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1805.

PARR

against ANDERSON.

ing on a commercial adventure an adventure for hostile capture; and then they should find for the defendant. But if it were for the purpose of defence, which might happen. in various ways, as by making a shew of confidence in the face of an enemy, with a view to deter them from an attack; [204]* or, if that could not be accomplished, with a view to obtain some advantage in the conflict, or the like, in that case they should find for the plaintiff. The jury found a verdict for the defendant.

A rule nisi was obtained in Michaelmas term last for setting aside the verdict, on the ground of a misdirection, which was opposed by Garrow, Topping, and Scarlett; and supported by Erskine, Gibbs, Park, and Giles. The same subject was so recently discussed in Lawrence v. Sidebotham (a), that it is unnecessary to state more than the above outline of the arguments urged at the trial.

The Court directed the case to stand over, for the purpose of making further inquiry as to the case of Jolly v. Walker; a short note of which is given in Park's Insur. 299; and which was much relied on by the plaintiff's counsel in arguAnd in this term

ment.

Lord ELLEN BOROUGH, C. J. delivered the opinion of the Court.

This was a motion for a new trial, in an action tried before me, at the sittings at Guildhall, after last Trinity term. It was an action upon a policy of insurance, in which the adventure was described "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, declared with or without LETTER OF MARQUE." The question made at the trial, was upon the effect of these latter words, By which the assured was expressly authorized to carry a letter of marque if she should think fit. On the part of the plaintiff it was contended, that these words authorized the ship carrying a letter of marque to chace any vessels, descried at whatever distance in the course of the voyage, for any indefinite period of

(a) Ante, 45.

time,

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1805.

PARR against ANDERSON.

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time, and in whatever course or direction the ship insured
might in virture of such pursuit be induced to sail; and that
no deviation incurred in the course of such pursuit, dis-
charged the underwriters. On the other hand, it was con-
tended, fhat the terms of this policy having designated a
mere commercial adventure between certain prescribed li-
mits, that the liberty of taking a letter of marque must be
construed with reference and as subservient to the main ob-
jects of such an adventure, incorporating only therewith
such a portion of hostile risks as might arise from the use of
a letter of marque, for purposes originally or ultimately of a
defensive nature; and which an act of aggression might in
some cases, and with a view only to ultimate defence and
safety, properly, be; and that under such a liberty of car-
rying a letter of marque, no deviation from what would
otherwise be the natural and ordinary course of the voyage,
for the purpose of pursuing, in quest and for the chance of
prize, vessels which at the time of instituting such pursuit
were not even known to belong to an enemy, was warranted.
To this opinion, viz. That au hostile adventure to this extent
was not protected by a liberty to carry a letter of marque, I
at the trial inclined, and directed the jury to that effect. The
nisi prius case of Jolly v. Walker, Park, 209, was cited as
an authority, That a ship having letters of marque might
chace an enemy without being said to have deviated: and it
was supposed that that case might resemble the present in
the liberty it contains of carrying a letter of marque. But
upon inspecting the policy, it is found to contain no such
form of words. The voyage insured in that case was "at
and from London to Cork and the West India islands, with
liberty to call at St. Eustalia;" and the policy contained
this warranty, "warranted to proceed on
warranted to proceed on the voyage with 60
men, equipped with 22 guns, and six-pound. shot, and
sheathed with copper;" which indicated an intention at least
to employ, or to be prepared to employ a competent de-
gree of force for hostile purposes. And it was contended,
That it amounted to a representation at least of an intention
to use the vessel as a private ship of war; and that in virtue
of her having a letter of marque, she was in a situation and
had a capability of being so used. This case, supposing
what the note in Mr. Park's book states to have passed,

affords

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1805.

PARR against ANDERSON.

affords no construction of a policy containing the liberty in question, inasmuch as that policy contained no such liberty. In the absence therefore of any determination on the effect of such words, and where the words are susceptible of dif ferent meanings; where, if understood in their fullest latitude, they would authorize the acting as a letter of marque for all purposes, that is, in other words, as "a private ship of war," including of course the liberty of cruizing, in order to take, and of bringing into port when taken, vessels of that hostile nation against which the letters of marque are directed; an extent in which the plaintiff's counsel have not argued that these words should be understood; where it is difficult to allow what is contended for, i. e. an indefinite right of chacing for the purpose of capture all vessels, and in whatever directions; and that toties quoties, whensoever [207] and wheresoever successively descried, provided the original pursuit commences from a point in the course of the voyage, without suspending or superseding wholly the objects, destination, and limits of the commercial adventure described in the policy, I say, under such circumstances of novelty in point of question, as far as respects any judicial determi nation upon the effect of these words, and considering the difficulties which attend the construction of them either in their most extended or limited sense, it may be material to ascertain, as a question of fact, in what manner the parties to contracts containing this form of words have acted upon them in former instauces, by paying losses where deviations of the kind now in question have happened; and whether they have as yet obtained in use and practice, as between assured and assurers, any and what known and definite import, we think it fit that for these purposes this case should undergo a second trial. If it should turn out upon a second trial, That what was done amounted to cruizing, then no question will necessarily arise as to the construction. of the policy; unless indeed it shall be then contended (which has not been done on the present occasion) That the words in question allow a liberty to that extent; and if it shall be so contended, the evidence which the Court wishes to have brought forwards and received on this point, may be necessary towards a due determination upon the meaning of these words. It cannot but occur that these doubts might be obviated by the adoption of words of more definite import.

A

1805.

PARR against ANDERSON.

A liberty to act as a private ship of war," would unexceptionably and conclusively convey a liberty of this kind in the largest extent; as a liberty "to chace in the course of* the voyage," would convey the more limited and restrained one. *[208] However, it is not for us to prescribe to the parties what terms they may best use in such contracts, but to decide upon the import thereof when they have obtained a known and definite one, either as adopted by the practice and use of mankind, or as recognized by the decisions of courts of law. Rule absolute for a new trial.

Thursday, Feb. 7th.

The owner of

land through which a river

enlarging a

channel of cer

tain dimensions through which the water had been used to

flow before any

of it by another,

er down the ri

ver, who had at any time be

fore such en-. Jargement appropriated to

BEALEY against SHAW and Others.

THIS was an action on the case, wherein the plaintiff declared, That on the 1st of January, 1799, he was pos

runs, cannot by sessed of certain lands, mills, and other buildings and machinery used in his trade of a whitster; and that a stream of water used to flow out of the river Irwell through a watercourse through his land, and was used to work his said mills and machinery; and that the defendants then, &c. injuri appropriation ously widened, deepened, and enlarged certain fenders, divert more of sluices, and watercourses, leading out of a part of the river it to the preju- Irwell higher than the commencement of the plaintiff's dice of any other land owner low- stream, and thereby drew off and diverted from the said river a greater quantity of water than used to flow and ought to have flowed into the defendants' fenders and sluices, and continued the same so widened, &c. and the water so drawn off from thence hitherto, and thereby prevented the same from flowing to the premisses, &c. of the plaintiff, by which he was deprived of the advantage of the said stream, &c. former channel. There were several other counts stating in substance the same grievance in different ways. Plea, Not guilty. At the trial before Graham, B. at the last Lancaster assizes, the short state of the case in evidence appeared to be this :-The plaintiff's and the defendants' mills and works were both situated near the banks of the river Irwell, from the water of which they were supplied. The first diversion of the river was in 1724, when a mill was erected on the defendants' pre. misses by those from whom they claimed, and a weir was made above, and the water brought from the river by means of a sluice; adequate in quantity to the wants of the

himself the surplus water which did not escape by the

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then

then owners; the remainder (which was more or less ac cording to the season, and sometimes but little in dry weather) continuing to flow as before in the natural channel. Another weir was built by the owners of the same premisses about 40 years ago, and a third about 20 years ago; and as the works were from time to time enlarged, more water was taken from the Irwell to supply them, and no objection made, there being then no other mill on the stream in that part of the country. The present weir of the defendants was made by Messrs. Potter and Crompton (from whom the defendants immediately claimed) when they were in possession of the same premisses in 1791. It was made about forty yards higher up the river; and at the same time the sluice by which their works were supplied was considerably widened and deepened, so that nearly double the quantity of water was drawn from the Irwell which had ever before been taken. The plaintiff's works were first erected in 1787, and his weir and sluice then first made upon his premisses, which were situated lower down than the stream, and between the works of the defendants and the tail of their sluice, where the water was again returned into the bed of the river, which there made a great bend. In consequence of the alteration. of the defendants' sluice in 1791, by which so much more water was taken from the bed of the river above the plaintiff's works than before, they were materially impeded, and sometimes obliged to stop working altogether. Before that time there was no complaint of want of water; but then disputes began concerning it: and the defendants still attempted to exercise acts of exclusive occupancy of the water after the complaints originated; for they put a lock on the clough, the key of which was kept by them for three years together; and applications were several times made by the plaintiff's foreman, to know when it would be convenient to the defendants to let the plaintiff have some water; and he was told that he should have it when Shaw's work was done. But it was agreed that a person should be kept to watch the management of the clough, so that the plaintiff might have the water immediately at all times when it was not necessarily used by the defendants: and this person was paid by both parties for his trouble; though he was in the employ of the defendants, and was desired by one of them after the en

largement

1805.

BEALEY

against SHAW.

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