Superior Courts: King's Bench. 389 Number of persons committed in three years ending with 1836 Convicted Executed Transported for life Total number of persons committed, in respect of the before-mentioned offences, in 1836 Total convicted Total executed Total transported for life Total number of persons committed in three years ending with 1836 Total convicted 3 3 none 3 800 456 8 323 1348 tions of the contract. Streather finally became unable to perform his contract, and ceased to carry on the works which he had engaged to execute. The company then employed some other person to finish the works, and paid him a sum a slight degree smaller in amount than that which had been agreed on with Streather. Still the company was the creditor of Streather for the amount of the advance, and the plaintiff therefore, as treasurer of the company, brought this action on the bond. The defence was, that the company had only suffered a nominal damage from the violation of the contract; that the bond was a bond for its due 2462 performance, not for indemnity against the general conduct of Streather; and that the 33 company was not at liberty to depart from the terms of the contract, the due performance of which alone the defendant had guaranteed, and thus threw the consequence of that departure on the defendant; that the company ought not to have paid to Streather the full sum of 36,000/., which sum was the gross amount of the value of the work that had been done, but ought to have retained one fourth of it; and again, that the company had no right whatever to make the defendant liable for the 12,000l., which, quite independently of the contract, had been advanced to Streather. The A. undertook to do certain work for a comcause was tried before Lord Denman at Guildpany, and was to be paid in a manner pre-hall, when the facts were turned into a special scribed in the bond. B. became a surety to the bond. A. obtained advances on the bond Total executed Sir F. Pollock, and Mr. Robinson, for the from the company to a greater extent, and plaintiff. The London Dock Company has been in a manner different from that which was here damnified at all events, to the extent of prescribed in the bond. A. did not com- 12,000l., and the right to maintain the action plete the work. The company employed not being disputed, the claim for damages is C. to finish the work, and paid him a sum smaller than had been in the first instance at least good to that extent. The payment of a balance of money to a principal, does not, agreed on with A. Held, that an action at all events and under all circumstances diswould lie against the surety, for the non-charge a surety. If the principal has not done performance of the work, but that the that for which the payment is made, the surety damages under these circumstances must is responsible for the amount thus improperly be merely nominal. obtained. The surety is answerable here for the money advanced to the principal, but if the surety is to be discharged here, he can only be discharged by application to a Court of Equity. If the departure from the strict letter of the bond was intended to be relied on as a defence, that defence ought to have been pleaded. This was an action of debt on bond. The plaintiff was the treasurer of the London Dock Company, and the defendant was the administrator of the effects of Mr. Laycock, who had entered into a bond, conditioned for the due performance of a contract entered into between a person named Streather and the Dock Company. Mr. Laycock became Streather's surety in the amount of 5000. It appeared that Streather had entered into a contract with the company for the execution of certain works, the whole expense of which was fixed at 56,000. The company was not to make any payments in respect of these works without a certificate from one of its own officers, of a certain portion of them having been performed, and when such certificate was given, the coinpany was only to pay three fourths of the amount due for the work so certified to have been performed, and was to reserve the remaining fourth part. The company had in fact paid money to the amount of 36,000l., to Streather, and had then advanced sums to the amount of 12,000l. more, and had not in these payments and advances observed the stipula The Attorney General, Mr. Chilton, and Mr. J. W. Alexander for the defendant. It is not enough to shew that the company lost money by this transaction, the plaintiff should shew how the loss occurred, and that it did not occur through the neglect of the company to observe the stipulations in the bond. But it is doubtful whether any loss has been incurred. The work was completed for a less sum than was agreed on with Streather. The damages, therefore, must be merely nominal. matter could not be pleaded, for the bond was broken, and the defendant was liable to the action. The whole question is, what is the amount of damages the plaintiff is entitled to recover? No other plea could be put on the record than such as would compel the plaintiff to assign breaches. It is clear that the defect here arose, not from the non-performance of This 390 Superior Courts: King's Bench. the contract by Streather, for which alone the defendant was answerable, but from the irregularity of the proceedings of the company. Suppose that before any work had been done, Streather had come to the company and asked for an advance of the whole stipulated sum, and having obtained it, had refused altogether to proceed with the work; it is clear that had such an advance been made, the company could not have recovered it from the sureties of Streather, for the advance would not have been made within the terms of the bond. It is the same with a part as with the whole of the sum agreed on. The company was not warranted in advancing more than three fourths of the sum which its officers should certify as the amount and value of the work performed. If the company had observed this stipulation, it could not have suffered any injury, It may be true here, that this surety did know what was done, but that was an accidental cir. cumstance, and does not make any difference in the right of the surety. Here, Streather himself did not complete the contract, but in the end it was completed by another person for less money than Streather would have been entitled to under the contract. Now what is the statement of breach? that he did not perform his engagement. The time does not make a difference. The case of Settler v. Holland, shews that where there is a stipulation in a bond, as to the doing of a certain thing, in writing, and according to the form given in the bond, that stipulation cannot be dispensed with by parol agreement between the parties. There the question was between the parties themselves: here it is between one of them and a surety, and the reason therefore is still stronger to hold the party to the performance of the strict letter of the bond. The company here has not Sir F. Pollock, in reply. In the case supposed the sureties would have been liable; they were answerable for the conduct of Strea-been damaged at all. If Streather had perther in the performance of this contract. Through his conduct a loss has arisen, and they must bear it. Every farthing of the money advanced to him, was advanced upon the contract. If the company was to have no other security against its advances than the retaining of the one-fourth, where was the use of the company taking a bond? It is clear that in this case, as in those of collectors of parishes, and others in a similar situation, the surety is bound to answer for a loss occasioned by the conduct of his principal. Lord Denman, C. J.-I do not wish to be bound by the opinion I expressed at Nisi Prius, for the case is well worthy of the consideration of the Court. But I did then not doubt about it, and I do not doubt now. After facts have been understood, I think it is clear that the loss is not a loss brought on the company by reason of a breach of the bond, for which the surety is liable, but by reason of the advances made to the contractor without the knowledge of the sureties, and in contravention of the terms of the bond. Under these circumstances the company cannot call on sureties to make good the loss thus incurred. It would be a waste of time to say more. Mr. Justice Littledule.-I am of the same opinion. The value of the work done was 36,000. So by the terms of the contract, the advance ought not to have been more than 27,000.; the company advanced 48,000/. The money paid to the person who was afterwards employed in completing the work, was something less than what the company would have been bound to pay Streather under the contract. In that respect the company did not suffer any loss. Then as to the money advanced, it appears to me that that money was advanced not under the contract, but in disregard of it. When a surety enters into a bond for the performance of a contract by a principal, he has a right to see it properly performed by both his principal and the obligee, and if they choose to act differently from the contract, the obligee cannot come on him afterwards. How else is the surety to know the extent of his liability? formed his contract, the company would have had to pay more. It is said that this ought to be pleaded; it could not. The defendant might only plead performance of the contract, but could not plead that the alleged damnification was of the plaintiff's own wrong, and that was none under contract. The only ground on which I go is, that the advances were voluntary from the company to Streather, and therefore cannot be recovered against the sureties. Mr. Justice Patteson.—The question in this case arose upon a breach, alleging that the company had been injured by non-performance of a contract. This fact was not shewn. It is clear that there has been a breach of the conract, for Streather did not perform the condition of the contract: then the plaintiff is entitled to recover. The only question then is, what damages? I think the damages should be merely nominal. It is said if the company is to retain one fourth of the sum, what is the use of taking a bond? I see a good reason for taking a bond. The object was, to have somebody to have recourse to if Streather did not perform the contract, and the company was obliged to employ another person, and had to pay more. These things are consistent with each other. Then the contract says, that the work is to be performed in a certain time. Streather is not to have a right to call on the company for money, till he has performed one-eighth of the work, then he is only to call for three fourths of the value of what is certified to have been done. The payments here might be on account of the contract. Has the surety a right to see them made according to the contract? I think he has. He is only answerable for that. They were not made according to the contract. So that it seems to me no damages have been incurred in that respect, by a breach of the contract, and that a verdict for the amount of Is. was perfectly right. Mr. Justice Williams.-I am entirely of the same opinion. The defendant here is surety for performance of contract. Suppose there a 5 Term. Rep. 590. Circuits of the Commissioners for the Relief of Insolvent Debtors. has been a non-performance; the company has not been damnified under the contract, for 36,000, and the 18,000. paid to the other person employed to finish the work, are less together than the money which must have been paid to Streather, had he finished it. As to the advances, they were not payable in regard of the contract, nor on contract. There should therefore be nominal damages only. Rule discharged.-Warre v. Calvert, administrator of Laycock, T.T. 1837. K. B. F. J. vember 1. Glamorganshire, at Cardiff, Friday, Nov. 3. Pembrokeshire, at Haverfordwest and Town, Cardiganshire, at Cardigan, Saturday, Nov. Radnorshire, at Presteigne, Monday, Nov. 13. Devonshire, at Plymouth, Saturday, Nov. 25. Wiltshire, at Salisbury, Friday, Dec. 1. Hampshire, at Winchester, Monday, Dec. 4. MIDLAND CIRCUIT. 391 T. B. Bowen, Esq., Commissioner. vember 2. Suffolk, at Bury St. Edmunds, Monday, No vember 6. Cambridgeshire, at Cambridge, Tuesday, No. Huntingdonshire, at Huntingdon, Wednesday, Norfolk, at Lynn, Friday, Nov. 10. Lincolnshire, at Lincoln and city, Monday, Nottinghamshire, at Nottingham and Town, Derbyshire, at Derby, Friday, Nov. 17. ber 20. At the city of Lichfield, Wednesday, Nov. 22. Nov. 29. Shropshire, at Oldbury, Thursday, Nov. 30. Bedfordshire, at Bedford, Thursday, Dec. 7. cember 8. NORTHERN CIRCUIT. W. J. Law, Esq., Commissioner. At the city of York, Saturday, Nov. 4. Cumberland, at Carlisle, Monday, Nov. 13. 392 Miscellanea.-The Editor's Letter Box. 66 "See however, (says Dr. Irving,) what is stated in Bishop Watson's Apology for Christianity, p. 104, and in Sir George Colebrooke's Six Letters on Intolerance, p. 295. Lond. 1791, 8vo. The last of these writers places great reliance on what he conceives to have been one of the laws of the twelve Tables: Apart let no one have new gods. Those of strangers let no one worship privately, unless they be publicly allowed.' He proceeds to state that no words can be more precise to prohibit the private exercise of a religion not warranted by the state. As this law was never repealed, I do not see on what authority authors have asserted that at Rome every family was left to worship in its own way.' It is however very material to remark, that this is not one of the laws of the twelve Tables, but one of those devised by Cicero for the government of an imaginary republic. De Legibus, lib. ii. cap. viii "-From Dr. Irving's Introduc tion to the Study of the Civil Law, p. 8—11. THE EDITOR'S LETTER BOX. Amongst the advantages derivable from the study of the Roman laws, Dr. Irving, in his Introduction, points out the important explanation which is afforded on many questions of ancient history. Thus he observes, It is commonly regarded as a very curious and remarkable fact, that although the Romans were disposed to tolerate every other religious sect, yet they frequently persecuted the Christians with unrelenting cruelty. This exception, so fatal to a peaceable and harmless sect, must have originated in circumstances which materially distinguished them from the votaries of every other religion. The causes and the pretexts of persecution may have varied at various periods; but there seems to have been one general cause, which will readily be appre- The first edition of the Manual for Articled hended by those who are intimately acquaint-Clerks and other Law Students, being entirely ed with the Roman jurisprudence. From the out of print, a Second Edition is now in the most remote period of their history, the Ro- press, and will be published as soon as pracmans had conceived extreme horror against all ticable. It is considerably enlarged, and nocturnal meetings of a secret and mysterious contains the Questions put at the several Exnature. A law prohibiting nightly vigils in a aminations, with references to works of authotemple has even been ascribed, though with rity where answers may be found. It will also little probability, to the founder of their state. comprise the Common Law Regulations, and The laws of the twelve Tables declared it a the Chancery Orders and Regulations, which capital offence to attend nocturnal assemblies were not made at the time of the first Edition. in the city. And, to omit other authorities, Notes are added, shewing the practical effect the Senatusconsultum Marcianum de Bac- of the Rules, and the course to be pursued, chanalibus' is of a similar tendency; though with the construction put by the Examiners it is indeed directed against a particular insti- on particular sections of the Rules, and the tution, which was believed to have been pro- Decision of the Courts on cases which have ductive of the greatest enormities. This then come before them. being the spirit of the law, it is obvious that the nocturnal meetings of the primitive Christians must have rendered them objects of peculiar suspicion, and exposed them to the animadversion of the magistrate. It was during the night that they usually held their most solemn and religious assemblies; for a practice which may be supposed to have arisen from their fears, seems to have been continued from the operation of other causes. Misunderstanding the purport of certain passages of Scripture, they were led to imagine that the second advent, of which they lived in constant expectation, would take place during the night; and they were accustomed to celebrate nightly vigils at the tombs of the saints and martyrs. In this case therefore they incurred no penalties peculiar to the votaries of a new religion, but only such as equally attached to those who, professing the public religion of the state, were yet guilty of this undoubted violation of its laws.' The Legal Almanac, Remembrancer, and Diary, for 1838, adapted peculiarly to the use of the Profession, will be published before the next Term. Any suggestions or information relating to the work should be sent as early as possible. We have now reprinted several numbers, and complete Sets of the Legal Observer may be obtained of the Publisher, and Subscribers desiring to have any separate numbers to complete their Volumes will be supplied with them on the usual terms for a short time to come. The first Ten Volumes with a General Index may be had for 57. : The letters of "Alexis;" W. F. N. and "A Solicitor," will probably appear next week. We recommend B. W. F. to call at the Law Society's Office for the information he requires. The Second Edition of the Articled Clerks' Manual will contain every particular relating to the Examination. |