1778. It is a matter of construction. Boys are reckoned seamen, not only at the custom-house, and Greenwich hospital, but BEAN in the distribution of prizes. I think the parties were not against sanguine at the trial. The special jury, and the bye-standers, STUPART. were perfectly clear. They hardly seemed to think it a serious question in this cause. There is scarcely now such a thing as a ship entirely manned with seamen strictly so called. Even on board the King's ships, they are satisfied with a few strict seamen, and able-bodied landmen make up the rest of the crew. I had no doubt of the sense of the word in this policy, and the jury decided it. With regard to the other question, it was stated as a forlorn hope; but certainly, when the action was brought, there was no prospect of a recapture of the ship; she was considered as totally lost in a remote part of the world. The report which afterwards prevailed of her being retaken, some months after the capture, was loose and general ;-no circumstances known, no account of her situation, nor of what part of the cargo might be saved. In short there is no doubt, but that it was a case where the owner might abandon [F2]. The rule discharged. [ 15 ] Under an agreement to perform one or two things, the op tion is, in the LAYTON against PEARCE. BY the Lottery act of 1777, (17 Geo. 3. c. 46.) a penalty of £500 was given to be recovered in a qui tam action against person who is to perform.-If one of the two things is prohibited under a penalty, no action will lie for the penalty, until the party makes his election by performing the prohibited part of the contract. [2] This case, and those referred to in the notes, have always been considered as leading and decisive authorities. In the case of De Hahn v. Hartley, however, an attempt was made to bring them in question, but without success. In that case the insurance was at and from Africa, with a warranty in the margin, that the ship sailed from Liverpool with fifty hands. It was found by the special verdict, that the ship sailed from Liverpool with only forty-six hands, and took in six more at Beaumaris; and that the voyage from Liverpool to Beaumaris was as safe as if there had been fifty. And the court decided that this was a breach of warranty ; which must be strictly and literally complied with, not merely equitably and substantially, as a representation must though it was attempted to distinguish that case from this of Bean v. Stupart, by urging that what was there written in the margin related to the state of the ship at Liverpool, before the commencement of the voyage insured, and was therefore unconnected with the risk, and to be considered merely as a representation. And the decision of De Hahn v. Hartley was afterwards unanimously affirmed in the Exchequer Chamber. 1 T. R. 343. 66 against any person-" Who should receive any money whatsoever in consideration of repayment of any sum or sums "of money, in case any ticket or tickets in the said lottery "should prove fortunate, or in case of any chance or event relating to the drawing of any ticket or tickets in the said "lottery, either as to the time of such ticket or tickets being "drawn, or whether such ticket or tickets should be drawn "fortunate or unfortunate."-This was an action upon that statute, against a lottery-office keeper. The declaration contained three counts.-The first stated that the defendant had received £1, 6s. from one Robert Griffin, in consideration of repaying the value of an undrawn ticket, if the above number should be drawn on the ensuing day.-The second, that he had for the like sum, and in the like event, undertaken to deliver an undrawn ticket.-The third only differed from the first, in stating the stipulation to have been to pay a precise sum (of £20) on the like event, and in following more accurately the words of the statute.-The agreement proved at the trial was in the alternative, viz. that Griffin had paid to the defendant £1, 6s. on condition that if the ticket No. 37,733, in the lottery then drawing, should come up, either a blank or prize on the ensuing day, he (the defendant) would either deliver to Griffin an undrawn ticket, or pay him £20. He had not in fact done the one thing or the other. The cause was tried before Lord MANSFIELD, at Guildhall, and, a verdict having been found for the plaintiff, Dunning moved for a rule to shew cause why it should not be set aside, and a nonsuit entered:-1. Because the agreement proved, did not correspond with that stated in any one of the three counts in the declaration:-2. Because the agreement as proved would not maintain the action, for that, being optional, it was not within the provisions of the statute. The rule was granted, and the Solicitor-General, and Lane, shewed cause. They said, that the plaintiff, by bringing this action, had made his election [5], and had converted the contract into an absolute agreement for the payment of money. 1778. LAYTON against PEARCE Dunning, and Davenport, on the other side. They ob- [ 16 1 served that this, being a penal statute, was stricti juris, and that the plaintiff, by not stating the contract on the record exactly as the fact was, had deprived the defendant of the means of bringing its legality before another court by a writ of error. [5] The plaintiff here was a third person, and not the insured. Griffin indeed was the witness who proved the transaction at the trial, but it Upon would have been a violent presumption indeed, to have considered that as a constructive election. 1778. LAYTON against PEARCE. Upon a question from the court, the Solicitor General said, that, by the general practice, the option in such transactions was in the insured. The court took some days to consider. -- Lord MANSFIELD. We are of opinion that, if the option had been in the insured, and if he had made his election to take the £20, the contract would have been sufficiently stated, because he would thereby have converted the agreement into an absolute contract for the payment of money, and then the other part of the alternative in the original bargain would become surplusage. In an action on the statute of 2 Geo. 2. c. 24. against bribery, the act of bribery laid, was the corrupting a voter to give his vote for Mr. Lockyer and the Earl of Egmont, and the evidence was, that the contract was to vote for Mr. Lockyer and his friend. The court held, that, by that part of the transaction by which the voter was corrupted to vote for Mr. Lockyer, the offence was compleat, and that the rest was surplusage, and needed not to be proved (s). But, though the practice may be, that the insured shall have the option, in point of law, the person who is to perform one of two things in the alternative has the right to elect. This has been established by a variety of cases. The present action, therefore, cannot be supported [6]. (s) Coombe v. Pitt, M. 5 Geo. 3. B. R. 3 Burr. 1586. But vide Bristow v. Wright, infra, E. 21 Geo. 3. p. 640. [ Churchill v. Wilkins, B. R. M. 27 Geo. 3. 1 Term Rep. 447. On the argument of that case at the bar, the accuracy of this report of Layton v. Pearce seemed to be questioned; but, besides other proofs I could mention of its correctness, I have had an opportunity of comparing it, with a note taken at the time, by Judgment of nonsuit [F 2.] the late Sir Thomas Davenport, with which it exactly corresponds. [F 1.] [6] Part of Dunning's rule was for a new trial, on the ground, that, according to the weight of evidence given at Nisi Prius, the office was not kept by the defendant, but another person. But the discussion of that part of the case became unnecessary, by the opinion delivered by the court on the other point. [1] In that case it was held. that proof of a contract to sell tallow at 4s. per stone, or for whatever higher price plaintiff should pay to any other person, would not support a count on a contract to sell absolutely at 4s. and that case was distinguished from this of Layton. Pearce, as not being an alternative depending upon option, but upon a contingency. This dis tinction, however, has since been rendered unnecessary by the cases of Penny v. Porter, &c. cited below. [F 2.] The point in judgment before the court in this case seems unquestionable, viz. that the statutable penalty was not incurred, the offence of the defendant being incomplete before the payment of money. But the opinion delivered by Lord Mans 1778. WOOLDRIDGE against BOYDELL. for one voyage, be taken before the dividing point of the two licy is disvoyages, the po charged. [ 17 ] THE HE ship Molly being insured" At and from Maryland If a ship insured "to Cadiz," was taken in Chesapeak Bay, in the way sails upon anoto Europe. Upon this, the insured brought this action ther, though she against the defendant, one of the underwriters on the policy. The trial came on at Guildhall, before Lord MANSFIELD, when a verdict was found for the defendant, and, a new trial being moved for, the material facts of the case appeared to be as follows:-The ship was cleared from Maryland to Falmouth, and a bond given that all the enumerated goods were to be landed in Britain; and all the other goods in the British dominions. An affidavit of the owner stated that the vessel was bound for Falmouth. The bills of lading were "to Falmouth and a Market." And there was no evidence whatever that she was destined for Cadiz. The place where she was taken, was in the course from Maryland both to Cadiz and Falmouth, before the dividing point. Many circumstances led to a suspicion that she was, in truth, neither designed for Falmouth nor Cadiz, but for the port of Boston, to supply the American army; but there was not sufficient direct evidence of that fact.-At the trial, Lord MANSFIELD told the jury, that if they thought the voyage intended was to Cadiz, they must find for the plaintiff.-If, on the contrary, they should think there was no design of going to Cadiz, they must find for the defendant. The Solicitor General, Dunning, and Davenport, argued for the new trial.-They contended that this was like the cases of an intention to deviate where the capture had taken place field, "that where a contract is op“tional in a party, and he makes "his election, the option is thereby "determined, and the contract may "then be declared on as an absolute before laid the agreement in his declaration as an absolute agreement to deliver 40 on that day and 60 on the following: and it was held that the evidence did not support the declaration, which contract," was observed by Lord ought to have stated the contract in Kenyon, in the case of Penny v. the alternative, according to its oriPorter (Selw. N. P. 90.) to be extra- ginal terms. 2 East. R. 2. The cases judicial; and appears to be incorrect. of Tate v. Wellings, 3 T. R. 531. and In that case the contract was to sell White v. Wilson, B. & P. 116, confirm 100 bags of wheat, 40 or 50 to be de- this position, that an alternative agreelivered on that market day, the re- ment cannot be pleaded as an absomainder on the following: the de- lute agreement; though the option fendant did deliver 40; and the plain- lay in the party pleading, and has tiff brought his action against him been determined. for non-delivery of the remainder, and 1778 WOOL before the deviation was carried into execution; and they cited Foster v. Wilmer (t), Carter v. The Royal Exchange Assurance Company, cited in Foster v. Wilmer, and Rogers v. Rogers, a very late case in this court.-They, besides, against urged, that, by "a Market" in the bills of lading, and in the BOYDELL. instructions to the broker (where that expression was used, but DRIDGE [ 18 ] which I believe had not been read at the trial), was meant Cadiz. And that "to Falmouth and a Market" might be considered as meaning to the market at Cadiz, first touching at Falmouth.-(It appeared in evidence at the trial, that the premium to insure a voyage from Maryland to Falmouth, and from thence to Cadiz, would have exceeded greatly what was paid in this case.) Lee, and Baldwin, shewed cause.-They argued, that here there had been no inception of the voyage insured, and therefore the case was very different from those cited by the counsel for the plaintiff. Lord MANSFIELD,-The policy, on the face of it, is from Maryland to Cadiz, and therefore purports to be direct a Voyage to Cadiz. All contracts of insurance must be founded in truth, and the policies framed accordingly. When the insured intends a deviation from the direct voyage, it is always provided for, and the indemnification adapted to it. There never was a man so foolish as to intend a deviation from the voyage described, when the insurance is made, because that would be paying without an indemnification. Deviations from the voyage insured, arise from after-thoughts, after-interest, after-temptation; and the party who actually deviates from the voyage described, means to give up his policy. But a deviation merely intended, but never carried into effect, is as no deviation. In all the cases of that sort, the terminus a quo, and ad quem, were certain and the same. Here, was the voyage ever intended for Cadiz? There is not sufficient evidence of the design to go to Boston, for the court to go upon. But some of the papers say to Falmouth and a Market, some to Falmouth only. None mention Cadiz, nor was there any person in the ship, who ever heard of any tention to go to that port. "A market" is not synonymous to" Cadiz," that expression might have meant Leghorn, Naples, England, &c. No man, upon the instructions, would have thought of getting the policy filled up to Cadiz. In short, that was never the voyage intended, and consequently is not what the underwriters meant to insure. in WILLES, and ASHHURST, Justices, of the same opinion. BULLER, Justice,-I am of the same opinion. I believe the law to be according to the authorities mentioned on the part of the plaintiff, but it does not apply here. This is a question of fact. There cannot be a deviation from what never (t) H. 19 G. 2. 2 Strunge 1249. existed |