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BAYLEY, J. To make Humble liable, he must either have been a partner in fact in the loss and profit of the ship, or he must have held himself out to be such. Now here he was not in fact a partner, and the goods were not furnished upon his credit, but upon the credit of Holland and Williams. But it is said that we must look for this purpose to the registers, to see who are the legal owners. The object however of the registry acts was to inform the government whether the owners were British, and to prevent ships belonging to foreigners from being navigated under the British flag; and the object was not to inform the tradesmen to whom they should give credit. The cases of Young v. Brander (a), and Frazer v. Marsh (b), both shew that a person may be deceived as to the true owner by looking merely at the registers, and that therefore, before trust is given, it is proper for the tradesman to inquire further.
Rule absolute for entering a nonsuit. (a) 8 East, 10.
(6) 13 East, 23.
NONNEN against Reid. June 17th.
The Same against KETTLEWELL. The plaintiff
THIS was an action against an underwriter upon two was entitled to recover a loss policies of insurance in the usual form effected on of goods insured at and the 28th of April 1810, upon the ship Tre Systrar, from Landscrona to Wolgast ; though they were shipped at Gottenburgh before the ship arrived at Landscrona, and though the policy was declared to be at and from the loading of the goods on board the ship; it appearing that the underwriter was informed at the time that the goods were loaded on board at Gottenburgh; and that part of them were landed and reloaded at Landscrona, so as to enable the custom-house officers there to ascertain the quality of the whole, and to adjust the duties; and the policy being free of average. A mere representation that the cargo was Swedish, and neutral, which was true in fact, though contradicted by the French sentence of condemnation, was no objection to the plaintiff's recovery; nor the want of documents as Swedish property, required only by French ordinances. The exclusion of the British flag from Swedish ports, not appearing to be by French control, and Sweden not being a co-belligerent with France, was held pot to be within the prohibition of the order in council of the 7th of January 1807.
valued at 11001., and on 6l casks of sugar on board thereof, valued at 28001. ; the sugar free of particular average, at and from Landscrona to Wolgast, free of capture in either port, at a premium of 3 guineas per cent. The declaration stated the interest on the ship and goods differently in different counts; but the fourth count on each of the two policies respectively stated the interest to be in one A, E. Berg, as to the ship, and A. R. Lorent, as to the goods, and averred the loss to be by capture. The defendant pleaded the general issue, and paid the amount of the premium into court on the count for money had and received ; and at the trial before Lord Ellenborough, C. J. at Guildhall, the jury found a verdict for the plaintiffs for 3501., (the amount of the insurance) subject to the opinion of the Court on the following
And it was agreed that the several orders in council and instructions mentioned, and the sentence of condemnation annexed, should be referred to as part of the case.
The Tre Systrar was the property of A. E. Berg, a Swede: she had been a Danish ship captured by a British ship of war, and sold by the captors to A. E. Berg; and the sugars were in fact the property of A. R. Lorent. Both Berg and Lorent were Swedish subjects, and the shipand cargo had in fact the usual Swedish documents. The insurance was effected by the plaintiff, on account of the proprietors, on the 28th of April 1810, in consequence of orders received for that purpose from Gottenburgh, dated the 17th of April 1810; and the ship and cargo were both represented by the plaintiff, in his instructions to the brokers, (which instructions were shewn to the defendant,) “to belong to one and the same proprietor, all Swedish property.” It was also stated by him in the same instructions, that the cargoes had been shipped at GottenVol. XVI. N
1812. burgh on board the same vessel some months before, and that
the said cargo had not been unloaded after its arrival at NONNEN against
Landscrona. The ship was originally loaded at GottenKETTLEWELL. burgh, and proceeded with her cargo to Landscrona, where
she arrived safe on the 18th or 19th of April; and after the order for insurance had been dispatched from Gottenburgh, a part of the cargo was taken out of the ship’s hold and landed on the quay, and replaced in the ship : a sufficient quantity was taken out to enable the custom-house officers at Landscrona to inspect and examine the whole cargo on board, the duties on which were paid. The ship with the sugars on board sailed from Landscrona on the 25th of April 1810, and on the 28th of the same month was captured by a French privateer, and carried into Dantzig ; and on the 1st of August 1810 was condemned by the imperial court of prizes at Paris, by a decree, of which the following is a copy, translated from 'the French language.
The imperial council of prizes have pronounced the following decree :-Seen the report of the 3d May 1810 made to the French consul-general at Dantzig by Mr. Brandenburgh, an officer on board the French private ship of war Wagram, respecting the capture made by the said private ship of war on the 28th April preceding, off Withermunde, at the distance of about eight miles from the shore, of the ship called the Tre Systrar, under Swedish colours, commanded by Capt. Volcher, having on board a cargo of sugar, unprovided with a certificate of origin.-In which report Mr. Brandenburgh acquaints the consul that the prize is just arrived in that port, and adds, that notwithstanding five shots had been fired at the said ship, she had attempted to escape by favour of the night, and refused to bring-to until the last moment. -Seen the deposition of Erich Gusta Ederstrom, mate
on board the ship Tre Systrar, taken on the 5th of the same month, before the consul-general; stating that she was proceeding from Landscrona, where her cargo had been taken in. That the said cargo was originally shipped at Gottenburgh under destination for Landscrona,but discharged in the latter port, and afterwards re-laden. To the interrogatory inquiring why there was no certificate of origin on board from the French consul; he answered, that there was no French consul at Landscrona; and that moreover it was no concern of his. To the inquiry why he had not taken a certificate from the magistrates of the place, he answered, that it was the business of the broker or expeditor, and not his. With regard to the rest, he affirmed that he had not been visited or fallen-in with by any English vessel since his departure. These answers were confirmed by those of the two seamen; and the verbal process drawn up on occasion of the examination, shews that the Captain Carl Gustar Volcher could not be examined in consequence of an inflammation on the lungs.-Seen the papers on board the ship, consisting of 1st, A certificate, dated Gottenburgh, 14th Nov. 1809, from Mr. John Norris, then the consul of the English government in that place, stating the Danish galliot Three Sisters, Peter Thusen master, to have been taken and carried into Gottenburgh by his Britannic majesty's sloop of war Avenger, Thomas White commander: that the said captain was examined before the court of vice-admiralty, and that his deposition was transmitted to the judge of the high court of admiralty of England, in order to obtaining a regular condemnation of the said galliot and her cargo. The signature of the said Mr. Norris was legalized on the 12th of Feb. 1810 by a notary, who styles himself English vice-consul. 20, Act under private signature, passed on the said 14th of Nov. 1809, in the
1812. presence of two witnesses, whereby Messrs. Lasseune,
Lander, and Co. declare that under and by virtue of the NONNEN. against
capture, effected by the Avenger sloop, of the galliot Tre KETTLEWELL. Systrar, and in execution of the orders of Mr. Thomas
White, and in his presence, they have sold and do sell to A. E. Berg, of Gottenburgh, Esquire, the said ship Tre Systrar, for 9001., of which they give him acquittance. 3d. Measuring bill, dated Gottenburgh, 13th Feb. 1810, of the galliot Tre Systrar, C. G. Volcher master, wherein she is stated to have been built at Ek, and to be of the burthen of 21+ great lasts. 4th. Certificate from the custom-house of Landscrona of the 21st of April 1810, stating that Captain C. G. Volcher, of Gottenburgh, last from that port, and purposing to proceed from Landscrona to Wolgast with the galliot Tre Systrar under his command, laden with sixty-one casks of Muscovado sugar, has reported the said goods, and paid the duties thereon in consideration whereof he may freely depart from the said port after search. 5th. Certificate of the 26th of May 1810, ascertaining Capt. Volcher to have presented himself at the Danish custom-house of the Sound, bound from Gottenburgh to Landscrona, with 64,300lbs. sugar, and 160 ro. of cork. 6th. Muster-roll of the crew, dated Landscrona, 21st of April 1810, stating the ship to be on the point of sailing for Wolgast. 7th. Letter, dated Gottenburgh, 12th April 1810, from Mr. A. E. Berg, the owner of the ship, addressed to Mr. Sylvander at Wolgast; wherein he gives him instructions for the sale of the cargo and realization of the funds for his own account. 8th. Instructions dated at Gottenburgh on the 13th of the same month, delivered by the said owner to Capt. Volcher, which are drawn up to the same effect, and charged the captain' to address himself to Mr. Sylvander. 9th. Bill of lading in duplicate, dated Lands