Court Of King's Bench, We...
!4~V O : J -s L1AW 2RnpRr -Lut e jutdges ot this Uoult Tmet to-tnyfpaiursgult to Rig MAl estg7s warrant, to-despatch the Ternt businesx in arrer;. Tititi iordsblps took their seatr. on the Bench in the Middleocx Sessiong. house at ten o'elock, and announced that tlhey would proceed onthe special paper tilt it shoeld be exhausted. Two cases having been postponed In consequence of the absence of counsel, the Court proceedec "to hear the case of GABAY V. LLOYD.x This case mane before the Court on a special verdict. It was an action on a polficy of insurance effected at -Lloyd's Cofree-house on three horses during a voyage from Liverpool to Jamaica. The po. hcy Insured against the perils of the seas, but contained the usual words, " warranted free of mortality and jettison." In the course of the voyage a storm arose, and during the violent agitation of the sea the horses kicked down their stalls, and did so much inijgy to themselves and each other that they died. The ship arrived- at the port of her destination in safety. The special verdict further stat- ed that, accerding to the custom of Lloyd's Coffee-house, no losses arc paid on animals. uffering a violent death, where the ship arrives, but they are paid where the vessel is lost. 'Lhe question was4 whe- ther, under all these circunmstances, the death of the animals could be regarded as a loss by the perils of the sea, or whether it was ex- cluded by the warranty " free of mortality and jettisoa." ?tr. PARKE, for the plaintiff, now argued that he was entitled to recover, notLwithstanding the exception, as the term "'mortality" ap- lied onl to death arising from natural causes. This wasex resal ecidedtn .he case of " Lawrence v. Aberdein," '> Barnewall and Alderson, 107, which van exsctlysini7arto the presernt, except as the present mightbevariedbytheintroductionof the custotn. Now, al. though evidence miht he received to explain terms cmnloyed In mer. cantile contarcts, which otherwire might be liable to doubt, it could ntobeadmitted to insert a nev condition in awrtten instrument. Itdid not even appear that the plaintiff was aware of the exietence of the custom by which his rights were to be limited for the usage of Lloyd's was no more than the usage of any counting-house in lon- don. Customs might be used to explain contfacts, but not to insert conditions, and therefore thiscase, substantially resembling that of "L Lawrence v. Aberdein," must be governed by the same prin- ciples. Mlr. CAL-'fIELr., for the defendant, expressed his earnest hope that the plaintiff woald not succeed; for, assuredly, he never enter. tained the slightest idea when the pollcy was effected, of recovering I for such aloss. The traLnaction olurred in 1818, rnd was onlv agitated in consequence of the decision of " Lawrencev. Aberdein," which had given occasion to many similar claims, wbich this case would determine. Now, first, he would contend that the case of " Lawrence v. Aberdein" ought to have received a different termi- nation, and that the exception included every species of death, where the ship itself arrived in safety; and, secondly, that the plaintiff was bound by the custom. The term "r mortality" was not rectricted in its meaning to natural deathi but included every species of risk to which animals areciposed bythepossesalonoflife. It was thus employed by Shakspeare, to whom, above all English autbors, perhaps, we ought to look for the exact significationi of Eng. ligh words. In the firat scene of Measure for Measure, where the Duike invests Angeo with the power of'life and death, he says.- " Mortality and merc y in Vienna " Live on thy tongue.' So, in the first part of Henry the Sixth, where Yoang Talbot begs death by the sword- "Here on my knee I beg mortality, " Rather than life preservedl by infamy." This, indeed, was the obvious meaning of the word At all events, it was tus explained by the usage of Lloyd's, which must be con- sidered popularly as the custom of merchatnts in London, as no in- surances were eftected bv private underwriters in any other place. The Co u BT here intimnated that this did not appear on the special verdict which had been settled by the L-ord Chief Justice on a dif. ference between the counsel. As, however, many other claims of a simnilar nature were stated to depend on the issue, and as the special verdict might be taken to the House of Lords by writ of error, they allowed the case to stand over, in order that the fact might beascer- tained; anti, if necessary, the special finding rendered mole definite. The further argument was accordingly postponed to a future day. D~ENiiI80N v. JoISN5o2e. This was an action by Alessrs. Dennisos and Co., bankers, in London, against Messrs.Johnson and Co., merchants, torecover back the sum of 5891. 6s. 8d. paid by miistake, which nOW came on for atgument in the shape of a special case. The case stated that the plaintiffs were the bankers of Messrs. Haywood and Co., and the defendants theholdera of threebills of exchanse, purporting to be en- dorsed bythatfirm. About II o'clock on the 3d of Februarf last, a no. tary, employed by Smith,Payne, and Co., the bankers of tbe defend- ants,brought the bills dishonoured to the plaintiffs,and they, believing the endorsements to be genuine, paid the anmount now claimed, for the honour of their customers; and, at thesame time, drew a pen through all the endorsements subsequent to their narmes. In two hours, lhewever, they discovered that the names of Haworth and Co. were forgeries, and immediately advertised Smith, Payne, and Co. of the fact, and demanded a return of the money. Notice was, by agreement, given iR due time to the other parties; but the de- fendants contended for their riglht to retain the money; and the plaintiffs sought to recoyer it by action. iMr. TINDAL, for the plaintiffs, rested their claim to reinburse- ment on the broad principle that where money has been paid on a false arsutmption of facts, the party paying it has a right to recover it back; and distinguished the case on the one hand, fron those cases where the party had aslopted and given credit to a b yll, b ac- cepding or endorsmng it, and those in which he had, by some miscon. duct, deprived the party whom he paid of a remedy. Here the plain. tiflT were no parties to the bill, they pald it on a false assumption countenanced( by the agent of the plaintiffs; and the mere mistake of cancelling the endorsements could not make them liabe to paV the bills, as it would not prevent the defendants from suing upon them, though it might oCcaSion some addlzionalexpense,recoverable in a special action. hr. PAR;KE, for the defendants, admitted the general rule that money paid on a false assamptlon of facc haly be recovered back ; but contended that it was subject to two exceptions-where the party paving was in some degree blameable; and where, by his act. the 1sarj receiving was placed in a worse situation than he would have filled. Both these exceptions applied to the present case; for the plaintiffs, as bankers, were bound to k'ow the bandwritingofthe custoner; and, by their act, the endorsers, if not discharFed altoge. ther, were placed in a condition which rendered aaul5t against them a matter of difficulty and tdanger, It was doubtful, however, whether they were not nbsolutely discharged, as the erasure of their names was an advised act, and not a mere mistake, )Ir. TINDAL, in reply, urged that the act of the clerk In erasing' the nameH was as much a ristake as if his hand had unconsciously wandered over the wrong namie, and that therefore the parties re- mained clearly liable. The CO UsRT postponed judgmnent to a future day. COuRT 0P 6i NG's BENCH. WSTMTSV. A e