Com. Pleas. OWEN v. KNIGHT. Bompas, Serjt., and Godson, shewed cause. The plaintiff authorized Feary to raise money for his use, upon the security of a deposit of the lease, and after having done so, he cannot recover upon the second issue. To enable a plaintiff to recover in trover, he must shew that he is entitled to the possession of the chattel sought to be recovered, as well that he has a right of property in it; that was expressly decided in Gardon v. Harper (a). In that case, goods leased as furniture with a house, had been wrongfully taken in execution, by the sheriff; and it was held that the landlord could not maintain trover to recover the goods, pending the lease, because he had not the right of possession as well as the right of property. Here the plaintiff had parted with the possession of the lease, and he could not claim to have it restored to him until the money which was borrowed was repaid. Philips v. Robinson (b). Talfourd, Serjt., and R. V. Richards, contrà.-The plaintiff had an assignment of the premises made to him by Feary, and, therefore, he was the legal owner of the original lease, at the time the action was brought. The property in title-deeds does not pass, unless the premises to which they refer are also conveyed away. The cases which are cited, were decided before the New Rules of Pleading. The effect of the allegation is, that the plaintiff was the owner of the indenture, not that he was entitled to the possession of it. Bailey v. Fermor (c) is an authority for the plaintiff. TINDAL, C. J.-It becomes unnecessary to give any opinion upon the effect of the plea of " Not guilty," as the whole case turns upon the second issue. This is an action of trover to recover an indenture of lease, and, as is usual, the plaintiff states, in the declaration, that he was lawfully possessed of the indenture, as of his own property. The defendant joins issue upon this precise allegation, and the question, therefore, is, whether the facts which were proved, are such as to entitle the plaintiff or the defendant to the verdict. It is clear that the action of trover lies only where the plaintiff has the right to the possession of the chattel sought to be recovered, as well as the right of property. That was decided in the case of Gordon v. Harper (a), which has long been acquiesced in as law. The facts in the present case were, that the plaintiff was entitled to the indenture of lease, as of his own property, and that Feary, with his assent, delivered it to the defendant, as a security for an advance of money, which the defendant made, to pay off a bill upon which the plaintiff and Feary were both liable. The plaintiff was, therefore, entitled to the property in this deed, but not to the possession of it until the money advanced by the defendant had been repaid. Until that time the defendant was entitled to the right of possession. Therefore, the verdict was right, and this rule must be discharged. VAUGHAN, J.-I am of the same opinion. The question is, what did the second plea put in issue? A party must have the right of possession, as well as the right of property, or he cannot maintain trover. Here it was proved that the defendant had advanced money with the privity and consent of the plaintiff, upon the security of the deed. It has been said, that the defendant may have waived his lien: it is true that if he had set up a title inconsistent (a) 7 T. R. 9. (b) 4 Bing. 106. (c) 9 Price, 262. with his lien, he could not fall back upon it; but if he says nothing about it, BOSANQUET, J.-The declaration alleges that the plaintiff was possessed of the indenture of lease, as of his own property, and if this had not been traversed it would have been admitted; but it is put in issue, and the evidence shewed that at the time the demand was made, the plaintiff was not entitled to the possession of the indenture. COLTMAN, J., concurred. Rule discharged. LUMLEY and others, Executors of ROBERT LUMLEY, deceased, v. MUSGRAVE. ASSUMPSIT on a bill of exchange for 5087., dated 29th October, 1835, drawn by one Joseph Hudson, payable to his order, four months after date, and accepted by the defendant, and afterwards indorsed by Hudson to Robert Lumley, deceased. The declaration also contained counts for interest of money lent in the lifetime of Robert Lumley; and for money due on an account stated with him. The defendant pleaded, to the first count, that, after the cause of action in the first count of the declaration mentioned had accrued to the said R. Lumley, deceased, and before the commencement of the suit, on the 14th June, 1836, the said R. Lumley, deceased, made and drew, produced and shewed, to the defendant, a certain paper writing, stamped with a bill of exchange stamp of the value of 12s. 6d., and purporting to be a bill of exchange, addressed to the defendant, whereby the defendant was requested to pay to the order of such person as should thereafter sign and place his name thereto as the drawer thereof, the sum of 5081., three months after the date thereof, for value received. And it was then agreed, by and between the said R. Lumley, deceased, and the defendant, that the defendant should write and sign his name on the said paper writing, so purporting, as aforesaid, to be a bill of exchange, as the acceptor thereof, and should deliver the same, so signed with the defendant's name as aforesaid, to the said R. Lumley, deceased, and that the said R. Lumley, deceased, should forbear to sue the defendant in respect of the said cause of action, in the first count of the declaration mentioned, until the expiration of the time, in and by the last-mentioned paper writing, so purporting, as aforesaid, to be a bill of exchange, and the custom and usage of merchants in that behalf limited, and appointed, for the payment of the money therein mentioned; and also that if, at any time after the expiration of the said last-mentioned period of time, and before any action commenced for the cause of action, in the said first count of the declaration mentioned, the defendant should pay and satisfy to the holder thereof the amount of the money mentioned in the said Com. Pleas. - LUMLEY υ. MUSGRAVE. paper writing, so purporting to be a bill of exchange, and satisfy and discharge all causes of action, and should also pay and satisfy and discharge the costs and charges of any action or actions which might or should arise or be brought on the said paper writing, so purporting as aforesaid, to any person or persons to whom such cause of action should or might accrue, that such payment, satisfaction, and discharge should be accepted in full satisfaction and discharge of the said cause of action, in the said first count of the declaration mentioned. That in pursuance of the said agreement, the defendant then wrote and signed his name on the said paper writing, so purporting as aforesaid, in this plea mentioned, as the acceptor thereof, and then delivered the same, so signed with his, the defendant's, name, to the said R. Lumley, deceased; and afterwards, on the day and year last aforesaid, the said J. Hudson, in the first count of the declaration mentioned, subscribed his name to the said paper writing, so purporting as aforesaid, as the drawer thereof, and then signed his name on the back thereof as an indorser thereof, to the said R. Lumley, deceased, who then indorsed the same to certain persons, bearing the style, firm, and description of Jordeson and Webb, who held, kept, and retained the same from thenceforth till the delivery thereof to the defendant, as hereinafter mentioned. The plea then averred, that the amount of this bill was paid after it became due, and after an action had been commenced by the holders; and that no actions, save and except the last-mentioned action, were ever commenced for any cause arising out of or in respect of the said bill of exchange, whereby, and by reason of the premises in this plea mentioned, the said cause of action in the first count of the declaration mentioned, became extinguished, discharged, and satisfied. There was also a plea of payment to the first count. As to the second and third counts of the declaration, the defendant pleaded non-assumpsit, and issues were joined thereon. The plaintiff traversed the agreement set forth in the special plea to the first count, upon which issue was also joined. At the trial, before Tindal, C. J., at the last London sittings, it appeared that the bill of exchange mentioned in the declaration, was not paid when it became due, and that the defendant requested further time to pay it. Time was given, and nothing was done until the 14th June, 1836, when, in pursuance of an agreement between the parties, another bill for the same amount was drawn and accepted in the manner stated in the plea. The former bill remained in the hands of Lumley, the indorsee, who told the defendant that the interest on that bill was unpaid. The defendant assented to this, and promised that the interest should be paid. To shew that the transaction amounted to a mere renewal of the first bill, the defendant put in evidence a letter from Lumley to Hudson, in which the former stated that this was the last time Musgraves's bill would be renewed. The bill of the 14th June was proved to have been paid by the defendant, when it arrived at maturity; but the interest on the first bill was not paid, whereupon the present action was brought to recover it. The learned judge left it to the jury to say, first, whether the agreement set out in the plea was proved; secondly, whether the defendant promised to pay interest on the first bill, from the day it became due, until the time when the second bill was paid. The jury found a verdict for 131. 15s. 6d. being the amount of the interest for the above period. Platt moved for a new trial, on the ground of misdirection.-This action is not brought on a special agreement to pay interest: but upon the bill of exchange, which was paid before the action was brought. The question is, whether any right of action continued on that bill? The interest is merely accessory to the principal money, and it would be an anomaly if the interest might be recovered when the principal sum could not. In Hollis v. Palmer (a) it was held, that where a promissory note was brought within the Statute of Limitations, the plaintiff was not entitled to allege in the declaration, that the defendant had paid interest upon the note, within six years. So, in Dillon v. Rimmer (b), where the defendant was indebted to the plaintiff on a bill which was dishonoured, and gave another bill at a longer date, and also a warrant of attorney to confess judgment in case the second bill should not be paid when due, and agreed to pay the expenses of executing the warrant of attorney: and the second bill was duly honoured, but those expenses were not paid, and the first bill was retained by the plaintiffs, it was held that they could not sue the defendant on such original bill. It may even be admitted that the defendant agreed to pay the interest, but that could not revive the bill which was paid. In Van Sandau v. Crosbie (c), the certificate of a bankrupt was held to be a bar, not only to the original debt, but also to an action for consequential damages arising from the non-payment of it; and Holroyd, J., said—“ I am of opinion that when the remedy at law is taken away for the non-payment of the money, it is also taken away as to any consequential damage arising from such nonpayment." [Tindal, C. J.-Here there was no evidence that there had been payment in satisfaction of the original bill. The evidence was the other way,] Then Soward v. Palmer (d) cannot be law: there the defendant being indebted to the plaintiff, gave him a promissory note for 451., which was dishonoured; the latter afterwards agreed to accept 5s. in the pound, to be secured by the acceptance of a bill for 117. 5s, by the defendant's brother, which was accordingly given, but the original note remained in the plaintiff's possession, and was to revive if the acceptance were not honoured. The bill was not paid the day it became due, but, on the following morning, the defendant tendered 121. to the plaintiff, including the amount and expenses thereon, which the latter refused to accept, and brought an action on the original note; and it was held that he was not entitled to recover. [Tindal, C. J.-In that case there was a new consideration, as the plaintiff had taken a third person's security.] Here the payment of the second bill was equivalent to a payment of the first. Kendrick v. Lomax (e) Ex-parte Barclay (f). TINDAL, C. J.-It appears to me that the finding of the jury was justified by the facts which were proved at the trial. As to the objection made to the direction of the jury, I left them to say whether the agreement set out in the plea was proved by the evidence. The first bill was due in March, and after it became due nothing was done for some time, except that the defendant requested further time to pay it. At length, on the 14th of June, a second bill was drawn, for the same amount, and it was then stated that a certain sum was due for interest upon the first bill; and it appeared that the first bill was left in the hands of Lumley. This was sufficient to entitle the jury to say that the new bill was not given in satisfaction of the former one; and it Com. Pleas. LUMLEY V. MUSGRAVE. Com. Pleas clearly appeared that a promise had been made to pay interest upon it. The jury were directed to say, whether the first plea was proved; and we do not contravene any rule of law, by directing that this verdict should stand. LUMLEY v. MUSGRAVE. VAUGHAN, J.-This is moved for misdirection, but it appears to me to be rather a question of evidence. It appeared that interest was due on the first bill, and the plea was not made out by the facts. BOSANQUET, J.-The question is, whether the second bill was given in full satisfaction of the first? It appears to me, that it was not given in full satisfaction of the damages which had accrued to the plaintiff, and therefore the verdict was right, COLTMAN, J., concurred. (g) Lumley v. Hudson :— THIS was an action against the drawer of the above bill, who pleaded similar pleas to those which are already stated. At the trial, before Vaughan, J., the plaintiff proved that the drawer had also promised to discharge the interest which was due upon the first bill, at the time the agreement to give the second bill was made; and the defendant having failed to prove the special plea, a verdict was found for the amount of the interest. A rule nisi, was afterwards obtained to set aside the verdict. Kelly and C. Saunders shewed cause, and relied upon the above decison in Lumley v. Musgrave. Rule refused (g). Platt and W. H. Watson, in support of the rule, cited the cases already mentioned, and Dickson v. Parkes, (1 Esp. 110): and also contended, that there was a distinction between the two cases, inasmuch as the drawer was only liable to the indorsee on default of the acceptor, whereas, the acceptor, being primarily liable for the principal money, might be under an implied liability to pay the interest also. The Court repeated the observations already reported and discharged the rule upon the same grounds. Rule discharged. Nov. 18. HOCKEN v. Grenfell. The defendant WILDE, Serjt., obtained a rule nisi, on behalf of the plaintiff, to review put a construc tion on an award, which induced the plaintiff to move to set it aside. The Court decided that the defen dant's construction was not correct, and the rule was therefore discharged as the objection did not then arise. Held, that the prothonotary was correct in taxing the costs of the rule for the defendant, according to the usual practice. the prothonotary's taxation of costs. The plaintiff enjoyed the limited use of a stream of water, under the provisions of an award; and there having been an alleged interruption of his right, by the defendant, an action was commenced, which was afterwards referred to arbitration, upon the condition that the arbitrator should not award any thing which was inconsistent with the plaintiff's rights under the first award. An award was made, by which a limited use of the water was given to the defendant. A construction was put, by the defendant, upon some ambiguous language used in the award, which, as the plaintiff contended, made the award inconsistent with the first award, and also made it bad for not being final; and he applied to the Court to set it aside upon those grounds. The two awards and certain affidavits were turned into a special case, and, after argument, the Court determined that the defendant's construction of the award was incorrect. According to this construction of the award, the plaintiff's objections could not be supported, and the rule was discharged without any mention of costs. Upon the taxation, the prothonotary taxed the costs for the defendant. |