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ROBERTS against READ.
on the 1st of May 1810, and on other days, wrongfully and injuriously dug up so much of the soil adjoining and near to the wall, on the side next the street for 200 feet, and removed the same, and thereby not only exposed and laid open the foundation of the wall to the rain and flowing of waters thereto, and to the frost and inclemency of the weather, but greatly weakened the wall ; by reason whereof 100 feet afterwards, on the 1st of September 1810, fell down, and the remainder was greatly injured. At the trial before Graham, B., at Bodmin, the case opened on the part of the plaintiff was,
that she sought to recover damages against the defendants for a wrong done by them in their capacity of surveyors of the highways for the town of Penzance, in undermining her wall; and it appeared in evidence that the act done by their order for the purpose of making some improvement in the street, and which ultimately occasioned the mischief, was in May 1810, though the wall did not fall till the 31st of January 1811, and that this action was not commenced till the 13th of April 181l; whereupon the defendants' counsel objected that the action was brought too late by the stat. 13 G. 3. c. 78. s. 81., which enacts, “that if any action shall be commenced against any persons for any thing done or acted in pursuance of this act, such action shall be commenced within three calendar months after the fact committed, and not afterwards.” And he contended that here the “thing done or acted” by the defendants was the undermining of the wall by digging up the highway by their order, and not the falling of the wall, which was a mere consequence of such wrongful act. The plaintiff, however, recovered a verdict for the amount of the damage sustained, by the direction of the learned Judge,
who gave leave to the defendants' counsel to move to set it aside, and enter a nonsuit, if the Court should be of a different opinion.
ROBFRTS against READ.
Jekyll now moved accordingly, and contended that the wrongful thing done or acted by the defendants, was the undermining of the wall, which happened more than three calendar months before the action commenced. The legislature limited the time so narrowly, in order that officers of this description sued for what they did ex officio might have the means of indemnifying themselves, if sued, while they were in office, or at least before they finally passed their accounts. [Bayley, J. How was the damage to be estimated before it actually happened ?] The probable damage might have been estimated by persons of skill. In Goding v. Ferris (a), it was considered that an action could not be maintained against customhouse officers for seizing goods, unless brought within three months after the actual seizure, although there was a continuing detention of the goods at the time of action brought.
Lord ELLENBOROUGH, C. J. It is sufficient that the action was brought within three months after the wall fell, for that is the gravamen: the consequential damage is the cause of action in this case. If this had been trespass, the action must have been brought within three months after the act of trespass complained of; but being an action on the case for the consequential damage, it could not have been brought till the specific wrong had been suffered ; and that only happened within three months before the action brought. Per Curiam,
Rule refused. (a) 2 H. Black, 14.
Tuesday, Nov. 10tb.
Eyre and Another against Glover.
An insurance THIS was an action on a policy of insurance, dated
THI may be effected on profits gene
London, 26th of August 1809, in the common more descrip- printed form, on a voyage, as described in written tion, and en words (a) from Riga to Hull, including the risk in grafted upon a policy on ship craft to and from the ship, with liberty to carry and and goods in the commonprinted exchange licences, clearances, and assimulated papers of form for a cer any description whatever, upon goods, and also upon the with a return of body of the ship Elizabeth, &c. “The said ship, &c. premium for short interest: goods and merchandises, &c. for so much as concerns the assured proving an in
“ the assureds by agreement between the assureds and terest in the
'ssurers, in the policy are and shall be (b) on profits," cargo.
(without further description,) at a premium of “20 gui-
(a) The written words are printed in italics.
EYRE against GLOVER.
thereon, to the amount of all the money insured on the said goods and the said profits respectively; and that the said policy was made on the said profits and for the use and benefit of the plaintiifs. And then the plaintiffs averred that after the loading of the goods on board the ship, to wit, on the 31st of October 1899, the ship with the goods on board set sail from Riga on the voyage insured, and in the course of the same was captured with the goods by the king's enemies, and thereby the said goods with divers great profits to the amount of all the money insured thereon, which the plaintiffs would have gained if the said goods had arrived at Hull, were lost to them; whereof the defendant on the 30th of November 1809 had notice, and by reason thereof became liable to pay the said 2001., &c. The declaration also contained the common money counts. The defendant pleaded non assumpsit, and paid the whole premium into court upon the count for money had and received.
At the trial before Lord Ellenborough, C. J. at Guildhall, it appeared that the plaintiffs had chartered the Elizabeth from Hull for Riga, to receive from their agents there a full cargo of hemp or flax. That she sailed from Hull under the king's licence, and complied with all the terms of it, and arrived at Riga on the 23d of September 1809. That the plaintiffs' agents, on the 24th of October 1809, shipped a cargo of flax on board the Elizaheth at Riga for Hull, in which the plaintiffs were interested from thence to the time of the loss, of the invoice value of 51161. 4s. 6d., the profit on which, supposing it to have been shipped and to have arrived in a sound state, would have been to the amount insured, which was 10001. The ship and cargo were captured by the Danes on the 17th of November. Objection was taken at the trial that this was a gambling policy, and therefore void': but Lord Ellen
EYRE against GLOVER.
borough, C. J. overruled the objection, seeing no distinction in principle between an insurance on profits valued, which had been held to be legal, and on profits without the valuation being ascertained in the policy, but left open to proof afterwards : id certum est quod certum reddi potest : and that the flax must be taken to have been shipped in a sound state, the contrary not appearing. The plaintiffs having recovered a verdict,
Richardson moved for a new trial, or in arrest of judgment, on the ground that profits generally, without more certainty, could not be insured. It is uncertain upon what they are to be calculated. Insurances of this nature have crept in by degrees. In Grant v. Parkinson (a) the profits insured were reduced nearly to a certainty. That case was followed by Henricksen v. Margetson (b), Barclay v. Cousins (c), and in all of them the profits were valued upon a specific cargo. But this case goes a step further than any of those ; for here, in order to ascertain the loss, evidence must be given of the state of the market. Then there is also to be a return of premium in the event of short interest; which means in case there shall be no profit on the cargo; not in case there shall be no cargo.
Lord ELLENBOROUGH, C. J. Are profits any thing more than an excrescence upon the value of the goods beyond the prime cost ? The difficulty of the calculation cannot affect the question of interest, or the legality of the contract. Short interest means no more than a short profit on the cargo to the extent of the whole sum insured. Per Curiam,
Rule refused (d). (a) Park, 267. 4th edit. (6) 2 East, 549. in note. (c) 2 East, 544. (d) Vid. Hodson v. Glover, 6 East, 316, and King v. Glover, 3 New Rep. 206.