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mined, that an English subject, lue of it in trover against the 1815. in time of war, informing the pawnee, on tendering to the broker that the property in factor what is, due to him, WESTWOOD sured was neutral, was suffi. without any

tender to the

Bell and cient indication to the broker pawnee. Daubigny v. Duval,

Another. that the party acted as agent, 5 T. R. 514. It is clear, and not on his own account, however, that a sub-agent canand that therefore the rights of not acquire the broker's genethe principal could not be ral lien, because a lien is a affected by the state of ac personal right, and cannot be counts between the agent and transferred. Vide M Combie the broker. If a factor pledge v. Dávis, 7 East, 6. Man v. the property of his principal, Shifner, 2 East, 523. 529. the latter may recover the ya.

1815.

Austin and Another v. DREWE.

gainst fire) is effected on the

house, the dif

omitting to

A policy of in COVENANT on a policy of insurance against

fire, on the stock and utensils in the plaintiffs' stock and uten- sugar house. The declaration averred a damage

their by fire on the 8th December, I 13. The defendferent storiese ant pleaded, that the damage was occasioned by heated by a

the negligence and improper conduct of the chimpey run. ning up to the plaintiffs and their servants, in regulating and negligence of managing the fires in their sugar house; and that the plaintiffs the stock and utensils were damaged by the smoke servants, in

arising from such fires; without this, that they were open the register, the heat is damaged by fire in the sugar house within the increased, by meaning of the policy. means of which large quantities of the sul

The plaintiffs were sugar bakers. The sugar garare spoiled; but no damage house contained eight stories, in each of which were was occasioned to any thing raw sugars undergoing preparation. In order to and no greater convey heat throughout the premises, there was a than on ordi. chimney which formed nearly one side of the house, sionsheldalong which a flue ran, for the purpose of commuthat this was nicating warmth to each room. In one of the in the policy. stories was a register, which was shut at night, when

the fires were extinguished. On the day when the damage took place, the plaintiffs’ servant had lighted the fire in the morning without opening the register; by these means the several rooms were filled with sparks and smoke; the sugar was damaged by the excessive heat, and some of the syrup spoiled ; the beams and cieling in the upper stories were blackened, and the walls a little blistered. No

1815.

damage of moment was occasioned to any thing but the sugar; there was no greater fire than was

Austin and ordinarily used for the purposes of

sugar baking,

Another and no part of the substance of the premises was

DREWE. injured by fire.

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Vaughan, serjeant, for the defendant, contended, that this was not a damage by fire within the meaning of the policy.

The Solicitor General, contrà.

GIBBS, C. J.-I am of opinion that this is not a loss within the policy. No greater fire existed than was necessary for the purposes of the business. By omitting to open the register, heat and smoke have been forced into the rooms where the sugars were preparing; the heat produced the mischief: no sensible damage resulted from the smoke and sparks, and the occasion which produced the excess of heat was not a fire against which the defendant had undertaken to indemnify the plaintiffs. The servants had neglected to open the register. What is this but a bad management of their own machinery? The fire is where it ought to be; no more than it ought to be. But it received a false direction by the irregular and improvident conduct of the plaintiffs? servants. As no substance, therefore, was taken possession of by the fire, which was not intended to be fuel for it; as the sparks and smoke caused no mischief, but as the damage arose from an excess of heat in the rooms, occasioned by the register being shut, I

1815. am of opinion, that the plaintiffs are not entitled to

recover. AUSTIN and Another

The jury found a verdict for the defendant. DREWE.

The Solicitor General, Lens, serjeant, and Gaselee, for plaintiffs.

Vaughan, and Copley, serjeants, and Tindall, for defendant.

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In the ensuing term the questionably be answerable in Solicitor General moved to set

such a case.

The spirit of the aside the verdict, but the Court decision of the present case is concurred in the opinion of the this : that there was no loss by Lord C. J. as expressed at fire, by whatever cause or misthe trial.

conduct produced. The inIt is not to be concluded jury arose from the misdirecfrom this case that an insurer tion of heal, occasioned by the a policy against fire is

unskilful management of the exempt from a loss occasioned machinery in the sugar house. thereby, on the ground that It was not, therefore, in any the servants of the assured have fair and reasonable construc. been careless or unskilful, and tion of the policy, one of those that the fire was occasioned by accidents against which the their negligence and miscon- defendant had engaged to in. duct. An insurer would un- demnify the plaintiff's.

on

1815.

GREGG and Another v. Scott.

held not to

CTION on a policy of insurance on the Jonge

A license

granted to a Grief, at and from London to her port of ship to sail in discharge in Holland, or the Ems. In the first London to Hol

land (which count the interest was averred to be in the plain

country was at tiffs ; and there were other counts averring it to that time on a be in one Wiger Harmens, who resided in Hol- lity) notwith

standing any land, and to whom, in fact, the vessel belonged. thing containThe loss was capture by a French privateer. jestv's Order

of Council of The ship had been taken and the papers with

April 1809, it'; the first license, therefore, was lost; but a

protect a ship second had been obtained, and was produced. It which was the

property of an bore date the 5th July, 1810, and was granted to alien enemy. the vessel on the petition of the brokers, who had therefore, ou obtained the first license on a similar petition. The

sich vessel is license was to the vessel to sail in ballast from London to Holland, &c. notwithstanding any thing contained in his Majesty's Order of Council of April, 1809. The petition, upon which the license was granted, was not produced.

The Solicitor General and Spankie, for the defendant, objected; that this license did not protect a vessel owned by an alien enemy at that time resident in Holland. It might be desirable to license neutrals; but helligerents were differently circumstanced. In 1810, the coast of Holland was in a state of blockade; we were then at war with that country; the object of the license VOL. I.

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