her running foul of another vessel. The ship might have been redeemed from that suit, by the defendant's giving bail, that proper care should be taken of the ship, and that those on board her should not leave the kingdom, until means were taken to secure that evidence which would enable the Judge to decide the suit, and the plaintiffs might have insisted on such bail. The defendants, as agents for the foreign owners of the ship, write a letter, in which they engage, on the plaintiff's renouncing all claims on the ship, and on proving the amount of damages sustained by the Zenobia, to indemnify them for any sum not exceeding 180%., the exact amount to be ascertained when the Zenobia is repaired. Now the plain meaning of that engagement appears to me to be this. Release the ship, and we will waive all questions of law and fact, except the amount of damage; we will pay you 1807. if the damage done amounts to that sum. The plaintiffs, by not insisting upon the bail required, therefore relinquished a benefit which they might have had, if the law had been with them. The law might fairly be considered as doubtful, for there had been contradictory decisions on the subject; and the parties agree to put an end to all doubts on the law and the fact, on the defendants engaging to pay a stipulated sum. I am of opinion that this case is distinguishable from those cited in argument, inasmuch as in this case, the law was doubtful, and the parties agreed to waive all questions of law and fact. I am therefore of opinion, that the plaintiff is entitled to recover. BAYLEY J. I am of the same opinion. Where a cause is depending, it is competent to a party to refer the questions of liability and damage jointly, or to ac know 1821. LONGRIDGE against DORVILLE. 1821. LONGRIDGE against DORVILLE. knowledge his liability, and refer the question of damage only; and in this case, I think, the effect of the agreement is, that they the defendants acknowledge the liability of the owners, and, in consideration. of the plaintiffs' releasing the ship, they agree to refer the question as to the amount of damage, and pay the same, provided it does not exceed 180l. .If it had appeared, in this case, that the owners of the Carolina could not have been liable at all, I agree that the consideration for the promise would have failed. But the facts stated in the case by no means shew that the owners would not have been liable; for by the pilot act, the owners are only protected in those cases where the loss arises from the default, neglect, incapacity, or incompetency of the pilot. Now there is no fact in this case which shews, that misconduct of the pilot was the cause of the injury. HOLROYD J. I am of the same opinion. If a person is about to sue another for a debt, for which the latter is not answerable, the mere consideration of forbearance is not sufficient to render him liable for that debt. Any act of the plaintiff, however, from which the defendant derives a benefit or advantage, or any labour, detriment, or inconvenience sustained by the plaintiff, is a sufficient consideration to support a promise. Now, the consideration of forbearance is a benefit to the defendant, if he be liable; but it is not any benefit to him, if he be not liable. The authorities cited proceed on that ground. This case differs materially from those; for here, a suit actually commenced is given up, and a suit, too, the final success of which was involved in some doubt. The plaintiff might sustain a detriment by giving up all claim in respect of the expenses incurred, and the defendant might derive a benefit, by having that suit put an end to, without further trouble or investigation. Now I am of opinion, that the giving up of a suit instituted for the purpose of trying a doubtful question, and consenting to deliver up the ship, which might otherwise have been detained until the security required was given, is a good consideration to support a promise to pay a stipulated sum, by way of damage, in case the actual damage amount to that sum, In Com. Dig. tit. Action on Case upon Assumpsit, F 8., it is laid down, that an action does not lie, if a party promise, in consideration of a surrender of a lease at will; for the lessor might determine it, unless there was a doubt whether it was a lease at will or for years; and 1 Roll. 23. 1. 25. 35. and I Brownlow, 6. are cited. That is an authority to shew, that the giving up of a questionable right is a sufficient consideration to support a promise. Here, therefore, the giving up of a suit, instituted to try a question respecting which the law is doubtful, is a good consideration to support a promise. I think, therefore, that this action is sustainable. BEST J. concurred. 1821. LONGRIDGE against DORVILLE. 1821. Monday, A pawnbroker is a broker within the 5 G. 2. c. 30. s. 39., and, therefore, subject to the bankrupt laws. RAWLINSON against PEARSON and Others. ASSUMPSIT for money had and received. Plea, general issue. At the trial before Park J., at the Lancaster Spring assizes, 1820, a verdict was taken for the plaintiff, subject to the opinion of the Court on the following case: A person who had forOn the 2d June, 1818, a commission of bankrupt merly taken in goods upon issued against the plaintiff, on the petition of Daniel pledge, but had ceased to do so, Potter, under which commission the plaintiff was destill continuing to sell the un-clared a bankrupt, and the defendants were chosen redeemed pledges, there- assignees, and as such, received certain money, the by carries on produce of the estate of the plaintiff. The petition the trade of a pawnbroker, laws. and is subject ing creditor's debt was upon a promissory note, drawn to the bankrupt by the plaintiff, in favour of Potter, for the sum of 3117. 3s. 9d., bearing date the 17th January, 1818, payable at three months after date, and which note was dishonoured when due. This note had been given by the plaintiff to Potter for the amount of the damages and costs awarded to Potter in an action brought by him against plaintiff, for an injury occasioned by the negligence of one of the agents of the plaintiff. The award was made on the 15th January, 1818. The plaintiff, for many years, had carried on the business of a pawnbroker at Manchester, but for nearly five years before the issuing of the commission, he had ceased to take in any goods to pledge; he had a shop for sale and another for taking in pledges. The two shops adjoined each other; there had been an internal communication between them, until it was stopped up about five years ago: his pawnbroker's sign, however, remained over the door of the shop for sale until after the issuing of the commission. After the time when he so ceased to take in goods to pledge, he sold, from time to time, to any persons willing to purchase the same, different articles of the forfeited or unredeemed pledges which he had received in the course of his business as a pawnbroker, and which still remained upon hand; the shop for sale remained open, till the issuing of the commission, to sell off his forfeited pledges, and he could not carry on his business without it. The act of bankruptcy was committed in February, 1818 Tindal, for the plaintiff. There are two questions in this case, first, whether a pawnbroker is subject to the bankrupt laws; 2dly, assuming that he is, then, whether the plaintiff in this case continued to carry on the business of a pawnbroker at the time when the petitioning creditor's debt accrued. A pawnbroker is not a trader; for he does not seek his livelihood by buying and selling. The question, then, is, whether he can be considered as a broker within the meaning of the 5 G. 2. c. 30. s. 39. That section of the statute recites, that bankers, brokers, and factors are entrusted with money and goods belonging to other persons; and then enacts, that they shall be subject to the bankrupt laws. The reason of the statute is on account of the great value of property belonging to others with which the persons there described are trusted. Now, pawnbrokers are not within the reason of the statute, for the property which they have in their possession, belonging to others, does not usually greatly exceed in value the money advanced upon it. There is not, therefore, the same trust reposed 1821. RAWLINSON against PEARSON. |