1798. WOLFF ย. action in the city of London than to raise money on the fecurity of a bill of lading and policy: these Plaintiffs, having advanced their money on that fecurity, muft, if the goods had arrived, have HORNCASTLE. received 300l. out of them; the goods being loft, the policy of infurance ftands in the place of them, and the Plaintiff is entitled to receive that fum under the policy. By my note it appears that the Chief Juftice, when this cafe was firft moved, delivered a clear opinion in favour of the Plaintiffs: on the whole therefore I think the cafe is moft decidedly with them. HEATH, J. I am of the fame opinion. But as my Brother Buller has entered fo fully into the cafe, I fhall fpeak more fhortly than I fhould otherwise have done. This ftatute was made to prevent unlawful gaming. It is therefore enacted that no perfons fhall recover under policies of insurance, but those who have either an intereft 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 fent to them, and they had a right to take poffeffion. The ftatute alfo fays, that if the names of the confignor or confignees be not inferted, that of the perfon giving or receiving the order for the infurance shall be inferted. While the fhip is in fafety, where is the difference whether the agent infure without order, and the principal afterwards approve of the infurance, or firft receive the order and then infure? On the fecond count it is equally clear, that the Plaintiffs had an infurable intereft. It is true that if the Cudbear Company had altered their minds and taken to the cargo, that the Plaintiff's would have had no intereft, but if they had a contingent and reafonable expectation of intereft, it was fufficient to entitle them to infure, according to what was held in Le Cras v. Hughes (a), viz. that a certain expectation of receiving property captured for the emolument of the captors, from the Crown, would give an infurable interest. ROOKE J. I agree in opinion with my Brothers. I think that the Plaintiffs may be confidered as confignees of these goods, and I also think that they may be confidered as having received orders from the principal to infure, what they did having been fubfequently adopted by him. But there is one ground on which I have no doubt, namely that the Plaintiffs come within the laft defcription of perfons mentioned in the ftatute. They are the perfons who gave the immediate order, in confequence of which (a) E. 22 Geo. 3. B. R. Park on Infur. 269. the 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 conftruction. I think the Plaintiffs clearly entitled. Poftea to the Plaintiffs. (a) (a) See Craufurd v. Hunter, 8 T. R. 13. 1798. WOLFE v. HORNCASTLE. LE WEDDALL v. Berger. E BLANC Serjt. moved to justify bail, but Runnington Serjt. oppofed the juftification, on the ground of the rule to bring in the body having expired yesterday, and that the sheriff was therefore in contempt. bail But the Court overruled the objection and allowed the to juftify on the Defendant undertaking to pay the cofts of the oppofition. (a) Runnington then objected to the notice, because one of the bail was defcribed therein as of Coppice Row, whereas it appeared that he had only a lodging in that place where he carried on his bufinefs, but that his houfe was in Southampton Row. The Court however held the defcription fufficient, faying he was most likely to be found at the place where he carried on his bufinefs; that he had been found accordingly and was a houfe-keeper. (a) But the Court will fet afide an attachment obtained against the heriff after the bail has juftified, with cofts, though the Bail allowed. rule to bring in the body has expired before Bl. 9. Nov. 17th. Bail were allowed to justify after the rule on the theriff had expired, on payment of the cofts of the oppofition. If a man carry on his business at a lodging in one place, and keep a houfe at of bail defcribing him as of the former place is fufficient. another, notice Nov. 18th. THE MADDOCKS and Another v. BULLCOCK. 1 Eaft, 389. 10 Eaft, 100. If a Defendant furrender himcient perform felf it is a fuffi HE Defendant in this cafe having been arrefted, a bail-bond was taken by the sheriff; bail above were not put in, but before the return of the writ the Defendant furrendered himself; no notice however having been given to the Plaintiff of the fur-ance of the conrender, he took an affignment of the bail-bond and proceeded bond, withont against the bail. dition of the bail putting in bail. But he muft fuch furrender. A rule nif having been obtained by Cockell Serjt. on a former give notice of day for cancelling the bail-bond and ftaying proceedings thereon; Williams Serjt. was now proceeding to fhew caufe against the rule, 1798. MADDOCKS ย. on the authority of Harrison v. Davies, 5 Burr. 2683. where it was held that the Defendant's furrender was no performance of the condition of the bail-bond, but that he muft put in bail: BULLCOCK. however, on a queftion from the Court, he admitted that the above cafc had been overruled in Jones v. Lander, 6 T. R.753., and Stamperv. Milbourne, 7 T. R. 122. (a), but added, that there was a difference in this cafe, no notice having been given of the surrender. The Court faid 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 (a)See however Hamilton v. Wilfon, Rule abfolute. tional in the fheriff to accept a furrender before the return of the writ. Nov. 19th. If A. tenant for We fubject to forfeiture, re inder over to B., leafe to C. for a term, and ..iterwards apprehending that has forfeited, a quiefce in B.'s Carming and re ceiving the rent im C., his xecutor may, fhewing that he acquiefced nder a falie aprehenfion, re. cover from C. the amount of the rent erro 11 oufly paid to B. WILLIAMS, Executor of ELIZABETH BREEDON, v. BAR THOLOMEW. Cov Replication, Replication, taking iffue upon the first plea, and traverfing the marriage with W. Williams, ftated in the fecond plea; and on this also iffue was joined. This cafe came on to be tried before Heath J., at the Berkfhire Summer affizes at Abingdon, when it appeared that the premifes were fettled on E. Breedon as stated in the fecond plea; that after the death of S. Breedon the clandeftinely married W. Williams at the chapel of the Savoy; but continued to receive the rent for fome years, until Dr. Breedon the remainderman being informed of the marriage, and that she had forfeited her eftate thereby, claimed the rent of the Defendant, who accordingly paid it to him for the five years in queftion, with the knowledge and acquiefcence of E. Breedon. It was proved in anfwer to the fecond plea, that at the time of the intermarriage of E. Breedon with W. Williams, he had another wife living. A queftion being raised, whether thefe facts would fupport the firft iffue, 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 fhould be of opinion that payment by the Defendant to Dr. Breedon under the above circumftances proved the first iffue, then a verdict on that iffue to be entered for the Defendant. A rule nifi having been obtained for this purpose on a former day, Le Blanc and Shepherd Serjts. now fhewed caufe. The only queftion here arifes on the firft iffue, it having been clearly proved under the second, that the marriage of E. Breedon with W. Williams was void. The payment in this cafe 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 lease and die, and A. B. enter and receive the rents before the heir at law is aware of his title, the tenant fhall 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 perfon who claims adverfely without the knowledge of the party having the right to it cannot be supported. But I contend that the circumftances of this cafe amount to evidence Y 4 1798. WILLIAMS v. BARTHO LOMEW, 1798. WILLIAMS ย. BARTHO LOMEW. 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 fhould be paid to him. Where a mortgagee or obligee agrees that the mortgagor or obligor fhall pay the intereft to a fcrivener, it is a good payment, though he has neither the custody of the mortgage, nor the bond. Whitlock v. Waltham, I Salk. 157. Suppofe E. Breedon had faid to the Defendant, "I have forfeited the eftate, and you must pay 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 fame 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 leffor, to whom all the fault and laches muft 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. Suppofe that one diffeifes another of an eftate and continues in poffeffion of the rents and profits with the knowledge of the diffeifee, will any body fay that the diffeifee fhall not recover against the tenant? Knowledge will not do, there muft be confent, 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 confequence of her perfuafion, that she was not entitled. If the allows Dr. Breedon to receive the rent under the idea that she has no right, how can we conclude from that circumftance, that the would have done the fame if the had been apprifed of her right? It has been argued, that if Dr. Breedon had diítrained and avowed in replevin, the tenant could have made no answer; but I fee 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 faid "You have attorned to me;" the Defendant might have answered "I did that on "your mifreprefentation, who claimed as remainder-man;” and might have shewn, that Mrs. Breedon was ftill alive and entitled. |