FOXCRAFT บ. DEVONSHIRE. alleged. We do not think there was a fraud proved, sufficient to found the direction of the Judge and the verdict of the jury. Fraud is sometimes a mere matter of fact to be determined by a jury; sometimes it is a conclusion of law from facts agreed on between the parties. The fraud here alleged is of the latter kind. The evidence of fraud in this case are letters sent from the factor to the bankrupt, which prove (according to the report) that a false credit was given to the bankrupt, to prevent an open bankruptcy. Had the transaction been after notice of the act of bankruptcy committed, the Judge's direction would have been agreeable to the terms of the statute 19 Geo. 2; but as this was before notice of the act done, the direction (we all think) was a mistake. It is no act of fraud, for a factor or any person whatsoever to advance money to another, to keep off an act of bankruptcy. On the contrary, it is a generous, humane, meritorious act. Men in trade may often be liable to failures, from accidents abroad, though their own substance be extremely great, unless some friend will step in to lend them a helping hand for the present. Nothing is more common among merchants, than for a fictitious credit to be kept up, by drawing and redrawing bills; yet these were never denied to be real [ *197 ] debts, and are always admitted as such. Nor is the case of a factor in the least more unfavourable than another's; they are liable to great impositions from the merchant, who may consign his goods differently from what he promises to do; so that they are not altogether so safe as it has been argued they are. On the whole, there cannot be a greater paradox, than that it should be a fraud for a man to lend his money, with no other view but a chance of being repaid it. * Noel, J., has been consulted with, and agrees that the matter now appears in a different light than at the trial, and concurs with us, that these facts were not sufficient to ground a conclusion of fraud. Unless there be a new trial granted, the defendant must resort to equity, because legal allowances were not made to him at the trial, as was done in the case of Dillon and Hyde. Therefore, per tot' Cur. Let there be a new trial on payment of costs (e). (e) A trader, after a secret act of bankruptcy, consigned goods to a factor, who agreed to advance money thereon, and, accordingly accepted and paid bills drawn on him by the trader; a commission afterwards issued against the trader on such prior act of bankruptcy, after which the factor sold the goods and received the money: held that he was answerable to the assignees for the value of the goods. -Lord Kenyon: "We ordered the second argument not on account of any difficulty that this case presented to the Court; but the case of Foxcraft v. Devonshire was pressed upon us on the former argument as a decision directly in favour of the defendants; and that case is involved in so much obscurity, that, when it was cited, we did not immediately see how far it applied to the case before us: but, having since had an opportunity of examining that case, we find that there was no point there decided, that will clash with our opinion in this case. It appears that that case was not thoroughly understood on the first trial; and all that was there judicially decided by this Court was, that a new trial ought to be granted, in order that the case might be more fully investigated. It is true, indeed, that some expressions there dropt from Lord Mansfield favourable to the argument of the defendants in this case; but even if such had been his judicial opinion, we must have examined the grounds of it; and after paying every attention that is due to the opinion of so great a man, we must have decided according to the provisions of the statutes alluded to; Copland v. Stein, 8 T. R. 199. A factor, who becomes surety for his principal, has a lien on the price of the goods sold by him for his principal, to the amount of the sum for which he has so become surety: Drinkwater v. Goodwin, 1 Cowp. 251, in which case the factor had sold the goods before any act of bankruptcy, but had not received the money till after action brought. So where a principal informs his factor, that he intends to consign a ship to him for sale, and draws bills on him, which the factor accepts, the latter has a lien on the proceeds, as well for disbursements, as for acceptances, whether paid or outstanding; Hammonds v. Barclay, 2 East, 227. Where A. a factor having sold goods of B. in his FOXCRAFT บ. own name to C., the latter, without pay- WILLIAMS, on Demise of JOHNSON, v. KEEN, Casual Ejector, NINE ejectments were delivered in the county borough of (f) Probably the county borough of Carmarthen has an exempt jurisdiction. "Exempt jurisdiction is this, and was granted to cities or towns corporate for the benefit of trade; it was a grant to the freemen of such a city or town, that they should not be impleaded out of their city or town, and this grant was good, if there were a Court in the city or town to hold plea of the matter. And if such inhabitant, in that case, be impleaded in any other Court, he shall plead this franchise to the jurisdiction; and if he were sued below, he might have a certiorari and remove it up; for the privilege of being sued no where else being for his advantage he may waive it;" per Holt, C. J., in Crosse v. Smith, 12 Mod. 644, 3 Salk. 79: it is a grant to a eity, that the inhabitants shall be sued within the city and not elsewhere, and nobody can take advantage of it, but the defendant; S. C. 2 Ld. Raym. 837; Bro. Abr. Conusance, pl. 45, S. P. See also the Case of Cambridge University, 10 Mod. 126. In all personal actions, whether local or transitory, if there be no (g) The tenant in possession cannot Leave to plead to the jurisdiction in ejectment. leave so to do. Rules to shew cause were granted, and afterwards made absolute. *(Qu. Whether regularly the motion should not have been, "that the tenant in possession, when made defendant, may have leave, &c.;" for the rule now granted seems only to affect the casual ejector, the only then defendant.) defendant must appear in Court, when an order THE KING v. Gibson. Reason why the MR. Norton moved to quash an order of bastardy, which being indefensible was accordingly done; the defendant entering into a recognizance to abide the order of the sessions below; which was the reason (the Court said) why the personal appearance of the defendant was in these cases always required (h). of bastardy is quashed. (h) R. v. Matthews, 2 Salk. 475; R. v. Price, 6 T. R. 148; R. v. St. Mary's, Nottingham, 13 East, 57, n. (a), acc. GARDINER V. CROSEDALE. ACTION on a policy of insurance made on a ship trading to Greenland, which insured her against all perils, ice only excepted. She was damaged in a storm; upon which the owners broke her up at Bergen, and then brought this action against the insurers for the total loss. The jury found a verdict for the plaintiff, with 207. damages, for a partial or average loss. Morton moved to set aside the verdict, and to enter up judgment as in case of a nonsuit; because (he argued) the whole declaration is substantive, the total loss is the gist of the complaint; and therefore, unless the case be wholly proved, the plaintiff must be nonsuit. Dean against Dicker, Stra. 1250; insurance on goods in the Dursley galley, which was taken by an enemy, and cut out of port eight days afterwards. Plaintiff brought action for the total loss. It was insisted for the defendant, that as only salvage was to be paid, therefore only an average loss could be recovered for; which was not within the declaration. Chief Justice said, the plaintiff must recover in the present case; but it might have been otherwise, had the ship been retaken before it was carried intra præsidia (i). *Aston, on the same side, cited Horn and Chandler (k), and Hamilton and Veere, 2 Saund. 169. If a person declares that (i) But that was an insurance, interest or no interest; and the Chief Justice held that the plaintiff ought to recover for a total loss; for his was a wager upon a total loss in the voyage, and there had happened one; for the being carried into port and detained eight days makes one. But (k) 1 Mod. 271, 2 Keb. 687, 710. he lost his apprentice, per quod servitium amisit pro residuo termini, if he recovers for the whole remaining term, when part of it is still to come, it is bad. E. Harvey on the same side.-Had judgment gone by default, the defendant would have admitted all the declaration, and therein the total loss, for which only the Jury could have assessed damages on a writ of enquiry, and not for an average loss. Lord MANSFIELD, C. J.-This point of a partial loss was resorted to, late in the trial, after I had delivered my opinion, that the plaintiff could not recover for a total loss. The defendants contended, that no recovery could be had for a partial loss on this declaration. I gave no opinion, but directed a verdict for a partial loss, subject to the opinion of the Court; and the Jury assessed damages less by half than what was proved. I can hear of no determination upon this point. It therefore stands upon principles. And I think a recovery may be had for a partial loss. This is an action on the case, which is a liberal action; a plaintiff may recover therein whatever in justice he ought, consistent with the grounds of his declaration. He may recover less than he lays, but not more. The action is grounded on the policy of insurance, and the damage that has arisen to the ship. As to the totality or partiality of the loss, that is only material in respect of the quantum of damage: The ground of the action is upon the perils within the policy. It may be said, that the defendant does not come prepared to make a defence against any thing, but the total loss laid in the declaration. But he should come prepared to say, first, Whether he signed the policy; and secondly, Whether any or but little loss accrued. The contrary doctrine would introduce great inconvenience, by making distinct counts requisite for every possible species of damage, and every possible quantum of loss. I therefore think the plaintiff on such a declaration may recover either the total laid, or any part of it. GARDINER v. CROSEDALE. DENNISON, J.-There are many actions wherein nothing can be recovered but for a total loss; but this is not one of them. [ 200 ] This is an action for damages, in which the plaintiff shall recover pro tanto, according to what he proves. In an action of waste for pulling down a whole house, a man may give evidence of pulling down part of it. It is a mighty clear case. FOSTER, J., accord. WILMOT, J.-In all actions on the case, the substance of the count is damage assigned; the total or partial loss is only the measure of that damage. On a writ of enquiry, the plaintiff could have recovered for no more than the damage proved; and if he had not proved the whole loss, he must have recovered for what he did prove (l). The postea was delivered to the plaintiff. () As to proceedings on policies of insurance, see Park's Ins. 592 (ed. 1817). See also 2 Doug. 732, Grant v. Astle, n. Words may be supplied to re strain the gene rality of a devise (so as to except a reversion), if the intent of the tes tator can be col lected from other parts of his will. [ *201 ] 66 STRONG. TEATT, [Lessee of MERVIN.] S. C. 2 Burr. 912. ERROR from King's Bench in Ireland (m). On ejectment, the Jury found a special verdict, that by settlement, 22d December, 1711, Audley Mervin, on the marriage of his eldest son, Henry, with Mary Tichburn, conveyed lands of 18001. per annum, in Tyrone, in trust for himself for life, remainder to Henry for life, remainder to the first and other sons of the marriage in tail male, reversion to himself in fee. Audley being also seised in fee of other lands in Meath and Tyrone, of 500l. per annum, and having three younger sons, Audley, James, and Theophilus, and four daughters, he, in 1717, made his will, beginning thus, "And as to all my worldly estate (n), " &c., and then devises to his wife, Olivia, by special descrip"tions, the last mentioned lands in Meath and Tyrone, and "also all other his lands, tenements, and hereditaments in "Meath and Tyrone, whereof he was seised in fee-simple; to "the use and intent, that his wife might take thereout an annuity of 1007. for life, and should raise by sale, &c. so much money as would pay the debts which should exceed the "value of his personal estate; and if any remain unsold, &c. "then with remainder to the use of his sons, Audley, James, "and Theophilus, successively for life, and to their first and "other sons respectively in tail male; remainder to his daugh"ters as tenants in common in tail; remainder to two of his nephews in fee. Proviso, that if Henry and Audley die "without issue in the life-time of James, so that the estates "settled upon Henry in 1711, shall come to James, the lands "devised by will shall go over to Theophilus." The question was, Whether the reversion of the settled estates by the deed of 1711, passed under this will to the devisees, or whether it descended to the heir at law. In Easter Term, 1759, judgment was given in the Court below, that it passed by the will, and the alienee of the heir at law brought this writ of error (o). 66 66 Knowler, for the plaintiff in error, argued, 1. That the testator never intended to devise this reversion by will, as he distinguishes his settled estates from the lands devised. (m) At that time a writ of error lay from K. B. in Ireland to K. B. in England, and thence to Dom. Proc.: but by 23 G. 3, c. 28, s. 2, no writ of error or appeal from any Courts in Ireland shall be received by any Court in Great Britain. Since the Union, however, an appeal lies from the supreme Irish Courts to the House of Lords. (n) As to the effect of these words, see Frogmorton v. Wright, post, 889. (0) It appears from 1 Burr. 912, that the lessors of the defendant in error, In whose demises are material, were, Wesley Harman, eldest son and heir of Lucy Mervin, one of the testator's daughters; Eleanor Irwin, another daughter, and widow of one Irwin; and Anne Mervin, also a daughter, and widow of one Mervin, alias Richardson; and that all the other daughters, and all the sons, had died s. p.: the two nephews were also dead. Henry Mervin had aliened the property, contained in the deed of 1711, after his father's death, to Strong. |