CASES

IN

MICHAELMAS ᎢᎬᎡᎷ,

IN THE FORTY-FIRST YEAR OF THE REIGN OF GEORGE III.

Jones v. Brinley.

1 East, 1. Nov. 8, 1800.

An agreement to pay a per centage upon the day on which any money should be received by the defendant through the means of the plaintiff's information does not entitle the plaintiff to the stipulated reward upon the transfer of stock in consequence of such information, although he might afterwards receive the dividends thereon.

THE plaintiff declared upon a special agreement, that in consideration that he had stated to the defendant that it was in his, (the plaintiff's) power to give the defendant cer ain information which might enable one F. N. to receive a considerable sum of money then due to him, and also in consideration that the plaintiff at the request of the defendant would give such information to the defendant might enable the said F. N. to receive the said sum, the defendant undertook and promised the plaintiff to pay him on the day upon which any money should be received by F. N. or by the defendant on F. N.'s behalf through the means of the plaintiff's information, the sum of 107. per cent. on the money so received. The declaration then averred that the plaintiff did give the defendant certain information respecting divers sums of money which F. N. was entitled to receive under and by virtue of the last will and testament of one A. N. deceased, and that F. N. through the means of such information on the 27th January 1800, did receive the sum of 5007. whereby the defendant by virtue of his promise became liable to pay to the plaintiff 501. &c. The second count stated more generally, that the defendant was indebted to the plaintiff' in so much for certain information given by the plaintiff to the defendant at his request, whereby F. N. was enabled to receive, and did accordingly receive divers large sums before then due to him, and being so indebted the defendant promised, &c. There were also the general money counts and for work and labour. The defendant pleaded the general issue.

At the trial before Lord Kenyon at the last sittings at Guildhall, the agreement in writing was proved, whereby the defendant "undertook to pay to the plaintiff on the day upon which any money should be received by F. N. or by him (the defendant,) on his behalf, through the means of the plaintiff's information, the sum of 107. per cent. on the money which should be so received." It was also proved that, in consequence of information given by the plaintiff to the defendant, F. N. had obtained 5007. stock, which had stood in the name of A. N., from whom the defendant derived title as residuary legatee and evidence was adduced for the purpose of shewing that he had afterVOL. I.

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wards received ten years dividends due thereon. It was objected by the defendant's counsel, that it was stock and not money which had been obtained through the medium of the plaintiff's information, and therefore he was not entitled to recover any thing under the terms of the agreement; and that the dividends were merely consequential to the stock: and it was not the meaning of the parties that 107. per cent. should be paid upon all the interest which might accrue, but merely for the principal sum, if any. Lord Kenyon admitted the objection and nonsuited the plaintiff.

Comyn, after stating the facts as abovementioned, now moved to set aside the non-suit, contending that the proof sustained the agreement; for stock was to be estimated as so much money, into which it was convertible; and that at any rate, the receipt of the dividends(a) due at the time of the transfer of the stock was a receipt of so much money within the meaning of the agreement. But

The Court thought the objection well founded; and animadverted upon the immorality of such bargains as the one in question, which had grown of late into practice.

Rule refused(b).

Sweet and Another Assignees of Gard, a Bankrupt, v. Pym.

1 East, 4. Nov. 10, 1800.

One who has a lien on goods in his possession, if he afterwards deliver them to a ship carrier to be conveyed on account and at the risk of his principal though unknown to the carrier, cannot recover his lien by stopping the goods in transitu, and procuring them to be redelivered to him by virtue of a bill of lading signed by the carrier in the course of his voyage.

IN trover for certain bales of cloth the facts appeared to be these. The bankrupt, a clothier residing in London, before his bankruptcy, employed the defendant, a fuller residing in Exeter, in his business; and at the time of the transaction after mentioned the bankrupt was indebted to the defendant upon the general balance of accounts in more money than the value of the goods in question: and by the custom of the trade at Exeter the defendant had a lien for his general balance. The cloths for which the action was brought had been sent by Gard before his bankruptcy to the defendant to be fulled as usual; and after they were finished the defendant, in consequence of prior or ders from Gard, shipped them on board a certain vessel at Exeter to be forwarded to him in London, and sent the invoice to Gard. No bill of lading was signed by the captain at the time of the shipment; but soon after the vessel sailed, Pym, hearing of Gard's bankruptcy, followed and overtook the captain off Deal in his passage to London, and there procured him to sign. a bill of lading to Pym or his order, by virtue of which Pym obtained the delivery of the goods on their arrival in London.

At the trial before Lord Eldon at the last assizes for the city of Exeter, the plaintiffs recovered a verdict under his Lordship's direction, he being of opinion that no person having a lien on goods, can if he part with the possession afterwards stop them in transitu, and thereby revive his lien against

(a) This fact was offered to be more fully supplied by affidavit; but the Court thought this was not a case in which the plaintiff should be allowed to bring forward any fact that had not distinctly appeared at the trial: and therefore quære as to the opinion on this point.

(b) An action for money had and received does not lie to recover stock. Nightingal and others assignees of Meltivier v. Devisme, 5 Burr. 2589. and 2 Black. Rep. 682. Lord Mansfield said "It is a new species of property, and is not money." [In The King v. The Churchwardens, &c. of St. John Middermarket, 6 East, 182. it was held that government stock is not money at interest.]