of the plaintiff. The loss was averred to be occasioned by
seizure by persons unknown. The second count was similar to
the first, except that it averrel the loss to be that the ship was
arrested, restrained, and detained, by the authority of the govern-
ing power of St. Michael's. The third count *was similar to
the first, except that it averred, that at the time of effecting the
policy, and from thence until and at the time of the loss, Solomon
Cohen was interested in the ship to the amount of all the money
insured thereon; and that the policy was effected for the use and
benefit and on the account of Solomon Cohen. Upon the trial
of this cause at Guildhall, at the sittings after Trinity Term,
1812, before Mansfield, Ch. J., it appeared that the vessel insured
was Swedish built, and had been captured by an English force,
and condemned in the British High Court of Admiralty as
lawful prize, as being Danish property. She was purchased in
that Court by a Swede, her former owner, who by a bill of sale
conveyed her to Solomon Cohen. No certificate of British
registry was obtained. She was chartered to Wm. Parnell, who
sent her in ballast with the Swedish captain and Swedish crew
on board, under a Swedish flag, upon a voyage from London to
St. Michael's, to procure a cargo of fruit, and thence back again.
She sailed accordingly, having on board a copy of the sentence
of condemnation, an English licence for the voyage, and her
clearances from London: upon her arrival at St. Michael's, the
Governor of that island, upon examination of the ship's papers,
seized and condemned her as lawful prize.
A witness

proved that the plaintiff had been heard to claim some interest
in the ship; and upon this evidence the defendants objected,
that as the interest was proved to be jointly in the plaintiff and
Solomon Cohen, none of the counts of the declaration could be
supported, the interest being neither in the plaintiff, as averred
in one set of the counts, nor in Solomon Cohen, as averred in
the others. MANSFIELD, Ch. J. reserved this last point, [and,
subject to that question] the jury found a verdict for the plaintiff.

Lens, Serjt. in Michaelmas Term, 1812, obtained a rule nisi for setting aside this verdict and having a new trial, upon the point reserved. [There was another point relating to the Navigation Act, 12 Car. II., now obsolete.]

HANNAM. [106]

[ *107 ]

CHAMBRE, J.:

There is this distinction between the present case and Bell v. Ansley, that it does not appear that this question was there ever considered, that is, there was no count in that case which averred interest in Wm. Bell, who was one of the partners. Unless I am very much mistaken, in the case against the Dutch commissioners, Lucena v. Craufurd, and in some other cases § since the stat. *19 Geo. II. c. 37, it has been held unnecessary to aver interest, and sufficient to shew at the trial that there is an interest.

GIBBS, J.:

The statute contemplates that policies on interest or no interest may be made on foreign ships.

Cur, adv. vult.

MANSFIELD, Ch. J. now delivered the opinion of the Court:

The simple question in this case is, of the averment of interest. It happened that Emanuel and Solomon Cohen were partners; and the action is brought in the name of Emanuel, and there is an averment in each count that the interest is in one of them, and the declaration is in the ordinary form, as if the assurance had been made for one, and for his sole benefit; and the plaintiff has recovered in this action for the whole loss as if the whole interest was in him. No doubt, in a different form of declaration, he might have recovered for his moiety. The verdict is certainly wrong, for it gives him, who is entitled to a moiety only, the whole; therefore the verdict cannot stand. There are contrary decisions; namely, Page v. Fry, and the case before Lee, Ch. J., on the one side, and there is the case of Bell v. Ansley,t in the King's Bench, which contradicts those authorities. We are of opinion, that the verdict cannot be supported, not merely for the sake of uniformity of judgment in both courts, but also because the averment is contrary to truth.

† Ante, p. 322 (16 East, 141).

6 R. R. 623, 3 Bos. & P. 75, 2 Bos. & P. N. R. 269, 1 Taunt. 325.

§ See Cousins v. Nantes, 3 Taunt. 513; 12 R. R. 696.

|| 5 R. R. 583 (2 Bos. & P. 240).

It is generally supposed that the averment of interest was intro-
duced into declarations in consequence of the statute 19 Geo. II.
c. 37; but upon looking into the prodigious number of autho-
rities cited in argument in the case of Lucena v. Craufurd, it
appears that the averment was in use before 19 Geo. II. It was
argued that the only reason of inserting the averment, *was, to
shew that it was not a gaming policy; but if the averment was
used before the stat. 19 Geo. II., it could not be introduced for
that purpose. Indeed before the Act, all policies were taken to
be real policies, made for the benefit of the person making them,
although proof of their reality was dispensed with by contract.
I conceive these words were introduced for the reason of the
difference between these contracts, which are effected by an
agent for the benefit of his principal, and any others; as in
the present case, for instance, where an agent makes a
contract in his own name for the benefit of other persons,
if this averment had not been introduced, I see not how
an action could ever have been brought; for if the assur-
ance were made by the plaintiff, it would primâ facie be
for his own benefit, and there would be no need of any
averment of interest at all. But according to the cases of
Page v. Fry, and Hiscox v. Barrett, it would be sufficient to
aver the interest in any manner which would shew it was not
a gaming policy. But that is not sufficient; it is necessary
to shew who are the real contracting parties. If this were
not necessary, this action would not be analogous to any other;
for in all other cases it is necessary to shew who are the real
contracting parties, otherwise the plaintiff cannot recover. If
therefore, it were sufficient, as in Page v. Fry it was said to be,
to shew such an interest, as would make it not a gaming policy,
it would materially differ the action upon a policy of insurance
from all other actions on contracts. We therefore are of
opinion that the judgment given in the case of Bell v. Ansley is
right, and well founded. What is said in that case applies
equally to all others, that the defendant should by the decla-
ration be made acquainted with all the real parties to the contract,
otherwise he may have one of the plaintiffs called as a witness.
† 5 R. R. 583 (2 Bos. & P. 240). ‡ At Nisi Priu3, 1747, 2 Park, 6th ed. 542n.

R.R.-VOL. XIV.

Ꮓ Ꮓ

COHEN

บ.

HANNAM.

[ *108]

COHEN v.

HANNAM.

[*109]

(Per GIBBS, J.: He may have him on the jury.)

It is therefore *very material that in this, as in all other actions, the defendant should know by the declaration, if he did not before know, who are all the persons parties to this contract. In this case therefore the consequence is, that the rule must be absolute for a nonsuit.

Rule absolute.

1813. July 6.

[125]

[126]

[ *127 ]

WOODYER AND ANOTHER v. HADDEN.

(5 Taunt. 125-143.)

The plaintiff erected a street, leading out of a highway, across his own close, and terminating at the edge of the defendant's adjoining close, which was separated from the end of the street for twenty-one years (during nineteen of which the houses were completed, and the street publicly watched, cleansed, and lighted, and both footways and half the horseway thereof paved at the expense of the inhabitants), by the defendant's fence: Held that this street was not so dedicated to the public, that the defendant pulling down his wall might not enter it at the end adjoining to his land, and use it as a highway.

THE plaintiffs declared, that the defendant broke and entered [certain closes of the plaintiffs' and then did damage there.] The defendant justified, for that before and at the several times when, &c. there was, and of right ought to have been, and still was, and of right ought to be a certain common and king's public highway into, through, over, and along those closes in which, &c. for all the King's liege subjects to go, return, pass and repass on foot and on horseback, and with his and their cattle, carts, and carriages, every year, and at all times of the year, at his and their free will and pleasure. The plaintiff replied by

traversing the highway alleged. The cause was tried at the Middlesex sittings after Hilary Term, 1812, before Mansfield, Ch. J. when the evidence was, that the plaintiffs for more than 20 years, and their father before them, and before him a person named Munnings, had been the lessees under a long beneficial lease of a messuage and a piece of land containing about four acres, the eastern side of which abutted on a highway called the Curtain-road, the northern side upon another highway called Old-street-road, the southern side upon a common sewer, and a walk called the Willow-walk, and the western

*

side abutted on a close of the defendant's. Both the pieces of land were at that time used as garden ground. The first alteration in the plaintiffs' close was made by Ditchman, a tenant of the plaintiff's father, who built a house upon the plaintiff's land: a person named Lovell took a lease from the plaintiff's father of some part of the ground, made a large quantity of bricks out of the soil thereof, and carried away much brick earth, and filled up the excavation by carting rubbish at the expense of his lessor to the spot, which he thereby eventually raised to the height of two feet above the level, which, before the excavation, was common to both the closes. About 24 years before the trial Ditchman staked out a space upon the plaintiff's land for a street, or, as the plaintiffs' witnesses termed it, a court, 24 feet wide, which was called John-street, in a direction running from the Curtain-road, into which one end of the street opened, to that side of the plaintiff's close which abutted on the defendant's land. He built three houses there; more were afterwards added. About the middle of its length the street was crossed at right angles by another street called Charlotte-street, which was in like manner laid out on the plaintiff's land, running parallel to the Curtain-road. It appeared to one of the witnesses, a surveyor, that if the boundary between the two estates was a right line, four inches and a half, being one half, of the thickness of the party-wall of one of the end houses at the western extremity of John-street, was placed on the defendant's land. The defendant's father on one occasion carried some bricks and other materials from the Curtain-road over the plaintiff's land to the edge of his own, where they were unloaded, and the bricks were carried through the fence: he asked of Ditchman, then the occupier, permission to have a road through the land, to carry his vegetables to market; Ditchman refused it, and assigned for reason that the freehold was not his, and therefore he could not grant it. At the earliest periods of which the witnesses spoke, being about thirty-six and thirty years before the time of this action, the plaintiff's and defendant's closes were divided by a small willow hedge, about a foot and a half high, planted by Ditchman, and a ditch, which persons could step over; it was not a sewer-ditch. During some part of the time when the

WOODYER

V.

HADDEN.

[*128]