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1798.

action in the city of London than to raise money on the security of a bill of lading and policy: these Plaintiffs, having advanced

their money on that security, muft, if the goods had arrived, have HORNCASTLE. received 300l. out of them; the goods being loft, the policy of

insurance stands in the place of them, and the Plaintiff is entitled to receive that sum under the policy. By my note it appears that the Chief Justice, when this case was first moved, delivered a clear opinion in favour of the Plaintiffs : on the whole therefore I think the case is most decidedly with them.

HEATH, J. I am of the same opinion. But as my Brother Buller has entered fo fully into the case, I shall speak more shortly than I should otherwise have done. This statutewas made to prevent unlawful gaming. It is therefore enacted that no perfons shall recover under policies of insurance, but those who have either an interest as principals, or have acted as agents. In the first place then I think that the Plaintiffs were clearly the confignees of the goods: for the bills of lading were sent to them, and they had a right to take poffeffion. The statute also says, that if the names of the consignor or consignees be not inserted, that of the person giving or receiving the order for the insurance shall be inserted. While the ship is in safety, where is the difference whether the agent infure without order, and the principal afterwards approve of the insurance, or first receive the order and then insure ? On the second count it is equally clear, that the Plaintiffs had an insurable interest. It is true that if the Crdbear Company had altered their minds and taken to the cargo, that the Plaintiffs would have had no intereft, but if they had a contingent and reasonable expectation of interest, it was sufficient to entitle them to infure, according to what was held in Le Cras v. Ilughes (a), viz. that a certain expectation of receiving property captured for the emolument of the captors, from the Crown, would give an insurable intereft.

ROOKE J. I agree in opinion with my Brothers. I think that the Plaintiffs may be considered as consignees of these goods, and I also think that they may be considered as having received orders from the principal to insure, what they did having been subsequently adopted by him. But there is one ground on which I have no doubt, namely that the Plaintiffs come within the last defcription of persons mentioned in the statute. They are the persons who gave the immediate order, in consequence of which

(.) E. 22 Geo. 3. B.R. Park on Infur. 269.

the 1798.

WOLFS

the policy was effected. The act of 28 G. 3. was made to remedy the inconveniences which were experienced under the 25 G. 3. and therefore we are bound to give it a liberal conitruction. I think the Plaintiffs clearly entitled.

Poftea to the Plaintiffs. (a)

HORNCASTLI.

(a) See Craufurd v. Hunter, 8 T. R. 13.

WEDDALL V. BERGER.

Nov. 17th. L E BLANC Serjt. moved to justify bail, but Runnington Serjt. Bail were al.

opposed the justification, on the ground of the rule to bring atter the rule on in the body having expired yesterday, and that the sheriff was 'he sheriff had

expired, on paytherefore in contempt.

ment of the costs But the Court overruled the objection and allowed the bail of the opposition. to justify on the Defendant undertaking to pay the costs of the on bis business

at a lodging in opposition. (a)

one place, and Runnington then objected to the notice, because one of the keep a house at bail was described therein as of Coppice Row, whereas it ap- of bail defcribing peared that he had only a lodging in that place where he carried him as of the

former place is on his business, but that his house was in Southampton Row.

fufficient. The Court however held the description sufficient, saying he was most likely to be found at the place where he carried on his business; that he had been found accordingly and was a house-keeper.

Bail allowed.

(d) But the Court will set aside an attachment obtained againft the Sheriff after the bail has juftified, with costs, though the

rule to bring in the body has expired before
che junification. Thorold v. Fijder, 1 A.

Bl.9.

Nov. 18th.
Maddocks and Another v. BULLCOCK.

1 Eaf, 389.

10 Eaj, 100. ΤΗΣ 'HE Defendant in this case having been arrested, a bail-bond if a Defendant

was taken by the sheriff; bail above were not put in, but furrender himbefore the return of the writ the Defendant surrendered himself; cient performno notice however having been given to the Plaintiff of the sur

ance of the con

dition of the bail render, he took an assignment of the bail-bond and proceeded bond, withont against the bail.

putting in bail.

But he must A rule nis having been obtained by Cockell Serjt. on a former give notice of

such surrender. day for cancelling the bail-bond and staying proceedings thereon; Williams Serjt. was now proceeding to thew cause against the rule,

MADDOCKS

1798. on the authority of Harrison v. Davies, 5 Burr. 2683. where it

was held that the Defendant's surrender was no performance of

the condition of the bail-bond, but that he must put in bail : Bullcock. however, on a question from the Court, he admitted that the above

cafe had been overruled in Jonesv. Lander, 6 T. R. 753., and Stamperv. Milbourne, 7 T.R. 122. (a), but added, that there was a difference in this case, no notice having been given of the surrender.

The Court said that as no notice had been given, the costs of the proceeding must be paid up to the present time, and with that term made the

Rule absolute.

(a) 7See however Hamilton v. Wilfun, tional in the Meriff to accept a surrender i Ea? 383, where it was held that it is op- before the return of the writ.

Vov. 19th. Williams, Executor of ELIZABETH BREEDON, v. BAR

THOLOMEW. dels COVENANT for rent, The declaration stated that by indenture ?«» feiture, re

dated the 2d February 1789, E. Breedon demised certain finder over premises to the Defendant, to hold from the 29th of September .) B., lease to C. for a term, and 1788, for the term of twenty-one years, determinable at the dewiterwards ap- cease of E. Breedon, at the yearly rent of 130l.; that E. Breedon frehending that

las forfeited, died on the 30th October 1793, having made the Plaintiff her exea quieice in B.'s cutor; and that on the 29th of September 1793, five years rent tad ming and recuiving the rent amounting to 650l. became due from the Defendant to E. Breedon fi m C., bis

in her lifetime. Breach, that Defendant had not paid this fum ur?cutor may, w the wing that to E. Breedon in her lifetime, or to the Plaintiff since her death. lie acquiesced Pleas. ift, That the Defendant in the lifetime of the said

pensional, ez?" E. Breedon, to wit, on the 29th of September 1793, paid to the faid irehension, reanzer from C.

E. Breedon the fum of 650l. being the amount of five years e amount of

rent of the said term in the said declaration mentioned, ending :? 'oully paid to

on that day according to the form and effect of the said indenture, and the Defendant's covenant therein; concluding to the country. 2d, That the premises in question were settled on E. Breedon by way of jointure, at the time of her marriage with S. Breedon, as to the use of the faid E. Breedon, for her life, and so long as she should continue fole and unmarried, from and after the death of the said S. Breedon, remainder to his right heirs ; that on the 24th of November 1776, S. Breedon died, and that on the 5th of November 1786, E. Brecdon intermarried with W. Williams the father of the prefent Plaintiff, whereupon her interest in the premises determined; And this, 8c. wherefore, &c.

Replication,

terent erro

B.

1798.

WILLIAMS

BARTHO.
LOMKV,

Replication, taking issue upon the first plea, and traversing the marriage with W. Williams, ftated in the second plea; and on this also issue was joined.

This case came on to be tried before Heath J., at the BerkShire Summer aflizes at Abingdon, when it appeared that the premises were settled on E. Breedon as stated in the second plea ; that after the death of S. Breedon the clandestinely married W. Williams at the chapel of the Savoy; but continued to receive the rent for some years, until Dr. Breedon the remainderman being informed of the marriage, and that she had forfeited her estate thereby, claimed the rent of the Defendant, who accordingly paid it to him for the five years in question, with the knowledge and acquicscence of E. Breedon. It was proved in answer to the second plea, that at the time of the intermarriage of E. Breedon with W. Williams, he had another wife living. A question being raised, whether these facts would support the first issue, Heath J. was of opinion that they would not, and accordingly under his direction a verdict was taken for the Plaintiff, but if the Court should be of opinion that payment by the Defendant to Dr. Breedon under the above circumstances proved the first issue, then a verdict on that issue to be entered for the Defendant.

A rule nis having been obtained for this purpose on a former day,

Le Blanc and Shepherd Serjts. now shewed cause. The only question here arises on the first iffue, it having been clearly proved under the second, that the marriage of E. Breedon with W. Williams was void. The payment in this case was made to Dr. Breedon under a mistake; not as agent to E. Breedon, nor under the idea of her having directed it. Had Dr. Breedon been fteward to E. Breedon, the payment might then have been confidered as made to her : but, this was an adverse payment to a perfon who claimed the rent as his own upon falfe grounds. If tenant in fee make a leafe and die, and A. B. enter and receive the rents before the heir at law is aware of his title, the tenant shall not defend himself in an action for rent brought by the heir at law, by saying that he has already paid the rent to A.B.

Williams Serjt. for the Defendant. It is true that payment of rent by the tenant to a person who claims adversely without the knowledge of the party having the right to it cannot be supported. But I contend that the circumstances of this case amount to eviY 4

dence

1798.

WILLIAMS

BARTHO.
LOMEW

must pay

dence to be left to a jury, that the rent was paid by the direction of E. Breedon, which would make it a payment to herself. The payment to Dr. Breedon under an idea on all fides that he was entitled to the rent, amounts to an agreement on the part of E. Breedon, that it should be paid to him. Where a mortgagee or obligee agrees that the mortgagor or obligor shall pay the interest to a scrivener, it is a good payment, though he has neither the custody of the mortgage, nor the bond. Whitlock v. Waltham, i Salk. 157. Suppose E. Breedon had said to the Defendant, “I have forfeited the estate, and

you

the “ rent to Dr. Breedon ;" the payment would have been protected: now if her conduct amount to a confirmation of the payment, it must have the same effect, according to the maxim that omnis rati-habitio retro-trahitur et mandato priori æquiparatur. This cannot be called a voluntary payment by the tenant, for if Dr. Breedon had diftrained and avowed in replevin for rent in arrear, what plea in bar could the tenant have set up? Nor was it a payment by mistake, having been made with the knowledge of the lesfor, to whom all the fault and laches must be imputed.

BULLER J. If money be paid to A. by the direction of B., it is a good payment to B.; but I can never agree that if money be paid to A. fimply with the knowledge of B., it will be a payment to B. Suppose that one disleises another of an estate and continues in poffeffion of the rents and profits with the knowledge of the disseisee, will any body say that the diffeisee shall not recover against the tenant? Knowledge will not do, there must be consent, direction, and authority. Here there clearly was no order. This poor woman thought that she was not entitled to the rent: Dr. Breedon therefore obtained it in spite of her, in consequence of her perfuafion, that the was not entitled. If the allows Dr. Breedon to receive the rent under the idea that she has no right, how can we conclude froin that circumstance, that the would have done the same if the had been apprised of her right? It has been argued, that if Dr. Breedon had distrained and avowed in replevin, the tenant could have made no answer; but I see no difficulty in that. Every tenant is bound by his attornment;

the Defendant might have pleaded that he did not hold as tenant to Dr. Breedon ; and if Dr. Breedon had said “ You have attorned

to me;" the Defendant might have answered “ I did that on

your misrepresentation, who claimed as remainder-man;" and might have shewn, that Mrs. Breedon was still alive and entitled.

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