1798.

DRISCOL

V.

PASSMORE.

avoid perils is justifiable, and the new course therefore which was taken may be considered as a continuance of the original voyage, since it is not necessary to return to the point from which a deviation commenced (a). Doubts occurred at the trial whether the captain had not returned to Lisbon without probable cause, and therefore abandoned the voyage; and whether, as the voyage from Lisbon to Saffi was performed at the instance of the charterers, the captain's intention to abandon the original voyage was not thereby proved: but both those questions. have now been determined by the jury. 2dly, This was merely an insurance on a voyage from Saffi to Lisbon, which has been literally performed: and it was not necessary to perform the preceding voyages from Lisbon to Madeira, and from thence to Saffi, in order to make that good. I do not contend that this was an indefinite insurance on any voyage from Saffi to Lisbon, to be performed at any time: if the risk had been materially altered, (as if the ship had first gone to the East Indies, and a Spanish war had broken out,) the underwriters would have been released. It may be said perhaps that they speculated on the time when the risk was to commence: but there was no warranty in this case: it was represented that the voyage in question was to be performed after certain other voyages; and the representation was true, for it was originally intended that the Timandra should take that course, but by subsequent circumstances she was prevented from so doing. The policy therefore is not void for misrepresentation; nor was the risk of the underwriters at all altered, as the deviation was justified by necessity.

Adair and Le Blanc Serjts. in support of the rule. As to the last point made by the Plaintiff's counsel, we contend, that wherever a voyage is insured from A. to B. it must be understood either that the ship is at A. at the time of the insurance, or it must be stated how and when she is to arrive there: otherwise it will be an indefinite insurance on the first voyage which the ship shall make, from A.to B.with the same master, and the other requisites of the policy. Now if it be impossible to make an insurance on a voyage from A, to B., without stating whether the ship is at A. or when she will be there, that circumstance if stated becomes an ingredient of the risk insured; and this seems to have been the understanding of the underwriters in the present case, who refused to insure till they were informed of the ship's arrival at Madeira. This was not an insurance on any voyage which the ship might make from Saffi to Lisbon, but on a voyage from Suffi to Lisbon, being part of a (a) Delaney v. Stoddart, 1 T. R. 22.

voyage

voyage already commenced, from Lisbon to Madeira, from Madeira to Saffi, and from thence to Lisbon. Nor was it necessary for the underwriters to require a warranty that the Timandra should go the whole voyage, having a representation to that effect and as the only difference between a warranty and a representation is, that a mere formal deviation from the one is fatal, and only a substantial one from the other, this policy is clearly void, for the deviation here was substantial. With respect to the first point, the voyage insured was abandoned; or rather as the latter part of the previous voyage was abandoned, the voyage insured never commenced. At Madeira the captain was to exercise his judgment whether it was more for the benefit of his owners to relinquish the voyage altogether, or to wait at Madeira till he could find the means of proceeding. He did exercise his judgment, and by returning to Lisbon, evinced that he thought it better to abandon. The voyage undertaken at the instance of the charterer was a new voyage: no recommencement of what had once been abandoned could make the underwriter liable.

EYRE Ch. J. At the time of the trial, I had considerable doubts on this case: but the discussion of to-day, and the opportunity which I have had of further considering the question, have in a great degree cleared them up. If I had continued to doubt I should be unwilling to interfere with a verdict of a special jury of merchants on a subject of this kind, unless I clearly saw that some principle of law had been mistaken; or unless I was bound by authorities to pronoune that verdict wrong. With respect to authorities there are none, for this is admitted to be a new case: we ought therefore to be fully satisfied, that upon some principle of law the verdict is wrong before we interfere by granting a new trial. It has been argued in support of the rule, that the voyage insured was the third branch of a specific voyage, specifically described in the policy: but I take the voyage insured to be a voyage from Saffi to Lisbon only. Now that the voyage so described did literally commence there can be no doubt, and I know no way in which that voyage could be restricted in point of commencement or connexion with any other voyage, but by representation or warranty. That point was ably put by my Brother Shepherd; If a man be asked to underwrite a voyage from Saffi to Lisbon, he naturally says, "Let me know what this voyage is, and at what time it is to commence, that I may judge of the risk. Is the ship now at Saffi, or where is she?" He will expect a

reprez

1798.

DRISCOL

v.

PASSMORE

representation and that representation ought to be true: here the representation was, that the ship was bound from Lisbon to Madeira with a cargo, from Madeira to Saffi in ballast, and from thence to Lisbon. That representation was really true at the time that it was made, and the underwriter was to form his own calculation of the time when the Timandra would arrive at Saffi. If the insurance was made on a representation which was true at the time, it will be difficult to state a case where subsequent events, not happening through misconduct, and not totally disappointing the voyage, will discharge the underwriter. He formed his judgment of the case, knowing that all was executory, and that an alteration might arise of a kind that might increase his risk; upon the representation made to him he underwrote. The fact is, that the representation being true, a circumstance occurred under which the captain was distressed how to act, and respecting which there might have been different opinions: he resolved to go back to Lisbon; the charterer there called upon him to fulfil his engagements; he sailed accordingly, and arrived at Saffi; and in the course of his voyage home was captured. Then why have the jury done wrong in saying that the underwriters are liable? They were literally bound to insure a voyage from Saffi to Lisbon; tied up, indeed, as far as a representation of the projected voyage, executory in its nature, could tie it up, and that representation was true at the time that it was made. The voyage from Saffi to Lisbon might have been performed with as much ease after the circuitous voyage had taken place (unless a Spanish war had broken out) as in the direct course originally proposed. On what principle then can the underwriters be discharged? The voyage has in substance been performed: the ship was diverted from her intended course by circumstances for which no one was to blame, and having arrived at Saffi, took in the cargo which was the original object of the insurance.

HEATH J. I am of the same opinion. This is an insurance on a voyage from Saffi to Lisbon, which being a voyage to commence in futuro, it was necessary that the agent of the insurer should give all the intelligence of which he was possessed to the underwriters. Now the captain's orders were to go from Madeira to Saffi, and from thence to Lisbon. Indeed it is not contended that there was any misrepresentation, but only that the voyage insured was never commenced; though the intention clearly was to have proceeded in the round voyage, had not the crew been

alarmed

alarmed by reports of an enemy off the coast of Saffi. The question is not whether the captain meant to abandon, since he had it not in his power so to do, without the consent of the charterers; and at their instance he did proceed on the voyage as soon as he conveniently could. This is like all other cases of deviation justified by particular circumstances, and I see no reason to quarrel with the verdict.

ROOKE J. expressing some doubts with respect to the liability of the underwriters, founded on the circumstance of their having at the time of the insurance apparently taken into consideration the period at which their risk was to commence, since they refused to underwrite the Timandra till the broker informed them of her arrival at Madeira;

The case stood over till this day, when Eyre Ch. J. said, that the Court were now unanimously of opinion, that no new trial ought to be granted.

1798.

DRISCOL

v.

PASSMORE.

Postea to the Plaintiff.

A

PURTON V. HONNOR.

Feb. 6th.

Eype 11 QB2 674

the case to recover damages against the

Quartz Hill hold mini CTION on the case to recover damages sustained by the An action on Plaintiff in defending a vexatious ejectment brought against him by the Defendant, in which the nominal Plaintiff had been nonprossed.

lessor of the Plaintiff in a vexatious ejectment is

General demurrer to the declaration and joinder. Cockell Serjt. was this day to have argued in support of the not maintaindeclaration :

But the Court expressing themselves clearly of opinion on the authority of Saville v. Roberts, 1 Salk. 14. that such an action was not maintainable, he declined arguing the point; and the Court gave

able. (a)

Judgment for the Defendant.

(a) Vide Sinclair v. Eldred, 4 Taunt. 7.

DAHL V. JOHNSON.

Feb. 8th.

THE

taken under a

HE Defendant being held to bail for 251. by a Judge's order, Where bail is in an action of assault, each of the bail entered into a recog- judge's order nizance for double that sum: the Plaintiff obtained a verdict for in this court,

is liable to double the sum ordered, as well as to double

(a) Contra in K. B. Clarke v. Bradshaw, 1 East, 86. Jutting, 7 Taunt. 304. Jacob v. Bowes, 6 East, 312. 5 M. & S. 511. Howell v. Wyke, 1 B. & B. 490.

each of the bail the sum sworn to in case of affidavit.(a) And see Wheelwright v. Wheelwright v. Simons,

1798.

DAHL

บ.

JOHNSON.

1057. and signed judgment for his damages and costs: accordingly a ca. sa. issued against the Defendant for 1387. 5s. and the bail were fixed.

Cockell Serjt. now shewed cause against a rule nisi, for staying all proceedings on their recognizance, upon payment by the bail of the sum of 251. and costs; he contended, that whatever might be the practice of the King's Bench, as laid down in Jackson v. Hassel, Doug. 330. each of the bail was liable in the Common Pleas to the full extent of the recognizance, and cited Calveraq et Ux. v. De Miranda, 1 Barnes 74. Mitchell and others v. Gibbons, 1 H. Bl. 76. and Fowlds v. Mackintosh, 1 H. Bl. 233.

Le Blanc Serjt. in support of the Rule.-In Calverac v. Miranda, the bail only justified in the single sum ordered by the Judge, and to that extent each was held liable; the inference from which case is, that the bail are not liable beyond the sum ordered by the Judge. The cases of Mitchell and others v. Gibbons, and Fowlds v. Mackintosh differ from this: the former having been a proceeding on the bail-bond, where the Defendant not appearing, the Plaintiff had no other remedy, and the latter an attachment against the sheriff, whom the Court refused to relieve without his putting the Plaintiff in the same situation as he would have been in, but for the sheriff's default. In Calverac v. Miranda, the bail only justified to the single amount of the Judge's order, and there is no rule of Court altering that practice. Indeed it would be a great hardship on the bail, who have formed their opinion of the sum to which they may be liable from the Judge's order, that they should be held liable to a larger sum.

EYRE Ch. J.-I think that this case cannot be argued on the nature of the contract which the bail may be supposed to have intended to enter into: such an argument would be used in opposition to the whole practise which regulates cases of bail. The bail always enter into a recognizance for double the sum sworn to, and no doubt they will be answerable to the extent of their recognizance for the damages sustained by the Plaintiff. There is an end therefore of that kind of reasoning which supposes that the parties were deceived in the contract into which they entered. I think the only question is, whether there has been such a mistake in this instance as should induce the Court to relieve the bail upon equitable terms? This must depend upon the notion, that when there is a Judge's order the bail are only to be bound in that sum which the order expresses. If there had been any settled practice of that kind I should not have thought