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1827.

BEETE

BIDGOOD.

Lord Tenterden, C. J.-We can add nothing to the verdict. also Edmondson y. King et al, Lansing v. Eddy, 1 Johns. Chan. Overton's Rep. 425. But it would Rep. 49; Thompson v. Berry et al, seem that a defendant may, to a 3 Johns. Chan. Rep. 395. And scire fucias brought to revive a in giving relief, it requires the decree obtained against him by de- complainant to pay all that may fault, plead that the original con- be justly due on the transactions tract was usurious. Lane v. Elzey, to the defendants, after stripping 4 Hen. & Munf. 504. It has them of usury; Anonymous, 2 been said also, that a judgment Desaus. Chan. Rep. 334. And he upon an usurious contract, when must tender or bring into Court made the consideration for ano- the money actually lent, and lawther contract is neither an illegal, ful interest thereon, before an innor a void consideration, Bearce v. junction will be granted to stay Barstow, 9 Mass. Rep. 48. A proceedings at law on the usurious bona fide purchaser under a sale, contract; Rogers v. Rathburn, 1 duly made by virtue of a power Johns. Chan. Rep. 367. A discocontained in a mortgage, will not very will be compelled only upon be affected by usury in the debt for the same terms; Tupper v. Powell, which such mortgage was given; 1 Johns. Chan. Rep. 439. So Bartlett et al v. Henry, 10 ohns. where the bill does not pray a disRep. 185. See Mass. Rep. 268. covery, but is filed to stay proThirdly, as to the relief in equity. ceedings on an usurious deed of A court of Equity will not relieve trust, the Court ought not to grant against a judginent at law on the the party relief against the usury, ground of usury, where the defend- on condition of his paying the ant neglected to avail himself of principal sum, without interest, the defence, that it would have but should altogether enjoin the been to the action at law, and trustee from selling until the vawhere pending such action, he lidity of the contract be deterneglected also to apply in due mined ; Marks v. Morris, 2 Munf. season for a bill for discovery; 407.

Etches v. ALDAN. ACTION on a policy of insurance, bearing date 22d A. lets his

B. for a voy

ship to freight February, 1826, effected by the plaintiff, as agent for one and charter io age, the probable duration of which is eight months, at 100l. per month, and by the charter-party B. is to make the advances for sailing charges, on account of the money payable for the hire of the ship, miscalled “freight;" °B. insures 3001. with C., for money advanced on sailing charges, and A., at the same time, insures with C. 4001. on freight. Upon a total loss, Č. is not entitled to consider A.'s policy as effected on gross freight, and that the amount being 8001., A. is his own insurer for a moiety of the risk.

1827.

ETCHES

V. ALDAN.

Sharp, for 4001. on the Mary, upon freight on a voyage from Gibraltar to Omoa, during her stay there, and thence to her port of discharge in Europe, not in the Baltic or Mediterranean, with leave to call at Gibraltar for any purpose. This policy was subscribed by three of the directors of the Patriotic Assurance Company of Ireland, of which company the defendant was a member (a), at 70s. per cent., to return 9s. 6d. per cent. if she discharged at Gibraltar, or in the United Kingdom. The first count of the declaration stated, that before and at the time of the loss, Sharp had let to freight and chartered the said ship to one Aikin, for a certain term agreed upon between

or

(a) By 5 Geo, 4, c. 154, inti- pany, shall be commenced, instituled, “ An act to enable the Pa- tuted, and prosecuted against the triotic Assurance Company of Ire- secretary for the time being of the land to sue and be sued in the said company or partnership, or name of the secretary or of one of the person acting or officiating as the members of the said company,” secretary, or against any one memit is provided, s. 1, “That all ac- ber of the said company or parttions and suits to be commenced, nership, as the nominal defendant instituted, or carried on by or on for and on the behalf of the said behalf of the said company or part- company.” And by s. 8, it is nership, or of the members, part- provided, “That it shall not be ners, proprietors interested

lawful for the said company, or therein for the time being, against any person or persons on behalf of any person or persons (whether the said company, in any manner such person or persons is or are or to stipulate, contract, or agree with shall then be a member or mem- any person or persons to limit or bers, partner or partners, proprie- restrict the liability of the members tor or proprietors of or in the said of the said company, or any of company or partnership or not), or them, or to make any special against any body or bodies politic agreement in relation to the extent or corporate, shall and lawfully of the liability of the members of may be commenced, instituted, the said company, or any of them, and prosecuted or carried on, in other than or differing from such the name of the secretary for the contracts or agreements as are usutime being of the said company or ally made between general partners partnership, or in the name of the in trade, and others contracting person acting or officiating as such, with them, except so far as such or in the name of any one member contracts and the remedies for enfor the time being of the said com- forcing the performance of the pany or partnership; and all ac- same, are effected by the provisions tions and suits to be commenced of this present act, and the true or instituted against the said com- intent and meaning of the same."

1827.

ETCHES

AIDAN.

them, and that the said ship was and remained so let to freight and chartered, from the time of making the policy until and at the time of the loss, at and for certain freight, therefore payable by Aikin to Sharp ; and that Sharp was, at the time of the making of the policy, and from thence until and at, &c., interested in the freight so payable by Aikin to Sharp, as aforesaid, being the freight so insured as aforesaid, to a large value and amount, to wit, to the value and amount of the sum so insured as aforesaid, and of all the moneys by Sharp ever insured, or caused to be insured thereon : that on the 8th of October, 1825, the said ship being so let to freight, and chartered as aforesaid, departed and set sail from Gibraltar aforesaid, on her said voyage to Omoa aforesaid, and afterwards, to wit, on the 25th day of December, 1825, arrived at Omoa aforesaid ; and that afterwards, to wit, on the 4th day of April, 1826, the said ship so let to freight, and chartered as aforesaid, set sail from Omoa aforesaid, towards Gibraltar aforesaid, and her port of discharge in Europe, and that the freight on the said ship, so being let, &c., in case of her arrival there, would have amounted to a large sum of money, to wit, 6001. Then followed the statement of a total loss by the perils of the seas. The second count stated, that the policy was made by the plaintiff as the agent of Sharp, and for his use and benefit, and that plaintiff did receive the order for, and effect the policy as such agent as aforesaid ; and that Sharp was at the time of the making of the policy, and from thence, until, &c., interested in the freight of the ship for the said voyage, to the value and amount, &c. A total loss was then stated, as in the first count. The third count differed from the second, in stating only a particular loss of 901. per cent. There were aleo counts for money lent, money paid, money had and received, and on an account stated. To this declaration the defendant pleaded non assumpsit, and paid 2001. into Court. He afterwards paid into Court, a further sum of 671. (a).

(a) The defendant considering the plaintiff's interest insured to be

At the trial before Bayley, J., at the last assizes for the county of Lancaster (a), it appeared, that on the same day on which the policy declared upon had been effected, another policy had been effected with the company by Aikin, for 3501., on money advanced for sailing charges, at and from Gibraltar to Omoa, during her stay there, and thence to her port of discharge in Europe, not in the Baltic or Mediterranean, with leave to call at Gibraltar for any purpose, and to discharge and take on board wherever she might call at or proceed to. Premium 70s., to return 9s. 6d. on discharge at Gibraltar, or in the United Kingdom. By charter party, 10th August, 1825, Sharp let to freight and charter, unto Aikin, the schooner Mary, for and during the term of six calendar months, to commence and be computed from the day she should sail from the port of Liverpool, and to be employed by Aikin upon such lawful voyages from and back to the port of Liverpool aforesaid, and in such lawful trade as he might direct during the said term. In consideration whereof, Aikin covenanted to pay Sharp in full for the frieight and hire of the said vessel for the said term, at and after the sale of 1001. sterling per month, for each and every month during the said term, to be paid, and payable free of interest, commission, or other charge whatsoever, in manner following (that is to say): the sum of 501. immediately upon the sailing of the said vessel from the port of Liverpool aforesaid, as much cash as might be from time to time required and sufficient to pay all wages and sailing charges of the said

1827.

ETCHES

ALDAN.

eight months' pay, or 8001., and less 2651. ; but afterwards findthat he was short insured for one ing that the period between half, and the defendant liable only the 8th of October, and the time for half the loss, appears to have of the loss, was two days short of deducted 270l., the money received six months, and being apprehenfor wages and sailing charges, sive that a part of the 270l. was refrom 8001., the total amount of coverable back, he increased his the gross freight, which would

payments to 2671. leave 5301. as the total amount of (a) Counsel for the plaintiff, the loss; and he paid into Court F. Pollock and Tomlinson; for the half of 5301., or 2651., leaving defendant, Brougham, Parke, and in dispute 1351., i.e. 4001., Crompton.

1827.

ETCHES

v. ALDAN,

vessel; and the residue of such freight, as might be due after the rate aforesaid, at the completion of each voyage the vessel might make ; and in case the said vessel should be absent, or detained from her final port of Liverpool, beyond the said term, then, and in that case, the said Aikin, his executors and administrators, should continue to pay freight, after the rate and in manper aforesaid, until she should return to the said port, and be finally discharged and given up; and if the said vessel should be finally given up by Aikin to Sharp before the expiration of the said term, he, the said Aikin, would nevertheless, pay to the said Sharp the sum of 6001., in like manner as if the said vessel had been employed by Aikin for the full term of six months; and, moreover, that he the said Aikin, his factors, or agents, would pay all port charges, quarantine charges, consulage, pilotage, and dro yerage, incurred or payable during the continuance of the voyage. By an agreement, dated 10th August, 1825, and made between Sharp, therein described as owner of the Mary, of the one part, and John Lilly, master and mariner, of the other part; after reciting that Sharp had chartered the vessel to Aikin, for the term of six calendar months, or thereabouts, and that Sharp had, on the suggestion and recommendation of Aikin, appointed Lilly master of the vessel, at the pay of eight pounds per month; and that it had been agreed between the parties thereto, that Lilly should find a sufficient crew for the vessel, and pay himself and all wages, victualling, sailing, and other incidental expenses (except the wear and tear of the vessel), during the subsistence of the charter; and in consideration thereof, that Sharp should pay or allow to Lilly at the rate of 45l. per month, it was witnessed, that, for the considerations thereinafter mentioned, Lilly agreed that he would, at his own expense, during the subsistence of the charter, find and provide a sufficient crew, competent to navigate the vessel, and all provisions and stores that might be requisite and necessary; and pay all wages

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