Matthias Prime Lucas, Esquire, William Thompson, Esquire, Phineas Davis, Joseph Bull, Thomas Lingham, and Charles Eicke, - Plaintiffs in Error; Christopher Nockells, - Defendant in Error
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1833 |
| Date | 01 January 1833 |
| Court | House of Lords |
English Reports Citation: 6 E.R. 980
IN THE HOUSE OF LORDS.
Mews' Dig. xiii. 296, 440; S.C. 7 Bli. N.S. 140; 4 Bing. 729; 10 Bing. 157; 1 M. and P. 783; 2 Y. and J. 304. Distinguished in Sinclair v. Broughton, 1882, L.R. 9 Ind. App. 172; and commented on in Allen v. Flood (1898), A.C. 20.
CLARK & FINNELLY. LUCAS V. NOCKELLS [ 8 3 3] the same source. Dr. Buchanan could not say that he had been a party to the case which had been already decided. It was said that [436) if the pursuer got possession and Dr. Buchanan afterwards claimed against him, and proved a descent from the grandmother, the present pursuer could not set up a deed which he had already re. duced, and it had therefore been argued by Mr. Follett that this would have the effect of giving Dr. Buchanan instant possession. That would be so according to the English law. The difference between the two laws waa on that very point. The reduction of the deed must be again effected, for, as Lord Cringletie observed, That as no man can reduce on death-bed, but the immediate heir, the proceedings in this case would ò necessarily fall, as having been at the instance of a party who had no right to insist on them." A case had been supposed on this subject It was said that if a man was indicted for murder, and was afterwards pardoned the record in the first case would be evidence in another to prove the title of one who founded on that murder a claim of assythraent or compensation. If that would be so, it was certainly different from the law of England, for, in the first place, the parties were not the same, and the object of the indictment and of the action were not the same. Now it ap- peared from the case of Rutherford v. Nisbet [11 Shaw and Dunlop, 123], that in. order that a record might be used as evidence in a second suit, such suit should appear to be instituted between the same parties, and for the same thing as the first The case supposed, therefore, did not bear on the point in issue. In the present instance the pursuer was an utter stranger to Dr. Buchanan, who would treat him as such in any future contest as to the estate. This case must be governed by the general rule that no judgment in one cause could be given in evidence in another, except the second cause was between those who were privies in estate, or who claimed by descent from the parties in (437] the first suit. It did not come within the exceptions to that rule. Three of the Judges in this very case had admitted that the judgment could not be used for or against Dr. Buchanan ; that it would not be con- sidered as yes judicata between him and the person against whom he gave evidence. Dr. Buchanan, therefore, had not such an interest in the event of the suit as would disqualify him from being called as a witness in it. Dr. Buchanan's interest was in fact of that uncertain and contingent kind that it would be impossible for any Court of Justice whatever to allow him afterwards to make use of this record. He should, therefore, move their Lordships that this judgment be reversed. He felt the less re- luctance in coming to this conclusion, because, recollecting the opinions of the Scotch Judges, that this would not be res judicata, the balance of authority in the Court below was in principle against this judgment. Judgment reversed accordingly. (438) ERROR, IN TEE HOUSE OF LORDS. MATTHIAS PRIME LUCAS, Esquire, WILLIAM THOMPSON, Esquire, PHINEAS DAVIS, JOSEPH BULL, THOMAS LINGHAM, and CHARLES EICKE,-- Plaintits in Error; CHRISTOPHER NOCKELLS,ùDefendant in Error. [Mews' Dig. xiii. 296, 440; S.C. 7 Bli. N.S. 140; 4 Bing. 729; 10 Bing. 157 ; 1 M. and P. 783; 2 Y. and J. 301. Distinguished in Sinclair v. Broughton, 1882, L.R. 9 Ind, App. 172; and commented on in Allen v. Flood (1898), A.C. 20.] In an action of trespass, where the defendants justify under a fa., and the plaintiff replies de injuria absque residue calmae, and new assigns, that the defendant eommitted the trespasses on other occasions, and for other purposes than in the plea mentioned, the Judge may leave it to the jury to say whether the execution was bowl fide or colourable. This was a writ of error upon a judgment of the Court of Exchequer Chamber at Westminster, affirming a judgment of the Court of King's Bench in an action of 980 trespass brought in that Court, wherein the Defendant in error was Plaintiff, and the Plaintiffs in error were Defendants. The Plaintiff was sole owner of a ship called the Emerald, on board of which oer .n goods, consisting of furs, oil, etc. had been shipped by one Thornton, at Van Diemen's Land, to be delivered in London to Messrs. Hopley and Lingham, or their assigns, they paying freight, as per charter. [4393 The first count of the declaration stated in substance, that the Defendants on the 1st of January 1823, with force and arms, etc. broke and entered a certain ship of the Plaintiff, then lying in the London Docks, and greatly damaged the same, and seized and took away divers goods and rnerchandizes then in the possession of the Plaintiff on board the said ship, and on which the Plaintiff had a lien for freight to the amount of £6000, and converted the goods to their own. use. In the second count, the Defendants were stated to have taken possession of the ship, and carried off and converted the goods of the Plaintiff. In the third count, the Defendants were charged with carrying off both ship and goods, etc. : in other respects this count was similar to the second. The Defendants pleaded separately : the pleas were in substance the same for all. First, the general issue, not guilty, on which issue was joined. Secondly, Davis and Bull, as bailiffs to Lucas and Thompson, then sheriffs of Middlesex, justified the taking of the goods, etc. by virtue of a writ of fie ri faces, on a judgment obtained in the Court of King's Bench in Michaelmas Term, 3d Geo. 4, against Nathaniel Thornton in the sum of £20,000 and costs, by Randle Hopley, George Augustus Lingham and Thomas Lingham ; that the goods, etc. so taken were the goods of the said Nathaniel Thornton, and were thereupon sold under the said writ ; and that the proceeds thereof were paid to Randle Hopley, George Augustus Lingham and Thomas Lingham, in part satisfaction of their debt. The replication to the last plea, protesting that there was no such judgment or writ, stated, that the Defendants of their own wrong, and without the residue of the cause by them in the said last plea alleged, committed the trespasses in that plea named. On [440] which issue was joined. The plaintiff also newly assigned, that the Defendants committed the tr passes on other occasions, and for other purposes than those mentioned in the pleas ; to which new assignment the Defendants pleaded not guilty. Whereupon issue was joined. The cause was tried before Lord Tenterden, when evidence was produced by the Plaintiff for the purpose of showing, that at the time of the trespass the possession of the ship was in him, and that the goods were not taken by virtue of the writ of execution ; but that the writ was had recourse to merely as a colour, to enable Thomas Lingham and his partners, who were the consignees of the goods, to get possession of and land the goods, as importers, without subjecting themselves to the claim for freight, which would have arisen if they had accepted the goods under the bill of lading ; and that the goods were not sold by the sheriff, but were sold by Thomas Lingham and his partners as the importers. The Lord Chief Justice directed the jury that, in his opinion, the ship remained in the possession of the plaintiff, and that the question for their consideration was, whether the said goods were really and bond fide taken by virtue of the said writ or not; according to which, they would find for the Defendants or Plaintiff. To this direction the counsel for the Defendants tendered a bill of exceptions, on the ground that the question left to the jury was not that which was raised .on the face of the pleadings, for that if fraud was meant to, be imputed it should have been specially replied, and could not be given in evidence under the replication in this ease. The jury found a verdict for the plaintiff far £1950, and 40s. costs. Judgment having been given for the Plaintiff in the Court of King's Bench in Michaelmas Term, 7 Gee. 4, the Defendants brought a writ of error in the Court of 1441] Exchequer Chamber. In Easter Term, 9 Geo. 4, the Court of. Exchequer Chamber unanimously affirmed the judgment of the Court of King's Bench (2 Younge and Jervis, 304. 4 Bing. 729. S.C.). The Defendants then brought the present writ of error, praying that the judgments of the Courts of King's Bench and Exchequer Chamber might be reversed. Mr. Martin for the Plaintiffs in error : The question left to the jury in this case did not arise upon the pleadings. The first point to which the attention of their Lordships should be directed was the clause in the charterparty as to the freight. It would be found by the charterparty that the cargo was to be delivered to the con 981 signees on the arrival of the vessel, but the payment of the freight was not to take place till 10 days afterwards. A stipulation for delay in the payment wag ilICOEM- patible with the assertion o,f a right of lien. That right was one which might be altered by agreement between the parties; Saville v. Campion, per Abbott, C. J. (2 13. and A. 510); Hutton v. Bragg (7 Taunt. 14); and Baia v. Mitchell (4 Camp. 146). There was therefore no lien, and it was clear that these goods were the property of the Defendant in the execution, and were liable to be seized at the suit of a third party. If they were Thornton's goods they were liable to an execution issued against him. Secondly, there wag no evidence whatever applicable...
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