of that nature is vested in justices, viz. 1. Where it is necessary to assess one parish in aid of the poor-rate of another; and 2. in the cases of paupers improperly removed. That it would be much more expedient, that the parish which is bound to maintain the mother, should also maintain, as casual poor, the children which she had a right to bring with her, and which could not be taken from her before the age of seven; and that he had been informed, that the practice had been conformable to what he contended for. Wallace was going to answer Davenport, but the court stopped him, and said that the point was clear and settled.-Lord Mansfield.-Mr. Davenport has cited no authorities in support of Dr. Burn's proposition, and there are many against it, viz." Rex v. St. Giles's in "the Fields (1), Rex v. Wangford (m), “and Rex v. Saxmundham" (n), which is directly in point. The practice is also agreeable to those cases.-Aston, Just. cited another case, where it was directly held that the parish where the settlement of the nurture child is, shall maintain it.-Judgment to quash the order of sessions and confirm the original order by which the parish of Darlington was charged. The case of Suxmundham is very short in Fortescue (o), and the point is merely stated as a position, without the facts or orders, or the reasoning of the court. But the case of the inhabitants of Shermandbury v. Bolney (o), which Mr. Davenport mentioned in his argument, was exactly the same with the present, for there can be no distinction (as to this question) between bastards and legitimate children, who have a different settlement from their mother. In that case, a woman with three children, all under seven, being settled in Shermand (1) T. 6 & 7 Geo. 2. Burr. Settl. Cases, No. 2. (m) 12 Wil. 3. Fortesc. 307. (n) Transcribed by Bott, p. 254. 1778. SIMPSON against JOHNSON. bury, married a person settled in Bolncy. After the marriage, the mother and the three children were sent to Bolney. The parish of Shermandbury, before the marriage, allowed three shillings per week for three children; and the payment being discontinued after the marriage, on complaint of the parish of Bolney, two justices made an order that Shermandbury should continue to pay the three shillings. The sessions, and afterwards the court of B. R. confirmed the order of the justices. And the court said, "This case is within "the equity of the statute for the "relief of the poor, and there is no reason that Shermandbury should be "discharged of the children by their "mother's marriage." This case is cited in Bott from Carthew, but for another point. It has been supposed that there might be difficulties in obtaining and enforcing an order, in a case like the present. But the case of Shermandbury v. Bolney shews, that the justices of the county in which the parish liable is situated, ought to make the order, on the complaint of the parish officers of the parish where the mother lives. The order in the case of Hemlington was probably made in the same manner. The inconvenience when the two parishes are at a great distance from each other, is only similar to what is experienced on appeals brought on removals from parishes at a great distance. As to the method of enforcing the order, it may be done by indictment, or perhaps the parish officers, in whose behalf it is made, might maintain a special action of assumpsit against those upon whom it was made, Vide Rann v. Green, B. R. M. 17 Geo. 3. [+5], where the court held, that when per 1778. A warranty on the margin of a policy must be as much as if written in the body of the in strument. "Thirty seamen besides passengers," means thirty persons surgeon, boys, &c. BEAN against STUPART. THE plaintiff insured the ship called the Martha, at and from London to New York, the voyage to comstrictly followed, mence from a day specified; and, on the margin of the policy were written these words," Eight nine-pounders "with close quarters, six six-pounders on her upper decks, "thirty seamen, besides passengers."--The ship sailed from the Downs on the 1st of March, and was taken on the 10th, by an American privateer, and was sent, with a prizebelonging to the master on board, to make the port of Boston. On the 30th ship's company, of May, the plaintiff brought this action against Stupart, an including cook, underwriter on the policy; on which Stupart paid the premium into court, and pleaded the general issue. About the 6th of July, and before the trial, accounts were received that the ship had been retaken some time in May and carried into Halifax.-The cause came on for trial before Lord MANSFIELD, and a special jury, at Guildhall, at the Sittings after Trinity Term, 18 Geo. 3. The defence set up was, that there were not thirty seamen on board the ship, according to the terms of the stipulation in the margin of the policy and, in fact, it appeared upon the evidence, that, to make up that number, the plaintiff reckoned the steward, cook, surgeon, some boys, and apprentices, and some persons described as men learning to be seamen; and that only twenty-six persons had signed the ship's articles. It also appeared that there were seven or eight passengers on board. Bearcroft, of counsel for the defendant, contended, That this was a warranty, not a representation, and that being so, it must be literally and strictly complied with. That seamen meant men trained to the occupation of mariners, either such as are called able-bodied, or at least ordinary seamen, in opposition to landmen, and could never include boys, sons acting under a private act of parliament, make an order by authority of such act for the payment of money, or the law raises an assumpsit. The same reason must hold in the case of a public act [F. 2]. [F. 2.] In these cases there is a legal liability arising from the statute. For cases in which there is only a moral obligation, and upon which it is argued by the learned reporters, that an action cannot be supported, even upon an express promise, and for a full discussion of these points, see the note to Wennall v. Adney, 3 B. & P. 249. or the steward, cook, and surgeon, of a ship. That, at any rate, none but those who had signed the articles were to be considered as seamen, and then the number warranted was not compleat. That, in the late case of Pawson against Ewer [3], it had been determined, that the strict words of a representation need not be fulfilled, provided the departure from them is not materially to the prejudice of the insurers, but that, in the case of a warranty, it is otherwise, that being a condition, and taken as part of the policy; and that the circumstance of the stipulation, in this instance, being written on the margin, made no sort of [3] Pawson v. Ewer, Pawson v. Snell, and Pawson v. Watson [†6], which were all actions on the same policy, were argued on a motion for a new trial in the court of King's Bench in Easter term, 18 Geo. 3. The case was shortly this:-The broker who made the insurance shewed to some of the underwriters a paper detached from the policy, containing instructions relative to the force the ship was to sail with, viz. “12 guns, "and 20 men." There were no guns or men on board, when the policy was subscribed. Mr. Thornton, the first underwriter on the policy, had seen the paper (and he had paid). Watson and Snell had not seen it. Ewer, who had subscribed after them, had; but they all underwrote at the same premium, which was proved to be the premium for such a vessel as that in question, when sailing without force. The ship actually sailed with only ten guns (four-pounders) and six swivels, and with only sixteen men and seven boys, besides pas sengers. It was proved that boys are entered on the ship's books, and considered on ship-board as men; and that ten guns and six swivels are of greater force than twelve guns. That upon the whole, the ship was of more force than she would have been, if the written instructions had been specifically adhered to. There were verdicts for the plaintiffs; but on the dif 1778. BEAN against STUPART, *[ 12 ] motion for a new trial in one of the causes, which was to determine the rest, it was contended on the part of the defendant, that the instructions shewn to the first underwriter (upon whom in general all the others rely) being in writing, were to be considered as a warranty, which must be strictly complied with; and that it had not been complied with in this case. The counsel for the plaintiff on the contrary maintained, in the first place, that the written paper being separate from the policy, was only a representation, and that it was sufficient to comply with it in substance, or to do what was equally beneficial to the underwriters; but, in the sccond place, that the terms had been strictly complied with, for that swivels were a species of guns, and that boys, in the maritime sense, were reckoned men or seamen, as opposed to passengers. The court were of opinion, that the word men in the marine language does include boys; but they chiefly went upon the distinction between a warranty and a representation, and held that in this case, the instructions, though in writing, yet being on a separate paper from the policy, were only a representation; and as they had not been departed from fraudulently, nor in a manner detrimental to the underwriters, the policy was in force against them. [16] Since reported, Coup. 785. 1778. BEAN against STUPART. *i 13 ] difference [4]. He said the nature of the voyage, which *was of a very dangerous sort, explained the condition, and that real seamen must have been meant. He also argued (though but slightly) that, whatever might be the construction of the policy, the plaintiff was not entitled to recover as for a total loss, because the ship had been retaken, and had never been infra præsidia hostium. Witnesses were examined to explain what is generally understood by the word seamen, and it was either in proof, or admitted, that, at the custom-house and Greenwich hospital, boys are included in that word. [4] At the Sittings at Guildhall after M. 19 Geo. 3. in a cause of Kenyon and another v. Berthon, the following words were written transversely on the margin of the policy: In port 20th of July, 1776."The ship was proved to have sailed the 18th of July, and Lord Mansfield held that this was clearly a warranty; and though the difference of two days might not make any material difference in the risk, yet as the condition had not been complied with, the underwriter was not liable. But, 1. though a written paper be wrapt up in the policy, when it is brought to the underwriters to subscribe, and shown to them at that time; or, 2. even though it be watered to the policy at the time of subscribing, still it is not, in either case, a warranty, or to be considered as part of the policy itself, but only as a representation. The first of those points occurred in a cause of Pawson v. Barnevelt (p), tried before Lord Mansfield at Guildhall at the Sittings in Trinity Term, 18 Geo. 3. where the policy was the same as in the case of Pawson v. Ewer. The counsel for the defendant (p) Thursday, 25 July, 1779. (q) Monday, 31 May, 1779. [F.1] But if a policy under seal refer to certain conditions contained in a printed paper without seal or signature, these conditions become part of the contract between the parties, and must be complied with, before the Lord offered to produce witnesses to prove, that a written memorandum inclosed, was always considered as part of the policy. But his lordship said, it was a mere question of law, and would not hear the evidence; but decided, that a written paper did not become a strict warranty by being folded up in the policy. The second occurred in Bize v. Fletcher (q) [+7], tried at Guildhall, after E. 19 Geo. 3. where it appeared, that, at the time when the insurers underwrote the policy, a slip of paper was wafered to it, describing the state of the ship as to repairs and strength, and also mentioned several particulars of her intended voyage, which particulars, in the event, had not been complied with. Lord Mansfield ruled, that this was only a representation; and, if the jury should think there was no fraud intended, and that the variance between the intended voyage as described in the slip of paper, and the actual voyage as performed, did not tend to encrease the risk to the underwriters, he directed them to find for the plaintiff, who accordingly had a verdict [F. 1]. [17] Infra, M. 20 Geo. 3. p. 271. assured can recover. Routledge v. Burrell, 1 H. Bl. 254. Worsley v. Wood, 6 T. R. 710 See also Bowden v. Vaughan, 10 East. 415. Lord MANSFIELD observed, in summing up to the jury, that the import of words must be collected from the subject, to which they are applied. That if, in the present case, the insured had stipulated for thirty seamen, besides boys and landmen, then it would have been clear that the terms had not been complied with; but that, in this policy, seamen were contrasted with passengers, and, in that sense, the word seemed to include boys as well as men: but he left the construction to the jury. The jury having found a verdict for the plaintiff as for a total loss, the defendant, in this term, obtained a rule to shew cause why there should not be a new trial. On the day for shewing cause, Lord MANSFIELD, after reporting the facts as above related, and that he had left the construction of the word " seamen" to the jury, observed, that he himself had thought there was little doubt on the question, after what had passed in the cause of Pawson v. Ewer. That the warranty might have been so worded as only to include able seamen (as if seamen had been opposed to landmen); but that, as expressed here, the contrast being with passengers, the whole of the crew or ship's company appeared to be meant. That this was the general maritime sense of the word. Bearcroft, and Lee, argued in support of the rule for a new trial. They observed, that, although the Solicitor-General, who had conducted the cause for the plaintiff, had not opened the stipulation in the policy expressly either as a warranty, or as a representation, but had insisted that it had been complied with, his lordship had assumed it to be a warranty; as they said it certainly was. That, being a warranty, the case of Pawson v. Ewer did not apply. That the sense of the word "seamen" is well understood, and the distinction between seamen and landmen or boys, as fully established as that between clergymen and laymen. That a seaman is only such a person as is liable to be pressed. As to the question, whether it was a total or an average loss, they cited the case of Hamilton v. Mendez (r), and contended, that the jury had never taken that point into their consideration. Lord MANSFIELD.-The whole argument for the defendant turns upon begging the question. There is no doubt, but that this is a warranty. Its being written on the margin makes no difference. Being a warranty, there is no doubt but that the underwriters would not be liable, if it were not complied with, because it is a condition on which the contract is founded. But the question is, whether, in this warranty, the word "seamen" was used in the strict literal sense or not. If it was, the warranty has not been complied with. VOL. I. (r) B. R. T. 1 G. 3. 2 Burr, 1198. It 1778. BEAN against STUPART. [ 14 ] |