as it was impossible for the clerks to keep accounts where the order of the court was thus interfered with.

His HONOUR refused to proceed with the case.

(Before ANDREW AMOS, Esq.)

Discharge under the Insolvent Debtors' Act-Premiums upon
policy of assurance deposited as security for the payment of a
debt inserted in the schedule subsequently becoming due.
Defendant being indebted to plaintiff assigned to him, by deed of
mortgage, three policies of assurance on defendant's life, and
covenanted to pay the annual premiums, and if he did not, and
plaintiff paid them, to repay plaintiff. Defendant afterwards
became insolvent, and was discharged under the Insolvent Debtors
Act. A premium accrued due after the discharge, and being
unpaid by the defendant, and plaintiff having paid it, and not
been repaid:

Held, that defendant was not discharged from liability for these
breaches of covenant by his discharge from the original debt
under the statute 1 g 2 Vict. c. 110.

This was a plaint to recover a sum of 41. 13s. 6d., exclusive of 88. 8d. cost of summons, &c., being the amount of an annual premium becoming due upon three policies of assurance deposited with the plaintiff as a collateral security for the payment of a debt then due by the defendant, and which he had covenanted to pay, but not having paid them, the plaintiff had, and he now brought this action upon the defendant's covenant to repay him.

Mr. Lord (of the firm of Willoughby and Cox), appeared for the plaintiff, and Macrae for the defendant.

any secu

which it was the very object of the Legislature to relieve a prisoner when it enacted this code of laws for his relief. He had carefully looked into the act of Parliament, and also into the cases, but must confess that none of those bearing decisively upon this point, nor even the reasons given by the learned judges, were convincing to his mind. He would first direct his Honour's attention to the various provisions in the act bearing upon this point, then state the points he relied upon, and lastly make such comments upon the cases relied upon as seemed desirable. His Honour would see, from the provisions of the act, that it was clearly the intention of the Legislature, in return for vesting the whole of a prisoner's estate for the benefit of his creditors, to relieve him from all pecuniary liabilities subsisting at the date of the insolvency. The various provisions of the act to which it was necessary to direct the attention of the court were these:-A debtor being in custody for debt, "shall pray to have future liberty of his person against the demands for which such prisoner shall be then in custody, and against the demands of all other persons who shall be or claim to be creditors of such prisoner at the time of filing his petition." (1 & 2 Vict. c. 110, s. 35.) And then "it shall be lawful for the custody and entitled to the benefit of this act .. said court to adjudge that such prisoner shall be discharged from as to the several debts and sums of money due or claimed to be due at the time of making such vesting order as aforesaid from such prisoner to the several persons named in his schedule as creditors or claiming to be creditors for the same respectively, or for which such persons shall have given credit to such prisoner before the time of making such vesting order as aforesaid, and which were not then payable." (1 & 2 Vict. c. 110, s. 75.) "And be it enacted, that the discharge of any such prisoner so adjudicated as aforesaid shall and may extend to any sum and sums of money which shall be payable by way of annuity or otherwise at any future time or times by virtue of any bond, covenant, or other securities of any nature whatsoever." (1 & 2 Vict. c. 110, s. 80.) And in respect of rity, "no writ of fi. fa. or elegit shall issue on any judgment obtained against such prisoner for any debt or sum of money with respect to which such person shall have so become entitled, nor in any action upon any new contract or security for payment thereof, except upon the judgment entered up against such prisoner according to this act; and that if any suit or action shall be brought, or any scire facias be issued against any such person, &c., for any such debt or sum of money, or upon any new contract or security for payment thereof, or upon any judgment obtained against, or any statute or recognizance acknowledged by such person for the same, except as aforesaid, it shall be lawful for such person to plead generally that such person was duly discharged according to this act by the order of adjudication made in that behalf, and that such order remains in force," &c. (1 & 2 Vict. c. 110, s. 91.) The mode of proceeding for the payment of scheduled debts is pointed out in 1 & 2 Vict. c. 110, s. 87. "And be it enacted, that before any such adjudication shall be made with respect to any such prisoner the said court or commissioner or justices shall require such prisoner to execute a warrant of attorney to authorize the entering up of a judg➡ ment against such prisoner in some one of the Superior Courts at Westminster, in the name of the assignee or assignees of such prisoner, or of such provisional assignee, if no other assignee shall have been appointed and shall have accepted such office, for the amount of the debts stated in the schedule of such prisoner so sworn to as aforesaid to be due or claimed to be due from such prisoner and so much thereof as shall appear at the time of the existency such warrant of attorney to be due and unsatisfied; and the order of the said court for entering up such judgment shall be a sufficient authority to the proper officer for entering up the same, and such judgment shall have the force of a recognizance, and if at any time it shall appear to the satisfaction of the said court that such prisoner is of ability to pay such debts, or any part thereof, or that he is dead, leaving assets for that purpose, the said court may permit execution to be taken out upon such judgment, for such sum of money as under all the circumstances of the case the said Macrae, for the defendant, said that the question involved in court shall order, such sum to be distributed rateably amongst the this case was one of great importance, both to the defendant per- creditors of such prisoner according to the mode hereinbefore sonally, and to the community at large. Upon the decision of the directed in the case of a dividend made after adjudication; and court would depend the liability of the former to annual payments such fur her proceedings shall and may be had upon such judg for his whole life, and the question as regarded the community was, ment as may seem fit to the discretion of the said court from time in effect, whether the insolvency laws would become a dead letter, to time, until the whole of the debts due to the several persons for if the defendaut was liable, the plaintiff, by taking this secu- against whom such discharge shall have been obtained shall be fully rity, would completely evade the insolvency laws, obtain a pre-paid and satisfied, together with such costs as the said court shall ference for himself, and secure the payment of his debt in defiance of their provisions. The defendant, at the same time, would be constantly exposed to periodical suits on account of this debt, and periodical insolvencies or embarrassments on account of debts from

The facts of the case are shortly these. The defendant, Mr. Henry Valentine Smith, being indebted to the plaintiff, deposited with him three policies of assurance, effected upon his own life, in the Commercial and General Life Office, Cheapside, as a security, and subsequently, further sums having been advanced, by way of better security he executed a mortgage of these shares, in which, after reciting that H. V. Smith was entitled to the policies of assurance under the annual premiums mentioned, and that H. V. Smith was indebted to Thomas Russell in the sum of 1801. for moneys advanced, and that H. V. Smith had agreed to secure the repayment of the debt, the defendant, Mr. Smith, covenanted to pay the debt with the interest growing due, and until that was paid that he would pay, or cause to be paid, the annual premiums upon the policies assigned, and if he did not, then Mr. Russell was to pay the premiums, and the mortgagor, Mr. Smith, covenanted to repay the same to the mortgagee: (Davidson's Martin, vol. 3, p. 614.) After the execution of this deed, the defendant became insolvent, and upon petitioning the court for relief, entered both the original debt and the security given in the schedule.

The defendant was duly discharged under the act (1 & 2 Vict. 110) on the 4th of July, 1850, and subsequently the premiums upon the policies becoming due, insolvent being advised by his attorneys, Messrs. Atkinson, of Carey-street, Lincoln's-inn-fields, that as he was discharged from the original debt, he was not liable on the security, declined to pay them. The premiums were then paid by the plaintiff, and he now brought his action to recover this amount, in pursuance of the terms of the covenant. The question for the court to determine was, whether the insolvency which discharged the original debt also discharged the payments defendant had covenanted to make upon the security.

Lord relied upon Bennett v. Burton, 12 A. & E. 657; 4 P. & D. 313; 4 Jur. 1085, Q. B.; Fletcher v. Turk, 13 L. J. N. S. 43, Q. B.; Lloyd v. Peell, 3 B. & Al.; Wilmer v. White, 1 Bing. 291; La Coste v. Gillman, 1 Price; Toppin v. Field, 4 Q. B. 386, &c. These cases were all precisely in point, as would be seen upon referring to them.

think fit to award. "Now these were the provisions of the act bearing upon this subject; and upon considering them it was im possible not to see that it was the intention of the Legislature to free an insolvent, not merely from all subsisting debts, but from all

liability on securities held for these debts. The insolvency laws were intended to withdraw the insolvent and his affairs, so far as regarded pecuniary liability, from the general law of debtor and creditor, and to place him and his affairs under the special provisions of the statute, and these provisions denied the right of suit to any individual creditor in respect of any subsisting debt, and upon any sum of money payable by virtue of any bond, covenant, or other securities of any nature whatsoever" (s. 80), and were intended to protect the debtor in the undisturbed enjoyment of his future acquired property in respect of these debts until he should have acquired such a degree of the means of subsistence as to be in a state of solvency, and have a surplus (1 & 2 Vict. Vict. c. 100, s. 89) to spare, upon which event, and not till then, the Legislature authorized the appropriation of his future acquired property in payment of his past debts. The policy and intention of the law, both as regarded the creditors and the insolvent, was clear. He was fully borne out in this by the declaration of Mr. Commissioner Law, probably the highest living authority on this subject, who had materially aided Lord Eldon in perfecting the provisions of the previously defective statutes. In regard to their policy as regarded the insolvent, that learned commissioner observed, in his judgment in Hance's case," Can any man study the Insolvent Acts, from that of 1813 to the present day, and not discern the policy of these laws? It is that a man shall be able to earn himself a livelihood not harassed for his debts; that his struggle for subsistence shall not be frustrated by the invasion of his means of subsistence; that his past debts shall only be a charge on the contingency of a clear surplus estate. (Re Hance, 1 Cox & Macrae's Insol. Cases, 127.) That to hold the defendant liable would be contrary to the policy of the law as regarded the creditors | also, would be seen by reading the 87th and 91st sections, which rendered void" new securities," placed all creditors in respect of the payment of their debts upon the same footing, forbidding all suit except upon the judgment entered up under the provisions of the Act for the benefit of all the creditors collectively, and deferring even that mode of payment until it should appear to the satisfaction of the court that the debtor had not only the means of payment but a surplus. If the plaintiff succeeded in this case, he would obtain a preference over all the other creditors, which it had been the fundamental object of both the Bankruptcy and Insolvency Laws from their commencement to the present. To show how careful the courts had been to prevent these undue and unfair preferences, he would direct his Honour's attention to some few of the cases: C. P. Hilary Term, 10 Geo. 3, 1770, Linton, assignee of a bankrupt, v. Bartlett. The court said, that "all the laws concerning bankrupts, proceed upon equality, and say that all the creditors shall come in pari passû. There is no case wherever such a preference was allowed. The same spirit of equality ought to warm the courts of justice which warmed the Legislature when they made the Bankrupt Laws, and if we should let this deed stand, we should tear up the whole Bankrupt Laws by the roots; it is a bill of sale made by a trader at a time when he was insolvent, and (plainly) had an act of bankruptcy in contemplation. It is partial and unjust to the other creditors. Judgment for the plaintiff that the deed is bad." (Wilson, 49.) In Phillips v. Hunter, in error, it was laid down by the judges that "the great principle of the Bankrupt Laws is justice founded upon equality. No creditor shall be permitted to acquire an undue preference, and by so doing prevent an equal distribution amongst all the creditors. Equal distribution is the policy of the Bankrupt Laws." (2 H. B. 403.) In re Wetherell, 11 L. T. 373, Mr. Commissioner Law said-" The general policy of the act is that all property should be made available for the creditors generally, rather than for one in particular." In Smith v. Wetherell, 10 L. T. 229, Lord Denman, in delivering judgment for Mr. Justice Patteson in the Bail Court, says "The argument which weighs with my brother Patteson is this, that the main scope and object of the act (1 & 2 Vict. c. 110) is to divide the insolvent's property rateably among his creditors, and this object is best effected by such a construction of the 55th and other sections as would not give the opportunity for any particular creditor to interfere and obtain a preference over the others." Having directed his Honour's attention to the special provisions of the act, and their equitable construction as to policy and intention, as laid down by the highest authorities, he would now state the points upon which he relied, considering first the proper construction of the language of the several clauses intended to protect the debtor, and then at the peculiar provision of the statute with respect to future acquired property, with which the right of individual suit, and the consequent individual appropriation of future property, came in direct contact. The prisoner first prayed for liberty against the "demands for which such prisoner shall be then in custody, and against the demands of all other persons who shall be, or claim to be, creditors "

[ocr errors]
[ocr errors]

(s. 35.) The adjudication clause then rendered it lawful for the court to adjudge such prisoner entitled to the benefit of the act, as to" the several debts and sums of money due or claimed to be due at the time of making such vesting order, as aforesaid, from such prisoner to the several persons named in his schedule as creditors, or claiming to be creditors, for the same respectively, and which were not then payable (s. 75). A limited or a larger construction could be given to these words. The word "debt" was defined to be a demand for a sum certain;" (a) “a sum of money due by certain and express agreement, as a bill of exchange or a promissory note;" and although strictly speaking this premium at the date of the vesting order was not an existing debt that could be claimed as then due, yet if one cast about for an equitable principle of interpretation, it would be clearly this: that a prisoner should be protected in respect of existing pecuniary liabilities to the extent to which his property vested. If a prisoner had a title to property, reversionary, contingent, or otherwise, at the date of the vesting order, that property, if ever it came to him, belonged to his creditors named in the schedule; so, also, if he was under pecuniary liabilities, contingent, reversionary, or otherwise, at the date of the vesting order, if these liabilities ripened into debts, he should be protected in respect of them. The principle of equity was that a debtor should be protected from the demands of the creditors, to the extent to which his property vested for the creditors. He therefore submitted that the Court should adopt the larger construction of the word, "debts and sums of money due or claimed to be due." The next section to which he had directed the attention of the Court was the 80th. That was certainly very strong. It extended the protection of the statute "to any sum of money payable at any future time by virtue of any bond, covenant, or other securities of any nature whatsoever." Strictly speaking, this premium was not "a sum of money payable at any future time," at the date of the vesting order, " by virtue of this security." It was not certain that it ever would become payable; but looking at the language of the 87th section, which for bade the payment of the original debt, the Court was bound to construe it as if certainly payable and grant its protection accordingly. But so anxious had the Legislature been to afford effective protection to the debtor, that in the 91st section it made void "any new contract or security" for the payment of the schedule debts. If these policies were given as securities for the payment of the original debt after the discharge, there could be no doubt that the debtor would be protected from all payments in respect of them, and he could not see why the same principle should not be applied to this security, although given before the insolvency. He relied upon the language of these sections, but chiefly and mainly he relied upon the fact that this deed, upon one of the covenants of which the plaintiff sought to recover, was a contract between two private parties, to secure the payment of a scheduled debt by other means than those pointed out by the Legislature in the 87th section. It was a contract to give the plaintiff a right of suit in respect of the non-payment of a scheduled debt. Upon the insol. vency occurring, that became an illegal purpose. The statute forbade individual suit, and enjoined process under the control of the Court on behalf of all creditors collectively.. This deed had the effect of giving an undue preference to the plaintiff, and by giving him the right of suit upon non-payment of his debt, it to that extent gave him power over future acquired property of the insolvent, which no other creditor had, and which it was contrary to the intention of the Legislature, and the policy of the act, that he should have. The Court, he submitted, was bound to enforce the provisions of an Act of Parliament, in preference to the contracts of private persons. (b) Upon principles of equity as between the parties to this action, the plaintiff had not a shadow of a right

(a) Wherever a legal liability devolves upon a party to pay a determinate sum of money to another (either in consequence of an express promise or an implied obligation) the law denominates such liability a debt. (2 Bla. Com. 465.)

"In general, whenever a contract is such as to give one of the parties & right to receive a certain and liquidated sum of money from the other," a debt is then said to exist between the parties. (Stephen's Com., vol. ii, p. 186.)

"The legal signification of debt is a sum of money due by certain and express agreement as by a bond for a determinate sum, a bill of exchange, or a promissory note, or a rent reserved on a lease where the quantity is fixed and specific, and does not depend upon any subsequent valuation to settle it." (Les Termes de la Ley, 1685; and in Holthouse's Law Dic. p. 130, title "Debt," 1846.)

(b) All deeds are liable to be impeached if founded on immoral or illegal consideration, or if obtained by fraud. (1 Stephen's Com. 462.) Any contract is invalid in law that can be impeached on the ground of dishonesty, or as being opposed to public policy. (Broom's Legal Maxims, 575.)

to enforce this demand. The consideration upon his part was the forbearance of suit in respect of the original debt. The statute now stept in, and declared that he should have no right of individual suit in respect of that debt: therefore the consideration on his part being taken away, and there being no new consideration given, it was manifestly unjust that the defendant should be called upon to fulfil his share of the contract. The defendant was forbidden to pay the original debt by the statute, and the plaintiff was forbidden to sue for it. The very basis of the contract being taken away by the Legislature itself, how then could the other parts of it be enforced? He called upon the Court to set aside the whole deed, and relied upon Jackson v. Davidson, 4 B. & Ald. 691. An insolvent debtor having petitioned the Insolvent Court to be discharged under the act, a creditor gave notice of his intention to oppose him on the ground that the debt was fraudulently contracted. To induce the latter to withdraw his opposition, the insolvent agreed to execute, within three days of his discharge, a warrant of attorney for the debt, and in the meantime to give a promissory note of a third person for the amount, which was to be delivered up on the execution of the warrant of attorney. The insolvent was discharged, and the warrant of attorney was executed on the delivering up of the note. The Court set aside the warrant of attorney, and the judgment entered up thereon, on the ground that the agreement on which they were founded was contrary to the policy of the Insolvent Act, inasmuch as it enabled the creditor to take to himself a large portion of the future effects which the Legislature intended to be distributed amongst all the creditors. BAYLEY, J.-This warrant of attorney if supported would interfere materially with the policy of the act, by taking from the body of the creditors a portion of those funds which the Legislature meant to be distributed amongst all, and by defeating the effect of the judgment entered up by order of the Insolvent Court. HOLROYD, J.-I am of the same opinion. This warrant of attorney was founded upon an agreement which is in direct opposition to the policy of this act of Parliament. The object of the act was, that the person of the debtor should be free with respect to all those debts from which he had been discharged, and that his future effects only should be liable in the mode there pointed out. BEST, J.-The future effects of the insolvent are, by the provisions of this act, directed to be divided rateably amongst the creditors until their debts are wholly paid. By enforcing such a security we should enable the plaintiff to deprive his co-creditors of some portion of that fund which the Legislature intended to be rateably divided amongst all.-Rule absolute for setting aside the warrant of attorney, and the judgment entered up thereen. The Courts had again and again recognised this principle of supporting. the insolvent law in opposition to private deeds. In Rogers v. Kingston, 2 Bing. 441, the defendant was a discharged insolvent, and a creditor withdrew opposition after receiving a promissory note for the amount of his debt. The insolvent was arrested for the non-payment of this after his discharge, but settled the action by giving a warrant of attorney, in which his brother joined, to confess judgment for the amount of the debt and costs and interest, to be paid by instalments. The Court, on motion, set aside this warrant of attorney, after the payment of the first instalment, upon the ground that the whole transaction was contrary to the policy of the Insolvent Debtors Act. BEST, C. J. says, "The party who has obtained this warrant of attorney places himself by the sale of his forbearance in the situation of a new creditor, and in a better position than he is entitled to claim." PARK, J. says,—The argument which has been used in support of this warrant of attorney is in opposition to all the cases which have been decided, from that of Jackson v. Duchaire, 3 T. R. 551, downwards. The general principle of all these cases is, that one creditor shall not be permitted to obtain an advantage at the expense of the others, but the case turns on the 25th section of the Insolvent Debtors Act, which gives the commissioners power to issue execution against an insolvent's subsequently acquired effects, and divide them rateably among the creditors; but as the plaintiff's name was not inserted in the schedule, he might sue out execution without application to the commissioners, and thereby gain an advantage over the rest of the creditors. The 26th section of the act provides that an insolvent shall not be arrested for debt due to a former creditor, and if the plaintiff's name had been inserted in the schedule, the insolvent's person would have been safe. This the plaintiff prevents by taking a promissory note contrary to the policy of the act. The case in the K. B. proceeds on the true ground, and is in point for the defendant." Burrough and Gaselee, JJ. concurring. Rule absolute. The observations he had made applied in some respects to the cases in bankruptcy relied upon by the plaintiff, and in other respects they did not; but in none of these cases had counsel attacked the ground of the consideration for the security, as being contrary to

[ocr errors]


the policy of the insolvent law, and in direct collision with the machinery provided by the act for the payment of the debt, and perhaps they could not, for there was no such machinery provided in bankruptcy as in insolvency, and a written promise might renew the debt. With respect to the decisions relied upon in insolvency, the case of Bennet v. Burton was in point; but looking at the reason assigned by the Court for giving the verdict for the plaintiff, it was not convincing to his mind. Lord Denman said the Insolvent Debtors Act did not extinguish the debt, it only barred the remedy. But it did not occur to the Court, nor was it suggested by counsel, that the act does extinguish the debt for some purposes; and it is only by holding to this principle that the greatest absurdities are prevented in administering the law of insolvency. debt," says Mr. Commissioner Law, in Re Hance, we know is not extinguished for all intents and purposes, but the power of proceeding for the recovery of it is extinguished, excepting upon the judgment in the several ways prescribed by the statute;" and again, "There can be no suit except upon the judgment, therefore no suit whatever by individuals for suit upon the judgment is on behalf of all together." The Court of Q. B. admitted that, if the debt was extinguished, the action could not be maintained. The debt is extinguished for all purposes of individual suit. This was an individual suit, and taking the reasoning of the Court, upon its own showing the verdict ought to have been for the defendant, but most of the principles to which he had alluded were never brought under the notice of the Superior Courts, and were mentioned to His Honour for the first time. He, therefore, trusted they would receive full consideration. This class of cases should be decided upon the equitable principles which governed the administration of law in the special systems to which an insolvent and his affairs became subject. When they were withdrawn by bankruptcy or insolvency from the general law of debtor and creditor. If it became generally known that a man could always secure the repayment of money advanced, and harass his debtor for life, in defiance of the insolvency laws enacted by the Legislature for the debtor's protection, the consequences would be most serious. If a poor debtor had a hundred creditors in his schedule for sums between 50%. or 150l. ali secured in this way, there would be nothing for him but periodical insolvencies or perpetual imprisonment, and the insolvency laws would in effect become a dead letter. This was a most serious result in a commercial country, and such would be the result if this became generally known to be law. He looked with anxiety as to the result, particularly as there was no mode of bringing the principles he had advocated under the review of the Courts at Westminster, to which they had certainly never yet been presented. He trusted, as there was no appeal, his Honour would do substantial justice, according to the intentions of the Legislature.


His Honour intimated that he would take time for consideration. Cur. adv. vult. Judgment for the plaintiff. NOTE.-Attention has been called to the facts of this case in The Times, The Morning Advertiser, and other journals. latter journal presumes in their article, that, as there was counsel in the case, it was rightly decided. However that may be, the argument is fully given, for the consideration of the Profession. It is clear, that the Statute of Limitations, as well as the Insolvency codes, may also be evaded by this plan of taking a security for the annual payment of a policy, upon making a loan or loans of money. -REPORTER.

September 20, 1851.


Railway liabilities.

Where a traveller by a train took a valuable stick with him into the carriage, and in consequence of the door being neglected to be closed by the guard it fell out and was broken, he is entitled to compensation for the injury done to it.

The court will not require proof of the contract between the company and the passenger, but will assume from the fact that he was conveyed by the railway that he had paid for such conveyance.

This was an action to recover compensation in damages for "the destruction of a valuable and favourite Malacca cane," the property of the plaintiff. The facts will be seen by the subjoined letter, a

copy of which was addressed to H. Chubb, Esq., Secretary to the Company.

"Kingsland, 25th June, 1851.

"Sir,-Allow me to call your attention to a claim I have for compensation under the following circumstances. On Monday afternoon, June 16th, I took second class tickets for myself and wife at Kingsland, for Blackwall, in order to proceed from thence to Gravesend. The porter at Kingsland closed the carriage door, to all appearance, but we had not proceeded about one-third of the distance to the next station (Hackney), when the door of the carriage in which I was sitting flew open, and a handsome Malacca cane of mine fell out upon the rail, and upon my return to town this day, I learn, upon inquiry, that the wheel passed over it, and my favourite stick-the companion of my summer rambles in England, Ireland, and Wales-is for ever disabled. The cane is now at the Hackney station, and I have to request that you will forward me a money order for 17. 1s., as a slight compensation for the loss of a valuable and favourite stick. If you will order the stick up to head quarters, I am satisfied you will at once see that the value I have placed upon it is very moderate.

"Your's very respectfully,


"W. A. H. Hows." Huddlestone (counsel for the company) having read the foregoing epistle, produced the stick. "This," said the learned gentleman with considerable gravity,-"this is the disabled object of the plaintiff's tender solicitude, the shattered and mutilated remains of what was once the agreeable companion of a sentimental tourist, through England, Ireland, and Wales!" He could well understand the plaintiff's agony; but deeply as he sympathized with him in the loss of so revered and valuable a coadjutor, he must submit that the lamentable catastrophe might have been avoided had the plaintiff himself used ordinary care. Having failed to do so, he was the author of his own wrong, and


not therefore entitled to compensation. He contended that there was no proof of negligence on the part of the company's servants, and that there could only be an act of negligence where there was a contract either expressed or implied. Undoubtedly, the law would imply a contract to carry the passenger to his safe destination, but there must be a contract for such carriage; and in this case there was no proof of payment for tickets, or of any contract whatever.

His HONOUR.-I am of opinion it is not necessary to prove a precise and specific contract, and I shall not believe that the company conveys passengers for nothing.

Huddlestone submitted that no negligence had been made out, and that the onus of proof being upon the plaintiff, His Honour would have to consider, first, whether the door had been closed negligently; and secondly, whether it had been closed by a servant of the company. The door was closed, and the train proceeded some short distance, and the door opened, but he apprehended that did not show a negligence that would render the company liable. The plaintiff did not show that the door was closed by a servant of the company; and if a passenger closed a door, so that it would to all appearance be secure, surely that would not make the company liable. But there was another answer to this case, which the company felt bound to lay before his Honour; and he could not help thinking that the plaintiff, during his peregrinations at Gravesend, and in his admiration of Rosherville and Windmill-hill, had forgotten the precise circumstances under which he lost his stick; for it would appear from the statement of the porter, that when the plaintiff first made application respecting his lost treasure, he stated that his coat was shut in the door, and that in his opening the door the stick fell out. Now, besides his stick, the plaintiff had with him his umbrella and his wife; and it was clear from the plaintiff's own statement that he had not used ordinary care, for he did not miss his stick until his attention was drawn to it by his wife.

The porter corroborated the latter part of the learned counsel's statement, but which was positively denied by the plaintiff.

His HONOUR said, although there was no precise evidence that the plaintiff had paid any money, or that he done more than go into the carriage, he was to all intents and purposes a passenger whom the company were bound to carry. The question was, whether he took such care as to prevent the accident. There was a contradiction in the evidence as to what one said, and what the other said. It might be that something was said about the coat being shut in; or it might be that what was said was misunderstood; neither party, he was satisfied, would be guilty of deliberate perjury. But, assuming that the plaintiff did say the coat was the cause of the accident, he was still of opinion the plaintiff was entitled to recover.


The entire management of the carriages was under the exclusive and immediate superintendence of the company, and it was the bounden and specific obligation of the company to see that their servants properly performed their duty. It was most important that the doors should be secured, and it was the duty of the guard to see that they were completely and perfectly closed; and no hurry of the moment was an excuse for any accident which might arise in consequence of neglect. And what was the fact? According to the evidence of the plaintiff, the door opened a short time after the starting of the train. And if it did open (which was not disputed), it was pretty strong evidence that it was not properly closed, and that the duty of the officer was negligently performed. had nothing to do with the plaintiff's sentimentality, but wished not to underrate the value of his stick. He had his eye upon it at the commencement of the case, and upon a more minute inspection, was glad to find that the fracture it had sustained was not of a very serious nature. It had not lost more than about a couple of inches; and if in after years the plaintiff should come down to dimensions in the same proportion, he would probably find his companion even more useful than it was in its original The head was sound, and the trunk unshaken; the main body was unimpaired; and if an object of affection were to lose a leg, and the object remained, it would still be regarded with affection, although a little mutilated. He did not think the plaintiff's companion so entirely disabled or so disfigured as the plaintiff had imagined; and, looking at the whole of the circumstances, he thought the justice of this great and important case would be met by returning the plaintiff his cane, and awarding him half-a-guines for the injury sustained.


(Before Mr. Serjeant STORKS.) GRIMBLE v. Sumner. Interpleader-Landlord.

A landlord claiming a lien for rent on goods seized in execution, is, under the 107th section of the County Courts Act, bound to give notice of his claim for rent to the bailiff within five days after the goods are seized, or he will forfeit such claim.

This was an interpleader summons. The execution issued for 51. 2s. 9d., for which amount goods were distrained by the broker of the court, and held in custody of the high bailiff for a period exceeding five days; being beyond the time prescribed by the act of Parliament. Previous to the sale, but not until after the goods had been in the bailiff's possession five days, a notice was served by Mr. Crossfield, attorney for the landlord, Mr. Jabez Grimble, who put in a claim for 41., balance of a quarter's rent due by the defendant in the original suit, as tenant and occupier of the premises from which the goods had been removed under the process of this court; and it was contended that, under sect. 107 of 9 & 10 Vict. c. 95, notwithstanding the goods were in the custody of the law in in behalf of the execution creditor, the notice having been given before such goods were sold, the rent now claimed ought to be paid out of the proceeds of the sale. It was also urged that the landlord was entitled to the property on the ground that he was at liberty to follow the tenant's goods for thirty days.

Mr. Attwood, chief clerk to the High Bailiff, informed the court that sufficient property was left on the premises to satisfy the landlord's claim, but that the tenant had since removed a whole van load of goods, and the landlord now turned round upon the High Bailiff.

His HONOUR, having taken time to consider the point, said:The fact upon which this case turns is this: there being an execu tion from this court against the goods, the officer removed them to his own premises; the goods so taken, as by law required, being placed in some fit place, and in custody of a fit person for a period of five days; after which time the act requires that they shall be appropriated to meet the demand of the execution creditor. In this case, the landlord, after the lapse of five days, appears, and requires the bailiff to appropriate to his demand such portion of the goods as by law he contends he is entitled to. I am of opinion he is not so entitled, the 8 Anne, so far as this act of Parliament (9 & 10 Vict.) goes, being repealed. It is as well to refer to that statute before I give my opinion upon the 9 & 10 Vict. Under the sta tute 8 Anne, c. 14, the sheriff is bound to retain for the landlord one year's rent out of the proceeds of a tenant's goods taken in execution. In the case of Arnett v. Garnett (3 B. & A. 440), it was contended that the landlord was bound to give notice of his claim to the sheriff while the goods remained in his possession: but the court, on motion, ordered the rent to be paid to the landlord out of the proceeds, although there was no notice given to the sheriff until

after the removal of the goods from the premises. It is perfectly clear, however, that under this particular act of Parliament (9 & 10 Vict. c. 95), no such question can arise. The Legislature has set the matter at rest with reference to the landlord's priority of claim. The law has protected property taken in execution under a judgment debt, reserving to the landlord the right to establish his claim, and reserving also to the party whose goods are distrained, the right to contest the validity of the seizure, and to test the law upon an action of replevin. The 107th section of the statute last referred to entitles the landlord of any tenement in which goods shall be taken in execution, to claim rent then due to him, according to the terms of the tenancy, and in case of any such claim, the

bailiff or officer is to distrain for the amount of rent so claimed. In this case the officer had distrained for the execution creditor,had taken the goods off the premises, and could not go back. He had no right to distrain, nor could he distrain for the landlord, of whose claim he was in perfect ignorance, and from whom he had no authority. He had carried out the process of the court,-had satisfied the claim of the execution creditor, and was afterwards required to carry out another process, the claim of the landlord; which could only be done on the premises; and the goods were gone,—were already in the custody of the law: and I am of opinion, if it is a legal distraint, the officer has no power to go back upon the premises and make a seizure for the landlord; to whom a special power is given. The law prescribes a definite time for the bailiff to keep possession of the goods, and I am clearly of opinion that if a party who seeks to recover the amount of his rent fails to

give notice of his claim within the time prescribed by the act, the application comes too late. Under these circumstances I decide this case in favour of the execution creditor.

had been preferred. The rule was rightly refused, and rightly also with costs. The suitor was a poor man, and therefore nothing could have been expected to be recovered from him, and it would have been well for all parties, if at this point the matter had been suffered to drop.

But now begins the lamentable part of the story. It seems, from the correspondence in The Times, and which our readers will find in another column in this number of the COUNTY COURTS CHRONICLE, that an enormous sum was charged as the costs of Mr. AMOs, but which, being taxed, was reduced to little more than one-third. little more than one-third. The complainant, being unable to meet the demand, and being threatened with proceedings, was, as he asserts, induced by promises of a remission of the claim, to sign a letter, acknowledging his error, and imputing the proceedings entirely to the Counsel, Mr. CARTER. the instigation of his The man signed this, knowing it to be false, to save himself from ruin, but only on the express condition (which, he says, should be held strictly private) that no publicity be was accompanied with a solemn pledge that it given to it. Nevertheless, in spite of this promise, as he asserts, the letter was published in The Times. Thereupon the man, justly indignant, and seeing

COUNTY COURTS CHRONICLE. in what a position he had been the means of


MR. AMOS AND MR. CARTER. Ir is with profound regret that we publish, among the County Court intelligence of the month, a correspondence which has appeared in The Times newspaper on the subject of the complaint which, in the discharge of his professional duty, Mr. CARTER preferred in the Queen's Bench against Mr. Amos, the Judge of the Marylebone Court, for having, as he averred, unduly delayed justice. Of that charge Mr. Amos was acquitted by the Court, who refused the rule, with costs. During the progress of the investigation, we refrained from making any observations that might prejudice the case, and we heartily congratulated Mr. AMOS on his relief from the imputation, although he did not come out of the inquiry altogether without blame. Our readers are also aware, that in the course of our duty as chronicler of the County Courts, we have been compelled, in fairness to the Profession, to give admission to more than one complaint of the conduct of Mr. Amos, especially towards the Bar, but these we have always accompanied with a frank acknowledgment of his great ability, of his desire to do justice, but with regret that he should sometimes yield to infirmity of temper, and that he did not better maintain the dignity of his office. In the affair with Mr. CARTER, we saw nothing more than this, and never for a moment did we suspect him of a more serious error. We were glad to find the Court of Queen's Bench adopting the same view, and acquitting him of the graver charge that

placing Mr. CARTER, with a generosity that does him honour, addressed immediately to Mr. CARTER the letter which appears among the correspondence, in which he frankly explains the circumstances under which he was tempted to sign the letter, and exonerates Mr. CARTER from the imputation which he appeared to have cast upon him, giving him leave to publish the spontaneous letter as widely as was that which had been obtained from him under fear of costs, and under promise of secrecy.

It remains to be seen what explanation will be given by Mr. AMOS of this affair, which has such a very ugly aspect; for explained it must be, either voluntarily, or by compulsion. It cannot rest as it stands. If the statement of the complainant is true, and Mr. Aмos has indeed made use of his power of ruining the man in order to obtain from him a letter dictated by himself to serve his own purposes, or if it be true that a promise of secrecy was made, and yet afterwards that the letter was, with his knowledge and consent, published in The Times, there can be but one opinion as to the course that should be taken with him. If these assertions are false, they should be met with instant and entire contradiction. Possibly Mr. AMOS may not see the matter in so serious a light as others, and may deem it most prudent to take no notice of the imputations. We entreat him, for his own sake, and for that of the Court over which he presides, not to suppose that it can be so dealt with. The charge has obtained a world-wide circulation. It has been read with astonishment, and an answer is expected, or it will be taken to be admitted. For ourselves, we believe that it is either false or grossly exaggerated, but we expect to have a formal and explicit contradiction of it from him who can be the only authority on such a matter.

« ElőzőTovább »