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1832.

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LARKINS.

out express permission from the Admiralty; and that, though in attendance, he had not been examined on the trial of the cause.

The prothonotary allowed 941. for the expense of Watson's subsistence from October 6. 1829 to the time of the trial, April 22. 1830; whereupon, a rule was obtained on the part of the Plaintiff to reduce that sum, and on the part of the Defendant to increase it.

Taddy Serjt. urged the reduction. The Defendant had no right to detain a witness for such a length of time at the expense of the other party, upon the mere speculation that the Court might order a new trial, especially when he was not examined on the first trial. And the witness here being a half-pay officer, and having the means of subsistence, was not entitled to any thing even for the time that elapsed before the trial. He cannot claim for loss of employment in the merchant service, since it is illegal for him to enter into that service without the express consent of the Admiralty. That distinguishes the present case from that of Lonergan v. Royal Exchange Assurance (a), and Berry v. Pratt (6), where the witness, by his attendance on the cause, was deprived of his only means of subsistence. The witness, too, might have been examined on interrogatories.

Wilde Serjt., in support of the increase, relied on the affidavit stating the witness to be a material and necessary witness, and on the recent decisions of Lonergan v. Royal Exchange and Berry v. Pratt. According to the former of those cases, the party was not bound to examine upon interrogatories where the appearance of the witness at the trial was likely to be more beneficial. If

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the party was justified in detaining the witness for the first trial, he was equally justified in detaining him for the second. The necessity for putting him into the box must depend upon the accidents of the trial; but that did not lessen the necessity for having him ready.

LARKINS.

Tindal C. J. It seems to the Court that there is no sufficient reason for reviewing the prothonotary's taxation on the one side or the other. As to the motion to reduce the sum allowed the witness, or to refuse him any thing, there is no reason for doubting that he was 'a material witness, -(a point upon which the Court ought not to speculate too nicely, when there is a fair and reasonable ground for coming to such a conclusion,) and if so, the prothonotary is the proper officer to determine the quantum of allowance. In the case of Berry v. Pratt, the Court of King's Bench confirmed an allowance for the subsistence of a common mariner, and although the witness here was a master in the royal navy, he was in the habit of obtaining employment in the merchant service, and his case cannot be distinguished from that of the mariner. On the other hand, we see no reason for increasing the sum which has been allowed. It has been contended, that it was necessary to detain him till the result of a motion for a new trial should be known; but very early in that proceeding the Court intimated that the new trial should be confined to the question of seaworthiness, a point to which the Defendant did not propose to examine the witness. There is no ground, therefore, for sending the case back to the prothonotary; and the circumstance that both parties complain on opposite grounds, is, in some degree, an indirect proof that the prothonotary is right.

Rule discharged.

1832.

Jan. 31.

ELTON O. LARKINS.

The announce- ON the 29th of December 1828 the Plaintiff's broker ment in the effected a policy of insurance on the brigantine foreign lists filed at

Fanny from Cadiz to London, with leave to touch at Lloyd's of the Exmouth, at 30s. per cent. premium.

he On the 17th of December the Plaintiff had received a ship out of the port from letter from the Captain of the Fanny, dated Cadiz, which she is November 21st, stating that the Fanny was nearly insured, does

loaded; would probably sail for London the next day, not, where such commu- and that the schooner Traveller had sailed for London nication is material, dispense with the

This letter was not communicated to the underwriter. assured's dis. But in Lloyd's List of December 20th it was anclosing a letter received from nounced that the Traveller had been towed into Kinhis captain sale in distress, and that the ship William which had

left Cadiz on the soth of November, had arrived at policy is effected, an. Gravesend. nouncing the On the 22d of December a printed list from Cadiz was day of his intended

received and filed in the inner room at Lloyd's, condeparture. taining the words following:-“25 Nov., bergantin

Fanny, John Taylor, para Londres.

The voyage from Cadiz to London varies from sixteen to sixty days, but the average length is twenty-one.

The Fanny never having been heard of, the Plaintiff sued on his policy, and at the trial before Bosanquet J., London sittings after Trinity term, the defence set up was, that letter received by the Plaintiff on the 17th of December from bis captain at Cadiz, was a material communication, and ought to have been disclosed to the underwriter. Evidence was given that though underwriters are in the habit of referring to the announcements in Lloyd's books, and the English lists printed

from

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from them, they do not, except under peculiar circumstances, resort to the foreign lists which are filed in that establishment : that if the time of sailing of the Fanny had been known, in conjunction with the fact that the Traveller had arrived at Kinsale, and the William at Gravesend, by the 20th of December, after leaving Cadiz on the 21st of November, or later, the Fanny would have been deemed a missing ship, and not insurable at 301. per cent.

The learned Judge left it to the jury to say whether the letter in question was material, and if so, whether the disclosure of it was rendered unnecessary by information aliunde within the reach of the underwriter.

A verdict having been found for the Plaintiff,

Spankie Serjt. obtained a rule nisi for a new trial, on the grounds above stated. He cited Kirby v. Smith (a), where a ship had sailed from Elsineur on her voyage home six hours before the owner, who followed in another vessel on the same day, and, having met with rough weather on his passage, arrived first, and then caused an insurance to be effected on his own ship: it was held that those circumstances were material to be communicated to the underwriter, and that it was not sufficient to state merely that the ship insured was “ all well at Elsineur on the 26th of July,the day of her sailing.

Wilde Serjt. shewed cause. The assured is no doubt bound to communicate every fact within his knowledge, material towards estimating the risk, unless it be actually or impliedly within the knowledge of the underwriter, The time of a ship's sailing is not, in general, of itself a material fact; it may, however, become material in conjunction with other facts. The only fact which could

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make

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make the time of the Fanny's sailing material, is the arrival of the Traveller at Kinsale, and the William at Gravesend. Now, the assured could not be called on to communicate those arrivals, because it does not appear that he knew of them; if he did, he knew of them only through a channel which was equally open to the underwriter, Lloyd's books, the contents of which, it has been decided, an assured is not bound to communicate. Friere v. Woodhouse. (a) It may be contended, however, that even combining it with the arrival of the Traveller and Willian, the sailing of the Fanny was not a material fact, for the voyage from Cadiz to London varying from sixteen to sixty days, the Fanny could not be deemed a missing ship on the 29th of December.

The jury, by their decision, have shewn that they considered the disclosure of the letter in question immaterial.

Spankie. In Friere v. Woodhouse it was the English listat Lloyd's which the assured was excused from communicating; but he ought to communicate the contents of the foreign lists, for an underwriter is not bound to know the meaning of para Londres, or to be versant in all modern languages. And the assured must at his peril disclose every material fact, whether he deems iť to be material or not, and whether it is material at the time or only becomes so eventually. Thus, in Bridges v. Hunter (6), the plaintiffs effected a policy of insurance on wines from Oporto to London on the 12th of November, at which time they were in possession of two letters from their correspondents at Oporto, the first of which, dated the 11th of October, stated, “ We are loading the wines on board the Stag, Captain Wheateley, who intends to sail to-morrow;" the other, dated the 13th

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