holder. These circumstances shew, that interest is in the nature of damages, and is no part of the debt. The practice in Chancery, established in the case before Lord Hardwicke, is conformable to this view of the subject; and cases upon this point are there matters of daily occurrence. If the interest constitute part of the debt, the Chancellor cannot refuse to allow the holders to prove for it; for he cannot distinguish between one part of the debt and another. Yet we find, that a distinction between principal and interest is continually made. It must, therefore, have a legal foundation, and that foundation is, that the principal is, in point of law, the debt, and the interest only in the nature of damages; and that as the commissioners of bankrupt are only to receive proof of debts, they cannot allow any thing to be proved, which does not constitute part of the debt. I am, therefore, of opinion, that the interest cannot be added to the principal, so as to make this a good petitioning creditor's debt. HOLROYD J. I am of the same opinion. It appears to me quite sufficient to decide this case, that the point was settled so long ago by Lord Hardwicke, whose decision has been acted upon ever since; but even if this were res integra, I should think the principle of that decision right. Where the interest is expressly agreed to be paid, it may be considered as part of one aggregate debt; but where a specified sum only is agreed to be paid, there interest is recoverable as damages, and it may depend upon external circumstances, whether any and what interest is to be recovered. The commissioners of bankrupt cannot enquire into those circumstances, and, therefore, it is not competent for them to X 3 allow 1819. CAMERON against SMITH. 1819. CAMERON against SMITH. allow interest at all. There was, therefore, no good petitioning creditor's debt in this case. BEST J. I should have felt myself bound to have decided this case, upon the authority of the case 'before Lord Hardwicke, and that lately determined by the Court of Common Pleas ; but I am satisfied, independently of those authorities, with the propriety of the distinction between the cases where there is an express stipulation for interest and those where there is none. In the latter the amount of interest is uncertain, and being like any other unliquidated damages, cannot be considered as part of the debt due on the bill. There must, therefore, be a new trial in this case. Rule absolute. Tuesday, An agent cannot dispute the title of his principal; and therefore where a ship originally belonged to one of two part. ners, and had been conveyed DIXON and Another, Assignees of DAVIDSON, a ASSUMPSIT for money had and received. Plea, general issue. At the trial at the Guildhall sittings after last Michaelmas term, before Abbott C.J., it appeared that the bankrupt Davidson was the surviving partner of one Flowerden, and that Flowerden being possessed of a ship called the Sidney, had in 1814 ing a debt, and assigned her over to one Hart, as security for the to B. for secur B. became the sole registered owner of the ship, and afterwards, as agent for both partners, insured the ship and freight, and charged them with the premiums, &c.; and, on a loss happening, received the money from the underwriters: Held that he was accountable to the assignees of the surviving partner for the surplus, after payment of his own debt, and not to the executors of the deceased partner, to whom the ship originally belonged. advance advance of 1000l., and the ship was accordingly re- Scarlett moved for a new trial. Here, by a regular assignment, the defendant is owner of the ship, and has the only legal title to it. Then what title can the assignces of Davidson have to it? Their only right to this money arises from their being the legal owners of 1819. DIXON against HAMOND. 1819. DIXON against HAMOND. the ship, and it would therefore follow, that not being so, they have no title by which they can claim this money. And their only remedy will be, if they have any, by going into a court of equity. But even supposing that the defendant only holds this money as security for his debt of 9007., and that he is accountable for the surplus, it is clear that he is not accountable to these persons. For the ship never was the property of the partnership at all: she originally belonged to Flowerden alone; and, therefore, it is to his representatives that the defendant is, if at all, accountable. Then will the accounting with the partnership for the premiums, &c. make any difference? Suppose a borrower gives a mortgage on another person's land as a security, and the mortgagee in possession were to account with the mortgagor, and pay over to him the surplus rents, could it be said that afterwards, on the estate being sold, the mortgagee was bound by that to pay the surplus to the mortgagor, and not to the real proprietor? Here, therefore, Hamond is mortgagee in possession; the ship is sold; and he must be accountable to the representatives of the real owner Flowerden, and not to the assignees of Davidson, who never had any real title whatever to the ship. This action, therefore, cannot be maintained. ABBOTT C. J. If, in order to maintain this action, it were necessary to shew that the legal title to this ship was in the present plaintiffs, there could be no doubt that the defendant would be entitled to our judgment. For it is clear that the ship never belonged to the partnership at all. It was originally the property of Flowerden alone, and by him the legal interest was first transferred to Hart, and subsequently vested in the present defendant. He, however, in 1815 receives an order to effect an insurance on the ship and freight on the partnership account, and he does effect it, and accounts with the partnership for the premiums. After this, the ship is lost, and he receives the money from the underwriters. Then, in truth, the legal title to the ship has nothing to do with this question. The right of the plaintiffs to recover here depends on a settled rule of law, that an agent shall not be allowed to dispute the title of his principal, and that he shall not, after accounting with his principal, and receiving the money in that capacity, afterwards say, that he did not do so, and did not receive it for the benefit of his principal, but for that of some other person. Here the defendant has received the money as agent for the partnership, and he cannot now be permitted to say, that he received it for the benefit of Flowerden alone. All the rest of the world, except the defendant, might dispute the legal title of the plaintiffs to the ship, but he cannot do it. There is, therefore, no reason for granting this rule. BAYLEY J. The case only depends on the peculiar relation between principal and agent. Hamond here has effected an insurance for both Flowerden and Davidson, and the loss having happened, the underwriters have paid it to him as the agent of both partners; then he must pay it over, according to his duty as agent, viz. to the partnership; and he is not at liberty now to say, I will not do so, but I will pay it to Flowerden alone. The verdict therefore is right. HOLROYD 1819. DIXON against HAMOND. |