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Robinson

v.

Eland.

Place of making a contract to be considered in expounding it, unless the par

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of the malversation of officers. The Court of Honour could never take notice of this debt, because it never became due in the life-time of Sir John Bland. He died before the date was run out. It had never been tendered in England, where it was made payable. It had not been, it could not be, protested.

Lord Mansfield, C. J.—This is an extremely clear case; but it may be of use to state the general principles upon which it will be determined. There are two questions:—1st. Whether the plaintiff is entitled to recover any thing, and what, upon the first count upon the bill of exchange, considered as a written security. 2dly. Whether upon either of the other counts;— upon the justice and equity of the case.

As to the first; the general rule established ex comitate et jure gentium is, that the place where the contract is made, and not where the action is brought, is to be considered in expounding and enforcing the contract. But this rule admits * of an exception, where the parties (at the time of making the contract) had a view to a different kingdom. Huberus says, Prsel. 1, tit. 3, p. 34, contracts are to be considered according to the place wherein they are to be executed. As therefore the bill in the present case is made payable in England, it is entirely an English transaction, and to be governed by the local law (r). This stands upon the same ground, as that landed property must be governed by the local law; in consequence whereof, deeds and wills, made at Paris to convey land in England, must be made and interpreted according to our law. Now it is clear, that by the statute of Anne, all bills of exchange upon a gaming consideration are void («); and (by the way) the fact is not found, whether, even in France, you may not enter into and contemplate the consideration of a gaming note. I rather think you may. However, it is clear, that in England, the writing, as a writing, is void. 2dly, As to the other Counts, I think there is a plain distinction between the money won and the money lent, laying the bill of exchange quite out of the case. No action can be maintained for money won at gaming. The statute law prohibits any recovery upon a gaming consideration, as the common law does upon all other turpes causee. There are many cases, where the law of the country in which the contract is made, shall prevail; and it is hard to lay down the nice rule of distinction (w). There are many cases, wherein foreign sentences are final, as with regard to the validity of marriages; many, where they are only a ground of evidence prima" facie. And here I mu6t remark obiter, that it was hinted on the part of the plaintiff, that the law of Scotland must determine the validity of the marriages of minors there celebrated (x). Huber, p. 33, puts a parallel case, and determines expressly against it. I give no opinion; I only mention it, to hinder by-standers from taking those arguments for granted. What makes an end of this part of the case is, that, as to money won, the law is the same in France and in England. As for the Court of honour, it is no part of the law of the land; no Court of justice will aid it: The Parliament of Paris will take no cognizance of it. It is like the arbitrary *jurisdictions set up here at horse-races and cockpits; or (as has been observed at the bar) like the Courts martial in England, which are to decide, what is, or is not, behaving like a gentleman. If a cause really comes before them, well; if not, no Court of law will adopt their rules of decision. But here the cause could not come before them; the bill was not payable, and it was no breach of honour not to pay it before it was due. I therefore lay this Court out of the case; and more especially, as this is a suit against representatives, not the party himself.

ties have a view to another kingdom.

(») Melon v. Duke de Fitzjames, 1 B. & P. 138. And see S FonbL on Equity, 443, n. («).

(u) So a bond given as a collateral security by a third person for money won at a game within 9 Ann. c. 14, is void; Jefferys v. Wallet, 1 Wils. 220. And wheTe a bond had been given for money won at play, and part of it paid, a Court of equity relieved against the bond, and ordered the money to be repaid; Rawden v. Shadwell, Amb. 269. But where the winner had drawn a bill on the loser for money won, payable to his own order, and had indorsed it to a third person for a valuable consideration; it was held, that such indorsee might recover upon it against the drawer. Abbott, C. J., said, that the drawer could not maintain an action against the acceptor, and that no person deriving title through the drawer could be in a different situation from him, so as to sue the accep

tor: but the drawer cannot be permitted to set up his own gaming as a defence to an action against himself; Edward* v. Dick, 4 B. & A. 212.

In S. C. Burr. 1082, Dennison, J., is reported to have said, "This security is one entire security for money won, and money lent at play; if part of a contract arises upon a good consideration, and part of it upon a bad one, it is divisible; butit is otherwise as to the security; that being entire is bad for the whole." Scott v. Oilmore, 3 Taunt. 226: Tye v. Gwynne, 2 Camp. 346, ace., in which case Lord ElIcnborough said, he was inclined to acquiesce in the dictum of Dennison, J. But see contra, Willis v. Freeman, 12 East, 656; Barber v. Backhouse, Peake's N. P. C. 61, and note; Bayley on Bills, 334 (ed. 1813). As to what games are considered to be within 9 Ann, see Clayton v. Jennings, pott, T06.

Next, as to the money lent: It has been twice judicially determined, (Slater and Emerson, coram Eyre, C. J., and Barjeau and Walmsley, H. 19 Geo. 2, coram Lee, C. J., Stra. 1249), that the Legislature meant only to void the security, not the contract; in order to give Courts an opportunity to examine into the merits of the consideration; which, in this case, is stated to be extremely fair. Possibly it might be lent to pay foreigners' money won, and thereby to extricate the deceased from the clutches of the Court of honour.—Here also then the law of France is the same as in England; the

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Gaming securities are void by the stat. 9 Ann. not gaming contracts.

(to) An inhabitant of Dunkirk, who sells and delivers tea there, knowing it is to be smuggled into England, but having no concern in the smuggling transaction, may maintain an action for the price in this country, on the ground of the contract being complete at D., and the plaintiff being a foreigner: for, with regard to contracts legally made abroad, the laws of the country where the cause of action arises shall govern, and no country ever takes notice of the revenue laws of another; Holmanv. Johnson, 1 Cowp. 341. Scats, if the vendor had assisted in carrying the

smuggling into execution; ll'aymcll v.
Reed, ST. R. 599. See also as to where
actions can be maintained in smuggling
transactions, Biggs v. Lawrence, 3 T. R.
454, (where Lord Kenyon assents to the
case of Robinson v. Bland), and Clugas v.
Penatuna, 4 T. R. 466; Guichard v. Ro-
berts, post, 445. As to the principle of
maintaining actions here, where the cause
of action arises abroad, see Mostyn v. Fa-
brigas, 1 Cowp. 161; 13 Vin. Abr. 410,
Foreign, and Supp. ibid.; 1 Bac Abr. Ac-
tions local, (A).

(x) See Harg. Co. Litt. 79 b, n. [44].

Robinson

v.

Bland.

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Question. How far interest shall be computed on a contract carrying interest.

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contract, when fair, is good in both countries; and the plaintiff must therefore recover under his counts for the general assumpsits {y).

The only question remaining is, what interest he is entitled to receive. I find the general rule has been, upon all contracts carrying interest, to stop interest, the day that the writ is sued out. This is certainly unreasonable; for the party can never have (by this rule) what he is entitled to, due interest. He can have no new action for the subsequent interest, nor any damages pendente brevi, as in the old actions at common law. In Chancery, the rule established by Lord Talbot, in respect of tithes, was, that they should be paid down to the last act which the Court has done to ascertain the sum. The Exchequer now pursues the same rule, having altered their old one upon my argument. * I think, in this case, the interest must be carried down to this time. It is but a trifle here; but I am glad of an opportunity to have this matter settled; and should be desirous to consult the rest of the Judges upon it, that the practice of the Courts may be uniform.

Dennison, J.—What Lord Chief Justice has proposed as to the interest seems to be equitable; but I chuse to consider of that. As to the rest, it is a plain case, and must be ruled by the laws of England. The plaintiff has brought his action in the Courts of England, and must submit to the law of the Country. The distinction between contract and security is now well established.

Foster, J., absente.

Wilmot, J.—I have no doubt as to the money lent. If there had been no authority in point, I should have thought that the sound ground of the act was, merely to examine the consideration, and not conclude the drawer by his own written act. In the case put at bar, of a man's lending money and winning it, and then lending more, and so on, I should think it a plain fraud on the act. (N. B. This is the very case in Barjeau and Walmsley before cited and relied upon). As to the interest, I incline to Lord Chief Justice's opinion. This is an action sounding in damages; and the damage is the detention of the plaintiffs debt. I think, upon memory, the old statutes of costs talk of the costs of the writ; which Lord Coke (z) extends to subsequent costs to the end of the suit. Same reason for extending the interest. As to the money won; when considered minutely, there is no case, no point, no law. The general question, whether a contract, good abroad and void at home, can be enforced here in England, is a very important one. I am clear in my opinion upon it; but it does not come into this case, because herein the law of England and France is the same. I pay no regard to the Court of honour; a whimsical, fantastical Court, which the law of England will not lend [ *262 ] its powers to assist. Besides, Sir John never was the * object

(i/) Alcinbrook v. Hall, 2 Wils. 309; See also Vaugkan v. Whiteomb, 2 N. R. Wettenhall v. Wood, 1 Esp. R. 18, ace. 413.

(*) 2 Inst. 288.

of this jurisdiction, and his representatives never can be. The Robinson place where the money is to he paid must guide the law. It is "•

determined as to usurious contracts in Ireland, Pr. Chanc. 128. v I—>

Clearly therefore the law of England must be the rule, as the money was made payable here. I give no positive opinion on the other point, supposing a bad contract by our law, but good abroad, is stipulated to be performed abroad. Yet I can't help thinking, that when a party applies to the Courts of England, he must conform to the English law. I see no difference, whether the contract be void by the common or statute law. Both are established by the consent of the supreme legislative power; and numbers of contracts would be void by the common law, which are good in foreign countries: For instance, in many parts abroad, a courtesan may maintain an action for the price of her prostitution (a). But, surely, that would never be maintainable here, though forbidden by no positive statute.

It was then objected, on the part of the defendant, that as the Court had declared the whole bill of exchange void, as the statute declares it to be, utterly, to all intents and purposes whatsoever, it could not be taken notice of, so as to make the 300/. carry interest; which, upon the mere general assumpsit laid in the two last counts, it would never do (b). And it was compared to indentures of apprenticeship, upon which the duty was not paid, which being declared void by the statute 8 Ann. c. 9,. s. 39, no settlement can be gained in consequence of a service under them; Curenden and Laland, P. 4 Geo. 2, Stra. 903. But the Court said, that the security only being void, the contract contained in that security (which carried interest) remained in full force.

Afterwards, in the same Term, the Chief Justice declared, A contract may that it appeared from the case (independent of the bill of ex- continue to carry change) that the plaintiff had lent the intestate 300/. bond t£e ^curi/y'ftfide, for which he took a void security, bearing interest ten self ia void. days after date. This security is void by the statute; but we *have before delivered our opinion, that the contract remains; [ * 263 J and therefore interest is certainly due. The next question is, interest shall be how far the interest should go. In the present case, this is a computed to the very minute consideration: but I am glad of an opportunity of timeofthejudgsettling a point, the practice in respect to which is not founded in law, but upon a mistake. In justice, undoubtedly, interest

(a) 4 T. R. 190, Hunter v. Potts. and interest has been actually made; Be

(b) In an action for money had and re- Havilland v. Bowerbank, 1 Camp. 50, ceived, &c. the plaintiff cannot recover for and see Mr. Campbell's note to that case; interest: Lord Ellenborough said, it ought confirmed in De Bcrnales v. Fuller, 2 to be allowed only in cases where there is Camp. 426, and notes. So though, upon a contract for the payment of money on a a contract fur the sale of goods, a certain certain day, as on bills of exchange, pro- day of payment be given, interest does not missory notes, 8rc; or where there has run from that day; Gordon v. Swan, 12 been an express promise to pay interest; East, 419, 2 Camp. 429, n. S. C. See or where, from the course of dealing be- also Slack v. Lowell, 3 Taunt. 157; llatween the parties, it may be inferred that milton v. Houghton, 2 Bligh, 169; Higglns this was their intention; or where it can v. Sargent, 2 B. & C. 348, 3 D. & R. 613.

• be proved, that the money has been used,

Robinson is due to the time when the deht is paid: for, when a man "■ contracts to pay principal and interest, he ought to pay interest

L*"">' i so long as he retains the principal. The Court should therefore order the payment of interest, up to the time when it orders execution to be taken out. It is said, that damages are recovered and assessed by the jury, which will extend to this case. But we all know, that in actions upon contracts for the payment of money, the damages are nominal; the true relief consists in the specific performance. When money is given as damages, it is where the money is not itself the specific demand, but is used as a common measure, to ascertain the amount of the injury. I have looked into and fully considered all the statutes upon the subject of damages (c). Not one has any reference to this matter. On the principles of common law, whenever a duty incurred (pending the writ) for which no other satisfaction could be had, damages were given to the time of the judgment. Thus, in account, the judgment is quod computet; which includes all items of account up to the time of computation. On a writ of annuity, after judgment, no new writ can be had for arrears. Judgment is therefore given for the whole that becomes due, pending the writ. Upon the statute of Gloucester, which gives damages in a real action, Lord Coke, 2 Inst. 288, holds, that they shall extend to damages, pendente brevi. But whenever a new writ could be brought, damages were not computed, pendente brevi; as in covenant, actions of trespass, or for other torts. Upon the same reason, if a man brings an action on a contract carrying interest, and the action hangs three or four years, no new acl *°4 J tion *will lie for the mere interest; and therefore he ought to be allowed it now. The Court of Chancery has, in these matters of interest, a concurrent jurisdiction with Courts of law, exclusive of its extraordinary jurisdiction by way of relief. This arises from the frequent contemplation of interest in respect of assets, and the consideration of assets always gives the Court of Chancery a jurisdiction. It would be absurd, that two concurrent jurisdictions should be different in their principles; on which ground it is, that Courts of equity have usually conformed to the practice of the Ecclesiastical Courts, in respect of legacies. Now in Chancery, they always compute down to the time of the last act done by the Court, to liquidate the demand. And I don't see, why the jury should not in their discretion (according to the circumstances of the case) compute down to the verdict; or rather, to the first four days of the ensuing Term (d). The mistake before hinted at, in the present course of practice, arises from the officer's looking upon »n action of assumpsit as merely an action of trespass: and as

(c) 5 Supp. to Vin. Abr. 135, Itilire up to the day on which final judgment Damages. may be signed: cited by Bulkr, J., in

(d) This rule for the computation of in- Frith v. Leroux, 2 T. R. 57. And see terest was recognized by Ld. Mansfield in 7 Vin. Abr. 267, Damages (H 3), & Supp.; Cumming v. Hanforth, where he said, that 2 Bac. Abr. 268, Damages (D) 3; and on debts carrying interest, the jury are post, 267.

now directed to give interest in damages

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