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Held, in an action on the policy, that the assured was bound to abandon before he could call upon the underwriters for a total loss, the ship not being a wreck, but, however maimed and damaged, existing in specie as a ship. Bell v. Nixon. Page 423 12. It is the duty of the assured, not only to communicate to the underwriter articles of intelligence which may affect his choice, whether he will insure at all, and at what premium he will insure; but, likewise, all rumours and reports which may tend to enhance the magnitude of the risk.

The opinion of underwriters, whether, upon certain facts being communicated to them, they would have insured or not the particular voyage, cannot be received as evidence. The materiality of the intelligence or rumours, which the assured is charged with having suppressed, is a question for the jury, under the circumstances of the case, and ought not to rest upon the opinion of mercantile men. Durrell v. Bederley. 283 13. A policy of insurance is altered by striking out the words in the body of the policy, which contained a warranty to sail at a certain time, and inserting a memorandum of an enlarged time in the margin. Some of the underwriters consented to the alteration, but the defendant did not consent. In an action upon this policy, Held, that the alteration did not avoid

the policy. Sed quære. Fairlie V. Christie.

331

679

And see Memoranda 14. Sugars are insured, free of particular average. The whole cargo, consisting of 54 hogsheads, is so far damaged by sea-water, that the amount of what is safe and

undamaged, as collected from the several hogsheads, does not exceed one entire hogshead. In an action against the underwriter for a total loss,-Held that the memorandum in the policy, free of particular average, protected him from all liability. Hedbergh v. Pearson.

Page 349 15. There is no fixed rule of law with regard to the time, after which a missing ship shall be reputed to be lost. It is, in all cases, a question of presumption to be governed by the circumstances of the particular case.

If a ship, for which the underwriters, (when a demand is made upon the policy,) have paid as for a lost ship, should chance to turn up, she is to be considered as abandoned, and will belong to the underwriters. Houstman v. Thorn

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on board the Pearl, from Gibraltar to Dublin; and in the conclusion of his letter adds, "I take the risk on myself from this (Malaga) to Gibraltar Bay, where I shall send my letters on shore." Held, that the broker was liable to an action for negligence, in not stating in the policy that the goods were loaded at Malaga. Park v. Hammond. Page 80

INNKEEPER.

1. An innkeeper who has a licence to let post-horses, is not bound by the common law to furnish them to a traveller, though he have a chaise and horses at liberty at the time of the application, and though a reasonable price be tendered to him for the hire. Dicas v. Hides.

307

2. If a guest demand, and have exclusive possession of a room, for the purpose of a shop or warehouse, he exonerates the landlord from any loss he may sustain in the property which he keeps in that apartment: but if he have not an exclusive possession, the landlord is liable. Curtin v. Packwood. 209

INTEREST,

See ASSUMPSIT, 6.

JUSTICE OF PEACE.

1. A person who has qualified for the office of a justice of peace, and acts as such, must have a clear estate of 100l. per annum, in law, or in equity, for his own use, in possession.

2. In an action against a person for the penalty given by the statute 18 Geo. II. c. 20, for acting as a ma

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LIBEL. Communications which take place between the governor of a distant province and his attorneygeneral, are confidential; and if a witness is interrogated as to their substance in a court of justice, he is not bound to answer any questions respecting them.

In an action on a libel to which the general issue is pleaded, and where there is no justification, the defendant may give in evidence in mitigation of damages, not only that there were rumours and reports, of the same tenor as the libel, previously current, but that the substance of the libellous matters had been published in a newspaper; and he is not required to lay a basis for this evidence, by producing such newspaper at the trial.

The delivery of a pamphlet by the governor of a distant province

to his attorney-general, not for any public purpose, but in order that he might peruse it, is such a publication as will make him responsible in an action, if the pamphlet be a libel.

In an action against a governor of a colony by the surveyor general, who held that appointment in the colony, (such office being an office at will,) for suspending him maliciously, and without probable cause, it is ne cessary for the plaintiff to prove express and positive malice. Wyatt v. Gore. Page 299

LIEN.

1. In an action of trover against the defendant, for not delivering some wine deposited with her by way of security for an advance of money, Held, that it was not sufficient evidence of a conversion, to shew that her son, who acted as her general agent, refused to give it up ; and that it was necessary to prove, that such agent acted under a special direction, in order to make the defendant liable.

2. If goods are deposited as a security for a loan of money, such deposit constitutes something more than the right of lien; and it is to be inferred that the contract between the parties is, that if the borrower do not repay the advance, the leuder shall be at liberty to reimburse himself by the sale of the deposit. Pothomer v. Dawson.

383

LIMITATIONS, STATUTE OF. The admission of the wife, who was accustomed to conduct her husband's business, is sufficient to take the case out of the statute of limitations in an action against the VOL. I.

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MASTER AND SERVANT. 1. A. and B. are partners in the bu siness of public carriers; by a contract between them, A. finds horses and drivers for certain stages, and B. supplies them for the remaining stages. They are, notwithstanding this division of the concern between them, responsible for the misconduct and negligence of their drivers and servants throughout the whole distance. And it is no defence to B., that the servant by whom an injury is committed, was the special servant of A., and hired and paid by A alone. Weyland v. Elkins. 227

2. The act of the servant will not bind the master in actions of tort to the same extent as in actions in contracts. Harding v. Greening, Page 531

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sumpsit.

Rackstraw. Imber.

Page 368

ORDER, (JUDGES')

See PARTICUlar.

P.

PARTICULAR OF DEMAND.

The defendant cannot make, at the trial of the cause, any such objec tion to the particulars, which, if made earlier, the plaintiff or the court might have rectified. Lovelock v. Cheveley." Page 552

PARTNERS.

141

1. An authority to execute a deed must be by deed; and if one partner acknowledge that he gave another partner authority to execute a deed for him, the presumption is, that it was a legal authority, which must be under seal and produced. An acknowledgment is not sufficient. Steiglitz v. Egginton. 2. First, Upon the dissolution of a partnership, and a mutual statement and settlement of accounts, there is an implied promise in law, on the part of him against whom a balance is found, to pay his copartner; and an express promise to pay is not necessary. Secondly, A partnership is commenced by articles unsealed, in which is contained an agreement for a co-partnership deed. Such partnership may, at any time, be dissolved by parol and, although one partner refuse to sign the deed, when ten. dered to him, he is not thereby precluded from recovering a balance due to him on the partnership account in an action of as

PATENT.

1. A patent is void, First, If the specification omit any ingredient, which, though not necessary to the composition of the thing for which the patent is claimed, is a more expeditious and beneficial mode of producing the manufacture; and, Secondly, If, previous to the patent being granted, the article has been publicly vended, (though only four months,) by the patentee himself. Wood v. Zimmer. 58 2. First, Semble, that the patent should be a general index to the specification, and state, in substance and outline, what is thereafter set out in circumstance and detail in the specification. Secondly, Semble, That if a patent be taken for more of machine than is strictly the inventor's own addition or improvement, it is good. Hill v. Thompson and Others. 636

PAYMENT OF MONEY INTO COURT,

See ASSUMPSIT.

PENALTY,

See AGREEMENT, 1.

PLEADING,

Vide BELL v. SHAW, 298.

POLICY,

See INSURANCE. BANKRUPT.

PRACTICE,

See PARTICULARS, AND WITNESS.

PREMIUMS OF INSURANCE, See INSURANCE.

PRINCIPAL AND AGENT.

1. A. and Co. of Liverpool, employ R. and Co. as their bankers there. R. and Co. keep an account in London with J. & L. But A. and Co. have no account with J. and L. A. and Co. direct their agents in London to pay monies "to their account," at the house of J. and L. As A. and Co. had no account of their own with J. and L., but through the medium of R. and Co. of Liverpool; and, as their agents had been in the habit of paying monies of A. and Co. to the account of R. and Co. at the house of the London bankers of R. and Co. Held, that the direction of A. and Co. to their agents, to pay to "their account," was sufficiently complied with, by a payment made to the account of R. and Co., as the agents had been in the habit of doing. Breed v. Green. Page 204 2. A broker is a witness to prove a contract; but in an action brought against the principal, for negligence and misconduct in the course of his employment, in the purchase of certain bales of tobacco, the broker who made the contract for him cannot be called to prove that there waa no negligence or misconduct in the execution of it, without a release from the principal. Gevers v. Mainwaring.

139

3. A. accepts a bill made payable at the house of the defendants, which is indorsed to the plaintiff's, who discount it. The bill is presented to the defendants, when due, and dishonoured. Two days afterwards, the money to take up the bill is remitted to the defendants; and they are requested to follow it in whatsoever hands it may be. They tender the money to the plaintiffs, who had sent back the

ers.

bill, the day before, to the drawMeantime, the defendants receive an order from a house, to which the letter inclosing the remittance referred them for advice, to hold the money to the credit of that house, as they had, by the desire of A., the acceptor, advanced him to the amount of the money then in the defendant's hands for the purpose of taking up the bill. Held, that this was a sufficient countermand of the money on the part of A., and that the defendants were not liable to an action for money had and received, brought by the plaintiffs, on their again getting back the bill into their possession. Stewart v. Fry: Page 372 4. A letter written by an agent (though not known to be such by the party to whom the letter was written) speaking of a ship, as his own ship, is not conclusive against him in an action on a policy of insurance, in which the question of ownership is raised. He may still prove that he is only an agent, and that others are, in fact, the owners of the vessel. Tullock v. Boyd. 487

PRINCIPAL AND SURETY. 1. The neglect of the obligee to give notice to the surety, that the principal had made default, does not discharge such surety; but if the obligee (without the privity of the surety) enter into an engagement with the obligee, and deprive himself of the power of suing him, whereby the surety is prosecuted from coming into a court of equity for relief, he is then discharged; but not otherwise. Orme v. Young.

84

2. A bond is given to A., B., and C., by the plaintiff and defeudant,

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