Place v Potts and Another
|England & Wales
|17 June 1854
|17 June 1854
English Reports Citation: 155 E.R. 1536
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S C 22 L J Ex 269, 17 Jur 1168 affirmed, 10 Ex 370
place / potts and another May 7, 1853 -It is a good plea to an action for freight, in bar of the furthei maintenance of the action, that a certain sum of money had been borrowed on a bottomry bond , that the amount had not been paid , and that thereupon, aftei the commencement of the action, proceedings had been instituted in the Court of Admiralty for the recoveiy thereof, and that the defendants had, in puisuance of a monition issued out of that Court, paid the freight into the legistry of that Court, although the amount of the fieight exceeds that due upon the bottomry bond -Adeclaiation in air action for freight stated, that " the defendants are indebted to the plaintiff for fr eight "foi the conveyance of goods, &c -Held, on general demurrer, that the declaration was bad, for not following the form given by the schedule to the Common Law Procedure Act, which contains the words " foi money payable by the defendant to the plaintiff," and for not shewing any debt due hi proesenti [S C '22 L J Ex 269, 17 Jur 1168 affirmed, 10 Ex 370] The declaration stated, that" the defendants are indebted to the plaintiff foi ft eight, for the conveyance by the plaintiff for the defendants, at their request, of goods in the ship 'Brilliant', and the plaintiff claims the sum of 521 7s 5d " The defendants pleaded, secondly, as to the sum of 3861 17s 9d , paicel of the money claimed, that before the earning or accruing due of the said freight, and before the defendants became indebted in the said 3861 17s 9d , paicel &c , the said goods so conveyed in the said ship, aa therein mentioned, weie by the defendants shipped in and  on board the said ship in paits beyond the seas, to wit, at Quebec, to be conveyed by the plaintiff in the said ship, for freight and reward to the plaintiff in that behalf, on a voyage from Quebec aforesaid to Sundeiland in this kingdom, and there delivered by the plaintiff for the defendants, the clangers and accidents of the sea^ and navigation of whatsoever natute or kind excepted , and that, whilst the said ship was in parts beyond the seas, to wit, at Quebec aforesaid, and before the commencement of the said voyage, it became and was absolutely necessary that one Thomas Place, the master of the said ship, aa agent for and on behalf of the plaintiff and other the owner or owners of the sairl ship, should borrow a ceitain sum of money for the use of the said ship and the purposes of the said voyage, upon the credit of the said ship and the freight, upon a bottomry bond The plea then set out a bottomry bond in the usual form, pledging the ship and freight to orre George Bums Symes for the sum of 2861 16s 6d , and then proceeded to state, that the plaintiff' did riot, nor did the said T Place, nor did any other person, pay to the said G B Symes the sai(J sum of 2861 16s 6d , and the same remains wholly due arid unpaid, and, by reaon of the nonpayment of the same, the said G B Symes, in due form of law, after the1 commencement of this action, took proceedings and made suit in the High Court of Her Majesty's Admiralty of England against the said ship and fieight, to recover payjment of thie said sum, and afterwards a monition and process issued out of the sai4 Court of Admiralty under the Great Seal thereof, directed to all and singulai herj Majesty's I vice-admirals, justices of the peace, mayors, sheriffs, bailitfs, marshals, constables, and to all othet hei Majesty's officers, ministers, and others, as well within liberties and franchises as without, and whereby, after reciting, amongst other things, that the Right Hon Stephen Lushington, Doctoi of Laws, Lieutenant of the said High Court of Admiralty, and in the s,ame Court offi--cial pnncipal, and commissary-general, and special and pieaideut and judge thereof, lawfully constituted 8 EX 708 PLACE V POTTS 1537 and appointed, in a ceitain business moved and prosecuted befote him in the said Court on behalf of T H Holdeiness of Li vet pool, in the county of Lancaster, merchant, the lawfully constituted attorney of the said G B Syines, the legal holdei of the gaid deed or bottomry bond on the said ship and the freight, flue foi the transportation Of the said goods lately laden theiein, rightly and duly proceeding on the day oE the date of the said monition or process, at the petition of the proctor of the said T H Holderness, who alleged the said freight to be in the possession or power of the defendants, decreed monition against the plaintiff and T Fordyce, and the defendants, to the effect and in mannei and foim theiernaftei mentioned (justice so requiring), our Lady the Queen drcl, by the said monition and process, strictly charge and command them jointly and severally, that they should omit not by reason of any libeity or franchise, but that they should momsh and cite, or cause to be monished and cited, peremptorily and peisonally, the said plaintiff and T Fordyce, that, on or before the bye-day after Hilary Teim, to wit, Tuesday, the 15th of Febiuaiy, 1853, they should bring or cause to be brought into the legistry of the said Court, srtuate in the paush of St Gregory, neai Doctors Commons, London, the sum of 1571 6s fid , the balance of proceeds arising from the sale of the wreck and stores of the said ship, to abide the judgment of the Couit conceirnng the said deed 01 bottomiy bond, or appeat before the said Judge of the said Court, or his surrogate, to an action to be enteied on behalf of the said T H Holderness against the said balance of proceeds and freight in respect of the said deed 01 bottomry bond, and give bail to answei such action, so far as regards such balance of pioceeds, or to appear and shew good and sufficient cause concludent in law why they should not bung the said sum into the said registry, or  why they should not give such bad, and further to do and receive as unto law and justice should appertain, uridei pain of the law and contempt thereof , and further, that they monish and cite, or cause to be monished and cited, peieraptorily and personally, the defendants, whom also our said Lady the Queen morushed and cited by the said monition and process, that on or before the said day they should bring or cause to be brought into the said registry the aforesard money, due for the said freight so earned as aforesaid, to abide the judgment of the said Couit concaimtig the said deed or bottomry bond, together with an account of the sard freight duly verified, or appear befote the Judge of the said Court or his surrogate, and shew good and sufficient cause concludent in law why they should not bring such sum into the said registry, and furthei to do and receive as unto law and justice should appertain, under pain of the law and contempt theieof, and that they duly certify to her Majesty's aforesaid Judge ot his surrogate what they should do in the piemises, together with the said monition or process, and...
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