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In the Fifty-second Year of the Reign of George III.
AT the beginning of this term Sir Vicary Gibbs, His
Majesty's Attorney-General, was made a Judge of the
being called Serjeant, “ Leges Juraque.”
vacant for some time afterwards, owing to the arrangements not being complete for the new Ministry, upon the atrocious and lamentable assassination of Mr. Per. ceval, as he was going into the House of Commons on the 11th of May; till on the 27th of June, when Sir Thomas Plumer, the Solicitor-General, was promoted to be Attorney-General, and William Garrow, Esq. one
of His Majesty's learned Counsel, and AttorneyVol. XVI.
General to His Royal Highness the Prince Regent, as Prince of Wales, was appointed his Majesty's Solicitor-General, and knighted. At the same time Joseph Jekyll, Esq. one of His Majesty's learned Counsel, and Solicitor-General to the Prince, was promoted to the office of His Royal Highness's Attorney-General ; and Mr. Serjt. Shepherd, His Majesty's learned Senior Serjeant, was appointed to be the Prince's SolicitorGeneral.
Burks against Maine and Another, Bail of
A return of non est inventus HEATH obtained a rule, on behalf of the bail, for procured by the setting aside the writ of scire facias issued against plaintiff against the principal, in them, and the subsequent proceedings, upon the ground order to found proceedings
of irregularity; inasmuch as the defendant Renton, havagainst the bail, ing been arrested by the sheriff of Middlesex, at the suit of is irregular, if the principal the plaintiff, and having put in bail in Trinity term 1811, were at the same time in and judgment having been recovered against him, and a custody of the writ of capias ad satisfaciendum lodged with the sheriff, who made the was afterwards arrested by the same sheriff on the 1st of return, though at the suit of November last, at the suit of another party, and commitanother person; and the subse.' ted to his custody, and continued therein until the 11th quent proceed- of November, when he was removed by habeas corpus ings against the bail will be set into the King's Bench prison: and while he was in the aside.
sheriff's custody, the attorney of the present plaintiff, (who was also attorney for the plaintiff in the other suit,) procured a return by the sheriff of non est inventus, for the purpose of proceeding against the bail ; on which the scire facias against them was grounded,
Peake opposed the rule, and referred to Huntv. Coxe (a), and Barry v. Barry (b), as shewing that the Court considered the lodging the ca. sa. against the principal in the sheriff's office, and getting the return of non est inventus, as little more than form, and intended merely to intimate to the bail that the plaintiff meant to proceed against them; and shewing, also, that the sheriff's return was binding for this purpose.
But the Court said that the party procured the return of non est inventus at his own peril; and here he had procured a false return to be made, to the prejudice of the bail. They referred to Forsyth v. Marryatt and Grover, Bail of Clark (c), as in point to shew the irregularity, and made the
not be used to
Busk against BELL.
goods by the ship Christiana, at and from St. Peters- my's country, burgh to London; in which the loss was averred to be by set of British capture: and at the trial before Lord Ellenborough, C. J. merchants,canat Guildhall, the principal contention was upon the fact, cover a trading whether the loss was by hostile capture or by collusion ; merchants, which fact his Lordship left to the jury, who found a verdict without con
necting them for the plaintiff. But a question of law arose at the trial, together; as by
shewing that which it was reserved to the defendant's counsel to move, the licensees upon the application of the trading licence, covering the the time for the adventure, to the persons in whom the interest in the goods others. was averred in the declaration and proved to be, who
BUSK against BELL.
were Dawson, Burrell, and Gascoigne, British merchants residing at Wakefield in Yorkshire. The licence issued by one of the secretaries of state, in pursuance of His Majesty's order in council, under the authority given by the statutes 43 Geo. 3. c. 153. s. 16. and 48 Geo.3. c. 126. s. 2. was granted to Messrs. Robinson, Clarkson, and Co., of London, merchants; permitting them to load and export, on board the vessel Christiana, Schimmels, master, to any port in the Baltic, a cargo of British manufactures, &c. and to import from thence a cargo of grain, if importable, &c., and such goods as are permitted by law to be imported, &c. provided that the name of the vessel, her tonnage, and time of her clearance from her port, should be indorsed on the licence; (all which, with other stipulations, were regularly complied with in this case :) and a licence was necessary to legalize the voyage, inasmuch as Russia was at war with this country at the period of the adventure and assurance in question.
Carr, in moving in the last term to enter a nonsuit, or for a new trial, stated two objections to the plaintiff's right to recover under this licence; first, that there was no connection in fact proved by agency or otherwise between the grantees of the licence and the persons in whom the interest in the goods insured by the policy was averred to be. But secondly, if there were any connection between them, yet that the licence being specifically granted to Robinson, Clarkson, and Co., and not extending to others, or to other British merchants, as is commonly provided for in such licences, could not be used to protect any other property than their own. These licences, he said, were to be construed, like grants of the King, most strictly; and the very absence in the particular
case of the common words of addition and extension shewed that the government intended to confide personally in the individuals named to import as well export goods in this adventure; which personal privilege they could not communicate to others. A rule nisi having been then granted,
BUSK against BELL.
Barrow and Peake now shewed cause, contending that it was the particular cargo and adventure which was intended to be licensed, and not the identical persons named; the persons to whom the licence was transferred being also British merchants, and the national character of the adventure therefore remaining unaltered. In Feize v. Thompson (a), and Feize v. Waters (b), a special property in the cargo was held sufficient for the grantee of the licence to cover the adventure. [Bayley, J. Had you any evidence in this case to shew that Robinson, Clarkson, and Co., were the agents of Dawson at the time when the former took out the licence?] They were so in fact; Robinson and Co. chartered the ship, and shipped the homeward bound cargo for Dawson and Co.
Lord ELLENBOROUGH, C. J. There was no evidence of agency given at the trial; but the plaintiff may mend his case at a subsequent trial. At present the rule must be made absolute for a new trial; for I cannot say that a licence to import a cargo given to one set of persons will warrant an importation by another set of persons, unless the latter can connect themselves with the parties licensed (c). Per Curiam,
Rule absolute for a new trial
on payment of costs.
(a) 1 Taunt. 321.
(6) 2 Taunt. 248. (c) See Klingender v. Bond, 14 East, 484.