Nelson v Couch
| Jurisdiction | England & Wales |
| Judgment Date | 23 June 1863 |
| Date | 23 June 1863 |
| Court | Court of Common Pleas |
English Reports Citation: 143 E.R. 721
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 33 L. J. C. P. 46; 8 L. T. 577, 10 Jur. N. S. 366, 11 W. R. 964. Referred to The Sylph, 1867 L. R. 2 A. & E. 29. See Gibbs v. cruikshank, 1873, L. R. 8 C. P. 460. Explained, Brunsden v. Humphrey, 1884, 14 Q. B. D. 151. Principle applied, Midland Railway v. Martin, [1893] 2 Q. B. 174.
nelson and othkks v. couch and othkrs. .June 23rd, 1863. [H. C. 33 L. J. C. P. 46 ; K L. T. 577, 10 Jur. \T. S. 36G, 11 W. E. 964. Referred to, The Sylph, 1807, L. R. 2 A. & K. 29. See OiUta v. Cruik.itu.mk, 1873, L. R, 8 C. P. 46'0. Explained, Jinmxiltin v. Hiim/i/my, 1884, 14 Q. U. I). 151. Principle applied, Midland Euilway v. Martin, [1893] 2 Q. B. 174.] To constitute a good plea of res judicata, it must be shewn that the former suit was one in which the plaintiff might have recovered precisely that which he seeks to recover in the second.-Where, therefore, the plaintiffs had under a decree of the Admiralty court in a suit for a collision obtained the whole proceeds of the sale of the defendants' vessel, -Held, that such recovery was no bar to a subsequent action in a court of common law, the amount so recovered in the Admiralty court being insufficient to cover the damage the plaintiffs had sustained. This was an action to recover damages against the defendants for running clown the plaintiffs' vessel on the high seas. The declaration stated that, before and at the time of the grievance thereinafter mentioned, the plaintiffs were lawfully possessed of a certain ship of great value, to wit, the " Peri," then lawfully being at sea, to wit, in the English Channel, and the defendants were also then possessed of a certain ship, to wit, the " Leo," in the said English Channel, and then had the oare, direction, and management of the same; yet that the defendants, not regarding their duty in that behalf, whilst the said ship of the plaintiffs so was in the English Channel aforesaid, took so little and such bad care of, and so carelessly, negligently, and unskilfully navigated, managed, governed, and directed the said ship of them the defendants, that the said ship, by and through the carelessness, misdirection, mismanagement, negligence, and improper conduct of the defendants [100] and their servants in that behalf, then with great force and violence ran foul of and struck against the said ship of the plaintiffs, and thereby then sank and swamped the same; and by means of the premises the .said ship of the plaintiffs, together with all her cargo, tackle, apparel, and other furniture, goods, chattels, and effects, then on board thereof, became and was wholly lost to the plaintiff's. Claim, 15001. Second plea,-that, before the commencement of this action, the plaintiff's did in the high court of Admiralty of England, then lawfully having jurisdiction in that behalf, duly institute a cause against the defendants' said ship "Leo" and the freight thereof, for and in respect of the matters complained of in the declaration, and for the same causes of action therein named ; and thereupon the plaintiffs caused a warrant to be duly issued out of the said court, commanding the marshal of the said court and all and singular his substitutes to arrest the said ship and freight, and to keep the same under safe arrest until he or they should receive further orders, and to cite all persons who had or claimed to have any right, title, or interest in the ship or freight, to enter within six days from the service thereof (exclusive of the day of such service) in the registry of the said court an appearance in the said cause, and further commanding the said marshal and all and singular his substitutes to warn all the said persona that, if they did not enter an appearance as aforesaid, the judge of the said court would proceed to determine the said cause, and to make such order therein as to him should seem right: that the said marshal duly arrested the said ship and freight, and executed the said warrant according to the tenor and purport thereof: that an appearance was duly entered in the said cause by and on behalf of the owners of the cargo of the said ship, and the sum of 1871. f s Id., being [101] the amount of the freight of the said ship, was paid into the registry of the said court: that no appearance was entered in the said cause by or on behalf of the defendants, the owners of the said ship; and thereupon such proceedings were lawfully had by the plaintiffs in (a) At the trial the plaintiff obtained a verdict, which there was no attempt to disturb. 7J32 NELSON V. COUCH 15 C. B. (N. S.) 102. the said court, that the said ship, with her tackle, apparel, and furniture, was lawfully decreed by the said court to be sold by public auction, and the proceeds thereof to be paid into the registry of the said court; and the said ship, with her tackle, apparel, and furniture, was so sold by public auction under and by virtue of the said decree for the sum 6f 8301., and the said sum was paid into the registry of the said court; and thereupon the said cause came on for hearing before the judge of the said court, and the said judge pronounced for the damage proceeded for, condemned the proceeds of the said vessel "Leo" and freight therein, and in costs, and directed the sum of 9571. 4s. 6d., being the balance of the said proceeds of the said sale and the amount of the said freight (after payment of the lawful expenses of the...
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