1812. STRANGE WAYS V. ROBINSON. [ 509 ] legal bond. The plea is no answer to the declaration; it shews neither a performance nor a reasonable excuse for non-performance, and the replication does answer the plea. Clayton in reply. No answer has been given to the objections taken to the order of the magistrate; and the counsel for the plaintiff has hardly attempted to support the replication, which at least is bad for duplicity, and though the defendant has not alleged duplicity as a special cause of demurrer, yet duplicity is matter of substance in a replication, for it leads to multiplicity and contrariety of pleading. At all events, the objections to the justices' order are matter of substance, not of form. If there was no right at all in the putative father, there would be no pretence at all for any discretionary interference of the Courts. Perhaps it is upon the principle of adoption, that in questions of habeas corpus, the Court proceeds more upon the ground of prudence and propriety and expediency, than of strict law. Many of the cases may be got rid of by those strong authorities which attribute to the mother the custody of the child during the age of nurture, the first seven years. The case of Newland v. Osman had not been shaken. And Foster's doubt confirms the case; for the authority of his name would have provoked the discussion, if the doubt were tenable. In Rex v. Soper, the expres sions of Lord Kenyon must be taken, secundum subjectam materiam. "The father in that case had no right to the custody." The child was only three years old; and fraud shall avail no man. That too was between the father and the mother: not so here. Rex v. Mosely is rather in favour of the defendant. [Mansfield, C. J. How could the overseers comply with the request? what power had they to get at the child?] That objection is answered, because it stands admitted on the record, that the overseers have taken the child and nourished it; therefore they must have had the child in their power. [Mansfield, C. J. observed that neither the case in Saunders nor the other contained any allega tion, that the father was of sufficient ability to maintain him.] Cur, adv. vult. MANSFIELD, C. J. now delivered the judgment of the Court. The question of law which has been raised, certainly is not very clear, comparing the modern cases in the Court of King's Bench with the case of Newland v. Osman. The action is on a bond to indemnify the parish against the expences of an illegi timate child. After reading the condition of the bond, his Lordship 1812. STRANGE WAYS V. ROBINSON. Lordship particularly stated the second and third pleas, dwelling on the circumstances that the second plea did not allege how long it was after the time that the child had attained seven years of that the defendants offered and required the parish age, officers to let them take and maintain the said child at their own costs and charges, and observing that the plea did not name any day or time after the child had attained seven years, except the day under the videlicet, which, he said, was no day at all: and after stating the replications, his Lordship proceeded. The defendants have demurred, but have not assigned duplicity for cause, as they might have done, but without such asssignment they cannot avail themselves of this defect; for duplicity is a matter of form; and the plea being defective also, the plaintiff is entitled to judgment. With respect to the great question, the cases cited from the Court of King's Bench go to shew that the father has no right to the custody of the child, and if those cases stood alone, there would be no doubt [510] on the question; and in 2 Wils. 126. Hulland v. Malken, Willes, C. J. holds that the putative father has no right to the custody of a child who is nullius filius, as the law calls him. On the other hand, my brother Clayton cited a case from Bott, Newland v. Osman. Considering who the persons are who are likely to be fathers of children of this description, it is a very strong proposition to lay down, that any father, no matter who, any ragged vagabond whatever, although much less competent to educate the child than those who before had the custody, shall have a right to call for the custody of the child, the moment it attains the age of seven years. As to the plea, it contains no allegation that the child was in the possession of the churchwardens and overseers; and if the child was in possession of its mother, what right had the churchwardens to go to the mother, and make her deliver up the custody of the child? The plea should have stated that the officers had a power over the child and the mother, to make her deliver it up. Neither does the plea shew how long a time had elapsed between the end of the seven years and the request, and how much money became due in that time. In the case in Saunders, Richard v. Hodges, it appears the child was not in the custody of its mother, but immediately in the care of the overseers, under a person to whom the overseers put the child to nurse, as appears by the rejoinder there; so the same objection did not hold to that rejoinder. The plea therefore being defective, the plaintiff is entitled L12 1812. STRANGE WAYS ข. ROBINSON. titled to judgment. I say nothing upon the grand point, whether, after the child is out of the age of nurture, any father whatsoever, be he who he may, can go to the mother and claim the custody of the child, upon that point the Court gives no opinion. Judgment for the plaintiff. [ 511 ] June 4. Under a liberty to touch and stay at all ports for all purposes what soever, the stay must be for some purpose connected with the furtherance of the adventure. Whether the the policy, is a Court. The policy TH LANGHORN v. ALLNUTT. HIS was an action upon two similar policies of insurance, dated 16th June, 1810, on coffee, sugar, and dying-wood on board the ship Constantia, "at and from London to any port or ports, place or places in the Baltic, backward and forwards, and until the goods were safely warehoused at the house or warehouses of the consignees, including the risk of transhipment into boats, crafts, lighters, and vessels of any denomination, to and from the vessel; with leave to seek, join and expurpose is with- change convoys, carry and exchange simulated papers, clearin the scope of ances, and ship's papers, sail under any flag, touch, stay, and question for the trade at all ports, places, and islands, for all purposes whatsoever, take in and discharge goods wherever the ship might not limiting the touch at, and in case the commander of the vessel should find it dangerous to enter any of the above ports, or in case if not allowed to discharge the cargo, with leave to return to any ports or places, until the cargo is safely landed," at the rate of 25 guineas per cent. to return 5l. per cent. for convoy from Great Britain to any ports in or off Sweden, and 51. per from any port in or off Sweden to the Baltic, and 10l. per cent. for arrival, and 51. per cent. more, if discharges her cargo in which he is ren- Sweden. In case of loss, capture, seizure, or detention by any account of the power whatever, to pay such loss or claim, whatever the same has performed might be, after notification of the same signed by the assured of that policy without waiting for condemnation, restitution, or any official documents; and it was thereby agreed that that vessel might touch at a Swedish port for orders. The plaintiffs Letters written by an agent in making a contract, which form part of the contract, or of the res gesta, are admissible in evidence against the principal. time of stay, jury. Letters of an agent to his principal, in dering him an transactions he for him, are not admissible in evidence against the principal. cent. Where a total loss is recovered, there cannot also be a return of premium for convoy, because the total loss includes the entire premium added to the invoice price. [ *512 ] averred averred interest in themselves, and also in Living, Downes, and The .1812. LANGHORN v. ALLNUTT. [ 513 ] 1812. LANGHORN v. ALLNUTT. [ 514 ] The defendants contended that as the vessel had lain at Carlsham two months and upwards after her arrival there, before proceeding to any port of delivery, and as there were no orders at that place, when she arrived, for her proceeding to any further port, whether the delay proceeded from the laches of the assured, or from a state of political events which rendered it impracticable to find a market, the insurance was at an end, and the defendant discharged. The policy, they urged, did not include a permission to wait in any port an indefinite time, until the political state of Europe should be altered; if that were contended for, the assured might hold the underwriters on the policy for many years, instead of months, and of this matter the Court, and not the jury, were to be the judges. The defendants also contended that the delay was occasioned by other causes than the time required to procure the papers; and to prove the refusal of the captain of the vessel to proceed with the ship and cargo to Stettin, they offered in evidence letters from Winberg and Meyer, addressed to Living, Downes, and Co., and giving them accounts of the progress and ultimate event of the adventure, and of the efforts Winberg and Meyer had from time to time made to expedite the ships. The plaintiffs objected to the admissibility of this evidence, upon the ground that what an agent says or writes, unless in the making of a contract for his principal, is not evidence against his principal; but that the agents themselves ought to have been produced as witnesses. Mansfield, C. J. thought the evidence inadmissible, but very reluctantly, on account of the expence and difficulty of obtaining witnesses from abroad, rejected it. He thought it was to be left to the jury, and accordingly submitted to them, whether there was any fraud or neglect in the agents of the assured, in permitting the Constantia to sail on the 11th for Stettin, where the Elizabeth had been captured on the 7th, and whether the plaintiffs had remained an unreasonable time in Carlsham; if they thought that there was no want of diligence and attention in not sending the Constantia sooner, the plaintiffs were entitled to recover. The jury found a verdict for the plaintiffs. The plaintiffs also claimed a return of premium for convoy from Great Britain to Carlsham, over and above the total loss, but the jury refused to give it, on the ground that the assured had a right, in case of a total loss, to add the whole amount of the premium to his invoice, and so would recover it in that shape, included in the total loss. Lens, |