Page images
PDF
EPUB

Lens, serjeant, and Marryatt, for the plaintiff.

1816.

DURRELL

| Best and Vaughan, serjeants, for the defendant. and Another

BEDERLEY.

Upon those principles of certain account of it; for if good faith which should govern this had been discovered, the all contracts of insurance, the underwriters would not have assured is bound to communis insured at so small a premium; cate every species of intelli- but would either not bave ingence that he has, which may sured at all, or at a higher affect the mind of the under- premium; therefore, he thought writer in either of these two that the concealment of this ways. 1. As to the point, intelligence was a fraud. Dawhether he will insure at all. costa v. Scandrett, 2 P. Wms. 2. As to the point, at what 170. premium he will insure. There So, in Seaman v. Fonereau, are some old cases, upon the 2 Str. 1183. Two days before subject of concealment, which the subscription of the policy, have never been shaken; the plaintiff's agent received a though, as we shall shew, some letter to this effect : “ The reasonable qualifications have 12th of this month I was in been engrafted upon them. company with the ship Davy, ¿ We shall first consider what (the ship in question); at 12 concealments will vitiate the o'clock in the night lost sight policy; and, secondly, what of her all at once; the captain disclosures are unnecessary. spoke to me the day before

1. A merchant, having a that he was leaky, and the doubtful account that a ship, next day we had a hard gale." like his, was taken, insured her The ship, however, continued without any communication to her voyage till the 19th, when the underwriters ; Lord Mac. she was taken; and there was clesfield, Chancellor, held, that no pretence of any knowledge be ought to have disclosed what of the actual loss at the time intelligence be bad of the ship's of the insurance. This letter danger, and which might in- was not communicated to the duce him, at least, to fear that underwriter. The Chief Jus, she was lost, though he had no tice (Lee) held, that the letter

18!6.

ought to have been disclosed; stating the ships' names, the

for either the defendant would Court of C. P. held, that the DURRELL not have underwritten, or have concealment avoided the poand Another insisted on a higher premium. licy, though the rumour was

So, in Willes v. Glover, i New false. 3 Taupt. 37. See like. BECERLEY.

Rep. 14., the contents of a wise IVebster v. Fosten, 1 Esp.
letter, which stated the pro- 407. Fillis v. Brutton, Park.
bable time of the ship's sailing, 250. Ratcliffe v. Schoolbred,
were withholden from the un- Marsh. 488. Lyncli v. Duns-
derwriters; and, although that ford, in error, 14 East 495.
expectation was not correct, as Sarolell v. London, 5 Taunt.
the ship did not sail till several 363. Gladstone v. King, 1 M.
days afterwards, yet it was and S. 35.
deemed a material conceal- The same rule applies to po-
ment.

licies of every other descripSo, in Beckwaile v. Nalgrove, tion. In contracts of chance, MS. Guildhall (cited 3 Taunt. the circumstances of every case 41.), the plaintiff concealed should be fully and fairly disfrom the underwriters the fact closed. Therefore, where A., that he had received a letter abroad, having two warehouses, from the Cape of Good Hope, wrote to this country to effect stating that there were then two an insurance upon one of them or three French privateers in only, without stating, as was those seas;

and, upon the the fact, that a house nearly ground of that concealment, he adjoining it had been on fire was nonsuited. So, in Lynch v. on that evening, and that there Hamilton supra, it was held that was danger of the fire again the owner was bound to com- breaking out, and sent his letmunicate to the underwriters ter after the regular post time; any intelligence he had, which and the fire, having broken out might affect his choice, whether on the next day but one folhe would insure at all, and at lowing, consumed A.'s warewhat premium he would insure; house; it was held to be a whether the fact was true or material concealment, though false. Therefore, where some A.'s letter was written without ships were advertised to be in any fraudulent intention. Buff danger, and the insurer effected v. Turner and Others, 2 Marsh. a policy on “ship or ship," Rep. 46. knowing that the ship in dan. ger was one of them, without

Although, at the time of ef. 1816. 2. As to what disclosures are fecting the insurance, the unnot necessary

derwriter is entitled to be in- DURRELL The assured is not bound to formed of all the circumstances and Another communicate any fact which relative to the actual state of

Bederler. the underwriter may be pre- the vessel, it is not necessary sumed to know equally with that he should be apprised of himself. In Vallance v. Dewar, all the calamities which have i Campb. 503, Lord Ellenbo- previously befallen her in the rough thus lays down the rule course of the voyage. Freeof disclosure—“ The rule is, land v. Glover, 6 Esp. 14.' that the broker must commu- 7 East 457. Acc. Schoolbred nicate what is in the special v. Nutt, Park. 300. S.C. Mar. knowledge of the assured, bot shall 475. what is in the middle between And the broker is only them and the underwriter. He bound to communicate facts to is not bound to make a labo- the underwriters, and not the rious disclosure of what is opinions and apprehensions ocknown to all.” Therefore the

casioned by those facts. Bell underwriters are bound to v. Bell, 2 Campb. 475. The koow the nature and circum- particular circumstances of that stances of the branch of trade case, however, distinguish it to which the policy refers; and from

from Lynch v. Hamilton, if the usage is general, it makes supra. no difference that it is not uni. The non-communication of form. See Kingston v. Knibbs, the damaged state of goods 49 Geo. III. Sittings after M. shipped, from which danger is T. i Campb. 508. Pelly v. likely to ensue, does not viRoyal Exchange Assurance, 1 tiate the policy, where these Barr. 341. Tierney v. Ether. circumstances are unconnected ington, ibid. 348. Lyons v. with the cause of the loss. Bridge, Doug. 512. Iloskins Boyd v. Dubois, 3 Campb. 133. v. Pickersgill, Marsh. 727.

1816.

Hastings and Others v. WILSON and Others.

[ocr errors]

put up the pre- rent.

found a pur.

Assignees THE plaintiffs sued as executors of Sir Elijah are not concluded by

Impey, Knt. deceased : the defendants were putting up the premises to assignees of Milton, a bankrupt. sell : they may make an experiment to see This was an action of covenant for rent; and the if the lease be beneficial; question was, whether the defendants, in the cha. but, in a case where they racter of assignees, were liable to the payment of mises to auc

rent. The plaintiffs charged them as assignees of tion, and

the term, by derivation from the first lessee Milton. chaser, and Milton, who had occupied the premises in quesreceived a de posit; but the tion, became a bankrupt in April 1815, when the

defendants were chosen assignees. They paid a off, without quarter's rent, and on the 8th of June put up the the assignees premises to auction ; the premises were knocked shewing any reason why down to a purchaser for 4001., who immediately they did not enforce the paid a deposit of 991. Owing to some cause which sale: Held, that they were did not appear in evidence, but which was alleged payment of by the plaintiffs' counsel to have been a misdesignees of ali scription of the premises, the purchaser refused to the estate, and complete the contract, and the purchase money interest, &c. of the bank was returned. In February, 1816, the premises rupt, in the premises." were again put up to auction, when, no purchaser

offering, they were bought in by the assignees.

contract of sale after. wards went

liable to the

Best, serjeant, for the plaintiffs, contended, that under these circumstances the defendants were liable as assignees of the term. He admitted that assignees had a reasonable time to decide whether

[merged small][merged small][ocr errors]

they would take the lease of which they find the bankrupt possessed, or not. That the mere act of putting the premises up to auction would not make the assignees liable ; but in the present case a purchaser was found and accepted, and it was their fault that the premises were not sold: at all events, after the first treaty went off, they ought to have delivered up the premises ; but they make a second attempt nine months after. How long a time were assignees to claim for their election, and to keep the landlord of premises without his rent in a state of uncertainty ?

Vaughan, serjeant, contrà, relied on Turner v. Richardson, 7 East 335. It was admitted in that case that assignees might make an experiment to see if the lease were beneficial : if they were concluded, by a mere offer of sale, their situation would be most perilous. There was no material distinction between the present case and the one cited. A purchaser was indeed found; but he is stated to have made an objection : that objection might be reasonable, and not imputable to any misconduct in the assignees. If the mere offering to sell had been holden not to conclude the assignees, neither ought they to be concluded in a case where, after the offer to sell, the bidder has not perfected his bidding

GIBBS, C. J.-I am of opinion that the assignees are bound under the circumstances; I have no evidence to satisfy me why they did not enforce the contract of sale. They put up the premises to auction, find a purchaser, and receive a deposit.

« PreviousContinue »