1854.

v.

BUSSELL.

custody of the sheriff of Middlesex as to this action, the defendant hereby undertaking to pay the rest of the debt HOOKPAYTON and costs, including the costs of the opposition (4l. 4s. Od.) in the Insolvent Court by monthly instalments of 21. The first payment to be made on the 27th day of May next, the judgment to stand as a security. The defendant hereby consenting, that, in default of payment in either of the said instalments as aforesaid, the plaintiff be at liberty to issue execution by fieri facias or capias ad satisfaciendum: the defendant hereby undertaking to bring no action against the plaintiff. Dated this 27th day of April, 1852. T. J. PLATT.-Averments, that the defendant thereupon then forthwith paid to the plaintiff's attorney, in pursuance of the said order, the sum of 5l., and with the consent of the plaintiff was discharged out of the custody of the sheriff as to the said action; and although the defendant afterwards, in pursuance of his said undertaking, did pay to the plaintiff the first of the said instalments of 2l., yet he has not paid any other of the said instalments.

Demurrer and joinder.

Maude in support of the demurrer.-The declaration does not disclose any cause of action. It will be argued that this is not the ordinary case of a Judge's order, because the circumstances under which it was made create a contract on the part of the defendant to obey it. But the order is a mere direction by the Judge that certain things shall be done, and for the disobedience of which the defendant is liable to an attachment. The case is not distinguishable in principle from Dent v. Basham (a), where this Court held that no action lies for the disobedience of a Judge's order made under the 6 & 7 Vict. c. 73, s. 37, for the delivery by an attorney to his client of his bill of costs. Though the order in question was made by consent, it must be treated as any other order: Joddrel v.

(b).

1854.

HOOKPAYTON

v.

BUSSELL.

The Court then called on

Dowdeswell to support the declaration.-On the face of the declaration, there is a mutual agreement between the parties, founded on a good consideration, and ratified and confirmed by a Judge's order. It is not the less a contract between the parties because its performance may be enforced by attachment. [Platt, B.-There is no instance of an action on a peremptory undertaking. Pollock, C. B. -A Judge's order is an undertaking, not to the party, but to the Court. Martin, B., referred to Wade v. Simeon (a).] In Wentworth v. Bullen (b), Parke, J., says, "Now, though there is no remedy for disobedience of a Judge's order (as such) by one of the parties against another by action, but by attachment merely, yet, if it be made by the consent of both, and be founded on a binding agreement, an action will not the less lie upon that agreement, though it have also the additional sanction of a Judge's order. The contract of the parties is not the less a contract, and subject to the incidents of a contract, because there is superadded the command of a Judge. The case of an agreement to refer by order of a Judge is a familiar instance, many actions being brought on such agreements." [Pollock, C. B.-Those observations were purely obiter dicta. The action was brought for arresting the plaintiff for too much; and, a verdict having been found for the plaintiff, a rule nisi was obtained for entering a nonsuit, on the ground that the action was not maintainable, or for a new trial, on the ground that the damages were excessive. All the Judges were of opinion that the damages were excessive, and on that ground granted a new trial; and, my Brother Parke having intimated a doubt whether the action was maintainable, the Court recommended the parties to come to some arrangement.] The fact of the plaintiff

having a remedy by attachment does not prevent him from bringing an action for the breach of contract.

POLLOCK, C. B.-The defendant is entitled to judgment. Where the order is made by authority of the Judge, and without the consent of the parties, I am clearly of opinion that no action will lie upon it. Then does it make any difference that the order is made by consent? I think not. The consent is merely the giving a power to make an order which could not be made without it, but when the order is made, it is the same as an order in invitum, and the proper remedy for disobedience of it is by attachment. We ought to guard against attempts to create new causes of action, and new modes of multiplying costs.

ALDERSON, B.-I am of the same opinion. This is in substance an action on an order of a Judge. It is said that, because the order is made by consent, it amounts to a contract. But the consent is only a permission for the Judge to make the order, which he could not otherwise do. Then, the consent having given the Judge jurisdiction, it is the same as if he had jurisdiction before, and the order is an undertaking to the Court that the party will do what he is ordered, and if he does not he is subject to an attachment. I do not agree with the observations of my Brother Parke in Wentworth v. Bullen.

PLATT, B.-The compact between the parties is, that an order of a Judge shall be drawn up upon those terms, and that the party shall have the remedy for enforcing it which is incident to a Judge's order, viz. attachment.

MARTIN, B.-I am of the same opinion. No action can be maintained on a Judge's order, as such. It is urged that this, being an order made by consent, amounts to a contract. But the order is not drawn up on consent, and if there

1854.

ΗΟΟΚΡΑΥΤΟΝ

V.

BUSSELL.

1854.

HOOKPAYTON

v.

BUSSELL.

has been any contract to pay the money, the plaintiff should declare upon it, and not upon the order. It is obvious what the nature of the order is. The defendant, being in custody, applies to a Judge to be discharged, and it is arranged that he shall be discharged upon payment of a sum of money down, and the rest by instalments, the judgment to stand as a security, and the defendant consenting that, in default of payment of any instalment, the plaintiff shall be at liberty to issue execution. The latter stipulation shews that it was never intended that the Judge's order should be a contract. If the argument on behalf of the plaintiff is correct, an action would lie for the disobedience of every Judge's order in which a party undertakes to do some act.

Judgment for the defendant.

May 31.

Barratry can be

committed by

master who is

also part owner

of the ship.

JONES V. NICHOLSON and Another.

THIS action came on for trial before Wightman, J., at a the Liverpool Summer Assizes, 1853, when a verdict was found for the plaintiff for the damages in the declaration, subject to the following case:

The declaration stated, that the defendants, on the 15th October, 1849, caused to be made a policy of insurance, at and from Monte Video to Valparaiso, upon any kind of goods, &c., of and in a vessel called the Helena, which were and should be valued at, on a cargo of lumber, value 2000l., warranted free from particular average, unless stranded. That the plaintiff became an insurer to the defendants under the said policy of 100%. upon the said cargo in the said policy mentioned, and duly subscribed the said policy, the defendants having duly paid

the consideration for that assurance. That, on the 5th of April, 1850, the defendants gave notice to the plaintiff, that divers quantities of lumber, namely, a cargo thereof of great value, had been shipped and loaded at Monte Video on board the said ship, to be conveyed therein on the said voyage; and that the defendants were then, and from thence until the supposed loss thereinafter mentioned, interested in the said cargo; and that the said ship and cargo had not arrived at Valparaiso, and had not been heard of; and that the defendants requested the plaintiff to pay them the said sum insured by him as for a total loss. That thereupon, in consideration that the plaintiff would sign off and pay to the defendants as for a total loss on the said policy, on the understanding that, in case the said ship should be heard of thereafter, the plaintiff should be put on the same footing as if that payment had not been made, the defendants promised that, in case the said ship should be heard of thereafter, the plaintiff should be put on the same footing as if that payment had not been made. That the plaintiff afterwards signed off and paid as for a total loss on the said understanding 80%, 20% residue of the said 100l. being deducted by reason of short interest of the defendants in the cargo, such deduction being then agreed to and allowed. That the ship and cargo were not, nor was any part of either of them, lost or damaged by the perils of the seas; and the vessel was afterwards heard of, of which the defendants had notice, and were requested to put the plaintiff on the same footing as if that payment had not been made. That, nevertheless, the defendants had not put the plaintiff on the same footing, &c., and that the 801. remained unpaid.

The defendants pleaded (inter alia), that, after making the said policy, and during the continuance of the risk thereby insured against, and whilst the vessel was on her voyage, the vessel and cargo were, by the perils which in

1854.

JONES

v.

NICHOLSON.