1786.
In the prefent cafe, the condition of the Veffel did not preclude the poffibility of crufing. She mounted 16 guns, fhe had leave, by the terms of the policy, to call at Beauƒort ƒor men, fhe was intended to be a cruifing veffel after the outward bound voyage was completed, and it might not be an unreafonable fufpicion in the underwriters, that the captain, unlefs exprefsly reftrained, might be tempted to curife in the outward bound voyage. Whatever their reafons were, the underwriters had certainly a right to make it a part of their contract ; without it, they might have refufed to infure at all, or they would perhaps, have demanded a higher premium ; and therefore being ftipulated, the owners fhould have complied with it.
Thefe warranties in policies of infurance are required by law, and by the conftant ufage of merchants to be ftrictly complied with ; they are generally expreffed in a few words, but where they are plain and clear, it would be of dangerous confequence to this ufeful branch of mercantile bufinefs, to introduce a loofe conftruction of them.
We are of opinion, upon the cafe ftated, and a view of the policy and orders that the warranty has not been complied with, and that judgment fhould be given for the defendant.
MARRIOT et ux, verʃus DAVEY et al. EXECUTORS.
T
HIS was an action brought by a refiduary legatee under the act of the 12 Geo. 3. c. 16. 1 St. L. 449. to which the defendant pleaded fully adminiʃtered. The plaintiff thereupon moved for the appointment of auditors ; but the defendant objected, becaufe his accounts had already been left by confent to referrees, on a former citation before the regifter of wills, &c.
the court, however, determined, that the former fettlement was not conclufive ; and that, by the words of the act, it was intended, new auditors fhould be appointed, ex tempare, upon the plea of want of affets.
Rawle for the plaintiff, Sergeant, for the defendant.
STOTESBURY verʃus COVENHOVEN.
O
N an affidavit that the defendant was in confinement, and that material witneffes in his favour were about to leave the ftate, THE COURT, granted a rule to take their depofitions, although the writ was not returnable ‘ till the next term.
SOMERS verʃus BALABREGA.
I
T was ruled in this cafe, that an Attorney's agreement to refer, binds his Client.
