Simeon Warburg against William Owen Tucker
| Jurisdiction | England & Wales |
| Judgment Date | 16 June 1858 |
| Date | 16 June 1858 |
| Court | Exchequer |
English Reports Citation: 120 E.R. 750
IN THE EXCHEQUER CHAMBER.
S. C. 28 L. J. Q. B. 56; 4 Jur. N. S. 1142. Applied, Mitcalfe v. Hanson, 1866, L. R. 1 H. L. 250; Betteley v. Stainsby, 1867, L. R. 2 C. P. 572; Cary v. Dawson, 1869, L. R. 4 Q. B. 572. Approved, Kent v. Thomas, 1871, L. R. 6 Ex. 316. Applied, In re Kelson, 1871, L. R. 7 Ch. 43. Considered, Deering v. Bank of Ireland, 1886, 12 App. Cas. 24.
[914] in the exchequer chamber. simeon warburg against william owen tucker. Wednesday, June 16th, 1858. f}2.IK,8,3"3 ^Defendant being indebted to plaintiff, assigned to him, us security, an insurance on defendant's life, and an insurance on the life of defendant's wife, and covenanted to pay the premiums. Plaintiff sued defendant on this covenant, assigning as a breach that defendant had not paid the premiums. Defendant, to this breach, pleaded his bankruptcy and certificate, averring that they had occurred after the execution of the deed, but not that they had occurred after the breaches had taken place.-Held, on demurrer to the plea, by the Court of Exchequer Chamber, affirming the judgment of the Court of Queen's Bench, that the plea gave no answer to the declaration, the claim not being in respect of, nor a liability to pay money upon, a contingency, within sect. 178 of The Bankrupt Law Consolidation Act, 1849, 12 & 13 Viet. c. 106. [S. C. 28 L. J. Q. B. 56; 4 Jur. N. S. 1142. Applied, Mitcalfe v. Hanson, 1866, L. R. 1 H. L. 250; Betteley v. Stainsby, 1867, L. R. 2 C. P. 572 ; Gary v. Damon, 1869, L, E. 4 Q. B. 572. Approved, Kent v. Thomas, 1871, L. Li. 6 Ex. 316. Applied, In re Kelson, 1871, L. E. 7 Ch. 43. Considered, Deering v. Sank of Ireland, 1886, 12 App. Cas. 24.] - The declaration was dated 30th April, 1856. The first count charged that, on 29th May 1854, by a deed between plaintiff of one part and defendant of the other part, after reciting that defendant was entitled to a policy of assurance on his own life in The West of England Life Assurance, bearing date 7th March 1849, and numbered 19330, for the sum of 10001., and under the annual premium of 461. Oa. 2d., and also to another policy of assurance on his own life, in the same office, bearing date 6th March 1850, and numbered 19936, for the sum of 5001., and under the annual premium of 231. 16s. 3d., and also to a policy of assurance on the life of Matilda Elizabeth Tucker, his wife, in the same office, bearing date 5th April 1854, and numbered 22159, for the sum of 10001., and under the annual premium of 501. 19s. 2d.; and that defendant was indebted to plaintiff in the sum of 24501. for moneys advanced and arrears of interest thereon to that day: defendant did thereby assign unto plaintiff, his executors, administrators and assigns, all those the said three policies of assurance, respectively thereinbefore particularly [915] mentioned, and the full benefit and advantage of the said policies, respectively, and the said several sums of 10001., 5001. and 10001., thereby respectively assured, and all other moneys (if any) to become payable by virtue of the said policies, or any of them, and all the right, title, interest, property, claim and demand whatsoever, both at law and in equity, of defendant to, in, upon or out of the same premiums, and each of them, to have, hold, receive and take the aaid policies and moneys, and all other the premises thereby assigned or expressed so to be, unto plaintiff, his executors, administrators or assigns ; subject, nevertheless, to the proviso for redemption thereinafter mentioned, whereby it was provided and agreed &c.; provision for reassignment, in case of payment of 24501. and interest on 29th August then next. And defendant did thereby, for himself, his heirs, executors and administrators, covenant with plaintiff, his executors, administrators and assigns, that he, defendant, his heirs, executors and EL BL ft BL. 916. WARBURG V. TUCKER 751 administrators, should thenceforth duly and punctually pay or cause to be paid the annual premiums and other sum or suras of money (if any) which should from time to time become payable for keeping on foot the aforesaid policies thereinbefore assigned or expressed so to be. And it was thereby declared that, in case defendant, his heirs, executors or administrators, should neglect to make such payments as aforesaid, it should be lawful for plaintiff, his executors, administrators or assigns, to pay or advance all premiums or other sums of money which might become payable for keeping on foot the said policies of assurance, respectively, or for effecting or keeping on foot any new policy or policies in lieu thereof; and that defendant, [916] his executors, administrators or assigns, would on demand pay to plaintiff, his executors, administrators or assigns, all moneys (if any) so paid or advanced by him as last aforesaid, with interest thereon, at the rate of 41. per cent, per annum, from the time, or respective tames, of the same having been expended. Breaches. That, although all conditions precedent, and necessary matters and things, on the part of plaintiff, have been donev performed and happened, so as to entitle him to have the annual premiums hereinafter mentioned paid by the defendant and repaid to him, the plaintiff, by the defendant, yet defendant did not pay or cause to be paid divers annual premiums which, after making the said deed, became payable for keeping the said policies on foot, and neglected so to do : 2. And, although, after defendant had so neglected, plaintiff duly paid and advanced the said premiums, whereof the defendant afterwards had notice, and plaintiff duly demanded of defendant payment of the moneys so advanced, yet defendant did not pay the same, or any interest thereon, but therein wholly failed and made default. Count 2, on accounts stated. Flea...
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