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Glover r. Black.
S. C. 3 Burr. 1394.
ACTION on a policy of insurance. Glover had lent money to Captain Tryon of the Denham India-man on a respondentia bond, but insured as for goods. Captain Tryt>n had interest on board equal to the sum insured. The ship was burnt, and her cargo. And now the question was, whether an insurance as for goods and merchandize should be valid as for a respondentia interest. N. B. Captain Tryon was admitted to prove his own interest; though excepted to.
Lord Mansfield, C. J., held it to be a sufficient interest in the goods; and that a mortgagee of goods might insure those goods. The statute 19 Geo. 2(y), has prohibited the captain (or borrower) from insuring any thing, but the surplus above his respondentia bonds. Who must insure the rest? The lender. No fraud can be meant in this case, by not expressing that it was on respondentia; since it is more for the benefit of the insurers to omit, than to mention it;—(" Because, ut opinor, in insurances upon respondentia, proof of the execution of the respondentia bond is sufficient proof of interest in the insured.")
[8. C. Post, pp. 399, 405, 422.]
Insurance upon goods is valid for a respondentia interest.
[So held at Nisi Prius, but the contrary decided on a case reserved: pott, 422.]
The Kino ». Morgan and Others.
IN an action of trespass, but not vi et armis (a), in order to remove a cause commenced in the Court Baron of a gentleman in Wales, the defendant brought his writ of tolt, directed to the steward, to remove the said action into the County Court of the sheriff of Monmouthshire; which the said Morgan refused, and afterwards tried it in the Court Baron, and the jury found for the plaintiff, and gave 6s. 6d. damages.
Norton, Solicitor-General, moved for an attachment against the plaintiff and the steward, for their contempt.
Upon the whole, the principal question was, Whether the defendant could bring such a writ, or at least, without shewing any cause in the body of it. Both which Morton for the plaintiff denied, and quoted F. N. B. 7, and the Register 5(b).
[A writ of loll is not to be directed to the steward of the Court Baron. Semble, that a defendant cannot have such writ without cause shewn in the body of it]
(a) A Court Baron cannot hold plea of trespass vi et armis, inasmuch, as not being a court of record, it cannot impose a fine; nor a plea, if the debt or damages amount to forty shillings; Co. Lit. 118 a; 2 Inst. 311: but, it seems, it may hold plea in either case by juslicies; Ibid.
(4) Fitzherbert says: "It seems reasonable, that the tenant may also remove
the matter by a Tolt made by the sheriff, supposing that the bailiffs of the court do favour the demandant in the matter. Tamen quare; for the rule in the Register is, that the tenant may remove the plea out of the Lord's Court for good cause before the Justices in the Common Pleas: but the demandant cannot so do, because he may have a Toll from the sheriff to remove it
The King Dennison, J.—The cause alleged in the writ is always ima
Morgan. ginary and fictitious.
• „—'—.i Morton replied,—But, Sir, some cause ought to be assigned
on the face of the writ.—To which no answer was given.
Ashhurst, also for the plaintiff in the original cause, cited Finch's Law, 144, and objected, that the writ was misdirected, [ *398 ] *for that it was directed to the steward, and not to the sheriff's summoning bailiff, according to the precedent in Rastall's Ent. 245(c); or, at least, that it ought to have been directed to the suitors, who are properly the judges in a Court Baron.
Norton replied, that the writ of tolt and the writ oipone are of one and the same nature, but applicable to different courts, and that the pone lies as well for the defendant as for the plaintiff. That the cause usually assigned in these writs is mere surplusage, and the direction is so too; for if the writ is properly executed, it is sufficient: and, that there are two sorts of Courts Baron; in the one, the suitors are the judges; in the other, the steward is, as it were, a judge together with the suitors.
After these arguments, Lord Mansfield, C. J., said—This motion is a motion of spirit and vexation. I am not satisfied, that this writ is a good writ. But there is no necessity to give a precise opinion; for, if the regularity of the writ is only doubtful, the court will not inflict any punishment.
Dennison, J.—I will not give a precise opinion. By the common law, the suitors are the judges in a Court Baron: by a special custom, the steward may be judge (d). In the case at bar I know not whether the suitors or the steward are the judge: The King but the common law ought to have the preference in a doubt- »•
out of the Lord's Court into the County hires. The first is by the common law, Court." The words of the Register are: and is called a Court Baron, as some ha« Quia oportet, quod petens faciat toltam de said, for that it is the freeholder's or freecuria in comitatum, et exinde potest re- man's court, (for barons in one sense sigmoveri ad sectam suam et poni coram Jus- nifie freemen), and this may be kept from titiariis de Banco, &c., sine causa. three weekes to three weckes. The second (e) There the proceedings were com- is a Customary Court, and that doth conmenced by writ of right patent, and not cerne copiholders, and therein the lord or by plaint, as in the present case. It is a his steward is the judge. Now as there precept from the sheriff to his own bailiff, can be no Court Baron without freeholders, commanding him, '• ex parte domini Regis, so there cannot be this Customary Court quod in propria persond tud accedas ad cu- without copiholders or customary holders. riant, Sfc, et loquelam, qua est in eddem And as there may be a Court Baron onlj curid per breve domini regis de recto pa- of freeholders without copiholders, and tens inter SfC, tollas, et Mam habeas in then is the steward the register; so there comitatu meo apud N." The cause there may be a Customary Court of copiholders alleged is, that the tenant "est umts bal- onely without freeholders, and then is the livorum, qui curiampradictam tenet; per lord or his steward the judge;" Co. Lit. quod" the demandants, who bring the tolt, 58 a; 4 Inst 268, ace. That the suitors "rectum in curid illdconsequinonpossunt." are the judges, whether the plea be by The return is: "Accessi in proprid persond force of a writ of right or by plaint, see med ad curiam, Qe., et loquelam qua fait Bro. Abr. Judges, pi. 15; Jentlemon's Ca., ibidem inter, $c.,incomitatum vie' N. pried' 6 Rep. lib; Pill v. Towers, Cro. Eliz. lull, Sfc, qute qnidem loquela patet in qud- 791; Noy, 20, S. C.; Armyn v. Appletoft, dam seheduld huic praceplo annexd. Re- Cro. Jac. 582; £i»re v. Wells, T. Jon. 22; sponsioJ.S.balliviiiinerantisinfrascripti." Love! v. Colston, Godb. 68; Baldwin v. There is a similar precedent in F. N. B. 7, Tudge, 2 Wi\s. 20. "A common-law Court 4to. ed. [3 F]. Whence it appears, that baron can only be held before two free in the case of a writ of right patent, at suitors at the least, and not before the lord least, the writ of tolt could not be directed and his steward :" per Ld. Kenfon, C. J., to the suitors. See Com, Dig. Droit (B 5). in Bradshaw v. Lotoses, 4 T. R. 446. So («j "The Court Baron is of two na- where in an action on a judgment recover
fill case. As to the rest, I am of the same opinion as my Lord Organ. Chief Justice.
Wilmot, J.—I am of the same opinion, but not of a decisive one. I have always understood, that a defendant shall not bring a writ of tolt without cause: for the law will not permit the defendant to remove a plaint out of one court not of record, into another court not of record also; but by the write of pone, he might remove it into a court of record, vis. the Common Bench; but it is difficult to assign a reason for the difference made between plaintiff and defendant, except that if the plaintiff is retarded in his suit in the Court Baron, and does not choose to go at once to the Courts at Westminster, he may remove his action into the County Court. The necessity of shewing cause was anciently, *for that the lord had the right to the profits and perquisites [ *399 ] of his court; of which he shall not be ousted by the defendant without shewing good cause. At this day it is but matter of form. But I am clearly convinced, that the writ is misdirected; for it ought to have been directed to the suitors of the court, and not to the steward, who is only the prothonotary of the court (e).
The rule was discharged, but not with costs; on account of the doubt concerning the validity of the writ.
ed in a Court Baron, it appeared to have in Bac Abr. Court Baron.
been holden before the steward, the plain- (c) As to the office and responsibility
tiff was nonsuited; Rumscy v. Walton, of the steward, see Holroyd v. Breare,
cited ibid. And see the cases referred to 2 B. & A. 473.
Glover V. Black.
S. C. Ante, 390.
A HE case being specially reserved, was argued, by Yates, for the plaintiff, and Harvey, for the defendant.
Yates argued (with whom Lord Mansfield, C. J., seemed to agree) that ^he not expressing the insurance to be on respondentia, was indeed for the benefit of the insurer; because the insurer, if goods are specified, is liable to pay general average; but nothing upon respondentia, unless upon a total loss. And the insured upon goods must prove an actual interest on board to recover against the insurer; whereas, upon respondentia, he proves his interest, by only proving the bond, by virtue of a special clause for that purpose in every insurance on respondentia bonds.
Harvey insisted, that if an insurance on goods entitled the insurer to recover on a respondentia interest, the insurer was liable to be defrauded. For suppose Captain Glover had lent money on respondentia:—He insures as for goods only. Now, if no goods are shipped on his account, but the ship comes home without any cargo consigned to him, he may (as no risk
Glover was apparently run) demand back his premium. But if the *• ship be lost, as in fact it was, he may demand (as he now does)
• the insurance money on his respondentia. So that, by specifying [goods] (f) only, he has a chance to have his premium returned, and runs no hazard of losing his property in the respondentia bond, if what is now contended for be law. [ *400 ] *Lord Mansfield directed the case to stand over for farther argument, and desired the counsel to apply themselves particularly to the case of insurances on mortgages, and other liens upon goods.
[See post, p. 405, 422, S. C]
(/) In the former edition this passage is, "by specifying respondentia only;"
but the sense requires that the word should be " goods," and so it is in 3 Burr. 1399.
A bankrupt exe-
Howard V. Jemmet, Executor.
S. C. 3 Burr. 1368.
JEMMET was executor of I. S. (who owed to Howard 220/. on bond) and administered all his effects, except about 23/. Afterwards, on 13th October, 1760, Jemmet became a bankrupt, and the effects, thus unadministered, fell into the hands of his assignees. In January, 1761, Howard brought this action of debt against Jemmet the executor. After which, Jemmet obtained his certificate, 6th March, 1761, which was confirmed the 9th of April following. But in the mean time he pleads non est /actum to the bond, and at the Assizes subsequent to the certificate, but previous to the confirmation, the execution of the bond was proved, and a verdict for the plaintiff: Whereupon a judgment was entered up de bonis testatoris for the debt, and de bonis propriis, si non, $c. for the costs and damages. On the 27th of November, 1762, a fieri facias was sued out, and Jemmet's goods taken in execution. And now it was moved by Norton, Solicitor-General, to set aside the fieri facias and all proceedings thereon, as being irregular, and contrary to the stat. 5 Geo. 2, c. 30, s. 7, for the protection and indemnification of bankrupts (g).
Hfr'argued, that the principle upon which the statute discharges a bankrupt is, because he has then nothing to pay; and the law will not check his future industry by making his new acquired property liable. That the words in the statute are very general, "All debts owing when he became a bankrupt." There is an exception for those who have been bankrupt once before, but no other exception can be grafted upon the statute but that one which the Legislature has expressly specified. He acknowledged, that the plea of non est factum was ill advised, being upon a foolish notion, that the special matter might have been given in evidence; and perhaps was also calculated to gain time for procuring the certificate.
(j) By which it is enacted, that every bankrupt conforming shall be discharged
from all debts by him due or owing at th£ time that he did become bankrupt.
* Morton and Yates shewed for cause, that this was a debt en auter droit, for which the plaintiff could not have come upon the bankrupt's effects, and that the statute only discharges such debts as might have been recovered against the bankrupt himself.
Lord Mansfield, C. J.—The statutes of bankrupts do not extend to effects, which the bankrupt may have en auter droit (A). The assignees have no right to interfere with them, if they can be specifically distinguished. The creditors of the testator cannot come in under the commission against the executor in the usual summary way; because their demand must depend upon the account to be taken of the assets. But they may come in by a more solemn method; by a bill in equity (i), stating the conversion of the assets to the bankrupt's use: And, in such case, the Court will order any specific assets to be distributed among the testator's creditors.—In the present case, here is a full administration of all but 231., which the assignees took too, among the rest of the defendant's property. He should have pleaded this, and disclosed the whole truth; not have pleaded a false plea, which it is, that gives the foundation of costs; and this plea being subsequent to the commission issued, there is therefore no colour for this rule.
Foster, Dennison, Js., absent.
Wilmot, J.—At the time when the action was brought, the defendant was no debtor to Howard. He became so by the false plea; which amounts to contracting a new debt subsequent to the commission.
Rule to shew cause discharged (k).
(It) As to the cases, wherein a bankrupt remains liable to costs, notwithstanding bis certificate, see Ex parte Hill, 11 Ves. Jun. 646; Walker v. Borne; 5 Taunt 778, 1 Marsh. 346, S. C; Philtipt v. Brown, 6 T. R. 282; Dimdale v. Eamei, 2 Brod. & B. 8; S. C. i It. Mo. 350, where the cases are collected; and Aylett v. Harford, pott, 1317.
(A) S. P. Ex parte Ellit, 1 Atk. 101; Ex parte Marsh, Id. 158; Btnnet v. Dans, 2 P. Wms. 316; Ex parte Llewellyn, 1 Co. B. L. ; see also R. v, EgginUm, 1 T. R. 369.
(i) See Ex parte Leek, 2 Bro, C. C. 596, and Ex parte Tupper, 1 Rose, 179. A legatee may prove a Tested legacy under the commission; Walcotv. Hall, 2 Bro. C. C. 305.
The King V. Parsons and Others.
S. C. Ante, 392.
THE defendants received judgment, viz. Richard Parsons judgment for (the father of the child, who was the principal agent in the TMnI^t^and pretended communication with a spirit, by supernatural noises, impossible in themselves to be interpreted, unless previously contrived and directed) to stand thrice in the pillory, and be imprisoned two years:—Elizabeth Parsons, the mother, to be imprisoned for one year:—and Mary Frazer, a servant, who was aiding and assisting, to be sent to the House of Correction, to hard labour, for six * months:—Moore, the curate of [ the parish, and one James, who were found guilty at the trial, were discharged, on paying the prosecutor 300/., and his costs,
VOL. I. Y