CASES ARGUED AND DETERMINED IN THE Court of COMMON PLEAS, AND EXCHEQUER CHAMBER, IN Easter Term, In the Forty-fifth Year of the Reign of GEORGE III. BAYLIS V. MANNING. . May 2d. The Court re fused to permit the Demandant in a writ of right to amend his count, by intro ducing an additional step in the descent, though it was BAYLEY Serjt, moved to amend the count in a writ of right. The count stated the right to have descended from one Robert Baylis, last seised to the demandant; whereas in fact it descended to John Baylis, the father of the demandant, and from him to the demandiant. An affidavit was produced, stating that inquiry had been made in the country respecting the title, and that the demandant had been mis-informed; in consequence of which the mistake in the count had arisen; and that unless the amendment were allowed, the demandant would ed in the country, be barred by the statute of limitations. VOL. I. N. R. S But sworn that the mis take had arisen from the demandant having been mis-inform and that the Demandant would be barred, unless the amendment were allowed. But the Court refused to allow the amendment, saying that they considered this case as less favourable than the Rule refused (b). (a) Ante, 64 (b) Vid etiam Dumsday v. Hughes, 3 Bos. & Pull. 453. May 4th. A trader, having / a counting-house in town, and a dwelling-house in the country, left the former (to which he never returned), taking his books with him, and slept at his dwellinghouse a few nights, when he finally left that also. Held, that having quitted his counting-house without the animus revertendi, he began to absent himself JUDINE, Assignee of a Bankrupt, o. DA CossEN. THE HISwas an action of trover, brought by the Plaintiff, as assignee of a bankrupt, to recover a quantity of Russia sheeting and blue cloth. At the trial before Sir James Mansfield Ch. J. at the Guildhall sittings after last Hilary term, it appeared that the bankrupt's only dwelling-house was at Walworth, but that he carried on his business solely at his counting-house in Angel-Court; that on Friday the 8th of June, he departed from his counting-house, to which he never afterwards returned, and took his books away with him; that on Friday night he slept at his house at Walworth, and continued to reside there till Sunday morning, when he went out, but returned again on Monday afternoon; that from that day with- on Tuesday morning he finally left his dwelling-house; and that on Saturday the 9th of June, the wife of the Defendant called upon the bankrupt, at his house at Walworth, respecting a debt due from the bankrupt to the Defendant, in consequence of which the goods were delivered to her by the bankrupt on Sunday the 10th. The jury, under his Lordship's direction, found a verdict for the Plaintiff. in the meaning of the 13 Eliz. c. 7. Vaughan Serjt. now moved for a rule to shew cause why this verdict should not be set aside and a nonsuit be entered, insisting that, as the bankrupt did not leave his dwelling-house until Tuesday morning, the act of bankruptcy was not compleat until that time, and consequently the Defendant was entitled to retain the goods which were delivered on Sunday; that the words of the 13 Eliz. c. 7 s. 1. are" depart from his dwelling-house to the intent or purpose to defraud or hinder any of his creditors ;" and that whatever might have been the intention of the bankrupt in leaving his counting-house on Friday, his act upon that day did not make him a bankrupt within the meaning of the statute. SIR JAMES MANSFIELD Ch, J. I left it to the jury to determine whether, when the bankrupt left his countinghouse, he left it with the intention never to return again; and the jury thought that he did. The case may perhaps be new in circumstances, but the question is this, Whether, when a trader, having a counting-house and carrying on business no where else, leaves that counting-house without the animus revertendi, he comes within the meaning of the words of the 13 Eliz. That statute is not confined to departing from the dwelling-house, but after the words depart the realm, or begin to keep house, it has this expression-" or otherwise to absent himself." Though therefore the case may be new, I can entertain no doubt upon it. If a man, who carries on business at a counting-house, goes away, taking all his books with him, without any intention of returning, though he may have a country-house at which he sleeps two or three nights afterwards, I think that he begins to absent himself from the time that he leaves his counting-house. HEATH J. There appears to me to be very antient authority for considering a tråder as bankrupt from the time S 2 that 1805. JUDINE 2. DA COSSEN. 1805. JUDINE v. DA COSSEN. that he leaves his counting-house. The term "bankrupt” is derived from the Italian expression" Banco rotto,"and formerly when a trader left his place of business, the benches were broken, and he was declared a bankrupt. ROOKE and CHAMBRE Justices being of the same opinion, Vaughan took nothing by his motion. May 7th. the Policy upon freight of the ship Stranger, at and from London to Ja maica, with liberty to touch at Madeira, and discharge and take goods on board ATTY . LINDO. THIS was an action on a policy of insurance, upon the freight of the ship Stranger, at and from London to Jamaica, with liberty to touch at Madeira, and discharge and take goods on board there. The cause was tried before Chambre J. at the Guildhall sittings after last Michaelmas term, when it appeared, that by a charter-party, dated the 10th December 1803, it was agreed between the Plaintiff as owner of the Stranger,and J. S. De Franca,as freighter thereof, that the ship should take in such goods at the port of London as the freighter should think proper, and proceed therewith to the island of Madeira, and having arrived there, the commander should deliver all or such part of the goods shipped at London as the agents of the agent should direct, freighter should direct, and there receive on board the said ship, from the freighter or his agents, such quantity there. The Plaintiffs had agreed by charter-party that the ship should take in goods at London, deira, and there de and proceed to Ma liver such part of the goods shipped at London as their and receive on board wine, and proceed to Jamaica, and there deliver; and the freighter agreed to pay 155l. in full for freight during the whole voyage from London to Madeira, and from thence to Jamaica, such freight to be paid in Madeira, on delivery of the goods shipped at London for that place, by Madeira wine at 401. per pipe, to be carried in the said ship to Jamaica free of freight; the ship arrived at Madeira, and delivered all her London cargo, except 33 casks of coals, which the captain kept on board to stiffen the ship; having received part of his cargo for Jamaica, but not the wine to be paid for freight, a gale of wind arising, the captain was obliged to cut his cables and run out to sea, where he was captured. Held that the Plaintiff was entitled to recover for a total loss. of of wine as he or they should think proper; and having received the same, should proceed to Kingston in the island of Jamaica, and there make a true delivery of the cargo to the freighter or his agents. And it was further agreed by the said J. S. De Franca, that he should pay to the Plaintiff 1357. in full for freight or hire of the said ship during the whole of the said voyage from London to Madeira, and from thence to Kingston in Jamaica; such freight to be paid in Madeira aforesaid on a right and true delivery of the goods that might be shipped in London for that place, by London Particular Madeira wine at the rate of 401. per pipe, which wine only, and the hogshead given to the master, should be carried in the said ship to Jamaica free of freight. The captain; being called as a witness, proved that the ship, having taken on board a cargo in the river Thames, consisting of bale goods, and a quantity of coals in old wine casks by way of ballast, set sail on the 2d of February, and arrived at Madeira on the 26th of that month; that about the 28th, the ship began to deliver her cargo, the whole of which, except 33 casks of coals, was discharged by the 7th of March, at which time 69 pipes of wine consigned to London (but not the wine by which the freight was to be paid) had been put on board; that the agents of the freighter were ready to receive the 33 casks of coals, but that they were retained on board by the captain to stiffen the ship until the rest of the cargo for Jamaica could be shipped; that on the 7th of March a gale of wind arose, which continuing till the 9th, the captain was obliged to cut his cables and run out to sea; that being driven to the westward, the ship fell in with a French privateer and was captured. The jury found a verdict for the Plaintiff for a total loss. A rule having been obtained, calling on the Plaintiff to shew cause why the verdict should not be set aside and a new trial had; first, on the ground that the Plaintiff was not entitled to recover any thing; and secondly, |