1821. DoE dem. of Edward and William Charlton, there would have been no necessity for a fine. Possibly that observation, however, may have produced the verdict. ABBOTT C. J. I am clearly of opinion, that the direction was according to law. In cases where the original possession cannot be accounted for, and would be unlawful unless there had been a grant, the rule may perhaps be different; and all the cases cited are of that description. Here, the original possession is accounted for, and is consistent with the fact of there having been no conveyance. It may, indeed, have continued longer than is consistent with the original condition. But it was surely a question for the jury to say, whether that continuance was to be attributed to a want of care and attention on the part of the Charlton family, or to the fact of there having been a conveyance of the estate. As the defendant's ancestors had originally a lawful possession, I think it was incumbent on him to give stronger evidence to warrant the jury in coming to a conclusion, that there had been a conveyance. As to the observations made respecting the fine, &c. I think the Judge might properly tell the jury, that, under such circumstances, they would probably find a fine levied. It is said now, that there might be a settlement, and that he ought to have mentioned that circumstance also to the jury. But it would be a new ground for a new trial, to say, that a Judge had not made every observation to the jury which the ingenuity of counsel could suggest on behalf of their client. I think the point presented to the jury was the correct one. In my opinion, presumptions of grants and conveyances have already already gone to too great length, and I am not disposed to extend them further. BAYLEY J. I thought at the trial, and I think still, that the question for the jury was, whether in fact a conveyance had ever been made. I considered it as a mere question of fact, and I called their attention to such circumstances as I thought tended to prove, or to negative it. The deeds of 1747 and 1752, were both produced, and if there had been a conveyance, it would probably have been produced also. No draft of it, or abstract referring to it, was produced. A conveyance of this sort was not likely to have been lost, if it had ever existed. It seemed to me, that the verdict was right, and that if the jury had decided otherwise, most mischievous consequences might have resulted. HOLROYD J. Here the original enjoyment was consistent with the fact of there having been no conveyance, for it was in satisfaction of a debt. The true question was presented to the jury. In cases of rights of way, &c. the original enjoyment cannot be accounted for, unless a grant has been made; and therefore, it is, that, from long enjoyment, such grants are presumed. But even in these cases, evidence to rebut such a presumption would be admissible. I think that the direction of my Brother Bayley was correct, and that the verdict is right. 1821. Doɛ dem. Rule refused. (a) (a) Best J. was absent at chambers. 1821. Monday, November 11th. Insurance from STEWART against BELL. London to Jo ACTION on a policy of insurance, from London to Jamaica, upon goods on board the ship Nesbitt. Plea, general issue. At the trial, at the last Guildhall maica generally. The goods insured were destined to a in the island, and the usual course in such cases was for the ship to pro ceed to an adjoining port, and there to transship the cargo into shallops; but no information of this was given to the under writers: Held, notwithstanding, that they were liable for a particular place sittings, before Best J., it appeared that the goods in question were stores for the supply of a plantation called Duckenfield Hall estate, situate in Plantain Garden, River Bay, in Jamaica. The bay is not safe for vessels drawing so much water as the Nesbitt did. The usual course is for such vessels to proceed to Port Morant, and to discharge their cargo into shallops for the purpose of being conveyed to Plantain Garden, River Bay. The ship Nesbitt arrived at Port Morant safely, and put part of her cargo on board two shallops, which, in their passage to Plantain Garden, River Bay, were lost. For this the assured claimed an average loss. The Solicitor-General, at the trial, contended, that the fact of the goods being destined for Plaintain Garden, River Bay, ought to have been communicated to the underwriters, and that they could not, upon a policy from London to Jamaica, be liable for a loss occurring after the trans-shipment of the goods. Best J. was of opinion, that it was incumbent on the underwriters to inquire, for what part of Jamaica the goods were destined;- and left it to the jury to say, whether the loss occurred in the usual course of the voyage, telling them that, in that case, the underwriters were liable. The plaintiff accordingly had a verdict. And now loss occurring after such transshipment on board the shallops. The The Solicitor-General moved for a new trial; and he referred to a case of Ferguson v. Allen, tried before Lord Ellenborough, at Guildhall sittings after Hilary term, 1806, as in point. There the insurance was on goods by the ship Phoenix, at and from London to Tobago, and the goods were intended for Castara Bay, in that island, but Castara Bay not being safe in war-time, or for a ship of the size of the Phoenix, she went on to Courland Bay, and sent the goods by a drogher, which was captured. There the underwriters were held not liable for the loss. That case is very similar to the present. The circumstance of the goods being transshipped, makes a considerable difference in the risk. No doubt, if the goods had been landed at Port Morant, the underwriters would have been liable for any loss by boats. Besides, the risk in droghers, when intended to be borne by the underwriters, is specially mentioned in the policy. Per Curiam. The assured must shew, that the port to which the ship proceeds is the usual port for goods destined to the particular place: That was so here, for Port Morant was the place to which ships of the burden and draught of water of the Nesbitt usually proceed with goods destined for Plantain Garden, River Bay. The underwriter is presumed to be acquainted with the usual course of the voyage, and to take a premium for the risk accordingly. The policy is to cover the goods till they are latided, and the underwriter should inquire, therefore, what is the usual mode of landing the goods insured. Here, it appears to have been the usage to transship the goods into shallops. The words "including risk in droghers" have probably been added to policies for greater security; but where it is the usage of the trade, and 1821. STEWART against BELL. and in the ordinary course of the voyage, to transship into droghers, the underwriters are liable, even though those words are not found in the policy. Rule refused. Monday, November 11th. SHEPHERD against KAIN. Where an ad- CASE for the breach of a warranty as to the cha vertisement for the sale of a ship described her as a cop per-fastened vessel," adding, that the vessel was to be taken without any allowance for any defects racter of a ship. The advertisement for the sale of the ship described her as "a copper-fastened vessel;" but there were subjoined these words: "The vessel, with her stores, as she now lies, to be taken with all with all faults, faults, without allowance for any defects whatsoever." It appeared at the trial, at the last Guildhall sittings, bewhatsoever, and fore Best J., that the ship, when sold, was only partially it appeared that copper-fastened, and that she was not what was called in the trade a copper-fastened vessel. It appeared, also, Held, that not that the plaintiff, before he bought her, had a full opportunity to examine her situation. Best J. thought that the ship, not being a copper-fastened vessel, the plaintiff was entitled to a verdict, and directed the jury accordingly. And now she was only partially copper-fastened: withstanding the words, " with all faults, &c." the vendor was liable for the breach of the warranty. The Solicitor-General moved for a new trial. He referred to the terms of the advertisement by which the vessel was to be taken, with all faults, and without any allowance for any defects whatsoever; and to the judgment of Lord Ellenborough in the case of Baglehole v. Walters. (a) Here the term "copper-fastened" was only a description to the best of the seller's judgment. (a) 3 Campb. 156. But |