Blyth and Another v Shepherd and Another
| Jurisdiction | England & Wales |
| Judgment Date | 05 May 1842 |
| Date | 05 May 1842 |
| Court | Exchequer |
English Reports Citation: 152 E.R. 323
EXCHEQUER OF PLEAS.
S. C. 1 Dowl. (N. S.) 880; 11 L. J. Ex. 223; 6 Jur. 489. Referred to, Cory v. Burr, 1881, 8 Q. B. D. 317.
blytu and another v. shepherd and another. Exch. of Pleas. May 5, 1842. -Two counts on the same policy of insurance, one alleging a loss by perils of the sea, and the other a loss by barratry, cannot be pleaded together. [S. C. 1 Dowl. (N. S.) 880; 11 L. J. Ex. 223 ; G Jur. 489. Referred to, Cory v. Burr, 1881, 8 Q. B. D. 317.J Assumpsit on a policy of insurance against the defendants, as directors of the Marine Insurance Company. The declaration contained two counts ; the first alleging a loss by perils of the sea, the second a loss by barratry of the master. Rolfe, B., having made an order that one of these counts should be struck out, on the ground that they did not establish a distinct subject-matter of complaint within the meaning of the rule of H. T., 4 Will. 4, R. V. Richards obtained a rule to shew cause why the order should not be set aside, on affidavits which stated, that the settlement of the loss was resisted on the alleged ground that the ship had been wilfully lost (off the island of Borneo) by arrangement and conspiracy between the master and the supercargo; that owing to the absence of witnesses abroad, the plaintiffs were unable to ascertain whether such was the case or not; and that, if they were limited to one count, they might be nonsuited by proof either of barratry, or of loss by perils of the seas, as the case might be. [764] Butt, who appeared to shew cause, objected that the rule was not drawn up on reading the declaration, without which the Court could not judge of the propriety of the order; and cited South Eastern Railway Company v. Sprat (11 Ad. & E. 167; 3 P. & D. 110) He contended also, that the two counts were pleaded together in express violation of the rule, which prohibited two counts on the same policy. 324 TROTT V. SMITH 9M.&W.765. The Court called upon R. V. .Richards, contra. It cannot be necessary to draw up the rule on reading a long declaration, if it appear by affidavit, as ifc does here, what the two counts are. And under the circumstances of this case, unless both counts are allowed, or the plaintiffs are at liberty, under the count for a loss by perils of the sea, to prove barratry, or the defendants are precluded from insisting on barratry as a defence, the,plaintiffs will be under great hardship...
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...3 Camp. 93 ; Magnus v. Buttemer, 11 C. B. 876 ; Soares v. Thornton, 7 Taunt. 627 ; Nutt v. Bourdicu, 1 T. R. 323; Blyth v. Shepherd, 9 M. & W. 763 ; Thompson v. Hopper, 0 12. & B. 172 ; Board of Management of Trim Joint District School v. Kelly, 111 L. T. Hep. 305 ;(1914) A. C. 667 ; Reid v......
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