1829. FELLOWES v. Application was made, at the end of May 1827, on the part of Duffy, that the plaintiffs should furnish him with a small parcel of goods. The and ANOTHER plaintiffs said that, as the amount was small, they WILLIAMSON. had no objection; but that they could not deal with him further without making enquiries as to his character and circumstances; that they had the opportunity of doing so, and would accordingly do it. They immediately applied in consequence to the defendant, and received from him, on June 2d, a favourable representation, on which the action was brought. No application for goods was made by Duffy till the November following; at that time and in January 1828 he ordered goods, which were sent and never paid for; and in April 1828, he compounded with his creditors. The action was commenced before Michaelmas Term, 1828. Campbell for the plaintiff proposed to give evidence that, when they were applied to in November for goods for Duffy, they stated that they had received a favourable account of him, and would accordingly send them. Sir James Scarlett for the defendant objected to the evidence. The general rule is that a man's declarations are not evidence for himself; and the only exceptions, when declarations accompanying an act are admitted, are in cases where the declarations qualify the act, and are therefore necescessary for its explanation. Here the act is unequivocal; Duffy applies for goods, and has them. 1829. FELLOWES v. LORD TENTERDEN C. J. I cannot exclude the evidence. The cause turns, as far as this part of and ANOTHER it is concerned, merely on the question, Whether WILLIAMSON. the goods were furnished in consequence of the declaration; and what other evidence can there be of that fact? If it were not given, it would probably be urged that the supply of the goods, which were not furnished till five months after the representation, did not take place in consequence of, or in connection with it; and this, when in fact the representation was expressly referred to at the time. The evidence is perhaps liable to some observation; but I must receive it. I will, however, make a note of the objection. (a) In the course of his address to the jury, Sir James Scarlett observed that some doubt had been entertained whether the action was maintainable on this mere parol representation, with reference to the provisions of the stat. 9 G. 4. c. 14.; but that the counsel for the defendant had considered that question, and that the act, looking to the dates, did not apply. LORD TENTERDEN C. J. No, certainly the statute is out of the question. (b) Verdict for the plaintiffs. Campbell and Follett for the plaintiffs. Sir J. Scarlett Reader and R. V. Richards for the defendant. (a) See inf., Vacher v. Cocks. (b) Sup. p. 297. Hilliard v. Lenard. 299 n. Ansell v. Ansell. 1829. NELSON and Others v. SALVADOR. GUILDHALL, ASSUMPSIT on a policy of insurance on sugars on Awarranty to sail on or be fore a particular day, is not fulfilled, the ship board the ship George at and from Tobago, "warranted to sail on or before the 1st of August 1827; " the time of sailing being afterwards altered by the substitution of the 10th of August pletely un for the 1st. F. Pollock for the plaintiffs stated to the jury, that the ship was cleared outwards on the 9th of August, that the whole of her cargo and all her passengers were on board on the morning of the 10th, and that on the afternoon of that day she prepared to leave the port. She was then moored by two anchors. One of them was weighed, some of the sails set, and the ship proceeded about thirty fathoms, by heaving in that quantity of the cable of the remaining anchor. When they were about to heave that anchor, the captain observed a very heavy swell setting into the bay, and feared to take his departure lest he should be lost in getting out. Nothing more therefore was done until the morning of the 11th, when the ship actually left the port. She was lost on her way home. The learned counsel said, that the point arising on these circumstances was quite a new one; and the question was, Whether such a warranty meant more than that the ship should be in condition, and ready to sail if the weather permitted? It cannot be required that she should if does not com moor on that day, though she then has her cargo and passengers on board, and is quite ready to sail, and is only doing so by prevented stress of weather. 1829. NELSON and OTHERS v. SALVADOR. actually sail, to the imminent hazard of the ship and crew; and the underwriters would have had little reason to be satisfied, if she had sailed to fulfil the warranty, and had been lost in getting out of the harbour. The circumstances opened were then proved. Sir J. Scarlett for the defendant. Does not your lordship think the case is over? LORD TENTERDEN C. J. I think so; there is no sailing here. The warranty means that the ship shall be on her voyage on the given day. If the circumstances proved amounted to a compliance with it, the ship might be detained by bad weather for a fortnight or more without unmooring; and in that case the risk might be materially altered. The plaintiff must be nonsuited. His Lordship then turned to the jury, which was special, and said, "I hope, gentlemen, you agree with me ;" and several of them immediately expressed their concurrence. Nonsuit. F. Pollock and R. V. Richards for the plaintiff. 1829. DEBT. HAYWARD v. KAIN. The first count of the declaration stated that GUILDHALL, A declaration consisted of one special and several there were general counts issue. The others: Held, that he was entitled to recover on the general by certain articles of agreement between the defendant, as owner of a ship or vessel called To the spethe Sisters bound on the South Sea Whale fishery, cial counts and the master, officers, and crew of the said several special ship, of which crew the plaintiff was one, in con- pleas; to the sideration of the share against each person's name the general thereunder written of the net and clear proceeds of plaintiff enter-the cargo of oil, &c., which should be brought ed a nolle prosequi on the home in the said ship, they the said master, officers, special count, and joined and crew, did thereby severally and respectively issue on the promise and agree to and with the said owner, well and truly to perform the voyage; and that no one of the said officers and crew should be entitled to his share of the net proceeds until the arrival of counts,though the ship at London, and the sale and delivery of proved might the cargo, and the actual receipt of the proceeds have been given in eviby the owner, nor unless he should himself have dence on the special count well and truly performed the voyage according and the pleas to the true intent and meaning of the said arti- to it. cles. The declaration then averred that a certain agreement share and proportion of the net proceeds of the cargo was set opposite to the plaintiff's name, then and there written under the agreement, to wit, one hundred and fifth share: that the ship set sail the matters Articles of provide, that a receive for his portion of the net proceeds seaman shall wages a pro of the cargo, after the same are actually received by the owner, subject to certain stipulations as to the seaman's conduct: Semble, that his share may be recovered in an action for money had and received; the owner having received the money, and the seaman having fulfilled the stipulations on his part. |