mode of keeping the accounts, and the bankers who advanced the money might have done it on the faith that they should have been permitted to convert the interest from time to time into capital; and that they would not otherwise have continued to make the advances. I think, that upon the authority of the case cited, the plaintiffs are entitled to recover the interest charged, and consequently that the verdict must be entered for the larger sum. BAYLEY J. I am of the same opinion. The form of the draft is to pay A. B. or bearer on account of the public drainage. The persons therefore, who signed that order, assert that the money is to be applied to the purpose of the public drainage. The draft then goes on, "and place the same to our account as commissioners of the inclosure act." Therefore, the money is to be placed to their debit in the account, which they have as commissioners. It does not say, "place the same to the account of the inclosure," but "to qur account as commissioners." (a) Now, the defendants must have known what they had collected, and what means they had of collecting more; and they ought to have taken care before they drew drafts, that they had money to reimburse the persons who advanced money on those drafts. I think, therefore, that there must be judgment for the plaintiffs. BEST J. (b) concurred. 1821. EATON against BELL. Judgment for the plaintiffs. (a) See Burrell v. Jones, 3 Barn. & Ald. 47. (b) Holroyd J. was at Chambers. 1821. Thursday, Declaration stated, that in consideration that plaintiff defendant a bill of exchange, defendant undertook, &c. ; and then aver red that plain. tiff did assign the bill. It appeared that the parties had agreed that the VANSANDAU against BURT. DECLARATION stated, that in consideration that plaintiff would assign to defendant a bill of exwould assign to change for 6921., dated 24th April, 1815, accepted by Jackson, Goodchild, and Co., payable to the order of J C., 70 days after date, defendant undertook, &c. Averment, that plaintiff did assign the said bill of exchange to the defendant, &c. The bill mentioned in the declaration had been formerly assigned by the defendant to the plaintiff in part-payment of a debt, and the acceptors had since become bankrupts. Under these circumstances it was agreed between the plaintiff and the defendant that the former should give up to the defendant the bill in question, the latter requiring it for the purposes of some arbitration; but that the defendant should pay to the plaintiff from time to time such sums of money as should be equal to the dividends upon the sum of 6927., which might become payable under the plaintiff should give up the bill to the defend ant, the latter, however, paying over the proceeds of the bill to the plaintiff. In. pursuance of the agreement, the plaintiff by deed assigned to the defend ant the bill, and all sums of money due there. on, to and for the defendant's In estate of the drawers, acceptors, or indorsers of the bill. pursuance of this parol agreement a deed was exeown use; and the cuted between the parties, which, among other things, defendant cove. nanted to pay to the plaintiff a sum equal to any money he should receive on account of that the declar recited, that the defendant had requested the plaintiff to re-assign the said bill of 6921. to the defendant, which plaintiff had agreed to do upon the covenants in the bill. Held, the indenture contained, and it was thereby witnessed, ation imported that in pursuance of said recited agreement plaintiff did that the plaintiff assign to the defendant all the said bill of exchange, and had made an absolute assign ment of the bill, and consequently, that the assignment in evidence being only conditional, this was a fatal variance. all all sums of money due thereon, to and for the defendant's own use and benefit; and the defendant covenanted with plaintiff, that within seven days after every dividend which should be declared under the estate of the drawers, acceptors, payees, or indorsers of the said bill thereby assigned, the defendant would pay to plaintiff such sum of money as should be equal in amount to the dividend so to be declared on or in respect of the sum of 6927. 11s. without any deduction or abatement. The Court now directed Manning to confine his attention to the point, whether there was any proof of the averment in the declaration, that the plaintiff had assigned the bill to the defendant, He now argued that there was evidence of an actual assignment of the legal property in the bill to the defendant, although the latter was bound by the terms of his agreement to pay to the plaintiff a sum equal to the amount of the dividends he might have received. Here the covenants in the deed of assignment do not amount to a condition, but are mere collateral and independent covenants. ABBOTT C. J. The declaration states, that in consideration that the plaintiff would assign to the defendant a bill of exchange, the defendant promised to do a certain act therein mentioned. It is then averred, that the plaintiff did assign the bill to the defendant. It was therefore incumbent on the plaintiff to prove that he did so assign the bill. Now, any lawyer reading that allegation in this declaration would understand that the plaintiff was to assign the bill without any qualification, and for the sole benefit of the assignee. It appears, however, upon the facts stated in the case, that there was 1821. VANSANDAU against BURT. was no assignment, but that the bill was merely given up to the defendant, who wanted it for a particular purpose, upon condition that the proceeds should from time to time be paid to the plaintiff. That is by no means the unqualified assignment which the declaration imports. If the declaration had stated as the consideration that the plaintiff had assigned to the defendant the legal interest in the bill, subject to a condition, that he was pay the plaintiff the proceeds, the facts proved would have supported that averment. I am of opinion that here there was not any evidence of such an assignment; and, therefore, there must be judgment for the defendant. to BAYLEY J. The language used in this declaration imports the agreement to have been that the plaintiff should execute an unqualified and unconditional assignThe real bargain, however, between the parties was, that he should execute an assignment, accompanied with this condition, that if the defendant should ment. receive any dividends upon the bill he should pay the same over to the plaintiff. That is a qualified assignment, and is so described in the indenture which the parties themselves executed in pursuance of their agreement. It appears to me, therefore, that the consideration was untruly stated, and that a nonsuit ought to be entered. BEST J. (a) The declaration alleges the consideration to be, that the plaintiff shall make an unconditional assignment of the bill of exchange to the defendant, by which it must be understood that the assignee of the bill was to have the whole benefit of it; whereas it Holroyd J. was at Chambers. appears, in point of fact, that he was to derive no benefit, for he was to hand over the whole proceeds to the plaintiff. There is, therefore, a material variance in the consideration stated in the declaration and that given in evidence; and that being so, there must be judgment for the defendant. Judgment for Defendant. 1821. VANSANDAU against BURT. SOLLY and Another against WHITMORE. ASSUMPSIT of a policy of insurance upon the ship Thursday, By a policy a ship was insurLon- ed at and from Seemann. At the trial before Bayley J. at the don sittings after Trinity term, 1820, a verdict was found for the plaintiffs, subject to the opinion of Court on the following case: the Hull to her port, or ports, of loading in the Baltic sea and Gulph of Finland, with liberty to pro ceed to, and touch and stay On the 29th September, 1818, the defendant subscribed a policy of insurance upon the ship Seemann, and the risk was 66 at, and from Hull, to her port or ports of loading in the Baltic sea and gulph of Finland, purpose, parti at, any port or ports whatsoever, for any cularly at Elsi with liberty for the ship in the said voyage, to proceed nore, without ship touched being deemed a and sail to, and touch and stay at any ports or places deviation. The whatsoever and wheresoever for all purposes, particular- and stayed at ly at Elsinore, without being deemed a deviation." The policy was effected by the plaintiffs, on behalf of James Phillips, who then resided at Konigsberg, in Prussia, and was the party interested in the insurance as owner of the ship. The ship, on the 3d October, 1818, began loading on board at Hull, sundry packages for Elsinore, sundry other packages for Dantzig, and sundry other packages for Pillau, and on the 23d October, in the same year, set sail from Hull on her voyage for Elsinore, Dantzig, and Pillau, the latter being her intended port of Elsinore and Dantzic, to deliver goods, Pillau being her port of loading: Held, that this was a deviation. |