The Sun.
London, England, 1807-11-03 00:00:00

HIGGINS V.,AGUILAR

This was an adtion on a Policy' or Insttrante tin
150 casks of sugar; valued ,at 2,t001. shipped oit
board the' Bacclias, Captain Kelly: The premium
was eight guineas,• to retdrii' '4l. if the Vessel sailed
With convoy; at and from Demerara to London, in-
cluding the risk of boats in the liemerara river..
• The ATTORNEY-GENERAL said, that after his
long praCtice in his prolession,:he could ' form no
conjecture as to the grOund of the defence to this
thion. The faCts of this case were these :—The
Vessel touched ground on- the bar %Viler!, leaving
Demerarki ; notwithstandinvhii, she proceeded to
Grimada and Tdttola, and there meeting with d
convoy, she set .sail on. her voyage. to England.
When she had made some progress, it was discover-
ed that she had received considerable damage by
grounding On the bar, and; in consequence of her
helpless state, the Cofumodore, with his crew, gave
every possible assistance, but it' was found impossi-
ble to save her. In this :situation, the passengers'
and mariners were; transferred. to 'other ships, and
the 'Bacchus was.destroyed on the Ocean. it would
. be necessary to explain alio the interest of the parties
concerned. The ,00di belonged Co Mr. Tully
Higgins and .Mr. Matthew Higgini : these of the
former were. drawn from' the plantation called the
Affiance those of the latter, from that deniaminated
the Blenheim. From the one, 80 hogsheads, and
from the other 70 hogsheads, were to be shipped,
'and the insurance on both, according to orders, was
effeeted by Mr.' Pilcher. It would, perhaps, be said,
that the terms of the policy were not known to the
Defendant, and someothers.upun the risk, inasmuch
AS they were not' informed that they were not only
upon the Ship itself, but upon the craft. for the con-
veyance of the goods from the shore to the Ship.
The insurance was at first proceeded in, upon what
is technically called in Lloyd's Coffee-house, a slip ;
and it was true, that the risk on the craft was not
inserted on the slip until three or four 'of the 'Un-
derwriters had subscribed their names.' It was then
introduced, an&ten other Underwriters added their
names to the slip.. When the policy 'was filled up,
the terms were stated in the instrument itSelt, and
the policy, with the risk so detailed, the Defendant
• biraseg subscribed. The case. did `not rest there :
it was found necessary to enlarge the time for the
sailing of the Bacchus from the tst to the .4th of
August, and the poliCY was carried again to the De-
fendant for this purpose.
Another fact it was expedient to notice : fifteen
hogsheads from the Affiance plantation' were put on
board one of the 'native --vessels, called a drogger,
and these were losL Th'e. drogger was upset, hav-
ing a Gentleman of great respectability (Mr. Craft),
and two Negroes on board. They all (thing to the
wreck for two days ; but Craft was so much ex-
hausted, that Within two hours after he reached the
shore, he died.

It was further to be pretended, that Mr. Tully
Higgins knew.of the loss of these fifteen hogsheads
at the time he ordered the insurance. The advice
to insure was of the t9th April : the loss took place
on the sth ; but no knowledge of it had arrived
'until some days after, when the unhappy fate of Mr.
Craft was 'ascertained by Alt- Higgins' Agent,
which, in fact, was on the 22d of that month.
The ground of.defence; here supposed, imputed the
grossest fraud to the.assured.
•
Lord ELLYttinottoUtut said, that be preaunied' the
amount of the premium was paid into Court.
Nll7. PARKE replied that it was not ; and that in
Cisti,ol'fratid, thn asscirers were ilot bound. to return
the premium. _ _

. .
Lord ELLENBOR.ouGu obsotived, that it must be a
Case of gross
,fraud so 'as to cut down the contra 6,
and not where the policy is rendered a nullity by
the operation of law,
• Mr. Pilcher proved the' policy, and, the circum-
stances respetling tile slip stated in the openitit.
Mr. PARKE, in his CyOss-eXatninatioll, endeavour-
ed efiethially to spew; that the Defendant subscrib-
ed the policy, not only ignorantly with regard to the
risk Oil the craft, but that there was a fraudulent de-
sign in the assurer to conceal the fatt,, in order to
draw the legal conclusion of being fraudulent as to
par it was void as to the whole.
, •

Lord E4LENBOROiI It remarked, tisk for such a do-
. febCe it was necessary to chew, that the assurer was
allured into a conviction of security by, fraudulent
means, and his Lordship added on the part Of the
case, that the slip was not to be act up to COntroul
•
was next
._called to ascertain the
thecpapoltiaciyn.' Kelly
marks and. the quantity, by whose evidence it was
determined that there-were 147, and not 150 hogs-
heads on board.
Mr. Tilford deposed to , the
,t,5 hogsheads in the
drogger, and to. the wreck of that vessel. He fur-
ther gave testimony, that these t 5 hogsheads were
not at Demerara 3. that they were shipped on board
the drogger from an 'adjacent settlement, called'
Essequibo, under a Lieutenant-Governork,subordi-
nate to the governor of Demerara. This depen-
dent establishment was 14 leagues from the situa-
tign where the Bacchils was at anchor., The. navi-
.gation,,fr'om thence 'was dangerous, as many sand-
banks intervened betweed the two settlements.
.Mr. PAMIR, for the Defendant, acquitted Mc'
Pitcher, who effected the insurance; of any immoral
intention ; but said that he thought him very, cen-
surable for altering the terms on the slip without
„notice to ,the Deltiodant. He admitted that the
ease of fraud it was not ity his power to establish,
and therefore the whole policy could not be invali-
dated ; but, at least, three hogsheads ought, in the
first instance, to be excludes:llmin the risk, as it had
been proved by ••the,Captain,that they were not on
board. The next question applied ,to the fifteen
hogsheads, which, he tontehded, were not included
in this policy.:
_The insurance wagon sugars, at and
from Deroerara to London. Where were these

sugars? . Not at Demerara, but at Essequibo. It
would be of dreadful consequence, if the risk were
to be extended, at the discretion of the assurers, to
a great distitiice, epona different river, in a remote
part of the Continent,- under a separate Governor,
and whore there were numerous shoals' in the in-

tcrtnediake pißiage: A third difficulty arose; whe-
tler the tern), applying to boats or craft, in the po-
licy, referred
.tilso to• droggers, a ion 'ot ships of
coniiderable magnitude, which were employed
t-his dangerous navigation.
Lord EtA.stoipitouou enquired, why Ttil,ly and
Matthew Higgins were joined in the action, they
having separate interests ?
-The ATTOENSY GENERAL answered, that it was
netesiary,to bring the action either in the name of
the Broker, or of all the parties concerned. In this
case it was brought by the parties.
• Lord .ELLENBOIiOUGR said, that, after the dis-
CIISSiOn upon various points respecting the slip,
the policy, add the question of fraud, the poliey
was the only iustrutnent to which the attention of
the fury would be required. The Gentlemen he
addressed were sufficiently infdrnied
.Whether the
Settlement at Essequibo was included, or • not, in
the terms of this policy. They would likewise be
informed, whether, tinder the risk of boats, or
craft, the droggers wdie included. With respect
to the first, Essequibo was under, the same Go-
vernment, and it appeared to him to,be included
under the general term Demerara', in the . saruv.
manner that the expression .England usually com-
prised the principality Of Wales. With regard to
the droggers, it seemed, that it wa, a mode
,of con-
veyance more see than by the descriPtion of Vesels
commonly distinguished as croft -
Verdict for the Plaintiffs, for the value of 147
hogsheads of sugar, at the rate of ttint. fir t5O
hogsheads. •