The Liverpool Standard, and General Advertiser.
Liverpool, Merseyside, England, 1854-08-29 00:00:00

SATURDAY.

INSURANCE CASE—WILSON AND ANOTHER V. MARTIN,
AND WILSON AND ANOTHER V. RATIITIONE.—In these two
cases Messrs. Joseph Wilson and Co., of New Orleans, the
plaintiffs, sought to recover from the defendants, both of
whom were underwriters for the ship Cambyses, insurance
upon portions of the freight of that vessel. In November,
1852, the plaintiffs, in accordance with instructions re-
ceived from Messrs. Crane and Co., St. John, New Bruns-
wick, the owners of the ship Cambyses, procured a freight
for that vessel, and accepted from the captain a bill upon
the cousignoos for his disbureemeuto, insuring a sufaAont

rate of six per cent. per an
rnilltrnv .11nrAq Wm, ilemna;+.

ir#y, certain

Thos. Brand

becoming

a, and also to demand, in the event of their
lepreciated to a certain amount, additonal security.
irse, the loan would have, become repayable ou the
,1£347; IA
?r, the va:

In due e+

previot

in the month of
of the shares deposited had become so

depreciated that the margin of 20 per cent., as per agree-
ment, was found not to be maintainable. Accordingly, Mr.
Douglas, the secretary to the company, finding this defi-
ciency, made application to Messrs. Townley and White-
head, on behalf of their principal, Sir Thomas Brancker,
uiring, further security ; and, on the 30th of September,
en notified to Mr. Douglas their readiness to

m the part of

r 'Thomaslancker, as the addi.
liirty Harrington Dock shares,
le. On the 14th of October those

with po

h the plaintiff's,

a the time wa:

then d

were made, the £lO,OOO would become rer

cker repay the loan,
zh his brokers, Messrs. ;
ToWnley and Whitehead, he made application to the com-
pany for a renewal of the loan, which, upon certain terms, !
was ultimately agreed to for an extended period of six
months. The loan was renewed at the current rate of in-
terest, and Sir Thomas Brancker deposited with the com-
pany his brother's (Mr. James Brancker's) acceptance on
his draft of £2,000, at six mouths, as collateral security,
to cover any deficiency which might arise beyond the
value of the stock. As a portion of the fresh arrange-
ment, Sir Thomas Brancker wished the company to forego
their right to insist on the margin provided by the ori-
ginal agreement being maintained ; but the company,
on consultation with their solicitors, Messrs. Duncan
and Radcliffe, declined to abandon their right in this
particular. On the 26th of October, 1847, the fresh loan
was completed, the conditions being the same as in
the original agreement, with the exception that interest
would be charged at the rate of eight per cent. The
loan was to fall due on the 26th of April, 1848 ; but
on the 7th of January, 1848, Mr. James Brancker wrote
to Mr. Alexander Smith, the chairman of the company.
The letter was dated the 7th of January, 1848, and was
as follows :—" My dear sir,—l thank you for all the trou-
ble you have taken in the arrangement with Mr. Moon,
and I have now to beg your kind intervention with the
North British Insurance Company. We have been making
an arrangement of the guarantees of Sir Thomas's stock,
so as to separate the liabilities and not let them bear too
heavily on any one. He will call upon you with the one
prepared for the Insurance Company to replace my pro-
missory note. [No doubt a misdescription of his accept-
ance.] It is a better arrangement for them, and we trust
that you will remove any difficulty in the matter. lam
sure you will lend your aid, and that, if necessary, Mr.
Crossthwaite will also assist you." This was the first
suggestion of any guarantee whatever, and it was a propo-
sition solely emanating from Mr. James Brancker, who
was in the confidence, and, no doubt, had the sanction of
Sir Thomas Brancker for what he offered. The company
did not solicit it ; it was no advantage to them, for both
then and at the time of his death, Mr. James Brancker
was a perfectly solvent person. His draft would become
due in the course of a few months, and it represented
security for £2,000, fully as good as the guarantee. When
Mr. Brancker's letter was laid before the directors of the
company, they expressed their willingness to consent,
provided they had the approval of Messrs. Townley and
Whitehead for so doing ; and Mr. Douglas accordingly
wrote to them on the 17th of January, informing them
of the offer of Mr. Brancker to substitute for his accept-
ance a guarantee signed by Mr. John Buck Lloyd, defend-
ant, Mr. Peter W. Brancker, Mr. Jas. Bourne, and Mr.
Ambrose Lace, for £5OO each. In the afternoon of the
same day, Messrs. Townley and Whitehead wrote to
Mr. Douglas, sanctioning the change of securities, and
the matter was then completed. Shortly after the 18th
of January, the directors having discovered something in
the guarantee, submitted it to Mr. Duncan ; and that
gentleman having considered it, was of opinion that its
validity would be doubtful unless a sufficient considera-
tion were stated on the face of it. He had no doubt that
the gentlemen whose names were attached to the guaran-
tee meant to be bound by it, and that in rectifying the
error, he would only be at the same time consulting the
interests of his clients, the Insurance Company, and car-
rying out the intention of the guarantors. His opinion
was communicated to them, and in the end the guarantee
was withdrawn, and a fresh one drawn up, and signed by
the guarantors on the 14th of February, 1848. It was
upon this guarantee the present action was founded. In
April, 1848, the loan expired, and, as the shares were
daily depreciating, it became necessary for the company
to look after the securities. On the 10th of June the de-
fendant and the other guarantors were communicated
with, informing them that unless the loans were settled it
would be necessary to realize the securities. Several
other communications were made from time to time to
the guarantors, but no objection or remonstrance was re-
ceived from them; and after a length of time the securi-
ties in shares, which had so depreciated that the company
was left in deficiency the sum of £6,000, were realized,
and now the present action was instituted to recover the
respective amounts from the guarantors. The learned
counsel, in conclusion, commented upon the pleas which
had been put upon the record by the defendant, He said
they could not be maintained either in law or fact, and
more particularly the third plea, which attributed to the
plaintiffs a fraud in the transaction by not fully stating to
the defendant Sir Thomas Brancker's circumstances at
the time they obtained the guarantee.
Evidence was then given in support of the case as stated
by the counsel for the plaintiff.
The ATTORNEY-GENERAL then proceeded to state the
Faso for the defence. He observed, that though the open-
ing statement of his friend, Mr. Atherton, had occupied
so long a time, it would be found that the question was
one which resolved itself entirely into a point of law, and
that would;speedily appear when he had placed before the
court one single fact, which he believed would not for a
moment be disputed. And when he had done that, it
would be for his lordship to say whether, in point of law,
there was a defence upon the third plea, upon the terms
of which his learned friend had quarrelled. He meant
the plea of fraud and misrepresentation, which Mr. Ather-
ton, as a lawyer, well knew was not intended to convey
any imputation in the sense in which the word fraud
generally bore, because it was only a term which the law
used to express that sort of defence which was resorted to
in the present action. The law adopted that term, and
ityr 0 used to signify the keeping back cutout lag-

not convenient for Sir Thomas Branc