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1816.

BELĮ and Others

defendant, contended, that the assured were bound to abandon ; the ship existing in specie. Although there was no dock at Limerick, that circumstance could make no difference. They have sold the vessel without giving notice of abandonment. They cited Martin v. Crockait, 11 East 465.

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Best and Copley, serjeants contrà.—The principle is this; if the ship exist as a ship, there must be an abandonment; but in the present case no abandonment was necessary. The ship did not exist as a ship. She did not subsist as the same sort of thing which she did previous to the voyage. This is not a case of the mere suspension of the voyage. The ship was destroyed. The only necessity of abandonment is where the ship remains capable of performing the functions of a ship ; and where the voyage is merely interrupted by the perils of the sea. In this case the ship was in effect destroyed. She was entirely and perpetually gone.

Abandonment cannot alter the relative rights of the parties. Abandonment is not necessary in the case of a wreck. The loss here was, in substance, a wreck.

Dallas, J.--I shall not nonsuit the plaintiffs on this objection. The assured has a right to abana don under certain circumstances ; and, in some cases, he may claim a total loss without abandonment. But, if the case be doubtful, the assured ought not to take upon himself to determine for the underwriters; to break up the ship; and to call upon them for a total loss. I think that he

1816.

BELL and Others

Nixon.

She was

should, in this instance, have communicated to the underwriter the state of the vessel. The ship is proved to have been in that condition that it was necessary to have a survey. Examination and judgment were therefore applied to determine what it was expedient to do. The arguments by which this ship is represented to be a wreck proceed upon a fallacy.

not a wreck. Her timbers were together; she existed as a ship specifically, both when she was surveyed, and when she was sold; and it is not because there was no dock at Limerick to receive her, and because she is found to contain rotten timber upon breaking up, that she is to be represented as a wreck. If her planks and apparel had been scattered in the sea it would have been another question. I will not nonsuit; but I have a very strong opinion against the plaintiffs.

The case then proceeded on the question of sea-worthiness

upon

which nothing material arose; but the plaintiffs ultimately had a verdict upon two points :- 1. That a notice of abandonment had been given to the underwriters, of which fact the plaintiffs gave some slight evidence. 2. That the vessel was not unseaworthy.

Best, and Copley, serjeants, and Campbell, for the plaintiffs.

Shepherd, S. G. Vaughan, serjeant, and Spankie, for the defendant.

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1816.

KEMBLE and Others v. ATKINS and Another.

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THIS was a special action of assumpsit brought

against the defendants for not accepting a quantity of sugar, which the plaintiffs, as brokers, should insert had purchased for the defendants,

principal in a

1. It is not necessary that a broker

contract which he makes for him. It is suf.

a contract

violation of the

The declaration stated the contract in several ficient, if, upon ways: Ist, That, in consideration that the plain- his contracttiffs, as agents and brokers for the defendants, book, he be would purchase the sugars, the defendants under- duce it, and

the pame of his took to receive and pay for the same.

principal be recorded there.

2. Semble, if 2d, That, in consideration of the purchase, the a broker make defendants undertook and promised the plaintiffs, contrary to the

regulatious of as their brokers and agents, to pay for the same. the city of

London, and in 3d, That, in consideration that the plaintiffs, at which he has the request of the defendants, would purchase entered with fifty-seven hogsheads of sugar, at and for a rea- Aldermen,'&c. sonable price, &c., the defendants undertook and fore disquali. promised the plaintiffs to re-purchase the same bringing an from them at the price the plaintiffs should have action on a given for the same. Corresponding breaches made, in con

travention of were assigned to the special counts; and the de- his duties

under the claration likewise contained the common counts, bond. The

remedy

against him is The defendants pleaded the general issue. The an action for circumstances of the case were these. The plain- the bond, and tiffs are eminent brokers in the West India trade, not, ipso facto,

3. The course of dealing between the principal and the broker may authorise the latter to make contracts for the principal, in his (the broker's) own name, which will bind the principal to a performapce.

void.

1816.

and the defendants liad been in the habit of ent

ploying them to make purchases. On the 21st of KEMBLE and Others

December 1815, one of the defendants, with Mr. v. Kemble the plaintiff, went to the sale room of ATKINS and Another.

Messrs. Woodhouse and Co. They selected fiftyseven hogsheads of sugar, the property of Messrs. Peat, Litt, and Steel; and Mr. Litt, one of the proprietors, being present, the price was settled, and the bargain struck. Mr. Litt expressed a disinclination to make any contract with the defendants; accordingly, the contract was made between Messrs. Peat, Litt, and Steel, and the plaintiffs, as if they (the plaintiffs) were the buyers ; although Mr. Lilt was aware at the time that they only acted as brokers. The plaintiffs having effected the contract, delivered to the defendants the following bought note :

“ 21st December, 1815. Bought for John Atkins, Esq. and Son, of William Peat, Litt, and Steel, (in our name,) 57 hogsheads of Jamaica sugar, at 86sh.—Dock tare.—No duty.

Thomas Kemble, Son, and Co."

This contract note was sent by the plaintiffs to the defendants in a letter on the day on which it bore date. In the letter they stated, that the reason why they had the contract made out in their own names was, that Mr. Litt had refused permission to his broker, Mr. Woodhouse, to make out the contract in the defendants' names, conceiving that he was selling to the plaintiffs; and, on that account, he had let them have the sugar at a lower price.

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