1815. SITTINGS AFTER MICHAELMAS TERM, 56 GEO. III. AT GUILDHALL. Dec. 7. Where A. at Malaga,directs by letter his THI PARK V. HAMMOND. HIS was an action of assumpsit brought against the defendant, who was an insurance broker, broker in Lon- for negligence and misconduct in effecting a policy don, to insure shipped on 1000l. on goods of insurance, in consequence of which the plaintiff was prevented from recovering the sum insured from the underwriters. 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 letters on that the broker was liable to an action for The defendant pleaded the general issue: the facts of the case were these: On the 20th November, 1814, the plaintiff, by a shall send my letter from Malaga, directed the defendant to inshore." Held, sure 1,000l. on goods shipped on board the Pearl, from Gibraltar to Dublin, with or without convoy. negligence, in In the conclusion of his letter he writes as follows: not stating in "I take the risk on myself from this to Gibraltar loaded at Ma bay, where I shall send my letters on shore." The policy effected by the defendant was on "goods at and from Gibraltar to Dublin.” the policy that the goods were laga. 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. PARK v. of sending letters on shore; they did not touch at Gibraltar, or come to an anchor, but forwarded their letters by a boat from the shore at Algeziras. On the same day they proceeded on their home- HAMMOND. ward voyage. 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-1st. That the ship never was at Gibraltar, and that, consequently, there had been no inception of the risk. 2d. 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. PARK ช. not follow, because the policy is so defective that the plaintiff cannot recover from the underwriters, 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 moved on the part of the defendant in the next Hilary Term; but the Court concurred in opinion with the Lord Chief Justice at the trial; and the rule nisi, which had been obtained, was discharged. The Court, however, were of opinion, that the broker should have effected the insurance, at and from Gibraltar bay, and not at and from Gibraltar. 2 Marsh. Rep. 190. A broker who has neglected to insure the premium according to the directions of his principal, cannot set up as a defence that he was directed also to insure against British capture; for that is not a crime so as to render the whole insurance illegal, though it would be void pro tanto. Brokers on receiving an order may renounce it altogether; but if they adopt it, they are bound to execute it, as far as by law they may, secundum formam jubentis.-Glaser v. Cowie, 1 Maule and Selw. 53. Lubbock v. Potts, 7 East, 249. The case of Robertson v. French, 4 East, 130, first decided that a policy on goods laden at one port will not cover goods laden at an anterior port. That has been followed by a series of cases; Spitta v. Woodman, 2 Taunt. 416. Langhorne v. Hardy, C. P. Same v. Collaghan, Horncyer v. Lushington, 15 East, 49. and Mellish v. Allnut, 2 Maule and Selw. 106. in which the authority of Spitta v. Woodman has been recognized by K. B. and C. P. was contemplated by the parties, it would release the case from that strict interpretation. Thus, in Nonnen v. Kettlewell, 16 East, 177, the plaintiff was held entitled to recover a loss of goods insured at and from Landscrona to Wolgast; though they were shipped at Gottenburgh before the ship arrived at Landscrona, and though the policy was declared to be at and from the loading of the goods on board the ship; it appearing that the underwriter was informed at the time that the goods were loaded on board at Gottenburgh, and that part of them were landed and re-loaded at Landscrona, so as to enable the Custom House officers to ascertain the quality of the goods and adjust the duties: the policy being free of average. So, in Bell v. Hobson, the principle in Spitta v. Woodman was excluded, on the ground that the policy in that case, which was on goods, (beginning the adventure from the loading thereof) was declared to be a continuation of a former policy; which was a policy from Virginia to the ship's port of discharge in the U. K., or any port in the Baltic, with liberty to take in and discharge goods wheresoever. The Court of K. B. have however expressed an opinion, that the very strict construction which first obtained in Spitta v. Woodman, (where it was holden that the words beginning the adventure from the loading on board, were to be confined to the place from whence the risk commenced) was not a construction to be favoured, and still less to be extended. And that if there were any thing in the policy to indicate that a prior loading So, where a policy of insu 1815. PARK v. HAMMOND. The neglect of the obligee to give notice to the surety, that the principal surety; but if the surety is prevented from coming DE ORME . YOUNG. EBT on bond, dated 25th November, 1807, in the penal sum of 44,000l., to secure the payment of 22,000l., payable by instalments of 1,000l. half-yearly, from the 29th of September, 1807, to the 29th of September, 1812, when the residue of the sum secured was to be payable. The defendant pleaded, First, Non est factum. 2d. That he entered into the bond as surety power of suing for one William Orme, and that the plaintiff, on him, whereby the 28th of September, 1812, without the privity and consent of the defendant, forbore and gave into a court of day of payment of the sum of 13,000l. residue of lief, he is then the principal money, then due, to William Orme, discharged; but not other jun. beyond and after the 29th of September, 1812, when the same became payable. equity for re wise. There were other pleas to the same effect. |