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never believed, that Mr. Coale had defrauded the public, and that he was an honest man.
4th. If the register had been guilty of fraud, the members of the council have not had sense enough to discover these. false accounts, or they have countenanced it in violation of their oaths of office.
And I beg every one to ask himself the question: Who has had the best means of ascertaining the accuracy of the register's accounts; the editor of the Whig in gaol, or the members of the city council, who have daily and constant access to all his books, and the jury who were employed three or four days in hearing their testimony? The former has accused and still does accuse Edward 7. Coale, of being guilty of the knavery of keeping false accounts, and the latter have unanimously declared that he is an honest man, and that he has not kept false accounts. Whom will
MICHAELMAS TERM, 1769.
Scott v. Scott.
INJUNCTION. The court of chancery will not grant an injunction to stay an execution on a judgment obtained by surprise: but it is not precluded from exercising an equity jurisdiction over the verdict.
ILL to stay proceedings at law by injunction and set aside
a judgment obtained by surprise. Lord Camden. When the judgment is completed by a service of execution, it is too late for this court to interfere in the manner prayed; but though this court cannot grant an injunction, yet the equity of it is not altogether restrained. And it would be strange if was, for by such means the plaintiff would be enabled to benefit himself by his own wrong and recover against the justice and equity of his case without any power to control him. In this case, the verdict was obtained by surprise, and though the court cannot grant an injunction, the defendant being taken in execution, yet the verdict ought and must be set aside. It is necessary, however, in all such cases, to prove or give probable grounds to believe the verdict was by surprise ; for if the party suffer judgment to pass against him by neglect he cannot have relief in this court for a matter which he might have availed himself of at law.
(Ex notis m'ri Cooke.]
Court of King's Bench.
MICHAELMAS TERM, 1805.
Anderson, Bart. v. the Royal Exchange Assurance
Company. Notice. Corn was insured free from average, unless general, from Waterford to Liverpool. The vessel was run on shore at Weterford on the 28th of January, and was wholly under water at high water. Part of the corn was taken out by the insurers and kilndried, and the assured received the net produce. On the 18th of February, 21 days after the loss, the assured gave notice of abandonment, which the insurers refused to accept. Held, that the notice of abandonment was too late to entitle the assured to recover as for a total loss.
HIS was an action brought to recover a total loss upon a
policy of insurance on a cargo of wheat by the ship Fanny, on a voyage from Waterford to Liverpool, to which action the defendants pleaded the general issue. The cause came on to be tried at the sittings after Hilary term, 1805, before the right hon. Edward lord Ellenborough, and a special jury, when a verdict was found for the plaintiffs, damages 915l. 9s. 8d. and costs, 40s. subject to the opinion of the court on the following
The ship in question was loaded at Waterford in the month of January, 1804, with 2406 barrels of wheat in bulk. The term barrel is descriptive of measure and quantity only. The policy in question was effected on the account of Andrew Comber, of Liverpool, merchant, upon 696 barrels of the said wheat, his property. The same were shipped by Thomas Nevins, who acted, as the agent of the said Andrew Comber at Waterford, and were of the value of the sum insured, that is to say, the sum of 1000l. The policy contains the following stipulation. “ Free from all average on corn, flour, fish, salt, fruit, seeds, hides, and tobacco, unless general, or otherwise specially agreed." There was no special agreement in the policy, respecting the payment of an average loss on corn. The ship in question sailed from Waterford on the voyage insured, on the 28th of January, 1804, with the wheat insured on board, and in proceeding down the river she struck upon a rock, which occasioned her immediately to fill with water; and, to prevent her from sinking, she was run on shore. The hull of the ship was for four weeks entirely under water at high water, and, until the
cargo was taken out, she could not be raised or removed. The whole of the cargo was damaged, and 1635 out of the said 2406 barrels of wheat were taken out of the said ship, and afterwards kilndried at Waterford. The said Andrew Comber's proportion of the said 1635 barrels so taken out amounted to 473 barrels, which were delivered to the said Thomas Nevins, as the agent of the said Andrew Comber. Some part of the remainder of the said cargo of wheat was sold to feed hogs, and the residue thereof was thrown into the sea as unfit for use. The whole quantity kilndried as before stated, except the said 473 barrels belonging to the said Andrew Comber, was, two months after the said accident happened, shipped on board another vessel for and arrived at Liverpool, and was received by underwriters on policies including losses by stranding; and the said 473 barrels belonging to the said Andrew Comber, might have been forwarded in like manner, if he had given directions for that purpose. The said 473 barrels were sold by the said Thomas Nevins, and produced the sum of 249/. 15. 9d. but the expense of saving and kilndrying the same reduced the net proceeds thereof to 95l. 13s. 4d. sterling, which sum has been remitted to and received by the plaintiffs. After the said ship had remained four weeks in the situation before described, she was weighed up and taken back to Waterford, then incapable of prosecuting the voyage, and continued under repairs until the latter end of April, by which time she was repaired. On the 18th and 25th Feb. 1804, the said plaintiff: and also the said Andrew Comber gave notice of abandonment to the said defendants, but the said defendants refused to accept such abandonment.
The question for the opinion of the court is, whether the plaintiffs are entitled to recover in this action as for a total loss, with benefit of salvage ; and if not, then as for a total loss of that part of the goods in question, which were not kilndried. If the court shall be of opinion that the plaintiffs are entitled to recover as for'a total loss of the whole cargo, with benefit of salvage, then the verdict to standd; but if the court shall be of opinion that the plaintiffs are entitled to recover only as for a total loss of that part of the goods in ques. tion which were not kilndried, then a verdict to be entered for the plaintiffs for the sum of 356l. 16s. only. And, in case the court shall be of opinion that the plaintiffs are not entitled to recover any part of the sum demanded, then a verdict to be entered for the defendants.
Clarke 7 “ There was a total loss in this case; for the ship, by reason of the accident, did not arrive at its port of destination, and the object of the voyage was lost. Where that happens, it is a total loss, although part of the goods is saved. Manning v. Newnham.* Mason v. Skurreyt is the leading case upon the construction of the memorandum, which is founded entirely upon the usage, Cockayne v. Fraser was a case of a voluntary renunciation of the voyage, and admitting it to be good law it does not apply to this case.” He cited also Goss v. IVithersy and M Andrew v. Vaughan to show that the abandonment was in due time.
Lord Ellenborough, C. J. “ This is not a total loss in fact. While there was any part of the adventure subsisting, it could only be considered a total loss after the abandonment, and that must be made in a reasonable time. I thought at first that, as there was a total submersion of the goods under water, it was a total loss, but as they were fished
* ? Marshall Insur. 504. Park 166.
† Park 131.