GIBSON

t.

BRUCE.

[ *404 ]

[ *405 ]

Upon the state of facts the defendants' counsel insisted at the trial that the payment of these notes was a voluntary payment by Martin with a full knowledge of all the circumstances, and that, consequently, the transaction could not be re-opened and the money recovered back, referring to the case of Wilson v. Ray (1) as an authority directly in point. And thereupon I left it to the jury to say whether the payment was voluntary or not, telling them, that if the payment was made to the bankers *as agents only it must be considered as a voluntary payment; and that if they found the payment to be voluntary and made with a full knowledge of the circumstances, then, upon the authority of the case referred to, they should find their verdict for the defendants, otherwise for the plaintiffs; upon which direction the jury found for the defendants.

In Michaelmas Term last my brother Wilde obtained a rule to show cause why there should not be a new trial on the ground, first of misdirection; secondly that the verdict was against the evidence. The misdirection complained of was the adopting as law the decision of the Court of Queen's Bench in the case before cited; and it was stated by my brother Wilde that the main object of his motion was to review the grounds of that decision. The verdict was contended to be against the evidence in the cause, on the ground that the notes having been indorsed by the defendants and paid in to their bankers at Leeds, under the circumstances stated, the bankers became the holders of the notes for value, and there was no ground for suppos ing that Martin, knew or indeed could know if the fact were so, that the notes were not presented for payment by them as such holders for value, in which case the payment by him must have been involuntary on his part. And it was further stated that this view of the case was not distinctly left to the jury.

We have heard a very learned and laborious argument on both sides upon the first ground; but as the rule of law laid down by the Court of Queen's Bench, if it be not correct, ought rather to be overruled by a court of error than a court of co-ordinate jurisdiction, and as we feel ourselves justified upon the second ground of objection in sending this case to a new trial, and thereby giving either party the opportunity of putting the question of law on the record, we give no opinion on that question. But upon the question of fact we think sufficient weight may not have been given by the jury to the evidence attending the payment of these notes, whether such payment was voluntary or not; and that it (1) 50 R. R. 341 (10 Ad. & El. 82; 2 P. & D. 253).

would be more satisfactory that this question should be submitted to a second jury with their attention called and directed to the precise point, whether Martin knew that the bankers were presenting the notes as agents of the defendants,-which does not appear to have been left to them on the former trial.

For these reasons we think the rule should be made absolute for a new trial, and that the costs of the former trial should abide the event of the second.

Rule absolute accordingly.

BLYTH AND ANOTHER 2. SMITH.

(5 Man. & G. 405-414; S. C. 6 Scott, N. R. 360; 12 L. J. C. P. 203; 7 Jur. 948.)

In an action by A. against B., B. gave notice to C. against whom B. had a remedy over, to come in and defend the action. C. refused to do so, but did not prohibit B. from continuing the defence. B. suffered judgment by default, and watched the proceedings under the writ of inquiry, putting A. to the proof of his claim.

At the trial of the action over by B. against C. the jury included in their verdict the costs incurred by B. in the former action, no objection being then taken by C. to the right of B. to recover those costs. The Court refused to disturb the verdict, being of opinion that there was evidence to go to the jury that C. had sanctioned the incurring of these costs. ASSUMPSIT. The declaration, after setting out a contract of charter, dated the 27th of April, 1837, between the defendant as managing owner of the schooner the Rapid of the one part, and the plaintiffs and Thomas Blyth deceased, freighters of the said vessel of the other part, whereby that vessel was let on hire or freight to the said freighters, and stating mutual promises, alleged that afterwards and in the lifetime of Blyth, and whilst the said vessel so remained in their *said service, under and by virtue of the said charter, and on the terms thereof, to wit, on the 24th of November in the year aforesaid, the plaintiffs and Blyth caused to be shipped at Port Louis, in the island of Mauritius, on board the said vessel, a cargo of lawful goods and merchandize, to wit, 3,348 bags of Mauritius sugar, in good order and well conditioned, of great value, to wit, of the value of 12,000l., belonging to W. Little, B. Roberts and J. T. Mitchell, and 283 bags of Mauritius sugar in good order, &c., &c. belonging to R. F. Gower, A. L. Gower, G. S. Walters and E. Gower, which goods and merchandize for certain freight and reward to be therefore paid to the plaintiffs and Blyth, were, for the said respective owners, to be taken care of, and safely and securely carried and conveyed by the plaintiffs and Blyth,

1843. Jan. 26.

[405]

[ *406 1

BLYTH

SMITH.

[ *407 ]

in and on board the said vessel from Port Louis to London, and there to be safely and securely delivered in the like good order and well conditioned at London, the act of God &c., excepted; that afterwards, to wit, on &c., the said vessel then remaining in the said service of the plaintiffs and Blyth, under and by virtue of the said charter, and on the terms thereof, sailed on her said voyage from Port Louis to London, laden with the said goods and merchandize; that although the plaintiffs and Blyth had always observed and performed all things in the said charter mentioned on their part and behalf to be observed and performed, yet the defendant had disregarded his promise in this, to wit, that the said vessel, after the making of the said charter and before the time she so as aforesaid entered into the said service of the plaintiffs and Blyth was not made, nor was the said vessel when she so entered into the said service, or at any time afterwards, tight, staunch, or substantial, or in any respect fit or ready to receive on board a cargo of the plaintiffs and Blyth; and in this, to wit, that during the continuance of the said *vessel in the said service of the plaintiffs and Blyth under the said charter-party, the said vessel was not well or sufficiently tackled or apparelled, as was usual for vessels in the merchant service, or for the execution of the aforesaid voyages, nor was the said vessel nor were her stores, tackle, or appurtenances kept, as far as was practicable, in good or sufficient repair, although no act of God prevented the said vessel from being made or kept tight, staunch, or substantial, or fit and ready to receive the said freighters' cargo on board, or well and sufficiently tackled or apparelled, or prevented the said vessel, her stores, tackle, and appurtenances, or any of them, from being kept in good and sufficient repair as in the said charter agreed in that behalf as aforesaid; whereby and by means of the premises and of the said vessel at the time she so as aforesaid entered into the said service of the plaintiffs and of Blyth, and from thence continually until and at the time of the said goods and merchandize, to wit, the aforesaid sugar being damaged and destroyed as thereinafter mentioned, not having been made, nor being tight or staunch or substantial, and not by reason or means of any act of God, &c. large quantities of water, after the said vessel had sailed as aforesaid on her said voyage from Port Louis for London, and whilst she was on her said voyage with the said goods and merchandize on board as aforesaid, and whilst the said vessel remained in the said service of the plaintiffs and Blyth, under and by virtue of the said charter, and on the

terms thereof, to wit, on the 25th of November in the year aforesaid, penetrated through the sides and bottom of the said vessel and the seams thereof into the hold of the said vessel, and then and there destroyed a large quantity, to wit, 2,000 bags of the said sugar, and then and there greatly damaged the residue thereof, and thereby the plaintiffs and Blyth then became and were wholly unable, safely or securely to carry or to convey to London, or there safely or securely to deliver in such good order or well conditioned as aforesaid, the said goods or merchandize, or any part thereof, to the said respective owners thereof, and had lost and been deprived of the freight which they would have earned thereby, and they the plaintiffs and Blyth thereby became and were answerable to the said respective owners of the said goods and merchandize for the aforesaid destruction and damage thereof, and became and were liable to compensate them for the same; and by means of the premises, not only had the plaintiffs, since the death of Blyth, been compelled to pay, and had paid to the said respective owners of the said goods and merchandize, to wit, the said W. Little, &c., &c. large sums of money, amounting to a large sum, to wit, 5,0001. as and for compensations to the said owners respectively for the said destruction and damage of the said goods and merchandize; but also the plaintiffs since the death of Blyth had been compelled to pay, and had paid, to the said owners respectively, divers large sums together amounting to a large sum, to wit, 1,000l. as and for the costs of the said owners respectively in certain actions brought by those owners respectively in H.M.'s Court of Queen's Bench at Westminster, against the plaintiffs and Blyth in respect of the said destruction and damage of the said goods and merchandize, and to recover from the plaintiffs and Blyth compensation for the same; and the plaintiffs by means of the premises had also necessarily incurred a great expense, to wit, an expense of 1,000l. in and about their defence to the said actions, and in and about the investigating of the circumstances attending the said destruction and damage of the said goods and merchandize.

The declaration also contained the common indebitatus counts, and a count upon an account stated.

Pleas, inter alia, first, non assumpsit, except as to *2341. 10s. which was paid into Court; and seventhly that the plaintiffs had not been compelled, nor had they paid to the said respective owners of the said goods and merchandize, the said sum of 5,000l., or any part thereof, as and for compensation to the said owners respectively,

BLYTH

2. SMITH.

[ *410 }

for the said destruction and damage of the said goods and merchandize, and the plaintiffs had not been compelled to pay, and had not paid, to the said owners respectively the said sum of 1,000l., or any part thereof, as and for the costs of the said owners respectively in the said actions brought by those owners respectively, for the said purposes in the declaration mentioned, in manner and form as in the said declaration mentioned; concluding to the country. Issue thereon.

At the trial before Tindal, Ch. J. at the sittings in London, after the last Term, the following facts appeared: the Rapid sailed from London under the charter set out in the declaration, in May, 1837, and arrived at the Mauritius on the 5th of August. She then undertook an intermediate voyage to the Cape of Good Hope; after which, namely, in November, she was put up, by the plaintiff's' house at the Mauritius, as a general ship for London, and amongst other goods, received on board 3,348 bags of sugar for Rickards, Little & Co., and 283 bags for A. A. Gower, Nephews & Co. On the 19th of December, the vessel sailed from the Mauritius, but in a few days she was compelled to return in a disabled state, and to unload. Part of the sugars, amounting to 979 bags, were found damaged and being unfit for re-shipment were sold. After being repaired at the Mauritius, she sailed for London on the 7th of February, 1838, with the residue of her cargo, and arrived there on the 22nd of May.

Rickards & Co. and Gower & Co. having commenced actions against the present plaintiffs to recover the value of the sugars so sold at the Mauritius, the *solicitors of the plaintiffs sent to the defendant the following notice:

January 24th, 1839.

GENTLEMEN,-We are instructed to give you notice that Messrs. Little & Co. (Rickards & Co.) have commenced an action against Messrs. Blyth, the charterers of the above ship, in H.M. Court of Queen's Bench, to recover damages for the non-delivery of certain goods and merchandize shipped by the plaintiffs on board the said ship at the Mauritius, to be carried and conveyed therein to London. The plaintiffs allege in and by their declaration in their said action, that the delivery of the said goods was not prevented by the perils of the seas, and indeed you are aware that the ground of the said action is the alleged unseaworthiness of the said ship. Under these circumstances, and as in case of the plaintiffs' recovery against the