the entire ship, upon an adventure in which all the part-owners were jointly interested; the amount of the entire premium was carried to the ship's account in H.'s books, which were open to the inspection of all the part-owners, who saw the account, and never objected to it: it did not appear that the insurance broker knew the names of all the part-owners, or whether or not they had given authority to H. to insure: Held, that the jury were warranted in inferring a joint authority to insure, and that all the partowners were jointly liable for the premium to the insurance broker, notwithstanding he had debited H. alone, and divided with him the profits of commission upon effecting the insurance.

THE plaintiffs, as assignees of Tate, an insolvent insurance broker, sought, by this action, to recover from the defendants the amount paid for premium on policies of insurance effected by Tate in 1827, on the ships Dapper and Freak, of which the defendants were owners.

It appeared that Hollingworth, one of the defendants, and the managing owner, gave Tate orders to effect these insurances on the entire interest in the ships, and not on the several interests of each part-owner.

It did not appear that Tate knew that the Gleadows were partners, or whether or not they had given Hollingworth any authority to insure their several interests. He knew that Blundell and Hollingworth were part owners.

All the part owners were jointly concerned in the voyage insured; the insurance was made by Hollingworth for their joint account and benefit; the amount of the entire premium was carried to the ship's accounts in Hollingworth's books; those books were open to the inspection of all the defendants, who constantly frequented his office; and from the books an account relating to the ships in question was made out on a separate paper, which the defendants were seen to inspect, and to which they never objected.

*157] *The defendants put in evidence several letters and accounts for the purpose of shewing, that even if Hollingworth were authorised to effect an insurance for all the part-owners, Tate had afterwards so dealt with him, by agreeing to divide the profits of commission, and by allowing the premiums in question upon a settlement of account under that agreement, as to elect him for the sole debtor, and to release the other part-owners. Tate became insane and insolvent in March, 1828. He had debited Hollingworth alone; applications were proved to have been made to Hollingworth by Tate before his insanity, and by his assignees afterwards, for the amount of the balance due upon this mode of stating the accounts; and an action was originally commenced by the plaintiffs against Hollingworth, for the premiums in question. Hollingworth becoming bankrupt, the present action was commenced.

TINDAL, C. J. left it to the jury to say whether Hollingworth had authority from all the part-owners to effect the insurance, and whether Tate and Hollingworth had so conducted themselves as to show that they thought it a joint liability.

A verdict having been found for the plaintiffs,

Cresswell, moved for a rule nisi to set aside this verdict as contrary to the evidence, and also on the ground that the Chief Justice had omitted to point out to the jury that Hollingworth alone had been debited by Tate. He contended that Tate, notwithstanding he was ignorant of the names of the other part-owners, might be bound by his election of Hollingworth as his debtor; and he impeached the correctness of the decision in Thompson v. Davenport, 9 *158] B. & C. 78, where, at the time of making a contract of sale, the party buying the goods represented that he was buying them on account of persons resident in Scotland, but did not mention their names, and the seller did not inquire who they were, but debited the party who purchased the goods; and it was held that the seller might afterwards sue the principals for the price.

Maule, and R. V. Richards, who shewed cause, relied on the circumstance that the defendants, though not partners in their capacity of part-owners were partners in the adventure on which the insurance had been effected; and their

access to, and acquiescing in, the accounts of that adventure, was evidence from which it might be fairly inferred they had authorised Hollingworth to effect the insurance on their joint account. Thompson r. Davenport was a decision on the law of principal and agent; and, therefore, did not apply to a case of partnership.

Cresswell, Alexander, and Martin in support of the rule. Hollingworth not being a partner,-Helme v. Smith, 7 Bing. 709,-could only have acted as agent to the other part-owners in the matter of the insurance. Tate knew there were other part-owners, and, though he did not know the names of all, knew that Blundell and Hollingworth were two of them. He knew, therefore, that Hollingworth was acting as agent for the rest, and had the means of knowing their names; under those circumstances, having debited Hollingworth alone, be must be taken to have elected to give the credit to the agent rather than to the principals. In Reed v. White and others, 5 Esp. 122, which was an action for cordage sold, against the defendants, as owners of the ship Princess Mary, the *defendant White was the managing owner or ship's husband; the plain[$159 tiff took White's bill for the amount, which was dishonoured, and renewed and again dishonoured. For the other defendants it was insisted, that the plaintiff had discharged the other owners, who, in ignorance of this mode of dealing between the plaintiff and White, had suffered him to receive large sums of the East India Company for freight, which they would otherwise have detained. But Lord Ellenborough said, "If the plaintiff, dealing with White separately, has adopted him, he has discharged the others, and must have a ver dict against him; it was not necessary there should have been a receipt. If be has adjusted accounts with him on that footing, the other defendants are entitled to the benefit of it." So in Paterson v. Gandasequi, 15 East, 62, it was held that if the seller of goods,-knowing at the time that the buyer, though dealing with him in his own name, is in truth the agent of another,―elect to give the credit to such agent, he cannot afterwards recover the value against the known principle.

That was confirmed in Addison v. Gandasequi, 4 Taunt. 574; and the same principle was acted on in Robinson v. Wilkinson, 3 Price, 538.

At all events, Tate, by settling an account with Hollingworth, in which he included these insurances and shared the commission on them with Hollingworth, must be taken to have discharged the other defendants. Even in Thomson r. Davenport, 9 B. & C. 89, Bayley, J., said, "It is said, the seller ought to have asked the name of the principal and charged him with the price of the goods. By omitting to do so, he might have lost his right to claim payment from the principal, had the latter paid the agent, or had the state of accounts between *the principal and the agent been such as to make it unjust that the former should be called upon to make the payment." Cur, adv. vult.

[*160

PARK, J. Some things in this case are clear in matter of fact, and some in matter of law, none of which have been disputed at the bar. In the first place. though these four defendants were not general partners, it is admitted that they were all part owners of the two ships in question, and that Hollingworth was the managing owner. But it is admitted, and is no less clear, that though the managing owner of a ship, or, as he is called, the ship's husband, he has, in that character, no right to insure for his co-owners without an authority from them. express or implied. Therefore, if one part owner of a ship order an insurance of it, without authority from the others, he cannot charge them with part of the miums, unless the others afterwards assent to the insurance; French v. Backhouse, 5 Burr. 2727. It is true that that case turned much upon the compe tency of a witness, and it is equally true, that that was an action brought by the ship's husband against his co-owners for their share of the general premium. But I quote it for the opinion of Lord Mansfield and some of the other Judges, that, although there was no previous direction proved in that case, yet they were

pre

F

483 informed of it, and acquiesced in it; they were told of it and made no objec

tion.

The main question here is, Had Hollingworth a joint authority to make the insurance? I have looked carefully through the evidence, and although I cannot discover any previous order to insure, the jury have found that there was a joint authority; and I am of opinion that they were well warranted in coming to *that conclusion. I have examined carefully the notes of the Chief *161] Justice with which he has favoured me, and there is most abundant evi

dence given by two of the witnesses, that the other part-owners, the defendants, were continually coming to Hollingworth's counting-house; that they constantly saw and inspected the accounts on paper; that the books themselves were open for their inspection; the insurance was made for their joint account and benefit, and they never made any objection; therefore the case comes exactly within Lord Mansfield's doctrine, that they were fully informed of what was done, and acquiesced, never having made any objection.

The maxim, omnis ratihabitio retrotrahitur et mandato priori equiparatur, in my mind, well applies to such a case: and from the evidence given by the several witnesses, as it was a joint insurance, and which the parties had full opportunity of seeing from the books, and there was no concealment, they must have known that Hollingworth had made a joint insurance for all, and not for each man's particular share. The case of Helme v. Smith, 7 Bing. 709, is not at all at variance with this case, for there it was held, what no one can deny, that if a mere part-owner of a ship lays out money for the expenses of the outfit of a ship, he may recover against the others, not being partners in the transaction itself, but merely part-owners. And Lord Chief Justice Tindal, myself, and brother Bosanquet, expressly take the distinction between the one character and the other. And even if there had been an agreement between themselves that one should be the sole paymaster, that would not vary the rights of other persons as against them all. The case of Paterson v. Gandasequi, 15 East, 62, was relied *162] on by the counsel, who insists that the decision of the jury in *this case is wrong but it does not militate against what the Court is now about to do; for there a seller, knowing he was dealing with a mere agent of another man who lived abroad, gives credit to the agent only, debits him, sends him the invoices made out to him, and in his name, and dealing with him, and him alone, he cannot aferwards turn round and charge the principal, having made his election when he had the power of choosing between the one and the other. But even that case was sent back to the jury for further information, and though I was counsel in the cause, being now twenty-three years ago, I really forget what became of it. A case, however, against the same defendant, Gandasequi, was tried in the Common Pleas, about the same time at the suit of one Addison, 4 Taunt. 574, and it was not sent back, for the Court were clearly of opinion that the principal was not liable, although from both the cases it appeared that the foreign merchant, the principal, was present at the purchase and assortment of the goods, and had several meetings with the plaintiff, but the plaintiff made his election. But at all events, that was a case as between the character of agent and principal; and I think the fallacy of the present argument has turned upon stating Mr. Hollingworth to be a mere agent, and that principals were discovered afterwards, although this is a case of joint authority.

I think the other point, viz. if there was this joint authority, as I think there clearly was, has the manner in which Tate dealt with Hollingworth afterwards released the other co-owners?-does not arise. I cannot discover any evidence from which I can draw this conclusion; it is not to be found in any of the correspondence, or in any of the parol evidence. If, as was put to the jury, there had been any fraud, or if *Tate knew that there had been any settlement of accounts between them and Hollingworth, that might have raised a different question.

*163]

But it has been said, it was not fully put to the jury, that Hollingworth was

alone debited. The chief justice's attention was not called to that when summing up if it had, his lordship says he would have said something of it; and we all know his readiness to adopt suggestions respectfully addressed to him, as I am well assured this suggestion would have been, judging of the quarter from whence such a suggestion would have come in this case. But this is no ground for a new trial; and I am satisfied, that if it had been made, it could not, and ought not, to have any avail: when once the joint authority and joint benefit in this insurance is established, there is an end to the question. Indeed, I am myself satisfied, that although these four defendants were not general partners, and although one part-owner of a ship has not, in that station, a right to insure for the others, yet these defendants were special partners in the adventures in which these ships were engaged. I therefore think this rule must be discharged.

GASELEE, J. I think there can be no doubt that there was a joint authority; and I do not think it was at all made out that Tate knew who the part-owners were he had, therefore, no opportunity to exercise an election, and I consider that he, or those who represent him, have a right to go against all the indivi duals really liable, whenever they are discovered. As to the lying by, if Tate had been in circumstances to interfere, and he had lain by for an unreasonable time, there might have been some colour for the observations which have been addressed to us. But, under the circumstances of the case, I am of opinion that nothing *whatever has occurred to discharge any of the defend

ants.

[*164

VAUGHAN, J. If I saw that the jury had arrived at a wrong conclusion, I would, notwithstanding the cause has already been twice tried, consent to it going down to a third trial. It is admitted that the defendants were partowners of the ships; and the only question in the case in my opinion is, Was the order for insurance given upon the joint authority of all the defendants? In the argument urged on behalf of the defendants, the case was put upon two grounds: first, that it was substantially a case of principal and agent; and, secondly, that by the dealings which have subsequently taken place amongst the defendants, they were all discharged except Hollingworth. In order to substantiate and render available the first ground, it was necessary to impagn the judgment of the Court of King's Bench in Thompson v. Davenport: this was attempted to be done; but, in my opinion, not successfully. But, in truth, this is a case of joint liability, and not of principal and agent; and this, to my mind, affords a clear and satisfactory answer to all the arguments urged on the behalf of the defendants, and is the foundation of my judgment. I think it clear that there was a joint authority to insure: I should be even inclined to say there was a partnership. When the jury found there was a joint authority, I think there was an end of the case. Then, supposing there was an original joint liability, how is it possible to say that what has taken place amongst the defendants, behind the backs of all the parties on the other side, can have had the effect of discharging any of them? It has been urged that there was a third question which ought to have been left to the jury, viz., whether credit was given to Hollingworth alone. But unless it had been further proved *that [*165 Tate knew at the time what the other persons' intentions were, which clearly was not proved, I do not think their finding this question in the affirmstive would have made any difference. The other defendants would not be discharged, unless Tate had exercised an election; and unless he knew who the other persons were, I think he had no opportunity of exercising one. On the whole, I think the question was for the jury, and that they have come to the right conclusion.

TINDAL, C. J. I concur entirely in the opinions which have been expressed. It has been argued as a case of principal and agent; but it really was a case of joint liability: indeed, I might say, of partnership. I concur in thinking that this fact decides the case, and makes an end of the question. If I had left to the jury the question in respect of the sole credit having been given to Hol

lingworth, I certainly should have told them that there was no evidence whatever to shew that Tate knew who the other persons interested were; and, if he did not, their finding upon the point, would have been quite unavailing; for I am clearly of opinion, that such knowledge was essential to put Tate to his election. As to the other point, the subsequent discharge,-I am also clear what I said about partners was merely used as an illustration. It is true that the liability of one jointly liable may be discharged by a new agreement founded upon a good and valid consideration; but the case of Lodge v. Dicas, 3 B. & Ald. 611, shews how difficult a matter it is, when once a joint liability has been created, to obtain a release from it. In my opinion, the case has been properly decided. Rule discharged.

*166]

*WOOD v. HURD. June 16.

3,500l. having been awarded by a jury as damages in an action against an attorney for breach of promise of marriage, the Court refused to set aside the verdict on the ground that the damages were excessive.

THIS was an action for breach of promise of marriage, in which the jury gave a verdict for 3500l. The plaintiff was an attorney's daughter, the defendant an attorney.

It appeared that, by his father's will, the defendant had personal property bequeathed to him, which was sworn to be under 80,000, and was charged with annuities to the amount of 16507., and with the payment of 10,000l. down to a younger brother. All the testator's residuary estate was devised to the defendant.

Sir John Campbell, upon an affidavit that the residuary estate was not worth more than 5007., and that the personal property bequeathed to the defendant was so circumstanced that he derived no immediate income from it, moved to set aside the verdict on account of the damages being excessive; suggesting that the jury might have been misled as to the defendant's means, by considering the large legacy left to his younger brother as evidence of the value of the residuary estate.

THE COURT granted a rule nisi; but when cause was shewn, it appearing, upon examination of the affidavit used for the defendant, that, though not in the enjoyment of an immediate income under his father's will, he was entitled to considerable property in reversion, the rule was Discharged.

Sir John Campbell, Moody, and Butt, for the defendant.
Sir Frederick Pollock, and Atcherley, Serjt., for the plaintiff.

*167]

*PIERCE v. FOTHERGILL. June 16.

On a promissory note, payable on demand, where there is no proof of any agreement for interest, the plaintiff is only entitled to interest from the day of issuing the writ of

summons.

THIS was an action on a promissory note for 3917. 10s., bearing date August 1st, 1833, made by the defendant, and payable to the plaintiff, on demand, for value received.

The declaration contained no count for interest.

The witness who proved the defendant's signature, said the note was given for money advanced by the plaintiff.

The writ was served, March 22d, 1834. The cause tried, May 20th,