that the plural word, "statutes," is used. I think, therefore, that the sureties are not responsible for anything occurring after the expiration of the current year of office, though they in fact probably acted upon the supposition that the security ran on as long as the party was in office. I must therefore hold the declaration bad. COLERIDGE J. I am of the same opinion. I do not know that I entirely agree with my Lord as to what was probably passing through the minds of the parties when they executed this bond. I incline, from what generally passes on these occasions, to believe that the parties did not think much about the point, but, knowing that the office was annual, gave their security for it as they found it. However, supposing that not to be so, we are clearly not at liberty to resort to such considerations in construing this instrument: we must take its words, and apply the law to them. It is admitted that, primâ facie, the security would be limited to the time for which the office was appointed; and it lies on the plaintiffs to displace this. And that seems to me just. The obligor knows at the time the extent to which he is bound, and may estimate the liability which will devolve on him during the time: but he cannot know what liability may devolve on him at a distant time. Suppose two different instruments in writing were presented to him, and he were asked, "Will you be surety for one year, or for the whole life of the officer if he continues in office ?", would not any man consider that there was a great difference between the two? I think, therefore, the presumption is that the defendant proceeded upon the state of things which he knew to exist; and that was, that the officer was appointed for a year, and was liable to be not ap 1858. Mayor of CAMBRIDGE v. DENNIS. pointed for a second year. If that was presented to the mind of the surety, he would execute the bond with the knowledge that his liability, unless the terms of the instrument were altered, would be over at the end of the year. Few persons undertake such obligations willingly; they are pressed by friends, and do not like to refuse; but the less the risk is, the better they are pleased. Then, what are the words here upon which Mr. Lush relies as creating more than the ordinary liability?" Such statutes as might be thereafter passed." No doubt those words. may mean "such statutes as may be passed during any time for which the officer shall hereafter be appointed;" but they may mean also "such statutes as may be passed while he holds under the present appointment;" that is, the current year of office: the meaning may be that the surety is willing to take his chance of any change that may occur during the year, and to undertake such contingent liability for that time. Now, if the latter may be the meaning, then I crave in aid the presumption of the greater probability, which I think overpowering. I think, therefore, that judgment should be given for the defendant. On turning to the ERLE J. Looking at the mere words, I am obliged to come to the same conclusion. The bond relates to an appointment under the statute. statute, we see that the appointment is for one year; and the surety says that he will engage for the due performance of the duties as long as that appointment lasts. He might have engaged to be liable during any subsequent appointment; but there are no words going so far. I come to the conclusion very unwillingly; for I cannot help thinking that the defendant meant to be liable as long as Smith should be treasurer. CROMPTON J. I am of the same opinion. It is important that we should judge by the rules of law, and not by guess. Nothing is better established than that a surety executing such an instrument as this is to be taken as giving security only in respect of the existing office. When there is a re-appointment, he has a right to say that the office is not the same. When the bond recites an appointment under the statute, that controuls the subsequent words, and shews what the office is for which the obligor becomes responsible. The only question, then, is, whether we here find words altering that meaning; for of course a party may alter it by words. But the words relied upon clearly refer only to changes that may take place in the nature of the duties of the office, not to anything affecting the term for which it is held. In Peppin v. Cooper (a) the words were really much stronger: the security was for performance of the duty "at all times thereafter." That might be supposed to refer to fresh appointments: but there is nothing like that here. The cases cited by Mr. Lush have been properly decided; but they are very different from this. In Oswaldv. Mayor, Aldermen, and Burgesses, of Berwick-upon-Tweed (b) there are the words "under any annual or other future election:" that was saying plainly that the security was not to be confined to the exercise of the office under the then existing appointment. There were similar words in Mayor of Dartmouth v. Silly (c). We could not give such effect to the words in this condition without breaking in upon established rules. We need not decide on the pleas. Judgment for defendant. 1858. Mayor of CAMBRIDGE V. DENNIS. (a) 2 B. & Ald. 431. (b) 5 H. L. Ca. 856. (c) 7 E & B. 97. 1858. Tuesday, June 8th. The Customs (16 & 17 Vict. CUNARD, BRETT and AUSTEN against HYDE. DECLARATION on a policy of insurance at and from Miramichi to port of discharge in the United c. 107.), enacts Kingdom, calling at Cork for orders: not to discharge (sects. 170, before any clearing officer permits a ship wholly or partly laden with timber to clear out from any British port in North America or Honduras, after 1st Sep tember or be he shall ascer tain that the whole cargo 171, 172) that, on the east coast upon any kind of goods and merchandizes in the ship called D. B.: beginning the adventure upon the goods and merchandizes from the loading thereof aboard the said ship, as above, until the said goods and merchandizes should be safely discharged and landed; valued at, on freight and cargo, including dock load, 820%. The perils insured against to be of the seas, &c. Averment: That defendant subscribed the policy fore 1st May, for 150%, and became insurer to that amount. That, after the making of the policy, goods of great value were is below deck, shipped on board the said ship, to wit at Miramichi, to be carried as cargo on the voyage in the policy described, for certain freight: and afterwards the said ship, with the said cargo on board thereof, sailed on the said voyage; and the policy then attached: and afterwards, and whilst proceeding on the said voyage, and during the continuance of the said risk, the said cargo and freight were, by the perils of the seas, and by perils insured against, wholly lost. Averment of interest in plaintiffs and Alexander Fraser, or some or one of them, and that the insurance was for the use &c. of the and give the master a cer tificate to that allow any part of the cargo to be upon deck (except in specified cases of necessity); and, if the master sail without the certificate, or load in the mode forbid den, he shall forfeit 1001. person or persons interested. That all conditions necessary Held that, where a master sails without such certificate, or loads in the mode prohibited. an insurance on the cargo is not thereby vitiated, unless the insured be, at the time of effecting the insurance, privy to the act of the master. &c. had been performed. Breach: non-payment of defendant's subscription. Plea. That the said policy was made and the said goods shipped on board the said ship after the passing and coming into operation of a certain Act of Parliament made and passed in the 17th year of the reign of Her present Majesty, entituled "An Act to amend and consolidate the Laws relating to the customs of the United Kingdom and of the Isle of Man, and certain Laws relating to trade and navigation and the British possessions:" and that the said goods consisted of timber and wood goods; and that Miramichi, in the said policy mentioned, was and is a British port in North America; and that the said ship with the said goods cleared out and sailed from Miramichi aforesaid after the first day of September in the year of our Lord 1856, and before the first day of May in the year of our Lord 1857, to wit on the 14th day of September in the year of our Lord 1856; and that, before and at the time of the said ship so sailing as hereinbefore mentioned, the whole of the said cargo was not below deck; but, on the contrary thereof, part of the said cargo was loaded, and remained and was, above and upon the deck of the said ship, contrary to the statute in that behalf made and provided: and that, at the time of the said ship so sailing as aforesaid, the master of the said ship had not obtained from the clearing officer any certificate that the whole of the cargo of such ship was below deck, contrary to the statute in that behalf made and provided: as the person or persons interested in the said cargo and freight well knew, before and at the time of loading of the said cargo and of the said ship so sailing as aforesaid: wherefore the defendant says that the said voyage was and is wholly illegal. Joinder. Demurrer. 1858. CUNARD V. HYDE. |