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1816.

CORSEN

v.

DUBOIS.

witness, whose custody is special, cannot be permitted, even if he were willing, to do an act which might prejudice the interest of third persons. This case does not fall within the principle of Amey v. Long. In that case there was one way only to obtain the document wanted. Here the law points out the means.

Lens, serjeant, contra-There has been much litigation on this point, and it would be convenient that the practice were settled. The plaintiff must necessarily subpana the person who has the custody of the proceedings. It would be idle to take any other course. We have discovered the person who has possession of the documents we want; and he is present with them in court. The objection, therefore, that we are informal, is an

swered.

GIBBS, C. J.-Undoubtedly the practice should be settled; and the rule, as it strikes me, ought to be this: the solicitor, who has the custody of any papers, and is regularly called upon by a subpœna duces tecum, should produce them. I think he ought to do so, though the legal custody may belong to others. I do not say that the solicitor has an unconditional power over them, but he ought to produce them, subject to qualifications. If the production were likely to be prejudicial to the assignees, I would then intercept them. But as I cannot see any prejudice to the persons who have entrusted the solicitor with the proceedings, I think he cannot withhold them. In cases like this, the discretion of

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Lens, serjeant, and F. Pollock, for the plaintiff.

Best, serjeant, for the defendant.

The writ of subpœna duces tecum is of compulsory obligation on a witness to produce papers thereby demanded, which he has in his possession, and which he has no lawful and reasonable excuse for withholding; of the validity of which excuse the Court, and not the witness, is to judge. Amey v. Long, 9 East 473. It was likewise decided in the same case, that an action will lie against a party who refuses to produce a paper in his actual possession; and it is no defence, that the legal title to such paper is in another person, 1 Campb. 14.

But if the writing, which a witness is called upon to produce,

would have a tendency to subject him to a criminal charge, or to a penalty, or to any kind of forfeiture, he is not bound to produce it, or to answer any questions respecting it.-See stat. 46 G. 3. c. 37. But he would not be excused from producing a paper in his possession, on the ground that it might subject him to a debt, or to any suit of a civil nature.

The act of parliament iu terms speaks only "of answering questions put to a witness;" but the act must necessarily be extended, by analogy, to the production of written evidence, under the same qualifications which apply to parol testimony.

1816.

SITTINGS AFTER EASTER TERM,

AT WESTMINSTER, 56 GEO. III. 1816.

1. There is no fixed rule of law with

regard to the

time, after

TH

HOUSTMAN v. THORNTON.

HIS was an action on a policy of insurance on a ship and her cargo, at and from Havannah to her port or ports of discharge in Holland or Flanders. The question was, whether the underwriters were bound to pay, on the ground of the vessel being a lost ship. It was in evidence a question of that she was at the Havannah, in August 1815;

which a miss, ing ship shall be reputed to

be lost. It is,

in all cases,

presumption

to be governed that she sailed about the middle of the month on

by the circum

particular

case.

8. If a ship,

stances of the her homeward voyage, and was hailed opposite the Moro Castle. But she had never been heard of, for which the either at Havannah, Antwerp, or any other place, underwriters, from that time to the present. The ordinary dumand is made ration of a voyage from Havannah to the coast of licy have paid Flanders is about seven weeks, The question

(when a de

upon the po

as for a lost

chance to turn

ship, should was, whether from the time which had elapsed she is to be since the ship had been last seen or heard of, it was to be presumed she was lost.

considered as abandoned, and will belong to the underwriters.

Lens, serjeant, for the plaintiff.-The law has not laid down any fixed time within which a ship shall be presumed to be lost. The question will always depend upon the circumstances of the individual case, and must have a reference to the

voyage and navigation. It is a reasonable pre-
sumption that this ship was lost. She sails on her
homeward voyage, which, under ordinary circum-
stances, ought not to exceed two months; and
to the present time she has not been heard of.

1816.

HOUSTMAN

v.

up THORNTON,

Best, serjeant, contrà.-A longer period of time has always been deemed necessary to found the presumption that a ship is lost, and to charge the underwriters on the policy. Eight or nine months only have elapsed. There is no case in which so short a reckoning has been allowed. The ship may have been blown by adverse winds on the coast of America, and confined there during the.

winter months.

GIBES, C. J.-There is no fixed rule of law upon this subject. When the circumstances are laid before a Court and Jury, the presumption will be governed by them. It is to be presumed that this ship is lost, inasmuch as she has not been heard of for nine months. If she be discovered after-. wards, it will be for the benefit of the underwriters. She is, in fact,

belong to them.

abandoned, and will

Verdict for the plaintiff.

Lens and Vaughan serjeants, and Barnewall, for the plaintiff.

Best, serjeant, and Marryatt, for the defend

ant.

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THORNTON.

There is no regulation in the law of England, or by the usage of merchants, fixing a limited time, within which the assured may demand payment for his loss, in case no accounts arrive of the ship upon which the insurance has been effected. Indeed, the question of reasonable time is incapable of being fixed by any settled rule, and thus every case must be considered upon its peculiar circumstances.

In Spain and France, there are express regulations on the subject. 1 Magens, 33. By the ordinances of Spain, if any ship, insured on a voyage from or to the Indies, be not heard of within a year and a half after her departure from her port of loading, she is to be deemed lost. By the French ordinances, if the assured receive no news of his ship, he may, at the expiration of a year for common voyages, reckoning from the day of the departure, and after two years, for those at a

greater distance, make his ces➡ sion to the underwriters, and demand payment without being obliged to produce any certificate of her loss.-See Pothier, Traité du contrat d'Assurance, chap. 3. sec. 1.

Though the time of a ship's sailing is not, in general, a circumstance necessary to be communicated to the underwriters, (Foley v. Moline, 1 Marshall, 117.) yet, in case of a missing ship, where a loss is to be inferred from the want of intelligence, it must be proved that the vessel set sail upon the voyage mentioned in the policy. Cohen v. Hinckley, 2 Campb. 51. For this purpose, the production of the convoy bond or of the charter-party, or a licence for the voyage insured, is prima facie evidence, 2 Campb. 70.

It is not necessary to shew that the vessel has not been heard of at her port of destination. It will be sufficient if no intelligence have reached this country. Twemloy v. Oswin, 2

Campb. 85.

But the insurer may prove affirmatively that intelligence has been received.

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