THE KING v. REEVE. object of the inferior jurisdiction; and the Court will interpose, *by virtue of their general superintendant power, to see whether they are so or not. That in a revenue case, before Ry[ *232 ] der, C. J., it was determined, that no words of being final, &c. will preclude the King's Bench, unless certiorari be expressly taken away.-That some of the convictions are under 10s. where no appeal lies to the Sessions. Shall the justice be the sole and arbitrary judge of these? Sir Edward Saunders's reading upon this statute, temp. Car. 2, is the only book of law that allows him so uncontrollable an authority. That, though the justices' jurisdiction may be final in point of fact, yet not so in case of irregularity. [In] Peat's Case, 6 Mod. 228, a conventicle case, it was said, "if the justices wrong you, you may have remedy by certiorari." Knowler and Filmer shewed for cause ;-that a certiorari can't go to the justice, because he has returned all the convictions to the Sessions, and they are there filed.-That certiorari will not lie to remove proceedings at common law, but only summary convictions. This not a summary conviction, with respect to those of above 10s.; because those on appeal are traversable and triable by jury: A writ of error therefore would be the only proper remedy.-The statute is ordered to be taken largely and beneficially against conventicles.-There is another clause, that warrants, &c. are not to be reversed for want of form. The penalties have been all distributed as the law directs, to the King, the informer, and the poor. Who can call it back again? Will this Court meddle with the King's revenue? And will they interfere, without being able to do complete justice, by commanding restitution?--If the justices had no jurisdiction, there is a remedy by action; but, by the appeal, they have affirmed the jurisdiction.—The books furnish no instance of this Court's having ever interposed.The negative clause can only extend to the King's Bench; no other Court could ever interpose, with regard to proceedings at Quarter-Sessions;-the statute of Geo. 2 (r), orders, that justices shall have notice of moving for certiorari, in order to oppose it, if necessary. Why is this ordered, if certiorari be always grantable?--If a certiorari issues improvidently, and is afterwards set aside, it is still a great grievance to the party: [*233 ] for no costs can be given in * such a case, as was determined in the King and Wakefield, a few Terms ago. Lord MANSFIELD, C. J.-There is no colour, that these negative words should take away the jurisdiction of this Court to issue writs of certiorari. They will perhaps take away the writ of error that has been mentioned. But this Court hath an inherent power to issue certiorari's, in order to keep all inferior Courts within due bounds, unless expressly forbid so to do, by the words of the law. If the justices have done right (r) 13 Geo. 2, c. 18, s. 5. And see R. v. Battams, 1 East, 298; and R. v. Just. of Sussex, 1 M. & S. 631, 734. below, you may shew it, and quash the certiorari. But if there be the least doubt, this Court will grant the writ. Certiorari granted per tot. Cur. (s). (s) 2 Hawk. P. C. c. 27, s. 23; R. v. St. Andrew's, Holborn, 3 Burr. 1458; R. v. Jukes, 8 T. R. 542, acc.; in which last case, Lord Kenyon said, that the certiorari being a beneficial writ for the subject could not be taken away without express words, and that it was much to be lamented in a variety of cases, that it was taken away at all: quod nota. See also R. v. Hanson, 1 Paley on Conv. by Dowling, 298, n. [2]. A certiorari is granted of course on the application of the Crown, i. e. of the prosecutor; but not so on the application of a defendant, who must shew some ground for it by affidavit; R. v. Eaton, 2 T. R. 89; 4 Burr. 2458, S. P. It is a rule absolute in WALLEN, qui tam, v. HOLTON. THE KING V. REEVE. any prosecution sufficient quali fication. INFORMATION at last Berkshire assizes against the de- Exercising a fendant for exercising the trade of a baker, contrary to the trade seven statute 5 Eliz (t). It appeared in evidence, that he had fol- years, without lowed it twelve years, but had never been an apprentice, nor with effect, a served with any person as such. On a case reserved, Baron Adams, before whom it was tried, consulted the eleven Judges; who all joined with him in opinion, "that exercising a trade 66 seven years, without any prosecution with effect, was a suffi"cient qualification;" and accordingly, he ruled it for the defendant, at his own chambers, 20 June, 1760. Ex relatione Mri. Aston, counsel for the plaintiff. (t) C. 4, s. 31, now repealed: see n. (h), ante, 230. THE KING V. BOMASTER et al. S. C. 2 Burr. 1039. THE defendants lived at Portsmouth; and articles of the Attachment peace were exhibited against them, in this Court. It had been upon articles of the peace in the usual practice, that defendants, in such cases, must person- King's Bench ally appear and give bail to the attachment here. But the bailable before present defendants living at such a distance, that it would be justices of the oppressive to bring them up upon such an errand; the Court county. ordered the attachment to be indorsed, that it should be bailable before the justices of the peace in Hampshire, in a stated sum, to be regulated by the discretion of the Court; and laid this down as a general rule, to be observed in all similar cases for the future (v). (v) It appears from the report in Burrows, that the practice had been to direct a mandamus to a justice to take the security; R. v. Lewis, 2 Stra. 835, S. P. And in one case the Court rejected articles of the peace, because the exhibitant had not applied or endeavoured to apply to a jus- *234 ] Qu. If a gaming debt, won in France, is reco verable in Eng land. Post, 260, ROBINSON v. Bland. S. C. 2 Burr. 1077, Bull. N. P. 274. ASSUMPSIT by the plaintiff, against the sister and administratrix of Sir John Bland, on a bill of exchange drawn by the intestate, at Paris, upon himself in England, 31st August, 1755, for 6721., payable to the order of the plaintiff, which was laid in the declaration to be accepted at Westminster by the intestate. Two other counts, 2d, For money lent and advanced by the plaintiff; 3d, For money had and received by the intestate, to the plaintiff's use. Plea, Non assumpsit. At the trial, before Lord Mansfield at Westminster, in the sittings after Easter Term, a verdict was found for the plaintiff, with 6721. damages; subject to the opinion of the Court, on the following facts proved or admitted: 66 66 "That the bill of exchange was given at Paris for 300l., "there lent by the plaintiff to Sir John Bland, at the time and place of play; and for 3721. more, lost at the same time and place by Sir John Bland, to the plaintiff, at play. That the play was very fair, and there is not any imputation whatsoever on the plaintiff's behaviour. That there were several gentlemen and persons of fashion then and there at play, be"sides the plaintiff and Sir John Bland. That in France, money lost at play between gentlemen may be recovered, as a "debt of honour, before the marshals of France; who can "enforce obedience to their sentences, by imprisonment; "though such money is not recoverable in the ordinary course "of justice. That money lent to play with, or at the time "and place of play, may be recovered there as a debt in the [ *235 ] "* ordinary course of justice, there being no positive law against "it. That Sir John Bland was, and the plaintiff is, a gentle"man.-Question. Whether, under these circumstances, the "plaintiff is entitled to recover any thing, and what, against "the defendant?" This cause, being set down in the paper, was argued this Term, by Serjeant Hewit, for the plaintiff. The question is, Whether the 3007. lent, and the 3721. won, out of the kingdom, can be recovered in it. If the action cannot be maintained, it must be for want of a good consideration, or else because there is some positive law against it. 1st. There is no doubt but the 3007. lent is a good consideration: And the 3721. won is not an unlawful consideration; it is not malum in se, provided it be fair, as the present was. Gaming is not a crime, [and] has naturally no moral turpitude. Domat. 1. 2, sect. 2, fol. 22. 2dly. Upon the footing of positive laws, the old statute 33 Hen. 8, [c. 9,] makes a distinction between gentlemen and others. Under the statute of 16 Car. 2, c. 17, sums under 1007. might be lawfully won here in England. (Statute 9 Ann. c. 14, restrained it to 107.) There was then no positive law, to restrain winning less than 100l. Dixon and Pawlet, 1 Salk. 345; Stanhope and Smith, 5 Mod. 351. There is therefore no vice ROBINSON BLAND. in the contract, unless made so by a positive law; and the laws of France authorise this kind of contract, and give a remedy to enforce it. In France, the point d'honneur is as much a law as any other, and is regulated by express laws. See M. Brouillon on that subject. The laws of foreign countries are adopted by the law of England, with respect to contracts made abroad. Daws and Pindar, 2 Mod. 45; Blankard and Galdy, 4 Mod. 222, held, *that the statute of Ed. 6, respecting the sale of of- [ *236 ] fices does not extend to the islands of Barbadoes and Jamaica, nor can be pleaded to a suit brought here, for the money so contracted to be paid. Feaubert and Turst, Pr. Chanc. 207 (u); Fremoult and Dedire, 1 P. Wms. 431; a marriage contract, directing the wife's fortune to be distributed after her death, according to the custom of Paris, established in the House of Lords. Statutes concerning usury do not extend to contracts made abroad. Lord Dungannon and Hackett, 1 Equ. Cas. Abr. 289; Irish interest allowed on an Irish bond; and said, that, in all cases, interest must be paid, according to the law of the country where the debt is contracted, and not of that where sued for. Ellis and Lloyd, Ibid., interest of the Leeward Islands, 10 per cent, allowed in Chancery. Lane and Nicols, Ibid., Turkish interest allowed on a contract in Turkey. Harvey and East India Company, Ibid., Indian interest, 12 per cent, allowed on a contract in India (w). By stat. 24 Geo. 2, c. 40, sect. 12, no debt for spirituous liquors under 20s. shall be recoverable in any Court (x). It would be absurd to suppose, that this extends to a contract made in a foreign country. Suppose a sumptuary law was established in England, declaring all contracts void for clothes above such a price. Should a debt be contracted in France for clothes of a higher value, and the debtor should come to England: Would not our law punish the breach of a contract, which was lawful where made, and compel the debtor to pay the debt? Therefore, where the matter of the contract is not absolutely malum in se, our prohibitory laws only extend to it, when made at home; but will not, as in the present case, vitiate by a matter ex post facto, a contract lawful at the time and place of making it. Besides, how shall this law be enforced? It inflicts penalties on persons winning above 107. at a sitting, to be distributed among the poor of the parish. What parish can be entitled to this forfeiture, for a transaction that happened at Paris? Upon the whole, as the consideration is a lawful one, and as the laws of the country would have compelled payment of the debt; it is hoped, that the change of place, where the action is brought, will not make an alteration in the law, but that the plaintiff shall recover his whole demand. Blackstone, for the defendant argued, 1st. That a contract made in France, and allowable by the general law of that country, is not binding here in England, when contrary to an (u) 1 Bro. P. C. 129, (2d ed.) S. C. (w) See Bodley v. Bellamy, post, 267. (x) Burnyeatt v. Hutchinson, 5 B. & A. 241. [ *237 ] ROBINSON v. BLAND. express prohibition of our own statute law. 2dly. That such a contract, not allowable by the general law of that country, but only recoverable under the special circumstances here stated, is not binding in this kingdom, when contrary to a similar prohibition of our own statute law. The first extends to both parts of the question, both the money lent and the money won, at gaming. The latter only to the money won. I. It is not contended, that our laws are so far independent of others (y), that they take no notice of the law of France, with regard to contracts, &c. arising there; though this is agreeable to the strict notion of a civil or municipal law, jus quod quisque sibi populus constituit. And Lord Coke lays it down, 2 Inst. 98, that foreign precedents are not to be objected against us, because we are not subject to foreign laws. This, unless properly understood, a very narrow principle, fit only for the first rudiments of a state. From mutual commerce and intercourse, which will quickly follow, arises the necessity not only of a law of nations to regulate that commerce and intercourse, but also of communicating in some degree with the laws of other countries, in respect to the contracts of individuals; in order to give [*238] a rule for traders hinc *inde to resort to, for the decision of their mercantile controversies. Therefore the lex mercatoria was interwoven into our own common law so early as 3 Ed. 1. 2 Roll. Rep. 114. Molloy de jure marit. 1. 2, c. 12, sect. 7. But the present is no mercantile question, but a transaction between two Englishmen happening to be at Paris together, clear of any commercial connexions. It is also acknowledged, that where any matter has been legally determined abroad, ubi transiit in rem judicatam, our Courts will not again take cognizance of the cause, but the sentence, however hard it may appear, is conclusive between the parties; Finch. Rep. 186; 2 Show. 232; Raym. 473; Skin. 59; 1 Roll. Abr. 530 (2). But this is not the case here; this is absolutely res integra. Yet farther; a regard has been often paid, not only to sentences obtained abroad, but to the foreign laws upon which such sentences might have been obtained, with respect to contracts arising in other nations. For the parties, at the time of contracting, must be supposed to refer to the law of the country, in which such contract was made. Here the law of England adopts the foreign law, pro hac vice; just as it adopts the local customs and special usages of many cities and districts here at home in similar cases; by way of temporary exception to the general universal rule of common law. This is a large, equitable principle of justice;-but may be carried too far. Some stop is necessary, else our laws would be frequently involved in contradiction and absurdity, by acting counter to those positive rules it had found necessary to establish, for the internal policy of government. The line which has been drawn, and (y) See 1 Cowp. 174, Folliott v. Ogden, 1 H. Bla. 123 and notes; Philips v. Hunter, 2 H. Bla. 402, 410; Potter v. Brown, 5 East, 124; Ex parte Burton, 1 Atk. 255. (2) Roach v. Garvan, 1 Ves. S. 157; Burrows v. Jemino, 2 Stra. 733; Walker v. Witter, 1 Doug. 1, and notes; Tarleton v. Tarleton, 4 M. & S. 20; Bull. N. P. 245. |