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1831.

ELTON

LARKINS.

gave evidence, admitted that the length of the voyage was very uncertain; but that, judging from the circumstances of the arrival of the William, and the distress of the Traveller, they should have thought the Fanny a missing ship on the 29th of December, and would not have insured her at the rate in question.

The broker who effected the policy was also called. He denied that, at the time of the insurance, any thing was said by the plaintiff as to the time of sailing, or as to any letter he had received from his captain; but stated that, about the second week in January, he asked the plaintiff when he expected the Fanny, and his reply was, that he had been expecting her every day for some days past; that he then asked him, what his last communication was respecting her, upon which he took from his pocket the letter of her captain, dated the 21st of Novemberwhich he, the broker, read, and then said: “This letter ought to have been communicated to me at the time of effecting the insurance;" to which the plaintiff replied, that he did not consider it material, otherwise he should have done so. On his cross-examination, he admitted that he did not apply to the underwriters to put their names on the policy till the end of January, some time after he had seen the letter in question. He denied that he had ever said, that the underwriters had not a leg to stand

on.

To contradict him in this, two witnesses were called, one of them the plaintiff's son, who in addition stated, that, in a conversation with his father, a few days after the insurance, the broker had said, “I find the ship sailed on the 25th, and not as you told me on the 23rd."

Wilde, Serjt., in reply. - First, if the underwriters know a fact, the assured need not tell it them; and, secondly, if they provide the means of gaining that knowledge, and it is their duty as men of business to resort to those means, and they do not, the case is the same. In Friere

1831.

ELTON

V.
LARXINS.

and Another v. Woodhouse (a), it was considered that it was not a concealment, to withhold a fact which was mentioned in Lloyd's lists; and that case is in point here. The underwriters, if they want to know when a vessel sailed, should ask the question. The lists are kept for the purpose of giving information; and if they give it, it is the same as if the assured gave it. In this case, all the information that was requisite, was to be found in the lists—and it was not necessary that the letter should be communicated.

BOSANQUET, J., (in summing up), said— The only question is, whether or not the plaintiff has withheld a letter, the communication of which was necessary, to put the parties to this insurance upon a fair and equal footing. It seems that the vessel sailed from Cadiz on the 25th of November; and that the first communication on the subject of the insurance took place on Friday, the 26th of December. There was a further conversation on Saturday the 27th, and on Monday the 29th the insurance was effected by the broker; and the question is, whether the passage in the captain's letter, which has been read, ought or ought not to have been communicated by the plaintiff to the broker, it being admittted that the letter itself was not communicated, though there is a contradiction in the evidence as to whether the time of sailing was mentioned. It has been truly said, that it is not necessary, in order to establish a concealment which will defeat the policy, that fraud should be made out; but it will be enough, if it is a material communication, that it was withheld, although the party may have only erred in so doing. The question as to whether it was material in this case, rests upon two grounds: the first, as to the day of sailing of the vessel in question; and the second, as to

(a) Holt's N. P. C. 572; see also Durrell v. Beverley, Id. 283, and the cases there collected.

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1831.

ELTON

LARKINS.

the expected day of sailing of the Traveller. Generally speaking, it is not necessary that the assured should communicate the time at which the vessel sailed; it has been so determined; but, if the time be such as to make the ship a missing ship, then it becomes material. Neither is it necessary for the assured to communicate such facts as lie properly within the knowledge of the insurer. According to the evidence for the plaintiff, the expected time of sailing was communicated before the insurance was effected. But this is denied in the evidence for the defendant. It seems that in Lloyd's lists, there was an account of the sailing of the vessel in question, on the 25th of November.

His Lordship left the contradictory evidence to the Jury, who found their

Verdict for the plaintiff.

Wilde, Serjt., and Maule, for the plaintiff.
Spankie, Serjt., and Barnewall, for the defendant.

[Attornies-Oliverson & Co., and Blunt & Co.]

Everett and Others v. LOWDHAM and Another. July 4th. ASSUMPSIT on a guarantie given to secure advances A defendant's of money made during an election for members of Parlia- attorney, who

has been subment for the borough of Camelford.

pænaed on the part of the plain

tiff may, at the Spankie, Serjt., for one of the defendants, applied to desire

counsel, remain have the witnesses ordered out of Court, with the excep- in Court during

the trial of the tion of the attorney who instructed him, and who had been cause, although

an order has subpænaed on the part of the plaintiffs.

been made for the witnesses on

both sides to Wilde, Serjt., for the plaintiffs, objected to the attor- withdraw. ney's remaining.

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Russell, Serjt., who was with Spankie, Serjt., suggested, that if the objection were to prevail, it would always be in the power of one party to deprive his opponent of the assistance of his attorney by subpænaing him as a witness. The case of Pomeroy v. Baddeley, reported in R. & M. 430, was referred to, in which Mr. Justice Littledale excepted the attorney in the cause from a general order for the witnesses to withdraw, on a statement by counsel that he could not conduct the case without his assistance.

BOSANQUET, J., under the circumstances, allowed the attorney to remain in Court.

Wilde and Jones, Serjts., and D. Pollock, for the plaintiffs.

Spankie and Russell, Serjts., and Tomlinson and Butt, for the respective defendants.

[Attornies-Sweet & Co., and Lowdham & Co.,

Coles.]

See the case of Beamon v. Ellice, Vol. 4 of these Reports, p. 585, and the cases there collected.

COURT OF EXCHEQUER.

Second Sitting in London in Trinity Term, 1831.

BEFORE MR. BARON VAUGHAN.

FISHER 0. FILMER. June 7th.

ASSUMPSIT on an attorney's bill. The defendant was An attorney brought an action against the

the petitioning creditor in a commission of bankrupt, and petitioning creditor, under a commission of bankrupt, for business done previous to the assignment:--Held, that, notwithstanding the 14th sect. of the bankrupt act, (6 Geo. 4, c. 16), he might maintain the action without proof that his charges had been allowed by the commissioners, according to the provisions of that section, as the whole was matter of investigation before the taxing officer.

the charges were for business done previous to the assignment.

1831.

FISHER

FILMER,

Cooper, for the defendant, submitted that the plaintiff must be nonsuited, because it did not appear that the bill had been taxed by the commissioners, as required by the 14th section of the bankrupt act (a).

Andrews, Serjt., for the plaintiff, referred to Crowther v. Davis, MS., as having already decided the point.

Cooper.-In that case the bill was for costs incurred after the assignment. There has not been any decision upon this point, which relates to costs incurred previous to the assignment. By the bankrupt act, at a specific time the amount is to be ascertained. And it is the duty of an attorney to get his bill for costs previous to the assignment allowed by the commissioners; and, unless he has done so, he is not in a situation to maintain an action

upon it.

(a) The 14th sect. of the 6 Geo. shall be settled by the commis4, c. 16, enacts, “ That the peti- sioners, except that so much of tioning creditor or creditors shall, such bills as contain any charge at his or their own costs, sue forth respecting any action at law, or and prosecute the commission un- suit in equity, shall be settled by til the choice of assignees; and the the proper officer of the Court in commissioners shall, at the meet- which such business shall have been ing for such choice, ascertain such transacted, and the same, so setcosts, and by writing under their tled, shall be paid by the assignees hands direct the assignees (who

to such solicitor or attorney: proare hereby thereto required) to re- vided that any creditor who shall imburse such petitioning creditor have proved to the amount of 201. or creditors such costs out of the or upwards, if he be dissatisfied first money that shall be got in with such settlement by the comunder the commission; and all missioners, may have any such bills of fees or disbursements of costs and bills settled by a Master any solicitor or attorney employed in Chancery, who shall receive for under any commission for business such settlement, and the certifidone after the choice of assignees, cate thereof, 20s, and no more.”

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