1832. WATSON ข. WALKER. Jones Serjt. that the affidavit should have been entitled "Walker v. Watson," Walker being the Plaintiff upon the writ of false judgment. Merewether answered, that he was compelled to entitle the affidavit in the Common Pleas in order to its being read; and that Watson v. Walker was the only cause in existence, his objection being, that the writ of false judgment was void. But The Court, thinking that there was no such cause in the Common Pleas as Watson v. Walker, discharged the rule, without costs. April 19. Defendant took goods under a second NELSON V. CHERRILL and Another. IN trespass for taking the Plaintiff's goods, the Defendants, at the trial before Tindal C. J., justified the commission of taking under a commission of bankruptcy against one Lloyd, alleging that the Plaintiff had obtained the goods from Lloyd under a fraudulent bill of sale. bankrupt, while a former commission was subsisting: Held, they could not retain them, even against a colourable commission being void. It appearing, however, that a prior commission, issued against Lloyd in 1821, was still in force, Lloyd having obtained no certificate under it, a verdict was found for the Plaintiff on the authority of Fowler v. Coster (a) and Till v. Wilson (b), which decide that a second commission is void if issued while a former commission is in force. (c) Andrews Serjt. now moved for a new trial, alleging that the Plaintiff having no right to the goods, the Defend (a) 10 B. & C. 427. (c) But see Ex parte Welsh, Montagu Rep. in Bkptcy. 276. ants ants were entitled to retain them as against him; but the Court recognized the correctness of the above decisions; and TINDAL C. J. said, the Plaintiff was in actual possession, at least under a colour of title. The Defendants took the goods and set up a commission of bankrupt, which we are bound to call void. It would lead to great confusion, if they could then be allowed to set up the title of others to goods which were not their own. Rule refused. 1832. NELSON V. CHERRILL. PALMER V. MARSHALL. policy, the case April 19. nuary 28th, on a vessel afloat, at and from Bristol The vessel sailed on the 17th of May: Held, that the delay, unaccounted for, to London. POLICY of insurance effected January 28th, 1831, Insurance Ja on the Ruby yacht of thirty-seven tons, at and from Bristol to London. The yacht, which was lying in the float at Bristol at the date of the policy, did not sail till the 17th of May, and was lost in the Channel three or four days after. In an action on the having gone down to a new trial (a), Dorchester assizes, nonsuited the plaintiff, on the ground of an implied deviation or variance of the risk, by an unreasonable delay in the time of sailing. It having been agreed that the plaintiff should stand in the same position as if the question had gone to the jury with a strong direction on the part of the Judge, was unreason able, and discharged the underwriter, although the vessel was of a species which does Bompas Serjt. now moved for a new trial, on the not usually ground that the Judge ought not to have nonsuited, or sail in the to have directed a jury that there had been a variance of the risk by unreasonable delay. There had, in fact, (a) See ante, 79. 153. been winter. 1832. PALMER V. MARSHALL. been no variance of the risk; unless, indeed, to lessen it. The vessel was described in the policy as a yacht; the underwriter was bound to be conversant with the usage as to different classes of vessels; and if so, with the usage as to yachts, which is, to sail only in the summer. As yachts do not go to sea in the winter, the delay from January to May was not unreasonable. And it is clear the risk was not varied, which is the real question, Mount v. Larkins (a),-for the Defendant would not have required a higher premium, if May had been named for the time of sailing instead of January. TINDAL C. J. This was an insurance on the Ruby yacht, at and from Bristol to London. The policy bore date the 28th of January 1831, and the vessel remained in the float at Bristol from the date of the policy till the 17th of May, when she sailed on her voyage, and was shortly afterwards lost. A policy effected in these terms, and in this shape, implies that the voyage insured shall be very shortly commenced, or is, at all events, in the near contemplation of the parties: and when we see that, in the present instance, the voyage was not commenced till the middle of May, we are bound to say that the delay was unreasonable unless it be accounted for. No doubt, whether there has been unreasonable delay or not, is properly a question for a jury; and I take it up, therefore, as if it had been left to the jury, with a strong direction that the delay here was unreasonable. What I have to consider, therefore, is whether any facts have been stated by the Plaintiff to account for this delay. I find none suggested, beyond the circumstance that this vessel was described as a yacht upon the policy, and that yachts are usually laid up in the winter. But if the Plaintiff meant to rely on that, he should have taken a policy (a) 8 Bingh. 195. adapted 1832. PALMER ข. adapted to his purpose. He might have insured his vessel in port for a definite time, and on the voyage to be commenced afterwards; instead of that, he adopts a form of policy from which the underwriter must have MARSHALL. understood that the vessel would sail within a reasonable time. Here the vessel lies by for more than three months, during which, in addition to the risk of the voyage, the underwriter is exposed to the risk of every accident which may happen in port. Where the delay is unexplained, and so great as to fix it with the character of unreasonableness in the mind of every reasonable person, the strongest direction to the jury, and a verdict for the Defendant, would be fully justified. PARK J. I am astonished at the argument which has been used to-day. There never was so clear a case. The risk on a policy at and from Bristol attaches at Bristol, and the language of the policy implies, that if the vessel be ready for sea, she shall sail without delay, unless the delay be accounted for. Here the vessel was lying in the float; and the circumstance of her being a yacht does not constitute any exception to the general rule. If the owner proposed that she should sail only in the summer, he should have insured accordingly, "in port and at sea." After the risk has attached, it lies on the assured to shew why he did not sail; and I offered to leave the question of delay to the jury, with a strong direction, when it was agreed that the Plaintiff should be nonsuited, standing in the same position with respect to the present motion as if the point had been so left to the jury. However, there is nothing in the case. The risk attached at Bristol; and the Plaintiff not having insured "in port and at sea," as he might have done, has given no reason for his delay in proceeding to sea. GASELEE 1832. PALMER V. MARSHALL. GASELEE J. I am of the same opinion. The yacht being afloat at Bristol ought, according to the policy, to have sailed without delay. ALDERSON J. Upon a policy like this, a delay in sailing, in order to be justified, must be a delay incurred for the purpose of the voyage; as in Langhorn v. Allnutt (a), where it was necessary to wait for the purpose of procuring simulated papers, without which the voyage could not be performed; or in Raine v. Bell (b), where the vessel waited for the purpose of taking in provisions. But here the vessel was afloat; no reason connected with the voyage is assigned for her remaining in port; and the risk of the underwriter is materially changed. Instead of the risk of a voyage performed within a reasonable time after the 28th of January, the Plaintiff has substituted the risk of lying in the port of Bristol more than three months, and a voyage at a different time. Rule refused. (a) 4 Taunt. 511. (b) 9 East, 195. April 19. A trader, having been denied to a creditor who called for money, was KEY, Assignee of SHERWIN, a Bankrupt, v. THE question on the trial of this cause was, whether Sherwin had committed an act of bankruptcy. As to which, Willis, a witness produced by the Plaintiff, stated, that he called at Sherwin's house to demand after a little time seen peeping over his wife's shoulder. Upon another occasion, seeing a creditor coming, he retired behind a partition at the back of his shop, and his wife coming forward, said he was not at home: Held, that a jury were properly directed to consider whether the trader "had kept his house; had wilfully secluded himself; that is, had withdrawn himself from a part of the house where he was likely to meet a creditor, to a more retired part." |