in London, on his way to Croydon from Newcastle, for the purpose of attending the trial. Upon this the learned BARON directed that the witness should be sworn and examined. After his examination had proceeded for a little time, the learned BARON expressed an opinion that the difficulties in the plaintiff's way were insuperable, but suggested that some arrangement should be made. Ultimately, the plaintiff submitted to be nonsuited on terms. 1863, REED บ. FAIRLESS. Court of Exchequer, Guildhall, coram Martin, B. RUCKER AND ANOTHER v. LUNT. ACTION for commission and money paid. Plea: payment into Court. London Sittings. Trinity Term. In an action by insurance Hon. G. Denman, Q.C., and Charles Pollock for the brokers to replaintiff. Mellish, Q.C., and Milward for the defendant. cover their commission, evidence admitted of a custom for the broker to be allowed dis count by the underwriters, their em insurers. The plaintiffs are ship and insurance brokers in the city, and the defendant is the master and part owner of a ship called the George Griswold, which had been chartered by and to retain the Peruvian Government to bring a cargo of guano from it as against Callao. The charter-party contained a clause to the effect ployers, the that insurance of the cargo against war risk was to be effected by the plaintiffs, who were to be repaid "the amount of premium and duty in cash," on completion of the insurance. The insurance was completed by them, and the present action was brought for 1371. 10s. 2d., which was the amount of premium mentioned in the policy and the duty. The defendant paid 125l. 1s. 4d. into Court, and contended that he was not further liable, because the sum claimed by the plaintiffs included, in addition to their charge for brokerage, a sum of 10 per cent., 1863. RUCKER and Another v. LUNT. which had not actually been paid by them, but allowed for discount to them by the underwriters, and that this discount ought to be credited to the defendant. After the plaintiffs had been examined and cross-examined, and proved that, in the absence of any express stipulation to the contrary, it was the universal practice in such cases for the broker to have the benefit of such discounts, Mellish asked Mr. Offer, one of the plaintiffs, whether he thought, because such a practice had been acted upon by brokers, without informing their principals, that that constituted a custom in favour of such a claim? The witness on re-examination said, that he had known such a practice contested, but in the absence of any agreement it had been always paid to the broker. MARTIN, B., said that he had a distinct recollection of the custom, as alleged by the plaintiffs, having been found by a special jury at Guildhall about thirty years ago. One of the jurymen said that he himself and one or two of his colleagues had experience in like matters, and were convinced that such was the understanding in London. Mellish said that he was prepared to call evidence to the contrary. Denman stated that he had several more witnesses who would support the plaintiffs' views. Mr. Grierson, a ship and insurance broker, and Mr. De Mattos, were then called, and supported the plaintiffs' view of the case. The latter gentleman said, that he chartered about 500 or 600 vessels a year, and that in the absence of any arrangement to the contrary the broker invariably had the benefit of the discount. Upon this Mellish stated that he could not hope for a verdict, and the jury found for the plaintiff for the amount of the discount, 121. 8s. 10d., beyond the sum paid into Court. Judges' Chambers, coram Crompton, J. MORLEY. MIDLAND RAILWAY COMPANY. MORLEY ET UXOR v. MIDLAND RAILWAY COM PANY. IN this case a summons had been taken out by the defendants, calling upon the plaintiffs to show cause why these actions should not be consolidated under the 15 & 16 Vict. c. 76, s. 40 (a). Cave for the plaintiff. 1863. Judges' Chambers. An action brought by a husband for an injury done to himself may be consolidated with a separate action brought by the husband and wife for an the wife at the injury done to same time and place under the 1852, 15 & 16 The statute does not extend to this case, where the husband is suing, not for claims arising to him in respect of the injury done to the wife, but for injuries done to himself. In fact the plaintiff and his wife were both travel- C. L. P. Act, ling on the defendants' railway, and were both severely Vict. c. 76, injured by one and the same accident. The plaintiff has s. 40. sufficiently complied with the statute by adding to the action in which his wife is joined, claims in his own right as for loss of her society, and for the expenses of curing her arising out of the injury done to her. Before the passing of the 15 & 16 Vict. c. 76, these claims could not have been added to an action brought by the husband and wife for an injury done to her; so that, in every case where a wife was injured, it was necessary to bring two actions, one by the husband and wife for the damage suffered by the wife, and one by the husband for the peculiar damage resulting to him alone from the injury done to (a) Which provides that, in any action brought by a man and his wife for an injury done to the wife in respect of which she is necessarily joined as co-plaintiff, it shall be lawful for the husband to add thereto claims in his own right; and separate actions brought in respect of such claims may be con solidated, if the Court or a Judge 1863. MORLEY V. MIDLAND RAILWAY COMPANY. MORLEY et Uxor v. MIDLAND RAILWAY COMPANY. her (a). It was this anomaly which the statute intended to rectify. He cited Day's Common Law Procedure Act (b). Dodgson, in support of the summons. The words of the section are quite wide enough to embrace such a case as this, and orders similar to that now sought have been made both by WILLES, J., and by MELLOR, J. CROMPTON, J.-For my part I am inclined to think that this case is not within the meaning of the section; but I am not prepared to overrule the previous decisions of my Brothers WILLES and MELLOR. Do the plaintiffs wish to have the opinion of the Court upon the point? Cave. To go to the Court would throw them over the approaching Assizes; and they are very anxious to try at once. CROMPTON, J.-Then I must make the order in deference to the precedents brought forward by Mr. Dodgson. I shall, however, put the defendants under terms as to pleading and taking notice of trial; and the costs must be plaintiffs' costs in any event. (a) Dengate v. Gardiner, 4 M. & W. 5. (b) Page 42, 1st edit. Sed vide Finlason's C. L. P. Acts, p. 79. "The injury being to the wife;" Wallis v. Harrison, 5 M. & W. 142; Order accordingly. Langmed v. Halliday, 6 Exch. 761. The section applies to torts and cases in which the wife must join; citing Johnson v. Lucas, 1 E. & B. 659; 22 L. J., Q. B. 174. 1862. A co-surety having paid the debt to the Coram Crompton, J. EDMONDS v. S― B: SUMMONS to set aside ca. sa., on which defendant had been taken in execution for 2,500l., on ground that dejudgment cre- fendant had been previously taken under a former ca. sa. ditor: Held, entitled to take on the same judgment, and the judgment satisfied by the debtor in satisfaction, payment. although he had been discharged under a former ca. sa. The principal facts appearing on the affidavits on both sides were, that a Captain B. as principal debtor, and Sir J. F. and the defendant, S. B., his sureties, had entered into a bond for securing 5,000l. to the plaintiff, and the defendant had also, as a further security, executed a warrant of attorney to the plaintiff, on which the judgment referred to was entered up against the defendant; and the defendant was in January, 1862, taken in execution for a sum exceeding 5,000l., for principal, interest and costs. Sir J. F., in discharge of his liability as co-surety on the bond, paid the amount indorsed on the ca. sa., and an agreement was signed, by which the defendant and Captain B. agreed to assign certain interests in property as security for sums (including the sum so paid) which Sir J. F. had paid, or was liable to pay as surety. The defendant had been requested to execute the assignment and warrant of attorney, but had not done so; and no part of the payments of Sir J. F. had been reimbursed, either by the principal or by the defendant. An action was pending at suit of Sir J. F. against the defendant, for a sum of 14,000l., including the money paid by him in January. On the 22nd of November instant the defendant was again taken on a ca. sa. issued on the judgment, the ca. sa. being indorsed to levy 2,5007. The affidavits, in opposition to the summons, stated that after the payment by Sir J. F. in January, the warrant of attorney and judgment against the defendant were held by the plaintiff and Joseph Joel, for whom, in fact, the plaintiff was really a trustee, on behalf of and in trust for Sir J. F.; and that the first ca. sa. was issued with their knowledge and consent, but for the sole benefit of Sir J. F., and reliance was placed on the provisions of the Mercantile Law Amendment Act. Garth, in support of the summons, contended that the section referred to did not authorize the taking in execution a second time, and that, if it did, the second ca. sa. 1862. EDMONDS บ. S B |