 150 Shephard r. De Bernales, 60. 93 Shepherd v. Beecher - 252 r. Chewter - - - i6i V. Kain - - - - 219 Shepherdess, ship *179. *i8o Shepley r. Davis - - 67 Shirreff v. Wilks - - - 254 Shirwell u. Shiplock - - 28 Shoolbred v. Nutt - - 164 Shubrick v. Salmond - 79 Shuttleworth v. Stephens, 349 Sidaways v. Todd - - 329 Sidney Cove, ship - - 36 SifFken r. Allnutt - 80. 105. 107, 108. 152 ■ V. Glover - - - 105 r. Lee - - - - 116 V. Wray - - - - 63 Sigard t. Roberts, ]8j, n. 187 Simeon v. Bazett - - 1G7 Simmons v. Keating - - 250 1'. Swift - - - . 223 Simond v. Boydell - - 153 Simonds v. White - - 156 Simson v. Cooke - - - 253 u. Ingham - - - 313 Siordet v. Brodie - - - 198 Sjoerds v. Luscombe - 87 Slack t). Lowell - - - 404 Sleat V. Fagg - - - . 292 Skiby r. Hey ward - - 0'8 Smedley r. Roberts - Smith r. Barrow - - V. Beckett - • r. Clarke - • V. Currie - • V. De Silva - • V. De Witts - • ex parte - - ■ V. Ferrand - • V. Fuge - - ■ V. Goss - - ■ V. Home - - r. Kendall ' V. Knox - - • V. M'Clure - V. Mercer I . Nightingale 1'. Nissen V. Pickering V. Plummer - V. Readshaw V. Robertson V. Scott - - V. Shepherd V. Surridge - •!;. Thatcher - ' V. Watson V. Wilson Snaitli f. Mingay Snee r. Prescott => Snell V. Marryatt Snook V. Davidson S Games r. Lonergan V. Spencer - . Scares v. Thornton Sodergreen v. Fliglit Solarte r. Melville Solly V. Rathbone INDEX OP Page - 4H - 3oy - 389 - 358 - 4'29 - 33 - 372 - 440 - 268 21, n. - 68 . 288, n. ■ - 351 ■ - 401 - 35^ - 334 - 347 ■ ' 36B ■ - 360 . - 40 • - 11'2 140, n. 27. 130 26, n. • 19, n- • - 390 . - oyS ■ - 99 ■ - 353 • - 62 ■ - 44 ■ - 240 • - 79 - - 137 - 45 - - 410 - 73> "• CASES. XXXlX Page Solly I. Whitmore - - 122 Sowley V. Jones - - - 469 Sparenburgh v. Banna- tyne 2-/8 Sparrow v. Carruthers Spear r. Travers - - Spears v. Hartley Speculation, ship - Speering v. Digrave - Speldt t. Lechmere - Spes . - - . . Spes and Irene Spilta V. Woodman - Splidt V. Bowles - - Spooner x\ Gardiner - Stadt V. Lill ... Stamma r. Brown Staples V. Okines - - Stead V. Salt - - - Stedman r. Gooch - Steers v. Lashley Steiglibz v. Egginton Stephenson, v. Hart - Stevens r. Elizee - - V. Jackson - V. Lynch X. Thackcr - Stevenson r. Snow V. York - - Stewart v. Bell V. Dunlop t . Fry - - r. Hall - - Stilk V. My rick - Stokes I . Carne - 1'. La Riviere Storer v. Gordon - Storr I. Cvowly - - 121 69, n. - 233 180 - 32 15, n. *i8o *i77 - 118 - 74 - 386 - 210 - 136 - 38(3 - 308 - 264 - 419 - 307 - - 293 - - 441 432. 439 - - 399 - - 372 - - 153 - - 83 - - 167 - - 1C9 - - 333 - - 3-2 - - 181 - 21, n. - - 65 - 7B. 99 - - 293 Stoveld V. Eade < V. Hughes - Strange v. Lee Strelley v. Winson Stringer v. INI array Strong V. Hart V. Natally INDEX OF Page - - 69 253- 317 - 30, n. - 8, n. - 4G - - - 121 Struck T. Tenant - - - 81 Sturdy v. Henderson - 354 Success, ship - - *i82, n. Summersett v.- Jarvis - 425 Sutton f. Bank of Eng- land 282 — — - r. Buck - - - - 144 V. Mitchell ... 48 Swan V. Steele , - - 305 Svveenie v. Sharp - - 490 Sweet V. Pym - 65. 230. 234 Swinyard v. Bowes - - 383 Syeds v. Hay - - - - 47 Syers v. Bridge - - - 122 Symmons v. Want - - 247 Tabbs V. Bendelack - - 114 TaittJ. Levy - - - - 164 Tanner X'. Bennett - 139.175 I'. Smart - - 273, 274 Tapley v. Martens - - 93 Tappenden v. Burgess - 430 Tarleton v. M'Gawley - 43 Tasker v. Cuninghame - 123 Tate V. Meek - - - - 85 v. Wellings - - - 412 Tatlmmv. Hodgson - " 131 Tawney r. Crowther - - 248 .Taylor v. Briggs - - - 267 CASES. Taylor v. Buchanan - V. Chambers V. Curtis - - - V. Lendy - - — — t'. Robinson - - -—— v. Taylor - - V. Wilson - - V. Woodness Tempest v. Fitzgerald Thackray r, Bennett Thelusson v. Fergusson — ■ — V. Fletcher - - Thermolin v. Sands - Thomas v. Clarke - - V. Day - - - P.ge - 482 - 261 = ^55 - 331 - 226 - 464 -126 - 112 - 205 - 385 113- 125 - 127 - 18 9O' 91 - 294 V. Royal Exchange Assurance - - Thomason v. Frere Thompson v. Brown V. Collins - - - V. Farmer - - - — — V. Giles - - - . V. Havelock - - V. Inglis - - - - V. Maceroni - - - V. Royal Exchange Assurance 36. 141, 160. 176 - 124 - 306 - 86. 312, n. - 189 - 201 - 363 - 34 - 79 - 205 V. Taylor V. Wagner V. Whitmore Thorneley v. Hebson Thorogood v. Marsh Thornton v. Boland V. Dunphy - V. Fairlee Thornton v. Meux - 110 - 83 7- 131 - 140 - 239 55,^' - 493 - 100 2u8, n. INDEX OF CASES. Xll Page Thurgar v. Morley - - g6 Tidmarsh r. Grover - - 355 Tiernay r. Etherington - 120 Till V. Wilson ... - 503 Tinkler r. Walpole - 21, n. Tobin, ex parte - - - 442 Tod V. East India Com- pany - - - - 295, 296 Todd u. Reid - - - 151, n. r. Robinson - - 320, n. Toleman T. Jones - - - 427 Tolson V. Hallett - - - 32 Tompson v. Noel - - - 100 Tonga v. Watts - - - 110 Tope V. Hockin - - - 430 Toulmin r. Anderson - 135 Touterig 1', Hubbard - - 88 Towers r, Osborn - - 204 Townsend v. Inglis - - 322 Train w. Bennett - - - 202 Treacher v. Hinton - - 390 Treethick r. Edwin - - 374 Trelawney r. Thomas - 404 Tremenhere v. Tresdian - 40 Trent and Mersey Naviga- tion V. Wood - - - 27 Trent Navigation r. Har- ley ------ 258 Treuttel x. Barandon - 359 Trewhella v. Rowe - - 20 Triggs V. Newnham - - 373 Triheten, ship - - - *177 Truscott 1). Christie - - 110 Trustees of Liverpool Dock t'. Gladstone - - - igg Tucker v. Barrow - 458, n- — — V. Humphrey - - 6g V. Jones - - - - 427 Page Tulloch V. Boyd - - - 105 Turner v. Hayden - 370, n. r. Leech - - - - 368 Tutela, ship - . - *i78 Twee Gebroeders - *i78 Twemlow v. Oswin - - 131 Twentyman r. Hart - - 23 Twiss v. White - - 476, n. Tyson i. Guraey - - - 114 U.V. Vallance x. Dewur - 120. 167 Vallejo r. Wheeler 24, n. 135, 136 Vandewall v. Tyrell - - 420 Vanderzee v. Willis - - 232 Vandyck 7). Wliitmore - 104 Vanguard, ship - - - 181 Van Omeronr. Dowick 41. 80 Van Sandau r. - - 345 Vaughan v. Durnell - - 493 Verdon v. Wilmot - - - 1 1 1 ^'ernon v. Keys - - - 33*7 70.72 - 113 - Ill *179 - 427 - 122 - to6 V'ertue v. Jewell Vezian r. Grant - Victoria v. Cleeve Vigilantia, ship ^'incent v. Baker - Violett r. Allnutt - Visger v. Prescott Underwood v. Robertson 41 Vogel, ex parte - - - 444 Upstone 1-. INIarchant 355, n. Urquhart tJ. Barnard - - 123 Vrow Johanna, ship - *i84 Vrow Judith, ship - ^177 Xlii INDEX Page Vrouw Margaretlia, ship 145 Usher V. Dauncey - - 306 . V. Lyon - - - 55> "• V. Noble - - - - 158 Usparicha r. Noble 104. 134 W. Waddington v. Oliver - 220 Wain V. Warlters - cio. 247 Wainhouse v. Cowie - - 105 Walker v. Barnes - - - 406 V. Birch - - - - 201 — — V. Dixon - - . 220 X'. Maitland - - - 130 Wallace v. Breeds - - 67 V. Jarman - - 336, n. t'. Telfair - - - 328 V. Woodgate - - 230 Walley v. Montgomery - 64 Walpole T'. Ewer - 156. 176 V. Pulteney - - - 371 Walter v. Hayncs - - - 382 Waltham v. Thompson -112 Wahvyn v. St. Quintin - 388 400 Waples V. Eames - - - 1 20 Ward t'. Felton - - - 94 Wardell v. Mourillyan - 46 Wardle v. Fowler - - - 2 1 2 Waring v. Cox _ - „ 62 Warre I'. Miller - - - 123 Warren r. Shirreff - - 98 Warrington v. Furbor - 379 Warwick v. Scott - - - 1 1 1 Warwicke r. Noakes - - 269 Watkins r. Flanagan 2 Go, n. V. Maule - - . 360 OF CASES. Watkins v. Vince - • Watson V. King - - t'. Medex - - Wace - - - Watt V. Morris - - Way V. Modigliani Weatherpen v. Laidler Webb V. Brooke - - , in re - - - - V. Thomson Webster v. De Tastet V. Foster - - - V. Seekamp - - Wedderburne v. Bell - Weir V. Aberdeen Weldon i'. Gould - - Welford v. Beezely - Wells V. Girling - - T. Osraan - - Welvaart Van Pillaw - West V. Ashdown - - Westland v. Robinson Weston r. Barton = - Westwood r. Bell - - Weymouth v. Boyer - Whitcomb v. Whiting White r. Gainer V. Ledwich r'. Matthison V. Parkin V. Proctor V. Wilks V. Wilson - - _ r. Wright - . - Whitehead r. Vaughan - Whitehouse v. Frost - C9, Page - 249 - 326 450, n. 471, n. - 164 - 125 - 189 - 154 - 287 - Ill - 108 - - 1C6 - - 25 - - if)4 1G3. 1G8. 172 - - 234 - - 248 - - 415 - 182, n. »i82 4G8 92 353 239 228 274» 276 231 351 i86 87 208 224 180 413 230 22'> 27^ - 69, n, IXDEK OF Page Whitelegg v. Richards 490, n Whitfield V. Savage - - 378 Whitwell t'. Underwood 355, n. Whitraore v. Bantock 469, n. Whitwell r. Thompson - 432 Wricks r. Gogerley - - 41 1 Wightman v. Townroe 301, n. Wilhelm Frederick, ship 190 W^ilkie V. Geddes - - - 164 W^ilkins r. Carmichacl - 38 V. Despard - - 19, n. W^ilkinson v. King - - 2G2 V. Loudonisack Wilks V. Atkinson V. Back - - Willes V. Elliott - V. Glover CASES. xliii Willet V. Chambers Williams v. Barton • V. Cranstoun V. Everett V. Germaine V. Keats - - - V. Leper - - - I'. London Assur - - 211 - - 215 - - 75 - 47 7j n- - - 166 - - 308 - - 303 - - 292 - - 286 - 3^9' »• - - 300 - - 245 ance - - - - — V. Marshall - V. Millington — — V. Nunn - - - V. Smith - - - Willis V. Dyson - - Willison V. Patteson - Wilson V. Balfour - - — ■ — V. Dickson - 41 T'. Forster V. Freeman V. Heather - 155 - 105 - 281 - 426 - 376 - 302 - 268 - 226 49»n- 19. 140. ■ - 291 ■ i5> "• Page Wilson f. Kymer - - 4G. 94 V. Marryatt - - 4, n. V. Miller - - - - 41 Wilson v. Royal Exchange Assurance — Smith — r. Vysar - 108. 141 - - 160 - - 352 • 458, n. - - 319 - - 410 - - 241 - 42() - 406 - Crz - 66 232 128 2.-, V. Whittaker Wiltshire v. Sims - ■ W^inch I'. Fenn - ■ f. Keely - - - Windham v. Paterson Windle v. Andrews - Wiseiuan r. Vandeput • Withers v. Lys - - • Wolf V. Summers, 40, n Wolff V. Horncastle - • Wood V. Hamilton - - V Jones - - - - 64 r. Wade - - - - 345 Woodbridge v. Spooner - 401 Woods V. Ru sell, 11, n. 22j W^ooldridge c. Boydell - 125 Woolf V. Claggett - ibid. Woolmer v. Muilman - 114. 165 309 419 - - G7 - - 354 - - 113 - - 23G - - 411 - - 30^ - 396, n. 32. 398. Wright r. Hunter - V. Laing - - V. Lawes V. Rile}' - - r. Shiffner - V. Snell - - o. Wheeler - W^rightson v. Pullan Wyat V. Campbell Wyatt V. Marquis of Hert- ford ----- . 323 Wynne v. Fellowes - - 77 xliv INDEK W CASES. Page Page Y. Young ex parte - - - 33 V. Grote - - - - 284 Yallop, ex parte - - 10, n. Ysabel, ship - - - - 37 Yates V. Bell - - - - 286 V. Hall - - - 22. 35 z. V. Pym - - - - 217 V. Railston - - - 85 Zagury v. Furnell - 223 Yeats V. Pirn - - - - 86 Zouch V. Empsey - 493 Young V. Brander - - 20 Zwinger v. Samuda - 69, n. ERRATUM. Page 387, line 27, for an read no. TREATISE, CHAP. I. OF SHIPPING, Sect. 1. The Navigation Law. 2. The Registry, Ownership and Management of Vessels. 3. Conveyance in general Ships; Bills of Lading ; Stoppage in Transitu; Charter Parties and Freight. 4. Insurance. 5. 0/ Sea?nen, their Hiring and Wages ; Apprentices in Merchant Ships ; Quarantine ; Wreck ; carrying Passengers. SECTION I. THE NAVIGATION LAW, IN the year 1825, a New Navigation Act was passed by the Legislature, and nearly at the same time the old statutes upon the subject were repealed. The coasting trade is entirely confined to British ships, stat. 6 Geo. 4, So is the traffic of Guernsey, Jersey, Alderney, Sark ^- ^^^' *• ^• and Man with the United Kingdom, exports as well as ^ect. Ovvr. imports; and the carrying of goods from any one of those islands to another is regulated in the like manner. And no exports are otherwise permitted from this Sect. 7. country to the British possessions in Asia, Africa, or America ; and the carrying business to and fro in these Sect. 10. places ies under the same restrictions. B Sect. 9. OF S HIPPIXG : With respect to importation, it is in some cases allowed in the freest manner; in others, totally prohibited. But foreign shipping is occasionally admitted to the import trade upon certain conditions. Sect. 3. \yg cannot have any Asiatic, African, or American goods, by way of Europe, to be used at home, except " goods, the produce of places in Asia or Africa, within the Straits of Gibraltar (a), or of the dominions of the Emperor of Morocco, imported from places in Europe within the Straits of Gibraltar : " " Goods, the produce of places within the limits of the East India Company's charter, which (having been im- ported into Gibraltar or Malta in British ships) may be imported from Gibraltar or Malta : ** Goods taken by way of reprisal by British ships : " Bullion, diamonds, pearls, rubies, emeralds, and other jewels or precious stones." Sect. 4. Bullion is a subject of free reception here, and so also are many kinds of European produce ; but the following articles from Europe must be conveyed in British built shipping, or in vessels of the built of the country {b) whence the produce is derived, or of the country from which it is imported ; and this is the check spoken of as imposed upon foreign shipping. (a) By a very late Act, ( 7 Geo. 4, ch. 48, sect. 21,) the produce of places in the interior of Asia or Africa brought to a place in Europe, within the Straits, through places in Asia or Africa, within the Straits, is to be considered the produce of the places last mentioned, and so within the exemption of the former statute. (h) A strange ship was repaired in Russia at an expence of more than two- thirds of her value, and was, therefore, by the law of that State a Russian ship; but, although she was duly navigated, Lord Ellenborough said, " I hold that repair is not built." "The law of Russia cannot be of force to control the Navigation Act of Great Britain. " 4 Camp. 188, Redhead arid another V . Cater; 1 Starkie, 14, S. C. NAVIGATION LAW. 1 The enumerated goods are, masts, timber, boards, gect. 2. ealt, pitch, tar, tallow, rosin, hemp, flax, currants, raisins, figs, prunes, olive oil, corn or grain, potashes, wine, sugar, vinegar, brandy and tobacco (c). This same provision applies to the produce of Asia, Sect. 4. Africa, and America, not commg from Europe, which, as we have just seen, is for the most part prohibited, but there are these exceptions : ** Goods, the produce of the dominions of the Grand Seignior in Asia or Africa, which may be imported from his dominions in Europe, in ships of his dominions : " Raw silk and mohair yarn, the produce of Asia, which may be imported from the dominions of the Grand Seignior in the Levant seas, in ships of his dominions : " Bullion." Again, British ships, and those of place or produce are alone warranted in bringing any goods whatever into the British possessions of Asia, Africa, or America. Sect, n. There is, however, a special provision, that prohibited Sect. qi. goods may be brought here for exportation in any ships, however navigated; but if they are brought from a British possession, the privilege is confined to British bottoms. All manufactured goods are, in law, to be considered the Sect. 5. produce of the country of which they are the manu- facture {d). (c) Usage has been sometimes suffered to avert the strict meaning of a navigation act ; as where white pitch, German produce, had been constantly imported from Rotterdam, Hun- garian wines by virtue of an exception in favour of Rhenish wine only, and juniper berries of Germany from Rotterdam, under a custom. Reeves on Shipping, 2 ed. pp. 166 & 170. ((/) The usage of bringing articles from foreign parts, ma- nufacturing them in Europe, and then importing them into these dominions, had been for some time tolerated solely on the ground of custom. Reeves on Shipping, 2 ed. p. 128. B 2 4 OF SHIPPING : Ships. Having settled the description of goods to be traded with, and the vessels to be engaged in conveying them, the Legislature proceeds to state the definition of a British, and of a foreign ship. Sect. 12. A British vessel must be duly registered and navigated as such. Of its registry we shall treat hereafter; and for its due navigation, the master and three fourths of the mariners must be British svibjects. But in the coasting trade, and in Guernsey, Jersey, Alderney, Sark, or Man voyages, the whole of the crew must be British seamen. Sect. 13. There are exceptions in favour of British built and owned boats under fifteen tons employed on river navigation, and coast-wise at home or at our possessions abroad; in favour of vessels so built and owned for the Newfoundland fishery, under thirty tons, and in favour of ships built Sect. 14. in the British settlements at Honduras, and owned and navigated as British. Sect. 15. A foreign ship must be of the built of the country, or she must have been forfeited as prize or otherwise, under the sentence of a competent court of such country, or must be British built, but not a prize of war from British subjects to any other foreign country. The master and three fourths of the crew must be subjects (e) of the 8 Term Rep. 31, (g) A person thus circumstanced may owe allegiance to ryat. 1 i3osaa- ^'^^ Sovereign of another realm, for the word " subjects" is qiiet & Puller, larger than natives, and his being a natural-born subject here ^^ ' ' ' cannot deprive him of the advantages of citizenship in another 6qi"&'(Jq'^- ^'^^' country, provided he act consistently with the duty he is bound Id. 677. Scot 9, to pay his original master. Indeed, mariners must acquire t. V. c lawtz. ^\•^Q\r title long after their birth, for thev cannot be born such. I Mau!e& Sel- , .. , . ■ r. . "^ , , , wvii, 726, Bell ^""^ " the nativity or every mariner were to be searched out, r. Reid ; 8 T. commerce would be exceedinslv hazardous. And an English R. 556. The I . . J • •, 1 , T- ?• 1, jy Klizabeth cited subject domiciled abroad in a friendly state, may go so tar as to Hare, 1 M. & trade with an enemy, though the political expediency of such Uie^CkJckpUr '" ^^ indulgence was held questionable by Lord Ellenborough. cited. Sect. 20. Sect. 18. NAVIGATION LAW. foreign state, and the ownership (/) of the vessel must re- side in some person who is a subject of the government, or under its dominion. Mariners. The masters and seamen of our vessels must be na- Sect. 16 tural-born, naturalized, or denizens, or such as have become subjects from the conquest or cession (g) of a newly acquired country, having taken the accustomed oaths ; or persons who have served on board a man of war, belonging to the King, in war time for three years ; but, by virtue of his Majesty's proclamation, this period of service may be lessened to two years, and the propor- tion of seamen may be altered by the same aiithority. J^^^' *' But ships trading between places in America, may be navigated by British negroes and such as trade eastward to the Cape of Good Hope, within the limits of the East India Company's charter, by Lascars, or natives of countries within those limits (A). Nevertheless, these ^^"^^^ *^- persons shall not therefore be deemed British seamen. Both in English and foreign ships, one proper seaman Ibid. There is an opinion of Sir Philip Yorke at variance with the exposition of the word " subject," as given above, but it Reeves, 2 ed. p. must be considered as outweighed by subsequent decisions, ^^^' (J") So that a foreign -built ship, and navigated as such, 3 Price's Rep. but British owned, is neither a British nor a foreign vessel fj^^'^ ^^ ^vH^Jn. within the meaning of this section. This decision, however, So held (not- •_ • ^ n '^1 ii T7-' ' • 1 i i !• r • withstanding a m no way interferes With the Kings right to license foreign decision at Nisi vessels. Prius by Gibbs, C. J. in Pearce v. Cowic,) 4 Barnewall & Alderson, 426 ; Campbell i'. Lines, 4 Campbell Rej). 364. 4 Taunton Rep. 856, Sewell v. The Royal Exchange Assurance Company. (g) Where Dunkirk was ceded provisionally, Sir Edward Reeves, 2 ed. Northey made a distinction, in an importation case, between P*^''* such a temporary transfer and an absolute assignment. (/«) See 7 Geo. 4, ch. 48, sect. 22 and sect. 23, as to certain foreigners being deemed British seamen for the purposes of the southern whale fishery. B3 b OF shipping: to twenty tons is declared to be sufficient, though the number of the other mariners may exceed one fourth of the whole crew. Sect. 22. The penalty for exporting, importing, or carrying coastwise in contravention of the statute is, i oo /. against the master offending, and the goods are to be forfeited. Sect. 19. The penalty for an excess of foreign seamen, is 10/. for each improper man, to be paid by the master or owner of the vessel ; but a certificate from the consul, or two British merchants where no consul, will avert this fine in certain cases, if satisfactory to the collector and comptroller of the customs of the port: as where a due proportion of British seamen cannot be procured in a foreign port or place, within the limits of the East India Company's charter ; and again, if the proportion be destroyed by some unavoidable circumstance ( i ). What an Importation. It is the intention of offending against the laws of navigation which vfiW work a forfeiture; where, there- fore, a ship is compelled to put into port by stress of Eceves, 2 ed. weather, or other accidents, it will not be held an impor- p. 190—201. _ ' ' t^ See the opinions tation. So where the passengers or mariners bring General '"'here goo^s without the privity of the master, the better opi- cited. nion seems to be, that no forfeiture will accrue, although Reeves, 2 ed. -^ ^.^^ formerly decided that knowledge formed no part Reeves 2 ed. ^^ ^^® transaction where there was an absolute prohibi- ]). 201—207, tion, and a distinction was made on one occasion between tiioritiesaiecol- such articles as were part and such as were not part of lecied. - the cargo. 2 DodsonRep, ( ' ) ^"^ although necessity will furnish an excuse, as where 194, Siiip, Pe- it was notorious that British seamen would not go on board a schooner for fear of being pressed by men of war, the ship must be duly manned, if possible, and a plea of desertion is Reeves, p. 194. a suspicious allegation, which will not be received without much scrutiny. SHIP S REGISTRY. SECTION II. THE REGISTRY, OWNERSHIP, AND MANAGEMENT OF VESSELS. Registty — Ownerships, and liabilities of Owner. — Duties of Owner — Part Oxvners. — Master — His qualifications, autho- rity, liabilities, and duties. — Pilotage. Having ascertained the legal trading in which his vessel may be engaged, it is expedient for an owner to see that his ship be duly registered, as, without this form, she will neither be entitled to commercial privi- See sect. 3. leges, nor be the subject of a bill of sale. The certificate of registry, the indorsement upon such 1 certificate in case of transfer, and the recital of the cer- tificate in a bill of sale, are requisites deserving of very serious attention. Now the new statute upon this subject contains the 6G. 4,c. 110. whole law relative to the registering (k), and many diffi- ■ culties have been obviated by its introduction. Registry — of what. The privilege is confined to British built vessels, to Scjt. 5. 10. those of the Isles of Man, Guernsey, and Jersey, and of the Colonies {I), to condemned prizes and ships forfeited for breaches of the Slave-trade laws (m). But in the two gg^t. ag. (A) See Abbott on Shipping, p. 29 to p. 67 inclusive, where the learned Lord has fully treated of the registry. See also a Treatise on Certificates, where the particular amendments enacted by the last statute are pointed out. pp. 311 — 346. (/) Colonies, plantations, islands, or territories in Asia, Africa, or America, or of Malta, Gibraltar, or Heligoland. The act does not extend to ships employed in inland naviga- tion only. See Peake's Cases, igo, Laroche v. IVakeman. {m) See 1 Maule & Selwyn, 262, The King v. the Collector and Comptroller of the Customs of London. B4 ; OF SHIPPING : last cases, a certificate of condemnation by some com- petent court must be produced to the Collector of the Customs, with a correct account in writing of the par- ticulars, accompanied with an oath as to the ship's identity. The second and third sections describe the form of the certificate and the persons who are to grant it (m). Where. Sect. u. This registry is to take place at the port to which the ship belongs, unless by authority of the Commisioners of the Customs it be done elsewhere ; a book is to be kept, the certificates are to be numbered progressively, and a copy annually sent to the Custom House in London. Sect. 3. But ships built at Malta, Gibraltar, or Heligoland, are to be registered at those places ; and prizes belong- ing to His Majesty's subjects in Guernsey, Jersey, or • Man, shall undergo registration at Southampton, Wey- Sect. 30. mouth, Exeter, Plymouth, Falmouth, Liverpool, or Sect. 12. Whitehaven. The port is one at or near to which some owner, who has subscribed the oath required by the Act, resides. Reorister de vovo. o The consequence of the new enactments was a gene- ral registration de novo, all prior certificates being de- Sect. 35. clared invalid, unless an indorsement were made upon the particular instrument, that further time for ascer- taining the difi'erent shares had been granted by the Custom House in London. But no stamp duty attached Sect. 36. upon the first registry de novo, nor upon any new Medi- terranean pass which might have been requisite. Sect. 34. Yet provision was made for distinguishing the shares as soon as possible, by directing that the various bills of {n) See 2 Barnewall k Alderson, 248, Stringer v. Murray/. V SHIP S REGISTRY. Q sak should be produced, and that such owners as might be present should on oath declare their knowledge of the different shares, in default of which registry might be made without such specification. However, if an owner part with his share in a vessel. Sect, la, there must be a registration de novo, and indeed, upon any change of such property, a new register, though Sect. 42, not required by law, may be made ; but if any alteration takes place in the ship, so that she may not correspond Sect. 28. with the certificate, the new register becomes indispen- sable. Yet, as it might happen that the new arrange- ment could not be executed before the commencement Sect. 12. of a new voyage, by permission indorsed on the certi- ficate of registry, one voyage is permitted. And the certificate of a collector abroad is declared to be of the same efficacy as a register here, where the ship is built in a foreign possession for an owner in this country, and for any voyages whatever within two years from - q^^ . ^j^ g the date of the certificate, unless the vessel arrive pre- *ect. 25. viously at some port in the United Kingdom. Otonersliip. Owners of ships under this Act, are 1. British sub- Sect. 13. jects ; 2. Denizens ; 3. Naturalized subjects of Great Britain or Ireland ; 4. Members of British factories (0) ; 5. Agents for or partners in houses carrying on trade in the United Kingdom ; 6. Members of the late Levant Company, having been resident at the factories, although continuing to reside at the places where the factories 7 Geo. 4, ch. 48, were. *^^'' ^7- The propert^n^a ship_is divided into sixty-four parts, 6Geo.4,cii.iio, but thirty-twopersons only may at one time be owners *'^'^^' ^'^' of it. • If, however, it be not practicable to make the (0) See 1 Edwards Admiralty Reports, 148, in the case of the Eleanor. 10 OF SHIPPING : fractional parts correspond with the ownerships, (as, for example, supposing twenty owners should hold sixty parts, and the remaining twelve should so enjoy the ship as to create twelve integral parts more, whence it could not be registered for the excess of proportions,) the 'Sect. 32. smaller parcels may be transferred without stamp duty, or, if desired, the fractional parts may be still distinct property though not registered as such. Sect. 33. And thouglLoiily thjrty-two ownerships areal lowed. the equitable title of minors, heirs, legatees and cre ditors is not to be affe cted, supposmg them to be duly rejDiesent- ed by, or holding from legal owners. And again in the case of joint-stock companies, three trustees may be ap- pointed to represent them as owners, the name of the company being described instead of the other proprie- tors, and partners are considered as one person {p). Oath. The next proceeding is an Oath by the owners before registry, which, together with the proportion of proprie- tors who, according to their respective residences {q). (p) Great care should be taken to enter the names of each I owner very accurately, or there will be neither a legal nor j equitable title. See 5 Term Rep. 709, Catnden v. Anderson. And partnership property should be as carefully recorded, otherwise separate may supersede joint creditors upon a dis- tribution. See 6 Vesey, jun. 739, Ctirtis v. Perry; 15 Vesey, jun. ex parte Yallop ; 17 Vesey, jun, 251, ex parte Gribble. {(j) The oath is to be taken, where one owner, by himself singly ; two joint-owners, by both ; more than two, by the majority. But the two last cases are qualified by the residence. If one or both the joint- owners live more than twenty miles from the port of registry, the oath is to be taken by one only ; where more than two joint-owners, if all but one, or all live % SHIP S REGISTRY. 11 are to take it, is prescribed by the fourteenth section. There is another form of oath when the interest of a cor- porate body is to be registered. The number of shares held by each owner must upon Sect. 32. the first registry be stated upon oath, but partners are not compellable to distinguish their parcels. Further Requisites. It is, moreover, necessary that the vessel should be Sect. 16-21. surveyed previous to her registry, that her tonnage (r) should be accurately ascertained, that her name should be painted on the stern, that a certificate by the builder Sect. 24. describing the ship should be produced (s), with oath of her identity, and that a bond should be entered into by Sect. 25. the master and owners stipulating for a due manage- ment of the certificate. Bond. This bond, the penalty of which varies according to Sect. 21. more than twenty miles from the port, the oath to be taken by one only. But the number of subscribing owners need not exceed three under any circumstances. However, there must be an oath made by the attending 5^^^^ jg, owner or owners, that the other parties are not resident within twenty miles, and have not wilfully absented themselves. (r) The tonnage is deemed in law to be that mentioned in the certificate of registry, although, in point of fact, a vessel may be of a heavier burthen. 2 Barnewall & Cresswell, 556, Bishop v. Macin tosh. (s) Yet by delivering this certificate the ship-builder does not lose his lien. 5 Barnewall & Alderson, 942, Woods v. Ruisell, ^ OF SHIPPING : the tonnage of the ship (t), forbids a sale of the certificate, and directs, that if the vessel cease in any way to be entitled to the privileges of British ships, the certificate, as soon as may be, shall be given up at the custom- house at such port as the ship shall have reached, and the same delivery is ordered where a foreigner purchases either the whole or any part of the vessel. Upon a Sect. 3-2. change of the master a like bond is to be given, and the new master's name indorsed on the certificate. Loss of Certificate. But supposing the certificate to be lost, mislaid, or detained : in any of thesecases a remedy is provided. If lost or mislaid, it rests with the Comissioners of/ the Customs to register de novo, or grant a licence.] Sect. a6. Jf the first course be pursued, a bond must be given by the owners or master conditioned to deliver up the certificate should it be afterwards found, and vouch- ing that no illegal use has privily been made of it. In case of a licence, oath must be made that the ship has been registered ; she must be surveyed, registry must be made after her departure on the voyage, and the licence exchanged for the certificate. But should the Sect. a8. certificate be wilfully detained, and a certificate made to that effect by the proper officer, the ship may be re- gistered de 710V0 ; or, if the offending party have ab- sconded, the matter will be treated as in the case of a Sect. 41. lost certificate. Upon this new registry any bill of sale {t) If a decked vessel, or Above 15 tons burthen, and not exceeding 50 - 100/. Above 50 ------ - and not exceeding 100 - 300/. Above 100------- and not exceeding 200 - 500/. Above 200 ------- and not exceeding 300 - 800/. If exceeding 300 - 1000/. ship's registry, 13 not recorded should be produced, and it may be so in- dorsed after a registry de novo. Transfer of Ship. The mode of transferring the property in a ship is de- Sect. 31. Glared to be by bill of sale, or some instrument which shall recite the certificate of registry ; and as the chief object is the proof of identity, no error in the recital shall vitiate the transfer (u). But though covenants con- nected with the transfer will be avoided by the omission above referred to, such as are independent — a covenant, for example, by the mortgagor of a ship to repay money lent — will be still binding ; and this doctrine obtained before the new act, which makes the transfer only void instead of the whole bill of sale (1). Sect. 37. The bill of sale is now to be taken to the officers of the port where the ship is registered, who will enter it in a book of registry ( y), with the names and residences of the parties, and their respective interests (z). They (t() See A Treatise on Certificates, 1826, p. 335, n. a, A bill of sale is not void for want of an ad valorem stamp, or a statement of the consideration, though a penalty is in curred. 5 INIaule & Selvvyn, 234, in Robinsonv. Macdonnell. [x) See 8 East, 231, Kerrisonv. Cole; 1 Barnewall & Cresswell, 327, Biddell v. Leeder. So, where a person got possession of a certificate as a security, it was held, that, as he never had any power over the ship, he might well have a lien upon the muniments far his deb.t. 5 Taunton, 381, Mestaer v. Atkins ; 1 Marshall, 76, same case. (i/) Copies, oaths, and extracts from these books are now declared to be good evidence. Sect. 43 of the statute under discussion. (z) This entry is not to take place until all the requi- sites of law have been complied with. 7 George 4, ch. 48, sect. 26. 4 OF SHIPPING : then indorse the particulars upon the certificate, and give notice to the Commissioners of Customs. It is worthy of notice that this indorsement ceases to be neces- sary in the case of an executory contract for the sale of a vessel (a), and upon such an agreement the recital of the certificate need not now be made (b). The safer way, says Lord Tenterden in his book on shipping, is to recite prior indorsements when you recite the certificate of registry, and at all events the indorsement made when the certificate was granted (c). The proper forms being complied with, the right to the vessel will pass according to the priority of the indorse- Sect. 39, ments, such being the meaning of the statute. And to ensure this result, there must be an interval of thirty days between the entry of each bill of sale, or if the ship be at sea, a like space of time after her arrival in port. And besides this, the indorsement will be made in favour of that person who first produces the certificate of re- gistry, it being understood that the purchasers or mort- gagees should not claim according to the entries of their bills of sale, but of the indorsements. Further time is allowed if the certificate be lost, mislaid, or detained. There is also a provision that upon due notice being given to the officers at the port of registry, these entries gect, 40. of bills of sale and indorsements may be made at other ports than those to which the vessels belong {d). (a) But it was indispensable under the old law. 4 Barne' wall & Cresswcll, lio, Morthner v. FUeming. (b) Tliis was requisite under the 34th of the late King. (c) 5th ed. p. 51. {d) As the indorsement is now made by the officers in lieu of the vendors, the old difficulties as to passing the property in ships have in some measure ceased. For it had used to be understood for law, that upon a bill of sale the ownership passed subject to be divested if the indorsement were not ship's registry. 15 If a ship should be sold by the known agent or cor-. Sect, 44. respondent of the owner during his absence, the bill of sale may be recorded and indorsed, or there may be a registry de novo ; provided, 1st. that his Majesty's Com- missioners are satisfied of the fair dealings of the parties, and next, that security is given either to produce a legal power of sale, or abide the claim of the owner. With reference to mortgage transfers, it is now espe- Sect, 45. cially declared, that the mortgagee shall not be deemed an owner, if the transfer be registered as a security for debts, or by way of mortgage (e). And because it had been decided that the property in a ship passed to the assignees of a bankrupt who had been permitted to retain the reputed ownership of \i{f), it was provided, Sect, 46 that as soon as a transfer should be registered as a security for debts, no bankruptcy of the mortgagor should affect the mortoag;ee's rioht to the first claim or DO O interest in the ship. To close the subject of transfers, it is observable, that the omissions of public officers were not considered effected within a certain time. See Abbott on Shipping, 5th ed. p. 51. 3 Merivale Rep. 322, Dixon v. Eivart ; 11 Ves. jun. 629; 13 Vesey, jun. 588, Speldt v. Lcchmere. (e) See Abbot on Shipping, 5th ed. p. 17, and post in this chapter. But the register act should be duly complied with ; for a mortgagee in possession, who had not conformed to the old statutes, was held incapable of retaining a ship against assignees for want of such compliance. 5 Taunt, 642, Wilson V. Heather. It has been held, that accruing freight passes to the mort- gagee notwithstanding the statute, which was intended to confer a benefit upon them, and not to deprive them of their just rights. 4 Bingham, 45, Dean v. M'Ghie. {f) 4 B. Moore, Rep. 549, Haij v. Monkhouse ; 2 Barne. wall & Alderson, 193, Hay v. Fnirbairn. l6 OF SHIPPING : under the old enactments, sufficient to invalidate the in- strument by which a change of property was effected (^X Penalties. The consequence of exercising the privileges of a British ship before registry is declared to be forfeiture. Sect. 4. but this would not affect existing registers until the general registry de novo. Certain acts or accidents will suspend or destroy the Sect. 6. privileges spoken of. As, foreign repairs of the ship exceeding twenty shiUings the ton, unless they be for extraordinary damage, which must be reported by the master, and the need of the extra repair proved to the satisfaction of the Commissioners of Customs. Yet the Privy Council are authorized for two years after the Sect. 7. passing of the Act to suffer repairs at a foreign port, where combinations of workmen have interfered to pre- vent the necessary work. And thus again they may Sect. 8. suffer a less number of British seamen than is required by law to navigate a vessel, in cases of illegal confede- racy amongst the mariners. Other losses of privilege occur where the ship is Sect. g. stranded, or becomes unseaworthy, and incapable of Sect. 10. repair, or is captured by an enemy, or sold to foreigners ; but prizes of war, and ships taken for breaches of the Slave-trade laws, being duly condemned, are excepted. Sect. 24. There are penalties of 1 00 /. for not causing the vessel's name to be painted on the stern, and again, for detain-. Sect. 27. ing a certificate of registry (A) ; and for the punishment (o-) See A Treatise on Certificates, p. 339, n. a. (A) It is observable tluit the punishments of the statute are directed against persons who refuse to deliver up the certifi- cate to His Majesty's officers ; it seems, therefore, that it would be no offence to deny it to the owner, though sole owner. See 13 East, 91, Rex v. Pijclei/. OWNERSHIP IN VESSELS. 17 of persons taking a false oath respecting any matter mentioned in the Act, or falsifying any document pro- Sect. 49. vided by the statute, a fine of 500/. is imposed upon the offenders. They are to be recovered in the usual manner, according to the Custom-house laws, and the Custom- Sect. 50. house officers are to share them. Power is given to Sect. 48. governors of colonies, or commanders in chief in his Majesty's possessions abroad, to delay any suit concern- ing ships' registers, till the opinion of the Privy Council can be obtained. Copies of the Scotch and Irish certificates are to be Sect. 47- forwarded at the end of every month to the Commis- sioners in England. The provisions of the Acts which direct registry have been very strictly adhered to ; so much so, that, unless perhaps in case of fraud, a court of equity will grant no relief upon the infraction of them. An omission cannot be helped more than a breach of the Annuity Acts which have received the sternest con- struction, and thus it follows, that a neglect to comply with the requisitions concerning the registry of a vessel, will in many cases leave a party quite remediless, since he will neither have a legal nor an equitable title {i). Oivnership in Vessels. Change of property in a vessel generally takes place by sale or capture. A bill of sale is commonly the instrument used to convey the property, but the vendee should be careful to require the prompt delivery of his purchase ; for there are many cases which show that ,, , , „ , if the seller be allowed to retain possession, and he wyn, 240, Mair become bankrupt, the property will g-o over to the *" ' ^"'".*^' „ ' ' ^ I -^ *= 2 Brodenp & Bingliaii), 114, Monkhouse v. Hay. a Barnewall & Alderson, 193, Hay I', Fairbaini. 5 JNIaule & Selwyn, 228, Robinson v. Macdoiuiell, Shi[) Warre. 1 Barnewall & Crcsswell, 588, Kirkley t). Hodi'son. (i) See 6 Vesey, jun. 745; i3Vesey,jun. 589, c i8 OF shipping: assignees notwithstanding the sale, though it is of course otherwise if the buyer take possession before a 2 Barnewall & bankruptcy (/c). But possession cannot always be given, Al<iorson, 134, g^g where a part of the ship is the subject of contract (l)^ Koliinsoti V. 1 ^ T ^. n M'Doneii, or during the performance of a voyage. In the nrst case. Ship Glory. ^^^ ^-^^ possession of one part-owner is the possession 1 Anstruther, q£ ,^\\ q^ vendee, thouoh never in possession, may have 2'22 Addis I'. ' o 1 'J Baker. a share in a ship. In the second, a deUvery of the grand bill of sale will transfer the property, and vest it 2 Term Rep. in the transferrer ; but, as we have said, possession Mai'in<^!con-"'" should be had upon the ship's return, so that a mort- firmed by Lord g-aoee who neglected this step was held to lose the Kenyon,7Tcrm ?. n, ru' ^ , \ Hep. 233 ; benent or his vessel (m). 2 Vesey, senior,272, ex parte Matthews ; 4 Maule & Selwyn, 240, Mairr. Gleniiie. Sect. 10, of 6 [There is a provision in the new Registry Act, that eo. 4, c . . pj.-^gg^ ^jj^y condemned, should be entitled to the pri- vileges of British ships ; an ownership may therefore be acquired by capture from an enemy in time of war. It is not, however, entirely settled at what precise moment the interest becomes divested ; some saying, Abbott on Ship, that a hostile possession of twenty-four hours will pitig,5tbed. p. effect the change; others, that it does not take place 110, pi. 188. till the prize has been carried into a place of safety (n). ] Robinson, But there must be a legal sentence of condemnation. Admiralty Rep. p. 139, by Lord Stowell, Carthew, 423, Thermolin v. Sands ; (A) So if an execution be sued out against the seller, a sale may be deemed fraudulent and void as it regards the party obtaining the judgment. Abbott on Shipping, 5th 'ed, page 1*2. {I) Unless a part-owner be in actual possession. Abbott, page 13. (jn) A mortgagee is now relieved by Statute 6 George4, eh. no, sect. 45. (rt) Infra praesidia. OWNERSHIP IN Vr.SSELS, I9 and this judgment is considered by a neutral purchaser 3 Robinson, 97, to be one of his ship's title deeds. For where a neutral '.'"^'^'/''f ,l'"^^ I Lonstant Mary. state detained and sold a vessel without condemning 1 Marsiiail Ren. her, it was held, that the owner did not lose his inte- f'^5, Wilson v. rorster. rest, and that the possession remained in the orioinal fi'iv„„.„ , proprietor (0). sanae case. It seems clear, that where the captors carry a prize into the port of a state in alliance with them but at enmity with the conquered, they may condemn it in their own, or in the friendly country by their consul; 2 East, 473, but it is not so certain upon principle that the captors ,^ ^,!'' "^' • 1 ■ 1 • . , . 2 Robinson,20Q, should condemn m then' own state a ship carried into The Christo- a neutral port, althouo-h restoration of a British ship ^^''J^'^", . *■ ° * 4 Hobinson, 43, taken into Norway by a Dutch privateer and con- The Uenrick & demned at the Hague has been refused by the Judge ^"^' of the Admiralty. Yet, again, it is not disputed that a ship must be returned where she is condemned at a neutral port. As where a French squadron sent an , n ,. . . . ' lvubiiison,i35, English ship into Bergen in Norway, and sold her TheFiadojen. -there ; and so again, where a vessel condemned in this manner, and purchased, was re-captured by a ship be- jj-p^.^ „ longing to the country of the former captors, but restored 268, Havdock upon appeal after a second condemnation ; for the ^' '^"^■'^"''°'^- second proceedings gave no real authority to the first, which were illegal. And it is of no consequence that 3 ^"^>ii'son, 96, the sentence has been acquiesced in by the o-overnment n i''"^ ' ^ •' fs I Laiiipb. 429, of the neutral country, for, by Lord Eilenborouoh, " I Uonaldscm am by no nieans disposed to extend the comity which "' ^''""'J'-''""- has^een shown to these sentences of foreign admiralty, courts (;>)." (o) It is different where the ship is duly forfeited, for then the property is divested. 5 Term Rep. 112, IVilkim v. .Despard; 1 Salkeld, 223, Roberts \. IVetherall. (p) So that Lord Kenyon's opinion in Stnith v. Surridge, 4 Espinasse, 25, is shaken by this decision. He held that c 2 20 OF SHIPPING 1 Burrow Rep, 683, Goss I'. Witliers. 4 Robinson, 3, The Helena. 8 East, 10, Young V. Bran- (ler. 11 East, 435, 'J'rewliella (i. Rowe; 7 Moore, 349, Baker i'. Buckle, same point. Nevertheless, if a ship be legally condemned as prize by a hostile power, the property is decidedly out of the owner, so that the insured may recover as for a total loss. It is scarcely necessary to observe, that piracy meets with no encouragement in any country; a predatory seizure will, therefore, be quite ineffectual to divest the ownership of a vessel. It appears, however, that we have ceased to consider the Algerines as pirates, for our Court of Admiralty has refused restitution of a ship sold under the authority of the Dey of Algiers, by whose subjects it had been captured, to a merchant of Minorca. Oivners — their Liabilities and Duties. Although the legal right to a vessel reside in the owner by virtue of his bill of sale, it does not follow that he is necessarily charged with every liability incident to the possession of such a property. The great ruling principle at this day is to ascertain the person who has holden himself out to the public as owner — the party tt) whom the credit of ownership has been given, and this doctrine is capable of a clear and extensive illustration. Thus, although the ship remained in the vendors for a month after the sale, the vendee was the individual held liable for repairs ordered by the captain, because they had been performed under the purchaser's direction. And, on the other hand, the seller was compelled to pay for materials furnished to this vessel, notwithstanding a transfer on his part by a good bill of sale before all the articles were delivered, and notwithstanding any equitable agreement between the parties ; for the credit was given to the owner personally. there might be a difference, if the neutral county acquiesced in the condemnation. liABILlTIES OF OWNERS. 21 A man purchased a share in a ship under a defective conveyance, but he never held himself up as the owner, nor did he interfere at all with the destination of the 2 Bingiiam,i79, vessel : it was held, that inasmuch as no credit had been ^'"'""'Sttjni. given to him as a proprietor, he could not be considered chargeable in respect of stores. So, where one parted with his interest in a ship by a faulty transfer, but took the precaution of notifying the change in every possible way, he was held to be clearly exonerated from paying for goods furnished for the owners, and on the same 16 East, 169, ground, namely, the absence of personal credit. And it ^le ^^"^ ^' "*" is quite a mistake to suppose that the register is con- clusive evidence of the ownership. That might have been so formerly, but the doctrine has been quite super- Mood^--^^, Jen- •'. . * _ ^ mugs V. Orii- seded by the principle stated above 5 are the repairs, (for fiths. example,) done upon the credit of the defendant (q)l (q) It was certainly considered at one time that the register was conclusive, till the defendant showed his non-liability. 2 Campbell, 339, Stokes v. Came. But the Court of Common Pleas having supported the opinion of Lord Chief Justice Mansfield, who required some proof of consent on the part of the registered owner, the Court of King's Bench followed the decision, and held, that a defendant named upon the oaths of others as a part-owner could not be charged unless he adopted the acts which had been done. 2 Taunton, 5, Fraser V. Hopkins, in the Common Pleas ; 14 East, 226, Tinkler v. Walpole, in the King's Bench ; 3 Campbell, 456, Smith v. Fuge ; Id. 475, Reusse v. 3Iei/ers ; 4 Taunton, 802, Cooper V. South. It is, however, rather singular that Lord Ellen- borough had doubted the propriety of allowing the register to have so stern an operation many years before, and said, he would not agree to bind a man without knowing his con- currence (5 Espinasse, 31, Ditchburn v. Spracklin) ; yet in Stokes V. Came he held otherwise. Wherever, therefore, we now find it said, that the register is prima Jacie evidence of ownership, it must be taken to mean, that the defendant has (^ 3 22 OF SHIPPING _ ^ „ „ The re2;ister acts do not influence the case. And a very 7 Barnewall Sc => . . _ _ -' Cressweli, 30, modern decision confirms the opinion that a mortgagee kinslfn, ^' ' ' ^^^ doe^iiot interfere injJie_^management_of_the ship, shall not be made liable for contracts to which he is no But if the party continue possessed of a vessel, whe- ther or no he reap the profit of her voyages, an implied credit arises, which renders him liable for things sup- plied, though without his knowledge. Covvper, 636, As where the master took on lease a ship from the Rich V. Coe. owners with an agreement that he should have the sole management and sole benefit of it, the owners were held liable, for the creditors ought not to be prejudiced by any privy contracts between the owners and master. And so, again, where one sold his interest to the other, but desired his name to continue as registered owner by 1 Dowl" V ^'^y ^^ collateral security for the payment, the seller Ryl;ind, 52, was held still liable, though he did not meddle with the Dowson V. 1 • > Leake. ^"■^V ^ concerns. Even after an abandonment to underwriters, owners 1 Slarkie, 230, i- i 1 p i- i 1 i 1 i • Mitchell V. ^Ye liable tor supplies ordered by the supercargo, being Glennie ; and f^j, their benefit as far as intention Avent, and even after .vee 1 lerin Rep- 73. Yates the ship had gone a second voyage, since they had in- stituted a suit in the Admiralty Court to recover posses- sion of the vessel, and thus had connected themselves with it. done some act, such as taking the oath, to connect himself with the register. See Ryan & Moody, igg, Cox v. Kcid. Beyond question, if the register be not evidence against a man, it cannot be evidence for him. This point arose where the defendant was desirous of proving a plea in abatement by the register, which he expected would show others jointly liable with himself. 3 Campbell, 240, Flotver v. Young ; and 4 Taunton, 65-2, Pirie v. Anderson, where the plaintiff, who sued upon a policy of insurance, was nonsuited for want of better evidence than the register. Hall. LIABILITIES OF OWNERS. 2$ The responsibility of owners for the acts of their agents will be discussed at length hereafter, but it is -• "■^^-/^'— ^ desirable to incLuire for a moment into the situation of "<^-4^^-'-^ - the mortgagee of a vessel as it respects his ownership and liability^: and here again the question of contract between the parties immediately occurs. A mortgagee of a ship out of possession was no more considered liable than a mortgasree of an estate, title havino- nothincr to do in the case. And the new statute (r) declares, 3 Campb. 354, ,.^...■1 , 1 .^ (^ ■ 1 Annett v. Car- that II it be expressed on the certificate 01 registry that stairs. the transfer has taken place by way of security for debts, 1 Starkie, 366, or by way of mortgage, such mortgagee shall not be ^art. j deemed an owner. We will now advert to the condition of an owner who 'n^^^^^. ^Z has let his ship by a charter-party. And the general - .-c^ .^A^^i. principle is, t hat t he charj;erer, and not the owner is the persqnjiable underjthese ci rcumst ances : so that where an action was brought against owners for not delivering 3 Espinasse, 27, goods, but it turned out that they had let their vessel ^™^* "' by charter-party, the plaintiff was nonsuited. And so, again, the defendants, registered owners, were held not 2 Campb. 482, liable, having let their vessel in like manner, and not Rq^^vc!"^'^ ^' being proved to have exercised any authority over the voyage. " To say that the registered owner who divests ^3 ^ast, 238, himself by the charter-party of all control and possession by Lord Kllen- of the vessel for the time being in favour of another, b"™"s''- who has all the use and benefit of it, is still liable for stores furnished to the vessel by the order of the captain during the time, would be pushing the effect of those acts much too far." (s) And even in a case where the 4 Maule & Sel- appointment of the crew and the navio-ation of the ship ^}». 288, Mas- , ^^ ^ ■ ^ ter ot the Iri- (r) 6 George 4, ch. 110, sect. 45. (5) There is a case in contradiction to these, 2 Strange, 1251, Parish v. Cratuford. But Lord Tenterden, after citing the authorities mentioned in our text, treats the case in 04 nity House v. Clark. 24 OF SHIPPING : were retained by the owners, (it was the letting of a ves- sel to the Crown for the transport service,) it was held as a matter of pubUc policy that the temporary owner- ship passed to the Crown, and that the defendant was not liable, as owner, for Trinity-house dues. Yet in Fletcher?;. Braddick, where a ship appeared to 2 New Rep. have been chartered to the Commissioners of the IN avy ; EastT^ Bl^w- a commander of the navy, and a King's pilot were on itt V. Hill. board, and the seamen were under their direction though paid by the owners ; it was held, that such owners were ^ ' ' liable foi an injury sustained by reason of the vessel falling foul of the plaintiff's ship. 2 siarkie,438, But where the owner of a barge lent it to another, fecott i. >5cott ^^Q navigated it with his own men, the proprietor was held to be relieved from the consequencesof an accident which happened through the neghgence of the other's people. It is, nevertheless, very worthy of observation, that if a tradesman undertake to do any thing to a ship upon a special promise either from the master or the owner, 2 Strange, 8i6, the Other party is discharged, for the personal credit, Ganiliani v. ^j^g man'ow of the transaction, will be wanting. Bennett; 1 Term "^ Rep. io8, FiiPmer v. Davies, By the rules of law at present established, the liability of the owners for necessaries is a personal obligation, and not a charge upon the ship in specie. And Lord Cmvper, 639, Mansfield's position, that the tradesman has three secu- 109!™ *^^'' rities, the owner, the' master, and the ship, has been By Lore) Ken- considered too large. True it is, that as long as a ship- yon, 7 Jerin wright is at work upon a vessel, which he specifically possesses for that purpose, he must have a lien upon it Strange as one which probably is not law. Abbott on Ship- ping, p. 22. See also Cowper, 143, Vallejo v. W heeler \ 7 'I'aunton, 627, Soares v. Thornton. ■ LIABILITIES OF OWNERS. 25 according; to the constant usao-e of trade (0; but if he 4 Bamewall & » . ^ 4. -4.1 Alder.on, 341, never acquire such a power over it, or it he part with FrankUa v. his possession, a mere personal obhgation remains. A Hosier. man suppUed a ship in port with sails, and there was no hvpothecation, and the Court determined in effect that 2 Shower 338, *' ' Hoare V. Cle- there was here no hen. ment. So it was where a cable was furnished for the ship's iSalkeld,34, use; and whatever may be the usage of nations which jamj'VLord' adopt the civil law, the creditor, according to the law of Kay'""'"'' ^05. 1 • 11 111 1 same case. this country, must look, personally to the owner, unless 1 \csey, senior, there be an absolute pledge of the ship. ^54. Buxton ,;. 1 " ^ Slice ; I Atkins, 234, ex parte Shank; Abbott on Shipiiins, p. 115, Wood v. Hamilton. See, liowcver, 3 Robinson, 288, The John, and Abbott 1 16, observing upon tliiil case. The necessaries to which we have alluded are such 4 Bamewall & as the vessels needs, such as a prudent owner would WebsierV. order were he present. So that upon an exigency a Seekamp. master may borrow money, where he cannot procure it upon the security of the ship, and so charge the owners; and it may be necessary to do this at home as jTyans '^' \\ji[!. well as abroad ; for example, it may be requisite to pay '"""s- the wages of seamen at the port of discharge. 7 Price, 592, ° 10 Robnison v. Lyall. Yet, first, there must not be an indefinite appropriation ,\ Staikie, 27,, ^ ^ ' . Koclur V. 'Mu- of the money ; next, it must be necessary expenditure ; sber. thirdly, there must be a specific sum for a specific 5 Brown Parlm- J ' A r lueniary Cases, purpose, for, otherwise, the owners would be at the 325. Gary v. captain's mercy; and further, the actual application of 2 s'tarkie, 428, it must be proved. rainurD.Gooch. Lord Chief Justice Gibbs held at Nisi Prius, that there go'.Bo.deu Ai^ty. was no implied undertaking by the owner of a ship that 4 Campbell, (t) Unless, indeed, there be any agreement for credit. There is a custom that the shipwrights having docks in the river Thames should give credit, unless a ready-money pay- ment is stip dated for, and in such a case, of course, a vessel may not be detained. 4 Campbell, 146, liailt v. Mitchell. 254, Harder v. Broilierstonc. a6 OF SHIPPING For injuries to the I'rei-lu, &c. Abbott, p. 259, 1 Term Rep. 33- 10 East, 530, Atkinson v. Kitcliie. aKoUe'sAbridc- a bill of exchange drawn by the master on a third person for supplies to the vessel abroad should be duly honoured. The established doctrine, that a principal is amenable for the acts of his agent, most strongly applies to the relation of master and owner of a ship. Wherefore it is, that when we come to speak, more particularly of the liabilities and duties of a master, many points relating to his employer will be necessarily involved, and which may be properly considered in a subsequent page. But as there are many cases of compensation on the owner's part which do not bring the master into question, it may, perhaps, be convenient to examine them in this place. A modern bill of lading makes this exception : " The act of God (u), the King's enemies, fire and all and every other danger and accident of the seas, rivers, and navi- gation, of whatever nature and kind soever excepted." Therefore, a catastrophe by lightning will not render any parties liable. And in case of an embargo there must be an actual restraint, not a mere apprehension upon the subject. Fire, independently of this cautionary exception, w^as provided for by an Act of Parliament, passed in the last reign; but on the subject of sea-perils some discussion has occurred. It is clearly agreed, that a loss through Abbott, p. 25a. Smith V. Shep- herd. (m) It must be immediate, as an earthquake, &c. Where part of a bank had been swept away by a great flood, so that a vessel struck on the remaining part, and her goods were spoiled, but had the bank continued in its former position, no liarm would have happened ; Mr. Justice Heath considered this not to be an immediate act of God, and consequently the master, against whom the action was brought, and to whom no negligence was imputed, had a verdict against him. Hence it was, that " every danger and accident of the sea'* was introduced into the excepting sentence. LIABILITIES OF OWNERS. g^ piracy will not throw any responsibility upon the parties, "ient,a48,Pick- unless the master be negligent, the taking by pirates Stvie Rej'x 132] befhg: accounted a peril of the sea. same case; Com- * ^ beibatch, 56, Barton v. Wolliford. And see 1, Ventris, 190, Mone v. Slue ; Abbott, p. 256, Bever v. Tomliiison. So where one ship was run down by another through Abbott, p. 255, • 1 ' 1 i 1, •" 111- Buller V. Fisher; mere accident; where a master having concealed his same case, 3 British licence, under the idea of having met a hostile Esp'naise, 67 ; , . , , . 1 , . 1 1 Starkie, 157, ship, whereupon his vessel was taken m tow, and Ha'^edorn v shipped water under a press of sail ; where a vessel was Wbiimore. stranded by the gross neglect of the crew of another ; s,iiUh'v°Scot"t ' where on the return of the tide to a dry harbour a ship 2 Bamewaii & took the ground and was damaged ; these casualties vJ, .^"i^*""' "^'^' o _ o ' rletclier d. were all held to be perils of the sea. Ingiis. But where a ship was laid down upon Gosport beach, 3 Taunt. 227, and upon the returning of the tide was found with her Vvhiuu^^e/' planks burst; and again, where a vessel had been drawn on the land, and she bilged ; it was held that these were Rowcroft v. accidents on the shore, and not by perils of the ocean, punsmore, be- 1 -11 n ^ -i . , fore Lord Ken- It was not determined, where a master nred by mistake yon, cited 3 into a ship and sunk her, whether this was a loss by ^''""t"'^' 227. perils of the sea, because the loss was covered by express 5 Mauie & Sel- words in another part of the policy of insurance. )^^"' ^P\' ^"'' i . . . '*^n '"• Butler. Where a vessel was sunk in the Trent by striking Abbott, p. 245, against an anchor, which lay under water without a Proprietors oi buoy, the owners were held responsible for damage Mersey Navi- Uone to the goods. 8"''"" ""■ ^^''^°'^' The usual course of the West India Trade is to land j ^roderip & goods in boats, and the following wording of a clause in Bingham, 454, ,.,,„,,. 1 • ^ rr^i p Jolmstoiii BeO' a bill 01 lading gave rise to a law-suit : ' 1 he act or son. God, &,c. and all and every other dangers, &,c. save risk of boats, so far as ships are liable thereto, excepted." A shallop which was conveying some goods to shore being dashed in pieces, it was contended that the ship-owner was liable by virtue of the exception, but the Court thought otherwise ; they said, that the restriction, " so 28 OF SHIPPING : 8 Term Tlep. 531, Ellis I'. Turner. 2 New Rep. i8'i, Fletcher v. Braddick ; and see 2 Starkie, 438, Scott V. Scutt. Abbott, p. c Rinquist v. Uitchcll. Cases Tempore Hardwicke, 85. 194, Boucher v. Lawson. 1 Taunton, 391, Dewell V. Moxon. 2 Campb. 529, Burgon V. Sharpe. 1 Campb. 451, Giisliug V. Hig- gins. 2 Chitty Rep, 397, Shirwell v. Shiplock. 6 George 4, ch. 125, sect. 55; and see 1 Taun- ton, 568, )^ow- cher V. Noid- gtroiu far as ships are liable thereto," decided the case, for had the goods been lost on board the ship, the defendant would not have been answerable, therefore, there being- no enlarged responsibility, he could not be liable for a similar loss in boats. Independently of these exceptions a ship-owner is in general responsible, for the maxim is, respondent supe- rior. If, therefore, any loss should arise he must bear the consequences, and the same result will take place if any injury is done by his vessel to another. And if it be a legal undertaking, the owner will be bound without his knowledge, as where there was a war- ranty that a ship should depart with convoy. Though the owner will not be liable for an illegal act on the part of his agent, for no man can say, that the master by taking in goods of his own head can make the owners liable. Neither has the captain any power to substitue a voyage in the room of one which has been agreed on between his owners and the freighters. Nor can he engage without the consent of his em- ployer that goods shall be conveyed free of freight, for such a transaction is not according to the usual employ- ment of the ships. A ship-owner is answerable for the safety of goods though they be condemned under a mistaken seizure by the excise, and though the sentence be reversed, the remedy of the proprietor being against the officers ; but if the consignee be not ready to receive the freight, the owners are not liable. We shall find the responsibility of owners for the in- competency of pilots very much limited by a recent enactment, and with reference to their liabilities in cases of convoy, the subject will be considered in the Section upon Insurance. DUTIES OF OWNERS. 29 Duties of Oii'iiers. One of the principal duties which a ship-owner should fulfil, both for his own sake and that of the public, is to provide a competent and skilful master ; for there is scarcely any case in which he will not be held amenable for the actions and conduct of his agent. It is very in- cumbent on him to see that his ship be sea-worthy, for there is an implied contract, in spite of any notice that he may choose to give, that he shall provide a vessel tight and fit for her voyage. So that although a man gave ^^^^ g notice that he would not be amenable for any damage Lyon v. Aieils. unless occasioned by want of ordinary care in the master or crew of the vessel, he was held liable for damaoe arising; from leakaoe. But where a hoy was „, o e> s - o •'1 btratige, 128, sunk going through bridge by a sudden gust of wind. Amies v. Ste- the defendant was acquitted ; for no carrier need have ^^°*' a new carriage for every journey, and in this case the hoy would probably have outlived any ordinary acci- dent. Of Part-oxvners. The relation between persons who jointly own a ship is not much unlike that of partnership, inasmuch as 1 Campb. 329, I n ~ ^ 11 1 11 -'^'■y ^'' -BoSWCll. the pront and loss are shared amongst them ; but the subject can be scarcely entered into before questions of dispute between the proprietors are presented to our attention. Sometimes a party will agree to employ a ship, whilst another will resist the proposed voyage; and some considerable pains have been taken to recon- cile or provide against these unprosperous differences. To effect this, the Court of Admiralty is accustomed to require a stipulation from the majority in value of the proprietors, who, by the law of England, are per- mitted to embark the joint concern upon any probable design. A bond is given conditioned either to return the ship, or pay the dissentient owners the amount of 30 oFs hipping: their shares, and the penalty is double the appraised value of such shaves (i). If the majority are in posses- sion, the minority will obtain this security upon a war- rant to arrest the ship ; if, on the contrary, she be in the hands of the minority, the others may have her upon tendering the security. If this be not done, an express notice should be given by the dissentients to their fellow-owners and the freighters of their non- approval, in order to exonerate themselves from any liabilities which might accrue during the voyage. For the ship sails at the risk of those who gain by her Carihew, 63, profits, SO that those who declare their dissent, as they per Holt, C. J. 1 ' . . ' -^ Ambler, 255, ^'G^p uo profit, will incur no loss ; and thus, where an Horn V. Gilpin, owner expressly refused his assent, the Court of Chan- cery would not hold him responsible (y). Skinner, 230. The arrest of the ship till security is given is strongly Anonymous. commended by the Lord Chief Justice Abbott, in his Sir llioiiicis 0,1 • • T-i 1 T 1 • . Raymond, 15, booK on fehippuig. Tor as the mere sendmg a ship to Graves V. g^j^ works no destruction of the common property, no Siiwcer; 1 Keble ... . 38, same case ; actiou will lie by One part-owner against another for 1 Levmz, 29, gy^h a proceedino- althousfh it be a deceitful and frau- same case. t -s' o ^ dulent transaction ; and there is not any redress in equity upon a like occurrence. Yet, if the ship be sunk and lost, it will be a ques- tion for the jury, whether the mischief has not happened (x) A fortiori, the Court of Admiralty may detain a vessel at ihe suit of the regis-tered owner against a party who is a wrong-doer, having a possession without title. 2 Barnewall & Creswell, 244, in the matter of Rlanshard. {y) It seems that the case of Strellei/ v. Winson is the same with that at Skinner, 230, and that the report in Skinner is the more accurate, which declares that upon an express prohi^ bitio)i of the voyage the dissenting owner will not be entitled to profit, nor liable to loss. The case in Vernon is to the contrary. See 1 Vernon, 298, n. 2. / OF PAliT OWNERS. 3I through the defendant, and if so, the dissentinp; part- Abbott, p. ti, => , • 1 Bariiardiston v. owner will recover his share. Chapman, cited However, althouo-h the power above mentioned is ^^.'."",^'!;,^*^*^'" ^ _ ' King s Mb. now conceded to the Admiralty Court by- repeated de- cases. cisions (z), a party cannot be compelled to sell his share, and a prohibition will issue if such jurisdiction i Wilson, loi, , 1 Ouston V. Heb- be assumed. den. Supposing there to be an equal division of opinions amongst the owners, and an equality of interest, it is Abbott on Ship- said bv learned men that the same course may be pur- P."!"' P;, 7^' , •^ ^ ./ i citing Godol- sued as is related above- phin&Molioy. Nevertheless, farther, it is necessary that the amount of the respective shares should be apparent, so that a plaintiff was successful in his application to Chancery for an injunction to restrain a ship from sailing, where it was disputed whether he was entitled to one-fourth i.1-- J f Ai. • ■ i. i. 2 Merivale, ^y, or one-third of the joint property. Haiyi;.(jood.on. These disputes are frequently set at rest in another way, namely, by the appointment of a ship's husband ; who becomes, therefore, the managing owner, and to whom the cares of employing trades-people and ap- pointing officers are delegated. If a workman think sEspinasse.iaa, proper to enter into a personal contract with such an ''" """^• individual, and make a settlement of accounts with him, the other owners are thereby discharged ; as for example, if a bill be dishonoured after such an ad- justment (a). But where the tradesman elects to pro- ceed against all, a joint-owner to discharge his liability must give express notice ; and thus, where one of three proprietors gave the two others notice that he should ]N,isi Pri,,,^ ^ge, ^_____ ('leadon c. Tinkler. (2) It was much contested at first. See the authorities collected in Abbott on Shipping, 5th ed. pp. 72—74. (rt) For some observations upon a ship's Imsband, see 2 Barnewall & Cresswell, C61, Card v. Hope; -Abbott ori Shipping, 5th ed. p. Cg. 32 OF SHIPPING : Abbott, 76, not hold them in future to be managing owners, it was liara*^ ^ '""^" af^judged, that the plaintiff who had repaired the ship 5 Burrow, 2727, not having been advertised of this, should yet recover lioiise. ' against the first owner. A ship's husband and part- 2 starliie, 345, owner cannot, however, effect insurances to bind his Btll i;. Hum- , . . i • • pliries. leilows, tor each share is a distinct property, and it is the business of each individual separately to protect it. 6 Dow, 13.5, Nor can such an agent pledge his owners to the ex- Canipbelli) Stein. r i ■ . -\t .it -n i • penses ot a law-suit. JNevertheless, it persons be in partnership a very different feature is presented, and it HooT)er v Lus- ^^^ been determined, that an order to insure given by by. one partner will render the rest liable. Generally speaking, those who are interested in ali- Pasiuore v. ' quot parts of a ship are liable in the aggregate if they Bousheld. employ a joint-agent, for they are trusted as partners. w^\,V'^,°'h ^^^'^ where a receipt for the money was signed, the re- ter. medy against the part-owners was not gone, the money Q Rose, 93, in ,^^^.g,. hamn» been paid. ex parte liiand ; ■=" ' Ambler. 269 Tolson v. Mallett. 2 Vernon, 643, So, wliwe the master bought provisions and failed, erave ''"ii^ Dow', the doctriuc maintained was, that, if the owners paid 29, Stewart «. their account, yet if he paid not the creditors, they must Hall. And seel , ,• , , Vesey.sen. 154, Stand hable. Buxton V. Snee. ^}| ^|-,g partners should join in an action for damages which they may have sustained, that a defendant may not be harassed by a multiplicity of suits, and it is of course advisable in actions against part-owners to join the whole. But if supplies be ordered by one proprietor 1 Starkie, 338, who conccals the fact of there being others, and thus Baidiiey v. obtains credit, he cannot make it a part of his defence Aiu /-c r> that those other persons should have been made de- Abbott, 70, Uoo 1 V. Ciiippenden. fendaiits ill commoii with himself (6). (6) The doctrine of pleading in abatement which does not belong to a general rule of this nature may be found at length in Abbott on Shipping, pp. 8i — 85. OF THE MASTER. 33 At the conclusion of a voyage the accounts must necessarily be adjusted, and the course of proceeding See 2 Equity f> .-i • • i •, • • i. TC X. Cases abridged, tor this purpose is by a suit in equity. It, however, ^ Oovert Opey the majority have settled with the Master, the Court j Vernon, 465, of Chancery will not interfere to unravel the particu- l^obiuson v. . Thompson. lars. Yet if the ship's husband will not settle after having made a special agreement to do so within a reason- 13 East, 538, able time, he w ill be amenable at common law to the ^^^*'°" ^'- ^o'e- owners. The bankruptcy of one part-owner does not operate g^g vbbo't ^7 to give his assignees any enlarged right, so that if the bankrupt have not paid his share of the outfit, the re- sidue of the proprietors may reimburse themselves by deducting his share. But where the bankrupt had paid Cowper, 469, so much money, and given notes for the remainder, and j^^J^ ^* ^ then failed, it was not allowed for his two part-owners to discharge his notes and so claim his share of a suc- cessful voyage. - Part-owners being tenants in common, and not joint- tenants, have no lien on the share of another for outfit or freight, and it was thus decided in bankruptcy by 2 Vesej and Lord Eldon, against the opinion of Lord Chancellor ^,^^™'^*' ^^2, ^ t- \ oungex parte; Hardwicke. 2 Rose, 76, Harrison ex parte, same point, overturning Doddington i'. Hallett, i Vesey, sen. 497. Yet although they pay money to the amount of their shares, each of course remains liable for the remaining debt, if any, unless the tradesman should think to dis- Abbott, p. 84, charge them specially. Teed v. Baring. 0/the Master^ The master must be a British subject. He must be His qualification natural-born, or naturalized, or a denizen, or have come ^'"^ conduct. under His Majesty's allegiance by conquest, or have served on board of a British man-of-war for three years. D 34 OF SHIPPING : The authority which he possesses over the vessel committed to his charge is very ample, and we have already seen how closely the owners are bound by his contracts. But, on the other hand, he is as strictly obliged to devote his time and services to his em- iCampb. 527, ployers ; so that where a man thouoht proper to hire fhonipson v. ^ -^ . . til Havelock. out his scrviccs to another, and the party who engaged him paid his employing owner, it was held that he GGuld not sue the owner for the money thus received, though a small sum was allow-ed him for primage (c) at the Chief Justice's recommendation. And the mas- ter was not allowed in another case to retain a profit which he had received from the state of exchange 3 Campbell, 43, upon a bill drawn by him upon his owners. Moreover, Diplock V. -r T ■ . "^ , ' . . . , , Bl«ckburn. II a ship sustam any damage it is incumbent on the commander to advertise his employers immediately, and for want of so doing, the plaintiffs upon one occasion 1 Maule and were prevented from recovering upon a policy of insu- GlaTiitoiie^v. ranee as for an average loss. The vessel and its freight ^'"g- are-in fact committed to his care with the most implicit confidence, and the lav/ regards very severely a breach l\^2^^°t , of that trust. Thus it is a capital felony for the cap- Wm. 3, ci). 7. tain to cast away, burn, or destroy a ship to the preju- dice of the owner, to run away with the cargo, or turn pirate. And by other statutes, to prevent masters from 16 Charles 2 striking to pirates for reward, it is declared, that any ch. 6 ; 22 & 23 such gift shall be forfeited to the owners of the goods, Charles^, c. n. - (c) Primnge is a small remuneration due from the shippers to the master and mariners for their trouble in loading the cargo. And where there was a written agreement for wages between the mas.er and owners in which primage was omitted, so strong is the custom of trade in favour of the master, that he was allowed to recover back from the owners a sum re- ceived by them from the freighters in respect of primage. Ryan & Moody, 1 75, Ckarleian v. Coteauorth. MASTER — HIS AUTHORITY. 35 and that any captain commanding a vessel of 200 tons burthen and furnished with 16 guns, and not making: resistance, should be incapable of future command. The master has a very absolute dominion over his 1 Campbell, 60, crew, who are bound to obey him most implicitly. But ^"jce i-. Ba^- he has not any judicial authority, so that it becomes his duty to place offenders under a guard and surrender them for trial upon his return home, or arrival at any place \fhere there may be a competent tribunal. Though he may use moderate coercion to preserve discipline, to compel a passenger, for instance, to take the station assigned him upon the approach of an enemy. To continue the relation of his power over the ship; the master can order all necessary repairs, and useful ar- ticles ; he can act as he considers most beneficial in any emergency, and his contracts with the mariners and other persons are obligatory upon his employers. Thus he may incur a charge for occasional pilotage, xil^^Nelsoii^^^' - and he may bind the owner by a promise to pay a sailor so much a month, on condition of his becomino- a host- age, and this althouoh the ship and carpo should be ' '^'^rm Rep. 1 . . 7"^ Yates v abandoned. Nevertheless, it is just necessary to ob- Hail. serve, that this presumption of the master's power may be rebutted by showing that the creditor knew him not to be the managing person, or that his incompetency to ^^^ ^|^°*^' ^'' contract is a matter of general notoriety. It has been shown that money may be borrowed by the captain to procure necessaries, and that the owners are thereby pledged ; but the manner of securing these advances to the lender is proper to be explained in this place, as it is peculiarly the master's duty. It is done by entering into an obligation called a bot- | tomry bond, or by giving a bill of bottomry, whereby the '' ship and tackle are pledged for the advance, together with . D 2 36 2 Dodson, 1, Sidney Cove. 3Robinson,240, The Grali- tudine. 4Robin5on,245, The Jacob. 1 Maiile & Sel. wyn, 30, Thom- son V. Royal Exchange As- surance. 1 Vesey, senior, 443, Samsun v. 13ra<;ginton. Abbott, p. 125. OF SHIPPING : a high premium, the whole sum being lost to the lender if the ship be cast away or otherwise destroyed ((Z). But they cannot be entered into unless personal security be wanting. The security given when money is borrow- ed upon the cargo is a respondentia bond. And it is ob- servable, that whenever the master is in a condition to pledge, or hypothecate the ship, he is at liberty to pledge the freight. And where a bond on ship and freight had been executed, but the holder having missed his opportunity of arresting the vessel on account of a deviation, the ship went another voyage, and was then detained by a creditor, it was held, that the freight of the last voyage was liable to the bond equally with the first which had been accounted for to the owners, though the Judge said, if a third party had become interested in the last freight, it did not certainly follow that his opinion would have been the same. There must be an utter loss to defeat the opera- tion of a bottomry bond ; the loss upon which an under- writer may be liable in full is no means coextensive, so that where a wrecked ship existed in specie, however the assured might have been entitled to abandon. Lord Ellenborovigh was quite clear that the borrower on bot- tomry remained liable. Supposing that the master should fail in his endea- vours to obtain money upon the ship's security alone, it seems, that he may charge the owners with a personal obhgation, and hypothecate the ship in addition ; but the lender should not then demand maritime interest. And this leads us to consider more nearly the nature (d) Where the ship itself is not pledged as a security, but a re-nay»nent of money with a high premium for the risk is required ; this is rather a loan for a particular adventure, than a loan upon the ship. Abbott on Shipping, p. 119. MASTER HIS AUTHORITY. 37 of the obligation which, commonly, is on the ship and the master, and not on the owner's personal credit ; so that a bond of this kind will be invalid, if the proprie- i Dodson, 283, tor's responsibihty be relied on in the first instance. Augusta. Wherefore it is, that the master can only execute such a contract upon his voyage, and may not do so at home where the owner resides, although the latter may bind his ship in this way, and, in fact, frequently does so. The owner's place of residence is pr'una facie his native country, and since the union, perhaps Ireland may be deemed the residence of an Englishman for this 1 Dodson, ao:, purpose, though before that event, an English ship was the. held to have been well hypothecated at Cork by the 3 Term, Rep, master. Jersey has been decidedly considered a foreign „, Gibbons •'^"^ place, but in the case of La Ysabel, Lord Stowell seems 4 Robinson, 1, ., ,1 ••i/'i-- n T ^lis Barbara. to have suggested a new prmcipie 01 decision, roundmg the expediency of the contract upon the difficulty of 1 Dodson, 273. communication with the owners. He held a ship bound from Alicant to London well hypothecated at Corunna, the master being unknown there, and the province being not only different, but at a great distance from the owners. The master cannot hypothecate at the commencement 2 Strange, 695, p , 1 J • 1 " 1 1 1 i 1 • ■ Lister r. Baxter. of the voyage, and mdeed a lender at home is in every respect less advantageously situated than one abroad, for the latter can immediately arrest the ship by a war- rant from the Admiralty upon failure of payment. This 3 Term Rep. is a proceedino; hi rem. established for two centuries, and ^^7'., i^^'^"^'''"^ ' . . 'v. bibbons. it makes no difference that the instrument is under seal, 2 Strange, 695, or that it is executed on land (c). But the owners are ^*^^'" '• ^'''''"" (e) See Abbott, p. 127, where the authorities in favour of proceedings by tlie Admiralty are collected. D 3 38 OF SHIPPING : not personally responsible to the lender when the con- tract is made on the voyage. Loans, however, upon the cargo differ so far from bottomry, as that the specific goods will not be liable unless especially pledged, for they may be sold and ex- changed in the course of the voyage. Thus where money was lent to run at respondentia upon an outward and homeward bound cargo, the Court of King's Bench certified that the lender had not any lien upon the goods, for though the loan was stated in the introductory part of the bond to be upon them, it y was merely a pledge for the purpose of salvage. And Busk r. Pearon. Lord Mansfield had declared in a prior case, that he could find no authority for saying, that a respondentia 3 Burrow, 1401. creditor might insure upon the goods as goods. The ship being arrested, a citation goes to bring the parties before the Court, and if necessary, the ship is sold, and its proceeds distributed amongst the claim- ants. But the last security is entitled to the first dis* charge, because, it is presumed, that it has afforded the 1 Dodson, 201, means of saving the ship, and thus conferred a great mamhe. benefit upon the other lenders. There are, however, some bad hypothecations. As where the master drew bills upon the owner for money gA'^esey & advanced, and gave the lender a parol engagement that paTtrHallTeur ^hc ship should be liable. 19 Vesey jun. 474 ; a Rose, a2(J. .3Robinson,272, go if he pledge the vessel for a debt of his own. But if dine. he misapply money, the lender will not lose his security. Again, where a ship was detained in the Jamaica Admi- 2 Taunton, 344, miralty Court, and a party in London became bail for her ; it was held, that the master had no right in this case to pledge the cargo, so that the lender's agent might sell it and receive the proceeds, particularly as the owners were ready to indemnify the bail. Jolinson V Greaves MASTER — HIS AUTHORITY. 39 But the bond may be p'iven to the consignees of the i Dodson, 278, .„., r ■ ' 1 Aj- The Alexander. cargo, ir it be a fan' and necessary transaction. And in the captain's absence, the mate was held justified in pledging both ship and cargo for the purpose of paying 1, C'ampb. 541, salvage to persons who had re-captured the vessel. Todhumer. This contract being a chose in action, is not assign- Abbott, p. 123, able, and Lord Tenterden cites a case, by which it seems ^^*'* ^' ^" '" doubtful whether a demand arising under it may be made the subject of a set-off. All bottomry contracts, made on ships in the service of foreigners trading within the limits of the East India stat^r^i-'si Company's charter are made void by statute. Sect. 2. And by another enactment, for the further protection of the East Indian Trade, all sums advanced on bottomry Geor<-e a, or^at respondentia shall be lent on the ship or the mer- ch. 37, sect. 5, chandize with benefit of salvage to the lender, who shall alone make assurance on the money so lent ; and no such borrower shall insure beyond his interest, and if it be found that he has obtained a loan of more than his interest is worth, he shall be responsible to the lender for so much as has not been laid out upon the ship and merchandize, with interest, assurance. Sec. in the pro- protion the money not laid out shall bear to the whole money lent, and this notwithstanding the ship be lost. It has been stated, that the creditor should look to the No lien on ship owner for payment, and not to the ship; it remains to be "'" '"'^'^ ^' observed, that the master has no lien neither on the ship, nor on the freight. And with regard to the ship, for this reason, that it would be attended with great incon- venience, if on the change of a captain for misbeha- viour, or any other reason, he should be entitled to wVkins '1;. Car- keep the ship till he is paid. n.ichael ; 13 Vesey.jun. 594, l^iissey v. ^ '■ Clirislie — same case at law ; 9 E.ist, 420. And as the hen on the freight is consequential to the lien 3 Barnewall & upon the ship, he can have none upon the freight for his ^^J^JJ'JJ^';^"^^' D 4 Coteswofth. 40 OF SHIPPING : 1 Barnewall & owii personal advantage, if) Yet, as we shall see, he has Aiderson,575, jj f^j. priniag-e, and Other little charges, and neces- bmitli ii. Plum- _ r o ' to » nier. sarily for the payment of freight. Sale of Ship and Cargo. 1 P. Wms. 395, The master has no authority to sell either ship or Ekins V. E. I. cargo upon any general principle, but there certainly are 2 Brown, Pari, extreme emergencies which will justify him in doing so. Cases, 382. ^jjjj jjjg gg^jg transfers no property unless it be legalized Tre'mt Mih'ere V. ' ^Y some extraordiuaiy occurrence, but the instrument Tresiiian. shall rather be deemed to effect an hypothecation, and 2 Lord Ray- thus it was considered in one case, that the owners son'y shipper" should be discharged, and the ship condemned. It is in fact the master's first duty to convey the goods to their place of destination, which he would have strong temptations to neglect if a disceretionary power of sale 10 East, 143, ^ygj.g intrusted to him : and it has been determined, that Keid V. Darby. ... . . . Idem, 378, his petition to a foreign vice admiralty court is not of itself sep '^"^ "■ ^""' sufficient to procure a valid sentence for the sale of a 3 Barnewall& vcssel, especially if the ship be reported sea-worthy, or Cressuell, iq6, -i ^ r Morris ..Robin- Capable of repairs. son. And see 10 E?st, 526, Liddard v. Lopes, and the judgment of Lord Stowell in the Fanny and Elraira ; 1 Edwards Rep. 1 17, 5 Espinasse, 65, Hayniaii v. Molten; Abbott, 1 1, Andrews 1 .Glover. The discussions on this topic often arise upon ques- tions whether an average or a total loss should be paid for by underwriters, and we gather these strong facts, that it is not enough for the master to have acted to the best if) The master has a lien on the luggage of a passenger for his passage money. 2 Campbell, G31, Wolf \. Summers. Money paid under an attachment against a ship, salvage, and the mariners wages, are severally liens upon the ship, but not sums paid for the captain's wages, nor disbursements. 5 Barnewall & Alderson, 203, note. MASTER — HIS AUTHORITY. ^.1 of his judgment, nor that the sale is conducted bona fide, if, in truth, there be no uro;ent necessity for disposino- of it- v? }^' P' ' The authority of the master to part with the cargo Leekie. rests upon the same principles as we have just mentioned in the case of ship. He cannot lawfully put a stop to the voyage, whatever VaiT'cfmeron v! may be the expediency of doing so; he ought to wait ^o"'ick. a reasonable time for a crew to navigate his vessel before Undenvood'l' he sells; he has no dominion over the cargo, nor has any Robertson. right to assume to himself the power of breaking up the wUso'nrMillar original adventure ; if his ship be in a shattered state, i Bingham,243, he may find another, or repair his own, for he is bound to Gannon t;. Mea- accomplish his contract if possible; and his owners will be answerable for a breach of promise in these cases of im- j^, f],^, ^^^^ proper sales. effect, 5 Bamewall & Alderson, 617, Freeman v. East India Company; 3 Barnewall 6c Cres'ivvell, 196, Morris v. Robin- son ; 1 Starkie, 490, Campbell v. Tliompson. And see2 Barne- wall & Alderson, 2, Wilson v. Dickson ; 1 Taunton, p. 315. We have said, however, that cases of absolute emer- gency may exist, and that the master may then sell both ship and cargo. Perhaps, in case of famine, this Jenkins Rep. maybe done; again, where a ship is in a foreign country, , Edwards 118 where the owners have no correspondent, and there is b^ Sir W. Scott, no money to be had on hypothecation. Again, if a ship i* seems so from 11 - X • J -f u 5 Espinasse, 65, run aground, and cannot be raised ; it she po upon a jr ,, , o ' ' o 1 Haynian r. Moi- reef of rocks in a state of leakage, and thus incur the fon. most imminent danger; if she encounter tempests of idieTlioy^a^' such a nature as to frustrate her voyaoe; possibly a cap- ^^- Assurance; ,..„,.,. ■ /. , •" bnt this case tain may be justified m disposing 01 her. came on error before the Court of King's Bencli, and tlicy directed a venire (h novo, not being satisfied that there had been the press- ing necessity, 3 Broderip & Bingham, 151, note : 3 Brode- rip & Bingham, 147, Read v. ]5onham ; but Richardson, Justice, dissented from this decison, and the facts do not appear to hate been very strong (/"). (/) Indeed, the master made no attempt to hypothecate the cargo, though he had failed in hypothecating the ship. .42 OF shipping: And one test of the evidence of necessity seems to be Green" i;°"iloval wliat the master would do if his ship were not insured, Ex. Assurance ; same case, 1 Marshall, 447. However, enough has been said to point out the ex- treme rarity of those occasions which justify this con- duct on the master's part ; he is bound, to speak most 4Campbell,i39. emphatically, to use every expedient first. Yet he may 1 Canipbell,54i, Sell a part of his cargo to discharge salvage money upon hTter^*''^^ ° ' ^ recapture, or to advance the ship to her place of destination, every other mean having been tried inef^ fectually. Abbott p. 120. The last authority we <i'ive upon this subject contains, perhaps, the clearest case of necessity, and it is simply, 1 T3in!jiiam,445, that the ship in question was so shattered by a storm as ]|oberison v. ^q require more money to repair her than she originallv CIdrke. ^ . . o ^ cost; upon which she was sold with part of the cargo, and the master transhipped the remainder of the goods : this was held to be a justifiable appropriation. It ap- peared also, that the commander was ignorant of the in^ surances which had been effected. LiabUities. Cowper, 636, Unless the master take care to confine the credit to £ast 432^.' ^^^s owners, he will be liable for necessaries furnished to the ship. But if the goods be ordered before the com- 1 Term Tvep. mander's appointment, he is clearly not responsible. So I)1v'ies."^""^' where the creditor asked the owner to allow him to Cases Tempore make somc sails, which were ordered subsequently by Hard«icke,376, ^|^ master, the jury considered the credit to have been ion. given to the owner only. The captain is usually under covenants to keep the ship in repair, and deliver her up at the end of the term in as good condition as when he received her, so that if Cowper, 640. he fail in his covenant, the agreement is at an end, and the owners may repossess themselves of the ship. He is thus amenable to his employers for misconduct and MASTER — HIS DUTIES. 43 negligence, and to such also as intrust their goods to his care. As where the master thouoht proper to fire ^''''!^'^'^''^'^'".'" '^ ' ^ . . lis Cases, 20j, a cannon at some neoroes, under colour of their owuig i uileton «. him a debt, whereby one of them was killed, and they ^^ ^'^'*' ^^' of course refused to trade with him ; it was held, that an action would lie against him at the suit of his owners for this injury. Master — his Duties. The duties of a captain are so intimately connected with his liabilities, that it may not be amiss to enter at once upon the subject. As soon as he or his servant receives the cargo his responsibility begins, and the time when he shall be said actually to possess it de- pends upon usage. For where goods to be carried coastwise were delivered to the mate by the wharfinger, and were afterwards lost from the wharf before ship- ment, the wharfino-er was held to be discharped inas- 5 Espinasso,4r, much as this was a delivery to the master according; to J^ "" ^' the custom of business in that matter, A receipt for the goods is now given by the master, which ought to be returned to him before he signs a bill of lading in favour of another person ; for where he delivered such a bill to the consignees of some sugar without getting 6 Taunton, 433, back his acknowledp;ment from the plaintiffs, the con- , '^^^^ ''■ ^^'" to I ' der ; 2 Mar- signors, he was held answerable to them for the value, shall, 127, same it being their determination to stop in transitu by rea- son of the consignees' insolvency (g). And this re- sponsibility is induced even if there be a refusal to 5 Barnewail & ... . Aldcison, 632, Sign the receipt, and the master afterwards assign the Ruck. v. iiat- cargo by bills of lading. ^*^'^- The next duty is, that the master be careful to pro- See i VentHs," vide a sufficient crew to protect his goods, for, unless {^hornds kny- — niond,220; IIo- C"-) So in Halves v. Watson, a written acknouledcment by t''"' ^^' ^'°''^ , . •' James, 330. wharhngers was held to prevent tlicir setting up any defence of a stoppage in transitu. 2 Barnewail &c Cresswell, 540. 44 OF SHIPPING : See Abbott on Jn cases of piracy, he will be liable if any fraud or force Shipping, p. 224. , . , . . , . n ^ ■ . succeed in depriving mm 01 his trust. It is also incumbent upon him to see that his cargo ^.. , , is received on board without damaee, for he will be ciied at p. 2R2, responsible in case or accident, as it a cask, be of 1st Wilson, staved. It is requisite that he have his pieces of wood (//) ready against the sides and bottom of the hold to guard the cargo from leakage, that the articles be carefully and judiciously arranged ; that more may not be received Abb 234 t^^^ ^^^ ^^® ^^^^y carried ; that no contraband things be admitted, whereby the ship and its freight may be 15 East, 46, endangered, and no simulated papers by which the Horne_j'er v. vessel and all the property would be exposed to con- Lushington. . demnation. The necessary clearances being effected, the port and Abbott, p. 226. other duties being paid, and the weather such as a prudent commander would judge it right to adventure in, the voyage begins. If there be a warranty to sail with convoy, the mas- ter must use every practicable exertion to fulfil the engagement, and when we come to speak of insurances, the various excuses which operate in his favour will be mentioned at length. But it may not be wrong just to observe, that it is not yet decided, whether, if it be notified that a vessel is to be employed as a general SeeAbbott,2i3, ship and to sail with convoy, but no mention is made Snell V. Mar- « , . •i'iupit 1 ,• rjatt. 01 such a protection in the bill ot lading, there be in fact an undertaking that she shall sail with convoy. Although a jury intimated an opinion that this expres- Abbott, 212. sion did certainly amount to a warranty. The commander now proceeds without delayer devia- tion to the place of his destination, being prepared to de- (A) Called dunnage. Montefiore. MASTER — Ills DUTIES. 45 fend his ship and cargo to his utmost power. Of course, 4 Campb. 112, if he deviate, and be captured, he sustains as well as his I'arterv.James. owners a liability to make the freight good. What he may do to raise money, we have already inquired, and what also in cases of peril and urgency ; but he must not forget, and especially if it be of a perishable nature, that the care and well-being of the cargo rest with him. So that, if chests of oranges, for instance, should be spoiled through his neglioence, he will be amenable. i^^^sf'SQ^. rr n ■ 1 • 11 393- So if rats, or mice get access to his cargo, unless he iWilson, 281. have animals on board fit for destroying such vermin. ^^^ Abbott, p. •' ^ , 244, Dale V. And a promise to carry safely includes a promise to keep Hall. /• 1 / -N I3y Lee, C. J. safely (0. iWiison. 282. Upon the arrival of the vessel at its destined port, it remains only, that the master fulfil the usual forms, and deliver his cargo safely to the person entitled to receive it. This must be done on payment of freight, for there is no right of detainer in respect of wharfage, 3 Campb. 360, that being a charge upon the owner of the ship, as the °'*"' *'^^* bill of lading guaranteed the cargo upon payment of freight (k). The captain's charges are primage and the ordinary trifling average, and if there be a general average, secu- rity, it seems, is required from the merchants that they Abbott, p. 247. will pay their shares upon adjustment. For the pay- ment of freioht a lien is clearly incurred, and any part I^^™> ^•*7 ; . . *^ ' 6 East 622 So* of a cargo may be detained for the freight of all that is dergreen v. ' consigned to the same person. That the merchant may ^ ''g'it» cued, see the condition of his goods it is proper to land them upon some wharf, and not to keep them on board ; and (i) If the captain choose to meddle with a seaman's trunk under any pretence, he is bound to restore it to its former state of security. 1 Starkie, 237, A'clson v. Macintosh. {k) In this case the goods were delivered over the ship's side, after she had been moored at the wharf. 46 OF SHIPPING : where by act of law goods were removed to the West India Docks, Lord Eilenborough expressed himself quite . satisfied that the plaintiff's lien ought not to be preju- v.yn, 157, Wil- diced. Where custom-house officers take a cargo and son V. Kyriier. ^^j^ -^.^ there is au enactment which declares that the 6 Geo 4 C.107, ^^^^ produce of the sale shall be devoted to the pay- Sect. 134. ment of freight. But for dead freight, as for breach of covenant in not providing a full cargo, no detainer can Abbott, p. 249, be enforced. And the master has a careful duty to 2 Carriiigton & perform in taking the money for freight, for if he should Payne, 55; consent to receive a bill when he mioht have money, Cresswell, 160, the shippers will be discharged in an action of assumpsit whcr'e^the nlas- ^^^ ^^^ freight; whereas, by taking the bill as the best ter took the bill coursc to be pursucd for all parties, the owners might for bis own con- venience, recover. 4 Campb. 257, Marsh j;. Pedder, where the master recovered, because he had not been offered the fi eight in cash. As soon as the goods are delivered, the master's re- sponsibility ceases. But the manner of surrendering the goods so as to escape further question is sometimes a matter of nicety, and, indeed, depends much upon usage. As where a hoyman delivered an anchor to a wharfinger on a certain quay, received the freight from him, and gave a receipt; the jury being satisfied that this was the common usage found a verdict for the ess^'vvarde'il I), hoyman, who was charged with not delivering the Mourill;>an. anchor. Again, where on the arrival of ships from Turkey, it appeared usual for the consignee, after the quarantine, to send persons down for the purpose of packing the goods, it was held that a consignee who neglected this Abbott, p. 250, precaution could not sue the master for damage which Dunnage J. had befallen the property by reason of its being sent loose to shore. And Mr. Justice Buller has said, with 6 Terra Rep. reference to goods coming from foreign countries, that 397- a delivery on the usual wharf will discharge the carrier. LIMITATION OF RESPONSIBILITY. 47 But where the consignee desired that the goods might not be landed on the wharf against which the vessel 4 'renn Rep. . , , . 1 • 1 1 260, Sveds t'. was moored, notwithstandmg which, the master per- Ha v. sjsted in doing so under an idea that there was a lien for wharfage dues, he was considered clearly liable. And where there was shown to be a custom on the River Thames that a master should see goods safely Peake's Cases, loaded in a li2;hter, it was not considered sufficient for li>?' ^»''fy ^• ^ Winlniigliam. bim to say that he had not hands enough to board to take the necessary care. Though after the loading, it Abbott, p. 250. seems, he is not bound to see them delivered on the XmpinT" " wharf. Amount and Limitation of Ilesponsibilitij of Oxiners and Musters. The next question is the amount of damage which the owner or master is bound to pay. First, with respect to goods, the prime cost with the charges of shipping should be paid the merchant in case of loss, but not the "premiums of insurance which he may have disbursed, unless it be clearly shown, that the goods have advanced 4 Campb. 112, in value. If the master be oblioed to part with some of ^'-^^^^^^ v- 1 -1 • 111- James. the articles to raise money, and the ship reach her place of destination, the clear value which the goods would have fetched there must be tendered to the freighter. Abbott, 245, But the merchant may insist upon the price of the goods "^^'^ "' " '"* at the time of sale, which he may deduct from the , starkie,4Qo, freight ; and where the goods were sold for more at an Cani])bell v. ,. , ,, , /•! 'J'lioraitson. See intermediate port than would have been got tor them at 10 p:ast, 378, their place of destination, the Court would not set aside ^imtcr v. Prm- ceo. the award of mercantile men, which directed, that the 3 Uamcwaii & raerchants should have the sum actually obtained for ]\icha^rdson^7' them. Nourse. --By the old law, the owner of a ship was responsible to the full amount of the damage which the freighter might have sustained, and the master is still wholly answerable for his neglect or dishonesty. Where the 48 2 Chancery Cases, 238, Anonymous. By Sect. 3. Sect. 4. 1 Term Rep. 18, Sutton V, Mitchell. OF SHIPPING : Owner, however, bound his ship and tackle valued at a certain price, he was not held liable on the master's committing barratry beyond such value. But as the owner's full liability tended to discourage the increase of shipping, the 7th Geo. 2, c. 15, was passed. The responsibihty was confined by that Act to the value of the ship, with her appurtenancesand freight, in cases of embezzlement, secreting, or making away with goods and merchandizes by the master or mariners. Further, the freighters were to receive a compensation in propor- tion to their losses, and a bill of discovery was permitted to obtain a disclosure of the aggregate damage, the value of the ship, and a fair distribution. Yet, such person so filing his bill must produce an affidavit deny- ing any collusion with the defendants and, according as the Court shall direct, must offer to pay the value of ship and freight. Another section expressly declares, that the master and mariners shall in nowise be discharged by the mak- ing of the statute. But the owners were still dissatisfied, for if any treachery were practised by persons not belonging to the ship, their danger remained as great as ever. Though a robbery perpetrated by intelligence given to thieves by a mariner was held to be within the Act. Neverthless, another act (/) passed restricting their responsibility in cases where no one on board the ship might be privy to the plunder. And, now, the same safeguard is extended in case of any "act, neglect, matter, or thing done, omitted, or •' occasioned without the fault or privity of such owner ** or owners." (m) (0 26 Geo. 3, 0. 86. (m) 53 Geo. 3, c. 159. The 1st section speaks of a ship with her appurtenances : it has been decided, that whatever LIMITATION OF EESPONSIBILITY. 49 The statute goes on to provide, that the value of the carriage of any goods, belonging to the owner of the Sect. 2. ship, and the hire due, or to grow due, except hire of a ship hired for time, which may not be earned till six calendar months after the loss, shall be considered as freight (11) ; that where there may happen to be more than one loss during the voyage, or at the end of it, and before the commencement of a fresh one, each such loss shall be satisfied in the same manner as though there had been only one ; that the responsibility of master and mariners should continue as before ; but that the owners is on board of a vessel for the purpose of forwarding her ad- venture will come under the denomination of appurtenances, and, therefore, tackle, apparel, boats, and stores employed in the Greenland fisheries were deemed liable to make good a loss occasioned by collision. 5 Barnewall & Cresswell, 156, Gale V. Laurie; 1 Haggard Admy. Rep. log. The fishing stores of a whaler are within the act. 1 Marshall on Insurance, 239, Dundee ship. Lighters and gabbers are not within the act. 1 Bligh, 573, Hunter v. M'Goxvan. It has also been determined, that the circumstance of a master being also a part-owner, and sued as such with other owners, does not deprive the owners last mentioned of the benefit proposed by the first section. 2 Barnewall & Alderson, 2, lVilso7i v. Dickson. (n) In calculating the respective values of ship and freight, it is observable, that the extent of responsibility is the ship's value at the time of sale, and the amount of freight she would have earned had she performed her voyage, but not an antici- pated freight at the time of her sailing. 1 Bingham, 465, Cannaii v. Meahurn ; 2 Barnewall & Alderson, 2, Wilson v. Dickson. And freight paid in advance is to be reckoned as part of the owner's liability. 2 Barnewall & Alderson, 2, Wilson v. Dickson, £ 50 OF SHIPPING: of vessels employed solely in rivers or inland navigation, or of any ship not duly registered should not be entitled to any benefit. The manner of filing bills for discovery with the consequent proceedings in equity are then fully set out, as may be seen in the Act, which is merely referred to as one of great public importance, since it does not consist with the plan of this work to discuss mat- ters of practice at any length. PILOTAGE. Who are to grant Licences, S^c. 6 Geo. 4, c. 125. There is a new Act consolidating the Law of Pilotage. The power of licensing pilots is committed to the Sect. 1. Trinity House, Deptford, who, in common with the Tri- sect. 5. nity-houses of Hull and Newcastle, are to appoint sub- commissioners (0) to examine pilots (/)), and to act upon their certificates of qualification. Notice of appointment is to be affixed to the Trinity House, London, and to the Sect. 7. different custom-houses at the ports. The corporation at Deptford may make by-laws, and annex penalties for the breach of them, but the approbation of the two ect. M. Chief Justices must previously be had. And before either of those judges are applied to, the by-laws must be transmitted to the Privy Council and the Commis- sioners of Customs, and the latter are to order copies to Sect. 12. be hung up at the custom-houses, both before and after Sect. 1 3. their confirmation. Unless altered by this Act, all by-laws Sect. 28. made under the 52 George IIL are to continue valid. (0) The harbours of Ramsgate, Dover, Sandwich and Mar- gate are particularly mentioned as places for careful pilotage, and strict qualifications and examinations are required in respect of them. Sect. 39. (/») See the oath, schedule B. at the end of the statute, and sect. 17. PILOTAGE. 51 The corporation are also intrusted with power to Sect. 48. reward any unhcensed pilot who shall act in the absence of one licensed, provided no licensed pilot shall, to the knowledge of the other party, have offered to take charge of the vessel. Licences under proper examinations may also be gggt 14, 15. granted by the Lord Warden of the Cinque Ports, and the Cinque Ports pilots are to be under his control. He Sect. 21. is, at his court of Loadmanage {q), to make such regu- lations as he shall think fit, with the annexations of penalties; but the Privy Council may correct, amend, or enlarge his rules. The number of Cinque Ports pilots Sect. 22. is declared to be 1 20 so soon as they shall be reduced by death or otherwise to that quotation, and without special permission from the Privy Council upon the recom- mendation of the Trinity House the Lord Warden may g^^.^ not fill up more than each alternate vacancy. But with permission as before mentioned the number may be ex- tended and kept up to 180; provided again, that there be an alternate vacancy filled up in time of peace. The Pilots — their Qualifications, Duties, SfC. They must have acted three years before they can be suffered to pilot any ship drawing more than fourteen feet Sect. 3. water, and this applies both to Trinity House and Cinque 1 ort pilots. Their licences, renewable, are to be granted annually; Sect. 16. but they must execute a bond promising obedience to <= • • the by-laws, and these permissions may be annulled, revoked, or suspended at the pleasure of the Trinity Sect. 37. House, or Lord Warden. But there is an appeal to the Sect. ag. (g) See sect. 20, by which this court is empowered to award certain compensation to pilots of the upper book, out of the profits of lower book pilots. E 2 52 OP SHIPPING : Sect. 30. Privy Council, both by the pilot, as well as by the com- plainant, if the appeal take place within six months after the adjudication. Sect. 68. The causes of this suspension may be various, but the keeping of a public-house is expressely forbidden (r), and for that, as well as for offences against the revenue laws, a pilot shall .forfeit his licence, or be suspended. Sect. 69. If after the deprivation a pilot ventures to act, he will be considered as unlicensed, and subject to the penalty in such cases. Sect. 35. The names of all pilots are to be annually transmitted to the Trinity House, and a list of pilots is to be for- warded annually to the Trinity and Custom-houses. Sect. 36. The Commissioners of Customs are to send the names of all pilots resident at each port to their principal officers at all the ports in England, and this is directed that pilots may be duly acquainted with all proclamations for the performance of quarantine, and that they may notify them accordingly upon going on board of foreign vessels. The pilot must write his name in the log-book, and it must be inserted in the report of ships coming to Sect. 43. London, reported daily to the Trinity House, and monthly to the Lord Warden. The penalty for writing a false name is twenty pounds. Sect. 65. It is moreover requisite, that the description of each pilot should appear on the back of his licence, that Sect. 66. he should not act until his licence be registered, and that he should have his licence ready, and produce it to the commander. Sect, 67. The licence must be given up, if required, and on the decease of a pilot must be returned to the corporation which granted it. ( r) Unless the pilot were concerned in it before the 1st of March 1808, and authorized to continue in it by the cor- poration or other authority. PILOTAGfi. 53 But the licence enables a pilot to supersede any Sect. 70. unlicensed person ; and indeed, after a licensed pilot appears, there is a penalty attached to any individual who ventures to act without a licence. Yet, in order that the captain may have the best assistance, an un- licensed party may act if no one better qualified should tender his services (s). Sect. 71 &34, No less than eighteen Cinque Port pilots shall, without Sect. 18. intermission, be plying at sea between the South Foreland and Dungeness, to take charge of ships and vessels coming from the westward ; and upon notice of any fleet approaching, all the pilots shall go off in sufficient time to fall in with such ships and vessels. The pilot-boats are to be licensed by the Trinity House Sect. 31. and other authorities, and pilots are permitted to form joint stock companies for the maintenance of such vessels, a list of which is to be transmitted annually to the receiver of the six-penny duty in the port of London. These Sect. 37. ■ boats are to be furnished with flags, which a>s well as Sect. 32. the vessels are to be distinguished in a particular man- ner ; and if a pilot go off in a boat not belonging to the corporations, he must still display his flag. To carry such a flag without a pilot is penal. ^'■'^^- 33- As soon as the pilot comes on board he must go through with his undertaking, and if he quit a ship without the master's consent, or the arrival of some other duly qua- lified pilot, he will be liable to a penalty. And it is an ^^'^^- ^^- '^'^' offence to decline putting off, and taking charge of ^^^^' '^^" vessels. But it is enacted, that no pilot shall be taken out to sea beyond the limits of his district against his will, unless it be absolutely necessary, and in such case he S^^^- 38. shall have a compensation of 10s. 6d. a day above his pilotage. (5) Such persons, it seems, are not bound by the established rates of pilotage. 6 Robinson, 227; the Nelson. E3 54 OF SHIVPING t Sect. 57. The extent of liability which these persons incur is the full penalty of their bond and their pilotage, and of course the various penalties attached to the different offences of which they may be guilty. These latter are numerous, and it is desirable to refer to the Act for the amount and extent of each. But it is forbidden to pilots Sect. 73. to increase the expense by any unnecessary boat or ap- Sect. 74. paratus, to lend their licences, to be drunk, to conduct a vessel into any hazard or otherwise damage it, to cut any cables improperly, or to obtain the charge of a ship by misrepresentation; and these faults which bring penal- ties, damages, suspension, or forfeiture upon the offending pilots, will, if committed by unlicensed persons, subject them to fines and damages. Andseesect.75, The fourth section compels the pilot to pay three Thei^to^obey guineas annually, and to deduct a certain poundage (0 the orders of from his earnings, which sums are devoted to the indigent pilots' fund. And certain penalties are directed to be Sect. 83. applied to the same purpose. Duties of Captains. Sect. 19. The masters of ships coming from the westward are bound to put out signals for Cinque Port pilots, and to fa- cilitate their coming on board, and there are certain other regulations respecting such pilots in the same section. Sect. 58. ^j^) Penalties are awarded against commanders whose vessels are not provided with a licensed guide, or who em- ploy a licensed person out of his limits (x) ; but this does (t) Sixpence in the pound. (m) The penalty of double pilotage which this section awards against commanders, means the sum payable at the place where they are first bound to take a pilot on board, and thence to the end of their voyage. 6 Taunton, 256, Mackie v- Landon. {x) Where a master discharged a Cinque Port pilot in PILOTAGE. 55 not apply to the emergency of a ship being in distress, Sect. 61. nor to the cases of ships trading to particular places, pro- vided the master be not obliged to call in the aid of any Sect. 59. unUcensed person, or of any others than his own crew (^). Liabilities of Captain. There are three sections restraining the responsibilities of masters and owners. Thus, they shall not be liable ^^^^- 53. 54. & for loss arising from the want of a proper pilot, if the captain have used every practicable means to obtain one, and have not refused to receive him on board. Nor shall they be hable by reason of a pilot's incompetency, so as he be qualified, and provided also the master have done what is in his power to obtain the most experienced aid. And in no case shall the owner be liable beyond the value of the ship, and her appurtenances, with the freight (2). The King in council is authorized to permit vessels sect. 60, Standgate Creek, and dropped a mile down the port of Rochester with a signal flying for a Trinity House pilot who came on board at Sheerness, the Court held, that a penalty had been incurred, for the master had conducted his ship for more than a mile without any pilot. 2 Bingham, 219, Thornton v.BoIand. See also 2 Broderip & Bingham, 399, Peakev. Carrington; 5 Moore, 176, same case. (1/) See 2 Price, 118, Usher v. Lyo7i ; 3 Broderip & Bing- ham, 112, Davison v. Mekibben ; 6 Moore, 387, same case; Abbott on Shipping, p. 157. (z) See 7 Taunton, 258, Bennet v. 31oita ; Idem, 309, Ritchie V. Bowsfield. There seems, however, to be a distinc- tion between cases where the master is compellable to take a pilot on board, and where the receiving such a guide is left to his own discretion ; in the first, the owners are not answerable, for the provisions of the law take the conduct of the ship out of their agent's hands ; but in the latter, it seems, they are responsible. 4 Maule& Selwyn, 77, Carruthers v. Sydebotham; 3 Price, 302, The Attorney General v. Case* 56 OF SHIPPING t not having a British register and not exceeding sixty tons burthen, to be navigated vi^ithout a licensed pilot. And the master of a ship being an owner or part-owner thereof, and resident at Dover, Deal, or the Isle of Thanet, may pilot his vessel up and down the Thames or Med way, or into or out of any port within the jurisdic- Sect. 62. tion of the Cinque Ports. Sect. 63. So also after a ship has been brought into port by a licensed pilot, the master, or the owner, or his agent> may remove the vessel for the purpose of entering into or going out of any dock, or for changing the moorings of such vessel {a). Rates of Pilotage. Sect. 8. The rates are established by the Trinity House, and the tables hung up at the custom-hoUses of the different Sect 25. ports ; they are prescribed by two schedules annexed to Sect. 8 & 26. the Act, but the Trinity House and the Cinque Ports Warden are at liberty to increase, modify, or alter them as shall be deemed fit. No greater or less rates are Sect. 8 & 26. to be taken under a penalty of 10/. except, that ships returning by stress of weather, contrary winds, or acci- dent into ports in the districts of the Isle of Wight, (a) A brig arrived in the Thames with a cargo of fruit and wine ; the fruit was to be delivered at Coxe's quay, which is above the London docks. The master sent it to the London docks, and endeavoured to persuade the consignees of the fruit to suffer it to be landed there, which was refused. On proceeding towards Coxe's quay, with a pilot still on board, the brig ran foul of a barge and sank it, and the owner of the barge sued the owners of the vessel and the pilot ; held that the pilot was alone answerable, for the ship was not merely changing her moorings, but going to the place which was, properly, her original destination. The owners, were dis- charged by the operation of the 55th section, which relieves them from the consequences of the incompetency of pilots. 6 Barnewall & Cresswell, 657, M'Intosk v. Fo^. l>lLOTAGE» 57 Plymouth, and Falmouth, shall only pay one half of the Sect. 8. common pilotage. If the majority of licensed pilots at any particular port, or the owner of a vessel interested in the rates, should be dissatisfied with the adjudication of the pilotage dues, there lies an appeal to the Privy Sect. 9. Council, who are authorized to alter and regulate them at their discretion. Five shillings for every foot of the draught of water by Sect. 40. a ship piloted into or out of Ramsgate, Dover, Sandwich, or Margate harbours is the rate established in those places. Certain rates in cases of quarantine are prescribed by the forty-first section. The pilotage outward of foreign vessels is to be ascer- Sect. 49. tained by the scale of tonnage according to which they are rated to the light and other Trinity House dues, 6r according to the draught of water as the Trinity House shall think expedient. If any dispute should arise Sect. 50. between the pilot and the commander, an officer ap- pointed by the Trinity House is to admeasure the draught of water, and settle the difference between the parties, and if it be discovered, that the pilot has given a false account of a vessel's draught, or has fraudulently altered any marks denoting such draught, a fine of 500 /. is awarded against the offender. Sect. 64. The rates of small foreign vessels bringing fish, corn, &,c. are to be fixed by the Trinity House. Any surplus Sect. 51. rates of pilotage upon ships not having British registers are to be paid into " The Pilots Fund." Sect. 52. Rates — ho'rv recovered or levied. Pilotage may be recovered from the owners or masters sect. 44. of the vessels, or from their consignees or agents {b), (h) Pilotage earned within the body of a county cannot be recovered in the Court of Admiralty. 2 Wilson, 2C4, Ross V. Walker. 58 OF SHIPPING : and the sum recovered may be levied like penalties, by giving a demand in writing fom'teen days previously. Sect. 45. ^j^j such consignees or agents may retain any pilotage they have paid. The dues from foreign vessels must be paid to a person appointed by the Trinity House, and if not paid within fourteen days from the day of the ship's reporting inwards, it may be recovered and levied in like Sect. 46. manner as we have above mentioned. When the pilotage is discharged, a certificate is given by the receiver to that effect, in order that the vessel may clear at the Custom House; the receiver hands over to the pilot what is due to him, and the surplus is carried to the fund for indigent pilots. Sect. 47. Penalties — how recovered. Sect. 76. Forfeitures above 20/. are to be sued for with the consent of the Trinity House or the Lord Warden of the Cinque Ports in His Majesty's courts at Westminster (c), the action to be commenced within twelve calendar months after the offence. Sect. 77. And penalties under 20 /. are to be recovered summarily before magistrates, (as is fully set forth in the seventy- seventh section,) who may, in default of sufficient dis- tress, commit the offender. The complaint must be with the same consent as before stated, and the recovery must take place within six calendar months after the offence; but a judge of the courts at Westminster may enlarge both the times of twelve and six months upon sufficient cause being shown. Sect. 78. The management of warrants, the enforcing a due Seels. 79, 81, attendance on the part of witnesses, the form of con- 82,&84. victions, the mode of appeal, the limitation of actions (c) See Barber V. Tilson, 3 Maule & Selwyn, 429 ; where, under the old act, it was held necessary to bring the jiction in the county where the oifence was committed. SECTION III. Of Contracts for the Conveyance of Goods in General Ships. — Of Bills of Lading, and Stoppage in Transitu. —Of Charter Parties and Freight. Where a ship is not specially hired by particular merchants, but is open to all for the conveyance of their goods, it is called a general ship. On the contrary, when one or more persons engage a vessel exclusively, there is usually a written contract, which bears the name of a charter-party. In the former case, the bill of lading is commonly the evidence of the contract, in tlie latter, there is, in addition, the charter party of affreightment. The cargo being sent on board, the master executes two or more bills of lading, all which should be stamped excepting his own. The merchant receives one of these for his own use, another goes to the consignee or corre- spondent, and the master retains the third for tlie purpose of ascertaining the specific quantity of the merchandize BILL OF LADING. 59 are amongst the latter regulations of the Act. It also ^^ ' * declares, that His Majesty's ships are not to be affected by its provisions, that the jurisdictions of the courts of Loadmanage and Admiralty are to be preserved entire, ^'^^' '^' that the rights of the City of London are not to be prejudiced, nor those of any place having a separate Sect. 89. jurisdiction. By section the ninetieth, the Beaconage Act is extended to all vessels displaying lights for the preservation of ships at sea, and heavy penalties are adjudged against such ^<^ • 9 • as injure in any way, or remove, ride by, or make fast to any such vessels bearing Hghts, buoys, or beacons. 60 OP SHIPPING : shipped, of which it is in general legal evidence. But where a master chose to describe a chest of dollars in his bill, " contents unknown," it was held, that the document 3 Taunton, 303, declared nothing, and that neither the amount could be Parr "^ ^* given in evidence, nor could the property be said to pass to the. consignee. When the vessel has arrived at her place of desti- tiation, the master's best course is to resign the goods to the party first mentioned in the consignor's in- dorsement on the bill, and we have seen how dangerous it is for the captain to deliver up his bill of lading without a return of his receipt. Where bills have been signed at different times, the person who first ob- tains one of them by a legal title from the owner or shipper will establish the best right to the consignment, 1 Term. Rep. and if the captain has acted bondiide, he will be relieved 305, Caldwell V. fj-Qm all responsibility. A-nd it is worthy of notice, that Ball. And see ' ■' . _ -^ .1 Henry Black- the Ordinary clause which contains an engagement by FeTron /'bow- ^hc master to deliver goods to the consignee, &c. he or ers ; 2 Bosan- they paying freight for the said goods, is introduced for 457, Mills i"' the master's rather than the consignor's benefit ; so l^^"- that where the master brought an action for freight, and the defendant answered, that the plaintiff had de- 33 East, 565, livered the cargo without receiving the said freight, Bernales ; and according to the said bill of lading, it was holden, that se^e Abbott p. ^uch a defence could not be sustained, and this although 281. ° the defendant was the charterer. The same doctrine has obtained in the court of Chancery, where, although the Vice Chancellor doubted 3 Maddock, whether the captain could file a bill of interpleader if 877, Lo we V. ^^^ adverse claims were paramount to the bill of lading, yet he said, that a delivery according to it would justify the master. The negotiability of these instruments takes place by indorsement or deliveiy, and the practice of assigning BILL OF LADING. Oi them, sanctioned as it has been by the judgments of our See i Henry pourts, has become common amono;st merchants. Biackstone.ssv; ^ ' ^ 2 ienu Kep. 03; 5 Term Rep. 683, Lick barrow v. Mason ; Abbott, 385, where the autkorities are collected. Sometimes the bill is made in the first instance for dehvery to the consignee, sometimes it is indorsed by the consignor to whose order it is made, either generally, or to a third person by name. But the property in a Abbott, p. 384 cargo may be transferred by delivery of the bill of lading without indorsement, and such a transfer will be good except against subsequent indorsees for a valuable con- 5 Taunton, 558, „;j„„.^i"«„ Nathan v. Giles. sideration. And so it was where by mistake the bill of lading had not been indorsed, and the consignee sold the goods by 189, Dick r. authority from the consignor. If, however, the indorse- Lumsden. ment be conditional, a subsequent indorsee should be very careful to see that the condition is performed, for 3 Campbell, 92, on the failure of performance the property revests in ^'*"°'* "• °^*' the indorser. It is obvious, that the effect of the in- dorsement may be controlled by the evident intention of the parties, at least as far as respects the immediate 1 Term Rep. indorsee, so that where the intention was only to bind the f;^rter. nett proceeds in case the ship attained her place of des- tination, it was conceded without aro;ument, that the absolute property did not pass. It seems a settled point that there is no difference between a general and special See 2 Term Rep. indorsement with reference to the consignor's power of "^'j^jagQ^ ^"°'* stopping in transitu. Merchants should be careful not to indorse over a bill of lading without due consideration, for where the de- fendant received a bill from a stranger, with whom they had no wish to do business, and thereupon indorsed it to 3CimpbelU7a, a friend of his, who became insolvent, they were held an- Corlett i>. Gor- swerableto the stranger (the consignor) for the proceeds. With regard to remedies by action by virtue of this instrument, it will be recollected, that much has been 1 Campbell.sGg, Waring v. Cox ; same case, Ab- bott, 216. 3 Barnewall & Alderson, 277, Sargent v. Mor- ris. And see 1 Lord Raymond, 271, Evans V. Marlett;4East, 211, Coxe V. Harden ; 2 Bingh. 260, Morisouji.Gray. 62 OF SHIPPING : already said on the subjects of liabilities, duties, and the limitation of responsibility. It is observable, that unless a party have a property in the goods in question, he may not, except as agent to stop in transitu, maintain an action in his own name. So that a mere indorsement to an agent without valuable consideration for the purpose of enabling him to stop in transitu, the transitus in fact being at an end, gave such agent no title to sue the master in trover. And the case is the same although the plaintiff be named in the bill of lading, and he effect an insurance upon the cargo which he seeks to recover. But these are distinguishable from cases where the goods are in transitu when the agent makes his demand, for then he has a special property, and may have a right of action accordingly. Stoppage in Transitu. The subject of stoppage in transitu next claims our attention. It may be considered under three heads: i. In what cases goods may be so stopped. 2. When goods shall be deemed to be in transitu. 3. How the right of the consignor to stop may be divested (d). This practice was originally sustained in the court of 364, witii the Chancery, where a successful opposition was made to rVeton;'203. the ckims of the assignees. Wiseman t>.Vandepiit ; i Atkins, 245, Snee v. Prescott. See also Ambler, 399, D'Aquila t). Lambert. But the same court would not allow an injunction to stop a ship from sailing on the ground of the vendee's insolvency, but left the seller to his remedy at law, and it seems that the court will not assume an original juris- diction of stopping in transitu. But the common law seems to have been administered 2 Jacob & Walker, 349, Goodhart, V. Lowe. (rf) This is Lord Tenterden's arrangement, on shipping, p. 368. See his book STOPPAGE IN TKANSITU. 63 very cautiously at first in this matter. For where there was a dehvery of goods on board of a ship in Russia, chartered by the consignee, the Court taking a distinc- tion between a general and a chartered vessel, held, that this power existed though it sustained the right of the i East, 515, consignor to repossess himself of his property, under a ■'"§''* '• Usher- Russian ordinance only, and not by virtue of the law of England. But this diversity was given up in a subsequent -^^ ^ g^ case, it being held, that the delivery was not complete Bohtlingk d. In- though made on board the vendee's chartered ship. ^ '^' The consignor is the original contractor, and by buying goods on his own credit, though they may be for other persons, he is in effect the vendor. So that if he charge the merchant consignee a commission — if again, such consignee accept bills drawn on him by his correspon- dent, the consignor, for the amount, the right of stopping still remains ; for in the first place, here was nothing more than the first price with the commission added, and 3 East, 93, next, the acceptances proveable under the consignee's 3,^^ see6 East,' bankruptcy, were merely in part payment. 17- An alien enemy with license is a consignor, endowed '^ East, 419. '' . . o ' lenton v. I'ear- with a capacity to stop in transitu. son. But this act must be the deed of the consignor, and not of any person through whose hands the goods may pass. And it must be done adversely. Therefore where bills of lading came into the consignee's hands five days after he had committed an act of bankruptcy, the amount of the goods having been previously drawn for by a surety, and the consignee gave up the bills of g ]7.,j( „-, lading to the surety's general agent, it was held, that Siirken, v. neither the surety by his agent, nor the original con- ^'^^' signor, who approved of this arrangement, could retain the property against the assignees of the consignee, for here was no stoppage by the consignor, nor even an adverse act on his part. Clearly, however, when the delivery by the consignor. 64 OF shipping: Abbott, p. 368. the master's duty is to yield up the cargo to this order, stoners'L.n.^ ' ^^^^^ ^^ makes no difference that the consignee is parti- Assignees of cularly named in the bill of lading. Howard/' ^ot unfrequently the delivery of a bill of lading is conditional, if so, the condition must be at an end before the consignor can revest the property. As where one p^r^-^^e"^* ^ made a consignment in trust to indemnify against ac- Haiiie v. Smith, ceptances, and became bankrupt without performing the agreement; it was held, that his assignees had no right to stop these goods, but that they belonged to the consignee under the condition. So again, where the consignor drew bills of exchange upon the vendee, and sent him the bill of lading, but afterwards resolved on having a ready money payment, and gave orders to stop the goods ; the Court were of opinion that he could not 3 East, 585, ^ ^1^- ^Yie consignee was willino- to have accepted . Walley v. Mont- _ ' ^ . . *= ' goniery. the bills, and was not in a state of insolvency. " In the " law of England, as far as I can collect it," says Sir William i|^cott, " and in all books into which I have looked, " it is not an unlimited power that is vested in the con- " signor, to vary the consignment at his pleasure in all " cases whatever. It is a privilege allowed to the seller, " for the particular purpose of protecting him against " the insolvency of the consignee. Certainly it is not " necessary that the person should be actually insolvent " at the time. If the insolvency happens before the * arrival, it would be sufficient, I conceive, to justify " what has been done, and to entitle the shipper to the " benefit of his own provisional caution. Butiftheper- 6Robinson,326, ,, j^ ^ insolvent, the ground is not laid on which in the Constan- ' _ o _ tia, Heurickson. '' alone such a privilege is founded." But where both the consignor and consignee had been accustomed to ship goods to each other mutually, though not specifi- cally, in return, the agent of the former was held justified Rjiand!"f26, i^^ stopping a shipment upon the refusal of the consignee Wood V. Jones, to accept bills in respect of it. STOPPAGE IN TRANSITU. 6; O And thouo-h the bills be accented and indorsed over, s^ast.gs.Feise , .V, , . V. VVraj ; and the same power may be exercised upon the consignees see 3 Term Rep. bankruptcy. "9' Kinioch v. 1 '' _ Craig. And so it is, although part payment may have been made, for this act does not proceed on the ground of re- scinding the contract, but is an equitable lien for the 440, Hod "son u, purposes of substantial justice. ^°y- There must be a property in the party thus stopping in transitu, so that a fuller who suffered his lien upon cloths to lapse by delivering them up without payment for his labour, was not permitted to availhimself of this right upon ^ East, 4, Sweet the bankruptcy of his employer. With respect to lien, it is worthy of remark, that a consignor's right to stop in • 11 1 1 • 1 1 1 f 1 3 Bosanquct & transitu is not controlled by it ; a balance theretore due Puiier, 4-2, Op- from the consi2;nees to a carrier was considered to be no Pf"''eim i- . ... . Kussell ; Id. bar to the consignor's reclaiming his goods. Whilst on ng, Kidiard- the other hand, a carrier has no power to retain goods ^j"Jg 6c"'sei-^ against the consignee who has paid for them on the «jn. 350, Pat- d/, 1 1 1 r ,1 • r teni-.'llioiupson. 01 a balance due ij'om the consignor tor car- ^ ^^.^^ ji^ g riage (e). Butler v. Woolcoir. As soon as the delivery is complete^ the goods cease Goods, when in to be in transitu. But several questions have arisen as to "^^"^^ "' the exact time when the seller's countermandable power absolutely ceases. And the leading principle seems to be, that the property must come into the actual or con- structive possession of the bu}er to preclude further Abbott, p. 374. interference on the part of the consignor. So that as 3 Term Rep. lono; as the consionment remains with the carrier, or fflr^^^^^^' wharfinoer, or packer, even although these persons are cited ;lb.Hunter appointed by the consignee, the delivery is not fully s;nq''i^jlt' i^'V^"- complete. As long, again, as the ship is on her voyage, ler, 457, Mills v. '^*'P- 4^7' l^u-"-t I. Ward, cited. ( c ) In this case, it appeared, that it was the particular usage of the trade [butter dealers] for the consignor to pay the carriage. F 66 OF SHIPPING : the goods are in transitu ; and where the assignees of a bankrupt took possession of part of the consignment on board of a vessel which came into port without quaran- tine, but was instantly ordered out of port to perform it, it was held that they had no right to retain against the countermand of the consignor, although they had got * '^^'^h"?!^' ^^^ ^^^^ ®f lading, and although the stoppage took place Pownal. during the quarantine ; for the voyage was not concluded. Some wine, the duties not being paid, was lodged in the King's warehouse according to the Act{f), and sold at the end of three months : claims were made within that time by the assignees of the consignee, and by the con- a Espinasse, signor's agent after the first claim ; but Lord Kenyon Field ;° Abbott,' thought that the stoppage had been made in time, the 394, Nix V. wine bein^ r/iiasi in custodid les^is. There must be an Olive. * -^ . * actual and absolute parting with the goods. A carrier having landed a part of twenty tons of iron on the vendee's wharf, discovered that he was insolvent, on which he re- cess weiil^"i 8^1 loaded it, and conveyed it to his own premises; it was Crawshay v. held that a good stoppage in transitu might be made ^ ■ ^ under these circumstances. Even if a carrier deliver 7 Taunton, 109, 1 i • i ^ • i_ 1 > Litt V. Cowley ; goods by mistake, after a notice not to do so, the vendor s a Marshall, 457, j.- j^^ ^^ ^^ jg j^q|. thereby destroyed, same case. » ^ . Where goods are in the care of a warehouseman, and upon an order from the seller they are to be given up to the vendee, unless some act is to be done prior to such delivery, the order is considered to be a transit. But where something was to be done — as, for instance, where certain starch was to be weighed before delivery, and part of it was actually weighed and delivered, but before the remainder could be weighed the buyer became insol- H^fsonr'"^' '^^^^ — ^^ ^^^ ^^^^^ Competent for the vendor to stop this Meyer; Holt's residue. An Order was given to deliver fifty tuns of oil, loTwihers r!*' t)ut inasmuch as the custom of the trade was for the Ljs. (/)26 G.3. STOPPAGE IN TRANSITU. 67 seller's cooper to search the casks, and for other matters to be arranged before dehvery ; it was held, that the sellers mipht countermand tlie order on the insolvency J3 East, 522, » . . -^ Wallace !'. of the vendees. And the same rule obtained m cases Breeds, where hemp and flax were to be weighed previously to 5 Taunton, 617, J Shepiej' I'. delivery. Davis ; Id. 62a, The above are cases where the vendee's possession i^usk t;. Davis, . cited. has not been absolute ; we now come to instances of a sufficient delivery. A person having no warehouse of his own used the house of his packer, goods were p^ji°r^"6Q^ forwarded to this place and booked to the consignee's Scott v. Pettit, account, who had however previously committed an act where the tran- of bankruptcy : the Court considered, that the transitus s"t"s ended at ^ f . , * vvaggon (jflice ; was at an end when this property reached the packer's 8 Taunton, 83, house, for here was nothing less than a delivery to the ?°?^ *' M'or party himself. Nevertheless, where goods are to be ex- 526, same case; ported in the buyer's own ship, it is still in the seller's tvri^iityLawes.' power to protect himself by taking a receipt from the 6 Taunton, 433, master of the vessel, for as long as he holds this receipt, a dei-'* 2 Mirshaii delivery will not be fully effected notwithstanding the i27,samecase. shipment. The receipt is exchanged for the bill of lad- ing, and that cannot be legitimately executed under such circumstances by any persons other than the consignors. And the case will be the same though the master think Aider,"o.r63t proper to refuse a receipt, and execute a bill of lading to Rucku.Haifield. the vendees. But where there was no such document, and the consionee was owner of the vessel, and had ' f^^ ,^' an entire command over her, it was deemed a sufficient M'Taggart, delivery to put the goods on board, and equivalent to sendino- them into a warehouse belono-ins; to him. An attachment will not alter the rights either of con- signor or consignee ; for where goods arrived at an inn, 3 Term Rep. 1 1111 -1 1-1 1 464, Ellis u, and were marked by the consignee, but detained under Hunt. a creditor's attachment, the delivery was considered to be perfect, and the consignee, it was said, need not take away the property with his own hands. And a con- F 2 68 OF SHIPPING : iCan]pbell,282, signor may on the other hand stop goods attached in V. OSS. ^Y^Q custody of a wharfinger before their final deUvery. On the subject of dehvery, the courts adopt a clear 7 Taunton, 59, principle. If the goods once reach the consignee or his Noble r. A.dams; agent, no subsequent events will revive the transitus (s). same case, o i i i 1 1 2 Marshall, 366. !^o that where a cargo was sent to the vendees agents, 5 East, 175, which was afterwards to be shipped to Hamburgh as the Dixon V. Bald- ygj^jggg should direct, and again where goods were sent wen. 3 Bosanquet & *^o ^ packer by order of an agent, who unpacked some of Puller, 320, them and repacked the rest, the transitus was held to be Leeds i>. Wright. 1 • , at an end in these cases. So where there had been a delivery of part of a cargo, 2 Heiir ' Black- ^"^ ^ ^^^^ °^ exchange drawn for the whole, the con- stone, 504,siue- signor's power was at an end; there appearing no inten- yv eywAr . ^j^^ ^^ divide any one part from the whole. There is this difference between the case just cited and that of Feise v. Wray,, that in the latter instance no part of the goods see^^ms to have been delivered. Even where the consignor took the precaution of sending one bill of lading to his agent indorsed, while he transmitted an un- indorsed bill with the invoice to the consignee, making the delivery to his own order ; and when even the bill of exchange drawn for the amount was dishonoured, yet P as the master had thought proper to give up the property Coxe D.Harden. to the Consignee, the power of stopping in transitu was determined by this act. Holt's Nisi Where no act is to be done, such as weighing before 1 'carrinaton' ' ^hc delivery, the dehvery note itself placed in a wharf- 207, Barton v. jnger's hands will operate-to defeat the consignor's right, 2 Campbell ^^^ d fortiori, if the wharfinger have transferred the 343, iiarman u. goods into the purchaser's name ; and again, still more Anderson. (g) See C) Barnewall & Cresswell, 422, Coates v. Railton, where the transitus continued because the goods never reached their destination before the stoppage. STOPPAGE IN TRANSITU. 69 SO, if part of an entire quantity sold at one given price i New Rep. G9, be removed by the buyer. Ten out of forty tuns of oil in J™'^'! "* the same cistern were sold, and paid for, and then re- sold to a party who gave an acceptance, but who before it was due became bankrupt. Although there had not been any admeasurement and separation of the ten tuns from the forty between the original vendor and vendees, here was a sufficient legal delivery to the last purchaser {h), and the first vendee was held to possess no countermand- 12 East, 614, able power (i). But if the shipping note and delivery YToJ.lk) order be given to the wharfinger before the goods have j Carrington, arrived, the consignor may still prevent their being given 53- Akerman v. up. 4 Bingham, The receipt of warehouse rent by the vendor of goods ^ 'H„I|"phr'ey. for the keeping of them shows as clear a delivery to the vendee as if they had been removed to his own premises, HuiTv^t. Manl and the transitus is at an end. And if a consignor assent gics. to the removal of property by the vendee of his con- signee, althouoh such consignee became insolvent, the 14 East, 308, => ' => . . Stoveld V. permission so given will bind the seller. But a third Hughes. person may not set up the vendor's right to stop in tran- (h) If the sale be under a written contract, it must be pro- duced at the trial. 2 Carrington & Payne, 52, Brain v. Harden. ( I ) See as to the delivery of West India dock warrants, 4 Campbell, 251, Spear v. Travers; Holt's Cases at Nisi Prius, 395; Zuinger v. Samuda ; same case, 7 Taunton, 265, Id. 278, Lucas V. Dorrien ; Gow, 58, Keyser v. Suse. It has not been decided in banco, whether the indorsement and delivery of these warrants will prevent a stoppage of goods, the voharf- ingers not being made parties to the order. {fc) This case of Whitehouse and Frost, it is but right to obserye, has been denied, and overturned in the court of Com" mon Pleas; and by Heath, Justice ; *' If ten tuns had leaked out of the cistern, to whom should those ten tuns be deemed to belong?" 4 Taunton, 646. See Id. 644, Auden v. Craven, 5 Taunton, 176, White v. Wilhs. ^ 3 70 2 Bamewall «Sc Cresswell, 540, Hawes v. Wat- son. What will de- vest the con- signor's light to stop ia transitu. 4 Campb. 31, Vertue v. Jewel Pcake's Cases, 189, Dicli V, Lumsden. 3 Terra Rep. 674,Salou ons 1;. Kissen, OF SHIPPING : situ after he has acknowledged himselfto be the vendee's agent. As where tallow was sold and resold, and cer- tain wharfingers certified that they had transferred the tallow to the account of Hawes, the plaintiff; the original vendee having stopped payment, the wharfingers Avere noticed not to deliver the tallow, and the Court held, that that they could not protect themselves against Hawes, for by their own act they had made themselves responsible to him. It is a general principle, that a delivery of goods by which they come to the actual or constructive posses- sion of the consignee, defeats any subsequent attempt on the consignor's part to repossess himself of them. Questions of law have certainly arisen as to the parti- cular circumstances which will operate in this manner. A man was indebted to his consignee on the general balance of accounts, and he consigned goods to this creditor on account of the balance; it was held, that in spite of the consignee's insolvency the right to arrest these goods in transitu was quite gone. Again where the consignors had authorized their factors to sell some beef and pork, which they did, but being unable to meet their consignor's bills, the plaintiff paid them for the honour of the drawers, and demanded the cargo of the master; it was held, that this property could not be re- claimed, for the factors had acted up to their instruc- tions by thus disposing of the shipment. But where the consignee had assigned over the bill of lading, taking acceptances which did not amount to the value of the consignment, and then the assignee entered into a partnership with his immediate vendor ; as to the goods in question, it was held, that upon the consignee's insol- vency these goods might be stopped, for payment had not been fully made, and by the subsequent agreement the vendee became fully acquainted with the hazard he ran. And in another case, where a letter was seat to the con- STOPPAGE IN TRANSITU. 7I signee, announcing that some wine had been shipped for him, and that a bill of lading would be sent him, Abbott, p. 394, upon which he sold the wine to the plaintiff; the Court ^' ' were of opinion, that there was a difference between an indorsement of the bill of lading, and the sending such a notice as this by letter, so that the consignee having be- come bankrupt, the original vendor's right of stopping in transitu was allowed. A recent Act of Parliament, of considerable import- ance, has regulated sales and pledges of consignees and factors, in some respects affirming that which was law before ; in others introducing new cajoabilities on the part of factors acting bona jide on behalf of their principals, and giving new rights to pawnees acting also in an honest and fair manner. The first section enacts, that persons intrusted with <5Geo 4, c, 94, goods shipped in their names shall be deemed to be the * ' true owners of them, so as to enable consignees to have their lien for money advanced, provided such consignees have not notice by the bill of lading, or otherwise, that the parties sending such goods are not the bona Jide owners, and the persons so intrusted, &c. shall be con- sidered to hold the goods for the purposes of consignment or sale. Persons intrusted with and in possession of any bills of Sf ct. 1. lading, &c. shall be deemed to be the true owners of the goods, &c. described in such documents, so far as to give validity to contracts made by such persons for the sale, disposition, deposit, or pledge of such goods, provided the party with whom the contract is so made have not notice, by such document or otherwise, that the person so intrusted is not the bona fide owner ( Z). ( /) This enactment recognizes the great case of Lickbarroto V. Mason, (5. Term Report, 683,) where a consignee was held justified in indorsing a bill of lading for a valuable considera- F4 7" OF SHIPPING t Sect. 3. By this section no person so dealing without notice of the ownership is to acquire a security on goods in an agent's hands for an antecedent debt, beyond the amount of the agent's interest in the goods. Sect. 4. The next sections provide for cases in which the vendee has had notice of the agency. A contract may, under the fourth section, be made with an agent who is in- trusted with goods, for the purchase of such goods, and the contract and payment shall bind the owner, although the buyer know that he is dealing with an agent, pro- vided the contract be made in the ordinary course of business, and the buyer have no notice that such agent has no authority to sell. Sect. 5. And by the fifth section any person may take goods, or any bill of lading, &c. in deposit or pledge from a factor or agent, although such person may know that he is dealino; with a factor or aoent, but he shall have no tion, the assignee being ignorant that the goods had not been paid for. But it was not necessary that the factor's vendee should have known that the consignor had received money- payment for his goods ; where he was informed that accept- ances payable at a future day had been given, he was held entitled to keep his purchase notwithstanding the insolvency of the consignee, g East, 506, Cuming v. Brown. Still with notice that the consignee was in insolvent circumstances at the time of the sale, the stoppage in transitu was considered just and lawful, for no honest man would buy of an insolvent; and now, if the party thus dealt with be obviously not the owner, he is excepted expressly by the provision, of the Act. See 9 East, 514, by Lord Ellenborough ; 4 Campbell, 31, Vertue v. Jetvell. A captain and part-owner who sanctions a pledge by his partners of bills of lading which authorize the delivery of goods on payment of freight, pledges the freight as well as the goods, unless it be excepted. 4 Taunton, 133, Grote v. Milne. CHARTER PARTIES. 73 further interest than the a^ent possessed at the time of 7 Bamewaii & Cicsswell,5i7. the pledge (w). Fletcher r. Very ample powers are conceded to the owner of goods ^'^^'''* by the sixth section. It is provided, that nothing in the Act shall prevent Sect. 6. the owner of goods from recovering the same from his factor or agent, before the sale, deposit or pledge of them, or from the assignees of such factor, 8ic. in case of bankruptcy ; nor to prevent him from recovering the price of such goods from a third person, provided any set-off due to the factor should be paid ; nor to prevent his recovering any pledged goods upon repayment of the advances to the pawnee, and upon a further payment of money advanced by the factor, if any ; nor to prevent his recovering any balance in the hands of the pawnee after the sale of his goods, the money, &.c. due l)y way of pledge being first deducted. And it is moreover pro- vided, that, in case of the agent's bankruptcy, the owner of goods so pledged and redeemed shall be held to have discharged pro tanto the debt due by such owner to the bankrupt's estate. Of Charter Parlies. Perhaps it may not be unwise, in discussing this sub- ject, to take the instrument itself as our guide, and to mention the various decisions which have taken place upon the mode of its execution, and its respective clauses. (m) Thus the power of the factor's pawnee to retain until his advances are paid, with or without notice of the property, is established. See 6 East, 17, Neiosomv. Thornton; 1 Maule & Selwyn, 140, Martini v. Coles; 2 Maule & Selwyn, 298, Sulli/ V. Rathbone; Id. 301, Cockran v. Irlam, where it was decided, that the factor had no power to pledge his principal's goods. 74 OF SHIPPING First, as to the execution of the charter-party. It is commonly made between the owners and mer- chant, or between the master and the merchant, or, as he is generally called, the freighter. And it is 7 Term Rep. desirable that it should, if possible, be executed by lUsh^dted^ *'• the owner, for whether a charter-party be under seal there. or Kot, the action upon it must be brought in the name of the party to it(/0, and not in the name of a stranger, an assignor, for example, unless there be express cove- a Taunton, 407. nants with that stranger. So that where the master of Morrison n.Par- . 5^ r r ■ ^ ^ sons. a ship entered into a charter-party lor freight, the owners 1 Made & Sel- of the vessel were held clearly incapable to sue for the wvn, f^TX, • Schackr.An- earnings. thony ; and By the Same rule owners cannot be sued by virtue of Ea$t^, 270!^' *" a bill of lading signed by the master, where they have Spiidt D.Bowles, contracted respecting the same subject matter by a deed 10 East, 378, 1 , Hunter v. Prin- Under seal. sep;2NewRep. But whcrc a charter-party was entered into with the 411, Moores v. , , 1 i , 1 , 1 . i Hopper, where master, who happened also to be a part-owner, but he the master was ^g^g unknown to the plaintiffs in that character, and was sued. . . not described in the deed otherwise than as commander, the Court held, that he might be sued with the other 3 Broderip & owucrs for negligence, inasmuch as they w^ere not charged LesHe\™'wil- directly upon the contract of charter-party, but upon •ou. their general liability, and for the non-performance of duties not inconsistent with the charter-party. And thus in Schack v. A?ithoni/, just quoted, Mr. Justice Le Blanc said : " No promise is stated independently of \ Made & Sel- ,, , , , ,, "^ wjn, 575. the charter-party. We have just spoken of covenants with strangers to the deed : now there is a distinction between instruments expressed to be made betiveen certain parties, and such (n) See, on the general principle, 7 Term Reports, 207, Harrison v. Jackson. CHARTER PARTIES. 75 as merely begin thus — " This charter-party indented 2 Institutes, witnesseth," &c. In the first case, a stranger may not t.Vandenstene; sue on covenants entered into with him by the deed : in i ^'^^'"^'^,'*' , '' . . Cooker r.Child; the latter, he may do so. But where one is mentioned andseesMauie as a party to the indenture, and he is covenanted with ^ Lord' Men- throughout, he may sue, though he do not seal the deed, borough, agree- for the covenantors are estopped from saying that he is p"fition of a not a party. ^gq<\ inter partes ; 5 Barnewall iSc Cresswell, 355, Berkeley v. Hardy. 2 Roll's Abndgraent, aa, Clement v. Henley. And so where a surety executed a bond without autho- 2 Bosanquet & rity from his principal, it was held a good instrument as EiiioTiO Davis. his several bond. An agent may execute the charter-party, but he must state it to be done in the name of his principal ; if, however, he write thus — " For J. B. [the principal] " M. TV. [the agent]," it will be sufficient, for the form ^ East, 14a, signifies very little (0). Wilks r. Back. Sometimes an instrument of this kind is reduced to a very short form, it is then called rather a memorandum for charter than a charter-party, and sometimes it precedes a more perfect document. The stamp upon both is the same, i /. 15s., and a progressive duty of 1/. 55. (0) There appearing to be different opinions whether the deed must be specially declared on where there is a debt in- dependent of it, or whether it may be given in evidence under such circumstances in an action of debt generally, the reader is referred to, 1 New Reports, 104, Jit^. v. Pdrhh, where the decision was in favour of the special declaration, and to 4 Barnewall & Creswell, 968, where Bayley, J. seemed to think, that if there be a debt independent of the deed, the amount of which is to be ascertained by the deed, or, that if there be such a contract on the face of the declaration, as that the plaintiff may recover with or without the deed, there need not be a special declaration. 76 1. Date. 4 East, 477, HallD.Cazenove. Croke James, 263, Oihey i;. Hicks. a. Description of parlies. Abbott, p. 166. 3. Burthen. 2 Barnewall & Cresswell, 556 Bishop V. MaC' iiitosh. OF SHIPPING : where there are 2160 words or upwards, for every entire quantity of 1080 words beyond the first 1080 words. No particular form is necessary in setting out the date, and unless the contrary appear, the date is deemed to be the day of executing the deed. But an impossible date will not vitiate the charter-party, nor will it be destroyed if the sealing be done afterwards. An instrument of this kind bore date the 6th of February, and there was a covenant that the ship should sail on or before the 12th, but, in effect, the deed was not executed before the 15th of March, and the plaintiff, the owner, so stated it in his pleading ; the Court held, that the owner might nevertheless recover upon this covenant, which was either independent, and not a condition precedent, or not of the substance of the contract, or dispensed with by the parties themselves. But where the plaintiff chose to say that the deed was dated on a particular day, without more, and the defend- ant in answer pleaded, that the execution of it did not take place for several days afterwards, and that the corn he had agreed to buy was not then on board the plaintiff's ship, and no such corn had been delivered to him on the day which the plaintiff gave as the date of the deed, the Court considered the defendant's reply sufficient to bar the action. The most convenient form in doing this is perhaps as follows : " This charter-party indented witnesseth, that " C, master of the ship IF., with consent of ^1. and B., " the owners thereof, lets the ship to freight to E. and " P." &c. A ship shall be deemed to be of the tonnage set forth in her certificate of registry. But where the freighter un- dertook to load a full cargo, a loading of goods equal to the tonnage described in the charter-party was not a per- formance of this covenant, for the owner was bound to put CHARTER PARTIES. 77 on board such a number of tons as the ship was capable 2 Barnewaii& _ ^ '■ Alderson, 421, of containing without injury. The instrument goes on Hunter y. Fry. to state, that the owner or master has let the ship to 4^ Letting the freight ; but these words do not necessarily import that See 4 Manic & the charterer shall have possession of the ship, for this ^j^^^^'^'^f ^^^ event depends upon all the circumstances taken together. Trinity House as we shall presently find, when speaking of lien. "" *"" ' Of the duties which belong to the master and owners fhe^si"'"for in this particular, much has been said ; the owner, how- lu-r outward ever, may agree to extraordinary clauses in a charter- ^ ^ " " party, to which he will of course be bound. As, where the owner agreed, that the whole crew were constantly to be on board the ship, and, that in case of the ship's inability to execute, or proceed on the service, an abate- 3 East, 233, 1111 1 ■ £• 1 r • 1 1 Beatson, u. ment should be made ni respect 01 thetreight; here, Scharnk. although the small-pox ravaoed the orisj;inal crew, and 'Shower, 334, ^ I ^ r> Wynne v. rel- others could not be procured, the abatement was held lows, justifiable. The goods being on board, the ship sails on her voyage, 6. -Voyage, &c. delivers her outward cargo, refits, loads her homeward cargo, and delivers it on her arrival in her own port, the dangers of the seas, &c. being excepted. A covenant 7. Covenants, that the ship shall sail with the first fair wind does not Palmer, 397, literally mean the next wind, the substance of it being cklberie*^ 4 that the voyage(/>) should be performed, but any injury East, 483, per sustained by the delay will be matter of compensation Abbott, 191 ; to the merchant. And where the ship was to sail to ' Campb. 377, T> T 1 • 1 1 r ■ • Bornraann v. Barcelona, and return to London w ith the first fair wind, Tooke, same whereas she went to Alicant and Tangiers, whereby the '^°'"^' goods were spoiled, it was held, that both master and 3Ecvinz, 41, freighter had a covenant to sue upon, and the plaintiff, the master, was entitled to recover for freight. So (p) With respect to what shall be deemed an indefinite in opposition to a specific voyage regarding the broker's com- mission, see C Moore, 228, Ilollv. Pinsent. 78 12 East, 381, Davidson v. Gwyniie. 1 East, 555, Havelock v. Geddes. 10 East, 295, Ritchie i. At- kinson. 3 INIaule & Sel- wvn,3o8,Storer V. Gordon ; same point, 8 Taunton, 576, Fothergill v. Walton; 2 Chit- ty Cases, tem- pore Mansfield, 705, Olhsen v. Druninioiid ; Idem, 666, Mackreil v. Siniond. 3 Cam; lb. 385, S!;adfurlh v. OF SHIPPING : where it was agreed that the ship should sail with the first convoy, the object of the contract being the performance of the voyage, hire was recovered in spite of a breach of the covenant, (q) And so again, where a vessel was to be made tight and strong jorthtvith, but was not so repaired, upon which the merchant refused to pay, having however previously put his cargo on board without objecting to the unseaworthiness of the ship, it was determined, that he could offer no resistance to a demand for certain monthly payments which had become due. So where it was stipulated by the master, that he would deliver a complete cargo of hemp, but he did not in effect produce much more than a moiety of it, the same principle prevailed, and the master was permitted to recover his freight pro rata. Again, the non-delivery of the outward cargo was held no legal excuse for the merchant, who refused in consequence to load a home- ward cargo. The principle of these decisions is, that unless the broken covenant go to the whole root of the contract, it must be considered as an independent covenant, and not as a condition precedent. If the merchant would guard himself against all contingencies of this kiiKl, he should insert a special clause. Thus, a freighter declared him- self willing to load a cargo, provided the ship arrived out and was ready by the 25th of June (r) ; but as this {q) In the section on insurance more will be said upon this subject. See Abbott, pp. 227. 239. (r) But, in a contract for the delivery of oil, where it was " to be delivered with all convenient speed but not to exceed " a given day," it was held, that this meant, not that the oil was warranted to arrive by that day, but that if it did not, the buyer would not be bound to accept it. The arrival was a condition precedent to the sale. Ryan & Moody, 406, Alexvyn v. Pry or. . .- CHARTER PARTIES. 79 condition was not performed, Lord EUenborough directed a nonsuit in an action upon the agreement. And the same point was ruled in a case where there were two charters, and it was agreed, that if a ship did not arrive at Guyaquil, the second deed should be void (5). The ship did arrive, but not in time to answer the purposes of the charterer, and the very essence of the contract ^BarnewallSc -' . . Cresswell, 504, was thereby destroyed. And on the ship-owner's side, Soames v. where the merchant covenanted to prepare a cargo for a "«''S'»"' ship to sail with conv^oy appointed for the 1st of August, but the convoy in effect sailed on the 22d of July, and 3 Campb. 428, , . , 1111-1 '^ 1 'i'liompson V. there was tune to have laden the ship, the merchant in^^iis. was held liable, and the captain was not bound to wait till the 1st of Auo;ust, thus increasino- the risk of capture. There may, moreover, be covenants obligatory upon the one party, and optional on the other. As where a ship was to be at a certain place on the 1st of March ; and there was besides a proviso, that in default, the merchant mia;ht load according; to his own terms, or mioht decline altogether ; the ship did not arrive. The Court held, that as the master of the vessel was bound to go at all events, an action would lie for the non- performance of the aoreement: it was the duty of one party to p-o, whilst, 3 Burrow, 1637, ,^ , : , , ,-, • , Shubrick v. Sai- on the other side, there was a liberty to give up the mond. lading of a cargo upon a certain default. And, on the other side, where the master was to stay so many days at St. Petersburgh, and was then to return to London, but on his arrival at Russia, the Government refused him leave to unload his cargo, upon which he went to Stock- p„iu>r^^J suqU holm and disposed of the goods there ; it was held, that f^"""''' ; ""»« there was no obligation in this case upon the master to ton, 258, Beiu* come back directly to London, but that as the freiohters P"'|^"'"= =»"d »ee •' ^12 Last, 506, ■'■''' where Barley ( s.) But there is a case in the Exchequer which seems to I; '"'^'^"g"'"* . ,,.,,.,. '■ Puller V. btani- clash with this decision. 4 Price, 3^, Deffell v. Brocklebnnk. fortri. 8o OF SHIPPING were under covenant to pay him the stipulated sum, they were bound to do so. Sometimes there is a covenant for the procuration of a hcence which the freighter provides, but this engage- Q Taunton, 344, ment Only includes the voyage for which a licence is Greaves. neccssary. And the licence will be presumed, if it be a Campb. 44, found that articles, otherwise prohibited, have been en- VanOmeron v. tered at the Custom House. If some contraband g-oods Uowick, and i . . ... Starkie, 223. be mixed with others specified in a licence, the docu- ment will, nevertheless, protect the property which is Butlr' ^Air^' ™Gntioned in it. A licence may not be assigned without iiutt. special provision for such an act, and such as obtain it 1 Taunton, 121, are bound to conform explicitly to it in every respect. son ; and see on Something more will be said upon this subject in the the subject ot section on Insurance. After the owner's covenant not licence 3 Bo- sanquet, & Pui- to take any goods except those of the freighter, and the Parr^' i iMaur ^'cig^^^er's covcnauts to procure cargoes, and pay freight, & Selw^n, 39, a very important licence, and one on which questions JJ^tt ■ " have been arisen, is given to the freighter : it is the power of detaining the vessel on demurrage for so many days at a certain rate of payment. 8. Demurrage. ]3y the custom of merchants in London, the word, ?2i^CochTan V. "days," will be taken to mean working days, and not Ketberg. running days, but Lord Tenterden observes, that it is Abbott, p. 1 o. |v^j. ]3g|.(^gf ^Q mention expressly the description of day intended. If the merchant should detain the ship beyond the stipulated days of demurrage, an implied contract to pay a further sum will arise. So that the freighter who kept 12 East, 179, a vessel beyond her ten demurrage days was clearly Lynch. li^ld to have broken his agreement, although there was no covenant that he would not keep it longer. And there are very few cases in which the merchant 1 Dodson, 382, is excusable, though the detention be not his fault, for The Angcrona. having made his covenant, he is bound to perform it. Thus where consignees chose to have their brandies CHARTER PARTIES. 8l bonded in the docks, instead of landing them at other 3 Taunton, 387, licensed wharfs, and paying the duties at once, whereby ^f^ ^' ^ ^** a delay of forty-six days was occasioned, it was held, stonck '1;. Tea- that each of these consig-nees was liable for demurrage. ^"*; 11 11 PIT ^^"'t> 35' Har- So, m another case, where the crowded state ot the Lon- manr.Gan- don Docks occasioned the detention. Lord Ellenborough ^°.'p^ ^^""^ _ ^ point. declared emphatically, that the freighter is responsible 2 Campb. 356, for the various vicissitudes which may prevent him from I^andaiii;. •^ ^ Lynch ; and see restoring the owner's ship. But where the agreement sMaule&Sel- was, that the freighter should unload in the usual and kJr"u ^Hodgson' customary time, a distinction was drawn between that contract and one for a specific period, and as no unne- a Campb. 483, cessary delay took place, the merchant was exonerated. ^°jgf^" ^' " And so where no time was stipulated for the unloading, a Campb. 488, the usual and customary time was considered to be the ^urmcster v. •' _ Hodgson. fair measure. Again, where the mariners neglected, as g Levinz, 41, covenanted by the master, to reload the ship, the freighter Cole v. Shailett. ,,,•'- ^ => See Addenda to was held excused. Chap. i. The usual measure of damages in cases of detention is the stipulated rate of demurrage, where it exists, but it is open to the owner to show that he would not be fairly M^-ToiBeu! compensated by that standard. The cases iust cited have reference to demurraofe con- tracts, but a claim in the nature of demurrage will be sustained where the merchant detains a vessel without sufficient excuse. Where the freighter neglected to get an order from the Lords of the Treasury for the removal j starkie, m, of his wines, which were thereupon protested (t) ; and W'" "• ^^^^ > where Custom-house officers seized some pitch irreo-u- ^ Campb. 131, 11 i-'i- 111 1-1 ^ Besseyv.Evans; larly, which created delay, the right to compensation see i Taunton, was allowed ; but in this latter case there was an express ^°^ Chnsty v. it)lt is usual, though not, perhaps, strictly necessary for the master to make a protest. See Lawes on Charter Parties, P- 137- G 8-2 OF SHIPPING : 10 East, 526, LidcJard v- Lopez. 2 Espinasse, 708, Harrison, V. Wilson. 6 Espinasse, 16 Dobbin v. Thornton ; Id. 22, Seggart v. Scott. 4 Carapb. 159, Harman v. Clarke. Idem, 461, Har- man V. Maut. 4 Taunton, 52 j Jesson V. Solly. 4 Brown Par- liamentary Cases, 630, Lanuoy v. W'erry. agreement to pay demurrage. But wJiere there was a hostile occupation of the port to which the vessel was bound, and the freight was to be paid on right delivery of the cargo, but ihe voyage was given up in consequence of the war, the owner could not recover freight, for there was neither a delivery, nor any act on the merchant's part to wave the contract. And where there was no sti'-- pulation for demurrage, the seizure of a cargo by Cus- tom-house officers was held to excuse the freighter. The party who receives the goods under the bill of lading is liable to this payment ; by accepting the cargo he renders himself answerable for the fulfilment (?/) of the conditions of the bill. And the consignees are bound to use reasonable diligence, and watch the ship's arrival, for the master is not bound to give them notice, although: the goods may be deliverable to merchants in London. This liability proceeds on the ground of the consignees having accepted the bills of lading ; and in a case where such bills were delayed, so that although the freighter's agents demanded the goods, the master would not give them up till the arrival of the proper documents, and it was thereupon contended, that no demurrage could be recovered, the fault being the master's ; the Court laid great stress upon the acceptance of the contract, and gave judgment for the plaintiff. It is not unreasonable to suppose, that if demurrage days be fixed conditionally, as soon as the condition is fulfilled, the right to that payment ceases. Thus, so much per diem was to be paid while a ship waited for convoy, but as soon as the convoy was ready, it was (m) Artaza v. Smallpiece, 1 Espinasse, 23, is to the contrary of this ; but in a case on the payment of freight the doctrine in the text was sanctioned by the Court of Kings Bench. 13 East, 399, Cock v. Tat/lor. CHARTER PARTIES. 83 considered, that the claim for demurrage ceased, and although the ships might be detained for want of wind, or compelled to put into port by bad weather, that the claim did not accrue in the first case, nor revive in the second. A ship-owner agreed to sail with the first con- voy fourteen days after the vessel was ready to load, and allowed fifteen days for demurrage ; due notice was given that the ship was ready for the freight, but the merchant elected to take advantage of the demurrage days ; in the interim a convoy sailed, and the vessel sailed with the next convoy after the demurrage days, on which the owner claimed thirty-eight instead of fif- 5 Taunton, 654, 11 /-( • 1 Conpor r. teen days demurrage, but the Court were quite clear Smj-the ; same than the freighter was in the same condition at the end ^f^f' * i^^'"'' ^ _ shall, Q70; same of the fifteen, as he would otherwise have been at the point 1 Espi- end of the fourteen days. Eshaf J.De The same rule obtained where the vessel waited for ^'^ Torre. a cargo, and was frozen up during the winter at Cron- stadt. Here the freio-hter was adiudoed to pay demur- ^ Brown, 474, . , , . "^ ° , . . Jamieson v. rage only during the detention of the vessel in loading, Laurie; Abbott, and this although the merchant's correspondents abroad ^' '^^" had requested the master to wait. So where a ship's clearances could not be obtained by reason of a fire at the Custom House, it being the owner's duty to procure these clearances, the freighter Ba^?S'i'''S' was excused; but he was held liable for a delay arising ton, Thompson from his incapacity to load in the river Thames by rea- 4Campb!'3^35.* son of the ice. And the principle is, that the payment shall not be 1 Espinasse, made for a longer time than the fixed days, nor for De^iJiorre^l '* a delay at an intermediate port. Some further observa- ^ Chitty, Cases tions on this subject connected with the East India fiddTsTo, Company's charters will be found in a future page. Stevenson v. It is observable, that although a captain may sue the merchant for freight upon an implied contract, yet that 4 Taunton, 1, he cannot bring such an action for demurrage, for it is " G 2 Brouncker v. Scott. 84 OF shipping: founded upon a subject-matter in which he has no in- terest. The Court of Admiralty will frequently award demur- rage in cases of .capture. As where the captor neglects to proceed to adjudication, and perhaps though the voyage be prevented, in which case, there would be See Lavves on, ^ distinction between demurrage and freisrht. But de- Charter Parties, ... . . p. 303, et seq. murragc will not be given, if a ship be driven into port by stress of weather, of if she have not her proper papers on board, or if there be reasonable grounds for suspect- ing her character. 9. Supercargo. It is common to insert a stipulation that the freighter may send a supercargo on board without charge, and the parties ordinarily bind themselves in a penalty for the performance of their mutual contract. 10. Penalty. This penalty is not, however, the limit of damages, and 13 East, 343, ^Yie party may either sue upon the covenant, or brino- Harrison r. ^ J ./ 1 ' G Wright. debt for the penalty. 3 Atkins, 555, Upon the payment of principal, interest and costs, fielcT'*'^ *'■ " " a court of equity will relieve against the penal clause. And where the master has entered into the charter- Finch, 435, party, that court will restrain the damages to the extent Betsworth v. ^^ ^^^ penalty, in order that masters might not have unlimited authority to bind the merchants. Lien for freight. The principle of lien requiring that an actual or con- structive possession should be had, if the owner be un- derstood by the terms of the contract to have parted with his ship to the charterer, he can have no lien for the freight. But the term, " let to freight," does not necessarily import that the charterer is to have posses- sion of the vessel. And the charter-party is to be con- ~T. J • s strued according to the intention of the parties. 2 Brodenp & i Bingham, 410, Christie v. Lewis ; same case, 5 Moore, 211. The delivery of the goods and the payment of the freight are to be considered as concomitant acts, and, although the delivery may occupy some days, and part CHARTER PARTIES. 85 of the freight be paid, yet if the master were to land the 8 Taunton, 280, cargo in his own name, and tender a bill for the whole j^ ^^ ' ' y^^^^ amount dated from that day, the difficulty would be v. Kaiiston. , . , •' •' PerGibbs, C.J. Obviated. 8 Taunton, 293. *' It would be an act of imprudence," says Chief Justice Abbott, " on the part of a ship-owner, to enter into " a contract which might have the effect of employing " his ship for a long time, and at a great expense to him- " self without any remuneration, if the person with w'hom 2 Bamewall & ** he contracted should happen to fail before the termina- Saviiie v. Cam- " tion of the voyage." P'on ; and see 3 East, 381, Bohtlinck i'. Ir.glis ; 4 Maule •^ ^ ' &c Selwyn, 288, Master of tbe Trinity House v. Clark. But where the ship was let to freight at a definite sum, payable by instalments, the Court held, that the mer- 7 Taunton, 14, chant charterer had the entire possession, and that there g^agg ;' 2 Mar- could not be any lien. " s^'^"' 339. same 1 >r> 1 • 1 case. But the lien must be upon the specific thing, and not in respect of any collateral engagement. For, where factors hired a ship, and bound the goods about to be put on board, and then became bankrupts. Lord Hard- 2 Atkins, 621, wicke refused to make certain merchants who had Paul r. I5irch. loaded the ship answerable for the hire, but decreed, that they should only pay the freight they had contracted for with the factors. Again, where certain goods were relanded under a process of the Russian law, and re- stored to the freighter's agent, and a claim of lien was made upon other goods for the freight of such relanded _,, i «, c i. goods, it was held, that althouoh there was an obliffa- wyn, 205, Bir- tory clause in the instrument binding the goods, no lien ^^l^^ -^same existed, and that it could not be enforced for dead freight point. 15 liast. „ , 1 11 • • 1 ■ 547. I'hillips V. nor tor demurrage. And upon a bill in equity to obtain j^odie. a iudsTiient in favour of a lien there. Sir William Grant 2 Men vale, 401, , . . . Gladstone, v. decided against the right. Biriey. So a claim of lien in respect of pilotage and port charges was rejected. But though merchants loading on board a general ship are only liable, in respect of G3 86 4 Barnewall & Alderson, 630, Faith V. E. I. Company. 3 Barnewall & Alderson, 497, Horncastle v. Fairan. Varying the charter-party, or dissolving the contract. 7 Taunton, 656, Thompson v. Brown ; same case, 1 Moore, 358. a Moore, 224. Gibbon v. Young. 2 Marshall, 141 Yeats V Pim. OF shipping: lien, for the sums they have agreed to pay the charterer^ the charterer himself may be subject to that claim for the use and hire of the vessel (1). This ridit to lien w^ill be waved if the owner take a bill of exchange in payment of freight, although he make an objection to it at the time. The law of England will not permit a contract under a seal to be altered or annulled except by an instrument of as high a nature ; but if the agreement be dissolved by mutual consent, an application to a court of equity would be successful against the deed if it were after- wards set up. Where, however, a new voyage was agreed to in the room of that mentioned in the charter-party, and the master brought this action on the deed, it was held, that his remedy must be upon the subsequent agreement, and that he could not recover in the form he had chosen (y). Nor can any stipulation be added to the charter- party, although evidence may be given to show a parti- cular usage of trade for the purpose of explaining the instrument ; such usage may not be brought forward, nevertheless, to contravene an express contract. Yet if the new agreement do not conflict with the deed, nor infringe any of its covenants, an action may be main- tained upon the specialty, as where there was to be an (x) As far as regards a third person, a consignee, the bill of lading, and not the charter-party, is the instrument to be relied on when a claim of lien for freight is made. 4 Camp- bell, 2g8, Mitchell v. Scuife. {y) This conclusion was drawn by Gibbs, C. J. notwith- standing the opinions of Lord Mansfield and Buller, J. (which he commented upon,) in Hothcm v. The E. J. Company, Douglas, 272. ^ CHARTER PARTIES. S'J eavlier inception of the contract, and as Loiti Ellen- J2 East, 578, 1 1 •, 1 11 • 1 1 1 ^V hue r. Par- borough said, there could not ni such a case be any ob- kin. jection to an earlier reward. If it be desired to vary the voyage consistently with the charter-party, yet if the master have taken in goods, 12 East, 381, end sierned bills of lading, the bills shall be recalled, or J^avjdsoia v. . . . . Uwynne, the master indemnified, before such a variation can be .prudently carried into efiect. So, upon a dissolution ■of the contract, the freight must be paid, and the mas- ter indemnified, before the goods are relanded and deli- 2 Equity Cases vered to the merchant. Abridged. 98, Anon. Contracts are not always destroyed by the inability of the merchant to fulfil his engagement, but war or partial hostilities will operate to excuse him. Or, if the act covenanted for should be unlawful here, as the ex- portation of provisions in a time of scarcity ; but an infectious fever at a foreign port Avill not relieve him 3 Jiaule & Sei- from his payments, the laws of one nation not inter- ."•^'"' ^^'' ^'"^' _ i •' _ _ _ ker V. Hodgson. faring with the institutions of another. And a tempo, rary embargo will have the effect of suspending, not annihilating the contract; so that where the defendant agreed to take the plaintiff's goods from Liverpool to Leghorn, but on the vessel arriving at Falmouth an embargo was imposed, which lasted two years, the 8 Term Rep. owners were hel<l answerable for the non-performance ^frlje ** "^^ ^' of their promise. So, where a ship was hired to go to a foreign port, and there to be laden, but the govern- ment refused leave to export the intended cargo, the 3 Bosanquet & freighter was held liable. But he was not adjudged to fjii'li^t' i^^page, pay demurrage, for notice had been given to the cap- cited, tain of the inability to procure a cargo. SjoerJs't). Lus- On the other hand, where the embargo is put on by combe. the government of that country of which the merchant is a subject, the merchant has the option of dissolving the contract, and in the case referred to, he applied to G 4 88 OF SHIPPING • 3 Bosanqiiet & the Captain to give back his letters of advice, which was Puller, 291, , T 1 Touteng D.Hub- clechned. ^^^^' " For otherwise a British subject would sustain the " evils that the government of his country intended to refer°in'g^to^^^ " inflict on foreigners ; which is contrary to the princi- 3 Bosanqiiet & *< pie now estabhshed in the law of insurance, viz. that Furtacio i^. Rod- " the insurer is not answerable for a loss happening to s^L^' 4 East, " an enemy by British capture in a course of hostilities, 396, Kellner v. , . "^ .• . , ^ . „ . , . ' Le Mesurier ; " whether existmg at the tune 01 insurance, or takmg Id 407, Gamba <. ^^^^ afterwards." Id. 410, Brandon t). Curling ; 4 Robinson, 77, the Isabella Jacobina. Charier Parties Provided the usage of trade neither contravenes the usage of trade, deed nor the covenant, it will be admitted to qualify the terms of the instrument. As where Lord Kenyon suffered the master to prove, that it was the custom to take out Abbott, p. aog, a few articles for private trade, although by the deed Donaldson v. ^]^g merchant was to have the exclusive use of the ship, lorster. t n 1 In all mercantile contracts or adventures, said Lord Hardwicke, the articles are commonly extremely short ; and where a doubt arises about them, the usage and Vesey, senior, understanding of merchants is read thereto. 33'* So where it was the custom to recompress cotten by steam engines, in order that the ship might take the larger cargo ; and a merchant having covenanted to furnish a full cargo, sent his cotton in uncompressed Be^nsonT''''^''' bales, he was held hable for the additional freight, which Schneider ; would have been no less than one hundred and seventy 1 Moore, 21, tame case. tOnS. Where the charterer hired a ship at the rate of ten shillings and sixpence a cwt. for freight, and the agent tendered a complete cargo, but insisted that the bills ot lading should be signed for it at ten shillings per cwt. 3 Campb. 202, which the master refused, the charterer was held liable for ^ ^ ** *" dead freight in the same way as if no cargo had been tendered. PAYMENT OF FREIGHT. 89 Payment of Freight. " Freight," said Lord Mansfield, " is the mother of Douglas, 542, " wages, and the safety of the ship the mother of freight." ^ ^o^^cr, 2 3. It is, as a general rule, an entire contract, but excep- tions have been allowed from a feeling of justice, in which cases it is paid, to speak technically, pro rata itineris peracti. But an interruption of the voyape, as where there was 3 Robinson, 1 - -11 - T 1 101, the Kace- a capture and recapture, will not operate to destroy the horso. contract, provided the ship have broke o-round previous „ ^ ' » 1 See 1 Bosan- tO the capture (s). quet & Puller, 634, Ciiriiiig v. Long. Freight, eo nomine (a), does not arise until the comple- 13 East, 300. tion of the voyage, but an agreement may be made to pay money on the shipping of goods, and it will be bind- Staunton, 435 ing on the merchant though the cargo be lost, for there Morehouse; is an indication of the time of payment, and, call it by ^ ^Iarshall,i22, I J ' ' ■J same case. what you will, it is a contract to pay on delivery (b). See 5 Taunton, Freight was to be paid on the shipment of goods and '^sg- some of the bills of lading, the only evidence of the con- tract, said, " freight for the said goods being paid in " London," and others " the shippers paying freight for (2) A dictum to the contrary by tlie Lord Chief Justice Eyre, seems to have been considered too strong. See 3 Bosanquet & Puller, 420, by Chambres, .J. and Id. 430, by Lord Alvanley, C. J. ; since which there has been the case in Robinson which is decisively at variance with that opinion. («) So that where freight was claimed in pleading by that name, whereas the declaration only stated, that the plaintiff had taken the defendant's goods on board of his ship without saying a word on the sul)ject of the voyage, judgment was given against the plaintiff on demurrer. 2 Bosanquet & Puller, 3'2i, Blahey v, Dixon. (Jb) There is a resolution to the contrary of this in 2 Shower, 283. 00 •1 Camyjb. 84, Masliiter y. Dul- ler. OF SHIPPING : 4 Maule & Sel- wyn, 37, De Silvale V. Ken- dall. 4 Bariiewall & Aiderson, 582, Manfield v. Maitlaiid. Holt's Nisi Prills Cases, 39a, Hedle^ v. Lapage. Amount. Abbott, 272. 2 Starkie, 450, I'ho.'iias V. Clarke. '' the said goods in London :" Lord Ellenborough held, that those words only meant that the freight should be paid at London instead of at Lisbon, and that the voyage was not dispensed with (c). Much always depends upon the wording of a charter* party. 1 20 /, were paid for an outward freight, and 1 92 /. more for the ship's necessary disbursements, by the freighter; the residue of such freight was to be paid at the conclusion of the voyage. The ship was captured. The Court construed this arrangement as though a part was to be free from all the contingency, and the residue to abide the contingency, and the freighter was, therefore, nonsuited in action for the recovery of the 192/. How- ever, where the stipulation was that, '* the captain was " to be supplied with cash for the ship's use," and he drew a bill upon the freighters, which was accepted and paid ; it was held, that this was not a payment of freight in advance, but that it constituted a debt from the owner. It has been decided, that although the bill of lading- charges the usual freight, an extra sum, promised on con- dition of safely landing the cargo, may be recovered. The amount is settled by the agreement of the parties, or the usage of the trade. Vv here there are several articles, it is advisable to take the various rates of freight as the proper measure of damages (d). (c) The distinction taken between this and the preceding case is, that the last case turned wholly on the bills of ladings, and the jury in Andrew v. Morehouse found expressly, that the meaning of the agreement was to pay the money at all events upon delivery. (d) In an old case where the words, "and so in proportion " for a less quantity than a ton," were omitted, the owner was not permitted to recover freight for a hogshead. 2 Levinz, \2j\., Kea \. Burnis. PAYMENT OF FREIGHT. §1 The tonnage of a ship is not the criterion of freight 2 Barnewall & where the merchant has covenanted to provide a full Hiuiter'".'Fry.' cargo, and the specific burthen mentioned in the charter- party is not conclusive upon the ship-owner, (supposing his vessel be of a greater tonnage than is mentioned there,) unless some fraud or misrepresentation has been 2 Starkie, 452, Thomas v, employed . Clarke. Where the amount is calculated by measure, that pointed out in the bill of lading should be adhered to, as where 100 lasts of wheat in 2,092 bags were described in the bill, it was adjudged, that although the wheat was taken on board at Dantzic, and the Dantzic measure was larger than the English, the freight was reckoned accordino- to the latter measure, for such was tlie de- ^ » . , . 4 Taunton, 102^ scription in the bill of lading. MoUery.Living. Where it was agreed, that a full cargo of copper, tal- low, and hides, should be furnished, and it seemed the intention of the parties that copper was to form a part, though not mentioned as absolutely indispensable, but in fact no copper was put on board, whereby the ship was compelled to keep in her ballast, and the freight deteriorated ; Lord Ellenborough held, that there was a n u rn • 1 ■ ^ ■ a ' 4 Lanipb. 103. sutlicient latitude given to the freio^hter to exclude Moorsomn. copper at his pleasure. But he was adjudged to pay °*^' upon the outside skins in which the packages were con- tained, having covenanted to pay on skins by the pound. ibiH. If the merchant covenant to furnish a complete ladin"-, or a certain number of casks or bales, and he Aiil to do so, he Abbott, p. 27S. must make good the loss notwithstanding an intermediate voyage not contemplated by tiie parties be performed, for he may deduct the profit which the master may have made by bringing the goods of other persons in such 1 1 East, 232, voyage. And the merchant must pay for the goods P^'H^r "• StanU brought, although the master neglect his agreement of ,0 East, 295, taking a full cargo, that not being a condition precedent, l^'"^'''«'«- '^l- kinsoii. 9^ of SHIPPING : and there being a remedy against the master on his covenant. If the merchant do not covenant to supply Abbott, p. Q79, a full lading, the owners cannot recover frei^^ht for more E. 1 Compy. goods than are actually shipped. 2 Vernon, aio, "^^^^ Court of Chancery will relieve owners where Edwin V. E. I. there is an incorrectly penned charter-party ; and where 1 Equity Cases, there was an agreement to pay freight for a homeward abridged, 375, cargo, but the factor had no goods to send home, the Westland v. *= , 1 ,/.,/.,, • Eobinson ; merchant w^as decreed to lulfil his contract. same case, cited ^^^ where a suit was pending; in a foreign court be- m 2 Vernon, r & fc> 212. tween the master and the merchant, but the damages had not been ascertained, the Lord Chancellor per- Cases, 74,^ niittcd the ship-owner to bring his action here upon the Ne«land v. covenants, but at the same time directed that the mer- Horseman. i 1 1 . i • • i i i 1 , chant should give such matters m evidence as should be equitable to mitigate the damages. But if the foreign suit be concluded, the claimant may not sue here. Equity will of course afford relief against fraud. Cases Tempore Equity wiU deny freight to an owner who refuses to Finch, 149, . . } ■^ n Norton D. Serle, JOin in the Outfit. and see 1 Vernon, 242, Uruddy v. Deacon j Anonj'mou.'^, Skinner, 230. Sometimes the merchant agrees to pay so much by the month {e), or week ; if he does this, he must abide by 10 East, 555, his contract, though the vessel may be out of repair Geddes. ^' when the goods are shipped, and though the owner have 5 Barnewall & covenanted to repair. And in analogy with the cases Illplev» Scaife' ^^ demurrage, a contrary wind, or an embargo, or even a detention of some weeks, and confiscation of part of the cargo, will not release the merchant from his specific 2 Campb. 627, payment, the vessel being afterwards liberated. Moorsora v. Greaves. (1?) Which means a calendar month. A month, in mercan- tile contracts means a calendar month. 1 Espinasse, 1S6 Jol/i/ V. Young. PAYMENT OF FREIGHT. 93 But a hostile aggression, which suspends or destroys the contract, destroys also this right to freight ; for were it otherwise, it might, on the one hand, prove ruinous to the owner, and on the other, equally destructive to the Per Heath, j. P . , , 3 Bosanquet6c freighter. Puller 4.7. It is certainly the wisest course for the master to retain the cargo until he is paid for his freight ; but by delivering it up to the consignee, he does not lose his remedy against the merchant-charterer. Lord Kenyon 13 East. 570, was, indeed, of a different opinion at Nisi Prius, but he wVf"*^ •.''.. ' _ ^ . . " '''^^> cited ; agreed afterwards with the court that the freio-ht mioht, same case, Ab- under these circumstances, be reco veered. So it was, al- ° ' P" though the consignee drew a bill of exchange upon the 8 Term Rep. charterer, such bill not being for the master's accommo- Martens'-^same dation. And, as we have before said, the words " he point, 1 TauH- " or they paying freight" are introduced for the master's ty"i).'^Ro'w "^'^' benefit solely, and he is not, therefore, bound to the consignor to withhold the delivery of the cargo until he '3 East, 565, 1 1 -If .1 /> • 1 i Sliephard v. De has been paid tor the ireight. Bernales. Indeed, as the master has no prospective lien on the freight, he cannot insist on receiving the money ; and, in a case where he gave the merchant notice to pay no one 3 Barnewali & except himself, but the merchant nevertheless paid the ^'"f.^"^"' ^47, r ' _ 1 Atkinson v. owner on demand, it was held that no action could be Cotesworth. maintained by the commander. The liability of the party who receives goods to pay the freight has been already noticed, but that is in general where no express agreement on the subject exists between the owner and charterer. Where, how- ever, a regular deed was entered into, but the indorsees of the bill of lading were no parties to it, nor stipulated 2 Maulc & Sel- to pay any thing, it was not held competent for the ship- J?„orso°m '«, owner to sue them, as no implied promise could be Kymer. raised by their receipt of the goods. Nor would they^ ordinarily be liable, in the absence of a charter-party, if 94 5 Taunton, 6i2, Finder w.Wilks; 1 Marshall,248, same case. 1 Maule & Sel- wyu, 157, Wil- son V. K3 mer. 1 East, 507, Ward V. Fellon. 2 Shower, 443, Roberts v. Holt. 5 Taunton, 477, Bell V. Kynier ; 1 Marshall, 14(5, same case. So also is the great case of Cock V. 'J'aylor; 13 East, 399. 3 Bingham, 383, Dougal !'. Kcnible. Freight when payable hy cap- tors. OF SHIPPTNG : they take, not under the bill of lading, but under an order from the consignees, although the goods are en- tered at the Custom House in their names. Yet, as it appeared in the case cited that they had been accus- tomed to deal in that manner, an implied promise was raised under these latter circumstances. Also, the consignor's agent, known in that character, although he enter the goods in his own name at the Custom House, is not liable, especially if they be not consigned to him, there being neither an express nor an implied contract. However, on the general principle, the consignee is answerable. And so is the indorsee of a bill of lading, who takes the goods by virtue of it, where the charter^ party provides that the consignee or his assigns shall pay according to the terms of the deed, and it was so determined, although the indorsee had paid over the proceeds before the demand of freight (g). Goods were consigned to A. B. and Co. " he or they " paying freight for the same. A. B. and Co. indorsed " the bill of lading to their broker, and then became " bankrupt ; the broker was held liable to pay the " freight." If a ship be captured on her voyage the persons so seizing her are liable to freight as the consignees would have been, for they thus put a violent end to the adven- ture. This principle assumes that the vessel taken is (g) The distinction between Moorsom v. Kymer, and Ecll v. Eymer seems to be, that in the first case there was an ex- press agreement, and the law would not therefore raise an implied undertaking ; but the latter contract arose on the bills of lading, and the plaintiff, the charterer, had no means' of resorting to any other persons for the freight. See 'i Maule & Selwyn, 317. TAYMENT OF FREIGHT. 95 a neutral. The proceedings to recover it under these circumstances usually take place in the Admiralty Court^ and it is observable, that where the ship is condemned, and the goods are to be restored, the captor claims the freight ; where the cargo is prize, and the ship safe, the captor is to discharge the freight. On the forfeiture of the ship, the captor's right to be paid depends on his performance of the voyage, or on his fulfilling the intent of the contract. As where the delivery of the cargo took See Lawes on , . ^ . , 1 • 1. . I, Charier Parties, place m consequence ot capture m the port wnicn the p. 271 ; Abbott, consignees had had at first elected, though they had !'• ^y°* been unable from Dutch policy to pet them orio-inally L^"'*^*' -57; see I J o n J fiig cases. sent there. But if the voyage be not performed, or if any condition preceding be not carried into effect, freight will be denied. As, on capture and re-capture, the ship being brought back to the port tvhe/ice she departed; in cases of embargo, the voyage being abandoned ; again, where the captor took the ship to a different port, and upon this last occasion, although the proprietor afterwards sold the See tlie cases, goods at the place to which the ship was carried. The Lawes.'as^^'et captor, however, is to pai/ freight, where he takes a neutral seq. vessel conveying goods licensed by the government of the neutral nation, and not contraband according to the law of nations ; or goods from the port of one hostile coun- try to the port of another equally hostile ; he is to pay freight for innocent goods separated from such as are contraband; and in one case, upon a re-capture, where See Lawes, p. the vessel, which had performed her outward voyage, ^'^ put into a port, after her re-capture, somewhat short of her original destination. The captor makes his seizure Abbott, p. 290. cum onere, he is liable therefore for the prize-master's neg- ligence, and for improperly sailing to a distant port (//,). {h) And sometimes to the whole amount of the fieight, though the cargo saved do not cover it. Where, however, a Ibid. Lawes, 287. 96 OF SHIPPING . But he is exonerated in tl:e case of taking con- Abbott, 289. traband goods, whether the master be or not ac- quainted with the ilUcit traffic, nor is he hable where the cargo comes as produce of the colony of a belli- gerent power to the mother country ; nor where the ship is employed " in the coasting trade between one " port and another of the same country, or in carrying " the goods, even of neutrals, directly from the mother ** country to its colony, or from one hostile nation to the *' colony of another hostile nation in alliance with it," unless such dealings are customary in time of peace, or be authorized by public treaties. And the owner of a neutral ship must conduct him- self with strict good faith, to come within the rule ; false papers, and indeed, any act which shows mala Jides, will deprive him of his title to freight upon these occasions. The Commissioners of Transports chartered a ship, which made a capture, and upon petition, two-thirds of a moiety of the proceeds were ordered to be paid to the owners. The commissioners proposed to deduct the freight from this sura, but the Court held that the war- rant of the Crown was quite discretionary, and directed the sum of 6,000 /. claimed for freight, to be paid into court, without prejudice to any question arising upon the subject of ownership. Illegal voyage. If the voyage be illegal, freight may not be recovered. An order of council permitting a consignee to land goods upon condition of re-exporting them immediately does not legalize the voyage, for freight is a reward 3 Merivale, 20, Thurgar v.Mor- ley. ship was restored by consent, the Court of Admiralty would not decree payment of the balance of freight, and compel the captain to account for the value of the cargo besides. Lawes, p. 296. Sometimes a moiety of the freight will be decreed. Id. p. 297. PAYMENT OF FREIGHT. 97 given for bringing goods into the country upon a legal 3 Tauntcm, 394, voyage. And the exception of " restraint of princes," Gemon. does not in this case avail the master, because he knows ^ ,,, . , ,, a L hitr_y, Lases of the illegality of the voyage ; and it seems, that he Tempore Mans- cannot aver ignorance on a subject with which he is [|fp"j. jon^^^^^' under an obligation to be acquainted. Abbott, p. 289. The learning upon this subject may be found in the Right of mer- Book of Shipping so frequently quoted, but as no ex- don'for freight!" press decision has been reported upon the subject, it is g^g Abbott, not necessary to enlarge upon it here. 292 300. However, Lord Mansfield has certainly said, " If he ** (the freighter) abandons all, he is excused freight, " and he may abandon o//, though they are not all lost." Lyde.Nj Bur- If the pfoods have not reached their destined port there ■■"'^' ^^^ -.'^'"^ 1 •/■ I 1 aga'i'i I ark on can be no abandonment, and it the mercliant accept jnsmunce, p. them he is precluded from obiectino- to the freight, 90, m Baiihey. though he offer to return the property. " If, however," Abbott, 293. said Lord Ellenboroush, " the merchant had refused to }^\^\^^ >■< Bain- 1 1 /> 1 bridge. ** receive the cargo on the ground of damage so occa- ** sioned, the point would admit of some doubt j" ^ncj then, perhaps, the question might be raised. However, the deterioration of the consignment offers no ground for a refusal to pay the freight, the owners puuglas, 272, do not covenant against the iJerils of the &ea ; and thus J:J"''^^"' "^^ ^•^• & I ' Company. it was, where certain tobacco was rendered useless by shipwreck, that the merchant was compelled to satisfy Abbott, p. 29a, for the freight. The consignees had accepted the goods ^rev. ^ in both these cases. Lord Tenterden sums up the mat- ter thus : — " The only point intended to be proposed by *' me, as doubtful, is the right to abandon for the *' freight alone, at the port of destination : and in ** point of practice, I have been informed that this ** right is never claimed in this country." Abbott, p. 300. The bullion of private merchants may not be carried ^ p . , . . 5 launton, 143, on freight without an order to the captain command- Brisbane v. Da- ing him to perform that service. And where the com- j^"' \ ^Uq^. H gS OF SHIPPING : l\^-^ c* Made ™^^der carries either public or private treasure, the & Seiwyn, 32, flag-officcr on that station is not entitled to any part of Warren v. ^ r • ^ i Shirreff. such freight. Apportionment If a ship Consigned to merchants at one port be "^^'^ ■ directed by them to land at another, where they receive the goods, an implied promise arises on their parts ta 1 Taunton, 300, pay freight pro rata. In this case the cargo was coals, Tu y V. ow. ^^^^ ^^^ money payable was at the rate of 20 /. per Abbott, 310, 110 1-1 11 1 Lutwidge V. keel, feo where some tobacco was saved, the vessel Grey; Park, 90, having readied her destined port, and the parties Baillie ('. Mou- . ^ ' '. r digiiani ; and having accepted the salvage, the freight was adjudged r*^Lofd Ei'do'n *° ^^^^ accrued. But it is payable only in respect of 2 Bmrow, 882, such goods as are saved provided they be accepted by Luke I). Lyde. the parties sought to be charged. So, where a ship, 289/j he Copen- libelled in the Admiralty Court for condemnation was hagen. restored, freight pro rata was ordered. In a case of capture and re-capture, where the ship had gone up ta the mouth of her destined port, the owner contended he was entitled to the whole freight ; the merchant said , nothing was due because the cargo had not been de- livered. The Court of Admiralty, considering the cala- mity as common to both parties, directed payment of a moiety, such division being suggested by a feeling of equity. It is observable, that in this latter case the „ acceptance of the goods was rendered impossible by 1 Edwards, 246, n i ^ The Friends. reason of the sale. However, in the case of a total loss, if the freight re- 10 East, 555. served have been at so much per month, it will be pay- able pro rata, and for this reason, at the end of each Geddes. month a proportionate earning has taken place. And Abbott, p. 332, so it is where the outward and homeward voyages are 333. iMackreii I', distinct, and the ship happens to be lost on her home- bimond ; 335, ^ * ' 1 • i Byine v. Pat- w^ard coursc. If, however, a ship be chartered at a h"t case'n'o^"^'' ^pecific sum, not for the quantity of goods but generally freight was al- for the voyage, and, part of the cargo being lost, deliver the voyager*^ ^^^ residue, it is still a question whether freight pro PAYMENT OF FREIGHT. 99 rata can be demanded. There is a case where the could not be covenant was, that if the master would bring his *'^''"^'^- freight to such a port, the merchant would pay him such a sum, and part of the goods being lost by piracy, the Court held that the merchant should not pay any thing though the residue of the cargo was unladen at the place appointed. " It may be," says Lord Tenter- BriXt ". Cmv-' den, "that by the particular terms of the contract, the P^''; and see " payment of the freight was made to depend upon the 167, Clarke' r. " delivery of tlie entire cargo." It would probably be ^"''nell- a ground for the Court of Chancery to interfere on be- ■'^^^""' 3i9' half of the ship-owner, if, without any default of his, there should be only a partial loss, and the merchant should decline any payment whatever. It is good, however, as a general principle, that if the 8 East, 437, voyage be not performed, no freight will be due. As ^Maule^&sc"' where a Swedish ship was chartered to go a short dis- wj", 308, tance, but meeting with bad weather, was forced to put don?"^ ^' in, upon which an embargo took place, and the cars:© ^ Barnewail & 1 1 , ^ \ ■ ■, Alderson, 17, was restored to the merchant; here no freight was ad- Gibbon v. Men- iudo-ed- So, where the freight was to be paid on a ^"^^ ,. -' _ o ' . ^ r 4 Robinson, 77, right and true delivery of the homeward cargo from 'j he Isabella Ja- Honduras Bay to London ; but after a capture and re- *^" '"^" capture the cargo was sold by an order of the Vice Admiralty Court at Saint Kitts, «^ the master's instance; here the ship-owner's claim pro rata was disallowed, for the master had by his own act prevented the mer- lo East, 378, chant from entering into a new contract. And thus it cep.'^'^^'^ ^' was again where the merchant refused to accept the Idem. 526, Lid- goods which were tendered him at a place short of "^'^^^ ' ' ■^"^"' their destination, upon which they were sold with notice ; but it will be remembered, that there was m this case no abandonment at the Jinal port. It will be 2 Campb. 466. collected that no freight can be asked for unless there p*s"V'' '^^• r> 1 ■■ . , « G Tuning. IS an acceptance of the goods. And even if there be an acceptance and the plaintiff sue on the charter- H 2 100 OF SHIPPING : 7 Term Rep. party, instead of in assumpsit on the new contract (for Jennings! "' ^"^^ ^^ ^^)' ^^® ^^^^ ^**^^ ^® Successful, the engagement being to pay on the ship's arrival at a certain place. If the cargo be sold for the freighter's benefit, he will not be liable to pay unless the ship have broken ground, 1 Bosanquet & ^"^"^ ^^ ^^ from that inception of the voyage that freight Puller, 634, commences. Pending proceedings against the ship in the Admi- ralty Court the action for freight cannot be sustained, because it may happen that the vessel may be adjudged to the captors, and the ship-owner's claim would then 5 East. 316, . , ^ A ■. Miilioy V. Bac- be at an end (? ). ^^'■' Notwithstanding all these authorities, however, an express and independent stipulation will bind the mer- chant as to his freight, as well as any other man who enters into a positive agreement, so that the defendants 8 Taunton, 334, were held liable under an arrangement made subse- FaiHie"" ^ quently to a loss, by which they promised to pay a pro rata freight upon the plaintiffs performing certain con- ditions, which were fulfilled. 3 Campb. 475, It is no defence to an action for not paying freight to Meylts ^^Y' ^^^^ ^^^ vessel which has been described in the charter-party as a Swedish is, in fact, a British ship. (i) And the right to receive passage money is suspended in like manner, i Levinz, 16, Tompson v. Noel. INSURANCE, lOl SECTION tV. OF INSURANCE. 1. On Shipping, ^c- — 2. Against Fire. — 3. On Lives. The ship being chartered, and the voyage determined on, the subject of insurance next occupies the mer- chant's attention. Perhaps it may not be amiss to take the policy of insurance, and comment upon its provisions as we have recently done in the observations upon charter- parties (/). ^' In the name of God, Amen. John Smith, as 1. The assured. ^ well in their own name, as for in the name. Sec. *' of all and evelcy other person. Sec. to whom the ** same doth, may, ot shall appertain, &c. doth ■" make assurance, and cause himself, and them, and '^' every of th^ese to be insured, lost or not lost," &c. The names of the persons assured, or of the con- 28 George 3, signors, or of the consignees, or of the agents, must be plj'rkfp, ai.De inserted in the policy, each by his or their usual style Vignierr.Swan- and form of dealing. It is not necessary to add the Word " agent," in the pohcy, where a party insures in ^ Bosanquet that character, and if a broker describe himself as agent Bell v. Giison! the statute will be sufficiently complied with. (/) Provisons which are not ordinarily inserted are marked by brackets, thus [ ]. H3 102 OF SHIPPING : " At and from/' &c. the voyage proposed. 2. Voyage. The voyage must be commenced within a reasonable time, for if the ship be laid by for a considerable season 2 Atkins, 359, with the knowledge of the owner, the insurer will be Ci.itiy V. Sel- discharged. " At and from Bengal to England" means the first arrival at Bengal, and the first arrival is always implied Motteiix'i'. ' ^^ such cases. " At and from Jamaica to London :" the London Assiir- yesscl which was warranted to sail after January 1 2, moved from one part to another in Jamaica before that 2 Taunton, 301, ^^J ^^^^ ^^^s lost ; the Court held, that under the word Cruickbhank v. ^t the ship was protected in such a course. But a policy " at and from Lyme to London " will not shelter ^ a caro'o at Bridport, although that place is within the Id. 403, Con- = 1 ' o 1 stable V. .Noble, port of Lyme. Voyage ninst If the voyage be prohibited by the law of England not be illegal, ^jjg policy is void. And if there be an infirmity in any in Park, 0^353- part of the i)itegral voyage, the assured caniiot recover 356. upon a policy on any part of it, although the insurance yon, 8 Jerra may be effected on the homeward course^ which, taken j|fP-4^- . by itself, would be legal. Still, if the voyages be dis- V. Appietoi. ; tinct, although there be an illicit traffic during the out- LawTence^J Ward, a policy would be good on the homeward, for the 4 Taunton, 856, illegality must exist during the course of the voyage Sewell V. Royal . ■, Exchange As- msurecl. surance. South Sea licences are now abolished, by 55 Geo. 3, ch. 57, &- 141, and it will therefore be unnecessary Park p -557 ^o do more than refer to the books on insurance upon Mdrshali,p.i75, the subject. The King's licence, given by virtue of his royal pre- rogative, is granted for the preservation of trade, and it enables his own subjects, or those of foreign states, such as he may please to endow with the authority, to prosecute adventures which otherwise would be out of INSURANCE. the law's protection, and on which no insurances could in such case be made. This instrument is construed liberally (w), at least at the present day, the object being to facilitate the commerce of the country, and therefore, a misdescription of the person's name will not invalidate the licence (w). Nor will it be void, although the party interested be a foreigner residing here under an alien licence, and the adventure he carried on by his agents, the instrument being granted to " F and Co. " and others." And it is no matter that the agent be not himself interested in the goods. But something must be «hown to connect the party using the licence with the lawful possession of it, as, that one party is agent for another, and it is certainly not enough to show that the licence was intended to legalize a particular adventure without establishing a title to it. 103 1 Bingham, 473, Lemcke v, Vaughan. 1 6 East, 197, Feise v. Nevvn- ham. 12 East, 123, Rawlinson v. Jansen ; see 3 Taunt. 546, Fayle v. Bour- dillon. 12 East, 311, Barlow V. M'lu- tosh ; 16 East, 3, Busk V. Bell. 5 Taunton, 720, Robinson v. Morris. (m) An agent, obtaining a licence, did not represent to tlie Privy Council that his application was on behalf of a hostile trader ; the policy was not vitiated by this concealment. 5 Taunton, 674, Flindt v. Scott : the authority of Mennet v. Bonkam, 15 East, 477, is shaken by this case. It is no objection to the policy, that the loss has been occasioned by an act of the alien's own government. Same case as above ; and see 5 Taunton, 711, Anthony v. Muline ; Id. 716, Sdmakoneg v. Andreivs. (?i) Lord Ellenborough held the contrary, it being the policy at that time to construe licences strictly. 14 East, 484, Klingcnder v. Bond ; and see the judgment of Lord Gifford m Lemche y. Vaughan, 1 Bingham, 481. And if a ship violate the convoy act by sailing with a larger complement of guns and men than the licence authorizes, but without the know- ledge of the assured, such licence will not be repudiated, nor the policy made void on that ground. 1 Campbell, 530, Edivardsv. Footner. H4 104 ^^ SHIPPING : If there be a condition annexed, that must be fulfilled to enable the party to avail himself of the grant, as where a bond for the exportation of goods was re- ' ^"-^1^' 475. quired, such security not being given, the exportation Whitiiiore. became illeo;al. So where there was a licence for the exportation of gunpowder, but on condition that the liderson ^184, merchant exporter should give a certain security; the Camelo v. Biit- party asking for the licence gave the security and the policy was vacated, for he was not the merchant 12 East, 30-2, n, t- J , , , c p ^i CioiMon u. exporter. And a colourable pertormance or the con- Vaiigtian. dition will not be sufficient, for that will be held a KenTin'omn'j). fraud upon the licence, This document being duly Iiiglis. obtained, may operate to protect an insurance upon an enemy's f<hip ; and upon his goods, so as to enable 3Taunton,554, j^j^^ to enforce his contract in this country 5 and, of JVJ organ v. . . •' 0->\viild ; course, if a place be occupied by a military force at war F.ii^rBdl'; with Great Britain, and His Majesty permit traffic to ■3 Miuile & Sel- ijg carried on between the inhabitants of that place and Tianf? vvi.it" " England, a policy etfected by them will protect goods more- and see gj^ippgd \^^,re on their accouut. wjn. 567.Hagcdom v. Reid ,5 Maule & Selwyn, -25, lliicker u.AnsIey. 1 Maule & Selwyn, 450, Hagedon v. Bell ; see also 2 Maule & Sel- -vi^n, 100, Ilagedorii I'. Haztlt ; 1 Maule & Selwjn, 217, llubin^on v. Touray ; 4 Taunton, 792 Piescliell r. Allnutt. 4 Taunton, 233, And a merchant, who had two neutral partners, trading DeTasiet?'. under a licence granted to the broker of the firm, was Tavlor ; and see . , , . i- i- izu i, 13* F.itsf. 332, permitted to sue the underwriters on his policy, altnougn Usparichai;. j^j-^g neutrals became enemies before the bringing of the Koble. ^ the action. 4Taunton, 178, However, the licence must not be strained beyond its C(m'iV"TflLr- specific object; and thus, where a ship was allowed to shhil, 252, Dar. without convov to a certain port, here was no licence by V. JNewtoi) ; f' •' r ^ ■ 1 15 East, 517, that she should run the residue of the voyage without Ingiiani,;. Ag- g^|^gj. jiceuce or convoy. So, if there be an alteration new. •' ^ /> -I 1 Barnewall & of the voyage not consistent with the terms of the iltlhv' ''^^' licence, it will be unprofitable. But if the ship be de- Tanno. INSURANCE. l(jr tained through some unavoidable accident, the licence 15 East, 52, shall not be exhausted so as to prevent the leoahtv of f^^h^oder v. 1111 I • , ^''"■^ ■' 5 Taun- the adventure, although the actual time may have ex- ton, 329, Everth pired; it is upon the principle of inevitable necessity. Cam''^8' g But, to prove that the master of the vessel has used due ning j;.Crockett. dilioence some testimony must be brought forw^ard. and 4 Taunton, 478, o _ •; ~ ireeland v. the particular excuse relied upon by the person desirous Walker; id. of recovering on the policy must be shown. As where Cormar^'" "' a ship's cargo, being unladen in the course of the voyage, 4 Taunton 717 was destroyed by fire^ and another cargo substituted, Siff kin j;. Clo- the old licence was held to protect it, though the parties & SeKwn, 39, had actually obtained unnecessarily a new one, and the '^^'^^^^ "• AH- objection made at the trial against their recovering wae, that the clearance of the substituted cargo had not been indorsed on the new licence, and which could not be, as it was not with the ship. The difference between a licence for exportation and one for importation may be referred to the same princi- ^t, . . . . o launtori, 3^d, • pie, since in the one case there is time to apply, in gene- Wiiiiaras v. ral, for a new hcence, in the latter, it is not so. And it JLTj'i '"j"!,^ seems, that an accident will not alter the case if a new 7 Taunton, 468; ,. , i-ii- •!• , same case, licence can be procured in due time, nor is clearing at 2 Marshall, 92; the Custom House in London an exportation, it appear- * Moore, 174, , , . -Ill- Tiillocli I'.Doyd; ing that ships are not considered as having exported till 7 Taunton, 47-25 after passing Gravesend. The exportation, however, *^'"^ <=''^- of the excess is alone illegal, so that where more gun- g Taunton a powder was put into the ship than the licence war- KcircAndrade; ranted, the insurances, it was held, might be supported rMarshali, 196; to the extent of the legalized quantity. If there be no '^ '•'ast,502, ,. ,, ,. • 1 1 • . X Parkin «. Dick. licence the policy is avoided in toto. We have seen that these licences may not be as- signed and a licence to the plaintiff, who had a general bill of lading signed to him, while particular bills where executed in favour of other persons, was held not to protect the consignment; but if the plain- io6 OF shipping: 2 Taunton, 248, tiff had showii a special property in the goods, it would Feisei;. Waters, j^g^yg been Otherwise. To enumerate all the cases upon licences would be a long, and probably an unprofitable task, because these instruments are construed in gene- ral according to their own respective terms, and as they vary with the changes of the times. Without such licence, however, the insurance of an enemy's property is decidedly illegal; and notwithstanding the various opi- 23T Brandcfn" v. nions entertained upon the expediency of the decisions, Mesbitt; Id. 35, i\yQ Court of King's Bench have twice held that doc- Towers, trine after considerable argument. And it does not alter the case that the ship insured belonged to persons in friendship with Great Britain at the time of the 3 Bosanquet & pQ^^y jf hostiHties have broken out afterwards, and tado V. Rodgers. the vessel be made a prize to B/itish capture. For, as 4 East, 417, in Lord EUenborough said, a proviso to this effect shall in Brandon v. Cur- q\\ cases be Considered as engrafted : " Provided that tiie^'slrae eflfect. " this insurance shall not extend to cover any loss hap- Id. 407, Gam- tc vjenino- durins: the existence of hostilities between the ba V. Le Mesu- r o o rier. " respective countries of the assured and assurer. 4 East, 396, j^ policy on a foreign ship expressly excepting British Mesurier ; see Captures is illegal, but there is perhaps a difference where Park, p. 375; -J. jg njade to cover a British risk. But Lord Ellen- 3 Bosanquet & borough has holdcn, that a neutral, resident at an ^E^TinassV enemy's port, may have an insurance effected upon his 184, Visgeri'. goods, for possibly he might have been entrapped or jescott, ar , ^^^^j-^^j-^g^j^ ^^-^j^ ^.jjg adventure not being of a hostile 1 Campb. 75, description, a neutral ship may carry the property of an Hesselnne. enemy from its own country to that of the enemy, and 9 East, 283, such property may thus become the subject of insurance Barker, v. 1^ Blakes. See "*^'^* upon this subject of trading with an enemy Marshal!, p. 32-42. 2 Campb. 163, A licence to an alien to import does not authorize bree.'°" ^' ^°' ^^""^^ ^° remain here, or sue on the policy. INSURANCE. 107 " Upon any kind of goods and merchandizes," &c. The goods upon which the underwriter insures must g Goods. be specified. So that if there be a lending on bottomry 3 BaiTow,i394, or on respondentia, such interests must be expressly Glover v. Black. mentioned in the policy. Though if there be an express usage to insure any species of property in a particular manner, the Courts will pay attention to it. As, where the policy was on " goods, specie, and effects," it was sworn, that money expended by the captain, (who was the plaintiff,) for the ship's use, and for which he charged respondentia interest, was never mentioned in ^^^^^ q^^^ any other manner, and in conformity with this usage goij r. Christie. oiili/, he was suffered to recover. But money advanced to the captain is not the subiect ' Maule & Sel- 01 msurance, and the premmm may consequently be ken v. Allnutt ; regained ; nor can bills payable thirty days after the 1 iP^*™*^^^"!], ^ expected arrival of a ship be insured by the holder. Manfieid i Again, the captain's clothes and the ship's provisions aS^RoTsr ^^ ' are not within a general policy on goods, nor goods Tinvaite. stowed on deck, for such a policy extends only to POods ^Bingiiam.iSs, ... „, -r.1 1 „ Palmer y.Pialt. which are a part of the car2;o. Jout where some carboys of „ , ^„ , r ^ J Park, 26, Back- vitriol were carefully stowed on .the deck, that being the house t;. Ripley, usual place for such goods, it was held, that the under- writer need not have been informed of it, although it appeared to be likewise usual to bed them below in sand f.^^I^P^" ''^^* •^ f^ _ Da Costa t>. for greater security. Edmunds. With respect to dollars, jewels, 8vc. the reader is re- Park, p. 26, ferred to the treatises, as no decision has taken place, 323.* '"^ ' '* and as foreign writers differ on the subject, it may be advisable to insure money, &.c. specially (p). (p) In Da Costa v. Frith there was an insurance on bul- lion, and no objection was taken. 4 Burrou.\ i,9Co. 108 OF SHIPPING : 8 Geo. 1, c. 24, In order to interest seamen in the return of their ships, *^^^' '^' the masters of merchant vessels are restrained by statute from paying more than a moiety of their wages beyond 7 Termtlcp. sea, and, by consequence, it is illegal for them to insure ^p'g Taste" their wages, as they would then be secure in case of loss whether from their own negligence or any other cause. Nor can a captain insure money lent to him payable out 2 Campb. 626, of the freight, nor as we have seen, money lent to him Ex. Assurance! abroad* For the principle is, that the party should have 1 Maule & Sel- an interest in the thing insured, and therefore an insu- ten 'y.*!! ilnutt" rance on the " commissions, privileges," &c. of a captain 2NevvRep 206. of a slave ship was holden good. King J). G lever. ^ i ,^ , , i c ^ 2 East <i44 '^^ t"^ proiits expected upon a cargo ot goods. Barclay v. Cou- And SO the govemor of a fort who had insured it for g, ' ' * ' twelve months for his own benefit was considered to be justified in doing so; but in this last case, it is observable 3Burrow,i,oo5, that the underwriter knew the governor's character at CartertJ.Boeiim. ^.^g ^j^^g ^f making the policy. Prohibited p^j. ^]^g better understanding the subject of prohibited Goods. ~ J I en ,r.H eoods, we must refer to the new statutes for the oeneral 6 Geo. 4,0.107; a ' o 6Geo.4,c.iii; regulation of the customs, and for granting duties of Diid see more , particularly, a CUStomS. Iht of goods absolutely prohibited to be imported, in tlie Statutes of the United Kingdom, vo!. 10> 374 ; and the Tables of Customs inwards, Idem, p* 430. 4.Ship, &c. " And also upon the body, tacklcj apparel, ord- " nance, munition, artillery, boat and other furniture " of or in the good ship or vessel called the Aurora, " whereof is master, under God for this present " voyage, A, B. or whosoever else shall go for " master in the said ship, or by whatsoever other " name or names the said ship or the master thereof *' is or shall be named or called." 6 East, 385, by " ^ ^"""^ description both of the name of the ship and I ord Eiienbo- « of the vovage intended, should be observed to the roui,h. ■^ => INSURANCE. 109 " extent which the terms of the pohcy itself require." But a mistake of the broker, who wrote " the American " ship Resident," instead of " the President," was held ^ East, 382, Le • • 1 1- * 1 • 1 11- Mcs irier d. not to Vitiate the policy. And so again, where the ship Vajghan. was called " the Leopard," but turned out to be " the " Leonard," the same doctrine had prevailed before Chief ^ East, 385, . '^ Hall V. Moli- JuStlCe Lee. neux, cited. And the master's name should be also inserted with Park, p. 21. accuracy, although the words " or whosoever else shall '< go for master," &c. would probably cover a mistake in that respect. Under the word "furniture," provisions sent out for 4 Term. Rep. the use of the crew are protected, at least while the ship ?v, ; '■°"si»- is proceeding on her voyage; but where a vessel was de- tained under an embargo, it was held, that the assured i Term Rep. could not recover for seamen's wag-es and provisions. ^"7' ^^"'^'^'■'*°" o r I,,. J:,wer. And the lines and tackle in the Greenland fishery are not recoverable as " furniture," for they are no part Park, p. 97, of the ship's tackle. It follows, that wao;es and pro- f^"*'^'"" i- P'^k- . . . . crsgill. visions cannot be recovered where the insurance is on ^ , o Park, ]). 89, the ship only. Fletcher r. ^ ^ Poole. Insurance on " Ship or Ships." The assured may cover whatever ship he thinks pro- Park, p. 22 ; per, and he may apply his insurance in the same manner, ^ Hemy Black- , . . . . . . stone, 343, where his policy is upon " ship or ships." KewU-y u.Ryan; Where ffoods were removed from one ship to another „ " -^f^' "• o I Henclinian v. by the owners, and the second ship is lost, they may Offley. nevertheless recover, having acted in the best manner for • Term Rep. 11 J 61 i,n. Planta- all concerned. n,o„r ,. staples. In the absence, however, of a stipulation that the chaimincr the policy shall cover more than one ship, it seems, that the *^'P- ship cannot be changed so as charge the underwriter 110 OF SHIPPING : in case the second vessel be lost. The underwriter was held liable on an insurance effected on the ship the 2 Strange, 1248, plaintiff set out in, but, he havins; moved into another, Dick V. Barrell ; ^ ° and see Park p. could not have recovered had the latter been lost. 433-437- Insurance on Freight. 5. Freijiht. Where no special contract exists, the right of freight 2 btrangc^^asi, ^j^gg ^^^^ begin till the goods are on board ; and so, where 1 New Rep. an accident happened to the ship before the lading, M'Vicar'-*^ Lee, C. J. held, that the plaintiff could not recover. 1 Canipb. 520, p^i^^ go it is also if the vovao-e ag-reed upon never com- Forbesf.Cowie. . c ■ ^ i ■ i 13 East, 323, mence m consequence of an accident, and it makes no Forbes v. Aspi- (Jjfference that the policy is a valued policy. 3 Term Rep. ^ut if part of the cargo be on board, and there be 362, Montgo- ^ valued policy, the insured may recover to the whole niery f. Eggiu- « 1 i i- ton. amount. And so wfiere tfie policy was open, but there was a charter-party that the ship should depart out of the Thames, and go to Teneriffe to load, here it was held 478^Thrinpson ^"^^^ ^^^^ inception of the contract for freight began when V.Taylor; the slilp quitted the Thames. So, " profits," on a cargo Atty V Lincio; actually ladeii may be a valid subject of insurance. And 3 Catupb. 276, where the contract for freight is entire, although the Eyre v. Glover; ,.1 1 i r- • 1 1 ^ • 1 16 East, 218. policy be open, and the freight be to be estimated ac- 7 East, 400, cordino; to the quantity of ffoods on board, the under- Horncastle r. • " i- 1 , , / . =" . „ ^ , Suart, 1 Mauie writer IS hable though, in point ot fact, no goods are &Seivvyn,3i3, shipped. Davidson y. ' i Wiiiasey ; Hovvevcr, wlicrc the ship, having been detained, was Binghara''V2o ^^^ ^^ liberty, and earned her full freight afterwards, TruscoitD. although the expenses of her stay exceeded the value of HT 1' a I the freight, the underwriter was nevertheless, held to be 2 MauIe & Sel- . . . wyn, 278, discharged in this case. Everth r. Smith. ji. ■ i. l l c i. j. ' j.1. It IS not competent for a party to insure on the KnoxT. Wood.' expectation of commissions on the freight of g-oods. INSURANCE. Ill IV air unties. There are various warranties touching the sailing of a ^* Warranties, ship, and it is a rule, that they should be literally and strictly construed, being in favour of the underwriters and against the assured. " Warranted to sail [or depart] with convoy." Ships must sail under the convoy appointed by the Park, 498, Hi b- government of the country. The protection, therefore, of an accidental ship will not satisfy the warranty, and, in a case of this kind the jury found their verdict for the underwriters. And sailing instructions have been deemed absolutely 1 Bosanquet & necessary to fulfil the contract, if by dilioence they can P^'l^f- 5. Webb be obtained. 2 Bosanquet& Puller, 164, Anderson d. Pitcher. See Park, p. 502.. But where the captain did every thing in his power to 2 Strans-e.isso get the sailing order, which he failed in procuring by Victoiin ?;. reason of the tempestuous night, the warranty was accomplished. So where the commodore refused the orders, but said, " keep on, and I will take care of you •" ?i,.(,s, Verdon v^ there was sufficient compliance with the engagement to ^^ '''"°^- sail with convoy. " Depart with convoy." 2 Salkeld, 443, l.ctliulier's This phrase must be construed according to the usage Case ; Id. 445, among merchants, i. e. from such place where convoys are "1 /' "' to be had, and a ship may go to the general rendezvous 2 Strange, i265» ^1,1 1 iU " 1 i 1 Gordon v. Mor- r convoy, although there may be a convoy nearer to her ly . ^ Campb. loading port ; and if there are no convoys at the port ^''^' Warwick «. whence she beoins her homeward voyao-e, she need not , ,, , » .' » ' 4 (,ampb. 34JJ, call for convoy in her way home. ^''^k v. Hamond ; Douglas, 72, Lill^' v.. Ewek The warranty extends to the whole vtoyage, although 3 Levinz, 320;^ a separation by tempestuous weather will excuse the gendrrf ^' ^' 112 OF shipping: merchant, and make the underwriter liable ; " for," said Park, p. 508. Lord Mansfield, "to hold otherwise, would be heaping Marshall, p.381, " misfortune upon misfortune." If, however, she lose Thompson. ^^^ proper position in the convoy through negligence, 2 Henry Black- ^^^ w^arranty will be broken. But the undertaking is stone, 551, complied with, if the ship sail with the best convoy that D'Eguino D. Be- . *„ wicke. can be found, although going short of the place of her Park, p. 510, destination: for the captain of a merchant ship has Smilh V. Head- . . . . shaw, same nothing to do with, nor can he know the instructions P^Garey t)^*'' ^''^"^ *^^ Admiralty to the King's officers. Claggett ; and see Marshall on Insurance, 373, l\Ianning v. Gist, to the same effect. And if the master make every exertion to join convoy, after waiting to take the plaintiff's (the assured's) goods on board, but being unable to come up, proceed without 4 Campb. 54, the convoy, his undertaking to sail under such a protec- Busher. tion wiU have been complied with. And the want of 4 Campb. 107, proper pilots will furnish an excuse. But if the ship be Ruisdaie v. allowed to liave sailed without convoy, the unfavourable Shedden. . '' state of the weather will be no defence, as where a calm 4 Campb. 54, in and a current prevented the ship from overtaking the notis, Sander- i son .. Busher. commodore. And where a captain of a merchant vessel qeglected the commodore's signals, and did not sail for two hours afterwards, whereby she was taken by a privateer, there Park p. 510, beino; a warranty to sail with convoy, the plaintiff was Taylory. Wood- ■ ■, ■ ■ i- ,• ness. nonsuited m an action on his policy. See Abbott on The termination of war having rendered the convoy ^!j'1''of".^!.L acts no lonper necessary, the reader is referred here to ea. p. 234-239; s J' Park, p. 51a- the text books, which contain the decisions upon the 515; Marshall, , . , 366 389. subject. INSURANCE. 113 " Warranted to sail on or before" or *' after" par- ticular days. This warranty is construed with particular strictness. Cowper, 784, So that an embargo which detained the ship beyond the ^°^^ '"' ^^^^' time of sailing, was held to occasion a breach of the warranty. And so it was where a ship was warranted park, p. 485, to sail after the 12th of January, and in point of fact she ^'ezianu.Gnmt. sailed on the 6th of the previous November. Where, however, the ship having every thing ready for her voyage leaves the port of her loading, for ever so short a distance, the warranty is satisfied. As where a vessel sailed on the 26th of July, with all her cargo and clear- ances, from her port at Jamaica to another part of the island for the sake of joining convoy; although she was Cowper, 60!, afterwards detained by an embargo before she had quitted ^" "" ' the island, there was no breach of a warranty to sail on or Theiusso'n v. ' before the 1st of Auoust. And it was considered to make Fergusson; id. no difference that the captain was obliged to go home by Harris ; and see a particular place to take the orders of Government. "^''*^^ cases de- r i termiiiing the same point in Park, p. 494; 11 East, 515, Wright v. Shiffner. A short sail is sufficient. The captain was bound to sail from Demerara on or before the i st of August ; on that day he unmoored, and dropt down the riv^er at 3 BamewaliSc Demerara; the tide, however, being low, he anchored, Cresswcii, 495, iTi 1 11 -11 11 1- Lang V. Ander- and did not cross the shoal till the 3rd : this was held don. a sufficient fulfilment of the wai'ranty. A different construction, however, is given to the word, " depart." The language of the underwriter in that case amounts 3 Maule & Sel- Y ., wyn, 402, by to this : " I will be answerable for all perils upon the Lord Eiienbo- " highseas, but let the vessel be well out of rher port] by '^°'^r''■, „ ^, °,,... •- '^ •' 3 MaiileJc Sel- such a day. And the aistinction between the warranties wvn,46i, Moir " to sail'^ and " to depart" has been fully recognized. cii^u.^A^sur- ance ; 6 Taunton, 241, where the same doctrine was established in the Comiiiou Pleas, in an action u|)On thf same policy. We have seen, notwithstanding, that every thing must be complete for the voyage, so that even upon a warranty I 114 OF SHIPPING : 3 Mattfe & Sel- to Sail, if a shlp di'op down the river with an incomplete dale'^.Vewn-^' ^rew, thus showing, that her preparations for the voyage ham. are not perfect, the warranty will not be complied with. " Warranted a neutral ship, and neutral property." A breach of this warranty will vitiate the contract ab initio, whereas a non-compliance with those already mentioned only avoids it, and the reason is, because an assured must be cognizant of the country to which his 3Bnrrow,i4i9, shin belong-s, and is therefore p;uiltv of falsehood if he Woolmeri). i ,• i • Muitman. asscrt her neutrality contrary to the fact. Douglas, 732, But it is enough that the vessel be neutral at the Eden D. Parki- commencement of the risk, the warranty is, that things son ; 3 1 erm _ ' J ' _ o Rep. 477, Ty- stand SO at the time, not that they shall continue. son V. Gurney, same poui . ,, Warranted an American," " Dane," &c. 8cc. A person who trades in this country, though born in 3;Bosanqnet& America, cannot warrant his property to be American, Pnlier,207, »" and where a plaintiff did so, he was nonsuited in an action notis, labbs v. . . -"^ Bejidelack. on his policy. And where a ship is warranted as of any particular country, she ought to be entitled to all the 7o,/™ichT privileges of the flag of that country, and it is not suf- Parker. ficient that she fulfil the literal description in the policy. Sentences of The sentences of foreign Courts of Admiralty are con- upon this sub- clusive evidence of neutrality, or of a want of compliance ject decisive. with a warranty of this kind, provided such courts be 2 Shower, 232. 1 , ^-i. - j Hughes V. Cor- «uly constituted. nelius ; 3 Bosanquet & Puller, 201, Baring v. Clagett ; 5 East, 398, Baring!). Christie. Thus where a ship was warranted Dutch, but was Park, p. 526, condemned on the special ground of her not being Dutch, LewTs. ^ ^ this sentence was deemed to be conclusive against the Park. p. 528, insured. Wo^odmar- 7 So where a vessel, warranted neutral, was condemned Term Hep. 681, generally "as good and lawful prize," the Court held lar'; and see this Sentence conclusive evidence of the falsehood of the Bell V. Cars- plaintiff's Warranty. So where a French Court con- lair», 14 East, » J 374' IN^SURANCE. 115 demned a ship on the ground of an infraction of treaty for not being properly documented, the sentence M'as jv, Pq^'i E ' held binding. Assurance; see Park, 544, Kindersley v. Chase; 3 Bosanquet & Puller, 499, Lothian v. Henderson; 5 East, 155, Bolton V. Gladstone. And thus't was again, where the master and crew had forcibly rescued their ship, which had been carried into the port of a belligerent power for the purpose of Lo "^Ganers v search. Kensington. But in order to establish the infallibility of this sen- tence, it is necessary, first, that the Court have sufficient jurisdiction. For where the French Consul at Bergen in Norway, 8 Term Hep. a neutral state, condemned a British ship there, such a ^ ^' jf^^*^'"?'^ sentence was deemed clearly illegal, and the assured. And see i Ro- who had repurchased his ship at a public auction at b'"son, 135, ■r, 11 1 n 1 ■ 1 TheFladOyea. rSergen, could not recover the amount or his repurchase against the underwriters. But where the vessel is 2 East, 473, carried into the port of a belligerent power, an ally, the ^ddy vBovill. condemnation is valid. That, however, is not such a belligerent [)ower, if the forms of a neutral government 1 Campb. 429, be preserved in the country, though the belhgerent Thompsou.''* may have so large a force there as to overawe the authorities. Secondly, it is requisite that the condemnation should proceed upon the particular ground of a breach of neu- trality. As where a sentence was promulged, upon which it was exceedingly difficult, by reason of its obscurity, to discover the cause of the confiscation, the plaintiff was suffered to recover, though Lord Mansfield was inclined to think that the ship had been condemned as enemy's property, and he said, that if the foreign courts would insert words to that effect, all doubt would Douglas, 575, be removed. Bemardi v.Mol- And although a vessel was condemned as belonging to the enemies of the French Republic, yet as she was I 2 teux. ii6 OF shipping: 8 Temp. Rep. not warranted to lielong; to any particular country, the iq-2, Christie v. , . i i , ,• i i i i i • Secretan. Underwriters were held liable ; and, there being no war- 7 East, 367, ranty, it makes no difference that she has not got the Dawson v. i ^11,-. Atty. proper documents on boQ.rd(q). Still less will the sentence be conclusive, if it do not proceed on the ground of neutrality, but of the breach P'lrk. p- 53>. of some partial ordinance. As where a vessel, warranted tert^"^ * ^ ' Portuguese, was condemned for having an English supercargo on board ; where a ship, warranted a Dane, 8 Term Rep. ^y^s condemned for having a chief officer, being an Bell. enemy, on board, the captain being a Scotchman ; where 1 East, 663, there was a condemnation for the breach of certain French Price V. Bdl. ordinances : in all these cases the assured recovered. And it makes no difference that damages and costs have been refused, because a French ordinance has not been observed, there being, in fact, no condemnation ; for, said Mansfield, C. J. : "I see no reason for extending ^J^^T.5:?P* " the doctrine of the conclusiveness of the sentences of 404, aiti Ken v. i>ee. "f courts of admiralty." 1 Campb. 418' Further, a foreign sentence will not be conclusive loierv. gw. ^j^iggg ^^ directly and specifically adjudicate ; matters to 523, Calvert v. be gathered by inference, and an intention to condemn i5oviii ; Park, p. foy breach of warranty, cannot be suffered to operate in 550, Saioucci V. . / ' Johnson ; (but the abscncc of a distinct statement, one of the points in this last case, that a neutral ship cannot be stopped to be searched has been overturned by Garrels 1;. Kensington» 8 Term Rep. 230 ;) 5 Robinson, 365, 1 he Maria. " Warranted well this day of , 8cc/' Warranty ge- The ship was well at six in the morning, but was lost rierally. (q) A ship having leave to carry simulated papers, and in- curring a condemnation on that account, is within the protec- tion of a policy. But, if she have not leave, the condemna- tion will not affect the assurer, who is discharged. 15 East* 364, Bell V. Bromfiekl; Id. 46, Homeyer v- Lushington, with leave ; and Id. 70, Osxcell v. Vigne, without leave. INSURANCE. lly tit eig;ht, between one and three in the afternoon the policy 3 Term Rep. was executed : the ship was " warranted well, Dec. 0, 3^°' ^'"<;^'>""'^ " 1784;" the Court considered that the warranty was satisfied if the ship were w^ell at any time on that day, and the nonsuit was set aside. It has been said, that the warranty must be literally complied with ; and, in ByLordMans- conformity with this rule, if a man warrants that a ship ' '^^tson' shall depart with twelve guns, and it departs with ten Cowper, 790 ; only, it is contrary to the condition of the policy(,-). cimp. L To make the written instructions valid and binding, Douglas, n, they must be inserted in the policy. It has been Beauo.Stupart. decided, that a warranty on the margin of the instrii- Kenvon v. Ber- raent is of as much force as if written in the body. ''i°" > ^ Term. But a written paper folded up in the policy will not Hahiiy. Hartley, create a warranty, nor a slip of paper wafered to it, nor Douglas, 13, in a paper detached from the policy ; these memorandums ^"BaVncvek'^ are only held in the light of representations, which, unless j^id Bize v. made fraudulently, or false in a material point, will not Fletcher; Cow- vitiate the policy. ^„,^ ^ Watson. *' Beginning the adventure upon the said goods " and merchandizes from the loading thereof aboard " the said ship at the port of," See. This description of the commencement of the risk -; Duration of is construed so as to accord, if possible, with the inten- ^'"y^ge. tions of the parties. But the chance which the under- writer has elected to abide by, will not be enlarged by the Courts where the policy is explicit. As where the risk was to commence from the loading of the goods ** on the coast of Brazil," but, in effect, the cargo was taken in at the Cape of Good Hope; in this case the 4 East, 130, adventure could only attach after a loading of goods on IveS"^" ' " (r) With respect to the warranty against capture or confis- cation, see Park p. 86, where the authorities on the subject may be found. 1 3 Ii8 of SHIPPING : 15 East, 46, the coast of Brazil. So, where the place of loading was Lush'ilgton. to be at Gottenburgh, goods put on board previously in London were not protected by the policy. Spitta"i!.' Wood- ^^^ where the voyage was mentioned in the policy man. gemrallij, the Court entertained the same opinion, there Langhoni'i;. ' being no evidence to warraiit a different construction. Handy; 2Made g^^ where the description of the voyage was "from & Selwyn, 106, -^ 1 , 1 1 • 1 Hellish V. All- " LandscronatoWolgast, and the goods though shipped ""^^* at Gottenburgh had been partly taken out at Landscrona^ landed on the quay, and replaced in the ship, and the custom-house officers adjusted the duties there; it was held, that the whole cargo had been virtually reloaded NomfenVReid ^^ Landscrona, and that it was to be considered as the See also aMaule loading port according to the policy, and on account of & Sciwyn, 172, ^i^jg reloadino; it was that the distinction between Spitta boehm V. ^ . . * Combe. and Woodman and the case m question arose. And where a policy, declared to be in continuation of former policies, stated the voyage to be at and from Gottenburgh to any port or ports in the Baltic, but the goods were in fact loaded in Virginia; yet as one of these former policies had the words "at and from " Virg-inia," and that before the Court contained the 16 East, 240, statement of continuation, even although the defendanty Be.i V. Hobson ^j^^ underwriter, was not one of those who subscribed the former policies, the plaintiff was permitted to recover^ So again, wh«re the assured had carefully inserted the word " wheresoever," after " on board the said ship ;"" Lord Ellenborough said, that they had industriously laboured to withdraw themselves from the possibility of any cavil arising out of the construction or miscon- 1 Mauie & Sel- structioii of former cases, and that the words wer^ Ttone t! Clay. ' Hiost effectual for attaining the desired object-, INSURANCE. lig *^ And so shall continue and endure," &.C. " And further, until the said ship, &c. shall be *' arrived at , upon the said ship, Sic. until she " hath moored at anchor twenty-four hours in good " safety, and upon the goods and merchandizes " until the same be there discharged and safely " landed." It is sometimes necessary to show when the home- Ward risk commences, and in order to do that, the deter- mination of the outward risk must be fixed. Unless otherwise provided for, it seems, that after a ship, has been moored for twenty-four hours in her first port, the risk will determine. And thus in the case of a Vessel i Sir William insured from London to Jamaica generally, a special Rep. IiT, Cam- jury decided, that the outward risk ended as soon as the <^en ^' Cowley, ship had moored in any part of the island, and that it did not continue unto the last port of her delivery ; althoughj with respect to goods, the risk survives upon B-^Jrass' Lou- them until they are safely landed. don Assurance. And the safety of the vessel is a question of fact, has she been for twenty-four hours moored in good safety ? 1?herefore where, after that time, a ship was seized for an act of barratry by the master in smuggling some brandy, the Court held the underwriters discharged, for. Were it otherwise, the insurer's accounts would never be i Term Kep. settled, nor could he be finally discharged while the ship o^ey."*^ "^^ "* Was in existence ; and some reasonable limitation in Sending home point of time must be laid down to prevent the confusion doernof m°ai^ which must arise if the law were unsettled in that end to the ad- tespects But the words " good safety," must be at- t^^^ g^ niiiiips" tended to ; they mean the opportunity of unloading and ^- Champion, discharging the cargx) ; and so, where a ship was arrested for the purpose of performing quarantine, although moored for several days, yet being thus detained* the 120 or SHIPPING : a Strange, 1243, insurer vvas held liable for an accident bv fire which Waplesv.Eames. i , i i "' destroyed her. Peakc's Cases, ^jj^j ^}jyg j{- jg ao'ain, in cases of embargo, detention, 277, Mineit V. . ° " ' Anderson; and condemnation. Hmnevl'rl^' Where a ship had been for some days at a wharf, with Lushiiigton. her sails mibent, topmasts struck, three anchors Out, and lashed to another ship, but outside the tier, there not being room for her in the inside, and she was then forced Park, p. 55, adrift and lost ; Lord Kenyon held this a sufficient Angersfeiii v. mooring;, and nonsuited the plaintiff, the assured. Bell. o ' . ' The goods, however, must be discharged and safely landed. And in this respect, as we have just seen, a policy upon the cargo differs from that upon the ship ; but where a vessel was moored at anchor for the pur- pose of unloading, and where the only reason for the final disposition of the freight was the intervention of Leigli V. Ma- a nevv agreement, the underwriters were held dis- ther, Fiirk, p. 64. charged. Nevertheless, whether the insurance be on ship or freight, usage is always respected ; and so where the policy was on goods from St. Petersburg to London till they should be discharged and safely landed, and the property, having arrived safely in the Thames, was da- 2 Bosaiiquet & maged in the lighter, that being the customary mode of Puller, 430, landino- the soods, the underwriters were considered to Hurry i;. Koyal 00' Ex. Assurance, be liable. Again, the same doctrine was held where 1 Burrovv, 348, goods were put into a storeship, and lost, that being Etherlng^on. ^ manner of unloading and re-shipping, and it was not cited there. ^ supension of the policy. And so it was where the ship's Id. 341, Pelly tackle, being put into a warehouse, was inevitably burnt. Assurance ■' that act of depositing the sails, &c. being done in the Douglas, 510, usual course; and the insurer must be taken to be cog- Noble Ken- . , r .1 noway: iCanip. nizaiit ot the usagc. 505, n. Ouffier U.Jennings: and see 1 Campb. 503, Vallance v. Dewar ; Id. 5o5, n. King«ton r. Knibbs. But if, notwithstanding the usage, the owner choose INSURANCE. 121 to bring down his own lighter for the reception of the goods, or if he tell a public lighterman that he will see a Strange, to the landing of the goods himself, he takes the com- 1236, S(.arro%T OS V. Caruthers ; plete control over them, and renounces the benefit under 1 New Rep. .1 1- i6t Strong v. the policy. Natally. Mr. Justice Buller had taken this distinction between ^ Bosanquet & public and private lighters in a case which came before Puller, 432, n. 1 . 1 1 • 1 • • 1 1 1 • 1 • Rucker v. Lon- mm, and his decision had been acquiesced in. don Assurance. " And it shall be lawful for the said ship, &c. in 8. Deviation. " this voyage, to proceed and sail to, and touch and " stay at any ports and places whatsoever, Sec. " without prejudice to this insurance." The question of deviation, upon which so many points have arisen, comes naturally before us under the above clause, and as a general principle, it may be observed that policies are very strictly adhered to in this respect. For the altering, even in a very slight degree, the nature of the voyage is in effect creating a different contract, and the underwriter may answer with justice, non luce in fadera veni. Calling at a place to procure a Mediterranean pass, putting into a port which the ship must of necessity pass by, and although no damage ensue, neglecting to a^q^aIx' I\unr discharge a cargo at a port according to the terms of the the authorities. policy, are acts of deviation. Ports must be touched at in the order they are mentioned in the policy, and ^ ''''"'r ^^^^' •^ , ^ . 531. Beiitsoii V. although there be a liberty to touch at certain places Jiaivonh. generally, such permission must be consistent with the termini of the voyage. Leave to touch " at any port in •' Portugal," " to call at all or any of the \¥est India " islands," " to trade at all ports, &c. in the voyage," ^"''^ P-'^'' 444- must be so restrained as not to imply a licence for ^ ^ t- . r J See 16 East, deviating from the track pointed out by the policy, the 312, Mcllisii v. object being only to protect deviations in the course of ^ Mln"e'&: Stl- tlie voyage insured, "i ". -^7- If2'2 Oj SHiPPiNOJ 4 Barnewall & Aldcrson.ya, Hammond r. Reid ; 5 Barnewall & Alderson, 45, Solly J). Whitmore 6 East, 45, Lawrence v. Sydebotliam.- As where a vessel, licensed " to call at all or any of " the windward or leeward islands on her passage to " New York/' went to St. Bartholomew and St. Thomas^, for a purpose wholly unconnected with the voyage in question, it was held that the policy was thereby vitiated* 5 Barnewall & The calling must be for some purpose connected with Cress well, a 10, ^\^q adventure, as the takino- on board part of the BoUomley Vi ' o r Boviii. cargo, &c. 4TauMton, 51 1, Langhorn I'. Allnult. 3 Taunton, 419, Violett V. AUnutt; 5 Maule & Selwyn, 6, Barclays. Stirling. If a ship carry letters of marque, she may chase an enemy, but she is neither at liberty to cruise nor to con- voy. Thus, under a liberty to " chase> capture, and " man," the slackening sail for the purpose of convoying a prize was adjudged to vacate the policy, for the licence could not be extended beyond such acts as were neces- sary towards the performance of the capture. And if the captor remain in port until the prize have received sufficient repair, the underwriters will be discharged, for the voyage might never terminate under such circum- stances. Cruizing also will vitiate the policy ; and where a vessel lay by nine days oft' a port waiting for a prize, when she ought to have been completing her cargo, she was held to have, deviated, although, being on a fishing voyage, she was within the limits of her fishing ground, and although she had liberty to chase, capture, and man prizes. And even where there is a liberty of cruizing, as " to " cruize six weeks, and then proceed to Antigua :" the six weeks must be taken together, and not at so many different cruizes. Again, if parties on a trading voyage do not use rea- sonable expedition, a deviation will be the result; as where a ship staid some months beyond the usual stay of ships in her trade 5 and the reasonableness of the delay is a question for the jury. And even if the underwriter be cognizant of the breach 1 Campb. 263, Jarratt v. Ward. 6 East, 202, Parr vs Ander- son. 2 Taunton, 428, Hibbert V. Hdl- lidaj. t)ouglas, 527, S;^er8 v. Bridge. Park, p. 468, Hartley v. Bug- gin ; See Id. p. 470. INSURANCE. 1^3 of Contract, yet both parties are bound by the descrip- tion of the voyage they have insured, and a previous deviation will be fatal, for the adventure will have erred 5 Taunton, 46a, . Redman r. Low* from the statement m the policy (s), don. However, the courts will assist the plaintiff in a policy of insurance whei'e they are able consistently to do so^ and the following cases will prove that there is a limit to the strictness of construction in favour of the under- 1 laimion, 450, IJrqunart, D. writer. General liberty was given to touch at a port, Barnard ; the contract not mentioning for what purpose, and the Cormackv!^^' leave was construed to be for the purpose of trade, and Gladstone ; it was held, that the taking in merchandize within a LarodieV reasonable time was no deviation. If the contract per- Oswin; 4Moore, r T 150, Aiiuet V. mit the assured to call at any port or ports for the pur- innes. pose of procurino; a caro-o, he may s:o out of the direct 5 Taunton, 480, V , 1 ,• IP n/r Lambert v. Lid- course ot the voyage, and so a policy at and from Mar- dard. tinique mid all or any of the West India islands warrants 4 Taunton, 229, a course from Martinique out of the direct homeward deison- see" vovage. So where the policy enabled the captain to 3 East, 572, 1 11 p 1 i-.r T T • 1 1 T • Marsden ('. touch at all or any 01 the West India islands, Jamaica }^eid ; 2 New included, it was adiudeed, that the voyao;e need not be ^fP- 't?'^^^!''^' ' J b ' Jo villeuSt.Barbe. in the direct course, and that the contract obviously Contemplated, that the islands might be taken out of 4 Campb. 123, ^, . 1-11 Metcalfe v. their geographical order. Parrv. It is clear that business connected with the voyage will protect the assured from the charge of deviation, though if there be any delay in delivering the cargo, the 3 Campb. 437, Underwriter may be excused. But where due diligence ° ' is used, and the captain is acting in the fulfilment of his ^ Bamewall & duty, as in delivering his freight, such a proceeding is Cicsswcll, 538, BO interwoven with the voyage as to continue the under- Miller. Writer's liability. If the assured take out a letter of marque for the pur- (.9) See also on tliis subject of Deviation, 1 Bligh, 87, Taskcr v. Cuii/iiiis^icmc. 7 24 O F S H I P P I N G : pose of inducing seamen to enter, and without any inten- tion of cruizins, though without the knovvledoe of the Park n. 4'"! o' o & Moss r. B/ro'm. Underwriter, the poHcy will not thereby be avoided. The cases above cited are those in vv'hich the act itself complained of by the underwriter was no act of deviation; we will proceed to cite authorities where the deviation has been holden justifiable or excusable. A ship went into a port for the purpose of taking in a stock of provisions she could not obtain elsewhere, and although she took in some bullion there also on freight, the policy was held unimpeached, it appearing, that the kaine i). Bell, ncwly received freight had not occasioned any delay. 2 Strange, 1264, Force will Operate as an excuse. As where the crew den"." ^' ' °' obliged the master to go out of his voyage, or where the I New Rep. merchant vessel is carried out of her course by a King's 181, Scott V. gliip althouph she be afterwards released, for this devia- Ihoiiipson ; . ' . " I I East, 205, tion is caused by force, and so by necessity, for neces- Forster i'. Chris- • . • p tie • see 1 ^ity IS forcC. Bosanquet & Puller, aoo, Driscol v. Fassmore. 1 Atkins, 545, Want of reparation is a justifiable deviation, since it Motteux v.Lon- .[,,,„„,, don Assurance ; IS lor the benefit of the underwriters as well as the rark, |). 454, assured that the ship should be taken care of. (jmbert v. r Keadsha-v. Stress of v/eather will justify the departure of a ship Park, p. 455, from her regular course. As where a vessel was sepa- n^ik'if"'"* i'^^^<^ from her convoy by a storm, and in endeavouring to reach her port of destination was taken, the plaintiff had a verdict upon his policy. So where a ship put into 1 Price, 195, pQj,^ from stress of weather, and was scon afterwards 1 nomas j'.Royal ' i i • • /r- Ex. Assurance, burnt by accident, the plamtuT recovered. For the act of God shall not prejudice any man, and so where a ship was driven out of her port, and obliged J Term Rep. to make another, where she completed her lading, it was Stoddart!'^ ^' held, that she need not have returned back to the point whence she was driven, but that her endeavour to reach the end of tlie voyage was right, and no deviation. And so it is where a ship endeavours to meet with convoy. INSURANCE. 125 there being no other motive than to come the safest way Park, p. 463, home. " A vessel when insured may always do whatever chlnPeiGibbt " it would be expedient to do if uninsured." But the C.J. HoU's 1 • rv • ' 11 I ^ Cases, 186. ship ought to be ni an efficient state, and there must be good proof given of the necessity for deviation ; for where a ship put into Plymouth on the ground of the officers being ill, and the defence was deviation, but the plain- tiff" called no medical men to show the sickness of the captain and mate, and it appeared, besides, that there • . f. T • 1 3 Espinasse, had been no proper provision ot medicines and necessa- 057, Wooif v. ries — Lord Eldon directed a nonsuit. And upon the Ciuggeit. ship being compelled to change her track from neces- sity, it becomes incumbent on the master to sail straight for the port of her destination, for if there be any delay or lingering, the underwriters, notwithstanding the ori- ginal change of voyage from necessity, will yet be dis- LaTfilr^'j,^ yvji. charged. son. If a deviation may be justified by the usage of trade, it should be remembered, that an established custom will alone furnish the excuse; a few instances, for example, of Liverpool ships puttino; into the Isle of Man will not ^ I. A- ■ i- T- 1 Park, p. 464. warrant such a proceedmg m a voyage rrom Liverpool Salisbury v. to Jamaica. Townson. A mere intention to deviate will not destroy the 2Strange,i249, policy if the accident happen before the ship reaches her mer; Douglas, dividing point, but this position may be qualified by the ^ Fercusso""" circumstance, that the insurer never intended originally to sail upon the vovaoe proposed. If it appears that the Douglas, 16, „\ . . -^ .° ^. \.^ „ , . , , Wool d rid ge r. port of destination is quite different from that intended, Boydeil;" the underwriter will not be liable thouoh the ship be lost ^ ' ^'■'" ^^ • before she attain the dividing point. Though, again, if Modioli., i. the termini of the voyage be the same, though the ship 2 Henry Biuck- be designed to deviate, the assured may still recover. Kewieyt'^Uyan- 1 Maule &; Selwyn, 46, Heselton v. AUuutt ; 7 Bariiewall &;Crebsweli, 14, Hase v. Travis. A ship insured from London to Jamaica sailed to 7 Term Rep. St. Domingo contrary to the policy ; previous to her J^^o/,^"p^|I,'jj,,, 126 OF SHIPPING : arriving there she passed a point whence there are three tracks to Jamaica, and the captain was to use his judg- ment respecting them ; but he took that which lay most convenient for St. Domingo, and was captured before he had actually turned out of the course to Jamaica, but after he had passed the subdividing point of the three tracks ; held that the underwriters were discharged, be- cause they expected that the captain would have used his discretion as to the voyage, wherein, in fact, his orders to make St. Domingo prevented him from exer- cising any judgment upon the subject. 2 Lord Ray- However, for any accident happening previous to the mond, 840, deviation, the assured may certainly recover, and it has Oreen I), loung, ' J J > been so determined. It may be remarked, that an insurance on freight may be made for a part of a voyage, though the ulti- 15 East, 324, mate destination of the ship be not communicated to the Taylor v. Wil- j •, ^„n underwriters. son. g. Value. " The said ship, &c. goods and merchandizes, &c. " for so much as concerns the assured by agree- " ment, &c. are and shall be valued at £. ." ^ In the case of a valued policy, the plaintiff need only 2 Burrow, 11 67, . 1 i i 1 •n • i Lewis y.Rucker. provc some interest, although he will not be permitted by having an interest to a cable's amount to insure for 2Burrow,ii7i, a large sum of money, such an act being an evasion of fieid^'"^ ^^'*"'" the statute against wagering. See the cases in PoHcies have been held good upon " commissions," Park, p. 403- « profits to arise, and be made, from the sale and dis- *' posal of the said cargo of goods," "profits;" on " prizes" (0» upon "profits valued at 1,000/. with- " out any other voucher than the policy." But, as we {t) Upon the expectation that the Crown would give up a prize, according to usage, a good interest. loVes, jun. 157, Nicol V. Goodall. 411 INSURANCE. 127 have seen in a former page, there may not be an in- surance upon " commissions expected to arise," &c. for that would be to insure an expectation of an expec- p^^j.^ tation. Kn'ix V. Wood. Again, where the valuation was left blank, but the Douglas, 315, defendant had suffered judgment by default, the policy Fletcher. being on a foreign ship, the plaintiff was suffered to recover under the writ of inquiry without giving any evidence of interest. And this doctrine of restraining the enactments of the 1 • 11 • TT HIT • 8 Term Ren. wagermg statute to ships beionguig to liis Majesty was 13, Craufurdt;. recognized in a subsequent case. Hunter. A policy upon condition of a certain act not happening is good. As where underwriters agreed to pay a total loss in case a ship should not be allowed by the Russian government to discharge her cargo at St. Petersburg ; here the ao-reement showed on its face that the non- admission of the goods would be a loss, and the Court 12 East, 124, held it not to be a gaming policy, and not upon the " ery. jover. mere voyage, but, in fact, upon the goods. Certainly, where there is no interest at all, the policy is not to be sustained. The plaintiff paid the defendant 20/. in consideration that if the ship saved her passage to China that season, he should receive i ,000 /. ^ al- Cowpcr, 583, 1-/V11 1 1 11- Kent V. liird ; though the plamtiii had some goods on board this was Same point, held to be wasrerins:, and Lord Mansfield's doctrine in Doug'^*' 468, » ^ . Lovvry v. liouf- Letvis V. Rticker, before referred to, was established, dice.' And where the insurance is on the ship's arrival, and the 1 Term Rep. policy is on the goods, it is void for wagering. v'i^nc.'^'"^ *'' The statute mentioned was passed to prevent insu- rances upon " interest or no interest," there being doubts whether such contracts were absolutely void, although ^ „ , several cases had been determined against their validity. 394-396. The first section prohibit.^ the insuring " interest or 19UC0. a,c. 37. " no interest, or without further proof of interest than the 128 OF SHIPMNG Sect. 3. 1 Bosanqiiet & Puller, 315, Hill 1!. Secrelan, Id. 316, Woltf V. Horncastlc. 2 Maule & Sel. 485, Hagedorn t). Oliverson ; and see 13 East, 274, Routli V. Tliuiiipsoii ; 1 Taunton, 325, Luctna v. Crau- lurd. " policy, or by way of gaming, or wagering, or without " benefit of salvage to the insurer." The second section excludes privateers cruising against the King's enemies from the enactment. *' Provided also, that any merchandizes or effects from " any ports or places in Europe or America, in the pos- " session of the Crowns of Spain or Portugal, may be " assured in such way and manner as if this Act had " not been made." All exports from Spain and Portugal being necessarily made in the names of the subjects of those countries agreeably to their laws, it followed that the goods which the subjects of this and other countries exported from Spain and Portugal could not be insured without this exception. The act of a third person may create a good insurance, if the assured afterwards assent to it. The plaintiffs in the case now mentioned were creditors of a house in Spain, which house consigned some goods to other persons, with a bill of lading, and directed them to hold a part of the cargo for the plaintiff; it was held, that a good insurable interest had accrued, although no orders had been given by the plaintiff for these goods. So where an insurance had been made for the benefit of an alien enemy who adopted it two years afterwards, the underwriter was considered liable, for the party had a right to effect the insurance on the chance of its being adopted. igGeo.a, c, 37, s. 4. _ Re-assurancc and duiible Inmrance. Re-assurance, a contract which an underwriter formerly made with others of his own business, in order to throw the risk upon them which he was fearful himself of abiding, is now prohibited by an Act of Parliament, "unless the as- " surer should be insolvent, become a bankrupt, or die." INSURANCE. 129 It was contended, that the ships of foreigners were not Included within this restriction, probably because they were considered in that lio-ht in the discussions upon the ^J^'""'" ^;^P- * . . ' , 101, Andree v. clauses against wagering. But as his Majesty's ships Fletcher. nre expressly mentioned in those sections against gaming policies, and the forbidding of re-asurance is general, the Court soon resolved it as clear, that the Act extended to foreign shipping. Lord Chief Justice Mansfield seemed to be of opinion that although tlie statute was intended to prevent gambling, a new assu- rance at a higher premium v.ould not be a re-assurance, but it was not necessary to decide the point. 1 Taunion, 51, A double insurance is where the assured endeavours to secure twice the sum upon the same goods or ship. In this case the policy is not, as in the first case, viti- ated, but the assured shall only recover the single sum. The defendant in such an action may recover a rateable sum from the other underwriters if he think fit. SeePark,423-4. However, several interests may exist upon the same Park, p. 425. o-oods, as the master's in respect of his wacres, the owner's }, Bmrow, 489, y ... Godiii V. Lon- in respect of the subject matter itself, the freighter's; don Assurance. and another person's for bottomry, all which are insurable "^ Vernon, 717, , .,, , 111 Harnian V. Van- interests, and Will not make a double assurance. hatton. For a double assurance is Vv'here the same man is to 1 Burrow, 49G, • - 1 r i.1 i • I^.V Lord i\Ja)iii- receive two sums instead oi one, or the same sum twice fjju . .„ui ^^^ over for the same loss because of his two insurances. Warsiiail, 139- 1 4^). "Touching the perils and adventures which we the 10. Losses. " assurers are contented to bear, and do take upon us in " this voyage, — they are of the " Seas," This insurance is against the immediate peril, and not Lq' jone^r' anv remote consequence. A vessel is wrecked, and i)art Scinuoli, cited; of the cargo plundered by the inhabitants of a strange wyn,^43i, coast, this is a loss by perils of the seas ^. Powell v. Gudacoii. ^ Holt's Cases, 149, Bondrett i'. llcniigg. K 130 OF SHIPPING : So it was where seamen were pressed away "from the ship, which in consequence went on shore, and grounded, 2 New Rep. j^y ^he opinion of three judges against Lord Chief Jus- 336 .Hodgson tv / ^. ^ ^ ., -^ "^ * Malcolm. tice Mansneld. If a ship run down another, though it be by gross neg- 4 Taunton, 126, ligence of those on board, it is such a peril, for the sea Smith V. cott, j^gg ^j^g mischief. So where the timbers shrunk, and Eiinslie°"wi"idr ^^^^ seams opened by reason of the heat, whereby the ma"- cargo was damaged. So where a merchant sliip, takea Ha^edorn w ^"' ^^^ ^^^ '^y ^ ^^^^^ ^^ ^^^'' ^'^^ cxposcd to a tempestiious Whitmoie. sea. So where some animals were killed by the agita- tion of the waves, having received such injuries as to ilderswr^io? occasion their death afterwards, although the policy Lawrence v. run, " warranted free from mortality," for it was a peril of the sea. So where a sloop ran on shore, and was beaten to pieces through the carelessness of the watch- Id. 171, Walker ^^ duty, the same doctrine obtained, for here was an* V. ivialtiand, immediate destruction. Sa where horses broke down their partitions and bruised each other sa severely in a storm, that they 3 Barnewall & died, and both in this case, and that of Lawrence and Gabay v. Uoyd. Aberdcin above, an usage at Lloyds for the under- writers not to pay where the cattle were warranted free;- ' from mortality and jettison, and the vessel arrived safe,, was held not valid against the general law. So where 2 Barnewall & a ship went into a dry harbour, the bed of which wa^ Fietcher''i;.'^IifK- ^^T ^^^^ uneven, and on the tide leaving her, she took lis. the ground. So where a ship was disabled within a short distance of the port of her destination, and ren- dered wholly unnavigable; and while in that condition Hahnr.Co'r- ^' "^^^ Seized by the Spanish Government, and the goods bctt. on board confiscated. But if the vessel be driven on an Peake's Cases, enemy's coast undamuEed, and be there captured, it is Ehn'slle. * clearly a difterent kind of loss. So where a vessel broke 12 East, 648, loose in the night, and having sustained some damage Livie V. Jan-son. ^^^^ ^^^ ^g.^ ^^^ detained by the American Government INSURANCE. 131 for breakirio- ail embargo, for the proximate cause was capture. Loss by worms eating the bottom of the vessel has 1 Espinasse, been deemed not to be a loss by perils of the sea, and this Pam was decided by a jury upon the usage. Nor a similar .Campb 101, injury done by rats. Hunter d. Potts. See Park, p. 103, Gregson d. Gil- '' bert ; 6 Term Rep. 656, 1 alliam v. Hodgson. And if a ship be hove down on a beach within reach 3 Taunton, 227, of the tide and there be bilged, it is a peril on land, and w'hUmo"".''* not of the sea. If a ship has not been heard of for a considerable time, it may fairly be presumed that she has been cast away. The evidence was that the ship sailed out of GreeiT/lJrown' port, and had never since been heard of, and the plaintiff P'l'"'^' 106, recovered. You need not show that she never arrived ^ c^mnb s-^ at her port of destination. And the presumption upon Twemlow r. this subject will be poverned by the Court and jury. , 'r!"' *' . . . '' -^ In Hoiistnian v. Proof was given that the ship never arrived at her port Tiiornton, b^r .of destination, and that a report prevailed at the place Hoit^s'cases' whence she sailed, that she had foundered at sea ; but 243. none of the crew were called, nor did the plaintiff show 6Baraewali& i^ Cressweil, 19, that he could not procure their attendance : the evidence Koster v. Reed, was held sufficient. But you must prove that the ship did ?,^^'"!''^;, ^'', '' '^ . r Cohen v. Hinck- actually set sail upon her voyage, or that a licence has ley. been obtained, and a convoy bond will be sufficient Id. 70, ivrarshall prima Jacie evidence that the voyage has been com^ Id. 51. menced. But if the crew have been heard of, it is a question whether the presumption can continue, and at „ . . . R\'an & all events some direct testimony of the prosecution of Moody, 333, the voyage must be given. I^ostcr v. innes. The captain of a mer^chant vessel being chased by a French privateer, and finding that he could not escape, set her on fire; Lord EUenborouoh held the assured » Campb. 123, . , , r r- • Ti 1 j> Gonlon V. Riin- eatitled to recover, tor " nre is still the causa causans, mington. K 2 132 OF SHTPriNG : •2 Bainewall & said the learned judge. So when by the negUgence of BuskT"lloval t^^ master and mariners a fire happened, the insurers Ex. Assurance, were held liable, for the loss was occasioned by fire. If, however, the goods catch fire on board, as where it was said that some hemp effervesced, the underwriters would not be liable, for it would be a loss created by the assured himself. However, in such a case, tne assured were considered not to have been bound to a disclosure that the hemp was damaged, and as no proof appeared that the mischief happened as stated, the plaintiff has a verdict. 3 Campb 133, Jjo^d V. Dubois By Lord Mans- field in Goss V. Witliers, 2 Burrow, 694. 1 Sir William Blackstoue Bep. 313, Bcreus v. Ruc- ker. 3 Term. Rfp. 479- See Park, p. 111. Tark, p. 113- 122. " Enemies." " The ship is lost by the capture, though she be never " condemned at all, nor carried into any port or fleet of " the enemy ; and the insurer must pay the value." An insurance being a contract of indemnity, the insurer becomes entitled to stand in the situation of the assured, and on a recapture or recovery of the ship, after paying the expenses, may have the vessel ; and if the owner recover his property, the insurer is liable to pay the salvage. He is also compellable to pay a sum expended by way of compromise to prevent a capture; but such an act must be done bond Jide, and not in contravention of the statutes against ransom. Any agreement entered into, or contracts executed in defiance of those enact- ments are void, as where a captured vessel was repur- chased by the owner. With respect to the jus posUimijtii, or right of reco- vering the vessel on the owner's part, it is observable, that until condemnation, no change of property takes place, and that by the Salvage Acts, if the prize be not a ship of war, the right to restitution remains in perpetuity. For the cases and decisions upon the devesting of property, the reader may be referred to the writers cited INSURANCE. 133 in the margin ; it being sufficient here to quote the words of Mr. Justice Park, that " whatever rule ought " to be followed in favour of the owner, against a re- " captor or vendee, it can in no way affect the insurance " between the insurer and insured." *' Pirates, Rovers, Thieves." Whether the insurance protects from thieves loithin pg,.]j „„^ the ship is made a question, but the depredations of persons without are expressly guarded against, and so it h-, 1-11 !'•• Harford v. as been decided. Maynuni. If in order to fulfil the instructions of his charter- party, the captain hazard the seizure of his vessel by a foreign state, the insurance is not thereby vacated, and so it was in a case where the Portuguese authorities had 4 Taunton, 856, , 1 • -11 11 Sewell v. Royal sequestered a merchant ship illegally. Ex. Assurauce. " Jettisons." The throwing goods overboard to lighten the vessel is called jettison, and on such an occasion there is a general contribution from the freighters, who on their parts are compensated according to their several pro- portions by their insurers. If a tempest arise in the sea, for salvation of the lives of men it may be lawful for passengers to cast away the merchandizes, &:c. ; and so a casket was cast out of a barge, and the owner was 12 Coke Rep. not allowed to recover damages for the act, though he Ca'se. ""^^^^ might have had contribution. And it makes no difference that the vessel is in the hands of an enemy when the goods are thrown overboard, for there is a hope of reco- vering them, and the property is not devested till con- 4 Taunton, 1 23, demnation. ^'"icu i;. Noble. The place of delivery is ordinarily the place of con- tribution, but if a vessel be compelled to put back into p ,. port for repairs, the business of general a\ erage may Peters v, Milli- certainly be settled there. ^^"' K3 13^- OF SHIPPIMG : The captain of a ship, finding himself about to fall into the hands of the enemy, threw a quantity of dollars into the sea, and it was held to be jettison, being a throwing overboard for a justifiable cause, and if not , strictly jettison, it was within the policy against enemies, Aideison, 398, and all events came under the general words, " all other Butler .. WUd- » j^g^^^ ^^^^ misfortunes/' irian. " Letters of mart and countermart, surprizals^ '•' takings at sea, arrests, distraints, and detain- •' ments of all kings, princes, and people, of what •' nation, condition, or quality soever/' The word " people" means *' the ruling powder of a " country ;" and therefore, where a ship was attacked in a piratical manner in Ireland by people unknown to the plaintiff, it was holden, that they could not recover by stating their complaint to be as of the detainments •veQ^^Nesbitt V, ^f " people/' They should have said that pirates had Lushingtoii. plundered them, without more. The underwriter is liable for every cause of detention, unless there be fraud in the case- But if the insured Park, 126 ; navigate against the latvs of the countries where his ship 2 eiiiun, >7 • jg loading, or do not pay their customs, he cannot be pro- tected. And if the assured be a subject of the land in which an embargo is enforced, he shall not recover, for he is considered a party to the acts of his government; 10 East, 536, and he shall not make his failure to perform the voyage Q^y"**^ ^' a foundation for his action. However, where the King gre^nts his licence specially, the case is different, as in the instance of the native Spaniard domiciled here in 1 .sparicha r.' time of War between Spain and England^ but tradings, fvobie. nevertheless, in a neutral vessel with such licence. And in Comvay v. Gray, Lord Ellenborongh said : " Where " the insured and insurer are subjects of the same state, ' the case will stand upon very different grounds of 10 East, 546. " consideration." INSURANCE. 135 Without deciding how the matter would be, if our ioWn sovereign were to lay an embargo upon ships loading here, the Court have decided, that on a policy " at and " from" a port in a foreign country, not at war with us, an assured may recover for detention by the government of that country, the words not being restrained in their im- port to embargoes by foreign or hostile powers only. ^/^™ .phv' Edie, " Barratry of the Master and Mariners." " Any act of the master or of the mariners, which is *' of a criminal or fraudulent nature, or which is grossly " negligent, tending to their own benefit, to the prejudice Park, p. 138. *' of the owners of the ship, without their consent or pri- " vity, is barratry." A captain deviates for his own convenience to take Cowper, 143, brandy and wine in on his own account, without the pri- wheelcr. vity of his owners, this is barratry. So it is if he be o-uilty of smugshnSj though the in- 3 Term Rep. » . -^ &r> to' to 277, Havelock surance was on the ship engaged in any Imvjul trade. v. Hanciil. So if the captain think proper to cruize for prizes, and 6 Term Rep. he lose his vessel, the same result will ensue. B Tom"** * The master was to make the best purchases he could with all possible dispatch ; he went into an enemy's set- tlement, and traded there without instructions; being captured, the ship was condemned as prize for such trading. It was held, that he had been guilty of barratry, g East, 1-26, although his traffic was principally intended for the ^^^}^ ^'- ^^^''' benefit of his owners. If the mariners occasion the loss of a ship jointly with j Taunton, 227, an enemy, they will have committed an act of barratry, Toulmui r. Au- 1 • -IT- -111 • ilersou. and it was considered immaterial whether strangers in- troduced on board or the Eng;lish sailors first beo-an to mutiny, if in fact the barratrous act were done by the mariners. And it is no matter if the insured cargo become the enemy's property by condemnation, if the 3 T^""!°"' ^"^' P, ."^ . .,.„ Goldschniicji v. barratrous act of the master have occasioned the mischief, whitmore. K 4 136 OF SHIPPING : R Taunton, 684, Again, where a captain remained much lon^^er in port Cordon ; and see thaii vvas ncccssary for the discharge of his cargo, de- 'o^"™ T-''' stroyed the original papers, and changed the ship's des- I^cp- 33, Ross tination, the jury agreed that the delay could not have 2 Carapb' 600 ^"^sn upon any other account than that of barratry. Arcauytlo v. Tliompson ; Holt's Cases, 30, Hucks v. Thornton. But where the plaintiff's agent knew of an intended alteration in the voyage, the master was held acquitted Staiunui y'^ ' ^^' ^^ barratry, having acted consistently with his duty, and Bijwn. the jury in such a case found for the underwriters. I'ark, 141, n. "There must," said Chief Justice Lee, "be seme 6 lamium 375, ,« breach of trust on the master's part, ex ma/eficio." nam. And in order to recover, you must show fraud in the Ryan & master. JMoody, 331, Erudford v. Levy. 2Suanec,ia64, Where sailors compelled the captain to go out of his- Ellon V. Biog- course, it was held no barratry, for there was no fraud u- den. . . -^ . lent running away with the ship, and this decision has ]85, ^ been approved of by Lord Chief Justice Mansfield. 7Tirmllep. The ignoraoce of the master will not constitute this ?f'^' Fl'.'^" V act, because there is no fraudulent purpose of his own. Koyal ha. As- ' . . '^ *^ surancc. And gross negligence and supineness on the part of the 1 C'mnb 4^1 owners, as suffering smuggled goods to be carried on Pipoii f. Coi;e. board, though the ship be barratrously dealt with, will discharge the underwriters. So, where the master 3 Cami)b. 93, Only obeys the orders of the charterer, and engages in li, bi V. ian- ,^^^^ illeoal trade which occasions the condemnation of niUM. -3 his vessel, the insurers will not be liable. A ship went into a port during an embargo, and was ^ -{%,„,,, on, 462, allowed to return, or discharge her cargo. She dis- Sciinidd- V. cliarged it, and stayed there eiphteen months, when '-""""1 *""• 1" t ^ ^ 1-11 1 the embargo ceased, and was lost in her homeward voyage. The underwriters on ship were held liable. ] Tiri.i Rep. It is desirable to attend to the circumstance that bar- liourdieu : ratiy can only be committed against the ship-owner- Cow|nr, 143, You mav insure against barratry, but it must be an act WliLtler. IiNSURANCE. 137 affecting the ship, and moreover it must be without the privity or consent of such owner. If the owner place a Yessel entirely under the freighter's control, and then coming on board wilfully run her on shore with ths 7 Taunton, 627, , 1 , , • T 1 J Soares t). 1 horu- master s concurrence, a barratrous act is accomplished, ^y,,^ q^'j. for he has parted with his interest for a time, and his asreeino- to the fraudulent conduct of the crew does not prevent the act of barratry. A mortgagee of a ship brought an action against insurers for a loss by barratry, and an injunction was moved for in Chancery by the defendant, on the oround I''"'^'. P- "55. 'l "^ . ^. , Levriai). Silassd. that the morto;ae:or still remained the owner, and that he was also the master who had done this act, and the Court granted the prayer. It is also observable, that the consequences of the barratrous act must happen during the voyage insured 5 and where a vessel, therefore, was seized for smuggling » T<ini Rrp. after she had reached her port of destination, the under- ^,. otfiey. writers were discharged. The wilful castinn- away, burnino- or destroyino;: of . „ ., •^ :' ' . » Jo 7 & 8 Geo. 4, ships by the master or mariners, is made felony by the c. 30, s. 9, io» Legislature. " And all other perils, losses and misfor- " tunes," &c. These very general words are sometim?s highly useful to the assured, when he has failed, from some incidental cause, to prove the particular injury he has bad reason to complain of, or has misdescribed it. As where a vessel Park, 105, was fired upon and sunk at sea, this mischief, if not '" '^'"'" "^"'"' a peril of the sea, was deemed to come under the general description above mentioned. So where a ship was placed in a graving dock to be i3arnewi!l Sc rqiaired, and being thrown on her side, she struck the Al(ler>on, 161, ground with great violence, and bdged, although not u'^ ''" "' igS OF SHIPPING : a loss by perils of the sea, still this came within the " words all other perils, losses and misfortunes." Average will be presently considered ; and it seems fit in this place to say something on the subjects of Abandonment and Salvage. Ab.iiKlonmciit. " The word abandonment conveys the idea that the " whole property is not lost ; for it is impossible to cede f ark, 228. " or abandon that which does not exist." 12 East, 491, Where the thing snbsists in specie («), and there borml^'^h ^"'^"" ^^ ^ chance of its recovery, there must be an abandon- 13 East, 304, »^ent ; but if the property be lost wholly to the owner, Mniieiti;. Shed- the necessity for such a course is done away. Never- theless, the general convenience of making an abandon^- ment has led to an opinion that it is more necessary than it really is. Where there is an abandonment, the risk is thrown on the underwriters ; where there is no abandonment the party takes the chance of recovering isEasi, 16, according to his actual loss. It is only necessary to by Lord Liicn- j^jj^j.g ^ constructive total loss. boroiigti. Where a ship was barratrously taken away by her crew, who disposed of the cargo according to their will, 5 Barnewaii & it was held to be a total loss from the time of the spolia- DhonT'ifeid ^'^"^ ^^ *^^® cargo ; and although not strictly a case of abandonment, it applies, inasmuch as such a total loss was incurred as might have been abandonned for. See 3 Atlsins, Jf the Salvage be too high, there may be an abandon- iwtie'' "° ^ " rnent, for the ends of the voyage are then no longer worth pursuing, and if the assured will relinquish the salvage, ^ OtiiTow 68^ ^^® shall not be restrained from proceeding at law. If the (josst). With- ship be captured, the voyage is equally frustrated, and the assured may abandon ; but if she be recaptured, and (ii) If a small portion of sugar remain in .f^fc?V,tli ere will only be an average loss. Holt's Cases, 349, Ihdbcrgh v. Pearson. INSUIIANCE. 139 the assured have notice, the case maybe different; as 2 Bun-ow, ih Haiuiltoii Mendes. where the plaintiff with notice of such recapture had only ^'''""'"^" ^'• suffered a temporary obstruction, and a charge which the underwriter offered to satisfy; here, there could onlv be a recovery for an average loss. So where the plaintiff had actually abandonned, not being aware of the ,0 p^^j gag, recapture, but the underwriters declined to receive his Bainbridge v. notice of abandonment, and the ship, being recaptured, afterwards come home safe, he was not suffered to claim as for a total loss. And it is thus, although the voyage be lost, provided the ship be safely restored to its owner, ^ Taunton, 363, i ' •' i arsons v. Scolt ; 5 Maule 6c Selwyn, 418, Grotherston v. Barber. But if the captain, acting for the best on behalf of his Doucrias, 231, a, employers, sell the ship and cargo on the recapture, and ^^^'"<^* "• the assured then offer to abandon, the whole voyage being- lost, they will be justified in thus demanding as for a total loss. Or if he does so from the shattered state of his ship arisino; from perils of the seas. 3 Broderip& r o I Bingliam, 147, Read ». Bonliain ; 2 Starkie, 571, Robertson ti. Cariithers; 2 Barnewall &: Cresswell, 691, Cambridge v. Andertou; 1 Biiigliani, 445, Robertson V. Clarke ; Kjan & Moody, 182, Tanner v. Bennett. But if he sell part of a cargo, having no other means 5 Maule & Sel- of raisins money, for the purpose of defrayina: the ex^ ^vn, 431, Pow- 7I . , : . -1, ell I'. Gudaeon j penses of repairs, the underwriters will not be liable, 2 Bamewaii & although the vessel have been oblioed to seek a port p*^^*"'*""- 7. ^ o • i " " Sarqiiy v. Hob« through sea-damage ; for the proximate cause of injury son; 4bing- is the master's inability to pay, and not the sea. ''"'"' ^^'* And where there was no abandonment, the assured could not recover for a total loss, when it appeared, that the timbers of the ship still held together, not being ab- Holt's Cases, solutely a wreck. 4^3. Bell v. In an action against underwriters on a freight policy, it appeared, that the vessel was obliged to put into port, that part of the cargo had been so wetted as to be liable to ignition if re-shipped, unless a process took place which would occasion a delay of six weeks; and that 140 OF SHIPPING: the master, acting like a prudent man, sold it, and rd* turned home with the remainder of the goods : the Court held, that the underwriters were not liable with respect to this freight, for that it would be opening a temptation to a captain if he were allov/ed to sail 4 BaniLwall & home instead of stopping till the re-shipment of the Crcssmll, 394, i^ & ' Morodyr Jones. gOOds. There is, therefore, a difference between .cases where the assured abandons instantly upon the capture, and where he waits till his vessel is restored to him. For a partial loss shall not be converted into a total one. 6 Taunton, ijj, A vesscl was seized by a neutral state, but was not con- Wiisouf. Fois- (jgj^^j-,g(j . ij-jQ master repurchased the vessel, and the Isr ; siune cast-, '1 i]\iarsi]ali,425 • assurcd desircd to recover as for a total loss, although 237?i\i'Mu.s(er,s ^^^^Y ^^^^ ^^^^ abandoned ; but they were only allowed r. siiooibied; their average loss. The same doctrine is naturally held 9 East, 283, , 1 • • • , • 1 • ,1 r Barker r. where the injury is sustained in any other way ; tor ex- -^'''^^^- ample, by perils of the seas, there must, at some period 1 Term Rep. or Other, have been a total loss, either by the absolute St.'BarLc! "^ *' abandonment of the property at a time when the owners See Park, 257, have had no dominion over it, or where the thing itself rurncau.x v. jg destroyed. also 2 Mault & Sclw3 11, 240, Anderson v. Wallis ; Id. 278, Everlli r. .Smith The desertion of the crew does not constitute a total 2 Earncwall & ^ofiB, and where a fresh crew brought the vessel into port, z^idtrMHi, 5i3i ^j-jj [^ ^j^g ^q\^^ \^^i ^]^Q assured took no measures for pre- J nornely v, liebson. Venting the sale, it was held that they could not aban- don. And where the crew had run away with the ship> a l\rau!e& Sd- the assured could not abandon after notice of the recap- Vv^'iij 290, l'alk> .' ner v. Ritchie, ture, although the sum represented as needful for repairs M^as very considerable (.r). Should the expense, how- 4 JMaule& Sc!- cver, of restitution be doubtful, and it be probable that ;v.V". 576, a demand of more than the value of the thing restored IM'lvcrt!. Hen- ° erson. (7/) See '2 Dow, 474, Stnifh v. Robertson. TNSURA^"CE. 141 would be made, the assured may clearly abandon, and a proposed return of the ship's hull, after the plunder of all her stores and furniture, can make no difference. And a mere delay in the voyage, and a subsequent 2 Maule & Sel- restoration of the property, will not authorize an aban- deraH!i°\Va"iis. donment : unless the loss has actually been a total loss, ' Till- I^^' !-'"'■'' rMtin- or m the highest degree probable, there is not any case bonmgii, id. nor principle which authorizes an abandonment. ^-^^ ', ^ ^^""'2 t^ y & Selw^'ii, 47, Hunt V. Royal Ex. Assurance ; and see 16 East, 214, Tliouipson v. Royal Ex. Assurauce. Yet in another case where the p;oods were damaoecl, and the destruction of the whole adventure Vv^as from the first peril so obvious that the abandonment was made 5 :\iauie & Sei- on the instant; the Court considered this a total loss, ^^3'".447.Coio- ' _ / gal) V. London and very distinguishable from the other cases. And so it xissurance. is if the voyage be actually not worth pursuing, and it appear that no means of so doing exist ; but where an- other vessel was ready to transport a cargo, after an injury sustained, and the disaster of the first ship, the 2 Cani;)b. ^23, demand for a total loss ceased to be sustainable. Wilson r. Royal Ex. Assurance. ■ Indigo insured at the loading- port was damaged by reason of the ship's sinking, but being recovered was sold jj.,rjy ^' f,(,tes. by auction at a great loss, and the plaintiff recovered as for a total loss, subject to an award. The indigo was dried by the purchasers, and fetched nearly as much at the port of destination as it would if it had not been injured ; but the Court refused to set aside the av/ard, Vv'hich was considerably in the merchant's favour, or to grant a new trial. After an abandonment, it has been decided, that the underwriter shall not be permitted to call on the assured to refund, for the benefit of salvage survives to the in- surers, and there is no fraud, as each bears his own proportion of the adventure, the underwriter having ag;reed to indemnify the assured ag;ainst loss, and the 1 'p"^"?!''^ ' assured only taking that which is due to him. Again, t'inl'- should the underwriter assent to the abandonment. 142 OF SHIPPING : although under circumstances which without such assent would not have sustained it, as in the case of recapture or recovery of the ship, by such agreement he will be bound. There is another class of decisions where the assured has abandoned because the port whither he was bound was shut ag-ainst him, and although his commodities for sale were perishable, as fish, it was in such a case held, 3 Bosanqiiet & that the adventure was not within the stipulations in the Puller, 388, policy, and consequently that the verdict in favour of the Hitcik'mson i'. . • i "^ llobiiisou. underwriter was right. By the same principle, a ship ordered away from her destined port, was held not to be protected in her voyage 1 1 East 22 ^*^ ^^^ nearest friendly port, there having been a specific Parkin y.Tunno. voyagc agreed on, and the new course being out of it. Id. 205, Forstcr ^^^ where she deviated from her intended place of dis-- V. Christie ; i churp-e, bcincr alarmed on account of a hostile embar2;o. Campbell, 454. rp, 1, • A ^^ .• 1. ^ Biuckciihageii i here has arisen a very considerable question between r. London As- ^|-,g underwriters on freio;ht and those on ship; the assured surance ; and ~ ' . see 12 East, upon a loss would abandon the one to the underwriter Vione '^°^^" ^' ^^^ freight, and the other to the ship insurer. Vessels have then been recovered, and they have returned home, and their owners have received the freight due. Not being entitled to it themselves by reason of their aban- donment, they have held the money, as it were, like stakeholders, till the question could be set at rest by the decision of the Judges. See Park 26-. Much discussiou took place on the subject, and al- -76. though the particular cases were for some years decided upon their own peculiar merits, the leaning of the Courts seemed to be strongly in favour of the underwriter on 6 Taunton, 69, ship. And in a recent case Chief Justice Gibbs thought 8 launron,755, abandonment not necessary, as he could not understand Idle V. llojal •' Ex. Assurance, what was to be abandoned. And it has been very 4 Bingham,388, recently determined, that abandonnment is not necessary Mount I'. Hani- , . . r p ■ 1 < tt j. eon, upon a loss in an msurance tor ireignt. However at INSURANCE. 143 at length it was determined by three Judges against one(y^, and subsequently in the Exchequer chamber 5iMaule&Sel. upon appeal, that the underwriter on ship was entitled "■"yj]' 79- Case ' . , , , . . , ' IP *'• Davidson ; to the freight, and upon the prniciple, that the freight same case in follows the assignment of the ship beino- incident to llf I^xcliequcr » I p Cliamhcr, 2 it, and that the agreement of the parties could not Broderip & disturb the legal effect of the abandonment, miiiain, 3^9. The time for abandonment of goods is the earliest See Park, 279 opportunity after a cargo has been examined, it must not be at the assured's will upon the rise or fall of the market, nor, after they have commuiiicated icith the under- ^ ' '"^^'^ '^'' ivriters respecting repairs, upon finding that the salvage Mariri uXVoc- and repairs will exceed the ship's value, though, as we '^''f^- have seen, it is otherwise if they abandon at once. And it must be done within a reasonable time, as also must 3 Brodenp & Hinghani, 97, a repudiation by the underwriter be communicated as Hudson v. early as possible. Harrison. Five days, after intelligence received by the assured 5 iManle & Scl- of their loss, was considered in one case too long a delay; r.^'^'oyai'Ex!" and there are other cases, which point out the danger of durance. any delay which is not absolutely indispensable. How- ever, the assured must have a fair opportunity of ex- 2 Marshall, 83, . . -i-rr • Creruon t;. Koval aminmg his effects with reference to the existing state Ex Assurance. of the market: and if the underwriter attempt to dis- sTemiEep. suade the party from abandonment, he will be liable for rNe«uham.''* all subsequent losses. Sa/vcrge. Salvage generally accrues by reason of services ren- dered on occasions of sea-peril, or on re-capture, and the Courts give great encouragement to the enterprises of salvors, rewarding them in proportion to their labour and skill. Indeed, a person may retain goods till payment of {z) Bayley. 1^4 OF SHIPPING : Lord Bay- ^^^ salvage, as well as a tailor, an ostler or a common moncl,393- carrier : it is a recompence allowed by all nations. Who may claim. With respect to the persons who may claim salvage, it is now clearly established, that the interference of individuals in cases where the owners of the property are quite sufficient to save it without any aid, will not be sanctioned as a ground for a right of this kind. a Taunton, 30a, And SO the lord of a manor could not entitle himself to Sutton D. Buck. . 1.1- , r i i i 1,1 salvage by taking parts or a wreck, although thrown upon his manor, the owner's servants being on the spot to preserve it. But where the officers of a king's ship found incapa- ble and improper persons (who v/ere the original salvors) in possession of a cargo of Government stores, they were 1 Dodson, 413, held justified in interposing, although they might not I'.ienden Hall otherwise have done so ; for, as a o-eneral principle, one ship. . ' °. *^ ' . party has- not a right to meddle with another, provided ] Kdvvards, 175, the first are competent to bring the vessel safe into 'llie Maria. p^j.^^ The proprietors of a steam-boat received great encou- 1 ila"<Tird ragement from the Coiut of Admiralty, by reason of the Admiralty, 246, powcr wliicli their vessel possessed, and the alacrity with which her duty was performed. And a passenger, who took the command of the ship, and carried her 3 Bosanquct & safcly into harbour, was considered to be entitled to Puiiir, GiQ, a remuneration, inasmuch as he had placed himself in JNewiuan v. _ ... .... Walters. a Situation of responsibilit3^ The jury, estimating his services, gave him 400/., and the Court refused to dis- turb their verdict. It is observable, that this last case proceeded on the ground of the passenger having in- curred a certain responsibility,- ordinarily, the exertions of a passenger, being in the performance of his duty, cannot be made the foundation of a recompence. Abbott, 401. Acts done in the course of diiti/ do not create the right ; as where a hired transport which had been de- serted in Spain by her sailors was brought out of INSURANCE. 145 harbour by one of his Majesty's ships, here the crew of the man-of-war were not allowed any salvao;e for their _ , , „„ Jo 1 Edwards, 60, service (a). Belle ship. And so it was where part of the crew having mutinied, the remainder overpowered the insurgents, for, however meritorious the conduct of the well-affected might be, it was still no more than their duty to check the re- Oovernor'Raf-' bellion. fles. The Court will protect foreigners against imposition, and, although they must pay for services actually af- forded them, a claim of salvage must not be inorafted ^ Robinson, . . ° =• 103, the vrouw on their local ignorance. Margaretha. It should be remembered, that the reward of salvage is given for the preservation of ships, and property re- covered from wreck or other sea peril; and, therefore, the mere saving of life, meritorious as it may be, will not entitle the party to salvage. Although if such a laudable act can be connected in any way with accident, the j Ha^-ard 83 Court will be able to take notice of it. Aid ship. This claim may be made in the Courts of Common Law or Admiralty, (Z*) and, as we shall see presently, by magistrates under certain circumstances; but it is very common to sue for salvage in the Admiralty, where the better course is to tender " bij acts of Court, and not " personally and verbally to the claimants, a specified *' sum for the salvage, accompanied by an offer to pay " the costs incurred." The Court will then, if they con- (fl) But for services rendered to merchant vessels in dis- tress, and not in the course of warfare, salvage is allowed. 1 Haggard, 158, Mari/ Ann. {b) That is to say, claims for salvage at sea are witliin the Admiralty jurisdiction, such as between the high and low water-marks, are cognisable by the Admiralty and common law Courts. 53 Geo. 3, c. 87 ; 1 & 2 Geo. 4, c. 75. L 146 Abbott, 403. Id. 397. Id. 400. 6 Robinson, ( the Dorothy Foster, ship. See 1 3 Anne, Stat. 2, c. l3 ; a6 Geo. 2, c. 19. OF SHIPPING : sider the tender sufficient, cause the other party to pay the costs on both sides. The Court of Admiralty takes into consideration the labour and activity of the salvors, for, at common law, there is no positive rate of salvage. And, therefore, we find the reward decreed to be sometimes one-sixth of the value of the property, sometimes two-fifths, &c. And where freight has commenced, it will be made contri- butory, as well as the ship and cargo. For the purpose of affording a more speedy and econo- mical method of adjustment in cases of salvage, several statutes have passed. It is not our intention, nor would it be consistent with the nature of this work, to go through these enactments in detail, the principal provisions will, therefore, be very briefly noticed. The calling in of sufficient assistance by sheriffs and other officers, for the preservation of the distressed vessel and its cargo — the description of the persons authorized to command in such an exigency, in order to prevent confusion — the repression of unjust violence — the publication of the ship's name, of its owners, &c. for the information of the persons interested — the mode of adjusting claims of salvage— and of paying off" the claims when adjusted — were subjects of attention more than a century since. Subsequently, other exigencies were provided, and omissions supplied. Thus, by other statutes (c), the case of salvors acting under the mere authority of the commander of the ship in distress was provided for ; the sale of perishable goods, at the in- stance of the parties interested, or of the salvors, was permitted (d) ; the passage of carts and carriages used for the preservation of wrecks, over lands intervening, was (c) 48 Geo. 3, c. 130 ; 49 Geo. 3, c. 122 ; 1 & 2 Geo. 4, c. 75. {d) 53 Geo. 3, c. 87 ; 1 & 2 Geo. 4, c. 75. INSURANCE. 147 authorized, a compensation being made to the owner (<?); and it was further ordained, that no lord of a manor should appropriate any part of a wreck or goods until a year and a day after notice to the deputy vice-admiral, or the Trinity House, of the description of such wreck and goods, and all other particulars, for the better ena- bling the owner to recover them {f). If a foreign vessel do damage to any British vessel in a harbour, 8cc. she may be arrested till the owner undertake to appear, and till he give security for damages and costs {g.) Lastly, the owners, or, on their refusal, the salvors, may in all cases sell a sufficient portion of the property saved to defray the salvage and other charges, which sale is to be permitted by the Commissioners of Customs free of duty (li). There are other enactments relating to the finding of anchors, cables, buoys, &c. and the adjustment of sal- vage claims in respect of these ; also respecting the "demands of pilots for various services rendered by them ^ ,,, . ^ . -^ . See Abbott, to ships in distress, and the sale of unclaimed 412-414. anchors, &c. The regulation of all these matters within the Cinque Ports is governed by independent statutes, the last of which is said to embody the provisions of the former, f ^"^^ Geo V " with some alterations and additions." These provisions c. 75. are enumerated in Lord Tenterden's book on shipping. I^l^ 4' 4-41 7- By the law of England, a merchant ship which has Salvage oa been captured by the enemy, and is afterwards retaken '■^'^"l""'"e. by a British ship, must be restored to the original pro- prietor on payment of salvage to the recaptors. At the commencement of the war in 170^}, the rate of salvage ^ '^'-' ^ 33 Geo. 3, p. 66. (e) See note {d). (/) See note (r/). {g) See note {d). {h) 1 & 2 Geo. 4, c. 7j; G.Gco, 4, c. 117. L 2 148 OF SHIPPING : was fixed at one eighth for the Koyal navy, and one sixth for private ships ; but it was declared, that recap- tured ships set forth by the enemy as vessels of war, should wholly belong to the recaptors, without restitu- tion. And therefore, although, at the time of recapture, a ship, which had been set forth as a privateer, was em- . , g ployed merely as a merchant ship, without a commission L'Actif. of war, she was condemned, nevertheless, as having been employed in hostilities. But where some men were put on board a captured ship, and she was employed as 320/rhe Ho- ^ cruizer, withont a commission of war, it was held that ratio. she was not forfeited. There is a distinction between a voluntary and a com- pulsory abandonment of a prize by the enemy : in the first case salvage is due generally, and is unrestricted ; in the latter it is still due, but under the statute. And when, for the purpose of proceeding on an expedition, the French had left a port in which a detained vessel lay, but had it at that time in their power to return, and there seemed a likelihood that they would have returned, it was held, on the ship being brought out of the fort by a British frigate, that salvage under the The Pensa- ' Statute had clearly been earned, for she was in the legal mento Fehz. ^t^^ constructive possession of the enemy. A British army assisting by land operations in libe- rating a port belonging to the common enemy, becomes „ , , entitled to salvage in respect of British property found 1 Edwards, 2 10, . ° ^ i i j The Progress, in that port, but the property of the natives of the country is not the subject of such a claim. Recaptured " The maritime law of England having adopted a Allier^^" " most liberal rule of restitution on salvage, with respect " to the recaptured property of its own subjects, gives " the benefit of that rule to its allies, till it appears that by sir Wm"' "^' " they act towards British property on a less liberal Scott. " principle ; in such a case it adopts their rule, and " treats them according to their own measure of jus- INSURANCE. 149 " lice." There are several instances in which the Court See Abbott, has acted on this rule of retaliation. If there be a subsequent act of recapture and con- demnation, the original recaptors are deprived of their '^ . ^ ,1 Dodson, 192, salvage; but to effect this, there must be a regular the Charlotte sentence. C^"^°'"^^" If we retake the vessel of a neutral country from its captors, the chances of its condemnation in the hostile state are to be weighed, and if there be ground for sup* posing that the vessel would have been free, no salvage g^^ Abbott is to be paid. But where certain countries have been p. 424 ; and see 1, , 111- o .-11 • also, for further accustomed to condemn all ships 01 a particular descrip- information on tion, the rule has been that, upon retaking;; such, being salvage, Park ' , 1 / „ P ° on Insurance, neutral property, salvage has been allowed. c. 8. An agreement in the policy now succeeds on the part of the insurers, that the assured may travel about at their expense, for the purpose of defending, saving .or recovering their property : they then bind themselves, confessing the consideration paid. With respect to the persons who may be insurers, it Who bsurers. is enacted by 5 Geo. 4, c. 114, that so much of the 5 Geo. 4, 6 Geo. 1, as prevents corporations, societies or partner- <^'"4' ships, from underwriting or making contracts of bot- tomry, shall be repealed : provided, that the rights of ^^^^ ^ the Royal Exchange and London Assurance offices shall not be affected further than by permitting corporations, &c. to enter into the contracts above mentioned. So that all persons may now underwrite or lend on bottomry, as they might have done before the passing of the repealed act of Geo. 1 . " At and after the rate of £. '^ The usual course of effecting insurances being com- See Park, 34. monly through a broker, he is considered as the debtor of the underwriter, so that having confessed the payment of the premium, the insurer cannot afterwards come upon 150 OF SHIPPING : 3 Taunton, 493, the assured, even though he may not have been paid, un- Foy V. Bell. |ggg indeed there has been some collusion, which alters J lie under- . . ' writer credited the casc, or unlcss the transaction is done between the the broker'the hisurer and the merchant without a third person. assured, at the request of the latter ; Id.497, Mavor D.Simeon. 1 Campb, 532, Thus, the policy has been held to be conclusive Duize]ii..Mair. eyj(jence of the receipt of the premium. So that the underwriter cannot set off the premium against losses 4 Taunton, 246, demanded under the policy. And where the party had De Gamiiide ^ 1 i • • i i ^1 1 -^ V. Figou. acted as his own insurance broker, the underwriter was Id. 775, Glen- not permitted to recover from assignees, by way of set- nie V. Ediuuiids. ^ff^ premiums due from the assured. Yet the under-* writer may in general maintain his action directly against ' P" 39' the broker for premiums. 4 Taunton, 534, But as between the broker and underwriter in respect Goidscnmidt v. ^^ losses or returns of premiunij there is not such an Lyon ; Id. 541, r ' Jviinett V. For- implied agency as will enable the former to set off these payments against the assignees of the latter, whethef they become due before or after a bankruptcy, unless^ indeed, there be an authority for so doing. 12 East, 507, However, the broker has been allowed to deduct re^ Shee V. Clark- turns of premium having; received a notice which entitled son. the assured to such return. And the distinction between the two cases is, that in the former a bankruptcy had happened which determined the agency, in the latter^ the broker remained the common agent of both assured and assurer. But they were not allowed to deduct against assignees returns of premium on an adjusted account, where the events warranting such return did not transpire till after adjustment, nor where the events happened before a 16 East •iB''. bankruptcy, but there had been no adjustment; nor Parker Hi Smith, where the events occurred since the bankruptcy* And 1 Maule & Sel- although the losses be total, and the broker have ac- W3'n,494, counted for them to his principal under a del credere Cumuiing v. ... i rr • 1 1 Forester. commission, they cannot be set on against the under- INSURANCE. 1^1 Writer. But the brokers may set off such losses and feturns as are due on policies effected in the names of their own firm, having accrued before the under- writer's bankruptcy, and although there may not have wyn.ua.Koster been any adjustment. KEason. Aiid so it was, where, though not acting under a del credere, they advanced money on the credit of consign- ments made to them, and by suffering their names to be introduced into the policies, the underwriters agreed that they should be considered as principals if they had j . „ an interest {i). v. Beaslcy. By analogy to the case of bankruptcy, a broker could iiot set off in an action by executors returns of premium 2 Marshall, 138, which became due after the death of the undei"writer. Robertson.*' The law relating to the return of premium comes next {i) The cases of Gruve v. Dubois, and Bize v. Dicknson, 1 Term Rep. -have not been inserted in the text, because their authority is '^'^ &285. considered to have been considerably shaken. And in a very recent case, Gibbs, Chief Justice, speaking of Grove and gXaunton ^ii Dubois, expressed a wish to discover upon what principle it proceeded. The inclination of the learned Judge was that losses could not be set off against premiums, though the policy were effected in the broker's name as agent. But then the broker was not interested, and so the case is distinguished from that in Maule & Sehvyn ; the decision took place on Baker i;°Lang-' another ground. liom. A custom for the general balance due from the broker to the underwriter to be set off against a particular loss, is Alderron^2io illegal. Todd v. Ileid.' The underwriter is liable as long as his name remains on Ihe policy. So that where a loss was adjusted, and the assured received an account from the broker, stating himself to be his debtor, upon which the assured drew a bill upon the broker, which was not paid, it was held, that as the 4 Bamewall & underwriter's name remained on the policy, he was not RussdUBang • discharged. lej. L4 152 OF SHIPPING: 13. Return of under our notice. And where there has, in fact, been no premiiuQ. ^.j^j^ ^.^^ 1^^ ^-^^ insurer, a return should take place. If the assured, on the ship's arrival, adjust the account, and receive back the premium, he cannot, without a further stipulation, resort again to the underwriter on the hap^ pening of any contingency. As the underwriter may not retain if he never incur hazard, so on the other hand, there being once a risk be- Hogg\., Homer, gun, he shall never be called upon to return afterwards. Nevertheless, if money be paid into the insurer's hands, to indemnify the assured, and the purpose fails altogether ; if a licence has been obtained and a premium paid, both bona fide, but it turns out that the voyage cannot be legalized, as contemplated ; if an agent, ignorant of the fact, insure the property of an alien enemy ; in these eases the premium was adjudged to be returned, there See Park 56-^ being no risk, and the payment in the latter case being where the au- made with good faith. On the other hand, where cited. a contract of this kind is illegally entered into, as on wager policies, reassurances, adventures for the importa- Park, 569. 575. tion of smuggled goods for trading with the enemy, or on voyages in violation of the Navigation Acts, the pre- mium cannot be recovered back. The legal principle in these last cases is, " in jjari delicto potior est conditio posside/itisJ" Still if the policy be not absolutely void, but merely inoperative because the subject matter is not an insur- able risk, a different result will occur. So that the assured were able to recover the premium where the insurance, being on money advanced to the captain 1 Mau!c&Scl- abroad, was not valid. ken'r'^^'limitt. Clauscs in the policy, stipulating for this refunding upon the happening of certain events, &c. are very frequent. INSURANCE. 153 *' To return if she sails with convoy, &c." This was not an uncommon clause ; by the sailing with convoy the risk was diminished, and a proportionate return of premium was no more than equitable. Where the words were, " sails with convoy, and arrives," the defendant, the underwriter, contended, that as there had been an average risk, he was not bound to return ; but the Court overruled this, and applied the words to the contemplation of danger to the ship by capture, observ- simmid v. Boy- ing, that if it had been intended to insure the safe arrival d^^f- of the goods, the underwriter would have said so. So it L^T<^uiiar' was though the ship had been captured and recaptured, v. Rodgers; and a sum had been paid for salvage. Of course, if the Puiier, 1 1 1, ship do not arrive, although she get into an intermediate Dudley v. Duff. port, the condition will not have been fulfilled. KeihLr ^Le Sometimes there is an apportionment of the premium, Mesurier. the contract beino- divisible, as where two vovaees are 3 Burrow, 1237, contemplated by the parties, and one only is accom- g,jQ^y . g^^. \ plished. Bosaiiquet & Puller, 172, riothwell i'. Cooke. Or when two risks are insured against by the same Park, 589, T n 1 . 1 Lone; d. Allen, pohcy, and one only mcurred. There is much difficulty in the apportionment of risks, and in fact, if there be any ground for establishing an entirety of contract, no return will be allowed. Premium at the rate of 15 s. per month is only a mode of com- puting the gross amount, and does not sever the contract; and although the ship is to stop at several ports, still the T'lese decisions , , , , are cited in voyage is one, unless there be an usage to the contrary^ Park, p. 579- and in such cases there can be no return of premium. 588. *' N. B. Corn, &c. are warranted free from ave- *' rage, unless general." We have already considered the subject of jettison, 14. General which draws a general average to contribute for goods "^^'"''S^'- thrown overboard ; but there are other emergencies which 154 Abbott, p. 3461 Bee t!ie statutes in Abbott, 347. 8 Taunton, 6, Webb D.Brooke. Abbott, 347. g Maule & Sel- Vvjn,482,Plum- hic-rv. Wildmaii, Ibidi i liastj 220, Birklejy t; Pres- grave. Abbott, 349, Marsha lu v. Dutrey. OF SHIPPING : call for this general sacrifice. And the principle upon these occasions is, that the property of necessity parted with is so lost for the safety of the ship : so that the mere taking away of part of a cargo on the anticipation of an attack, which part so separated is saved, while the remainder falls into the enemy's hands, does not create a claim to general average. It is observable, also, that money paid by way of ransom could not be recovered, the act itself being illegal ; for it was prohibited to ransom any ship or merchandize on board the same, belonging to any sub- ject of this country, and taken by " the subjects of any " state at war with his Majesty, or of any persons com- " mitting hostilities against his Majesty's subjects,'' unless in the case of extreme necessity, to be allowed by the Court of Admiralty. Therefore, where the plain- tiif lent money to the defendant to enable him to ransom his ship, for which the defendant gave a bill, it was held that no action could be maintained on that security. The goods, however, which are sacrificed, are not the only occasions of an average ; expenses on repairing the ship, 8vC. are, under various circumstances, to be reim* bursed by a general contribution. As where it became necessary to unload the goods for making repairs, such repairs being absolutely wanting for the prosecution of the voyage, those expenses were held to be the subjects of average; but the captain's expenses and crimpage(A;) were not allowed. Injuries to the ship's furniture come under the same rule : as where the master cut away part of his rigging, where he cut his cable and his masts for the preservation of the ship* But it was not so (A) The providing seamen to replace deserters. There is no title to contribution where the master sells a part of the cargo to rescue himself from confinement abroad. 3 Campb, 480, Dubwn v. Wilson. INSURANCE. 155 where the mainmast was broken in a heavy gale, by 2 New Rep. carrying a press of sail to escape from a privateer; nor ^'Roberts!"^"" where the ship and tackle were damaged by a press of 4Maule&SeI- sail to prevent stranding. wjn, 141, The wages and provisions 01 a crew detained in a port more. whither the ship has been compelled to go for repairs, Ibid. fall upon the ship-owner, and may not be calculated as Latewa°d'u. average. But in the case quoted from Park, Lord Curling. Mansfield seems to have thougiit, that in cases where the expenses should be quite unavoidable, a different rule might prevail ; and Lord Tenterden says, that if the ship go into port only to repair a damage which is in itself a proper object for contribution, perhaps the accessary follows the principal ; the wages, &.c. might be considered under the head of general average. ° ' ^' '^^°' With respect to wages and provisions during the detention of a ship by embargo, it has been said that By Buiier, J. the expense shall fall on the owner only, and that the '^Tc™i Rep. freio;ht must bear it. A considerable quantity of powder and shot was ex- g Xaunton, 608, pended in defending a vessel from the enemy, and further Taylor u.Curtis; -, ■ 1 r .] J 1 -1 2 Marshall, 300, expenses were incurred in healing the wounded sailors : ^.^^^^Q case. but these were not held to be charges for general average. No particular part of the property was voluntarily sacri- ^J g^kk '^"'" ficed for the protection of the rest. 6 Tauuton, 649. Again> where a ship was chartered, and was obliged g y^^^^ j^^ to put in and refit in the course of her voyage, the person 509. Jackson to whom she was let was not held liable to contribute as for a general average for the repairs incurred at the port to which such chartered vessel resorted. All the SeeaTrm goods and merchandize of every kind are to contribute Rep. 407, Da towards making up the loss, and the freight is also ha^n^iMauie liable. ^ Selwyn, 318) Williams v, London Assi ; and Abbott, p. 357^ But provisions do not contribute. ■* ^'"g'''>"'< * _ 119, Brown i). Where the average is adjusted upon the ship*s arrival Stapyletou. at her place of destination, the practice is to value the 156 Abbott, 358. Ibid. Ibid. 1 P.ingliain, 61, Pabner V- lilacUburn ; see Park, p. 209. See Abbott, 362. 18 Vcsey, jun. 187, Haileltr. Bousfield. Park, 629, Waipoie V. Ewer. Id. 630. Newman i'. Cazaiet. 2 Barnewail & Cressvvcli, 805, Simoiids I'. Wliite ; 5 Dow» ling & Roland, 6v Dalglislie v. Davidson. By Abbott, C. J., 2 Barne- wail vk Cress- well, 813. 4 Maule c^i Sel- wyn, 141, Power II. Whit- tuore. OF SHIPPING goods at the clear price they would have fetched at such place ; but where the ship is constrained to regain her lading port, the invoice price or prime cost is the cri- terion of value. One third is deducted from the cost price of new articles, as masts, cables, &,c. ( /). A mercantile usage, that a loss in an open policy on freight should be adjusted on the gross, instead of the net amount of the freight, has been held good. You may recover either in equity or at law for this demand, but a Court of Equity seems the more proper tribunal. That Court, hov/ever, will not restrain the captain, on the application of the party whose goods have been sacrificed, from disposing of the rest of the cargo belong- ing to the other merchant. The averages fixed by foreign countries are respected in this. Lenders upon respondentia being shown, by a judgment of the Court of Copenhagen, to be liable to average, the Court compelled the insurer to answer their demand. The like doctrine was entertained where the average had been calculated by the Commercial Court of Pisa. So, again, where the average was made up at St. Petersburgh. The shipper of goods tacitly, if not expressly, assents to general average, as a known mari- time usage, and to its adjustment at the usual and proper place ; it is an obvious consequence, that he consents also to its adjustment according to the usage and law of the place at which the adjustment is to be made. However, this adjudication of averages is to be esta- blished by some foreign sentence or decree, and is not to be gathered from mere recitals or assumptions in a decree ; in the absence of such a solemn judgment, the (/) See the calculation of average In Abbott, p. 359. I'or petty avenigcs tlie insurer is seldom, if ever, an- sweriiblc. INSURANCE. 157 averao;e of the law of Eno-land must be resorted to and abided by. Partial Losses. " If part of the cargo," said Lord IMansfield, " ca- 15. Partial pable of a separate and distinct valuation at the outset, be totally lost : as if there be one hundred losses *' hoosheads of susrar, and ten happen to be lost, the Park, 163, t . 1 • PI 111 2 Burrow, 1 170. * insurer may pay the prmie cost 01 these ten nogsaeaas, " without any regard to the price for which the other " ninety may be sold." Ship artd goods were insured : the policy never at- tached on the cargo, but they were valued separately, the defendant underwrote '20o/. : Lord Kenyon, in con- 207, Ameryw. formity with a rule at Lloyd's, suffered the plaintiff to t^os^'"- recover such a proportion of the sum that had been underwritten as the property upon which the policy attached bore to the whole. If a man underwrite 100/. upon prcperty valued at 500/., upon a total loss he shall pay 100/. and no more ; ^'■^^^' l^- '^^* if there be a partial loss of 60 or 70 per cent, he shall pay 60 or 70/., his proportion. Where, however, the property receives damage at sea, and thereby is lessened in value, the rule for ascertain- ing the damage is thus : you compare the difference between the price the damaged goods fetch at the port of destination, and that which they would have brought had they been sound ; whether this damage be one third, one fourth, one fifth, &c. worse, you strike the difference, and take the proportion as the value is stated in the policy. As if goods be valued in the policy at 200 /., being damaged they sell for 100/.; if they had been sound they would have sold for 156/., one third more; one third of 200 /., the value in the policy, is G6 /. 1 3 s. 4 r/. : that is the sum to be paid. And the difference is not between the price the 158 2 Burrow, 117-2. See 2 Burrow, 1 1 67, Lewis V. lUicker. 2 East, 581, Johnson v. Sliedflon. 1 2 East, 639, llsliert). Noble ; .•)nd see 2 East, loq, Sliawe v. Fellon ; 4 Taun- ton, 803, Gold- suiid i>. Gillies. Park, 174, Le Cras V. Hughes. By an & I\Iood_y, 378, I'oinsj'destre v. Royal Ex. As- surance. See 3 Burrow, 1553. Park, 177, Dobson V. Bol- ton. 4 Maule & Sel- wyn. 77, Car- rutliers v. Sydc- bolham. 6 Geo. 4, c. 125, s. 56. OF SHIPPING : damaged goods sell for and the invoice price; for the underwriter would then be involved in the rise or fall of the market. The measure of calculation, further, is to he the gross proceeds, and not the nett, in order again to protect the underwriter from the fluctuation of the market. And where the calculation is to be made on an open policy, you take the invoice price, with the premium and com- mission, and reckon the proportional difference between the sound and damaged goods, as before stated. Where goods taken from an enemy were valued at the sum insured, and part was lost by the perils of the seas, the rule could not be adopted, and the only mode was to o'o into an account of the whole value, and take a proportion of that sum as the amount of the goods lost. Where a ship, partially damaged, is repaired by the owners, the usage in London is for the insurers to bear two-thirds of the expense. ''^ Or the ship be stranded." The companies have omitted these words for several years ; but being retained by private insurers, the deci- sions on them are of consequence. The stranding here spoken of must be a settlement of the ship on the place where she strikes, and not a taking ground in the ordinary course of the voyage. Running on some wooden piles, and remaining there till cut away, was held a stranding. So where a piloted ship was fastened at the pier of the double basin at Liverpool by a rope to the shore, against the master's advice, and there left, and bilged in the receding of the tide, in consequence of which her goods were damaged at the tide's return ; this was held a stranding. This disaster having arisen from the misconduct of a pilot, it may be proper to observe that the new Pilot Act continues, by s. 56, the old provision, that no INSURANCE. 159 remedy on a contract of insurance should be abolished by reason of the enactment in question. Where the ship was fixed for fifteen or twenty mi- ^ gj.,^j^jg g nutes, having struck upon a rock, Lord Ellenborough Baker n.Towry; directed the jury that it was sufficient to constitute Harmany-vluix. a stranding, although the ship received no material damage. A ship entering a harbour to shelter herself from tempestuous weather, struck upon an anchor, and being 4 Barnewail & in danger of sinking, was hauled with ropes higher up BarrowVudi! the harbour, where she took ground, and lay there for half an hour ; this was a stranding. If the accident happen in the ordinary course of the vovagre, as where a ship took the ground in going up 1 Broderip & JO' r D ^ i=! I Biiigliam, 388, the harbour, and being afterwards moored, fell over on Heame v. Ed- her side, and was injured, with her cargo ; it will be no ™""'^-'- stranding. And this case was distinguished from Carrutliers v. Sydebotham, because the vessel was, on the occasion mentioned there, moored against the advice of the master. But where the water was drawn off for the purpose of repairing the canal, and the ship, though placed in the most secure situation that could be found, went upon some piles, and grounded, it was held a Aldcrsmr^a^ stranding, because it could not be presumed that these I^ajncr »■ , , . • 1 rr Godiiiond. canals were aUvays wantmg repair; and so ttearne v. Edmunds was distinguished, for here the accident did not happen in the ordinary course of the voyage. In addition to the usual moorings, it became necessary to lash a ship, by a tackle fastened to the mast, to the pier, to prevent her falling over upon the tide leaving her; the tackle broke when the tide was out, and the ship fell over upon her side, by which she was stove in and greatly injured : this w^as held to be a stranding, 7 Barnewail & ^ ,1 • J • • 1 T i- -• CrcssweIl,2iQ, and the prior decisions and distinctions were recog- Bishop v. Pent- nised and approved. 'and. An instantaneous stoppage of the ship's progress is i6o OF SHIPPING 4 Maule & Sel- wyii, 503, M'Dougle D. Ko^mI Ex. As- surance. not a stranding ; Pai'tiiil losses. gTjurrow, 1550 ^V ilson u.Smilh, Park, 1 82. Park, 181, Cocking r. Fra&er ; i85> M'Andrews v: Vaiiglian ; 195. filasoii I'. Skur- ray ; and see 4 16 East, 214, Thompson v. Rojal Ex. Ass. 15 East, 559, Davy i'. Miltbrd 2 IMaule & Sel- wyn, 371, Glen- nie 11. London Assurance. 7 Tannton, 154 Hedbiirg i\ Pearson. and so where there was a striking on a rock, and the vessel remained for a minute and a half, and was laid upon her beam-ends, it was considered useless to contend the point. The memorandum generally : " Corn, See." The words " unless general, or the ship be stranded," cannot be understood to mean that, in case of a general average the insurer shall be liable for a partial loss ; they . imply an exception, not a condition. There must be a total destruction of the thing insured against ; the fact of its being spoiled is not sufficient : " as long as the '' commodity specifically remains," said Lord Mansfield, " the underwriter is discharged ;" and thus it was de- cided where part of a cargo offish was thrown overboard, and the remainder, through sea damage, rendered of no ' value. Term Rep. 783, Nesbitt v. Lushington. The same was held in a case of sugars which were injured : Flax : Rice (m), although it did not produce sufficient to . pay the freight : And where a parcel of sugar out of every hogshead was preserved, it was held that there could not be a total loss. However, where fruit was so much damaged as that it became necessary to throw the whole of it away, and (???) Although corn is a general term, yet it has been held that rice, not mentioned as such, is not corn within the memo- randum. 2 New Rep. 213, Scott v. BourdilUon. INIr. Justice Wilson, in the Common Pleas, thought that salt was not included in the word saltpetre. Park, 179. Though pease, beans and malt, come within the word, corn. ibid. INSURANCE. . iGi ihe voyage came to an aid through the destruction of the 3 Bobanquei & ship herself, the assured received as for a total loss, for Dysoli uJitow- the. adventure was frustrated. croft. And where a vessel was stranded, which destroyed See Park, 182. the exception, although the ship received no damage by 7 Term Rep. reason of such stranding, the words of the policy then Kensii)"ton '' operated to give compensation for an average loss. Some doubt having prevailed as to the validity of Cocking v. Fraser, the observations of Mr. Justice Park on that subject may be acceptable: "In the case of Piirk, 184. " Cocking V. Fraser there was no stranding, as in Bur- " nett V. Kensington ; there was no disability in the ship *' to proceed to her destination, as in Dyson v. Rowcroft, " which therefore created a total loss of the voyage." lu Cocking v. Fraser there was a voluntary, and not ibid. a compulsory abandonment of the voyage. After the underwriter has adjusted the loss, it is not, ^'^f'j'ii'iment. in general, open to him to dispute the payment. But if Hogr/oould- there be not a fair disclosure of the facts, and so the ^^y- adjustment have taken place under a misconception, it ^3^^^?^^^?*^' is not conclusive. And where the plaintiff's own wit- n. Coonihe. ness swore that doubts arose in the minds of the under- writers soon after the adjustment, and that they refused Park, 194, De to pay, other evidence was deemed necessary to establish p^'Tf" '' ^"'" the demand. Lord EUenborough has expressed the same opinion; , CLimpi>. 13-. and because the attention of the underwriter is not roused to every circumstance of the loss at the time of his arrangement, it docs not follow that he may not avail himself of facts afterwards disclosed to him, or of an inference to be drawn from facts. As where it was posted 1,1 274, up at Lloyd's that the ship in question had chased every Siiepherd v. thing she saw, which in effect was a deviation, and the underwriter must have seen the account, he was per- mitted, notwithstanding, to make this defence at the trial, and obtained ii verdict. M l6'2 OF SIIIPl'ING 4 T.mnton, 725, Reyuer v. Hall. 4 Burrow, iq66, J)a Costa i\ Filth. See May v. Christie, Holt, 67. 2 Starkie, 67, Jell V. Pratt. 8 Taunton, 1 19, Gammon v. Beverley. 1 Campb. 43, n Riclianlsoii v, Anderson. 1. Seawor- thiness. See Mills v. Roebuck, Park, 335-. Park, 342, Lee V. Beach. Id. 343, Oliver r. Cowley. The ship was warranted free of capture in port, A letter arrived stating that she had been captured in port ; there was an adjustment, and a return of premium. It turned out afterwards that the ship was not captured in port, and the plaintiff brought his action on the policy* The Court held, that whether the underwriter's name had been struck off the adjustment and policy or not, he was still liable. But we have seen, that the underwriter, having paid for a total loss, shall not recover back the money if the loss turn out to be only partial. And, on the other hand, we have seen that the assured may not resort to the underwriter after an adjustment, without some extraordinary stipulation or accident. But unless there be an actual payment, or credit given, the insurer will not be discharged : as where, after an adjustment, the policy remained in the hands of the broker, who debited the insurer with the loss, the insurer's initials being struck out of the adjustment. There may be a conditional adjustment; if so, the party must of course prove his compliance with the conditions. The same agent who signs the policy has authority impliedly to sign the adjustment. [End of the Policy.] The further consideration of Insurance will be confined to the following heads : 1. Seaworthiness; 2. Fraud in Policies ; 3. Altering the Instrument, &c. ; 4. The Stamp ; 5. Proceedings to recover under the Policy. The necessity that the ship should be seaworthy at the commencement of her voyage is an implied warranty ; if she be not so, the assured cannot recover. Even if the assured take pains to make his ship tight and staunch, and such damage occur as would show that the vessel had not sailed in a seaworthy state, the same effect will ensue. There must be a crew to meet the ordinary INSUUANCK, 103 contingencies of the voyage. If, in case of the cap- Moodv & aiai. tain's illness, there be no one to supply his place, the ^Qy^\ ,'°Hu„tor. ship is not seaworthy. But there is a sufficient sea- worthiness for a harbour, and another state of suffi- ciency for a voyage. So that if a vessel be in harbour, without a complement of sailors for the voyage, although much out of repair, she may be protected under the 3 Taunton, 299, word "at" in a policy (;/), but the moment she sails ,,,"1"!°'^ without a crew, the words being " at or from," the war- ranty is broken. If a vessel had a competent crew to pursue any part of her adventure, and can be safely navigated home, it will be sufficient, although she may Holt, 30, not be seaworthy enough at the time of the insurance ton. for all the purposes of her intended voyage. " It is quite sufficient," said Lord EUenborough, " if p.'^L^ '• " the ship be commensurate to her then risk." and see Ibid. -,.„..„, , , . , Forbesc.Wilson. JStill, again, 11 there be not seaworthmess (as to crew, for instance,) at the outset, although the ship become sufficiently manned in the course of her adventure, the 3 Brodenp & •11 • /- 1 * 1 1 1 Bnigliam, \rj<i, warranty will not be satisfied. And by the same rea- Forshaw v. soning, if seaworthy, her being otherwise immediately ^^"*^^'''- after sailing, will not help the underwriter, who then b^^ifordRi'an's. becomes liable. fie'd. If a defect be discovered, as, that the ship is over- laden, and she return to discharo;e part of her cargo, 2 Barnewail & .,. , Aldersoi), ^ao, and then on her subsequent sailing a loss accrues in Weir v. Aber- nowise attributable to her former mistake, the under- '^^'^"" writers are not discharged. You must show these situations of the ship, however, by evidence ; and the question sometimes is, whether the underwriter, or the assured, is to bear the burthen of proof. If the vessel become leaky and damaged soon after setting out, such a presumption is raised of her ill) If goods are to be taken on board a ship in that state, the ship ought to be seaworthy, it should seem. See Park, 345, n. M 2 l{)4 ^>i' SHIPPING : unseaworthiness as to make it necessary for the assured See Park, 333, to show that she was in a sood state ; if she has been an.'l the notes ^ , . 1 1 1 • where he cites out lor a twelvemontli, or less, perhaps the underwriter iiie authorities, should be prepared to exonerate himself from his lia- bility, for how can the assured tell at the end of that time the condition of his ship ? This observation points to cases where the assurancels made while the vessel is at sea (o). Park, 346, With respect to the leakiness of a ship on a former Nun. ""^ " voyage, this will not vacate the policy if the leak be stopped, nor need the fact be mentioned to the under- writer. A survey was had of a ship on account of her bad character, she obtained a good character when sur- 4 East, 5Q0, veyed ; it was ho! den, that these facts, though if known llodo^°s! "' t^^y would have enhanced the premium, were not of necessity to be disclosed to the assurers. However, what is unseaworthiness ? It is not merely a bad state of the ship's timbers, but the want of any necessary which she ought to have for the prosecution of her voyage. A captain and crew of competent know- i4Ea»t. 481, ledge are requisite, the services of a pilot where it is Tait t). Levi. necessary, either by Act of Parliament or for the pur- 7^ ^""l" ^^'^P- poses of safe and careful navigation, that such a person HDiiingswoi th should be provided, the needful certificates and papers, — See Id. i8fi, all these are qualifications with which the vessel should Farmer v. Lege. 1 r* • u j '^^ be lurnished. 1 Dow, 3-2, She must also be well equipped. She must not set "W alt D Morris. . , , ,_^, 1 i 1 i 1 out Without knees. Where the best bower anchor, and ^ the cable of her small bower anchor were defective. Lord 3 Duw, 57, vviikie V. Eldon declared his opinion that she was not seaworthy. Geddes. gj^g must be ill a state to avoid capture if possible, she 1 amj) . 3. i^ust have her sails in good condition, and a sufficient Weciderb"um v.' crew to navigate her, both as to knowledge and compe- Beii ; Selw^n, tcncv, to protect her ao;ainst danger ; and it is not enough Nisi Prius, -^ ' "= 8 ' & 1011, n. Hun- ter V. Potts. (0) If any part of the cargo be omitted in the manifest, the voyage will be illegal. Marshall, 171, Freard v. Daxvson. INSURANCK. 165 that her hull may have been sufficient, if she be other- wise faulty. First, a false assertion to the underwriter respecting a. Fraud. the adventure will vacate the policy, although the loss Park, 285 ; may not arise from any circumstance connected with the WooimeiV^'^' untruth. As where a vessel was represented as neutral Muiiman. when she was not neutral ; as a Portuguese when she p^rk, 287. was not a Portuguese. But a representation from the owner of the goods that the ship would sail in a few days, must be considered, 1° ^'';'*^' 4' 3. pii- 111 • Bowderi v. from the nature of the thmg, as a probable expectation Vaughan. only, he having no control over the event, and in such a case the assured recovered. If the insurer know of the safe arrival of the ship at Park, 283. the time of his underwriting the policy, the contract will be void, for although not guilty of a direct falsity, he has suppressed the disclosure of circumstances with which .it was his duty to acquaint the assured. So must the assured also reveal all the material intelligence on the subject which he may happen to know. The following instances will serve to illustrate the nature of this sup- pression, and the contract in the cases beneath mentioned could not be enforced against the underwriter by reason of the concealment. A man who received a doubtful account of his ship's a p. Williams, capture at sea, insured her without relatino- this rumour. ''^2' I^^^o^'*^ The plaintiflP's agent wrote home to say that he had lost sight of the vessel, that the captain had told him that the ship was leaky, &c. and the plaintiff concealed the letter. Here, too, the loss was by capture, and so not by ^ strani'c 1 i8t the mischief which might have been anticipated from the Seaman v. communication. A ship was insured in January, at and from Genoa, and the plaintiff concealed that her loading- port had been Leghorn, that her cargo had been put on board there in the previous August, and that she had lain five months at Genoa. " Who can say," said Lord M 3 l66 OF SHIPPING: Biack^one Maiisfield, " that no risk was run during the five 463, Hodgson " months ? " A ship sailed from St. Thomas's on the coast of Ratciiffe V. Africa with a cargo of slaves ; nothing of this was com- Shoolbred, muiiicated. The ship was taken by a privateer. 1 Lspinasse, .... . 373, M'Andiew The plaintiff insured his vessel, and said nothing of Id. 407, Web- ^^^^ i\mQ of her sailing, nor of the arrival of another ster V. Fobter ; ship whicli had Sailed at the same time, and on board 1 Maule & Sel- r 1 • i 1 i i i wyn, i,5,Bndges oi wnicfi lie had goods. V. Hunter. "Yhe broker told the underwriter that the ship was in Park, 292, port, when in fact she had sailed. Fillis i;. brut- r ' ton. Indeed, however innocent the plaintiff or his agent may be, if they make a representation which turns out to be inaccurate, the underwriter will not be bound. 1 New Ren. 14, ^^^^ shipper writes to say that he expects the captain "Willes D.Giover. to sail to-morrow ; his consignees effect an insurance, but conceal the letter— in fact, the ship does not sail for many days afterwards. Intelligence was posted up at Lloyd's, that a ship had Lynch v. Duns- fallen in witli the President deep and leaky ; the plain- ^"'■'^- tiffs insured, but concealed the name of the vesssel, which was the President. It made no difference that the intelhgence turned out to be incorrect. 3 Taunton, 37, Runiours, whether true or false, must be communis miiton /"nok, cated, but not loose reports {p). 283, Durrell v. Bederley. 1 Maule &Sel- And SO must an accident on the voyage, stone V. king. The plaintiff, owner of the ship Ocean, sailed six hours „ „ after her in another ship, and met with rough weather. 1 Barnewall & . . ... Aiderson, 672, Finding on his arrival in port that the Ocean had not ir y V. feiuit . r^j-i^jyg j^ \yQ insured her, but neglected to disclose these 4 Barnewaii & circumstanccs. The Court were quite clear. Canrbdi' ^^^' '^^^ assured was an American subject, but that fact was Innes. (p) Nor opinions and apprehensions entertained upon the facts disclosed. 2 Campb. 475, Bell v. Bell. INSURANCE. 167 not related to the underwriter. War had been declared See a Mauie & in America against England, but it was not known here, sfmeonij Bazect The action was brought after the war had terminated, the ship having been seized by the American Govern- ment. This was an important suppression. Nevertheless, the mere fact of the ship's sailing need 3 Taunton, 381, not be told, without other circumstances to warrant °'^^ ^' ^^'' disclosure ; it is in the case of a missing ship that such a mention is so needful, the information as to the sailing Foley tiMoiii.c' is rendered necessary by events, not being of itself 5 THunton, 430, ■^ "^ " same case. material. Former misfortunes which have happened to a ship 1 Campbell iiG need not be detailed, and where a letter is received and Beckwiih v. shown to the assurers referring; to a former letter, if that " ,. first letter be not called for, it is the fault of the under- Freeiand J. ' writer, not of the assured. Glover. Of usages we have already seen that the assurer is See 1 Campheii, bound to take notice, such customs of trade, therefore, 503.^ aiiance /. ' Uewar; la.,5f)5, need not be disclosed to him. A custom appeared, that "•; Ougier?'. in a particular part of Jamaica, the ship was in the 5o8"n"Ki'n"stoji habit of proceeding to an adjoining port, and tranship- '"• Kuibbs. ping her cargo in shallops ; it was held, that the under- ^ Bamewaii & writers were liable, although they had not any informa- Aiderson, -238, tion on the method of unladino;. And information to be found in Lloyd's Lists, being matter within their sphere of information, need not be related to the as- jjoit, 572, surers : what they may learn by fair inquiry and due Friere i-. Wood- J.,. 111-1 1 house. diligence need not be disclosed. You need not say that the goods are damaged on 3 Campbell, board the vessel, although there may be a risk of fire, Dubois"^ nor that goods are about to be stowed on deck, instead of below, where they would be safe. A ship having put 4 Campbell, back by reason of her having strained and laboured with ^■^2,'P'^ ^V**'* •' t> I'. Ldmunds. too heavy a cargo, the underwriters were asked to allow the vessel to come into port to discharge a part, but they were not told of the distressed state of the vessel ; M 4 l6o 01- SHIPPING : ejBarnewall& the jury found that a subsequent loss was not owing to WeirTAbet^' ^^^^ having been overladen, and the underwriters were deeii. held liable. Perhaps some of the decisions just mentioned will re- cognize the principle about to be propounded, namely, that you are not bound to volunteer facts against your- self, provided there be no material suppression. Aliud est celare, aliud tacerc. sBiin-ow, 1905, An assured is governor of a fort, and effects a policy upon it ; he is not bound to state that it is in a weak state, and that it will probably be a subject of speedy attack. Douglas, 251, Nor need intellie'ence of a war which is generally an- Plancber. . . , , , f , , . , ^ . ^ Fletcher; and ticipatcd be brought to the underwriters attention, see Park, 306, y^^^ j-^^^^ come to cascs of misrepresentation. Me^neii. Walter. _ _ ^ To avoid the policy representions must be both mate- See Cowper, rial and fraudulent, or founded in mistake ; and they need *" only to be substantially performed. It is further worthy of remark, that unless embodied in the policy, they can not be of force like warranties, and we have seen, that Umi-lii<*,':>!J4. Collateral agreements, and documents dehors the policy, cannot be construed into warranties. It may appear a hard case if a policy should be void because of the assured's mistake as to a day or two ; but where a ship had advanced on the voyage as far as was represented, J „ y^ but was lost two days before the day she was repre- douaiii. Fraser. sell ted as being Safe, although there was no intentional deceit, the underwriter was discharged. But a repre- sentation that a ship is expected to sail does not fall Id. 305, Barber within the Same construction; some fact must be mis- V. Fletcher. i • • i 1 i • ■ r ^ stated ; it is not enough that the opinions or the assured be without foundation. Of course, if the statement is, Uenmstoun i'. ^^^^ ^^® ^^^^ ^^^^' *^^^ ^^ ^^^ ^ representation of an ex- Lil'ie. pectation but of a material fact. Ibid ; and A representation to the first underwriter extends to all Park, 311,12. ^hg j.gs|.^ i\^Q materiality of the mistake is for the con- sideration of the jury. INSURANCE. l6g On the principle that a master is liable for the acts of See Park, 320, his servant, a false colouring or mis-statement by an ipp"''[ renn""' agent will vitiate the policy, and such ao-ent is bound Rpp- 12, Fitz- ,•1 1, 1 . 1 1 hcrbertr. to disclose all that ne knows. Mather. With reference to the return of premium in these cases of falsehood or misrepresentation, after some little con- trariety of opinion, it seems now to be settled, that. Park, 329, where the assured or his agent has been guilty of actual ^ !,"','|."^" ^'' fraud, the underwriter may retain. But in the case of .-fainito^ q.q a misrepresentation without fraud, the assured is entitled Feise v. Par- te a return, and so it has been lately decided. P^ri-^ 326-330. So, again, on proof of fraud on the underwriter's part, he must return the premium, and an action will lie for it. A policy of insurance is considered to be a sacred in- g. Alteration strument, and an alteration in it cannot, therefore, be °^ ^'"= P"'"^^- permitted, unless, indeed, it be with the consent of all the persons who have underwritten it. And this rule is maintained with such strictness, that where several underwriters had signed their names to the usual printed form, and there was afterwards an insertion of the par- ticular descriptions of goods intended to be secured, it 4Taimton, 330, Till • 111- • 1 • Langliorn t>. was held, that no action would lie against an underwriter Cologan. who had not subscribed the policy as altered. And if the underwriter say he will take no advantage of the ^ starkie 64 alteration the mischief will be the same. A material CampLieil v. alteration will at all times discharge the underwriter. Policy from Cuba to Liverpool. There was an inter- polation, " with leave to call off Jamaica," and all the assurers agreed to this, without an increase of premium, ^ groHerip & save the defendant, to w'hom no application was made, Bingham, 158, because he was absent ; the alteration was considered chabcrt. fatal in an action against this defendant. So where the time of sailing was altered from the 10th of October to the 31st of December; here a winter risk 170 7 Taunton, 416, Fairlie v. Chris- tie. 3 Campbell, 382, Ciapham V. Cologan. 1 Broderij) & Bingham, 426. 4 Moore, 5, Sanderson v. M'Culliiu. 1 Vesey, 317. Henkle 1;. Royal Ex. Assurance. 1 Atkins, 545, Motteux V. Lon- don Assurance, 4. Stamp. 3 Campbell, 103, Roderick V. Hovil. OF SHIPPING : would have been imposed on the assurer, it was a mate- rial difference to him, and the pohcy was vitiated. But on the other hand, however dangerous the experi- ment may be, an immaterial alteration will effect no change in the liability. A ship, called the " Three " Sisters," had the option of going to Cadiz or Seville, or to both ; after the signature, the broker inserted the words " Tres Hermanas or," and further, after " Seville," " both or either ;" these interpolations were considered harmless, for the policy was precisely the same as before their insertion. The plaintiff, an insurance broker, alarmed lest the words " to sell, barter, and exchange goods, unload, " and reload goods," should not be large enough, inter- lined, " and trade," and the Court approved the opinion of the jury, who thought, that this addition could not make a difference. In Chancery, the same doctrine is entertained. The Court has a jurisdiction to relieve against mistake, but will not help a plaintiff who has varied his original con- tract. But where the policy was, by mistake, made out differently from the label, which, with all the particulars of the agreement, had been entered in a book, the Court held that the policy might be rectified, and made con- formable to the label. Very nearly connected with this subject is the stamp requisite upon an instrument of this kind. If the policy be not, however, duly stamped at first, the Commissioner of Stamps cannot give it validity by permitting the pro- per stamp to be affixed. And if there be a want of com- pliance with the law in this respect, the parties cannot be let in to give evidence of any variation in the contract. And this, although it was the usage at Lloyd's to put down all the risks taken in the course of the day, and it was desirable for the defendant, an underwriter, to show INSURANCE. 171 that another underwriter had subscribed the ship first, 3 East, 573, ,,11. • , ,• Marsden t>. and thereby to prove a misrepresentation. j^^jj . p^^.^^ However, by 35 G. 3, the two insurance companies of 45. Rogers v. the Royal Exchange and London may make agreements *" ^^' on unstamped labels, provided the policies be duly exe- ^ 63^3. 18. cuted and granted within three days from the date of the agreement. By the 1 ith section of the same Act, the constituent parts of a policy are prescribed, namely, the premium, the risk insured against, the names of the sub- scribers, and the sums insured. No policy is to be for a longer term than twelve Sect. la. months. Where the sums insured on homeward voyages exceed Sect. 10. the interest of the assured, the Commissioners may allow for the excess of duty. The penalties under the Act are, for making the pohcy Sect. 15. without a stamp, 500 /. ; upon a broker for negociating such a defective instrument, 500 /. besides the forfeiture Sect. 16. of their brokerage; upon the insurer who receives the Sect. 17. premium under such circumstances, 500 1. (q). Several questions have arisen upon the thirteenth section. It provides, that no additional stamps shall be necessary by reason of any lawful alteration, if it be made before the determination of the risk (/•) ; provided also, that the premium originally paid shall exceed 10s. per cent, that the property shall not be changed, that the term of insurance shall not be prolonged, and that additional sum shall be insured by such alteration. 8 East, 273, The following alterations have been deemed legal : an Kenf'»gt^i^- » _ Inglis; 4 lauu- extension of the time of sailing ; the withdrawing the ton. 169, Hub- bard I'. Jackson j ■ — ' 4 Canipb. 107, (§-) See the remainder of the Act for other regulations. shedden • 5 ( r ) " The loss or safe arrival of the thing insured, or the Taunton, 359, " final end and conclusion of the voyage." By Lord Ellen- "^^"^ ^ \\i^^' borough, 8 East, 291. shall, 99, same case ; 1 Maule & Selwyn, 217, 172 OF shipping: mark, R. on hemp ; the cancelhng of a warranty ; the Bobinson v. alteration of a pohcy on goods, made by mistake for one on Touray ;5 ... .,., i rr ■ i £■ Maule & Sel- smp ; insertmg the right and eltacing the icroug name or •(vyii,267,Kam- ^ gj^-p . adding two voyaging places to the original port 2 Barnewail & of destination ; a memorandum permitting the merchant WcirTAber^' ^^ discharge part of his cargo, the ship having returned deen. into port, being overladen. The next alteration has been pronounced fatal. Insurance on " ship and outfit " made " ship and Hill V. PauVn. " goods" by a special memorandum, but without effacing the original words ; and suing on the original contract 9 East, 351, afterwards made no difference, because there had, in Irench u. Pat- ' ton, point of fact, been an alteration. 6 Taunton, 171, If underwriters agree to refer, one stamp for the agree- Goodson V. ment, and one for the award will be sufficient, for there Forbes. . . „ . , , is a community of interest between them. 55 Geo. 3, The scale of duties is subjoined, as regulated by the *'• *^'>- last Stamp Act : 1. — Policy : upon any ship, or upon any goods, mer- chandize or other property on board, or upon the freight of any ship, or upon any other interest in or relating to any ship which may be lawfully insured for or upon any voyage from any port or place in the United Kingdom, or in the islands of Guernsey, Jersey, Alderney and Sark, or the Isle of Man, to any other port or place in the said kingdom ; i. e. Where the premium or consideration actually and bondjide paid, given or contracted for does not exceed 20 s. per cent, and the sum insured does not exceed 100/. - - - is.^d. Where the premium does exceed 2 OS. - - 2s.6d. If the sum insured exceed loo/., then for every 100/. and also for every fractional part of 100/., the premium being not more than 20s. per cent. - - - -is.^d. INSUKANCE. 173 Where the premium does exceed 0,0 s. - - as. 6<f. But if the separate interests of two or more distinct persons shall be insured by one policy, then the said duty of is. ^d. or 25. 6d. as the case may require, shall be charged thereon, in respect of each and every frac- tional part of 1 00 l. as well as in respect of any full sum of 100/. which shall be thereby insured upon any sepa- rate and distinct interest (s). 2. — Upon any other voyage (^), or, any certain period of time not exceeding* twelve months : Not exceeding 1 00 /. nor the premium 2,0 s. percent. - - - - - -2 s. 6 c?. Where the premium does exceed 20s. per cent. - - - - - - -5 s. oc?' Above 1 00 /. for every 1 00 1, and any fractional part, where the premium does not exceed 20s. per cent. - - - - - 2s. 6d. Where the premium does exceed 20s. per cent. - - - - - - - gs. od. The same rule as to the insuring of separate interests. (s) Interests were insured as for one entire sum, but it turned out that they included fractional parts of 100/.; though the stamp was sutficient to cover the entire sum insured, yet as it was not of sufficient value to cover the fractional parts, it could not be given in evidence. 15 East, 601, Rapp V. Allnutt. {^t) Evidence admitted to show that the Mauritius is con- sidered, in mercantile contracts, as an East Indian island. Ryan & Moody, 75, Robertson v. Money. In geography the Mauritius is an African island ; and in a prior action against another underwriter, on the same policy, there being no evidence of the mercantile usage, the Court abided by the ordinary acceptation. 1 Bingham, 445, Robertson v. Clarke. 174 OP SHIPPING : 3. — Upon a policy of mutual assurance, whereby divers persons insure one another without premium : Upon any voyage from one part of the United Kingdom to another, upon every sum of 1 00 1, and every fractional part of 1 00 /, - 2 s. 6 d. Upon any other voyage, or for any certain term, &:c. - - - - - - ^s. od. The same rates are prescribed in respect of any lawful insurance, and the same rule as to separate interests. 5. Proceedings You Cannot go into equity to enforce your demand, upon Policies, .. i-iii i-i '/-^ and respecting for it IS One which belongs peculiariy to a Court 01 Law ; *'*®'"' but where it becomes necessary to restrain proceedings at law, the Chancery will afford relief. As where wit- nesses are required from abroad, in which case there will be an injunction, and a commission to examine such witnesses. And again, where it becomes needful to unravel any suspicious circumstances, a Court of Equity will compel " a full disclosure on oath, and the See Park, 592- *« delivery of all papers and documents material to the ^^^' " question." An action will lie at common law, although there be a clause in the policy that, in case of dispute, the matter 1 Wilson, 129, shall be referred to arbitration; it being understood that Kill V. Hoi- no reference is pending, nor any made or determined. It is no defence, in an action on a valued policy, to 4 Campb. 228, g ^^^ |.|-jg gj^jp jg Qj^j valued at 6,000 /. in this policy, liousfield V. '' . . 1 J Barnes. and that the plaintiff has recovered that sum on another policy, if evidence be given to show that the vessel is actually worth more. Park, c. 20 ; With reference to the pleadings and evidence, the Marshall, c. 16. reader may be more properly referred to the books upon those subj ects, and to the text books upon Insurance. By 19 Geo. 2, c. 37, s. 6, in all actions brought or commenced by the assured upon any policy, the plain- tiff, or his attorney or agent, should, within fifteen days INSURANCE. 175 after he should be required to do so, in writing, by the defendant, or his attorney or agent, declare what sums he has assured, and what sums he has borrowed at respondentia or bottomry, for the voyage in question in such action. By the 7th section, the underwriter may bring money into court ; and if the plaintiff refuse to accept it, and proceed to trial, unless the juiy give him more damages than the sum so brought in, he must pay costs, to be taxed. The consolidation rule is where the underwriters apply to stay proceedings in all the actions except one, and undertake to pay their subscriptions, with costs, if the plaintiff should recover, offering at the same time to admit every thing calculated to raise the true ques- tion before the court and jury. They also agree not to file any bill in equity for delay, nor to bring a writ of error. If the plaintiff should object to the arrangement, the Court can grant imparlances in all the actions com- plained of, till the one proposed may be tried. But he will be entitled to costs up to the time of the bringing the money into court, if he refuse, there being 6 Maule& Sel- a distinction between cases where there is, and where wj-n,io7,Powell ' V. Farkiiison. there is not a submission. Where the jury found, that a partial loss had been sustained, but there was no evidence of the amount, the R^an & Lord Chief Justice directed them to give their verdict Tamiei't). Ben- with nominal damages. "^^'' With an intention of restraining wagering instruments, of bottomry it was declared by 19 Geo. 2. c. 37, s. 5, that money 5ent[r''°"' lent on bottomry, or at respondentia, in East Indian voyages, should be lent on the ship, or goods only, and should be so expressed in the bond ; that the benefit of salvage should be allowed to the lender, who alone should be able to assure the money so lent ; that no bor- 176 7 Geo. i,c.2i, s. 'J. \ Vernon, 063, Deguilder v. Depeister. 1 Maule 6c Sel- wyn, 30, Thorasoii I'. Royal Ex. As- surance ; Park, 627, Joyce V. Williamson. Park, 629, Wal- pole V. Ewer. See the caves, Park, 63l. OF S H 1 P M N G : rower should recover more than his interest on the ship or goods, and that if his interest should not amount to the money borrowed, he should be liable for the over- plus in the proportion the money not laid out should bear to the whole money lent, notwithstanding the ship and merchandizes should be wholly lost. Lending money on bottomry, &.c. on foreign East India ships is also prohibited. Both principal and in- terest must be risked, for if the interest or premium be alone put in hazard, the contract will be void as being in contravention of the Statute of Usury. And, analo- gously with the law upon insurance, if the risk be never incurred, as if the voyage be not commenced, the bond cannot be enforced, and equity will relieve against it. To enable the assured to recover there must be a total destruction of the thing sought to be secured, for if it exist in specie, though under circumstances which might justify an abandonment in insurance, the owner cannot be discharged from his obligation. By the law of England, lenders at respondentia are not liable to averages, and at common law assurers on bottomry have no title to salvage. But in East India voyages, we have seen, that salvage is awarded them by statutes. A wilful deviation will charge the borrower, though the ship be lost, for the event, upon which the borrower was to avoid his bond, has not happened (m). (m) See 6 Geo. 4, c. i6, sect. 53, as to the proof by the obligee in the bottomry bond, in case of the bankruptcy of the insurer. Bl.OCKADR. ^ *177 OF BLOCKADE. It is a principle of the Law of Nations that a belli- 2 Rob. 118. gerent may blockade the ports of his enemy. The declaration of a commanding officer upon a What a legal foreign station, without an actual investment, v.ill not l^'"*^''^'^^- constitute a legal blockade. And it is necessary that 1 Hob. 92, a. the blockading force should have the power of enforcing ^ *^^' the investment, or it will not be recognised in that quar- ter where it is inefficient (a). In the case of Monte 4 Rob. 66. Video, a blockade imposed by the commander upon a ? . ^'fl r ^ 1 heteii. Id. 112. distant foreign station was considered to be legal with- out any previous order on the part of government. It ^^°^' ^^\^q is equally a blockade, although it be not so much di- ^^^,^1, -s Spes rected against the country as against the enemy in the ^ud Irene. interior, and the rules in such cases must be observed. Some warning, either express or implied, must be A'dice of given of the establishment of such an interruption to ^'^ckade. commerce. Thus, if there be a blockade de facto only, i Rob. 150, the master of a ship entering the port is entitled to ^'^°'^' -^"'''i''- warning (6). But this rule does not prevail where the 1 Rob. ir,6; 2 parties have been made acquainted with the circum- stances. There is this distinction between a blockade de facto and one by notification, that in the latter case ionorance is no excuse : in the former, the mere sailinp; _ , .^ . . . . ° 2 Rob. 1 1 l,n. is a violation of the rule after a notification (c). But Adelaide. although a notification does not, of itself, bind any 2 Rib. in, country save that to which it is personally made, yet, after a reasonable time, neighbouring states may be affected with evidence of it. Sufficient time, however, must be allowed in order to Time allowed. bring home a knowledge of the blockade to the parties, and a week was holden insufficient for this purpose (a) Blockade known at Amsterdam April la, constructive notice at Rotterdam April 15. 2 Rob. 298, Calypso. (i) See 1 Rob. So, 5 Rob. 78. The blockade should be specifically described. By Sir Wm. Scott, 2 Dods. 280. (r) Sec 6 Rob. 177. 1 Rob. 156. * M *i7S a Rob. 131, Joiige Petro- nelia. 3 Rob. 173. Neptunus. 3 Rob. 281, Adelaide. Coraraence- nient. See 2Dods.284. Who and what ships liable. 3 Rob. 324, Hurtige Hane. fi Rob. 177. 180, Tutela. 3 Rob. 110, Neptuiiiis. Extent of Pro- hlbitioii under Blockade. I Rob. 80, Mercurius. 3 Rob. 336, Twee Ge- brocders. 4 Rob. 63, Frau Isabe. Edw. 190, Luna. 1 Rob. 146, llenrick and Maria. OV SHIPPING : where the ports of the United Provinces were blockaded in 1799. Where there is not sufficient time for an agent to countermand a shipment, he will be exonerated from his responsibility (d). It was so held also with respect to a notice in America of the blockade of Amsterdam. The commencement of the blockade seems to be when ships are assembled for the purpose of stopping egress and ingress. It has been held, that merchants of SafFree, and of other African states, must observe a blockade, although excuses may be made for their want of knowledge of the European laws of nations on points not familiar to them. And so a neutral vessel in an enemy's port may, perhaps, be considered favourably, where there has been no warning on the spot. A notification includes all the in- dividuals of the nation to which it applies, and, as we have seen, supersedes the plea of ignorance. A prohibition to go to Amsterdam includes the Vlie passage as well as the Texel. All sea passages to Amsterdam by the Zuyder Zee are under blockade, if they be in the enemy's posses* sion, but not such as are in the possession of neutrals, unless the blockading force could be applied to the in- terior extremity of their communication. The blockade of Holland as to ships going to Ant- werp was not violated by a destination to Antwerp passing the Scheldt. For the Scheldt is a conterminous river, and is not considered a river of Holland, which it divides from the adjacent country. And a blockade does not extend to places only tem- porarily in the enemy's hands. A blockade is not to be extended by those who are authorized to carry it into execution, for the notification of it is an act of high sovereignty. Therefore notice of a general blockade of the Dutch coast is not available by limitation to Amsterdam, although the blockade of the latter place may in reality be existing. (d) See 6 Rob. 368. 370. 1 Hob. 151. TiLOCKADi;. *17(^ Moreover, the blockade of Amsterdam being partial 4 Rob. as, ill its nature is not violated by a shipment inward to id'e^^s^p Embden, with an ulterior destination to Amsterdam by inland canal navigation. The same point was decided, when articles were conveyed by interior canal navigation from Amsterdam to Rotterdam, and then shipped under 3 Rob. 207, orders from America to make a shipment at Amsterdam. Ocean. And, in fact, the mere passing through a canal in an enemy's country, leading from sea to sea, in order to for- .^ , 1 • ii-i-^i ' Dods. 169, u ward a voyage is not deemed a violation of blockade ( e ). notis, Juiia. Of the Violation of BlocJiade, and of the Excuses tvkick are availahle. Those within the blockaded place are presumed to be Egress and In- cognizant of the prohibition, and, therefore, the block- ^^'^^^' ade may be violated by egress, without warning, and a vessel comino; out of a port under these circumstances ^ ^°''' '''• \^ prima facie liable to seizure. And, of course, if the master have been warned and he 5 Rob. 256, persist in his course, there will be a violation. As where, -^"""'^■ after repeated warnings, he was still found in the same course under pretence of ascertaining the land. So again, 5 Ro'^- 2B9. when the master obstinately declared he would po into „ ^ . • 1 , . . 5 Roll- 262, port, and continued, after w'arning, in the track prohibited, shepherdess. The purchase of vessels in a blockaded port is fre- Edw. 346. quently a violation. As the purchase of a prize-vessel oRob.^ei*" Ge- by a neutral. "pral Hamilton, So is a sale. A vessel sold in a blockaded port by a neutral, who had himself bought her from the enemy since the commencement of hostihties, was condemned in the first instance for want of proof that she had been g Rob. vn, transferred since the commencement of the blockade. Vigiiaima. To withdraw a ship transferred there between neu- 4 Rob. 89, trals, in ballast, is not a violation. (e) Order in Council, 24 June 180.3, extended to out- ward voyage from a neutral port to the enenny's colonies. 6 Rob. 362, Conferenzrath. *-i8o 6 Rob. 101, V;ii;iflotte Chris- Id. i8-2, Glitz Erwartuiig. 6 Rob. 30, ^euu•alitet. Anliur. Ed w. 207, Mentor. 6 Rob. 181. Id. 201. 206. Edw. 198, Eli- zabeth. 2 Rob. 124, Hurtige Hnne. 5 Rob. 262, Shepherdess. 5 Rob. 76, Spes. Edw. 249. Edw. iicld. h By or s H 1 r p 1 X G : The followino- excuses aileaed for an acknowlec(2;ed violation have been rejected by the Court : An excuse of a want of pilotage is regarded with great jealousy. Thus an approximation to the blockaded port so as to expose the blockader's force to the batteries on the coast, was deemed a breach (f). A ship might thus approach, perhaps with no existing necessity, within the effectual protection of the shore. Again, a deviation from the ostensible voyage to the vicinity of a blockaded port, under pretence of having received information that the port of destination was frozen, and of the want of a pilot, was held a breach (g.) So again, that the ship went into the blockaded port to procure a pilot for another port. So where a neutral vessel, ostensibly bound to an open port, with all her papers, except one, favouring that destination, was condemned upon being found widely out of her course ; for under such suspicious circumstances, the fact of navigation must overpower any result which might be drawn from the papers (A). It is no excuse that there is a stipulation in the charter- party to proceed to a blockaded port ; but on one occa- sion the penalty was relieved by a special relaxation as to the trade between Varel and Bremen in lighters. Even an excuse of distress for want of pilotage has, under some circumstances, been holden unavailable; and so o'eneral excuses of distress will not serve. The intoxication of the master is no excuse. A contingent destination to the mouth of the block- aded port for orders or information as to the probable continuance of the blockade, will not avail; for a vessel has no right to call at an interdicted port, either for orders or otherwise (/). If a master have carried his ship into the prohibited (/) See 6 Rob. 36. 101. 183. (g) 6 Rob. 102. 183. (A) See as to deviation for the purpose of avoiding British cruizers, Edw. 208. 4 Rob. 408, Elsabe. Id. 413. 421. ( i) However, such an inquiry has been allowed under particLihir circumstances. 1 Rob 332, Betsey. BLOCKADE. *l8l port; it is no excuse that he has sold the cargo subse- quently, through compulsion. A permission by a British officer has been deemed Ed\v. 249, Coq- insufficient, under certain orders in council. "^'' The misinformation of foreign ministers as to the 5 Rub. 8a. cessation of a blockade, will not avert the consequences of sailing in actual breach of it. But there are excuses which the Courts listen to with Available Ex- favour. An unavoidable necessity, which cannot be resisted, is an exampie ot this position. Ignorance, also, except under the circumstances men- tioned above, is an excuse. As where the owner sent his vessel on a destination to Amsterdam, which was 3 H"^- ^^"' blockaded, being ignorant of that fact, and the master having bona fide changed his course prior to the capture. So where a vessel went into the blockaded port in distress, t. , ^ ... >■ ' Edw. 262, and came out again with her original cargo on board. Charioiia. So, again, unfavourable winds will operate as an 5 Rob. 27, excuse, and the want of provisions, provided that, in '"■^""^• this latter case, there be an absolute and irresistible necessity to enter the blockaded port ; and this excuse of necessity must exclusivelj/ apply to that port. 6 Rob. 32. Again, the remissness of the blockading force will .3 Rob. 147, in some cases be an excuse. But although ships coming Schro "d'er^'^"^ out with a cargo might not, under some circumstances, be confiscated, the excuse will not avail the owner of a c^rgo shipped in the blockaded port. ^^i- ^sf. If, however, there be any tacit relaxation in favour Id. 160. of particular ships, the indulgence will be considered as confined to such exclusively. A vessel allowed to pass the blockading squadron with- out molestation, but subsequently captured, was restored ^ ^^'^- ^-' xi ■ p 1 1, 1 , 1 ■ , • , Cbrislina Mar- on the presumption or the blockade having been raised, gaietba. Other defences there are to a charge of violating blockade, which are rather absolute justifications than extenuations of the supposed offence. A license is a substantial answer to a charge of this License, kind : it is sufficient if it be granted on the sanie dai/ with the notification of the blockade. Hoil'nun''. '^' *l82 OF SIllPPlN(i Kdw. 53, Mer- cuiiiis. 2 Rob, 1 ig. Edw. i88, igo, B;y field. 6 Rob. 381. 6 Rob. 387, Liselte. Condemnation. 2 Rob. 114.129, Id.128. Wel- vaart V^an Pil- law. 3Rob. 153.157. 6 Rob. 381, 2, Christiansberg. See 5 Rob. 384, Anna. Ibid. Extent of Con- demnation. And where a ship was proceeding from Bordeaux to Bremen, in violation of an order in council, but with directions to put into a British port for the purpose of obtaining a license, the presumption that the ship was bound on a continuous voyage in breach of the block- ade, was counteracted. A license of this nature is construed liberally. Thus a license to carry a cargo into a blockaded port, virtu- ally entitles the party to come out again : but a license generally authorizing a ship " to sail from any port with a cargo, will not protect a vessel sailing from a blockaded port with a cargo taken in there. Permission to come out of a blockaded port, implies a contract that the destination shall be pursued (k). If the blockade be raised between the time of sailing and the capture, it is a good defence ; the vessel not being taken in delicto. The result of a violation of blockade is the condem- nation of the vessel making; default : but it must be made within the time prescribed by the law ; that is to say, before the end of the voyage succeeding that in which the violation was committed. The breach is im- putable inwards from the time of sailing on that desti- nation, and outwards until the termination of the voyage. Until that termination, a vessel having broken blockade is in delicto, and may be seized. So that a vessel which had violated a blockade in her voyage inwards, was held liable to capture on her return voyage. The voyage immediately succeeding the infrac- tion of the law, and which affords the first opportunity of enforcing the seizure, is the limit fixed by the courts : otherwise, a breach of blockade on a former voyage can- not form a consideration for a subsequent seizure. The condemnation is of the ship and cargo, or of the ship only. If the master violate a blockade the ship is (k) A license to the ports of the Vlie, " or elsewhere," held to include the Texel passage to Amsterdam. 2 Rob. 1 16. See 1 Dods. 134, Success. I BLOCKADE. *l83 afFected, but not the cargo, unless it be the property of the same person, or unless the owner of the cargo be ^ j^^^ g^ cognizant of the intended offence. Mercurius. However, if the cargo have been taken on board after i Rob. 86, Fre- the commencement of the blockade, with knowledge, ^"^ "' *^" both ship and cargo are liable to seizure ; and a vessel coming out of a blockaded port is prima facie liable. The violation of a blockade by notification, either ' ^°^- ^54. by the master or the consignee, mvolves both ship and cargo in the same condemnation, although the owners appear to be ignorant (/) ; for it is only in cases where the proofs of the innocence of owners of the cargo have been found on board at the time of the capture, that the penalty can be relieved ; proofs brought forward after- wards will not be sufficient. But where orders had been given for goods prior to the existence of a blockade, and there was not time afterwards to countermand the shipment ; and again, where there was no knowledge of ^dw. 43. the blockade until after the, ship had sailed, and the master obstinately persisted in going on to the illegal port ; in both these cases the cargjo was held not to be responsible {m). The owners of the cargo must answer to the country imposing the blockade, if it were only for this reason, ^^- '^3- that by sacrificing the ship, there would otherwise be an escape for the cargo. If the master abandon an illegal purpose, he might Ibid, probably be exonerated. A fraudulent deviation creates a strong presumption 4 Rob. 93, against the owner of the cargo. Aiexaiick-r. The port of destination must be considered the port Edw. 39,&c. of delivery of the cargo. Upon the notification or happening of a blockade, wh.u a noutial a neutral ship can only take away a cargo purchased '^^'^ ""'^ ^'"^^ (0 See 5 Rob. 261, 2G2. 267. Edw. 39. 42. 44. Exchange Edw. 261, James Cook, (7k) The evidence of tlie master and mate, in cases of blockade, is received with great jealousy. Edw. 261. *i84 1 Rob. 152. 2 Rob. 1 1 9. 5 Rob. 264. Edvv. 3-2, Comet. Ibid. End of Block- ade. 1 Rob. 170, Neptunus. 2 Rob. 109, Vrow Johanna. Renewal. 6 Rob. 112, Hoffnung. Ships sharing Prizes for vio- lation. 1 Dods. 425, Arthur. Edw. 6, GuillaumeTell. 2 Dods. 96, La Hen net te, S. P. OF SHIPPING : and delivered ho7ia fide before the commencement of . such blockade. So a ship which has entered previous to the blockade, may retire in ballast, or take out a cargo put on board before the blockade (w). The merchants of America have been suffered to clear out conditionally for a blockaded port in Europe, even after notification, on the ground, that before the arrival of their cargoes, a relaxation might have taken place. But a neutral vessel may not proceed in ballast to a blockaded port, in order to bring away a cargo pur- chased before the commencement of the blockade (under Order of Council, 11th Nov. 1807). Ships innocently in port before the imposition of the restriction, with cargoes previously laden, might have been permitted egress ; but a distinction was taken between egress and ingress, in that instance. A blockade de facto expires de facto; a blockade by notification continues until such notification be revoked : the onus proband i is thrown upon the claimant. A renewal of blockade is not to be presumed. If it be raised there is a total defeasance, and the appearance of another squadron will not restore it ; but it must be again notified, in order to affect foreign nations, in the same manner as before the raising (0). There is a joint interest in prizes where ships act together ; but where proof fails as to their being in sight and associated in the same service, (as in the case of a blockade under Orders in Council of April 1809), the case is different. In blockading Malta, ships were sta- tioned at different points ; and they were held entitled to share as joint captors. (;?) As to the taking an enemy's property out of a block- aded fort, without knowledge, see 5 Rob. 52, Xnssa Senhora da Adjima. (0) Roads, when so connected as to form part of the port, as the roads of Ostend, come under the description of ports, in considering the question of blockade. G Hob. 34. seamen's wages. 177 SECTION V. OF SEAMEN : THEIR HIRING AND WAGES, AND OTHER MATTERS. 1. Hiring and Wages of merchant Seamen, — 2. Apprentices in merchant ships, ^-c. — 3. Quarantine. — 4- Wreck. — 5. Car- rying Passengers. Hiring and Wages of Seamen. The Legislature has assumed a control over the con- tracts which are made between the masters of vessels and their mariners. Thus, no captain is to carry a seaman, except his ap- prentice or apprentices, out to sea to proceed on any 2 Geo. 2,0.30, voyage to parts beyond the seas, without first making an agreement in writing for wages, in which there shall be declared the wages, the time of service, and the voyage, under a penalty of 5 /. to the use of Greenwich Hospital, to be recovered before a justice, who may issue a warrant to bring such captain before him. On refusal to pay, the offender's goods may be distrained, and in default of sufficient distress, he may be committed. A similar provision is made for vessels in the coasting trade of one hundred tons burthen and upwards, going out 31 Geo.3, c. 39, to open sea. '-'sect.io. By the second sections of those statutes the mariners are to sign the agreements, (which need not be sealed (m), (m) However, if the articles be sealed, a deed is not thereby constituted, unless the paities mean to contract in that man- ner. It is not sufficient that the seals have been affixed through ignorance. 5 Esp. 83, Clement v. Gunhouse. N 178 The Voyage. 1 Hag. Adm. 347, Ihe Mi- nerva. Id. 370, The George Home. Conclusive and binding. 2 Geo. 2, c. 36, 3. 2. Abbott, 434. 3 Campb. 290, Dickraan v. Benson. 37Geo. 3,c. 73, s. a. OF SHIPPING : and the latter is excepted from the stamp duty,) and after such signatures, they shall be binding and con- clusive on all parties. In the first case the signature is to be within three days after the mariner enters himself, in the latter, at the time of his so doing. The voyage should be described with as much accuracy as possible: a ship was expressed to be bound to New South Wales and India, or elsewhere, but the Court of Admiralty restrained these latter words, and would not sanction a voyage of considerably greater extent than that specially declared in the agreement. " From London to Batavia to any ports and places, the East India seas, or elsewhere, and until her final arrival at any port or ports in Europe." It was intended in this contract that the ship should, in fact, return from India to Cowes, and there receive orders as to the port of her discharge, and the Judge (v) thought, that the description of the voyage was much too general, and that this intention of proceeding to Cowes should have been incorporated in it. These words are considered as substantially applicable to the voyage and wages, for the Court of Admiralty, like a court of equity, will throw a shield round the improvidence of seamen, and will form its own judgment upon any other engagements they may have contracted. It has been held, that this statute (x) of 2 Geo. 2, does not include seamen entering on board foreign ships at a British port. Every master of any British merchant ship, who shall hire a seaman or other person, to serve ori board his vessel, with a knowledge that such seaman, 8lc. has de- (v) Lord Stowell. (x) It is extended to his Majesty's colonies in America by 2 Geo. 3, c. 31. And similar provisions are made for the West India trade by 37 Geo. 3, c. 7^. seamen's wages. 179 eerted from any other ship, shall forfeit 100/. Although this clause is contained in the statute regarding the West India trade, it is the opinion of Lord Tenterden in his book, that, as it seems to have no connection with the preamble of the Act, and is expressed in general terms, it is not to be confined to the masters of ships Abbott, 436. engaged in that trade. By section 3, no master of any merchant ship shall hire any seaman or other person, at any port of His Majesty in the West Indies, at more wages or hire than according to the rate of double monthly wages con- tracted for with the seamen, &,c. hired at the time of the ship's last departure from Great Britain, but being in the same degree in which such seaman, &.c. shall be so hired as aforesaid. Unless the governor, chief magistrate, collector or comptroller of such port in the colonies shall think that greater than the double monthly wages ought to be - given, and shall authorize such further payment under his hand ; all contracts for such prohibited advance of wages are to be void, and the master who enters into them forfeits 100 7. Nevertheless, if the seaman, &e. at the time of the 37 Geo. 3, c. 73, , . . s. 10. mnng, produce a certificate (3/) under the hand of the cap- tain with whom he has last served that he has been duly discharged ; or, if very hazardous service, or extraordi- nary duty require such a contract, of which necessary proof must be made on oath before the chief magistrate of any port, or Justice of peace of the said colonies, the Act shall not apply ; so as, however, the seaman have not deserted from his last ship ; and, again, so as that the rate of wages be no greater than the double (y) Signed by one or more witnesses, and which certificate is to be granted under a penalty of 20/., within three days after an application. N 2 i8o OF shipping: monthly wages, or the wages to be settled by the go- vernor, &c. save in the cases of hazardous service or extraordinary duty. The obscurity of this proviso is most obvious. The latter part of the clause seems to contradict the former, inasmuch as that after the declaration that a certificate of discharge shall prevent the statute from operating, there comes a second proviso, that save in cases of necessity no more than double the monthly wages shall be taken, which was the original enactment proposed to be excluded by the present clause in the very case. " If, as at first " appears, it was intended to allow the master to give " double wages without the authority of a magistrate AM>tftt„439. " in two cases ; namely, first, to mariners producing " a certificate of discharge from their last ship ; and, ** secondly, in the case of necessity, hazardous services, " or extraordinary duty, proved upon oath, to mariners " who have not deserted from their last ship, then the *' last part of the clause will be ineffectual. If, on the *' other hand, it was intended to allow this power to " the master only in the case of necessity, 8cc. so proved, " and to mariners who have not deserted, then thejirst " part of the clause will be ineffectual." A licence was given to the master by the chief magis- trate at Jamaica, " to procure men on such terms as he " can," 8cc. The plaintiff, a sailor, was hired at a greater rate than the double monthly rate by virtue of this licence, but in an action to recover his wages he was nonsuited be- 2 B. & P. 57, cause the licence should have regulated the precise sum. Rodgtrs u.Lacy. . , i • . ^ mi Under the agreements entered mto as above prescribed. Id. 116, White nothing in the nature of wages maybe recovered except V. Wilson. ^jjg sums of money or other rewards therein contracted 5 Esp. 84, J Elsworth V. for. 00 more. Thus, the average price of a slave, a monthly sum be- See also a Rob Y*^"^ ^^^^ mentioned in the ship's articles, &c. cannot be 241. Thelsa- recovered unless specifically inserted in the articles. Leila. seamen's wages. 181 As we have seen, in salvage cases, that no extraordi- nary remuneration is due for the performance of duty, so a promise by the master to pay an extra sum for wages p^^j^^ ^^^ jj^^. when the ship was in distress could not be supported. rhv, Watson. An agreement was made on shore : some of the crew had deserted, and the captain promised to divide their wages among the rest ; this agreement was held void for want of consideration, for, at setting out the crew were under an obligation to meet all the emergencies of the voyage, they had sold their services until the completion stiik'vfMyrkk. of the voyage. An engagement for services, not consistent with the law of the country, must necessarily be void ; one, for 6 Rob. 207,1116 instance, in contravention of the Slave Trade Acts. We have before observed, that the payment of wages is, in general, dependent upon the earning of freight (r). And it may be proper here to premise, that, under the .; ^ ^ r \ \-u 2 Geo. 2,0.36, statutes, if a seaman refuses to proceed on the voyage g, 3, -he has contracted for (a), he forfeits his title to wages, 31 Geo- 3. c 39. s. 3. (2) Unseaworthiness will defeat the claim of the mariner, no freight being earned, though perhaps he might have a special action. 5 Esp. 6, Eaken v. Thorn. But Lord Stowell has expressed an opinion that prevents the earning of wages from being always considered as cc-existent with the gaining of freight : " Mr. Jacobsen, in his laborious and comprehensive work, " says, ' It is a general rule that freight is the mother of " ' wages; but to this there are several exceptions;' and he " enumerates some of them : there are others that are not so ** enumerated ; as the cases of ships going out in pursuit of " freight, and returning disappointed without a cargo, in *' which case it can never be said that the seamen are not " entitled to their wages, botli on the outward and on the *' return voyage, though no freight whatever was earned." I Hag. 232. {a) Should the owners of the ship decline the voyage, N 3 iSii OF SHlPf'lNG.' 2 Geo. 2, c. 36, S.4. 31 Geo. 3, c. 39, 5.3. 1 Ld. Raym, 639, 739. Ano- nymous. 2 Show. 283, Anonymous. Abbott, 449. 8 East, 300; Appleby v. Dods. 3 B. & P. 405. Beale r. Thomp- son ; 4 East, 546. 4 East, 566, Johnson v. Bro- derick. and he may moreover be apprehended by a Justice's warrant, and sent to the House of Correction for a space of time not less than fourteen, nor exceeding thirty days. Where the voyages are consolidated, and the ship perishes, the seaman has no claim ; where they are dis- tinct, wages are due up to the delivery of the last cargo on the outward voyage. And so, though the ship be lost on the outward track, if there have been money advanced on the freight, the seamen become entitled to their wages in proportion to the freight advanced. It is now common for the mariners to give bonds that they will not claim any further wages than the impress money paid them in advance in case of the loss of the vessel, notwithstanding she may have broken bulk, or delivered goods {b). If London be fixed as the concluding port of the voyage, and the seamen agree that they are not to have wages till the ship reaches her port of discharge, the seamen cannot recover pro rata if the ship be lost before her return to London. Yet, if the stipulation be for wages at so much per monih> and there be a detention of the vessel, proportionate wages will become payable during the period of such detention, whether the plain- tiff be an Englishman or a foreigner. Independently, however, of special agreements, sailors will have their wages in proportion to the payment of freight ; for example, if part of a cargo be saved. And, in other cases, where they have used remarkable endeavours to preserve their vessel, they may become entitled wages are due for the time the mariners have be6ri on board . 2 Lord Raym. 1044, JVelh v. Osman. (h) See 2 Vern. 727, Edwards v. Child and East India Cam pan I/. seamen's wages. 183 to a recompense by way of salvage. Where a stranded ship was sold, no part of the cargo being saved, and the seamen had been very earnest in their exertions, and had not departed until dismissed by the master, the Court of Admiralty decreed them their wages out of the proceeds of the ship, although no freight had been earned ; but here the wages were payable at the rate of so much by the month, and there was neither bond nor \,^%- ^^7, •' ' IheAeptune. special agreement. If a ship be recaptured, and reach her port, the Be^gjiromu. sailors are entitled to their wages. If there be a hostile Mills. embargo, and the ship afterwards return home, having 4 Campb. 186, , ,. .11 -,, Ai- 1, Delaraainer t;. earned freight, the same right accrues. And in order to wiuterin"hain. show that the sailor is not entitled to wages, the defendant 7 Taunt. 319. must prove that no freig-ht was earned, the seaman will BfownD.Miiner; r ° _ same case, 1 not be bound to adduce evidence to the contrary. But Moore, 65. if the vessel be captured no wao;es are due. 3 Burr. 1844, A mariner who is disabled in the course or the Ba«deii. Voyage, by accident or sickness, is entitled to his full a H. Black. 606, n. Chandler d, wages. Grieves. An objection ^vas made to the sex of a woman who had performed very active services on board, but the Judge said, that as the work had been done, the per- former was entitled to the common remuneration of such 1 Hag. Adm. , , 187, Jane 6c employment. Matilda ship. If the seaman dies during the voyage, his representa- tive, it seems, is entitled to any wages which may have fallen due. And it is no defence for the captain to say that, having accounted, upon oath, for the arrearag-es \ ^- ^"^P- -99' •? 1 -1 /T- p 1 • Armstrong 1. he has paid them into the office of the sixpenny duty Smith. receiver at Greenwich Hospital {d), and that, if he were (c) Under an Act confined to the West India trade, 37 Geo. 3, c. 73, s. 7, if the wages are not demanded within three years, they shall go to the seamen's hospital at the port where the ship belongs, or if no hospital, to the old and N4 i84 6 T. Rep. 320, Cutteru.Powell. 2 Geo. <2, c. 36 s. 13. 31 Geo.3, c. 39V Abbott, 444, Clements v. Ma^'born. 2 Campb. 320, Anor.yxiioua. 1 Esp. 86, Dankley v. Bul- wer, same case. OF SHIPPING '. not to do so, he would be liable to heavy penalties ; the right of action still remains. But where a sailor took a promissory note for thirty guineas, payable provided he " proceeds, continues, and " does his duty as second mate," &c. but before the completion of the voyage he died ; the Court held, that before the note could be available, the whole duty must have been performed, and that could not be, because he never lived till the ship's arrival in port. Express enactments secure an impressed mariner his wages during his time of service, if the ship come safely . into port (d). The Legislature has said, that by passing regulations with respect to merchant seamen, there was no intention to debar them from entering into His Majesty's service, snd that they should not forfeit in such a case the wages due during their service in a merchant ship, and that such an entry should not be a desertion (e). However, the seaman is not entitled to more. And Lord EUenborough has holden, that a sailor, at mt^nthly wages, cannot recover up to the time of his im- pressment or voluntary entry on board a King's ship, unless the voyage be completed (f). disabled seamen at the port, and their families, to be distri- buted at the discretion of the magistrates ; s. 8. Penalties and forfeitures are to be distributed thus : one third as we have just mentioned, only that the persons having the direction of the merchant seamen's fund are to have the priority, and if no such establishment, the magistrates or overseer ; one third is to go to Greenwich Hospital ; one third to the informer. They are to be recovered in the usual way ; s. g. See, however, 4 Geo. 4, c. 25. (/i) Under the common agreement. (e) This was the law before the statutes. (/) This must be where the seaman had agreed to serve for the whole vo3'age, as is usual. seamen's wages. 185 A share of prizes was agreed on in lieu of wages, but a full six-months service was also stipulated for on pain of forfeiting such share ; a seaman bound by this agreement, was impressed and accepted the bounty ; it was held, that his share of a prize taken before the im- Abbott, 444, pressing was not forfeited. ^^"' "• ^'^"'^ As to the time of payment (g) : it is enacted, that the master shall pay the seaman within thirty days after the ship is entered at the Custom House, if the wages be demanded ; save where a covenant to the contrary exist ; or payment must be made at the time of discharge, if 3 -^°' ' ^' 3 » a demand be made. Power is then given to deduct any penalties or forfeitures accrued due under the acts, and 20 s. over and above the wages of each is the penalty on the master for non-compliance, to be recovered in the same manner as the wages, and the payment so made shall be good and valid in law, notwithstanding any return, bill of sale, attachment, or incumbrance whatso- ever. The coasting trade Act prescribes five days after the entry at the Custom House as the time of payment, 31060.3,0.39, or the time of discharge. ^' ^' The penalties and forfeitures so deducted are to be a Geo. 2, c. 36, paid over to the receiver of the sixpenny duty at ^^^q^ Greenwich Hospital except such as belong to the «• 7- owners. And it must be done within three months 2660.2,0.36, S, 10. after the deduction on pain of forfeiting treble the 31060.3,0.39, value. !,• ^- „ see 4 Oeo. 4, And by certain articles of agreement annexed to the c 25, s. 10. West India Trade Statute, the seamen cannot have 37000.3,0.73. their wages until they arrive at the ship's intended port of discharge, and delivery of the cargo has been (g) Notwithstanding the agreement for payment at the port of discliarge, the seaman may sue directly if the master wrongfully dismiss him. 3 Esp. 71, Sigardv. Roberts. l86 OF shipping: made, and if they are not employed in such delivery, nat in less than twenty days. A prohibition against ad- vancing more than a moiety of wages due abroad is im- posed by 8 Geo. i. c. 24, s. 7, under a penalty of double the money advanced^ so that the port of discharge is considered in Lord Tenterden's book to be at the ship's return to this country, for, otherwise, it would be con- Abboit, 453, trary to law to pay the full amount of wages. Where foreign seamen agreed that they would not institute any suit against the captain in foreign countries^, aH. Black. 603, although their ship was confiscated ; here it was held, GienartJ.Mejer; ^^,^^ ^^^^ could not maintain any action for wages. In V. ulighi'mati -^ ^^^ ^^^^ citcd they were not prisoners. 3 Canipb. 44, Johnson v, Machielsne. a Star, 325, If the master admit certain wages to be due, a claim' Mattrson. ^^ ^^® ship's articles fixing the time for payment cannot be used as a defence. The offence of desertion, which, by the maritime law, deprives a seaman of his wages, comes next to be con- ii&iaW.3, sidered. c- 7> S' 17- For the prevention of seamen deserting merchant ships abroad in parts beyond the seas, all such seamen, &c, Abbott,4(>3. who shall desert, being hired for the voyage, shall incur 2 Geo. a, c. 36, a forfeiture of their wages. '■ ^' Any seaman who shall desert in parts beyond the seas, or shall desert generally, shall lose his wages. And the like punishment is awarded for desertion as we have Ante 181 already seen fot refusing to proceed on the voyage after subscribing the contract. The like forfeiture is ordered by the statute for preventing such desertion in the West India trade. illag. A(fm. If a mariner quit his ship with leave of the master, ship. " ^ but refuse to return when ordered, he is within the for- feiture. So, where certain seamen left their ship the day after their arrival in the roadstead of Hull, with the seamen's wages. f^J master's leave, but against the positive orders of the owners, the Judge of the Admiralty refused to decree 5 Rob. 224, Wages, although the reason for their departure was, that ^^^ ^^^'^^' the harbour was too full to admit them. They could not be entitled to their dismissal, " till after some time of " just expectation of the remov^al of the difficulty." But it is not an act of desertion to go in quest of food as a matter of necessity, provided the party be after- sEsp. 71,81- Wards willing to return to the ship. Nor if the seaman ^^^ "" ° ^'^ '' quits the ship in consequence of his captain's ill-treat- ment of him ; for the captain's behaviour makes a disso- ^^- 269, Lira- lution of the contract necessary. Nor if it be required that the mariner should embark upon a voyage different 1 Hag. Adm. from that he has contracted to engage in, as where there tj^' ^J'^*'''"P ' => =' Id. 248,Coun- was a refusal to proceed on a voyage not specified in the tess of Harcourt articles. * '^' And where the owners allege desertion as a ground for Id. 168. withholding wages, they must produce the contract. So where there was a clause in the agreement that, if the ship were in port in perfect safety the seaman might leave at the end of three months, but there followed these Words *' of which [the ship's safety] the captain is to be " the sole judge;" the Court held this condition repug- nant to that part of the clause which authorized a de- 2 N. Rep. 408, ' parture after three months, and the wages sought for ^^^^^ ^' ^'™*^* were recovered. And upon a common principle, if the master consent to receive the seaman again after such an absence as has occasioned the forfeiture of his waoes. n o > 7 Campb. 590, the master must be taken to have overlooked the offence. Miller v. Braut. and cannot revert to the forfeiture. Such a forfeiture, however, as the statute contemplates is not incurred if the sailors navigate the ship into »or^, althouph thev 3fi-&P.30i«, •t u 1 r 1 • 1 , f ; . . , Frontinen. quit her before she is moored ; but by the maritime law Frost. the forfeiture attaches, and there are penalties for this conduct which will be immediately mentioned ; thus, if any seaman not entering into the King's service, shall i88 OF sHiPPiiVG : leave his ship without a discharge in writing (z) from 2 Geo. a, c. 36, the captain, or other person in charge of the vessel, he ^' ^' shall forfeit one month's pay (/c). And the master should debit himself for the amount, which he is entitled Frontine v. ' to deduct from the wages, in the Greenwich Hospital ^i^ost. book, or he cannot avail himself of the deduction. 2 Geo. 2, c. 36, We have seen, that the statute respecting the coasting '• 9" trade punishes mariners who neglect or refuse to proceed 31 Geo. 3, c. 39, ^ to r s. 7. on their voyage with forfeiture, but it does not punish desertion in any other manner than by a penalty of one 31 Geo. 3, c. 39, month's pay, which, like the other, is given to Greenwich ^"*' Hospital. The next offence by mariners is the absenting thera- 2 Geo. 2, c. 36, selves without leave. Both the statutes are express 31 Geo. 3,0.39, upon this subject, and prescribe a forfeiture of two days *• "^^ pay to the use of the same hospital for each day's wilful Id. s. 9, absence. And by the Coasting Act, the computation of time in cases of forfeiture shall be by the lunar month, These are the forfeitures by statute, but, as has been already suggested, it is an offence against the maritime law to desert, and whether in or out of po?'t, the Court of Admiralty has the power of punishing by decreeing the forfeiture of wages, and will do so, if reason be shown.- 1 Edw. 86, The As where a carpenter, having deserted his ship after her Baltic niercliant gjj^j.y [j^^q ^\^q ^q^^ of London, but before the delivery of her cargo, instituted a suit for wages, and contended that the utmost penalty he could be liable to undergo would be the forfeiture of a month's wages to Greenwich Hospital, but the Judge of the Admiralty said, that it was a flagrant case, that the Legislature, by superadding this forfeiture in favour of the hospital, never intended to deprive the owner of his ancient remedy, and that (i) Such a discharge will be presumed, unless the contrary be shown. {k) To Greenwich Ho.«pital. seamen's wages. 189 in the case for judgment, the ship's port did not mean the port of London generally, but that exclusively appro- priated for the reception of West India shipping, and the ship had not arrived so far. By the statute, therefore, as well as by the old law, wages were forfeited. The plaintiff quitted his ship and pever returned, for which he was imprisoned under the Act; he then brought trover for his nautical instruments, apparel, &c. : the jury, however, found their verdict for the defendant, upon ^ , , the ground of a justifiable detention, and the Court Weatherpen'r. refused to disturb their decision. ^^' Other causes which will occasion the forfeiture of wages are neglect of duty, disobedience of orders, habi- tual drunkenness, any misconduct, in fact, which will ^^jj^ott 47a justify the master in discharging the seaman. And if sailors refuse upon the command of the master to fight and defend the ship, or shall utter any discouraging words, they shall forfeit their wages, and suffer impri- ^2 & 21 Ch 2 sonment for a term not exceeding six months with hard c n, s. 7. labour. See Addenda to Lastly, in cases of embezzlement of the cargo, wages may be deducted from the offending party. But, if the offender be not discovered, it seems, that an abatement „ ■„ . . > N. Rep. 347, not be made, and certainly there is no forfeiture of all the Thompson v. ^,^^^r, Collins, wages. A very recent statute stating that the laws for pre- venting desertion from merchant ships have hitherto been found ineffectual, ordains, that the forfeiture shall be not only of wages due for services on board ship, but such also as have been agreed to be paid by the owner, -or master, or other person charged with the care of the ^ ' I o 4 Oeo. 4, c. 25, vessel. s- 9- The forfeitui'es are to be applied, first, to reimburse the owner his expenses, and, next, to be distributed Sect. 10. .equally between Greenwich Hospital and the hospital for sick and diseased seamen at the port where the 190 OF SHIPPING Sect. 11. Sect. 12 ship belongs ; and if no hospital, to go to Greenwich Hospital altogether. The wages are to be paid over to Greenwich Hospital, and if no claim is made within six months after they have been deposited, they are to be applied ; but if it should turn out that such wages have been unjustly withheld, the person so deprived shall recover double the amount, and treble costs. There is the usual provision that the Act is not in- tended to debar persons from entering into His Majesty's service. Abbott, 475-6. A seaman has three ways of recovering his wages : by instituting a suit against the ship(/), by suing the owners, and lastly, by proceeding against the master. Nevertheless, if the agreement be by deed, the party cannot sue in the Court of Admiralty. A foreign seaman, by the general maritime law, may proceed in the Court of Admiralty with the consent of the accredited agent of their government. But where the application was made by an American on an alleged Act of Congress, which was not in the ship's articles, and was not confirmed by emy custom of the foreign country, the Court refused to proceed in the case. Notwithstanding the common agreement that no suit shall be entertained by foreign seamen away from their own country, where a ship in great distress was aban- doned by the owners to the discretion of the master, who assigned it to British creditors, it was considered, that this stipulation was disclaimed, and the seamen re- covered their wages under the general law. So, where foreign seamen, acting in contravention of their own law, took a cargo from St. Petersburgh here under a British licence, the licence was held to purge their character as Id. 477. I Hag. Adni. 8 38, Wilhelm Frederick. ( / ) A post-office packet may be arrested for wages. 2 Dod. 100, Lord Hobart ship. seamen's wages. 191 alien enemies, and it was observed, that unless the Court 1 Dod. 303, here assisted them, they would be without remedy. ^"^ ^'^^^'^' By the statutes so often before quoted, no seaman by q Geo. 2, c. 36, signing; the contract or aereement shall be hindered from *' A 00 o _ . 3' Geo. 3, c. 39, using any means for recovering his wages which he has s. 6. had before, and moreover, it shall be compulsory on the master or owners to produce the agreement, if neces- sary. Where the contract is by deed, if it be intended to Abbott, 479; prevent the Court of Admiralty from adjudicating the Bugging. Ben- matter, the prohibition must be applied for before sen- "^"• tence. And where there is a special contract, or one 1 Salk. 31, Opy differing from the common and usual agreements be- ^' " tween masters of ships and seamen about wages by rea- i,.serit • 'IbuIt. son of some special terms, a prohibition will issue. 1944, Howe v. But it will not be so if the deed come only inci- dentally before the Court, as where such an instrument 2 Stra. 761, was produced to show that mariners had agreed to for- feit their wages under certain circumstances. If the contract, generally speaking, be made on the high seas, the Court of Admiralty assumes a jurisdiction over it ; if it be made on shore, or in a port, or river within the body of a county, the Courts at Westminster Abbott, 475, have the sole cognizance. It is observable, that this claim on the part of the seamen has a priority, for the same reason that a prefer- ence is given to the latest bottomry-bond, for by the labour of the mariners the ship has been conveyed to her See 2 Rob. 23a, port, and in the other case, it is through the last loan ^^^ J'avuunte that the vessel is enabled to reach home- It is held in Sayer, that a surgeon may sue in the p. 136. Admiralty Court for his wages, and that every body except the master may do so (w). But contracts in the nature of partnership will not be entertained there. (ni) 2 Dodson, 100. 1Q9 OF SHIPPING : s&e Abb. 475 A distinction has been long settled in the master's case, upon what grounds it does not seem easy to decide, but whether he be in that capacity at the beginning of the voyage, or succeed to it afterwards, he must sue the owners at common law. As, however, the freight and earnings of the ship usually pass through his hands, he Abbott, 476. jjas the advantage of being able to retain for his just rights. The limitation of time for bringing actions for wages is, upon contracts not under seal, six years, both in the Courts of Common Law and Admiralty ; the common presumption in case of a deed is, that it has been satis fied if no proceedings had been had, or interest paid upon it, for twenty years. 59 Geo. 3. c. 58, There is a late act for facilitating the wages of mer- 7°Geo"4, cfsQ, chant seaman. Where the sum does not exceed 20 /., the for 7 years seaman may demand his wao;es at the expiration of two days after the ship's arrival at the Custom House, or from the delivery of the cargo, or from his discharge, whether the contract be under seal or not, and if there be an agreement that wages shall not be demanded so soon, within two days after the expiration of the time stipulated ; if the master refuse to pay, complaint may be made upon oath before a justice of the neighbourhood either of the ship's port, or where the master lives ; and thereupon a summons may issue, witnesses may be heard, the seaman being one, and an order made for payment; and if there be a refusal to comply with the magistrate's decision, the money and costs may be levied upon the master's or owner's goods, and in default of sufficient distress, or payment within five days, then upon the ship ; and the decision shall be final whether in favour of the seaman or master, &c. unless appealed from to the high Court of Admiralty within seven days. But notice in Sect. 2. writing of this intention to appeal must be given to the justice within forty-eight hours, and then, within more. Sect. 1 seamen's wages. 193 tKlrty days after the older, the party resisting the claiii^ of wages must take out a monition against the adverse party, and, upon service of the notice, must give good bail in double the amount of the wages before a commis- sioner of prize causes, or, if none there, before the justice who has made the order; such bail to be cer- tified to the Court of Admiralty by the commissioner or justice, as the case may be. Moreover, the seaman is not to be deprived of any agreements, or remedies which he might have availed himself of before the. passing of ^^^*' 3^4- the Act (w). AppreiiiiceSf Sfc. By 4 Geo. 4, c. 25, which repeals 37 Geo. 3, c. 73, as far as relates to the having on board an apprentice or apprentices, the number of apprentices is to be proper- Sect. 2. tioned according to the tonnage of the vessel. Every apprentice while serving his time is, until he attain the Sect. 4. age of twenty-one, to be free from impressment; and every master who shall neglect to enrol the indenture at the Custom House, or who shall suffer his apprentice to quit his service, except in case of death, desertion, sick- ness, or other unavoidable accident, shall forfeit 10/. one Sect. 8. third to go to Greenwich Hospital, one third to the Seamen's Hospital, or, if none at the port, to old and disabled seamen, and one third to the informer. If above seventeen, the apprentice may, with his con- Sect. 5^6. SBnt, be transferred to the master of another registered ship, such transfer to be without a stamp ; and if the apprentice be under seventeen, the like may be done with the consent of his parents or guardians ; and he may be employed at any time in any vessel of which his (n) See as to the punishment for forging instruments relating to the navy, naval officers, and seamen, Archbold's Criminal Pleading, p. -206-208, and 1 & 2 Geo. 4, c. 49, «. 3 & 4. o 194 OF SHIPPING t master is captain or owner. The seventh section ex- empts the mates of vessels of a certain tonnage from impressment. By 6 Geo. 4, c. 107, s. 15, the master of every British ship arriving at any port in the United Kingdom, on her return from any British possessions in America, shall, within ten days after arrival; give in to the collec- tor or comptroller a list of the crew on board on the ship's arrival in the said possessions, with a list of desertions and deaths, with the amount of wages due Abbott, 649. to each deceased seaman, under a penalty of 50/. The master of every ship arriving from parts beyond the seas at any port in the United Kingdom or in the Isle of Man, whether laden or in ballast, shall, within twenty-four hours after such arrival, and before bulk shall be broken, make due report of such ship upon oath before the collector and comptroller of such port, and such report shall contain an account (amongst otlier things) of the number of people by whom such ship was navigated, stating how many are subjects of the country to which such ship belongs, and how many are of some other country. Id. And by 6 Geo. 4, c. 114, s. 15, the master of every ship arriving in any of the British possessions in Ame- rica, or the island of Mauritius, or the islands of Guern- sey, Jersey, Alderney, or Sark, whether laden or in ballast, shall come directly and before bulk be broken to the custom house of the port or district where he arrives, and there make a report upon oath, and, amongst other things, of the number of the crew, and how many are of the country of such ship. Q,uarantine. The last Act on the subject of quarantine is 45 G. 3, c. 10, to which the reader is referred. It is observable, that disobedience to quarantine, although punishable WRECK. I95 ca.pitally by statute, is yet an indictable offence at com- mon law. irreck. Much of the law relating to this subject has been alread noticed in discussing- the cases on salvage. By the new act for consolidating the law of larceny, it 7 & 8 Geo. 4, is made a capital felony to steal any part of a vessel in dis- ^' ^^' ^' ^ ' tress, or any goods belonging to it; and plundering articles of small value stranded or cast on shore is simple larceny. If any person be found in possession of shipwrecked Sect. 19. goods, and do not account to the justice's satisfaction for them, the property shall be restored to the rightful owner, and the offender shall pay, over and above the value of it, a sum not exceedino; 20/. And by section 20, the offence of offering ship- wrecked goods for sale without rendering; a sufficient account is punishable in like manner. The goods may be seized, and delivered to the rightful owner, and a reasonable suspicion that they have been unlawfully taken will justify the proceedings. Lastly, under the new Act for punishing malicious injuries, whoever shall exhibit any false light or signals with intent to bring any ship into danger, or shall do any thing tending to the immediate loss or destruction of a vessel in distress, or destroy any part of a ship wrecked, distressed, or stranded, or cast on shore, or any of the goods, or shall forcibly prevent or impede any person from endeavouring to save his life, (whether such person be on board or have quitted the ship,) shall suffer death as a felon. Carrying Passengers. The conveyance of passengers in British ships is now 6Geo. 4,c. 116. regulated by a new Act. By section 2, where the voyage is to any port out of Europe, and not within the Straits of Gibraltar, and there be more persons on board than 7 & 8 Geo. 4, c. 30, s. 11, iqQ op shipping: ill the proportion of one for every five tons biittlien(o)^ Including the master and crew, there must be a licence from the Commissioners of Customs, and under the licence there cannot be more than one to every two tonaij}). But three of the Lords of the Treasury may exempt from the Act ships carrying passengers from Sect. 17. Ireland to the British possessions in North America. The following vessels also are exempted : ships in his Majesty's service ; in the service of the Postmaster- General; in the East India Company's service; ships bound to the fisheries at Newfoundland, or on the coast Sect. 18. of Labrador. With respect to foreign ships there is the like provision as in section 2, only that the licence is not Sect. 19. under any restriction. Where the privileges of British ships are granted to those of a foreign state, the Act is to apply. A /aden ship, proceeding upon the voyage mentioned Sect. 3. in the second section, is not to take more passengers than one for every two tons remaining unladen(^), and certain spaces in the ship are to be deemed equivalent to two tons. Sect. 4. The estimation of the tonnage is to be according to the certificate of registry (r); and, in cases of foreign Sect. 5. ships, by admeasurement. Where the crew exceed one for every five tons, as mentioned in section 2, a list of such (0) Penalty on master 50 /., and by sect. 6, 50 1, on master who takes more than such as are specified in the licence ; and again, by sect. 15, penalty on master of 200/. if he refuse to produce the licence when demanded by the officers of his Majesty's ships of war, revenue vessels, collectors of the ports, governors or lieutenant-governors at British posses- sions, or consuls at foreign ports. (p) Two children under fourteen, or three under seven, to be computed as one passenger. (g) Penalty on master 20 /. (r) See 2 Barn. & Cress. 556, Bishop v. Macintosh. CARRYING PASSENGERS. 197 crew, with the number of the passengers, their names, ages, and descriptions, must be delivered to the collector of customs at the port for the purpose of registry ; and if the number should exceed fifty, the ships shall not be cleared out without a bond to tlie King, such bond to be without stamp, with two sufficient sureties, in an amount equal to 20/. for each passenger, child or adult, that the ship is seaworthy, properly stored with water and provi- sions, that she has a surgeon(s) and medicine-chest(0, and that each passenger shall be landed at the port de- sired, unless landed elsewhere with consent; the bond to be left with the collector at the port. Every ship, so licensed, to have such a supply of water Sect. 7. as will allow five pints daily for every person, including master and crew{u). The stowage of the water is then pointed out, and a certain proportionate quantity of beef, &c. and other provisions (x), the allowance to commence on the day of the ship's departure from the port(?/). If any passenger shall be desirous of being relanded. Sect. 9. and not proceeding on the voyage, the collector of the («) The surgeon is to continue during the voyage, and to show a certificate to the officer of the customs of his having passed his examination at Surgeons Hall in London, or at the College in Edinburgh or Dublin, or before the medical faculty at Glasgow University; by sect. 12. (f ) The medicines must be according to the usual assort- ment, and oath made of the contents of the chest, and of the quality of the medicines, &c., and the affidavit to be left at the custom house where the ship clears ; penalty on owner or master, 20 1, for every person on board, including master and crew; by sect. 13. (m) Two children under ten as one person. (x) See the Act. (3/) Penalty on master, 10/. for failing to give out these provisions, if required ; by sect. 8. o 3 igS OF SHIPPING : port, or proper officer of the customs, or any magistrate of the kingdom, may cause such person to be taken out of the ship with the baggage, and set free, reserving any legal claim which may thereupon arise. And upon the relanding of such passenger, a proportionate quan- Sect. 10. tity of provisions and Avater may be unshipped, but if there be any such unshipment or relanding in any other case, the master shall forfeit 500 /. The eleventh section prescribes the airing the bedding of the passengers daily, if the weather permit, and fumigating the ship twice a week, at least (2). For the mode of recovering penalties and conducting legal proceedings, see the 20th and 21st sections. No action is, however, to be brought for them after three years. " If there be no usage upon the subject, I think the " law is, that where the captain has contracted to carry " passengers, and dies, his representatives are entitled " to the benefit of the contract, and may maintain an By Bayley, J. " action for the passage-money. If the mate lays out in Siordet v. " money in purchasing; stores for such passengers, he is Brodie. 3 ,, .i.ri ■ n ^ Campb. 253. the agent 01 the representatives tor that purpose, and " may oblige them to repay him. But where, after the " death of the captain, the mate contracts to carry " passengers on the homeward voyage, he is himself *' entitled to the benefit of the ciantract, and may retain " the whole of the passage-money. If for the enter- " tainment of such passengers he uses any part of the " stores laid in by the captain, for so much he must ** account to the captain's representatives." These dis- tinctions were acquiesced in. A passenger, intending to embark at Portsmouth, put her luggage on board in the Thames, and paid the passage-money ; the ship was lost going round to Ports- (z) Penalty on master 20 1. for each neglect. DOCK ACTS. 199 mouth ; and it was held, that the passage-money could not be recovered back ; but on the other hand, if the voyage had been contracted for from Portsmouth as its ^ "■ ° . .... 4 Campb. 241, commencement, and the money paid by anticipation, it Giihm v. Sioip- would have been otherwise. '"* Dock Acts. Perhaps it may be useful here to give the decisions upon some of the local acts for regulating the payment of duties and expenses, and for giving compensations in certain cases, although it need hardly be said, that we do not intend to enter into all their provisions. By the Liverpool Acts, certain tonnage duties were SAnne, c. 12; made payable to the Dock Company on vessels sailing * ^^°' ^' '^' with cargoes outwards or inwards, but the payment was not to be made for more than once for the same voyage out and home. A ship built in Devon was registered at Liverpool, and soon after cleared out from Bristol to the West Lidies, and from thence came to Liverpool ; she then ^ ^ ^^^^ g_ sailed out to the West Indies again, and back to Liver- ciidartr. Glad- pool. In clearing out for the foreign port, the collector fj^"f ;,"g com- demanded the duty outwards, which was paid under mon Pleas, -i protest, and the Court of King's Bench held, that this ''""" ^'^' was not the same voyage, but that there were two distinct voyages, and that the officer had done right. A ship having cleared outwards from Liverpool to 5M. &s. 328, Saint Domingo, discharged her cargo, reloaded, and ve?podDocks' came to London; discharged that cargo, and loaded u Gladstone, in 1 -11111 r error from the again for Liverpool, where she arrived: held that the Common Pleas, dockage rate under the local act was to be the London La"casier. and not the Saint Domingo rate. ^^ ,^^3/ A duty of Qs. 8d. per ton was paid, under the West India Dock Act, for every vessel coming with a cargo from the West Indies, and the Act declared it to be *• in satisfaction of the use and conveniency of the said o 4 20O 39 Geo. 3, c. 69, s. 107. 1 1 Easi, 533, Blackett d. Smith. 12 East, 518, Blackett v. Smith. 8 East, 15, Harden v.lSmith. 12 East, 527, Alhiutt V. luglis. 9 East, 165, Manning v. Connnissioners of Compensa- tion under the West India Dock Act. or sniPriNG : " docks, and all charges of navigating, &.c. from her " arrival, &c. until she shall be unloaded, &c. together ** with the use of the light dock for any time not *' exceeding six months from the time of unloading ** such ship." Ship's stores intended for outfit, were notwithstanding considered liable to the payment of wharfage and porterage duties, though had the stores been intended for the necessary use or security of the ship in the dock, they might have been received on board free from any additional charge, except the ton- nage rate. Where a ship entered the West India Docks in a very leaky condition, so that she could not wait for the unloading of her cargo in rotation, it was held, that any inconvenience or loss arising therefrom must fall upon the owners ; and, therefore, that the Company were not answerable, under such circumstances, for the extra expenses of pumping, procuring lighters, and cooperage. But in the ordinary course the Company must pay all the charges of delivering the goods from the ware- houses into the lighters, let them be what they may ; it is only where work is required independently of the transitus from the warehouse to the lighter, that an extra compensation can be asked. The London Dock Company are bound under the sta_ tute to receive goods into their warehouses for a reason- able hire and reward, and they were held not to be justi- fied in publishing a table prescribing the terms on which they would receive the goods of any person into their warehouses. With respect to compensations under these Acts, it was decided, in the case of Christ's Hospital, that the rate of compensation was to be according to the yearly profits of the premises antecedent to the passing of the Act, and not the profits made annually between the passing of the statue and the opening of the docks, for / DOCK ACTS. 201 the principle was that there should be no diminution of Income. At the time of passing the Bristol Dock Act, the owners of a brewery were dissatisfied by reason of the deterioration of the water, but, inasmuch as the river Avon, from whence these premises were supplied, is a 12 East, 429, public river, and there had been no easement attached li}^^ J^I'''S "• i _ ' llie Directors to their place of trade, the Court refused a mandamus of the Bristol for the purpose of awarding them a compensation. Dock Company. ADDENDA TO CHAP. I. Page 46. — If the master be turned out of posses- , Eden, 181. sion upon the vessel being captured, he will not lose Cheesman, ex his lien for freight in case of a recapture. Page 73. — The transfer under the 5th section must Moody & Mal- be made expressly as a pledsre. kni,48,Tiiomp- i- J r o son i;. J?arnier. Page 81. — These decisions have been somewhat con- Demurrage, sidered in a recent case before Lord Tenterden. It was the opinion of his Lordship, that where the consignee has had no opportunity of taking his goods within the time stipulated, he can hardly be bound by the contract Moody & Mal- to pay for not doing so, for he could not be said to t?Hunt'er.°^^" detain the vessel. The consignee must have a reasonable time for removing his goods. But after the expiration of such reasonable time, his Lordship added, the con- signee will be liable, though the stipulated period, if computed from the time when the discharge of his own goods could have commenced, be not at an end. Page 93. — -Where a ship sailed with ballast from London to Jamaica, and was sold in her voyage there. P02 ADDENDA TO CHAP. I. and afterwards sailed from Jamaica to London with goods shipped on a contract with the owners of the ship ot the time of the shipping, it was held, that the creditors ot" the (juondam owners had not any lien on the freight due in respect of the voyage from Jamaica, for there was no continuity of the oripinal vovaye to Ja- 1 Maddock. 61, . P 1 , • 1 , . T 1 ex parte Hill. maica alter the ship had arrived there. Page 97. — However, there is now a very recent de- Mount'ifnar- cision which establishes, that in an insurance on freight "son, abandonment is not necessary. Page 117. — Upon warranty that the ship was "in port" upon a certain day, the policy being at and from Hamburgh to Vigo, it was held insufficient to show that Moodj'&Mal- ^i^g gi^jp ^^g g^fg jjj another port (Cuxhaven) without km, 81, Colby . f ^ "■ ^ V. Hunter. the limits of the port of Hamburgh, on that day. Page 189. — However, where there was a clause of for- feiture if seamen should disobey orders, or neglect their Moody & Mai- duty, it was holden that their right to wages was not Bennett '^"^ ^' g^^^^ where their disobedience and neglect arose in con- sequence of previous misconduct of the captain. It would have been the same if the owners had misconducted them- selves so as to induce the refractoriness on the part of the sailors. OF CONTRACTS AND LIABILITIES. 203 CHAP. II. OF COMMERCIAL CONTRACTS AND LIABILITIES. Sect. 1. Sale and Deliveri/ of Goods. 2. Contracts ivith particula?' Persons and Public Companies. 3. Agreements; Rescinding Co}itracts \ and Remedies J'or enforcing the performance erf them. SECTION I. CONTRACTS FOR THE SALE AND DELIVERY OF GOODS. In all contracts there must be a valid consideration ; neither an express nor an implied promise can be sup- 7 t. Rep. 350, "iaiin ;hes. ported without it, whether it be verbal or reduced into V; ^f "" "" writing. But in the case of a bill of exchange or note, which an indorsee or payee receives botidjide, and with- out knowledge of a want of consideration, a defence to that effect cannot be set up, for it would enable parties to concoct an unavailable instrument, and defraud the public through it. Contracts relating to merchandize are very considerably governed by the Statute of Frauds. "^ *^''' '^' '^' * The Act requires the agreement to be in writing, if the goods sold are of the value of 10/., unless the buyer shall accept and actually receive part of the goods sold, or give something in earnest to bind the bargain, or in part of payment, or unless some note or memorandum in writing be signed by the parties, or their agents there- unto lawfully authorized. The thing bargained for must be in existence at the time(a), for where a chariot was See Add. to Chap. a. (fl) See now the new Statute in the Addenda to Chap. II. 204 1 Strange 506, Towers i'. Os- borne. 5 Barn. & Aid. 6i3,Garbutt V. Watscii, By Abbott, Chie.'" Justice, 2 Barnewall & Cresswell, 37, Baldey v. Parker. 2 Taunton 38, Emmerson v. Heelis. 7 East, 558, . Hindei). Wliite- house. 7 T. Eep, 14, Cooper V. El- ston. OF CONTRACTS AND LIABILITIES [Cll. 2, bespoke, and refused by the person who had ordered it, the buyer was obhged to pay. But it does not follow » that every thing which is not in a state of immediate dehvery is excluded from this regulation ; where wheat was not ground at the time of a contract for so many sacks of flour, it was held, that this was substantially a bargain for so much flour, and the chariot case was distinguished from this, inasmuch as but for the order the chariot would never have had any existence (a). [Of the value of lo/.] One went to a linen- draper's, and ordered goods to the amount of 70/. ; each article was under lol., with a separate price, but the whole was comprehended in a general account, and sent to the defendant's house with the bill of par- cels ; the defendant refused to accept the goods ; it was held, that this was one contract, and within the Statute of Frauds, and the linendraper was nonsuited. But where the auctioneer wrote down the party's name against each lot, no lot beino- above 10/. here there was a separate sale in respect of each successful bidding, the auctioneer was the purchaser's agent, and thereby capa- ble of contracting for him, and the Statute of Frauds was no defence. [Unless the buyer shall accept and receive, &c.] There need not be an actual delivery, but there ought to be a legal change of possession. The delivery of a sample will satisfy the statute which speaks of part of the goods only, such sample being included in the pur- chase ; but if the sample, on the contrary, be no part of the goods intended for delivery, the statute will inter- vene, and avoid the contract, unless it be in writing. And where a great part of the purchase remained with the vendor at the vendee's request, who, however, took (a) So it was decided on a contract to cut oak-pins out of slabs. 3 INlau. (Jv Sel. 178, Grovca v. Buck, f5. 1.] SALE AND DELIVERY OF GOODS. 5D5 a,way a very small part, it was considered, that no ac- 3B.-irn.&Cr. i, ceptance of the residue had taken place. And the same ]vja°(!^^j*n^] "* was adjudged on the sale of a horse which the buyer 3 Bam. & Aid. even rode, but left with the vendor ; the horse died, 680, Tempest 1 1 r r- p 1 ^- Filzgerald ; and the contract was not deemed perfect tor want or the 5 Bam. & Aid. acceptance or payment. Twelve bushels of tares were 855, Carter r. r . loiissaint. agreed for at a public market by the defendant, and the ^^^^ ^ ^1^ vendor's agent, on his return home, measured the tares? 321, Howei'. but this was no acceptance by the other party. Nor will the delivery of the invoice alter the case, although 4Man.&SeI. the defendant request time to pay; and unless the goods '^'^' ^^^^J "• are deposited in the hands of the vendee's agent, it is of Do consequence that they are forwarded to a third per- son, for instance, a wharfinger, and accepted by him, for the buyer may still object both to the quantum and 5 Bam. & Aid. quality of them: though where the purchaser has been 557. Hanson v. _>■ -^ . . . ^ Arraitage. in the habit of receiving goods from the vendor by a par- ticular vessel, the master of that vessel may be consi- HartTsaulev dered as his agent. . Wine in the warehouses of the London Dock Company was sold to the vendee, who accepted a delivery order, but he afterwards refused to take it : here, althouofh the Dock Company might have been liable to an action if they had declined, upon application, to hold the goods upon the vendee's account, yet they were the vendor's 3 Bam. & Cr. agents throughout this transaction ; for supposing they g^rn. ^° ^ "* would not transfer the goods when required, there clearly then could not be any acceptance on the vendee's part. Upon a fair consideration, the cases just cited will be found to diifer from the following, since there had been no actual or constructive delivery in the instances of the horse, the goods, or the wine. The plaintiff kept a livery stable, the defendant bought two horses of him, 11 11 111-1 1 1 ' Taunton, 458, and begged that, as he had neither servant nor stable, Elmore y. Stone, they might stand at livery in the plaintiff's stables, and moreover, he sent word that " the horses were his." 2Ca 7 Taunton, 597, Bleukinsop v, Claj'ton ; 1 Mobre, 328, same case. Selwjn, 849. 6 East 307, Ejzerton v. Matthews. 1 N. Rep. 252, Clianipion v. Pluiimier. OF CONTRACTS AND LIABILITIES: [Ch. 2, Now here the subjects of the * contract were capable of being imjnediately deHvered, and a change of possession was instantly effected, the plaintiff only retaining the animals in his own business as any other livery-stable keeper might have done, and the Court held the plaintiff entitled to recover. [Or give something in earnest, Sec] A person took a shillincr in his hand, drew the edp-e of it across the palm of the hand of the intended purchaser, and re- turned it into the pocket, which was called striking the bargain ; held not to be a part payment within the statute. [Some note or memorandum signed by the parties.] " I, A. B. do agree, &c." but no signature is executed at the bottom ; this is a sufficient agreement notwith- standing, and so a printed name, where the party is in habit of using it, is sufficient (Z»). It is also worthy of attention, that the signing by the party intended to be charged is enough without the hands of the other con- tracting persons ; as where the defendant, having agreed to give so much for goods, signed a memorandum, but the seller did not; — though in this case his name appeared on the face of the contract ; and this serves to explain a seeming inconsistency in another case, where the seller only had signed, being however the party sought to be charged, and the purchaser had not, and the Court held the memorandum insufficient for this reason, that that there must be two parties to a contract, and the purchaser's name did not appear upon any part of that which* was before them. (b) Independently of his printed name in the bill of parcels, there was the further evidence of a letter, in which the de- fendant referred to the order for the goods : it was held that both might be connected, so as to satisfy the statute. 2 Bos. & Pul. 238, Saunderson v. Jackson ; 3 Taun. 169, Allen v. Bonnet ; 2 Mau. & Sel. '286, Schneider v. Norria. s: 1.], SALE AND DELIVERY OF GOODS. Q07 The connection of two papers passing either between buyer and seller, or otherwise, has been alre9.dy illus- trated in the note ; in a very late case the plaintiff gave 11PI i-i-ii A i' Bingham, 9, notice to the detendant oi the bad state oi some goods Jackson v. which had been purchased, and the defendant wrote ^°V^ •' ^"^ *^^ 3 iMenvale, 53, back by his attorney to say, that he expected the fulfil- Ogiivie v. Foi- ment of the contract. The nature of the bargain and "^^'" ^" the price were contained in the notice, and the Court thought that the recognition of the contract by the de- fendant was very clear. Hops were sent with an invoice : A. was called the seller, B. the buyer ; B. wrote to A', thus : " The " hops I bought on the 23d of January are not yet are 6 Barn. & Cr. ** rived. I received the invoice : the last were longcer '^^1' ^"^''^''l* ' o V. rorter. *' on the road than they ought to have been ; however, " if they do not arrive in a few days, I must get some " elsew-here." Held that these two writinas taken to2:e- ther would not satisfy the statute. The price is a material part of the bargain and must 5 Barn. & Cr. -be included in the memorandum. 583, Elmore rrii ^ ■ If ^ i • i • ■, i ^ '"' KingSCOte. Ine plamtm made a memorandum m his own book of the sale of some flour, which note was read to the de- fendant, but there was no signature; the defendant aftenvards wrote recognizing the order, but saying that the flour had not been delivered in time ; these two writings could not be connected, because, first, there was no signature at all in the order book, and secondly, because parol testimony could not be received to show that no such term existed in the contract as to deliver '5 East, 103. ... . . Cooper I'.Sraith. the flour within a given time- [Signature by the agent.'] The agent need not be authorized by writing (c). The principal subject re- garding this agency has been in cases of sales by (c) But in cases relating to land he inusi, under another section. So8 OP CONTRACTS AND LIABILITIES: [Ch. 2, S Iw n Sf^o • fiuction. Whether the statute ever contemplated auc- 4 laBiiton, 209, tions or not, it is now considered that the auctioneer is tor." *^ ^' ^'^ ^^^ agent for both seller and buyer, and his memorandum Comvn on Con- binds the contract; but his clerk cannot act in this man- tracts, 103. ner without a special authority. Nor can the auc- tioneer's signature be of any avail, unless he bind the parties to one entire contract ; for where the conditions 2 Barn. & Cr, ^f g^jg were Separated from the catalogue, and the 945,Ken\v(jrthy _ _ 1 o > V. Sciiofieid. highest bidder's name was written down on the catalogue only, it was held, that no sufficient memorandum had been executed. The rule of connecting papers applied, however, in a case where after such signature in the PhiUhifore^J'^' Catalogue, the vendee afterwards wrote a letter recog- Barry. nizing the purchase. But not where it was attempted to connect the de- fendant's signature, in a book entitled " Shakespeare *• Subscribers, their signatures," with a printed pro- 11 East, 142, spectus of the work ; because parol evidence must have Diuni'nJiid. been introduced to prove the engagement, and the statute is a bar to such.an attempt. 5 Barn. & Aid. And ill the case of the auctioneer, observe, that the Farebrother t). q^q^Iq^^ Cannot be maintained in his name where he is oimnions* the agent; the person contemplated as agent by the section in question is a third person, and not one of the contracting parties. A broker is considered to be the agent both of his employer and the purchaser, and each is bound Selwyn.Sso.n.; }yy the iiote which the broker delivers, which is the ii7,'"Gooni V. legitimate contract, and not the entry in the broker's Aflalo. book(f/). Two parties were interested in some oil, and one being desirous of disposing of it, gave an order to his broker for that purpose without the sanction of the other; the broker gave the sale note, and then the other party signified his assent to the contract : it was (rf) Moody & Malkin 43, Thornton v. Meux; same point. S. 1.] SALE AND DELIVERY OF GOODS. 209 held, that as the original authority needed not to have iDowiing& 1 • rr- ■ . .1. 4.- Rvland, 32, been in wanting, the note given was surncient, the rati- Soames v. fication amounting to an authority in the first instance. Spencer. Lastly, the statute speaks of a contract for the sale of goods ; it therefore does not relate to an agreement merely to procure them. Thus, where there was an undertaking to procure coals, and convey them to Ips- wich, it was not necessary that such a contract should be in writino- • for if the coals could not have been got, _. , the subject matter of the contract could never have Cobboki v. come into existence. ^^^^''' Perhaps, now that we are upon the Statute of Frauds, it may not be amiss to advert to that part of the 4th section which virtually compels the maker of any agree- ment, which is not to be performed within a year, to put it in writing. And here it is observable, that it must decidedly appear upon the agreement that it cannot be Selwjn, 839. performed within the time ; if by possibility it may, the case will not be within the statute. Again, though the agreement be in fact performed within the year, still if it be matter of contract that the original time should exceed the year, the statute will not be complied with unless ^'^' ^'♦'* there be a writing. A contract was made on the 7th of May, for a year's service, to commence on the 30th of the following June : ^ ^^j.^^ ^ ^u this was obviously a contract which could not be per- 722, Brace- formed within the year, and so governed by the statute. ^"^ ^ ^'' There is a difference between this and the 1 ytli sec- tion, relating to goods, as to the consideration being in writing. It is sufficient if the bargain appear in writing under the latter section, but here the word agreement being introduced, the consideration for the mutual con- tract must be evident. The following undertakings were rqr''saundeis' consequently deemed not to be binding, although in t- Wukefkld, writing : " Mr. Wakefield will engage to pay the bill " drawn by Pitman in favour of Stephen Saunders :" p 210 OF CONTRACTS AND LIABILITIES: [Ch. 2 , 3Bro. &Bii;g. " To the amouiit of 100 L, be pleased to consider me Reidds ^'^ " ^^ security, on Mr. James Cowing and Co.'s ac- " count. S. W. R." No foundation for these engage- „ P ments appearing upon the face of the writing, the Court Wain V. Warl- Were of Opinion that actions could not be maintained on ''''' them. " I guarantee the payment of any goods which 9 East, 348, <. J. stadt delivers to J. Nicholls." Here the stipulated Stadt D. Lill. . . , / delivery of the goods constituted the consideration, and when the delivery took place the consideration attached, Selwyn, 841. SO that where it appears by necessary inference it will be sufficient. With respect to the signature, a letter beginning " My dear Robert," and ending " your affectionate Merivaie ^ " mother," without the name, was held an insufficient Selby V. Selby. agreement ; for it does not follow, because you niai/ iden- tify the writer, that the signature will be sufficient. Consideration, illegal. It has been already intimated, that without a due consideration, there will be no foundation for the promise to fulfil the supposed contract; an illegal consideration must, therefore, be carefully avoided (e). Whatever tends to subvert the constitution, or is con- (e) As in the cases of smuggling, trading to forbidden ports, selling bricks contrary to the statute of 17 Geo. 3, c. 42, which requires them to be of certain dimensions, sel- ling liquors of less than 205. value at one time, contrary to 24 Geo. 2, c. 40, &c. See Comyn on Contracts, 59-68 ; and as to liquors, 5 Barn. & Aid, 241, Burnyeat v. Hutchin- son, where it was held no excuse that spirits under 205. formed only a part of the bill. And a bill of exchange given partly for liquors under 20 s. at one time, and partly for money lent, &c. was totally vitiated, the security being entire. 3 Taun. 226, Scett v, Gillmore. The statute extends to spirits mi.xed with water. Ibid. S. 1.] SALE AND DELIVERY OF GOODS. 211 trary to public policy, as smuggling, &.c. will never be suffered in courts of justice to support an agreement. So that where contracts were entered into abroad for the purpose of introducing smuggled goods into this country, and aid given in the importation, the vendors have been Seiwyn, ()4, prevented from recovering; here the price of such goods; where the cases *, . Ill ■ ° are collected. for to do otherwise would be the enforcins; an agreement made for the express purpose of infringing the laws. So where a British agent bought some goods in an enemy's country, and sent them here from the enemy's port, although it did not appear that they had been purchased from persons at enmity with us, and although they were sent in a neutral ship, the consideration was illegal, and a policy of insurance upon such merchandize 548, Potts «. was held void. ^'^'^• Contracts in contravention of the navigation laws are also illegal, and cannot be enforced, and there are many statutes which prohibit the sale of goods under particular circumstances, an infringement of which, by adopting a contract in opposition to them, will render the consideration illegal. And it is of no consequence that the buyer accept the goods so prohibited by sta- tute : as where bricks were made under the statutable n East, 300, size, and accepted, the buyer being ignorant of their ^*^^ "• I^^'^son. deficiency ; for the Act was passed to protect the buyer under such circumstances. The statute 42 George 3. prohibits the brewer from using any thing except malt and hops in the brewing of beer, and the defendant bought some drugs from the plaintiff, the latter being aware that they were to be used in the brewery : it was holden that he could not recover the price of them, for j ]viaule& Sei- the Court will not give sanction to a contract entered w3'"'5.Q3.Lang- . ton V. Hughes. into agamst the policy of the law. So again, agreements which tend to invade the pri- 3 Made & Sel- vileges of a company having an exclusive trade, are j^^^nsoi! y^L * illegal J and so are contracts against orders in council, donsack. V 2 212 1 Bam & Aid. 53. Holland v. Hall. Cowper, 341, Hoi man t>. Johnson. 5 Taunton, 521, Haines v. Busk. Corajn, 58, Hilberds v. Pet- tipierre ; lb. Wardlet), Fowler. 1 . Absolute ; 2. Conditional contracts. 1 Campb. 63, Champion v. Short. OF CONTRACTS AND LIABILITIES : [Ch. 2, as tlie exportation of military stores to South America, at a time when a prohibition was in force against such a traffic. These are merely put as examples of the general prin- ciple ; it not being possible to enumerate in the present work all the illegal contracts which may be entered into. But unless the vendor have a share in the unlawful transaction, he will not be precluded from recovering. So that where the sale and delivery of smuggled goods were complete abroad, and the seller was a foreigner, though he knew the manner in which it was intended to dispose of them, it was resolved that his action would lie, as he had not been instrumental in running them into England. A broker sued for his commission on procuring freight : it was objected that the voyage con- templated was illegal, and that if certain licences could not be procured, that the whole adventure would be against law ; but the Court said, that a party was not bound upon such an occasion to see to the performance of every thing which might legalize the adventure, and judgment was given for the broker. A gambling speculation regarding the sale of goods, as the paying the difference between the market price of a commodity on one day and that of another, is bad, like a time bargain in the stocks, and so it was held in the case of a sham contract for tallow. The agreement or contract being reduced to writing, and the consideration legal, we proceed to inquire whe- ther it be absolute in its terms, or whether any conditions be annexed. If the contract for a number of articles is entire as to the whole of them, payment cannot be demanded unless all be delivered ; but where the defen- dant bought several things, and accepted half a chest of French plums, tendering the money for them, he rebutted the presumption of a joint contract, and was obliged to take the remainder of his purchases. S. 1.] SALE AND DELIVERY OF GOODS. 213 But where the purchaser accepted some cream of tartar, but refused two chests of lac dye, under these circumstances, that the plaintiffs were to have two days upon deliberating whether they would let him have the dye at his price, it was held that these orders were ^ BarnewaH & 7. . 1 , r r 1 • 11 Cresswcll, 156, distinct, and the statute 01 irauds mtervened to bar any Price v. Lea. recovery for the lac dye. There was a contract for a horse, to have him a month upon trial ; at the end of a fortnight the buyer said he liked the horse, but not the price ; the plaintiff said he had better return the horse, but the defendant kept him ten days longer, and then the plaintiff refused to take him back. There was a condition annexed to this con- tract, that the defendant might have a month to decide upon the horse ; he had not determined the contract till g,^^'^' ^i^^^^'^' he had actually returned the horse. timer. A party makes an offer ; the intended purchaser re- quests time to consider ; he afterwards agrees : here it has been held, where this negotiation took place by the post, that the moment the offer was made it continued the same identical offer during every instant of the time the letter was travelling, and that the instant it was accepted the contract became binding on the parties. In the particular case the vendors misdirected the letter, and that mistake occasioning a delay of two days, they sold the goods to another person ; this was through 1 Bamewall & their neglect, and they were held answerable for the i\tZZ'un\i consequences (f). A broker sold goods on Saturday sell. to the plaintiff, and sent him on the same day the sold note, with the words " quality to be approved of on " Monday ;" the plaintiff not having signified his dis- approval on the Monday, the broker sent the defendant, on the Friday following, the bought note (which was (/) The authority of Cooke v. Oxlc^, 3 Term Rep. 653, seems to be shaken by this decision. ^3 214 OF CONTRACTS AND LIABILITIES: [Ch. '2, not sent before because the broker had informed the defendant of the contract) ; the words " quaUty," 8cc. were struck out ; the defendant sent back the note, which meant a disaffirmance of the contract, but it was 16 East, 45, decided that neither party had an option after the Mon- Carvalho^^ ^ *^^y ' ^^^ contract, before conditional, then became absolute. Sometimes there are particular stipulations ; in these cases the persons contracting are held strictly to their bargain. One agreed to buy 300 tons of Cnmpeachy logwood, at so much, to be of real merchantable quality, such, nevertheless, as might be determined by impartial judges to be otherwise to be rejected, &c. The purchaser refused to accept any part of the logwood, saying that 14 East, 499, some part of it was not Campeachy ; but Lord Ellen- jackson. borough thought him bound to take such as was really Campeachy, and so it was ultimately determined. Goods were to be cleared away from an auction in 6 Taunton. 162, fourteen days, at the buyer's expense ; the sale note LdngjTMarsh. expressed that fourteen days were to be allowed for 514, same case; receiving and delivery: this condition was construed 56, Ha/w^rd to mean that the buyer had fourteen days to take away v.Scougaii, ^]^g goods, but that the seller was bound to dehver Contract for . =' hemp. mstantly. Conditions pre- The cases on this subject are so numerous, that it ce ent {g). ^ould be in vain to follow them through all their classes; and as the general principle is, that they depend in each case upon the nature of the transaction and the ( 0-) If a man sell goods to be delivered at a future day, which he neither has, nor has the expectation of receiving, although in fact he intend to go into the market and buy the goods, he cannot have an action upon such a contract. Such a contract, amounts on the part of the vendor, to a wager on the price of the commodity. Ryan & Moody, 386, Brj/an v. Lexiis. S. 1.] SALE AND DELIVERY OF GOODS. 2I5 good sense of the stipulations, it becomes the less neces- sary to enter very largely into the subject. Sometimes concurrent acts are necessary before the contract can be fulfilled ; as where there was a sale of some wheat, and the plaintiff complained that it had not been deli- vered, the defendant said that the plaintiff ought to have shown his readiness to pay for it ; and the Court were of opinion that the true construction of the agree- ^ Xe,.,,, j^pp, ment was, that payment should have been tendered at the |^5. Morton «. time of delivery, if such delivery had ever been carried into effect, and that although the question arose upon the technicality of the pleadings, the necessity for the two concurrent acts appeared clear as a matter of plain sense. Again, upon a sale of some oil : the plaintiff proved a demand of the oil, and the defendant said that he ought to show his readiness to pay for it, but the Court said that the acts were concurrent; the plaintiff, by demanding the oil, had shown his willingness to pay for it, and i iMaishail,4i2, when the defendant had shown his intention to dehver it, ^^ '"^^ "• ^^' ■then would be the time to make the objection. Where the first act is to be done by either party, there is the condition precedent, without the fulfilment of which the contract will not be ended : as where, upon a sale of hops to be delivered in pockets, it was objected that the plaintiff should have given notice of his readiness to receive them ; but the Court were of a different opi- nion, for the vendor was bound to pick and gather the hops, and deliver them ; when he had shown a readiness ^ ^^^^ Ken.355, to do his part, he might call on the plaintiflT to tender Bristowv. Wad- 1 1 IP clingtt,n. tlie money, but not before. jraiTantics. Warranties are either express or implied, and with re- On Cositiacts, spect to goods, to take Mr. Comyn's excellent division, P' '°9* they are by sample, or otherwise than by sample. As P4 2l6 4 Barn. & Aid. 387, Parker V, Palmer. 1 Barnewall & Cresswell, 1, Lory me r v. Smith. OF CONTRACTS AND LIABILITIES: [Cll. 2, soon as the buyer finds that the goods do not correspond with the sample, it will be at his peril if he meddle fur- ther with them : as where the defendant bought 1,826 bags of East India rice, to be put up at the next East India sale, if required. The rice was put up by the defendant's orders, and during the sale fresh samples were exhibited, which were of an inferior quality, and he had an opportunity of seeing them. It was not until a month after this sale that he took any notice of the difference, and having bought in the rice, he was held liable to pay for it, for every man may waive a rule of law in his favour, and by taking his chance of a profit at the sale, he prevented the plaintiffs from the like oppor- tunity (A). But if the buyer choose to inspect the whole in bulk, he has a right to do so within any convenient season, and so it was adjudged upon a sale of wheat, for a man might bargain to deliver corn not in his pos- session, and rely upon making a future purchase in time to fulfil his undertaking, which is a mode of dealing not to be encouraged ; and the Courts will not permit an usage of trade to over-ride an express warranty, especially when to do so would be the violating the rules of plain reason. A sale note was made to the plaintiff of fifty-six bales of prime singed bacon, but he said, after some time, that it was tainted, and brought an action for damages. Evidence was offered to show, on the defend- ant's part, that it was usual for a certain latitude of deterioration, called average taint, to be allowed, before the bacon lost its character of prime singed bacon, and (/t) Where there was a sale note which did not refer to the sample, and the plaintiff sued the defendant for not sel- ling sugar according to the sample, he was nonsuited; a fraudulent representation could not be incorporated into the contract, and the proper remedy would be an action on the case for the defect. 4 Campb. 22, Merjcr v. Evcrtk. S. 1.] SALE AND DELIVERY OF GOODS. 217 that if a purchaser did not object within a reasonable time, that he was precluded from raising any difficulty afterwards ; but by Heath, Justice, here was an express warranty for prime singed bacon, and being in writing it could not be altered by parol evidence, and besides, the g Taunton, 446, practice of dispensing with the direct warranty could Yates w.Pjm. not be sustained. There is a warranty that the bulk will answer the sample : in this case no implied engagement will arise that the goods sold are merchantable. It was agreed that " hops should be all of like goodness and quality " with a certain sample of the hops contained in each of " the five pockets," 5tc. ; five pockets were bargained for ; the grower of the hops having fraudulently watered them, they were soon found to be in an unsaleable con- dition, and the plaintiff brought his action for damages ; but it was considered, that no implied undertaking existed that the commodity should be merchantable; the defendant was not aware of the fraud or of the latent «Easf. SM. 1 r • 1 1 • 1 Parkinson v. detect, and the rule caveat emptor might be said to apply. Lee. But where twelve bags of waste silk were sold, and the sale note neither referred to samples nor specified the commodity particularly, and the article sold turned out to be of an inferior description to waste silk, the pur- chaser, said Lord Ellenborough, has a right to expect a 4Canipb. 144, saleable article, answering; the description in the con- Gardiner d. Ill- • • 1 Gray ; 6 Taun- tract, and where there is no opportunity to inspect the ton, 108, Laing commodity, the maxim caveat emptor does not apply. ' ^' ^'^^g^o^' When pimento is sold by auction, it is customary to 4 Taunton, 847, declare whether or not it be sea-damaged ; silence raises den" "^ ^^* an implied warranty that it is not so. When a brewer aCampb. 391, sends beer to a publican, a Uke engagement tacitly Hewsra ^ ^' subsists. Warrantyof "good round white turnip seed;" ComynoaCon- ifthe badness of the quality occasions a failure of the *'"'^*=**' "^• 1 1 -111 • /. 7 Taunton, 405. crop, the purchaser is entitled to damages m respect of Button v. Cor- such failure. ^^'^' 2l8 4 Barn. & Cies- well, 108, (iray V, Cox, Id. 115. 1 Moore, 106, Prosser v. Hooper, 2 Espinasse, 57'2, Jendwine V. Slade. Comyii, 120. OF CONTRACTS AND LIABILITIES: [Ch. 2, But where an article is furnished, and there is no express warranty, the case may be different. The defendants, copper merchants, had supplied a quan- tity of " sheathing copper," and at the market price ; but it turned out that, on the return of a vessel from sea, many of her plates made from this copper were cor- roded by the salt water, and full of holes : by Abbott, C. J., a general warranty does not arise on a contract of sale like the present. *' At the trial, it occurred to me," said the learned Chief Justice, "that if a person " sold a commodity for a particular purpose, he must " he understood to warrant it reasonably fit and " proper for such purpose. I am still strongly in- " clined to adhere to that opinion, but some of my " learned brothers think differently. Supposing, how- " ever, my opinion to be correct, still the plaintiffs have " not declared on a warranty or promise of that nature," &c. And where the plaintiff, having bought 100 lbs. of saffron, and having kept it six months, brought an action for a breach of warranty, saying, it was not saf- fron; the Court held it fair for the jury to infer, that as an inferior price had been given for it, it was such an article as the plaintiff intended to purchase, although only three-fourths were saffron, and considering all the circumstances, that a verdict for the defendant was right. Writing down the name of an artist in a cata- logue of pictures is not a warranty, if done without fraud, for the judgment of the buyer is to be exercised upon that occasion. The distinction between deceit and warranty is put thus : if a man knowing that his goods are not market- able, sell them, affirming that they are such, an action will lie for the deceit ; if he expressly warrant them, but do not know their bad quality, he will be answerable in damages ; if he affirm their goodness in ignorance, but they turn out deficient, no action will lie. However, S. 1.] SALE AND DELIVERY OF GOODS. 2I9 where an article, a ship for instance, is sold with all faults, although there be a fault known to the seller, this Bagiei.oie i. declaration will save his responsibility, unless some ^^^''*^''^- 1 -1 -1 ,^1 . ^1 aStarkie, 561, deception be practised, as a raise representation oi her Fletcher v. age, taking the ship from the ways on which she lay I^o**''<^''. worm-eaten, with her keel broken, and keeping her afloat Schneider y? ' in the water, so that her defects were concealed. Heath. " A copper-fastened vessel, as she now lies, to be taken " with all faults :" the ship turned out to be partially copper-fastened, and not that which was in the trade called a copper-fastened vessel. The person selling with this advertisement was held liable, for the meaning was, 24o!*siieniierd that he, the seller, would not be liable for any faults which ^'- ^^ain. a copper-fastened ship might have : it was not such a vessel. The warranty of cattle has given rise to very consi- derable litigation, particularly regarding the soundness of horses ; it is plain, however, that we need not enter more into this discussion as the practical law of mer- See Comyn, chants is peculiarly the subject we have in view: a re- ^u'^V^^'T'^ ference is made to the books where the law in this Horses. particular may be found. Delivery. As soon as the seller has completed every thing to be done on his part, as between him and the buyer, the property may be said to have passed. But if the con- tract be entire, the seller will not be entitled to payment if he have only delivered part of the goods purchased, unless there be a refusal on the part of the vendee to accept the remainder. One hundred sacks of flour were sold, ten to be on trial, to be returned in two days if objected to : the defendant kept four, and sent back two. Ten more sacks were subsequently delivered, of which the defendant took two, and left the remainder at th« wharf; but the plaintiff" removed these, and refused 220 OF CONTRACTS AND LIABILITIES *. [Ch. 2, to complete his engagement. The defendant demanded the completion of the contract, tendered the amount, Walkeru.bixon. ^nd gave noticc that he should buy his flour elsewhere, and charge the plaintiff with the difference. It was held, that the plaintiff could not recover, for it would be to substitute a contract for that which had been agreed upon. " If," said Lord EUenborough, " the " defendant had insisted upon an abatement being made See 2 New Rep. « j^^ respect of the first four, I might have thought 6i, Wadding- . t^ ' & » ton V. Oliver. " differently." Where the contract was for the delivery of barley " in all April or sooner," and part was delivered, but the residue was brought into dock as late as the 29th 7 Dowling & of April ; and it was found, that it could not be un- Cox^t).Todd.' loaded in less than three days ; the Court held, that the contract had not been complied with, and that the defendants were not bound to accept the barley. It is sufficient if the goods are delivered to the vendee, or his agent \ and as soon as the carrier, wharfinger, or other such person, receives the consignment into his charge, with the vendee's assent, the risk of conveyance is not the seller's. Thus a direction by the vendee that goods may be sent to him by a carrier, not naming any one in particular, will be satisfied by a delivery of them See Coniyn, to a kuowu Carrier, and upon such delivery the property l^" '3'7* will be absolutely vested in the purchaser. A party in London was desired by a resident at Bristol to send him an agricultural machine by any conveyance ; it was sent from a wharf whence Bristol vessels usually sailed. The seller sent word that it was to come by the ship Commerce ; it was not, however, sent by that ship, for want of room there, but by another, and did not come to hand. No further inquiry was made by the 2NewRcp.ii9, vendee when he found that the Commerce had not Cooke D.Lud- brought his order; and he was, nevertheless, held liable to pay for these goods. The wharfinger was his agent ; Id. p. 124. and by Mr. Justice Heath, " Nothing is more common S. 1.] SALE AND DELIVERY OF GOODS. 221 " than in the case of waggons, where one is full, to send ** the goods by the next." The mode of delivering heavy goods is by giving the key of the warehouse where they are kept, but if it be part of the contract that they shall not be carried away till paid for, although they may be packed in the vendee's cloths, there is no delivery : and so it was where ^ Henry Black- stone, S I o» the seller said of some wool, that " it should not go off Goodaii v. his premises till he had the money for it." Skeitou. An engraver was directed by the seller, a silversmith, to get some arms engraved on certain articles of plate, and to brin,g the plate back to him. The purchaser agreed to this, but never received his purchase by reason of the failure of a banking-house, the notes of which he had given to the silversmith after it had stopped payment. It was held, that there was no sufficient delivery of this plate; and at the most, that while in 7 Term Rep. 64, •/ . . Owenson v. the engraver's hands, it was in transitu, and capable of Morse. being retained by the vendor. The subject of delivery, as we have just now consi- dered it, independent of the statute of frauds, is so nearly allied to stoppage in transitu, that it may be desirable to remind the reader that the cases upon that head have been already mentioned at some length in the chapter on Shipping. The principle is, that the seller is not bound to deliver 5 Term Rep. goods contracted for, in case of the insolvency of the Kn^atchrulr' " buyer : therefore, before they have arrived at their place cited. of final destination, that is, before they have reached the vendee, or his agent, it is in the seller's power to send after and stop them. And although a very consi- derable portion of the decisions are connected with shipping, it should be remembered, that there exists equally a power to arrest goods sent upon land from one place to another ; the reason that there have been a less number of disputes on that head probably being, that 222 OF CONTRACTS AND LIABILITIES: [Cll. 2, there is not so gi'eat length of time between the sale and dehvery as to admit of many insolvencies in the interim (/). The transitus, as it is called, is commonly at an end when the property reaches the agent of the purchaser ; but where a piano-forte was sent to the defendant's packer, with an understanding that it was to be paid for Loeschman v. ' ^^ ready money, whereupon it was left, here was only Williams. a Conditional deliveiy, and the packer was but a trustee for the seller, who was entitled to stop in transitu. The vendee may interfere, however, and determine the tran- situs sooner than in the ordinaiy course. Three hogs- heads of raw sugar, and some lump sugar, had been sent by the defendants, grocers in London, to the bank- rupt ; they Avent by a carrier, who gave notice of their arrival to the purchaser ; as soon as he heard of it, he took away the lump sugar, took samples from the raw weii,i 17, Foster Sugar, and desired the carrier to keep the rest in his i;. Frampton. warehouse Until further directions. By this act the transitus was ended. Vesting of goods The loss in case of accident is governed by the deli- VendoTand vcry, and the mere possession of goods by the vendor Vendee. will not alter the liability of the vendee, if he give his assent to such possession. Turpentine in casks was sold by auction to the plaintiffs ; they were to be filled up before delivery, and the two last lots were to be sold in uncertain quantities, as the preceding lots would be filled from them ; the defendants' warehouseman, acting as agent for the plaintiffs, ordered the cooper to fill up all except eight or ten, which was done, the bungs being left out for the custom-house officer to make his gauge; a fire then broke out before the gauging, and before the two last casks had been weighed — in order to ascertain the quantity taken out for filling the rest ; and (t) See ante. S. 1.] SALE AND DELIVERY OF GOODS. 223 the plaintiff' contended that the loss must fall on the ven- " ^'''^^\"J°' dors. The Court held, that the sellers having done all in "'^ ' their power towards the delivery of all the casks which were filled up, and the gauging being the buyer's busi- ness, they must bear the loss of those casks ; but that the seller must abide the risk of the casks which had not been filled up, because something clearly remained to be performed by him before these casks were in a fit state for delivery. Some goat-skins were disposed of to the defendant, but the seller was to count them over before he delivered them ; a fire in the interim consumed ^ Campb. 240, Zagury v, i ur- the goods, and Lord EUenborough considered that there neli. had been no complete transfer to the purchaser. So ' again, upon a contract for the sale of a stock of bark, where it became necessary to weigh and deliver before the contract was completed, and a part was accordingly weighed, it was held, that the residue did not vest in the 6 Barn.&Cress- purchaser until the weighing, and that even had it mon's t. Swift.' vested, it could not be said to be delivered, so as to enable the seller to bring his action for goods sold and delivered. But where goods, having been sold to a pur- chaser, and a delivery order given, were distrained for warehouse rent, which, in order to redeem the goods, was paid by the vendor's agent, it being the custom at the same time for the vendor to pay two months' ware- house rent, it was held, that the property had become 2 Barn. & Aid. vested in the purchaser, and that as he was liable for all Hepke. ^^'' accidents, the person who paid the money, without any necessity for so doing, was not competent to recover it back from the vendors. Where a part of stock is sold, it must, it seems (A;), be separated from that stock in order to constitute a valid transfer. As where a merchant had oil in several (h) Whitehoicse v. Frost, 12 East, 614, is shaken by these cases. 224 OF CONTKACTS AND LIABILITIES: [Ch. 2, cisterns, and sold the plaintiff twenty tons, which, «i Taunton 176 however, were neither weighed nor separated from the Whiter.Wiikes; bulk, it was held, that no property passed, and the Austen T' ^' buyer's assignees could not recover in trover against the Craven. vendor. The best delivery that the case will admit of will be sufficient. As where a man, having contracted with a canal company as their engineer, to build locks, &,c. bought timber and other materials for the purpose, but being indebted to the company, executed a bill of sale to them of these goods, accompanied by the delivery of 7TermRcp.67, ^ halfpenny: this was held a valid transfer, for there Manton v. i , • p 1 1 , , 1 Moore. need not be a transmutation irom hand to hand, and as far as possession could be given of property on the company's premises, it was so given in this case. 6 Taunton, 759, If goods are put on board the purchaser's vessel, and Ogle V. Atkin- g^ come undcr his dominion, the property is vested, and son ; same case, ' . . 1 Marshall, 323. any arrangement respecting the bills of lading made without his assent will not alter the case. So where the change of mark from j4. to B. was made on bales of by Lofd^Men- go^^s in a warehouse, this alteration of the initials was borough. held to Operate as an actual delivery of the goods. There is a distinction, with reference to the vesting of property, between cases where it is part of the bargain that money shall be advanced as the work agreed for goes forward, and where the agreement is quite silent on that head. Thus, even where all the purchase money for a barge had been paid in advance, but before it was finished and delivered the builder became a bankrupt, 1 Taunton, 320. the Court held, that no property passed; " If," said Mr. Justice Heath, " the thing be in existence at the Id -iiS Muck- " ^^^^® ^^ ^^^ order, the property of it passes by the low V. Mangles. " contract, but not so where the subject is to be made." A ship was to be paid for by four instalments, to take place at different progresses of her building, the first when the keel was laid, &c.; and the question was. S. 1.] SALE AND DELIVERY OF GOODS. — VESTING. 225 whether, after payment of three instahnents, when the builder became a bankrupt, the vendee was entitled to the ship, and the Court held that he was ; the case of MucJdoiv and Mangles was distinguished on the ground of there having been no stipulated advances ; and with respect to the opinion of Mr. Justice Heath in that case, that the builder might, if he/ pleased, substitute any other barge, here that difficulty was removed by the 5 Barnewaii & ,.,.,,,. . .„ . Aldersoii, q42, shipbuilder having signed the necessary certificate prior Woods v. Rus- to registry, and so marking the specific vessel (/r). So ^^"* that the doctrine which went the length of denying that any property would vest which was not really in exist- See Comju, ence, seems to be a little qualified by this decision. p. 152- Lie7t. It is reasonable that the seller of goods should re- ceive the money for them before their delivery ; until the claim is satisfied, therefore, there is a lien upon them, as it is called. This lien is not upon a man's own goods, for he has parted with these to another, but it is the right to retain them until the original price be paid. Comyn. p. 152 Liens are either general or particular ; general as they govern the ultimate balance of account, particular as they respect a certain description of goods either sold or entrusted for the purpose of repair, &c. to the party insisting on the lien. No sub-liens are allowed ; as, for example, in favour of a broker with whom a deposit of some commercial instrument may have been made • and the deposit does not deprive the original party of his claim. So that the assignee of a policy of insurance on goods, to whom a bill of lading w^as indorsed by the consignor, who had directed his correspondent to make (k) But the name of the buyer was painted on the stern in Mucklo'w and Mangles, and that naade no difference. Q 226 2 Easl,523. Man V. Shilfiier. Same case. 3 Price, 547, JNichols V. Clent. 2 Campb. 579, Wilson V Bal- four. See 2 Moore, 730, Taylor t'. Kobinson. Montagu on Lien, p. 8. OF CONTRACTS AND LIABILITIES: [Ch. 2, the insurance, took it subject to the correspondent's hen for his general balance, and was compehed to permit that hen to be satisfied before he received payment from the broker in whose hands the pohcy had been deposited. But the broker, knowing that the insurance had been effected in the name of another person than the cor- respondent, was held not entitled to a further lien for his general balance with that correspondent. To enforce this right, the party must have either an actual or a constructive possession ; and an unsatisfied demand. So that where a factor received goods by the shipper's order after the bankruptcy of the shipper, although they were sent on the factor's account, and he had accepted bills on the faith of the consignment, he did not gain thereby any right of this kind in respect of his general balance. Without other circumstances, the mere sending goods to be disposed of under a del credere commission is not sufficient to create the right; and in the case cited, the shipper's order seemed of itself to be an act of ownership. So where a banker, having misapplied securities, had inclosed some bonds in an envelope, with a direc- tion and memorandum importing that they belonged to the customer, and, being on the point of stopping pay- ment, sent them to that customer ; it was held, that no property in these bonds passed to the party in ques- tion, and consequently that he could not have any lien upon them, for the whole rested in intention; the banker's wish was to replace the stock, or deliver the securities before his bankruptcy, but he never accom- plished his intentions. And thus, in general, when the owner of the cargo or goods gives up the possession, his right- to retain for the price is gone. But where a printer was employed upon a work to be completed in numbers, some of which he delivered, but insisted upon a lien for his general balance in respect of the particular copies re- S» I.] SALE AND DELIVERY OF GOODS. — LIEN. 22/ mainino- in his hands, he was held to be authorised in 3 Maule & Sel. ^ 167, Blake v. withholding these books, although the numbers were Nicholson; not printed consecutively, and although the charges f go 'ch^ase r ^ ' were made separately upon each number. Westmore. So a tailor, employed to make a suit of clothes, has In the same , . , p ,1 case, by Lord a lien lor his money upon any part 01 them. Eiienborough. Again, if the possession be given up either from mistake or necessity, the lien will in many cases remain. As if one deliver up the title deeds of an estate to the ^^ Vesey.jun. , . 1 • 1 1 • n - 6, ex parte purchaser at an auction, which purchase is afterwards Morgan. set aside, the creditor's lien survives. So where goods are removed into the West India docks in pursuance of the law, the captain does not lose his right of lien, for, 1 Maule & Sei. rather than the party shall be prejudiced, the law will Eiienborough. retain his lien for him. So, again, " where a factor is in " advance for goods by actual payment, or where he " sells under a del c?'edere commission, whereby he " becomes responsible for the price, there is little doubt By Chambre, J. " that he has a lien on the price, though he has parted puiierr489. " with the possession of the goods." Of absolute and conditional deliveries of goods we have already spoken ; it needs only to be remarked, there- fore, that where any thing remains to be done on the vendor's part before the property is ready for deliveiy, the vendee will not have acquired a sufficient interest to avoid the customary lien. The plaintiffs built a carriage for a customer, who did not pay for it, and on action brought they recovered against the purchaser for goods bargained and sold ; under a writ oi Ji.fa. the sheriff seized this carriage as part of the purchaser's goods : the Court held that the lien was not gone ; that it might, 2 Siarkie, 337, indeed, have been different, had the action been for goods oesanges! ^' sold and delivered, but that the plaintiffs were here in possession of a carriage unpaid for. To establish a claim of lien on the part of the indivi- dual in possession, it is observable, that the ])OSsession Q 2 2i8 OF CONTRACTS AND LIABILITIES: [Cll. 2, must not have been given through a mistake ; for vi'here a banker refused to advance money on a lease which was nevertheless then left accidentally in his hands, it was considered that he had no lien upon it. And the pos- 7 Taiuitoiw 278, session is so far confined to the goods themselves, that where they are insured, the insurance money cannot be Lucas ?,'. Dor- rien. treated as the subject of lien : thus, where the seller was to have the control over certain sugars till they were paid for, but the purchaser, without any stipulation to that effect, insured the cargo, the shipment being at his risk ; it was held, that the compensation from the under- writers which accrued in consequence of capture, was rightly placed to the credit of the vendee by his agents, 1 Barnewaii & and that these persons were not bound to apply such Neale v. fleid.' proceeds in the first instance to the discharge of bills drawn by the purchaser for the goods. A possession for a specific purpose will not always confer a lien, nor will a mere deposit for the purpose of safe custody. A factor got possession of a certificate of registry in order to pay certain tonnage duties, and then withheld the instrument under pretence of a lien ; it was a Starkie, 272, held, that he had no right whatever to retain it under Burn V. Brown, thcsc circumstanccs. And when a bill, for example, is parted with for a specific purpose, as to enable the Bruce rHurfey Pledgor to obtain payment, the lien is not destroyed. So where the proprietor of goods agreed to sell them to one of his creditors, with an understanding that the proceeds should be appropriated towards the hquidation of the debt, and the factor of the proprietor received the goods under a charge to sell them, and account to the creditor ; 1 Vesey, jun. it was held, that the factor acquired no right of lien v.^Boyer!^™"" ^ against the creditor for his principal's general balance. 8 Taunton, 499, So a fuller, who received cloths for the special purpose of Rose V. Hart, dressing them, was not permitted to detain them for his general balance. So gaining possession wrongfully will not give this right, although certain incidental expenses, S. 1 ] SALE AND DELIVERY OF GOODS. — LIEN. 229 freight, for instance, be actually paid ; but it seems that 2 Term Rep. a ho7ia Jide creditor, who pays freight to obtain pos- ^. p'asie?.'""^ session of property, has a lien for the amount. As soon as a specific advantage accrues to the party depositing his deed or goods, a lien is apt to arise : as where the jury found that a poUcy of insurance had been placed with an agent as a security for advances, R^an^'lo and not merely for safe custody, a general lien was con- r.Muir Fleming. sidered to attach ; but, on the contrary, where it clearly appeared that certain deeds were deposited, not as a security for debt, but in order to procure credit at a 1 Turner, 47-2, future day, the party with whom they were left had no Scott. lien given him by such an act. The general rule is, that a banker who discounts bills for his customer, or accepts bills for the accommodation of the customer, has a lien on any negotiable securities I^yan&Mood^?, ' . -^ .^ . 271, Bolland v. belonging to the debtor, until the bills are paid upon Bjgrave. which the advances or acceptances have been made. And where a customer lodged bills with his bankers generally, drawing upon them for such money as he wanted in ad- vance, and the banker's custom was to select such bills as came nearest the sum lent, and to discount them, but not with any view of selecting such bills as the basis of the credit, the Court considered that the general lien was not ^ -y^^^ Rep_ thereby abandoned, and if not that the customer could not 4B8, Davis v. have demanded the bills which had not been discounted without paying the general balance ; so that the specific security was not relied on by the banker, there being no agreement to waive the lien. In Chancery, the Court will refer it to tlie master to 1 Buck, 191, say what lien exists upon bills in the banker's hands. ^^ ^^^ ^ Supposing that possession be given up, there are Regainin<T pos- cases in which the rioht revives on the restoration or session, regaining of the goods in question. " There can be no " doubt but that a broker may retain a policy for par- " ticular premiums which may be unpaid, and that if Q 3 230 OF CONTTvACTS AND LIABILITIES'. [Cll. 3, By Park, J. in " he pai'ts witli the posscssion of it, he has still a lien 2Moore,42. '" on its being redelivered to him." And so it is though Cooke's Bank- he gain possession under pretence of receiving the ■""P^ J^^^*' Pj average. The keeper of some livery stables, finding that V. Vaughan. his customer had withdrawn the horses he had at keep ^^^".^,^y°°*'^' there, without payincr his bill, repossessed himself of 193, Wallace v. . I J o 'I Woodgate. them without force, and it was held that his lien revived. It is observable, that in this case there had been an express agreement that the horses should remain till the keep had been satisfied, for in general the rule is, that 1 Strange, 556, ^^ the innkeeper permit the horse to be taken away, the Jones V. Pearle. hen does not revivc on its coming there again. So where the defendant, a fuller, had shipped some cloths on board a vessel to be forwarded to the purchaser in Lon- don, but hearing of the purchaser's bankruptcy, he endea- 1 East, 4, voured to stop the goods in transitu ; it was held, that his Sweet I'. P_yii). right of lien did not revive upon this occasion, and the bankrupt's assignees accordingly recovered the property. , , . So it was in the case of the coachmaker, who, havine; 1 Starkie, 408, , , . . • i 1 1 Hartleyv.Hitch- Completed ccrtaui repan's, permitted the owner to take cock ; see also ^^^ ^^^ ^^ |-^jg ^.^j ^^^^ ^^g j^ ^^le lien did not revive 3 isosaiiquet & ^ ' _ Puller, 485, when the carriage came back again to stand on the pre- Ma'tfh'ews.^ miscs, there being no agreement for a lien. 4 Barnewail & Some iron had been imported by persons who after- Alderson,5o, wards became bankrupts, and a delivery order was Crawshayu, . , i mi • ,• n i Homfray. given to the purchasers. Ihe iron was partially de- livered, but the defendants, wharfingers, having heard of the bankruptcy, detained the remainder. The pay- ment of the wharfage dues by the merchant importer, according to the usage of trade, took place at Christmas, and the Court clearly considered that there was never any original lien, for the party was entitled to have his goods immediately, the payment in respect of them being postponed till a future day ; and they held further, that the failure on the bankrupt's part to discharge these dues created no new right of lien. S. 1.] SALE AND DELIVERY OF GOODS.— LIEN. If a person think proper to decline taking advantage of a privilege which the law allows him, there is, in general, no reason why he should not do so, or, if he act inconsistently with the conceded privilege, he will be deemed to have waived it. And thus a lien maybe waived either expressly or by inference. As where a deposit of goods was made with a factor, who promised to pay his principal the net proceeds, the Court were very clear against the right of detaining the goods as claimed by the factor, for the express stipulation for payment in the contract controlled the general rule of law on the subject. Sometimes a waiver of lien will be implied from the ideas which a person entertains on the business when it is mentioned to him; as where the defendant was asked for some brandy, which he refused to deliver up, saying it was his own property. Here he might, perhaps, have demanded his lien on the ground of warehouse rent due, but as he was silent concerning that. Lord Ellen- borough said he must be taken to have waived his lien, if he had one. And upon this, it was contended in a subsequent case, that the lien was waived under these circumstances : the defendant had a lien on some cloth, which he bought of the person who had left it with him after the bankruptcy of that person ; when applied to for the goods, he said, " I may as well give up every trans- " action of my life :" and these words, it was said, amounted to a waiver; but by Best, C. J., *' his busi- " riess was that of a miller of cloth, and if he had given " up his lien in this instance, he might have been called " on to do so always." And the purchase after the bankruptcy was held to make no difference, the assignees taking subject to such rights as had accrued previously to their claim. So if part of a quantity of goods be delivered out to the bailor or his partners, it is no waiver of the lien as to the remainder. 231 Waiver. See Montagu on Lien, p. 36. 6 Term Rep. 258, Walker v. Birch. 1 Campbell, 410, n. Board- man V. Sill. 2 Bingliani, 23, Wliilc u. Gainer. Holt's Nisi Pri Cases, 383, Pothonier v. Dawson. Q4 232 OF CONTRACTS AND LIABILITIES: [Cil. 2, Agreements to take security, to give credit, &.c. are in general inconsistent with lien. But in the case of a dishonoured bill, if it appear clearly that the party who Owensou v. took it never intended to abide the risk of its being paid, Morse. -^ jg ^^^ ^j^ acceptance of security, and the lien will not be destroyed. A banker took a security for part of his 3 Brown. Chan- debt, and the debtor died; it was held, that the banker derzee!)' Willi's. ^^^ ^^ ^^^^ ^^^ ^^^^ security for the residue of that which was owing to him. And in the cases of credit, and express agreement for payment at a given time, we shall find that the lien will not arise, for the party shows that he means to rely on the personal faith of the debtor, and not upon the property deposited in his hands.- And so an innkeeper taking cattle in to keep at a certain weekly sum ; a farrier agreeing to cure a horse for so much, and keep him for a reasonable sum until he has Montagu, p. 39. been cured ; a shipwright giving credit for repairs done 2 Canipb. 631, to the vessel, have no claim to this right of lien. But a Wolf V. Sum- captain has a lien on the luggage of a passenger, for the passage money due at the end of the voyage. To use the words of Lord Ellenhorough : " A lien is •2 Cani|)b. 149. " wholly inconsistent with dealing on credit, and can " only subsist where payment is to be made in ready " money, or there is a bargain that security shall be " given the moment the work is completed ; there can be " no lien without an immediate right of action for the " debt, and that does not accrue till the period of credit " has expired." Liens generally, Coming now to spcak of liciis as they may be claimed or in favour oi by particular individuals, or the general usage of trade particular per- . i • i i 1 i i sons. It may be said, that the person to whom goods are en- trusted in the course of his business for any particular purpose, has a lien until he is paid for his work. By general custom, too, if a party be compelled to receive Mouiagu, p. 23. goods, he has a lien on them for any debts contracted in the execution of the purpose for which he has been S. 1.] SALE AND DELIVERY OF GOODS. — LIEN. 233 obliged to receive them. Thus it is that an innkeeper (/) derives his right of lien, and a common carrier, for both g^^ Montagu, are under a common law duty to exercise their respec- p. 24- tive vocations. It is said, that the innkeeper's right } Shower, 269, -, 1 . by Eyre, Justice. of detention extends to the very person of his guest. And a farrier has a lien of the nature mentioned above. Montagu, p 25. By special custom, a man may retain for more than the debt contracted in the execution of the purpose for I'l- P- 28. which the property was intrusted. And when an usage of the kind has been frequently proved, it will be taken * Espmasse, for a settled point. Thus, in the case of wharfingers, . , ,. „ 3 Espiiiasse 81 Lord Kenyon said, " that a hen irom usage was matter spears v. Hart- " of evidence. The usage in the present case had ^^y- " been proved so often (he said,) it should be consi- " dered as a settled point that wharfingers had the lien " contended for." But a few instances of detention will not warrant the special custom to retain for a general balance: as where testimony was adduced that four or five carriers had stopped goods till the general balance was paid,* the Court held that the lien thus claimed ^^t!^'5'9» ^ Kusnlorth i>. was not founded on the common law, and that, although lladikid. it might exist by virtue of a special agreement, very strong evidence ought to be brought forward to substan- tiate it. In a subsequent case between the same parties, it was shown that the defendant and other carriers had exercised such a right for ten or twelve years, and one instance of such an usage for thirty years was produced ; but the Court considered that the jury had done right 7 East, 224. in negativing the claim of general lien. And a general lien is not favoured by the Courts. (/) An innkeeper's lien is not to be avoided, even if a horse be illegally seized, and brought to his inn, provided he be not cognisant of the improper transaction, for he would then make himself a party to the wrongful act. 3 Starkie, 172, Johiiaon v. lliU. 234 OF CONTRACTS AND LIABILITIES : [Cll. '2, The following persons have been adjudged entitled to 1 East, 4, the general lien : — attornies, bankers, brokers, calico- ym. printers, factors, fullers (according to the custom of the trade at Exeter), packers, wharfingers (m), common See3Maule& . . n itt- i , Selwyn, 167, carriers, innkeepers, millers. With regard to printers, it Blake u Nichol- gggj^^g to be undecided whether they are or not entitled. son. . . •' . The right of dyers is not merely unsettled for want of See the cases m _ ^ / •' Montagu, p. 29, decisions, but it has, moreover, been determined dif- Tchit;;" Cases fe^ent ways upon different trials. Temp. Mansfield, 456, Bennett v. Johnson, where the decision was against the claim. Lien on what It seems that, in general, the lien should be claimed for work done in the course of the particular business, 3 Espinasse, 1 p 1 p n 1 268,Weldon V. and iiot tor money lent, or tor any collateral matter, ^°"'^* and it has been so decided in the case of calico-printers. And in another case, Mr. Justice Gibbs declared his 5 Taunton, 56, Opinion, that policy brokers were entitled to their lien on Ohve u. Smith. ^^^ policy accouiit, but not for advances they had n)ade on goods. 1 Atkins, 228, But packers have this general lien for money lent. As to the lien of a factor for debts accrued before his character of factor commenced. Lord Alvanley, after say- 3Bosanquet& ing that "if a debt be due from the principal to the u er, 49 . << factor, antecedent to the time of the particular goods " being put into the hands of the latter, he is entitled to " retain them as a security ;" added, " and if a man " commence dealing with a factor, to whom he is in- " debted on bond, I am not prepared to say, that the (/«) And although true it is, that the wharfinger has a claim of general lien for wharfage, yet where he claimed for labourage in addition (that is, for weighing, landing, and delivery), and for warehouse rent, the Court held that the claim could not be supported in respect of the labourage, upon the principle that such lien arises out of a contract express or implied, of which there was no evidence, although the claim .had been acquiesced in in a great majority of instances. 7 Barncwall k Crcsswell, 212, HoJdernessy. Collinson. S. 1.] SALE AND DELIVERY OF GOODS. — LIEN. 235 " lien of the factor would not attach vipon such debt." But by Chambre, justice, " I do not find any authority *' for saying, that a factor has any general lien in respect " of debts which arise prior to the time at which his gosanonet & " character of factor commences ; and if a right to such Puller, 488. " a lien is not established by express authority, it does " not appear to me to fall within the general principle " upon which the liens of factors have been allowed." There is no lien in favour of the Jinder of property ; Sir Wm. Black- and so it was decided where such a claim was made for iu7,'Binstead, the keep of a dog. Some timber, placed in a dock on i' Buck, the banks of the Thames, was accidentally loosened, and floated down as far as Putney, where it was left at low water ; thence it was taken by the bailiff of a manor, who claimed a certain compensation for his trouble, and upon a refusal to comply with the demand, detained the timber. Upon action brought, the defence of the bailiff was, that this act was a benefit and convenience to the owner ; that on principles of public policy the lien ought to be supported, and that the case bore a strong re- semblance to salvage. But the Court rejected the claim, and said, that public policy and commercial necessity not only did not require the rule of lien in the case ^ H.Blackstone, before them, but that great inconvenience would fall v. Chapman. upon owners of craft if it were established. We have seen, that notwithstanding special or general customs, a lien may be had if there be an agreement for that purpose. So that where a party of dyers, dressers, bleachers, whisters, printers and calenderers of Man- chester met together, and gave public notice that they would not thenceforward take into their possession any goods to be bleached, &c. unless they should be subject by express condition not only to the debt for the work and labour performed upon them, but also for the general balance due from their employers, the Court considered it perfectly clear, that these manufacturers had instituted 236 6 Term Rep. 14, Kirkman v. Shawcross. 5 Barnewal),& Aldersou, 350, Siiell. i Rose, 239, ex parte Marsh, 2 Rose, 24s, ex ]iarte Browne, cited. Mon- tagu on Lien, P-35- Montagu, p. 35. Ibid. Power of the Crown to defeat liens. 6 Price, 369, Ucx «;. Lee. See also Mon- tagu, part iv. cli, I. OF CONTRACTS AND LIABILITIES: [Cll. C, a valid agreement, which was not contra bouos mores, nor forbidden by any law. But where a carrier, who had given a public notice of this kind, sent goods to the order of J, S., a factor, the consignee, it was held, that he should not have any lien for his general balance duo from J. S. against the real owner of the goods. Where a partner in a banking-house seceded, and another came in, a customer, asking for acceptances to the amount of 2,000 /., addressed the new firm thus : " As we have kept an account with you for many years, " and as the value of the estate of which you have the " title deeds, and ^'s acceptances, are together of " greater value than the amount of your acceptances " will be, together with the 2,000 /. now asked for," &c. : here the bankers were considered to have a lien for ad- vances beyond the 2,000 /. subsequent to the date of the letter. Though a mortgage to three bankers cannot, it seems, be extended to the firm upon the introduction of a fourth, although the new partner has only a fixed salary, and is not interested in profit and loss. Where there are continued dealings between the same parties, and it is understood that a lien for a general balance exists, subsequent dealings may be considered as governed by the same principle. So that if a trader borrow money of a person in possession of some property belonging to that trader, it seems to be evidence that the goods deposited are pledged for the whole debt. It has been determined, that the right of the Crown is not paramount, so as to deprive a factor of his lien ; and judgment was given, therefore, in favour of one who had accepted bills of exchange on the faith of a consignment to his principal, and claimed to hold in respect of his advances against the sheriff seizing under an extent. In the former chapter on shipping, the subject of lien as it relates to ships has been much considered, and the reader may therefore be referred there for the cases S. 1.] SALE AND DELIVERY OF GOODS. — LIEN. 237 which have occurred. There is a Hen for salvage on the ' L^d Rav- . , 1- • 1 • iiiond,393, Hart- strictest principles oi commercial poucy, it being rea- f^rt v. Jones. sonable that a man shall be rewarded who encounters hazard for the service of another; but the lender of money at respondentia, whose bond was to be void if the ship returned, or in case of loss, if a proportionable average on the goods saved should be paid, was not held entitled to his lien, for this amounted only to a personal „ ^ ^, -^ . 4 East, 319, obligation on the borrowers ; there was no specific Busk i. Fearon. pledge. There could not, before the late statute concerning Assignment of factors, be any assignment of lien, and now such a claim for a general balance cannot be acquired by a pawnee, but only a compensation to the amount of the pledge or advances. It is a very natural enquiry, whether property thus R'gh^s g'^f " l^y detained for payment of a just debt can be disposed of, or whether it is to remain a dead pledge in the holder's hands, and further, whether any use may be made of property thus acquired. " Undoubtedly, as a general By Gibbs, C. J. " proposition, a right of lien gives no right to sell the "^'^'P-S 5- goods." But this proposition is qualified by an under- standing, that if the keeping of such goods be creative of expense, the case is altered. So that by the custom of London, where a horse is likely to consume his value, the innkeeper may sell him, which he may not do as a Montagu, p. 21. general rule. Again, where a person deposited some wine with the defendant, as a security for a loan, " the " contract," said Gibbs, C. J., "may be said to amount " to this : ' If I [the borrower] repay the money, you " must redeliver the goods; but if I fail to repay it, " you may use the security I have left to repay your- " self;'" and the Court upheld the defendant's authority Holt, 383, Po. to sell, the money not being repaid. With regard to g^^ the employment of cattle ; a horse or ox may be em- ployed, a cow may be milked, and in short the chattel 238 Owen, 124. Liens for and against tliird persons. By Grose, J. 2 East, 235. 2 East, 227, Hammonds v. Barclay. OF CONTRACTS AND LIABILITIES: [Ch. 2, may be used in the same manner as the owner would have worked it; but clothes or things the worse for wear, must not be so treated. A few considerations respecting liens in favour or against third persons, may be added to this part of the chapter; and as, in general, the representative has the same right of lien as his testator, or the party whom he represents, so commonly the executor or assignee, &c. is liable in the same way as the deceased or bankrupt. It Was insisted, in one case, that whatever authority the testa- tor gave on the subject of retaining goods was counter- manded by his death, but (it was a case between the executors of a consignor and the assignees of a consignee) " it does not seem very consistent with justice to say, *' that after the consignee had advanced the premiums, " and paid bill on the credit of the consignment, the " death of the consignor should operate as a revocation, " so as to prevent the bankrupt and his assignees having " the fruits of that which was the foundation and " consideration upon which he disbursed his money." There was, moreover, a confirmation of the consignee's lien by the executors in the case cited, and judgment was given for the parties claiming such lien («). Again, where a broker advanced money, and gave acceptances on account of some sugars which were deposited in their hands by the plaintiff's agents, it was held, that the owner could not demand these sugars without giving a full indemnity, and that a mere notice by the plaintiffs to the brokers that they should not sell, or even an offer of counter acceptances, would not hinder the de- («) It would appear that there is no difference where the executor ratifies his testator's acts, and where not. Yet there is an old case in which it was held that a factor has no lien on goods entrusted to him against his principal's executor. 21 Vernon, 117, C/ifipman v. Derby. S. 1.] SALE AND DELIVERY OF GOODS. — LIEN. 239 fendants from acting as they judged best for their 3 Espinasse, , , , . 1 . 182, Pultnev V. advantage and reimbursement. Kevmer. If a broker have no notice that the party he is dealing with is an agent, he will, as between broker and prin- cipal, have a lien for his general balance with the agent, but it is otherwise if he be apprised of the situation of, the agent. Thus, in a case where notice had not been given, and the broker had advanced a sum of money upon a policy of insurance, he was held justified in deducting his general balance with the agent from the proceeds ; and LordEUen- borough said, that this might be done before or after a com- munication of the principal's interest in the instrument ; but it was further decided, that when the broker had 4 Campb. 60, satisfied himself, he was bound to hand over the balance resier. to the principal, and not to the assignees of the agent. " I hold," said Lord Chief Justice Gibbs, " that if 4 Carapb. 352. " a policy of insurance is effected by a broker, in *' ignorance that it does not belong to the persons by " whom he is employed, he has a lien upon it for the " amount of the balance which they owe him. In this " case, the agent has misconducted himself, and is *' liable for not disclosing that he was a mere agent in " the transaction ; but the defendants [sub-brokers], who " had every reason to believe that he was the principal, " are entitled to hold the jjolicy." And so where one employed a broker to effect an in- surance, and the broker, representing himself as the principal, accomplished this through a medium of another person, that third person was considered to have a lien . Campb. 340. on the policy for his general balance against the bro- Wostwood v. ker (0). But where an English subject, in time of war, ^ ' opened a policy in his own name with his broker, but (0) See 2 Campbell, 597, Lanyon v. Blnnchard, and Montagu on Lien, p. 67, note n. 240 1 East, 335, Maaiiss v. Hen- derson. 1 Campb. 597, Lan^on i'. Blanchard. Ibid. Id. 218, Snook V. Davidson. OP CONTRACTS AND LIABILITIES: [Cll.2, told him at the same time that it was neutral, the Court held this indication sufficient to show that the principal's property in the policy had been disclosed, and a claim, therefore, for the general balance due from the ao-ent to the broker was disallowed. So where tal- low had been insured, and the agent represented that he had authority to indorse the bill of lading, the defen- dant was not permitted to retain for this agent's general balance due to him ; and Lord Ellenborough said, " if " an agent represents himself to have a power which is " not entrusted to him, his principal is not bound by *' his acts. The person who gives faith to the repre- ." sentations of the agent, must run the risk of their " being true or false" (/?). So where an insurance broker, being directed to effect polices, went to the defendant, without the knowledge of his employer, and transacted the business, saying, that the policies were ybr a correspondent in the country/, the general lien was objected to; and by Lord Ellen- borough, addressing himself to the counsel for the defendant, the sub-broker : " there is no privity between " you and this party : a sub-agent, employed as the " defendants were, cannot acquire the broker's general " lien." So a book-keeper in Smithfield, who received money for beasts sold, conceived that he had a right to retain against the drover upon the event of the salesman's in- solvency ; but the Court denied the claim, saying that (/;) It must be confessed that this decision may almost be said to clash with that of Chief Justice Gibbs. The ground of distinction suggested here is one adopted by Mr. Montagu, who says, " the representation by the shippei", " that hu had authority to indorse the bill of lading, seems " to imply that the insurance was not effected by the shipper " on his own account." On Lien, p. 67. note n. S. 1.] SALfi AND DELIVERY OF GOODS. — LIEN. 24! the ofBce-keeper knew he was receiving this money for Peake's Cases, the drover's use, and judgment was given for the prin- jones. cipal. We have seen that Hens are not in their nature assign- able ; and so, " if a servant dehver cloth to a taylor to " make his master's liveries, the taylor indeed will have " a hen on the cloth for the value of his work: but ? ^f ^^.f^^' ^^ - , ' Lord Lllenbo- ** though the servant pay the taylor his charge, that will rough. " not give the servant a lien on the liveries." So, if a broker tortiously pledge his principal's goods as his own, the pawnee may not retain against the principal 7 East, 5, for the broker's general balance with such principal, -q'^^^^ "'"* The late statute, regulating pledges and contracts by factors, allows the person who advances his money, to keep the goods till he has been satisfied to the extent of his loan, and this, with or without notice that the pro- perty belongs to another. Liens are sanctioned in favour of personal representatives as well as against them ; and therefore, when the administratrix of a deceased solicitor was applied to to deliver up certain papers belonging to a cause in which her husband had been concerned, and she refused so to do until security given for the costs which had been incurred, the Lord Chancellor refused a motion to compel her, the proceedings in the cause 1 • 1 1 1 1 p 1 f * Swanston, 84, being stayed, not by the default of any party, but by Bolton y. Tate. the act of God. As a general rule, there is the same right of lien Lien against against the assignees which existed before the bank- ^^'S"'^'^*- ruptcy ; so that the possession of a bond with notice to j r^^^.^^^ ^^^ the obligor, gives a good title against his assignees. 619, Winch r. And so, where a policy of insurance was in the broker's ^^ ^^' hands at the time of the bankruptcy, it was considered that he had a lien upon the money received from the underwriters. So, again, a factor, becoming surety for' his principal, has a lien upon the price of goods sold by him ; and in a case where he had parted with the actual 24? or CONTRACTS AND LIABILITIES: [Ch 2, possession of the goods, yet as he had the power of Cowper, 251, giving a discharge, it was held, that the proceeds were Goodwin.^ ^' bound in his hands to satisfy him to the extent of his suretyship. But the transaction should be complete at the time of the failure, for if the person who would be entitled to his lien neglect to reduce the property into his possession, the assignees will clearly have a right to claim it. And the Court will be slow to in- terfere for the benefit of parties who have been thus negligent. " We are very unwilling, at all times, to -,,.-, " interfere with the rights of parties which have accrued 4 Maule & Sel. s r 329. " by bankruptcy," said Lord EUenborough. Montagu, p, 74 ; Hence, if a creditor possess a security of any kind, HumpiiHef w. ' ^y judgment, recognizance, Sec. but there be not any Wilson. execution or extent sued out against the bankrupt's estate, there is no lien. Thus, the teste and delivery of ^Ji.fa. to the sheriff is not sufficient, but a seizure, as Ibid. it reduces the effects into possession, immediately con- fers the rio^ht. There being no bound bailiffs in Cumberland, certain bankers there gave a writ of /?. fa. to two of the bank- 2 Campb. 48, rupt's servants, he being their debtor ; but it was held^ Jackson v.irvin. ^|-^^^ ^j^^ bankruptcy overrode the execution, for the pos- session of the servants could not, in point of law, be aliene to that of the master. The principle rests upon a possession adverse to the order and disposition of the bankrupt; and so, where goods were taken upon an extent three days before an act of bankruptcy, but the party did not sue out his writ of liberate (q) till three Croke, Car.148, days after the issuing of the commission, the Court ^^u eyt). d- ^gj.g -j^ favour of the creditor, saying, that the goods were in the law's custody, and they gave judgment for the lien, although they admitted that the creditor was (5') A writ to the sheriff of a county to give possession of lands and goods extended. 8ey S. 1.] SALE AND DELIVERY OF GOODS. LIEN. 243 not absolutely interested till the delivery of the goods under the liberate. The lien, too, must be on the same property which has been originally entrusted. A pledge was made of various bills of lading, but a part of the cargo in ques- tion was disposed of by the trader's agents abroad, and then an act of bankruptcy was committed by the mer- chant who had made the deposit. He, however, per- suaded the agents to replace these goods by others, and sent the fresh bills of lading to his pawnees, but the Court held, that these substituted goods must pass to 5 Taunton, 74, the assignees, not having been in the least alluded to in ^^'"' the original transfer. So, where goods had been pledged for the express purpose of securing the amount of certain bills which had been taken up by acceptors, but the owner had paid the debt incurred by such acceptances, and had entered into fresh obhgations in respect of other bills taken up subsequently by the same acceptors ; it was held, an act of bankruptcy having intervened, that the goods could not remain liable for the subsequent bills, and that there 5 Price, 593, was no lien to prevent them from becoming the property RaphaeU of the assignees. Equitable liens are not favoured by the Courts ; they Equitable Hens, exist only in equity ; and, it is said, that " there is not " any difference between the rules of decisions in courts " of law and courts of equity, respecting liens on the " goods of one man in the possession of another." The cases upon this subject are so much connected with Montagu on purchases of land, deposits of leases, mortgages, &c. ^''*^"' 1'" '^^* that it will, perhaps, be deemed sufficient to refer the reader to the text-books on lien, it being desirable to ^ ,, . * See Montagu confine this treatise as strictly as possible to matters of & Whittaker on common occurrence amongst merchants. ^'^°' R 2 ^44 OF CONTRACTS AND LIABILITIES: [Cll. 2) Fell on Guaran- tees, p. 1. Any special promise. Fell, p. 9. Debt, default, or njiscarriage of another. 1 Wilson, 305, Read v, Nash. Cowper, 227, Jones V. Coo- per. Id.223, by Ld, ^Mansfield ; 2 T. Rep. 80, Mat- son V. Wharam ; Sel. N. P. 830. Guarantees. " A guarantee is a promise to answer for the payment " of some debt, or the performance of some duty, in case " of the failure of another person, who is, in the first ' instance, liable to such payment or performance." And it is necessary, not only that there should be a consideration for such an undertaking, but that the consideration should be in writing. By the statute of frauds, no action shall be brought whereby to charge the defendant, upon any special promise, to answer for the debt, default, or miscarriage of another person, un- less the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged there- with, or some other person thereunto by him lawfully authorized. This may be made either at the time of the accruing of the debt or before, or again, it may be given after the debt, default, &c. There must at some period or another, be a debt, &c. ; it is not sufficient that a promise be made to pay damages in an action of assault and battery, if the plaintiff will withdraw his record. Still, the debt need not exist at the moment of the promise ; as where the defendant said, " I will pay you if Smith will not :" speaking with reference to goods which had not then been delivered ; in this case, the Court held, that there was a collateral undertaking within the statute. The promise held, in case the other should not pay. " Where " the undertaking is before delivery, and there is a direc- " tioii to deliver the goods, and I will see them paid " for, it is not within the statute of frauds." Great care is employed in distinguishing between an original and a conditional undertaking. An application for money was made thus : " This is to certify that it S. 1.] GUARANTEES. 245 " is my request you pay to Mr. Davidson on the " account of Master Hillier," &c. It appeared that ' Barrow 373, TT-11- • n 11^ • Hams V. Hunt- Hilher was an infant, and the Court considered this an bach ; see 1 original promise, for the infant could not contract. K^te^ Tem But the following was held to be an original promise : p'e- " I, R. H. do agree to pay Mr. I. M. 50/. for timber " to house in A. C, out of the money that I have to " pay W. W,, provided W.'s work is completed." The work was completed, and the Court entertained no 2Binghain,439, doubt upon the subject. ^j^"" ^- "'''- Further, if the party promising be in any respect liable, either alone or jointly with others, the case will Comjn on Con- be out of the statute, and the same result will occur '^^^ *' ^' ^^' if the person giving the undertaking derive an imme- wiiiiamsD. ' diate benefit from it, althouoh the promise be in effect Leper; 4Bmg- ■ n o 1*1 ham, 204, to satisfy the debt of another. As where a broker em- Ramptou v. ployed to sell goods, promised the landlord his rent if ^""''"• he would desist from distraining. So where the plaintiff, who was an insurance broker, had a lien on certain policies, and the defendant, who managed the insurance concerns of the principal for whom the insurances had been effected, promised that he would provide for the plaintiff's acceptances when * due, on condition of his giving up the policies ; the Court 2 East, 325, were of opinion that this was an original undertaking Aubenf "' on the defendant's part. And by Lord Ellenborough, id. 331. " In the case of a bill of exchange, for which sereral '' persons are liable, if it be agreed to be taken up and " paid by one, eventually others may be discharged ; " but the moving consideration is the discharge of the " party himself, and not of the rest, though that also " ensues." A person being insolvent, one Weston pro- mised to pay all the creditors lo.s. in the pound if they would assign their debts to him; they agreed to this, 1 NewRep.ia4, and the Court considered the compact as a purchase of de'n^^^ "" ^^^^' K 3 246 OF CONTRACTS AND LIABILITIES'. [Ch. 2, the debts, and not an agreement within the statute to answer for the insolvent's obHgations. 5 Taunton, 450, And SO again it was, where a man not being in a con- Stallard"^ *' dition to pay for goods, transferred them to another* who agreed at once to pay for them. A partnership is, of course, not within the statute. And the rule of joint credit has been carried so far that, in a case where the vendor knew that neither a partner- ship, nor even a community of interest subsisted be- tween the purchaser and a person who came forward to be answerable for him, but the credit was given to both Scholes V. jointly, and the invoices made out in their joint names ; SoTherTreiif it was, nevertheless, held at Nisi Prius to be a joint pro- p-27. mise, and not within the statute. 2 Wilson, 94, ^ promise to pay tlie debt of another in considera- son ' tion of forbearance to sue, is void without writing, for there is the debt subsisting and an undertaking to satisfy it. And it is observable, that if a promise to pay the debt of another be coupled with one for the perform- ance of another act, which latter nc^d not be in writing, 7 Term Rep. you cannot, on the principle of entirety which governs aoi.Chaterv". "^ r ■, • , Beckett. Contracts, enforce the agreement without a memoran- dum or writing. When the statute has been once satisfied, a new pro- mise which saves the statute of limitations, although By Bayley, J. made verbally, will be sufficient ; for, " to satisfy the eQ^^'cii^ ^'^' " statute of frauds there must be a promise in writing, V. M'Casland. " and to take the case out of the statute of limitations " there must be a promise within six years.'* And if any act is done to extinguish the original debt, a promise to pay that debt becomes independent, and so not within the statute ; as where the plaintiff consented to discharge his debtor, who had been taken upon a ca. sa., out of custody, and in consideration of S. I.] GUARANTEES. 247 that discharge the defendant undertook to pay the ^ Barn. & Aid. 1 1 TT 1 - 1 .• c 297, Goodman debt. Here the promise was no longer one to satisfy i,. cbase. the debt of another, and so judgment went against the party sued upon the new promise. Not only the promise, , , t, . , , . . . \ . : sEast.io.Wain but the consideration also must be in writing, and signed ,;. Warlters. by the party to be charged, or his agent. With regard to the decisions in equity, where part performance of a contract will supersede the necessity of putting it in writing notwithstanding the statute, Mr. Fell says, " It is difficult to foresee how they p. 34, " may be applicable to the question of guarantee." We have seen that there must be a good consideration ; What a suffi- there must, moreover, be a mutuality of contract, but ^^^j ^^"^°""" this latter requisite need not appear on the face of the instrument ; the furnishing goods and giving credit are ^^"> P- 43' sufficient. Lastly, the parties to the agreement should be mentioned in it. You commonly address the person who extends the credit; as " Mr. A. B. I guarantee," &c. ^^- P' '^^• It has been held that a letter is a sufficient memo- randum to ensure the validity of the contract. And this . ,. I . 3 Atkins, 503, IS so, although the letter be written to a man's own by Lord Hard- agent, setting forth the terms of an agreement as con- ^'*=''*^* eluded by him. The guarantee itself did not state the consideration of forbearance for which it was given, but the terms had Coe ""^Duffie'ld been proposed previously in a letter, and had subse- quently been recognized ; it was holden that the gua- rantee and correspondence might be taken together. " To pay you, on T. L's account, 50 /. at the expira- " tion of the usual credit, in the event of any deficiency ^ ^'""f: ^^'^P ' . . '' . -^ 403, Atkinson " on his part so to do ;" this was held insufficient as v. Carter. a guarantee, for not disclosing the consideration on the face of it. '' I have no objection to guarantee,'* without any date, ^ Starkie, 371, or proof that the offer had been accepted, held insufficient. Want. But a note to guarantee the present account of H. M. 248 OF CONTRACTS AND LIABILITIES: [Ch. 2, due to "R. T. S. of L., and what she may contract from a Brol.& Bing. this day to the 30th of September next, held a sufficient 211, Russell V. ^ Moseley. guarantee. Any writing having respect to these requisites will constitute a guarantee; as a bond, an agreement, a bill of exchange, a promissory note. The stamp upon a guarantee, where the matter thereof is of the value of 20/. or upwards, is prescribed by 55 Geo. 3, c 1 84 ; but there is an exception of " memoran- 9 Geo. 4,c. 14, " dum, letter, or agreement, made for or relating to the " sale of any goods, wares or merchandizes," What a suffi- The signature must be by the party or his agent law- cient signing. f^^j, authorized. " T, James Crockford, agree to sell," 1 Espniasse, oi- iii m • • x-- 1 1 190, Knight V. etc. ; this was held a sumcient signature. JLven where the Crociiford. party did not intend his signature to a letter to be bind- cer/cTses/^ '' ing upoii him, but that letter, nevertheless, recognized 161.318, Taw- the terms of an agreement which had been entered ney v. Crow- . . -ii n^ • • • -i-i ther. into, it was considered a suincient signing within the statute. 3 Atl^ins, 503, " Where the substance of the statute has been com- b,y Lord HarJ- (c ^\[q^ with in a material part, the forms have never *' been insisted upon." So that sealing, with a sufficient attestation of the seal, seems to be a legitimate accom- Feli p. 83. plishment of the ends proposed by the statute, which was framed to reduce contracts to a certainty. And sign- Ibid, ing by a mark would appear to be a valid execution. 1 Vesey, sen. Signing as a witness, if the person so signing be privy Beezlw! ** ^^ ^^^ Contents of the instrument, will be binding. A general agency as clerk to a mercantile house, does not seem to confer the authority of signing guarantees Fell, p. 86. without more; but such a general authority may be given. And the agent need not be constituted by writ- ing ; even a very slight verbal authority will be deemed sufficient. It was proved that a boy of sixteen had signed for his father in three or four instances, and that the son had accepted bills, and Lord Ellenborough con- S. 1.] GUARANTEES. 249 sidered this prima facie evidence in the absence of any 2 Starkle, 368, ^ , -^ , . . -^ Watkins r. inducement on the son s part to commit a crime. Viuce. And we have already seen that the character of agent cannot be supported by one of the contract- ing parties ; as in the case of the auctioneer who minuted down the names of the parties, and after- Sclwyn, p. 851. wards attempted to maintain an action. As a general rule, it may be laid down, that a surety Exteat of sure- shall never be liable beyond the engagement he con- ■^ * '"* " ^ " tem plated at the time of his undertaking. And unless the offer of a surety be accepted, the mere expression of willino;ness to guarantee will not be sufficient. In a paper writing were these words : " Indeed I have no " objection to guarantee you against any loss from " giving them credit." This overture was not expressly accepted, though goods were furnished in consequence of it, and there was a judgment of nonsuit against the plaintiff who sued on the supposed* contract, for the defendant ought to have had notice that it was re- 1 Maule & Sel. .garded as a guarantee, and meant to be accepted, or jf-^'jig^^'n'^/* there should have been a subsequent consent on his Com^n, p. 208. part to convert it into a conclusive guarantee. In the great case of Lord Arlington v. Merricke, there was a bond which recited that the plaintiff had deputed a certain person to be his deputy post-master for six months, conditioned for the due execution of the office during the time that person should continue post-mas- ter, and he so continued for more than six months. On default made, and action brought, the Court restricted the burden of this undertaking to the time mentioned iSaumiers./fn, in the recital of the bond, six months ; and this case viTlerrLke. "" has been acted upon as a leading authority ever since. And so careful are the Courts of this principle, that suretyships shall not be unduly extended, that where no limitation appeared in the condition of a bond, and no specific time was pointed out, yet as the office for 250 2 New Rep. 175; Wardens of St. Saviour'SjSnuth- wark D.Bostock: 2 Bingham, 3-2. Leadley v. Evans. 8 Taunton, 2o8, Gljn V. Heriel. Fell, p. 114. 1 Rolie.Abridg- ment, 20. 2 Starkie, 41G, Simmons i'. Keating. OF CONTRACTS AND LIABILITIES : [Ch. 2, the performance of which the bond had been given, was annual, it was held that the security was satisfied at the end of the first year. A guarantee, unless specially worded, has a prospec- tive, not a retrospective operation. A lady living in Gloucestershire promised to be answerable to the amount of 5,000/. for a certain firm. On receiving the guarantee, the plaintiffs, bankers, cancelled an old note, and delivered up the bills which they held as securities for an existing debt ; on this the firm returned the bills with a new promissory note, but no money passed ; and the Court were of opinion that this transaction was merely an interchange of the securities in existence at the time, and that, however liable to the extent of her engagement, the defendant would not be pressed be- yond the plain and manifest intent of the instrument; judgment of nonsuit was therefore given against the plaintiffs. However, there are several cases in which a slight variance from the contract has been immaterial, the substance having been complied with. One proposed to sell goods to another, the money to be paid at a future day, provided a third person will guarantee ; the goods are then sold on these terms : part of the money to be paid down, and the residue at a future day ; held a good consideration to warrant an action against the surety. It is worthy of remark, that no additional risk was in this case imposed on the person guaranteeing, but rather the contrary. Goods were ordered on the 6th of December ; the guarantee was given on the 7th, arijd the goods were delivered on the 7th; it was objected that the contract had been prior to the guarantee, but as the sale of these goods was not complete until the delivery, and as the delivery was posterior to the guarantee, and S. 1.] GUARANTEES. 251' on the faith of it, Lord Chief Justice Abbott's opinion was in favour of the action. There was a guarantee and eighteen months credit ; by the invoice it appeared that twelve months credit only had been given, and this variance would have been con- sidered fatal, but that the plaintiff was allowed to i Starlie, 192, ' / . 11. Bacon V. Cues- prove the inaccuracy of the invoice, and to show that ne^^. eighteen months credit had in reality been given. So that the principle of restraining the surety's liabi- lity to the particular contract he has embraced, seems very clear. Moreover, the guarantee shall not be called upon, except there be a default upon the particular occasion against which he has chosen to indemnify. There was an undertaking to save the plaintiff harmless 2 Starkie, 406, o . 1 Bulkeley v. against any loss he might sustain from the defendant's Lord, son becoming bankru[)t; and, in fact, the person in question did commit an act of bankruptcy, but a com- mission never issued, on which the Chief Justice directed a nonsuit, thinking that the son had not become a bank- rupt, and the Court afterwards said, " It was possible " that the son might be unfortunate enough to commit " an act of bankruptcy, although he was perfectly " solvent; but it could not be the meaning of the " guarantee to make the father responsible in such case, id. 408. " no commission being sued out." The p-uarantor must be informed of any private terms 5 Dowling & 1 . , 1 llylaml 505, which the principals have agreed to, or m the absence Pidcock v. of that information, the contracts will be vitiated. Bishop. Another question has frequently arisen as to the con- tinuance of a guarantee ; and though, as we have seen above, the suretyship shall not be unduly extended, yet where the obvious meaning; of the instrument is that m,,"'^^'^' a credit shall continue until recalled, the guarantor will Pritchard. continue liable. Thus, a contract to guarantee " for any " goods he hath or may supply my brother W. P. with, " to the amount of lOoL," has been construed to extend 2^1 OF CONTRACTS ANn LIABILITIES : [Ch. 2, to goods furnished to the brother at any time till notice to put an end to it. The following is an example of a non-continuing guarantee. A bond was entered into by the Duke of Marlborough and another, conditioned for the payment of all such sum&, not exceeding 3,000/., which should at any time thereafter be advanced by the plaintiffs to that 2 Maule & Se). Other person : this security was held to be a guarantee to ])uke of^lari- ^^^ aiiiount of 3,000 /. Only; when an advance was made borough. to that extent, the guarantee hecQ,me fimchis officio, and was not a continuing guarantee. Again : " Memorandum, 23d September 1818 : I en- 3Biirn. & Aid. " gage to guarantee the payment of Mr. A.M. to the fhu'dcn!'"^'"^ "■ " extent of 60/. at quarterly account, bill two months, " for goods to be purchased by him of ," &c. This was held a continuing guarantee. Py Baylcy, J. " The words, * quarterly account,' do not seem to me a- 594- <( ^Q ^gj.y |.]^g gg^gg . ^}^gy Q^jjy jYicau, tliat at whatever '' time the goods might have been delivered, the ac- " count for them should be rendered quarterly." If a surety is desirous of releasing himself from the burthen of future incumbrances in a case of continuing guarantee, it is proper that he should expressly revoke his security, if he be able to do so. A father was bound for his son, an apprentice ; the son embezzled his minster's property, and the father having satisfied the claim, wrote a letter to request that his son might not in future to be trusted with cash. But this proceeding was not sufficient to discharge him ^HR sT'"'r^ d ^^^^'^ ^^^e consequences of future embezzlements ; he V. Bcecher. ought to have got the security delivered up, and so have made some end of the matter. Supposing that the creditor and debtor continue to have dealings together in other concerns than that in which the surety is bound, and the debtor make a gene- ral payment, the creditor has the power of applying the S-. 1.] GUARANTEES. 253 sums so received to the transactions independent of the Fell, p. m. suretyship, and so of holding the surety still liable. But where there is any ground for presuming that the payment is made on account of the debt secured by the guarantee, it is an inference which the Court will willingly draw in the surety's favour ; as where there j\iarrvam i? ' was a payment of the exact amount of goods previously "^Viiite. supplied under the guarantee, and a discount allowed. The buyer of cottons, having employed an agent abroad, informed a firm here that it w'ould be of advan- tao;e to him that his bills should be negotiated throusrh ? Dowimg & . . Roland, 637, their house, and requested them to honour his agent's Ogden v. Aspi- drafts. This guarantee was held not to be restricted to "^"* bills drawn for cottons only ; but, on the other hand, the firm could only recover of the guarantee on bills proved to have been received from the agent in the course of business from him, and under his representa- tion that they were drawn to meet shipments on his principal's account. . A guarantee is so far liable to be interrupted by the Subsequent introduction of a partner, as that it will not operate as a security for fresh advances uuder such circumstances. For example, one is bound under a condition that his principal shall account for all sums of money received for another's use by such principal ; the principal takes a partner with the knowledge of this person whose ?,9f"^f'^"^.?,' '■ ... liellairs v. bbs- money he holds ; the surety is not liable after this for worth, any sum received after the partnership. So a bond 4 Tauiuon 673, conditioned to secure advances made by five bankers ,0,^. 3 East,''* will not operate to protect sums lent by four of these 4^4, Strange v. after the decease of the fifth ; so soon as one of the 450,'simsoQ obligees dies, the security is so far at an end. '^- ^^°^^' But " a bond may be drawn for the obligor to be 11 1 11 n ^y Lawrence, ** answerable not only to the present but to all future j. 3Eust,49i. " partners in the house." As where one bound himself to the trnstees of the 254 12 East, 400, Metcalf V. Bruin. By Bay ley, J. Id. 408, Guarantees by persons in par- ticular capaci- ties. Fell, p. 120. 3 Campb. 478, Duncan v. Lowndes. 1 East, 48, SiiirrelFw.Wilks. Fell, p. 121. OF CONTRACTS AND LIABILITIES: [Ch. 2, Globe Insurance Company ; this term meant a fluctu- ating or successive body of persons who should from time to time be carrying on the business of insurance under the name of the Globe Insurance Company. " If this were not so, the single change of one out of '* 900 pev&ons would have put an end to the obliga- " tion, and the probability was that in a week or a " month after the execution of the bond, some one " person would drop off." As a general rule, a guarantee by one partner will bind the rest of the firm, provided it be connected with the partnership trade or business. But if there be any fraud in the case, or if there be an express dissent on the part of the other partners, the case will be different. And so where it is not customary for persons in partner- ship to enter into the particular guarantee sought to be enforced, some evidence should be given to show the consent of the partner who has not signed. A subsequent recognition ; a prior command ; proof of a previous course of dealing, in which such guarantees were given, and to which both partners have been privy, will suffice. Nor can two partners bind a third, who has come into the firm since the accruing of the debt for which secu- rity is given, unless that third person give his assent for that purpose. Great strictness is required, where the engagement of guarantee is entered into by the deed of one partner for the firm, to prove that the rest have agreed to be so bound. Generally, the executor of a person who has become surety is liable, and the surety, on the other hand, is responsible to the representative of the obligee or indi- vidual guaranteed. On the same principle as we have observed in cases of partnership, the debt must hav- accrued in the lifetime of the testator. There was ». 1.] GUARANTEES. 255 a bond conditioned for the faithful services of a clerk, it was given to the obligee and his executors, and the testator died ; the executors carried on his trade, and then the clerk made default, but the Court held that the ' J<^™ ^'^P- . , , 1 . 287, Barker u. surety was not then liable ; they said, that the indeni- Parker. nity was given that the clerk should pay the money received on the testator's account to him, or to his executors, because money might be in h's hands at the time of the testator's death, for which he could only account to the executors. The rights of assignees upon the subject of guarantee ^y^ll fall so necessaiily under the head of bankruptcy, that the consideration of the bankrupt's liabilities, the proving a guarantee under a commission against the surety, with many other particulars connected with that subject, will be postponed until a subsequent chapter. One cause which will infallibly operate to discharge Guarantee how a guarantee is the giving time for payment of a debt J^,^ ^"^^ ' • 1 , , . . "^ . . Fell on Gua- .without the surety s consent. This is a rule so inflexible, rantees, p. 160 ; and settled by so many authorities, that it is only ne- ^^°^"J" " ^f """ cessary to refer to the books where they are collected. The same principle is applied to bills of exchange, where the acceptor is considered the principal debtor, and the other parties as sureties only ; the holder, there- fore, who is the creditor, ought not so to negotiate with the acceptor, as to prejudice the remaining parties to the bill. If a creditor give time to the debtor, the „ 11 1 • • 11 111-1, SBosaiiquetSc collateral securities are discharged, both in law and Puller, 366, by equity. Chambre.J. There was a guarantee for any goods, which might be supplied during a year, mentioning the day ; the goods were supplied, but the creditor permitted the principal to renew his bills without acquainting the surety, and the Lord Chancellor held this to be a discharge of the guarantee, although it appeared that the debtor could 2^0 OP CONTRACTS AND LIABILITIES: [Cll. 2, 3l\ierivale,272, j^ot pay, and the prolonging of the credit might thus Howarth. Seem to DO lor the surety s beneht. 1 he surety is the fittest judge of that, and he alone has a right to deter- mine whether any arrangement is for or against his benefit. An exception to this rule is the surety in a replevin bond. Thus, by Gibbs, Chief Justice : " The principle " was first adopted in the court of Chancery, that if " a creditor gives time of payment to his principal 6,Tauuton, 38-2. «: debtor, without giving notice to the surety, the surety " no longer remains liable to the debt." The Judge then instanced the case of bail, and proceeded . " But ^ ,^ " what is the present case ? sureties in replevin cannot In JVioore v, . Bowmakcr. " at any time take the goods of the plaintiff and restore " them to the avowant." Fell^ p. 173. So it seems that a creditor may enter into a composi- tion with a co-surety, and he does not thereby discharge the principal or the other sureties. Another event fatal to the continuance of a guarantee IS a neglect to comply with the terms of the instmment. There was an agreement on the defendant's part to be answerable to a certain amount for ani/ tallow or soap ; and the principals paid a sum of money for goods sup- plied, but became subsequently embarrassed in their circumstances, on which a new arrangement was entered into, and the defendant contended that after the first payment the guarantee had been exhausted. But both sides urged too much : Lord Ellenborough being of opinion, that the word ani/ made the agreement a sub- sisting guarantee as long as the old credit remained, BasrT^* B'en- f^ough, at the same time, the goods supplied under the iieti. new arrangement, could not, his Lordship said, be within the scope of the guarantee. Mr. Comyn says, " If a promise is made to guarantee " a bill of exchange for a certain sum, but the creditor " takes from the debtor a bill for a much larger amount^ S. 1.] GUARANTEES. 25/ " it seems doubtful whether this does not wholly dis- Citing 2 Taun " charge the surety." Another g-round of dischar<j;e accrues if the creditor part with any lien, or give up any legal mode of reim- bursing himself. " It cannot be contended, upon any By the Master " principle that prevails with regard to principal and ^JyH^ "•*,', " surety, that where the principal has left a sufficient 629. " fund in the hands of the obligee, and he thinks fit, " instead of retaining it in his hands, to pay it back to " the principal, the surety can ever be called upon." Again, the concealment of circumstances which ought to have been made known to the guarantor will vitiate the secuiity : though the privity of the surety to such circumstances has been considered equivalent to assent. As where one was bound for another's honesty, but the party in question committed acts of embezzlement, and no notice was given to the surety of the unfaithfulness of his principal, it was held, that as there was no indus- trious attempt at concealment, and as the guarantor was considered by the jury to have been cognizant of the transaction, the responsibility still attached, although i Bosanquet Sc the creditor had debited his debtor with the amount peeu.' Tadocli embezzled- Laches, by neglect to give the surety notice of his principal's default, will operate in some instances to destroy the guarantee. A bond having been given for a servant's fidelity, there was a covenant on the part of ,. , . .2 \ ernoii, 518, the obligees that they would see the apprentice make Mouutague ». up his cash monthly. This, however, they failed to do, a ch^uy Cases and the court of Chancery restrained them from re- terajjore Mans- covering more than they could prove the apprentice had iips v. Ford yce. embezzled during the first month. But it is observable that there was a special covenant in that case, which no doubt weighed very strongly in favour of the surety. For where obligees, in a bond conditioned for the due collection of tolls, neglected to look into their accounts '2qH of contracts and liabilities: [Ch. 2, for eight or nine years, and thus failed to call on the Trent Naviga- principal for arrears so soon as they otherwise would, tion Company t). the Court Said, that there was no estoppel at law, and the plaintiffs (r) recovered. And so it was where 14 East ^10 ^ property-tax collector made default, but no notice Nares y.Kowies. was given to the surety, nor payment demanded till after the principal's dismissal. However, it is proper in general to acquaint the surety with the failure of his principal's contract. So that, where goods were to be paid for by the giving of a bill, but, upon the nonpayment of it, the creditor failed to use due diligence in demanding his money of the drawer and guarantor, the Court held the latter discharged, observing, that if the necessary steps are rhi?his*t"'A^u ^^°^ taken to obtain payment from the parties liable on li»g« the bill being at the same time solvent, the guarantor must be discharged. 1 Barnewall & But whcrc the insolvency occurred before the bill be- Hoibmwr Wil ^^^^^ ^"^' ''^''^^ ^^ would not have been paid if presented, kins. the guarantor was held liable, and the case of Philips v. Astling was distinguished. The silence of a creditor who is applied to for the purpose of giving up an indemnity, will not imply such an assent to the proposal as to discharge a guarantee. A person wishing to have goods, obtained the usual guarantee, but the surety required and procured an in- demnity ; subsequently to this, the person who had indemnified became desirous of recalling his pledge, and a letter was written by the surety to the owner of the goods to that effect. No answer having been re- ceived for a considerable time, the surety concluded that (;■) Lord Ellenborough added, " Whatever remedy there may be in equity." And Mr. Fell seems to think that relief might have been had in equity against such a de- mand. S. 1.] GUARANTEES. 259 the goods had not been suppHed, and gave up the indemnity : but he was held hable upon his undertaking^ notwithstanding the want of an answer to his letter; the right could not be divested even by a wilful neglect of the creditor, which did not exist in the case before the 3fone'"^g,^ Qx* Court, the merchant having gone abroad on his neces- ley i. Young. sary business (s). If the party guaranteeing become a bankrupt, and if he be discharged from his liability upon a bill to which he has made himself a party by way of security, he is p^uomie'-^tf^' also released from the payment of costs incurred in an Wilson. action against the principal. We have seen, that at law, unless there be a special covenant, the inattention of a creditor to enforce a de- mand will not discharge the security; that person is, u ^g however, not without his remedy. For it seems that where the autho- by applying to a court of equity he may compel a ere- ,"bjec7,na/b'e ditor to proceed against the principal. found. " As to the case of principal and surety ; in general ** cases, I never understood that, as between the obligee " and the surety, there was an obligation of active " diligence against the principal. If the obligee begins " to sue the principal, and afterwards gives him time, *' there the surety has the benefit of it. But the surety " is a guarantee ; and it is his business to see whether " the principal pays, and not that of a creditor. The " holder of the security, therefore, in general cases, " may lay hold of the surety ; and, till very lately, even " in circumstances where the surety would not have had ** the same benefit that the creditor would. But in " late cases, provided there was no risk, delay or ex- " pense, the surety has a right to call upon the creditor (5) However, upon wilful neglect, perhaps an action on the case might have been had against the merchant. See 2 Henry Blackstone, 61G, by Eyre, chief justice. s 2 '260 OF CONTRACTS AND LIABILITIES: [Ch. 2, " to do the most he can for his benefit; and the latter ** cases have gone farther. It is now clear that if the " surety deposits the money, and agrees that the cre- -34,Xy^'Lord " ^'tor shall be at no expense, he may compel the Eidon. «« creditor to prove under a commission of bankruptcy, " and give the benefit of an assignment in that way." By 6 Geo. 4, c. 16, s. 52 (the new bankrupt act), a surety, being such at the issuing of the commission, Avho has paid the debt, or any part, although the poi/meut may have been made after the commission, may prove his demand in respect of such payment. If the creditor has proved, the security is entitled to stand in his place, pro- vided that he have not had notice of the bankruptcy when he entered into his undertaking to be so answerable {t). Next, as to the remedies which sureties possess against their principals. It is clear, that the guarantor who pays the debtor, may maintain an action against the original debtor for money so paid to his use. And so a surety may sue on a bill which he has taken up. But where one of several makers of a joint and several promissory note, gave his bond as a security on the note falling due, and com- menced an action against the other parties for contri- bution, no money having been paid on the bond before 2 Barncwall & actiou brouglit, the Court held, that the plaintiff could AiderMJii,5i, j^q(. recover for money paid, there not having- been any Maxwell u. , 1 • 1 I 1 , • • 7 Jameson. actual payment, and, ni order to have made tins d^virhiat payment, the defendant must have been shown to have agreed to the transaction. 6Banicwa!i& But it is a general principle, that co-sureties shall con- Erowne x'. Lee.' tribute. Supposing some of these persons to be insolvent, you cannot at hnv sue the solvent sureties for more than Puller! '269 /by ^^^ aliquot part for which they were originally liable, but Lord Eidoii. a larger proportion may be recovered in a court of equity (<) See 1 Bingham, 413, Watkins v. Flanagan. \ S. 1.] GUARANTEES. 26l by the person who satisfies the debt. In effect, the rule in equity is, to allow contribution against the solvent guarantors in a fair proportion, after striking out those Fell, p. 21a. who are insolvent. It has been decided, that the obli- gation to pay a debt being entered into under separate instruments, does not in any away prevent the demand Id. 215. for contribvition. But where a second bond was i^^-iven as an additional security, to be void if the debtor or his first surety discharged the sum due, the Lord Chan- cellor was of opinion, that the former surety, who paid the debt, could not ask. contribution at the hands of the second obligor, considerinp- that no co-suretyship existed, ^i ^^^''y- J""- as the one party was only liable in case the others failed v. Swiubume. to pay. And this is different from a case where one co-surety gave a further security without the knowledge of the rest, and which he satisfied : here, as all were equally ^^^°"^^'.?' ' U J Dunn V, bice. liable, contribution was allowed. If property be disposed of in an open fair or market. Sale of goods in 1 11.1 1 11 Fairs and Mar- however irregularly the vendor may have become pos- ket?. sessed of it, a bond fide purchaser shall not be deprived Comyn on Con- p 1 1 /^ f> 1 • 1 • A T r^ tracts, p. 166. 01 the benefit 01 his bargain. According to the custom of Cruke, James, London, every day, except Sunday, is market-day, and jf^j^^i^vf "e '^^ the time is betwixt sun-rising and sun-setting, but the sale Croke, Jamei, must be of such goods as the owner professes to deal in. cii'anrbers, ^* A sale of goods in a shop in the Strand, or elsewhere 12 Modem, 50 1, out of London, does not alter the property, nor even in -^"o^y^ous. London, if the felon be convicted upon the owner's c j. ^ " '' evidence. The same privilege may exist by custom in other great Comvn, p. 167. cities, as Bristol. " Even out of London great allow- Ca^-s tempore " ances should be made, analogous to the custom there in Hardwicke.sfio, i<i 1 .1 - ,• 1 1 ^ • ., ^y Lord Hard- cases where the transaction has been fair. wicke. A person who has lost his goods may take them wherever he can find them, and his property in them is not divested if they have been sold out of market overt. 93 «26a or CONTRACTS AND LIABILITIES: [Ch. 2, So that where some lead was sent to a wharf in Lon- don, and the wharfinger disposed of it without any au- thority from the former owner, dibondjide purchaser was not suffered to retain it in an action of trover brought by 2 Campb. 335, the owner, for " a wharf could not be considered, even King, by Lord " in London, as a market overt for the articles brought Ellenborough. t( th.QrQ " And again, upon a fair and reasonable principle, if See Comyn, the vciidee k/ioio that the seller has no right to the goods P '■ he is dealing with, the property is not altered though the bargain take place in a public market. By 1 James i, c. 21, the sale of goods to any pawn- broker in London, or within two miles, without lawful au- thority for so doing, shall not alter the property; for the Comyn, ibid. broker carries on a clandestine trade, and he is therefore an exception to the general rule. It is not necessary, in order to maintain trover against the pawnbroker, that the owners of goods should tender the duplicates, for they claim by a title paramount to Starkie 72 *^^^^ °^ *^® pawnor ; such tender is requisite where the Tcet V. Baxter, plaintiffs claim in priviti/ with the person who pledges. A sale in market overt will not bind the King. Sale of Goods hy Public Auction. The inclination of the Courts at the present time is, that a sale by auction should be conducted in the most open and public manner possible; that there should be no reserve on the part of the seller, and no collusion on 3 Bingham, 368, the part of the purchasers. Puffing is therefore illegal, Crowderi). A us- according to a late case, even though there be only one Moody & Mai- puffcr ; and it was decided there, that the recognized kin, 126, by practice of auctions to employ such persons to bid upon LordTenterdeii. \ , p, i, . 1 . • j the sale of liorses, could not be sustamed. A firmly established principle upon this subject is, that the party who bids may retract at any time before the hammer is down. An auctioneer dwelt on a bid- S. 1.] BY AUCTION. 263 ding; the defendant said, " Why do you dwell? you will " not get more." The auctioneer said, that the goods he had to sell weighed so much; the defendant asked whether the weight would be warranted, and upon re- j^f^ ]? ceiving an answer in the negative, retracted his bidding, 148, Payne v. and the Court held that he had clearly a right do so, and 76,^jo„es v!*^^' that a bidding is nothing more than an offer on one Nunney. side, which is not binding on either side till it is as- sented to. And honesty on the vendee's part is essentially requi- site at an auction. On the sale of a barge, the plaintiff, a bidder, said he had a claim against the late owner of it, by whom he had been ill used, and this declaration prevented a competition. The seller, who had taken this barge in execution, indemnified the auctioneer, and 3 Broderip & he refused to take the plaintiff's bidding, and on an action Fdier r"'\br». being brought, the Court said that such a sale could not hams. be supported. Another rule respecting auctions is, that verbal de- clarations by an auctioneer cannot be suffered to con- trol the printed conditions of sale. Premises were stated in the conditions to be free from all incumbrances ; it turned out that there was a charge of 17/. per annum, and the purchaser refused to complete his contract. An action on the case being brought against him, the plaintiffs proposed to show that the auctioneer had publicly represented the incumbrance complained of from his pulpit; but this endeavour was frustrated, it being the opinion of the Court that to ^ ^^*^'""-v ^'»cii- admit such evidence would be to open a door to fraud and nis r.Erhart. inconvenience. The printed particulars of a sale pasted up in the public sale-room under the box of the auc- a^spinasse, tioneer, are considered sufficient legal notice to pur- Aidrid^'e!"'^' chasers. Certain acts of parliament have afforded relief to persons becoming liable to auction duties without any resulting benefit. As for example, where it turns out 34 264 OF CONTRACTS AND LIABILITIES: [Ch. 2, that a party has no title to an estate which he has sold by auction, commissioners of excise or justices of peace are directed to reheve the purchaser from the payment of auction duty. Rehef, again, is afforded where the owner buys in his property, provided notice be given to the auctioneer of his appointment for that purpose before the sale, and that such notice be verified on oath of the auctioneer, as well as the fairness of the trans- action to the best of his knowledge and belief. Of Credit upon the Sale and Delivery of Goods. Great care should be taken in giving time for the pay- ment of goods, as well as in extending the time of credit. For if there be an agreement to give credit for a cer- tain time, a bill being taken as a security, an action can- See 1 Espiiiassc, not legally be commenced for the original debt, until 3, stedmaii v. ^|^g instrument become payable and default be made, (jooch ; Coniyn, ... J). 181. though it be previously dishonoured, or the vendee be insolvent. But if such bill be of no value, as if it be drawn on a person who has no effects of the drawer's 1 Espinasse, 6. in his hands, the creditor may consider it as waste paper, and resort immediately to his old demand. It makes no difference that the vendee may have dishonoured several acceptances between the sale of goods and the drawing of a bill to be given as payment; it is the duty of the vendor to draw the bill, and to tender it for acceptance to the vendee. This was held under the fol- lowing agreement: " Agreed on, &c. with P. E. M. for t'oniyn, 181, '< jQQ ^Qfjg Qf cordao;e at i\Ql. per ton ; the date to com- ■Reed t; Mes- ^ , » , , • , , 1 n . . 1 taer. " mence irom tliat day, and to be paid by bill at twelve " months from, &c. with interest added." It is observable, that a neglect to furnish a security pursuant to agreement will not recal the credit, though it may warrant a special action against the party who breaks his engagement. The purchaser was to pay for cotton in three months S. 1.] CREDIT. Il6§ after a given day, by a bill of two months ; he neglected to draw this bill, and the seller, imagining by this want of faith that the credit had expired, brought his action> but the Court decided, that there was an absolute out- 4 East, 147, standing credit here for five months, and that, however Musseut;. Pnce. there might be a remedy in damages for the breach of contract, the action could not be maintained before the end of that term. In a subsequent case, the contract was for three months credit, and then, if the vendee wished for time, a further credit for three months, to be secured by a bill of exchange. The case of Mussen v. Price was cited to show that here was a six months credit, but Lord 2 Surkie, 227, Ellenborough held that the action was not brought pre- son. * maturely ; true it was, that a further credit was mentioned, but " as the price of that indulgence" there was to be a bill at three months. Where the contract was for two months credit, to be 1 Ncw liep. paid for by a bill at twelve months, an action was held 33o. Brooke v. , clearly maintainable at the end of the fourteen months. There was a sale of goods at six or nine months credit j ^ jaunton <n8 the purchaser, by not paying at the end of the sixth month. Price v. Nixon, was considered to have elected to pay at the end of the further term, and it was not necessary for him to do any act to show his option upon that subject. If there be no express contract for time for the pay- ment of goods, and a bill be taken payable at a future day, which is dishonoured, the drawer may, it seems, be ^^^^ sued immediately, for it is obvious that here no credit Comyn, i8x. is absolutely given. If a person once give credit to a particular person, he is bound to consider that person as his debtor, and he may not shift his claim to another. It is for the jury to * C^mngton, say to whom the credit was, in point of fact, extended. Read. Though where the verdict is " grossly wrong," the Court will order a second trial; as where the plaintiff sought to charge a husband for his wife's extravagant 266 5 Taunton, 356, Bentley v. Grif- fin. Payment. a Maule & Sel- wyn, 510, Corn- forth V, Rivett. Id. 511 ; 1 East, 375, Eland V. Karr ; see 7 Taunton, 243, Coppin V. Craig. 1 Binghani,3ii, Meyer t). Nias. OF CONTRACTS AND LIABILITIES I [Ch. 2, dress, there being abundant cause to believe that the credit had been given solely to the wife, and the Judge, moreover, was dissatisfied with the verdict; here the general liability of the husband was repelled by the cir- cumstances which were disclosed. An agreement for the purchase of goods implies that the vendee shall pay for them upon delivery ; but if they should be delivered without payment, and the vendee have a claim upon the seller to an amount equal with the price of the goods, the vendee may set off this debt against the seller's demand. This may be done although a ready money payment has been agreed for. Thus the plaintiff proved the sale and delivery of his goods, and a demand upon the defendant the next day after for his money ; the plaintiff said he was to have ready money; the defendant did not deny that, but having the plaintiff's acceptance for a sum of money, proposed to pay the balance. On action brought, the Court held the defendant justified in resisting the full demand, and Lord Ellenborough said further, " By suf- " fering the defendant to have them [the goods] without " payment, he has receded from his agreement : he " should, consistently with his own stipulation, have " detained the goods. If he once part with them on " credit, he lets in a set-off." There was an agreement that certain goods should be paid for in ready money ; the purchaser received them, and tendered a dishonoured bill of the vendor's brother in payment: this, although rejected at first, was at length taken away, and never brought back; the vendor then became a bankrupt, and his assignees claimed the goods, but the delivery of that bill was considered, in the absence of fraud, as equivalent to payment. Some act must be done to pass the money, the merely giving of credit is not sufficient. The defendants bankers received orders to credit the plaintiffs with a sum,** so as " to make the same as a bill of one month ;" this was S. 1 .] PAYMENT. 267 done, but the matter was treated by the bankers as a payment to be made on a future day, and they gave the a Chitty Rep. plaintiffs notice that on the particular day thev should 619, Peddert;. ^ . . *■ . . Watt ; tempore receive credit for the money in question ; before that Lord Mansfield, day, however, the bankers stopped payment, and the defendants contended that the demand had been satisfied by this notice of the bankers, but the Court were of opinion that the money had not been paid. But where there was an agreement between two mer- chants for the sale and purchase of a quantity of maho- gany, which was to be paid for by a bill at three months, and the vendee gave a check on his bankers requiring them to pay the vendor on demand in a bill at three months, which the vendor paid in, but took no bill, after which the bankers failed before the check became due, it was holden, that the vendor could not maintain an action for the price of these goods ; for, in point of fact, instead of waiting the three months, the plaintiff was to be paid immediately by a transfer of so much money in 6 Term Rep. the hands of the bankers from the defendant's to the '39' Bolton v. . . . Kichard. plamtiff's account, deducting the interest thereout for that time. So where the plaintiff, in October, desired the defen- dant to pay a sum of money into his bankers, which the defendant owed him ; the defendant did not pay it until December, owing to a mistake. On the day after, and before the plaintiff" could receive notice of the trans- t ^f'"^''''''".'.' '^' fer, the bankers failed ; it was held, that this was a payment by the defendant. The principle is, that an unproductive bill, as a bill on Moody & Mal- an insolvent person, will not cancel the demand, even if t.^Brires!^^'" approved. The renewal of a bill drawn upon an agent is not an acknowledgment by the creditor of payment by the principal, where it appears that the agent had not funds when the bill was payable; for it was rather in favour of 3 Campb. 411, the vendee to permit a renewal, as he was not in cash ^^^^'' ** ^'"''' S68 See a Canij.b. 5 1 6, by Lord Ellcuboi-oiijih. 2 Campb. 515, Everett v, d'l- lins. 7 Bariiewall & Cresswcll, 19, Smith V. Fer- rand. Loss of money, OF CONTRACTS AND LI ABILITIES : [Ch. 2, to pay the bill when it became due. But, as in the case of the master of a vessel quoted in a former chapter, if a party think proper to prefer the acceptance of a third person to a ready money payment, it is at his own hazard. The security, however, it must be noticed, is that of third persons, and not the debtor's own payment. A salesman in Smithfield market sold some cattle for the plaintiff, and the account was made out by the sales- man's book-keepers, who were agents for him and a number of other salesmen. These persons proposed to pay in money the balance due, but the plaintiff's son saying that a cheque would suit him better, he received one for the amount, which was dishonoured, and on the same day the agents stopped payment. Lord Ellen- borough said, on action brought against the salesman, that the agents were not to be considered in the light of third persons, but as the defendant's servants; that the cheque was to be looked upon as the defendant's, and that there was no pretence for saying that a debtor is discharged by giving a cheque which produces nothnig, although payment in cash might have been previously tendered. But where the purchaser gave the seller of goods an order upon his banker for the money, and the banker gave the seller his choice to take cash or a bill upon a third person, which latter security was accepted, it was held, the bill being dishonoured, that the purchaser could not be sued for the price of the goods. It makes no difference, that the agent fails with a larger sum in his hands than may be sufficient to meet the debt due under these circumstances. Supposing that a security be lost, it becomes necessary for the person who held it to indemnify his debtor before he can renew a claim upon him. An individual who had sold stock, lost, on her way home from the Exchange, a cheque given her for the amount ; the defendant was S. 1.] PAYMENT. 269 apprized directly of the circumstance, but he refused, until indemnified, to pay for the stock; his bankers having failed, an action was brought against him, but Lord ^^''"^'P^- S.^i. . . „ . . BcTaii V. I nil, Ellenborough directed a nonsuit, being ot opinion that an indemnity should have been given. And at law the I'l-;2ii,Pierson •' ^ V. Hutciunson. indorsee of a lo.3t bill of exchange can have no remedy against the acceptor by action, until he can show that the instrument has been destroyed It has been decided, that if the creditor require a re- Peake, ey.War- mittance by the post, he must sustain any loss which ^^"-^^- "='^"' may happen. But under such a direction the letter must be sent by a legitimate mode of conveyance to secure the debtor against the loss; and so, where bills of exchange were delivered enclosed in a letter to a bellman in the street. Lord Kenyon said, the defendants had not used due caution ; they ought to have delivered the letter at the general post-office, or to one of the houses authorized by in- -1 ■ ^ 11 . I'l 186, Haw- that office to receive letters with money ; and the remit- kius v. Rutt. tance being held invalid, the plaintiffs had a verdict. A contract being entire, all the goods bargained for "must be dehvered or the sale cannot be enforced; but this principle is applicable to a general contract: where so many pounds or parcels of goods are sold at so much for each parcel, it seems that an action may be main- g^^ ^^^^ tained for as much as the seller delivers, before the final p. 185. delivery of the whole. There having been an agreement between two traders that each should supply the other with goods, upon a settlement of the mutual accounts, a balance of 25/. appeared in the plaintiff's favour, and the defendant insisted on paying him in goods, which was resisted ; and by Lord Ellenborough : " The amount of the balance ' ?tarkie, 185, « J • iU • ii 111 1 Iiij;!?!" V- Shir- was due m money, otherwise there could be no end |cy. " to the dealings." Notwithstanding the entirety of a contract, it has been determined, that where a bargain is entered into by two persons, and one goes from his agreement, the other is 270 1 Starkie, 437, Fors^tli 0. Jervis. a Baniewall & Alderson, 329, n. Bisliop V. Shillito. 3 Starkie, 3a, Germaine v. Burton. OF CONTRACTS AND LIABILITIES: [Ch 2, not de1)arred from enforcing it on his part. Thus, the maker of a gun agreed with the purchaser for forty-five guineas as the price to be paid for it, but at the same time he promised to take a gun of Manton's in part payment, which was valued at thirty guineas. The pur- chaser refused to perform his agreement, and would not part finally with the Manton gun ; upon which the gun- maker sued him for the full price of forty-five guineas, and recovered. Lord Ellenborough being of opinion, that upon the refusal of a purchaser to pay for goods by the delivery of other goods of a stipulated value, a contract resulted to pay for them in money. Again, the agree- ment was that, upon the delivery of some iron, certain bills outstanding against the plaintiff should be taken out of circulation; part of the iron was delivered inconse- quence of this arrangement, but the plaintiff finding that no bills had been withdrawn, brought trover for the iron which had been delivered, and the Court held the de- livery conditional, whereupon, the condition being broken, it was open to the seller to sue in the form he had adopted. The jury found, in the case cited, tJiat the delivery of the goods and the re-delivery of the bills were to be contemporaneous. if goods have been agreed for by sample, and those which are delivered are of an inferior quality to the sample, the course is, not to permit a plaintiff to recover for the full price, and so leave the other party to his cross action, but to allow the defendant to give the matter in evi- dence in diminution of damages ; of course, if any injury has been sustained by the breach of contract, a further remedy is open to the party who has agreed for the goods. But if, notwithstanding this failure to supply articles according to sample, money be paid into Court on an action of indebitatus assumpsit («), and the goods be not (u) Otherwise, if the money be paid on the count stating tlie special contract. S. 1.] PAYMENT. 271 returned, the contract is admitted, and the defects can- 2 Starkie, 103, not be submitted to the consideration of the jury. eloper. ' And where the defendant, the vendee, neglects at the trial to show any thing in reduction of the damages, or to offer any reasonable defence to the action, it seems that he will not be permitted afterwards to bring an action for a breach of warranty ; for there having been once an opportunity of doing justice between the parties, S^e 1 Campb. " Why," said Lord Ellenborough, " should there now be Samuda. " a second litigation ?" And where a bill of exchange was given in payment for some hams, which turned out to be bad and un- marketable, the acceptor, the buyer, was compelled to pay the whole amount of the bill, though he had paid into court the sum for which the hams actually sold ; for there is a distinction between cases where a consi- deration of a bill fails entirely, and where partially; here 1 Campb. 40, n. there was a partial failure, and the defendant must seek Rjchtrdion. his cross remedy. The indorsee of a bill of exchange sued the acceptor; the consideration was a pipe of" best "" London particular Maderia;" the defence was, that the wine was of very inferior quality; but Lord Ellen- borough : " To sustain this defence, it must be shown " that there was a fraud in the first instance, in shipping " a commodity of a different and inferior quality to that *' ordered." — " This defence is not sufficient if the com- *' modity shipped only be of rather an inferior quality sii'upson. " to that ordered." Indeed, fraud vitiates every instrument and every contract, and therefore payment may safely be resisted on that ground. With respect to the common agreement, that an article shall be taken with all its faults or de- fects, the rule is, that if the seller do not know of any such blemish, a contract for sale is good ; that if he do know it, the contract is still good, if he use no means to conceal the fault ; but that if he resort to artifice, and a7"2 OF CONTRACTS AND LIAUILITIES: [Ch. 2, SO prevent the buyer from making the investigation he would otherwise have instituted, or use any endea- vour successfully to divert the buyer from discovering a defect, there the contract is avoided on account of fraud (w). Statute of Limitations (x). It seems a convenient place here to introduce a few remarks and authorities on the subject of the statute of limitations. Of late the court of Common Pleas has adhered rather strictly to the words of the statute. It declares^ that all actions upon the case (other than slander) shall 21 James 1, \)q commenced and sued within six years next after the cause of such actions, and not after. To enter into a review of all the decisions on the subject would be a long, and in this place an irrelevant task, especially as in the Common Pleas there has been a re- cent determination of very considerable importance. The defendant, on beihg arrested, made this answer : " I know " that I owe the money ; but the bill I gave is on a " threepenny receipt stamp, and I will never pay il." This was holden not to be a sufficient acknowledgment of the debt to take it out of the statute of limitations. „^. , „ "It has been supposed," said Chief Justice Best, 3 Bingham, 329, t^f » A'Court V. " that the legislature only meant to protect persons haioTi'os, Ay? " who had paid their debts, but from length of time toil V. Bolt. « had lost or destroyed the proof of payment. From (tu) If a creditor give an order for the payment of his debt to a third person, he cannot revoke that order, provided the person so authorised agree to pay the debt. 3 Barnewall & Creeswell, 842, Hodgson v. Anderson. (x) Since this was sent to press, an Act has passed which directs, that no promise shall be sufficient to recover a debt unless such promise be in writing. See Addenda to this chapter. S. 1.] STATUTE OF LIMITATIONS. 273 /' the title of the Act to the last section, every word of it " shows that it was not passed on this narrow ground. " It is, as I have heard it often called by great judges, '' an Act of Peace. I think, if I were now sitting in the " Exchequer Chamber, I should say, that an acknow- " ledgment of a debt, however distinct and unqualified, " would not take from the party who makes it the pro- 4 Bingham, 332, " tection of the Statute of Limitations." In the same court, a promise was proved in these terms : the defendant said, it was not in his power to pay, but as soon as it was, he would. Two judges held, Best,c. J. and that upon this, it lay on the plaintiff to prove the defend- ^^^^'^^' J- ant's ability to pay; the two others considered such proof unnecessary. " The defendant only says, in effect. By Burrough, J. " ' I owe the money, but cannot pay.'" And Mr. Justice Park thought, that as the statute had not run out when the promise was given, the defendant had no right to 3 Bingham, 638, 1 -i -iU !•.• Scales II. Jacob. clog it With a condition. However, the same point arose almost immediately afterwards in the Court of King's Bench. The promise -was, " I cannot pay the debt at present, but I will pay " it as soon as 1 can." No proof of the defendant's ability to pay was offered, and after a verdict for the plaintiff, the Court made the rule absolute for a new trial. Cressweii, 603, In this case Lord Tenterden recognized and approved of Tanner i;. Smart. the principle of acknowledgment which Lord Ellen- borough had mentioned in a prior decision, that " in " assumpsit an acknowledgment of the debt is evidence " of a fresh promise," (y) and he observed upon the distinction between a promise to pay when requested, as stated in the declaration, and one to pay as soon as the party should be of sufficient ability. " Had it been " in tei'ms,^' said the learned Chief Justice, '* what it " is in substance, ' Prove that I am able to pay, and " * then I will pay,' it would have been what the pro- (j/) 1 Barncwall c^v: Aklorson, 93. 274 OF CONTRACTS AND LIABILITIES: [Cll. 2, 6 Barne\vall & " i^i^e was taken to be in TIei/Un v. Hastings, a condi- Cresswell, 609. " tional promise ; and when the proof of ability should " have been given, and not before, an absolute one." The case of A' Court v. Cross was then put on this ground, that where a defendant distinctly and expressly Id. 610. declares that he will not pay, a promise cannot be raised by implication that he may. But in the case of Dowthrqfiite v. Tihhut, where the defendant said " he would not pay ; there were none " paid, and he did not mean to pay unless obliged ; you 5Mauie&Sel- (c ^.-^^ „q j^j^^j trv :" it was held, that the acknow- •wyn, 75. J !s J y ledgment was sufficient, though Best, C.J. has remarked 3 Bingham, 651. upon that decision a& one in which the principle of acknowledgment was carried to a degree of absurdity. This decision must, however, be allowed to be somewhat shaken by A' Court v. Cross, and the opinion of Lord Tenterden and the Court of King's Bench, in Tanner V. Smart. And upon the whole, the principle to be collected from these new decisions is, that if a debtor denies his obli- gation altogether, although he afterwards qualify his words, he shall not be liable. And, again, if the debtor make a promise upon condition, that condition must be fulfilled to make the promise available. So that it See Addenda to seems a promise to take a case out of the statute must Chap. 2. now be made affirmatively, and not in the negative, (z) There is another class of decisions which deserves the attention of the commercial reader. Several persons drew a joint and several promissory note ; one of these paid interest on the note, and part of the principal within six years before the commencement of the action against Doupias, 652, t]^g defendant, who was one of the drawers ; and the Whitcomb v. i 1 i i i i 1 ^ Whiting. Court held, that the payment by one took the case out Tj- 1 -, « of the statute a2:ainst the rest. Two persons drew 1 Bingham, 300, a A Perham i;. Ray- a promissory note ; one of these became a bankrupt, nal. ___—_—_ (~) But see now the new Act of Parliament. S. 1.] STATUTE OF LIMITATIONS. 2/5 and the payee received several dividends under the com- a H. Black- mission. This payment of dividends, the last of which j^^^'J^/q^'^J'' had occurred within six years before the action, was held Fairbank. to avoid the statute as against the other maker. In a subsequent case, where two parties drew a bill of exchange, and, upon the bankruptcy of one, the indorsees, when proving a debt which exceeded the amount of the bill, exhibited as a security, and received a dividend generally upon the amount of the note, the Court held, in an action against the other maker, who was absent, that he might avail himself of the statute, i Bamewall & since the security was here exhibited merely in com- Aiderson, 463, •' _ ■' Brandram v, pliance with the law, and not in any way as an acknow- Wharton. ledgment. And Lord EUenborough, remarking on the hardship of Whitcomb v. Whiting, said, " Suppose a person ** liable, with thirty or forty others, to a debt, he may " have actually paid it — may have had in his possession ** the document by which that payment was proved, but ** may have lost his receipt ; then, although this was one " of the very cases which the statute was passed to " protect, he may still be bound, and his liability be ** revived by a random acknowledgment made by one of *' the thirty or forty others, who may be careless of ** what mischief he is doing, and who may not even Id. 467. ** know of the payment which has been made." Two persons entered into a joint and several promis- sory note : one died, and ten years afterwards the other paid interest upon the note. An action was brought against the executors of the deceased, and the Court Cressweil^T were of opinion, that the plea of the statute was good Atkins i-.Tred- upon this occasion. " Suppose," said Lord Tenterden, ^^ " an executor to have waited six years, and then no !<*• -9. and see 1 • 1 • 1 T f 1 • ^ Bamewall 6c ** clami havmg been made, to dispose 01 the assets ni Cressweii, 248, ** payment of legacies ; he might, if the plaintiff were Je'r"'*SeTw^n^s " to prevail, be subsequently rendered liable to the pay- NisiPiius, 135, T 2 276 OF CONTRACTS AND LIABILITIES: [Ch. 2, 149; and Blan- " ment of demands to any amount, by the acknow- sliard on the .,,,..,, • 1 i Statute of Linii- " leclgment 01 a person orignially jomt debtor with the tations. « testator." (a) Sec Addenda to ^_ . „ , Chap. 2. However, ni a more recent case, where one oi the parties signed the note as a surety, and it was objected, that he had a right to expect notice if the note were not paid, the Court held, a payment of interest within six pfrhlraT' ' ysars by another party to the note sufficient to avoid the Raynal. statute, and the case of Whilcomb v. Whiting was thereby sustained. Where a party revives a debt by paying the principal, 4.Biiigham,3i3, but rcfuses to pay the interest, he does not thereby revive Collycr V. Wil- i i • p • lock. the claim tor interest. SECTION II. OF CONTRACTS WITH, AND LIABILITIES OF, PARTI- CULAR PERSONS, AND PUBLIC COMPANIES. Of Contracts with Aliens. IN treating upon Insurance, this subject has been already touched in some measure; the reader will not, there- fore, be troubled with a long consideration of it in this place. Contracts with alien friends, with naturalized persons or denizens, are good, and may be enforced by either party in our courts. But such as are entered with alien enemies are void in the first instance ; so that it becomes desirable to know who are the persons considered by the law as incapable of contracting by reason of their hos- tility to us, and in what manner that incapacity may be removed by peace, or by the King's licence, 8cc. (a) See now the new x-^ct, 9 Geo. IV. eh. 14, which alters the law in this respect. S, 2.] AUENS. 277 The subjects of a state at war with this country are clearly alien enemies ; but it has been attempted to extend this character much further. As where an insurance was effected on the property of persons domiciled at Hamburgh, when that country was in the possession of the French, it was objected, that the assured were not entitled to recover ; but as the voyage in question was not prohibited by any order in council, and as Hamburgh ^ Maule& Sel- was not treated as an enemy by this country, judgment dorni;. Bell. was given for the plaintiff. The mere residence in an enemy's country, it was argued in another case, was such a hostile adherence, as to preclude a party from enforcing a debt under a commission of bankruptcy ; but Lord Ellenborough thought it would be too much to attach upon the creditor's remaining in, and not getting away from the countiT upon its becoming hostile, those dis- sMaule&Sel- ... . "^ ^ ^ wyn, 533, Ro- abilities which belong to a person who adheres to the berts v. Hardy. King's enemies. If, however, there be a residence and a trading, 3 Bosanquet & a different conclusion may possibly be drawn, and there M'Comieii d. is, indeed, a case to that effect in the Common Pleas. Hector. A native of a foreign country in amity with England was taken on board an enemy's fleet in the exercise of an act of hostility, and was detained a prisoner of war. He sued for his wages as a seaman upon a contract entered into during his detention, and the defendant relied on his being an alien enemy. But by Eyre, C.J. " How does this tend to fix on him the permanent cha- 1 Bosanqut-t & " racter of an alien enemy ? That character arises from ""^'^' ^^ " " the party being under the allegiance of the state at " war with us ; the allegiance being permanent, the " character is permanent, and in that ground he is alien " enemy, whether in or out of prison. But a neutral, *' whether in or out of prison, cannot, for that reason, " be an aUen enemy ; he can be alien enemy only with ^* respect to what he is doing under a local or temporary T3 278 1 Bosanquet & Puller, 163, Sparenburgh v. Bannatyne. See 6 Term lie- port, 23, Bran- don V. Nesbitt. I Buck, 93, ex parte Schma- bing. 6 Taunton, 332, DaubuzD. Mors- head, bart. ; Id. 237, An- toine V, Mors- liead. 6 Term Rep. 28. OF CONTRACTS AND LIABILITIES : [Cll. 2, " allegiance to a power at war with us." Judgment was therefore given for the plaintiff. The party trading being once proved an alien enemy, his contracts in time of war are invalid ; but questions have arisen how far the restoration of peace revives those rights of suing in our courts of justice which the alien possessed before the hostilities,. And it may be safely affirmed at the outset, that, as a general principle, if the contract is entered into during the war, a subsequent peace will by no means enable the individual to sue, nor render him liable to be sued, upon that contract. Thus where the drawer of bills, an alien enemy, indorsed them to a British subject, a resi^ dent in France, it was held, that the indorsee could not recover upon those bills after the restoration of peace. Nor can a demand arising out of an illegal contract be enforced under those circumstances. There was, however, a peculiar case in which the strictness of this principle was not insisted on. An Englishman, detained as a prisoner by the French Government, drew a bill upon his son, the defendant, in favour of an alien enemy, and, on action brought, the defence offered was, that the plaintiff was trustee for the alien enemy. But on account of the peculiar hardship which would be sustained by Enghsh prisoners, if they were rendered incapable of drawing upon their friends when in confinement, and because the contract was made in the first instance between British subjects, the plaintiff was permitted to recover, Gibbs, C.J. observing, that he gave no opinion whether the Crown might or might not lay hands on it. It ought not, however, to be concealed, that Lord Kenyon says, in Brandon v. Nesbitt, " Though it was " held, in Ricord v. Bettingham (h), that the action by (b) 3 Burrow, 1734. S. 2.] ALIENS. 279 " an enemy on a ransom bill might be maintained, the " action was not brought until peace was restored, which " gets rid of the objection." Where, however, such a contract has been entered into before the tear, it seems, that the right of enforcing it is merely suspended during the continuance of hosti- lities, and that, peace being restored, the original capacity will revive. And as we have seen already, the King's licence is often granted for the purpose of making contracts with alien enemies valid and legal. Contracts concerning Auctioneers. In cases of deposit, the auctioneer is a mere stake- holder, and he is not justified in parting with the money confided to him until the sale is finished and complete. If he do, he will be liable to an action at the suit of the buyer, should there be suflBlcient reason for refusing to pay the remainder of the purchase-money: and whether 5 Burrow, 2639, f 1 -1 11- • • 1 Burrough v. he have paid over the deposit to the principal or not, he Skinner. will be equally responsible. In a subsequent case, where the auctioneer was attor- ney for the vendors of an estate, and he had paid over the deposit to his principals, it was holden, that he had paid the money over in his own wrong •, 1 . Because he must have known that the title was disputable in the view the purchaser had of it, which was equivalent to express notice not to pay it over. 2. Because by not communicating to the plaintiff that he had so paid the 5 Taunton, 815, 1 -111 11 ^ • A- rr 1 • 1 tdwards r. deposit, he had encouraged the plaintitt to bring the Hodding. action. Two hundred and sixty chaldrons of soil were sold by a sheriff's auctioneer, who knew that there was a dispute about the property, but did not commu- nicate that fact to the bidders ; he afterwards told the plaintiff, the purchaser, that if he thought there was any remedy, he should give him (the defendant) notice T4 28o 5 Taunton, 657, Peto V. Blades. By Burrough, J. 8 Taunton, 55. 8 Taunton, 45, Lee V. Munii. Cowper, 395, Bexwel. V, Christie. OF CONTRACTS AND LIABILITIES: [Ch. 2, to retain the money. The plaintiff did not give the notice, and the auctioneer paid it over. But the Court held, that the money might be recovered back in this case, for the law will raise an implied promise that the party selling does not know his want of title to the goods he is disposing of. But the auctioneer is not liable to pay interest on the deposit. He can never be so liable to interest " unless two circumstances concur. First, the con- " tract must, on failure of the condition, be rescinded ; " secondly, a demand of the deposit must be made, and " a refusal to return it must be given." So that where an estate was sold by auction, and the treaty was kept open for four years, when the contract went off for want of a good title, but no demand of the deposit had been made upon the auctioneer, the Court gave their judgment against the recovery of interest. With respect to the understanding of an auctioneer with his principal as to bidding up the price of goods, we have already seen that puffing cannot now be practised with any degree of safety. And the auctioneer's liability on the subject came directly in question, in a case where he was directed not to let a horse go under a certain sum. The conditions of sale were, that the goods should be sold to the best bidder, &c. The horse was sold much under the price mentioned by the owner, and he sued the auctioneer for damages. But Lord Mansfield took a distinction between the cases of putting up goods at so much in the first instance, and of privately bidding upon the property, holding the latter practice a fraud upon the public, and the defendant was therefore allowed to have a nonsuit entered. The hirer of a piano-forte sent it to an auctioneer for sale ; the auctioneer sold it, and refused to deliver it to the right owner, until the expenses incurred had been discharged ; but by Abbott, Justice, " The general rule " is, that if a man buy goods, or take them on pledge. S. 2.] AUCTIONEERS. 28I " and they turn out to be the property of another, the " owner has a right to take them out of the hands of ** the purchaser; except, indeed, in the case of a sale 2 Starkie, 311, " in market overt." The auctioneer was, therefore, not Machin. entitled to retain the goods. However, the auctioneer, on the other hand, may recover from the buyer the price of goods sold and deli- vered at a public auction, although it may be quite 3 ,*' \^'i'i|!|'ms°r' evident at the sale that the property belongs to a third Millington. person who has employed the auctioneer as his agent. Still, it should be recollected, that the mere writing down the name of the purchaser in the sale-book of the auc- tioneer is not sufficient to avoid an objection on the score of the Statute of Frauds, where the auctioneer is the plaintiff, it not being contemplated by that statute that the agent should be one of the contracting parties. An auctioneer cannot sue a vendor for the duty, where he misleads the party by saying that he has taken eveiy precaution to prevent the duty from attaching. In a case of that description, the Court considered, that the auctioneer had warranted to the plaintiff that no duty would attach, and that, having pledged his experience^ 6 East, 392, he had no right to make the vendor suffer for the mistake ham. he had committed. The subject of sales by auction has been already See Babington's adverted to in a former part of this chapter. tions. Liabilities of the Bank of Efiglavd. If the Bank refuse to transfer stock, and cannot justify With respect to such refusal, an action on the case may be maintained stock.^"* against them. And therefore it is, that a mandamus Douglas, 524, cannot be apphed for successfully to compel them to The King ?;. the , '■ J r Bank of Eng- do so. land. So, where the Bank delayed the passing a warrant of attorney for so long a time, that upon the sale of stock ^82 OF CONTRACTS A N 1> LIABILITIES: [Ch. 2, for the purchase of an estate, a difference of 239 1, and upwards occurred, to the plaintiff's loss, Lord Chief Justice Abbott said, that although one of the greatest mercantile communities in the world, the Governor and Company of the Bank of England, were in no different situation from private individuals or private bankers, but were equally responsible for their acts, and it being Ryan v. Moody, put to the jury, that if they thought there was no reason- v^The'co- ^^^ ground for doubting the validity of this warrant of wernor, &c. attorney, they found for the plaintiff to the full amount of his claim. A very extraordinary case occurred some time since. The sum of 10,000/. Consols was sold under forged powers of attorney, and when the proprietor became acquainted with the fraud, he concealed the crime from the Bank for several months, the offender being his own brother. The judgment of the Court of Common Pleas was, that the Bank were liable to make good the defi- Q Bingham, 393, cicucy, and that property in stock is not transferred from England. the owner by being placed to the name of another person under a forged power of attorney. But this judgment v\^as reversed in the Court of King's Bench ; and although the reversal took place on the ground of a defect in the pleadings, the guarded Bamewall & manner which was used in delivering the judgment, so Cressweli, 785, as to avoid giving any sanction to the decision in the land V. Davil Commou Pleas, gives reason to suspect, that the latter is not to be considered as an unimpeachable authority. Where the claim to property in the funds is in dispute, _ there are abundant instances to show, that a Court of Equity will not order a transfer until the matter has been adjudicated, and an application by petition will not be entertained ; the party, therefore, must have recourse to a bill. The costs of the Bank are usually paid out of the estate S. 2.] BANK OF ENGLAND. 283 in dispute ; but where the Company were made parties i Swaiiston 38, for the security of a legacy, it was ordered, that their '^garae.'^"'" "* costs should be paid out of the capital of the legacy* Contracts xuith and Liabilities of Bankers. We have already said much on this subject, and as it will be again mentioned in the pages which are devoted to Principal and Agent, a very general notice may be sufficient here. By 7 Geo. 4, c. 46, an Act for the better regulating Copartnerships of certain Bankers in England, a firm of bankers of more than six are empowered to issue their notes at a distance of sixty-five miles from London, provided that they shall not have any house of business or establishment in London. The statute is devoted to the regulation of these copartnerships. It is hardly necessary to observe, that the greatest attention to a customer's hand-writing is necessary on the part of the banker, although a distinction has been taken between discounting bills, and paying them ; because, in the former case, the attention of the person ^ . . 1 • 1 * Carrington, IS not drawn to the mstrument so strongly as in the 197. latter. But if the banker pays more than the order authorizes them to do, he will be liable to his customer. As where a cheque was altered by expunging the dates and figures, and the defendant paid it, the Court held, that the customer could not be charged for more than he had actually drawn, and the plaintiffs had iudg-ment, the 5 Bamewail & , , , • 1 •' 1 • • ■ n ■ n 1 Cresswell, 750, banker navmg clamied to retam m satisfaction oi the Hall v. Fuller, forgery. So, where two cheques had been drawn, the first, being incorrect, was torn into four pieces by the drawer, the second was regularly paid j some one pasted the pieces of the defaced cheque, and presented it, when the Sc^iole^^r ""^^^' banker's clerk paid it without making any inquiries; liamsbouom. 2B4 OF CONTRACTS AND LIABILITIES : [Cll. 2,' Id, 17, Forsfcr Lord Elleiiboroiigh held the payment unjustifiable, and t'. Clements. ^^le plaintiff had a verdict for the balance of his account. But where a customer left printed checks with his wife, and he caused one to be filled up for 50/. 2s. thus : the word fifty commenced with a small letter, and was placed in the middle of the line, and the figures were placed at a considerable distance from the printed £ — , after which the words Three hundred was interpolated before fifty, and the banker paid the forged Young ^Grote.' instrument ; it was holden, that the customer must bear the loss in this case, for want of due care. The bankers of the supposed acceptor of a forged bill of exchange discounted it for the defendants, who 1 Carrington, were mere agents; it was held, that although the money Smith." ^ had been paid over before notice of the forgery, the agents might be sued. Some litigation has arisen in consequence of bankers blending sums in a general account which might have been treated as distinct. The following case will show that it is not their interest to do so. A bond was given to bankers at Hereford as a security for advances which might be made ; one partner died, and another was introduced ; the obligor then retired from business, and the balance of his account was trans- ferred to his sons. At the time of the partner's decease a considerable balance was due to the bankers, but they neither called for payment, nor treated the matter as an insulated transaction. The sons became insolvent, and the bankers sued their father upon the bond ; but, - as it appeared that the sums had been mixed up in one general account, and that the sums they had received 2 Bamewali & ^^ different payments exceeded the debt due upon the Alderson, 39, bond at the time of the deceased partner's death, the Purdias! * Court gave judgment for the defendant. And by Mr. Justice liolroyd : " It seems to me, that S. 2.] BANKERS. 285 " the transfer of the balance of the defendant's account, ^' by the plaintiff to the son, may be considered as the " payment of so much money by the son, on account " of the father, to the bankers, and a reloan by them of id. 47, " the same sum to the sons." Care is also necessary to distinguish between an abso- lute order and a conditional order to transfer money, as appears from the following case. The defendant, banker to the plaintiff, received this order from him : " I request " you to hold me 400 /. from my private account, to the " disposal of J. Mintern and Co." Before this money was passed to Mintern's account, or paid, the plaintiff revoked the order, but the banker, nevertheless, paid it over. Lord Gifford told the jury, that if this was an absolute order, and accepted as such by the defendants, the plaintiff had no right to revoke it. If, on the other hand, it was executory, and they thought that it had not „. . 1 • -/r 1 1 -1 2 Bingliam, 7, been acted on, the plamtiff had a right to revoke it, and Gibson y.Miuei. his countermand came in time. A customer gave his bankers a note for 1,000/. every three months, which they discounted and passed to his account ; but before the last note became due, he died. In an action by the executor, it was holden, that the bankers could not by a rebate of interest convert the transaction into a continued loan, and so by making: the ' f^"'g''aiii. 93. clami the subject of set-off, alter the distribution of LaUbroke. assets. If a banker be expressly directed to apply bills to a particular purpose, he must either so apply them, or 2:\iad(lock 102 express his dissent ; and if not so appropriated, they ex parte Aiken, will go to assignees in case of bankruptcy. A person abroad, being indebted to others in London, remitted bills to his bankers for the purpose of satisfying the demands. Before the bills became due, the plaintiff, a creditor, who had received a letter of advice from the party abroad, gave the bankers notice of this, and oflered m 15 East 582, Williams v. Everett. 3 Barnewall & Alderson, 643, Yates V. Bell. 14 East, 590, n. De Bernales v. Fuller. 5 Barnewall & Alderson, 815, Kilsby V. Wii- liuiiis. See Addenda to Chap. 2. Broker. Ol^ CONTRACTS AND LIABILITIES: [Ch. 2, them an indemnity if they would hand over one of the bills to him. This was refused, and they declined to act upon the letter, being garnishees in suits of foreign attachment against the remitter of bills from abroad, although they acknowledged the receipt of the letter. The Court held, that as the bankers had renounced the terms on which the bills were remitted before they had received the money, such money was had and received to the use of the remitter of the bills only, and the plaintiff was nonsuited. Where, however, the money for the purpose of paying a bill had been received by bankers for that specific purpose, it was considered, that they were bound so to apply it. So, where bankers received a cheque from the plaintiff, their customer, drawn by a third person, and informed the plaintiff that they would keep it in the hope of its being honoured ; it was held, that after this, they could not appropriate money in their hands belonging to the drawer of the cheque, in satisfaction of a debt due to them from the drawer, to the exclusion of the plaintiff's cheque, much less could they retain the money after having paid two cheques subsequent to that of the plaintiff, drawn by that third person. The liabilities and rights of a broker will be considered in a subsequent part of this chapter, under the head of " Principal and Agent." Of Carriers. The delivery of goods with care and correctness is a duty which the law imposes on a carrier, and, there- fore, he is liable for negligence, or accident, except it be occasioned by the act of God or the King's enemies. It is by reason of his common-law liability to convey goods, that a lien attaches on property committed to his charge until the carriage be paid. Of that lien enough S. 2.] CARRIERS. 287 has been already said. The general principle above mentioned applies only to carriers in the ordinary course of their dealing ; if danger or uncommon accident be proved, a carrier may avoid the responsibility. Thus, "where the plaintiff, having apprehensions that his corn would be seized by a mob, stopped the boatman, and prevailed on him to take the corn, dispatching him for- ward in the night. The wheat was seized by rioters, and the plaintiff sued the carrier. The judge told the jury, that if the goods were put on board out of the usual course of dealing with a common carrier, they ought to ^jj^frds v*' find for the defendant, which they did, and the Court Sherratt. were of opinion, that the jury had been rightly directed. But a carrier is answerable for an accident by fire. Forward v. ' There is a distinction between cases where the carrier P'tt'ird. assumes the character of a warehouseman, and where he is merely acting in his occupation of carrier. Goods were ordered to be conveyed by the defendants, common carriers, from Stourport to Manchester ; they arrived at Manchester, were put into warehouses there, and were consumed by a fire in the same night. By Lord Kenyon : " The case of a carrier stands by itself upon peculiar " grounds; he is held responsible as an insurer; but " I do not see how we can couple the character of the *' carrier with that of the warehouseman, in which last 58i,Garside r. " the defendants are not liable here, they not having Trent Naviga- '* been guilty of laches." And the same doctrine has been sustained in a more recent case, where the same difference between the carrier and the warehouseman 8 Taunton, 443, In re Webb. was recognized. Carriers, finding their common-law liability very in- convenient, and productive of considerable loss, (as it had been held, that they were liable for the value of a parcel, the contents of which were not disclosed to them,) determined to limit their responsibility by express notice, and thus to accept sjjeiialh/ certain goods 288 OF CONTEACTS AND LIABILITIES: [Cb. Q, intrusted to them. A variety of notices was the conse- quence of this resolution, but as the principle of law applies pretty much in the same way to all, it is not necessary to say more, than that the common notice now made use of limits the responsibility of the carrier to parcels. Sec. of the value of 5/., unless paid for, and entered accordingly. But, notwithstanding these public declarations, if a carrier, or his servant, be guilty of gioss negligence, he will not be protected by his notice- As in the case of the cask of brandy, which suffered considerably from leakage, and the waggoner neglected to stop and examine the leak, although informed of the circumstance ; here, in spite of the notice, the carrier Beck^i). Evan's, "was held liable, for " he does not stipulate for exemption " from the consequences of his own misfeazance."(c) The Court having intimated an opinion in the last case, that if the magnitude of the package of itself imported that its value would be above 5/., the carrier would be liable, Serjeant Vaughan made it an objection against a notice in a subsequent case, where there ivas no charge of negligence, that a package of stationery, of 480 lbs. weight, presented an unequivocal appearance that it exceeded the sum of 5/., and that it thence followed, that the notice was countervailed ; but Chief Justice (c) An instance of gross negligence was where the book- keeper gave a parcel to the coachman, knowing him to be drunk. 4 Price, 31, Budenham v. Bennett. So where a box of cochineal was misdelivered through negligence to a stranger. 2 Barnewall & Alderson, 356, Birkett v. IVillan. So where a cart used for the delivery of parcels was at- tended only by one porter instead of two- 8 Taunton, 144, Smith v. Home. In all these cases the notice was dispensed with by the negligcnice. S. 2.] CARRIERS. 289 Dallas held the notice sufficient, and his opinion has Gow's Reports, since been confirmed (d). ^lia^rsir^"'"^ Even if there be gross negligence, and the owner of a valuable parcel neglect to infoim the carrier, who has sheltered himself under a notice, of its contents, he must abide the loss. A box of bank-notes was delivered, there being no notice. The coach which conveyed it was left standing for some space of time at midnight in the middle of a wide street, without guard or watch- man, and a porter, who had been ordered to watch the coach, being inattentive to his duty, the box was stolen. By Abbott, C. J.: " If the carrier had " known the contents of this box, he certainly ought to " have placed it in a less exposed part of the carriage, " or to have caused the carriage to be better watched ; " he ought to have done so ; probably he would have " done so : I cannot take upon myself to say that he " would not. And I think an opportunity of doing so " ought to have been given to him, by some intimation 4 Bamewall & **■ of the contents of the box that he was required to Aiderson, 21, '■ Batson v. Dono- " convey. van. Mr. Justice Best differed from the rest of the Court, and thought the carrier liable. A gentleman lost his travelling trunk, with apparel and jewels, from a coach. He had been in the office, and had an opportunity of seeing the notice, and he 4Biiigbam,2i8, made no disclosure of the contents. The Court of wick. Common Pleas held, that he should recover. However, as a general rule, if the owner of goods is 3 Starkie, 136, acquainted with the notice, he cannot proceed against ^^^^^^ ^' ^*'"^^' {d) 5 Bamewall & Cresswell, 322, Marsh v. Home. And see to the same effect, 3 Taunton, 264, Harris v. Packxvood ; 1 Price, 280, Levi v, JVaferhouse. V 290 2 Campb. 415, Biitlerr.IIearne, by Lord Ellen- borough. 2 Starkie, 279, Davis V. Willan Id. 53, Kerr v. Willan. 3 Bingham, 2, Rowley v. Home, See Comyn on Contracts, P- 575- OF CONTRACTS AND LIABILITIES : [Ch. 2, the carrier (e). The publication of this notice is usually accomplished by eiffixing a paper to the wall of the coach-office, or in some conspicuous spot. Where there was a bill pasted on the door of the office, stating the course of the conveyances, and the notice was at the bottom, in small characters, the carrier was held liable. How could the plaintiff be inferred to have seen the notice, when the hand-bill called the attention to every thing that was attractive, and concealed that which was calculated to repel customers ? It is not enough, if the party be unable to read the notice ; and if he can read, and has never, in fact, read it, or received any other intimation of the limited liability, the common-law responsibility will still hold the carrier. It was proved for the carrier, that the plaintiff had taken in a weekly newspaper for three years, in which the defendant's notice had always been advertised ; but that was not enough ; for it could not be intended a party read all the contents of any newspaper he might chance to take in(f). This notice, as we have already seen, may be dispensed (e) And it makes no difference that the agent of the owners is not aware of the notice. As where carriers gave notice that they would not be responsible for bank notes, and notice of that fact could not be brought home to the agent, but the principals^ knew it : here the carrier was held not liable, for it was the duty of the principals to have instructed their agent not to send bank notes by that carrier. 3 Barnewall & Cresswell, 601, Mayhevo v. Eanies. (f) The party's attention should be directed to the notice or a receipt given him on a paper, stating the terms of the notice. Where the carrier gave a notice not containing any limi- tation, it was held that he could not avail himself of the notice to that effect stuck up in his office, for he shall be bound by that which is least beneficial to himself. 2 Starkie, 255, Mun77 V. Bahr. S. 2.] CARllIERS. 291 with by gross negligence ; it may also be waved under other circumstances, as when the book-keeper took a parcel, being told its value, and said he should charge so much for it. The answer was, " Charge what vou ?,.^^"^l'^- 5^'^' , ° J \\ilson V. Iree " please; you shall be paid for it, provided you take man. " care of it. It is worth 80 /. ; it is in your care, and " I am done with it." It was a looking-glass, and was broken on the journey. Lord Ellenborough held, that although no money was paid at the time, the payment was dispensed with, and the notice unavailing. These cases, it is to be observed, respect the notice given by the carrier in the ordinary course of his business ; if, instead of pursuing the usage of his calling, he com- mit some wrongful act independent of it, the notice will be unavailing. A parcel was delivered to the defendants, to go by their mail from London to Worcester, but when the mail arrived at the Green Man and Still in Oxford-street, the parcel was taken out, and left for the purpose of being- forwarded on the next day by the Worcester heavy coach. The goods were lost out of that heavy coach. The usual notice was relied on, but it appeared, that one only of the two defendants had a concern in the second coach. By Mr. J. Bayley : " When the plaintiff sent his parcel " by Willan and Jones (the two defendants), he had ** a right to have the care and attention of both those Bamewall & *' persons, and when he had the care and attention of Aiderson, 53, " one only, he had not that care and attention for which i^^ " he originally contracted." Judgment was therefore given against the carriers. But where a parcel was shifted, and the same proprie- 5 East, 507, - , , , . , -• -*^ , Nicholson 1). tors managed both coaches, judgment was pronounced willan. against the plaintiff who sued the proprietors for a loss. The next case differs from the last in this, that the particular contract entered into by the carrier was to send the parcel in question by the mail. A brown paper 292 5 Barnewall & Aldcrson, 342, Sleat V, Fagg. 2 Starkie, 8a, Williams v. Cranston. Id, 181, Olivet). Eainet. Gow, 115, Corington v. Willan. 3 Starkie, 143, Latham i;. Stan- bury. See Comyn, p. 580. OF CONTRACTS AND LIABILITIES: [Ch, •>, package, containing country bankers notes, and addressed to " R. A. Stc. per mail," was received by the defendant's servant, and booked to go by the mail. It was, however, sent by a different coach, and lost. There was the ordi- nary notice. " This," said Chief Justice Abbott, " is •* not the case of the negligent performance of the ** contract, but of a refusal altogether to perform it, for " the defendant did not send the parcel by the Pool " mail, as he had contracted to do." Besides this, the jury found that the parcel had been exposed to greater risks in the coach than it would had it gone by the mail, and the plaintiff recovered. The action should be brought against the proprietor, and not against the driver, unless it can be proved that the coachman had been accustomed to carry parcels on Ids oivn account ; and where a party who had lost a watch sued the driver, he was nonsuited. But unless you show the book-keeper at the office to be the carrier's general agent, a promise by that person will not bind the carrier; it must be proved, that the principal ratifies the promises made upon such occasions. It has been held, that the notice exempting the respon- sibihty in case of the loss or damage of goods, protects the carrier against a loss by robbery. But where there was a contract to deliver goods, " fire and robbery " excepted," and one of the defendants had deposited a parcel in his desk in the office, whence it was missing shortly afterwards. Lord Chief Justice Abbott considered the loss as not having been occasioned by robbery within the exception in the contract, and the jury found accordingly. The proper course for the proprietor of goods to pursue who is desirous of securing the carrier's responsibility, is to leave his goods at the usual booking-office, to enter and pay for them, and take a receipt. For where some hops were merely left at the inn where the carrier lodged. S. 2.] CARRIERS. 293 and were not delivered either to him or to his sei-vant, it * Ld.Raymond, 1111 1 11 11*11 46, Selway v. was held, that he could not be liable. Hoiioway. Next, with respect to the delivery of goods upon their 3 Wilson, 429, arrival at the place of destination. The carrier must be ^.°''^*'" ^'-^^an- r _ ning ; and see careful that they are duly delivered to the proper person. 3 Broderip & Certain casks of tallow being left with a wharfinger to j^'j^'l !f Budd^' be sent coastwise, it became necessary for the wharfinger to deliver them either to the mate or to some officer of the vessel ; but the defendant merely showed that they had been rolled alonp-side the ship at the time she was %an & Moody, . 224, Leigli V. taking in her cargo close to the wharf, and did not trace Smiih. them further, on which a verdict passed against him. Having once deposited the goods with the person authorized to receive them, the carrier ceases to be liable; but where goods were taken back to the warehouse, on the ground of lien for a balance, and not on the ground of their having been once tendered, it was held, that this was a waver of the termination of the original 1 M'Clelland & contract, and that the liability continued until actual sto'rru.Crowiey. delivery. : The plaintiff, having been duped by a swindler, sent a box by the defendants, carriers, to London, duly directed. The defendants found that no such person lived at the place of direction, but upon receiving a letter 4Biiighara,476, from a person requesting that the box might be forwarded nlrt a^nd"" "' to him in the country, they forwarded it, and delivered to Waterhouse. a party who seemed to know something of its contents. This was holden to be gross negligence in the carriers, and they were held liable to the plaintiff in trover. The carrier may stipulate for certain terms of delivery, as, to the bearer of a receipt for the goods intrusted to him. And, therefore, the plaintiff, under these circum- stances, was nonsuited in an action against the carrier, for the carrier had a right to demand the evidence of the receipt. Still, as the carrier had, through mistake, deli- vered the goods to a wrong person, if the plaintiff had ^ 3 294 2 Starkle, 6o, Samuel v. Darch. 4 Espinasse, 26a, Tlioiiias V. Day. Peake, 114, Cailiff V. Uan- vers. OF CONTRACTS AND LIABILITIES: [Ch. 2^ sued in trover, he would have recovered, because the wrongful delivery was of itself a conversion, which is the gist of that action. The liabilities of warehousemen are so nearly connected with this subject, that it may not be amiss to mention one or two cases respecting them before we proceed. Goods were sent to be taken care of in the defendant's warehouse ; it appeared, that the crane which was employed to elevate the packages into the wareroom broke, and seventy-nine pieces of linen were spoiled, from having been drenched in the wet street. It was contended, that the liability of the carman who brought the goods had not ceased, but Lord EUenborough was of a different opinion : " When the warehouseman took " them into his own hands, the moment the warehouse- " man applied his tackle to them, from that moment " the carman's liability ceased." When the goods are safely bestowed in the warehouse, a reasonable and common care of them will satisfy the trust which the law casts on the warehouseman. He is not an insurer, liable for losses, nearly of every kind, like the carrier. So that where the rats got at some ginseng, whereby it was spoiled, and the defendant had used fair diligence in protecting it from vermin, by shutting the lid of the box every night where it was kept ; by procuring cats, &c. it was held, that he should not be made answerable for a damage which he could not prevent. East India Company. The East India Company adopt a peculiar clause in their charter-parties of affreightment, which is deserving of attention. It is this : " As touching the freight to " be paid or allowed by this Company, it is agreed, and " the Company covenant with the said part-owners, that " this Company shall and will, in case and upon condi- " tion that the ship performs her voyage, and arrives at S. 2.] THE EAST INDIA COMPANY. 295 " London in safety, and the said part-owners and masters ** do perform the covenants on their part, and not other- " wise, well and truly pay and allow the freight herein " mentioned. " It is hereby agreed, that in case the ship does not " arrive in safety in the river Thames, and there make " a right delivery of the whole and entire cargo and " lading on board the said ship as aforesaid, the Com- " pany shall not be liable to pay any of the sums of " money hereinbefore agreed to be paid for freight and " demurrage, nor subject to any demands of the said " part-owners or master, on account of the said ship's " earnings in freight, voyages for the Company, or on " account of any other employment, any other law, " practice, or custom notwithstanding." A ship, chartered by the Company, on her return from India, met with a violent storm off Margate, by which she was stranded and sunk ; a great part of the . , , ' ° . 1 . Abbott, p. 202, cargo, being saltpetre, was lost, but the remamder, chiefly Tod v. E. I. pepper, was rendered marketable by the Company at ^^'"P'*".^- ^ ^^ ' , J , /> , See Sir William a great expence; upon this, a special jury ot merchants, Biackstone, whose opinion the Court of King's Bench confirmed, l^ep. 291, Hume ^ " ' t). E. I. Corn- held, that freight was to be paid for all the goods deli- pany. vered, and demurrage as specified by the charter-party. If goods (the homeward-bound cargo,) are lost from any other cause than that of necessity, there is a clause which stipulates for the payment of 30/. on every loo/. on the prime cost of such goods. So, - if the homeward-bound cargo, or any part, is injured by the wet, &c. or in any way ship damaged (g), the Company may refuse the goods, and the part-owners and master must take them, with charges, customs and {g) That is, damage from negligence, insufficiency, or bad stowage in the ship. Freighters are not answerable for damage or loss arising from the act of God. Douglas, 2712, Hotham v. East India Company. V 4 296 Abbott, 204, Tod V. I. E. Company. 10 East, 468, Moffat V. E. r. Comj)any ; see as to the em- ployment of a ship in warfare by the E. I. Company ; 1 3 East, 290, Dobrre i'. E. I. Company. OF CONTUACTS AND LIABILITIES: [Ch- 2, puties, at the invoice price ; and in such case the Com- pany are not to pay any freight for such goods, unless for damaged pepper, which the part-owners and master are to allow the Company for, at the current price of sound pepper in London, and the Company are to pay the freight and charges on such pepper, as if it were not damnified. It was decided, in the case of the ship stranded off Margate, as above mentioned, that the ship- owners were not liable to pay for the goods damaged on that occasion; that they were not answerable for the pepper, for it could never have been their intention to insure against the perils of the seas ; and that the con- tract being entire, it could never have been intended that the owners should be protected from the lesser loss, and remain answerable for the greater. The Company agreed to allow 200 1, per month for provisions while the ship remained in India or China, to be computed from her delivery of the Company's dispatches (if any) at the ship's first consigned port, and to continue until the ship should be dispatched from her last port in India or China, to return to Europe. It was also agreed, that the Company, or their agents* should pay to the plaintiffs in England 14/. for each passenger ordered on board the said ship by any of the Company's agents, from any of their settlements, &c. in the East Indies. In construing the charter-party wherein these clauses were inserted, the Court held, that the words " last port" meant last consigned port ; so that where the ship, having left Canton, her last consigned port, was obliged to put into Bombay for repairs from stress of weather, the 200/. per month were considered not to be payable during the interval which elapsed between the ship's leaving Canton? and her stay at Bombay. Nevertheless, as the Company detained her at Bombay for convoy for two months after she was ready to sail, they were compelled to pay the 200/. a month for the latter period. S. 2.] THE EAST INDIA COMPANY. ^Q7 According to the conditions of the East India Com- Sales of E. I. pany's sales, " if any buyer shall not make good the " remainder of the purchase-money on the goods which " shall be bought by him on or before the day limited " for payment thereof, the deposits which have been " paid upon' the same shall be forfeited to the Company, " and such buyer shall be rendered incapable of buying " again at any future sale, until he shall have given satis- " faction to the Court of Directors." The plaintiff, after one of these sales, had neglected to make good the remainder of the purchase-money on the goods which he had bought, but having had time allowed him, he paid it within the prescribed season with interest. The Com- pany refused at a subsequent sale to declare him a pur- chaser, although he was the best bidder, and he, there- upon, brought his action. The defence was, that he had neglected to give the Company satisfaction. But by Lord Alvanly, Ch. J. : " The East India Company had " no right to exclude this man from bidding till he had " given what they might think a satisfaction, but only till ** he should make sufficient reparation for the injury they *' had sustained by the breach of his agreement with " them to pay certain sums of money on certain given " days. If they had thought fit to impose this penalty, " they should have brought an action against him for " not fulfilling his contract ; and if he did not pay those " damages which a j ury might give, I should think they " would have authority to exclude him, because that 3Bo3anquet& " would not be a partial regulation, but would affect all £""|^J(y^^^^ £ I " mankind alike, and every man who did not comply Company. " would be excluded." A sale of the command of a ship in the East India Company's service, without their knowledge, is illegal, and such a contract cannot be made the subject of an action, because it is against the principles of public policy, which requires, that no money consideration 298 OF CONTRACTS AND LIABILITIES: [Ch. 2, 8 Term. Rep. sliould be o;iven for the appointment to an office in which 80, Blacliford -Oil Preston ; 4 Vcsey, juu, 8n, Blacliford v. .■, , .. . , ,1 Preston ■ the pubhc are interested. °'*^- Of Partners. A supposed general participation in profit and loss is a fair definition of partnership. If losses arise, the person who takes a moiety of the profits at other times bears his proportion of the misadventure, so that an individual who permits himself to be allied to a firm, for the purpose of sharing their advantages, must be prepared for any re- verse which may occasion a demand upon him in a day of calamity. Thus, if one stipulate for an interest in the partrRowiand- P^ofits of a busiiiess, OS a reward for his labour, he =""• becomes responsible to third persons as a partner, and no private arrangement can cancel his liability. But here lies the distinction : " If a trader agrees to pay " another person in the concern a sum of money, even in " proportion to the profits, equal to a certain share, that 404 bv^Lo^rd " ^^^^ ^^^t make him a partner ; but if he has a specific iiidon. " interest in the profits themselves, as profits, he is " a partner." 5 Taunton, 74, An individual, therefore, who was paid by a propor- Siiarpe^ tion of the profits of an adventure, was considered not 2 Barnewall& to be a partner in the goods, the produce of the adven- Smitin;.Watson. turc. And there are many other authorities to the SE^me effect ; but if a proportion of the losses is to be borne by the agent, he may be rendered liaMe as a partner to third persons. But where a firm, directed to purchase cotton, used these expressions : " We shall be happy to hold one- " third interest therein, charging no commission ;" and 4Barnewall& in a Subsequent correspondence the whole transaction Cressvvcll, 867, p , . • , 1 1 Ecid V. Holiin- was reierrcd to as a jomt account between the vendors ^'"^'*^" and the firm so directed to buy, it was held to be a part- nership. A partnership is commonly ratified by deed, but this S, Q.] PARTNERSHIP. 299 is not necessary for the purpose of creating liabilities or enforcing contracts. A father, on his son coming of age, told him he should have a share in the business, and held him out to the world as his co-partner, but there never was any settle- ment as to the particular share. It became necessary to ascertain whether the son were beneficially interested in the concern, and, if so, what share he really possessed. It was said, that no proof of a partnership existed in this case ; but by Lord Ellenborough : " The fiftieth " part of the evidence adduced would have been suffi- " cient to establish a partnership as between these " parties and the rest of the world. This being esta- 2 Campb 45, J,.,,, . f, 1 . , , Peacock v. I'ea- " bushed, the presumption 01 law is, that they are cock. " partners inter se." A person under twenty-one, held himself out as a partner with another until he was nearly of age, but he did not act as such afterwards ; being sued for the amount of certain goods, he alleged his infancy as a defence ; but the Court said, that if a person once holds himself out as being a partner, till he gives notice that he has ceased to be so, those who deal with the firm upon the faith of the supposed partnership may consider 5 Bamewall & him as such : and he is bound bv that representation. Aiderson, 147, mi • /• • 1 " 1 • • n Ooode c, Harn- The infant should have notified, on his coming of age, son. a disaffirmance by him of the partnership. It has been decided, that a partnership cannot acquire Ryan&iMoody, a property in goods by the fraud of one of the partners, \vilsoa.' ^^ '* to which the rest are not privy. It is scarcely necessary to observe, that the construc- tion of a finu in opposition to the law of the land, as for the purposes of smuggling, or in contravention of Acts of Parliament, must be illeo-al. With respect to the continuance of a partnership Dormant part- where one partner retires, according to the general rule, "'^"* his liability remains the same as before, and there is 300 3 Sir William BlackstoneRep. qqq, Bloxhamt). Pell. Id. 998, Grace t>. Siuitb. 2 Henry Black- stone, 245. a Campb. 617. Newsome v. Coles. 2 Starkie, 290, Williains v. Keats. 1 Carapb. 404, ri. Alderson v. Pope. or CONTRACTS AND LIABILITIES: [CIl. 2, some difficulty in escaping from the responsibilities which the law imposes on a joint concern, especially as far as third persons are interested. Thus, where the partner retiring was to have an annuity for so many years, provided the other partner survived so long, he was held liable by reason of the contingency of his interest. But, on the contrary, where the annuity was to be paid for a specified number of years, without reference to the survivorship, the partnership was deemed to be at an end. So if an annuity were granted out of a banking-house to the widow of a deceased partner, the Court would not construe that to be a partnership, so as to make her liable for the debts of the house. If the party retiring have no interest in the profits, but yet hold himself out to the world as a partner, as by allowing his name to remain over the door of the firm, he may be liable as a nominal partner, though not if his name be used, without his consent, after proper notice of dissolution. But where a defendant, sued on a bill of exchange accepted by his partner, urged the dissolution of partnership as a defence to the action, it was answered, that whatever might be their private arrangement among themselves, to the world they remained partners as long as both names appeared over the door of the firm ; and the judge was of that opinion, unless the defendant could bring home some notice to the plaintiffs. He said, that " Notice in the Gazette was not to be considered as " notice of the dissolution of partnership to all the " world ; it was a medium of knowledge, but not equi- " valent to actual notice." And, therefore, where it appeared that such notice had transpired, the person who did not participate in profit and loss, though he seemed to the world a co-partner, was held not liable. There may be a liability, as partners, to third persons, though the relation does not subsist between the parties S. 2.] PARTNERSHIP. 30I themselves. As where one, destitute of both money and credit, begged another to lend his credit on the shipping of certain goods on an adventure ; if any profit should arise, the lender to have half for his trouble. All this being done, the lender paid for the goods, and subse- quently sued the executors of the borrower for the loan, when it was objected, that a partnership had existed between the plaintiff and the testator, and that he could not recover. By Lord Ellenborough : " Quoad third " persons it was a partnership, for the plaintiff was to " share half the profits ; but as between themselves it " was only an agreement for so much, as a compensation " for the plaintiff's trouble, and for lending Robertson " his credit." The testator had not accounted for the 4 ^'^«M44. Heskctli V. profits (/i). Blancliard. Where there was a sub-agreement with a stranger by one of the partnership firm, that the stranger should share the individual profits, it seems, that such an act ^ n^sp^ 052, did not render the latter liable as a partner generally to ex pane Bai row. third persons. There is such a community of interest between part- ners, that not only is their general stock the common property of the firm, but any purchase also, as of land, made forthe purpose of carrying on the business, becomes joint property, and the partners tenants in common. The Court of Chancery will direct the Master to ascertain whether a purchase has been made for partner- 1 Vesey, jun. ship purposes, if it be disputed. of dnSip. A partnership being duly entered into, each member <^''- '^> P- 25. Liabilities of ~~ — ~" ■ firm for the acts (A) Executors who continued the share of partnership pro- perty for the benefit of their testator's estate were held per- sonally liable, though they carried the profits and losses of the profits to the account of the infant, and took no part of the trade themselves. 1 Maule & Selwyn, ^12, Wi^himan v. Toivnroe and others. 302 1 Canibp. 185, Bond V. Gibson and another. a Barnewall & Alderson, 679, by Abbott, C. J. 5 Brown, Par- liamentary Cases, 489, Minnit v, Wliinerj'. 1 StRikie, 164, Willis j;. Dyson. OF CONTRACTS AND LIABILITIES : [Ch. 2, of the firm becomes responsible for the acts and con- tracts of his co-partners. One partner bought goods of the plaintiff, but instead of bringing them home, he pawned them for his own use. The goods were such as the firm made use of in their business. It was objected, that the credit appeared to have been given to the buyer, and that the innocent partner could not be liable. Lord Ellenborough : " The seller is innocent, and he had " a right to suppose that this individual acted for the " partnership." Again, if two persons in partnership for the sale of horses should agree between themselves never to warrant any horse, yet, though this be their course of business, there is no doubt, that if, upon the sale of a horse, the property of the partnership, one of them should give a warranty, the other would be thereby bound. But where three persons entered into partner- ship as sugar-brokers, and after some time one of them declared his resolution of being no longer concerned in the joint trade, and in pursuance of that determination caused an advertisement to be fixed and published in the Exchange to that effect, it was held, that a notice given by him to a particular trader that he would not be accountable for any sugars which the remaining part- ners might buy of him, was sufficient to avoid his respon- sibility ; especially as the trader, when treating for the sale of more sugar, declared, that he was satisfied with the security of the remaining partners, and took promis- sory notes in their names only. Indeed, after notice by one partner not to supply any more goods on the partnership account, it will be neces- sary for the party sending goods after such notice to prove some act of adoption by the partner who gave the notice, or that he had derived some benefit from the goods. So that the course proper to be pursued, when one partner is desirous of relieving himself from the conse~ S. 2.] PARTNERSHIP. . 303 quences of any negotiation which may be going forward with his co-partner, is to give the trader express notice that he will not hold himself responsible. There is this distinction between partners and part- owners : the one are joint-tenants of their merchandize, Caryon Part- and one may dispose of the whole property; the others "^"^^^'-'^gjid s°e are tenants in common, and one cannot dispose of the 4 Campb. 67. share of the other. Asfain, a pledcre by one partner, without the privity or Gow, 132, Raba ^. 1 M, , 1 • T .t n 1 t'. Rvland ; see consent 01 the rest, will be binclmg on the iirm, unless 1 M'Cieiland& the person to whom the thing is pledoed be aware of the },°""se. 406, _ ^ s 1 o Williams v. Bar- joint concern. ton. So also, a loan contracted by one partner will bind the 1 Espinas-ie, - rest, if made while the borrower is employed in the ii^uiiiphrcvs! "* partnership business. But in a matter quite unconnected with the general concern, this consequence does not happen, if it be evident to the party making the contract that it is an Agace^ ex parte. entirely independent transaction. And the loan of money by one partner, for an illegal purpose, cannot be proved as a debt due to the firm out of the debtor's estate. So that where there had been an advance of this kind out of the partnership funds, the surviving partners were not allowed to prove under a commission against the borrower, although they were ignorant of the transaction in which their deceased part- 1 Maule & Sei- ner had been engaged, and did not themselves derive ex^parte.^' ^ ' any benefit from the contract improperly entered into. A guarantee by one partner, although made out of the Guarantee by usual course of dealing, will bind a co-partner, even Partners, although it be contrary to their general arrangement. For the true rule is, that the act and assurance of one partner, made with reference to business transacted by the firm, will bind all the partners. So that a party 1 Bamewaii k. guaranteed was allowed to recover under these circum- sandUands^I^' Marsh ; 304 OF CONTRACTS AND LIABILITIES: [Cll. 2, isVesey.jtin. stances against the defendant, who did not appear to parte. '""^ *'" *^ have any knowledge of the contract (^). Yet if the party entering into the contract with the partner who acts thus clandestinely be aware of the circumstance, he will be precluded from recovering, for it is a fraudulent transaction, and there may be such gross negligence as may amount or be equivalent to covin. Transactions took place between a firm and one part- ner belonging to another, the whole being avowedly with the partner in his separate capacity. But his credit being doubted, the other parties contrived to obtain a guarantee from him in the name of his firm, and then, there being a general bankruptcy of the latter firm, the creditors filed a bill in Chancery to have the benefit of the guarantee, and an issue was directed by that Court to try the validity of it. Lord Mansfield treated the guarantee as obtained either through covin or gross negligence ; he said, that the creditors knew that the guarantor was acting in his separate capacity, and that 1 East r.', Hope ^^^ security was intended to indemnify them against his V. Gist, cited. separate debts. And the jury found for the defendant. It is hardly necessary to say, that if a partner draw, Liability by bill accept, or indorse a bill or note, he will thereby render or note. ^jg fjj-j^ liable. But this liability rests on the same general principle as the rest, and is capable of being avoided by special circumstances. So that where the plaintiff, who had advanced money to one partner for the (j) After this decision, the case of Duncan v. Lowndes, 3 Canipb. 478, does not acquire strengdi. It was there held by Lord Ellenborough, that evidence ought to be given to show an authority for the signature of the partnership firm to a guarantee. And the judge said, " It is not inci- " dental to the general power of a partner to bind his co- ** partners by such an ' instrument.' " S. 2.] PARTNERSHIP. 3O5 payment of partnership debts, and which money was in fact so applied, had notice brought home to him of an advertisement in a newspaper, whereby the other partner, the co-defendant, gave notice to all persons not to give credit to his co-partner on his account, and that he would no longer be liable for drafts drawn on the partnership account, it was held, that he could not recover. The implied authority of one partner to charge another had been rebutted in this instance ; and, " if a third person, viscount Gall- " having; notice of this, will take such a security from w:iji;.Mathew, ° -^ bj Lord EUen- " one or the partners, he shall not sue the others upon borough. " it, in breach of such stipulation." Supposing that one partner give his bill or note for a separate debt of his own, the firm still are bound by j.^^^ ^lo his act, unless the party taking the security know of the Swan v. Steele. misapplication of the partnership funds. Tlie Court held the case too clear for argument. And, of course, if the creditor, on the other hand, draw a bill upon a partnership, when he has separate dealings with one Contracts"*"^ partner only, he is guilty of fraud, and cannot recover p. 490- against partners ignorant of the transaction. It has been decided, that an indorsee may sue on a bill 13 East, 175, drawn upon the partnership credit in satisfaction of i^^. ^^ **' ^^ ' a private debt, where no covin is proved to exist. It might reasonably be supposed, by the party to whom it is given, to be a partnership security legitimately and fairly attained. But as soon as a dissolution has taken place, the power of putting the original partnership name upon a security ceases. An indorsement was made nearly two months after the dissolution of a partnership ; the promissory note so indorsed had been drawn prior to the dissolution. By Lord Kenyon : " If a fair bill existed " at the time of the partnership, but is not put into " circulation until after the dissolution, all the partners '' must join in making it negotiable." That the security X 3o6 3 Espinasse^ 108, Abel V. Sutton. 1 Starkie, 375, Wrigiitson v. Pullati. 10 East, 418, Thomason v. Frere. 4 Campb. 97, Usher v. Daun- bey. Ol- COiNTRACTS AND LIABILITIES: [Ch. 2, has been given for the purpose of liquidating debts, or that the partner may have an authority given him to settle the partnership affairs, makes no difference. So where, after a dissolution of partnership, one party accepted a bill in the name of the partnership, bearing date before the dissolution, it was held, that this security could not be enforced against the original co-partner, though the indorsees, the plaintiffs, had no notice of the dissolution. But the Court, when moved for a new trial, although they agreed that the verdict for the defendant was proper, took a distinction between that case and the case of goods supplied after a dissolution of partnership, but without notice, by one who has been in the habit of supplying goods to a firm. An act of bankruptcy, however secret, will vitiate a security given by the bankrupt partners after the failure, for the purpose of charging the firm, because the controul and disposition over the joint property cease upon that event; so that the defendants, who claimed to set off in respect an indorsement given under these cir- cumstances by bankrupt partners, were not suffered to do so, as they could not acquire a property in the bill from those who had no control over it. But it is otherwise in the case of a death in the firm. A bill was drawn in blank by a partner, and delivered to a clerk, to be filled up as the exigencies of business might require. After this, he died ; and the surviving partners having assumed a new firm, the bill was filled up, dated prior to the decease of the old partner, and sent into circulation : it came into the hands of the plaintiffs, indorsees, for value, and they sued the firm for the amount. Here Lord EUenborough said, that the power must be considered to emanate from the partner- ship, not from the individual partner, and that, therefore, after his death, the bill might be so filled up as to bind the survivors. S. 2.] PARTNERSHIP. O7 If separate partnershijj concerns be carried on under the same name, and the same signature be adopted by both, it has been determined, that the holder of a bill drawn on account of one concern, is not only entitled to the security of the other, but may select which of the partnerships he chooses for his debtor; and it is not necessary for the holder to declare, that he took the ?/"!^' P'45» 1-11 n • 1 ^ M'Nair v. bill on account of any particular firm. Fleiuing. As a general rule, one partner cannot bind another by By deed, &c. deed, unless he be expressly authorized by a writing under seal ; and the partnership instrument being by ^^ Comyn, on deed implies no authority for this purpose. But the p, 503. exception is, where one party executes a deed in the '^^^' ^' "^ ' presence of the other, and by his authority, as where a bill of sale was made in that manner ; the Court held the instrument valid in this case, and relied principally on the execution in the presence of the other partner ; 4 Term Rep. and it was considered no sufficient objection that the Dunstervil'le. deed was only once executed. „ , , ,,. . A 1 1 1 1 1 -11 IMi's. Nisi A subsequent acknowledgment by a partner will not Pnus Cases, "avail, unless it be by deed. i4i,Steigiiiz «. It is said, however, that a release of debts under g^^ Co,„yn a composition deed is an exception to the general rule, p- 504- Although this execution of a deed by one partner will not bind the firm, it is nevertheless valid aoainst himself. And so where the defendant executed a bond as a surety in the name of his firm, without the consent of his co-partner, who expressed his disapprobation of the transaction, he was not permitted to set up as a defence that there was no single execution of the bond ; if necessary, said Lord Eldon, we would hold him to have described by the name of J. D. and G. W. [the description of the firm.] So, where an award was 2 Bosanquet & signed by three of five partners, it was held, that the EliioT'n.'^Davis. signatures of the three should not bind the five ; but it seemed to be admitted, that the three who had signed X 2 308 3 Bingham, 101, Stead I'. Salt. 7 Moore, 356, Furnival v. Weslon. 3 Bingham, 103. By Besi, C. J. Gary, p. 56, &c. Gary, p. 57. Ibid. Cowper, 814, WiUet v. Cham- bers. 2 Barnewall & Alderson, 795, Eappt).Latham OF CONTRACTS AND LIABILITIES: [CIl. 2, would be bound as far as the engagement could be com- plied with. Again, one partner may release actions, debts, &c. with- out the concurrence of the others. In the first case, the rule was carried so far, as that although the attorney was directed to proceed to trial in a suit, and then one of the partners released the defendant without even communi- cating with the attorney, the Court refused to interfere. And, with respect to debts, as the debtor may lawfully pay his debt to one partner, he ought also to be able to obtain a discharge upon payment. One partner may therefore sign a receipt, a note for the weekly payment under the Lords' Act, may " prove a joint debt under a commission " of bankrupt, or singly vote in the choice of assignees, " or may execute a power of attorney to enable a third *' person to act for the firm in these respects." So, one partner may sign a bankrupt's certificate, even after a dissolution, provided the debt were proved before the dissolution. As a payment to one partner is a discharge of the obligation, so the misapplication of money by one of a firm makes all the other members of it answerable. So that where two persons were in part- nership as attorneys and conveyancers, and one of them received a sum to be laid out on mortgage, and gave a separate receipt for it, the other was considered respon- sible, for one branch of their business was conveyancing, and incident to conveyancing is the receiving of money to place out upon securities. So, if one partner suffer himself to be engaged in an illegal transaction, as smuggling, the residue of the firm must suffer for his misconduct. So, again, one partner is liable for the false represen- tations of another : as where a fictitious sale of wines ■ was pretended by a person who never either bought nor sold any, and thus, an individual who had advanced money on the faith of such purchases, and had even S. 2,] PARTNERSHIP. 30g received a part back on tiie credit of such pretended sale, was defrauded. We have seen, that such is the nature of a partnership. Liabilities of that each shares the joint stock in common with his tween them- partners, and thus, unless in cases of gross mismanage- selves. ment or fraud, one cannot interfere with the proceedings of the rest, so as to hold them responsible to him. And even in cases of mismanagement, a court of equity is the proper tribunal to resort to for redress. But there are exceptions to almost every rule, and though it be a general principle, that one partner shall have no remedy against another, cases may happen — as, for example, where money has been paid by mistake — in which a com't of law will entertain a hostile suit of this kind. Thus, where money had been received to the separate use of one partner, and carried wrongfully to the part- nership account, it was held, that the sum so applied 2 Term Reports, might be recovered back. Mr. Justice Grose : " Sup- Barrow™' " pose that the plaintiff had received this money, he " would have been entitled to set apart for his own use •' the whole sum, except that part which belonged to " the partnership account. Then the circumstance of " the defendant's having received it cannot alter the id. 479. " right." The principle is, that in an independent concern the partners are hke indifferent persons, and so, where, debts being incurred on a partnership account, and a balance struck, the plaintiff paid his adjusted proportion into the hands of other partners, who did not hand it over to the creditors, it was held, that for so much of the money as was thus misapplied before the bankruptcy of those partners, the plaintiff might prove wpI.tIu d. Hun- under the commission, and for the sum improperly ''-''■• retained after the bankruptcy, it was held, he might recover to the full amount. So, where there was a cove- nant in articles of co partnership to account yearly, and to adjust and make a final settlement at the end of X 3 310 Q Term Rep. 479, Foster v. Allanson. Cary, 58-158; see also Mon- tagu, Watson, and Gow, on partnership. Dissolution of Partnership, 2 Vesey & Beanies, 300. Id. 303, Cary, p. 164. OF CONTRACTS AND LIABILITIES: [Ch. 2, seven years, but, in point of fact, the partnership was dissolved before the expiration of that term ; a settle- ment of accounts was made, includino- several items not belonging to the partnership, and the defendant, one of the two partners, promised to pay the balance ; it was held, that such promise was binding ; both parties had consohdated the demand, and the defendant must thereby be taken to have given his consent to consider this as a new debt on an account stated (k). In these cases it is observable, that the partnership was not considered to be in force as touchino; the tran- sactions in question : in the one case, money had been paid on a separate account ; in the other, the mutual concern was dissolved. It is not a part of our undertaking to explain the various suits and remedies, at law or in equity, which may be had by or against partners ; it will be, there- fore, sufficient to refer the reader to the text-books upon the subject (/). A dissolution of partnership may take place by mutual consent between the parties, by the interference of a court of equity in cases of misconduct on the part of some member of the firm, the bankruptcy of one or more partners, and by death. It seems, that the execu- tion of a judgment against one partner, where an account of all the concerns is taken, dissolves the firm. And the lunacy of a partner is, probably, a sufficient ground for putting an end to the mutual contract, but this must be done by a decree of a court of equity, and not by the act of the other partners. (A) There must be an cayjrws promise. 2 Bingham, 170, contrary to Holt's N. P. Cases, 368. (/) See particularly Mr. Gary's very useful treatise, where conciseness and information are very ably combined. S. 2.] PARTNERSHIP. 3I 1 The dissolution may be efrected by parol, where it has been so formed; it should be destroyed by deed, where it has been formed by deed. And where arbitrators have had all matters in dispute between partners referred to i Sir Wiliiam them, it has been held, that they had the power of dis- Green rwl-^' solving a partnership. ""'"g- A public notice of the dissolution should be given, as in the London Gazette, and it is necessary to give parti- cular notice to persons who have been accustomed to deal with the firm(m). For many people there were said Lord Kenyon, who never saw a Gazette to the day of their deaths, and very mischievous indeed would be the consequences, if they were bound by a notice in- serted in it. But the medium of the Gazette has been Pcake's Cases, esteemed sufficient publicity as it respected individuals ^^^' who were not in the habit of dealing with the firm. A promissory note, the subject of the action, was dated after a partnership had been dissolved, and endorsed by one of the original partners ; it was sought to charge the other partner with it ; but Lord Kenyon said, that " at least to those who have had no previous dealings " with the partners," if a dissolution " is certified in i Espinasse, " the ordinary and usual way, it seems sufficient, at 37 1. Godfrey «. '•' least to be left to the jury, to infer notice." But, we have seen, that as between third persons, the permitting a name to be continued over the door, is a recognition of the jjartnership, unless the party who deals with the firm under such circumstances be aware of the disso- lution. When the joint debts are paid, and the property duly See Gary, p. 165. (???) By a circular. 1 Starkie, 421, by Lord Ellenborough. A change in the printed cheques is sufiicient notice of the change of partners in a banking house. 3 Campbell, 147, Barfoot v. Goodall. X4 312 See Gary, p. 1 68. Id. 167. a Barnewall & Cresswell, 72. Ibid, by Bay- ley, Justice. OF CONTRACTS AND LIABILITIES: [Ch.2, distributed among the partners, the dissolution may be said, in a general sense, to be accomplished. The debts must be first paid, for, until that is done, no appropria- tion can take place in respect of partnership shares or incumbrances. If any one of the firm be guilty of a breach of duty in misapplying the effects before the con- cern is finally wound up, the proper course is, to apply to the Court of Chancery, who will appoint a manager. The rule of the subject of the application of debts is, that the debtor may declare on what account he pays the money. If he do not make any specific appropriation, the creditor may elect to what account he may think proper to place the sum received (n). But " there is a third rule, viz. that when one of several " partners dies, and the partnership is in debt, and the " surviving partners continue their dealings with a par- " ticular creditor, and the latter joins the transactions of " the old and new firm in one entire account, then the " payments made from time to time by the surviving " partners must be applied to the old debt. In that " case, it is to be presumed, that all parties have con- " sented that it should be considered as one entire " account, and that the death of one of the partners " has produced no alteration whatever." But entries made in books kept for private purposes are not binding till a communication has been made to the party affected (w) '< But the rule is subject to this qualification, that " when there are distinct demands, one against persons in " partnership, and another against one only of the partners, " if the money paid be the money of the partners the cre- " ditor is not at liberty to apply it to the payment of the " debt of the individual; that would be allowing the creditor " to pay the debt of one pe'son with the money of others." By Lord Chief Justice Abbott, Moody & Malkin, 40, Thomp' son V. BroVcn. S.2.] PARTNERSHIP. S^S by tliem ; so that where, upon the death of a country banker, partner in a firm at Huddersfield, the London bankers, their correspondents, at first entered all receipts and payments made after the death of the deceased partner to the account of the old firm, but afterwards transmitted two distinct accounts to the country ; one, the account to the death of the partner, and the other, the account of receipts and payments subsequent to his decease ; it was holden, that the first entry was not a complete appropriation to the old account, not having been communicated, and that, consequently, the heirs and devisees of the deceased partner were liable for the old debt, the bankers bemg justified in applymg the Cress\veli, 65, payments subsequently received to the debt of the new i^!^',^^"" "" ^"^" firm. In the nionih following the death of the partner, the London bankers had received more than sufficient to discharge the balance due from the old firm, but this was held to make no difference (0). There must not be any collusion upon a dissolution. Where two persons, H. and .S'., had been in partnership -as warehousemen, and the defendant had bought goods of them, after which there was a public notice of disso- lution, and that all debts due to the partnership should be paid to H. only ; receipts given after the dissolution by S., in dischare;e of the debtor, were deemed fraudu- „ ... •' . ^ . 2 Ciimpbell, lent and void, and H. recovered against the defendant sSi.Hender- in an action wherein the names of both partners were *°""-*^*''' joined. Nevertheless, if there be no express notice not to pay ,, Ve-ey.iun. the outgoing partner, and a debtor make a bona Jide 198. Duff v. E. I. Company. (0) See 1 Merivale, 572, Claijtons Case. Delivering up old dishonoui'cd bills and receiving good new bills, a payment in discharge of an old debt. 14 East, 239, Nex^march v. Cla}j. 314 OF CONTRACTS AND LIABILITIES [Cll. 2, payment to him, such a payment is protected, both at law and in equity. In another case, an agent was appointed to receive the joint debts due to two partners ; the defendant, a debtor to the firm, had notice of this arrangement, and acceded to it, but one of the partners then countei*- i Starkev 50, manded the agent's authority, and demanded his debt; Bristow V. this the defendant paid, and was afterwards sued for the i iiyIor» amount by both partners. Lord EUenborough held, that the authority possessed by the agent was counter- mandable ; had the agent done any act in pursuance of the arrangement, it might not have been recoverable. The plaintiffs were nonsuited. If there be a partial dissolution of the firm, an out- Cary, p. 171. go'i^g partner may insist on the sale of the partnership effects, but the ordinary course is, that he should receive a sum of money, or annuity from the remaining part- ners. Without a stipulation to the contrary, the retiring partner may carry on the same trade, where, and when, 3McrIvale,44i. and with wliom he pleases, and the other partners can- 45a, Kennedy j^qj- claim any good-will in the trade, in addition to the partnership property which is the subject of it, except what is the necessary effect of acquiring the sole owner- ship in the property. It is observable, that this partial dissolution does not alter the rules of law which are applicable to partnership in general ; the interests and rights of third persons remain the same, and must be respected, whatever agreement the firm may enter into amongst themselves. So that the giving of an indemnity by one partner to the other who is retiring will by no means protect him against the claims of joint creditors. This principle may be illustrated by a very strong case. Two attorneys agreed to dissolve partnership, and one of them took the debts of the concern upon himself. The plaintiffs, creditors, received this intimation from the managing partner : " We have been arranging our S.2.] PARTNERSHIP. 315 ** accounts, and Mr. D. and myself have agreed that " I should take the amount of your account on myself, " which I will be responsible for to you." The plain- tiffs then agreed to exonerate the partner D. from all 3 Eameweii & liability as to the partnership account, and stated Lodge d. Dicas. they should charge the other partner with the debt. They, nevertheless, subsequently sued both the partners, and the Court held, that D. was liable. " Unless it " could have been shown that they were parties to the Ey iiolroyd,!. " agreement between D. and R., there is no considera- " '^" *' tion whatsoever for the promise proved to have been " made. Whether, in case such an agreement had " been proved, and they had been parties to it, it would " have amounted to a release, or a covenant not to sue, " is a question not now to be determined." There must be a legal satisfaction or release to escape the responsibility. That an outgoing partner may be relieved from an old debt by the blending together of ac- counts, we have seen already : as the subject, however, is again presented to our attention here, another authority founded on Clayton's case, before cited, shall be given. The plaintiff carried on dealings with G., his banker, also an army agent, in one unbroken account for twelve years. In the same year when the dealings commenced, jE. became secretly a partner with G., and remained so for ten years. At the end of the twelve years, G. became a bankrupt. During that interval of two years, many sums were paid by G. to the plaintiff', and upon an action being brought against E., he insisted, that he was enti- tled to credit on the old account for those sums so paid to the plaintiff, as being a reduction of the balance due at the expiration of the partnership ; the plaintiff said, that he never knew of the secret partnership; but the Court were of opinion, that the principle of Clayton's 2 Broderip & case applied to that before them, and a nonsuit was Brooke"^. En- entered, derby. ti6 OF CONTRACTS AND LIABILITIES [Ch. See Gary, p. 19'2. 5 East 255, Osborne v. Harper, See Cury, p. 181. 5 Barnewall & Cresswell, 196, David V. Ellice. However, notwithstanding- the liability of a partner for the conduct of others in his firm with regard to third persons, even after a dissolution, yet, if subsequently to a secret winding up of a concern, one partner pledge the credit of his co-partner, he shall be held responsible for any loss which may accrue fiom such a pledge. Bills were drawn in favour of one JD. by A., who had dissolved partnership with B. and C, but D. being- ignorant of that, sued the firm, and recovered : for the money paid in satisfaction of the judgment on this occa- sion, an action was brought against A. by B. and C, and they had a verdict against their former co-partner. Lastly, it may be said, that an outgoing partner is discharged from his liability upon a partial dissolution, in the same manner as in case of an entire end of the partnership. As by the holder of a bill, with notice of a dissolution, taking a separate bill from the remaining partners, the first having become due; by a creditor taking the separate security of one partner, and so in- ducing the other, the outgoing partner, to sufi'er the first to retain sums of money in his hands, which he other- wise would have compelled payment of, in liquidation of their joint debts; with many other circumstances which might be mentioned. But where it did not appear that the retiring partner had left any funds in the partnership, he was held liable, although the creditor had his balance transferred to his credit by the new firm, and drew upon them for a part of the balance, which they paid. In this case there was no new debtor. There seems to be this distinction between commer- cial and professional partnerships, as to the good-will of a business : that in the former case, the retiring partner may compel a sale'of it, together with the partnership effects, upon a dissolution ; in the latter, each is at liberty continue his own exertions. For it would hardly S.2.] PARTNERSHIP. 3^7 be fair, that if a suro-eon, a lawyer, or other professional See 3 Mad- , , . 1 • • 1 111 • 1 • clock, 78, and man, determined his partnership, it should be in his Cary, p.287. power to compel the rest of the firm to dispose of the connection, unless there be stipulations to that effect. We have seen that a guarantee will determine on 3 East, 484, the death of a partner ; and as death creates a tem- " '^^"^^ ^' porary dissolution of the firm, a right of action on the guarantee does not survive, but the obligation ceases. " For a man may very well agree to make good such " advances, knowing that one of the partners, on w^hose " prudence he relies, will not agree to advance money id. 490, by " improvidently. The characters, therefore, of the borough.' " several partners may form a material ingredient in the *■' judgment of the obligor upon entering into such an " enoacrement." Upon a dissolution by death, if the joint effects are not sufficient to pay the partnership debts, the separate See Cary, estate of the deceased partner must make good the defi- ^' ' ciency, although the survivor is certainly liable to all the existing incumbrances on the firm, and so, if the ■ survivor pay more than' his share of the joint debts, the deceased partner's estate must contribute a proportion. Of Principal mid Agent. Factors and brokers (p) are the chief agents connected with commercial concerns. Their characters, however, are different. " A factor," said Mr. Justice Holroyd, in a late case, " differs materially from a broker. The " former is a person to whom goods are sent or con- " signed, and he has not only the possession, but in " consequence of its being usual to advance money (;?) A ship broker is not within the various Acts for the regulation and admission of brokers. 4 Bingham, 301, Gib- bons v. Rule. 2 Barnewall & Alderson, 148. 3Starkie, 156, Guthrie v. 318 OF CONTRACTS AND LIABILITIES: [Ch. 2, " upon them, has also a special property in them, " and a general lien upon them. When, therefore, " he sells in his own name, it is within the scope " of his authority; and it may be right therefore " that the principal should be bound by the conse- " quences of such sale." " But the case of a broker is " different : he has not the possession of the goods, and " so the vendee cannot be deceived by the circumsta nee ; " and besides, the employing of a person to sell goods " as a broker does not authorize him to sell in his own " name. If, therefore, he sells in his own name, he acts " beyond the scope of his authority, and his principal " is not bound." And an agent must appear in his representative cha- racter, so that although an Act of Parliament may authorize a company to sue in the name of their secre- Tiske. tary, he is not thereby warranted in suing out a commis- sion of bankruptcy on his own petition, as on a debt due to himself. Brokers in the city of London enter into a bond to reveal the names of their principals, and neither to deal in goods on their own account, nor to barter and sell again, or make any gain in goods beyond the usual brokerage. The plaintiffs, brokers, bought some sugars in their own name for the defendants, sugar-refiners; they objected, on being sued for the price, that the pur- chase was a breach of the broker's oath, and a forfeiture of the bond, and it was urged, that the plaintiffs could not recover ; but as it appeared, that the names of both buyer and seller were duly made known, and entered in a book kept for the purpose, the Court held, that it was a proper question for the jury to saj", whether the plain- 7 Taunton, 260, j^^ffg }ia,d anv authority to buy these sugars in their own Kemblei). / , ■ i • p , ,- p Atkins. names, and the jury, having iound a verdict tor the plaintiffs, the Court would not disturb it. S, 2.J PRINCIPAL AND AGENT. 319 There is no rule more firmly established than that Liabilities of a principal is bound by the act of his agent ; but it is so far qualified, that the agent's conduct should be accord- ing to the common usage and mode of dealing. So that where a broker, employed to sell stock, took a pro- missory note at fourteen days in payment, it was held, that the bargain for selling the stock could not be enforced. " Did any one ever hear of stock being abso- i Campbell, " lutely exchanged for a bill at fourteen days ? Has ^fsims.' ** a broker, in common cases, power to give credit for ** the price of the stock which he agrees to sell ?" It is a conversion for a factor to sell goods upon credit where there is no usage to that effect, and if the property have not been sold in market overt, the purchaser must render ^omyn, p. 542. back the value in an action of trover ; the sale of caveat emptor applies clearly in such a case. There is again this difference between a factor or general broker, and a broker employed for a special purpose ; the former, although he do not absolutely obey his principal's instructions, has yet authority to bind 'him ; the latter, by such disobedience, cannot enforce the contract against his principal. If an agent be 1 Espinasse, expressly directed not to negotiate or indorse a bill, he ^^^' cannot bind his principal by so doing ; but if the agent, not being restrained, receive instructions to discount a bill, and he warrant it to be a good one, a consideration ^vv^Feun^v'.'^ *' arises for a subsequent promise to pay it(^). A broker Harrison. in London had bought some hemp for the plaintiff". It was delivered, at the plaintiff^'s request, to the broker. ( y) A power of attorney, authoriziiig an agent to get in debts and monies in any lawful way that he can, docs not include an authority on his behalf to indorse bills for his principal. 5 Barnewall & Alderson, 204, Murray v. E. I. Con^pany. 320 OF CONTRACTS AND LIABILITIES: [Cll. 2, by a transfer in the wharfinger's books from the seller's name to that of the broker. The broker sold the hemp to other persons, who became bankrupts, and the as- signees having refused to deliver it to the plaintiff, he brought his action against them. The plaintiff denied that his broker had any authority to sell, but the Court were of a different opinion, holding, that if a person put goods into the custody of another, whose common 15 East, 38, business it is to sell, without limiting his authority, he Pickeiing v. thereby confers an implied authority to sell ( r). It is recommended that a special authority should always be given in writing ; and if, under these circum- stances, an agent should exceed his authority, he will Comyn, p. 538. be liable for the consequences, although he may have acted with a view to his employer's interest. As a general rule of law, an agency cannot be dele- gated to a third person, so as to make the principal responsible, or bind him by the act of such third person ; but an express authority to employ a sub-agent, or a course of dealing in any particular concerns wherein such a substituted authority exists and has been recog- See Coniyn, nised by the owners of property, will vary the case, p- 545« ^ ^g^^ agency will, in effect, have been created by the principal himself, who has consented to the inter- ference of the sub-agent. But where a broker paid over to his employer sums which he had received from underwriters, not knowing that his employer was an agent for others, it was held (r) And so where a linen-draper in Yorkshire employed a party as his agent to buy goods, and the agent intercepted some goods sent by the usual conveyance, and converted them to his own use, the linen-draper was held answerable for the goods. Ryan iSc Moody, 217, Todd v. Robinsou. S. 2.] PRINCIPAL AND AGENT. 321 that the principals could not recover the sums so re- i JMoore, 155, ceived from the broker. ^'^" '^/"'^'"g ' see 4 iUoore, o. It is a matter of course, that the misrepresentations Barlow v. of a factor or agent, the misapplication of funds by ^*^ '^" the agent, or any deceit practised in the sale of goods, will affect the person who employs the fraudulent agent. Where a factor, in consideration of an additional commission, undertakes to guarantee the solvency of the vendee, which guarantee should be in writino- to satisfy the Statute of Frauds, he stands in the vendee's place in case of a failure of payment, and is absolutely liable to the principal for the value of the goods. This is a del credere commission : the factor, or broker, in this case is considered in the light of a principal. Thus, where the defendant, as broker for S. C. and D., made a purchase of some turpentine for them, but did not disclose to them the name of Le M. &> Co., whose pro- perty it was, but he afterwards made the disclosure, and paid Le M. ^ Co. the price, it was held, that upon a re-sale of this turpentine, which he effected by order of the assignees of S. C. and D., he could not set off the payment to Le M. 8f Co. ; for " the principal must " always be debtor, and that whether he is known in , , , „ „ . " the first instance or not, except where the broker has wyn, 566, " by the form of the instrument made himself so cieasbV' " liable." But where the agent clearly communicates that he has been employed by another person, and that he does not himself undertake any responsibility, there is no principle of law more certain than that he is not liable in such case. Payment of money to an agent through mistake does not make him liable, if he have paid it over to his prin- cipal ; though if notice be given him of the mistake, he will be liable to the real owner. But merely passing a sum of money in account, which has come unadvisedly Y 32'^ OF CONTRACTS AND LIABILITIES: [Ch. 2, and through mistake to an agent's hands, is not a pay- ment, especially where no new credit has been given, Buiirr'i ^^^' "^ fresh Ijills accepted, or any advances made to the Harrison. principal ill respect of the sum in question. The rule for payment generally is, that where the seller is silent on the subject of there being a principal whose name is not disclosed, a payment to the individual so selling is sufficient. Brokers, who afterwards became bankrupts, sold some hareskins, being in the London docks, to the plaintiffs. The brokers drew a bill for payment in their own names, which the plaintiffs accepted and paid. The defendants, the real sellers, disavowed the transaction on these brokers becoming bankrupts ; upon which the plaintiffs brought trover. It appeared in evidence that the defendants had per- mitted the brokers in several instances, during the course of their dealings, to draw bills in their own names for goods sold on their account ; and therefore noit's N. p. the Court presumed that the brokers had authority to Townsend v. receive payment for the goods, and the jury found a ver- l"g''S' diet for the plaintiffs. In another case, where the prin- cipals were held bound by the acts of their brokers, the phrase " payment in one month money " underwent consideration ; and a jury declared, upon a second trial, that, in the understanding of commercial men, " a month " money " meant, payment at any time within a month. Clearly, if the principal give the buyer notice not to pay any one except himself, a payment to the agent will not be sufficient. But a different case arises again, if there be a lien on the part of the factor. As where the owner of coals was indebted in so much to a factor^ and the factor owed a similar sum to the defendant ; the factor, having sold the coals to the defendant, became a bankrupt ; and on the settlement of accounts, the defendant allowed credit for the goods, and proved against the bankrupt's estate for the residue of his 1 1 East, 39. S. 2.] PRINCIPAL AND AGENT. 323 debt. An action was brought against the defendant, the 5 Barnewali & purchaser, by the plaintiff, the original seller, and it Hudson v. was argued that the defendant might have learnt with Granger. whom the contract was made, because the name was entered in the factor's book, and also in the copy deli- vered to the clerk of the coal market. But the Court said, that as the factor had a lien in this case, a general lien on the article when sold, he might ensure payment to himself, in opposition to his principal. To be sure, the bankruptcy " would have operated as a counter- ** mand of his authority to receive the price on account " of his principal, but it [did] not operate to destroy *' his right to receive it on his own account in respect " of his hen." " The general rule of law is, that if a creditor employs " an agent to receive money of a debtor, and the agent " receives it, the debtor is discharged as against the " principal ; but if the agent, instead of receiving " money, writes off money due from him to the debtor, ** then the latter is not discharged." With regard to the taking of securities from agents, and thereby discharging the principal, it has been deter- mined, that where a steward gave a draft on his own banker to a creditor of his master, which was dis- honoured, and then a second, which met with the same fate, it was incumbent on the master to show that he had been prejudiced by the taking of such a false voucher ; for example, that he had inspected the stew- ard's accounts, and had dealt differently with him on the supposition that this demand had been satisfied, as the receipt imported ; for a receipt had been given on the 3 East, 147, master's account. In the absence of such evidence, the ofifcriford.'* master would still remain liable. So if goods be bought by a broker, the vendor may resort to the principal for payment, when he is discovered, Y 2 3^4 OF CONTRACTS AND LIABILITIES: [Cll. 2, without any regard to dealings or payments between the principal and broker; but if the seller let the day of payment go by, the principal may be led into a suppo- sition that the broker is to be considered the chief debtor ; he may be deceived into the idea that the goods he has purchased have been paid for, and may thus be Kyraer v. ' ^^^ ^^ place too much confidence in the solvency of his Suwercropp. agent. This rule is, nevertheless, subject to qualifica- tion ; for although true it is that an unknown principal, when discovered, is liable on the contracts which his agent makes for him, yet by knowingly making the agent his debtor, a party may preclude himself from . V t a recovering over against the principal. So that where Paterson v. the Seller elects to give the agent credit, the principal Oan asequi. ^^ discharged. A factor made purchases for his prin- cipal, who made payments to him on account. After- wards the factor was pressed for payment, by a letter which came to the hands of the principal, who trans- mitted it to the factor, and with the knowledge of that fact, paid him the residue. The principal was held PoweT^Nels n ^^^^^^ Over to the sellers for the money he had so paid cited. to his factor after notice, but, it seems, not for such as was paid before such notice. In a late case, where the proprietor's name was not disclosed upon a sale of goods, and a payment to a broker was thereupon ofiered in defence, the broker having acted as agent for both par- ties, it appeared that, without communicating with the sellers, the broker had permitted a deviation from the CampbeHv.^^"^' Original contract for payment, and evidence being ten- Hassel. dcred of the usage of trade to make such an alteration. Lord Ellenborough refused to receive it, and a verdict was given for the seller. There is no difference between the cases of a broker acting uRder a del credere commission, and another, with respect to the credit given, where the proprietor's name S. 2.] PRINCIPAL AND AGENT. 325 is not disclosed. Neither does the knowledge (q) of the vendee that he is dealing with an agent alter the validity of his payment, if the name of the principal be not re- vealed to him. So a buyer may have his right of set-off against a factor, although he may know that the party with whom he is dealing is a factor, for a man who is in the habit of selling the goods of others may likewise sell goods of his own. Any collusion, however, between 2 Campbell, 24. factor and buyer will at once destroy the privileges of the latter : if the buyer know of the factor's insolvency, his payments will not be protected, nor can he of course have a right of set-off for any debt of his own. 1/^1^1°™^"' It is the duty of an agent to take as much care of the goods of his principal as though they were his own : and a broker must be particular in adhering to the terms of insurance prescribed by his principal (/•). At the end of a very long letter, the plaintiffs directed their brokers thus : " Observe, the premium on this value is " also to be insured." But the agents, not noticing this, did not ensure such premium ; whereupon their employer sued them, and they were held liable for the ^ T^Janh & Sel- • • wyn, 52, Gla- OmiSSlOn. ser V. Cowie. (^q) Where there was nothing on the face of a bill of ex- change to show that it had been drawn by an agent, the drawer was held personally liable ; for it is an universal rule» that a man who puts his name to a bill of exchange thereby makes himself personally liable, unless he states upon the face of the bill that he subscribes it for another, or by pro- curation of another. 5 Maule & Selwyn, 345, Leadbitter v. Farro'vo. (r) And of every contract so prescribed: where bought and sold notes, differing materially in the terms, were de livered to the respective parties, it was held, that no valid contract had been effected. 5 Barnewall & Cresswell, 436^. Grant v. Fletcher. Y n 326 OF CONTRACTS AND LIABILITIES: [Ch. 2, It is sometimes material to consider how an agent's authority may be countermanded. A power, coupled with an interest, cannot be revoked during the grantor's lifetime or solvency ; as if one sell, as agent, part of a ship under a power of attorney, and endorse the register in the principal's name. But where the person who had executed a power of attorney under such circum- stances was supposed to have perished in a storm before ^►,^^'^irf^!"' the sale and endorsement of the register, it was held that 272, Watson u. . to ' King. his death absolutely revoked the instrument. So where a bankrupt, prior to his failure, had given a power to j,^ . receive money to another person, it was held, that the 158, Hoviiiv. bankruptcy operated as a revocation, and that the gran- !, ^'"'^ ^\, , tee of the power could not retain money received under 5 Barnewall & . ^ '' Aiderson, 35. such circumstances after the bankruptcy. A broker was instructed to sell some brimstone, and he agreed that the plaintiff should have it ; but the defendant, the borough. ' principal, countermanded the broker's authority before 2 Campbell, the Sale note was made out, and the Chief Justice con- 339, n. iariner • 1 1 1 i i i 1 r ^ V. Robinson. sidered that the contract could not be eniorced. And probably it may be good, as a general principle, that after the thing; vi^hich has been intrusted to the agent has been accomplished, his authority in that respect is at an end ; as in the case of an auctioneer, who is not justified in treating; upon the terms of making 7 Vesey, jun. • i /» i i or o 276. a title after the sale. Respecting warranties by agents, as long as they restrain themselves within the instructions confided to them by their principals, so long they may be said to be free from personal responsibility ; but if, acting in contravention of the authority, or endeavouring to add See Comyn ^o it, any fresh liabilities should be incurred, they must P- 557- abide the consequences. So that if an agent, who has been desired not to loarrant, think proper to do so — or if a person, not authorized to pay money, take upon himself the chance of his principal's subsequent ratifi- S. 2.] PRINCIPAL AND AGENT. 327 cation, he must in his own person bear any inconvenience which may happen. These observations, however, do not affect cases where there is an imphed authority on the agent's part to do certain acts, as in the case of factors, &c. There are certain liabiHties and responsibihties on the ">ee on iiiis sub- parts of principals and agents, inter se, which it is desi- Contracts'" °^^ rable to attend to. A broker agreed, in consideration p- 557- of one half per cent, to indemnify his principal from any loss on the re-sale of some cotton. But the prin- cipal, instead of selling the cotton when the price was very high in the market, waited during a considerable interval, and then sold it at a great loss, upon which an action was brought upon the contract of indemnity : it was held that the fair import of the contract was, that the defendant should be discharged if the principal were capable of making a profit of the cotton ; the gua- rantee was, that the plaintiff should be enabled to make such a profit, and as the plaintiff had an opportunity of making his advantage, it was considered that he could fo/'currTr^^' ' not after\vards have recourse to the defendant. And on Edcnsor. the other hand, where an action was brought against the defendants as indorsers of two bills of exchange, payable by merchants abroad to the defendants, and indorsed by them to the plaintiff's, who had employed them at a commission of one half per cent, it was held, that however trifling that commission, the defendants were answerable upon their indorsement ; that by send- ing the bills into circulation before acceptance, the plaintiffs were not guilty of laches ; and that, by seeing the defendants names on the bills, the plaintiffs were lulled into security, and thereby prevented from seekin"; 7 Taunton, 159, the further responsibility of the drawee. Where the Harden. merchant had accepted an order for insurance, and limited the broker to too small a premium, in conse- Y 4 328 OF CONTRACTS AND LIABILITIES: [Ch. 2, quence of which no insurance could be procured, it was i88^n" Wallace ^^^^ ^^^^ ^^^ merchant should make good the loss to V. Telfair. his correspondent. In holding agents to be guilty of negligence in their business, much depends on the usage of trade. Brokers in London received some bills from their correspondents in the country, who were indorsees, and presented them to the acceptor for payment. The acceptor gave a check for the amount, which was dishonoured, and an action being brought against the bankers in London, Lord Kenyon nonsuited the plaintiffs ; and when it was at- tempted to set aside the nonsuit, the Court said, " We " dare not even grant a rule to show cause, as it would ** be puttino; the whole trade of London in suspense 6TeimReports, V • mi • i ■ ,• 12, Russell V. " pendmg it. Ihere is no ground to impute negligence Hanke:y. « to the defendants." Mere negligence is not sufficient to charge an agent. It must be a gross carelessness, a breach of positive orders, or fraud, which can create such a liability. And it has been held that a mere nonfeasance will not sup- port an action of trover for not selling goods ; there Pulier?439. must be a positive tortious act. However, where the defendant, a broker, was directed to buy Porto Rico tobacco of the best quality, and he bought some which was very bad, insomuch that the purchaser sued the 8Taimton,202, vendor, and recovered, the broker was held liable, Mainwarint' v. ,,1 ii- --i .111 i r> • Brandon. although his principal accepted the bought note ; for it was a case of gross negligence ; the broker might have examined the tobacco in bulk, and if he had done so, he would have been convinced that it was not Porto Rico tobacco of the best quality. See Coroyn, If a factor or broker act against the interest of his P*5^'* principal, he cannot even receive his commission. And we have seen that where he pays money on account of his principal, which he is not authorized in doing, he S. 2.] PRINCIPAL AND AGENT. 329 cannot recover it back ; but he shall have his brokerage in respect of a contract which the principal has entered 6i„*^'^chircf°'^'^' into, but afterwards refuses to ratify. Morley. Where, however, a memorandum for charter party was drawn up in a manner so slovenly that no contract could be framed upon it, it was held that the broker 1 Canington, 111, iU- !• • • 384> Hamoiid should not recover any thnig tor commission. ^, Holiday. Wharfivgers. On the liabilities and rights of wharfingers much has Wharfingers, been already said, their rights of lien have been dis- cussed, and their general responsibilities in some mea- sure touched upon. One or two more points relating to them shall close this section. An action was brought for wharfage and cranage due to the plaintiffs, wharfingers, for parcels of malt brought to and unloaded at their wharf. It appeared, that the goods, instead of being actually landed on the wharf, were put on board of lighters, whilst the barge remained fastened to their wharf. And Lord Mansfield said, that wharfage and cranage cannot be due where the party has not had the use of the wharf or the crane. Wharfage is due for landing on the wharf; and cranage, for the as- sistance of the crane. Anchorage or moorage are very 3 Burrow, 1414. different things. Although a wharfinger, like a warehouseman, is not liable for accidental fire, yet where he insured goods, and on the happening of a fire, received the amount from the insurers, he was held to be clearly liable to pay over sidaways'rt°°' the money so obtained. '^°'^'^- 330 OF CONTRACTS AND LIABILITIES : [Ch. 2, SECTION III. OF COMMERCIAL AGREEMENTS GENERALLY; OF RESCINDING CONTRACTS, AND THE REMEDIES FOR ENFORCING THEM. Commercial The contract foi" the sale and deliveiy of goods is agreements. certainly the chief engagement in commercial concerns ; but some other agreements, deserving of attention, may be shortly mentioned; such, for instance, as under- takings not to carry on trade in particular places, &,c. A general engagement not to carry on trade any tohere is void, being in opposition to the policy of the country. But a partial agreement to that effect will be enforced. As in the surgeon's case, who promised, that, if the plaintiff would take him as an assistant, he would not practise as a surgeon for fourteen years afterwards within ten miles of the place where the plaintiff lived. " A bond " in restraint of trade," said Lord Mansfield, in giving^ judgment for the plaintiff, "cannot be arbitrarily taken, " and without consideration ; some consideration must " appear. Neither are the public likely to be injured _ Tj " by an agreement of this kind, since every other per- ns, Davis V. " son is at liberty to practise as a surgeon in this town" ajon. [Thetford]. A bond by an attorney agreeing to relin- 4 East iQo quish his business, and recommend his clients to twO Bumi D.Guy, other persons, has also been adjudged valid. Any con- tracts which have a mischievous tendency — which tend to contravene the fundamental principles of the consti- tution — which are in opposition to moral principle, can- not be enforced. And if a statute declare any agree- 1 H ' El k i^snt to be illegal, a subsequent repeal of that statute stone, 65, will not give any sanction to the prohibited under- Janues v, ... Witiiy. taking. So again, any attempt by contract to evade the pro S. 3.] AGREEMENTS. 331 visions of an Act of Parliament, is illegal, and any aj^reement for compensation in order to prevent opposi- tion to a Bill passing through Parliament is also bad, and cannot be sustained ; though a convention between two coach proprietors has been held not to be illegal as in L-'Hcam v.^' restraint of trade. Griffith. Where both parties are in fault, or (as the law ex- i Term Reports, presses it) in pari delicto, if one of them seek relief he ^^^" must do what is just; according to the principle esta- blished in the court of equity, that he who asks equity must do equity. It has been held, that if money be given to an agent to be paid over in pursuance of an illegal purpose, and, before the money should be so paid over, a countermand be given, the agent, being in the -^^.^^^ . nature of a stakeholder, is bound to return the money, Tuvior?'. and is liable to an action in case of his refusal to do so. '^^' There is, in fact, a distinction upon this subject between contracts executed, and such as are executory ; and Mr. Justice Heath has said, " 1 think there ought to ^ Bosanquet & " be a locus panitentia, and that a party should not be Pu"<-r, 471. *' compelled against his will to adhere to the contract." If a party lend or pay money on the account of another, and the borrower or receiver applies it to any purpose prohibited by act of Parliament, a bond given for the repayment of the loan is not void. The lender is not concerned in the use which the other makes of 4 Burrow, 2072. the money, and the transaction between lender and bor- rower is fair and honest : to be sure, if the lender were concerned in the illegal purpose, the bond would be vitiated. And so a bond given for money advanced by a third person to make up differences arising out of „ey ^,^ fiey.^' " stock-jobbing, is not void. "''"^• ** Where a contract is to be rescinded at all, it must of rescinding " be rescinded in toto, and the parties put in statu quo." g^'Eus"*^"l2 bv So that where the plaintiff paid 10/. in consideration Lord Eiien- that the defendant would execute a lease of some pre- "'""° '" 332 5 East, 449, Hunt V. Silk, 6 Barnewall & Cresswell, 534, Roper V. Coombes. 7 TermReports, 181, Giles V. Edwards. or CONTRACTS AND LIABILITIES: [Ch. 2, mises, and he entered upon the premises, and occupied them for some time, it was held, upon the above prin- ciple, that he could not recover back the loZ., having paid it in confidence before he was bound ; he might, indeed, declare upon a special contract, but he could not, by quitting the premises, entitle himself to a return of the consideration money, as he had commenced his occupation. But in the following case the plaintiff's right to rescind his contract was recognised. He agreed to take a lease from the defendant, and pay 1,000/. for it. He paid 10 /. at the time, by way of deposit, and it was stipulated that he should pay 90 1, more in a few days afterwards, and the remainder upon having possession of the premises. When the time for paying the 90 /. arrived, he demanded an abstract of the lessor's title, which being refused, he gave notice that he would rescind the contract, and brought his action to recover the deposit. It turned out that the defendant had no right to grant the lease, and the Court held the plaintiff entitled to recover. Or where this breach of the contract arises from the negligence of the party to whom money is to be paid afte)' the term stipulated for payment, the plaintiff may recover. As where there was an agreement for the sale of so much cord-wood, the money to be paid on the 1st of March ; the plaintiff paid twenty guineas on the 8th of March, and then the defendant neglected to cord the remainder of the wood according to his contract. It was held that these twenty guineas might be reco- vered back by the plaintiff. The seller of goods, on the buyer's refusing to com- plete his contract, requested the buyer to sell them for him ; the buyer agreed to do this, but could not ; the plaintiff then brought an action, and the Court held that the contract had been rescinded by this request of ». 3-] RESCINDING OF AGREEMENTS. 333 the plaintiff, and that it was no answer to say that the 3 Maule & Sel- plaintifF acted under ignorance of the law. The maxim merJ^Bondr ignor ant ia juris non excusat, was in point; for it is an established rule, that if a party choose to pay over money with full knowledge of all the facts of the case, he cannot afterwards recover it back, upon finding that he needed not to have made the payment according to law. It is widely different where money is paid under ^..^^^^g^^^ C^J a mistake of the fact. As where silver had been as- v.'Prentke. sayed at so much, and the plaintiffs had accordingly paid the price, but it afterwards turned out that the assay was incorrect ; it was holden that the plaintiffs might receive the difference between the true and the supposed weight: "Our decision," said Lord Ellen- borough, " will not clash with the rule, caveat emptor ; *' for here both parties were under a mutual error, nei- " ther of them being to exercise, nor exercising, any id. 349. " judgment upon the subject." The rescision of payments under contracts is almost identified with this subject. If money be specifically appropriated to any particular purpose, it cannot be recalled, if there be an express contract with the per- sons entitled to receive it that it should be paid to them, but a mere remittance of cash for a particular payment is not necessarily such an appropriation. As where the acceptor of a bill, payable at his bankers in London, remitted them funds to satisfy it, but, on finding the bill dishonoured and sent away, he recalled the remittance ; it was held that the bankers were not trus- tees for the holders of the bill under these circumstances, _ ' 7 Taunton, 339, and that they were not bound to retain the money : Stewart v. F17. judgment was given for the bankers, the defendants. But it has been held, that where bankers paid a bill with a forged acceptance, without endeavouring to ascertain whether the instrument were genuine, they could not recover the sum so paid from the holder of 334 6 Taunton. "76, Smith V. Mer- 1 Broclenp& Bingham, 'i^g, Martin v. Mor- gan. 1 Term lie ports, 136. OF CONTRACTS AND LIABILITIES : [Ch. 2, the bill, all parties being ignorant of the fraudulent transaction. By Gibbs, Ch. J. : " If the plaintiffs had " originally refused to pay this money, the holder would " have immediately given notice to the drawer and to " the immediate indorser, which would have been trans- " mitted to the first indorser and drawer." The defen- dant kept the money for a week before the discovery of the forgery, and then it was too late to give the proper notices to the respective parties. So the payment may be rescinded where a false repre- sentation has been made, or any illegal means have been resorted to. Bankers, not knowing that a cheque was post dated, and expecting funds from the maker of it, paid a sum of money for his honour ; discovering, how- ever, that he was insolvent, they sued the holder of the cheque for the money so paid, and the Court thought them entitled to recover ; for the holder, being cognisant of all the circumstances, would have profited by his own illegal connivance, if he should have been allowed to retain the money so obtained. And when a contract has been once dissolved, it cannot be again revived. The notice that the party is desirous of abandoning a contract which he has liberty to rescind, must be made within a reasonable time ; for if the contract be not put an end to, damages for a want of it can only be recovered, and not a payment made in pursuance of it. In a late case, a special jury in London said, that unless the name of the purchaser have been previously communicated to the seller, if the payment is to be by bill, the seller is always understood to reserve to himself the power of disapproving of the sufficiency of the pur- chaser, and annulling the contract : and Lord EUen- boroush considered the usage reasonable and valid. But in the case before the Court the defendant waited five days before he started any objection to the purr S. 3-] RESCINDING OF CONTRACTS. 335 chaser's sufficiency, and the Chief Justice thought that time a longer period than the exigency of commerce would permit: the jury found a verdict without hesi- ^ ^ ... tation for the plaintiff. The goods (tobacco) were to 530, Hodgson be paid for by bill. The buyer's neglect does not entitle the seller to put an end to the contract, and notice given to the pur- chaser to fetch away the goods does not discharge the Campbell vendor from his contract, so as to enable him to resell 426, Greaves v. ,1 Ashliii. them. The remedy is for the seller to charge warehouse-room, or to bring an action for not removing the goods, should id. 427. the delay be prejudicial. It must, however, be con- fessed, that this law is not consistent with the opinion of Chief Justice Holt, in an old case : " After earnest " given, the vendor cannot sell the goods to another " without a default of the vendee ; and therefore if the " vendee does not come and pay and take the goods, " the vendor ought to go and request him ; and then if * Salkeld, 1 1 3. " he does not come and pay and take away the goods in " convenient time, the agreement is dissolved, and he " is at liberty to sell them to another person." This opinion is recognised in a case of more modern 7 East, 571. date. Again, when the performance of a contract is to de- pend upon something to be done by one of the parties, but which, in fact, is not done, either within the time specified, or, if no time is expressed, within a reason- able time, the other party may abandon the contract Comyn, p.39, altogether. We have seen, that when a month's trial of a horse was allowed, and the seller before the month's end desired the customer to return the horse if he did not like him, and the intended buyer observed, that he liked the horse but not the price, yet kept him ten days longer j the 336 1 New ReporlSj 257, Ellis?;. Mortimer. Remedies on breach of con- tracts, &c. 2 East, 449, Dowdiiig 1;. Mortimer, cited. SelwjTi, p. 645. OF CONTRACTS AND LIABILITIES : [Ch. 2, seller could not in this case recover for the horse, for the contract was rescinded. We cannot here fully discuss the law touching the various remedies for breaches of contract, or deceit upon the sale of goods ; they are sufficiently well known, and are treated of in the practical books which speak of actions in our courts. It is very common, and, per- haps not unwise to refer disputes among commercial men to arbitration, and where accounts are of a compli- cated nature, justice cannot be more effectually accom- plished by any other method. On the action of deceit (s), however, as it imme- diately respects the sale of goods, a few observations will be made. This suit may be successfully maintained against a merchant who knowingly sells a bad commo- dity, for it is a breach of an implied warranty. But it is necessary to show that the vendor was aware of the bad quality when he disposed of the goods, as in a case be- fore Lord Kenyon upon the sale of a musket. So an action in the nature of deceit may be sustained for the breach of an express warranty ; the gravamen is the deceit, and the gist of the action the guilty know- ledge of the false warranty. If one assert that a personal chattel is his own, and sell it as such, when in point of fact it belongs to another, the vendee may recover a compensation in damages for the injury he has sustained in consequence of the deceit. With regard to the action of deceit lying in conse- quence of the false affirmation of another, it must be taken with this qualification, that the individual sup- (5) If there be a collateral agreement that the thing pur- chased may, if disliked, be returned, the action of deceit is, nevertheless, maintainable. 2 Starkie,i62, Wallacev.Jarman. S. 30 ACTION FOk DECEIT. 337 posed to be misled has not had an opportunity of exer- cising his own judgment upon the matter. If a man purchase a bhnd horse with his eyes open (that is to say, if, according to the observation in the year books, he be not blind himself), if he agree to purchase a house warranted in good repair, which has nevertheless no roof to it, or a ship so visibly damaged as to be a mere log, though warranted in a good and seaworthy state • these would be such glaring proofs of want of common p*^6.^ 7/a'> carefulness as to prevent him from sustaining this action These deficiencies are obvious ; any man, upon making the most ordinary investigation, can assure himself of the fallacy, and he must therefore abide the conse- quences of his remissness. Vigilantibus non dormientibus jura snbveniunt. A person about to buy a share in a trade for the pur- pose of selling again, represented to the seller that certain persons, whose names he would not disclose, were to be purchasers jointly with him, and that they would give no more : in point of fact, the party in question had been authorized, on behalf of those other persons, to make the best bargain he could, and he actually charged the several purchasers with a higher price than he gave. The purchase being made, and the vendor discovering that the other persons would have given more, brought his action for the difference ; but the Court held that such a proceeding 12 East, 632, could not be maintained, for the buyer was under no ^'■°°"*'* *^y^- legal obligation to the seller for the precise accuracy and correctness of his statement, upon which, therefore, it w^as the seller's own indiscretion to rely ; and upon an argument in the Exchequer chamber in error brought to reverse the judgment of the court of King's Bench, Mansfield, C. J. said, " The question is, whether the " defendant is bound to disclose the highest price he 4 Taunton, 493- f' chooses to give, or whether he be not at liberty to do " that as a purchaser which every seller in this town it 33^ OF CONTRACTS AND LIABILITIES: [Ch. 2, " does every day, who tells every falsehood he can to " induce a buyer to purchase." Agajn, where a ship was bought in an exceedingly bad condition, which the plaintiff had an opportunity of seeing if he had thought proper, and which he did in reality examine, the Court would not allow him to recover damages, because the j*.^^""^°"' 779. vessel was unseaworthy/ and was subsequently con- Dowsoii.° . 'demned abroad-, as being • incapable of the voyage. If any concealment be purposely made use of to conceal defect, the case is reversed, as we have already seen on a former occasion (iv). However, where an individual, with an intent to de- ceive, makes a false communication (a) to another, where by a contract is entered into to the injury of the party so led iiito mistake, it is quite competent for him to ask for damages at the hands of a jury, commensurate with the mischief which has been done. And it is not neces- sary that the defendant should have derived any benefit from his fraudulent misrepresentation. So that, where it was falsely and wilfully asserted, that one F. was a person safely to be trusted, whereby the plaintiff intrusted him with goods, and was defrauded, it was held that an 3 TermRepoits, action would lie against the defendant so falsely speak- Freeman/ ^* ^^S "^ favour of another's credit. A suppression of the truth is a sufficient misconduct to sustain this action. Where a man had credit with a certain firm, on this con- dition, that goods to treble the amount of the credit should be lodged with the correspondent of the firm, and the defendant took upon himself to say that the person credited in that peculiar manner had credit with (iv) The reader will find much information on this subject of concealment, as far as regards sales by auction, in Babington's Law of Auctions. (x) Which, by the new Act, 9 Geo. IV. ch. 14, s. 6, must in most cases be in writing. S. 3.] ACTION FOR DECEIT. 339 a respectable house, so that a sale of goods might be safely effected; suppressing the stipulation, and adding, that he gave the advice without prejudice to himself, £^^^^1,' Omi's- the Court held, notwithstanding, that he was liable : ford. " One man applies to another to know the character of *' a third person, who offers to contract with him ; that " other need not have answered the inquiry, but if he ** does, he is bound to give a fair representation of what By LordKen- " he knows." But an incautious statement does not ^°"' amount to such a misrepresentation as will support an action for deceit. And so it was held, where one party gave another a character for good credit, which he be- lieved at the time was just; for the fraud is not in , , . ... . . , 2 East, 02, assertmg that the matter is true, but in stating positively Hajcrait v. that which is known not to be true. And so it was Creasy, where an arbitrator, after stating various reasons to jus- tify his finding fraud and deceit, declared, " I acquit " the defendant of all collusion with B." &c. but ne- vertheless awarded damages for misrepresentation and omission; here the Court gave judgment to set the 'award aside, because, having once acquitted the party of fraud, the arbitrator could not afterwards adjudge damao-es against him, when fraud, the gist of the action, 8 Taunton, 637, ^ p ' : ° Ames V. Mil- was negatived on the face of the instrument (^r). ward. An assertion that seven and a half cwt. of barilla would make a ton of soap, is not the same as an asser- tion that A. B. had used it, and made, &c. and there i Carrington, 166, Honicastle (3/) The vendor of a public house made deceitful repre- sentations of the value of the property, so that the plaintiff was induced to give a larger sum for it than he would other- wise have done. It was considered that he should recover, although these exaggerated statements were not noticed in a written memorandum of the bargain drawn up afterwards, in the conveyance of the premises. 3 Barnewall & Cresswell, 623, Dobell v. Stevens. 2. 2 Moat. 34^ OF CONTRACTS AND LIABILITIES*. [Ch. 2, being no warranty, nor proof of guilty knowledge, the plaintiff was nonsuited in an action upon the case. The fraud and deceit is a question for the considera- tion of the jury, and the liability usually extends as far as the value of the goods furnished through the repre- sentation. But supposing that the seller of goods, in consequence of a false statement, open an account with a customer, who pays for the Jirst parcels, but subse- quently makes default, the person giving the represen- tation will be liable for the loss, provided it happen, 564. and the claim be made within a reasonable time. Where the plaintiff wrote a letter to say that he would not give credit for more goods without a more satisfactory refe- rence, but still continued his dealings with the customer. Id -^^B HQt h- ^^ ^^^^ \'iii^^ that he could only recover for the deficiency inson v. Bell. at the time of writing the letter. ADDENDA TO CHAP. TI. Page 203. — One of Lord Tenterden's Acts has ex- tended the provisions of the Statute of Frauds in this respect : " Whereas it has been held that the said recited 9 Ueo.lV.c. 14, s. 7. " enactments (2) do not extend to certain executory " contracts for the sale of goods, which nevertheless are " within the mischief thereby intended to be remedied; ^ and it is expedient to extend the said enactments to '' such executory contracts : be it enacted, that the said *' enactments shall extend to all contracts for the sale (2) 29 Charles 2, c. 3, and the Irish Act, 7 Wm. 3, c. 12, S. 3-] ADDENDA TO CHAP. II. 34! ** of goods of the value of ten pounds sterling and up- " wards, notwithstanding the goods may be intended *' to be delivered at some future time, or may not at the " time of such contract be actually made, procured or " provided, or fit or ready for delivery, or some act may " be requisite for the making or completing thereof, or " rendering the same fit for delivery." Page 261. — By 9 Geo. 4, eh. 14 (one of Lord Ten- terden's Acts), s. 6, it is enacted, that no action shall be brought whereby to charge any person upon or by reason of any representation or assurance made or given concerning or relating to the character, conduct, credit, ability, trade or dealings of any other person, to the intent or purpose that such other person may obtain credit, money or goods upon (a), unless such represen- tation or assurance be made in writing, signed by the party to be charged therewith. Page 272. — The mere fact of the delivery of an ac- j simons & count, without evidence of acquiescence, does not afford Stuart, 333, a sufficient legal presumption of settlement. Page 272. — Statute of Limitations : By 9 Geo. 4, c. 14, it is enacted, that in actions of debt or upon the case, grounded upon any simple contract, no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing con- tract, whereby to take any case out of the operation of the said enactments (6), or either of them, or to deprive any party of the benefit thereof, unless such acknow- ledgment or promise shall be made or contained by or (a) The words " such representation or assurance" seem to be wanting here. (6) That is the English or Irish statutes, z 3 34'2 OF CONTRACTS AND LIABILITIES: [Ch. 2, in some writing to be signed by the party chargeable thereby. — And that, where there shall be two or more joint contractors, or executors or administrators of any contractor, no such joint contractor, executor or admi- nistrator shall lose the benefit of the said enactments, or either of them, so as to be chargeable in respect of or by reason of any written acknowledgment or promise made and signed by any other or others of them : Provided always, that nothing herein contained shall alter or take away or lessen the effect of any pay- ment of any principal or interest made by any person whatsoever. Provided also, that in actions to be commenced against two or more such joint contractors, or executors or administrators, if it shall appear at the trial, or other- wise, that the plaintiff", though barred by either of the said recited Acts or this Act, as to one or more of such joint contractors, or executors or administrators, shall nevertheless be entitled to recover against any other or others of the defendants, by virtue of a new acknow- ledgment or promise, or otherwise, judgment shall be given and costs allowed for the plaintiff as to such defendant or defendants against whom he shall recover, and for the other defendant or defendants against the plaintiff. By the third section of the same statute, no indorse- ment or memorandum of any payment, written or made after the time appointed for this Act to take effect, upon any promissory note, bill of exchange, or other writing, by or on the behalf of the party to whom such payment shall be made, shall be deemed sufficient proof of such payment, so as to take the case out of the operation of either of the said statutes. By s. 4, the said recited Acts and this Act shall be deemed and taken to apply to the case of any debt ©n simple contract alleged by way of set-ofF on the St 3.] ADDENDA TO CHAP. II. 343 part of any defendant, either of plea, notice or other- wise. 4 IMaddock, Page 286. — Bankers, the agents of executors, and authorized by them to receive certain assets, remitting the amount to the executors in the course of their duty as agents, and afterwards applying the assets, when 332, Keane v. received, in payment of the amount of such remittances, " '^"*' are not responsible in respect of a misapplication by the executors ; such bankers not being privy to any inten- tion of such misapplication. z 4 344 SECURITIES POIl MONEY, AND INTEREST: [Ch. 3, CHAP. III. OF COMMERCIAL SECURITIES FOR MONEY, AND INTEREST THEREON, &c. Sect. 1. Bonds. 2. Bills of Exchange and Promissory/ Notes. 3. Intered. 4. Usury. 5. Siock-Jobbinrr. SECTION I. See 4 Maule & Selwyn, 66, Newman v. Newman, a Bosanquet 8c Puller, 338, Elliot V, Davis. OF BONDS. IT is clear that a bond conditioned for the perform- ance of an illegal act cannot be enforced either at law or in equity. The qualifications of and exceptions to this rule, under particular circumstances, have been stated in a former page. As, for instance, that a bond given for the repayment of a loan used for an improper purpose, is good, the lender not being privy to the wrong application of the money. A bond may be good as to the performance of some of its conditions, though in- valid as to others ; as if it were conditional to pay money upon the conveyance of an estate, and to carry a simoniacal contract into question, the illegality of the latter condition would not vitiate the bond generally. The execution of a bond binds the party who attaches his signature to and delivers it, though he do this as a joint and several instrument for himself and another person ; he is estopped from saying that it is not his S. 1.] OF BONDS. 345 bond. And when a bond is produced in court, with all the requisites necessary to the vahdity of such an in- strument, as the signature and seal, althouoh the wit- ^ . . ^ _ » 1 Carrington, ness may not be able to speak, to its delivery, the Court 417, Ball v. will presume such delivery, ^^ '"^" It seems that the recital of a bond is the proper key to its meaning, and that the generality of a condition wall be restrained where it is inconsistent with the pre- g^g ^ Maule & vious recital. Selwyn, 369. If the condition of a bond should be ever so impro- bable, as if the Pope of Rome should come here to- morrow, yet that condition is a good condition. The condition was, that a bond should be void if a bill should be paid at Bombay, or paid here by the obligor within thirty days afier the bill should be produced to 6 Term Reports, him after being sent back here protested for non-payment. ^^Frenc'i"'' ^ The bill was sent back protested for non-acceptance, and the bond was considered not to be forfeited. If there should be an impossible condition, it is of course otherwise. Next, as to the forfeiture of a bond. If any part of ^ TermReports, the condition be violated, the forfeiture accrues, as if 97. interest be not paid in consequence of an omission ; but ^ ^^^^^ ,. „ in the latter case, the Court will probably relieve against Aiderson, 214, the consequences ot the j udgment. ^ , The extent of security which a bond gives, is to the amount of the penalty, and the costs incurred in recover- ing it. So that, on payment of the penalty and costs, an action may be stayed. There was a bond to indem- nify, the defendant failed to fulfil his contract, and the question was as to the measure of the damages. Lord Ellenborough said, that he did not see any measure of aStarkie, 167, damages, except the penalty of the bond, for which Wood r. Wade. a verdict was accordingly given. The measure for as- sessing damages on a bond for the replacing of stock. 346 SECURITIES FOR MONEY, AND INTEREST. [Ch. 3, 1 Carrington, is to take tlie price of the day of trial, or of the previous Harrison?'^"" '^' ^^Y' ^^ ^^J ^^ observed, that if a bond be improperly obtained, a court of equity will give rehef against it ; it is not such a payment and completion of the contract as will prevent such an interference. If no payment have been made upon a bond for twenty years, no interest paid, or demand made, it is presumed, in absence of evidence to the contrary, that the instrument has been satisfied. However, there may be a presumption of payment within a less period ; as where an account has been settled in the intermediate 1 TermReports, time, without any notice having been taken of the ^7'- demand. Remedy in case Where application is made to a court of equity for a bond be lost, relief in the case of a lost bond, an affidavit to that effect must be annexed ; but in a court of law it is suffi- cient to state that it has been lost by time or accident. It must be confessed that the more preferable rule is to compel the production of an affidavit, by which means of Debtor and fraud on the obligee's part may be more effectually Creditor,p. 175. punished, and probably prevented. Relief may be had in equity upon the occasion of a lost bond, as well against sureties as principals. But proper indemnities will be required against any demand 465. ' of the plaintiff, or any person claiming under him by virtue of the bond, together with the costs, losses and expenses incident to the losing of the instrument. S. 2.] BILLS AND NOTES. 347 SECTION II. OF BILLS OF EXCHANGE AND PROMISSORY NOTES. The doctrines which govern these commercial in- struments have been so fully and so ably discussed in the various treatises upon the subject, that it may, at first sight, appear to be an act of repetition to enter upon the consideration of them here. But in a work of this kind it cannot but be practically useful to con- solidate the different decisions upon so important a branch of our law-merchant, and to reduce within a rea- sonable compass such rules and distinctions as are deserving of attention. There are some general principles relating to a bill or note which may be mentioned in the first instance, i; ^^'•'^t » g^*''^ The instrument should be certain and unconditional, it should be given for the payment of money, and not for the performance of any particular act. So that bills drawn upon an uncertain fund, bills payable upon con- " tingencies, bills liable to be defeated upon the happening of a contingency, bills payable upon the sale of an estate or goods, are not such instruments as can be made available in a court of law. A promise to pay 300 I. to B. or order, in three good East India bonds, is not a note within the statute. Buller's Nisi X rius 272 " I promise to pay to J. E. the sum of Q^ L, with " lawful interest for the same, three months after date, ^ Starkie, 375, " and also all other sums which may be due to him." ingaie. This instrument was held too indefinite to be considered a promissory note, even for the sum specified (c). (c) The prisoner altered a note for one pound and made it ten, but did not alter the word pound. It was urged, that a note for ten pounds was .lot a money note. But the judges lield that it was. Bayley on Bills, 4th ed. p. 8, n._ Rex V. Post. 348 4 Maule & Sel- wyn, 25, Hart- ley «;. Wilkinson. Id. 26. 7 TermReportSj 733, Haussou lier V. H arts- ins k. 1 Burrow, 226, Goss V. Kelson. 1 Espinasse, 426, Fisher v. Leslie. SECURITIES FOR MONEY, AND INTEREST. [Ch. 3, " This note is given on condition that if any dispute " shall arise," &c. Here the money was not payable at all events, and therefore an action could not be maintained upon the instrument ; the party taking the note must have inquired into an extrinsic fact, in order to ascertain whether it were payable. " We promise to pay," &c. " 25 /., being a portion of " value as under deposited, in security for the payment " hereof," &c. This was a good note, because it was payable at all events. A promissory note was given to a person under twenty-one, payable when he should come of age, and specifying the time. This, again, was a good note ; it was at all events payable whether the party lived till he came of age, or died in the interim; it was to be paid, certainly, only the time of payment was postponed. So, orders to be paid within a limited time after a man's death, or after the payment of money due from the Government, are valid. " I. O. U. eight guineas." This was held neither to be a bill nor a note. But fraudulent evasions will not be allowed to prevail against an instrument which, but for some egregious error, would be perfect. " Borrowed " of jP. S. 50/., which I promise not to pay." Not to hold this a valid promise to pay, would be to lend assist- ance to knavery. " £.40. Place or Date. " Two months after date pay Mr. L. A., or order, ** forty pounds, value received." " at Sir John Perring &- Co." Dratver's Name. The word at was written in such small letters, and so enclosed in the turn of the S. in Sir, as to be scarcely perceptible. It was objected, that this was a promissory note, but the jury were directed to consider whether the little word at had not been introduced for S. 2.] BILLS AND NOTES. 349 the purpose of deception, and they found that it had 4 Campbell, been fraudulently introduced, whereupon the plaintiff Mawson. recovered. And so if the word at be substituted in- stead of to, the instrument will be considered to be 1 Campbell, a bill of exchange, though it may perhaps be treated as 4>7. Shuttle. ° o . worth V. Ste- a promissory note, at the option of the holder. phens. " I, J. C, promise to pay to A. F. the sum of '' 50/ ," &c. " J. C. or else H. B." An action was brought against H. B. This was held not to be a promissory note as against the defendant. It was an absolute undertaking on the part of J. C, and conditional only on the defendant's part, for he Alder"oT^6-q^ undertook to pay only in the event of J. C. not paying. Ferris v. Bond. So where the contingency rested on the name of the payee, the note was holden bad. The promise was to pay to A. B., or to the plaintiff, or to his or their order ; ^ Bamewall & and there was this contingency, that it should be paid Aiderson, 417, to the plaintiffs, if not paid to the other person {d). y_ Bluudell.^^' Bills or notes for less than 20 s. are void. So are bills or notes for less than 5 /., unless they state the name of the person to whom or to whose order tliey are payable, unless they be attested by one subscribing witness, and be made payable within twenty-one days after the date. The exceptions to this last regulation are bank of England notes, and notes payable to bearer on demand. Therefore, bills for the payment of a sum between 205. and 5/. must be dated. But it is not necessary that a bill or note should be dated, except under the direction of the Act of Parliament (e.) (d) If a bill be made payable two months after date, and no date be expressed, the Court will intend it to be payable two months after the day on wliich it was made. 3 Bosanquct and Puller, 173. Hague v. French. (e ) " Received of A. B. £.100, which I promise to pay on demand, with lawful interest." This is a promissory note. 4 Bamewall & Cresswell, 235, Green v. Varies. 250 2 Bosanquet & Puller, 413, Hill V. Halford. 3 Campbell, 303, Houriet i;. Morris. Barley, p. 25 SECURITIES FOR MONEY, AND INTEREST: [Ch.3', It seems that no subsequent event can make that instrument a bill or promissory note which, in its ori- ginal state, was defective as such. So that, although a condition mentioned on the face of a note be fulfilled, as where a sale took place, which was the condition mentioned in the security, the note was nevertheless held to be vitiated. It need scarcely be observed, that an illegal consi- deration will vitiate an instrument of this nature, as it does every other order for the payment of money. But a note is not necessarily void because made in an enemy's country. The contracting parties were a British subject and a neutral, the transaction in question hap- pened in Paris. The action was brought by the manu- facturers of Swiss watches, against the defendant, an Englishman, as the maker of several promissory notes. The trading in an enemy's country was objected on the defendant's behalf. By Lord Ellenborough : " The " plaintiffs, who are domiciled in Switzerland, might " lawfully sell their goods in Paris ; and it is not proved " that the defendant, who is a British subject, pur- " chased them there for any illegal purpose (/)." The ordinary direction in bills is to make them pay- able to the payee's order, or to bearer. The first makes the instrument negotiable by indorsement (g), the second by delivery. And a bill payable to a fictitious payee has been held, by the sanction of many decisions, to be a bill payable to bearer, as against a parti/ cognisant of the transaction, whether drawer, acceptor, or other- (y) A subsequent promise in time of peace will create a new consideration, and the drawer will then be liable. 2 Starkie, go, Duhammelw. Pickering. (g) A foreign note is negotiable in England py indorse- ment under 3 & 4 Anne, eh. 9. Moody & Malkin, 66, Bentley v. Northouse. S. 2.] BILLS AND NOTES. 351 wise. So that the parties, if cognisant of the fictitious state of the bill, may be sued by a bonajide indorsee. It is not, indeed^ necessary that the words " order " ^ J"™^^^P°/''' or " bearer " should be inserted to give vaUdity to the Ke/idaii. instrument, though it is superfluous to say that the common practice is to insert the one or the other. But the name of the payee should be put in when the bill is made payable otherwise than to bearer ; and althougli Bay ley p- 29. there be a wrong description of the payee, yet if there be no doubt of the person, the bill will be good. A bill had been drawn, and a blank left for the name of the payee ; the plaintiff, to whom it came by indorsement, inserted his own name as payee. It was objected, that he had no right to do this ; but by Lord Ellenborough : " As the defendant has chosen to send the bill into the " world in this form, the world ought not to be deceived ^yn^go^, Crucii- " by his acts. The defendant, by leaving the blank, ley u. Clarance. " undertook to be answerable for it when filled up in " the shape of a bill." So an indorsement written on a blank note or cheque, is a letter of credit for an inde- " finite sum ; it will bind the indorser for any sum, and to any time of payment, which the persons to whom he Douglas, 514, intrusts the instrument chooses to insert in it. Langstaffe. A bill payable to a man's own order is payable to himself, if he do not order it to be paid to any other ; and if no order appear, it is to be presumed that none has been made. A drawer may therefore sue upon a bill payable to his own order, although he may not have g,^;thV' made any order. M'Ciure. It is not necessarij that a bill should be expressed to Bayley, p. 34, , „ , . / , . , ^1 White V. Led- be for value received ; nor need it be so expressed even ^ ich. under the Coal-brokers Act, so far as to ensure the validity of the bill ; but, under an Act, a severe penalty may be inflicted for the omission of it. * Starkie, 463. The following memorandums on a bill or note are said not to controul its operation : a memorandum stating 352 SECURITIES FOR MONEY, AND INTEREST: [Cll. 3, where it shall be payable ; a memorandum of acceptance on a note payable after sight ; a memorandum by way of direction to the payee's executors, in case of his death ; one which cannot be read for want of an agree- ment stamp ; one which has an attesting witness, and Ba^fley, p. 35. cannot be read because of his absence. Of the Stamp. a. Stamp. The reader is referred for the stamp duties upon bills and notes to 55 Geo. 3, c. 184, which is the last conso- lidating Stamp Act, and to the treatise of Mr. Justice Bayley, pp. 67. 78, where the various and respective stamps applicable to each instrument are set out at length. The condition of an unstamped security of this kind, and the consequences of neglecting the proper stamp, deserve a short consideration. Such an imperfect paper cannot of course be received in evidence ; but where the defence was, that the defendant, at the time of giving a promissory note, was made drunk by the plain- tiff, and induced to write it, Lord Ellenborough observed, that although it could neither be put in evidence as a security, nor to favour the loan of money, it might be 3 Campbell, looked at by the jury as a contemporary writing, to Fras'er ^^""^^ ^' P'^'^'^^ ^^ disprove the fraud imputed to the plaintiflP. An action was brought for goods sold and delivered. The defence was, payment by a bill indorsed over by the defendant to the plaintiff, which the defendant re- fused to pay by reason of laches. The plaintiff showed that the instrument was drawn on a stamp of inferior value, and was consequently no evidence. The defen- dant said to this, that the acceptor's clerk had, notwith- standing, orders from his master to pay the bill, and at the time when the bill should have been presented wTiJoifr'^^^' he had assets for the purpose; but the Court rejected Vjsar. the defence, by reason of the invalidity of the bill. S. 2.] BILLS AND NOTES STAMP. 353 A bill is not to be considered as drawn till the party signs it ; so that where the body of one was written in this country, and it was accepted here, and then trans- mitted to the drawer abroad for his sisrnature, it was ^ - o ' _ Oow, 50, held to be a foreign bill, and so not to require an Koeiim v. English stamp. So where partners, resident in Ireland, ^™^ ^ ' signed and indorsed a copper-plate impression of a bill of exchange, but left blanks for the date, time of pay- ment, and drawee's name, upon which the bill in ques- tion was transmitted to England, where another party filled up the blanks and negotiated the bill; it was tvvn.By, Sn-iitii held, than an English stamp was not necessary. t. Mhii^'ay, These bills and notes following need not be stamped : Such as are issued by the bank of Enoland ; o t, t •' . See iJinley, Such as are drawn pursuant to Acts of Parliament, for p. 67. the pay and expenses of the army and navy ; Such as are drawn for the payment of less than 40 s. ; Certain Scottish notes, &c. ; Drafts on bankers. But the bankers on whom the drafts are drawn must be residing within ten miles of the place whence they are issued, and the place must be specified, and the instrument must not only bear date on or before the date on which it is issued, but must not direct payment to be made in bills or notes. Neglect of compliance with these latter regulations subjects the offender to severe penalties. There is a penalty of 100/. against any person wlio gives a false date, so as to make a note or bill, whicli really exceeds two months after date, or sixty days after sight, an appearance as though there were no such excess. Notes payable to bearer, not exceeding 100/. and duly stamped, may be reissued without a new stamp, after payment, as often as may be thought fit. But A A 354 SECURITIES FOR MONEY, AND INTEREST*. [Cll. 3, there must be an annual licence taken out for that pur- pose ; and it must be a distinct licence for each town or place, where notes are issued in several towns or places (h). Peake's N. P. It is no defence to an action on a bill, that it was not w^aht')''''^' stamped at the time of making it, if it appear duly Riley. Stamped at the trial. Lastly, if a bill or note bear a stamp of the proper denomination, it is now no ground of objection to it, that it is of greater value than that required by law ; nor, indeed, if it have a stamp of a different denomi- nation, unless such stamp be specially appropriated to some other instrument, by having its name on the face thereof. It has been the constant practice to measure the stamp duty by the principal sum secured ; wherefore it 4 Barnewaii & is that the addition of interest on the face of the bill Aldersoii, 204, .,, . .1 . Prussing v. Ing. Will not mcrease the stamp. Date and sight are not always synonymous. Assump- sit was brought on a promissory note payable two months after sight. It was contended, that this was a note for payment at a time exceeding two months after date, or sixty days after sight, and that a higher stamp was requisite ; and the Court held it to be a note payable more than two months after date, for the two 4 Barnewaii & months after sight do not begin to run from the day of Aiderson, 592, ^j^g date, but from the date of the note being presented Sturdy v. Hen- ^ . , derson. for Sight. So a bill payable at sight is not to be considered as ^l^nsou r ^^' ^ ^^^^ payable on demand ; for the usual days of grace Thomas. are allowed on bills payable at sight {i). (h) See the exceptions to this in Bayley, p. 86. (0 A note payable to bearer generally, and, therefore, in law, payable on demand, requires a 5 s. stamp under S. 2.] niLLS AN'D NOTES — ALTERATION. 355 Of altering Bills or Notes, The principle on which a deed is vitiated extends to 3. Alteration. a bill of exchange ; it is evidence of a contract as much as a deed, and the principle to be extracted from the XermRe orts cases is, that any alteration avoids the contract. So 331- that where a bill was altered after acceptance, an inno- cent holder for a valuable consideration was held incom- ^, Id. 3C!0, Maslff petent to sue upon it. v. Miller. The alteration materially varies the contract of the party who accepts. So that where the drawer, after keeping an accepted bill, payable at B. S; Co. for three or four years, erased B. S; Co. and substituted E. Sf Co. 1 Maule & Sti- without the acceptor's knowledoe, it was held that under ^^'y"', ''^^' ^"*° 1 & ' _ niarsli r. these circumstances the acceptor was not liable. Grover. The drawer, without the acceptor's knowledge, added the words, " payable at Mr. B.'s, Chiswell-street :" this ^ Bamewall & alteration discharged the acceptor; and the stat. 1 & 2 Aldersou, 197, Geo. 4, which enlarges the rule of acceptance, does not sail. alter the law in this respect ; for the acceptor, not having in reality undertaken to pay at that particular place, %^"^^'^°°*^-^' would commit no default by such nonpayment. v. Ha^don. But a bill is capable of alteration before it has passed 2 Starkie, 46. into a state of negotiation, particularly if the alteration be made for the correction of a mistake, and be made with the acquiescence of the party,- and there are several authorities to that effect. So an acceptor may change his mind before the bill is communicated to the holder ; in the words of Pothier, " il pent chans,er de volontc, et '{ T;*iinewali & ' t^ o ' AUlersoii, 474, " rayer son acceptation.^' Cox v. Troy. 58 G. 3. 0. 184. 2 Barnewall cv Cresswell, 157, Whitlock v. Underxmod. The word date in the Stamp Act is intended to denote the period of payment on the face of the bill itself. Id. 10, Up- stone v. Marchant. A A 2 356 SECURITIES FOK MONEY, AND INTEREST! [Ch. 3, The defendant, a party to a joint and several note, paid part when it became due, and signed a joint note for the residue ; this was interlined, without his know- ledge, with the words " jointly and severally/' and the „. , o instrument was held void for the alteration, as against 4 Bingham, q8, . 'is Perring ii.Hone. him. The mere rectifying of a mistake is not such an alte- ration as will vitiate a bill. The agent for the drawer and acceptor discovering, when the bill was given to him for the purpose of being transmitted to the indorsee, that the date was January 1822, instead of January 1823, altered it accordingly, without seeing either the drawer or the acceptor. By Abbott, C. J.: " I shall leave it " to the jury to decide whether this bill was not dated RyanS: Moody, « by mistake, i822." Verdict for the plaintiff, and in Picard. SUpport 01 the Dill. Many alterations have been objected to, when the bills have been produced in court, on account of the necessity of a new stamp ; and though the amendment have been made with the consent of all parties, yet if it be in a material part, the instrument will be vacated for want of such new stamp. These material alterations may be of the date, sum, time of payment, making a SeeBayley, 91. bill or note negotiable which was not so originally, &c. So where a promissory note, originally expressed to be for value received generally, was altered l)y adding these words, " for the good will of the lease and trade of " Mr. F. K. deceased ;" it was held that the additional words were material. The defendant was originally liable on the note for value received generally, without specifying in what that value consisted ; and the effect of the alteration was to narrow the value from value received in general to the value expressed. It was evi- dence against the other party, of the true con^deration of the note ; or if it were wished to restrain its circu- lation at large, it might have been put upon those who S. 2.] BILLS AND NOTES — TKANSFEK. 357 took it to inquire whether that consideration had lo East, 431, • , J KniU V. Wil- existed. ^ u^,,,,. So where parties had exchanged their acceptances, the bills could not be post dated without a new stamp, although each had remained in the hands of the respec- cf^dweU^"' tive drawers during the interval (j ). But words written Martin. on the bill, which do not affect the responsibility of the parties, neither vitiate the bill, nor create the necessity of a new stamp. As where a mere memorandum was added, denoting where the bill was to be payable, and which memorandum was in that respect a right direc- „ Marsou J. tion (k). And further, if there be an assent by all the ^^tit. parties connected with the bill to any alteration, a new stamp will not be requisite until the instrument has got into the hands of some one entitled to claim by virtue of it; and this, although it be accepted and indorsed, provided, as before, that the party so accepting and indorsino; ao-ree to the new arrano-ement. Barley, p. 94, It lies on the party who sues upon the bill to show ^Starkie, 313, that the alteration took place before the negotiation ; of Marlborough. and proof of its being in the drawer's hands after accept- See 15 East, ance is prima facie evidence to that effect. Taylor.'* A bill is not vitiated by cancelling the acceptance 15 East, 17, through mistake. ,^"i'^'" "• ^''■''- "^ . beck. Negotiaiion and transfer of Bills and Notes, and of the Title acquired thereby. A bill of exchange is negotiable ad infinitum until it 4- Transfer. has been paid by the acceptor, or discharoed on his 3fti»"ic&Scl- (j) So, Messrs. S. & C. instead of Messrs. S. C. & Co. Moody & Malkin, 14, Farqiikarv. Southeij. {k) An alteration on an accommodation bill, before it is negotiated for value, will not entail the necessity of a new stamp. 5 Barnewall & Alderspn, 674, Dovuncs v. Richardson. A A 3 358 SECURITIES roil money, and INTEREST: [Ch, 3, behalf. If dishonoured, it may again be negotiated 3 Maule & Scl- vvithout a fresh stamp, provided no prejudice accrue wyii. 95, Callow 1 1 -11 A 1 • i). Lawrence. thereby to any party to such bill. And so it was, where 4 Bingham, 390 the drawer paid a dishonoured bill, and passed it to the Jackson. ' plaintiff, it was held that the plaintiff might recover against the acceptor. We have seen that bills payable to order are transfer- able by indorsement (/ ) and delivery, and that bills payable to bearer are assigned by delivery only. A blank indorsement (w), as long as it continues so, makes a bill or note payable to the bearer. A bill was indorsed in blank by the payee, and, after several in- dorsements, it came by a special indorsement to one J. who did not indorse it, but sent it to other persons, who discounted it with the plaintiffs. It was objected that . the negotiability was restricted by this special assign- Prius Cases, mcnt, and that the plaintiffs could not recover without CiSke!"'*''"' ^^ indorsement from J.; but by Lord Kenyon : " The " fair holder of a bill may consider himself as the " indorsee of the payee, and strike out all the other Barley, p. 98. " indorsements." If a person do not indorse a bill, he ceases to be a party to it as soon as he delivers it to the payee. Nevertheless, there may be such full indorsements as will restrict the negotiability of the bill. We will men- tion two or three by way of example. An indorsement was made in these words ; " The within must be cre- " dited to D. value in account." A forged indorse- (Z) The indorsement on bills for less than the payment of 5 /. must be attested by a witness. The name and place of the indorser's abode must also be mentioned, and it must bear date at or before the time of making it. {m) No particular form is necessary, and it may be made In pencil within the custom of merchants. 5 Barnewall & Cresswell, 234, Geary v. Fhysic. S. 2.] BILLS AND NOTES — TRANSFER. 35g ment, purporting to have been made by D. was after- wards put upon the bill, and the Bank of England discounted it with the person who carried it to them : it was held that they should abide the consequences of their own negligence, in not reading the special indorse- ment, which restrained the negotiabihty of the bill, and that the drawer, who took up the bill, should recover AnciS'l^^iJank against them in an action for money had and received, of England. " Pay to A. or order, on account of B." This is a special indorsement, and restricts the negotiability of the instrument. B. was held justified in bringing trover TreuuelT'li""' for bills drawn and made payable in this manner. randon. But stating a consideration in the indorsement does not check the currency of the bills. " Pay the contents " of the within bill to E. P., being part of the con- " sideration money in an indenture of assignment," Sic. Lord Ellenborough held this not to be a restrictive indorsement ; and as to the other words, they were surplusage, and could not affect the subsequent neso- 6 Espinassc, 57, • 1 •!• P 1 1 M, ^ o Potts j;. llecd. tiability 01 the bill. And an omission through mistake, of assignable words, will not operate as a check to the bill. As where the payee indorsed over, but neglected to insert the words ** or order," or any similar expression, it was considered that the bill, being originally in its nature negotiable, should not be thus arrested, and a new trial 2 Burrow, 1216, was granted, the jury having found against the indorse- Company'^' ment. If money be paid upon a transfer of a bill thus restricted, it must be refunded. It is worthy of obser- vation, that an indorsement cannot be made for the transfer of less than the full sum appearing to be due r. 1 « I I o Barley, p. lOO. upon the bill or note. If it be essential that a bill should be indorsed, the party giving it may be compelled to indorse it, for there is an equitable claim on the holder's part that it should be done. So that where the drawers delivered A A 4 360 SECURITIES FOR MONEY, AND INTEREST! [Ch. 3, over a bill for a valuable consideration, but forg^ot to indorse it, and became bankrupts, upon which their assignees claimed to have the bill, it was holden that the plaintiflP should recover, although the indorsement of one of the drawers was made after the bankruptcy, Peake's Cases, fQj. nothing passes to the assignees but property that Pickering. really and beneficially belongs to the bankrupt. The bankrupts had a legal estate in the bill, yet it was 1 3 Vesey, jun. , i i • i i 1 -, 206, ex parte Unattended by any mterest, and they were bound to Greening ; indorse it : the Lord Chancellor will, upon an omission and see also _ '■ 2 Jacob & Wal- or refusal to indorse, make an order upon the bankrupt khis v?Maule '^' ^^ ^'^ assignees for that purpose (w). It is advisable that the party in possession of a bill, note or cheque, should be in a condition to prove his title to it ; and when he has possessed himself of an instrument which is over due, it is absolutely indispen- sable, in case of a dispute, that he should adduce such proof. Some linen-dressers took a cheque four or five days after it had been drawn, which placed it in the (n) " If a person deliver a bill to another without indors- " ing his own name upon it, he does not subject himself to " the obligation of the law merchant ; he cannot be sued " upon the bill either by the person to whom he delivers it, " or by any other. And as he does not subject himself to the *' obligations, we think he is not entitled to the advantages. " If the holder of the bill sell it without his own indorse- *' ment, he is, generally speaking, liable to no action in " respect of the bill. If he deliver it without his indorse- *' ment upon any other consideration, antecedent or conco " mitant, the nature of the transaction, and all circumstances '' regarding the bill, must be inquired into, in order to ascer- " tain whether he is subject to any responsibility. If the bill " be delivered, and received as an absolute discharge, he «* will not be liable ; if otherwise, he may be." I5y Abbott, C. J. 3 Barncwall & Crcsswell, 445. S. 2.] BILLS AND NOTES — TRANSFEn. 361 light of a bill over due ; they gave the difference, and were subsequently sued by the real owner, who had lost it : it was held, that a party who takes such a bill does it at his peril, and that it is incumbent upon him in such a case to prove his title. " If a note indorsed JrSsweiri'so, " be not due at the time, it carries no suspicion what- Down v. Hal- " ever on the face of it, and the party receives it on '"^' " his own intrinsic credit ; but if it is over due, though ** I do not say that by law it is not negotiable, yet ByBuIler.J. *' certainly it is out of the common course of dealing, sJemReports, ** and does give rise to suspicion." In case of a loss by theft or accident, if the bill be assignable by mere delivery, the thief or finder may confer a title by transferring it; if it be assignable by Barley, p. 107. indorsement only, he cannot (0). The loser of a bill will naturally give notice to all the parties connected with the instrument, and if per- ^ sons choose to pay the amount to the wrong holder Lovell v. Mar- * after notice, they will of course be liable to the owner (p). t'"- The great object is to possess a clear title to the instrument; the time of negotiating it, however de- layed, is not of so much consequence, provided this rule be attended to, namely, that whoever takes a bill after it is due receives it subject to the same equities as (0) But where in a case of a stolen bill, the felon has in- dorsed to a bondjide holder. " What says the law in such " case ? Not that the indorsee takes the bill on the indivi- " dual credit of the felon, so that he must stand or fall by '* die felon's title, but that he shall recover on his own title, " seeing that he might take the bill on the credit of all the " names which appear on the bill." By Holroyd, J. 5 IMauIe and Selwyn, '291. {p) A banker paid a stranger the amount of a cheque the day before it bore date, and he was obliged to repay the money to the loser. Ijayley on Bills, j). -zGo. 362 7 TeniiTlepnrts, 423, Bi)eliiii V. Sterling. 1 Bosanquet & Puller, 550. a Barnewall & Cresswell, 422, Thompson v. Giles. SECURITIES FOR MONEY, AN B INTEREST : [Cll. 3, between the original parties responsible and the person sued upon the instrument. But where the drawers of a banker's cheque sent it into the world nine months after its date, and the consideration as between them and the party to whom they delivered it subsequently failed, the defendants, the drawers, were not permitted to set up the length of time elapsed since the cheque was drawn, as a defence to the demand of a bond Jide holder for a valuable consideration. Again, although true it is that a bill negotiable by indorsement will not be thdy so transferred unless the indorsement be made by a party who has the right to put his name on the bill, yet if the right exist, however improper the transfer may be, it will be binding against all parties who may be affected by it, as between them and an innocent holder. To illustrate this point : if indorsed bills be deposited with a banker, and if he negotiate them to a third person, however unauthorized to do so, such third person may retain the bills against the person who originally made the pledge ; and this, in case of the bankruptcy of the pledgee, entails a loss upon the original owner. " It too often happens," said Lord Chief Justice Eyre, in a case of this kind, " that " heavy losses fall somewhere : the only consolation is " that it is the law of the land, and not the caprice, " or even error of any man, which can ultimately " decide where they shall fall." But where a customer pays bills into the hands of his bankers without any authority on their part to dispose of them, he cannot be deprived of them in case of bankruptcy. The property of the bills is not altered ; they remain the property of the customer, although the banker may have a lien to the extent of his advances. A person of the same name as the payee indorsed a bill, knowing that he was not the real person in whose favour it was drawn : it was held, i st, that this was 3. 2.] EILLS AND NOTES — TRANSFER. 363 a forgery ; 2dly, that the defendant miglit show that 4 TenuReports, the person who indorsed to the plaintiff w^^as not the Young-' real payee. But this bill would not have been void as ao-ainst the immediate indorser, because he should not take advantage of his own wrong, but as against the subsequent indorsers, because their indorsees would not derive title through the forged writing, every new indorser beingr, in law, in the light of a new drawer. We have seen above, that the time of negotiation is not so material as the legitimacy of title to a bill ; and each indorser, who takes up a bill, may send it again into negotiation, since he makes no party liable except himself. If a customer deposit a bill with a banker before it falls due, and having reclaimed it, deposit it a second time in the same custody, the banker's right revives to J Siarkie, i, •^ ' o liosanquet v, hold it as he did before ; for example, as a collateral Dudman. security. Indorsees for value transferred a bill, which, after it became due, was returned to them : it was held, that they might recover against the acceptor, although their indorsee, before the re-transfer, had received a bill from i Starkie, 333, the drawer for the purpose of taking up one of the bills Fiecknoe. in question. With regard to the transfer of bills before they come due, it is observable, that whoever takes a dishonoured bill by the drawers in such a case, receives it with all its existing infirmities. It was arranged that a person should be exonerated from two bills upon his discharg- ing one ; both the bills were dishonoured : an agent then assigned one of these instruments to the plaintiff, in- forming him of the dishonour, but not of the arrange- ment above mentioned, the defendant took up the other bill and discharged it, and so became free from both according to the agreement; held, that the plaintiff should not recover, for he became subject to all the in- 364 SECURITIES FOR MONEY, AND INTEREST: [Ch. 3, 13 East, 498, firmities of the bill. If the bill be noted for non- Horn. ^^ ^' acceptance, the holder's knowledge of the dishonour Bayley, p. 123. Will be presumed. But where the bill has passed into the hands of a bona fide indorsee for value, who has had no notice of the dishonour, he may recover against the drawer, except where there may be a gaming or an usu- 5 Mauie & Sel- j^Q^jg consideration. The indorsee is guilty of no neg- V. O'Keeife. ligence. A bill after it had become due was indorsed to the plaintiff; it was contended, that although the first in- dorsee might have sued upon it, that it came disgraced to the plaintiffs, the second indorsees, and that, being over due, the original consideration alleged to be for a smuggling consideration might be brought forward to vitiate it; but Lord Ellenborough refused the evidence, 1 Campbell, jj^j^^j repudiated the circumstance of the bill being over 383, Chalmers , ^ , . j.^ ° V. Lanioii. due as makmg any dmerence. Payment of a bill means payment in due course and not by anticipation. Therefore, where a bill was paid four days before it became due, and subsequently came by indorsement into the hands of the plaintiff, before it arrived at maturity ; it was held, that the plaintiff might ^Q'^'^Burbridce i^'^intain an action upon the bill, as there was nothing to V. Manners. awaken his suspicion, the bill not being due. There had been no cancel through the negligence of the bankers where it was taken. It has been determined, that where a party indorsed a bill before the date or time of payment had been inserted, he should not be allowed to say, that such indorsement RusleU''. Lang- ^^^^ ^een made prior to the completion of the note, even staffe. although the holder were not cognizant of the circum- stance. A bill was post-dated, the payee died before the day when it bore date, and it was contended, that no title could be made through his indorsement in an action against the drawer. But by Lord Ellenborough — " What "deception does the post-dating hold out? Whoevertakes S. 2.] BILLS AND NOTES — ACCEPTANCE. 365 " the bill before the day when it bears date must see 13 East, 517, " that it is only payable at five days after that date." j^r^rt^"'^*^ ^' The plaintiff recovered. If the consideration for discounting a bill fails on ac- count of the forgery of the indorsement, the money may be recovered back. And the rule of caveat emptor does not apply. If a person gives a forged bank note, there is nothing for the money, it is no payment. If money ,^"j*ones 11 °^^' is paid by mistake upon a consideration which has failed, Ryde. the principle is, that it may be recovered back. ^ Taunton, 488. Of Acceptance. By a very recent statute, no acceptance of any inland 5. Acceptance, bill of exchange shall be sufficient to charge any per- son, unless such acceptance be in writmg on such bill, or if there be more than one part of such bill, on one of the said parts The Act does not operate with reo^ard to ^ ^'^ <Jco. IV. ch "8 sect 2 foreign bills, but in the case of inland bills, verbal ac- ' ' ' ceptances, which were productive of so much doubt and difficulty, are rendered unavailable. The drawee's name need not appear on the bill, and any words will consti- tute an acceptance : as, " accepted," " presented," " seen," " the day of the month," a direction to a third person to pay it. But if any other person than the Bayley.p. 141, drawee accept, it should seem essential that his name '•^-• should appear. And an acceptance once completed and issued cannot be revoked. It may be put on the bill almost at any time, even after the time appointed for payment, although in such a case it was objected, that the bill could not be paid according to its tenor and 1 Lo'ti R^v- effiict. Such an acceptance after time makes it general jacks()n«!' to pay on demand. Pigott. It is quite clear that the new statute has avoided the necessity of entering so frequently into the presumptions of acceptance, which have occasionally perplexed our courts ; as the Act, however, has not embraced foreign 366 SECURITIES FOP. MftNEY, AND INTEREST: [Ch. 3, bills, a very short summary of the decisions upon pre- sumptive acceptances shall be given. Thus, a promise to accept, by which a party may be influenced to take or retain a bill ; an expression which cannot but import a promise of that kind ; a promise in a letter, that the writer will accept or certainly pay ; a promise, made upon an executed consideration, that a bill shall meet with due honour ; the words, " leave the bill, and I will " accept it :" — all these are complete acceptances, where the statute i & 2 Geo. 4, c. 78, s. 2, does not apply. The keeping of a bill, without more, might amount to an acceptance : so may the exercising any act of ownership over the instrument : so may the de- struction of it by the drawee. But the mere detention or non-return of the bill; silence on the subject; a de- struction of the bill after a refusal to accept, and an omission to take it away ; neglect to return the security, after keeping it ten or twelve days — will not amount to constructive acceptances. Whether the detention of a bill for an unreasonable time by the drawee will in any case amount to acceptance, has not been determined ; but it must be repeated, that the new Act has set the question at rest with respect to inland bills. And with regard to promises or engagements which do not bind without a written acceptance, the decisions have been — that promises upon executory considerations, where no person has been induced to take or retain the bill, are not sufficient. Nor are ambiguous expressions : as, " your bill shall have attention." Nor conditional expressions, unless the condition be complied with : as, " send the bill to my counting-house, and I will " give directions for its being accepted;" " there is " your bill, it is all right ;" " the bill will be paid," said with reference to payment, and not acceptance : these declarations will not constitute acceptances. The holders of a foreign bill presented it for accept- S. 2.] lilLLS AND NOTES — ACCEPTANCE, 3^7 ance, which was refused, and the bill was thereupon protested, and afterwards was, when due, presented to the drawees for payment, with a demand for the charges of protesting it : the drawees said, " this bill " will be paid, but we cannot allow you for a duplicate ** protest." The holders refused to receive payment without the charges, and the drawees revoked their offer to pay ; and upon an action brought against them as supposed acceptors under these circumstances, the plaintiffs had judgment of nonsuit ; for not one word passed about the acceptance, and in consequence of the 4 Maule & Sel- refusal to bear the duplicate charges, it was never derson v. Heath. intended by the parties ((^). There is a difference between the acceptance of bills, and the cancelling of a cheque : the former, being once done, cannot be revoked ; but by the usage of trade in London, a banker has until five in the afternoon of the day on which a cheque is presented for payment, to return it. So that where a cheque was returned before i Campbell, five, with a memorandum of " cancelled by mistake" nandez j).*^"^' written under it, it was held a refusal to pay. Gl^'im. Acceptances are either absolute, or conditional. We have been speaking principally of the fonner, but it has long been settled that a conditional undertakijig of this kind is allowable : yet the holder is not bound to receive the condition so tendered, but may protest the bill ; and if he do that, he cannot resort again to the acceptor, and demand the terms which he has refused. In an action on a bill, the defendant said his acceptance {q) If a person underwrite or indorse a bill thus : — '' I will not accept this bill ;'' — this, if intended as a surprise upon the party presenting, so as to induce him to believe it to be accepted, may be a good acceptance ; but not so where the drawee declares at the time that it is no acceptance. Bayley, p. 143, Veach V. Kay, 368 SECURITIES FOR MONEY, AND INTEREST: [Ch. 3, depended upon the arrival of a ship ; he subsequently said that it would be paid even if the ship were lost. The plaintiff, however, noted the instrument for non- acceptance ; and the ship arriving safe, he sued the 1 TermRe ports, intended acceptor : but the Judge directed a nonsuit ; 182 ; 6 East, f^j. j^y noting the bill, the plaintiff declined the con- 199, Bentmck ^- . v". Dorrien, ditional acceptance. So soon as the condition is performed, the acceptance becomes absolute. Therefore, where the acceptance is to pay when remitted for, when the ship arrives, when a navy bill should be paid, when certain goods arrive, &c. ; in all such cases, as soon as the remittance comes, &c. the conditional acceptance is converted into an absolute undertaking. A. was requested to accept a bill, and to draw upon B. for a sum equal to that mentioned in the bill ; it was held that the mere act of drawing upon B. did not amount to an acceptance, for A. never intended to ac- 26^!wir°r'' cept until he should be satisfied that the bill he had Nisben. drawn upon B. would be honoured. There are also acceptances for honour. The liability incurred is, that the party who accepts for honour shall pay if the drawee does not. Therefore, there must be a presentment of the bill to the original drawee, and a protest for non-payment in case of their refusal to dis- charge the bill. The engagement is collateral, that if 16 East, 391, the drawee should persist in dishonouring the bill, the party accepting for honour will stand in his place (r.) uove. (r) The acceptor for honour is not liable unless there has been a presentment for payment to the drawee, and a pro- test in the case of a foreign bill. 16 East, 391 ; 7 Barne- wall & Cresswell, 468. But where a bill payable thirty days after sight was accepted for honour, but although at maturity as against the drawees on the 14th of August was not pre- sented to them until the day the bill became due according S. -2,] BILLS AND NOTES — ACC EPT A N CE. 369 Slic^i acceptances for honour as are made with the view of promoting the negotiation of a bill are considered as made on account of the person in possession of the bill at the time they are made, and such as are made to save the reputation or suing of the parties where the drawee cannot be found are, unless they declare the contrary, on account of the drawer. Where the acceptor for ho- See Bayley, nour pays, his remedy is against the person for whose ^' ^^ • honour he made the acceptance, and to all other parties g^'g^^^g^j^.n^] ^^ who are liable to that person. this cb:ip*,cr. Nevertheless, if the drawee accept the bill generally* it is not competent to another person to accept also for the purpose of guaranteeing his credit, such an accept- ance would be contrary to the usage and custom of mer- chants. A bill must be accepted by the drawee, or failing him, by some one for the honour of the drawer. There cannot be a series of acceptors. But the second writer on the bill might have been sued upon his colla- ^^^^jifcuVn v. teral undertaking. Still, it is said, that when a bill has Hudson. been accepted supra protest (s) for the honour of one party, it may by another individual be accepted supra protest, for the honour of another. It must have the id. 448, n. stamp necessary for such an engagement. When the bill is presented for acceptance, it is in the acceptor's power to vary the tenour of the bill in many different forms. It is, however, with respect to the place of payment that so many difficulties and contro- versies have arisen. These have been set at rest by a to the acceptance, the 2 2d of that month, it was held, that the presentment need not have been made at the two seve- ral times, but that it had been sufficiently done. 7 Barne- wall & Cresswell, 468, IVilliams v. Germaine. (s) When a bill has been protested either for non-accept- ance, or (where the acceptor absconds or becomes bankrupt) for better security. B G 370 SECURITIES FOR MONEY, AKD INTEREST: [Cll. 3, recent statute, and the law now is, that where the ac- 1 & 2 Geo. IV. ceptor makes the bill payable at the house of a banker cll. 78, sect. 1. ' 1 or other place, without more, it is a general acceptance ; but if he declare that the bill shall be payable at a banker's or other place only, the acceptance so made shall be deemed to be qualified, and the acceptor shall not be liable to pay the bill, except in default of pay- ment when such payment shall have been first duly de- manded at such banker's house or other place (0. Not- withstanding this, it is very reasonable, that as far as the drawers and indorsers are concerned, the holder should look for an absolute acceptance, and he is enti- tled to this, and may reject any other. And we have seen, that if he refuse the acceptance so conditionally tendered, or varying from the tenour of the bill, he can- not afterwards turn round, and sue the acceptor upon the offer which was made. This brings us to consider for a moment the revocation or alteration of accept- ances. " The rule is certainly laid down in the Hamburgh " Ordinance," said Lord EUenborough, " that an accept- " ance once made cannot be revoked." And the learned Chief Justice thought, that a solemn determination should be had before such a doctrine should be sanctioned . This power, however, of altering the acceptance, we have 5Barnewall& lately seen, may exist, before the bill is communicated to Aiderson, 474, f^^ holder, and the Court decided on the ground that such Cox V. Troy. ^ (;) 4 Barnewall & Cresswell, 1, Turner v. Ilnyden, de- cided on the statute. A bill was drawn payable in London, and so accepted : held, that presentment for payment in London was unneces- sary, and that there was no difference where the bill was rendered so payable by the language of the draiver, or the acceptor. 3 Bingham, 611, Selbyw.Eden, 6 Barnewall & Cresswell, 531, Fayle v. Bird. S. 2.] BILLS AND NOTES ACCEPTANCE. 37 1 an alteration could not by possiblity work any prejudice to the holder. But, lastly, the acceptance may be waived. There Waiver of Ac- may be an express or an implied waiver. The holder '^^P*^"*^^- wrote in his bill-book—" Mr. P.'s acceptance at an end." J^""g'?' ^-^9' This was an express waiver. A receipt of the consider- Pulteuey, cited, ation of the acceptance supersedes the necessity of ap- plying for or enforcing it. But mere neglect to call upon the acceptor, though for a great length of time, will not discharge him, even though indulgence be given to other parties to the bill. Nothing but an express declaration, or the Statute of Limitations will discharge him, for an D^^L^eVif^' acceptor makes himself a debtor. Evidence was given Dunster. that the defendant, an acceptor, had applied to one J. to give up the bill, and the acceptor was told he should not be troubled about it. This was an accommodation 2 starkie, 531, bill, but the acceptor was, nevertheless, held liable. AdamstJ.Gregg. The holder of a bill accepted for the drawer's accom- modation took a cognovit from the drawer payable by 5 Taunton, 192, instalments, and it was holden, that whether the holder ^entuni v. . . Pocock, over- knew or not that it was an accommodation bill, the ac- turning Laxton ceptor should not be discharged. Nevertheless, the rule ^A^'^^l' u .or r » ' Carupbell, 105. of law upon this subject does not seem to be quite set- tled. For Lord Chief Justice Abbott, in the case of Adams V. Gregg just quoted, laid it down broadly, that, *' if a party disabled himself from suing the principal, it *' was a rule both of law and equity that he thereby dis- charged the principal." In another case, before Mr. Jus- 2 Starkie, 533. tice Gibbs, the acceptor -promised to pay, and time being afterwards given to the drawer without his concurrence, it was contended, that the acceptor was discharged, but 3 Campbell, , 1111 • 362, Kernson witout success. It cannot be concealed, that the opi- «. Cooke. nionof Lord Chief Justice Abbott, founded as it is upon the strictest principles of our law, would, in all proba- bility be adopted, if the point were to be solemnly can- vassed, n B 2 372 a Starkie, 229, Parker t). Leigh, Peake's Cases, 187, Stevens v. Thacker. Lloyd V. Ashbj', 2 CaiTington& Payne, 138. 6 Dowling V. Kyland, 120, Siuitli I'. De Witts. SECURITIES FOR MONEY, AND INTEREST : [Ch. 3, In order to enable an acceptor to avoid some part of the claim upon him in consequence of the holder's admissions, the renunciation should be express, and founded upon some consideration. Merely saying, that as to the sum in the bill for 300 L, the plaintiff would look to W. for it, is not such an express declaration ; the plaintiff might probably suppose that W. would pay the bill, and that he would not have occasion to call upon the defendant ; and the defendant, the acceptor, had actually paid the remainder of the money. Where the defendant declared that the acceptance was a forgery, and that he would make an affidavit that he had never accepted the bill, it was held, that if he had done so, the plaintiff should not have been per- mitted to have maintained an action against him, as he would thereby have induced the commission of the crime of perjury. The defendant not having sworn the affidavit, the plaintiff had a verdict. The bill accepted induces liability on the part of the acceptor, and his partners, if he have any ; but sup- posing that a bill be accepted in the name of a firm, but not in a partnership transaction, a dormant partner, not at all implicated in the credit of the bill, will not be liable. The defendant accepted a bill without value, and delivered it to another person for a special purpose, who subsequently left the country, and became bank- rupt, having improperly delivered the bill to a creditor who had pursued him ; it was held that this ci editor was not a bonajide holder for value, and that if any property had accrued to the bankrupt by the bill, it would have passed to his assignees. A bill was drawn in the following form : ** Two months after date, pay to me, or my order, " the sum of thirty pounds two shillings. W. S." " Payable {mentioning a particular place.)" The words " Accepted, C. M.," were written across S. 2.] BILLS AND NOTES — PRESENTMENT. 373 the bill. fV. S. indorsed the bill to the plaintiff. The Court were of opinion, in this case, that it was not necessary that the name of the party who afterwards accepted the bill should have been inserted, it being directed to a particular place, which could only mean to the person who resided there ; and that the defen- dant, by accepting it, acknowledged that he was the 8 Taunton, 739, , .^ J. , J Gray r. Milner, person to whom it was directed. Presentment for Acceptance and Payment. The bill being accepted, and placed in the hands of 6. Preseutnieut, the holder, is, after the days of grace have elapsed, presented for acceptance, or if accepted, for payment. This is an indispensable undertaking ; for by a neglect to do so, every party to the note will be discharged in general from his liability, and the loss will fall abso- lutely upon the holder. The default of the drawer or acceptor is a condition precedent ; and information that the party on whom the bill is drawn will neither accept nor pay, will not preclude the necessity of a due pre- sentment. First, of the presentment for acceptance : it must be made within a reasonable time. The party is not bound to transmit the bill instantly for acceptance ; and a delay to present until the fourth day a bill on London (which is keeping it a whole day, exclusive of the day of receiving it), given within twenty miles, is not unrea- 7 Taunton. 397, sonable. And whether it be for acceptance or pay- ^^ ^' ment, the presentment should be made at a reasonable time of the day. Where a bill was made payable at a solicitor's, eight o'clock in the evening was deemed > Carrington, a reasonable time for presentment : but where the bill Ncwnhara. is payable at a banker's, a presentment after the usual hour must be at the peril of the party presenting ; although, if any one be in attendance, and an answer B B .1 374 SECURITIES FOR MONEY, AND INTEREST: [Ch. 3, aChitty, 124, be given, it will be sufficient; and so it was where a servant was stationed, and who, on the bill beinp; pre- 6 Maulc & Sel- , . r , , i w^n, 44. Gar- sented, returned tor answer that there were no orders, nett i;. Wood- rpj^g distinction is between a banker and a common cock. trader. And so presentment at a counting-house between 1 Starkie, 114, six and seven in the evening has been considered suffi- visorf.^"'' ^" cient; for the holder might reasonably expect to find the party at his counting-house at that time. The place where a bill is to be presented is that where it is payable ; and if the drawer cannot be found, the bill is dishonoured. We have seen that a bill payable at a particular place, and not elsewhere, so far restricts the acceptor's liabi- l)f BerTreche' ^^^Y' ^^ *^^^ ^^ ^^^^ ^^ necessary in such case to present V. Pillinl at the specified place. But, on the other hand, it is worthy of observation, that although the bill may be made payable at a particular place, still the acceptance is to be deemed a general obligation, and the acceptor may be called on elsewhere ; and that, although the acceptor mai/ be called on elsewhere, it is not compulsory on the holder to go elsewhere. So that, where the ac- ceptor has not restricted his liability by the words " and not elsewhere," his bill will be dishonoured if not paid at the place indicated by the acceptance. See Bayley, It is also worthy of notice, that as the statute 1 & 2 P- ^75- Geo. 4, c. 78, does not extend to notes, a presentment at the house specified is necessary to charge the maker. There is, however, a distinction between a memorandum which forms part of the note, and one merely inserted by way of marginal note. ** I promise to pay, &c. at " Barclay, Tritton & Co." These last words were at 1 Starkie, 468, ^he bottom of the note, and were printed. Lord Ellen- Trecothick v, Edwin. borough held a special presentment necessary. But where there was a mere memorandum, as "at " Vera & Co.'s, 77, Lombard-street," Gibbs, Ch. J. was of opinion that the words at the foot of the note S. 2.] BILLS AND N OTES — PRESENTMENT. 375 were only a memorandum where payment might be 4 Campbell, demanded ; and the learned Chief Justice held the ^jj^^chJi'.^^ *'' distinction above mentioned to be sound. Barley, p. 178- No time has been fixed for presenting foreign bills for acceptance. " If they are circulated, the parties are " known to the world, and their credit is looked to ; " and if a bill drawn at three days sight were kept out " of the way for a year, I cannot say there would be " laches ; but if, instead of putting it into circulation, " the holder were to lock it up for any length of time, By Buller, J. " I should say that he was guilty of laches." ^^° ""' Unless an acceptance be made, or the drawee refuse, the bill should be left in his hands for twenty-four hours ; it may then, if not accepted, be protested for non- acceptance. After the days of grace — which are in general three after payment becomes due, or, where a Sunday or great holiday intervenes, two — payment should be duly de- manded from the drawee, whether he have or have not accepted the bill or note. If an agent have accepted in the absence of the drawee, who still remains absent, presentment to the agent will be sufficient. It is certainly desirable and prudent to present a bill on the very day it becomes ripe for such presentment ; but where the acceptor was proved to have sustained no inconvenience from a delay of some days before the bill was presented, the Court Avould not hold him dis- 5 BamewaU & charged ; but it might be otherwise if the delay operate RhodeTtj.Gent. to his prejudice. If a cheque upon a banker be lodged with another banker, a presentment by the latter at the clearing-house is sufficient. A cheque must not be kept locked up, Bayley on BilU, if the party expect to recover upon it. The plaintiffs ^* having received a cheque from the defendants, drawn on the Maidstone bank, kept it all that day and the B B 4 376 Holt's N. P. Cases, 315, 11, 2 Campbell, 537, Ricktord V. Ridge. By Lord Ellen- borougli, Id. 539 ; see also 1 Taunton, 388, Robson V. Ben- nett. Bayley, p. 187. a Barnewall Sc Aldersoii, 496, Williams i'. Smith. 6 Barnewall & Cresswell, 373, Camidge v. Allenby. SECURITIES FOR MONEY, AND INTEREST: [Cll, 3, next, and sent it on the third morning by a carrier. The Maidstone bank did not open on that morning. It was held that the plaintiffs had been guilty of laches. It was considered no excuse to say, that the cheque would not have been paid if it had been presented sooner. A banker in London, who receives a cheque by the general post, is not bound to present it for pay- ment until the following day. The rule, that the moment a cheque is received by the post, it should be invariably sent out for payment, would be most inconvenient and unreasonable. A bill or note payable on demand, is puyable upon presentment ; and unless put into circulation^ must be presented within a reasonable time after the receipt. As to what shall be said to be a reasonable time with respect to bills payable on demand or at sight, it seems that the common course of business will be a very good guide to determine the matter. Several decisions have taken place upon the subject; and it is especially de- serving of attention that the courts have ever inclined against the acting with unreasonable hurry upon receipt of instruments payable on demand. The late decisions are probably the surest guides; and in a very recent case it was laid down by Abbott, Ch. J. that notice should be given on the departure of the post on the day following that in which the party receives the intelligence of the dishonour. In effect the rule is, to avoid laches, that the party should give notice by the next day's post, and not by the next possible post. The same rule applies to bills payable at sight. Certain promissory notes payable to bearer were given by the vendee to the seller of goods, and it so happened that the bank to which the notes belonged had stopped payment when they were so paid ; but as the vendor neither circulated nor presented the notes, but kept S. 2.] BILLS AND NOTES — PRESENTMENT. 377 them for a week, it was held that he had made them his own by laches. But where the plaintift 's servant, having received bankers' country notes at a fair, on a Friday, fourteen miles distant, and his master being from home, a settlement of accounts was not made until the Saturday evening, it was held that the plaintiff was not fixed with the loss by neglecting to present on 8 Dowiing & Saturday, although in fact the bankers stopped pay- jg^^g" J jj*y.. ment on Saturday in the middle of the day. ditch. Great care is necessary to use due diligence when a bill is on the point of becoming due, and is payable at a distant place. The plaintiff, in Yorkshire, received a bill on the 26th of December, payable in London, AndeTto'n^t.' and due on the 28th ; but he kept it in his own hands Beck, until the 29th, and then sent it to his bankers at Lin- coln, to be forwarded. He was held to have made the bill his own by this delay ; he might have renounced it, if he did not choose to undertake the duty of a speedy presentment, but he deprived other parties to the bill of the chance of its being presented at least one day sooner. It is incumbent on the holder to present for payment, or put the bill into circulation at the first pos- sible moment, where the bill is so near falling due as that it will be impossible to present it before it actually comes due(?0. But where a banker's promissory note Id* 251. was payable at Maidstone and in London, and Maid- stone was the nearest place to Tunbridge, where the holders lived, it was held no defence to say that the note should have been presented at Maidstone first, and that it would have been paid if it had been so {tc) Where the political state of a country (Leghorn) ren- dered it impossible to present a bill in due time, it was held a sufficient excuse, there being a subsequent presentment with due diligence. 2 Smith, 223, Tatience v. Toxvnkji. 378 Beeching v. Gower, Holt's N. P. Cases, 313- 4 TerniKeports, 170, Leftley t;. Mills. Bajley, p. 201. Id. 202. 11 East, 114, Esdaile v. Sowerby. 16 East, 112, Howe I'. Bowes 2 Bosaiiquet & Puller, 277, Whitfield V. Savage, SECURITIES EOR MONEY, AND INTEREST: [Ch. 3, presented ; for as the note was payable at both places, the holders had an option to present it at either. If there be a second presentment on the same day of the dishonour, for the purpose of noting and protesting, the party may insist on paying it, and will thus relieve himself from the charges of a protest. As in the case of bonds, &c. the party bound has till the last moment of the day to deliver himself from the obligation from paying, so may also the person bound to satisfy a bill or note. The computation of time, where a bill is payable within a limited time after sight, is from its presentment for acceptance. Suppose that a bill be payable six days after sight, the day of sight is not to be reckoned as one of the six. *' On a bill dated the 1st of March, old style, and " payable here one month after date, time must be " computed from the corresponding day of February, " new style ; and on a date dated the 19th of February, " new style, and payable at Petersburgh one month " after date, from the corresponding day of March, " old style." The indorsers of a bill were well acquainted with the drawer, and the insolvency of the acceptor ; the holder did not give them notice that the bill had been dis- honoured ; and for want of due presentment and notice, a nonsuit was entered in an action by the indorsees against the indorsers, notwithstanding this knowledge. But where the drawers of a note shut up and abandoned their shop, that was such a declaration to all the world that they would not pay there, as to dispense with the necessity of presentment. The drawer's giving the payee a cheque to meet the bill, which, however, is not given to the holder until after the bill has become due, does not dispense with presentment. The same strictness of proof is not necessary to S. 2.] BILLS AND NOTES — NOTICE. 379 charge the guarantees for the payment of goods by a bill as will be necessary to support an action upon the bill itself, where by the law-merchant a demand upon and refusal by the acceptors must be proved, in order to charge any other party upon the bill ; the party who enters into the guarantee ensures the solvency of his „ p principal ; so that if the latter be bankrupt or notoriously Warrington v. insolvent, it is nugatory to go through the ceremony of i^Bamewaliic making a demand upon him. Cresswell, lo, A bill was drawn for the indorser's accommodation ; kins. and on presentment after the hanking hours, the answer was, no ejects ; a declaration being filed against the indorser, he applied for further time to pay the bill : this was held to be a waiver of the objection that there had been no due presentment, provided the party had been aware of the fact when he made his apphcation ?5 East, 275, >■ ^ Hopley V. for indulgence. Dufiesne. The subject of notice, where a bill is dishonoured, is 7- Notice of very nearly connected with the presentment. Whether "" °°°" ' the acceptance or the payment fail, notice is equally necessary ; and it will be now our object to explain at what time and to whom this notice should be given. The form of the notice should be attended to. An in- dorsee sued the indorser, and gave proof of notice that 1 DowHikj & a bill drawn by the defendant had been dishonoured : Ilj'ant'. 3. y ■ r n • 111- rr> • Bcauchamp v. this lorm or notice was held insutfacient. Cash. The acceptor wrote a letter to the drawer, saying, that he had not been able to pay a bill : held that this 4 Campbell, 87, notice was sufficient, although not coming from the ^^^ "^' '^' holder; but Mr. Justice Bayley says, that it might Bayley, p. 208. perhaps have been on the ground that the acceptor wrote for the person giving the notice, and as his agent. The notice of non-payment must contain an intimation that payment has been refused by the acceptor, and the following letter for that purpose has been held insuf- 4 Barnewall & {^ ■ , ^. X -i • 1 . 1 PI Cresswell, 339, ficient : " 1 am desired to apply to you for the payment Hartley u. Case. 380 SECURITIES FOR MONEY, AND INTEREST: [Cll. 3, " of [the sura], due to myself on a draft drawn, &c. ; " which I hope you will on receipt discharge," &c. Here was no statement of the fact of dishonour, but a mere demand of payment. Notice of protest need not he left, in the case of a foreign bill, as well as notice of dishonour, at least if the party be in the country where the bill is protested. " If the party is abroad he 1 Made & Sel- " cannot know of the fact of the bill's having been Lord Elle'nbo^ " protested, except by having notice of the protest rough ; Id. 288, " itsclf; but if he be at home, it is easy for him, by son. " making inquiry, to ascertain that fact." Although it is a measure of prudence to give notice of dishonour to all the parties whom it is intended to charge, it is no defence for the drawer, for instance, who is sued, and has had notice, to object that the acceptor has not had notice ; it is quite sufficient if 4 Barnewali & noticc of the dishonour be given to the party against Aiderson, 212, whom the action is brought, and he cannot allege the Edwards v. n • ^ ■ ^ Dick. want 01 notice to a thn'd person. With respect to the time for giving notice, there have been many decisions ; and as we have already seen that a very early presentment is in general necessary, so also is a very early notice, if the bill or note be not paid. w^^^68^^*^'' '^^® next day's post, not the next possible post, is the V. Hadvven. Criterion of time ; so that it will be sufficient to adver- Moody & Mai- tise the parties on the bill by the post of the following Jeremy. ^' ^'' ^^Y '• ^^^^ ^^ ^ P^^^Y ^'Gceive the notice on a Sunday, he has the whole of Monday to consider the bill, and need not give his notice until the Tuesday's post. And now, by 7 & 8 Geo. 4, c. 18, notice of the dishonour of bills payable on the day pi'eceding Good Friday or Christmas-day, may be given on the day after those days ; and where bills become due on any day appointed for public fast or thanksgiving, payment shall become due and may be noted the day preceding, and notice given after such fast or thanksgiving-day ; and where S. 2.] BILLS AND NOTES — NOTICE. 381 such shall be appomted on a Monday, notice of dis- honour of bills, payable on the preceding Saturday, may be given on the Tuesday. If a bill be returned to a banker, he is bound to give notice to his principal that very day, if he can do so by using ordinary dili- gence ; but in general, by placing a bill in the hands of a banker, the number of persons from whom notice must pass is increased by one, because a banker need not use greater diligence than if he himself were the 3Bosanquet& . -If -1 Puller, 599, real holder. And it is worthy of attention, that notice Haynesi;.Birks. must immediately be given, without considering whether you have received your notice earlier than usual or not. An indorser paid a bill, which a subsequent indorser had made his own by laches, and he sued a prior in- dorser. Had successive notices been given by all the parties on the bill, notice of dishonour could not have reached the defendant at an earlier period ; but the plaintiff was not permitted to recover, for he paid the bill in his own wrong. The manner of giving the notice should be such as will distinctly apprize the person intended to be made liable of the dishonour. It may be given verbally, as by sending to a merchant's counting-house during the ordinary hours of business; and where a party went for two successive days to a counting-house, and waited some minutes each day, but no one was in the way, the inner door being locked, it was held, that neither a notice in writing need have been left, nor a letter written to the drawers, who lived a short distance from ^ Maule & Sel- wyn, 5459 the place. And a notice to a man's attorney is not Crosse v. Smith, enough. Sending by the post seems to be regulated by this rule : if you send a full direction, and prove that the letter has been put into the post-office, it will do, because there is a safe and reasonable presumption that it will reach its destination ; but if you address to an individual in a large town, as to " Mr. //. Bristol," 382 Ryan & Moody, 14P, Water V. Haynes. Id. 249, Mann V. Moors. 3 Campbell, 262, Beveridge V. Burgis. Gow, 81, Browning i'. Kinnear. 1 Starkie, 116, Phipson V, Kneller. Holt's N. P. Cases, 476, Bancroft v. Hall, SECURITIES FOR MONEY, AND INTEREST: [Cll. 3, you must go further, and show that it came to the hands of the person for whom it was intended. It is very different where the drawer places his address on the bill generally, as " Manchester;" in such a case it is sufficient if the direction of the letter giving the notice tally with the drawer's address on the bill. Due diligence must be used to find out the residence of a party, where it is not known ; and such endea- vours, if unsuccessful, will excuse the want of notice. But it is not enough to inquire at the place where the bill was payable. In a case of this kind the plaintiff was nonsuited ; and by Lord Ellenborough : " Inquiries " might have been made of the other persons whose " names appeared upon the bill ; and application might " have been made to persons of the same name with " the defendant, whose addresses are set down in the " directory." In another case the plaintiff applied to the last indorser to know where the drawer lived, and he was then referred to the last indorser but one, who was not at home ; the plaintiff called again the next morning, and got the information : the jury thought that reason- able diligence had been used, and the Judge was of the same opinion. Where the drawer refused to give his own address, but said he could call in a few days to inquire whether the bill had been paid or not, it was considered that he dispensed with notice of dishonour by doing so. If there be no esse?it/.al delay, the notice may be sent by a private hand, though this course cannot be recom- mended ; though it is no defence to say, that if the notice had been sent by the mail, it would have arrived sooner. In the case of a foreign bill, notice should be for- warded by the first regular ship bound to the destined place ; and it is no defence that the holders might have S. 2.] BILLS AND NOTES — NOTICE. 383 written other letters by another ship bound elsewhere, 2 Henry Black- but which by accident arrived sooner at the place to M°uifman^r' which the notice was sent than the regular vessel. D'Eguino. A bill being dishonoured, the plaintiffs told the drawers they would hold the bill until the end of the week, as they had reason to think that money for the purpose of paying would be advanced to the acceptor in a few Foster v! Jurdi- days. Mr. Baron Wood thought that a second notice •^°"- should have been given at the end of the week ; but the Court said, that notice being given, all that the plain- tiffs did afterwards was, in point of law, as agents for the drawers, the defendants ; if by their negligence as such agents the defendants were injured, there might have been an action on that ground ; but as far as regarded the notice of dishonour, the plaintiffs had complied with the law. Whoever may be injured by a want of notice is Notice, to clearly entitled to it, provided he be entitled to demand payment of the bill or note ; and therefore, in general, the drawer, and every indorser of such an instrument, should be advertised of the proper presentment, and of the failure of payment. And so also should one who, though not a party to the bill or note, may be collate- rally interested in it, as a surety ; for if the drawer or acceptor were called upon for the money, the surety might be safe ; so that where the necessary steps to obtain payment were neglected, the guarantee was held 2 Taunton, 206, to be discharged. But there is a distinction between Astling. persons not parties, and such as are parties to the in- strument, in cases where the debtor is not in a condition to pay at the time of the bill or note becoming due. On an action brought for goods sold, the defence was that the plaintiff, the drawer of a bill against a debtor of the defendant, had given no notice to the defendant ^ Made & Sel- "_ _ wyu, 02, Svvin- that the bill had been dishonoured ; in fact the drawer yard v, Bowes, became a bankrupt in the week after the bill became 3'^4 SECURITIES FOPt MONEY, AND INTEREST: [Cll. 3, due, and in the previous interim had not been in a con- dition to pay it: the Court held, that being no part ij to the hill, the defendant was not within the custom of merchants, which would have entitled him at all events to notice ; and that, as he did not appear to have been prejudiced by the want of notice, there was no ground for the objection. The want of notice cannot be insisted upon where a higher security has been given for the due payment 5 Bavnewall & of a bill ; as a bond conditioned to pay in a limited Murra V i'. King, time after the bill became due; there the defendant pleaded that the bill had not been duly presented, and that he had not any notice of dishonour; and upon the plaintiff replying that the acceptance was a forgery* the defendant rejoined that he did not know it when the bill became due ; and the Court gave judgment for the plaintiff; for the condition of the bond was silent as to the presentment and notice. There are circumstances, however, which exonerate the holder from giving this notice ; and it is our present object to inquire into these. The general use of notice is to the drawer, that he may withdraw his effects ; so that, if it should turn out that he neither had, nor had any right to expect any effects in the hands of the drawee, from the drawing of the bill until it became 1 TermKeports, payable, it beino; clear that he could not maintain an 405, Bicker- \ J ' fc . . , . i • i dike V. Bolman. action on the bill, the notice is dispensed with {x). (.r) So where the defendant had no reasonable expectation that his bankers would pay a bill which he had drawn upon them. Ryan & Moody, Rep. 341, France v. Lucy. And where the drawee had goods of the drawer on a cre- dit not expired, there being at the same time no reasonable expectation that the drawee would pay the bill. 4 INIaule & Selwyn, 226, Claric/gev. DaltotK S. 2.] - BILLS AND NOTES — NOTICE. 385 But it i3 observable, that should there be a fair pros- pect of effects reaching the drawer before the time of payment of the bill, he will be entitled to notice, although such expectations fail to be realized. As where the drawer had shipped goods on his own account, which were on their way to the drawee when the bill was l^ ^^^^' '^^l., •' Kucker v. Hil- drawn ; here the drawer was held entitled to notice, ler. although in fact the drawee had refused to receive the goods by reason of their being damaged. If the drawer had gotten back those effects, and the drawee had paid the bill, by which the drawer would have been his debtor, „ , b-h ' -^ ' Ba_yley on Bills, the case would have been different. p. 239. It is no matter that the drawer is without effects in the drawee's hands when the bill is drawn or ac- cepted (^), provided he either have or may reasonably expect to have them when the bill becomes due : and ig/Thackray the drawee's insolvency will make no difference. It was i. Blacken, decided, also, in the case just cited, that notice was necessary, although the drawer had been made ac- quainted with the accidental destruction of the bills through mistake, and had been called upon to renew them under the statute of W. 3, which he had refused to do ; and that it made no difference that the effects in the drawee's hands when the bills became due were not equal to any one of the bills : the drawer was more- over discharged as to all the bills, for want of the notice (2). The acceptor of a bill had received several {y) If the drawer have effects in the drawee's hands when the bill is drawn, although he have none when it is presented for acceptance, or afterwards, he is still entitled to notice. 7 East, 358, Orr v. Maginnis. (z) Even though the drawer be indebted to the drawee in a much larger amount than the value of the effects in the hands of the latter, and the drawee without the privit)' of c c 3«6 Ryan&Moodj, 84, Spooner V. Gardiner. 3 Bosanquet & Puller, 239, Clegg V. Cotton. 1 Espinasse, 332, Staples V. Okincs. SECURITIES FOR MONEY, AND INTEREST : [Ch. 3, acceptances from the drawer, some of which had been dishonoured, and some were outstanding ; and it was insisted, that as these acceptances had been given for the drawer's accommodation, no notice was necessary ; but Lord Chief Justice Best was clearly of opinion that the drawer had not been properly acquainted with the dishonour of the bill in question, and a verdict passed for the drawer. The case of C/egg v. Cotton was re- cognised upon this occasion. There an agent of the drawee drew a bill, and fearing the drawee's insolvency, lodged money belonging to the drawee in the hands of third persons, who were indorsees for a valuable con- sideration, on condition that they should return the money on being exonerated from the bill. Acceptance and payment were refused, but the drawer received no notice of such dishonour. It was holden that he should avail himself of the want of such notice ; for the persons holding the deposit might, through ignorance, have paid it over to the drawee : the drawer was therefore held to be discharged. The rule dispensing with notice for want of effects in the hands of the drawee, is not favoured by the courts, and is never extended. The drawee told the drawer that he was unable to provide for the bill ; but it ap- pearing that he owed the drawer money. Lord Kenyon said he would not fritter away the distinction respecting notice, and nonsuited the plaintiff; for the drawee was in fact indebted to the defendant, and so had effects in hand. On the day before a bill became due, the indorsee the drawer have appropriated the effects to the satisfaction of their debt, yet, as long as the effects still remain in the drawee's hands, the drawer is entitled to notice. 2 Camp- bell, 503, Blachhan v. Doren. S. 2.] BILLS AND NOTES — NOTICE. 3S7 applied to the drawer, who said that the drawee had then no effects in his hands ; but it was remarked that the bill would not fall due until the next day, and that effects might then be forthcoming. On the day the bill became due, the defendant, the drawer, said he would see what he could do ; he would endeavour to provide effects, and would see the plaintiff again. This declaration on the drawer's part was held not to super- 2 Starkie, 57, , ,, -. c i. ^ Prldeaiix v. sede the necessity 01 a presentment. Collier. The drawer of an accommodation bill is within the protection of this notice. Neither the indorsee nor the drawer of a bill of this sort had any effects in the hands of the acceptor, but it was held that the drawer should have had notice of dishonour from a subsequent indorsee. The defendant, the drawer, miaht have called on the 3 Bamewall & ^ Alderson.oig, indorsee, for whose benefit the bill was drawn; and Cory v. Scott. *' I think, too," said Chief Justice Abbott, " that he " might have called upon the acceptor to do so." ** The j^ g^^ bv -lb. " ground for the former decision [Bickerdike v. Bolmati] b»tt, Ch.J. " was, that if notice had been given, there would still " have been no person to be found upon whom the " party to whom notice was omitted to be given might " call for the money ; but here, at least one, and perhaps *' two persons, are in that situation." So that, if upon taking up the bill, the drawer would Bayley, p, 239. be entitled to sue the acceptors or any other party to the bill, it will be an excuse that he have no effects in the drawee's hands. The drawer having no effects in the hands of the drawee, is not entitled to notice. If the payee have effects in the drawee's hands, and the bill be drawn to accommodate him, it seems that the drawer should have 3 Bamewall & ' Alderson, 022, notice ; for he may, on default, have his remedy over K Abbott, against a third person. But if it be not an accommo dation bill, the fact of the payee having money so c c 2 388 SECUKlTiES FOR MONEY, AND INTEREST: [Ch. 3, 1 Bosaiiqiietfic deposited, will not give the drawer the privilesre of Puller, G5'2. f- f O Waiwyu V. St. notice. Qumtiu. Payment of part of a bill or note, or a pronaise so to do, after he has acquired a full notice of the default, is a direct admission that the debtor has no remedy against any other person ; he is, therefore, neither en- titled to notice, nor to insist upon a neglect of present- ment. As where the indorsee of a note presented it for payment, but was put off, under various excuses from the maker, for three weeks, when the maker became bankrupt. The indorsee then applied to the payee, stating what he had done, and the excuses of the maker ; the payee answered, that when he came to town he p"."'^'"'^^^g" would set that matter to rights ; and upon this evidence Anson W.Bailey, the plaintiff recovered. But where the indorser pro- posed to pay the bill by instalments, not knowing that the uidorsee had been guilty of neglect, and that he was not bound to pay, the Court held that the want of notice had not been waived, and they considered the 7iarGooTai[v! defendant's promise in the hght of a conditional offer Dolley. to pay. And where, before the bill became due, the defendant, the drawer, was informed it would be dis- honoured, and promised to take it up, he was still held entitled to notice, though certain monies given him ?o7!"lTuker'i). towards the amount, were considered as money had and Birch. received to the use of the holder. The authorities recently mentioned principally respect notice to the drawer of a bill, or maker of a note ; and it should not be forgotten that the rule does not extend to the indorsers, who are entitled to be informed of a default almost under any circumstances. The principle is, that the party advertised of the dis- honour may look round, and fix upon his debtor; the real debtor, in the first instance, is the person who suffers no injury from the want of notice. So that where the S. 2.] BILLS AND NOTES — -NOTICE. 389 payee of a note lent his indorsement for the purpose of 2 ITcnry Black- guaranteeing the maker's debt, and knowing that the ciSsonr^Gou'- note would not be paid, had (a) provided money to take ^hit. it up, it was notwithstanding held that he was dis- charged for want of notice, for the maker was the real debtor, and the payee a mere surety ; as soon as the payee should have satisfied the note he acquired a right of action against the maker, and thus he was entitled to be made acquainted with the neglect which had happened. A similar decision took place some years afterwards, where the name of the payee was lent for the purpose '3 Fast, 187, of giving the maker of a note credit with his bankers. In a subsequent case, it appeared that a bill had been duly negotiated for the benefit and accommodation of the last indorser, and that the acceptor had no effects of the drawer in his hands, but that the defendant, an indorser, was ignorant of that circumstance ; and it J>^ ^'"^*^' "^If'e ' o ' Brown V, Mat- was held that the defendant ought to have had notice, fey. He had in fact lent the security of his indorsement without value to the last indorser, who had received the money thereupon ; and by Lord EUenborough : " He id. aja. " was in substance, though not in form, a surety for " W, [the last indorser] ; if he had no notice, he might " lose his benefit of reimbursement against W. [the " last indorser]." Further, where the defendant, without consideration, but without fraud, indorsed a bill ficti- tiously concocted throughout, the Court held him en- titled, nevertheless, to notice of dishonour. It was the defendant's own fault to indorse a bill of persons who could not answer over to him; by so doing, he would .jannton -o, be the sufferer; but the situation he had placed himself Leacim. Hewitt. in was only that of a common indorser. (a) The case of De Berdt \. Atkinson is shakta by this de- cision. c C3 390 4 Taunton, 733. per Gibbs, J. 8 Taunton, go. Free V. Haw- kins. 1 Es|)ina5se, N. P. Cases, 30Q, Corney v. Du Costa. 4 Barnewall & Alderaon, 415, by Abbott, Ch.J. 4 Barnewall & Alderson, 200, Smith V. Thatcher. Id. 413, Trea- cher V. Hinlon. SECURITIES FOR MONEY, A ND INTEREST : [Cll. 3, ** The indorser undertakes to pay if those who ought " to pay do not ; therefore he is entitled to notice, that " he may have his remedy against them." No evidence will be admitted to control the legal proceedings of an instrument ; for if parties intend to stay the legal operation, they ought to express their intention ; and therefore a plaintiff was not permitted to prove, as a waiver of notice, that the defendant had admitted his knowledge and expectation that payment of the notes in question was not to be enforced until certain estates had been sold, and then only condi- tionally. The principle which may be discerned in the pre- ceding cases, of leaving the remedy open against the chief debtor, does not apply, as we have already observed, where the party not receiving notice is himself bound to satisfy the instrument, without looking to any other person. Where, therefore, the payee of a note took money from the maker in order to secure himself, and then made an indorsement for the benefit of the maker's creditors, he was considered as solely liable, being the proper person to pay the note, and his defence of no notice was unavailing. If a person make a bill payable at his banker's, he is not entitled to notice of nonpayment. " The most " plain and simple rule to lay down is this : that the " effect of an acceptance in any of these forms is a '' substitution of the house, banker, or other person " therein mentioned, for the house or residence of the *' acceptor ; and consequently, that the presentment at " the house, or to the person named in the acceptance, " is equivalent to presentment at the house of the " acceptor." So that, whether the drawer have enough in the hands of his banker to satisfy the amount of his bill, or not, it seems clear that he is not entitled to notice. S. 2.] BILLS AND NOTES — NOTICE. 39I The same law was laid down by Lord EUenborough, unhesitatingly, with respect to promissory notes ; namely, that the maker was not entitled to notice sCampb.aSi, •^ ' _ l^earse v. rem- where he made the instrument payable at his banker's, berthy. Lastly, if the holder of a bill or note pay it in his own wrong, as if he discharge it after the laches of a former holder, it will not be competent for him to recover against another person who sets up laches as a defence ; and it was so held in a case where the second indorser, having taken up a bill dishonoured for want of accept- ance and payment, brought his action against the first r^scow' ^'*'^' indorser. Hardy. Having traced the bill or note through its different s. Remedies, stages, we propose now to speak concerning the remedies ^^' °" ^'"^ ^"'^ which persons beneficially entitled to the instrument may have, and then to state the defences which may be set up by such as are sued for payment. As soon as a bill is dishonoured for non-acceptance, a right of action arises ; and there is no distinction upon this occasion between an indorser and the drawer: so that the holder may sue before the bill becomes due. The right of action is not gone by a loss of the bill or note ; but the instrument must be satisfactorily ac- counted for, as that it has been destroyed by fire or other accident, and the plaintiff's title to it must be proved. An offer of indemnity is not sufficient; although Lord EUenborough has declared that it is usual and proper to pay upon an indemnity ; an entire note must be pro- duced, or proof must be given that the paper itself, or 3 Campbell, that part of it which is wanting, has been destroyed (6). johnson/"'^ ^' {!>) There is a difference where a bill has been indorsed, and where not. For where a bill unindorsed had not been heard of for two years, it was considered no defence to say, c c 4 392 SECURITIES ^OR MONEY, AND INTEREST: [Ch. 3, Proof that a bill had been specially indorsed to the plaintiffs, and that they had not indorsed it away, was o,/!?^tL'„ deemed sufficient to enable them to recover, althoup;h 2i4> n. Long t). ' o Bailie. the instrument was stolen. Still where the loss hap- pened before the bill became due, and the acceptor repeatedly and expressly promised to pay it, Lord Ellen- borough nonsuited the plaintiff, for there was not any 4 Taunton, 602, new consideration, but the Court thought that the 9 & 10 Will, o, plaintiff might have required a new bill under the statute ch. 17, sect. 3. of William 3. It is provided by that Act, that if any inland bill be lost or miscarry within the time limited for its payment, the drawee shall, on security given, upon request to indemnify him if such bill shall be found again, give another bill of the same tenour with the first. Again, although a bill had been drawn for more than six years, and after action brought, and notice of trial Holt's N. P. griven, it was stolen : the Court held that the plaintiff Cases, 144, o ' ' i Poole V. Smith, could not rccover without producmg it. 7 Barnewall& The same doctrine has been solemnly established in a Cressvvell, qo, i , Hansard . Ro- very late case. binson. But where the defendant had desired to have a copy of the bill, and afterwards desired to see the original, 3 Maule & Sel- which was shown him, upon which he admitted the Brownv.Mes- acceptance, and promised to pay, and then the bill was '""•, stolen after it had become due, the Court referred it to the Master to compute principal and interest. If the acceptor improperly detain a bill in his hands, 5 East, 477, by the drawer may, nevertheless, sue him on it, and give Lord Eilenbo- rough. that such a bill had been accepted for goods sold and deli- vered. 4 Bingham, 273, Rolt v. Watson. See 1 Broderip & Bingham, 295, Champion v. Terry, where the bill had been indorsed. S. a.] BILLS AND NOTES REMEDY IN CASE OF LOSS. 393 him notice to produce the bill, or, on his default, give parol evidence of it. The right of action is taken away by the acceptance of a higher security, as against the party giving that security, but not further ; and the same may be said, if a judgment be obtained on the bill, as far as it relates to p. 267. the party against whom it is recovered. But if a warrant of attorney be given to enter up judgment, which is not entered up, it is merely a col- lateral security, and the original debt will not be L^^'":?''^'-' J' . ° . . 3^9' J> orris v. merged ; it is like accord without satisfaction. And it Ajlett. is observable, that the holder may sue the indorser after a judgment against the drawer, as he may also a prior indorser, after taking another in execution and dis- charging him upon a letter of licence. So that the Barley, p. 268 judgment and execution do not operate as a satisfaction either as to antecedent or subsequent parties to the bill, unless the money, indeed, be levied. So where the holder of a bill sued the acceptor, who obtained his dis- charge under the Lords' Act, it was held competent for the drawer, who satisfied the holder, to charge the ac- ceptor in execution afterwards ; and, indeed, the conse- quence of the defendant, [the acceptor,] not being liable, would be, that because the drawer was obhged to pay the holder of the bill, the acceptor would be discharged ^ TermRpports, ... ^ => 825, Macdonald without paymg either. i,. Bovhigton. Nor will a tender of the sum due, where a bill has been mislaid, on condition of its being delivered, be any Bayley, p. 270. satisfaction. Bills were sent up on account from country to London <, 1 • . ^ -^ I Starkie, 483, bankers, at a time when the country bankers were in- Atwood v. debted to the others, and, subsequently, the account see Moody & changed in favour of the country bankers. Ultimately, ^lalkin, 14, the country bankers failed, and those in London sued Southey. the acceptors of these bills. The defendants counsel contended, that as the bills were transmitted for the 394 2 TermTleports, 5a, Auriol V. Thomas. 3 Bosanquet & Puller, 335, Pollard V. Her- ries. a Stark ie, 166, Darnell r. Wil- liams. SECURITIES FOR MONEY, AND INTEREST: [Ch. 3, purpose of covering an existing balance, the claim of the plaintiff was extinguished so soon as the balance turned in favour of the country bankers. But Lord El- lenborough said, that there was a period when the plain- tiffs' lien ceased to attach, and when the bills might have been redeemed, but, as they were not reclaimed, the lien revested. Judgment for the plaintiffs, with principal and interest. However, if satisfaction be once made, it operates as a discharge of all the parties. With respect to the manner of payment and inciden- tal expenses, it has been held, that the indorsee may charge the indorser with interest, exchange, Sic. beyond five per cent, if such charges be reasonable, and be war- ranted by usage, and not as a colour or screen for usury {c). Tt has been further decided, that if the holder of a note have the option of being paid either at the place where it is made, or according to the course of exchange between that place and another, he has a right to be paid according to the course of exchange when the note becomes due, although at the time when the note is given there be a direct, and when it becomes due, a circuitous course of exchange. There are several defences which will prove available against actions brought to recover upon these instru- ments. And among these, a want of consideration is a fatal bar. An inadequacy of consideration defeats the bill only pro tanto. So that in an action by the payee (c) The drawer is liable for re-exchange, but the acceptor is not. Bayley, p. 282, 3. A charge of 10*. per pagoda on a bill returned protested from India was deemed not excessive, though the pagoda was taken in payment here at the rate of 6 *. 6 d. 2 Term Reports, 31. Juriol v. Thomaa. S. 2.] BILLS AND NOTES — DEFENCES TO ACTIONS. 395 against the acceptor, the latter was permitted to show g^^^j^. that he had value for i o /. only, and the remainder of Jones r. Hib- the acceptance was to accommodate the plaintiff. So ^'^* where bankers knew that a bill had been accepted for the drawers' accommodation, and had received it from them for value, after which the drawers became bank- rupts, the bankers were considered to be entitled to no more from the acceptor than their balance, as between them and the drawer at the time of the bankruptcy. And if a bill or note come into the hands of a party for a valuable consideration, and honajide, he will be able to recover upon it, whether it has been wholly or par- tially without consideration at the time it was first nego- Morris 'v. Lee. ' tiated id). Supposing the contract, by virtue of which a bill has been given should fail, or be altogether rescind- 1 1 1 -11 • If • ■ 1 1 p -1 /> -1 2 Taunton, a, ed, the bill itseli is gone, and the failure of considera- Lewis v. Cos- tion may be insisted on as a ground of defence. But g""^^^* the failure must be such as can be ascertained specifi- cally, if the damages sustained be unliquidated, the de- fence will be invalid ; for example, if it be said that goods, the consideration for the bill, have been charged at an exorbitant price, that an apprenticeship has been dissolved, &c. Again, illegality in the consideration is a sufficient defence {e). And if the bill be in part vitiated, it will be of no avail that part is founded on a good consideration. id) Bankers who have accepted beyond the amount of a cash balance in their hands, are said to hold bills of their customers for value for whom they are under acceptances. 1 Starkie, 1 , Bosanquet v. Dudman. And it makes no differ- ence that they hold other collateral securities more than suf- ficient to cover the excess of their acceptances. Bayley, P- 399- (e) See various examples of illegality in Bayley on Bills, p. 400-40G. 396 By Mansfield, Ch. J. 3 Taun- ton, 227. a Burrow, IO77, Robinson v. Bland. 1 Espinasse, 274, Daniel v. Cartony. SECURITIES FOR MONEY, AND INTEREST: [Ch. 3, for the security is entire, and cannot be apportioned. Still it is worthy of remark, that though a bill be thus tainted, and void, yet if there be a privity between the parties as to the good part, an action may be maintained so far independently of the instrument. As where money was lent to play with, and also for money lost at play, there being no positive law against lending money for the former purpose, the plaintiff was allowed to recover what he had lent in that way as a debt. The want of consideration does not affect the bill where it travels into the hands of persons who give value for it ; but an illegal consideration most frequently de- stroys and vitiates it even in the hands of an innocent indorsee (/"). However, in the case of usury, it is enacted by 58 G. 3, ch. 93, that unless such an in- dorsee at the time of discounting or paying the consi- deration, be apprized of the usurious contract, the bill shall not be void in his hands by reason of the original illegahty (g)- A bill was originally good, but it was discounted by a person who took about eighteen per cent for it, and this was urged as a ground of defence for it. But by Lord Kenyon — " Usury in any intermediate •' transaction respecting [the bill] can never make it " void in the hands of a houajide indorsee, where there " was no usury in the original transaction. This opinion of Lord Kenyon has, however, been con- sidered subject to qualification in this way : if the plain- tiff, in making out his title, be not bound to state or prove the signature of the person who has used the bill usuriously, he may recover notwithstanding ; but if it be necessary that he should derive his title through (/") See several instances in Bayley, p. 410. ,- ig) But he mist prove that he is a bojidjide holder. Moody & Malkin, 80, Wyat v. Campbell. S. 2.] BILLS AND NOTES— DEFENCES TO ACTIONS. 397 an usurious indorsement, it seems that he will fail ; at i Starkie, 385, least the latest authority is to that effect: and the opi- za^edo-^ but^^ nion of Lord Tenterden has recognised that authority. Pa^r v. Eiiason, Nevertheless, where a bill was accepted for a gaming contra ^/o'; debt, and indorsed over by the drawer for a valuable ^ Bamewaii & • 1 • 1 ^ • -rr • i i i i i ■ Alderson, 590. consideration to the plaintiii, it was held that the action would lie against the drawer and indorser ; for the object of the statute of Anne was to prevent excessive and deceitful gaming, and it was with that view enacted that securities so obtained should be void : the securities are held void, therefore, for any purpose of enforcing pay- 4 Bamewail & ment of the money won at play, and the acceptance also ri^^'^'^^j"' ^*^' is void. And further, by Lord Tenterden : " There is Dick. " no case upon the Statute of Usury, where a drawer, j^j 2,- " after having parted with a bill for a good consideration, " can afterwards set up as a defence an antecedent " usurious contract between himself and the acceptor ; " for if so, a court of justice would enable him to commit " a gross fraud upon an innocent person." This original illegality of consideration may, however, be avoided, by substituting a bill given for the principal 2 Taunton, 184, and legal interest only. Certain usurious securities Hedley.*' were destroyed by mutual consent, and the borrower of the money obtained upon usury subsequently pro- mised to pay ; this promise was held to be founded on a sufficient consideration, and so binding upon the borrower. But where the innocent holder of a bill infected by usury, being made acquainted with its inva- lidity, took a fresh bill in lieu of it, drawn by one of the parties to the original usury, and accepted by a third person for the accommodation of the other, the '^ Bamewail & learned Chief Justice considered that the bill so substi- Chapman v. {h) Lord Kenyon decided the last, and Lord EI borough the first case, and both came under the revison of the Court of King's Bench. Black. 39^ SECURITIES FOR MONEY, AND INTEREST: [Cll. 3, tuted furnished no ground for an action at the suit of the original holder, and his opinion was confirmed by the Court of King's Bench. And where an account was settled between the borrower and the lender, original 2 Starkie, a*?? Securities for usurious interest having been cancelled, Preston V Jack- but it was agreed that a note should be given for the usurious interest, Mr. Justice Holroyd adverted at once to the invalidity of the note, as being given in further- ance of the usury. The substituted bill is, in effect, open to the same objection as the original bill, unless the illegality be expunged, and the legal interest alone expressed to be due. It is a principle of law to uphold the instrument, if possible, nt res magis valeat, qnam pereat ; so that where a note for i oo I. was originally given upon an illegal consideration, and two notes were afterwards substituted for the balance, the maker having paid part of the Bayley on Bills, 100 A, it was held, in an action by an innocent indorsee 409, Hubner v. Qf qj-^q q{ these notes for a valuable consideration, that' Ricliardsou. it was for the defendant to make out that some of the gaming debt made part of the consideration of this riote ; it might be wholly included in the other note, and the defendant's promise to pay the note in question implied an election on his part that it should be so 3 Barnewall & included in the other. And upon this principle it was, Wri^Tu'' '^^' *^^^ where a person had two demands upon another, Laing. the One a valid, the other an illegal demand, and a pay- ment was made by the debtor not specifically appro- priated by either party at the time of payment, the Court held that the law would appropriate it to the debt which was legal. There must be an actual loan of money by the party advancing it, in order to avoid the bill on the ground of an usurious consideration; it . is not sufficient that exorbitant brokerage has been taken. So that it was held no defence by the acceptors of a bill, to say, that ten per cent had been taken for S. 2.] BILLS AND NOTES — DEFENCES TO ACTIONS. 399 brokerage ; the broker neither advancing the money \ i East. 4.-5, nor putting his name on the bills, and the indorsee ley^""* *" '^' moreover, being entirely innocent of the exorbitant brokerage. Another defence to an action upon a bill or note is the discharging or giving time to any of the parties. This indulgence operates as a discharge of every other party who would, upon paying the bill or note, have been entitled to sue the person thus discharged or in- ^^.,]^y o^i Bills dulged with further time. But if a party, who other- p--^ii- wise would have been discharged, give his assent to such indulgence, or subsequently promise to pay, his liability will remain or revive. As where the holder of a bill informed the drawer that he should take security 2 Bosanquet & from the acceptor; upon which the drawer said he chikr ^Devlin might do as he liked, for that he himself was discharged for want of notice. Here the drawer's conduct amounted to a tacit consent to the intended agreement between the holder and the acceptor ; he should have said, " if "you give time to the acceptor, I will have nothing " more to do with it," but he suffered him to go away without any objection. In another case the drawer said, 12 East, 38, " I know I am liable ; and if J. does not pay it, I will." Stevens i;. This was after an indidgence, and the Court held the drawer liable upon this promise. In the former case the liability continued ; in the latter it was revived. If the holder were instrumental in raising a belief in the party promising that he was liable, when in fact he was Bayley, p. 273. discharged, the case would probably be otherwise. The drawer is discharged if the condition of the acceptor be varied without his assent ; as where an agreement was entered into between the holder, the acceptor, and the assignees of the drawers, before the bill became due, by which the acceptor agreed to pay the amount of the bill, provided he should not be 1 Starkie, 7, De ,, , ' . . la Torre v. Bar- called upon to pay more : this was held to be a waiver day. 400 1 Bosanquet & Puller, 652, Walw^n V. St, Quiiititi. By Eyre, Ch, J. Id. 655. Same case as above. 4 Maule & Sel- tvyn, 226, Cla- ridge v. Dalton. By Bayley, J. 4 Maule & Sel- wyn, 232. 5 Taunton, 515, Carstairs v. Roi- leston. SECURITIES FOR MONEY, AND INTEREST: [Cll. 2, of the right of action against the defendants, the drawers. But after the bill has become due, and has been protested with notice to the drawer, a right to sue the drawer has attached, and the holder is not bound to sue the acceptor ; so that it was held no defence for the drawer, in such a case, to say that indulgence had been given to the acceptor. Had the forbearance taken place before noting and protesting for non-payment, so that the bill had not been demanded when due, it is clear that the drawer would have been discharged ; it would have been giving a new credit to the acceptor. It is no defence for the drawer to say that part of the money has been received on account from the indorsee ; nor that an indorsee has given time to the payee. " The " case of English v. Darley (i) established, that if the " holder agree to give indulgence for a certain period ^' of time to any one of the parties to a bill, this takes " away his right to call on that party for payment before " the period expires, and not only to call upon him, but " all the intermediate parties ; for otherwise, if he were " to oblige them to pay the bill, they would immedi- " ately resort against the very person whom the holder " has indulged, which would be inconsistent with his " agreement ; therefore, if he give time to the payee, " he cannot call on the indorsers. But this rule does " not apply to a party lower down on the bill ; as if " the fifth indorsee were to give time to the last in- " dorsee for six months, purposing in the mean while " to endeavour to get a payment from the indOrsers " lower dower on the bill, this might well be done." So if the indorsee release the payee of a note, the maker is not thereby discharged, although it were in fact an accommodation note ; if, however, the holder have notice ( i) 2 Bosanquet cV Puller, 61. S. 2.] BILLS AND NOTES — DEFENCES TO ACTIONS. 40I that the note was given originally without consideration, perhaps the case might be different. And if time be given to the acceptor of an accommodation bill, the drawer of it will not be discharged ; for the drawer must be considered as the principal debtor, and the acceptor in the light of a surety. " The reason why notice of " the dishonour of a bill must in general be given to 3 Campbell, *' the drawer, is that he may recover himself by with- ^ai'i,/' '^" ^' " drawing his effects from the hands of the acceptor ; ** and he is discharged by time being given to the " acceptor without his consent, because his remedy over " against the acceptor may thus be materially affected. IJ- 282, hy Ld. " But where the bill is accepted merely for the accom- ° " modation of the drawer, he has no effects to withdraw, " and no remedy to pursue when compelled to pay." With respect to the discharge of indorsers, the rule is this : the several parties on a bill are chargeable re- spectively in order ; the acceptor is first liable, and the indorsees in the order in which they stand on the bill ; but the suing or taking a security from one of the parties liable, shall not discharge another who is liable prior to 3 Espinasse, 4f), him in point of order; discharging an indorser will, S'li'^'"'- Ku^x. therefore, be a discharge of a subsequent, though not of a prior indorser. There is yet another species of defence, which is nearly allied to that of which we have just been speaking ; and it is, that a bargain has been made for a renewal or indulgence. This bargain, however, must appear on the face of the note, unless it take place after the giving or transferring. A promissory note was given in evidence, payable on " demand, for value " received," and Chief Justice Abbott received evidence 3 Barncwall & to show that the note was not to be paid until after the woodbriV'e ^! death of the maker; but he afterwards retracted his Spooner. opinion, in conformity with that of the other Judges, and also in conformity with the rule which prohibits the D D 402 SECURITIES FOTl MONEY, AND INTEREST : [Ch. 3, admitting extrinsic evidence to show that the intention of a party executing a written instrument is different from that apparent on the face of the instrument itself. By Lord Ellen. And on the Other hand, " there may, after a bill is borough, 3 ^ te (Jrawn, be a binding promise, for a valuable consi- ** deration, to renew it when due; but if the promise is " contemporaneous with the drawing of the bill, the " law will not enforce it." But where the renewal has been duly promised, there must be an application for that purpose, or it will be of no avail to the party sued. The defendant, the acceptor, relied upon an engagement on the part of the plaintiffs, drawers, that they would a Sta ki 286 renew the bill for three months if a certain circumstance Gibbon v. Scoit should not happen before the bill became due ; but it appearing that no application had been made to renew the bill, the defence was held unavailing. If a bill be given for a specific purpose, it is a good defence for the acceptor to say, that the intention has been violated, and the bill disappropriated. As where the drawer, fearing that a docket would be drawn against her son, indorsed a bill for 400/. to him, which he indorsed and delivered to the plaintiff for the special 1 Starkie, 439, purposc of getting it discounted, and the plaintiff, instead m^^ir^ ^ ^^ fulfilling that purpose, insisted upon retaining it as a security for his debt ; it was held that he could not so appropriate it ; and in an action against the acceptor, he was nonsuited. The subject of interest on bills and notes will be mentioned in the next section. S 3/j iNTEP.EST. 4*^;^ SECTION III. OF INTEREST. Lord Ellenborough, in the case of De TJaviUand v. Boiverbank, expressed himself thus : " It appears to me " that interest ought to be allowed only in cases where ' Campbell, 51. " there is a contract for the payment of money on a " certain day, as on bills of exchange, promissory notes, *' &c. ; or where there has been an express promise to " pay interest ; or where, from the course of dealing " between the parties, it may be inferred that this was *' their intention ; or where it can be proved that the " money has been used, and interest has been actually *' made." We shall of course confine ourselves here to the consideration of the claim of interest arising out of com- mercial dealings; and in conformity with the judgment ,2 Ensr, 410, of Lord Ellenborough, it has been decided, that upon Gordon v.Swan. the sale of goods, and a day fixed for the payment, inte- rest would not run from that day. So where money was lent, and no evidence of any course of dealing between the parties was given, whence it might be in- ferred that interest was agreed to be taken, the Court 15 East, 223, disallowed the claim; and by Lord Ellenborough: Calton r. Bragg, " Hitherto it has only been allowed upon written con- ** tracts, express or implied, for the payment of interest." Id. 229. Again, interest is not recoverable upon a policy of insurance, although Mr. Justice BuUer permitted it upon one occasion ; and in a case where it was claimed upon a life assurance. Lord Chief Justice Abbott, in dis- allowing it, said, " It is now established, as a general " principle, that interest is allowed by law only upon *' mercantile securities ; or in those cases where there *' has been an express promise to pay interest ; or where. D D 2 404 2 Barnewall & Cress well, 348, Higginst;. Sar- gent. a Bligh, 169, Hamilton v. Houghton. 1 Moore, 481, Lee V. Munn. Douglas, 376, Eddowes v. Hopkius. 1 Henry Black- stone, 303, Trelawney v. Thomas. 3 Bingham, 353, Arnott V. Red- fern ; see also 1 Maule & Sel- wyii, 169, Hil- house V, Davis. 3 Taunton, 157, Slack V. Lovell. 13 East, 98, Marshall v. Poole. SECURITIES FOR MONEY, AND INTEREST: [Ch. 3, " such promise is to be implied from the usage of trad^, " or other circumstances." And a simple contract debt will not carry interest, because provision has been made for paying it by a deed of trust, where there has been no agreement to pay it. An auctioneer, who is a mere agent holding a deposit in his hands during the investigation of a title, , and not mixing himself up as a principal in the transaction, is not liable to this claim. However, it is competent for a jury on some occasions to give interest by way of damages ; as upon book debts, for there may have been a long delay under vexatious and oppressive circumstances. But on a demand for work and labour, they cannot award a sum for interest in that way ; although they may give it upon a demand for money lent. So they may award interest by way of a penalty where a debt has been wrongfully withheld ; it is in the shape of damages for the unjust detention of the money ; and so it was held in the Common Pleas, in an action upon a Scotch judgment. The distinction is between the verdict of a jury, which awards the inte- rest in the nature of damages, and the ordinary calcu- lation on bills of exchange, which is made because the interest arises there ex contractu. Interest may be recovered in another way, although there be no commercial instrument actually in existence, nor any agreement to pay the interest. As if goods should be sold and delivered upon an agreement, on the vendee's part, to pay by a bill at a certain date ; here the agreement would be to give a security, which would carry interest ; and as the performance of the contract would have entitled the sellers to interest upon the bill, they ought not to be prejudiced by the breach of it. But where an agreement was made, that in case certain . bills (not made to bear interest from the days of their dates) should not be paid, interest, by way of penalty. S. 2.] INTEREST. 4O5 should be paid from the days of their dates, the contract was held unavailable, and the Court adjudged interest ^ Henry Black- stone 227 Orr only from the time the bills became due. v. ChurchiU. There is another event upon which the plaintiff be- comes entitled to interest in the shape of damages ; and it is, where he has made a deposit towards the purchase of an estate, which is not completed : here he becomes I ^^°°J^' 322, , . Farquhar v. entitled to the mterest from the time the purchase should Farley. have been completed. And this is perfectly consistent with Lord Ellenborough's rule ; for one of the grounds for claiming interest mentioned there was, that interest might run under special circumstances, from whence fd^^T^'"^' a contract to that effect might be inferred. Lord Ellenborough had, indeed, holden the same doc- trine some years before, by allowing the plaintiff interest 3 Campbell, as special damage for the non-completion of the pur- *^^' ^%y'^'^j chase, and as a compensation for his loss. On bonds, bills, and notes, conditioned for the pay- ment of a lesser sum than the penalty, interest is reco- verable as a matter of right. And in a case where there was no day certain mentioned in a bond for the payment of the money, although the counsel for the defendant urged that no interest was due, because none was re- 7 TormReporfs, served, the Court said that the bond was payable at ^^"^tiJrl?"^''" a day certain, being the day of the date, and the claim for interest was sustainable according to the same rule. But the Court refused to allow interest on a sinfjle bond, which was given in consideration of being found 1 Bosanquet& a passage on board of a ship ; and there seems to be Hogan vfra<^e. a distinction between a single bond, and one conditioned for the payment of a less sum. As a general rule, inte- Id. 337, n. rest on a bill or note is computed from the time at which it becomes payable ; but where it is payable at such a time after date, bearing interest, the interest is then ' Starkie, 452, to be calculated from the date of the bill. So, again, NashT ^ ^" D D3 406- SECURITIES FOR MONEY, AND INTEREST: [Cho 3^ Ryaii&Mooiiy, where there was a bill for so much money eight months DibdS!'"''" '' afte^ date, with lawful interest for the same. The bill must be produced, or the jury will be directed Id. 145, Fryer not to give interest; although evidence was given, in V.Brown. ^ ^^^^ where the bill was not produced, that the defen- dant admitted the debt, and said he hoped the plaintiff would forego interest, and that he would pay the principal. 1 Starkie 507, ^ promise to pay legal interest on demand, must niond. mean from the date of the instrument. There is a case in which it was held, that where the 5 Taunton, 240, drawer had notice of the dishonour of a bill, and ten- Barnes, ' dered the money on the next day, he was not liable to interest between the day when the bill became due and the day of notice of the dishonour ; but the propriety of that decision is questioned by Mr. Justice Bayley, J). 280, ill liig treatise on bills of exchange. 2 Barnewali & j^ jg j^q^ nccessarv to protcst an inland bill, in order Aldcrson, 696, . . . . Windie v. An- to acquire a claim for interest. drews. rpj^^ awarding interest is a matter for the discretion of the jury; they are empowered to withhold interest if they see fit. Thus where the plaintiff had been for many years an alien enemy, and there was no proof of a claim upon the note from the time it had been made, Bayley on Bills, the jury inquired if they were bound to give interest, \oh. il'LoTd^"^^' ^^^d the Chief Justice having told them that was for "Waterpark. their consideration, they withheld it ; and upon a motion to increase the verdict by adding the amount of interest, Abbott, Ch. J. observed that it would have been illegal to have paid the plaintiff during the time of his being an alien enemy, so that damages could not have been legally given for that interval. The motion was refused. a. 4.] USURY, 407. SECTION IV. OF USURY. If a contract be usurious in its commencement, no subsequent evasion will avoid the statutes against it ; and on the other hand, if it be not usurious when entered into, no after event will make it so. It is not our intention here to enter upon the subject of usury in all its bearings, but rather to mention those contracts which are usurious, and such as are not tainted by that illegality. It is well known that the statute of Anne prescribes the rate of interest at 5/. for the forbearance 12 Anne, st. 2, of 100/. for a year, and that various severe penalties '^''- 1^- are inflicted upon such as offend against its enactments. The rate of interest in the East Indies has been subse- quently fixed at 12/. per cent ; and in Ireland and the West Indies at 6 /. per cent, upon mortgages and other securities for lands only. The Judges have recently expressed their opinion that the statute regulating the rate of interest in the 1 3 G. 3, cl). 63. East Indies does not limit the rate of interest on loans made within the dominions of native independent sove- reigns, by British subjects domiciliated and residing 3 Bingham, 193. within such dominions. The Governor and Company of the Bank of England, and the South Sea Company, are permitted by statute to borrow money at any rate of interest they may think proper to give. And lastly, where contracts are made in a foreign country, our courts will direct the payment of interest according to the rate allowed in each usuiy"p."8, country. It is scarcely necessary to observe, that if an agree- By mistake. ment be so inaccurately worded, through mistake, as to D D 4 4o8 1 Campbell, 149, Glassfurd 1'. Laing. Commission. 4 Maule h Sel- wjn, 192, Car- stairs V, Stein. o Campbell, 348. 1 Maule & Sel- y/yn, 5G, Palmer v. Baker. SECURITIES FOR MONEY, AND INTEREST: [CIl. 3, bear an usurious consideration on the face of it, or if a mistake should in any way appear capable of being satisfactorily explained, the parties will not be preju- diced. As where the plaintiff's agent inadvertently cal- culated the interest upon some bills at 6 /. per cent. Sir James Mansfield, on proof of this, permitted the plaintiff to recover for the sura bona fide due. A commission is a reasonable charge for trouble ; but if the commission overstep the bona fide trouble, it becomes usurious ; that is, however, a question for the jury. It is a suspicious circumstance if it be mixed with an advance of money, in order to effect an induce- ment for such advance from time to time. Whatever is fair and reasonable, and is not a colour or screen for usury, ought to be allowed. As where there was considerable trouble in executing the trusts of a deed, for which 200/. were agreed to be paid in addition to the principal money advanced, and 5 1, per cent interest, the Court held it not to be usury ; for to support that charge, it ought to appear clearly that the payment stipulated for is either colourable or frivolous in its nature, or excessive in its amount. The deed was for assigning to the plaintiffs a contract for the purchase of timber. Much discussion has taken place regarding usury on the discounting of bills, but it seems, that the principle stated above may be very fairly also applied to this case, namely, that to take a commission for any extraordinary risk or trouble is not to be considered an usurious trans- action ; and it is worthy of particular observation, that the question of usury or no usury is peculiarly for the jury's decision. All the circumstances of a case must be taken carefully into consideration before a judgment can be formed upon the subject ; in order that, on the one hand, subtle devices and evasions may be detected, and on the other; that fair and reasonable remunerations S. 4'] USURY. 409 for services may not be deemed usurious engagements. A banker in the country discounted bills for his cus- tomer at four months, and took the whole interest for the time they had to run ; part of the money was car- ried to account, part paid in cash, part paid by bills on London, at three, seven, and thirty days sight; and the Court thought there was room to consider this »Bosanquet& . Puller, 144, transaction as a mixed case of loan and remittance. Hammetr.yea. Had the terms of the remittance formed the considera- tion of the loan, the agreement would have amounted to usury ; had there been an understanding that a cer- tain sum should have been left in the bankers hands for a month, the same result would have happened ; but here the discount and remittance stood properly as sepa- rate transactions {k). And where one having a bill at two months date, which he could not very readily nego- tiate in London, requested a country banker to give him in exchange the acceptance of a London banker at the same date and for the same sum ; this was done, and a sum less than interest at ,5 I. per cent, for the two -o- , o '■ , . 4Bingliara, 81, months, was taken by way of commission. The Court Stovcld v. Eadc. held this not to be usury; the plaintiff, the country banker, consented to accommodate the other person, but demanded something for his trouble and risk ; it might have been suspicious had the plaintiff taken more than 5 1, per cent interest ; but as the matter stood there was no pretence for calling it a loan, it was a mere exchange. So where a broker, besides the discount of 5 /. per cent, allowed 1 /. per cent more on certain bills, which latter sum he considered himself bound in honour Qc) Lord Kenyon had certainly expressed a different opi- nion in the prior case of Matthews v. Griffiths, Peake's Cases, 200, and subsequently adhered to that opinion. 7 Term lleports, 185. 410 SECURITIES FOII MONEY, ANB INTEREST: [CH. 3^, to pay, as he had guaranteed some bills of a firm which had proved insolvent to the party with whom he was doing businesss : it was held, that as the jury had found 7 Bamewall & against the usury, their verdict oug-ht not to be dis- Cresswell, 430, i i • 1 • 1 if. Soiartc V.Mel- turbed, it havuig been left to them to say whether this "*'^"*^' was a contrivance to gain more than 5 /. per cent. But where a person, who had discounted a bill for. the drawer, took a further sum for the purpose of guaran- 1 Taunton, 522, teeing the solvency of the acceptor, of which there was ee V. OSS. ^^ doubt, the jury considered it as a shift to obtain a higher rate of interest than 5 /. per cent, and gave their verdict in favour of the plaintiff in a qui tarn action. So where accommodation acceptors of a bill took two and a half per cent by way of commission. Lord Ellen- borough held the affair to be usurious. " Country 1 Campbell, " bankers," said his lordship, " had been allowed to Lovven. * " take, besides legal interest, a certain commission for " their trouble and expense ; but that was in discounting " bills." Indeed, in a case where it appeared that -o "^"w^'T"^'*' country bankers had, according to the usage, 5 s. per Fenn. ccnt on the gross amount of bills discounted, besides fss.^MasTerman ^^® usual 5 I. per Cent, the Court held it to be no usury : V. Cowrie. and there are other authorities to the same effect. How- ever, if an inordinate commission be charged for dis- 448! ' counting bills, where there is neither trouble nor expense, it seems that it will be deemed usurious. The acceptor of a bill took a premium of 6d. in the pound from the indorsee, the holder, as a consideration for his paying it before it became due, and it was con- 4 East, 55, tended that this was usury ; but Lord Ellenborough said, Barclay t;. • 1 p 1 1 Walmeslcy. that there had been neither a loan nor forbearance, only a mere anticipation of the payment of a debt by the party before the time when by law he could be called upon for it. The party had been guilty of very impro- per practice, but not of usury. The subject of usury as a defence to actions upon S. 4.j USURY. 411 bills or ^otes has already been considered in a late section {I ). In conformity with the above decision, it has been determined, that an arrangement for the payment of the 3 Barnewall & proceeds of goods, not being a loan of money, cannot be Cresswcii, 626, , . . . ' . Ilarvev v. Arch- construed into an usurious transaction. Usury is not bold, confined to the mere taking of money. The plaintiff having lent the defendant 1 ,000 /. the latter agreed to give him 50 /. a year as a clerk in his brewery. The salary was a mere shift, as it was never intended that ^-^^"^Pj^f'.'', , . . , . 1 65, n. \\ right the plaintiff should perform any service, and the Judge v. Wheeler.' held the transaction to be usurious ; but the orio-inal ^ TermReports, . , . 1 . , ^ 238, Scott V. bond so tainted with usury having been cancelled, and Brest, s. p. a new one substituted free from any defect, and not being made to secure the performance of the first con- tract, the plaintiff was allowed to recover, " Where parties have contracted and acted upon an Ryan &Moody, " usurious engagement, state an account, and agree ch^'jl^fn ^\{\^^ " upon the sum which would be due for principal and i>- Gogeriey, " legal interest, after deducting all that has been paid i^jun'd foMhe^de- " beyond legal interest ; and a fresh promise is made to f^'nfia"t, not be- ,, , ^ ■ ■ n r i --i I't^ving that the '* pay that sum, such promise is free from the original deduction had " usury, and is perfectly valid in law." been so made. The advance of goods instead of money is within the statute. The most usual form of usury, said Lord Mansfield, Douglas, 738. is a pretended sale of goods. " And the practice is still " constantly resorted to by advertising money-lenders, *' to persons having only personal security." UsuT" °" To pay five per cent, and the profits of a certain trade, ^ TermReports, is usurious. 353. Morse i;. Another " engine" of usury is the temporary transfer of stock. ** A party may lawfully lend stock as stock {I) Ante, sect. 2.'» 412 Bj Bajrlej, J. 3 Barncwall & Cresswell, 278. 3 TermBeports, 631, Tate r. Wellinffs. 5 Espinasse, 164, Pike V. Ledvvell. 8 East, 304, Maddock v. Rumball. SECURITIES FOR MONEY, AND INTEREST : [Ch. 3,^ " to be replaced, or he may lend the produce of it as " money, or he may give the borrower the option either " in the one way or the other." So that where there was an agreement that the defendant should have the use of the money, the produce of certain stock, paying the same interest which the stock would have produced, with liberty to replace the stock on a certain day, till which time the lender was to run the risk of a fall of the stocks, but that if not replaced by that time, the lender should be repaid the money at all events; the Court con- sidered it a fair, and not an usurious transaction. Contingency in the thing purchased is incompatible with the idea of usury, in which the principal must be always certain. Therefore, the possible fall of secu- curities twenty or thirty per cent is such a contingency, although one extremely improbable, as will exclude usury. As where one lent 160 /. on condition of receiv- ing 400 consols some years afterwards, or such sum of money as 400 consols would produce. By possibility that quantity of stock might not have produced 160/. and so it was held no usury. So again, where the de- fendant owed the plaintifi' a sum of money, for which the plaintiff sued him, and the defendant upon this ex- ecuted a bond, in consideration of forbearing the action, conditioned for transferring on a future day 908 /,16 s. 'jd. stock, which the debt would have purchased at the time of executing the bond, and the bond was moreover con- ditional for such interest as the stock, if invested, would in the mean time have produced ; the Court held, that it was not an usurious transaction, that it was in effect a loan of stock; and the Jury having found that there was no colour for usury, a rule for a new trial was refused. Very different was the case where on a contract for the payment of a debt, it was left to the option of the creditor to transfer so much stock as the amount of the S. 4.] USUHY. 413 debt would have produced on the day it was payable. Here the principal and interest being secured, the credi- tor might take the opportunity of a rise in the stocks to make his election ; and by electins; to have it transferred ^^ Vesey, jun. ' •' S3 _ _ 4^^ Barnard v. at such a time, he would be sure to be a gainer, while it Young. was impossible that he could ever sustain any loss. So where there were two instruments, one to compel the re- placing of stock, the other for the payment of the money and interest ; and the borrower was to replace 3 Bamewaii & the stock, if required, this also was deemed an usurious Cresswell, 272, -^ ^ . . . \V Inter. contract, for the principal was never put in hazard. Wright. " If the produce of stock is lent with an agreement ** that it shall be returned in money, and the dividends 1 . 1 1 r> • 1 By Hulro\d, J, " are in the mean tune reserved by way 01 niterest, that id. 278 ; see *' is usurious if the dividends amount to more than five ^^}^- 257. Farkeri). Kauis- ** per cent on the produce of the stock." bottom. A mortgagor having occasion for a sum of money be- fore his bankruptcy, the lender said that all his money was in the funds, and that to sell out stock then would be a considerable loss, stock being at 73, but that if the borrower would take it at 75, he should have the sum i)oe ^'oavld- ' he wanted. This was agreed to, and the money lent ; son r. Barnard. but the transaction was holden to be usurious, for the value of the stock having been previously estimated by the parties, all was certain, and nothing contingent. The plaintiff in another case had made advances to the defendant, and credited them with 2,5,000/. when the three per cents were at 50, in consideration of which, the defendant undertook afterwards to purchase 50,000 /. three per cents, then at 51 i, in their names, and to 11 East, 612, _ T • 1 1 • Boldero v. account for the dividends from Midsummer-day then Jacksoiu last J this was held to be usury. If a party be indebted to stockbrokers, and they pro- pose to continue to him the loan of the money on receiv- ing a pledge, (of omnium, for example,) which is to be returned at a price so much higher as to amount to more 414 SECURITIES rOR ATONEY, AND INTEREST: [Cll. 3, than 5 per cent on the money forborne, tliere Ijeinfy no contingency in the transaction, so that whether the Co7^Si^ie!iic^"' "^^^^^^ I'ise or fall, the lender must recover his principal, q. t, V. Roberts, the transaction seems to be usurious. However, the Jury in this case found immediately for the defendant. We have seen that the foregoing cases have turned mainly on the point, whether the principal money was Comynon ever ever put in hazard or not. Sir Robert Comyn sums Usury, p. 39. ^p ^j^jg p^j,j. ^£ ^^g subject tlius : — 1. where either the principal alone, or a fortiori both principal and interest, are hazarded, there can be no usuiy: 2. this hazard must be real, and not colourable : 3. the rule only ex- tends to cases where the principal is included in the contingency ; for if the interest alone be hazarded, then no favour is extended to the contract. The Hon. John Spencer expecting a considerable increase of fortune on the death of the Duchess of Marlborough, borrowed of Sir A. Jansen 5,000/. upon bond conditioned to pay 10,000/. with lawful interest in case he should survive the Duchess. The Duchess was then seventy-eight; the Hon. J. S. thirty. Mr. 1 Wilson, Spencer survived a year and a half. Sir A. Jansen sued 286, Earl of Q^|; g^ g(.^f,g facias, upon a iudoment which he had Cliesterfield v. , •< •» , o i i Sir A. Jansen. obtained against Mr. Spencer; and the executors, on the other hand, filed a bill in Chancery to be relieved from the contract, on the ground of usury. The Court decided that this was not usury ; for the sum of 5,000 /. was not to be paid at all events, but only in case Mr. Spencer survived the Duchess. However, if there be any disguise or shift, in order to introduce usury, a con- tract will be invalidated ; as if there be a colourable wager. An imprudent agreement (for instance, a con- tract to enter into articles of partnership under certain circumstances favourable to the lender of money,) is not necessarily an usurious transaction ; for it might happen that an individual introduced into a partnership might S. 4.] USURY. ~ 415 receive an advantage so great as to be worth the con- See 2 Bunow, sideration. 89,. Mmisset r. King. It is observable that a slight contingency will not avoid the statute, where the substance of the contract is a borrowing and lending. And on the last point, it has been said by a great Judge: " If I lend 100 1, to " have 1 20 1. at the year's end, upon a casualty, if the " casualty goes to the interest only, and not to the prin- ** cipal, it is usury, for the party is sure to have the By Doderidge, *' principal again, come what will come; but if the jameTs^os. " interest and principal are both in hazard, it is not See iiowever . , „ Comyiis Rep. then usury. 583, Grant v. However, where the interest is in the nature of a tiordon; and 1 1 1 • • • n ^ Comyu on penalty, or where the redemption is at the option of the Usury, p. 39. borrower, though the principal be never hazarded, it will not be an usurious contract ; for the borrower may avoid the effect of the exorbitant contract by paying the money, and so may defeat the claim of interest. One borrowed 80/. on the 11th of May 1816: on the gth June 1817, the borrower and another gave the lender a note of hand for 87 1. 3 s. in respect of the loan, pay- able by four instalments ; namely, on 29th September and 25th December 1817, and on the 25th March and , Brodenp& 24th June 1818, with an agreement that the whole Bingham, 447, 87 I. 35. should be payable in default of any one instal- ii„g. ment. This, the Court said, was a common stipulation for a penalty in case of default, and so not usurious. And wherever it is in the power of a known borrower to pay the principal in a limited time, without interest, upon non-payment, the reservation of a larger sum than the statute allows is no usury, because usury is an agreement originally to pay the principal with interest P'^L^^^dM ^" above the rate of 5 /. per cent. So that where, upon field. a loan of money, it was agreed that the borrower should assign the lease of premises of greater value, with a power of redemption on repayment, and that, in the 4 Campbell, 1, Doe d.Titford V. Cliambers. 416 SECURITIES FOR MONEY, AND INTEREST: [Ch. 3j mean time, the lender should grant the borrower an under-lease at a greater rent than the legal interest, Lord Ellenborough considered such a contract to be usurious ; for the defendant advanced the money by way of loan ; it was in the contemplation of both par- ties that this should be repaid ; it was never put in hazard ; a;nd interest above the rate of 5 /. per cent was to be paid for the forbearance. It does not belong to this work to say much on the subject of annuities ; but a bond fide annuity for life or lives is exempted from the operation of the Statute of Usury : though Lord Hardwicke, observing upon the casualty of the principal being put in hazard, has said, " Every body knows that this casualty of losing the 3 Aikiiis, 280. *' principal, is secured by insuring the life upon which " the annuity depends." If the annuity be on the score of borrowing and lending money, it is usury ; and if there be a power of redemption given, though only to one side, it is a strong circumstance to show it to be a loan. The discounting of bills depends entirely upon their mercantile character; it will therefore be usurious for the lender, in cases of bonds or other private agreements, to take interest before the time at which it becomes due. If the agreement be that the lender shall deduct the interest at the time when the money is advanced, the sura forborne is not the whole sum mentioned in the contract, and therefore it is usury. Discount for prompt payment seems to be very foreign from an usurious transaction ; and the opinion of Sir Robert Comyn, who wrote on usury, and whose rea- soning is founded upon analogous authorities, is that no abatement on the ground of prompt payment can be usurious, excepting always those cases where the abatement may have been intended as a cover for usury. There is a case, however, in opposition to this doctrine. 3 Bosanquet & Puller, 154, Marsh v. Mar- tindale. Corajn on Usury, p. 1^ S^ 4.] USURY. 417 where some bleachers, who were in the habit of allowing 30 /. per cent for prompt payment, had their demand narrowed to 5 /. per cent by commissioners upon a bank- ruptcy, and this opinion was confirmed by Lord Chan- sys.^e^'paJte ceilor Rosslyn. Aynsworth. With respect to contracts for compound interest, as far as it relates to mortgages, they have generally been considered usurious. As where Lord Yarmouth mort- gaged to Lord Ossulston, with a proviso that if the 2 Salkeld, 449, interest were behind six months, that then that interest ^ ^0,^ yaf.^°" should be accounted principal, and carry interest ; this mouth, clause was decreed by Lord Chancellor Cowper to be vain and of no use. But with regard to mere personal agreements, it seems that compound interest may be made the subject of a contract, or may be allowed where the usage of trade will sanction it. " I have no ■" doubt," said Lord Thurlovv, " there may be a contract *' for compound interest." There seems to be a dis- tinction in this way : ** It is clear you cannot a priori " agree to let a man have money for twelve months, " settUng the balance at the end of six months, and " that the interest shall carry interest for the subsequent ^ Lord Eldoii, " six months; that is, you cannot contract for more pVesey.jun. " than 5 /. per cent, agreeing to forbear for six months. ^^'^* *' But if you agree to settle accounts at the end of six ** months, that not being part of the prior contract, " and then stipulate that you will forbear for six months *' upon those terms, that is legal." The Chancellor went on to say, that the allowance of compound interest could not be extended to a real security. Lastly, with respect to foreign interest, we have already adverted to the statutes which permit a higher o TemiRcports, rate of interest in Ireland and in our foreion depen- 52-AuriolD. " 1 1 • 1 nomas. dencies. It is further observable, that bills payable ni India, when returned here protested for non-payment, will carry Indian interest. So where the East India 1; r. 4i8 1 Peere Wil- liams, 395, Ekiiis t). E. I. Company. 1 Burrow, 1094, Bodii)- V. Bella- 2 Brown's Chancery Rep. 2, Bodtlam v. Rile^i. 3 TerinBe ports, 425, Dewar v. Span. 7 Uarnewall & Cresswell, 453, Beete t'. Bid- good. SECUllITIES FOR MONEY, AND INTEREST : [Ch. 3, Company bought a ship abroad of the commander, who had no right to sell her, the plaintiff, the owner, residing in England ; it was insisted that the plaintiff ought to have Indian interest allowed him ; and Lord Chancellor Cowper acceded to this, observing, that as the money of another had been wrongfully detained, and as the agent of the defendants must be presumed to have made the common advantage that money yields there, the Company ought to answer the interest of that country ; but that, as the money was to be paid here, the charge of returning it from India should be deducted. But as soon as Indian money becomes principal in this country, it shall only bear English interest ; so that after judg- ment had been signed upon a bond conditioned for the payment of Indian interest, although the latter interest was allowed up to the signing of the judgment, 5/. per cent only was thenceforth ordered till the actual payment of the money ; for that was the real damage sustained by the delay of execution, and the detention of the debt. Supposing there to be a transaction upon which interest would be allowed in India, but none in this country, it seems that our courts of justice will not allow it, althouo-h such a transaction arose in India. As the statute permitting 6 /. per cent to be taken in Ireland and the West Indies confines the taking such interest to mortgages and other real securities, it was held usurious to reserve 61. per cent on a bond, executed here, for securing a portion of certain purchase money. But where an estate was sold, to be paid for by instal- ments at future days, with interest at 6 /. per cent (w), and promissory notes were given for these sums, com- pounded of the instalments and that which was called interest, the Court considered the whole transaction to {»/) The legal iiitere:,^ in Demerara. S. 5.] STOCK-JOBBING. 4I9 be a contract for the sale of the estate to be paid by instalments, and so not usurious. It is worthy of notice, that although instruments ^ 'TennR^ports, •^ .-.,.. °. 1 /v 184, Maddock tainted with usury are void in their inception, the offence v. Hammet. of usury is not perfect until the excess of interest has 3 Bamewall & been received in money or money's worth. w^T*^'!' *^^' Laing. SECXION V, OF THE STOCK-JOBBING ACT. It may not be amiss to insert here a few decisions 7 Geo. 2, ch. 8. on the Stock-jobbing Act. And first, it has been decided that it is to a certain extent a remedial law; and the Court therefore per- 6 Taunton, 422. mitted an amendment in the form of action six terms after its commencement. Jobbing in omnium is within the statute; and where 7 Term Report*, a broker drew on his employer for differences paid for ^3o. Brown v. ... Ill- . ,, ^, Turner. mm in stock-jobbing transactions, and the employer accepted the bill, which, after the bill became due, was indorsed to a third person, it was held that the latter 6 Term Reports, could not recover on the bill. Lashley. The defendant's agent, in another case, paid 500/. for differences in stock-jobbing transactions; and for securing the repayment of that sum, the defendant gave his promissory note, and ultimately a bond, for fear of ^ Bamewall & being sued on the note. The transaction was considered Amory v! to be within the Stock-jobbing Act ; the plaintiffs had Meryweather. notice of the illegality of the original consideration before the bond was given, and the instrument itself was void. It is, however, quite obvious that the object of the statute was to prevent gambling in the funds, »nd not to prohibit a loan of stock, with an undertaking E E 2 420 SECURITIES FOR MONEY, AND INTEREST: [Ch.3i to replace it. So that, in a case of this kind, the Court 8 Terra Reports, reprehended the defendant's conduct with much indig- Kentish. nation, who had borrowed stock, and then set up the statute as a defence to an action for not replacing it. Although the lender be no party to the illegal trans- 3Barnewall & actions, yet if he lend money knowingly for the express Alderson, 179, purpose of paying differences, he cannot recover the Bryce. money so lent. The statute has absolutely prohibited the payment of money for compounding differences ; and if it be unlawful in one man to pay, how can it be lawful for another to furnish him with the means of payment ? A bargain for stock is not illegal, although the broker do not disclose the name of the principal at the time of the sale ; and the purchaser may maintain 6io*^Ciiiid'^r^^' ^" action against the principal, if he do not make good Morley. his contract. The words in the Stock-jobbing Act, " public or joint " stock," relate merely to stock of this country ; so that where an action was brought against the defendant Henderson t;. ' for not transferring Colombian bonds, it was objected ^'^^- that the contract was void, the plaintiff not having pur- chased his stock (w) before the commencement of the action ; but the Chief Justice held that the plaintiff should recover. ADDENDUM TO CHAP. III. Moody & Mai- A PARTY to a bill of exchange is not liable for money *"",• ^''.'..^'''n'^^' paid to his use to a person who takes up the bill for his wall 1. lyrell. i ' ^ honour, unless a formal protest of payment to his honour be made before payment of the bill. (n) The statute gives th.: plaintiff the power of purchasing other stock, in lieu of that bargained for, and of recovering the difference. 7 Geo. 2, ch. 8, sect 7. OF BANKRUPTCY. 42 1 CHAP. IV. OF BANKRUPTCY, AND INSOLVENCY. Sect. 1. Bankruptcy. 12. Insolvency. SECTION I. OF BANKRUPTCY. IT is our purpose in this chapter to set out the new Bankrupt Act in a manner the most easily to be under- stood, and to add such of the old decisions as are appli- cable to the present state of the law of bankruptcy. 1. Who Trade) s and who not. By 6 Geo IV. ch. 16, sect. 2, the following persons are i- Who Traders declared liable to the bankrupt laws :— ""^ ^^'° "°'- Bankers. Bleachers. Brokers — as a pawnbroker, &c. Build ers.^ Calenderers. Carpenters. Cattle Salesmen — probably including drovers. Deacon, p. 26. Coffeehouse-keepers. Dyers. Factors. Fullers. Hotel-keepers. Inn-keepers. E E :^ 422 OF BANKRUPTCY. [Cll. 4, Insurers of ships, freight, or other matters, against perils of the sea. Packers. Persons using the trade of merchandize, by way of bargaining, exchange, bartering, commission, consignment, or otherwise. Or who, either for tliemselves or as agents or factors for others, seek their Uving by buying and selhng, or by buying and letting for hire, or by the workmanship of goods and commodities. There must be a regular buying and selling to constitute a trader, one single act is not sufficient. And it must be of the same commodity, and the character of both buyer and seller must be united. The thing must be bought for the purpose of being sold again. The publisher of a newspaper, re-selling papers at a profit, being only a servant to the proprietor ; a fisherman (o), buying fish of other boats at sea, and selling it on shore ; a brickmaker, taking earth off the waste, and not off his own soil, and paying for it, or purchasing clay for making bricks ; the owner of a colliery, buying coal at market with the intention of sell- ing it again, and not for the purpose of mixing it with his own coal, have been holden to be within the bankrupt laws. If it be necessary to purchase foreign produce to mix with that of the occupier's lands, this is a trading, as in the brick- maker's case who bought the clay. Even a smuggler, or a horse-dealer without a licence, may be subject for a commission, for they shall not avail themselves of the breach of one law to avoid another. (0) Not if he buy merely a few fish for the purpose of making up his cargo, in order to supply the market. S. 1.] WHO TRADERS. 423 As to partners, though no one act of buying and seUing be proved against the party, yet if he have admitted his having been concerned with a trader, and have given directions in the business, a commission may be supported against him. So it is if an executor carry on the trade of his tes- tator, though it be for the benefit of the chil- dren (p). If there be a continuation of drawing and re-drawing bills of exchange with a view to profit, it will be a trafficking in exchanges and a trading; within the Act. Note : — Until a person detach himself from the character of a trader, his liability will continue though he abandon the active part of the trade. As a retiring partner, who commits an act of bankruptcy while his debts remain unpaid, a partner who has done no act of trading for two or three years, the concern not being wound up, and the estate undisposed of. See Deacon, p. 27—32. Printers. Scriveners — receiving other men's monies or estates into their trust or custody. This class of persons will include an attorney if he be the general depositary of the money of his clients and other persons, who come to him not simply in his character of attorney, but as a money agent. But there must be a course of deal- ing of this description to render him liable. The receiving money as a mere channel to convey it from a borrower to a lender, or from one client {p) Not if he merely dispose of his testator's stock in trade, even though he buy some additional goods to render those on hand more saleable. E E 4 424 OF bankruptcy: [Ch. 4, to another client, and deriving profit at the same time by drawing the securities as an attorney, will not make a money scrivener within the Act. And the negotiating of occasional sums of money will not make a scrivener. Where the principal business of an attorney was in negotiating annuities and loans of money, whence he mainly derived his profits, but the bonds, judgments, and warrants of attorney were uniformly made out in his office, he was held to be no money scrivener, for, in all the business, the attorney was predominant. Holt's Nisi Prius Cases, 654, Hurd v. Brydges. Sheep Salesmen. Shipwrights. Tavern-keepers. Victuallers. Warehousemen. Wharfingers. The following persons are exempted under the follow- ing proviso : — That no farmer, grazier, common labourer, or work- man for hire, receiver general of the taxes, or member of or subscriber to any incorporated, commercial, or trading companies established by Charter or Act of Parliament, shall be deemed as such a trader liable by virtue of this Act to become bankrupt. As long as a person makes his profit from his own ground or occupation, without the accessary aid of foreign produce, he is no trader ; and thus a farmer is exempted. But the moment he quits his own premises, and has recourse to other places for his profits, he be- comes liable like any other trader ; as where he buys up s. 1.] WHO NOT traders: 425 cheese from other dairies, and sells it ; where he buys Deacon, p. 33. a quantity of horses or cattle, more than sufficient for 1 TermReporis, his farm, for the purpose of sellieg them again for profit. lomewV, Siier- A farmer purchased for his hounds a number of dead ^'"^^• horses : he had been accustomed to sell the skins and bones ; and upon one occasion, said he should make a good thing of them : the Court of Common Pleas held „ . „ 1 1 ■ T 1 ■ T • , • 1 , , 3 Bioderip& that this did not constitute a trading within the bank- Bingham, -2, rupt laws ; the intention of seeking a livelihood by ^"'"^ersett v. buying and selling, is a question for the jury. A cowkeeper is considered as included in the descrip- tion of farmer or grazier, although he sell his calves as well as the milk, and fatten his cows for sale after they 1 Swimsion, 64, have become dry. Can..- r. Dean. The following persons are also exempt : The Colonel of a fencible regiment, who sells the Deacon, p 35. cast-off horses of the regiment; — a Schoolmaster, who buys books to sell to his scholars ; — Persons holding pubhc offices, as Suttlers of armies. Commissioners of Excise, &c. if the buying and selling be confined to the official duties. The buying and selling an interest in land, and clearly the buying and selling the land itself, will not be suffi- 2 Wilson, 171, cient acts to constitute a trading-. Deacon, p. 337. 2 . /id of Bankruptcy. The next head is one of considerable importance ; 2. Act of Bank- namely, the act of bankruptcy. The 3d and 5th sections '""''^^^-y- enumerate these acts, and we shall consider them sepa- rately : [ " If any such trader shall depart this realm, or being Sect. 3. " out of this realm, shall remain abroad, or depart from " his dwelling-house."] The subsequent part of the section explains, that each act mentioned in it must be done with intent to 426 OF BANKRUPTCY : [Ch. 4, defeat or delay the creditors. So that flying beyond seas for murder or felony, as it must of necessity delay cre- ditors, is such an act. If a man, fearing arrest, leave i»7Mr""'°"' ^^°' Eng-land, and sro over into Ireland, he commits such an Williams V. & ' & ^ _ ' Nunn. act. But the case is widely different if he merely go to see after his affairs : if a man depart with a bondjide intention to return, or with an honest intention compa- tible with business, he is no bankrupt, although he may vvimiiiani \^.^' ^^^ ^" ^^^^ ^^^"^ return, and although he may not leave Patersoii. any funds behind for payment of his debts. Again, we see that staying abroad will be such an act ; Id. 146. as where one abroad announced his intention never to revisit England. But advertising that the trader's intention is to go abroad with an intention of settling „ o there, is not such an act : for no man would circulate 1 Kose, 307, ex ' _ ... parte Osborne, such an advertisement with an intention of concealing himself from his creditors. The departure from the 1 Cooke's Bank- dwelling-housc must be voluntary ; so that where a man rupt Laws. 4th vvas arrested, he was not deemed to have committed the ed. p. 81, Phil- . , , T 1 . lips V. Sheriff of ^ct, since he was obuged to go. ^^^^^' There must be an union of the departure and the intent to delay. Thus, " the going to a distant place 1 Tauntoi), 276, " among strangers may be an act of bankruptcy, though cited^there"^' " *^^ P^^^y be visible there ; the going only to the next " house may be an act of bankruptcy, if the party is " not visible." And where the intent is clear, it is quite immaterial whether the creditor have been actually delayed or not : however, it is of course that if the motive for departure be laudable, the delay will not signify. So the leaving home for any lawful pur- pose, as for exercise or entertainment, arrangement with creditors, &,c. will be an act of this kind. Even where a trader absented himself, leaving a message, that if a certain creditor came, he should be told that the money could not be spared, that the trader would not let him have it, that he should go out of the way, 8. 1.] ACT OF BANKRUPTCY. 427 and not be at home till dinner-time : this was considered not to be an act of bankruptcy, because a man who wishes to delay his creditor would not be likely to name the hour when he intended to return home. On another occasion, the same trader left his home for the purpose 4 Jaunton, 603, of avoiding altercation with his creditors, fearing that ter. they might be exasperated, and arrest him ; and this was no act of bankrupty, because he assigned the true and legitimate reason of his absence, namely, to avoid harsh language. The section proceeds with the words, " or otherwise Sixt 3. " absent himself;" and that means, from the place of his ordinary business : so that if a man desert his connt- ing-house, and remain in his dwelling-house, he may have committed an act of bankruptcy ; and so if he conceal himself, or escape any where, and deny himself. The foUowina' are cases where the absence was holden not to be such an act. A party promised to meet one ., Bingiiam, 2, of his creditors at a given place, and failed in his ap- Tucker i. Jones. pointment; in this case Chief Justice Best said thai men should not be entrapped into acts of bankruptcy, and that it did not consist with the policy of the bank- rupt laws to hold a mere breach of engagement to be evidence of the act. So where one made an appoint- ment at an attorney's office, for the purpose of giving security to a creditor, there being no proof of an intent to delay the creditor, this was held to be no act of 9 "J^oorc, 34, '' lolenianr. bankruptcy. jones. The attorney of the petitioning creditor informed a trader, that he had delivered a warrant to a sheriff's officer, for the purpose of arresting him, and advised 3 Price, 142, the trader to repair to his office, to avoid the publicity ' '"' '""' of being arrested in the street : it was held, that the trader did not commit an act of bankruptcy by acceding to his proposal ; though the Court added, that had not the person making the proposal been the attorney of 428 OF bankruptcy: [Ch. 4, the petitioning creditor, the case might have borne a different complexion. Sect. 3. The next act mentioned by the section is, " or begin " to keep his house." Here again, if the intent be apparent {q), the fact of denying a creditor need not be shown ; and on the other hand, if orders be given to deny the trader to a particular person, w^ho turns out to be a creditor, the intention, before equivocal, becomes manifest. No matter if the creditor do not call for payment : " the act of bankruptcy depends," said Lord ^^ Eldon, " not upon the intention with which the creditor Beames, lag. " comes, but upon the intention of the debtor." The house need not be his own house ; for where a person, in business at Warwick, concealed himself at the house of a trader in London, with whom he dealt for linen, and desired to be denied there to a particular Jiyau& Aioody, creditor, wlio actually called, and was sent away, this Willes. was holden to be an act of bankruptcy. It has been determined, that a denial to a tax-gatherer, a collector of church-rates, or the clerk of the creditor (provided the trader know the person to be such clerk), will con- stitute an act of bankruptcy ; but it should be remem- bered that there must be a debt actually due ; for if it be only a visit of a creditor in respect of a debt payable ex parte Levi, at a future day, it will not be sufficient. An act of bankruptcy is, according to the general rule upon that subject, irrevocable. A creditor called, and inquired for the bankrupt, and was answered doubtfully ; but in a few minutes the bankrupt joined his creditor at a public-house, and in answer to a question why he denied himself, said, " I am not afraid of you; but I am 1 Taunton, 479, .. ^fj-^id of H." H. held a bill against him. This was Mucklow V. ^ May. (f/) As keeping to the bed-chamber, debarring all access to the house, sccludinir himscli". &c. S. 1.] ACT OF BANKRUPTCY. ^2^. held to be a beginning to keep house. And after a general order to be denied to creditors, it will be no excuse that the trader was confined to his bed, for the f ^^°°^^> 363. ' Lazarus v. denial will be referrible to the previous orders. Waithman. Without general orders, however, it is no act of bank- ruptcy if a person refuse to see his creditors at unseason- able hours ; as where a creditor persisted in calling at 3 Campbell, dinner-time. So if he be under any domestic affliction, Currie. or be engaged with company, or on business. So again, if the visit be made on a Sunday, although the creditor may have called by express appointment in order to •'. , . J L II ^ Rose, 21, ex receive his money. parte Preston. If a banker stop payment, yet keep his -shop open. Deacon, p. 60. and do not conceal himself, he does not thereby commit an act of bankruptcy ; and the shutting up of a banker's shop by one partner, does not make a co-partner residing in another place a bankrupt. The next acts are, " or suffer himself to be arrested Sect. 3. " for any debt not due (/■) ; or yield himself to prison ; " or suffer himself to be outlawed." One was arrested for 28 /. ; and though he had money sufficient to pay the debt, yet chose rather to go to prison, in order, as he declared, to force his creditors „. ••Ill p 1 1 7 Vmer, 61, ex to come to a composition : held an act of bankruptcy, parte Barton. A bondjide surrender in discharge of bail will not come Deacon, p. 61. within the act of yielding himself to prison, for that is a duty. " Or procure himself to be arrested, or his goods. Sect. 3. " money, or chattels, to be attached, sequestered, or (r) The suffering himself to be arrested on a bill of ex- change not due, or indeed for any debt solvendum in future, (if the intention is to defeat or delay a creditor) would, it is apprehended, come within (he meaning of the statute, Dea- con on Bankruptcy, p. (ii. 43<^ OF bankruptcy: [Ch. 4, " taken in execution ; or make, or cause to be made, " either within this realm or elsewhere, any fraudulent " grant or conveyance (s) of any of his lands, tenements, " goods or chattels ; or make, or cause to be made, any " fraudulent surrender of any of his copyhold lands or " tenements ; or make, or cause to be made, any frau- " dulent gift, delivery or transfer, of any of his goods " or chattels." The arrest, we find, must be voluntary, on the same principle as the departure from home. With regard to the conveyance of lands, &c. it is very important to consider whether an undue preference has been given to one particular creditor ; and there is very strong evi- dence to believe this, when the bankrupt remains in possession of his property after the conveyance. Whe- ther the deed be made for the purpose of securing a present debt, or to indemnify a surety, who may pro- bably become a creditor, makes no difference, the undue preference being the same. Should the bankrupt assign the whole of his property for the benefit of all his cre- ditors, and all of them assent to the deed, there will be no act of bankruptcy; but if there be a dissentient, he may be a petitioning creditor ; although it is clear law, that no creditor, a party to the deed, can avail himself CresTweuAoi ^f it as an act of bankruptcy, being estopped from so Tope V. Hockin. doing. It was held to make no difference, where there 4 East, 230, was a dissentient creditor, that the creditors who actu- Tappenden v. ^^^y entered into the deed changed their minds, without Burgess. ■' _ . " / . the privity of the bankrupt, under a proviso which enabled the trustees to avoid it if they should think fit, for that which had been done was a complete and irre- vocable act of bankruptcy ; and the Court said, that this was not like a proviso that the deed should be void, (a) Wliich must he bv deed. S. 1.] - ACT OF BANKRUPTCY. 43I if all the creditors did not assent to it. Next, if part of the trader's property be assigned over, it becomes a matter of question whether this is a fraudulent prefer- ence J for a solvent trader may, beyond question, assign part of his property for the liquidation of a debt, as he may think proper. A great criterion is, whether the assignment be made in contemplation of bankruptcy; and this must be gathered from the circumstances of each case, which it is the province of a jury to judge of. „ .. „ A conveyance to the fairest creditor is void, if the person Alderson, 382, assign it fraudulently. And where the bankrupt carried Xuckef ^' on his trade for three years after a conveyance to parti- cular creditors, but was proved to be in insolvent circum- stances at the time of its execution : " Such a deed," said Ch. J. Abbott, •' given under such circumstances, " would make bankruptcy inevitable, and a man must " be supposed to contemplate the consequence of his " own acts." But although the party be insolvent, yet if he execute a deed in favour of trustees, not his cre- ditors, whereby a settlement might be the more easily n-^'^^an"'' ^g entered into, to cover the pecuniary engagements he is Bemej' v. Davi- under, it will not be an act of bankruptcy, there being, *°"' - „ at the same time, no imputation of fraud. And where v. Vyner. a merchant, some time before his bankruptcy, sold and conveyed particular goods in the hands of his factors, upon trust to pay certain debts, which trust was carried forthwith into execution, it was held a good assignment, jacobT'shM)-' and no act of bankruptcy. herd, cited. The remaining in possession is not always 'prima facie evidence of fraud ; for goods may be bulky, or at a dis- tance, or in such a situation as that possession can only .7 Xennr orts, be given by a symbol, as a copper halfpenny. ^^• A case occurred where one partner made a fraudulent grant to another by deed ; this, although it was an act of bankruptcy in the assignor, was not, as had been contended, such an act in the assignee, although as to 432 OF bankruptcy: [Ch, 4, 1 Espinasse, 68, tile assignee it would be void. It is now, however, ex- Thompson.* pressly declared by the 4th section, that the conveyance of all the trader's property to trustees, for the benefit of creditors, shall not be deemed an act of bankruptcy, unless a commission issue within six months. But the deed must be executed by every trustee within fifteen days after the trader has executed it, and notice must be given in the Gazette, and two London newspapers ; or if the party do not reside within forty miles of London, in the Gazette, one London, and one provincial news- paper ; and in either case, within two months after the execution of the deed. More acts of bankruptcy are mentioned in the 5th section (t) ; but these differ from the acts which have been already mentioned in this way, that the intention of the debtor is no longer considered, but the act itself Sect. 5. is a sufficient indication of insolvency. Thus if any trader, arrested or committed to prison for debt, or on any attachment for non-payment of money, shall lie in prison for twenty-one days after such arrest or commit- ment, or upon any detention for debt, or if sent to prison for any other cause, shall lie in prison for twenty-one days after a detainer for debt lodged against him, and not discharged, it shall be on his part an act of bank- ruptcy. The custody in this case need not be a public gaol, in order to satisfy the word " prison " in the Act ; 6 Taunton, 106, for where a bankrupt was dangerously ill, and the she- riff's officer, from motives of humanity, left him in his own house, in the custody of a follower not named in the warrant, the Court were quite clear that it was a legal custody. The computation of time is according to the ordinary rule, that where it is to be made from an act done, the Stevens V. Jack- son. (/) See section 73 of tlie Act. S. 1.] ACT OF BANKRUPTCY. 433 day when such act is done is to be included ; so that the twenty-one days will include the day of the arrest, 3 East, 407, and the act will not be complete until the expiration Rawiinf "" ^* of the whole of the last day. Deacon, p. 81. The imprisonment must not be broken ; so that where a person arrested was permitted to go at large, but sub- sequently, returned into custody, the time was reckoned from the day of the return, and not from the original • Campbell, arrest. But this necessity for a continuous imprisonment Paimer. cannot be evaded by a mere ceremony of getting bail for the purpose of a change of custody. A man was arrested for debt in Kent, on March 31 ; was brought up by habeas corpus, to be turned over, on the 6th May ; 1 Burrow, 437, he called at his attorney's house, out of Kent, and thence ^°^^ *'" ^'^^"'• went to a Judge's chamber, where he was bailed, and then immediately surrendered to the King's Bench prison : the Court held that he was a bankrupt from the day of the arrest. If the act of bankruptcy be not complete before the commission has issued, no subsequent lying in prison 1 Vesej & will cure the defect ; but a docket may be struck before Oufrene ^ex the expiration of the twenty-one days ; and there will P^rte. be no valid objection on that ground, provided that the commission do not issue until after the twenty-one days. Lastly, the arrest must have been lawful ; and although it may become so by some subsequent proceeding of the creditor, yet being illegal at its commencement, as in the case of an executor who takes out probate after an arrest, that will not operate to make it a valid arrest for the purpose of creating this act of bankruptcy : for were it so, third persons, no parties to the suit, might see Dearoii, be prejudiced, as they might be defeated of their rights 77« to various payments made before the probate. And it must be for a debt actually incurred, and due. A lying in prison on account of inability to pay Exche- F F 434 5 'Bainewall & Aldcrson, 516, Cobb V. Sy- niouds. Sect. 6. Sect. 7. Sect. 8. 7 Geo. IV. ch. 57, sect. 13. Deacon, p. 84. OF bankruIptcy: [Ch.4, qilcr penalties for smuggling, has been held a debt within the old statute of bankruptcy, 1 James 1, c. 15. The section proceeds : If the trader so arrested, com- mitted or detained, shall escape out of custody, that shall be an act of bankruptcy. Which escape, it is observable, must be wilful on the part of the arrested person, and not connived at by the officer. The section concludes with a proviso, that if any trader be in prison at the commencement of the Act, he shall not be deemed a bankrupt till he shall have lain in prison for the period of two months. By section 6, a declaration of insolvency, left at the Bankrupt-office, will be an act of bankruptcy : it must be attested by an attorney or solicitor, and notice given, within eight days, in the Gazette ; but no commission can issue upon it unless within two calendar months afterwards. And if the bankrupt and a creditor, or any other person, shall have concerted this particular act of bankruptcy, that circumstance shall not invalidate a commission sued out in consequence. Again, the trader who shall compound with the petitioning creditor, by giving him any satisfaction or security for his debt after a docket struck, so as that such creditor may receive an unfair dividend, shall be deemed to have committed an act of bankruptcy ; and the creditor shall not only forfeit his debt, but refund whatever the bankrupt may have given him, to persons appointed by the commis- sioners. Further, if a commission shall have issued at the time of the compounding, the Lord Chancellor may either declare the commission valid, or supersede it, so that a new one may issue. Again, filing a petition to take the benefit of the Insol- vent Act is an act of bankruptcy, provided the person be at the time in actual custody, and that he be declared bankrupt before the time advertised in the Gazette, and S. 1.] PETITIONING CREDITOR. 435 appointed by the Insolvent Court for hearing of the petition, or within two months after such petition has been filed. Members of Parliament are made the subject of the Sect. 9, lo&ii. three ensuing sections of the new Act. They may be made bankrupts like other persons, but may not be arrested or imprisoned during the time of their privilege, ^^^' 9* except in cases made felony by the Act. They may commit acts of bankruptcy in this way : if any creditor shall bring an action against them for a debt owing to such creditor, and they neither pay nor compound with the creditor, nor enter into a bond to pay any sum, with Sect. 10. the costs which may be recovered against them, and enter an appearance, each within one calendar month after they have been served, they shall be deemed to have committed an act of bankruptcy. And if a trader, having privilege of Parliament, dis- Sect.ii. obey the order of a court of equity, or an order made in any matter of bankruptcy or lunacy, for the payment of a sum of money, after a peremptory day fixed for the payment, and personal service eight days before the day appointed for payment, he shall be deemed to have committed an act of bankruptcy. 3. Petitionhig Creditor. We come now to consider the situation of the peti- 3. Petitioning tioning creditor : and first, as to the amount of his debt. '^^ '^*^^' It will be a sufficient debt if it be owing to one single person, or two or more partners, to the amount of 1 00 /. If the debt of two separate creditors, be - 150/. If the debt of three, be ----- - 200 /. And it will be a good debt for this purpose, although Sect. 15. payable at a future time, and there be no security in writing or otherwise, the trader having committed an act of bankruptcy. F F 2 436 Deacon, p. 87. 4 Espinasse, 194, Miles I'. Rawlins. 2 Vesey, sen. 327. The cases are collected in Deacon, p. 90, et seq. 4 Barnewall & Alderson, 256, Jellis V. Mount- ford. See 5 Maiile & Selwyn, 161, Doe d. Pitcher V. Anderson. OF bankruptcy: [Ch.4, Having mentioned the amount, it is desirable to know the nature of the debt which will be sufficient to support a commission. It must be a legal, existing debt, and one contracted while the party has been in trade. The word legal is to be taken in opposition to equitable ; for the assignee of a bond (a security not assignable at law) cannot be a petitioning creditor : and if the debt be only payable upon a contingency, it will not be sufficient. Lord Ellenborough, however, decided at Nisi Prius, that a warrant of attorney, given for a sum of money, with a defeasance, to be void on payment of bills accepted by the bankrupt, w^as a sufficient debt. A debt on account, though not liquidated, is a foundation for a commission of bankruptcy. So is a debt on an attorney's bill ; a debt contracted in the character of a surety ; a debt awarded by ari arbitrator, although a bill be filed to set aside the award ; one due to an uncerti- ficated bankrupt, if the assignees give their assent to the commission ; one due to a factor acting without a del credere commission, though he communicate the name of his principal to the purchaser; and a debt due from a person, although he has been discharged under the Insolvent Act, for the assignee under it has a much more extensive power of recovering the effects of the bankrupt than is given by the Insolvent Debtors Act. Although that Act may be a bar to any action, yet the creditor is not deprived of all legal remedy, it's only object being to protect the debtor from being arrested again for the debt. It is no objection to a petitioning creditor's debt, that the creditor has received part of his debt after notice of the act of bankruptcy, and certainly not where he does so without knowledge of such an act ; in either case he admits the invalidity of the payment. He has taken a bad security, of which he could not avail him- self, and afterwards resorts to a remedy which cannot S. 1.] PETITIONING CREDITOR. 437 be impeached. A creditor for 112/. had received 80/. after notice of the bankruptcy, and then sued out a com- ^ TormReports, mission for the whole debt; it was holden that this was shepherd. vaUd, for the payment not being good in law, the original debt remained in force ; he took out the commission on the ground that his whole demand was unpaid, and he might still retain the money in his hands for the credit of the bankrupt's estate. No doubt must exist on the subject of the actual debt. Where the petitioning creditor gave the trader a check upon his banker, and the papers of the trader afterwards came into the hands of that creditor, who was unable to show that the check was actually paid, the Court held, that to establish this debt, it was indis- pensable to have proved the payment of the check, and BieasbvT ' that the clerk who paid it should have been called. Crossiey. Interest, as we have already seen, is frequently given by way of damages ; it cannot, therefore, be a subject of the petitioninp; creditor's debt, unless it be specified 8 Taunton, 600, i^ o ^ ^ 1 linrgess, in tlie in the contract ; as, for example, if interest be expressed matter of. in the body of a bill. Deacon, p. 90. The general rule that one partner cannot support a commission against another, has always been acknow- ledged and acted upon ; but as there must be a partici- pation in profit and loss, if the loss be wholly borne by one person in a particular transaction, a debt arising Gow, 17, Mar- out of that transaction may be made the foundation of ^'^'^ **' ^"'"^^■'■' a commission. As where goods were deposited by the bankrupt for sale with another, under an agreement that they were to be sold ; that the profits, if any, should be divided betwixt them, but that the party depositing the goods should bear all the loss, if any : the goods were sold by the bankrupt ; and it was held, that the surplus was a clear debt due to the other party, and that he might be a good petitioning creditor. Next, as to the time when the debt must be contracted ; F F 3 438 By Holt, Ch. J. 1 Lord Ray- mond, 287, 4 Barnewall & Alderson, 67, ex parte Dou- that. By Lord Gif- ford, Ch. J. 1 Bingliain,49,8. 4 Taunton, 200 Sarratt i;. Aus- ' tin. OF bankruptcy: [Ch.^, we have said that it must be while the bankrupt is in trade, and further, it must be before some act of bank- ruptcy ; therefore, if a man have left off trade, a debt then contracted will of course be insufficient. And so it would be if he left off trade indebted in a certain sum (50/. for instance), and becoming subsequently indebted to the same person in the same sum, pay 50/. without appropriating it ; the creditor will be unable to sustain a commission upon his original debt, for that shall be taken to be satisfied, in the absence of any specific directions as to the appropriation of the 50/. The 19th section of the Act provides, that although there be an act of bankruptcy prior to the debt of the petitioning creditor, yet if there be a sufficient act of bankruptcy subsequent to his debt, it will be valid. So that the debt must have accrued prior to some act of bankruptcy. Of course there must be a real debt, as we have before seen ; and this may be by drawing a bill, or making a note, for a debt is created as soon as either of those instruments are issued. An indorsee may therefore be a good petitioning creditor. And where an act of bankruptcy was committed before a bill became due, or had been presented for acceptance, it was con- sidered to be a good petitioning creditor*f debt, though subsequently to the commission it had been duly pre- sented and paid by the acceptors. ** But when the bill " has arrived at maturity, it is always necessary, in " order to constitute a debt as against the drawer, to " prove that the bill was dishonoured by the acceptor, " and that the drawer had notice of the dishonour." Two persons exchange acceptances, and one of the acceptors becomes a bankrupt ; the former cannot esta- blish a debt thereby until he has paid the counter-accept- ance, for he might stop the bankrupt's trade without having a right to one shilling out of the estate. So where the acceptor of an accommodation bill paid it •S. 1,] PETITIONING .CREDITOR. 43Q after the act of bankruptcy, he was considered not to have a 2;ood debt, because he did not, in effect, become ' ^'" '^ J'^'^f- o ' ' son, 97, ex parte a creditor until after the bankruptcy. Hoiciin-;. An executor before probate may sue out a commission. Deacon, p. 99. provided he get probate before the commissioners make their adjudication ; and if there be at first an invalid stamp, the proceedings will nevertheless be good by j|o^""J'y"' '^''' relation. Jaines The husband may be a good petitioning creditor in respect of a promissory note given to the wife before marriaoe : but in pcneral they should both ioin in The cases are 1 . , ^ ^ r ■ collected iii respect of debts due before marriage. Deacon, p, 99. The acceptance of a higher security does not extin- guish the original debt, so as to invalidate a commission sued out on such debt. So that where the debt accrued while the party was in trade, and a bond was given for it after he ceased to be a trader, though it would have been a bar to an action on a simple contract, it did not P'^a.le's Cases, preclude the defendants from proving the consideration. iiiikUworth. Infancy, in general a good defence to an action for debt, will be of no avail if the party accept a bill after he come to full asfe, althouah he were an infant when 4 Campbell, o ' a ^ ^ 104, Stevens V. it was drawn. Such an acceptance will constitute a Jackson. good petitioning creditor's debt : though in general, whether the debtor or creditor were an infant, such a debt cannot be created. Should the petitioning creditor's debt be found insuf- ficient to support the commission after adjudication, the Lord Chancellor is empowered to order the com- mission to be proceeded in, upon the application of any Sect, 18. other creditor who may have proved a debt sufficient to support a commission, provided such debt have not been incurred before the petitioning creditor's debt. The party petitioning to have his own debt substi- aGiyn&jame- tuted. in the room of the petitioning creditor's, under s"". 131. Chap- 10 ' pell, ex parte. r F 4 44<^ OF bankruptcy: [Ch.4, this section, must first go before the commissioner, to have the latter expunged (//). 4. Commission. 4. Commission. Previous to the granting of the commission, it is Sect. 13. incumbent on the petitioning creditor to make oath of his debt, and to give bond to the Lord Chancellor for proving his debt and the act of bankruptcy ; in default of doing which, the Lord Chancellor may, on petition of the party against whom the commission has been taken out, order satisfaction to be made, and may more- over assign the bond to the parties petitioning. He is to prosecute the commission at his own costs until the Sect. 14. choice of assignees, who are to reimburse him out of the first money which can be got in. Sect. 12. The petitioning creditor having sworn to the debt, the Lord Chancellor issues his commission. The granting of the commission is a matter of right demandable by the creditor, and not merely discretionary in the Lord Chancellor. It must be sealed after the act of bank- ruptcy ; but this may be done on the same day the act has been committed ; and on one occasion, to avoid an Deacon, p. 114. extent, it was sealed the same night : it is then directed to the proper commissioners in town or country, who proceed to execute it. It is important that the bankrupt's name should 1 Rose, 314. appear rightly spelt ; but if it be idem sonans, it will e-xparteSinitli. be sufficient. Robert Martin Jackson was inserted for Robert Jackso?i; and this was held no objection, as the bankrupt had himself adopted the name of Martin. (u) For the general duties and liabilities of the petitioning creditor, see Deacon, p. 100-106. S. 1.] COMMISSION. 441 An action was brought on a bill of exchange ; the plea was bankruptcy. In this country the defendant had been always known by the name of Pere Elizte, but the certificate he offered in evidence was in the name of Vincent Tallachen. Had proof been given that V. T. 3 Campbell. 2^0 Stcvdis V* was the right name. Lord EUenborough would have Eliz'ee. nonsuited the plaintiff, and given effect to the certifi- cate, but the defendant was unable to adduce this evidence. A mistake in describing the bankrupt's place of abode will not be always material ; but it is desirable to name it correctly, as two or three mistakes, in the parish and street, for example, will vitiate the commission. The next step is to advertise the commission in the Gazette, A Scotch sequestration has been held to have a pre- ference over an English commission of bankruptcy, where the petition for the former was before the issuing of the latter, the party being domiciled in Scotland ; although the act of bankruptcy here was committed iGlyn&Jarae- before the petition for the sequestration, and although des'^^Geiier' the commission had issued before the awardino; of the sequestration. If a trustee become bankrupt, it is ordained that the Against parti- Lord Chancellor may order the assignees to deliver over '^"'''^'^ persons. the trust estate, &.c. to such persons as he shall direct, ^'^ ' ' upon the same trusts as the estate was subject to before the bankruptcy. The same separation of property takes place in the case of a bankrupt executor. But a bankrupt will not be permitted to prove against his own estate, without the special order of the Court ; and if he have been guilty of any breach of trust he will not be suffered to prove at all, but the proof must be made by a legatee or some other person interested. So, if it be diflicult to distinguish the property of the bankrupt from that 44 '2 Piirtiiors. 1 Vesej & Beanies, 308, Tobiu, ex parte. 1 Barnewall & Cresswell,257» Hodgkinson v. Travers. 1 Rose, 89. ex parte Rowland- son. Sect. 17. OF BANKKL'PTCY : [Cll.4, of the testator, application must be made to the Lord Chancellor. By sect. 16, a joint creditor may sue out a commission against one or more partners in a firm ; and if the Lord Chancellor supersede the commission against one or more of these, the validity of the commission or of the certificate shall not be thereby impeached. The Lord Chancellor is accustomed to use his discretion as to proceeding with a joint or a separate commission, as he sees fit, for the benefit of the estate. There was a prayer that a separate commission against one partner might be superseded ; it was answered that a certificate had been obtained under the separate commission. The Lord Chancellor : " I think I may grant the certificate, ** impounding the commission with the secretary, not " to be produced without my order. I will make that " order, with the addition that all the proceedings and " proofs of debts shall be transferred to the other " commission." So where assignees under a separate commission obtained a verdict, and it appeared that a joint com- mission had issued, the Court of King's Bench, declaring that they had power to prevent execution, ordered that the money should be paid into court, and remain till the latter petition was decided. Where a separate commission had been taken out for five months before the joint, and there did not appear to be any joint effects, the separate was preferred. Subsequent commissions against partners are to be annexed to and form part of the first commission, pro- vided that the Lord Chancellor may direct that such second or other commissions may either be proceeded in separately or in conjunction with the first commission. The particular grounds upon which commissions may issue against members of Parliament have been already mentioned. s. 1.] coMMissiOiN. 443 Where the party has been once a bankrupt, or has Second Com- compounded, or taken the benefit of the Insolvent Act, g^^^j^ j2_ all his future estate and effects (except his tools of trade and necessary household furniture, and the wearing ap- parel of himself, his wife, and children) shall vest in the assignees under the second commission, who shall be entitled to seize the same in like manner as they might seize property of which such bankrupt was possessed at the issuing of the commission (x). No commission is to abate by the demise of the Crown ; S'"^'- '^^• but if it abate by the death of commissioners, or any other cause, it may be renewed on payment of half the fees; and if the bankrupt die after adjudication, the commissioners may proceed in the commission as they might have done if he were living. By the 20th section, the Lord Chancellor may direct Sect. 20. auxiliary commissions for the proof of debts under 20/. and for the examination of witnesses on oath, or for either of such purposes. Full power to compel the at- tendance of witnesses, &c. are awarded by the Act. The commissioners (?/) now meet for the purpose of Meeting to open adjudicating the party to be a bankrupt. They take an '^' (x) Subsisting comraissions being declared valid, no third commission would be destroyed by this Act. Sect. 135. A third commission could jww no longer be sued out, as the future estate and effects are declared to be vested in the assignees under the second commission. See Deacon, p. 127. (j/) Barristers in county comraissions to have the prefer- ence in respect of summonses and fees. Sect. 23. The fees are regulated thus : — For every meeting - - - - - 20 5. For every deed of conveyance executed by them - - - - - - -20 s. For the signature of the certificate - - 20 *. 444 OF bankruptcy: [Ch. 4, Sect. 21. oath to administer the trusts reposed in them with im- partiality, and proceed to summon persons before them Sect, 24. capable of giving the necessary evidence to support the commission ; they also, if needful, require the produc- tion of books, papers, &,c. and persons disobeying their summons may be apprehended, and, if they refuse to answer upon examinarion, may be committed. The commissioners then, upon due proof (2), adjudge the party a bankrupt, and give the notice in the London Sect. 25. Gazette required by the statute, appointing at the same time three public meetings for the bankrupt to surrender and conform. Neither the solicitor to the commission, nor a creditor 2 Rose, 370, ex can be a commissioner, and if a creditor acts in that way, parte Prosser. ^^iq commission will be superseded. It has been decided, that commissioners may incidentally examine a witness respecting other individuals than the bankrupt; and by Abbott, Ch. J. — " I do not by any means think the 2 Bamewall & " power vcstcd in commissioners of bankrupts too great. ex pa7ie'vo"ci. " ^^ ^^ ^^^t too great for the purpose of detecting those " frauds which are too generally practised." In county commissions — For each meeting, if a barrister, a/urther fee of 20 s. If the barrister's residence be seven miles or upwards from the place of meeting, and he shall travel such distance, a Jiirther sum, for each meeting, of - - - 20 5. Any commissioner taking more, or eating or drinking at the charge of the creditors, or out of the bankrupt's estate, or ordering any such expense, to be disabled for ever from act- ing in such or any other commission. {z) Of the petitioning creditor's debt, the trading, and the act of bankruptcy. S. 1.] COMMISSION — PROCEEDINGS UNDEE. 445 The party being adjudged a bankrupt, tlie messenger is empowered by warrant under the hands and seals of the commissioners to break open the bankrupt's doors, Sect. 27 & 28. &c. and to take him or his property, and if he be in prison, to take his property there (save and except his necessary wearing apparel). The 28th section enables the messenger to seize goods in Ireland, and the 30th provides for the execution of the warrant in Scotland. Where the bankrupt's property is sworn to be concealed, a search warrant may be obtained and executed by the messenger. The adjudication places the bankrupt under the im- mediate controul of the commissioners, and they are ^^ct. 33. empowered to summon any person before them who may be known, or suspected to have, the bankrupt's property in his hands. Such person must produce all books, do- cuments, &,c. which may be required. And if there be a refusal to undergo the due examination, and sign it. Sect. 34. or an equivocation so that the commissioners are not satisfied, or a refusal to produce the necessary docu- ments, the party offending may be committed. Every witness must, however, have his necessary expenses tendered, as in the case of a subpcena at law, and any persons known or suspected to have bankrupts' pro- perty, are to have costs in the discretion of the com- Sect. 35. missioners. Lastly, the bankrupt himself, whether certificated or Sect. 36. not, may be summoned, and maybe apprehended on de- fault of appearance ; and we shall find, that the commis" sioners have also the power of summoning the assignees before them. However, if the bankrupt conform within Sect. 1 15. the time allowed him to surrender, he shall have the same benefit as though he had voluntarily surrendered. If the bankrupt refuse to be sworn, or if he do not answer satisfactorily, and sign his examination, he may be com- Scct. 36. 446 OF bankhuptcy: [Ch. 4, Seel. 37. mitted (a). The same rule applies to the bankrupt's wife, who may be summoned by virtue of the same authority, for the purpose of discovering his estate. But this action confers no power to examine her as to the act of bank- iPecreWiI- ruptcv, for there the rule of law, that a wife shall not iiams, Oil, ex . "^ . . jjaric James. give evidence against her husband, is preserved invio- late. It is a matter of indulgence to allow a party under examination the benefit of having counsel, though it Deacon, p. 162. sccms that there is no instance of its being refused. The commissioners and messenger are duly protected in the execution of their respective duties. Thus, with Sect. 41. respect to the former, no writ shall be sued out against any commissioner in less than a month after notice, which must set forth the cause of action, and the attor- Sect. 42. ney's place of abode. Unless the notice be proved, no plaintiff can recover, nor can any evidence be given con- cerning any thing not contained in the notice. Tender Sect. 43. of amends within one month after notice will be a suf- ficient bar to the action, and the sum proposed by way of amends may be paid into court by leave, notwith- standing a previous neglect by the commissioner to make a tender, whereupon such proceedings shall be had as in other actions where the defendant is allowed to pay money into C3urt. In case the whole examination Sect. 40. shall not have been stated in the warrant of commit- ment, it is made competent for the Court to inspect and (a) Penalty on any gaoler allowing bankrupt to escape — 500/. Sect. 38. The application of all forfeitures under the Act is for the benefit of the creditors. The assignees are to sue, and to de- duct the costs of suit. Sect. 100. Bankrupt swearing, or if a quaker affirming falsely, to be punished as for perjury. Sect. 99. S. 1.] COMMISSION — PROCEEDINGS UNDER. 447 consider the whole of such examination, and if it shall then appear that the party was lawfully committed, the defendant shall have the same benefit as though the whole examination had been stated. But regularly. Sect. 39, the questions should be specified on the warrant of com- mitment. The judge, moreover, may recommit a prisoner brought before him by habeas corpus, and the Court or Judge may look at the whole of the examination. By sect. 31 , no action shall be brought against any person acting in obedience to the warrant of commis- sioners for anything done prior to the choice of assignees, without demand and refusal of the copy of the warrant, and a neglect for six days after such demand, and in case such demand be complied with, without making the petitioning creditor defendant. If any action be brought against the petitioning creditor, and the person so acting as above, the jury shall give them a verdict on proof of the warrant, notwithstanding any defect of jurisdiction in commissioners. Proof that defendants Scct. 32. are petitioning creditors renders them liable. And actions for any thing done pursuance of the Act must be brought within three calendar months after the fact committed. Sect. 44. the general issue may be pleaded, the Act, and the spe- cial matter given in evidence, and in case of the plaintiff failing the defendant shall have double costs. Trespass was brought against a commissioner in the King's Bench, and the plaintiff was nonsuited ; he then sued the commissioner in the Common Pleas, and that Court stayed the proceedings till the costs of the former 8 Taunton, 407, *' ^ . ° Crawley r. lia- action should be paid. pey. The bankrupt, however protected if he obey the order of the commissioners, is liable to severe punishment for refractoriness. For if he do not surrender in order to his examination before three o'clock on the 42d day after personal notice, or if, being in custody, he do not 44^ OF BANKRUPTCY : [Ch. 4, make a discovery of his estate and effects, and do not deliver up his books, papers, &c. or if he remove, em- Scct. 1 13. bezzle, or conceal any of his effects to the value of lo /. or any books of accounts, &c. relating thereto, with in- tent to defraud his creditors, he shall be deemed guilty of felony, and liable to be transported for seven years, or be imprisoned, at the discretion of the Court. And any person wilfully concealing the bankrupt's effects, and who shall not within forty-two days after the issuing of the commission discover such estate, shall forfeit lOo/, and double the value of the concealment. And any per- son voluntarily discovering any part of the estate to the commissioners or assignees not before known to the as- signees, after the time allowed the bankrupt to surrender, shall be allowed five per cent upon it, and such further reward as the major part in value of the creditors may think fit. Sect. 113. The Lord Chancellor may enlarge the time for the surrender, so as the order be made six days at least be- fore the day on which the bankrupt was to surrender himself. It is the interest, as well as the duty of the bankrupt to surrender as early as possible, for, by doing so, he will be entitled to protection from arrest until he Deacon, p. 509. has passed his last examination. If not in custody at the time of surrender, the bank- Sect. 117. rupt is privileged from arrest during his examination, and if arrested, he is to be discharged on producing the summons from the commissioners, and if the officer per- sist in detaining him, such officer will forfeits/, a day during; the detention. Where the bankrupt escaped out of the custody of the marshal, and surrendered to a commission issued 1 Barncwall & subsequently, being then at large, it was holden that he Anlfeisonr^' might be retaken and detained in custody. And, as a Hampton. party on bail is always considered to be in custody of his bail, the statute expressly includes such a case, so S. 1.] COMMISSION, PROCEEDINGS UNDER. 449 that the bankrupt may be taken by his bail in any way which will not interfere with the examination of the com- ' Aikin«, 23B, ex pnrte (jib- missioners. If the bankrupt be in custody, he must be bons. brought before the commissioners at the expense of the ^fct. 119. creditors, and persons may be appointed by the assig- nees to attend him in prison, and produce to him his books. Sec. for the purpose of gaining an abstract of his accounts, and the particulars of his estate, which ab- stract and statement of particulars the bankrupt must deliver to them ten days at least before his last exami- nation. This last examination may be adjourned by the Sccf. n3. commissioners sme die, and the bankrupt shall be freed from arrest during such time, not to exceed three calendar months, as the commissioners, by indorsement upon the summons, shall appoint, with a penalty of 5 /. per day upon any officer detaining the bankrupt after being shown the summons. Upon the election of assignees, the bank- Sect. \ 16. rupt must deliver up his books and papers to them ; he must assist them in making out the accounts of his estate ; and after his certificate, must attend them gene- i'ally for the purpose of settlement, for which latter attendance he shall be paid 5 s. per day out of his estate ; and if he neglect to attend after notice, and without sufficient cause, he may be apprehended by warrant from the commissioners, until he shall conform to the satisfaction of such commissioners, or of the Lord Chancellor. Lastly, the bankrupt may be allowed a maintenance Sect 114. for the support of himself and his family by the com- missioners before the choice of assignees, and by the assignees subsequently, with the approbation of the commissioners, testified under their hands. G O 450 OF BANKRUPTCY. [Ch. 4, 5. Proof of debts. Sect. 46. Sect. 60. Sect. 59. What debts proveable. Sect. 47. 2 Maule & Sel- wyn, 479, ex parte Bowness. Sect. 51. 5. Proof of Debts. The statute prescribes the persons by whom debts are to be proved, and the particular debts which may be proved. The time of proof is at the three several meetings appointed as we have already mentioned. Every creditor is to prove by his own oath ; corporations by an agent ; a creditor living remote or abroad by affi- davit. The persons desiring to prove may be examined upon oath by the commissioners. By another section the commissioners are empowered to expunge the proof of debts, but the persons requiring an investigation for that purpose must sign an undertaking to pay costs. The Chancellor may be petitioned in the first instance, and an appeal lies to him against the decision of the commissioners. The creditor who proves under the commission shall be deemed to have made his election not to proceed against the bankrupt at law {b) ; but if the commission be afterwards superseded, the creditor will be restored to his former rights. The debt, if contracted bona fide, may have accrued after a secret act of bankruptcy, and may be accordingly proved, unless the creditor had notice of the act of bank- ruptcy at the time. A creditor is, however, at liberty to prove a debt contracted before the act of bankruptcy on which the commission may have issued, although after notice of a prior act of bankruptcy. Debts which may not be payable at the time of the bankruptcy, may be proved upon deducting a rebate of (J) Though the proving of one debt by no means precludes the creditor from electing to sue for another. 4 Bingham, 18, Bridget V. Mills. 1 Barnewall & Alderson, 121, JVatson V. Medex. S. 1.] PROOF OF DEBT?, ^5? interest at five per cent. And if there be any debt con- Sect, 56. tingent at the time of the bankruptcy, application may be made to the commissioners to set a value upon it, and the party may then be admitted to prove ; or if the contingency shall have happened before the ascertaining of such value, the proof may be at once admitted, pro- vided there were no notice of the act of bankruptcy at the time of the accruing of the debt (c). Creditors under marriage articles may now prove under certain circumstances ; but not if there have been a settlement of the husband's property for the purpose of evading the bankrupt laws. Where the wife has brought a fortune to her husband, and having had it settled upon herself, lend a part to her husband, this debt may be proved under the commission. Any annuity creditor of a bankrupt may prove, whe- ^^^^' ^^■ ther there were arrears or not due at the time of the bankruptcy ; the commissioners to ascertain the value, regard being had to the original price given for the an- nuity, deducting therefrom such diminution in the value as shall have been caused by the lapse of time since the grant to the date of the commission (d). No surety for the payment of annuities is to be sued Seet.ss, until the annuitant has proved ; and then if he pay the amount proved, he shall be discharged, but if not, he (c) The bankrupt is liable to an execution for defendant's costs notwithstanding this section, and notwithstanding his certificate. 4 Bingham, 57, Bire v. Moreau. (d) Commissioners are precluded from entering into any consideration of the altered health of the party, but they were allowed to consider the difference in value of a lease at the time of the sale to the bankrupt, and the price paid for it by the grantee, if the value were altered by improvement or others- wise. 2 Glyn & Jameson, 102, Fisher, ex parte. G G 2 45- 05' BANKRUPTCY. [Gil. 4, may be sued in respect of accruing payments, but is not liable to pay beyond the amount so proved, with inte- rest at four per cent. After the payment he is to stand, in respect of such proof, in the place of the annuitant, and the bankrupt's certificate shall then be a discharge from the claim of both annuitant and surety. The surety shall be entitled to credit, in account with the annuitant, for any dividends received by such annuitant under the commission, before any surety shall have fully paid or satisfied the amount so proved as aforesaid. And sureties generally, together with such as are liable for the debts of bankrupts, may prove, after having Sect.51. paid the debts, as sureties, bail, &c. provided they have not had notice of any act of bankruptcy. Sect. 49. An apprentice to a bankrupt is discharged by the bankruptcy ; and upon proof of the debt, commissioners may order such sum as they think reasonable to be paid for the apprentice fees, regard being had to the sum originally paid, and the term during which the appren- tice shall have resided with the bankrupt previous to the commission. Where the fee had been retained, and sGlynficJume- the apprentice was serving, but the execution of the son, 12a, indenture had been casually delayed, it was held to be Haynes, ex ... . parte. a case within this section. Sect. 48. Six months wages of servants or clerks of bankrupts are to be paid out of the estate, if so much be due. Sect, 53. Next, the obligees in bottomry or respondentia bonds, and the assured in policies of insurance, may be admitted to claim, though before a loss ; and if a loss should happen, to prove although the person effecting such policy be not beneficially interested in the ship or goods, in case the person really interested be not within the united realm. Sect. 74. The landlord of premises is to come in as a creditor, under the commission, for any overplus above one year's rent ; and a distress shall not be available for more than S. 1.] PROOF OF DEBTS. 453 one year's rent accrued prior to the issuing of the com- mission. The holder of any bill or note overdue at the issuing ^^'^^- &7- of the commission, upon which interest is not reserved, is enabled by this section to prove down to the date of the commission, at such rate as is allowed by the Court of King's Bench in actions upon such bills or notes. Any person having recovered at law or in equity ^'^'^^- 5^* shall be entitled to prove for his costs against the bank- rupt, although they have not been taxed at the time of the bankruptcy (e). It w^as decided in the great case of ex parte Charles, that where the bankruptcy hap- pened between verdict and judgment, there was not a good petitioning creditor's debt; and by parity of reasoning, costs under such circumstances could not 14 East, 197. be proved. If the judgment on a nonsuit be entered up before the issuing of the commission, though after an act of bankruptcy, it seems that the costs will be proveable on the g-round that a debt has been con- tracted. - AV^here there has been mutual credit given by the Sect. 50. bankrupt and any other person, or where there are mutual debts between the bankrupt and any other person, the commissioners shall state the account be- tween them, and one debt or demand may be set against another, notwithstanding any prior act of bankruptcy committed by such bankrupt before the credit given to or the debt contracted by him ; and what shall appear due on either side, on the balance of such account, and no more, shall be claimed or paid on either side respec- tively, so that the person claiming the benefit of set-off had no notice of an act of bankruptcy. Every debt or (e) This section applies only to plaintiff's costs. 4 Bing- ham, 57, Eire v. Murenii. G G 3 ^1^4 ''^^ BANKUUPICV. [Cll. 4> demand made pvoveable against the estate of the bank- rupt may be set-off in hke manner. Contingent debts may now, under the latter clause, be the subjects of set-ofF. The following debts may also be proved under a com- mission : — such as arise from awards ; bonds ; bills and notes ; damages ; rates and taxes, &c. If a creditor enter into a competition with his debtor, to receive so much, payable at such a day, but before it be paid the debtor becomes a bankrupt, the creditor may prove for the whole of his debt, and not merely for the sum as compounded ; but this is otherwise where t)eacon, p. 297. there is a release in the composition deed. 33 Geo. 3, clt. By the Friendly Society Act, if any officer of such ^^' *■ ' society, being intrusted with, or having any monies or securities of such a society in his hands, shall become a bankrupt, his assignees, forty days after demand, shall give up all things belonging to the society, and satisfy all monies owing to the society, out of the bank- rupt's estate, in preference to all other debts. 6. Assignees. 6. Assignees. The commissioners are empowered to appoint as- Sect. 45. signees provisionally, until there be an election by the creditors ; and there is a penalty on the first assignee of 200 Z. if he do not duly deliver up the bankrupt's effects to the new assignees. The bankrupt's copyhold property should be excepted out of this provisional as- signment, as two fines to the lord, upon surrender and admittance, will be thereby saved ; and as an extent Deacon, p. 313. does not affect copyholds, no risk will be run in regard of the claims of the Crown. At the second meeting appointed by the commis- sioners, or any adjournment thereof, assignees of the bankrupt's estate and effects shall be chosen. The S. 1.] ASSIGNEES. 455 commissioners have power to reject any assignee elect Sect. 61. whom they shall deem to be unfit, and to cause another election to be had in his room. Three commissioners must be present at the election, or it will be invalid ; and an application may be made at all events to the Lord Chancellor for the purpose of obtaining a fresh choice of assignees. For by sect. 66, the Lord Chancellor may vacate any conveyance or assignment, and direct new, so as the title of a pur- chaser be not thereby affected, nor any estate, previously barred, be revived. This order for a new assignment shall vest the personal estate in the new assignees ; and if any new conveyance shall be ordered, it shall be valid without any conveyance from the former assignees. Though usual, it is not necessary that a creditor should Deacon, p. 315. be elected to the office. And by section 62, joint creditors are entitled to prove under a separate commission, for the purpose only of voting in the choice of assignees, and of assenting to or dissenting from the certificate; but such creditor - shall not receive any dividend out of the separate estate until all the separate creditors have received their debts, unless such creditor shall be a petitioning creditor in a commission ao;ainst one member of a firm. The major part of creditors in value present at this Sect. 102. meeting may direct where the money received is to be placed ; and in default of their doing so, the commis- sioners shall make the direction, so that no money be paid into the hands of the commissioners, or of the solicitor to the commission, or into any house of trade connected with those individuals. The commissioners may direct money received to be Sect. 103. invested in Exchequer bills for the benefit of creditors, and may direct where the bills should be kept. They may order the sale of such bills, and a reinvestment in G G 4 45^ OF BANKRUPTCY. [Cll. 4, Exchequer bills, subject to the consent of the Lord Chancellor. Sect. 63 & 64. The commissioners are now to convey the bankrnpt's estate, both real and personal, to the assignees. There is a proviso, as to the registration of colonial property, that every deed requiring registration should be so regis- tered according to the laws of the colony ; and no such deed shall invalidate the title of a prior purchaser without notice of the commission. Sect. 77. ^11 powers vested in any bankrupt, which he may legally execute for his own benefit (except the right of nomination to any vacant ecclesiastical benefice (y), may be executed in like maaner by the assignees, for the benefit of creditors. The bankrupt may further, by section 78, be ordered by the Lord Chancellor to join in any conveyance ; and if he do not so join, his estate and title shall be barred. The assignment being mentioned, let us advert to that part of the estate which speaks of the property assignable. It provides, that if the bankrupt be the reputed owner of any goods with the consent of the true owner, and have them in his possession, order, or Sect. 74. disposition, the commissioners shall have power to sell and dispose of them for the benefit of creditors ; but the transfer or assignment of a ship, or any share thereof, as a security for debts, by way of mortgage or as- signment, and duly registered, shall not be inva- lidated. This section does not apply to fixtures, or shares in a public company, where the rents or tolls issue out of the realty, but moveable utensils not fixed to the (y) The bankrupt may present in that case, but commis- sioners may sell an advowson. S. 1.] ASSIGNEES. 457 freehold are within it(g). What shall be said to be a possession is a question very peculiarly for the consi- deration of a jury. And with respect to the reputed ownership, it must needs be with the permission of the true owner ; so that an adverse possession, or possession of infants' property, or possession acquired secretly, are not within the statute. A factor's possession is not within the Act, for he has a bare authority to sell for his principal ; nor is trust property ; nor are the funds of an executor or administrator. By section 80, all government or other stock in which the bankrupt is beneficially interested is to be trans- ferred into the names of the assignees, who are to receive the dividends. Copyhold lands may be sold for the benefit of ere- Sect. 68. ditors ; but the vendors of such lands shall agree and Sect. 69. compound with the lord for their fines before they take the profits (/?). The assignees have power to redeem mortgaged and Sect. 70. other conditional estates, in like manner as the bank- rupt might have done. Again, where the bankrupt is seised of any estate tail Sect. 65. in possession, reversion or remainder, and whereof no reversion or remainder is in the Crown, the gift or pro- vision of the Crown, such estate may be sold by the commissioners for the benefit of creditors. {g) One bought goods in the warehouses of the E. I. Com- pany, and left the warrants with another person, who pledged them and became bankrupt ; it was held that they did not pass to the assignees, not being in the possession, order, and disposition of the pawnor. 4 Barncwall and Cresswell, 316, Greening v. Clarke. (Ji) See 5 Barncwall & .lldcrson, 4^8, Doc, d. Spencer v. Clark. 458 Sect. 75. Sect. 76. Ryan & Moody 207, Clark V. Hume. 2 TermReports, 133, Roe, d. of Hunter v. Gal- liers. Sect. 81. OF BANKRUPTCY. [Ch. 4^ Where the bankrupt is entitled to a lease, or an agree- ment for a lease, he shall not be liable for rent or cove- nants if the assignees accept the same ; and if they decline to do so, still he shall not be liable if he deliver up such lease or agreement to the lessor, &c. within fourteen days after he shall have had notice that the assignees have declined. And if the assignees hesitate to elect, they may be compelled to do so by order from the Lord Chancellor. So the seller of any estate in land may compel the assignees to elect whether they will abide by or decline the agreement ; and if they do not elect, the Lord Chancellor may order them to deliver up the agreement and the premises. Where an assignee took better premises, and carried on the trade for some time for the benefit of creditors, he may not afterwards exercise his right of declaring oiF. Should there be a proviso in a lease that the landlord may re-enter in case of the tenant's bankruptcy, the election of the assignees cannot be called for ; for such a stipulation on the part of the landlord is good in law. Whatever conveyances and contracts the bankrupt may have entered into two months (?) before issuing of the commission, shall be valid notwithstanding any prior act of bankruptcy committed, and so shall executions and attachments made or levied in that manner, pro- vided there have been no notice of the act of bank- ruptcy ; provided also, that if the commission be super- seded, and another issue, the two months shall be reckoned from the issuing of the first commission (k). (i) See Moody & Malkin, 137, Tucker v. Barrow. (A) The 3 G. IV. ch. 39, s. 2, as to filing warrants of attor- ney to render the judgments on tliem effectual against subse- quent commissions of bankruptcy, is not repealed by this section. Moody (Si Malkin, 8, Wilson v. IVhittaJier. S. 1.] ASSIGNEES. 459 Payments made by or to bankrupts bona fide, and Sect. 82. without notice of bankruptcy before the date and issuing of the commission, shall be valid notwithstanding any prior act of bankruptcy (/ ). The issuing of a commission shall be deemed notice Sect. 83. of a prior act of bankruptcy (if an act of bankruptcy had been actually committed before the issuing of the commission), if the adjudication shall have been notified in the London Gazette, and the party to be affected by such notice may reasonably be presumed to have seen the same. No person, corporation, or public company, having Sect. 84. effects of the bankrupt in their possession, shall be endangered by paying or delivering them to the bank- rupt or his order, unless they had notice of an act of bankruptcy at the time of such delivery or payment. Notice to the agent is notice to the corporation or Sect. 85. company. No purchase from any bankrupt bona fide and for Sect. 86. valuable consideration, where the purchaser had notice at the time of such purchase of an act of bankruptcy by such bankrupt committed, shall be impeached, unless there be a commission within twelve months after such act of bankruptcy. The relation to the act of bankruptcy cannot be carried further back than the accruing of the petitioning credi- tor's debt ; for the assignees could not avail themselves of any act of bankruptcy beyond that time without destroying their title as assignees. Deacon, p. 675. If a bankrupt, being at the time insolvent, shall Sect. 73. convey his lands or goods, deliver his securities, or (/) If the payment be made by the bankrupt with a view to the prohability of his becoming insolvent, and with a fraud- ulent preference, it will not be protected. 4 Bingham, 20, Flookv. Jones. 460 OF BANKRUPTCY. [Cll . 4, transfer his debts to others, or into the names of others (except upon the marriage of any of his children, or for some valuable consideration), the commissioners shall have power to sell and dispose of the same. It is observable that the section does not contain the w^ord " money j" and Lord Ellenborough, in a case upon the old law, said, that the enactment, which in that respect was similar to the new, seemed to be confined to things which were the subjects of conveyance; and that to 2 ]\iauie & Sel- Support the doctrine contended for, would go the length smTt'on v "' ^^ making a son liable to refund every portion of money Ciiantici. given him by his father for his maintenance. Sect. 101. The assignees are to keep an account of the bank- rupt's estate, to be inspected by creditors at all season- able times ; and the commissioners may summon the assignees to produce all books, &c. belonging to the bankruptcy, and on their refusal, may commit them. Should the assignee die before accounting, the commis- sioners may be considered as specialty creditors, and Deacon, p. 328. niay come upon his real estate. Sect. 104. If any assignee shall disobey any order to invest money as aforesaid, that is, in exchequer bills, or retain or employ it for his own benefit, or knowingly permit any co-assignee so to retain or employ any sum to the amount of 100/. or upwards, part of the estate of the bankrupt, he shall be charged twenty per cent during the time he so misconducts himself. Sect. 105. If an assignee become bankrupt, and indebted to a bankrupt's estate in respect of money retained or em- i ployed as mentioned in the last section, his certificate shall only have the effect of securing his person from arrest and imprisonment, but his future effects shall remain liable. Deacon, p. 339. The penalty of twenty per cent applies to a solvent assignee, and shall not prejudice the general creditors of a bankrupt assignee. So that the co-assignee will only S. 1.] ASSIGNEE&v 461 be permitted to prove for the amount of the money mis- employed, with interest at five per cent, and cannot include the penalty of twenty per cent. The commissioners are to audit the assignees' account Sect. 106. not sooner than four months from the issuing of the commission, nor later than six months from the last examination. Assignees are the proper persons to commence pro- Sect. 88. ceedings for the recovery of debts due to the bankrupt; and with the consent of the major part in value of the creditors present at a meeting, of which twenty-one days' notice has been given in the Gazette, they may compound, or submit to arbitration, or give time, or take security, or commence suits in equity ; and if one third of the creditors shall not attend at the meeting, the assignees may act with the consent of the commis- sioners, testified in writing under their hands. Suits at law or in equity are not to be abated by the Sect. 67. death or removal of assignees, but the names of the surviving or new assignees may be substituted. In prosecuting suits, the assignees of one or more Sect. 89. members of a firm may use their names ; but such partners shall be indemnified against costs if they claim no benefit from the proceedings, but the quantum of costs is in the discretion of the Lord Chancellor. By sections 90 and 91, in any action by or against assignees,' at law or in equity, or against commissioners for any act done by virtue of their office, no proof of the peti- tioning creditor's debt need be given, nor of the trading, nor of the act of bankruptcy, unless notice be given that it is intended to dispute those matters. Depositions taken before the commissioners at the Sect. 92. time of or previous to adjudication, to be deemed con- clusive in actions or suits brought by assignees, unless the bankrupt have given notice of his intention to dis- pute the commission two calendar months after the 4^32 OF RANKRUPTCY. [Cll. 4, adjudication, if in tlie United Kingdom at the issuing of the commission, or twelve calendar months if out of it {m). Sect. f)3. This section enables a debtor to pay money into Court in order to stay proceedings in those cases where actions have been commenced before the time for disputing the commission has elapsed. Sect. 97. \iY every action, suit, or issue, office-copies of any original instrument or writing, filed in the office or offi" cially in the possession of the Lord Chancellor's secre- tary of bankrupts, shall be evidence to be received of eveiy such original instrument or writing respectively ; and if any such original instrument or writing shall be produced on any trial, the costs of producing the same shall not be allowed on taxation, unless it appear that the production of such original instrument or other writing was necessary. Sect. 71. Where the bankrupt procures an extent against his effects by fraud, or if under the pretence of his being an accountant or debtor to the king, his estate real, or per- sonal be extended, the commissioners may examine into the truth of the debt ; and if the contract were ori- ginally made with any other person than the debtor or accountant, or in trust for any person, the commissioners may sell the real or personal estate so extended, and the purchaser may have and recover it against any person detaining the same. (m) The proceedings as well as the commission having been put in, in a case where no notice had been given to dispute the bankruptcy, it appeared that there was no evidence of a petitioning creditor's debt ; but the Court held that the vali- dity of the commission could not be disputed, notwith- standing this apparent defect. 4 Bingham, 34, Macbeath v. Coafes. s. 1.] luvTnEN r>. 403 7. Dividend. ^ The commissioners are directed, not sooner than four '7' ^i^>^«"''- nor later than twelve calendar months from the issuing; of the commission, to appoint a public meeting (twenty- one days notice having been given in the London Ga- zette) to make a dividend of the bankrupt's estate, where creditors may, nevertheless, be admitted to prove, and the effects are to be impartially distributed among such as have proved under the commission ; but no dividend shall be declared, unless the accounts of the assignees shall have been previously audited, and the statement delivered by them upon oath. There must be a final dividend within eighteen months, ^*^*^^- "'9* except there be a suit depending, or any part of the estate be standing out, or unless some other estate shall afterwards come to tlie assignees ; in which case they shall convert such estate as soon as may be into money, and divide within two calendar months after it has been so converted. No action for any dividend shall be brought, but if the Sect. 111. assignees shall refuse to pay the dividend, the Lord Chancellor may, on petition, order payment, with in- terest from the time of withholding the money, together with the costs of the application. This course must be by petition to the Chancellor LY^^J^-^'J""- . . . , , 1 1 1 Ml ^^^' Clarke v. sittmg m bankruptcy, and not by bill. Capron. By section 108, no creditor, having security for his debt, or having made any attachment in London, or elsewhere, by virtue of any custom, shall receive more than a rateable part of his debt, except in respect of any execution or extent served and levied by seizure upon, or any mortgage of or lien upon any property of the bankrupt before the bankruptcy, provided that no cre- ditor, though for a valuable consideration, who shall sue 4^4 O^ BANKRUPTCY. [Cll. 4, out execution upon any judgment obtained by default, confession, or nil dicit, shall avail himself of such exe- cution to the prejudice of other fair creditors, but shall be paid rateably with such creditors {n). Sect. 110. Should any assignee have in any way at his disposal any unclaimed dividend to the value of 50 1, and not file an account in the bankrupt office of such dividend, he shall forfeit five per cent during the time of retaining the same, and such further sum, not exceeding twenty per cent, as the commissioners shall think fit; such divi- dends, at the discretion of the Lord Chancellor, or the commissioners, may be invested in the public funds, and, after three years, may be divided amongst the other creditors. Sect, 132. Should any surplus remain after payment of the debts, the bankrupt is entitled to it; but full interest must pre- viously be paid ; that is to say, all creditors whose debts are now by law entitled to carry interest shall first re- ceive interest on such debts, at the rate of interest reserved or by law payable thereon, to be calculated from the date of the commission ; and after such intei'est paid, all other creditors who have proved under the commis- («) " The Act does not say that the execution shall be '* void, or that the creditor shall not avail himself of it, but " merely that he shall not avail himself of it to the prejudice *' of other fair creditors, but shall be paid rateably with " them." By Holroyd, J. 5 Barnewall & Cresswell, 394. A. commission issued after seizure under an execution upon a judgment by nil dicit, but before the return of the Jieri facias ; the Court refused to set aside the execution, 5 Barnewall & Cresswell, 392, Taylor v. Taylor. Mr. Justice Holroyd said, that he entertained consider., able doubt whether it was a proper question to be determined in a court of law. S. 1.] CERTIFICATE. 4*^5 sion shall receive interest on their debts from the date of the commission, at the rate of four per cent(o). 8. Of (he Certificaic. The certificate is to be signed by four-fifths in number ^- Oftl^e Cer- tific£tlc and value of the creditors of the bankrupt, who shall ggj.t ^^^^ have proved debts under the commission to the amount of 20 /. or upwards ; or, -sdly, it may be signed after six calendar months from the last examination of the bank- rupt, by three-fifths in number and value of such credi- tors ; or, 3dly, it may be had by the signatures of nine- tenths in number of such creditors, who shall thereby testify their consent to the bankrupt's discharge. " In " calculating the number of creditors who must sign " out of the whole number who have proved, whose " debts are 20 /. or more each, if there is a fraction, one » Christien, " for that fraction must sign ; and if seventeen have p.^338"'' ''"'' " proved, then three-fifths of seventeen are equal to ten " and one fifth ; and as ten would be less than three- '/ fifths, though eleven is something more, yet eleven " must sign, and so of every other number not divisible " by five." There must not be any persuasion or inducement for Sect. 125. creditors to sign, and if any contract or security be made or entered into, for the purpose of obtaining the certificate, it shall be void, and the money agreed to be paid shall not be recoverable. (0) In the case of a surplus the Court directed that in- terest should be calculated upon the whole debt up to the time of the first dividend, then the amount of the dividend to be subtracted from the whole, and interest to be calcu- lated upon the reduced principal up to the payment of the next dividend, and so forward. 2 Glyn tv Jameson, 123, Jhgginbnttom, in re. H U 4^0 Sect. 122. 2 Glyn &£ Jame- son, 8o, Davis, in re. 1 Vcsey & Beanies, 47. 1(1.48. Sect 130. OF BANKRUPTCY. [Ch. 4, And it makes no difference that the negotiation has been entered into without the privity of the bankrupt. The certificate is not only to have the signature of the creditors, it must be signed by the commissioners also. The object is to satisfy the Lord Chancellor that the bankrupt has made a full discovery of his estate and effects, and conformed in all things, and that the credi- tors have Signed in the manner above mentioned. The bankrupt must make oath in writing that his certificate has been obtained without fraud, and the Lord Chan- cellor may then allow it ; but any creditor may be heard against the allowance. Certain irregularities in the certificate, by not stating the day and year of the signatures in full, have been held immaterial ; but the commissioners were considered right in not certifying without the sanction of the Court. The commissioners have an absolute discre- tion, and cannot be compelled to affix their signatures. The discretion of the commissioners ought to be di- rected to the party's conduct since he has become bankrupt, and to the question whether he has con- formed himself. The Lord Chancellor has said, " If " the bankrupt has conformed himself, I have no right " to refuse him his certificate." " I put it on the dry " question whether I can withhold the certificate, and " disclaim all authority to withhold it on antecedent " conduct." The following offences will preclude the bankrupt from obtaining his certificate, and will vitiate it if he have obtained it, and will also deprive him of his allow- ance : — having lost within one year next preceding his bankruptcy in one day 20/. or 200/. during the whole year ; or, having lost within the same time 200 /. in stock-jobbing, that is to say, where the contract was not to be performed within "one week after the contract, or where the stock bouoht or sold was not actuallv trans- S. 1.] CERTIFICATE. 467 ferred or delivered in pursuance of such contract ; or, if he shall after an act of, or in contemplation of bank- ruptcy, have destroyed, falsified, or made fraudulent entries in his books, &c. or have been privy to such acts ; or have concealed effects to the value of lol. or have been cognizant of the proof of a fictitious debt w^ith- out having disclosed the same to his assignees within one month after he became acquainted with the cir- cumstance. Lastly, the commissioners are not to sign any certificate Sect. 1 24. unless they shall have proof, by affidavit in writing, of the signature of the creditors thereto, or of any person thereto authorized by any creditor, and of the authority by which such person shall have so signed the same; and if any creditor reside abroad, the authority of such creditor shall be attested by a notary public, British minister, or consul, and every such affidavit, authority, and attestation shall be laid before the Lord Chancellor, with the certificate, previous to the allowance thereof. Let us now see what effect the certificate has upon the "future liabilities of the bankrupt. It is, in effect, a dis- Sect. lai. charge from all debts due by him when he became bankrupt, and from claims and demands made proveable vinder the commission, but a partner of the bankrupt is not discharged by such certificate, nor a co-surety (p). (p) " It is doubtful whether the discharge under sect, lii of 6 Geo. iV. c. 16, extends to the bankrupt's goods." " If " the Legislature had intended that tlie protection of thecer- " tificate should extend beyond the person, they would have *' so expressed it when the old Acts were under revision." By Best, Ch. J, 4 Bingham, 495. The bankrupt obtained his certificate on 13th November, on the same day a. Jieri facias was executed on his goods, and the Court refused to relieve him upon motion. 4 Bingham, 493, Hanson v. Bhiheii. 11 II -1 4ti8 OF BANKKUPTCY : [Cll. 4, A debt due to the Crown is not made mention of in the statute, and therefore is not proveable under the commission ; consequently the bankrupt's certificate will not deliver him from that. It is not a discharge of 1 Campbell, a promise to allow a weekly sum for the support of an wiii'ttenbury." illegitimate child ; it will be a bar for arrears accrued before the bankruptcy, because they are proveable, but not for such as are subsequently incurred. The same 1 Barnewail & reasoning will apply to arrears on a bastardy bond ac- OvtTsecrsofSt. cruing Subsequently to the bankruptcy ; and it has been Martin x>. decided in that event, also, that the certificate is no bar. The debt must be certain, as we have seen ; it 4 Bingham, 209, has always, therefore, been considered that a claim for PartrixiKe' Unliquidated damages, not being proveable, is not barred by the certificate. If the bail be fixed before the certificate, they cannot be relieved ; but any private arrangement to the injury of the bail will not be countenanced. As where the principal offered to surrender on the 13th of May, but the plaintiff dispensed with this surrender upon an und-ertaking that the bail should continue liable. The bail signed an agreement to that effect in June, being ignorant that the principal had proposed to sur- 1 Bingham, 164, j-gnder, and the plaintiff then proceeded against the bail West r. Ash- ' . '^ ^ . . • ii- down. without notice. In October the principal obtamed his cer- tificate. The Court said that the bail ceased to be liable on the 13th of May, the day of the proposed surrender; that it was like the case of a cognovit on which time is given to the principal ; and that it was a breach of good faith to proceed against the bail without notice. Sect. 131. The debt being thus destroyed as far as relates to the legal responsibility of the bankrupt, may nevertheless be revived again ; but the new promise must be in writing, signed by the bankrupt or his, agent. The bankrupt iBinj'ham a8i, having promised to pay a debt due before his bank- Bris f. BraLam, yuptcj^ before his certiificate, was held liable equally as S. 1.] CERTIFICATE. 4-69 though the promise had been made afterwards ; but if the creditor oppose the granting of the certificate after such a promise, he will be considered to have waived the agreement. Moreover the bankrupt's person is freed from arrest by virtue of this instrument. He may be discharged ^^*^^* '^®- upon common bail ; he may plead generally that the cause of action accrued before he became bankrupt {q) ; he may give the Act and the special matter in evidence ; and the bankrupt's certificate, and the allowance thereof, shall be sufficient evidence of the trading, bankruptcy, commission, and other proceedings precedent to the obtaining such certificate : and a bankrupt taken in execution may be discharged by order of the Judge of the court wherein judgment has been so obtained, on the production of the certificate. The Court, however, will refuse the summary application, if there be affidavits stating that the certificate has been obtained by fraud, as by allowing proof of fictitious debts under the com- mission. So where the bankrupt misdescribed himself, -and the plaintiff had never heard of the commission until after the commencement of the action, the Court would not discharge the bankrupt, but left him to plead a Sir w. Black- his certificate. sS/v. Jo»es. Under 5 Geo. 4, c. 98, where there was only one opposing creditor, it was declared competent for the Lord Chancellor upon petition to allow it, notwith- standing the opposition. The 1 23d section of the present statute continues such a power as to all certificates (<7) A cause had been set down for trial in the term as un- defended, and was postponed on condition of giving judg- ment of the term. At the next sittings a plea puis darrem continuance of the defendant's bankruptcy and certificate was tendered, and Lord Tenterden received it. Moody tSc Mal- kin. i2;:j Whitinore x. Baniock. H H 3 470 OF BANKRUPTCY : [Cll. 4, respecting which petitions might have been presented previous to the passing of the new Act, but does not Deacon, p. 564, apply to subsequent certificates. The enactment, it is said, was disapproved of by Lord Eldon. 9. Alloiuance. 9. Allowance. Next, if the bankrupt have obtained his certificate, he is entitled to an allowance upon a graduated scale ; but this, it will be remembered, applies to the first com- mission ; for under a second, unless his estate pay 155. in the pound, he is not entitled to any other advantage than privilege from arrest. Sect. ^28. However, if the net produce of the estate under the first commission shall pay the creditors so much, the assignees shall pay the bankrupt a certain allowance : If the estate pay 105. in the pound, the bankrupt to have 5 /. per cent out of such produce, provided it do not exceed 400 Z. If the estate pay 12 s. 6rf. in the pound, the bankrupt to have 7/. 10 s. per cent, but it must not exceed 500 /. If the estate pay 15 s. in the pound or upwards, the bankrupt to have loZ. per cent, but it may not exceed 600/. If the estate do not pay 10 s. in the pound, such bankrupt to have so much as the assignees and commissioners think fit, not exceeding 3 /. per cent, and 300/. (r). Sect. lio. ^"6 partner may receive his allowance, although others of the firm may not be entitled. (r) The bankrupt's representatives are entitled to this al- lowance in case of his decease, and the right to it vests not in the bankrupt's obtaining his certificate, but on the payment of the dividend sufficient, -i Glyn & Jameson, 128, Saffbrd, ex parte. s. 1,] suPEn?;F.i>EAs. 471 10. Supersedeas. The superseding a commission is for the most part lo^ Supcrse- discretionary in the Lord Chancellor, who exercises a full jurisdiction upon this subject. The various grounds which will induce him to do so may be found in the books upon the practice of bankruptcy. It may be superseded for want of qualification in the bankrupt, ^^^ Uoacou, as his being an infant, feme covert, his never having been a trader ; for want of sufficiency in the petitioning creditor, as his being an infant, not having a legal debt, &c. ; for defects in the commission itself, as its being fraudulently and vexatiously issued, the proper forms not having been complied with, delay in suing it out ; with others. So, again, it may be superseded for as- suming a purpose different from its ordinary operation, as determining a lease, dissolving a partnership, &c- And so, again, if there be two commissions, or a joint and separate commission pending (s). The application maybe made by the creditors, as well as the bankrupt. As if it should appear that the com- mission has collusively issued ; that it is rather the commission of the bankrupt than of the creditor; that the act of bankruptcy has been concerted \ that the petitioning creditor has received a preference ; that he (5) A supersedeas has been ordered on a petition signed by all the creditors and the bankrupt's solicitor, and the cer- tificate of the commissioners, although the bankrupt, being abroad, had never surrendered. 2 Glyn & Jameson, 35, Carling, ex parte. A bankrupt who has applied for, and obtained his dis- charge on the ground of his bankruptcy under a particular commission, cannot afterwards dispute the validity of that commission. 5 Barnevvall & Cresswell, 153, Watson v. Wacc, H H 4 47^ OF BANKKUKTCY: [Cll. 4, has been guilty of unreasonable delay, &c. But it is not supersedable at the instance of creditors after certi- ficate, unless it be in case of fraud, in which case equity always interposes. Sect. 94. The new statute declares that persons from whom the assignees have recovered, or who have bona fide paid their debts due to the bankrupt, shall be discharged from the claims against them, notwithstanding the super- seding of the commission. So also shall all persons who shall without action or suit bona Jide deliver np possession of any real or personal estate to the assignees ; provided, in all these cases, that notice has not been duly given of an intention to dispute the validity of the Sect. 87. commission. And further, unless the bankrupt shall have commenced proceedings to supersede the commis- sion, and shall have duly prosecuted the same within twelve months from the issuing of it, no title to any real or personal estate sold under the commission, or under any order in bankruptcy, shall in any way be impeached by the bankrupt, or any other person claiming under him. As soon as the commission is superseded, the parties are remitted to their original rights, as far as is consis- tent with justice. If, therefore, a bankrupt be in debt before the superseding the commission, his liability will revive ; and if there have been any fraud, the bankrupt will even be sent back to confinement under an execu- tion. As where the plaintiff, who had discharged the defendant from execution, in order that he might prove his debt, re-took him on the superseding the commission : 2 Bingham, 41, the Court in this case made the distinction between Baker v. llidg- cases of fraud and fair dealing, and they refused to discharge the defendant. Upon the following agreement amongst the creditors, the Lord Chancellor is directed to supersede the com- Scct. 133. mission. If at any meeting of creditors after the bank' way $. 1.] SUPERSEDEAS. 473 rupt's last examination (with twenty-one days notice in the Gazette), the bankrupt or his friends shall make an offer of composition, which nine-tenths in number and value of the creditors assembled shall agree to accept, another meeting, for the purpose of deciding upon such offer, shall be appointed, with the like notices ; and if nine-tenths in number and value of creditors then pre- sent shall also agree to accept such ofter, the Lord Chan- cellor, upon such acceptance being testified in writing, shall and may supersede the commission. The next section prescribes the mode of voting upon this occasion. The debt of a creditor below 20 /. shall be reckoned in value, but not in number. A creditor to the amount of 50 1, and upwards shall be personally served with a notice to attend in time enough before the meeting ; and he may vote by ISlter of attorney, executed and attested in the manner required for such creditors voting in the choice of assignees. The penalty for taking a bribe to vote in favour of the superseding, is a forfeiture of the debt, together with the gratuity. If required, the bank- rupt must make oath that no such transaction has occurred with his privity, and that he has used no undue means or influence with any of his creditors to gain their assent. The proceedings in bankruptcy must be duly enrolled, s^ct. 95 & 95, and cannot be admitted in evidence unless previously entered of record. The fees of such entry of every commission, adjudication of bankruptcy, assignment, or order for vacating the same, having the certificate of entry indorsed, are 2 s. ; for the entry of a certificate of conformity, having the like certificate indorsed, 6 s. ; such enrolment to be made without any petition in writing for that purpose. The Lord Chancellor may order other matters in bankruptcy to be enrolled, and may appoint other fees. All persons shall be at liberty to search for any of the matters so entered, and the 474 "I" uAjsKUurTcv: [Ch. 4, certificate of entry indorsed is to be received as evidence of such entry. Sect, 93. Lastly, it is enacted, that commissions, deeds, and other instruments relating to the estate and effects of bankrupts, shall not be liable to the stamp duty ; nor shall any sales of any real or personal estate of bank- rupts be so liable. Sect 14. Solicitors' bills are to be taxed by the commissioners, except the law and equity charges, which are to be taxed by the proper officers of the particular court ; but if a creditor to the amount of 20/. be dissatisfied therewith, son, '117, Gore, ^^ ^^^Y havc the costs taxed by a master in Chancery. ex parte. These costs are to be taxed from time to time. By sect. 136, it is declared that the Act shall be construed beneficially for creditors ; that nothing shall alter the present practice in bankruptcy, except where such alteration is expressly declared ; and subsisting commissions are sustained. The Act is not to extend to Scotland or Ireland, except where the same are expressly mentioned. By sect, 1 36, the Act was declared to have its com- mencement on the 1st day of Sept. 1825 ; save and except that the repeal of the Act passed in the ^th year of the reign of his pi^esent Majesty, thereby repealed, atid all enactments therei?i contained relating to certificates of con- formity, were to take effect upon the passing of the Act. The date of the Act was the 2d of May. A commission was sued out on the 8th of Sept. 1 825, against a party, for an act of bankruptcy committed in the July pre- ceding ; and the Court held, that as this individual had not committed an act of bankruptcy since the new Act came into operation, he was not a bankrupt, and the 4Binoham,2i2, '^"^^^ ^^r entering a nonsuit against the assignee was Maggs V. Hunt, made absolute. The chief sections of the new Bankrupt Act have been now mentioned separately ; and the shortness of the S. 2,] INSOLVENCY. 475 comment upon them has arisen from the circumstance of there being already several very able treatises on the bankrupt laws, and the general nature of our undertakinor. SECTION II. OF INSOLVENCY. There has been passed very recently a new enact- 7 Geo. IV. ment for the relief of insolvent debtors. It repeals former Acts, except as far as they relate to petitions before the passing of the new Act ; and with respect to those, to use the words of the statute, " all things shall " and may be done by all persons, relating to the mat- " ters of all such petitions, which such persons might " have done" if the original Acts had been continued. Omitting the sections which treat of the formation of the court, and such as govern the practice, we come to the petition, which is the first step adopted by the insolvent in order to his discharge. It must be filed within fourteen days after the commencement of the Sect. 1 o. prisoner's custody ; but the Court may permit it to be received after that time, if they see reasonable grounds for the allowance. The petition must state — the cause of imprisonment ; the time of the commitment ; the change of custody (if any) ; the name of the detaining creditor ; the amount of debts, or costs, as far as the amount of costs can be ascertained : — also, whether the prisoner has petitioned the Court before, or any other Court, for his discharge under any Insolvent Act, or under the Lords Act ; whether, in pursuance of such petition, he has obtained his discharge ; whether he have been a bankrupt, and have obtained his certificate ; whe- 47^ INSOLVENCY. [Ch, 4, tlier he has given notice to the gaoler of his intention to petition (which notice the statute requires the pri- soner to give in writing to the gaoler): — the petition concludes by praying for a discharge; it is signed by the prisoner, and filed forthwith. Sect. 11. This being done, the prisoner must next execute an assignment of all his real and personal estate where- soever, and all which may come to him before his dis- charge (t), (except necessaries,) to the provisional assig- nee (?/) of the Court ; and this must take place before his final discharge, although there be no adjudication upon his petition. The Court are empowered to dis- miss a petition where a final adjudication shall not have been made, or to permit any amendment in a petition. Should the petition be dismissed, the assignment is void, but not so upon an amended petition. - Married women (a) and prisoners of unsound mind Sect. 7'2. are provided for ; the former, upon petition and execu- tion of a special assignment, so as not to prejudice the rights of her husband ; the latter upon the certificate of a magistrate as to the unsoundness of mind, and an Sect. 73. application on behalf of such prisoners. Assignees may {t) Where there is property, creditors should always apply to be, or appoint assigness. WoodrofFe, p. 24. The provisional assignee has no discretion allowed him to refuse the assignment, as a public officer he must accept it. 1 Bingham, 354, Crofts v. Pick. (u) See 2 Bingham, 372, Hepper v. Marshal. Assignees must take the estate subject to any incum- brances or charges to which the insolvent may have rendered it liable. 3 Bingham 486, Twiss v. White. (x) See 5 Barnewall &c Alderson, 759, ex parte Deacon. An infant cannot be an insolvent debtor. His estate tail was, therefore, held not to pass to his assignee. 5 Maddock, 50, Burton V. Haxxorth. S. 2.] INSOLVENCY. 477 then be appointed, judgment entered up, and the party may be discharged. The prisoner must be in custody Sect, it, at the time of filing the petition, and the rules may be allowed him afterwards (j/). The filing of this petition is an act of bankruptcy; and in case of a petition by Sect. 13. a bankrupt, it is provided that the same course shall Sect. h. be pursued, provided the rights of the assignees under the bankruptcy be not affected, nor the force of the certificate diminished. The assignee now takes posses- sion of the effects of the insolvent, and disposes of them • to the best advantage ; he is empowered to sue in his ^"*- ^^• own name; and in case of his death or removal, his successor is to receive the property of the insolvent; for the produce of the estate lie duly accounts to the Court. But assignees may be appointed on application ^^^^ '9 to the Court, and there must in that case be a sub- assignment by the provisional assignee (z). If the peti- tion be dismissed, the assignees are protected from any actions brought against them whilst acting in pursuance of their authority. No suit at law or in equity is to abate by the death of an assignee, but the name of the new assignee is to be forthwith substituted. The assignees are to sell the estate of the insolvent Sect. qo. by auction, as shall be approved by the major part in value of the creditors, at a public meeting convened for that purpose ; and they are also empowered to surrender (y) After adjudication, the Court have power to confine the prisoner within the walls of the prison, and need not allow him any rules or liberties. Sect. 52. (2) Where the insolvent died after petition and assignment to the provisional assignee, but before examination and assignment to the assignees in chief, it was held that the assignment by the provisional assignee to the assignees was valid. 4 Bingham, 3r)2, tni/es v. Elliott. Sect. 18. 478 liN SOLVENCY. [Ch. 4, the insolvent's copyhold property to purchasers. The Court, however, has a jurisdiction to restrain any sale Sect. 21. which may be prejudicial to the insolvent, considering the rights of the creditors nevertheless at the same time ; so that property may be mortgaged for the pay- ment of debts, if the Court think fit. Sect 2'2. The assignees are possessed of further powers — to grant leases, take fines, execute powers, to sue, to make Sect. 24. composition with debtors, submit any differences or disputes to arbitration ; but the major part in value of the creditors, convened at a public meeting, must signify their assent to such compositions or arbitrations, as well as to the bringing of any suit in equity (a). The debt Sect 25. of each creditor is to be considered for this purpose, upon taking an account fairly between the parties ; but is not to be deemed conclusive of the amount of the debt. Sect. 23. If the assignees should accept a lease, the insolvent will be discharged from the rent and covenants ; and if they neither accept nor decline, the insolvent may pray the Court that they may accept, or give up the leases and the possession of the premises (6). Every facility is afforded to the assignees for reducing the insolvent's estate into their possession. If the insol- Sect. 27. vent be beneficially entitled to stock, the Court may order it to be transferred into the names of the assignees. So Sect. 23. they may apply for and obtain a sequestration of the profit of a benefice, for the payment of debts (c). So, again, («) Under the old act no suit at latv could be proceeded in by the assignee, further than arrest on mesne process, without the consent of creditors and the commissioners. See 7 Barnewall & Cresswell, 441, Allison v. Rnyner. {h) See 4 Bingham, 348, Doe, d. Palmer v. Andrews. (c) But the insolvent remains the patron of a xacant eccle- siastical benefice, for to sell such would be simony. S. 2.] INSOLVENCY, 479 the pay, half-pay, salary, emoluments or pension of any prisoner, may be obtained by them on application to the ^*^^^- ^9- head of each particular department. So, again, goods in the possession or at the disposition of the prisoner, and of which he is the reputed owner, are to be deemed his property ; but there is an exception of assignments of ships made by way of a security, either by way of mortgage or assignment, and duly registered ; and again, a distress is not to be available for more than one year's ^''^t. 31. rent before the execution of the assignment. Dishonest transactions on the insolvent's part are discountenanced, and securities given in furtherance of them are declared void : as warrants of attorney and Sect. 33. cognovits, which are not duly filed within twenty-one days after they have been executed, or on which judg- ment and execution have not issued within that time. So, again, voluntary preferences in favour of particular Sect 32. creditors are deemed fraudulent and void, unless within three months before the imprisonment, or with a view of petitioning the Court for the discharge. Consequently no creditor, after the commencement Sect. 34. of the imprisonment, shall avail himself of any execution upon any judgment, by warrant of attorney or cognovit actionem, but shall be a creditor under the Act. And no prisoner who has petitioned shall be dis- Sect. 15. charged by reason of the plaintiff in any suit not pro- ceeding in his action by supersedeas, non-pros, or judgment, as in case of a nonsuit. It has been decided, as we have already mentioned, that the statute which directs the filing the warrants of attorney was not repealed by the new Act concerning bankrupts ; in this Act for the relief of insolvent debtors, we find it expressly recognised. f^"°ft^ '^ ^^'*'' At the end of three months from the assignment, the assignees must make up an account of the prisoner's estate, nnd proceed to declare a dividend, with thirtv Sect. 35. 480 INSOLVENCY, [Cll. 4, days' notice. If the dividend be proposed before adju- dication upon the prisoner's petition, it shall be made among the creditors who shall prove their debts to the satisfaction of the assignees; i^ after the adjudication, among the creditors whose debts shall be admitted in the prisoner's schedule. If any objection be made on the part of the prisoner, the assignees, or the creditors, to any of the claims, in the whole or in part, the Court, or a commissioner if on the circuit, may examine into the matter, with power to examine witnesses on oath, and to compel the production of books, papers, and writings, whose decision shall be conclusive ; pro- vided always, that in no case shall any such dividend be made before such adjudication shall have been made, unless the Court shall so direct. Sect. 36. If the prisoner, or any creditor, should be dissatisfied with the conduct of the assignees ; or if the Court shall think, from any cause, that the accounts of the assignees require investigation, an inquiry upon the subject shall take place ; and if any assignee shall be found to have retained any money wilfully, he shall be charged twenty per cent on that sum during the time he shall have so retained it ; the decisions of the Court or commissioner to be deemed conclusive. The 37th section directs, that after an inquiiy so made, due distribution shall be made of the effects of the insolvent; and if any dividend shall remain unclaimed in the hands of the assio-nees for twelve months, it shall o be paid into court to the credit of the estate (c?); and in default of its being so paid within the time limited (d) If the money be finally unclaimed, it is to be laid out in government securities, and the interest is to be applied to- wards defraying the expenses of the Court, provided that it be not invested until it shall have been in the hands of the Court twelve months at least. Sect. 88. S. 2.J INSOLVENCY. 481 by the Court or commissioner, the goods of the assignees may be distrained ; and in default of sutHcient distress, they may be committed to prison at the discretion of the Court or commissioner. The Court have power to remove assignees, or to sub- Sect. 38. stitute others in the room of such as may die or be unwiUing to act ; and the effects of insolvents shall be immediately vested in such new assignees. If any assignee, or the executor of any assignee, shall Sec(. 39. not deliver up the books, &c. or pay over the balance in his hands, he shall be committed till he have fulfilled the duty imposed upon him, or until the Court shall make an order to the contrary. We now come to the schedule of the prisoner's debts. Within fourteen days next after the filing of the pe- Sect. 40. tition, it becomes the duty of the prisoner, unless the Court should give him further time, to deliver a schedule, containing a full and fair description of his name, trade, place of abode ; of his debts, and of his creditors (e) ; of the nature and amount of his debts, distinguishing those admitted from such as are disputed ; an entire account of his estate, and emoluments ; and of all his rights and interests ; with an account of the debts due to him, and the places of his debtors' abode, and of the witnesses who can prove such debts, as far as the prisoner (e) The insolvent having rendered himself liable by accept- ing a bill, took the benefit of the Act, and inserted the name of the drawer, his creditor, in his schedule. The drawer, however, had indorsed the bill over, and it was objected, that as the holder's name was not in the schedule, the insolvent was still liable, but the Court gave judgment in his favour, for the defendant had mentioned the original debt in his sche- dule. 4 Barnewall & Cresswell, 214, Reeves v. Lambert ; Id. 15, Frenuan v.Drctv. 1 I 4^3 INSOLVENCY. [Ch. 4, can tell ; and also a balance sheet of so much of the receipts and expenditure, and of the items composing the same, as the Court may require. It must also con- tain an account of the excepted articles, as wearing- apparel, &c. ; it must be subscribed and filed, with all books, papers, &,c. relating to the estate. Persons wil- Sect.70. fully omitting any effects or property in their schedule, or except out of such schedule, as wearing apparel, &,c. property of greater value than 20 /., shall be ad- judged guilty of a misdemeanor, and liable to be impri- soned and kept to hard labour for a term not exceeding three years. It is observable, that the discharge will be confined to the debts particularly specified in the schedule, and the prisoner has a direct interest in seeing that the whole debt is inserted, and it may be expected that he will take care to do so. But if a creditor previously to the debtor's discharge request him not to include his debt in the schedule, as he would never call on him for its amount, he cannot afterwards sue the insolvent for such debt, although it be omitted. There is a provision for protecting the prisoner against any unintentional error whereby the amount of debts in his schedule may not have been correctly specified; both creditor and debtor are declared to be entitled to the be- nefits of the Act notwithstanding the error. The order for hearing the matters of the petition is next issued, and notice is to be given to the creditors at whose suit the prisoner is in custody, and to the credi- tors mentioned in the schedule as the Court shall direct, being resident within the United Kingdom, and whose debts shall amount to 5 /. to be inserted in the London Gazette, ?ind also in the Edinburgh and Dublin Gazettes, and other newspapers, if the Court shall think fit. Sect. 43. The hearing and examination of witnesses is now pre- 4 Barnewall & Cresswell, 419, Taylor v. Bu- chanan. 3 Moore, 231, Carpenter i;. White. Sect. 63. Sect. 41. Sect. 42. S. 2.] INSOLVENCY. 48^ scribed ; but before a creditor can examine or oppose, lie must have duly proved his debt. The Court are then empowered to adjourn the hearing, and to appoint a day for re-hearing. The insolvent may be opposed by affidavit, or interro- Sect. 44. gatories may be filed in certain cases. Moreover the schedule, and the accounts of the prisoner may be re- ferred to an offi.cer of the Court, or to an examiner who may cause the prisoner to be brought before him, and may examine him with other witnesses upon the matters g^,., ^^ in question : the expenses of the reference to be paid out of the insolvent's estate, if the Court think fit. The Court now proceed to adjudicate upon the insol- vent's petition, and to discharge him from the debts mentioned in his schedule, upon his swearing to the truth of his petition and schedule, and executing a war- rant of attorney to confess judgment for the amount of gect. 46. the debts stated in such schedule. Such judgment shall Sect. 57. have the force of a recognizance, and the Court may permit execution to be taken out upon it, if the insol- vent be of ability to pay, or be deceased, leaving assets {f). The first punishment mentioned is an imprisonment g^ct .» of six months prior to the discharge, which is left en- tirely to the discretion of the Court. The next is for three years, or less at discretion. The offences which incur this latter penalty are the fraudulently destroying Sect. 48. or withholding books, papers, &.c. ; making false entries, &,c. ; discharging or concealing debts due to or from^ (/) Therefore bribes to creditors of notes or bills payable at a future day will be fraudulent, as they would tend to diminish the fund to be divided among creditors when the in- solvent should be of abih'ty to pay. 4 Barnewall & Alderson, 6«.)ij Jackson V.Davison ; 2 Bingham, 441, Rogers v. King- ston ; 2 B]igh,2 29, 260, M' Neil I v. Cahill. I I 'i, 484 INSOLVENCY. [Ch. 4, the prisoner, with an intent to diminish the fund of the creditors, or give an undue preference ; making away with, charging, mortgaging, or conceahng any part of the estate before or after the imprisonment. Sect. 49. , Yj^g i^gxt is a punishment of two years' imprisonment, or less, at discretion. It is for contracting debts fraudu- lently, by means of a breach of trust, or by false pre- tences, without reasonable expectation of being able to discharge them — fraudulently obtaining the forbearance of creditors — putting them to unnecessary delay or ex- pense — having had a verdict against him for criminal conversation — seduction — breach of promise of mar- riage — malicious prosecution — libel — slander — or other malicious injury whether tort or trespass («■). The 50th section provides, that the discharge shall extend to all process issuing from any court, ecclesias- tical or civil, for non-payment of money, or of costs or expenses in any court, and to costs incurred by creditors, subject, nevertheless, to taxation under the act(/0- The discharge shall also extend to sums payable by way of annuity («), and the parties are to be admitted (g) A verdict having passed for the plaintiff, the defendant took the benefit of the Act, and was sentenced to imprison- ment for fraud ; the proceedings were consequently stayed, and then the plaintiff" having died, it was contended that the insolvent should be discharged out of custody : but the Court ht^Id that he might be detained at the suit of the administrator. 1 Bingham, 431, Holmes y.Murcott. {h) A party entitled to the benefit of the Act had been in contempt for want of appearance, which he had subsequently cleared : it was held, that he should be discharged from the costs, having included them in his schedule. 1 M'Clelland and Younge, 577, Evans v. IVilUayns. {i) See 5 Barnewall & Cresswell, r^Zx, Collins v. Lightfoot. But he is not discharged from the arrears of an annuity nc- Sect. r.i. S. 2.] INSOLVENCY. 4^;!; as creditors, regard being had to the original price given, and deducting; such diminution in the value as shall have been caused by the lapse of time since the grant. This section regulates the costs of opposition. If the ^^ ' creditor should prove that the prisoner has done any act within the section which enables the Court to imprison for three years, he is to have his taxed costs out of the estate, and in all other cases of opposition the costs are in the discretion of the Court; but costs may be awarded to the prisoner when the opposition is deemed to be frivolous and vexatious. The prisoner may be detained, or arrested, if there be Sect. 55. an order for keeping him in prison ; but he shall be en- titled to the benefit of the Act, notwithstanding he may have been out of actual custody during the time subse- quent to the adjudication, by reason of his not having been detained or arrested. And in case of a subsequent arrest, the insolvent shall ^^'•^^- ^"' be discharged by order of the Judge of the court out of which process has issued, and he may further be al- lowed his costs by the Judge entering at the same time a common appearance in such actions. cruing subsequently. 4 Bingham, 416, Freeman v. Bia-gess ; 2 Maule& Selwyn, 551, Page v. Bussell. Nor from the arrears of a bastardy bond so subsequently accruing. 3 Bingham, 1,54, Davis v. Arnott. Nor from any debt due upon a contingency, for until that happens, the insolvent is not liable. 2 Chitty's Rep. 448^ Hilton V. JVorrall. Trespass was brought for mesne profits, the discharge under an Insolvent Debtor's Act was pleaded, and held bad on demurrer, for the defendant was only discharged from his debts, and damages do not constitute a debt until judgment has been obtained for them. 3 Barnewall & Alderson, 407, Lloyd v. BclL 1 1 3 6 Barnewall iSc Cress well, 106, Norton v. Moseley. 4 Duwiing &c Kylaiui, 347, Phillips V. Wliilmore. 486 INSOLVENCY. [Cll. 4, A rule having been obtained, calling upon the plaintiff to shovi^ cause why the bail-bond should not be given up to be cancelled on the ground that the defendant had obtained his discharge under the Insolvent Act, it was said, that the Court, although they might discharge the prisoner, could not cancel the bail-bond, but the Court made the rule absolute; for if a bail-bond be given, spe- cial bail to the action must be put in, and then the bail may at any time apprehend the principal, and render him. But where the insolvent had been ordered to be committed for sixteen months, it was held, that the credi- tors at whose suit he was to suffer the imprisonment had a right to see that the judgment was enforced, and that if the insolvent were found at large before the expiration of that period they might arrest him. A certain allowance is awarded to the insolvent de- tained at the suit of creditors after adjudication, and the assignees are also directed to support him previous to the adjudication. In the former cases he is to receive a sum not exceeding 4s. per week; in the latter, the sum is entirely in the discretion of the Court. Again, after the insolvent's adjudication, no execution shall issue against him except upon the judgment en- tered up against him by virtue of the act. If, subsequently to the discharge, the insolvent should become entitled to property which cannot be taken in execution, and the insolvent refuse to transfer it, the as- signees may apply summarily to the Court that such insolvent may be recommitted, notwithstanding the ad- judication and discharge, and the Court may, thereupon, order the prisoner to be remanded till he transfers the newly-acquired property. Seel. 59. If, after the insolvent's discharge, any person, or public company shall be found to be possessed of any stock belonging to him, notice shall be given them to retain such property until the Court shall make an order Sect. 56. Seel. 17. Sect. 61. Sect. 58. S. 2.] INSOLVENCY. 487 concerning the same ; and upon such order, the stock shall be given up to the assignee for the benefit of cre- ditors ; and the parties so transferring it shall be dis- charged, by virtue of the order of the Court, in respect of such property and debts against all persons what- soever. If the debts in the insolvent's schedule should be sa- Sect. 62. tisfied, the warrant of attorney executed as before men- tioned shall be cancelled, or satisfaction entered on the judgment; and if there should be any surplus, a re-assignment of the property is to be made by the assignees, upon which no stamp duty shall be charge- able. Indeed the proceedings under the Act are exempted Sect. 87. generally from stamp and auction duties. The adjudication is declared to be conclusive, unless Sect. 67. the Court shall see reason to believe that their decree has proceeded upon false evidence, in which case they may order a re-hearing, and annul their original order. An insolvent refusing to appear may in such case be appre- hended, and if upon the second adj udication the Court shall think fit to impose an imprisonment, the time dur- ing which the prisoner may have been out of custody since the first adjudication need not be included. So, if any order or warrant of discharge shall have Sect. 68. issued erroneously, and not pursuant to the adjudication, the Court may revoke their order, and recommit the prisoner, and detainers lodged before his erroneous dis- charge shall continue to be in force against him. Even after the discharge, the insolvent may, upon Sect. 69. application by the assignees, be examined as to his estate and effects ; and if he refuse to appear on payment of his reasonable charges, he may be committed till he shall submit himself. However, persons who have already taken the benefit Sect. 64. of the Act, and who have been discharged, or have been 114 488 INSOLVENCY. [Cll. 4, declared bankrupts before the commencement of the imprisonment without having obtained their certificates, shall not be entitled to come in under the Act for five years, except three-fourths in number and value of their creditors shall signify their assent to such discharge, or unless it shall appear to the satisfaction of the Court, &.C. that the person has used every mean in his power to liquidate his debts, that he has incurred no unneces- sary expense, and that his subsequent debts have been incurred for the maintenance of his family ; or that his insolvency has arisen from misfortune or inability to acquire subsistence for his family. Sect. 66. Further, the benefit of the Act shall not be allowed to any person petitioning the Court who, having been arrested in any county or place where he lived at or lately before his arrest, shall be removed by any writ of habeas corpus to any other custody, his usual place of abode being more than twenty miles from the court- house, other than in the counties of Middlesex and Surrey, or the city of London, or borough of Southwark. But the Court may permit the prisoner to be removed back at the expense of any person willing to pay the same ; upon which the same proceedings may be had as in other cases. Sect. 65. But creditors may remove prisoners from the gaols of Middlesex, Surrey, London, or Southwark, to the county gaol of the place where such prisoners resided, at their own expense, to be repaid nevertheless by the assignees out of the estate of the insolvent, and the insolvents' petitions maybe heard there. Creditors may oppose the discharge, as in other cases, although no such creditor shall have opposed or given notice to oppose the discharge at the time first appointed for the hearing of the petition. Sect. 74. The Act is not to extend to Crown debtors, unless three of the Commissioners of His Majesty's Treasury 2.] INSOLVENCY. 489 shall certify, under their hands, their consent to such discharge. And persons imprisoned under writs of capias or ex- Sect. 75. tents, issued and remaining in force at the instance or for the benefit and reimbursement of any surety or other person, or the inhabitants of any parish, ward, or place, who shall have paid the debt to the Crown, so that the Commissioners of the Treasury may not be able to give their consent to the discharge, may apply to the Barons of the Exchequer in England or Scotland, giving one month's notice in writing to the person for whose benefit the capias or extent is in force, together with an account of their property ; upon which they may be examined before any Baron, and discharged as to their persons, if the Court shall see fit ; but no such liberation shall be deemed to have the effect of satisfying the extent, except as to the imprisonment (k). By section 71, the punishments for perjury are ordained against any one swearing falsely under the provisions of the Act ; and the affirmation of Quakers being admit- ted in evidence is, if falsely made, to be visited with the like penalties. By section 81, sheriffs, gaolers, and other officers of any prison, are declared to be indemnified for any thing they may do in obedience to the order of this Court ; and if any action of escape, or any suit or action, be brought against any judge, commissioner, justice of the peace, sheriff, gaoler, keeper of any prison, or any person for performing the duty of his office under this Act, they may plead the general issue, and give the Act {k) The surety had only paid part of the crown-debt, and had given security for the remainder; this was held not to be a case for discharge under the old Acts. 1 M'Clelland & Younge, 2G6, Rex v. Cianijifr. 490 INSOLVENCY. [Ch. 4, and the special matter in evidence ; and if the plaintiff fail, the defendant shall have treble costs (/). The remainder of the statute applies to practical matters concerning the modes of proceeding with the petitions, the admission of attornies, fees to the gaolers, &c. We do not find a provision in the Insolvent Act similar to that now adopted in the Bankrupt Law, that no party shall be liable upon a new promise, so as to revive an old debt, unless such promise be in writing. An insolvent will, therefore, be liable upon such a parol promise, notwithstanding his discharge ; and where the insolvent gave a cognovit after his discharge, for a debt on which proceedings had been commenced before, the Court refused to set aside an execution issued thereon. Had the defendant moved to stay proceedings, the Court would have assisted him ; but the cognovit, which he was not compelled to give, was tantamount to a new agreement; and the object of the Legislature was to protect the insolvent from demands in respect of debts 4 Bingham, 37, • i n 1 • t i i p Swei-uie v. accrumg before his discharge, and not from new engage- Sharp, ments entered into afterwards. But where a party, 4 Bowling & discharged under the Insolvent Act, voluntarily pro- R^'land, 154, .^ . ii- iiiV,.! I3utts V. Vine, miscd to pay a previous debt, it was considerea that lie could be held to bail in respect of it. Of the Discharge of Insolvents under the Lords' Act. By this statute, if any person shall be charged in execution for any sum not exceeding 300/. (m), and shall be minded to deliver up to his creditors all his estate {!) See 2 Barnewall and Cressweil, 45, IVhitelegg v. Ri- chards. (m) It was 100/. in the statute of Geo. 2, but has been extended to 300 /. by a subsequent Act passed in the reign of Geo. 3. S. 2.] INSOLVENCY. 491 and effects for the satisfaction of liis debts, he may, before the end of the first term after he has been charged in execution, exhibit a petition to any court of law from whence the process under which he has been taken and charged issued, or to the court into which he may have been removed by habeas corpus or charged in custody, certifying the cause of his imprisonment, and setting forth, not only a true account of his real and personal estate, with the incumbrances, if any, but also an account of his estate as it stood at the time of his first imprisonment in the action, and also an account of all his securities, 8cc. concerning the same, and the names and places of abode of the witnesses to all such secu- rities, &c. The Act extends to prisoners taken upon attachments for non-performance of awards and for non-payment of costs, and to persons taken upon process out of inferior courts. It was considered to be no objection to a dis- . 1I1J i' Bosaiiquet & charge, that the creditor was believed to be dead at the ruiier, 336, time of the application ; and in the Common Pleas, ^^^ *'• ■'^'*''^- where the defendant had been charged in execution upon the penalty of a bond, it Avas permitted him to .„.„,, 1 t' J > f 2 Sir w. Black- reduce the demand to principal and interest, 111 order stone Reports, to come within the Act. Qui tarn actions, however, are ^^o. not within the Act ; and the Court refused to discharge a defendant in custody under the writ de excommunicato 3 Burrow, 1322, capiendo, for contumacy in not paying alimony and costs ij^^^j^jg^' ^' in the Ecclesiastical Court ; but there may be relief now, jj -^^^^ under the Insolvent Act, against costs. Rex v. Samson. And where a prisoner satisfied some of his creditors i^Bosanquet^t during his confinement, so as to reduce his debts below pane Hubbard, 300 /., it was held that he could not have the benefit of the Act, because the application for his being brought up was not in the next term after he had been taken in execution, accordino; to the statute. But where the 6 Taunton, 493, ,,.,,,, ° , . . . „ . . ^ ichoUs t'. Neil- deiendant had been taken in execution in Irinity vaca- son. tion, under u ca. sa. returnable in Michaelmas tcrni; and 492 4 TerniTleports, 231, Pearce v. Taylor. 13 East, 190, Rex V. Wake- field. 1 Chitty's Rep. 220, Orchard v. Thomas. 1 Dowling & Ryland, 539. Druce v. King. INSOLVENCY. [Ch. 4, applied in Hilary term following for his discharge, the Court considered that the application did not come too late. In an Act for the further relief of debtors, 33 Geo. 3, c. 5, it is declared, that debtors who from ignorance or mistake have neglected to take the benefit of the Act, may be nevertheless entitled to it. Even if the neglect arise from the misconduct, and not merely from the ignorance or mistake of a third person, it is fairly refer- rible to the words arid meaning of the Act; as to the party himself, it may be called ignorance or mistake, if he fairly meant to do that the law required of him. The words ignorance or mistake are used in the Act of Par- liament in contradistinction to fraud and deceit ; there- fore one who had lost the benefit of the Act through the misconduct of an agent, was brought up for the purpose of being discharged. So where an insolvent debtor made an affidavit of his ignorance of the creditor's place of abode, from the commencement of a prosecution (under which he was adjudged to pay costs and com- pensation money) to the time of the application, the Court considered it to be omission through ignorance within the statute. Poverty, however, is not an excuse under the Act ; it must be ignorance or mistake. So that where the insol- vent let the next term after his being charged in exe- cution go by, by reason of his poverty, the Court declared that no rehef could be given him. And again, when he delayed his petition in expectation of being discharged by a commission, it was adjudged that this was not an omission through ignorance or mistake within the Act. Where the defendant, who had been arrested on a capias ad satisfaciendum, escaped from the custody of the officer who arrested him, but was subsequently retaken and carried to the Marshalsea prison, it was holden that he midit have the benefit of the Act s. 2.] INSOLVENCY. 493 although he did not apply in the term next following the arrest ; for the words " charged in execution," mean, 4 TennTleports, being detained within the walls of the prison ; and the "^ Dumell" ^" defendant could not be said to be charged in execution until he was actually delivered over to the marshal. Although the inferior courts are not regulated by terms, yet the debtor must, if detained by process issuing 7 East 84, Rex out of such courts, abide by the calculation of terms in ipswich. the superior courts, and must accordingly apply before the end of the next term after he has been charged in execution. It is worthy of observation, that if the Court have once decided against the discharge of a prisoner, they will not entertain a second petition on the ground of 1 Henry Black- circumstances not havino^ been disclosed at the first i!'"'^' *^'' 1- • • ^ K o ^ -fir" Thornton v. hearmg, owmg to mistake. After the merits of the first Dunphy. petition have been decided, it would produce infinite vexation to entertain a second. There is a step preliminary to the petition, which is to give the creditors at whose suit the imprisonment has taken place fourteen days' notice of the insolvent's inten- tions, signed with the proper name or mark of the debtor ; in which notice a copy of the schedule proposed to be delivered into court must be set forth. " Fourteen days " at least " are the words of the statute ; and the Court have recently decided that these must be fovu-teen clear 4 Pamewali & days, and that the day of giving the notice is not to be Aideri.on,522, reckoned as one. sey. The christian and surnames of all the parties need not be specified Therefore, where the notice was entitled q^^^^ j^^ ^j^^ " Doe, on the demise of Gosling and others, against maiierof, i '' Gates," it was held sufficient. 561, n. The body of a notice contained the words " King's 2 New Reports, " Bench," instead of" Common Pleas," but in the title 67, Knighti;. at the top it had been set right, and the word, " Common ^o^^'^""* " Pleas," inserted ; there was not time to give a fresh 494 1 Taunton, 64, Sclioley ('. roNveli. Jones, in the matter of, 1 Cliitty's Rep. 560. By the Court, 5 Barnewall & Alderson, 749, Cliappell V. Ashley. See 52 Geo. 3, ch. 34, Tidd's Practice, 7 ed. p. 385- INSOLVENCY. [Ch. 4, notice, and the Court permitted the insolvent, notwith- standing this mistake, to take the benefit of the Act. But it was considered to be a sufficient objection to the notice, that the prisoner had intended to petition another Court, although the plaintiff appeared to oppose, and this on the consideration that the insolvent would certainly have been discharged in that other Court if the plaintiff had not appeared. Affidavits must be made of the signature of the de- fendant to the notice, and of the due service of the notice. The rule, however, need not be personally served. Where it was left with the agent of the plaintiffs attor- ney, and with a shopman at the plaintiff's warehouse in town, it was deemed sufficient, inasmuch as the agent appeared in consequence of the notice. Where the service was sworn to be on the attorney of a creditor residing abroad, it was deemed sufficient. This provision of the Act of Parliament is, probably, directory only. It was not intended for the benefit of the insolvent, but of the creditors, who were to take an interest under the assignment of his property. And the objection came from the insolvent. When the prisoner is charged in execution above twenty miles from Westminster Hall, or from the Court out of which the execution issued, he may be brought to the next assizes, or before the justices assembled at general or quarter sessions to be holden within twenty miles of the gaol in which the debtor is confined, and the creditors may be summoned to appear there, a copy of the rule being served upon each of them fourteen days at least before the holding of such assizes. An examination now takes place into the prisoner's petition, and if he swear to the truth of the matter con- tained in his schedule, and if no opposition be made by his creditors, he will be summarily dischai'ged upon ex- S. 2.] INSOLVENCY. 495 ecuting an assignment of his estate for the benefit of the creditors who have charged him, and who may thereupon take possession of his effects, make sale of them, and divide the proceeds with all convenient speed. But the insolvent may be remanded at the re- quest of the creditors in order that they may make in- quiry into the truth of his statements, or as to the cor- rectness of his oath. And if he have delivered in a false schedule, and have been consequently remanded, the Court will not, even at the instance of a creditor, permit him to be again brought up for the purpose of amending his schedule, and assigning over property which he had concealed ; nor with the prisoner's consent, for there must in that case be a tender of a new oath, which if j Bo^anquet & the prisoner should take, he must be convicted of J!""'"/.' '43. ' HutchiusD. perjury. Hesketh. It has been holden, that any creditor may object to 8 East, 180, the discharge of an insolvent, though he were not a ere- ^^^^^'- o'"'^!"^' ditor at the time of a former order of remand. " The •' Legislature did not furnish the ground of objection on " account of the interest of the particular creditor who " urges it, but on public policy, to prevent a person *• puiltv of such immoral conduct Tfraudl from beinp-let J''- ]^J^' V ® •' . ... Lord Llleiibo- " loose again upon the public to continue his depreda- rough. " tions." The Court have no power under the Lords' Act to in- 9 Moore, 593, quire whether the acceptance on which the prisoner has been taken in execution under a judgment is a forgery. But it is no objection that the prisoner has been re- manded by the Insolvent Debtor's Court. The Court of Common Pleas, therefore, declined to take the proceed- ings of the other Court for the foundation of their iudo- ^ Taunton, 493, ^ n ,■,■■■,■ ■ r .1 • , ^ 1 Nicholls uNeil- ment, tor the jurisdiction 01 the insolvent Court does son. not supersede that of the other courts. So where the party had been remanded by the Insolvent Court for misconduct by fraud, against the creditor at whose suit . 49<3 6 Moore, 573, Austin V. Haii- liin. 4 Taunton, 588, Anon. Tidd, p. 387. Tidd, p. 387. Jones V. Cox. By Buller, J. 1 Bosanquet 3c Puller, 337. INSOkVENCY. [Ch. 4, he stood charged in execution, he was considered not to be preckided thereby from his discharge under the Lords' Act, although it may be presumed, that the Court would watch an application on the behalf of such a person very narrowly. Where it was moved, that the insolvent might be brought up upon a one-day rule, and with one day's notice, the Court refused the application though it was made on the last day but one of the term. The statute provides also, that all objections to the prisoner's schedule for inefficiency in point of form shall be made the first time any such prisoner shall be brought up. And if, on the second day the creditor, dissatisfied with the insolvent's oath, shall make default in ap- pearing, or, if appearing, shall be unable to discover any estate or effects omitted in the account, the Court shall direct the prisoner's immediate discharge on his executing an assignment and conveyance of his estate and effects. But the creditor is clothed with a power of detaining the debtor in prison under this Act upon agreeing in writing signed by his name or mark, or by his attorney, if he be out of England, to pay and allow to the prisoner weekly a sura not exceeding 3s. 6^. per week, or, if more creditors than one insist on his detention, a sum not exceeding 2 s. a week each, to be paid on every Mon- day as long as the prisoner may remain in execution, and upon this undertaking the prisoner may be re- manded. Upon any failure of the payment of these weekly sums the prisoner may be discharged on exe- cuting the usual assignment and conveyance. If the plaintiff hold the defendant in execution in several actions he need not give more than one note for 35. 6^. a week. " The note must be given by the party " in the suit, though in some cases it may be signed by <' his attorney." So that where the creditor was dead, Sfc 2.] INSOLVENCY. 497 the attorney's offer of payment was refused, and the pri- i r>osanqutt & SOner discharged. Rex"' Davis. There must be an affidavit properly entitled to show that the note has been duly signed : if the plaintiff do TiiUi, p. 3^^- not execute it in open court, it must be signed by all plaintiffs, if there be more than one, if partners, by one on behalf of the rest. Where by a deed of dissolution of partnership power was given to the remaining part- 5 Banicwail & ners to use the name of the retiring partner in the prose- ^^"'^•^""'^e?, cution of all suits brought, and a note was given for the payment of a debtor's sixpences, in which the name of the retiring partner was used, the Court held such note valid, although it was objected that the retiring partner could not be bound by the note unless it were equally obligatory on him with a promissory note or other nego- tiable instrument ; for, said the Court, this was using the retiring partner's name in the prosecution of a suit. However, a note signed by one of several lessors of the plaintiff in ejectment, or by one of several executors, is lidd, 388. not sufficient unless the others be mentioned; but a note under the seal of a corporation is good, in an action at See Addenda to their suit. '^'^' The Court of Common Pleas have held, that it ought to be expressed in the note that the allowance is payable on a Monday ; so that where the note was to pay so much 3 Bosanqnet & per week weekly. Sic. it was deemed insufficient, and the Constantine v. prisoner discharged. "^ '" So, where a note had been prepared by the attorney, it was rejected by the Common Pleas as defective for not stating the day of the week on which the sixpences would be paid. And in this latter case the Court refused „. , , 1 . .^, . 1 11- 4 Bingliam,230, to allow the plauitin s attorney to give the undertakmg Cormack i-. in lieu of the plaintiff, the defendant not being able to ^'""• find the plaintiff's place of abode, and the plaintiff's j Bosannuet & attorney refusing to disclose the plaintiff's residence. Pi'iier, 270. This note need not be stamped . Edlar"^ ^' K K lidd, 389- Ibid. 7 Taunton, 7, A gutter V. Wil son. Douglas, 68, Lench v. Par- giter. Id. 69, by Lord Mansfield. Ibid. Tidd, p. 389. Ibid. INSOLVENCY. [Ch. 4, Payment to the turnkey, or to the person who opens the door of the prison, is payment to the debtor. But where the turnkey on the felons' side accepted the money after ten o'clock at night of the day on which it became due, it was holden, that the defendant's discharge was not waived. The prisoner will be entitled to his discharge if foreign coin be tendered him, as Where a French sixpence was delived in the weekly allowance; and the Court held, that the turnkey was not for this purpose such an agent of the defendant as to bind him by his acquiescence in taking it. So, if the money be not paid in time, the prisoner will be entitled to his discharge. In the Common Pleas, the plaintiff pays the fraction from the day of the application to the next Monday, and then gives a note for, and makes his payments on every Monday afterwards. And the practice of the Court of King's Bench is now made conformable to that of the other court. Only, " it is to be understood, that no " prisoner, already remanded, will be discharged be- " cause the judgment is not on a Monday, unless the " Monday happen to be the day when he was remanded." And, it seems, that, after having received the money, the debtor has no right to the advantage of the mistake. And if the debtor remove himself into another custody, it seems that he may not be discharged for non-payment of the money. In order to obtain the discharge upon the ground of non-payment, application should be made to the Court in term time, or to a Judge in vacation ; and if a note be given at the assizes, the Court will discharge the pri- soner for non-payment of the allowance, upon a record of the proceedings being sent to them signed by the Judge of Assize. An application was made to a judge in vacation to discharge the defendant, the regular sum- monses were taken out, and, had the affidavits been S. 2.] INSOLVENCY. 499 reoular, the defendant might have been discharged be- fore the commencement of the term; but another judge having been apphed to for the insolvent's discharge, he doubted whether the discharge in term ought not to be by the Court ; and, on appUcation to them, they ex- ^ Bosanquet & pressed themselves to be or that opmion. kins v. Morris. However, a judge's order made out of term is final, he has then a complete authority, which cannot after- wards be controlled by the Court. Douglas, 69. The discharge only extends to those debts which the 1 Chitty's Rep. prisoner puts into his schedule, and only to the debts of ciarkc. """" those creditors to whom notice has been given of the intention to apply to be discharged. And the prisoner was allowed to be retaken even a year after his dis- charge, for want of due notice to one of his creditors ; the Court observing at the same time, that they had reasons to suspect practices of great fraud as to the manner in which affidavits of the services of these notices > Chitiv's Rep. , 740, Gilian t;. were made. Bartiet. The prisoner may be compelled to put into his sche- xidd, 388. dule every thing that he can sell for his own benefit ; as the place of a hfe-guardsman, &,c. ; but not the full or half-pay of an officer in the army. We now come to what is called the compulsori/ clause Sect, 16, in this Act. In the language of the preamble, " Whereas it sometimes happens that persons who are prisoners in execution in gaol for debt or damages, will rather spend their substance in prison, than discover and deliver up the same towards satisfying their creditors their just debts ;" — if any prisoner charged in execution for a sum not exceeding 300 I. (n) shall not make satis- faction within three months to his creditors so charging him in execution, then any such creditor may compel (w) Extended from 100/. to that sum by other statutes. K K 2 SO'O Sect. 17. 1 Moore, 494, Ilex V. Curucii. 2 Dowllng & Rylancl, 165. Barker r. Slater. INSOLVENCY. [Oil. 4, the prisoner to be brought up, and to deUver into court a schedule of his estate and effects, and of any incum- brances affecting" them, on his oath, giving such prisoner twenty days' notice in writing of his intention. The like notice is to be given to other creditors at whose suit the prisoner may be in custody, or to their attornies, if the creditors cannot be met with, and the hke notice to the sheriff and gaolers of the prison. The prisoner, on proof of such notices, shall at the desire of any creditor make a just disclosure in open court, in writing, upon oath, of all his real and personal estate. Sec. and shall assign and convey the same in trust for the benefit of the creditors, they agreeing to his discharge, and to accept a proportionable dividend out of his estate. If there be any creditors who refuse to agree, the assignment shall be in trust for such cre- ditors only who require the prisoner to be brought up. Any overplus is to be returned to the prisoner. More- over, if the prisoner comply with the terms proposed, he shall be discharged, but his future effects shall remain liable to such debts as may be unsatisfied ; and he shall not be permitted to avail himself of any statute of limi- tation, unless entitled thereto before he stood charged in custody on the original suit. If the prisoner should refuse to deliver in the schedule demanded of him, or make an assignment or conveyance of the same, he shall be transported for seven years ; and if he deliver in a falst^ account, shall be liable to the pains and penalties of wilful perjury. A prisoner in execution on an attachment for non- payment of costs pursuant to an award, may be brought up under this Act ; but, agreeably to the express words of the statute, it has been held that a creditor whose debt exceeds 300/. cannot bring up the insolvent under the compulsive clause. An insolvent offered to assign his interest, if he had anv, in an estate charged with an S. 2.] INSOLVENCY. ^01 annuity to him, which he admitted he had sold, and that he had squandered away the money ; this person was held entitled to his discharge notwithstanding, and although he had been remanded by the Insolvent Court 1, 'Vj°*"^', ^^^' for not giving a satisfactory account of his property. Taylor. Where an insolvent was brought up under the Lords Act, but it appeared that since his arrest and imprison- 8 Moore, 423, inent a commission of bankrupt had issued against him, and that he had not passed his final examination, the Court remanded him until such examination, and upon his having passed it to the satisfaction of the commis- sioners, he was ordered to be discharged upon inserting an assignment in his schedule, to the plaintiff, of all his property subject to the commission, and the payment - Dowiing & or satisfaction of his debts under it. It seems that an %iaiid. 23 j. insolvent is bound to insert a claim, or pretended claim, to any estate. A prisoner, who had been brought up under the com- pulsory clause at the assizes, not being prepared with his schedule, was remanded generally ; and at the en- suing assizes, more than sixty days having elapsed, the Judge considered he had no power to take the exami- nation without an order from the Court ; upon which an order was made to the gaoler, that the prisoner should be brouo;ht up for examination at the next assizes ; but 7Douimg& <= ^ . . Rylaiid, 234, such order cannot refer to a special gaol delivery. Rex v. Beik. After a lapse of nearly forty years after the appoint- ment of an assignee under 16 Geo. 2 (an Insolvent Act), it was moved that a new assignee should be appointed, but the Court deemed the application too late ; and by ^''^'^""'0'^ -^03, i I ' J ex parte Heath- Dallas, Ch. J. : " Where a statute directs a specific field. " proceeding in this or any other court ; the meaning " to be attached to such direction is, that the proceeding ** must be according to the practice of such court, and " the practice of this court requires that such an K K 3 502 INSOLVENCY. [Ch. 4, " application should be made within a reasonable " time." 48 Geo. 3, By the Act for the relief of debtors in execution for cb. 123. small debts, it is provided, that all persons in execution upon any judgment in any court for any debt not ex- ceeding 20 /. exclusive of costs, who shall have lain in prison for twelve calendar months before their appli- cation to be discharged, may be discharged upon their application to one of the courts at Westminster in term time. If the judgment shall have been obtained in a court of record at Westminster, the application must be made to that court, whether the prisoner be detained in the gaol of that court, or stand committed on habeas corpus to the gaol of another court. It is, however, enacted that the discharge shall be available only as it respects the person of the debtor ; that he shall not be again arrested upon the judgment, and that the bail shall not be proceeded against by scire facias, action or otherwise. It was moved to discharge a debtor for the costs of a nonsuit, for which he had lain in prison for more than twelve months, when Mr. Justice Bayley doubted whe- ther the Act extended to plaintiffs as well as defendants, 3 Maiiie& Scl. \yyy^i Lord Ellenborough said that the costs became a debt \. Hewimg!"'^'^ by the judgment, and the prisoner was discharged. The statute is confined to the relief of persons in execution upon amj judgment ; where, therefore, the defendant applied for his discharge, being in custody 10 East, 408, for non-payment of money under 20 /. found due by an Wd.""^^"''' award which had been made a rule of court, the Court would not permit the discharge, being of opinion that the statute only extended to persons in execution on judgments. So a defendant in custody on an attach- ment for non-payment of money awarded by the Master to the prosecutor of an indictment for an assault, of S. 2.] INSOLVENCY. 5O3 which the defendant had been convicted, was refused 2 M mie & Sel- his discharge under this Act ; and Lord Ellenborough ))^^Dunne.' ^'^ said that the object of the Act was solely directed to 8Dowiincr& civil judgments, and not to those of a criminal nature. Ryiand, 58, -oil! 1111 1 11 ^^^ ^'- CliiFord. jDut although a party had been brought up under the compulsory clause in the Lords Act, and remanded for refusing to deliver in the required schedule, he was nevertheless held entitled to be discharged under this 13 Price, 186, Act for the relief of prisoners confined for small debts. Rossiter. ADDENDA TO CHAPTER IV. Page 431. — Where a trader in embarrassed circum- stances gave a bill of sale of part of his property to a particular creditor ; the Court held, upon a question whether he had committed an act of bankruptcy under the third section of 6 Geo. IV. c. 16, that it had been properly left to the jury to say, whether the bankrupt 7 Bamewall & had made a voluntary deed, and had given it in contem- Cr"sweii, 529, plation of bankroptcy. Phillips. Page 443. — A second commission issued before the Sect. 127. first has been disposed of is a nullity, and on that ground the Court refused to discharge a bankrupt out of cus- tody who had obtained his certificate under the second commission, although the debt for which he was detained 7 Bamewall k accrued before the issuing of the latter commission. TiTvAviison!' Where a person made an affidavit that a trader was indebted to him in the sum of 100/. and upwards, and had become bankrupt, 8vc. he was not suffered, upon the issuing of a second commission (the first having been superseded by his means), to impeach the bankruptcy which he swore to by his own affidavit. The Court held, 4Bingbara,623, that he was estopped from so doing. Salt. 6^H ADDENDA TO CHAPTER IV. Sect. 33. Pt/ge 445. — The final question upon which commis- sioners sent a party to prison who had been summoned before them, was respecting the supposed intention of the bankrupt's coming over to Ipswich to see him. The person committed (who was the bankrupt's brother) said, that he did not know; and on being; pressed to 7Bame\vall& . i • i i- n i -, i , ?• i , Cressweii,673, answer as to his behet, he said, that he did not know ex parte Baxter, yvhat to Say. The Court held this not to be a material question, and discharged the prisoner. Sect. 54 & 55. Page 451. — The grantor of an annuity became a bankrupt previous to September 1825, the date of the new Bankrupt Act ; the plaintiff sued the surety in 1828, but did not cause the value of the annuity to be ascertained by the commissioners according to 6 Geo. IV. c. 16, s. 54. The Court held, that he could not main- tain his action for want of complying with the condition, 4Birigham,6i5, for all the previous Acts on the subject had been re- pealed, and, it was determined, that the sections in question should have a retrospective construction. Page 497. — Two of three creditors who had been de- fendants in a cause determined in their favour were ready to sign the note for the sixpences, but the third was abroad, and the Court would not permit the attor- ney who had conducted the cause for the defendants to sign for the absent defendant without a special power of Aiacbeaih"i\ ' attorney, his authority in the cause having terminated E"'s- with the final judgment. [ oOo ] INDEX TO TI[E PRINCIPAL MATTERS. A. ABANDONMENT: By merchant for freight, p. 97. 202. Must be where the whole property is not lost, 138. What a total loss, ibid. Where there may be an abandonment, ibid. 142. Desertion of crew does not make a total loss, 140. Delay in voyage will not warrant it, 141. Obvious destruction of the whole adventure will, ibid. No recinding after abandonment, ibid. Underwriter on s/iip entitled to freight after abandon- ment, 143. When to be made, ibid. ACCEPTANCE : Of inland bills must now be in writing, 3G5. PresumJ)tive acceptances, 366. Not recoverable, 367. Are absolute or conditional, ibid. For honour, 368. There must be a presentment to the drawer upon an acceptance for honour, ibid. And a formal protest, 420. Varying acceptance, 369. Whether revocable, 370. Waiver, 371. ACCOUNT: Delivery of no proof of ictlicment, 341. 506 INDEX TO THE PRINCIPAL MATTERS. ACTION on bill or note, see Bill of Exchange. ADJUDICATION of commissioners that party is a bank- rupt, 444. ADJUSTMENT in cases of salvage, 146. After loss, 161. Payment not to be disputed after adjustment, ibid. Nor assured to sue underwriter, 162. May be conditional, ibid. Who may sign it, ibid. ADMIRALTY, Court of, when they will award demm-rage, 84. AGENT: Sufficiency of, under the Statute of Frauds, as it respects the sale of goods, 208. Sufficiency of signature, 207. Must appear in his representative character, 318. Must act according to the usual course of dealing to bind his principal, 319. Special authority should be in writing, 320. Agency cannot in general be delegated, ibid. But it may be by express authority, which, in fact, creates a new agency, ibid. Not liable, when principal's name is com.municated, 321. Payment to him through mistake, ibid. General rule for payment to agent, 322. Taking securities from agents, 323. Principal discharged where credit is given to the agent, 324- Must take care of their principal's goods as of their own, 325- How their authority may be countermanded, 326. Must adhere strictly to warranties, ibid. Liabilities of principal and agent inter se, 327. When guilty of negligence, 328. They lose their commission, ibid, see Broker. Factor. AGREEMENTS: To be performed within a year, regulated by the Statute of Frauds, 209 What are valid, 330. INDEX TO THE PRINCIPAL MATTERS. ^O/ AGRT.EUE^^T— continued. How rescinded, 331, 335. Once dissolved cannnot be revived, 334. see Contract. ALIENS: Licence to, 107. Contracts with, 276. 279. ALGERINES no longer considered by us as pirates, 20. ALLOWANCE: To bankrupts, what, 470. To insolvents, 486. ASSIGNEES, see Banhruptci/. ALTERATION : Of policy, what fatal, 169. Of bill or note, 355, ANNUITY CREDITOR: May prove under a commission, 451. Debt within the Insolvent Act, 484. APPRENTICES to the sea, regulations concerning them, 193- APPRENTICE, discharged by his master, becoming bank- rupt, 452. ARRESTS of ships, insurance against, 134. ARREST, undue; trader permitting it guilty of an act of bankruptcy, 429. ATTACHMENT, with respect to stoppage in transitu, does not alter the rights of consignor or consignee, 67. ATTORNIES have a general lien, 234. AUCTION: Sale of goods by, 262. ' Must be open, ibid. No puffing, ibid. AUCTIONEER: Cases on return of deposit, 279. No pulling, 280. I 508 INDEX TO THE PRINCIPAL .MATTERS. AVERAGE, general: What liable to, 154. Not wages or provisions, 155. Goods must contribute for i-epairs, ibid. Where the remedy is, 156. Partial losses, 157. There must be a total destruction of the thing, 160. AVERAGES of foreign countries respected in this, 156. B. BAIL, how affected by bankrupt's certificate, 4C8. BALANCE SHEET, see Insolvevcy. BANK of ENGLAND : Actions against for misconduct, 281, &c. Their costs, 283. BANKER: Discounting bills for his customer has a lien, 229. Has a general lien, 234. Branch banks, 283. Banker, when liable in cases of forgery, ibid. 334. Bankers blending accounts, 284. Absolute and conditional orders for the transfer of money, 285. Application of bills, &c. by bankers, ibid. 343. May be a bankrupt, 42 1 . BANKRUPTCY: Who may be bankrupts, 421. Other persons, 422, 425. There must be a regular traffic, ibid. Partners, 423. Persons exempted from being made bankrupts, as farmers, &c. 424. AVhat an act of bankruptcy, 425. Departing the realm, or from the dwelling-house, ibid. There must be a departure, and an intent to delay, 42(5. INDEX TO THE PKINCrPAL MATTERS. ^OQ BANKRUPTCY— foH^i««er^. Bankrupt absenting himself from his house otherwise than as above, 427. Bankrupt beginning to keep his house, 428. Act of bankruptcy irrevocable, ibid. Bankrupt suffering an undue arrest— yielding himself to prison— or suffering an outlawry, 429. Procuring himself to be arrested — causing his goods, &c. to be taken in execution — making fraudulent convey- ances, &c. 430. The arrest must be voluntary, ibid. Other acts which constitute bankruptcy, per se, 432. As lying in prison twenty-one days after arrest for debt, ibid. Twenty-one day?, how computed, ibid. Escaping out of custody, 434. Declaration of insolvency, ibid. Compounding with petitioning creditor, ibid. Taking the benefit of the Insolvent Act, ibid. Members of Parliament, how they may become bank- rupts, 435. Of the petitioning creditor, ibid. Of his debt, 436. The amount and nature of it, 435, 436, 438. When it must have been contracted, 437. Who may be good petitioning creditors, 438. Debt substituted for that of petitioning creditor, when, 439- Of suing out the commission, 440. Bankrupt's name should be rightly spelt, ibid. His abode should be well described, 441. Commission to be advertised in the Gazette, ibid. Commission against particular persons, ibid. As trustees, executors, &c. ibid. Partners, 442. Consequences of commission, 443. Commission not to abate by demise of the Crown, ibid. Auxiliary commissions, ibid. Adjudication of commissioners, ibid. 510 IXDF.X TO THE PRINCIPAL MATTERS. BANKRUPTCY— cowf/wwefZ. Messenger, 445. Power of commissioners, ibid. Bankrupt to conform, ibid. Bankrupt's wife, 446. Proceedings against commissioners and messenger, ibid. Punishment of bankrupt not conforming, 448. Time for surrender may be enlarged, ibid. Privileges of bankrupt, ibid. Proof of debts, 450. Assignees, 454. Appointment of, ibid. Property to be conveyed to them by commissioners, 456. What property assignable, ibid. How the bankrupt may be released from rent and cove- nants, 458. Bankrupt's conveyances and contracts valid in certain cases, ibid. And payment, 459. What to be deemed notice of an act of bankruptcy, ibid. Purchases from bankrupt when valid, ibid. Relation to act of bankruptcy, ibid. Transfers of property by bankrupt, in what cases valid, 460. Duties of assignees, ibid. Assignee becoming bankrupt, ibid. Commissioners to audit the accounts of assignees, 461. Suits by assignees, ibid. Fraudulent extent procured by bankrupt, 462. Of the dividend, 463. Penalty on assignees for retaining dividend, 464. Bankrupt to have the surplus after payment of his debts, with interest, ibid. Bankrupt's certificate, 465. By whom signed, ibid. 466, 467. There must not be any persuasion to sign it, 465. Irregularities, ibid. 466. Offences which will deprive the bankrupt of it, ibid. Its effect, 467. INDEX TO IHK PllINCIPAL MATTERS. ;)II BAN K RUPTCY— continued. Whether it extends to the bankrupt's goods, 467, n. From what debts it will deliver the bankrupt, 468. Debt may be revived, but it must be in writing, ibid. Bankrupt's person when freed by certificate, 469. Allowance to bankrupt, 470. Superseding commission, upon what grounds, 471. On whose application, See. Payments, &c. how affected by a supersedeas, 472. Effect of supersedeas, ibid. Agreement of creditors will occasion it, 473. Enrolment of proceedings in bankruptcy, ibid. Commission, &c. not liable to stamp duty, 474. Solicitors bills, ibid. Construction and commencement of Act, ibid. see Insolvency. BARRATRY: What, 135. Not ignorance of the master, 136. Can only be committed against ship-owner, ibid. Consequences of, must happen during voyage insured, 137. Casting away, burning ship, &c. ibid. BEACONAGE ACT, 59. BILL of LADING: Exceptions in, 26, 27. Lightning an exception, ibid. An earthquake, ibid. n. Piracy, 27. Exceptions as to West India trade, ibid. Person obtaining the first has the best title to consign- ment, 60. Negotiable by delivery and indorsement, ibid. BILLS of EXCHANGE: What a good bill or note, 347. 512 INDEX TO THE PRINCIPAL MATTERS. BILLS of EXCHANGE— t'OH/mM«/. Must be certain and unconditional, and for the payment of money, ibid. For what sum, 349. Cannot, if originally defective, be made good by any subsequent act, 350. Vitiated by illegal consideration, ibid. How made payable, ibid. Memorandums on bill or note which will not restrain its operation, 352. Stamp, what sufificient, ibid. Regulated by the time of signing the instrument, 353. What need not be stamped, ibid. Stamp of higher value than required now sufficient, &c. 354- Addition of interest will not increase stamp, ibid. Date and sight nut always synonymous, ibid. Alteration of, when it may be made, when not, 355. INIerely rectifying a mistake will not vitiate, 35G. As it regards a new stamp, ibid. Not vitiated by cancelling acceptance by mistake, 367. Negotiation of, ibid. By indorsement and delivery, 358. Blank indorsement, ibid. And in full, ibid. What indorsements will restrain negotiability, 359. Omission of assignable words will not check the bill, ibid. Indorsement may be compelled, ibid. Party possessed of bill or note should be prepared to show his title to it, 360. Loss of the instrument, 361. Improper transfer of bills, when binding, 362. Time for negotiating a bill, 363. Dishonoured bill taken with all its accompanying infir- mities, ibid. Acceptance, see Acceptance. Presentment for acceptance and payment, see Pre- ientmcnt. INDEX TO TFrE PRiyCIPAL MATTERS. 5I3 BILLS of EXCHANGE -co«/i7;»?^/. Notice of dishonour, see Notice. When right of action accrues on bill or note, 391. Cases of loss of bill or note, ibid. No action where party takes a higher security, 393. Exceptions, ibid. What the indorser may be charged with, 394. Defences to actions, ibid. Want of consideration, ibid. Inadequacy of consideration, ibid. Illegality of consideration, 395. As usury, kc. 396. Discharging or giving time to any of the parties, 399. Rule as to the discharging of indorsers, 401. Giving indulgence to parties, ibid. see Interest. Usurj/. BLEACHER may be a bankrupt, 421. BLOCKADE, *i77. BOND : For due management of ship builder's certificate, 11. Illegal, not valid, 331. 344. Execution of, ibid. The Court will in general presume that it has been duly delivered, 345. Recital of, the proper key to its meaning, ibid. Conditions of, ibid. Forfeiture, ibid. What may be recovered, ibid. When presumed to have been satisfied, 346. Relief in the case of a lost bond, ibid. BOTTOMRY BOND, 35. Not on the owner's personal credit, 37. 175. Not assignable, 39. In the East Indian trade, 39. 176. Lenders not entitled to salvage, 176. Obligees of, may be admitted to claim under a commis- sion before a loss, 452. L L 514 INDEX TO THE PRINCIPAL MATTERS. BROKERS: Set-ofF, &c. respecting premiums, 150. Have a general lien, 234. But not for advances on goods, ibid. Their lien when dealing with an agent, 239. Of London, their bond, 318. see Agent. Are subject to the bankrupt laws, 421. BUILDER, a trader within the bankrupt laws, 421. BULLION, when it may be carried on freight, 97. C. CALENDERER, a trader within the bankrupt law, 421. CALICO-PRINTERS, have a general lien, 234. CAPTAIN: Cannot sue for demurrage, 83. Money advanced to, not the subject of insurance^ 1 07. Nor his clothes, ibid. Of vessel, how punishable for running away with it, &c. 34. CAPTORS, when liable to the payment of freight, 94. CAPTURE, I0S.S of ship by, 132. CARPENTER, within the bankrupt laws, 421. CARRIER : His lien, 233. General, 234. When liable, 287. Not for riots, ibid. But he is for fire, ibid. His notice, ibid. Liable nevertheless for gross negligence, 288, 289. Customer must see the notice, ibid. Notice dispensed with, 290. Action should not be brought against the driver, 292. Should see to the safe delivery of goods, 293. CATTLE-SALESMEN subject to the bankrupt laws, 421. INDEX TO THE PRINCIPAL MATTERS. ^IJ CERTIFICATE: Of condemnation of ship under slave laws, 8, By builder of ship, ii. Loss of, in that case what to be done, 12. Wilfully detaining it, ibid. Indorsing it, 14. Of bankrupt, see Bonlruptcif. CHARTER-PARTIES : How executed, 74, By an agent, 75. Date, 76. Description of parties, ibid. Burthen of ship, ibid. What the owners and master may agree to, 77. Voyage and covenants, ibid. Varying the contract, 8G. Merchant, when excused, 87. When qualified by usage of trade, 88, Incorrectly penned; equity will relieve against them, 92 Clauses in E. I. Company's charter-parties, 294, &c. COASTING TRADE: Confined to British ships, 1 . And British seamen, 4. Exceptions, ibid. COFFEE-HOUSE KEEPERS may be made bankrupts, 421. COMMISSION of BANKRUPTCY, see Bankmptcij. COMMISSIONS, Insurance upon, when good, 126. COMPULSORY CLAUSE in Lords Act, 499. CONDEMNATION of Ship, in what state it should be, 19. CONDITION PRECEDENT, 78. Respecting the sale of goods, 214. CONDITION of BOND, 345. CONSIDERATION, good, essential to contracts, 203. When to be in writing under the Statute of Frauds, 209. Illegal, 210. L L 2 5l6 INDEX TO THE PRINCIPAL MATTERS. CONSIDERATION— con/inwe^. Instances to tlie contrary, 212. Illegal, destroys the right of action on. bill or note, 395. see Bill of Exchange. CONSIGNEES, generally liable to pay freight, 94. CONSOLIDATION RULE in insurance, 175. CONTRACTS : For the sale and delivery of goods, see Goods. Entirety of, illustration of the principle, 269. How rescinded, 331. 335. When dissolved, cannot be revived, 334. Notice to rescind must be made within a reasonable time, ibid. see Agreement. CONVEYANCES, fraudulent, by bankrupt, 430. CONVOY : Warranty that ship shall depart with, how construed, 111. Breach of, how excused, 112. Return of premium if ship sails with, 153. COPYHOLDS may be assigned under a commission of bankruptcy, 457. COVENANTS: Independent, 78. In charter-parties, ibid. CREDIT, on the sale and delivery of goods, 264. CRIMPAGE, what, 154. CROWN DEBTS: Not barred by bankrupt's certificate, 4C8. How discharged by taking the benefit of Insolvent Act, 489. CRUIZING, when it will vacate a policy, 122. ( IKUEX TO THE PRINCIPAL MATTERS. 517 D. DECEIT, action of: When maintainable, 336, Of false communications, 337. DELIVERY of GOODS: When sufficient to prevent stoppage in transitu, 67, 70. What sufficient to satisfy the Statute of Frauds, 204. When sufficient, 219. To the vendee's agent, good, 220. see Stoppage in Transitu. Best delivery that the case will admit of sufficient, 224. All the goods sold must be delivered, 269. W^hat is to be done when they are not delivered accord- ing to sample, 270. DEMURRAGE: Working days and running days; better to specify the description of day in charter-party, 80. When due, ibid. What, 81. Who liable to, 82. Upon condition, ibid. In cases of capture, 84. There must be a reasonable time for removing goods, 201. DESERTERS, Seamen, hiring them, forfeiture for doing so, 179. DESERTION : Of seamen, in general works a forfeiture of wages, 186. What will not have that effect, 187. Seamen absenting themselves, what forfeiture accrues thereupon, 188. Court of Admiralty may punish desertion, ibid. DETENTION of Ships, underwriter liable for every cause of, unless fraud, 134. ^ L3 5l8 INDEX TO THE PRINCIPAL MATTERS, DEVIATION : From policy, 121. Policy construed strictly in this respect, ibid. What, 122. What will operate as an excuse for, 124. Intention to deviate, when it will vacate policy and when not, 125. DISSOLUTION of Partnership, see Partnership. DIVIDEND under Commission, see Bankruptcy, see also Insolvency. DOCK ACTS, rates under, questions respecting them, 199. DOUBLE INSURANCE : When prohibited, 128, What, 129. DROVERS, probably subject to the bankrupt laws, 421. DUNNAGE, what, 44. DYERS : Whether they have a general lien, undecided, 234. Are liable to be made bankrupts, 421. E. EAST INDIA COxMPANY t Peculiar <;lauses in their charter-parties, 294. Their sales, 297. Command of ship in their service not to be sold, ibid. EXECUTION of bond, 344, EXECUTOR : May sue out a commission of bankruptcy before pro- bate, if he get probate before adjudication, 439. Becoming bankrupt, how the property is to be sepa- rated, 441. EXPORTS, what legal, 1. INDEX TO THE TRINCIPAL iMATTERS. 519 F. FACTORS, new statute respecting them, 71. 201. Have a general lien, 234. Whether they have a lien for debts accrued before their character of factor have commenced, ibid. How they differ from brokers, 317. 319. Del credere, 321. see Agent. Are within the bankrupt laws, 421. FAIRS, sale of goods in, 261. FALSE LIGHTS, punishment for putting them out to deceive ships, 195. FARRIER, his lien, 233. FIRE, loss of ships by, 132. FIXTURES, not assignable under a commission of bank- ruptcy, 456. FOREIGN SHIPS, what recognized as such by our law, 4. FORFEITURE of bond, 345. FORFEITURES of seamen's wages, how applied, 177. 184, n. 185. 189, 190. FRAUD : In policies, by false assertions, or misrepresentations, 165. Will vitiate contracts, 271. FRAUDS, Statute of: Respecting sale of goods, 203. Value, 204. What a sufficient delivery, ibid. Sufficient earnest, 206. Memorandum, ibid. Price must be inserted, 207. Signature of agent, ibid. Sufficiency of agent, 208, Of agreements to be performed within a year, 209. L L 4 5'20 INDEX TO THE PRINCIl'AL MATTERS, FRAUDS, Statute of — continued. Consideration, when to be in writing, ibid. Guarantees to be in writing under the statute, 244. Partnerships not within the Act, 246. Promises in consideration of forbearance to sue, are, ibid. But when the original debt has been extinguished, a new promise is not, ibid. Extension of by Lord Tenterden's Act, 340. H FREIGHT : Lien for, 45. 84. When waived, 86. Payment of, 89. Not due till the completion of voyage, ibid. Unless by special contract, ibid. Amount of, how settled, 90. Tonnage, no criterion, 31. Who liable to, 93. Right of merchant to abandon for, 97. Freight pro rata, 98. Generally not due, if the voyage be not performed, gg. Action for, when maintainable, 100. Insurance on, 1 1 o. Insurance on, for part of voyage, may be made without communicating the ultimate destination, 126. FRIENDLY SOCIETY: Officer of, becoming bankrupt, his assignees must deli, ver up the effects, 454. FULLERS: At Exeter have a general lien, 234. Subject to the bankrupt laws, 421. FURNITURE of ship, what comprised under in a policy of insurance, 109. INDEX TO THE I'RINCII'AL MATTERb. 521 G. GAMING, to what extent will deprive a bankrupt of his certificate, 46G. GAMING POLICY, 127. GOODS: When insured must be particularly specified, 107. What within a general policy on goods, ibid. Prohibited, 108. Risk upon under policy, survives until they are safely landed, 120. Sale and delivery of, 203. see Frauds, Statute of, ibid. Absolute and conditional contracts, 212. Conditions precedent, 214. see Warranties. Delivery. Stoppage in tranaitu. Vesting of, as between vendor and vendee, 222. Sale of a part of stock must be separated from the rest? 223. The thing must be in existence in order to vest, 224. Sale of, in fairs and markets, 261. To pawnbrokers, 262. Sale of by public auction, ibid. see Auction. Credit on the sale and delivery, 214. see Credit. Generally speaking, are to be paid for on delivery, 2G6. Delivery of, 269. see Delixery. GUARANTEE: What, 244. Must be a consideration for it, ibid. And the agreement in writing, ibid. There must be a debt, ibid. Difference between original and conditional under- takings, 245. Partnership, 246. 522 INDEX TO THE PRINCIPAL MATTERS. GUARANTEE— confrnwerf. Promises in consideration of forbearance to sue, ibid. Promise after original debt has been extinguished, ibid. Must be a mutuality of contract, 247. Stamp, 248. What a sufficient signature, ibid. What a sufficient authority, ibid. Has a prospective, not a retrospective operation, 250. There must be a default upon the particular occasion in- demnified against, 251. Guarantor must be informed of any private terms be- tween the principals, ibid. Continuance of, ibid. How interrupted by the introduction of a partner, 253. Where guarantee of one partner will bind the firm, 254, Executor of surety liable, and surety liable to the re- presentative of the person guaranteed, ibid. How discharged, 255. By giving time, ibid. Except in replevin, 256. By neglect to comply with the terms of the instrument^ ibid. By creditor parting with lien, &c. 257. By concealment, ibid. By neglect to give surety notice of principal's default,, ibid. By bankruptcy, 259. Not by inattention, ibid, see Surety. GUERNSEY: Traffic of, 1 . In what ships, 4. H. HIRING of SEAMEN : Not to be made without an agreement in writing, 177. V^oyage should be described accurately, 178. Desertion discouraged, ibid. INDEX TO THE PRINCIPAL MATTERS. 523 HOTEL-KEEPERS may be bankrupts, 421. HUSBAND of ship, how amenable to the owners, 33. HUSBAND, when a good petitioning creditor in respect of a debt due to his wife before marriage, 439. HYPOTHECATION : Of ship, 36. What is a bad, 38. JERSEY: Traffic of, 1. In what ships, 4. JETTISONS, what, 133. ILLEGAL VOYAGE: Cannot earn freight, 96, Will vitiate policy, 102. IMPORTATION : Of what merchandize, &c. legal, 2, Ilegal, must be intentional, 6. INDORSEE : Of bills of lading, when liable to freight, 94. Of bills may be a petitioning creditor", 438. INDORSEMENT of certificate of registry, when, 14 Reciting it, ibid. Will be made in favour of the person who first produces the certificate^ ibid. Of bills of lading to be attended to, 61. Of bills and notes in blank and in full, 358. INIay be compelled, 359. INDORSERS of bills, giving time to them, 401. INNKEEPER, his lien, 233. General, 234. Within the bankrupt laws, 421. INSOLVENCY, declaration of, an act of bankruptcy, 434. INSOLVENT ACT: Taking the benefit of, an act of bankruptcy^ 434. 524 INDEX TO THE PRINCIPAL .MATTEliS. INSOLVENT ACT— coittimud. Of the petition, 475. Prisoner must execute an assignment of his estate, 476. Particular prisoners, as married women, &c. provided for, ibid. Of the assignees, 477. Duties of the assignees, ibid. What contracts of insolvent void, 479. Assignees to make up an account, and declare a divi- dend, ibid. Misconduct of assignees punished, 480, 481. Of unclaimed dividends, 480. Assignees may be removed, 481. Schedule of prisoner's debts to be delivered in, ibid. Punishment for omitting effects in the schedule, 482. Discharge confined to the debts specified in the sche- dule, ibid. To what debts it extends, 484. 486. Prisoner not to be injured by unintentional errors, ibid. Of the hearing of the petition, ibid. Adjudication, 483. 487. Punishment of insolvent, ibid. Costs of opposition, 485, Cases of subsequent arrest, ibid. Allowance to insolvent, 486. Insolvent may be compelled to give up property subse- quently acquired, ibid. Court may revoke their adjudication, and insolvent may be subsequently examined, 487. Persons to whom the Act shall not extend, 488. Punishment for perjury, 489. Officers acting in pursuance of the statute, indemnified, ibid. Reviving promise, 490. see Lords' Act. INSURANCE, policy of: Of the assured, 101. Names of assured, or tiieir agents, should be inserted in the policy, 102. Ilf-DEX TO THE PRINCIPAL RrATTER3. 525 INSURANCE, policy o?—contimied. Vitiated by illegal voyage, 16. Licence, 103. On an enemy's ship without licence illegal, 106. On neutral property, ibid. Goods insured must be specified, 107. And interests, ibid. What within a policy on goods, ibid. Of seamen's wages, illegal, 108. On ship, 109. On ship or ships, ibid. On freight, no. Warranties, in. Duration of voyage, 1 1 7. Deviation, 121. Valued policy, 126. Upon commissions, profits, &c. ibid. Interest or no interest, bad, 127. When act of third person may create a good insurance, 128. Re-assurance and double insurance, ibid. Perils of the seas, 129. Loss by fire, 131. Enemies, 132. Pirates, &c. 133. Jettisons, ibid. Letters of mart, arrests, &c. 134. Barratry, 135. Other perils, 137. Abandonment, 138. Question between underwriters on freight and those on ship, as to abandonment, 142. Premium, 149. General average, 153. Stranding, 158. Adjustment, i6i. Sea-worthiness, 162. Fraud, by false assertions or misrepresentations, 165. 526 INDEX TO THIi PRINCIPAL MATTERS. INSURANCE, policy of — contimied. Rumours, 166. What disclosures necessary, 167. Not usages of trade, ibid. Sufficient if i-epresentations be substantially performed, ibid. Representation to one underwriter extends to the rest, ibid. Return of premium, i6g. Alteration of policy, what fatal, what not, ibid. 170. Stamp, 170, et seq. see Stamp. Royal Exchange and London Companies may make agreements on unstamped labels, 171, Policy not to last beyond twelve months, ibid. Proceedings on policies, 174. INSURERS: Who may be, 149. Liable to the bankrupt laws, 422. INTEREST, or NO INTEREST: Policy in that form bad, 127, INTEREST : Addition of, will not increase the stamp on bill or note, 354- When allowed, 403. Not on policy of insurance, 404. May be given by way of damages, ibid. When payment is to be made by a bill at a future date, ibid. May be recovered on deposits, 405. On bonds, bills, or notes, recoverable as of course, ibid. Except a single bond, ibid. Computed from what time, ibid. Jury may withhold interest, 406. see Usury. Compound, generally usurious, 417. Foreign, ibid. JUS POSTLIMINII, 132. INDEX TO THE PRINCIPAL MATTERS. 527 L. LABELS, unstamped, in insurance, who may use them, 171. LIABILITIES : Of ship-owners, for stores, &c. a personal obligation, 24. Of master, 42. LICENCE: Among merchants, what it would protect, 80. How construed, 103. Condition of, must be fulfilled, 104. May operate to protect insurances on an enemy's ship, ibid. Must be literally complied with, 105. To aliens, how it operates, 107. LIEN : None by master on ship or freight, 39. For freight, 45. 84. 201. Not for pilotage and port duties, 85. When waived, 86. What, 225. General or particular, ibid. No sub-liens allowed, ibid. There must be a possession and an unsatisfied demand, 226. Lien remains, if possession be given up through mistake or necessity, 227. What possession sufficient, ibid. Not by way of deposit, or for a specific purpose, 228. Nor wrongful, ibid. How the right revives on regaining possession of goods, 229. Waiver, 231. Agreements for security or credit inconsistent with lien, 232. Liens in favour of particular individuals, or by the general usage of trade, ibid. By special custom, 233. 520 INDEX TO THE PRINCIPATv MATTERS. LIEN — continued. For general balance, must be for work done in the course of the particular business, 234. And so not for money lent, &c. 234. None in favour of the finder of property, 235. Although no special custom, there may be a lien by agreement, ibid. Right of the Crown will not defeat lien of factor, 23G. Lien for salvage, 237. Assignment of, ibid. 241. What is to be done with the property detained, 237. In favour of or against third persons, 238. Against assignees, 241 . Must be on the same property which wag originally intrusted, 243. Equitable liens, ibid. LIMITATIONS, Statute of, 272. New Act; by which no promise can be revived except it be in writing, 341. LORDS' ACT: What debts it relieves, 491. 499. Debtors may be entitled to it who have neglected it through ignorance, 492. Poverty no excuse, ibid. Notice to creditors, 493. How served, 494. Prisoner may be remanded, 495. What the Court may inquire into, ibid. Payment of the sixpences, 49G. The note must be properly signed, 497. Payment, to whom sufficient, 498. Discharge for non-payment, how obtained, ibid. Of the compulsory clause, 499. see Small Debts. LOSS of bill of exchange, &c. 391. IXDEX TO THE PRINCIPAL MATTERS. 529 MARKETS, sale of goods in, 261. MARQUE, Letter of, how it maj' be used so as not to vacate a policy, 122. 124, MASTERS: Of British ships, how qualified, 5. 33. May borrow money, 25. 35. but must lay it out for necessaries, ibid. Must devote their time and services solely for their owners' benefit, 34. Running away with ship, ibid. Powers of masters, 35. When and how they may hypothecate, 37. What are bad hypothecations, 38. Have no lien on ship or freight for wages, 39. But for primage they have, 40. Further powers, ibid. Of their liabilities, 42. And duties, 43. Have a lien on a cargo for the payment of freight, 45. Do not lose it in case of a recapture, 201. As soon as cargo is delivered responsibility ceases, 46. Limitation of responsibility, 47. Must employ pilots except in cases of emergency, 54. Shall not be liable for incompetency of pilots, 53. Should retain the cargo till paid for the freight, 93. When to report the number of their crews, 194. MEMBERS of PARLIAMENT, how they may be made bankrupts, 435. MEMORANDUM: Respecting the sale of goods, what sufficient to satisfy the Statute of Frauds, 206. The price must be inserted, 207. M M ^gO INDEX TO THE PRINCIPAL MATTERS. MERCHANT: When excused from performing charter-party, 87. When he has the election of dissolving the contract, or not, ibid. His liabilities under the covenant for payment of freight, 91- Right to abandon for freight, 97. MESSENGER in bankruptcy, what he may do, 445. MILLERS have a general Hen, 234. MISREPRESENTATIONS : Of risk in policies, fatal although without fraud, 166. What, ]f)8. By agent will vitiate, 169. MONEY should be insured specially, 108. MOORING of vessel, when in sufficient safety, 119. MORTGAGE: Transfer of ships, 15. Rights of mortgagee, ibid. MORTGAGEE of ship not liable for repairs unless he holds himself out as owner, 22, 23. MORTGAGES may be redeemed by assignees, 457. MUTUAL CREDIT, in cases of bankruptcy set off on either side, 453- N. NAVIGATION ACT, i. NOTICE, of carriers: see Cancer. Of dissolution of partnership, what sufficient, 300, 311. Of dishonour of bills, 379. Time for giving it, 380. Manner of giving it, 381. Due diligence to find out party's residence, 38:2. To whom, 383. Want of notice cannot be insisted upon when higher security has been given, 384. INDEX TO THE PRINCIPAL MATTERS. 53I 1<!0TICE— continued. Circumstances which exonerate the holder from giving notice, 384. There being no effects in the hands of drawee, dispenses with the necessity of giving notice to the drawer, ibid. 387. Exceptions to the rale, 385. Drawer of accommodation bill entitled to notice, 387. Payment dispenses with notice, 388. Indorsers entitled to notice almost under any circum- stances, 388. No notice necessary when bill made payable at bankers, 390. Or where a party pays the bill in his own wrong, 391- To creditors under Lords' Act, 493. O. OATH : By owners of ships before registry, 10. Of ship's identity, 1 1 . OWNER: Of ships, who may be, 9. By transfer, i8. By capture, ibid. But there must be a legal sentence of condemna- tion, ibid. Not by piracy, 20. Liabilities of, ibid. In what cases relieved, 2C. May be liable without his knowledge, 28. But not upon an illegal act by the master, ibid. To provide a good master, and see that his ship is sea- worthy, 29. Limitation of his responsibility, 47. Shall not be liable for incompetency of pilots, S5' M M 2 532 INDEX TO THE PRINCIPAL MATTERS. PACKERS: Have a general lien, 234. For money lent also, ibid. Within the bankrupt laws, 422. PARTIAL LOSSES, how calculated, 157. PARTNERS : What a partnership, 298. Partners cannot acquire property in goods by fraud, 299- Partnership in opposition to the law of the land illegal, ibid. Dormant partners, and continuance of their hability, ibid. "What notice of dissolution sufficient, 3C0. 31 1. There may be a liability by partners to third persons although not to each other, 300. General stock general property, 301. Responsibility of partners for acts of co-partners, 302. Unless there be a notice, ibid. Pledge, &c. by one partner, when binding, 303. Ciuarantee, ibid. Liability of partners by bill or note, 304. When it ceases, 305. Bankruptcy, how it affects their liability, 306. Death of one of the firm, ibid. When one partner can bind the rest by deed, 307. General liabilities, 308. Liabilities of partners amongst themselves, 309. Dissolution of partnership, how effected, 310. Of the appropriation of the property, 312. Debtor's payments to outgoing partner, when protected, 313- Sale of partnership effects, when it can be enforced on a dissolution, 314. Improper pledge by partner, 316. JNDEX TO THE PRINCIPAL MATTERS. 533 PARTNERS— fo«//«werf. Partial dissolution, 314. 316. Rule that one cannot support a commission against an- other, 436. Commissions against partners, 442. PART-OWNERS of ships: What is to be done in cases of dispute between them, 30. Their liabilities, 31. All should join in actions, 32, Case of bankruptcy of one, 33. Their accounts to be adjusted in equit}-^, ibid. Have no lien on each other's share for outfit and freight, ibid. PASSAGE-MONEY, action for recovering, when it may be maintained, 198. PASSENGERS at sea, regulations concerning the convey- ance of, 195. PAWNBROKERS, sale of goods to, 262, PAYMENTS : Appropriation of, as between creditor and surety, 252. The mere giving of credit will not constitute a payment, 266. What a payment, 267. Rescinding, 333. Of bankrupt, when protected, 459. PENALTIES : Under the Navigation Act, 6. For using ship before registry, iC. Under Pilot Act, how recovered, 58. In charter-parties, 84. Equity will relieve against them, ibid. PERILS. Of the sea, 27, 129. Whatnot, 27. 131. PETITIONING CREDITOR : sec Danknipicij. M M 3 534 INDEX TO THE PRINCIPAL MATTERS. PILOTAGE, no lien for, 85. PILOTS : How licensed, 50. Their qualifications and duties, 51. For what suspended, 52. Other matters, 53, &c. Masters of ships who do not employ them to be fined, 54- When dispensed with, 5O. Rates of, ibid. How recovered, 57. Penalties under Pilot Act, 58. Limitation of actions, &c. 59. PIRATES, insurance against, 133. POLICY, valued, 126. PORT-DUTIES, no lien for, 85. PREMIUM, 149. Set-off" between parties on this subject, 150. Return of, 152. iCg. Return of ship sailed with convoy, 153. Apportionment of, ibid. PRESENTMENT: Of bills, &c. 373. For acceptance, must be within a reasonable time, ibid. Place where to present, 374. No time fixed for presentment of foreign bills, 375, When to be presented, ibid. Due diligence to be used when a bill is on the point of becoming due, 377. PRIMAGE : When allowed to master, 34, n. Lien for, 40. PRINCIPAL and AGENT: see Agent. IXDEX TO THE 1>UI\CIPAL MATTERS. 535 PRINTERS : Whether they have a general lien undecided, 234. Subject to the bankrupt laws, 423. PROMISSORY NOTES: see Bills of Exchange. PROVISIONS do not contribute to average, 155, PURCHASES from bankrupt, when valid, 459. Q. QUARANTINE, 194. R. RATS eating bottom of vessel not a loss by perils of the sea, 131. RE-ASSURANCE, 128. When prohibited on foreign ships, 129. RECITAL of bond, 345. REGISTRY, British : Of what vessels, 7. Where, 8. De iiovox ibid. 10. REPAIRS; Of ship, owners when liable for, 21. Mortgagee, 22. Possession induces a liability, ibid. Charterer, not owner, liable, 23. REPRESENTATION, concerning character of another, to be made in writing, 341. RESCINDING CONTRACTS: How done, 331. 335. For payment, 333. RESPONDENTIA BOND: Not upon the cargo, 38. Lenders not liable to averages, 176. Does not confer a lien, 237. 536 INDEX TO THE PRINCIPAL MATTEUa S. SALVAGE, how it accrues, 143. Who may claim it, who not, 144. The proprietors of a steam-boat allowed it, ibid. Not to be allowed for acts of duty, ibid. Court will protect foreigners against imposition, 145. Will not be given for the mere saving of life, ibid. Claimed in what courts, ibid. The reward decreed, 146. Adjustment, ibid. Restoration of ships, 147. Difference between voluntary and compulsory abandon- ment of prize, 148. Due in respect of what property, ibid. Recaptured property, ibid. SCHEDULE of prisoner's debts under Insolvent Acts, 481. SCRIVENERS are subject to the Bankrupt Laws, 433. SEAMEN, British: Who shall be, 5. May not insure their wages, 108. Hiring and wages of, 1 77. Must be an agreement in writing for wages, ibid. Double monthly wages the limit, 179. Exceptions, ibid. Nothing except the sums of money to be recovered, 180. Agreement must of course be according to law, 181. Payment of wages depends upon the earning of freight, ibid. Unseaworthiness will defeat the claim, ibid. Refusal to proceed on the voyage, ibid. Vv'^here the voyages out and home are distinct, wages may become due, 182. Proportionate wages sometimes payable, ibid. Sailor's representative entitled to wages, 183. Share of prize in lieu of wages, in what case not for- feited, 185, INDEX TO THE PIIINCIPAL MATTERS. 537 SEAMEN, British — continued. Time of payment, ibid. Where, ibid. Where actions are to be brought, 186. 199. But if the agreement be by deed, the party cannot sue in the Admiralty, 190. Though the prohibition must be applied for before sen- tence, 191. Defences, 186. 202. As desertion, 186. Neglect, &c. i8g. Embezzlement of the cargo, if the offender be disco- vered, ibid. All wages tvhateter forfeited in cases of desertion, ibid. Limitation of time for bringing actions, 192, Recovery of wages facilitated by 30 G. 3. and 7 G. 4* ibid. SEAWORTHINESS: Ship insured must be seaworthy, 162. What, 163, 164. In harbour, and on a voyage, different, ibid. SHARES: In ships, to be declared upon oath before registry, g. Partners not compellable to distinguish theirs, li. SHEEP-SALESMEN, may be made bankrupts, 424. SHIPS : What a British ship, 4. How navigated, 5. Exceptions, ibid. 6, n. Foreign, 4. Owners of, who may be, 9. Property in, how divided, ibid. Survey of, 11. Transfer of, 13. Privileges of British, how lost, 16. Arrest of, on bottomry bond, 38. To be truly described in policy, 109. 53^ INDEX TO THE PRINCIPAL MATTERS. SHIPS — continued. What mistakes unimportant, ibid. Insured by policy, cannot be changed without express stipulation, no. Presumption of a shipwreck, 131. SHIPWRIGHTS may be made bankrupts, 424. SIXPENCES, payment of, under Lords' Act, 496. SMALL DEBTS : Act for the relief of, 502. May be made available to a prisoner, although he have been remanded under the compulsory clause in the Lords Act, 503. SOUTH-SEA LICENCES abolished, 102. STAMP : On policy of insurance, 170. Penalty for evading it, 171. Additional, construction of the statute on this subject, ibid. Scale of duties, 172. Decisions, 173. On bill or note, 352. When needful on an alteration of the bill or note, 356. STATUTES : 1 James 1, c. 21, p. 262. 21 James 1, c. 16, s. 3, p. 272, 16 Charles 2, c. 6, p. 34. 22 & 23 Charles 2, c. 11, ibid. s. 7, p. 189. 29 Charles 2, c. 3, p. 340. s. 17, p. 203. 7 William 3, c. 12, p. 340. 9 & 10 William- 3, c. 17, s. 3, p. 392. 11 & 12 WiUiam 3, c. 17, s. 17, p. 186. 3 & 4 Anne, c. 9, p. 350. 8 Anne, c. 12, p. 199. 12 Anne, st. 2, c \6, p. 407. c. 18, p, 146'. INDEX TO THE PRINCIPAL MATTERS. 539 STATUTE S — continued. 7 George i, st. i, c. 21, s. 2, pp. 39. 176. 8 George 1, c. 24, s. 7, pp. 108. 186. '2 George 2, c. 36, s. i, p. 177. s. 2, pp. 178. 186. s. 3, p. i8i. s. 4, p. 182. s. 5, p. 188. s. -J, p. 185. s. 8, p. 191. s. 9, pp. 185. 188. s. 10, 185. s. 13, p. 184. 7 George 2, c. 8, p. 419. s. 7, p. 420, n. c. 15, s. 3, p. 48. s. 4, ibid. 49. c. 37» s. 5, p. 175. s. 6, 1 74. s. 7, p. 175. •26 George 2, c. 19, p. 146. 19 George 2, c. 37, s. 1, p. 127. s. 2, p. 128. s. 3, ibid. s. 4, ibid. s. 5, P- 39- 2 George 3, c. 31, p. 178. c. 86, p. 199. 13 George 3, c. 63, p. 407. 26 George 3, c, 86, p. 48. 28 George 3, c. ^Q, p. 102. 31 George 3, c. 39, p. 177. s. 2, ibid. s. 3, pp. 181, 182. s. 4, p. 188. s. 5, p. 185. s. 6, p. 191. s. 7, pp. 185. 188. s. 8, p. 185. s. 9, p. 188. 540 INDEX TO THE PRI]SC1PAL MATTERS. ^TATUTESr— continued. 31 George 3, c, 39, s. 10, pp. 177. 184. 33 George 3, c. 5, p. 492. c. 54, s. 10, p. 454. c. 66, p. 147. 35 George 3, c. 63, s. 10, p. 171. s. 11, ibid. s. 12, ibid. s. 15, ibid, s. ]6, ibid, s. 17, ibid. s. 18, ibid. 37 George 3, c. 73, pp. 185, 193. s. 2, p. 178. s. 7, p. 183,11. s. 8, ibid. s. 9, ibid. s. 10, p. 179. 39 George 3, c. 69, s. 107, p. 200. 45 George 3, c. 10,. p. 194. 48 (jeorge 3, c. 123, p. 502. c. 130, p. 14G5 n- 49 George 3, c 122, p. 146. 51 George 3, c. 143, p. 199. 52 George 3, c 34, p. 494. 53 George 3, c. 87, pp. 145, n. 146, n. c. 159- 5S George 3, c. 57, p. 102. c. 141, ibid, c. 184, p. 172. 248. 352. 58 George 3, c. 93, p. 396. 59 George 3, c. 5S, p. 192. s. 3 &4, p. 193. 1 & 2 George 4, c. 49, s. 3 & 4, p. 193- c. 75, pp. 145, n. 146, n. 147. c. 78, s. 1, pp. 370- 374- 3 George 4, c. 39, s. 2, p. 458, n. 4 George 4, c. 25, p. 184, n. s. 2, p. 193. s. 4. ibid. INDEX TO THE PRINCIPAL MATTERS. 54I STATUTES — cont'mued, 4 George 4, c. 25, s. 5 &6, 193. s. 7, p. 194. s. 8, p. 193. s. 9, p. i8g. s. 10, pp. 185. 189. s. 11, p. 190. s. 12, ibid. 5 George 4, c. 98, p. 469. c. 114, p. 149. s. 2, ibid. 6 George 4, c. 16, s. 2, p. 421. s. 3, p. 425. s. 4, p. 432. s. 5, ibid, s. 6, p. 434. s. 7, ibid. s. 8, ibid. s- 9, p. 435- s. 10, ibid, s. 11, ibid, s. 12, p. 440. s. 13, ibid. s. 14, ibid. 474. s. 15, p. 435. s. 16, p. 442. s. 17, ibid. s. 18, p. 439. s- 19? P- 438. s. 20, p. 443. s. 21, p. 444. s. 22, 443, n. s. 23, ibid, s. 24, p. 444. s. 25, ibid. s. 26, p. 443. s. 27, p. 445. s. 28, ibid. s. 29 425 INDEX TO THE PRINCIPAL MATTERS. STATUTES— conti7m€d. 6 George 4, c. 16, s. 30, 445, s, 31, p. 447- s. 32, ibid, s. 33, P- 445- s. 34, ibid, s. 35, ibid. s. 36, ibid, s. 37' P- 44G. 6- 38, p. 446, n. s- 39' P- 447- s. 40, p. 44G. s. 41, ibid. s. 42, ibid. s. 43, ibid. s. 44, p. 447. s. 45, p. 454. s. 46, p. 450. s. 47, ibid. s. 48, p. 452. s. 49, ibid, s. 50, p. 453. s. 51, p. 450. s. 52, p. 452. s. 53, ibid. s. 54, p. 451- s. 55, ibid. s. s6, ibid, s. 57, P- 453- s. 58, ibid. s. 59j P- 450- s, 60, ibid, s. 61, p. 455- s. 62, ibid. s. 63, p. 45€, s. 64, ibid. s. 65, p 457. s. 66, p. 455. s. G7, p. 4G1. INDEX TO TIIK PRINCIPAL MATTERS. 543 STATi\JT'ES—co?itinued. 6 George 4, c. 16, s. 68, p. 457. s. 6g, ibid, s. 70, ibid, s. 71, p. 462. s. 72, p. 456. s. 73. P- 432, n. 459. s. 74, P- 452. s. 75» P 458. - s. 76, ibid. s. 77, p. 456. s. 78, ibid, s. 79, p. 441. s. 80, p. 457. s. 81, p. 458. s. 82, p. 459. s. 83, ibid. s. 84, ibid. s. 85, ibid. s. 86, ibid. s. 87, p. 472. s. 88, p. 461. s. 89, ibid. s. 90, ibid. s. 91, ibid. s, 92, ibid. s. 93» P- 462. s. 945 p. 472- s- 95, p. 473- s. 96, ibid. s. 97, p. 462. s. 98, p. 474- s- 99> P- 446, 11. s. 100, ibid. s. 101, p. 460. s. 102, p. 45.5. s. 103, ibid, s. 104, -p. 4G0. 544 INDEX TO THE PRINCIPAL MATTERS. STATUTES— continued. 6 George 4, c. 16, s, 105, p. 460. 8. loC, p. 461. s. 107, p. 463. s. 108, ibid. s. 109, ibid. s. 110, p. 464. s. Ill, p. 4C3. s. 112, p. 448. s. 113, ibid, s. 1 14, p. 449- s. 115, p. 445- s. 116, p.449- s. 117, p.448. s. 118, p.449. s. 119, ibid. s. 120, p. 448. s. 121, p. 467. s. 122, pp. 465, 466. s. 123, p. 469. s. 124, p. 467. s. 125, p. 465. s. 126, p. 469. s. 127, p. 443. s, 128, p. 470. s. 129, ibid. s. 130, p. 466. s. 131, p. 468. s. 132, p. 464. s- 133> p. 472. s. 134, p. 473. s. 135, P- 443, n- s. 136, p. 474. s. 52, p. 260. c. 107, s. 15, p. 108. 194. s. 134, p. 46. C. 109, S. 2, pp. 3. 7. S, 3, p. 2. INDEX TO TUE miNCIPAL MATTEUS. 545 ST ATUTES-con finued. 6 Geo. 4, c. IC9, s. 4, pp. 2, 3. s. 5, V' 3- s. 6, p. 1. s. 7, ibid. s. 8, ibid. s. g, ibid. s. 10, ibid, s. 11, p. 3. s. 12, p. 4. s. 13, ibid, s. 14, ibid. s. 15, ibid, s. 16, p. 5. s. 17, ibid. s. 18, ibid, s. 19, p. 6. s. 20, p. 5. s. 21, p. 3. s. 22, p. 6. c. 110, s. 3, p. 8. s. 4, p. 16. s. 5, p. 7. s. 6, p. 16. s. 7, ibid. s. 8, ibid. s. 9, ibid. s. 10, pp. 7. iG. 18. s. 1 1, p. 8. s. 12, pp. 8, 9. s. 13, p. 9. s. 15, p. 11. s. 16-21, ibid, s. 21, ibid. s. 22, p. 12. s. 24, pp. 11. 16. s. 25, p. 11. s. 26, p. 12. s. 27, p. 16. N N 546 INDEX TO THE FRINCiPAL MATTERS. STATUTES— condmml. 6 Geo. 4, c. 110, s. 28, pp. 9. 12. s. 29, p. 7. s. 30, p. 8. s. 31, p. 13. s. 32, p. 9, 10, 11. s. 33, I'P- 9, 10- s. 34, p. 8. s. 35, ibid. s. 36, ibid. s. 37. P- >3- s. 39, p, 14. s. 40, ibid. s. 41, p. 12. s. 42, p. 9. s. 43, p. 13- s, 44, p. 15. s- 45. PP- 15- 18. 23. s. 46, p. 15. s. 47, p. 17. s. 48, ibid. s. 49, ibid. s. 50, ibid, c. Ill, p. 108. c. 114, s. 15, p. 194. c. 116, s. 2, p. 195. s. 3, p. 196. s. 4, ibid. s. 5, ibid. s. 6, ibid, n. s. 7. P- 197- s, 8, ibid, n. s. 9, ibid. s. 10, p. 198. s. 11, ibid. s. 12, p. 197, n. s. 13, ibid. s. 15, 196, n. s. 16, p. 196. INOEX TO THE PRINCIPAL MATTERS. 547 STATl^TES—coutinued. 6 Geo. 4, c. iiG, s. 17, ibid. s. 18, ibid. s. 19, ibid. s. 20 & 21, p. 198. c. 117, p. 147. c. 125, s. 2, p. 50. s. 3, P-51- 8. 5> V- 50. s. 7, ibid. ^ s. 8, pp. 50. .56, 57. s. 9, p. 57. s. 10, p. 51. s. 11, p. 50. s. 12, ibid. s. 13, ibid. s. 14, p. 51. s. 15, ibid. s. 16, ibid. s. 18, p. 53. s. ig, p. 54- s. 20, p. 51, n. 8. ai, ibid. s. 22, ibid. s. 23, ibid. s. 25, p. 56. s. 2G, ibid. s. 27, p. 51. s. 28, p. 50. s. 29, p. 51. s. 30, p. 52. s. 31, p. 53. s. 32, ibid. s. 33, ibid. s. 34, ibid. s. 35j P- 52- s. 36, ibid. s. 37, p. 53. s. 38, ibid. N N 2 548 INDEX TO THE PRINCIPAL MATTERS. ST ATl^TES— continued. 6 Geo. 4, c. 125, s. 39, s-39 p. 51, n. s. 40 P-57- s. 42, p. 53. s. 43, p. 52. s. 44 P-57- s- 45: p. 58. 8,46, ibid. s. 47 ibid. s. 48, P-51. s. 50, P-57- s. 51, ibid. s. 5-2, ibid. s-53> P- 55- s- 54. ibid. s. 55 pp. 28. 55 s. 56 p. 158. s>57, P-54- s. 58 ibid. s 59 P- 55- s, 60, ibid. s. 61 , ibid. s. 6q, p. 56. s. 63 ibid. s. 64 P-57- s. 65 p. 52. s. 66 ibid. s. 67 ibid. s. 68 ibid. s. 69, ibid. s. 70 p. 53- s. 71, ibid. s. 72 ibid. s- 73 p. 54. s. 74 ibid. s. 75, ibid. s. 76, p. 58. s. 77 ibid. s. 78 ibid. INDEX TO THE PRINCIPAL MATTERS. 549 ^TATVTES^confinued, 6 George 4, c. 125, s. 79, p. 58. s. 81, ibid, s. 82, ibid, s. 83, p. 54. s. 84, p. 58. s. 86, p. 59. s. 87, ibid. s. 88, ibid. s. 8g, ibid. s, 9O5 ibid, s. 91, ibid. 7 George 4, c. 46, p. 283. c. 48, s. 21, p. 2. s. 2J, p. 6. 8. 23, ibid. s. 25, p. 9. s. 26, p. 13. s. 27, p. 9. c. 57, s. 10, p. 475. s. 11, p. 476. s. 12, p. 477. s. 13, ibid. s. 14, ibid. s. 15, p. 479. s. 16, p. 477. s. 17, p. 486. s. i8, p. 477, s. 19, ibid. s, 20, ibid. s. 21, p. 478. s. 22, ibid, s. 23, ibid, s. 24, ibid, s. 25, ibid. s. 27, ibid, s. 28, ibid. 8- 29, p. 479. s. 31, ibid. «. 32, ibid. 550 INDKX TO THE PRINCIPAL MATTERS STATUTES— eo«//n;/«/. 7 George 4, c. 57, s. 33, ibid. s. 34, ibid, s. 35, ibid, s. 36, p. 480. s. 37, ibid, s. 38, p. 481. s. 39, ibid, s. 40, ibid. s. 41, p. 4812. s. 42, ibid. s. 43, ibid, s. 44, p. 483. s. 45, ibid. s. 46, ibid. s. 47, ibid. s. 48, ibid. s. 49, p. 484. s. 50, ibid. s, 51, ibid. s- 52, 477, n- s. 53, p. 485- s. 55, ibid. s. 56, p. 48G. s. 57, P- 483- s. 58, p. 486. s. 59, ibid, s. 60, p. 485, s, 61, p. 486. s, 62, p. 487. s. C3, p. 482. s. G4, p. 487. s. 65, p. 488. e. 66, ibid, s. 67, .s. 487. s. 68, ibid, s. 6q, ibid, s. 70, p. 482. s. 71, p. 489. s. 72, p. 47G. IKDEX TO THE PRINCIPAL MATTERS. 55I STATUTES — continued. 7 George 4, c. 57, s. 73, p. 476. s. 74, p. 488. s. 75, p. 489. s. 81, ibid. s. 87, p. 487. s. 88, p. 480, n. c. 59. P- 192. 7&8 George 4, c. 18, p. 380. c. 29, s. 18, p. 195. s. 19, ibid. s. 20, ibid, c. 30, s. 9, p. 137. s. 10, ibid. s. 11, p. 195. 9 George 4, c. 14, p. 341. s. 3, ibid, s. 4, ibid. s. 6, ibid. s. 7, p. 340. STOCK-JORBING ACT: "What contracts within it, 419. Relates to the stock of this country only, 420. STOCK-JOBBING : under what circumstances a bankrupt may lose his certificate for it, 4CG. STOPPAGE IN TRANSITU: How considered, 62. Who may stop, 63. The consignor, ibid. Must be his deed, and done adversely, ibid. The object is to protect him against the consignee's in- solvency, 64. Not to give him an unlimited power to stop, ibid. Must be a property in the goods stopped, 65. When available, 6Q. Considered with reference to land carriage, 221. 552 INDEX TO THE PRINCIPAL MATTERS. SIRANDING: What, 158. Not if ship takes the ground in the ordinary course of voyage, 159. But there may be a compensation for an average loss, 161. SUBJECTS, legal meaning of the word, 4. SUB-LIENS, not allowed, 226. 240. SUPERCARGO, stipulation in charter-party for him to go on board without charge, 84. SUPERSEDEAS of commission, 471. see Bankruptcy. SURETY : Executing a bond or authority from his principal, how bond available, 75. Extent of his liability in guarantees, 249. How he may relieve himself in a case of continuing guarantee, 252. Executor of, liable, 254. Who has paid the debt, how he may prove under a commission, 260. His remedy against his principal, ibid. As a general principle co-sureties must contribute, 260. see Guarantee. Proof of debts by, under a commission, 451. SURRENDER of bankrupt, time for, may be enlarged, 448. SURVEY of ship, 11. T. TAVERN KEEPERS may be made bankrupts, 424. TENTERDEN'S ACTS, 340. TERMINI, of voyage, 121. INDEX TO THE PRINCIPAL MATTERS. 553 THIEVES, insurance against, 133. TONNAGE: Of ship, deemed to be that mentioned in the certificate of registry, 11. Where no criterion for payment of freight, 91. TRANSFER: Of ship, how to be made, 13. By mortgage, 15. Usually by bill of sale, 17. TRUSTEE bankrupt, how he is to deliver over the trust estate, 441. V. VALUED POLICY, 126. Difference between foreign and British ships, where valuation left blank, 127. VESTING of Goods, see Goods. VICTUALLERS subject to the bankrupt laws, 4-24. UNDERWRITERS, on ship, entitled to freight after aban- donment, and not those on freight, 143. Set-off, &c. respecting premium, 150. VOYAGE : To make policy valid, must be commenced within a rea- sonable time, 102. Should be truly described in policy, lOg. Duration of, in policy, 117. Should be described accurately in the agreement for the hiring and wages of seamen, 1 78. USAGE of TRADE: Suffered to explain or qualify charter-party, 88. Respected in the landing of goods, 120. Respecting deviation, 125. Need not be disclosed to uiWerwriters, 1G7. USURY: ExceptioHc out of the statute of Anne, 407. u o 554 INDEX TO THE PRINCIPAL MATTERS. USURY -contimied. Not committed by a mistake, 408. Commission may be usurious, ibid. "When so, and when not, ibid. If a neto security be given, not tainted by usury, the original usury is done away, 41 1 . An advance of goods is within tlie statute, ibid. Other usurious contracts, ibid. Contingency as to the thing purchased negatives usury 412. Examples, ibid. No usury, if interest be in the nature of a penalty, 415. Annuities not within the statute, 416. Discounting bills, when usurious, ibid. Contracts for compound interest generally usurious, 417. Foreign interest, ibid. Usurious act not perfect till the excess has been received, 419- W. WAGES : Do not in general contribute to average, 155. Of seamen, see Seamen. WAIVER : Of lien, for freight, 86. Generally, of lien, 231. Of acceptance of bills, 371. WAREHOUSEMEN : Inabilities of, 294. Are subject to the bankrupt laws, 424. WARRANTIES : Touching the sailing of ships, 111. 202. Touching the quality of goods, 215. By sample, or not by sample, ibid. It is at the buyer's peril if he meddle with goods which do not correspond with the sample, 216, INDEX TO THE PRINCrPAL MATTERS. ^jyj WARRA^TlES-coniiiiued. Custom of trade will not overrule an express warranty* 2lG. Implied warranties, 217. Distinction between deceit and warranty, 218. WHARFAGE, a charge upon the owner of the ship, 45. WHARFINGERS : Have a general lien, 234. But not for labourage, ibid. Further particulars respecting them, 329. May be made bankrupts, 424. WORMS, eating holes in vessel, not a loss by perils of the sea, 131. WRECK: Punishments for plundering wrecks, and taking ship- wrecked goods, 195. For putting out false lights, ibid. THE END. Luke Iliinsard iS: Sous, near J.iiicolu's-liin I'lckls^ LoikIod. LjJW books published hi/ J. ?c W. T. ClaRkl. GARY'S LAW OF PARTNERSHIP. In Si'o. price 145. boards, A PRACTICAL TRP:ATISE on the LAW of PART- NERSHIP, with Precedents of Copartnersliip Deeds. By H.Cauy, Esq. of Lincoln's Inn. Contents : Of the Formation of a Partnership — Who may be Partners— Dormant Partner — Nominal Partner — Illegal Partnerships. — Of the Interest of Partners in Stock in Trade. Of the Liability of Partners from the acts of Copartners. — Suits at Law between Part- ners.— Suits in Equity between Partners. — Suits by Partners against Strangers. — Suits in Equity by Partners against Strangers — Suits at Law in Equity against Partners. Part- ners at Suit of the Crown. — Of the Dissolution of Partnership by Bankruptcy, by Death, with Precedents of Copartnership Deeds. BANKRUPT LAW. ' In two large vols. Svo. ll. \os. boards, The LAW and PRACTICE of BANKRUPTCY, as altered by the New Act, Cth Geo. IV. c. 16, with a Collec- tion of Forms and Precedents in Bankruptcy, and Practical Notes. By Edw. E. Deaco"^, Esq. Barrister at Law. This tvork contains distinct Chapters on the Duties of the Solicitor and Messenger, and on Costis, upon "which Matters so 7nany iinpoitant Decisions have lately taken place. Contenis: 1. Of tlie Jurisdiction of the Lord Cliancellor. — 2. Of the Trading. — 3. Of the act of Bankruptcy. — 4. Of the Petitioning Creditor. — 5. Of the Commission. — 5". Of the Meeting to open the Commission. — 7. Of the Commissioners. — 8. Of tlie Messenger. — 9. Of the Proof of Debts. — 10. Of the Assignees. — 11. Of the Assignment by the Commis- sioners: 1. Of the Freehold Property ; 2. Of the Personal Property. 12. Of the Dividend — 13. Of the Bankrupt. — 14. Of the Certificate. — ■ .15. Of Partners. — 16. Of Relation to the act of Bankruptcy. — 17. Of Set-off. — 18. Of Suits at Law and Equity by and against the Assignees. — — 19. Of the Evidence required to support the Commission in Actions by or against the Assignees. — 20. Of superseding a Commission. — 21, Of the Practice of the Court on Petition in Bankruptcy. — ii. Of Costs. — 23. Of the Solicitor to the Commission. II. The New Act. — General Orders ia Bankruptcy. — Practical Forms. LAW OF CERTIFICATES. Ifi Svo, price 15 s. boards, A TREATISE on the LAW of CERTIFICATES:— 1. Ecclesiastical. — 2. In Bankruptcy. — 3. Judicial, with regard to Costs, &c. — 4 By Magistrates.— 5. By Public Offi- cers. — 6. Parochial. — 7. Professional. — 8. Of the Registry of Ships.— (). Sundry CertiHcalcs not classed as above. By H. W.'WouLKYcu, Est}, of Lincoln'ii lun, Barrister at Law. i CD in -'/idJAINIIJlW ^^auiiivjdv)' "audiivjju' 'JJIJJNVMJn' ■^/saaAiNfiaftv ^OFCAlIFOff^ ^OFCAllFO«j|v i ^lUBRARYQc. CO <I^3MS01=^ 1 fT^ '^/smmi^ ^luumo/'^ #1 %jnv3jo>' ,A()F-CAUFOff^ fe ^5MEllNIVtR% ^lOSANCEUir^ 03 ^OFCMIFOR*^ ^OFD ^J^DNVSOl^ %JflAINflmV >&AHV}ian# Jl? I I \ S § %a3AINn-3WV^ '^OJIIVD-JO'^ '^iffOilTYiJO^ ee oa E ^ AlIFO/?^ " £2 i ir^ o I? Ffr"^ - s>:lOSANCEl^^ 'tfOjnvDjo^ ^OFCAllFOff,^ i5 ■jiyj'itv" 55 >•-•' P l* § '^4ojiiv3jo>' '^^ifojiivjjo^ <f7i30Nvs(n^ v/^ajAiNnaviv "^^c^Aavaair^ "^(^Auvaan-i^ UC SOUTHLRN RLGIONAL LIBRARY FACILITY AA 000 918 746 9 ■^jfuaNvsm'^"^ '^/iaaAiNnav^i ^5MF0NIVFR% _^lOSANC!l£r^ <m3DNVS0V'^ ^aiMNrtJftV^ ^lUBR^O^ < ^^MEUNIYERS/^ o <r?ijONvsoi^ o I ^OFCAIIFOB-^ ^OF-CAUFORjlv ^tUBRAHTQc -j^litURAinr/;/ ^<?Aavaan-i^ ^6'Aiivaan-#' OS aa ^\MEUNIVERy/^ so <maWS01^ %a3MNfl3V^ AMtl)WVtR5/A <fJU!lNVS(n<' ^5!rtEllNIW/4 ^lOSANtitltf^ 3 ^t-UBRARrcjc. ^tfojnv3-jo'^ ^OFCAIIFO^^ 55!AUBHAHtQ< ^OFCAllFOff^ <i3u3NYsoi\-'^ '^mim-1^ ^AHvuan-J^ ti