Lucas and Others v Nockelis
| Jurisdiction | England & Wales |
| Judgment Date | 25 June 1833 |
| Date | 25 June 1833 |
| Court | House of Lords |
English Reports Citation: 131 E.R. 863
IN THE HOUSE OF LORDS
S. C. 7 Bligh (N. S.), 140; 5E. R. 723 (with note); 1 Cl. & F. 438; 6E. R. 980 (with note).
[157] cases argued and determined in the court of common pleas, and other courts, in michaelmas term and the vacation preceding, in the fourth year of the eeign of william IV. (IN THE HOUSE OF LORDS.) lucas and others v. nockells. June 25, 1833. [S. C. 7 Bligh (N. S.), HO; 5 E. E. 723 (with note); 1 Cl. & F. 438; 6 E. E. 980 (with note).] A virtute cujus is traversable, if it involve matter of fact. Therefore, where Defendants justified a.o entry into Plaintiff's ship, a seizure of goods there, and sale of 864 LUCAS V. NOCK.ELLS 10 BING. 158 them, by virtue of a fi. fa. against the goods of A. B.; and Plaintiff, admitting the fi. fa., replied, de injuria absque residue causes; Held, that under this issue he might shew that Defendants, although in possession of a fi. fa., did not seize in order to ': levy, and did not levy money by sale under the writ; but, being consignees of the goods, merely exhibited the writ, in order to defeat a claim of the plaintiff for freight, and then sold the goods in the character of importers. Nockells, the Plaintiff below, owner of the ship "Emerald," agreed by charter-party with Thornton to take any goods on board which Thornton should [158] ship, and convey them from Van Diemen's Land to London. Thornton covenanted to pay freight at the rate of 15s. per ton per month, ten days after the delivery of the cargo; and then put on board a cargo, and consigned it to certain of the Defendants below, by a bill of lading, under which they or their assigns were to pay freight as per charter. Thornton being indebted to these Defendants, they, on the arrival of the ship in London, refused to enter into any engagement for the payment of the freight, but sued out against the goods of Thornton a writ of fi. fa.; and having, in company with the sheriff's officer, entered the Plaintiff's ship against his will, exhibited to the captain the sheriff's warrant to seize; staid in the ship four days; and forcibly took the cargo away. The sheriff's officer did not sell under the fi. fa.; but the before-mentioned Defendants, having made affidavit at the Custom House, that they had landed the cargo as importers, sold them by auction for 19501. The Plaintiff below sued them, in trespass, together with the sheriff and his officer, for entering the ship, and taking the cargo; and to a justification by the Defendants below, under the writ of fi. fa., replied, de injurifi,, absque residue causes; he also new assigned, that the Defendants took the goods for other purposes than those mentioned in the plea. Upon this state of facts and pleadings, Lord Tenterden C. J. left it to the jury to say, whether the goods were bona fide taken under the execution, or whether the execution was resorted to as a colour to enable the Defendants to get possession of and land the cargo as importers, without subjecting themselves to the claim for freight that might have arisen if they had accepted them under the bill of lading. The jury found for the Plaintiff below, damages 19501. A bill of exceptions to the Chief Justice's direction was tendered; judgment was given for,the Plaintiff below [159] in the Court of King's Bench, in Michaelmas term, 7 G. 4; and upon error to the Exchequer Chamber, that judgment was confirmed (a). The ca.se was then carried to the House of Lords; where it was contended, that the decision of the Courts below was erroneous for the following reasons:- 1st. Because the Defendants below did no act which they were not authorized by law to do; and because it would be dangerous to allow the motives of reasons of parties to be called in question upon speculative grounds, where the acts done by them are authorized by law. 2d. Because the question submitted to the jury did not arise on the pleadings, and was not supported by the evidence. 3d. Because the fact that the Plaintiff below had no lien on the cargo, was a material point to guide the jury in their verdict, especially as to the amount of the damage; and this fact was not submitted to their consideration. 4th. Because there was no ground upon which the verdict ought to have been given on the new assignment. 5th. Because the sheriff and his bailiffs, as public officers^ could not have acted otherwise than they did; and, as against them, the verdict was not sustainable on the ground presented to the jury. The opinion of, the Judges was then requested by the House, on the following question :- "An action of trespass being brought against a sheriff and another person for entering the Plaintiff's house, and seizing and taking away his goods, on divers days and times, the sheriff pleaded a justification under a writ of fi. fa. issued against the goods of A. B. at the suit of the other Defendant, averring that goods of A. B. were in the house, and that he entered the house to seize, and did seize and sell them under the writ; [160] the other Defendant pleaded the same plea, with the addition of the judgment recovered by himself against A. B. The Plaintiff replied, admitting the (a) See the facts and arguments fully stated, 4 Bingh, 729. lOBINCt.161. LUCAS V. NOCKELLS 865 ..judgment and writ, and traversing the residue of the cause; and also added anew assignment, at other times, on . other occasions, and for other purposes; and also alleging excess. At the trial, it appeared that the sheriff had made a warrant to his officers, who entered the house, and continued therein until all the goods were removed, which occupied three or four days, and that the sheriff was indemnified by the other Defendant. ; "Was it competent by law, on these pleadings, for the Plaintiff to shew at the trial, in maintenance of his action, that the acts of the Defendants were not really done under or in execution of the writ, but for another purpose, under another claim; and that the writ and the proceedings under it were a mere colour and contrivance to get possession of the goods 1" bosanquet J. In this case it appears to me that the new assignment may be laid out of consideration. The question upon which my humble opinion turns is this, whether the evidence in the case supposed by your Lordships relates to a material allegation contained in the plea, and denied by the replication. The effect of the replication is to put in issue every material fact, except the judgment and writ of fi. fa., which constitutes any part of the cause for which the Defendant alleges that he committed the acts professed to be justified. Whatever fact the Plaintiff might consistently with the rules of law have traversed separately, he denies by the general form of replication, which he is allowed to employ in such case as this. It may be assumed that, in the action shortly described in your Lordships' question, the declaration would state that the Defendant broke and entered the Plaintiff's house, seized, took, and carried away his goods, and converted and disposed [161] of them to his own use. And that the plea would profess to justify the entry of the house, and the seizing, taking, and carrying away and converting and disposing of the goods to the Defendant's use, and for that purpose would allege that goods liable to be taken in execution under and by virtue of the writ and warrant to the bailiff, were in the house; that under and by virtue of the writ and warrant the bailiff entered the house in order to seize and take, and did seize and take, the goods in execution; and afterwards and before the return of the writ, sold the goods; and by sale thereof made and levied a sum of money in satisfaction of the debt and damages. Such is in fact the form of the pleadings in the case which was argued at your Lordships' bar. The plea, therefore, would profess to allege, by way of an excuse for the entry, seizure, and conversion of the goods, that they were taken in execution, and a levy made thereof in satisfaction of a debt. If this allegation contain matter of fact, it is traversable; if it be merely a consequence of law, it is not traversable; and whether the evidence mentioned in the question ought to be submitted to the jury must depend, as it appears to me, upon this point-viz., whether the allegation is to be viewed in the one light or the other. Whether the writ authorized the Defendants to do any particular act, alleged to have been done, is matter of law, and cannot be traversed; but whether the Defendants actually did any particular act, which they allege to have been done, is a matter of fact, and may be denied. It has been truly said that, if it be alleged that a particular act was done by virtue of a certain writ, the doing of such act by virtue of the writ is not traversable, because it is an inference of law; but if it -be material to shew whether the act itself was done or not, it will not be the less traversable, because it is alleged to have been done by virtue of a certain writ. It would not be competent to the plaintiff to insist, under the general denial contained [162] in his replication, or under any more special traverse, that the writ in question did not authorize the bailiffs to take in execution the goods of the debtor, and to seize and sell them in satisfaction of the debt, as they have alleged: but whether they did really take the goods in execution and deal with them as alleged in the plea, or seized them for purposes foreign to the execution, and disposed of them in some manner other than by way of sale in satisfaction of the debt, was, as it appears to me, a matter of fact, put in issue by the replication, and to which the evidence in question was applicable. In the case of Seal v, Simpson (1 Ld. Kaym. 410), Powell J. said he confessed that generally the virtue of a writ is matter of inference of law only, and then not traversable; but matter of fact may depend upon it, and then it is traversable...
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