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![handle is hein.slavery/ssactsengr0030 and id is 1 raw text is: NEATE V. BALL
was not at first of the value estimated in the policy. Then how does this differ from
the case of an open policy in this respect ? Would it not be sufficient for the assured
in an open policy to prove that at the time the ship sailed the subject matter of the
insurance was of such a value I Is not that the period to look to, and not the state of
the thing at the time of the total loss happening? If on account of the peculiar nature
of an African voyage there ought to be a difference in this respect between these and
other trading adventures, the underwriters may if they please introduce a special
clause in the policy to provide for the diminution in value by the expenditure of
stores and provisions in the purchase and sustaining of the slaves. As it stands at
present, there appears no ground for making any such distinction.
Le Blanc J. The present is an extreme case, because the loss happened at the last
period of the voyage at which it could happen. But the same thing must occur more
or less in every policy upon ship and outfit. The value of the property must be
continually diminishing, and if the loss happen at the latter end of a long voyage, no
doubt the property must be considerably deteriorated at the time by the usual wear
and tear; and yet it is never objected that [117) the underwriter is not liable for the
original value. As to the owner himself having estimated the value of the property
at so much less than the sum at which it was insured, many things may happen to
render a vessel of less value when the voyage is concluded, although the subject
matter exists ; the amount of the repairs required, &c. The rule having been so long
laid down as to valued policies, it is too late to open it again.
Rule discharged.
NEATE AND OTHERS, Assignees of Sandwell a Bankrupt, against BALL AND OTHERS.
Tuesday, Nov. 24th, 1801. A trader orders bags of wool of defendants (mer-
chants) in December, which are delivered on the 19th of February following, and
by the course of dealing the trader has the option of returning the wool for which
he has no call, though previously ordered. The trader being from home when
the bags were delivered, on his return the same day gives directions not to have
them opened or entered in his books, but only weighed off to see that they
agreed with the invoice; he being then in embarrassed circumstances and intending
not to take thvm into the account of his stock if in the event he found himself
unable to pursue his business. Afterwards on the 4th and 5th of March, being
then avowedly insolvent, he returns the bags with a letter to the merchants
declaring his situation, and hoping that they will have no objection to take back
the wool, and requesting the favour of a line of approbation thereof; which letter
is received and the approbation given after an act of bankruptcy committed on
the same day the letter was sent. Held that by the trader keeping possession of
the goods so long, his option (which ought to have been exercised on the receipt
of them) was gone; and that being in a state of insolvency and on the eve of
bankruptcy, he could not exercise the power of restoring the goods to the vendors,
though without any fraudulent concert with them : but that the trader's assignees
are entitled to the property.
In trover for certain bags of wool, it appeared that the defendants were Spanish
wool merchants in Bristol, with whom Sandwell had before his bankruptcy been in
the habit of dealing for that commodity. The course of dealing between them was,
that sometimes Sandwell ordered the wools, sometimes they were sent by the defen-
dants to him without any specific order; but they always gave him the option of
returning the goods if he had no call for them ; though previous to the transaction in
question none had ever been in fact returned. In the present instance an order for
13 bags of wool had been given in December 1800, which were directed by Sandwell
to be [118] sent from Southampton (where they were deposited with the defendant's
agent) to Devizes, where Sandwell lived, about the middle of February. The defen-
dants sent him the invoice sometime in January: and on the 14th of February the
bags were sent. Sandwell was not at home when they arrived and were deposited in
his warehouse; but on his return home the same day he gave orders not to have the
bags opened, and they were not in fact opened ; but he gave the invoice to his fore-
man, and directed him to weigh off and examine the wools therewith : and they were
in fact deposited along with other goods of the bankrupt. On the 4th of March,
Saudwell wrote the letter after-mentioned to the defendant, aud on the same day
2 EAST, 117.
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