TENANT v. BROWN, et al.

JONES v. BROWN, et al.

Where in trespass against parish officers for distraining for poor's rates, it appeared that the plaintiff refused to pay the rates by the desire of his landlord, who was also the attorney in the cause, the court stayed the proceedings until he gave security for the

costs.

THESE were actions of trespass against the parish officers of Saint Mary's, Marlborough, for taking the plaintiff's goods under distresses for poor's rates. Holt had obtained rules nisi for staying proceedings until the plaintiffs' attorney should give security for costs, upon affidavits stating that the plaintiffs' attorney was the landlord of the plaintiffs, and suggesting that the rates were not paid by his desire, and that the actions were commenced without the knowledge of the respective plaintiffs. and not for their benefit, and that the attorney had indemnified the plaintiffs for their costs. By affidavits of the plaintiff's and their attorney, it was admitted that the plaintiffs were the tenants of their attor ney, and held their tenements at rents free of poor *rates, which were [*209 to be allowed by the landlord; that the attorney had desired them not to pay the rates, and that in consequence of their refusal the distresses in question were made. The plaintiffs' affidavits further stated that they had sus tained great inconvenience by their goods being detained from them for several days, and that the actions were brought by their desire, and for their benefit; that they wished the same should proceed, and were advised that they had good causes of action, but said nothing as to whether the attorney had indemnified them against the costs.

Halcomb now showed cause. This application is quite unprecedented; the only cases in which the courts will interfere to stay proceedings, until security is given for costs, are cases in which the plaintiff is out of the jurisdiction of the court, and other cases, enumerated 1 Tidd's Practice, p. 555. 6th edition, not being similarly circumstanced with the present. Admitting the plaintiff's attorney is the only party beneficially interested in the question of the legality or illegality of the rates, and that for anything which appears he has indemnified the plaintiffs against the costs, still the plaintiffs, having also independent causes of action for the injuries they have sustained by the wrongful taking and detention of their goods, are clearly entitled to prosecute their actions, and the court will not interfere to take away their rights, unless a third party, over whom they have no control, should give security for costs. There is no precedent for such a decision, and it would lead to great inconvenience. Besides, if the suggestions made in the affidavits in support of the rule are true, and these actions are in fact prosecuted without the *knowledge and against the will of the plaintiffs, then the application ought to have been to set aside the proceedings altogether.

[*210

Holt, in support of the rule, was stopped by the court. BAYLEY, J.t We are all of opinion that this rule must be made absolute. Without looking at the affidavits filed in support of the rule, ve decide upon the plaintiffs' own affidavits, which admit that they refused to pay the rates by the desire of their landlord, the attorney in these actions.

HOLROYD and LITTLEDALE, Js., concurred.

Rule made absolute, without costs.

+ Abbott, C. J., was absent at Nisi Prius.

BOTTOMLEY v. BOVILL.

Upon a policy of insurance upon ship at and from London to New South Wales, and at and from thence to all ports and places in the East Indies or South America, with liberty for the said ship, in that voyage, to proceed and sail to, and touch and stay at any ports or places whatsoever, with leave to take in and discharge goods and passengers at all ports and places in the Channel, Cork in Ireland, Madeira, Cape of Good Hope, St Helena, and wheresoever the ship might proceed to, as well on this as on the other sides of the Capes of Good Hope and Horn, and for all purposes whatsoever; particularly to trade and sail backwards and forwards, and forwards and backwards: Held, that after the arrival of the ship at New South Wales, she was protected by the policy so long only as she was sailing on a voyage either to South America or to the East Indies, oi on some intermediate voyage, having for its ultimate object the accomplishment of a voyage either to South America or to the East Indies.

THIS was an action on a policy of insurance on the ship Brampton, at and from London to New South Wales, and at and from thence to all ports and *211] *places in the East Indies or South America, with liberty for the said ship, &c, in that voyage, to proceed and sail to, and touch and stay at any ports or places whatsoever, with leave to take in and discharge goods and passengers at all ports and places in the Channel, Cork in Ireland, Madeira, Cape of Good Hope, St. Helena, and wheresoever the ship might proceed to, as well on this as on the other sides of the Capes of Good Hope and Horn, and for all purposes whatsoever; particularly to trade and sail backwards ana forwards, and forwards and backwards. The premium was 80s. per cent. to return 288. 6d. per cent. if the voyage ended at New South Wales, and 108 per cent. if the ship proceeded to the East Indies and arrived. The loss in one count was averred to have been by barratry, and in another by perils of the sea. At the trial before Abbott, C. J., at the London sittings after Hilary term, 1825, the following appeared to be the facts of the case. The ship sailed from London with convicts to New South Wales. The captain had orders (unless he should receive contrary directions from the owner) to go to New Zealand and take in spars there, and proceed to South America. The ship arrived at New South Wales on the 23d of April, 1823, and did not leave that place until the 23d of July. She was detained there a considerable time, in consequence of several of the crew having been sent to prison for misconduct. On the 7th of July, the captain received a letter of instructions from his owner, directing him to proceed to the East Indies instead of South America, but before the arrival of that letter, he had entered into a contract to take out several passengers to New Zealand, and seventy tons of goods, and part of those goods were then actually laden on board the vessel. It was part of the *agree*212] ment with the owners, that the captain should have two-thirds of the profits arising from cabin passengers, and one half of the profit of steerage passengers taken in any of the voyages. After the captain had received this letter of instructions from his owner, he entered into a contract to bring back one of the passengers from New Zealand to New South Wales. The captain, on the 13th of July, notwithstanding the instructions received from his owner, proceeded to New Zealand, with the intention to return to New South Wales, and then to proceed to the East Indies, according to his instructions, and the ship was lost at New Zealand. The ship arrived at New Zealand on the 4th of August. The passengers were landed, and on the 7th the captain weighed anchor with the intention of returning to New South Wales, but the ship, in working out of the harbor in New Zealand, missed stays, and was lost. New Zealand lies in the course of the voyage from New South Wales to South America, but not in the course of the voyage from New South Wales to the East Indies. It was insisted at the trial, that the plaintiff was entitled to recover for a loss by barratry. Upon that point the Lord Chief Justice stated to the jury that barratry meant an act of the master in fraud of his duty to his owners. A mere mistake by the captain as to the meaning of the instructions, VOL. XI.-55 20

or a misapprehension of the best mode of acting under the instructions, and carrying them into effect, would not amount to barratry; and he directed the jury to find for the plaintiff, if they were of opinion that the captain acted in fraud of his duty to his owner, when he went to New Zealand instead of to the East Indies; but if they thought, on the other hand, that he merely mistook the meaning of the instructions, or the best mode of acting *for the purpose of carrying them into effect, then to find for the defendant. [*213 The jury having found for the defendant, the Lord Chief Justice then said, that he was of opinion that the plaintiff was not entitled to recover, inasmuch as at the time of the loss, the ship was not sailing on either of the voyages contemplated by the policy, and he directed a nonsuit, with liberty for the plaintiff to move to enter a verdict. A rule nisi having been obtained for that purpose,

Marryat, Gurney, and Maule now showed cause. The ship, at the time of the loss, was not pursuing a voyage protected by the policy. The liberty which it reserves" to trade and sail backwards and forwards, and forwards and backwards," is, indeed, expressed in terms of large and extensive import; but they are not sufficient to comprehend the voyage in question. The liberty is for the said ship" in that voyage to proceed, &c.," which shows that the "trading and sailing backwards and forwards, and forwards and backwards," was to be a trading and sailing, either in the voyage from New South Wales to South America, or in the voyage from New South Wales to the East Indies, consistent with and subordinate to a predominant intention of proceeding by the ordinary or proper course from New South Wales to one or other of those termini. A similar construction has been applied to analogous words, in the cases of Rucker v. Allnutt, 15 East, 278, Langhorne v. Allnutt, 4 Taunt. 511, Hammond v. Reed, 4 B. & A. 72, and Solly v. Whitmore, 5 B. & A. 45. It may be said, that the ship, at the time of the loss, having been in the proper course for proceeding from New South Wales to South America, the

intention to deviate from that course by returning to New South Wales [*214

will not discharge the underwriters, inasmuch as she was lost before that intention was carried into effect. It must be admitted, that an unexecuted intention to deviate will not discharge the underwriter; but with this qualification (which is always to be understood, and is sometimes expressed by the judges who lay down the rule,) that the ship, at the time of the loss, must be sailing on the voyage insured. Indeed it is not strictly a deviation or intention of deviating on which the defendant relies, but on the ship having sailed on a different voyage from the voyage insured. It does not follow that she was on that voyage because her course, as far as she pursued it, coincided with the course she would have pursued if she had sailed on it. In order to be on a voyage from A. to B. it is not sufficient that the vessel should be at C., an intermediate point in the course from A. to B.: it is necessary, in addition, that the ship should have departed from A. with the intention to proceed to B. The nature of the risk may be very different before the ship arrives at the dividing point of two different voyages, having a part of their course in common. The risk does not depend on the local situation only of the ship; the state of repair, the crew, stores, &c., proper for one voyage may be very different from those for the other, and many other circumstances influencing the risk may be different in that part of the two voyages which is common to both; and the underwriter who accepts one risk might refuse the other. The case of Wooldridge v. Boydell, Doug. 16, is in point. That was an *insurance at and from Maryland to Cadiz ; the ship sailed for Falmouth, and the loss took place in [*215 the Chesapeake Bay, which is in the course of the voyage from Maryland to Cadiz, as well as to Falmouth; but the court held, that she was not sailing on the voyage insured, and that the underwriters were not liable. Now, in the present case, the ship would be protected on a voyage from New South Wales to South America, or on a voyage from New South Wales to the East Indies; but she had not sailed on either of these voyages. There was no intention that

she should proceed to South America, and she, therefore, was not on that voyage, and she was not in the course of the voyage to the East Indies. The voyage on which she sailed was a voyage from New South Wales to New Zealand and back, and thence to the East Indies, and no such voyage is comprehended by the terms of this policy.

Scarlett, Campbell, and F. Pollock, contra. This is a policy on ship couched in very confused and contradictory terms. But, giving it a reasonable construction, it must be held to protect the ship on any intermediate voyage between South America, and the East Indies, before the master had determined upon his destination, and had actually proceeded on the voyage for his final destination. The policy is at and from London to New South Wales, and at and from thence to the East Indies or South America; and the risk is to continue until the ship shall arrive at her final port or place of destination in the East Indies or in South America. Then comes the liberty to touch and stay at all ports and places whatsoever. Now if the policy had stopped there, it must be admitted that the vessel would not have been at liberty to touch *216] or stay at any port not in the direct line of the voyage. But here the liberty reserved is much larger, for it is to take in and discharge goods and passengers at all ports and places, &c., and for all purposes whatsoever, particularly to trade and sail backwards and forwards, and forwards and backwards. These latter words show that a trading voyage within the limits described in the policy was in the contemplation of the parties. The word particularly seems to have been introduced into the policy in order to give full effect to the intention of the parties; and that word applies to the sailing backwards and forwards, as well as to the trading. The principal object of the policy, therefore, was a trading voyage within the prescribed limits, and consequently the ship was protected whilst she was sailing backwards and forwards within those limits. Now the voyage from New Zealand to New South Wales, was within those limits, and therefore, the underwriters are liable. The cases cited on the other side are not in point, for in all of them the liberty was only to touch and stay at any ports and places in the voyage; but in this case the liberty is particularly to trade, and to sail backwards and forwards. In Mellish v. Andrews, 16 East, 312, the policy was at and from London, to any and all ports and places in the Baltic Sea, forwards and backwards, and backwards and forwards, from place to place, and from port to port, and until her safe arrival at her port of final discharge. It was held, that the ship after having once touched at a particular port for orders, was not warranted under this policy in going to the same port again; and there it was said by the court that the words "backwards and forwards" seemed to intend an inverted *217] course; and that "until her safe arrival at her final port of discharge" meant not where it might be intended that the ship should discharge, but where her last port of discharge should be; final being used in contradistinction to elective port of discharge. In the case of Armett v. Innis, 4 B. Moore, 150, a similar construction was put upon a policy containing the words "backwards and forwards," but no permission was given by name to trade. The court, however, held, that under the words "to touch and stay at any ports and places whatsoever, and for any purposes whatsoever," it was not a deviation to stay for the purpose of trading. In Langhorn v. Allnutt, 4 Taunt. 518, the policy was at and from London, to any ports and places in the Baltic, backwards and forwards. Gibbs, J., there says the underwriters are as well acquainted with the nature and extent of the risks as the assured. Now what are the risks? To any port or ports, place or places in the Baltic. The ship is not bound to select her port before she commences her voyage, it is backwards and forwards, with liberty to touch, and stay, and trade at all ports had places, and for all purposes whatsoever. The permission to stay for any pur pose whatsoever, must indeed be for some purpose within the scope of the adventure." Now here the taking of goods and passengers to New Zealand.

and back to Port Jackson, was within the scope of the adventure contemplated by the assured. The final port of destination was left, in some measure, undefined; as soon as the convicts were discharged from the vessel, it was the captain's duty to do the best he could for the benefit of the owner; and with that view he entered into a contract to carry passengers to New [*218 Zealand, with the intention of returning to Port Jackson. Now the policy clearly contemplated a trading voyage; and that being the principal purpose, the taking passengers from Port Jackson to New Zealand, was within the policy.

ABBOTT, C. J. I am clearly of opinion, that the ship was not within the protection of the policy whilst she was on the voyage from New South Wales to New Zealand, and back to New South Wales. That was clearly the voyage upon which she was sailing at the time when she was lost. The voyage insured, is from London to New South Wales, and thence to South America, or the East Indies. Supposing the policy had stopped there it could not have been contended that this was a loss within those words. But the policy contains other words, viz. that it should be lawful for the ship, &c., to proceed and sail to, and touch and stay at any ports or places whatsoever, with leave to take in and discharge goods and passengers at all ports and places in the Channel, Cork in Ireland, and Madeira, Cape of Good Hope, St. Helena, and wheresoever the ship may proceed to, as well on this as on the other side of the Capes of Good Hope, and Horn, and for all purposes whatsoever, and particularly to trade and sail backwards and forwards, and forwards and backwards. These are words, certainly, of very large and extensive import; but, large as they are, they must receive that construction which has been given to similar words in other cases; and, giving them that construction, we must hold, that by this policy the ship would be protected by the policy so long only as she was sailing on an *intermediate voyage, undertaken with a view to the accomplishment of one or other of the voyages pointed out by the [*219 policy as the principal object in contemplation of the parties, viz. a voyage either to South America, or the East Indies. Unless the words of the policy be so construed, there can be no limit, either of time or place, to the risk described in this policy; but construing them in that limited sense which has been put upon similar words in other policies, in order to make this a loss within the terms of this policy, the ship, at the time of the loss, must have been upon a voyage from New South Wales to South America, or from New South Wales to the East Indies, or sailing backwards and forwards, upon some intermediate voyage, with the view and for the purpose of accomplishing a voyage either to South America or to the East Indies. In this case, at the time of the loss, the ship was on a distinct voyage, not subordinate to or connected with either of the voyages contemplated by the parties as the principal objects of the contract. That being so, she was not at that time on the voyage insured, and, consequently, the plaintiff is not entitled to recover.

BAYLEY, J. This is not a policy for time but for a particular voyage. The rule of construction which has been applied to policies couched in similar terms must also be applied to this. Now, a liberty to touch, stay, and trade at any ports or places whatsoever, has been held, to be confined to a staying or trading at any port for a purpose subordinate to the voyage insured, which is the principal object of the policy. I think the liberty to sail backwards and forwards, and forwards and backwards, must be construed so as to protect the ship so long only as she was sailing on a voyage having for its ultimate object the accomplishment of the principal voyage insured, which, in [*220 this case, was a voyage either to South America or to the East Indies. The question then is, whether this ship was upon the voyage insured, at the time when the loss took place. Now, what was the voyage insured? First, from London to New South Wales. That is one stage. When the ship arrived there, the owner was to have the option of sending her either to South Arrer