27 Va. 22 | Va. | 1827
In the Superior Court of Buckingham, the Mutual Assurance So» eiety, hy their Principal Agent, made a motion against Stratton, assignee and actual owner of buildings insured by Silas Flournoys for quotas due from 1809 to 1822, inclusive, and a quota of deficiency,., under the Acts of 1822. On the trial of the motion, it was agreed by ihe parlies, that the General Laws, as well as the Particular Laws, Rules and Regulations of the Society, should be considered by the Court as part of the evidence in the case, and in case of appeal, should be taken as part of the case, and that the Court might decide on all questions, whether submitted in the form of plea or otherwise; and this agreement to be considered as an appendage and part of the motion, as well for the Court, as for the Clerk. The Court gave Judgment for the Plaintiff, for the various quotas claimed, with interest, &c. and costs, damages and expenses, according to Law, and ihe Rules and Regulations of the said Society. From this Judgment, the appeal is taken; and many object-lions to it have been raised, and well argued.
We feel tin doubt as to the jurisdiction of the Court. The inter* est :s a of the matter in
The next objection is, that one who takes the property by assignment from the original subscriber, is not liable by motion. To ascertain we must look at the nature of the institution and the Laws creating and it. The fundamental principle of 1he Society is mutual assurance, and mutual risque. Every member is the insurer of every other, and has every other bound to insure h>m. To raise a fund for the losses which should occur, each member is bound upon declaring, to pay such jiremiam as should be fixed, upon the property insured. As it was foreseen, that future requisitions would be necessary, it was enacted, that each member should be bound to pay such quotas as might afterwards Le called for by the proper authority. It was foreseen also, that' the property insured would be constantly passing from hand to hand, by sale, mortgage, &c. To meet this state of things, the Law enacts, that in every sale, mortgage or other transfer of property insured, the purchaser or mortgagee shall be considered as a subscriber in the room of the original; thus making him, to all intents and purposes, a member of the Corporation, entitled to all the advantages, and subject to all the burthens, of every other member. The powerof the’ Legislature to do this, has not been denied; and it will bo seen at a glance, that without such a provision, the Society could never have gotten on. The original Act, which contained this provision, did not subject Ihe members to a recovery by motion; but it. was soon found, that this summary remedy was necessary; and an Act passed, stating, that ■whereas the Mutual Assurance Society was bound to make imnto
It was next objected, that there was no re-valuation. This, however, did not seem to be relied on; and properly, for it cannot affect the motion, either on the reason of the case, or on the express Regulations of the Society, p. 22, sec. 13, to which the Defendant, with the other members, was a party.
it was objected also, that it does not appear that the Defendant
Another objection is, that no sale has taken placo under the Act. of 1822, and until that, there could he no motion against the country subscribers. This objection, so far as it applies to quotas duo before the Act of 1822, is founded on a clear misapprehension, of that. Law. Its object was to abolish the Country Branch of the Society. But justice required, that such abolition should not leave the Society chargeable with any of the debts of that Branch, without adequate funds to meet them. The Act therefore directs, that the Principal Agent shall assess a repartition on all the members of the Country Branch, agreeably to the provisions of the Acts eoiteerning the M. A. Society, sufficient to pay all lawful demands against the Principal Agent as such, or against the Society: But such repartition shall not be made or exacted, until it shall be found that after selling all property, and estimating all dues up to this time, which belong to the said Country Branch, there is a deficiency in the funds to meet their- engagements and pay their debts; nor then, hut by the direction, and under the control, of the Standing Committee. If there were nothing more in the Law, this clause shows clearly, that it did not intend to suspend, or to touch, the right of the Society to coerce the payment of quotas already due. For, it considers these as forming a part of the actual funds of the Country Branch directing the Agent to sell the-property, and estímale all dues tip to this time, belonging to the said Branch: and it is only when the fund thus made up shall be found deficient, that a repartition is to be made. A contrary construction would imputo to the Legislature the singular and gross injustice of holding out & premium to delinquency, by placing the subscribers who had failed to pay up their quotas,'on a better fooling than those who had paid. But, the next section of the Law says, in express words, “that the members of the Country Branch, after complying with, the requisitions iiuretofoue and herein imposed, shall be released from all further responsibility,” &c. It is most, clear, then, that it is to the repartition or quota of deficiency only, that the Act of 1822 applies* leav
Another exception taken, is, to that Law of the Society, which enacts, that the members who, by failing to pay, shall render it necessary to coerce the payment of premium or quota by recourse to legal proceedings, shall, fo indemnify fhe Society for expenses ne
With respect to this 7¿ per cent, another objection, (not taken in (he Court below, nor in the argument here,) has occurred to a brotlicr Judge. It is, that these damages being imposed by a Law of the Corporation, cannot be recovered by motion. The Act of Assembly gives the remedy by motion, to recover the premiums, quotas, &e. due from subscribers. This 75 per cent, is a mere accessary, an appendage to that, to reimburse to the Corporation the expenses incurred in making the motion, and collecting the money I'rom the delinquent subscriber. It is a part of the costs of the proceeding, which the subscribers have agreed among themselves that each shall pay, whenever his delinquency makes it. necessary for the Society to resort to a motion. The expenses which this 7$ per cent. was intended to meet, growing out of the motion, the members must of necessity have meant, that it should be recovered at the same time, and by the same motion, with the premium or quota. They never could have intended, that the motion should be made, and the premium or quota, with its interest recovered,- and then, that a distinct action should be brought, and anew set of this cent, in nineteen cases out of ¡.went}-, would notcxcecd $10;andthe costs of which recovery, would generally equal, if not overgo, the sum demanded. To say, then, that this 75 per cent, shall not he rceo venid in the motion, would be to defeat the Law of the Corporation
The last objection to he considered, and, in my opinion, the most serious, is, that the Judgment of the Couri below is void for uncertainty. The Judgment is, that the. Plaintiff recover against the Defendant, the several sums claimed as quotas, with interest till payment, with costs, damages and expenses, according to Law, and the Bules and Regulations of the Socle!p; thus leaving it to the Clerk to ascertain those damages. I have examined all the Hooks within my reach, to find some certain authority on this point, but have failed. The general rulo seems to he, that the Judgment, being the voice of the Law pronounced by the Comí on the matter iu controversy,should be so certain as to leave nothing doubtful of unsettled. The Judgment with us is never given for a sum certain, as costs; but for costs according to Law. This is considered as sufficiently7 cer. tain, because the Law is certain and fixed; and yet the Clerk may, in his taxation, mistake the Law. Hy analogy to (his practice, it did seem to me, that the Judgment here might he sustained. The Law of the Society giving the 72 per cent, damages, is just as certain as the General Law of and that the meat of the parlies, is made a part of the record. The agreement says, “it shall be an appendage and part of the case, as well for the. Court as for the Clerk.” There seems to me no more uncertainty here, than in all other Judgments as to costs. Nor can I conceive, why the agreement should have named the Clerk, but with a view to enable him to fix the damages by this document, this Law. This was my own idea; but, as my brethren differ with me, and think that it might be a dangerous precedent, to relax, even thus far, the strictness which, it seems to them, has hitherto prevailed in Judgments, I acquiesce in their opinions, that the. Judgment, for this error, must be reversed, so far as relatos to the damages; and this Court, proceeding to give such Judgment as the Court below ought to have given, &c.; the Appellee, as the party7 substantially succeeding, to have costs.
The agreement, in this case does not amount to an exception to the Judgment of the Court, upon the whole of the proofs submitted upon the motion. It states certain specific grounds of defence, and agrees to so much of the evidence as relates to those particular objections. This precludes any objection to the want of evidence, as' to any other matter, which was necessary to justify the Judgment; all of which must he presumed to have been given, unless the contrary appeared by an exception. This repels the objection taken at the bar, that it does not appear upon the proofs in the record, that Stratton was the assignee of the original owner, who insured the property. The Judgment is founded on the supposition of that fact; and no exception being taken on that ground, it must he supposed to have been duly proved.
1 concur in the -view s already taken of the other points made in the argument of the cause; hut, I think the Judgment is erroneous for its c uncertainty. It directs, that the Plaintiff recover damages and ’ " expense's, according to Law, and the Rules and Regulations of the Society, without specifying the amount or nature of the damages and expenses. The Judgment, with us, is always for costs generalIj-, without specifying the amount, contrary to the practice in ling-land- Bernard v. Scott, 3 Rand. 526; Tidd’s Practice, 389. There is no uncertainty or inconvenience in this, as the fee books and process, which ascertain the amount of the costs, are records of the Court. So, the damages awarded on appeals, are ascertained by the General Laws; and Judgment is given for them generally. But there is no criterion, by which to ascertain the expenses and damages, allowed by the Rules and Regulations of a private Corporation, without resorting lo extraneous proofs.
If the 7 á per cent, imposed as a penalty on the members of the Society, for the purpose oí compensating the Society for the damages and expenses incurred in prosecuting a suit for the recovery of what may be due from a member, had been estimated, and the amount specified in the Judgment, I should have thought the Judgment erroneus in that particular; this penalty, being imposed, not by Act of Assembly, hut by a Bye-Law of the Corporation, which can only be recovered by action. The summary remedy, given by the Act of Assembly, can only be resorted to, to the extent thereby allowed for the recovery of thc.premiums and quotas and interest thereon. In the case of Greenhow v. Buck, 5 Munf. 263, the Court gave Judgment for the 7-J per cent.; but this question was not stirred, and pro
The Judgment should be reversed, and entered verbatim as it is, leaving out the words, “damages and expenses according to Law, and the Rules and Regulations of the Society.”
Judge Cabell concurred with Judge Carr, as to the merits of the-ease, but was of opinion that the Judgment should be reversed for uncertainty as to the damages.