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umpire between them, to fix the amount be recovered back, though it turns out that of such total or partial loss, as the case it was not due.—(He was then stopped.) may be, and the verdict shall be entered Watkin Williams, in support of the for such amount accordingly, not exceeding rule.—There was only one true claim in the amount of liability under the policy." this action; and the plaintiffs cannot be

When the case came on for trial, it was allowed to keep the amount due under agreed that a special case should be stated the policy, and also the amount of the for the opinion of the Court upon the ques- premiums. In Early v. Bowman (2), where tion whether the policy attached or not. money was paid into court upon an account The special case was argued in this court, stated, it was held that the plaintiff could and it was decided that the plaintiffs were not recover nominal damages under speentitled to recover. It was agreed, " for cial count upon a bill of exchange given for the purpose only of completing the judg- precisely the same amount as that about ment to enable the defendants to bring which the account had been stated. So bere, error," that judgment should be signed for the Court will not allow that which would 2,5001. damages, and costs 1,5001.; and be a perfect scandal, namely, that the upon appeal to the Exchequer Chamber, plaintiff should be allowed to recover on the the judgment of this Court was affirmed. policy, and also to keep the premiums. Gould The arbitration was then proceeded with, v. Oliver (3) is in point, as shewing that and by their award the arbitrators fixed the plaintiff in an action cannot recover the amount of the “ loss of both ship and upon two counts which are inconsistent cargo at the sum of 2,0381. 11s. 7d.with one another. It was an action on a

A summons was then taken out by the charter-party, and the declaration contained plaintiffs to shew cause why the verdict two counts : first, for not loading and taking should not be entered and final judgment care of the cargo; and, secondly, for genesigned for 2,1231. 108. 3d., being the amount ral average. Money was paid into court of the sum awarded together with interest. on the second count, and the jury found a It was discovered that, in making their verdict for the plaintiffs on the first count, award, the arbitrators had only considered with general damages ; Tindal, C.J., in the amount of the loss, but that they would delivering the judgment of the Court, says, have deducted the amount paid into court at page 235, “ The effect of the pleadings if they had thought that they were at in the present case is this : the plaintiffs liberty to do so. The defendants then claim a total loss upon their goods, in conobtained the rule above mentioned.

sequence of the misconduct of the defenA rule to the same effect was also ob

dant; and in case they should fail in estabtained by Cohen, in Carr v. Montefiore, lishing such misconduct in the defendant, and the two rules were brought on to- they claim a partial compensation for the gether.

sacrifice of their goods in the shape of geneMilward (Nov. 25) shewed cause.—The ral average. The defendant, admitting the money was paid into court upon the

money second claim, pays it into court, which the counts, and, having been taken out by the plaintiffs take out, having no claim, in this plaintiffs, those counts are abandoned, and view, beyond the amount paid in. But in the action proceeds upon the special count so doing, they do not abandon the claim upon the policy. The respective attornies which they have preferred in the first count agreed that the matter should be referred of the declaration, and upon which issues to the average-staters to “fix the amount remain to be tried. They would not, indeed, of such total or partial loss, as the case may be permitted to tain the whole amount of be; and the verdict shall be entered for loss under the first count, and the amount such amount accordingly.” Now, the ver- of general average under the second,” &c. dict has been entered for the amount fixed; And in the course of the argument (p. 221), and Marriott v. Hampton (1) shews that his Lordship said: “You never could exwhere money has been paid under the com

pect to recover upon two inconsistent pulsion of legal process, it cannot afterwards

(2) 1 B. & Ad. 889.

(3) 2 M. & G. 208; s.c. 7 Law J. Rep. (N.s.) (1) 2 Smith's Lead. Cas. 236.

C.P. 68.

counts;" and Bosanquet, J. asked “Can you to raise, ainongst other defences, that of recover on both?” The agreement entered unseaworthiness. The plaintiffs took the into by the attornies is really not of any money out of court in satisfaction of the importance as to the question now before claim under the count for money had and the Court, for it only places the average- received. At the trial, the defence of unstaters in the position of the jury.

seaworthiness having failed, or having been (COCKBURN, C.J.-If the plaintiffs are abandoned, a special case was stated for entitled to have two strings to their bow, the opinion of this Court, which was afterso ought the defendants. The plaintitfs are wards taken into the Exchequer Chamber, seeking to establish two claims which can- and in both courts it was held that the not co-exist.

plaintiffs were entitled to recover as for an Just so. As to the question whether the average loss. The amount of the average Court has power to interfere, Cocker v. Tem- loss was referred to and ascertained by pest (4) is decisive, as shewing that every arbitrators, but this not being done before Court has unlimited power over its own the argument of the case, a nominal judgprocess, and may stay proceedings brought ment for 4,0001. was entered up for the against good faith.

purpose of taking the case into error. Cohen, in support of the rule in Cary The plaintiffs are now to enter up their v. Montefiore.---This question is tacitly de judgment and take out their execution for cided in many cases where the declaration the amount to which they are entitled. And contains a special count, and also common they claim to be entitled to enter their judgcounts upon which the defendant pays ment and take out their execution for the money into court. The Judge tells the jury entire amount of the average loss, without that, in determining the amount of damages, giving credit to the defendants for the they ought to take into consideration the amount paid into court and taken out by amount paid into court. So here, the plain- the plaintiffs. The defendants obtained tiffs are only entitled to recover what was rules nisi in effect to restrain the plaintiffs due at the time of the verdict. In Churchill from taking judgment and execution for v. Day (5) Lord Tenterden said, “It would the entire amount of the loss, without be dangerous to say that if money is paid giving credit for the sums paid in respect into court, and in the declaration another of the premiums. count is found more accurately applicable It is obvious that nothing could be more to the plaintiff's cause of action, the effect unjust than that the plaintiffs should recover of the payment should be defeated.” back the premiums, which they could only

Milward was again heard.Gould v. be entitled to on the ground that the risk Oliver (3) does not decide the point now under the policy did not attach, and also before the Court. The observations referred the whole amount of the loss to which they to were not necessary for the decision of could only be entitled if the risk did attach. the case. Upon the pleadings, the plaintiffs It is plain that what the plaintiffs were entiare entitled to recover both amounts and tled to in the event which happened was the to keep them.

loss after deducting the premiums. It was

Cur. adv. vult. said, however, on the part of the plaintiffs, The judgment of the Court was now

that the state of the pleadings allowed them delivered by

to perpetuate this injustice, and that the

money which had been paid into court and CROMPTON, J. In these cases,

the taken out in satisfaction, could not in any plaintiffs having declared on policies of way be treated as reducing the amount to insurance with a count for money had and which the plaintiffs were entitled in respect received, the defendants paid the amount of their average loss. On the other hand, it of the premiums into court on that count, was contended that the deduction in quespleading to the count on the policies so as tion was one which a jury ought, on the

trial, to take into account in reduction of (1) 7 Mee. & W.502 ; 8. c. 10 Law J. Rop. (N.s.) having ascertained the amount of the loss,

the damages. It was said that the jury, Exch. 195. (5) 3 M. & R. 71.

have to inquire what is the damage to . which the plaintiffs were entitled, and that they pray for, and that the rule should be there were many cases in which circum- made absolute to prevent the plaintiffs from stances occurring after the prima facie signing judgment or issuing execution for damage has occurred are allowed to reduce any larger amount, in respect of damages, the damages. Thus part payment after than the balance of the average loss asceraction brought has always been held to tained by the average-staters after deducting reduce the damages. So, in trover, the the amount of the premiums paid into return of the goods goes in reduction of court. damages. In the case of an executor de son Rule accordingly, without costs. tort who has interfered with the estate and

Rule absolute. so converted it, if he has paid debts, he is "recouped,” as it is called, in damages.

It is unnecessary to decide this question in the present case, because we think that

| THE QUEEN, on the prosecuthe Court has the power of preventing the · 1864.

tion of THE OVERSEERS OF plaintiffs from proceeding to carry out by


Nov. 9. its process such a piece of injustice as they

TON, respondents, v. HALLare here contemplating. In Gould v. Oliver

DARE, appellant. (3), where money was paid into court on a

Poor-Rate-Rateable Value - What Decount inconsistent with that on which the

ductions to be Allowed Sewers-Rate plaintiff recovered, it was insisted that, by

6 & 7 Will. 4. c. 96. s. 1. taking the money out of court, the plaintiff had estopped himself from recovering on In assessing land to the poor-rate, deducthe inconsistent count. The Court held, that tions are to be allowed in respect of the such estoppel ought not to prevail, but that general sewers-rate imposed by the Commiseach count must be dealt with indepen- sioners of Sewers, and the annual tax imposed dently of the rest of the record; but Tin- by them for maintenance and cleansing of dal, C.J. remarked, that the plaintiffs would the sewers and works within the district; not be permitted to retain the whole and for the annual average cost of the amount of the loss under the first count, maintenance of a sluice and flood-gate, by and the amount of the general average which the land alone is benefited, and of the under the second. This remark, though said maintenance of a sea-wall, which the owner not to be necessary to or part of the matter of the land is bound to keep up under a due decided, was strictly pertinent to the matter presentment under the commission of sewers. under the consideration of the Court, being an answer to an objection that might have [For the report of the above case, see arisen that, if there was an estoppel, the 34 Law J. Rep. (N.s.) M.C. p. 17.) plaintiff, having got the money, could not be made to part with what he had taken out of court, and that so the plaintiff could

1864. recover it twice over. No, says the Chief

REEVE, appellant, v. wood, Justice, the Court will not allow him to

Nov. 28.) respondent. retain it and take the whole loss besides.

Witness - Competency - Husband and Now here, the plaintiff would get besides

Wife-Rogue and Vagabond. his indemnity from loss on the policy, the amount of the premiums. In other words, Upon the hearing of an information, he would get back the price he has paid under 5 Geo. 4. c. 83. s. 3, against a man and the thing bargained for as well. We for neglecting to maintain his wife, whereby think he cannot be permitted to retain she becomes chargeable, the wife is not a both. The expression of the Chief Justice competent witness against her husband. seems to point to the power inherent in these Courts by stay of proceedings or other- (For the report of the above case, see wise to prevent the abuse of their process. 34 Law J. Rep. (N.s.) M.C. p. 15.]

For these reasons, we are of opinion that the defendants areentitled to the relief which


in the words and figures and to the effect Nov. 15, 18. KEYES V. ELKINS.

following, that is to say: “This indenture,

made the 18th day of March, 1864, between Debtor and Creditor-Composition Deed

Edward Elkins of No. 59, Newman Street, -Release-Covenant not to sue-Sureties

Oxford Street, in the county of Middlesex, Bankruptcy Act, 1861, 8. 192.

gentleman (hereinafter called the debtor),

of the first part; James Lane, of Greenford, To a declaration upon a bill of exchange, in the said county, Esq. (hereinafter called the defendant pleaded a composition deed the trustee), of the second part ; and the executed by himself and three-fourths in several persons whose names are subscribed value of his creditors whose debts amounted and seals affixed in the schedule hereunder to 101. and upwards. By the deed, set written, or who shall, before or after the out in the plea, the defendant agreed to set execution hereof by the said debtor, in apart half his income until a composition writing, assent to or approve of this deed of 58. in the pound should be paid to all or instrument–being respectively in their the creditors respectively. The creditors who own right, either individually or in coexecuted the deed agreed thereby to accept partnership with others, or being agents " these presents in full discharge and satis- or attornies of, creditors of the said debtor, faction of their respective debts, claims and on behalf of themselves and all and every demands" against the defendant; and they, other the creditors of the said debtor (hereby the deed, released the defendant from all inafter called the creditors), of the third their debts and claims against him, and part. Whereas the said debtor is and agreed that the deed might "operate as a standeth indebted to the parties hereto of defeasance pleadable in bar to or be otherwise the third part, and all those who are or set up as a defence to any action," &c. The are intended to be bound by these presents, deed also contained a proviso that it should in divers sums of money respectively; and not operate to prevent any of the creditors whereas the said debtor being unable imfrom claiming or realizing any security held mediately to pay his said creditors the by them, or from suing any person, other amount of their several debts or claims than the said debtor, liable for payment of against him in full, hath lately proposed to such security, nor in any way prejudice or them, and it hath been mutually agreed affect the rights or remedies of any such between the said parties hereto of the creditors, except as against the said debtor second and third parts respectively, that (the defendant). The plea then alleged the said debtor should pay all and every performance of the several requirements of the creditors of him the said debtor, whether section 192. of the Bankruptcy Act, 1861: executing, assenting to or approving of this - Held, that the plea disclosed a good deed or not, and that they the said credidefence to the action.

tors should accept from him the sum or

composition of 58. in the pound on the full Declaration on a bill of exchange drawn amount and in full discharge of all and by the plaintiff and accepted by the defen- every the debts of the said debtor due and dant.

owing by him at the time of the execution Plea-1. As to the first count, that of these presents, in manner and at the after the accruing of the causes of action times hereinafter mentioned, and that the and contracting the debts in the declara- said debtor should make such provision for tion mentioned, and after action brought, the payment of the said sum or composition a composition deed within the true intent of 58. in the pound, and enter into such and meaning of the Bankruptcy Act, covenants, provisions and agreements as 1861, was executed by the defendant, are hereinafter contained, and that the said then being a debtor within the said creditors should execute the release hereinact, and was a deed made and entered after provided: Now this indenture witinto between the defendant, so being nesseth that, in pursuance of the said agreesuch debtor, and his creditors relating ment and in consideration of the premises, to his debts and liabilities, and his re- he the said debtor doth hereby for himself, lease therefrom; which deed was and is his heirs, executors and administrators, NEW SERIES, 34.-Q.B.


covenant, promise and agree with the said they the said creditors and their respective trustee on behalf of himself and the said heirs,executors and administrators, partners, creditors respectively, and their respective partner and successors now have, ever had, executors, administrators, partners and or shall or may or otherwise could or might partner, that he the said debtor shall and hereafter have, claim, challenge, or demand will set apart and appropriate one equal of, from and against him the said debtor, half part or moiety of his future net in- his heirs, executors or administrators, or his come or profits to be derived and received or their lands and tenements, goods and by him from his professional fees and emolu- chattels, estate and effects, or any of them, ments as an attorney and solicitor [here for or by reason or on account of the debts, followed provisions for ascertaining the claims or demands of them, or any of them income of the debtor, and paying over respectively, now due and owing or claimed the composition of 58. in the pound). to be due and owing from the said debtor, And this indenture further witnesseth and all interest and arrears of interest for that, in further pursuance of the said or in respect of the same several debts and agreement and in consideration of the premises, or any of them, or for or by reason premises and of the said covenant of or on account of any other matter, cause the said debtor, they the said creditors or thing whatsoever relating thereto antedo hereby severally for themselves, and cedent to and including the day of the date their respective heirs, executors, admin- hereof; and these presents shall and may istrators, partners, partner and succes- accordingly operate as a defeazance pleadsors, covenant and agree with the said able in bar to or may be otherwise set up debtor, bis executors and administrators, as a defence to any action or actions, suit to accept and take, and they do hereby or suits, or other proceedings at law or accept and take, these presents in full dis- in equity heretofore or hereafter brought, charge and satisfaction of their respective instituted or taken by or on the behalf of debts, claims and demands against or upon the said creditors, or any of them, their or him the said debtor, his estate and effects. any of their heirs, executors or administraAnd they the said creditors, in further pur- tors, partners, partner or successors, for or suance of the said agreement, and for the in respect of such debts, claims and deconsiderations aforesaid, do, and each and mands, or any of them. Provided always, every of them doth, by these presents, and it is hereby agreed and declared by and for themselves and their respective heirs, between the said parties hereto, that the executors, administrators, partners, partner execution, assenting to, or approval of these and successors, freely, clearly and abso- presents and the acceptance of the said lutely remise, release, exonerate, discharge sum or composition of 58. in the pound, at and for ever quit claim unto the said debtor, the times, by the means and in manner his heirs, executors and administrators, hereinbefore mentioned, and the release and his and their future lands, tenements, hereinbefore contained, shall not in anywise goods and chattels, estate and effects, all and prejudice, affect, or extend or be construed singular their, and each and every of their to extend to prevent any of the said credisaid respective debts, claims and demands tors from claiming or realizing any security now due and owing to them respectively, now held by them, or any of them, or from and all and all manner of action and actions, suing any person or persons, other than the suit and suits, cause and causes of action said debtor, liable to payment thereof, for and suit, bills, bonds, writings obligatory, the recovery thereof less the amount re

, debts, sums of money, promissory and other ceived by them, or any of them, under and notes, IO Us, dues, duties, accounts, reckon- by virtue of these presents, nor in any way ings, costs, charges, expenses, agreements, prejudice or affect the rights or remedies of judgments, decrees, decretal or other orders,

any such creditors except as against the said warrants of attorney, defeazances, extents, debtor, to which, but for agreeing to or signexecutions, quarrels, controversies, tres- ing these presents, they might severally have passes, damages, claims and demands, whe

recourse to for the recovery of their several theradmitted or not, whatsoever, both at law debts or demands; but, nevertheless, if any and in equity, or otherwise howsoever, which such security shall be enforceable against

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