1832. WELLS against HOPWOOD. the damage arose from a rope, in the one instance breaking, in the other, stretching. In that case, it is true, the vessel fell over on her side, whereas in this, she grounded without falling over; in that case, too, she was materially injured; whereas here she was only injured for a few hours, and not permanently: but these differences do not appear to me to be of such importance as to warrant a different judgment. On the whole, therefore, I think that the case ought to be governed by the decision in Bishop v. Pentland, and, consequently, that there was a stranding, which entitles the plaintiffs to recover. Lord TENTERDEN C. J. Several of the cases hitherto decided on this subject are, as to their facts, very near to each other, and not easily distinguishable. But it appears to me that a general principle and rule of law, may, although perhaps not explicitly laid down in any of them, be fairly collected from the greater number. And that rule I conceive to be this: where a vessel takes the ground in the ordinary and usual course of navigation and management in a tide river or harbour, upon the ebbing of the tide, or from natural deficiency of water, so that she may float again upon the flow of tide or increase of water, such an event shall not be considered a stranding within the sense of the memorandum. But where the ground is taken under any extraordinary circumstances of time or place, by reason of some unusual or accidental occurrence, such an event shall be considered a stranding within the meaning of the memorandum. According to the construction that has been long put upon the memorandum, the words "unless general, or the ship be stranded," are to be considered as an exception out of of the exception as to the amount of an average or partial loss, provided for by the memorandum, and, consequently, to leave the matter at large according to the contents of the policy; and as every average loss becomes a charge upon the underwriters where a stranding has taken place, whether the loss has been in reality occasioned by the stranding or no, the true and legal sense of the word "stranding," is a matter of great importance in policies upon goods. In policies on ship, the memorandum is not found. In such policies the inquiry is, whether a loss arose by perils of the sea, and the question is consequently unfettered by any technical phrase. Upon the facts of this case, it appears to me that the event which happened to this ship is within the second branch of the rule as above proposed. If the rope had not slackened, and the wind had not been in such a direction as it was, the vessel would have remained safe during the night; for although raised by the influx of the tide, she would at its ebb have grounded again on the soft and even bottom over which she had been placed. The events that occurred, unusual and accidental in themselves, caused the vessel to quit that station, and go in part to another, where, upon the ebbing of the tide, her forepart rested on a stony bank, so as to be above her remaining part, and to cause the straining by which the cargo was injured from the influx of water through the opening of the planks. I should observe that my judgment in this case is not founded upon the fact of injury to the cargo, or of the want of injury to the ship; I do not consider either of those circumstances as being properly an ingredient in the question. The rule as proposed will probably be found con 1832. WELLS against HOPWOOD. 1832. WELLS against HOPWOOD. sistent with the cases quoted at the bar, and which it is not necessary for me to repeat. I will only observe, that the facts of the case of Bishop v. Pentland (a) cannot, in my opinion, be distinguished in effect from those of the present case: it is the last decision on the subject. It cannot be decided that this is not a case of stranding, without over-ruling that decision. The rule as proposed upholds the judgment in that case: and for the reasons given I think this is a case of stranding; and the verdict must be entered for the plaintiff. Judgment for the plaintiff. (a) 7 B. & C. 219. HARRISON against COURTAULD. H. accepted a THE Master of the Rolls sent the following case for bill for the accommodation of B., the drawer, who the opinion of this Court: On the 26th of December 1826, Harrison accepted a indorsed it over bill of exchange of that date for 2987., drawn upon him as security for a debt, and afterwards became bankrupt. The indorsee entered into an agreement with the assignees, for purchasing part by and payable to the order of Stephen Beuzeville, at three months after date. Harrison accepted the bill for the drawer's accommodation. Beuzeville afterwards indorsed and delivered it to Courtauld as a collateral security for a debt of 2000l., which was the balance due upon certain transactions between them relative to the manufacturing of silk. Courtauld did not then know of some claims that the bill was accepted for accommodation; but he was informed of it by Beuzeville before entering into the of the bank rupt's property, and for the arrangement which he, the indorsee, had upon the estate; and he after wards gave them a release of all demands, no mention being made, during this transaction, of the bill, which had been dishonoured. He knew at the time of the agreement, but not when he took the bill, that it was accepted for accommodation : Held, that notwithstanding the above release, the acceptor was still liable at the suit of the indorsee. 5 Baer.561 agreement agreement next mentioned. The bill, when due, was dishonoured. Beuzeville afterwards became bankrupt; and in October 1827, an agreement was executed between his assignees (with the assent of the creditors) and Courtauld, whereby the assignees agreed to sell a certain mill and premises, lately occupied by Beuzeville, to Courtauld for 1,500l., and to procure him a surrender thereof on his paying the price; and he promised to relinquish all claims which he had on certain goods upon the premises, on being paid a sum of 2617. due to him for his work bestowed on the said goods. He further engaged, on performance of this agreement by the assignees, to execute a release to them and to the bankrupt's estate of the said debt of 2000l., which constituted the whole of his demand on the estate except his claim on the goods before mentioned for 2617. A release of the 2000l. and of all suits, causes of action, and demands, was accordingly executed in March 1828, by Courtauld, who afterwards received a counter-release from the assignees. In none of these documents was any mention made of the bill of exchange. In Hilary term 1828, Courtauld brought an action against Harrison upon his acceptance. The question for the opinion of this Court was, Whether Courtauld was entitled to recover from Harrison upon the bill? The case was argued in Michaelmas term by Hill for the defendant in equity. Courtauld is entitled to recover on this acceptance. The present case appears to have been sent for the purpose of ascertaining whether Fentum v. Pocock (a) and Carstairs v. Rolleston (b) are still considered law by this court. 1832. HARRISON against COURTAULD. (a) 5 Taunt. 192. (b) Ibid. 551, D 3 Now, 1832. HARRISON against COURTAULD. Now, there is no authority for saying, that where an accommodation bill has been indorsed for value to a party who received it without knowing that the acceptance was for accommodation, the acceptor can be discharged as to such indorsee by any thing passing between the indorsee and the drawer. If, indeed, the indorsee knew the circumstances of the bill when he received it, some question might, perhaps, be raised on the other side, whether Laxton v. Peat (a) was not still an authority for considering the acceptor in the light of a surety, who would be discharged by releasing the drawer. But that point does not arise here; nor did it necessarily arise in Fentum v. Pocock and an acceptor, considered as the principal party, can only be discharged by express agreement between him and the holder. In Carstairs v. Rolleston (b) the indorsees of a note given to the payee without consideration, released the latter from the note and from the debt; yet the Court of Common Pleas considered the maker liable to the indorsees. That case is in point. It is evident here that the value of the bill was not included in the agreement on the part of the assignees; nor do they stipulate for its being given up. Courtauld could have no reason for discharging the solvent acceptor. The agreement was only prospective: the acts which were to be done on both sides before the releases were completed might never be performed; and, in fact, had not been done at the time when this suit was commenced. In Farquhar v. Southey (c), and in Nichols v. Norris (d), decided in this court last Easter term, Fentum v. Pocock (e) was recognized as an authority. Some doubt, indeed, ap(b) 5 Taunt. 551. (a) 2 Campb. 185. (d) See the end of the present case. pears |