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![handle is hein.slavery/ssactsengr0308 and id is 1 raw text is: to the provisions of the said act of Parliament,(a) produce [436] such a certificate
as is in the said act mentioned. Verification.
Replication, de injurift.
Special demurrer, assigning for cause, that the replication was bad, inasmuch as
the plea did not contain matter of excuse merely, but shewed that the defendant was
wholly exempt from the payment of the rates and duties imposed by the said act.
Joinder in demurrer.(a)
Butt, in support of the demurrer. This plea does not consist of matter of excuse,
but is in denial of the existence of the alleged liability at any time; and therefore the
replication de injuriA is improper: Crogate's ase (8 Rep. 66) ; Schild v. Kipii (8 M.
& W. 673), Salter v. Purchell (I Q. B. 209; 1 G. & D. 693). The 32 Geo. 3, c. lxxiv.,
s. 58, absolutely exempts from duty all ships bound to or from the town of Sandwich,
belonging to an inhabitant of that town, in case the master shall produce the proper
certificate of ownership. The plea brings the case within that section, and shews,
therefore, that the debt sued for never accrued. [Lord Abinger, C. B. It is difficult
to see how de injuri' can be replied here. The action is for a debt arising under an
act of Parliament, and the plea amounts to a denial that any such debt arose in the
particular case.] The Court then called on
Peacock, contra. The plea discloses matter in excuse of the primfi facie liability
arising under the Sth section of the act. The defendant seeks to be excused from his
prima facie liability under that section, by bringing himself within the exception con-
tained in the 58th. [Lord Abin-[4371-ger, C. B. The plaintiff must shew that the
defendant was within the clause imposing the duty : but here he sues in a case in
which no duty was payable.] In Isaac v. Farrar (1 M. & W. 65), the plaintiff had
no right to sue on the bill, by reason of his having obtained it by fraud, and yet the
replication de injuriA was held good. [Parke, B. In that case the plea admitted
a primaf facie liability to the plaintiff, as indorsee of the, bill, but shewed that the
plaintiff took it under circumstances which excused the payment to him. But here
the plea is not matter of excuse; it amounts in fact to the general issue. Alderson, B.
Suppose the exception had been contained in the same clause which imposed the
duties; the declaration must then have shewn that the plaintiff was not within it.]
Per Curiam. Leave to the plaintiff to amend on payment of costs; otherwise
Judgment for the defendant.
[438] 1EATH AND OTHERS v. DURANT. Exch. of Pleas. Jan. 24, 1844.-To a
declaration on a policy of insurance on goods, stating the usual stipulation against
takings at sea or arrest, and averring a loss by arrest and detention under the
authority of a foreign power, the defendant sought to plead non assumpsit,
and also the following special pleas: 1. That the policy was made and subscribed
by the defendant, and the premium paid by the plaintiffs, as in the declaration
mentioned, on a certain day, to wit, &c. ; and at the time of making the said
policy and paying the said premium, and in consideration thereof, it was-agreed
(a)1 The 32nd Geo. 3, c. lxxiv. : the 8th section whereof imposes certain rates and
duties on vessels entering or passing the harbour; and the 58th provides, that
nothing herein contained shall extend, or be construed to extend, to charge with any
of the rates and duties thereby granted and imposed, any ship or vessel which shall
be bound to or from the town of Sandwich, in the said county of Kent, the whole or
the major part of which ship or vessel shall belong to or be the property of any of the
inhabitants of the said town, in case the master, or other person having the charge of
such ship or vessel, shall produce a certificate under the hand and seal of the mayor
of ihe town and port of Sandwich, attesting that such master, or other person &c.,
had made oath before him the said mayor, that some inhabitant or inhabitants of the
said town is or are the owner or owners of the whole or the major part of such ship
or vessel; but that all such ships or vessels shall and may pass to and from, by, into,
and out of the said harbour of Ramsgate, without paying any of the said rates and
duties, anything herein contained to the contrary thereof in any wise notwithstanding.
(a)2 Another ground of demurrer assigned was, that the replication de injuriA is
not admissible in an action of debt; but this point was not argued. See Purchell v.
Salter, 1 Q. B. 197; 1 G. & D. 682.
1268
HEATH V. DURANT
12 M. & W. 436.](ViewImageLocal?handle=hein.slavery/ssactsengr0308&div=1&collection=&method=preview&ext=.png&size=3)