1817. LEE 2. MUNN. the sum sought to be recovered was liquidated, and was detained in the hands of the receiver beyond the period when it ought to have been paid. At least it was competent for a Jury to calculate interest in the amount of damages. In this case the defendant had the use of the money. He might have employed it beneficially; and the plaintiffs had been deprived of the fair profits of it. 2. The. expence of investigating the title was incurred as well for the benefit of the vendee as for the vendor; and the plaintiffs were entitled to recover a moiety of this expence, if not the whole. Lens, serjeant, contrà.-The defendant was a mere agent, or stakeholder, between the parties. He had no power or controul over the money; he could not invest it in any public security. He could not trust it out of his hands for the purpose of producing interest, but might be compelled to pay it over at any moment. An auctioneer, wilfully detaining money, might be liable to pay interest. But, at any rate, it should be shewn that the money was first demanded. With respect to the expence of investigating the title, there was no pretence for the demand. The defendant had never made himself a principal in the transaction, and was merely a trustee for both parties. GIBBS, C. J.-I cannot think that an auctioneer, who does not mix himself as a principal in the transaction, but merely receives a deposit, to hold upon the condition, that, in case the purchase be completed, he shall pay such deposit to the vendor, I and if it be not completed, he shall return it to the vendee, is to be charged with interest. know of no case to this effect; and I am sure the practice is the other way. As to the expences of investigating the title, they are foreign to the case. The auctioneer is not liable to pay them. But the question of interest being new, I will reserve it for the opinion of the Court. Verdict for defendant, subject, &c. Pell, serjeant and Lens, serjeant, and for plaintiffs. for defendant. 1817. LEE v. MUNN. 1817. In effecting a policy of insurance, a circumstance of intelligence, inserted in Lloyd's Lists, need not be communicated to the underwriters, how TH FRIERE and Another v. WOODHOUSE. THIS was an action on a Policy of Insurance on the ship Louisitania, from the Brazils to Lisbon, including the common risks. The question was, whether there had been an undue concealment at the time of the insurance. The policy had been effected by the broker, who went to the underwriters, exhibiting a letter from the plaintiffs, in which they stated-" Our ship, the Louisitania, sailed from Maranham to Lisbon, on the 1st of to be presumed September, 1815. We have to request the favour of your effecting an insurance on her account. We are not alarmed at her having been fifty-seven days on her voyage, as there have been many contrary winds. We are, &c." ever important within their knowledge, and to be taken into account. This letter was dated, Lisbon, the 27th of October. No other communication was made to the defendant; but it was in evidence that the plaintiffs had received a letter from their agent at Maranham, dated August 31, 1815, which letter had been brought by another vessel, the Victorioso. The latter vessel sailed from Maranham on the 1st of September, in company with the plaintiff's ship the Louisitania; and arrived at Lisbon on the 17th of October, being ten days before the plaintiff's letter to their broker to insure. The usual passage from Maranham to Lisbon is between 60 and 70 days. It appeared, moreover, by Lloyd's Lists, that between the 1st of September and the 1817. FRIERE 27th of October several vessels, besides the Victorioso, had arrived at Lisbon from Maranham. The plaintiff's vessel was lost shortly after she left and Another Maranham. Best and Vaughan, serjeants, for the defendant, contended, that the plaintiffs had concealed a material circumstance which ought to have been communicated to the underwriters. They should have mentioned the arrival of the Victorioso, which sailed in company with their ship. Their communication to the underwriters was not candid and explicit. Lens, serjeant, and Puller, contrà. The arrival of the Victorioso was in Lloyd's List, which may be considered, for this purpose, equivalent to a special communication to the underwriters. What was commonly known at Lloyd's need not be communicated. BURROUGH, J. This is not a concealment to vitiate the policy. The material facts were honestly disclosed in the letter; and the arrival of the other vessels at Lisbon from Maranham (however important this intelligence might be) must be presumed within the knowledge of the underwriters, from the circumstance of its being contained in Lloyd's printed Lists. What is exclusively known to the assured ought to be communicated; but what the underwriter, by fair inquiry and due diligence, may learn from the ordinary sources of information need not be disclosed. It is, however, a question for the Jury. WOODHOUSE. 1817. FRIERE The Jury, which was a special Jury of merchants, said, that inasmuch as the arrival of the Victorioso and of the other vessels was noticed in Lloyd's List at the time the insurance was efWOODHOUSE. fected, and as these Lists were in the hands of the and Another v. underwriters, they were of opinion that there was no concealment. Verdict for plaintiffs. Lens, serjeant, and Puller, for plaintiffs. Best and Vaughan, serjeants, for defendants. See Durrell v. Bederley, 283, ante; in the note to which the cases are collected, classed, and commented upon, as far as relates to the question of concealment. |