See PRINCIPAL AND AGENT. INSURANCE, 10. 427 already paid the broker, and brings trover against B. & Co. for the goods, and also against the treasurer of the London docks. Held, that inasmuch as B. & Co. had suffered their broker, upon some occasions, to draw bills in his own name, without any mention of them as his principals, they were bound by the payment which had been made to him by C. in the present case; that the action well lay against B. & Co., but that the treasurer of the dock company was entitled to an acquittal. Townsend v. Inglis. C. CARRIER. See STOPPAGE IN TRANSITU, 4. 278 1. Though a carrier may, by law, limit his responsibility, a notice of certain limitations on his general liability, suspended on the termini of his journey, wint not attach upon the delivery of goods at intermediate places, where no such notice is given. Gouger v. Jolly. 317 2. A carrier who restricts his liability, is, notwithstanding, liable in cases of negli gence; the degree of which is a question of fact for the jury. Smith v. Horne. 644 CERTIFICATES. (PROFESSIONAL.) Persons required to take out certificates CERTIFICATES. (BANKRUPTS). CASE. See ACTION. CHARTER PARTY. See COVENANT, 1, 2. which he pays over to the underwriters A. charters a vessel, and covenants to sup who employ him. Such allowance, however general it has been, is a gratuity merely, and not a demand of right; nor can it be claimed, but upon the footing of a contract, either express or implied, between the parties. Levi v. Barns. 412 3 A. is employed by B. & Co. as their broker. He sells goods, the property of his principals, lying in the London docks to C., and draws a bill of exchange in his own name, which C. accepts for the. amount, and pays. A. becomes a bankrupt; B. & Co. disavow the transaction, and call upon C. for payment. C. refuses to pay, alleging that he had ply a full and sufficient cargo of certain commodities, (describing them;) and among others, of cotton, the freight of which was to be paid for at certain prices per lb. for round bales, and different prices for square or compressed bales. He furnishes a cargo of compressed bales of cotton, but neglects to have the cotton recompressed, according to the usage of the trade, and the custom of the country whence it was imported. In consequence of this omission, the vessel has not a full and sufficient cargo, as estimated upon the bales if they had been recompressed; though her cargo DEBT ON BOND. would have been full and sufficient, if the| cotton had been stowed only in a com- Where to debt on bond, the defendant pleadpressed state. Held, that 4. was liable for dead freight, and that it was his duty to have furnished the cotton in recompressed bales, notwithstanding the words of the charter-party. Benson v. Schneider. COVENANT. 416 In an action of covenant on a charter-party, in which the defendant covenanted "that the vessel should be sufficiently furnished with every thing necessary and needful for the voyage in question," which was to Cagliari in Sardinia: Held, that it was her duty to have a bill of health on 1. board; and the plaintiff having been put to great inconvenience and expense on account of the ship not being provided with such document, that the defendant was responsible for the loss occasioned thereby. Levy v. Costerton. 167 2. In an action of covenant upon a charterparty for freight, it is no defence that the plaintiff received part of the freight in money from the defendant's agent abroad, and the residue in a bill (without the privity of the defendants) drawn by the 2. agent upon, and accepted by, certain merchants at London; and which bill; was afterwards dishonored upon the insolvency of the drawers and acceptors. But the defendants are still liable to pay the freight owing to the plaintiff; and such bill is not to be deemed payment, though defendants were not informed of the transaction until after the failure of the parties to it. Marsh v. Pedder. 72 Where freehold premises are upon lease, and there are several interests, viz. tenant for life, remainder intail, and the reversion in fee; and there is a breach of covenant which gives the tenant for life a right of action, he can only recover such damages as are commensurate with the injury done to his life estate, and not the injury done to the reversioner. Evelyn v. Raddish. CONVOY ACT. D. DEED. See EVIDENCE. DEFAMATION. See SLANDER, 2. DEPOSITIONS. See EVIDENCE, 4. WITNESS. 543 ed, that 11004. was due, and no more, and undertook to discharge himself therefrom by a set-off, and the plaintiff replied, generally, that a larger sum was due, to wit, the sum of 1750/.: Held, that the plaintiff was bound to prove that more than 1150% was due. Bell v. Shaw. DISTRESS. See REPLEVIN. 293 10 DONATIO CAUSA MORTIS. Quære, whether a gift of a chattel, not in the possession of the donor at the time of making the gift, will so pass the property as to enable the donee, who has never obtained possession, to maintain trover against the executor of the donor. If A., on his death-bed, desire B. to call at a certain place, and fetch away a watch, adding, "that he will then make her a present of it," but no possession is resumed by d. and no delivery is made to B. Quære, if this be good as a donatio mortis causa. To make a gift valid as a donatio mortis Spratly v. Sir H. Wilson. causa, actual delivery of possession is necessary, and a symbolical delivery is not sufficient; therefore, where A., considering himself dying, takes a certain property out of an iron chest, and writes the names of the plaintiffs upon an envelope containing it, declaring it to be his intention that they should have such property upon his death; and after having superscribed the envelope with their names, returns it to the chest, and keeps the keys in his own possession, never making any actual delivery thereof to the plaintiffs themselves, or to trustees for them: Held, that such a gift, or designation of the property was not good and effectual as a donatio mortis causa. Bunn v. Markham. 352 DOCK WARRANT. A., having some coffees in the West India Docks, employs a broker to sell them; the broker informs him that he has found a purchaser and requires to be put in possession of the dock warrants. A. delivers them to the broker, indorsed in blank, upon receiving his (the broker's) check for the price of the coffee. The broker then sells the coffee to the plaintiffs, and receives immediate payment upon handing over the dock warrants. The broker's check given to A., is dishonored, and A. immediately stops the goods in the dock warehouse.-Held, that the plaintiffs had a right to recover in trover against A., on the ground that the delivery of the dock warrauts by the See BANKRUPT. BILLS OF EXCHANGE. IN- 2. Upon a subpoena duces tecum, a witness 4. In a trial for murder, the deposition of the deceased should be taken in the presence of the prisoner; but if the deposi tion be taken in the absence of the pri soner, and be afterwards read over to the deceased, in the presence of the prisoner, and the deceased assents to the truth of it, this will make the deposition evidence against the prisoner. Rex v. Smith. 614 F FACTOR. See PRINCIPAL AND AGENT. EVIDENCE. FRAUDS, STATUTE OF. A., an agent for some manufacturers, FRAUDULENT ASSIGNMENT. FREIGHT. See INSURANCE. 153 420 1. A general ship took some silk on board to carry from Rotterdam to London on defendant's account. On the margin of the bill of lading was written, "the consignee to clear the goods in fourteen running days after her arrival in port, or to pay 41. per diem for demurrage." The vessel was ready to deliver on the 3d of October. Defendant applied for, and was ready to receive his goods within the running days; but being undermost in the vessel, delivery could not be made till the 22d. Held, that the plaintiff was entitled to recover demurrage though he did not deliver the goods within the time allowed, being prevented by other goods belonging to other consignees, which overlaid them. Harman v. Guadolphi. 35 Goods shipped from abroad, and consigned to a merchant in this country, are to be paid for (upon a demand for freight) according to their net weight, as ascertained at the King's-landing 230 3. A book in which leases were enrolled. 601 Scales, and according to the weights expressed in the bill of lading, unless there be a special contract so to pay for them. If the consignee to get his goods delivered INFANT. to him pay more than the net weight A lieutenant in the royal navy, under the amounts to, he may recover back the money overpaid in an action for money had and received. Geraldes v. Donison. 346 3. A. undertakes to smuggle certain goods belonging to B., into Russia. A regular bill of lading is made out of the goods, in which the freight charged is the usual freight according to the bulk of the goods. But a second contract is made between the parties, by which B. undertakes to pay A. a large sum of money, if the goods should be safely landed in the foreign port. The goods are landed: B. pays the freight under the bill of lading, and likewise part of the money under the agreement, but refuses to pay the remainder. Held, that notwithstanding the bill of lading, he was liable to pay the residue as extra freight. Extra freight may be recovered under a common count for work and labor, &c. Hedley v. Lapage. 392 4. Where a ship is freighted in contravention of the navigation laws, although the consignee accept the goods, and sell them, he is not answerable in an action for the freight. Blank v. Solly. 554 H HIGHWAY. age of twenty-one, is not answerable for the price of a chronometer, in an action to which he has pleaded his infancy, and the replication is, necessaries. Berolles v. Ramsay. 77 1. A policy of insurance (against fire) is effected on the stock and utensils of a sugar-house, the different stories of which were heated by a chimney running up to the top, By the negligence of the plaintiff's servants in omitting to open the register, the heat is considerably increased, by means of which large quantities of the sugar are spoiled, but nc damage was occasioned to any thing but the sugar, and no greater fire existed than on ordinary occasions. Held, that this was not a loss within the policy. Austin v. Drew. 126 2. Where, in a policy of insurance on goods, the vessel is wrecked, part of the goods are lost and part got on shore, but, (whilst on shore,) are destroyed and plundered by the inhabitants of the coast, so that no portion of them comes again into the possession of the assured. Held, that this is a loss by the perils of the sea, and no abandonment was necessary. Bondrett v. Hentigg. 1. Though the right of the soil in public 463 2. A right of way for agricultural purposes is a limited and qualified right of way, and does not, necessarily, confer a right to use such way for general and universal purposes. Therefore, where A. claimed and proved a right to carry corn and manure over the locus in quo, Held, that he had not, therefore, a general and unlimited right to carry lime, or the produce of a quarry over the locus in quo at all times, and for all purposes. Jackson v. Stacy. 455 149 A vessel may deviate somewhat from the straight line of her track to seek for convoy; and the captain, unless expressly prohibited by the terms of the policy, may always do, when insured, what it would be expedient for the common security to do if uninsured. Ships sailing from foreign ports are not within the convoy act, unless there are persons at those ports authorized to grant convoy or licenses. And it is not sufficient to show that convoys have been actually appointed from those ports, but proof must be given, that there are persons stationed there legally authorized by the admiral to appoint them. D'Aguilar v. Tobin. 185 4 If a ship, by bad weather, be compelled 9. to put back to her loading port, and upon examination of her cargo it is found not to be in a fit state to send forward to its original destination, and altogether unsuited to the market from sea damage, the insured is entitled to abandon. Afterwards held by the court, that he was entitled to a reasonable time for examining the state of the cargo before he made his election to abandon. Gernon v. Royal Exchange Company. 49 5. A license granted to a ship to sail in ballast from London to Holland, (which country was at that time in a state of hostility,) notwithstanding any thing contained in His Majesty's order in council of April, 1809: held not to protect a ship which was the property of an alien enemy. An insurance, therefore, on such vessel is void. Gregg v. Scott. 120 6 A vessel with liberty to chase and capture prizes, has some Spanish prisonersj on board. By means which did not appear, they break loose, rise upon, and imprison the crew, with the exception of one sailor, who is heard upon deck in conversation with them. The captain and crew, with the exception of this sailor, are put on shore; and the Spaniards run away with the ship. Upon a loss, alleged to be by the barratry of the mariners,] this is evidence to be left to the jury that such barratry was committed.-Where a vessel, engaged in the Southern Whale and Seal fishery, and with liberty to chase and capture prizes, is insured in August, 1807, with a retrospect to the 1st of August, 1806, although at the time of her insurance, she was not competent to pursue all the purposes of her voyage, her crew being reduced by death and casualties; if she had a competent force to pursue any part of her adventure, and could be safely navigated home, she is to be deemed seaworthy. Hucks v. Thornton. 8. The words "all sorts of wool," in 43 Geo. 3, c. 155, s. 13, do not include cotton wool, especially when the words "wool" and "cotton-wool" are used in another clause, and in the same section of the act, as distinct commodities. Therefore, the importation of cotton from Amelia island, in a Portuguese vessel, owned by a British subject, is contrary to the navigation act. The 55 Geo. 3, c. 8, is not anj exposition of the 42. Pearce v. Cowie. VOL. III.-35 69 A general ship is freighted by several merchants, and sails upon her voyage; she parts with her convoy in a gale of wind, and is afterwards attacked by an American privateer, which she engages, and beats off, with the loss of one man killed and four wounded; her hull and rigging are likewise damaged in the conflict; but she reaches her port, and deliver her cargo safely: Held, that the repairs of the ship, and the expenses of curing the wounded sailors, are not, under such circumstances, a subject of general average. Taylor v. Curtis. 192 10. A., a merchant, employs B. to effect some policies of insurance; B., unknown to A., employs C., who applies to the defendants, who are insurance brokers. C. gives the defendants no reasons to suppose that he was not acting as princi pal, and they effect the policy in their own names, as agents. At the time of this transaction, C. was indebted to the defendants on a balance of accounts. In an action brought by A. to recover the policies on tendering the premium and expenses: Held, that the defendants had a lien upon them, until C.'s debt was satisfied. Westwood v. Bell. 122 11. A vessel is driven into a port, where there is no dock to receive her; it ap peared she had suffered so much by sea perils, that upon examination and survey, it was judged expedient to break her up and sell her for old timber: Held, in an action on the policy, that the insured was bound to abandon before he could call upon the underwriters for a total loss, the ship not being a wreck, but, however maimed and damaged, existing in specie as a ship. Bell v. Nixon. 423 12. It is the duty of the assured, not only to communicate to the underwriter, articles of intelligence which may affect his choice, whether he will insure at all, and at what premium he will insure; but, likewise, all rumors and reports which may tend to enhance the magnitude of the risk. The opinion of underwriters, whether, upon certain facts being communicated to them, they would have insured or not the particular voyage, cannot be received as evidence. The materiality of the intelligence or rumors, which the assured is charged with having suppressed, is a question for the jury under the circumstances of the case, and ought not to rest upon the opinion of mercantile men. Durrell v. Bederley. 283 13. A policy of insurance is altered by striking out the words in the body of the policy, which contained a warranty to sail at a certain time, and inserting an enlarged time in the margin. Some of the underwriters consented to the alteration, but the defendant did not consent. |