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1815.

SITTINGS AFTER MICHAELMAS TERM,

56 GEO. III. AT GUILDHALL.

Dec. 7.

PARK V. HAMMOND.

THIS

Where A. at WHIS was an action of assumpsit brought against Malaga,directs by letter his

the defendant, who was an insurance broker, broker in Lon- for negligence and misconduct in effecting a policy 10001. on goods of insurance, in consequence of which the plainshipped on board the tiff was prevented from recovering the sum insured Pearl from Gibraltar to

from the underwriters. Dublin; and in the conclusion of his letter The defendant pleaded the general issue: the adds, “ I take the risk on

facts of the case were these: myself from this (Malaga)

On the 20th November, 1814, the plaintiff, by a bay, where I shall send my letter from Malaga, directed the defendant to inshore.” Held, sure 1,0001. on goods shipped on board the Pearl, was liable to from Gibraltar to Dublin, with or without convoy. an action for negligence, in In the conclusion of his letter he writes as follows: not stating in the policy that

" I take the risk on myself from this to Gibraltar loaded at mame bay, where I shall send my letters on shore.” The laga. policy effected by the defendant was on goods

at and from Gibraltar to Dublin.

to Gibraltar

The vessel sailed from Malaga on the 2d December, 1814. On the 9th, from adverse winds, they made Ceuta bay, and on the 11th sailed for Gibraltar bay, where they hove to, for the purpose

1815.

A

ward voyage.

of sending letters on shore ; they did not touch at Gibraltar, or come to an anchor, but forwarded

PARK their letters by a boat from the shore at Algeziras. On the same day they proceeded on their home- HAMMOND.

On the 21st the vessel struck upon a rock, and the cargo was entirely lost. On the plaintiff's arrival in England he applied, through the defendant as his broker, to get the loss adjusted, and two of the underwriters, after making some difficulty on a point unconnected with the present question, settled; but the rest refused, on the ground that the goods having been loaded at Malaga, and not at Gibraltar, the risk never attached.

Copley, serjeant, and Gifford, for the defendant, objected—Ist. That the ship never was at Gibraltar, and that, consequently, there had been no inception of the risk. 20. That the policy sufficiently coincided with the instructions given; that the plaintiff himself intended the policy to be effected in the terms in which it was effected; and that the voyage described was according to the letter of order. 3d. That there had been no species of crassa negligentia.

Gibbs, C. J.--The law on this point is clear. A broker is bound to have knowledge and diligence, and must execute his orders; but it is not every mistake which makes him responsible. Where the principal imputes misconduct, he ought to shew that his directions were intelligible and precise. If the instructions had been doubtful, I should think the plaintiff not entitled to recover; for it does Vol. I.

G

1815. not follow, because the policy is so defective that

the plaintiff cannot recover from the underwriters, PARK

that he can therefore recover from the defendant ; HAMMOND. but I think the letter not doubtful. With this

letter before him, it was not expecting too much from the defendant that he should effect a policy on goods shipped at Malaga. It was understood that the goods were to be shipped at Malaga, and the defendant ought not to have effected a policy, which can only attach on goods shipped at Gibraltar. I think the vessel having been in the bay of Gibraltar is sufficient, without having actually touched at the port.

Verdict for plaintiff.

Solicitor General and Parke, for plaintiff.

Copley, serjeant, and Gifford, for the defendant.

[Attornies, Payne and Leachman, and Wadeson.]

This case was afterwards not at and from Gibraltar. 2 moved on the part of the de Marsh. Rep. 190. fendant in the next Hilary A broker who has neglected Term; but the Court con to insure the premium accordcurred in opinion with the Lord ing to the directions of his Chief Justice at the trial; and principal, cannot set up as a the rule nisi, which had been defence that he was directed obtained, was discharged. The also to insure against British Court, however, were of opi. capture; for that is not a nion, that the broker should crime so as to render the whole have effected the insurance, at insurance illegal, though it and from Gibraltar bay, and would be void pro tanto.

Brokers on receiving an order was contemplated by the par 1815. may renounce it altogether; ties, it would release the case but if they adopt it, they are from that strict interpretation.

PARK bound to execute it, as far as Thus, in Nonnen v. Kettlewell,

HAMMOND. by law they may, secundum 16 East, 177, the plaintiff was formam jubentis.-Glaser v. held entitled to recover a loss Cowie, 1 Maule and Selw. of goods insured at and from 53. Lubbock v. Potts, 7 East, Landscrona to Wolgast; 249.

though they were shipped at The case of Robertson v. Gottenburgh before the ship French, 4 East, 130, first de- arrived at Landscrona, and cided that a policy on goods though the policy was declared laden at one port will not co to be at and from the loading ver goods laden at an anterior of the goods on board the ship; port. That has been followed it appearing that the underby a series of cases; Spitta v. writer was informed at the time Woodman, 2 Taunt. 416. that the goods were loaded on Langhorne v. Hardy, C. P. board at Gottenburgh, and that Same v. Collaghan, Horncyer part of them were landed and v. Lushington, 15 East, 49. re-loaded at Landscrona, so as and Mellish v. Allnut, 2 Maule to enable the Custom House and Selw. 106. in which the officers to ascertain the quality authority of Spitta v. Wood of the goods and adjust the man has been recognized by duties: the policy being free K. B. and C. P.

of average. The Court of K. B. have So, in Bell v. Hobson, the however expressed an opinion, principle in Spitta v. Woodthat the very strict construc was excluded, on the tion which first obtained in ground that the policy in that Spitta v. Woodman, (where it case, which was on goods, (bewas holden that the words be. ginning the adventure from the ginning the adventure from loading thereof) was declared the loading on board, were to to be a continuation of a former be confined to the place from policy; which was a policy whence the risk commenced) from Virginia to the ship's was not a construction to be port of discharge in the U. K., favoured, and still less to be

or any port in the Baltic, with extended. And that if there liberty to take in and discharge were any thing in the policy goods wheresoever. to indicate that a prior loading So, where a policy of insu

man

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PARK

rance was on goods at and loaded at L., and which arfrom P. to M. and from thence rived at P., but were not unto L., beginuing the adven loaded there, and afterwards ture on the goods from the sustained a partial loss in the loading thereof, on board the

voyage from P. to M. Gladship wheresoever. Held, that stone v. Helay. 2 Maule and it would cover goods previously Selw. 419.

HAMMOND.

Dee 7.

ORME v. YOUNG,

DE

The neglect of EBT on bond, dated 25th November, 1807, the obligee to give notice to in the penal sum of 44,0001., to secure the the surety, that the principal payment of 22,0001., payable by instalments of fault, does not

ades mot 1,0001. half-yearly, from the 29th of September, discharge such 1807, to the 29th of September, 1812, when the surety; but it the obligee residue of the sum secured was to be payable. (without the privity of the surety) enter into an en

The defendant pleaded, First, Non est factum. gagement with the obligor; and deprive 2d. That he entered into the bond as surety himself of the power of suing for one William Orme, and that the plaintiff, on him, whereby the surety is

the 28th of September, 1812, without the privity prevented and consent of the defendant, forbore and gave from coming intoita forrit of day of payment of the sum of 13,0001. residue of lief, he is then the principal money, then due, to William Orme, but not other. jun. beyond and after the 29th of September, 1812, wise.

when the same became payable.

There were other pleas to the same effect.

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