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GLOVER v. Black.

S. C. 3 Burr. 1394. ACTION on a policy of insurance. Glover had lent money Insurance upon to Captain Tryon of the Denham India-man on a respondentia goods is valid for bond, but insured as for goods. Captain Tryon had interest interest.***

a respondentia on board equal to the sum insured. The ship was burnt, and (So held at Nisi her cargo. And now the question was, whether an insurance Prius, but the

contrary deas for goods and merchandize should be valid as for a respon- cided on dentia interest. N. B. Captain Tryon was admitted to prove reserved : post, his own interest; though excepted to.

422.] 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(7), 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.")

[S. C. Post, pp. 399, 405, 422.]

lenderespondenticom insuring : 269), has pro migh

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The King v. Morgan and Others. IN an action of trespass, but not vi et armis (a), in order to [A writ of tolt is remove a cause commenced in the Court Baron of a gentleman not to be di

rected to the in Wales, the defendant brought his writ of tolt, directed to steward the steward, to remove the said action into the County Court Court Baron. of the sheriff of Monmouthshire; which the said Morgan re

Semble, that a

defendant canfused, and afterwards tried it in the Court Baron, and the jury

not have such found for the plaintiff, and gave 6s. 6d. damages.

writ without Norton, Solicitor-General, moved for an attachment against cause sh

the body of it.] 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(6).

ise shewn in

(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 justicies; Ibid.

(6) 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 quære; 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 Tolt from the sheriff to remove it

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DENNISON, J.-The cause alleged in the writ is always imaginary and fictitious.

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, 141, and objected, that the writ was misdirected, 1 *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 of pone 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

out of the Lord's Court into the County Court.” The words of the Register are: Quia oportet, quod petens faciat toltam de curia in comitatum, et exinde potest removeri ad sectam snam et poni coram Justitiariis de Banco, &c., sine causa.

(c) There the proceedings were commenced by writ of right patent, and not by plaint, as in the present case. It is a precept from the sheriff to his own bailiff, commanding him, “cx parte domini Regis, quod in proprid personá tud accedas ad curiam, &c., et loquelam, qua est in eadem curid per breve domini regis de recto patens inter fc., tollas, et illam habeas in comitatu meo apud N.The cause there alleged is, that the tenant est unus ballivorum, qui curiam prædictam tenet; per quod" the demandants, who bring the tolt, "rectum in curid illa consequi non possunt." The return is: “Accessi in propria persona med ad curiam, &c., et loquelam quæ fuit ibidem inter, Sc., in comitatum vic' N. præd tuli, fic., quæ quidem loquela patet in quddam scheduld huic præcepto annexa. Re. sponsio J. S. ballivi itinerantis infrascripti.There is a similar precedent in F. N. B. 7, 4to. ed. [3 F). Whence it appears, that in the case of a writ of right patent, at least, the writ of tolt could not be directed to the suitors. See Com. Dig. Droit (B 5).

(d) “ The Court Baron is of two na

tures. The first is by the common law, and is called a Court Baron, as some have said, for that it is the freeholder's or freeman's court, (for barons in one sense signifie freemen), and this may be kept from three weekes to three weekes. The second is a Customary Court, and that doth con. cerne copiholders, and therein the lord or his steward is the judge. Now as there can be no Court Baron without freeholders, so there cannot be this Customary Court without copiholders or customary holders. And as there may be a Court Baron only of freeholders without copiholders, and then is the steward the register; so there may be a Customary Court of copiholders onely without freeholders, and then is the lord or his steward the judge;" Co. Lit. 58 a; 4 Inst. 268, acc. That the suitors are the judges, whether the plea be by force of a writ of right or by plaint, see Bro. Abr. Judges, pl. 15; Jentleman's Ca., 6 Rep. 11 b; Pill v. Towers, Cro. Eliz. 791; Noy, 20, s. C.; Armyn v. Appletoft, Cro. Jac. 582; Eure v. Wells, T. Jon. 22; Lovel v. Golston, Godb. 68; Baldwin v. Tudge, 2 Wils. 20. “A common-law Court baron can only be held before two free suitors at the least, and not before the lord and his steward :" per Ld. Kenyon, C. Jeg in Bradshaw v. Lawson, 4 T. R. 446. So where in an action on a judgment recover

MORGAN.

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 ful case. As to the rest, I am of the same opinion as my Lord 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, viz. 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 been holden before the steward, the plaintiff was nonsuited; Rumsey v. Walton, cited ibid. And see the cases referred to

in Bac. Abr. Court Baron.

(e) As to the office and responsibility of the steward, see Holroyd v. Breare, 2 B. & A. 473.

Glover v. Black.

S. C. Ante, 396. THE 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 the 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

BLACK.

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.

**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.] (f) In the former edition this passage but the sense requires that the word should is, “by specifying respondentia only;" be “ goods," and so it is in 3 Burr. 1398.

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Howard v. JEMMET, Executor.

S. C. 3 Burr. 1368. A bankrupt exe. J EMMET was executor of I. S. (who owed to Howard 2201. cutor, pleading on bond) and administered all his effects, except about 231. a false plea, after Afterwards on 13th O

d Afterwards, on 13th October, 1760, Jemmet became a bankissued, is liable rupt, and the effects, thus unadministered, fell into the hands to execution for of his assignees. In January, 1761, Howard brought this accosts, (notwith

had tion of debt against Jemmet the executor. After which, Jemobtained his cer- met obtained his certificate, 6th March, 1761, which was contificate.]

firmed the 9th of April following. But in the mean time he pleads
non est factum 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: Where-
upon a judgment was entered up de bonis testatoris for the
debt, and de bonis propriis, si non, fc. for the costs and da-
mages. 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 protec-
tion and indemnification of bankrupts (g).
* He argued, that the principle upon which the statute dis-
charges 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 bank-
rupt." There is an exception for those who have been bank-
rupt 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.

(g) By which it is enacted, that every bankrupt conforming shall be discharged

from all debts by him due or owing at the time that he did become bankrupt.

TOWARD

JEMMET.

* 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 (h). 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).

(h) S. P. Ex parte Ellis, 1 Atk. 101; Ex parte Marsh, Id. 158; Bennet v. Da ris, 2 P. Wms. 316; Ex parte Llewellyn, i Co. B. L. [137]; see also R. V. Egginton, 1 T.R. 369.

(i) See Ex parte Leek, 2 Bro. C. C. 396, and Ex parte Tupper, 1 Rose, 179. A legatee may prove a vested legacy under the commission; Walcot v. Hal, 2 Bro. C. C. 305.

(k) As to the cases, wherein a bankrupt remains liable to costs, notwithstanding his certificate, see Ex parte Hill, 11 Ves. Jun. 646; Walker v. Barnes, 5 Taunt. 778, 1 Marsh. 346, S. C.; Phillips v. Brown, 6 T. R. 282; Dinsdale v. Éames, 2 Brod. & B. 8; S. C. 4 B. Mo. 350, where the cases are collected; and Aylett v. Harford, post, 1317.

The King o. 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 imposture 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 *4021 the parish, and one James, who were found guilty at the trial, were discharged, on paying the prosecutor 3001., and his costs,

VOL. I.

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