1831. WALFORD fendant, could only apply, as it was contended on the part of the Defendants, to a close of the Defendant Cooke, he being the last named Defendant, and thereANTHONY. fore the only one to whom the participle said could refer. V. The learned Judge was of this opinion; but offered to go on with the trial if the Plaintiff would apply himself to the merits of the disputed right of way, instead of taking a nominal verdict for the mere excess in the assertion of it. These terms were declined, and the Plaintiff's counsel elected to be nonsuited for the alleged variance. Stephen Serjt. obtained a rule nisi to set aside the nonsuit, contending that the word said did not necessarily refer to the last named Defendant, and that it might be applied to such one of the three as the case required; and he urged that the expression said Defendant was an ambiguity on the face of the declaration, of which no advantage could be taken except by way of special demurrer. In cases Jones and Merewether Serjts. shewed cause. like the present the word said has always been held to refer to the last antecedent, in order to avoid the inextricable ambiguity which would otherwise present itself. Thus in Morgan's Case (a) the indictment, which was in Somerset, stated that Thomas Morgan nuper de D. in com. Dorset. gen. apud W. in comitat. prædict. did strike and kill Turberville; and the indictment was held void because prædict. must be intended in Com. Dorset, which was last mentioned. In Pollard v. Lock (b), in an information against Lock, two Locks being named, the prædict. was held to refer to the (a) Cro. Eliz. 10I. (b) Cro. Eliz. 267. latter. 1831. WALFORD V. latter. Rex v. Griepe (a) was ruled on the same principle, and in Childe v. Towers (b), where the venue was laid in Warwickshire, and the plaintiff declared that the defendant being possessed at Norton, in the ANTHONY. county of Northampton, assumed apud Stonely in com. prædict., and the venire facias was awarded de Stonely in com. War.; it was held a mis-trial, for apud Stonely in com. prædict. shall be intended in com. North., which is last named. [Alderson J. In R. v. Moor Critchill (c), where two counties were named in an order of removal, it was held, that the word said did not refer to the last.] That case was decided on the ground that the jurisdiction of magistrates ought to appear without ambiguity. Stephen. Morgan's Case was over-ruled by Sherley v. Sackville. (d) And Pollard v. Lock, R. v. Griepe, and Childe v. Towers, were ruled on the ground of ambiguity, not of variance. It is clear that prædictus does not necessarily refer to the last antecedent, though it is otherwise as to the word idem. Co. Litt. 20 b. TINDAL C. J. The question is, whether there has been a variance in this case, or a defective and ambiguous description; and I think the objection on the record is of the latter, and not of the former class. The Defendants, three in number, are put together under one appellation by the term Defendants. That is a modern practice; for the old course was to name each individual, and if that course had been pursued, the present difficulty would probably never have occured. The declaration then states, that a trespass was committed in a close abutting on a certain close of the said Defendant. (a) Ld. Raym. 261. (c) 2 East, 66. That 1831. WALFORD V. That would have raised a doubt in the mind of any one perusing the record, and I should have said immediately, "Which Defendant?" But it would also have ANTHONY. given a very inconvenient latitude to the party proceeding to trial; for he might have selected the close of one or the other of them, as should appear best to suit his purpose. If all the three Defendants had been named through the record, the doubt would only have been more prominent. If we could read it "the close of the said Defendants,” it would be an undisputed variance; but, as it stands, it is rather an ambiguity, and a nonsuit on the ground of variance cannot be supported. As there was, however, on the part of the Plaintiff's counsel, something like a desire to be nonsuited, we think the costs of the nonsuit should abide the event of the new trial, the Defendants being permitted to suffer judgment by default on the new assignment. GASELEE and BOSANQUET JS. concurred. ALDERSON J. A variance can only be where there is a clear discrepancy between averment and proof. If there is an ambiguity in averment, the difference cannot be clear, because the proof may be true in one sense. In the authorities cited from Cro. Eliz., the difficulty was occasioned by the mention of one county in the margin, and a different county in the body of the record, and it was held, in conformity with all the decisions, that the county in the body of the record is that to which the proceedings properly have relation. But in Bishop v. Grant (a), where, in error, upon an assize of rent-seck, the Plaintiff made title to rent granted, to be paid yearly at the four feasts, Christmas, Annunciation, St. John the Baptist, and Michaelmas, and shewed (a) Cro. Eliz. 324. rent 1831. WALFORD V. rent arrear for four years at the Annunciation last past, which Plaintiff demanded in crastino prædict. festi Purificationis, the error assigned was, that no feast of the Purification is mentioned before, so that it appeareth ANTHONY. not that the demand was after the rent was due; Foster moved that the word "Purification" shall be void and surplusage; but Gawdy said, " although the word ' Purification' be void, yet prædict. festum cannot refer to the last feast, for there are divers feasts mentioned, so it cannot be referred to any one certain. Rule absolute. PALMER V. MARSHALL. Nov. 25. from Bristol THIS HIS was an action on a policy of assurance for A policy on 1500%. on the yacht Ruby, at and from Bristol to ship at and London. The policy bore date the 28th of January to London, at1831. The declaration stated, that the Plaintiff had effected it by M'Ghie and Page, his agents in that behalf, and averred a loss by being run down by another vessel through the violence of winds and waves. taches during the vessel's stay at Bristol; therefore, where the assured did not sail till three months after the exe cution of the At the trial before Taunton J., last Dorchester assizes, it appeared that the Ruby, a yacht of thirty-seven tons, not coppered, at the date of the policy was lying in the float at Bristol, where she continued till the 17th of May, policy, Held, when she commenced her voyage round the Land's End, and was run down off the Start on the 21st of May. that the delay was a material variation of The Defendant's subscription to the policy was ad- the risk. mitted, and it was shewn that the Plaintiff was the only person interested in the vessel: but there was no express proof that M'Ghie and Page were the Plaintiff's agents. The 1831. PALMER V. MARSHALL. The omission of this proof was objected to on the part of the Defendant, as a fatal defect in the Plaintiff's case, but the objection was overruled. It was also objected, that the voyage having been deferred for so long a time after the date of the policy, the risk contemplated had been essentially varied, and that the Defendant was, therefore, discharged by a quasi deviation; but the learned Judge held, that upon this policy the risk did not attach till the vessel commenced her voyage, and left it to the jury to say whether the vessel had been lost in the voyage intended. The jury found for the Plaintiff, and also, that the risk had not been varied. Wilde Serjt. obtained a rule nisi to set aside the verdict, on the two objections urged at the trial, and also, as against evidence. Merewether Serjt. shewed cause. The proof that no other person was interested in the vessel, connected with the statement on the policy subscribed by the Defendant, that it had been effected by M'Ghie and Page as agents, is sufficient evidence that they were agents for the Plaintiff. As to the alleged deviation, or variation of risk, the learned Judge correctly left it to the jury to say whether the vessel had been lost in the course of the voyage intended; for upon insurances at and from a given place, the risk only attaches when the vessel is ready to begin her voyage from the place specified. Thus, when ships are engaged on the banks of Newfoundland in the pursuits which are termed banking, the risk on a policy on ship at and from Newfoundland to Europe, attaches only from the time when the banking ends. Vallance v. Dewar. (a) So, in Williamson v. (a) 1 Campb. 503. |