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East India C.

Hume Company, in Vernon, and Bisse and Black, King's Bench, circa 1716, were the only cases relied on, the Company offered, by way of compromise, to pay demorage from the 31st of January, 1747-8, to the time the ship was lost; which was accepted. After which, Lord Mansfield declared, the Court was very clear, that the plaintiffs were entitled to no more, but declined giving any other opinion.

So judgment was entered (by consent of the parties) for the plaintiff, with damages, 8,100/. and upwards, the former calculation being erroneous, and costs (/).

(I) See Hotham v. E. I. Comp., I Doug. Comp., 13 East, 290; Faith v. E. I. Comp.,

272; Tod v. E. I. Comp., Abbott on Ship- 4 B. & A. 630; 58 G. 3, c. 83; Luke v.

ping, 217, n. (ed. 1812); Moffat v. E. I. Lloyd, ante, 191, and Edit v. E. I. Comp.,

Comp., 10 East, 468; Dobrec v. E. I. past, 295.

Baskerville V. Brown.

S. C. 2 Burr. 1229.

A verdict against BROWN brought an action against Baskerville for 30/. and the plaintiff in a 0Dtameti a verdict, Baskerville having given no notice of any

prior action may _ ._ .11 , s B

be set off against set-on. liut .Baskerville brought a cross action against Brown, his present dc- for 11/. 18*. which came on to be tried the same day, soon after mand- the former verdict. Brown had given notice of a set-off; and

at the trial, Morton offered to give in evidence said verdict for 30/., which the Counsel for Baskerville, the then plaintiff, objected to. Verdict for plaintiff, but order of Nisi prius was made, to refer this question to the opinion of the Court; and if the set-off was maintainable, then judgment for defendant, as in case of nonsuit; otherwise, the postea to be delivered to plaintiff.

It was argued by Norton and Yates, for the plaintiff; by Morton and Stowe, for the defendant.

Lord Mansfield, C. J., gave the judgment of the whole Court.—In the first action, 'twas vexatious and litigious in Baskerville not to set off the 11/. 18*. But Brown could not take [ * 294 ] * a verdict with safety for a less sum than 30/.; because then it would have appeared on record, that less was owing to him. In the second action, now before the Court, we are, upon full consideration, all clear of opinion, that the verdict might be set off against the plaintiff's demand. For if, at the time of the action brought (m), there are mutual demands, they may be set off by the statute. Unless the verdict can be construed to annihilate the debt, the demand remained as well after as before the verdict. The only effect of the verdict is, to make the evidence of the demand conclusive. Justice may be done between

(m) A plea of set-off, that the plaintiff given to amend; Evans v. Proster, 3 T. R.

was indebted to the defendant at the time 186, recognized in Le Brett v. PapiUmi,

of the plea pleaded, is bad: it should 4 East, 505. And see Bird v. Randall,

state, that he was indebted at the com- post, 387; Freeman v. Hyett, pott, 394. mencement of the action: but leave was

Brown.

the parties, by remitting, upon the first record, such part of Baikerville the damages as might have been set off". Therefore, let the present verdict be set aside, with costs of a nonsuit; and a remittitur as to 11/. 18*. be entered upon the record of the first action (n).

(n) So, where, to a declaration for work and labour, defendant pleaded a set-off on a promissory note, and plaintiff replied, that after exhibiting his bill defendant brought an action against him upon the same note, in which action he the plaintiff paid the amount of the note into Court; on demurrer, the Court, on the authority of the principal case, were clearly of opinion that the replication was ill; adding that, if the set-off were proved to the

Jury, and the defendant also succeeded in
his action on the note, the plaintiff in this
action might bring an audita querela", or
have some other remedy; Evans v. Pros-
ser, 3 T. R. 186. So it is no objection to
the set-off of a debt, that defendant had
commenced an action for the recovery of
that debt, before plaintiff's cause of action
accrued: Lord Kent/on being of opinion,
that these were mutual debts; Knibbt v.
Hall, Peake's N. P. C. 276.

The King V. Kinnersley.

JVLOTION for an information against the printer of Lloyd's information for Evening Post, for a ludicrous paragraph, giving an account of printing an acthe Earl of Clanricard's marriage with an actress at Dublin, 0°„ousmarriLre and appearing with her in the boxes with jewels, &c. (o). between an ac

Harvey shewed for cause.—1st. That Lord Clanricard was tress and a marnot a peer of Great Britain. Sed non allocatur: for, per Cur., man" As he is sworn to be a married man, it is a high offence, even against a commoner. 2dly. That this paragraph was taken from another paper (p), against whose printers informations were also moved. 3diy. That in his next paper Kinnersley had voluntarily made a public recantation. Sed non allocantur: for, per * Cur., it is high time to put a stop to this intermeddling [ • 295 ] in private families.

Rule made absolute.

(o) See 1 Hawk. P. C, c 73; 4 Bac. Abr. Libel (A) 2, p. 450; Russ. Cr. & Misd. 330; w here the author observes (331, n. »), that the Court of K. B. always exercises a discretionary power in granting an information for a libel, and will, in many cases, leave the party to his ordinary remedy (by indictment); as where the application is made after a great length of time, or where the matter complained of as a libel, happens to be true. And the Court will not grant an information for a private libel, charging a particular offence, unless the prosecutor will deny the charge upon oath; R. v. Miles, 1 Doug. 284; R. v. Webster, 3 T. R. 388. But see R. v. Williams, 5 B. & A. 595. See also R. v.

Robinson, post, 541; R. v. D'Eon, post,
510; 11. v. Pitt, post, 380.

It is to be observed, that words spoken,
however scurrilous, are not the subject of
indictment; Russ. Cr. & Misd. 329, re-
ferring to R, v. Langley, 6 Mod. 125 ; R.
v. Bear, 2 Salk. 417, 1 Lord Ruym. 416,
per Holt, C. J. So, in some cases an ac-
tion may be maintained for words written,
for which an action could not be main-
tained if they were merely spoken: per
Gould, }., in VtUers v. Mousley, 2 Wils.
404; Thorley v. Lord Kerry (in error),
4 Taunt 355.

(s) See Lewis v. Walter, 4 B. & A. 605.

Graham V. Potts.

Qa. If a prohibition will lie to Court Christian after a modus pleaded, so as no proceeding is had since the plea?

x ATES moved for a prohibition to the Consistory Court of York, on a suggestion, that in a suit for tithes, a modus had been pleaded (</). But it not appearing, that the plaintiff had

Eroceeded since this plea, the Court doubted whether a proibition would lie. But granted a rule to shew cause.

(q) Because "if a modus be pleaded and admitted, no prohibition shall go; but if the question be, whether a modus or no modus, a prohibition shall go; and so is the law, vis. wherever the matter, which you suggest for a prohibition, is foreign to the libel, you must plead it below, before you can have a prohibition; otherwise where the cause of prohibition appears on the face of the libel:" Per Holt, J., Anon.

2 Salk. 551; Stone v. Hartuood, Ca. temp. Hard. 357; Offley v. Whitehall, Bunb. 17, S. P. But a prohibition was granted on affidavit, that the defendant "answered on oath or pleaded a modus in the Court below to the libel;" French v. Trask, 10 East, 348. See also Wilson v. M'Math,

3 B. & A. 241. Where a modus is pleaded (and insisted upon) a prohibition may be granted any time before final sentence; Darby v. Cosens, 1 T. R. 552. But a prohibition will be granted, even after sentence, where it appears on the proceedings of the Court below, that it had no jurisdiction. Lord Kenyan—" The general grounds of a prohibition to the Ecclesiastical Courts, are either a defect of jurisdic

tion, or a defect in the mode of trial. If any fact be pleaded in the Court below, and the parties are at issue, that Court has no jurisdiction to try it, because it cannot proceed according to the rules of the common law; and in such case a prohibition lies. Or where the Spiritual Court has no original jurisdiction, a prohibition may be granted after sentence;" Lemony. Goulty, 3 T. R. 3; Cartlake v. Mapledoram, 2 T. R. 473, S. P. Where a party applying for a prohibition has permitted a fact to be tried below, as where he has set up several customs respecting tithes, and has permitted the Ecclesiastical Court to proceed to sentence, a prohibition will not then be granted, if that Court had original jurisdiction of the cause; Full v. Hutchins, 2 Cowp. 422; Offley v. Whitehall, supra; Stainbank v. Bradshaw, 10 East, 349, n. (<■) S. P. See also Lord Camden v. Home (in error), 4 T. R. 382, .V. C. in D. P., 2 H. Bla. 533; Gould v. Gapper, 3 East, 472, S. C, 5 East, 315. As to costs in prohibition, see Trask v. French, 15 East, 574; and as to declaring, ante, 81.

No costs upon indictments for not repairing a road.

The King ». Inhabitants of Cheshunt, Hertfordshire.

JLNDICTMENT for not repairing a road. Motion to submit to a small fine, on certificate that the road was now in repair.

Norton, for the prosecutors, insisted, that the defendants should pay the costs of the prosecution, before they should be at liberty to make such submission.

But per Cur.—It is contrary to the practice of the Court. So set a fine of 6s. 8d. (r).

(r) But see R. v. Wingfield, post, 602.

Edie and Laird V. The East India Company.

S. C. 2 Burr. 1216.

ifJEft? ACTION on two bills of exchange of 20001. each, drawn by arid indorsed' R« Clive on the East India Company, at three hundred and personally to B., sixty-five days after date, payable to R. Campbell or Order.

East India C.

may be afterwards indorsed by B. to another.

[ *296 ]

Campbell indorsed one to Ogleby," or order," the other to Ogle- Edie by, without adding the words or order. But at the trial, the words or order appeared upon the indorsement in another hand-writing. The East India Company accepted both bills (*). Ogleby then indorsed them to the plaintiffs, and soon after became insolvent. The Company then refused payment. The jury found a verdict for the plaintiffs on the * first bill, but for the defendants on the second; apprehending, that by the usage of merchants it was not assignable, without the words or order in Campbell the payee's indorsement.

Morton moved for a new trial. 1st, Because the bill, being once negotiable, could not lose its negotiability, by Campbell's writing on it some words, and omitting others.—Moore and Manning, Com. 311; words "or order" being omitted in an indorsement, still the bill is payable to order, if so in the original draught:—Acheson and Fountain, 1 Str. 557, S. P.; Evans and Cramlington, Carth. 5, 2 Ventr. 296, 309. 2d, On the footing of surprise; the plaintiff not being prepared to give evidence of the custom of merchants: And the evidence given by defendants, being not of facts, but merely of opinion. Yates, S. S.

Norton and Wedderburn shewed en use. 1st, That custom is the foundation of all bills of exchange; and the custom of merchants is matter of law, not of fact; so is properly evidenced by opinion. A payee or indorsee, when the draught or indorsement is general, is absolute owner of the bill; he is the purchaser of it; value received is implied. He may destroy its negotiability. If he indorses it with negative words, as to "J. N. and nobody else," will any man seriously contend, that it is payable to any one else? Will any man take it? And if putting negative words on it would have destroyed its negotiability, then omitting the words "or order" amounts to the same thing. It is an implied negative. Campbell might have indorsed it in blank, (i. e. by only writing his own name), and then I agree, that any one might have overwrote what he pleased upon it. The presumption in such case is, that he meant to make it of the greatest possible use to his indorsee. But having once put the terms of indorsement upon it, this destroys the other presumption. All subsequent indorsees take it under the new terms imposed upon it. It is now a naked authority to Ogleby, to receive the money. Such a special indorsement does not import value received; for Ogleby might only be agent or factor for the indorsor. Moore and Manning is hardly law. It is contrary to the reason which arises from the case itself. For the reason of such * special indorsement [ *297 ] in that case seems to have been, that the indorsor was a creditor to the special indorsee. Had therefore the bill been pro

(s) "Wherever an act of Parliament authorizes a corporation to draw and accept bills, it must be taken to give the holder of those bills the same remedy against the body corporate, as the law

gives in other cases against any parties to a bill;" per Cur. in Murray v. E. I. Comp., 5 B. & A. 210. And see more as to the East India Company in Hume v. E. I. Comp., ante, 291.

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tested for non-payment, the indorsee had effects of the indorsor's in his hands, sufficient to indemnify himself. But upon a general indorsement, the indorsor might have been called upon, at a distance of time, by any subsequent indorsee, which might have been very inconvenient. 2. The footing of surprise, if true, is no ground for new trial. If this be allowed, new trials would be always moved for, whenever the losing party thinks he can mend his evidence.

Morton, in reply, insisted that the supposition of law is equally strong, that a special indorsee is a purchasor, as well as a general one. For he might have resorted to Campbell, as well as to Ogleby.

Lord Mansfield, C. J.—There can be no dispute. Where the indorsement is in blank, there you may write over it whatever you please. And it has been permitted to be done even in Court (t). But for this there is no occasion. Every thing shall be intended upon such a blank indorsement. The point relied on at the trial for defendants was, that where a special indorsement was made to A. B., and the indorsor omitted the words, " or order," this was equivalent to the most restrictive indorsement. Many witnesses were examined by defendants to prove this usage (p); but it did not appear that in any one fact, the indorsee of such special indorsement ever lost the money by such omission. The evidence was only matter of opinion. I told the jury that upon the general law (laying usage out of the case) the indorsement carried the property to Ogleby; and that the negotiability was a consequence of the transfer. But if they found an established usage among merchants, that where the words "or order" were omitted, the bill was only negotiable on the credit of the indorsee, they should find for the defendants. If otherwise, or they were doubtful, then * either for the plaintiffs, or make a case of it. They found for the defendants on the bill in question; for the plaintiff on the other, concerning which there was no dispute.

Now, upon the best consideration I have been able to give this matter, I am very clear of opinion, that, at the trial, I ought not to have admitted the evidence of usage. But the point of law is here settled: and, when once solemnly settled, no particular usage shall be admitted to weigh against it: This would send every thing to sea again. It is settled by two judgments in Westminster Hall, both of them agreeable to law and to convenience. The two cases I go upon are, Moore and Manning in Comyns, and Acheson and Fountain in Strange. These cases go upon a general proposition in law, that an indorsement to A. implies " or order" and is negotiable. The main foundation is, to consider what the bill was in its origin. The present bill, in its original creation, was not a bare authority, but a negotiable draught. There are no restrictive words in it. And whatever carries the property, carries the power to

Custom of merchants must be controlled by adjudged cases.

(0 Lucat v. Marsh, Barnes, 453; Lam-
bert T. Oaket, 1 Ld. Raym. 443, Salk.

127, & C
(») Camden v. Cowlij/, post, 417.

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