« PreviousContinue »
Innes (a), the risk on a policy at and from Algoa Bay 1831. to London, was held to attach only when the ship was
PALMER in a condition to take in her homeward cargo at Algoa Bay. Here the jury have found that there was no MARSHALL. variation of the risk, which distinguishes the case from
(a) WILLIAMSON v. INNES.
Sittings in London. Exchequer. 13th May 1831.
Coram LYNDHURST C. B.
Assumpsit on policy, on freight at and from Algoa Bay and Table Bay, both or either, to London,
Declaration stated that the ship had arrived, and was in good safety, at Algoa Bay, that a homeward cargo was ready for her under her charterparty, and that before it was put on board she was lost by perils of the sea.
Plea, general issue.
At the trial, the captain proved his arrival at Table Bay; the discharge of that part of the cargo which was destined for that place ; and that he took in about sixty tons of goods for Algoa Bay, where he arrived on the 30th of September, and came to anchor. Till the 8th of October he was engaged in discharging his outward cargo, but on that day he gave orders that no more of the outward cargo should be discharged till some of the homeward cargo should be on board, as his load was reduced to about seventy tons, which, in his judgment, was necessary for the safety of the ship, of 144 tons register; and he intended to take in, the next morning, part of the
homeward cargo, which was Homeward ready for him.
policy on Before that time, however, the freight, at and ship was lost in a hurricane, from Algoa,
For the Defendant, it was arracheal contended, that at the time of the when the ship loss, the ship was not in a state is at A. in a to begin to take in her homeward condition to cargo, and consequently that the begin to take voyage at and from Algoa Bay in her home. had not commenced.
ward cargo. Several captains of vessels were called, who stated that, in their judgment, thirty tons were quite sufficient to keep in the ship for her safety, and that with seventy tons of her outward cargo on board she could not be ready to take in her homeward cargo.
Lord LYNDHURST C. B. told the jury that if the ship was in a condition to begin to take in her homeward cargo, the Plaintiff was entitled to recover; if not, then the verdict ought to be for the Defendant.
Verdict for the Plaintiff.
F. Pollock and Cresswell for the Plaintiff,
Campbell and Maule for the Defendant.
Mount v. Larkins (a), where it was expressly found that that there had been unreasonable delay.
Tindal C. J. This cause must be sent down to another jury. The learned Judge who tried it, did not state accurately the time at which the risk attached. The policy was at and from Bristol to London ; and though there are excepted cases in which the risk would not attach on such a policy until the time of sail. ing, as where a ship is not finished, or is undergoing a course of repair at the time the policy is effected, yet. here, where the vessel was lying in port, complete and ready for sea, the risk on the policy could only commence from its date. Besides this, the evidence was not complete as to the agency. The statute 25 G. 3. c. 44. requires that the names of persons interested shall be inserted in the policy, or the names of persons who shall effect the same as agents for persons interested. And the declaration states, that the Plaintiff, by M Ghie and Page, his agents in that behalf, caused to be made a certain policy of insurance; but the evidence only amounts to proof of the Defendant's subscription, and the Plaintiff's interest in the vessel. No proof was offered that M Ghie and Page were his agents.
GASELEE J. In Vallance v. Dewar, and other cases where the risk on policies at and from a place has been held not to attach till the time of departure, there has been evidence of a particular usage to that effect. But there is no evidence to take this case out of the general rule. The direction to the jury, therefore, was not correct. As to the proof of agency, the admission at the trial proved nothing more than the handwriting of the Defendant.
(a) Post, 108.
Bosanguer J. I am of the same opinion. In poli 1831. cies at and from a given place, the risk attaches' while
PALMER the vessel is at the place, unless in certain excepted cases, of which this is not one. The risk here attached MARSHALL. on the vessel as long as she was at Bristol. Williamson v. Innes was a policy on freight, which could not take effect till the cargo was on board. Here, also, there was an entire failure in the proof of agency. It was not sufficient to prove the Defendant's subscription of the policy; the Plaintiff was bound to shew for whom M Ghie was agent.
W ILDE Serjt. obtained a rule nisi to allow the Where nearly attorney in this cause the costs of taxing his bill; .
'; taken off an less than a sixth having been taken off. The claim had attorney's bill been made, and disallowed by the prothonotary. upon taxation
the Court re
fused to allow Andrews Serjt., who shewed cause, objected, that him the costs upon an amount of 1841. 14s. 8d., 25l. 14s. 8d. bad of taxation. been taken off, being nearly a sixth; that the applicant had received the amount of his bill since taxation; and that therefore the application was too late. Whitfield v. James. (a)
Wilde. In Whitfield v. James the attorney omitted to claim the costs at the time of taxation. In Barker
v. Bishop of London (a) it is said, “ By statute 2 G. 2. c. 23. s. 23., if a sixth part of an attorney's bill be deducted, the Court are not left to their discretion, but are obliged to award' costs of the taxation against the attorney; where a sixth part is not deducted, the Court are left to their discretion. The statute is a good guide; what it directs in one case seems to be a right rule in the other : ever since the statute, costs of taxation have been reciprocally given to the party charged, and to the attorney, as a sixth part has, or has not, been taken off.” By the statute, too, the discretion is reposed in the Court according to the reasonableness or unreasonableness of the bill; and it is not alleged here that the bill is unreasonable.
Tindal C. J. The act of parliament says, that if less than a sixth part of the bill be taken off upon taxation, the Court at discretion may charge the attorney or client with such costs according to the reasonableness or unreasonableness of the bill. This is a case in which the Court may exercise its discretion; and if the amount taken off the bill approaches so nearly to a sixth, we ought not to be called on by an officer of the Court to allow the costs of taxation.
(a) Barnes, 147.
PARKER and Others v. Booth,
U PON a rule calling on the Plaintiffs to shew cause Practice. why the time for returning the fi. fa, in this case Pro
sheriff. should not be enlarged till the sheriff should be indemnified by one of the parties, the Court made the following order, being the first proceeding under the statute 1 & 2 W. 4. C. 58. for the protection of the sheriff:
“Upon reading a rule made in this cause, Monday, 14th of November instant, the affidavit of Henry Broomhead, gent., and the affidavit of Andrew Duncun, gent., and upon hearing counsel as well for the sheriff of the county of York as for the Plaintiffs, it is ordered, that the said sheriff do pay over to the Plaintiffs the money levied under the writ of fi. fa. issued in this cause, minus the poundage, upon the plaintiffs giving security, by bond or otherwise, to the satisfaction of one of the prothonotaries of this Court, that they the said Plaintiffs will pay over such sum of money to the assignees when chosen under the commission of bankrupt issued against the Defendant, provided such assignees shall be found entitled to the same; or, in case the said Plaintiffs shall not give such security as shall be satisfactory to the said prothonotary, then that the said sheriff do pay the said sum of money into the hands of the prothonotaries of this Court, to abide the event of the question as to who is entitled to the same. And it is further ordered, that the question as to who is entitled to the said sum of money be tried by a feigned issue, in which the said assignees of the Defendant are to be Plaintiffs, and the said Plaintiffs are to be Defendants; and that the questions of poundage and costs are to be reserved until the event of such issue. And it is further ordered, that all further proceedings against the said