Kidd v Loughnan

• Jurisdiction: Ireland
• Judgment Date: 25 November 1851
• Date: 25 November 1851
• Court: Court of Common Pleas (Ireland)

Common Pleas.

KIDD

and

LOUGHNAN.

Higden v. WilliamsonENR 3 P. Wms. 133.

Moth v. FromeENR 3 Ambler, 394.

Robinson v. M'DonnellENR 5 M. & S. 286.

Carpenter v. MarnellUNK 3 B. & P. 40.

Burn v. CarvalhoENR 1 Ad. & El. 883

Leslie v. GuthrieENR 1 Bing. N. C. 697.

Parnham v. HurstENR 8 M. & W. 743.

Trott v. SmithENR 12 M. & W. 688.

D'Arnay v. ChesneauENR 13 M. & W. 796.

Spencer's caseUNK 5 Rep. 16.

Winch v. KeelyENR 1 T. R. 619.

Master v. MillerENR 4 T. R. 320.

La Coste v. GillmanENR 1 Price, 315.

Ex parte Marshall 1 Mont. & Ayr. 118.

Ex parte Thompson 1 Mont. & Bligh, 219.

Gladstone v. HadwenENR 1 M. & S. 517.

Attwood v. PartridgeENR 4 Bing. 209.

Crowfoot v. GurneyENR 9 Bing. 372.

Dangerfield v. ThomasENR 9 Ad. & El. 292.

Spencer v. Boyes 4 Ves. jun. 370.

Riddell v. RiddellENR 7 Sim. 529.

336 COMMON LAW REPORTS. M. T. 1851. CommonPleas. KIDD v. LOUGHNAN. Nov. 14, 15, 18, 19, 25. Covenant.- CovENANT.-The declaration stated that whereas heretofore, to wit, The declara tion stated on the 21st day of December, A.D. 1844, by articles of agreement, that by articles made between the plaintiffi the defendant, and one George Kidd of agreement, dated the 21st (Profert) ; after reciting that the said George Kidd then stood of December 1844, and between indebted to the plaintiff by judgment and otherwise in the sum of made the plaintiff, 780. 2s. 2d., and that in order to secure the amount of the debt and the defendant and one G. K., interest, it was agreed upon between the plaintiff and George Kidd which recited that G. K. that an insurance should be effected on the life of the said George was indebted to the plaintiff Kidd, and that the said George Kidd should pay the premiums upon in 800, and that in order such insurance for the space of seven years, and should procure for to secure re- the plaintiff sufficient security that the same should be punctually payment, it was agreed paid from time to time during the said term of seven years ; and that the plain- tiff should effect an in_ that the defendant having agreed to become such security for the surance on the punctual payment of such premium upon the life of the said George life of G. K., and that G. Kidd for the said term, the plaintiff had agreed thereto, and to K. should pay the premium for seven years ; the defendant covenanted with the plaintiff, his executors, admiÂÂnistrators and assigns, to pay the premiums as they should become. Breach-NonÂÂpayment. Plea-That before the commencement of the action, and before the commission of the breaches assigned, the plaintiff became bankrupt, and that J. T. was apÂÂpointed his assignee, and thereby became entitled to the supposed causes of action. Replication-That by deed of the 17th of April 1845, made between the plaintiff and M. K. his wife of the first part, T. G. and R. B. of the second part, and R. H. of the third part, the plaintiff, in consideration of 800, assigned the said policy to R. H., his executors, &c. ; that the money was still due, and that the action was brought by the plaintiff for the benefit of the representative of R. H. The deed of the 17th of April 1845 being set out upon oyer, purported to assign to R. H. several policies of insurance in different amounts, the property of the plaintiff and M. K. his wife, with all sums of money due by virtue thereof, " and all advantage to be had or derived therefrom respectively," with a proviso, that on payment of 800, R. H. should re-assign the premises to T. G. and R. B., their executors, &c., in trust " for the plaintiff and M. K. his wife, and the survivor of them, and the exÂÂecutors and administrators of such survivor." Held, upon demurrer, that the repliÂÂcation was good ; that the right to sue upon the covenant in the articles of the 21st of December 1844 did not pass to the assignees under the bankruptcy of the plainÂÂtiff, but might be sued for by the plaintiff for the benefit of the parties claiming under the deed of the 17th of April 1845. COMMON LAW REPORTS. 337 accept the defendant as such security ; and that in pursuance of M. T. 1851. ComnwnPleas. the said agreement, a policy of insurance upon the life of the said George Kidd had been effected by the plaintiff with the Victoria KIDD v. Insurance Company of London for 800, bearing date the 27th of LOUGHNAN. February 1844. It was witnessed that the defendant did thereby, for himself, his executors and administrators, covenant and agree to and with the said plaintiff, his executors, administrators and assigns, that he, his executors or administrators, would punctually, as the same should become due, pay the said annual premium upon the said policy of insurance upon the life of the said George Kidd with the said Victoria Insurance Company as follows--that is to say, 20. 2s. 8d. on the 19th of February 1845 ; 20. 16s. on the 19th of February 1846 ; 21. 9s. 4d. on the 19th of February 1847 ; 22. 2s. 8d. on the 19th of February 1848; 22. 16s. on the 19th of February 1849 ; 23. 9s. 4d. on the 19th of February 1850 ; so as that the premium upon the said policy should be punctually paid for the space of seven years from the date of said articles. Averment-That after the making of the said articles, and during the lifetime of the said George Kidd, and although the said sum of 22. 16s. in the said deed mentioned became due on the 19th of February 1849, as and for the annual premium upon the said policy of insurance, and a further sum of 23. 9s. 4d. became due on the 19th of FebÂÂruary 1850, as and for the annual premium upon the said policy, yet the said defendant did not pay the same at the times and in the manner appointed for payment of the same, according to the true intent and meaning of the said indenture and covenant. Plea-That before the commencement of the suit, and after the making of the said articles of agreement in the said declaration mentioned, and after the breach of covenant in the said declaration assigned, the plaintiff became bankrupt, and that one John Thompson was appointed assignee of his estate and effects, and thereby became entitled to the said supposed causes of action.*- Verification. * The dates of the several proceedings in the bankruptcy, as stated in the plea under a videlicet, were as follows :-The act of bankruptcy on the 1st of October 1849 ; the adjudication on the 10th of November 1849 ; the vesting order on the 7th of November 1849. voL. 2. 43 L 338 COMMON LAW REPORTS. Replication-Precludi non ; because he says, that after the making of the said articles of agreement in the declaration menÂÂtioned, and more than four years before the time that he the plaintiff became and was a bankrupt, in manner and form as in the said plea mentioned-that is to say, on the 17th day...