whilst the ship was lying in the harbour, a storm came on which drove her from her moorings, and she struck upon a rock, but by the exertion of the ship's company was got off again without appearing to have suffered any material damage. On the 5th of August the captain wrote home to the plaintiffs, but did not make any mention of this accident in his letter, which reached the plaintiffs on the 5th of October following. The ship having completed her loading, proceeded on her voyage, and arrived at the West India Docks on the 6th of January, 1812, and afterwards discharged her cargo undamaged and on the day of her arrival the captain made a protest, in which he detailed the accident that happened to her on the 25th of July, but added, that she prosecuted her voyage home without *exhibiting any bad effects from the accident; although the planks of her bottom must have been chafed, and her bottom otherwise injured by striking on the said rocks. This was the first intimation given to the plaintiffs of the accident. A survey was afterwards made, when it was discovered that the ship, in consequence of having run aground, had sustained damage in her keel and other parts to the amount of about 15 per cent., which damage the plaintiffs sought by this action to recover.

Upon this evidence it was objected that the captain should have informed his owners, by his letter to them of the 5th of August, of the accident which had happened to the ship on the 25th of July; which if he had done, the information would have reached them in time to have communicated it to the underwriters, to whom it was material that it should have been communicated. Lord ELLENBOROUGH, Ch. J. was of opinion that the captain, as agent for the owners, was bound to communicate to them what he knew might be a cause of damage to the ship, and that his omission in this respect, by means of which the owners were prevented from disclosing the accident to the underwriters, operated as an exception of that particular risk out of the policy; and he therefore directed a nonsuit.

Scarlett now moved to set aside the nonsuit, upon the ground that the plaintiffs were entitled to recover either for an average loss, or for a return of premium; either the policy attached notwithstanding the concealment, and then they ought to have

GLADSTONE

v.

KING.

[ *36]

v.

KING.

[ *37 ]

GLADSTONE recovered upon the loss; or the concealment was material, and the policy void, and then they were entitled to a return of premium. *He contended that the policy attached notwithstanding the concealment, and that the captain was not bound to inform his owners of every accident which happened, unless it was of such a nature as to cause an apparent damage or a probability of damage to the ship: the mere possibility that she may have suffered from any accident is not enough to make the disclosure of such accident necessary, for if it were, the captain would be bound to write home by every post respecting the most trivial occurrences. Here it is admitted that the captain was not aware of any injury sustained; and it is not imputed to him that he kept back any information from his principals in order to make them the instruments of effecting a fraud on the underwriters; if he had not written at all after the accident it does not follow that the insurance would have been void. His omitting therefore to communicate the accident when he did write, which cannot amount to more than not writing at all, will not vitiate the policy. But if the policy attached, it is a new principle in insurance-law that it may do so for some purposes, and not for others; and that the want of a disclosure of any particular circumstance, which does not amount to such a concealment as will vitiate the policy, may yet amount to an exception of the risk arising out of that particular circumstance.

[ *38 ]

LORD ELLENBOROUGH, Ch. J.:

With respect to the question, whether the captain was bound to transmit to his owners intelligence of the accident which happened to the ship on the 25th of July, I think that if it were but a dubious cause of damage, he ought to have communicated it; but looking at the circumstances as disclosed *afterwards by the captain's protest, must we not say that they amount to something more than a dubious cause, and that there is pregnant evidence that the captain suspected the ship must have sustained some damage, though he might not know what the particular damage was? If then the captain might be permitted to wink at these circumstances without hazard to the owners, the latter would in all such cases instruct their captain to remain silent; by which means the underwriter at the time of subscribing the policy,

v.

KING.

would incur a certainty of being liable for an antecedent average GLADSTONE loss. To prevent such a consequence, and considering that what is known to the agent is impliedly known to the principal, and that the captain knew and might have actually communicated to the plaintiffs the cause of damage, so as to have apprized them of it before the time of effecting the policy, I think that no mischief will ensue from holding in this case that the antecedent damage was an implied exception out of the policy. If the principle be new it is consistent with justice and convenience; and there being no fraud imputed to the captain in the concealment, will not alter the case as we had occasion to determine yesterday. I do not remember that the point respecting the return of premium was made at the trial; but if it was, the answer to it must have been that this is not the case of a void insurance, but only of an exception out of the policy.

LE BLANC, J.:

The antecedent damage which the captain was bound to communicate to his owners, and *neglected so to do, may be considered as an implied exception out of the policy; and the opinion which my Lord held at the trial must have precluded the plaintiffs from demanding the premium.

The other Judges concurred.

[*39 ]

Per CURIAM

:

Rule refused.

THE KING v. BRIDGE.

(1 M. & S. 76-77.)

Upon the nomination of two aldermen of a borough, in order that one of them might be afterwards elected mayor pursuant to charter: Held, that votes which were given before notice of the ineligibility of one of the candidates, on account of his not having received the sacrament within one year (according to the then existing statutory requirement), were not thrown away so as to authorize the returning officer to return another candidate who was in a minority.‡

UPON a rule for an information in nature of a quo warranto against the defendant for exercising the office of mayor of the + Bridges v. Hunter, p. 380, ante. 1813, 2 Dow, 124) p. 129, ante.R. C.

See Lord ELDON's opinion as to this point in Hawkins v. Rex (H. L.

1813. Jan. 27.

[76]

BRIDGE.

THE KING borough of Colchester, it appeared that by the charter granted to that borough in the third year of his present Majesty, it is directed that yearly on the Monday next after the feast of the decollation of St. John the Baptist, the free burgesses of the borough or the major part of them shall nominate two of the aldermen of the borough; and the mayor of the borough and the residue of the aldermen or the major part of them, after such nomination, shall elect one of the same aldermen so nominated to be mayor.

[*77]

On the 31st of August, 1812, (the day appointed by the charter,) a meeting of the free burgesses was held, at which two persons of the names of Smith and Sparling together with the defendant, being all three aldermen of the borough, were put in nomination by the free burgesses. The mayor having called for a shew of hands, declared the majority to be in favour of Smith and Sparling, whereupon a poll was demanded on the behalf of the defendant, and proceeded in. During the progress of the poll, and when the total number of free burgesses who had voted were as follows, viz. for Smith 99, for Sparling 91, and for the defendant 11, the defendant enquired of Sparling if he had taken the sacrament within a year; to which Sparling answered that he had not; whereupon the defendant gave notice to the free burgesses that Sparling was ineligible. A fresh nomination did not take place, but the remainder of the free burgesses were allowed to poll, at the close of which the total numbers *were for Smith 133, for Sparling 123, and for the defendant 22: but the mayor, considering Sparling as ineligible on the ground above stated, returned Smith and the defendant to the residue of the aldermen, who afterwards elected the defendant to the office of mayor.

:

Marryat was to have shewn cause against the rule; but declined arguing the point, finding that the Court were against him the Court being clearly of opinion that as notice of the ineligibility of Sparling had not been given until after 91 persons had voted for him, the mayor was not at liberty to treat those votes as thrown away; and to return the defendant, who was in a minority. Whereupon the

Rule was made absolute.

Scarlett was to have supported the rule.

BARNES v. MAWSON.

(1 M. & S. 77-87.)

Upon a question whether the lord of a manor was entitled to the coals under a freehold tenement within the manor, it is competent to him to shew by parol evidence that there was a known distinction within the manor between old and new land, and that in fact the plaintiff's lands lay within the boundary of the new land; and also to shew by evidence of general reputation, as well as acts of taking coal under the lands of other freeholders within the same boundary, that the right to the coals under the plaintiff's lands was in the lord.

TROVER for coals, tried before Wood, B. at the last assizes at York. The plaintiff claimed the coals as having been raised from under his freehold tenement called Whichwell Slacks, in the manor of Shelf, to which he derived title through a series of conveyances in fee simple from the year 1655; the first of which conveyances *dated in that year contained a covenant for quiet enjoyment, with an exception of "the yearly sum of 12d. lord's rent; and also the yearly sum of 8d. tithe-money due forth of the premises to the lawful owners or receivers thereof, and of services due to the chief lord or lords." The defendant claimed under the Saville family, lords of the manor of Shelf, who, as he contended, were entitled to all the coals within a certain district of the manor called the new land, which was described as land formerly taken in and inclosed from the commons and wastes of the said manor, and was contradistinguished from another district within the manor called the old land, within which latter the defendant admitted that the freeholders and not the lord were entitled to the coals under their own freehold land respectively. The evidence in support of the defendant's claim was principally of two descriptions; 1st, That which went to shew that Whichwell Slacks was comprehended within the new land; as to which the chief evidence was that it lay within the known boundary line, and was surrounded by other farms that were within the new land, and was always so called by persons who knew the boundaries of the old and new land. 2ndly, That which related to acts of ownership exercised by the lords of the manor of Shelf, and their lessees over the coals lying within the new land; and there was also evidence

1813.

Jan. 28.

[77]

[ 78 ]