Campbell, for the plaintiff.-I trust that we may be allowed to amend this under the stat. 9 Geo. 4, c. 14 (a). Lord TENTERDEN, C. J.-I do not think that this is a case in which I ought to allow it. This is not one of those cases, where there has been a verbal mistake in setting out some long written document. Campbell.—The plaintiff has given value for this bill, and the present objection is founded on a mere mistake in the drawing of the declaration; this seems to be the very case contemplated by the act. Formerly, there was a reproach on the law, that justice was often defeated by a too great strictness on these points, and, to remedy that defect, this statute was passed. Lord TENTERDEN, C. J.-The object of that act of Parliament was, to prevent a failure of justice from accidental errors. Now, this is a blunder which no man could make who would but use his eye-sight. I have always thought that we have gone too far from the strict rules, for the purpose of attaining justice in some particular case; the consequence of which has been, that those cases having been quoted as precedents, great laxity has been introduced into the practice. Campbell.-I apprehend that this bill is evidence on the count for an account stated; there is a privity between these parties, they are indorsee and indorser, and there is no intervening party. Lord TENTERDEN, C. J.-The bill is no doubt evidence for all purposes except to support this count. p. 594, and Bentzing v. Scott, post, (a) This act will be found, ante, Vol. 3, p. 298, n. (dj. See the case P. 24. of Ryder v. Malbon, ante, Vol. 3, 1829. JELF v. ORIEL. 1829. JELF v. ORIEL. The case proceeded on the account stated, and the defendants' counsel wished to shew that the bill had been paid to the plaintiff by a person named Hurd; and that the bill therefore passed through the hands of an intermediate party before it was in the possession of the plaintiff. But it being shewn that Mr. Hurd was merely acting as agent of the defendants, there was a Verdict for the plaintiff. Damages-2007. Campbell, and Brodrick, for the plaintiff. Denman, and R. S. Richards, for the defendants. Third Sitting in London, in Michaelmas Term, 1829. COR. MR. JUSTICE J. PARKE. Nov. 27th. BENTZING V. SCOTT. In a declaration ASSUMPSIT by the plaintiff as indorsee, against the defendant as on a bill of ex change, the date of the bill was stated to be the 26th of March; it really was the 29th. The cause was undefended, and the Judge allowed the variance to be amended under the stat. 9 Geo. 4, c. 14, with out the payment of any costs. the acceptor of a bill of exchange. The cause was undefended. But when the bill was put in, it was discovered that the date of it was the 26th of March, 1829, and that, in the declaration, the date was stated to be the 29th of March, 1829. Mr. Justice J. PARKE, allowed this to be amended under the stat. 9 Geo. 4, c. 14, without payment of any costs. Thesiger, for the plaintiff. Verdict for the plaintiff. [Attornies-D. Willoughby, and Scott.] 1829. ADAMS v. SAUNDARS. ASSUMPSIT on a policy of insurance, underwritten by the defendant for 2007., on the ship Earl of Dalhousie, and also on the goods and freight at and from Quebec to Liverpool. In some of the counts of the declaration, the plaintiff declared upon a total loss, and in others for an average loss (a). There were also the money counts, and an account stated. Plea-General issue. The policy, which was produced by a clerk of Messrs. Brown, Logan, & Co., through whom it was effected, was put in; and it appeared that the defendant's signature had been struck out, and the following memorandum written against it: Adjusted the general and particular averages at 301. 9s. per cent." To this memorandum the defendant had put his initials. 66 Oct. 23rd. If a policy of inproduced by the agent of the plaintiff, through whom it was effected, surance be and the defend ant's name be struck out, and have written against it, "adjusted the general and parti cular averages at 30%. 9s. per cent.;" this is proof that the policy has been adjusted, but not that it has been satisfied: but the plaintiff will not be allowed to go into evidence to shew that some of the sums allowed at the time of the adjustment ef were too small. If If the plaintiff Scarlett, A. G., for the defendant.-I submit that the plaintiff must be nonsuited. The policy is produced by a clerk of Brown, Logan, & Co., through whom it was fected, and it appears on the face of it to be satisfied. the name of the underwriter is struck out, it is to be presumed that the amount found to be due has been paid. Now, as this policy is produced with the usual tokens of adjustment and payment upon it, the plaintiff must shew that some fraud was practised on him to let in the tion whether it has been satisfied or not. If a party leaves his policy with the insurance broker, and lets him settle the loss, he cannot, after that, sue the underwriter; and if the broker acts improperly, his remedy is against the broker. After a policy is adjusted, it cannot be opened unless there has been a fraud; and as that cannot be presumed, the party who seeks to open the question, must begin by proving fraud. ques (a) None of the counts stated that the loss had been adjusted. the loss was set could shew that tled without his authority, or perhaps if he could shew that some sum was entirely omitted, he might go be yond the amount of the adjust ment. 1829. ADAMS บ. SAUNDARS. Campbell, for the plaintiff.-Looking at this policy, there is no proof of payment. We bring actions against the different underwriters, and they enter into a consolidation rule, and by that they admit the policy. Now, that is not admitting it as a satisfied policy; but, as I submit, they admit the policy by the consent rule, and so put us in the same situation as if the name had not been struck out, and we had proved it to be of the hand-writing of the defendant. Lord TENTERDEN, C. J.-This no doubt shews a settlement, but not a payment. Scarlett, A. G.-The name would not be struck out unless the money were paid. Lord TENTERDEN, C. J.-I believe they strike out the name when they adjust, and then pay the amount in a month or six weeks after. I think, as this policy comes out of the hands of the agent who effected it, I must take all this to have been done by the authority of the plaintiff, till the contrary is shewn. This, therefore, shews a settlement of the amount, but not a payment. Campbell, for the plaintiff, wished to shew, that, in the adjustment, too small a sum had been allowed. Lord TENTERDEN, C. J.-I cannot allow that to be done, unless it can be shewn that the settlement was made under such circumstances as to make it not binding on the plaintiff. I think that you must shew that this adjustment was made without authority; or, perhaps, if some sum were shewn to be wholly omitted, you might be allowed to open it; but not because the amount allowed is not sufficiently large. I do not see of what use an adjustment would be, if it could be opened. For the defence it was proved, that the sum of 607, 18s. had been paid by the defendant in account with Messrs. Brown, Logan, & Co., who appeared by the evidence for the defence to be the mortgagees of the ship. Verdict for the defendant. Campbell, and Wightman, for the plaintiff. Scarlett, A. G., and Patteson, for the defendant. [Attornies-A. Wilson, and Taylor & R.] It On the subject of adjustment, Mr. Justice Park says, (Law of Insurance, pp. 192 et seq.) "When the quantity of damage sustained in the course of the voyage is known, and the amount which each underwriter is liable to pay is settled, it is usual for the underwriter to indorse on the policy, 'adjusted this loss at so much per cent.,' or some words to the same effect. This is called an adjustment. It has been held by Lord Ellenborough, that if an agent had subscribed the policy and had authority so to do, he has authority also to sign the adjustment. has been determined, that, after an adjustment has been signed by the underwriter, if he refuse to pay, the owner has no occasion to go into proof of his loss, or any of the circumstances respecting it. This, it is said, has been the invariable custom upon this subject, which seems perfectly just, as the underwriter has, under his hand, expressly admitted, that the plaintiff has sustained damage to a certain amount. To be sure, if a fraud were discovered in obtaining the adjustment, that might be a ground for setting it aside. But, supposing the transaction fair, as we must always do till proof is given to the contrary, the rule of not suffering the adjustment to be contradicted, is fair and equitable." In the case of Hogg v. Gouldney, Lord Chief Justice Lee said, he considered the adjustment, with an agreement to pay, as a note of hand. But Mr. Justice Park observes, (p. 194), that the true rule may perhaps be collected from the cases of Rogers v. Maylor, and De Garron v. Galbraith. In the former of these cases, Lord Kenyon said, that he did not think it necessary to declare on the adjustment specially, that it was primá facie evidence against the defendant; but if there had been any misconception of the law or fact upon which it had been made, the underwriter was not absolutely` concluded by it. In the latter, the plaintiff relied only on the adjustment; but the witness who proved it swore, that doubts, soon after they had signed it, arose in the minds of the underwriters, and they refused to pay. Upon which, Lord Kenyon said, that, under these circumstances, the 1829. ADAMS บ. SAUNDARS. |