in the estate, upon which the burthen was to be fixed; the 1828. rate was actually imposed; and thirdly, the issue there was, MARSDEN whether the inhabitants had from time immemorial repaired v. the chapel. [Bayley, J. Here it does not appear that the STANSFIELD, witness was an occupier of property liable to any chapelry rate.] The case of Deacon v. Cook (a), is a strong authority for the plaintiffs. There Mr. Justice Buller, in a question upon the boundaries of two adjoining parishes, held that a parishioner actually rated was not a competent witness to extend the boundaries of his parish, but he admitted such as were only liable to be rated. If any doubt could be entertained as to the competency of this witness as at common law, that doubt is removed by 54 Geo. 3, c. 70, s. 9, to which, in Rhodes v. Ainsworth, the attention of the Court does not appear to have been called; but in Meredith v. Gilpin (b), rated inhabitants were held to be qualified by this statute to be witnesses on a question where the lands were held in trust for the parish in the aid of the poor rates. Alderson, contrà. The Court will understand the allegation of the witness's being rateable, as meaning that he is liable to that which in a parish would be a church rate. In Rex v. Kirdford, the only matter in question was the validity of one particular rate in which the witness was not included. In Lord Clanrickarde v. Lady Denton (c), the issue was upon a custom for all overseers and proprietors of any coppices or woods, within the Weald of Kent, to be discharged of tithes for all manner of wood; and to prove the custom, the testimony of all those who were entitled, either as owners or farmers, to any wood within the Weald of Kent, was rejected. The statute applies only to existing rates, and here the question is not between the district on one side and the parish on the other. If the construction of (a) 2 East, 562, cited. (b) 6 Price, 146. (c) B. R. Mich. 17 Jac. 1; 1 Gwill. 360, 1 Eagle & You, 306; 1828. MARSDEN v. STANSFIELD. the act contended for were to prevail, or if this were to be considered as a case within the statute, this absurdity might follow, that a party who had a term of 999 years would be qualified by the statute, while the reversioner in respect of his minute interests would remain incompetent. BAYLEY, J.-It lay upon the defendant to shew that the witness was incompetent. The Court has no means of knowing whether this was a burthen or a benefit to the witness. Before we can exclude a witness on the ground of interest, we must see that it exists. The right of sitting and of sepulture in the chapel, and the exemptions from burthen in the mother church, may outweigh the disadvantages of any liability to rates within the chapelry. Deacon v. Cook and Rex v. Kirdford have established the principle, that a party rateable, but not rated, is not disqualified from being a witness. It is also a plain case upon two branches of the 54 Geo. 3, c. 170. That statute expressly provides for cases relating to rates and cesses. Another branch of the statute provides for cases relating to boundary: now the boundary of the parish may not be one continuous line. It raises the question what is parochial land and what not. Although it be insulated, you are still entering into a case of boundary; a piece insulated makes an additional boundary line. The witness is therefore not excluded at common law, and if he were, the construction of the statute is in favour of his admissibility. HOLROYD, J.-1 concur upon all three points. Rex v. Kirdford shews that the witness was competent at common Jaw; and then, under the statute, this case relates to rates and cesses; for if it does not, the objection to the competency of this witness could not arise.. I think also the case is within the second branch of the statute, as relating to the boundary of the district. LITTLEDALE, J.-I am of the same opinion. I think there was no objection to the witness on the score of interest at common law; but if he would have been inadmissible before, he is rendered competent by the statute. This is a question relating to boundary. I am not prepared to give an opinion upon the other point, arising out of the statute, namely, as to the clause relating to rates and cesses. Soon after the passing of the acts, several cases arose, in which different opinions were entertained upon that point. Rule for new trial discharged. 1828. MARSDEN v. STANSFIELD. HOLDSWORTH and another v. WISE and others. ASSUMPSIT, to recover the sum of 1,8007. for the alleged of A ship de serted at sea under a boná the assured to recover as for a total loss, is not affected stored at an expense equal total loss of the brig Westbury, under a policy of insurance by her crew, effected by plaintiffs, and signed by defendants, on a voyage fide belief that "at and from Belfast, to her port or ports of loading in she is sinking, British America, (the river St. Lawrence excepted,) during The right of is totally lost. her stay there, and back to a port of discharge in the united kingdoms, between Falmouth and Greenock, on the west side of England and Scotland, or any safe port in Ireland; to call at Cork for any orders." The brig was valued in the policy at 18007. The perils insured against were " the seas, men of war, fire, enemies, pirates, rovers, thieves, to her value; jettisons, letters of marque and countermarque, surprisals, ing the ship, taking at sea, arrests, restraints and detainments of all kings, under the circumstances, princes and people, of what nation, condition or quality negligence in soever; barratry of the master and mariners, and all other the crew. See perils, losses and misfortunes, that had or should come to the hurt, detriment or damage of the said ship, and the materials thereof; (offences against the revenue of Great in a policy on Britain excepted.)" The declaration stated, that plaintiffs were interested in the ship to the amount of 18007.; that her being sea nor is desert post, 683 (a). The implied warranty of a sea-worthiness ship, does not extend to worthy at every port which she leaves in the course of her voyage. 1828. HOLDSWORTH v. WISE. she sailed from Belfast upon the voyage insured; and, before its completion, was, by the perils and dangers of the seas, and by stormy and tempestuous weather, and by the violence of the winds and waves, wholly lost. Plea, nonassumpsit, and issue thereon. At the trial before Hullock, B., at the last assizes for Lancaster (a), the following were, in substance, the facts of the case: The ship sailed from St. Andrew, in New Brunswick, with a cargo of timber, on the 16th of September, 1826, bound for Valentia, in Ireland. She had fair weather until the 20th, on the evening of which day a gale came on, which prevailed until the 23d. On the 22d there was a very heavy sea, and the ship laboured very much, and was laid on her beam ends. The pumps were kept constantly going, and the timber on the deck was thrown overboard. A sea struck the jolly-boat, and carried it away. The ship remained on her beam ends until the afternoon of the 23d, when she was got before the wind, but would not answer the helm. The pumps were then choked, and the ship appeared to be sinking. The top-gallant masts were cut away, but that did not relieve her, and the crew, believing their lives to be in immediate danger, insisted on leaving the ship. They accordingly got into the long-boat, and were soon afterwards picked up by a foreign vessel, the Colombia, then in sight, and landed at Boston in America. The ship was leaky when she sailed from New Brunswick, and at that time made from eleven to twelve inches water every two hours. The ship was afterwards taken in tow by another vessel, the Bolivar, and carried into New York. She was there repaired, and sent from thence to Liverpool, where she arrived with heavy charges upon her for salvage and repairs, having met with another accident on her voyage from New York to Liverpool. She arrived at Liverpool under bottomry, with a charge of 1200l.; and the subsequent charges upon her amounted to SOOl. more. In a few days after the plaintiffs (a) Counsel for the plaintiffs, F. Pollock and Parke; for the defendants, Brougham and Starkie. knew of her arrival, they gave notice of abandonment. Four points were made for the defendants:-First, that the crew had been guilty of misconduct in abandoning the ship without sufficient cause, as appeared by the fact of her having been afterwards taken in tow by another vessel, and carried into New York. Second, that the policy included an implied warranty of sea-worthiness in the ship and good seamanship in the crew, at every port from which she sailed in the course of the voyage; and that as she was making from eleven to twelve inches water every two hours when she sailed from New Brunswick, she was not then seaworthy, nor did the master exercise good seamanship in sailing on such a voyage with a ship in such a condition." Third, that the plaintiffs had not given notice of abandonment within a reasonable time. And, fourth, that as the ship ultimately arrived at Liverpool, in esse, the plaintiffs could not recover for a total loss, but at most for an average loss only. The jury found in favour of the plaintiffs upon the first and third objections. The other objections were re served by the learned Judge, and, subject to them, a verdict was found for the plaintiffs, the amount of damages to be settled out of Court. A rule nisi having been obtained for setting aside the verdict, and entering a nonsuit, F. Pollock and Parke shewed cause. There are two questions in this case. The first is, whether the injury done to the vessel, which occasioned her leaking, assuming' it to have been occasioned by the negligence of the master and mariners, had the effect of vitiating the policy between the assured and the underwriters. That question seems to have been set at rest by the decision of this Court in the very recent case of Bishop v. Pentland(a): for the Court there, acting upon the two cases of Busk v. The Royal Exchange Assurance (b), and Walker v. Maitland (e), laid it down as a rule of law, that the negligence or mismanagement of the (a) Ante, 49. 7 B. & C. 219. (c) 5 B. & A. 171. (b) 2 B. & A. 73. 1828. HOLDSWORTH v. WISE. |