1805.

ground I think it was evidence; but I also think the evidence was properly admitted on the other ground stated by my AVESON lord. For she had been examined by the surgeon as to her against KINNAIRD. state of health on the 9th of November, and the surgeon was called as a witness by the plaintiff, to prove what, in his judgment, was the state of her health when he examined her; which judgment was in course formed in part from her answers to his inquiries. Then her subsequent declarations were evidence to shew, that in truth she was not in the state at the time which she represented herself to be in to him. In strictness, such declarations are admissible not so much. as evidence of confession of the wife against her husband, as of the actual state of her health in her own opinion at the time; but in getting at this opinion, it is impossible to help particular expressions mingling with it, and coming out from the witness to explain that fact, which are not evidence of the particular facts alluded to; but they were not tendered or received as evidence of such particular facts.

[ 198 ]

LAWRENCE, J. I am of the same opinion. One ground of objection is, That the account given by the wife to Su sannah Lees went to criminate her husband, by shewing him guilty of a fraud; but that does not follow; for it is only the conception of the wife, that if she died before the policy was returned, her husband would lose the benefit of it. She did not mean to criminate, nor did she appear to conceive that she was criminating either herself or her husband by that expression. As to the general ground of objection to the evidence as hearsay, it is in every day's experience in actions of assault, That what a man has said of himself to his surgeon is evidence, to shew what he suffered by reason of the assault. The wife was found in bed at an unusual time; she complained of illness, and naturally answered her friends' inquiries by describing how long her health had been bad; and she carried it to a period antecedent to her examination by the surgeon at Manchester. In order to know whether she were in a good state of health on the day of the insurance, it was material to ascertain what the state of her health was both before and after that day. If what she said to Susannah Lees were not evidence against her husband, then what she said to the surgeon could not be evidence for bim; yet the testimony of the surgeon was brought forward

by

1805.

AVESON

against

by the plaintiff, in order to shew that the woman was an insurable life at the time. The plaintiff had, therefore, made it evidence by his own examination of the surgeon and if that were evidence when making for him, the same sort of Ld.Kinnaird. examination could not cease to be evidence because it turned against him. But even if every thing said by the woman were struck out on the one side, and the evidence of the surgeon founded on his examination of her and her answers to his inquiries on the other side, there would still be abundant evidence to shew that this verdict was right (a). Rule discharged.

(a) Le Blanc, J. was absent, from indisposition.

[199]

BENTINCK against DORRIEN and Another.

Thursday,
Feb. 7th.

Whether or not of a bill once made by the cancelled or reCalled by him

an acceptance

drawee may be

before the bill

be delivered holder, at all events if the ac cancelled, and the holder

back to the

ceptance be so

cause the bill

THE HE plaintiff brought an action as indorsee of a bill of exchange against the defendants as acceptors; which action was referred to Mr. Serjeant Bayley; who reciting in his award that it appeared to him that the said bill, drawn by Mr. Rygerbos of the Hague on the defendants in London, was left by the plaintiff, to whom it had been indorsed, for acceptance with the defendant on the 31st of May last, and that they had signed an acceptance thereon; but that on the 1st of June following, and before the bill was called for, they had cancelled that acceptance: and that also it appeared to him, the arbitrator, upon the production of to be noted for the bill, that the plaintiff had caused it to be noted non-acceptance; was thereupon of opinión, that the plaintiff by such noting it for non-acceptance, had precluded himself from insisting that the defendants had by law bound themselves to pay the bill; and, therefore, awarded for the defendants. A rule nisi was obtained on a former day for setting aside the award as bad on the face of it, úpon the ground that an acceptance of a bill once made, could not be retracted in point of law: which rule

for

Lawes was now called upon to support; who contended for the general principle, That acceptance of a bill could not be gotten rid of by cancellation; for as soon as the accept

non-acceptance, wards sue upon

he cannot after

it as an ac

1805.

BENTINCK

against DORRIEN.

[200]

ance was written, third persons acquired an interest in it, which could not be divested by the subsequent act of the acceptors alone; and he referred to the Hamburgh ordinance, where that is laid down and which had been recog nized to be the law of merchants here in a case of Tummer v. Oddie, sittings after Easter term 1800; where a bill having been left for acceptance, and once accepted, but the acceptance was afterwards cut off, and the bill returned in that mutilated state, Lord Kenyon, C. J. was clearly of opinion, That the acceptance once made could not be revoked; and that the acceptor was still bound. [And in answer to an observation by the Court, That the plaintiff himself had agreed to treat it as a non-accepted bill, he said,] That the protesting the bill for non-acceptance was the act of the notary, and a wrong conclusion of his in point of law; which ought not to prejudice the plaintiff, if by law the acceptance is in force.

Lord ELLENBOROUGH, C. J. The rule is certainly laid down in the Hamburgh ordinance, as stated, That an acceptance once made cannot be revoked; though, to be sure, that leaves the question open as to what is an acceptance, whether it be perfected before the delivery of the bill: but I should consider the general question as one of great magnitude, and worthy to be considered in the most solemn manner before it is decided, That after an acceptance once clearly made, it could be explained away by any obliteration of it ex parte. I can readily conceive that great inconvenience would ensue from letting in such a practice: but the difficulty here is to bring this case within the general rule of an acceptance once made; where the holder himself agrees to consider it as no acceptance, and acts accordingly by getting it protested for non-acceptance. Can he then blow hot and cold, and revoke all that he has before done as done unadvisedly, and now say that he will consider it as an acceptance? I was struck at first with the consideration [201] how far this might affect the rights of third persons; but on further consideration, if this be an acceptance in law, notwithstanding the obliteration before deliverd to the holder, it will still remain so as to such third persons. But I think that this plaintiff has concluded himself by the act of his. authorized agent, from contending that it is an acceptance.

If the notary has acted improperly, and without authority, the plaintiff has his remedy against him.

1

LAWRENCE, J. When the general question shall arise, it will be worth considering how that which is not communicated to the holder can be considered as an acceptance, while it is yet in the hands of the drawee; and where he obliterates it before any communication made to the holder. Rule discharged.

Per Curiam,

Park, who was to have shewed cause against the rule, referred to Sproat v. Mathews (a), where the plaintiff, who had caused a bill to be noted for non-acceptance which had been conditionally accepted, was considered to have precluded himself from afterwards insisting upon it as an acceptance.

1805.

BENTINCK

against DORRIGN.

(a) 1 Term. Rep. 185.

PARR against ANDERSON..

[202] Thursday,

Feb. 7th.

surance of a without letter certain voyage and commercial

ship with or

a

of marque upon

adventure from

A. to B., enchce, for the purpose of hoscapture, any vessel she may

ables her to

THIS was an action upon a policy of insurance on the Whether an inship Mercury, in which the adventure was described to be "at and from Liverpool to the ship's ports and places of trade on the coast of Africa and African islands, during her stay and trade on the said coast and islands; and at and from thence to her final port or place of sale, delivery, or discharge in the British West India islands, &c. without liberty to stop, touch, and trade at any place," &c. in the course of the voyage. Declared to be "with or without letter of marque." The cause was tried before Lord Ellenborough, C. J. at the sittings at Guildhall, after last Trinity terin, when it appeared that the ship sailed from Liverpool on the voyage insured, and reached the coast of Africa, and traded there. That while she was on the coast she met with another English vessel, called the Sparrow, and soon after, they

tile attack and

happen to descry in the course insured, in whatever direc

tion, or to any

limit; and whether known at

the commence

ment of such chacing to be an enemy or not; or whether those words are to be confined to a leave to employ force only for the purpose of defence (including a liberty of attack and lace only so far as they may be fairly supposed to promote ultimate security) must,, in the absence of any legal decision as to their construction, depend upon the received practice and known sense of commercial men, if any such received practice there be in the use of them. And therefore the cause was referred to another trial, to ascertain the commercial u are and ⚫ practice in that respect. But, at any rate, such words do not appear to authorize direct cruizing out of the course of the voyage in search of prize.

L4

saw

1805. PARR against

saw a French corvette with another vessel, which afterwards turned out to be an English vessel, which had been captured by the corvette; and which prize, coming across the course ANDERSON. of the Mercury, was taken possession of by her without going out of her way, and the prisoners were distributed between the Mercury and the Sparrow, and the prize sent to Liverpool. Soon after, the Mercury, pursuing her course, saw a sail to leeward, which turned out to be a Spaniard, a quarter of a point upon her lee bow; whereupon the Mercury altered her course a quarter of a point, and after pur suing the Spaniard about a quarter of an hour, with the [203] wind right a-head, when she abandoned the chace, and con

tinued her voyage, and arrived safe in the West Indies, and was afterwards wrecked in the course of the voyage described in the policy. And the sole question was, Whether this chacing for a quarter of an hour out of the direct course of her trading adventure, were or were not a deviation? the plaintiff contending that the liberty of carrying a letter of marque, authorized the ship to chace any vessel which came in sight in the course of the voyage, as contra-distinguished from cruizing in search of prize that otherwise the liberty was nugatory, as without any letter of marque it was lawful for every vessel to defend itself against an enemy. The defendant on the other hand contending that the liberty to carry a letter of inarque gave no authority to the vessel to go out of her course to chace or cruize; which necessarily leading to hostile attack, and in case of making prize to the diminution of her own crew, very materially altered aud increased the risk of that which was insured as a commercial adventure. But that the use of having a letter of marque was in case of resistance to, or capture of an enemy, by whom she was attacked, or on whom in certain cases she might be induced to commence the attack upon a principle of self-defence, to prevent their being treated as pirates. Lord Ellenborough left it to the jury, Whether the deviation in this case were for the purpose of hostile capture or defence? that if they were of opinion that it was for the purpose of hostile capture, this being an insurance upon a mere mercantile adventure, he thought that the mere liberty to carry a letter of marque, without more, would not justify such a deviation; nor give the assured a liberty of engraft.