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1812.

Bell against ANSLEY.

“ is to pay no more than the sum he subscribed; and
“ the plaintiff is answerable to Reynolds for his share.”
However he offered to reserve the point if the defend-
ant's counsel thought they could support it; but they
declined it, and there was a verdict for the plaintiff.
If this case were now to be decided, the payment of
money into court would clearly have excluded the objec-
tion; but as the case then stood, and the law was then
held, the objection ought not to have prevailed. It does
not appear that Reynolds was interested when the policy
was effected; and if he were not, then the policy was
well effected upon the only interest meant to be covered
by it. Here the plaintiffs were not, as in that case, the
persons with whom the contract was made; as far as
that circumstance can operate as a ground for the judg-
ment. The second ground assigned for the judgment,
that the defendant will only have to pay once, and that
the plaintiff would be answerable to Reynolds for his
share, is certainly not a tenable one. This case, there-
fore, cannot be relied upon as an authority for the de-
fendant upon the point now in question. Upon the
ground, therefore, that it is a material allegation, namely,
the allegation on whose account and for whose use and be-
nefit a policy is made ; and that the statement ought to
be according to the truth; we are of opinion that the
variance in this case was fatal, and that the rule for a
nonsuit should be made absolute.

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1812.

Srephers against Derry.

Tuesday, June 16th.

don court of

his livelihood

THIS
THIS came on upon a rule to shew cause why the Under the Lon-

plaintiff should not bring the postea into court and requests act, file the plea roll, so that the defendant might enter a c. 104. a hussuggestion thereon, that the debt recovered in this action band domiciled

in Middlesex, did not amount to 51. (41. 15s.), and that at the time where his wife

carried on busiof commencing the action the plaintiff and defendant were ness, though he both resident and seeking their livelihood within the city as a clerk in the

office of soliciof London, and the defendant liable to be summoned to

turs in London, the court of requests there, pursuant to the statute 39 & is not privileged

to be sued only 40 G. 3. c. 104. (public local.) It appeared from the in London, as a defendant's affidavit, that at the time the debt was con

person seeking tracted he was employed as clerk to and boarded with there; for that

means seeking Mr. Hughes, who had apartments in the plaintiff's house the whole of his

livelihood within the city. That at the commencement of this there. action the plaintiff resided and still resides within the city, and the defendant was and still is employed as clerk (a) to and resides with certain solicitors within the city, by which he obtains his livelihood : and that the debt was contracted within the city, and not elsewhere. By the plaintiff's affidavit it appeared that the debt was contracted for clothes, which were delivered in the city, but that before and at the time and for six months afterwards the defendant lodged with his wife in the county of Middlesex, first at Backhill, and then at Pentonville,where they now reside, and where the wife carries on the business of a mantua-maker, and that they have no property within the city of London.

(a) At weekly wages, as appeared by another affidavit.

Topping

L2

1812.

Topping and Espinasse were heard against the rule; and Park and Gaselee in support of it. The latter referred to Holden v. Newnham (a), and Jefferies v. Watts (6).

STEPHENS

against DERRY.

Lord ELLENBOROUGH, C. J. In order to entitle a party to be sued in London by seeking his livelihood within the city, he should seek the whole of his livelihood there, and not be in a state of vagrant existence for this purpose, seeking it partly within and partly without the city. Here the defendant seeks for employment at a certain office in the city, where he may get process, which he is to serve elsewhere. The statute must have a sober construction ; for it would be extravagant in its terms, if taken in their greatest latitude; and it must mean that a party shall only be privileged to be sued in the city court, as seeking his livelihood within the city, where he so carries on his business there, as that is the only proper place to find him, in order to serve him with process; for otherwise, if a man kept a stand within the city for only half an hour in the day, though all the rest of the time he carried on business elsewhere, he would be privileged to be sued there only. If he seek his livelihood partly in the one place and partly in the other, there is no reason why he should be sued only in London. Here the defendant may be said to seek his livelihood substantially in the place where he is domiciled, and where his wife continually carries on business.

GROSE, J. I consider this man as seeking his livelihood in the place where he lives and carries on his business.

(e) 13 East, 161.

(6) 1 New Rep. 153.

LE BLANC,

1812.

STEPHENS

against DERRY.

LE BLANC, J. The question is brought before the Court for the first time for the construction of the words,

seeking his livelihood,” in the act; the Court therefore should put such a construction as will fall in with the views of the legislature, and yet avoid the inconvenience which would ensue from too extended an interpretation of these general words. The question is whether this man was residing or seeking his livelihood at the time within the city of London. It is not pretended that his place of domicile was not elsewhere; and as to seeking his livelihood, that must mean seeking the whole of his livelihood within the city: it is the only sensible construction which can be put upon those words in the act. How else can we interpret what is a seeking of his livelihood there? for otherwise if a person only went his round occasionally in the city to seek for employment, though his general residence were elsewhere, he must always be sued in London ; as may happen to be the case of porters, newspaper-carriers, and the like; which never could have been within the contemplation of the legislature. Now this person may fairly be said to seek his livelihood where he resides with his wife in Middlesex ; for the trade carried on by her agency is his trade; he is liable for the debts contracted in it, and entitled to the profits : but if we were to put the construction on the act now contended for, every tradesman who supplied her with goods in Middlesex would be obliged to sue her husband in London. In the case of Kaye and Freshfield's clerk (a), it did not appear that he carried on business any where else than in their office

(a) 13 East, 161.

in

1812.

in London; yet the Court was not prepared to say that he was within the act.

STEPHENS

against DERRY.

BAYLEY, J. was of the same opinion.

Rule discharged.

consul of the

Friday, Gilbert, Clerk, against Sir Mark Sykes. June 12tb. A wager by THE plaintiff declared in assumpsit upon a wager, and

TH which the defendant re

stated the consideration and promise to be, that if he ceived from the plaintiff 100

would then pay the defendant one hundred guineas, on guineas on the the 31st of May. 1802, the defendant would pay him one 1802, in consi- guinea a day so long as Napoleon Bonaparte should live: deration of paying the plaintiff and then averred the payment to the defendant of the a guinea a-day 100 guineas, which he accepted : and that N. B. was still as long as Napoleon. Bona... living ; of which the defendant had notice; and further, parte (then first

that though the defendant did pay to the plaintiff a guinea French republic) should live: a-day for a long time after the making of the promise which bet arose and after the receipt of the 100 guineas, namely, up to out of a conversation upon the the 25th of December 1804, yet that he had not paid the his coming to a guinea a-day since; and so the plaintiff concluded to his by assassination damage of 22961. at that rate, from the defendant's or otherwise, is breach of promise. void on the grounds of im At the trial at York before Thompson, B. the facts morality and impolicy.

stated in the declaration were proved, together with other circumstances of subsequent confirmation of the wager by the defendant, which in the ultimate consideration of the case left no doubt as to the fact of the defendant's final acceptance of it; though there was material evidence, in the circumstances under which the wager was originally proposed and taken up, which was at the defendant's own table after dinner, and in the opinion of those who

were

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