Simon's Family History
GUILDHALL, LONDON, July 3
Sittings before Lord Kenyon and a Special Jury of Merchants
DE GARRON v GALBREATH
Mr PARK opened the pleadings.
This was an action on a policy of insurance, on a quantity of silks on board the Ann Maria, to recover the amount of the defendant's subscription, which was £200. The policy was at and from Genoa to Lisbon. This vessel failed, and, on her arrival at Lisbon, it was found that, in consequence of bad weather, the silk in question had been damaged, so there was a particular average loss of £44 per cent. No less than seventy underwriters had subscribed this policy, all of whom, except fifteen, of whom the defendant was one, had settled the loss. When the plaintiff gave the defendant an account of the loss - when he had lain before him all the papers on which the average loss was made out, if all the circumstances, when put together, did not appear in his judgement to amount to sufficient evidence of such a loss, he might have resisted the demand made on him, and have pleaded to the action, taking no notice of the information he had received , but might have proceeded to trail. But what did the defendant do in the present case? --- When the plaintiff laid before him every circumstance on which the average loss was calculated, he adjusted the policy, and agreed to pay £44. 6s. 6d., the average loss per cent. The Learned Counsel conceived, that no point was better settled, than that when an Underwriter happened to have all the papers laid before him, from which a loss was ascertained, when he had examined them, had found them satisfactory, and after that adjusted the policy, in the manner this policy had been adjusted, and agreeing at a time certain to pay an average, nothing was clearer than that was, prima facie , evidence against such an Underwriter. The adjustment of the policy, he contended, was sufficient to throw the onus on the defendant, to compel him to put in his defence, and to shew why he had changed his mind.
Lord Kenyon said, the defendant might go on to certain degree, to settle this loss, and then he might find out some mistake, by receiving new light on the subject.
His Lordship was most decidedly of opinion, that the plaintiff must prove his case.
Mr Erskine contended, that, as the present defendant had agreed to pay £44. 6s. 6d. per cent in one month, he was bound by that, till he made out in evidence, that he had proceeded on a mistake.
Lord Kenyon said, he should have held the adjustment of the policy evidence that the defendant had underwritten it.
Mr Erskine stated, that the plaintiff in this case had no other evidence than the adjustment of the policy.
A witness was here called on the part of the plaintiff, who, among other things, proved, that the present defendant had all the papers upon which the average loss was calculated in his possession, from Saturday to the Monday or Tuesday following, and that when the defendant came to town, he bought the policy along with him, adjusted.
Lord Kenyon thought that those who had acted fairly and candidly ought to be fairly and candidly dealt by. And if they had drawn hasty conclusions from any written evidence that had been laid before them, it would be a great deal too much to say that they ought to be concluded by an adjustment, when perhaps they had discovered that they proceeded on a mistake.
The plaintiff ought always to prevail by strength of his own case, and not in consequence of the weakness of the defendant's.
His Lordship said, he could put many cases, where infinite injustice would be done, if the plaintiff was not obliged to prove his case.
Mr Erskine observed, that he did not mean to say this adjustment was binding on the defendant, but only that it was prima facie evidence, to put him on his defence -----
Nonsuit(ed) :- An order of a Judge dismissing a suit when the plaintiff fails to show he has a good cause of action or fails to produce any evidence.
Lord Kenyon was Chief Justice of the Court of the King's Bench - 1788-1802.
Report from :- "The Times" 4 Jul 1795, page 3, col.c
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