Paxton and Others against Sir Home Popham and Macarthur
| Jurisdiction | England & Wales |
| Judgment Date | 17 May 1808 |
| Date | 17 May 1808 |
| Court | Court of the King's Bench |
English Reports Citation: 103 E.R. 628
IN THE COURT OF KING'S BENCH.
paxton and others agaiwst sir home popham and macarthur. Tuesday, May 17th, 1808. To debt on bond conditioned for the payment of a sum of money, which the condition stated to have been taken up, borrowed, and received by the defendants of the plaintiffs at respondentia interest, secured by a cargo of goods shipped from Calcutta to Ostend ; it is competent to the defendant to plead that the bond was given to secure the price of goods sold by the plaintiffs to the defendants in the East Indies, and illegally prepared by the plaintiffs for shipment from thence to beyond the Cape of Good Hope, without the licence of the East India Company; without proceeding to state formally, that the condition was colourable, to conceal the illegality of the transaction, and to negative that the bond was given for money taken up, borrowed, and received, &c. For the statement in the plea is rather explanatory of, than absolutely inconsistent with, the transaction stated in the condition of the bond; but if it were inconsistent with it, the plea would still be good in this form. The plaintiffs declared in debt, in their first count, upon a bond executed by the defendants (therein described to be then of Calcutta, and the defendant Sir H. P. also described to be part owner of the ship and cargo of the " Stadt Van Weenen,") dated the 1st of January 1789, at Calcutta, whereby they bound themselves to the plaintiffs, described as of London, in the penal sum of 65001. with this agreement and condition : that whereas the defendant bad taken up, borrowed and received of the plaintiffs the full and just sum of 32501. which was to run at respondentia on the ship " Stadt Van Weenen " from Calcutta to Ostend, &c. at the rate of 101. per cent, premium for the voyage, if performed in nine months; in consideration of which the usual risks of the (a) Pollex. 63. 9 EAST, 409. PAXTON V. POPHAM 629 seas, &c. to be on account of the plaintiffs : and for the further security of the plaintiffs, the defendants had agreed to mortgage and assign over to them the several goods laden or to be laden on the ship during the voyage, until payment of the principal and premium of that bond : the condition of the bond was [409] that if the defendants should pay to the plaintiffs the full amount of the bond and premium in London at the end of nine months after the safe arrival of the ship at Ostend, or, in case she" was lost, the customary average on the salvage, then the bond was to be void. The plaintiffs then averred that the ship afterwards sailed with a cargo of goods from Calcutta to Ostend, and on the 25th of August 1789, within the nine months, arrived at Ostend, whereby the defendants became liable to pay in London, at the end of nine months after such her arrival, the full amount of the bond and premium amounting to 35751.: and then alleged a breach in nonpayment of that sum on demand. The second count was on a bond of the defendant's, dated at London on the 23d of March 1790 (describing the defendant Popham as of Ostend, and the other defendant as late of Ostend, then of London; and describing the plaintiffs as merchants of London ;) with this condition; reciting that the defendants had given, at Calcutta on the 1st of January 1789, sundry bills and a respondentia bond in favour of the plaintiffs, of which there remained unpaid a bill of exchange drawn by MacArthur on Marsh and Creed of London (not accepted) for 10411. 13s. 4d. and the respondentia bond (mentioned in the first count) for 32501. and the premium, &c.; and that the defendants, desirous of making good those engagements, had taken steps for conveying the property of such part of 44 bales of piece goods then in possession of Gregorie and Co. of Osteud, as had not been paid to the defendants, exclusive of 30001. previously assigned to Charnoek and Co. of Ostend; so that the plaintiffs might receive remittances from Gregorie and Co. for the said goods, deducting the 30001. and 8001. already paid to the defendant MacArthur; but that being well aware that the said proceeds would not in all probability be adequate to the full dis-[410]-charge of the said unaccepted bill and the respondentia bond; the defendants thereby covenanted jointly and severally to pay all deficiencies that might be found in realizing the remittances so directed to be made to the plaintiffs: this bond was therefore conditioned to make good such deficiencies. The plaintiffs then averred that on the 29th of January 1792 they received from Gregorie and Co. on account of the said goods a remittance of 20001. which was inadequate by 40211. 13s. to the full discharge of the said unaccepted bill and respondentia bond; whereby the defendants became bound to make good the deficiency: and so alleged a breach in nonpayment of the last mentioned sum. There was a third special count, and other common counts, not material to be stated. The defendants pleaded non est faetum to each of the three special counts, and nil debent to the rest. 3dly, that the writings obligatory in the second and third counts are the same, and that Gregorie and Co. made remittances to the plaintiffs on account of the proceeds of the goods there mentioned, to the amount of all the monies due. 4thly, as to the first, second, and third counts, that the writing obligatory in the first count mentioned, and the respondentia bond in the conditions of the writing obligatory in the second and third counts mentioned are the same; and that the plaintiffs and defendants before and at the-time of the sale of the goods after mentioned were subjects of the King; and that before the making of the said writing obligatory, viz. on the 1st of December 1788, it was unlawfully agreed between the defendants and the house of Paxton and Co. of which firm one of the present plaintiffs was one, that Paxton and Co. should illegally, and against the statute, and without the licence or authority of the East India Company, sell to tha defendants, [411] and deliver in the East Indies beyond the Cape of Good Hope^ divers goods for the purpose and to the intent that the said goods might illegally and without such licence be conveyed from the East Indies for the purposes of trade : and that Paxton and Co. in pursuance of that agreement afterwards sold and delivered the said goods accordingly; they well knowing.for what purpose and with what intent the goods had been bought: and that they assisted the defendants in preparing the goods for carriage upon such illegal design and purpose. That the bond in the first count, and the bill of exchange...
To continue reading
Request your trial
-
Royal British Bank v Turquand
...BANK V. TURQUAND 6 EL. & K, 331. on the face of the bond or condition, and infers, from Collins v. Blantern (e) and Paxton v. Popharn (9 East, 408), that the plea should allege facts shewing illegality. But in those cases it was admitted that the bond was duly executed, and the plea was by ......
-
Gleadow and Others, Executors of Gleadow, v Atkin and Another, Executors of Atkin
...recover it from the plaintiff's in another action, and the law makes this a defence, to prevent a circuity of actions. Bishop v. ffnyward (9 East, 408), Teague, v. Hubbanl (8 B. & C. 345; 2 M. & R. 69). In effect, the plea admits the bond and avoids it, and it was clearly competent for the ......
-
O'Brien v Dillon
...v. BlanternUNK 2 Wils. 341; S. C., 1 Sm. L. C. 263. Bull v. ChapmanENR 8 Exch. 444; S. C., 22 Law Jour., Exch., 257. Paxton v. PophamENR 9 East, 408. Cannan v. BryceENR 3 B. & Ald. 179. Levy v. YatesENR 8 Ad. & El. 129. Jones v. WaiteENR 5 Bing., N. C., 341. Dean v. JamesENR 1 Ad. & El. 809......
-
Paxton and Others against Sir Home Popham and Another
...and the plaintiff make default; now shall the plaintiff be nonsuit, and shall not be received after," &c. (a)1 2 H. Blac. 161, 2. (of 9 East, 408, 424. " - (a)3 11 Eep. 40. JO EAST, 368. (/KELLY V. SPARKLES 815 "And this is not like other actions where, the plaintiff has once judgment to re......