Boson v Sandford and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1794 |
| Date | 01 January 1794 |
| Court | Court of the King's Bench |
English Reports Citation: 87 E.R. 212
COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS, EXCHEQUER.
Over-ruled, Goveth v. Radnidge, 1802, 3 East, 68. Upheld, Powell v. Layton, 1806, 2 Bos. & P. (N. R.) 371. See Kendall v. Hamilton, 1879, 4 App. Cas. 543.
212 MICHAELMAS TERM, 2 WILLIAM AND MARY. IN B. E. 3 MOD. 322. case 198. boson against sa.ndford. Hilary Term, 1 & 2 Jac. 2, Eoll 302. [Over-ruled, Ooveth v. Radnidrje, 1802, 3 East, 68, Upheld, Powell v. Lay ton, 1806, 2 Bos. & P. (N. R.) 371. See Kendall v. Hamilton, 1879, 4 App. Cas. 543.] Where there are several proprietors of a vessel, and goods are damnified by carriage, the action must be brought against all the proprietors; and if it be brought against one proprietor only, he need not plead the jointure in abatement, but may take advantage of it by evidence on the general issue. Seil quaere.-S. C. 1 Show. 29, 101. S. C. 2 Show. 478. S. C. Salk. 440. S. C. 3 Salk. 203, 258. S. C. Comb. 116. S. C. Cartb. 58. S. C. Skin. 278. S. C. 1 Trem. 499. S. C. Molloy, 312. 1 Eoll. Abr. 2. Hob. 18. 1 Vent, 190, 238. 2 Vent. 75. 5 Mod. 92. 2 Lev. 69. 1 Salk. 282. Allen, 93. 1 Vern. 297, 465. 2 Vern. 643. 8 Mod. 166, 177, 242, 295, 322. 9 Mod. 89. 10 Mod. 164. 11 Mod. 181. 12 Mod. 101, 446. 1 Ld. Bay. 127. 1 Stra. 128, 420, 503, 553. 2 Stra. 890, 910, 1045. 1 Wils. 281. 4 Burr. 2298. 2 Bl. Rep. 948. Cowp. 636. 2 Term Rep. 282. 4 Term Rep. 581. The plaintiff declared, that the defendant and seven other persona were proprietors of a vessel, in which they used to carry goods for a reasonable hire from port to port; that he had loaded the said vessel with boards, which were agreed to be safely transported from London to Topsham; and that the defendant by neglect suffered him to be damnified, &c. Upon not guilty pleaded a special verdict was found, the substance whereof was as follows : The plaintiff loaded the ship with boards, of which ship the defendant arid seven Other persons were proprietors; that the said ship usually carried goods for hire; that the plaintiff delivered the goods to Daniel Hull, who was master of the vessel, and that they were loaded therein, but that none of the proprietors were present; that there was no actual contract between the plaintiff and the proprietors, or any negligence in them, but the boards were damnified by the neglect of the said master, &c. The questions upon this special verdict were two : First, whether this action would lie against the defendant alone, as one of the proprietors; or whether it must be brought against them all 1 Secondly, if the action ought to be brought against them all, then not guilty was not a proper plea, because the defendant ought to have pleaded in abatement that the rest of the owners super se susceperunt sinml cum the defendant, absqiie hoc quod he super se sitscepit tanthm. It was argued for the plaintiff, that the action may be well brought against any aingle person of the proprietors, because it is grounded upon a tort as well as upon a contract, which, in this case, is only an inducement to the action, and therefore the plaintiff has liberty to bring it either the one way or the other, for it is both joint and several, [322] So it is in trover, where a man declares that he was possessed of such goods, that the defendant found them and promised to deliver them, but converted them to his own use; the contract is but inducement, for the cause of action arises upon the conversion. This is a remedy given by the construction of the law, the demise, and by consequence were not parcel of the manor tempore quo, &c.; therefore the plaintiff ought to have traversed that the locus in quo was parcel of the manor of Arkey, tempore quo, &c.-Secondly, that the seisin in dominico of the place where was not traversable ; for it is not expressly alledged in the couusance that Sir Peter Warburton was seised in dominico of the place where, but only by consequence as it was parcel of the manor of Arkey, of which he was so seised ; therefore, if he had traversed the seisin, it must have been of all the manor.-Thirdly, that the default of a necessary traverse is substance, and not aided by a general demurrer.-Fourthly, on the point of occii/pancy, Holt, Chief Justice, held that the 29 Car. 2, c. 3, does not take away all occupancy, but transfers it to executors; and that the lessor of the plaintiff was executor de son tort by his entry on the lands, because the statute has made it assets.-S. C. Holt, 539. S. C. 3 Salk. 355, accord. 3 MOD. 323. MICHAELMAS TERM, 2 WILLIAM AND MARY. IN B. R. 213 and if so, it must be certain and effectual to all intents; and therefore it has been ruled (a) in an action brought against a common carrier upon the assumpsit in law, and likewise upon the tort, that the declaration was ill; and though the plaintiff' had a verdict, yet the judgment was arrested, because he had declared both ways. Agreeable to this was that judgment which was given upon the statute of 2 Edw. 3, c. 13, for not setting out of tithes, in an action of debt brought against two tenants in common; it happened that one of them set out the tithes and the other carried them away, and because the action was brought against both it was held to be ill (a), for it lies only against him who did the wrong. Secondly, if the action ought to be brought against all, then the defendant should have taken advantage of it by pleading, and to have shewed who were the proprietors with himself; for it is impossible for the plaintiff to know who they are; and for this reason the plea is not good. E contra. The plaintiff ought to have brought this action either against the master or all the proprietors : it is true, if this had been only an action of a simple trespass, he might have brought it against all or one; but this sounds not only in a wrong, but it is in breach of a covenant or duty, and so ought to be commenced against all of them, as common carriers. Now the great reason why all are liable to an action is, because they all have a reward for the hire of the vessel (b); and it seems very unreasonable that one should bear the burthen, and the rest run away with the profit (e). The principal case in Hutton ((/) is an authority directly to this purpose, though it was otherwise quoted by the plaintiff's counsel; it was debt upon the statute of 2 Edw. 6, c. 13, brought against one lessee for not setting out of tithes, and it appeared upon the evidence that two were jointly possessed of the term, and for that reason it was held that the action would not lie against one alone. Secondly, the defendant ought not to have pleaded in abatement that the rest of the proprietors super se susceperunt timid cum the defendant, &c. because such a plea would not have been good here; for he shall never be compelled to plead in abatement, either in [323] debt or contract, but in one single case (a); and that is, where two are bound jointly, and one is sued, lie may plead in abatement, but cannot aay non est factum, for the bond is his deed, since each of them have scaled it. Afterwards, in Hilary term, the defendant had judgment, that the action ought to be brought against all the part-owners, because they have all an equal benefit, and the ground of the action is upon a trust reposed in all, and every trust supposes a contract; arid in all cases grounded upon contracts, the parties who are privies must be joined in the action (b). The master of the ship is no more than a servant to the (a) Mathews v. Hopkins, 1 Sid. 244; see also Bage v. Brumwell, 3 Lev. 99, and 1 Lev. 101. Skin. 6G, pi. 12. Salk. 10. 5 Mod. 90. Ld. Hay. 58. 4 Ike. Abr. 12. (a) Sir John Gemini's case, cited in the case of Cole v. IVilks, Hutt. 121, 122. (b) But by 7 Geo. 2, c. 15, "The owner or owners shall not be subject or liable to answer for, or make good any loss or damage by reason of any embezzlement, secreting, or making away with (by...
To continue reading
Request your trial
-
Cabell v Vaughan
...upon the ground of a supposed variance between the contract laid and that which was proved. Garth. 58, Boson v. Sandford. ò2 Salk 440. 3 Mod. 321, S. C. 6 T. R. 329, Sheppard v. Baillie. However, in Rice v. Shute, 5 Burr. 2611, it was adjudged, that if an action bo brought against one partn......
-
King against Dilliston
...this ought to have been pleaded in abatement; but the rest of the Court held it might be taken advantage of on the general issue. S. C. 3 Mod. 321. S. C. Freem. 500. But see Cro. Eliz. 355. Lutw. 696. Salk. 440. 2 Mod. 280. 1 Com. Dig. " Abatement" (F. 8). 1 SHOW. K. B. 32. TRINITY TERM, 1 ......
-
Boson v Sandford et Al'
...English Reports Citation: 89 E.R. 374 THE COURTS OF KING'S BENCH AND COMMON PLEAS Boson and Sandford et Al' S. C. 3 Mod. 321; 87 E. R. 212 (with note). case 673. boson v. sandford et al'. [S. C. 3 Mod. 321; 87 E. R. 212 (with note).] S. C. 2 Salk. 440. 3 Salk. 203. 3 Lev. 258. Garth. 58. Sk......
-
Dalston against Janson
...case for over-riding, and not delivering a horse according to a contract, and also (a) Winch, 29. See also 1 Term Rep. 31. (b) 1 Show. 29. 3 Mod. 321. 3 Lev. 258. 2 Salk. 440. (c) Bird v. Snell, Hob. 249. 1 Brownl. 235. (d) 2 Lev. 101. 3 Lev. 99. 8 MOD. 93. TRINITY TEEM, 7 WILL. 3. IN B. R.......