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![handle is hein.slavery/ssactsengr0956 and id is 1 raw text is: 496 HILARY TERM, 2 WILLIAM AND MARY. IN B. R. I SHOW. K. B. 134.
to the value, and none prove insolvent, then to be discharged, absque hoc that there is
any such custom as the defendant hath alledged. And issue is joined upon it. And
at the trial they proved it very plainly and fully by all the exchange ; and that there
was never an instance to the contrary, but one payment on purpose since the action
commenced; that where the policy is upon the account, and not upon goods valued
certain or value blank, the last subscribers are not bound as in the latter cases they
are. And we had a verdict for the defendant.
Levins Serjeant moved in arrest of judgment, that this was an impertinent plea,
and the custom unreasonable, that any should be discharged till satisfaction of the
whole loss, when some prove insolvent.
I answered him, that as to the plea, though ill on demurrer, yet it is good after
issue joined and tried; at most it doth but amount to a general issue, and that should
have been shewn for cause on a demurrer ; but here is a verdict. If non culpabilis be
pleaded to an assumpsit, it is good after verdict : so payment without acquittance to
debt on a single bill. Nil debet to trespass is not proper to trespass, and therefore ill ;
but if the plea bath the colour of a bar, and doth not contain matter of bar, as accord
without satisfaction, it is good, Yelv. 227. Cro. Eliz. 495. Moore 692. 3 Cro. 259, 778.
Moore 687. Besides, we did give this in evidence as we might on the general issue;
but their importunity imposed on the Court that we ought to have pleaded it, and we
were forced to pay twenty-four pounds costs for this liberty, and by consent in a rule
we did it. Then as to the reasonableness of the custom, it is highly so; for it is equal
between insured and insurer; for the last subscribers return their premium (except
ten pounds for subscribing) if there be no loss, when the value of the goods amount
not to reach them ; nor are the first subscribers at any disadvantage, for they keep
their premium if the goods come home safe when we return ours; and in truth those
to whom the value will not reach are never obliged. And as to the insolvency of
some, we answer that each in insurances do only engage for his own sum, and to
make good the loss of goods, so far as the sum he subscribed amounts to, not to make
good others insolvency; and there never was a custom better proved; for if ten
subscribe one hundred pounds each, and the goods be nine hundred and fifty pounds,
the last stands at half loss. This [134] was proved. If no goods come home, the
insurer hath all his premium returned, and so it is for his advantage, to have this
custom preserved ; and these kind of insurances are made upon accounts when a
merchant doth not know whether his factor will send home any goods or how much.
Curia. The plea is ill, if upon a demurrer; but good after issue joined, and you put
them upon it, and the custom is reasonable.
And per totam Curiam, judgment for the defendant.
[135] HILARY TERM.
The Second of William and Mary. In the King's Bench.
Sir John Holt, Knt., Chief Justice. Sir William Dolben, Knt., Sir William Gregory,
Knt., Sir Giles Eyres, Knt., Justices. Sir George Treby, Knt., Attorney General.
Sir John Somers, Knt., Solicitor General.
CASE 112. NIGHTINGALE AND OTHERS against BRIDGES.
Michaelmas Term, 1 Will. & Mary, Roll 397.
The King may create a corporation of merchants, and give them, by charter, an
exclusive right to trade, and hold territories, within certain limits therein described ;
but a clause prohibiting others to trade within the said limits, under pain of im-
prisonment, and the forfeiture and loss both of their ships and goods wheresoever
found, &c. and giving power to enter into, search, and seize ships and goods, is void,
for the King cannot by letters patent create a forfeiture of, or any way, by his own
act, confiscate, a subject's property.-S. C. Carth. 131. S. C. Holt, 473.
Trover and conversion de bonis et catallis sequent', viz. de una nave, vocat' The James
frigate, oneris cent' et trigint' doliorum decem bombardis Anglice guns cum omnibus arma-](ViewImageLocal?handle=hein.slavery/ssactsengr0956&div=1&collection=&method=preview&ext=.png&size=3)