Page images
PDF
EPUB

be strictly a property in either the ship, in action, be transferred in equity, though goods, or freight, for, as has been long at Common Law the action must have said, if a man is so situated with respect been brought in the name of the ori. to them that he will receive benefit from ginal contractor, the assignor. Such their arriving safely at the end of the an assignment may be objectionable on adventure, or sustain loss in consequence the ground of maintenance or champerty, of their not arriving safely, he has an in- but it is not necessarily so, and no cirsurable interest, -see per Lawrence, J., in cumstances are stated on this record to Lucena v. Crawford (3).

raise such a defence. If the assured, before the termination of It seems to us that the general object the adventure, has parted with all interest of the legislature was to make the right of in the subject matter of the insurance, he action on policies of marine insurance can suffer no damage from any subsequent assignable at law, and that the assignment loss, and consequently from the nature of of a policy after loss is within the object the contract being one of indemnity, he of the Act. There is a very common form cannot recover in respect of any loss sub- of commercial adventure where goods are sequent to his transfer of the property, - sold for a price to cover cost, freight, and see Powles v. Innes (4). And, for exactly insurance payable on receipt of the shipthe same reason, an attempted transfer of ping documents. In such a case the the beneficial interest in the policy, before policy and bill of lading are habitually

, loss, to a person having no beneficial in- made the subject of sale, whilst the parties terest in the subject matter is ínoperative; are ignorant whether the goods are safe for the cestui que trust of the contract,

or not.

It could never, we think, be inhaving nothing in respect of which to be tended to except from the Act such cases indemnified, could recover no indemnity. if it should turn out that the loss accrued But after the loss has happened, and the before the sale. adventure is over, this reason ceases at The words relied on, in the case of an once. The assured may sell the damaged assignment before loss, express what is subject of insurance, thereby, as it were, necessarily implied and so are superfluous, ascertaining how much his loss is, and yet perhaps inserted pro majore cautela.

, recover for the loss he has sustained.

In the case of an assignment after the It is every day practice, where a ship loss, when the policy and “all the rights

a has sustained damage, to sell the injured under and by virtue of it are assigned,” it hull for the benefit of whom it concerns, seems to us that the assignee becomes enand then sue on the policy. If it can be titled to the property thereby insured, for made out that the loss is total, the sale is then it is ascertained that the interest in for the benefit of the underwriters, who the damage, the chose in action, is the pay the total loss. If the loss proves only property which is covered by the partial only, it is for the benefit of the policy; consequently that the words of assured, but no one ever thought of saying the Act are literally complied with. that the sale of the damaged hull put an We think, therefore, that judgment on end to the right to recover an indemnity these demurrers should be for the plaintiff. for the partial loss. The reason of the distinction is that, after the loss, the right

Judgment for the plaintiff. to indemnify no longer depends on the right of property in the subject matter of the insurance, so far as it still exists, but on the right of property in the thing or Attorneys—Swinburne & Parker, for plaintiff's the portion of the thing lost. After a loss, Fenwick & Stibbard, for defendants. the policy of insurance and the right of action under it might, like any other chose

(3) 3 Bos. & P. 75; s. c. 2 N. R. 269.

(4) 11 M. & W. 10; s. c. 12 Law J. Rep. (N.s.) Exch. 163.

WALLEN AND OTHERS V. FOR-
REST AND ANOTHER.

*

Did not your

BAIL COURT.

yea, was not such representation so made 1872.

by you true in substance and in fact ? Jan. 31.

2. Did you not, at the same time, or at Practice-Interrogatories-Ejectment.

some other time, represent to the said de

fendant that your said mother's interest in A defendant in ejectment, who has by the and title to the said premises would terplaintiff been let into possession of the pre- minate on the 24th of June, 1869, or on mises, the subject of the action, for a term, some other day in the month of June, and holds over at the expiration of the 1869 ? term without attorning or paying rent to 3. Was it not in fact true, that her any other claiming title, will not be allowed

said interest and title would and did to interrogate the plaintiff with a view to terminate on one of the said days of June, shew that, at the time of possession being 1869 ? given, the plaintiff's interest was a term of 4. Did not the said premises belong to years which had expired before the action. and form part of the estate of your

late

father, Joseph Wallen ? This was a rule to rescind an order of

late mother, the late Mrs. Sarah Wallen, Hannen, J., made at chambers, ordering

die before the 11th day of March, 1871 ? one of the plaintiffs to answer certain in

5. Of whom did your late father hold terrogatories allowed to be administered the said premises, and when did the term to him by the defendants.

vested in him expire? Did it expire on the The action was in ejectment. Two of 24th, or some other day of June, 1868 ? the plaintiff's sued as devisees in trust of 6. Has or have not your late father, or the will of their deceased father, and two your late mother, or the trustees of your other of the plaintiffs sued as devisees in father's will, or the execntors of your trust of their deceased mother.

mother's will, or yourself, as agent for The deceased persons were in their life

your mother or otherwise, paid rent to time possessed of leasehold terms in the

any one, and if so, to whom, in respect of premises which were the subject of this the said premises, and if yea, was any action. The defendant Forrest became rent paid after Midsummer, 1869 ? tenant for one year, of the premises of the deceased Mrs. Wallen, and occupied as Barnard shewed cause.—The defensuch from June, 1868, to June, 1869. At dants are entitled to these interrogatories. the termination of that term, he continued They are not denying that the plaintiffs to occupy and refused to give up the

pos- had a title when they took the lease from session, alleging that Mrs. Wallen's in- them, but they say that the title which terest in the premises had expired. His they had has expired by effluxion of time. father and uncle had been tenants of the [BLACKBURN, J.—They let

you

into premises under two of the Wallens, from possession, and the reversioner has not 1858 to 1867, and he and his father con- interfered. QUAIN, J.-You are in the tinued tenants till June, 1868.

position of a tenant inquiring into your The following interrogatories were landlord's title. allowed at chambers

The estoppel under a lease by deed 1. Did you not, in the month of June, ceases with the interest of the landlord. 1868, or at some other and what time, In ejectment, interrogatories are allowed represent to the defendant, Thomas Wil

on matters of pedigree connected with liam Forrest, that you were the agent of the plaintiff's title-Flitcroft v. Fletcher your mother, the late Mrs. Wallen being (1). Interrogatories are allowed respectthen alive, and as such agent you had ing the plaintiff's' title in ejectment, which authority from her to negotiate with the may be objectionable in other actions said defendant as to his taking from her, Finney v. Forwood (2). The defendants for the term of one year, the premises in the writ in this action mentioned, and if

(1) 11 Exch. Rep. 543 ; s. c. 25 Law J. Rep. (N.s.) Exch. 94.

(2) 35 Law J. Rop. (N.s.) Exch. 42; s. c. Law * Coram Blackburn, J., and Quain, J. Rep. 1 Exch. 6.

want to know to whom we may safely pay plaintiffs, not to shew that they were mere our rent.

wrongdoers, but to inquire whether they Gibbons, in support of the rule.—These were not leaseholders, and whether the interrogatories are objectionable on the lease had not expired. I think they are ground that they are intended to inquire not entitled to our assistance, to make into the weakness, if any, of the plaintiffs' such a discovery for the purposes of such title. This is not an action by a mere

a defence.

Had it appeared that the stranger, against a person who has been defendants had attorned to another perlong in possession, but the plaintiff's here son who set up title, or that they had are the legal representatives of the party paid rent, or given up the premises to by whom the defendants were let into pos- some other person claiming title, their session. There are no special circum- position would have been different. My stances to induce the Court to allow these brother Hannen, when this rule was interrogatories. No bona fide defence is moved for, complained that his attention shewn. The defendants have been let into had not been called at chambers to the possession by the plaintiffs, they have paid fact that the defendants were wrong no rent to them or to anybody else since doers. They are simply squatters. We 1869, and they have not given up posses- cannot grant interrogatories to inquire sion of the premises to them or anybody into the prima facie title of the plaintiffs, else-Flitcroft v. Fletcher (1) has been for the purpose of enabling these defend. reflected upon in Stoate v. Rew (3), and ants to find a flaw. We should be aiding Pearson v. Turner (4), which cases point a fishing application if we granted these out the distinction between the circum- interrogatories. stances of such a case as this and that. Quain, J.-I am of the same opinion. [He also cited Compton v. Earl Grey (5); No authority, either at common law or in and Bolton v. Corporation of Liverpool (6).] equity, has been brought before us to

justify us in allowing these interrogatories. BLACKBURN, J.-We think these inter- The defendants have been holding over rogatories should not be allowed.

The

for three years without paying any rent plaintiffs were in actual possession of the to anyone, and now want us to aid them land in question, and are to be taken to be in finding a flaw in the plaintiffs' title, to the owners in fee unless something be enable them to keep possession for them. shewn to the contrary. The defendants selves of what the plaintiffs let them into have possession given to them for a term possession. The case of Flitcroft v. Fletcher which has expired; they have, therefore, (1) has been considerably doubted. Erle, to take a new lease, or give up the pro- J., in Stoate v. Rew (3), says, perty to their lessors whose title they are has long been in possession of an estate, estopped from denying. They do neither. and a stranger comes to dispossess him, They appear to have no defence. There the defendant may call for some general is, however, one exception to that rule of information as to the nature of the title estoppel, and that is, where the title of which is to be made against him.” Now the lessor has expired by effluxion of that is not this case.

Here a person

seeks time subsequently to possession being for information to enable him to find a given, and then it has been held that the flaw in the title of the person letting him lessor cannot by action of ejectment com- into possession, by which he may be en. pel the party whom he has let in to re- abled to hold on the premises as his own.. store this possession. Here, however, in- I think the rule to rescind the order allowterrogatories are sought to be put to the ing these interrogatories should be made

absolute. (3) 14 Com. B. Rep. N.S. 209; s. c. 32 Law J.

Rule absolute. Rep. (N.s.) C.P. 160.

(4) 16 Com. B. Rep. N.S. 157 ; 8. c. 33 Law J. Rep (x.s.) C.P. 224.

Attorneys - Billing & Venn, for plaintiffs ; S. (5) You. & J. 154.

Prentice, for defendants. (6) 3 Sim. 467; s.c. 1 Myl. & K. 88, and i Law J. Rep. (N.s.) Chanc. 166.

NEW SERIES, 41.-Q.B.

" If a man

}

[ocr errors]

[IN THE EXCHEQUER CHAMBER.] CASE stated under the Common Law (Appeal from the Court of Queen's Bench.)

Procedure Act, 1854, on appeal by the

defendant, Reed, from a decision of the 1872. TOLEMAN V. PORTBURY AND Court of Queen's Bench (1). Feb. 13. ANOTHER

2. This was an action of ejectment, Landlord and Tenant-Covenant not to

tried at Westminster, before Hannen, J.,

in Trinity Term, 1870, when leave was permit Sale by Auction on demised Pre

reserved to the defendant, Reed, to move mises -Bill of SalePower therein to sell

to set aside a verdict obtained by the on Premises-AuctionBreach of Covenant

plaintiff, and to enter a verdict for the -EjectmentParticulars of BreachesWaiver of Forfeiture.

defendant upon the following points re

served at the trial : The plaintiff demised a house to C., who 3. First, that the lessee, Candler, had covenanted not to permit or suffer any sale

no power to give a lawful permission for by auction to take place on the premises.

the sale by auction on the premises deC. subsequently granted a bill of sale under mised to him by the plaintiff by indenture seal assigning his goods in the house as

of lease. security for a loan, and empowering the

4. Secondly, that the forfeiture by pergrantees to sell them by auction on the pre

mitting such sale was waived by bringing mises in default of repayment. He next

this action for a forfeiture for non-paymortgaged the house by an under lease to ment of rent accrued due after knowledge the defendant, and, finally, executed a deed by the plaintiff of such sale, and by the of assiynment conveying all his estate to plaintiff treating the tenancy as existing trustees for his credito s; he nevertheless after such knowledge. remained in possession. The grantees of the

5. The Court of Queen's Bench, on bill of sale sold the goods by auction on the motion by the defendant, Reed, calling on premises. The plaintiff brought an action of the plaintiff

' to shew cause why the verdict ejectment, and, in compliance with a judge's obtained by the plaintiff should not be order, delivered particulars of the following

set aside, and a verdict entered for the breaches of covenant, upon which she relied defendant, Reed, instead thereof, on the as causing a forfeiture of the lease, namely, several points reserved at the trial, refused first, non-payment of rent accrued since the a rule on the first point, and granted a day of the sale; secondly, the permitting and

rule on the second point. suffering a sale by auction to take place on 6, 7. [Rule nisi, dated the 13th of June, the premises. Pursuant to an order under 1870; and rule dated the 25th of January, the Common Law Procedure Act, 1852, s. 1871, discharging same, set out.] 212, and the Common Law Procedure Act, 8. The action was commenced on the 1860, s. 1, the arrears of rent were tendered 1st of April, 1870, by a writ of ejectment to the plaintiff, and being refused, were paid directed to the defendants, Portbury and into Court, whereupon the proceedings on Johnson, and all persons entitled to defend the first breach were stayed, but the action the possession of all that messuage or went to trial on the second. The jury found tenement, situate and being No. 7, Westthat C. permitted the sale :-Held, that he bourne Grove, late No. 4, Sussex Terrace, had power to do so, notwithstanding the Westbourne Grove, Bayswater, in the conveyances of his estate, and, having done county of Middlesex, together with all 80, had committed an act of forfeiture which ways, &c., to the possession whereof the was not waived by the plaintif stating in plaintiff claimed to be entitled, and to the particulars of breaches, the non-payment eject all other persons therefrom. of subsequent rent.

9. The defendant, Reed, on the 22nd of

April, 1870, by leave of Court appeared * Decided in the sittings after Hilary Term,

to the writ, and defended as landlord for coram Kelly, C.B.; Byles, J.; Bramwell, B.; Channell, B.; Pigott, B.; Brett, J.; Cleasby, B.; (1) 40 Law J. Rep. (N.s.) Q.B. 125; s.c. Law and Grove, J.

Rep. 6 Q.B. 245.

the whole of the messuage, tenement, and premises therein comprised.

10. The following are the particulars of the breaches of covenant for which this ejectment was brought, delivered pursuant to the order of Mellor, J., dated the 23rd of April, 1870, namely, the non-pay. ment of 3661. 158. for three years' rent of premises No. 7, Westbourne Grove, late 4, Sussex Terrace, Westbourne Grove, in the county of Middlesex, from the 25th of March, 1867, to the 25th of March, 1870.

The permitting and suffering a sale by public auction to take place on the premises No. 7, Westbourne Grove, &c., on the 25th of May, 1867, without the consent in writing of the said plaintiff first had and obtained, contrary to the covenant contained in the lease made between the said plaintiff of the one part, and one Candler of the other part.

11. Order of Court of the 9th of May, 1870, made under section 212 of the Com. mon Law Procedure Act, 1852, and section lof the Common Law Procedure Act, 1860, " that it be referred to one of the Masters to compute the rent and arrears of rent due from the defendants to the plaintiff, and to tax the plaintiff's costs of this action up to today, including costs of this application and occasioned thereby, and upon the defendants paying to the plaintiff or her attorney in this action, or in case either of them shall refuse to accept the same, paying into Court what the Master shall find due and allow for the said rent and arrears and costs, all further proceedings in this action be stayed, so far as relates to the breach for non-payment of rent.”

12. The rent and arrears of rent and costs were accordingly computed. The amount of the rent was tendered to the plaintiff and refused on the 30th of May, and the defendant, Reed, then paid into Court the sum of 3661. 98. for the rent and costs, pursuant to the said order.

13, 14. At the trial the following facts were proved :-By the lease dated the 23rd of March, 1860, made between the plaintiff of the one part, and the said Candler of the other part, the premises described in the writ of ejectment were demised by the plaintiff to Candler, his executors, administrators, and assigns for

twenty-one years, from the 25th of March, 1860, at the yearly rent of 1221. 58., payable quarterly. By the indenture of lease Candler for himself, his heirs, executors, administrators, and assigns, covenanted with the plaintiff and her assigns, that Candler and his assigns would not permit any sale by public auction to take place on the said premises without the consent in writing of the plaintiff, the said Eliza Toleman, her executors, administrators, and assigns.

15. The lease also contained a covenant on the part of Candler and his assigns, not to assign or underlet the premises without the consent of the plaintiff, which consent the plaintiff should be bound to give in favour of any responsible and rospectable person.

16. The lease contained also the usual proviso for forfeiture and re-entry on non-payment of rent, or in case of the breach or non-observance of any of the covenants on the lessee's part sustained.

17. On the 2nd of April, 1867, the plaintiff

, by license under her hand of that date, gave and granted her consent to Candler to demise and lease or underlet the premises to the defendant, Reed, his executors, administrators, and assigns, for the term of fourteen years from the 25th of March, 1867, less three days.

[Copy of license set out.]

18. On the 11th of April, 1867, by an indenture made between Candler, thereinafter called the mortgagor, of the one part, and William Edgeley and James William Clements Aylett, thereinafter called the mortgagees, of the other part, in consideration of the loan of 501. the mortgagor assigned unto the mortgagees all and singular the goods, chattels, and effects of the mortgagor then being in and upon the house and premises situate at No. 7, Westbourne Grove, and No. 18, Cornwall Road, then occupied by the mortgagor, and it was thereby further declared and agreed that in case default should be made in payment by the mortgagor, then it should be lawful for the mortgagees immediately and whenever they should think fit, to sell and dispose of the goods and chattels or any part thereof, on or at the said thereinbefore mentioned house or premises where the said

« EelmineJätka »