John Garvin, in Replevin, v James Carroll

• Jurisdiction: Ireland
• Judgment Date: 27 January 1847
• Date: 27 January 1847
• Court: Queen's Bench Division (Ireland)

Queen's Bench.

JOHN GARVIN, in replevin,

and

JAMES CARROLL.

Bastard v. Smith 10 Ad. & Ell. 213.

Pepper and Locke v. Newenham 4 Law Rec. N. S. 155.

Hennell v. LyonENR 1 B. & Ald. 182.

Highfield v. Peake Mood. & Malk. 109.

Dartnall v. HowardENR Ry. & Mood. 169.

Davies v. Davies 9 Car. & Pay. 252.

Dartmouth v. RobertsENR 16 East, 334.

Ewer v. Ambrose and Baker 4 B. & Cress. 25.

Cossey v. DiggonsENR 2 B. & Ald. 546.

Denney v. Hewson and another 1 Fox & Sm. 47.

The Queen's caseENR 2 Brod. & Bing. 286.

Howell v. BowenENR 1 M'Clell. & You. 383.

The King v. Johnson 1 M'Clean & Rob. 1.

Tinkler v. Rowland 6 Nev. & Man. 848.

Edge v. Wandesford 9 Ir. Law Rep. 161.

Powell v. SonnettENR 1 Bli. N. S. 545.

CASES AT LAW. 323 a particular day. The ship was lost on that day before the policy was underwritten, and it was held that the warranty was complied with if she were safe at any time of that day. How are the words in the present policy, " warranted safe in port," to be ruled by the other words, "lost or not lost ?" Unless there be an absolute necesÂsity for such a construction, we should not allow one set of words to do away with the effect of the others. The two clauses here are perfectly consistent, for they may apply to a loss in port. For these reasons, I am of opinion the action cannot be sustained. CRAMPTON, J. If it were possible to rule this case consistently with the plaintiff, I would wish to do so ; but the plaintiff cannot recover on this policy. The question is one merely of construction. No port was in contemplation of the parties to the policy but Cardiff and BallyÂshannon ; the voyage and risk were to commence from Cardiff; and the warranty would import that Cardiff was the port in contemplaÂtion of the parties. PERRIN, J. This demurrer ought to be allowed, for the case is governed by Colby v. Hunter, which is founded on sense and justice. It was necessary to know the port in which the vessel was at the date of the policy ; for a vessel safe in a port of lading on a particular day is a very different case from a vessel in an intermediate port after sailing. Demurrer allowed. JOHN GARVIN, in replevin, v. JAMES CARROLL. Jan. 27. REPLEVIN.-The declaration contained a count for the taking of theissue in On an replevin as to plaintiff's cattle on the lands of Loughane, in the county of Tippe- whether a per- rary. son of the name of Garvin was tenant at a certain period to A or B, Garvin was produced on the trial as a witness, and an attested copy of an affidavit, made by a person of the same name in a cause in the Court of Exchequer in 1839, was offered in evidence, in which the allegations as to facts were different to what Garvin swore at the trial. Held, that such attested copy was admissible in evidence, proof being given of the identity of the person who swore the affidavit with the person produced at the trial. (PERRIN, J., dubitante.) Held also, that if issues, originally material, become immaterial by reason of the substantial question having been settled by an issue found for one or other of the parties, the Judge is authorised in discharging the jury from a finding on the reÂmaining issues. 324 CASES AT LAW. The defendant avowed and acknowledged the taking, by six avowries and six cognizances. The first avowry averred that one Thomas Pierson Firman was seised in fee of said lands, and being so seised he, by indenture, bearing date the 29th of April 1825, granted to defendant an annuity or yearly rent-charge of £12 sterling, late currency, out of said lands, to hold to said defendant, his heirs and assigns for ever, to be paid by two half-yearly payments, on the 1st day of May and 1st day of November in each year ; and that the said Thomas P. Firman did by said indenture, for himself and his heirs, covenant and agree with the defendant that, in case the said annuity should be behind or unpaid by the space of thirty-one days next after either of the gale days, it should be lawful for the said defendant to enter and distrain, and to sell and dispose of the disÂtress until said annuity and all arrears thereof should be fully paid off and satisfied ; that said annuity was in arrear, wherefore the said defendant well avowed the taking of the cattle. The first cognizance acknowledged the taking of the cattle, the plaintiff having held the said lands as tenant to the said Thomas P. Firman, and justified the distress as bailiff to Thomas P. Firman. The plaintiff pleaded to the first avowry, first, non seisin in fee of Thomas P. Firman ; and secondly, ne granta pas; and to the first cognizance non tenuit and riens in arrear. The other avowries and cognizances are not necessary to set out, no finding having been taken on them. The case was tried before PENNEFATHER, B., at the Summer "Assizes of 1846, held at Nenagh, for the North Riding of the county of Tipperary. On the part of the defendant in replevin, a lease of 1st of May 1805, from Thomas Pierson Firman to Andrew Hoctor, of the lands of Loughane for two lives and the survivor of them, with a covenant for perpetual renewal, was given in evidence ; also a conveyance of the 15th of December 1812 of other lands called Garryclough, from Thomas Pierson Firman, sen. and jun., to Thomas Going; and the deed of annuity of 29th of...