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to pay it (k); and being so accepted, it was indorsed to the defendant for a valuable consideration, and was paid by such order of the plaintiff. It appeared afterwards, that both bills were forged by one Lee, who was since hanged for other forgeries. The defendant acted innocently and bond fide, without the least privity or suspicion, and paid the full value of both bills. The question was, whether the plaintiff can recover back from the defendant the money paid on the said bills or either of them.

The counsel for the plaintiff gave up the accepted bill, on the authority of Jenys and Fawler, Tr. 2 Geo. 2, Stra. 946, where it is held, that proof of forgery shall not be admitted on behalf of the acceptor of a bill, because it would hurt the negotiation of paper credit; unless a difference could be allowed as to the admission of evidence on a trial, and the determining the law, after the fact is settled (1). As to the first bill, which was never accepted, they insisted the case was different. No credit had been given to that bill by an acceptance; therefore the same inconvenience would not follow.

Per Cur.- This is an action for money had and received; the condictio indebiti in the Roman law (m); the most liberal species of actions on the case. If a man pays money bonâ fide due, after the statute of limitation has run upon it, or pays money fairly won at play, it will not lie to recover it back. It will lie if paid on a mistake, or without consideration, and the like. In the present case, nobody knows the hand of the drawer but the plaintiff. The first bill is taken up by him; the second is accepted by him, before it comes to the defendant. The negligence in the plaintiff is greater than can possibly be imputed to the defendant. Where the loss has fallen, there it must lie. One innocent man must not relieve himself by throwing it on another (n).

Postea delivered to the defendant, with judgment of nonsuit.

(k) See slat. 1 & 2 G. 4, c. 78.

(1) “ When a bill is presented for ac ceptance, the acceptor only looks to the hand-writing of the drawer, which he is afterwards precluded from disputing; and it is on that account that an acceptor is liable, even though the bill be forged :" per Buller, J. in Smith v. Chester, 1 T. R. 654. So where an acceptor, on a bill being shewn to him, and being asked, whether the acceptance was his hand-writing,

said that it was, he cannot afterwards set up as a defence, that the acceptance so written was a forgery ; Leach v. Buchanan, 4 Esp. 226.-See Bayley on Bills, 217 (ed. 1813).

(mn) Ante, 220.

in) This decision was recognised by Buller, J., 2 Doug. 640. See Moses v. Macpherlan, ante, 219; Farmer v. Arundel, post, 824; Jaques v. Golightly, post, 1073.

[ 392 ]

The King v. Parsons et Al. On information THE defendants were convicted on an information for a con- . for conspiracy, spiracy to take away the character of one Kempe, and accuse the fact of conspiring need not him of murder, by pretended conversations and communicabe proved, but tions with a ghost, that conversed by knocking and scratching may be collected in a place called Cock-lane. When they were brought up for

The King

judgment, Lord Mansfield, who tried the information, declared, that he had directed the jury, that there was no occasion to prove the actual fact of conspiring, but that it might be collected from collateral circumstances (0); and should be glad to know the opinion of his brethren, whether he was right in such direction. Quod nemo negavit.

Judgment respited till next Term. [Post, 401, S. C.]



(6) So where the defendants had severally bribed the prosecutor's apprentices to put grease into his cards, he being a card. maker, their being all of one family, and concerned in card-making, was held evidence of a piracy : R. v. Cope, 1 Stra. 144. If a banker permit money to be lodged with him, to be paid over for corruptly procuring an appointment, he may be indicted for a conspiracy along with those who are to procure the appointment; R. v. Pollman, 2 Camp. 233. “If a general conspiracy exist, you may go into general evidence of its nature, and the conduct of its members, so as to implicate men who stand charged with acting upon the terms of it, years after those terms have been established, and who may re

side at a great distance from the place
where the general plan is carried on :"
per Lord Kenyon, in R. v. Hammond, 2
Esp. N. P. C. 718. So on an indictment
against certain persons for conspiring to
cause themselves to be believed to be persons
of substance, evidence may be given of va-
rious instances of false representation; for,
as Lord Ellenborough observed, it is an in-
dictment for a conspiracy to carry on the
business of common cheats, and cumulative
instances are necessary to prove the of-
fence; R. v. Roberts, 1 Camp. 399. And
see R. v. Robinson, 1 Leach C. C. 37; R.
v. De Berenger, 3 M. & S. 67 ; R. v. Hen-
ry Hunt, 3 B. & A. 566; R. v. Rispal,
ante, 368.

month in stat.

TROTT, who as well, &c. v. Welch and Swann.

S. C. 3 Burr. 1357. ACTION for 2001. by a custom-house officer against the de- Limitation of acfendant, for having prohibited goods in his custody, upon stat. tion to one 26 Geo. 2, c. 21, s. 3, and a subsequent proviso, s. 7, That mor

* 26 Geo. 2, c. 21, “ if the officer neglects or refuses to prosecute with effect, for prohibited “ within one month, any common informer may." Defendant goods, must be pleads a judgment recovered against him by a common in- after condemna

tion, provided former. Plaintiff replies (by protestation, that this was a co- du

on, that this was a co- due diligence be vinous judgment) that he brought his action within a month used. after condemnation of the goods. Demurrer and joinder therein. N. B. The seizure was the 2d of May; the information the 22d; the condemnation on the 13th of November.

The Court held it to be very clear, that the month mentioned in the statute must be referred to the time of condemnation, provided due diligence be used by the officer in laying the information, which he had done in the present case. This attaches the right of action in himself. By any other construction the statute would be shamefully evaded.

Judgment for the plaintiff.

Hunt v. Cox.

S. C. 3 Burr. 1360. we acids A Scire facias was sued out against the defendant's bail, viz. caust Juil may 17:)

Milner and Miles, tested June 23d, and returnable June 30. de tela vedo is region It was left at the sheriff's office the 25th of June, and the same * Har mand, though day a warrant issued: but it was not served on Milner till the w regularly

29th in the evening, and not on Miles till the 30th, being the shortness of no- last day in Term. No ca. su. was returned and filed in the uice webe bail is office till after 1st July, as in strictness it ought to be, before material

any proceedings are had against the bail. The bail surrendered their principal after the rising of the Court (P), on the last day of the Term, viz. June the 30th. And now Morton moved, that an exoneretur might be entered on the bail-piece, and proceedings stayed against the bail.

Norton, Solicitor-General, shewed for cause; that a return of scire feci, or two nichils, on scire facias, was a sufficient ground to proceed against the bail. If the Court should enquire into length of notice, &c. motions of this sort would be infinite. On the 18th of June, a non est inventus was returned on the ca. sa., and lodged in the office. If duly lodged, it may be filed at any time. In strictness, the bail ought to render the principal immediately after the judgment: but, in favour of bail, it has become the practice to sue out a ca. sa. first, in order to shew that the plaintiff means to proceed against the body rather than the land or goods. This ca. sa. is the proper notice to the bail, though they have till the return of the scire facias to bring in the principal. The filing of the return is immaterial, being only for the satisfaction of the Court. Had the bail pleaded this matter (as they ought to have done, and not brought it on in this summary way by motion), we might have filed it before replication, and then have replied it (9). In Wyke and Satchwell (r), the bail of Moravia, P. 21 Geo. 2, a motion similar to the present; Lutw. 1273, was cited to shew, that no scire facias can issue till the ca. sa. is returned; but in that case, it being returned in due time, and being regularly lodged with the sheriff, though not actually filed, the Court declared, that such omission of filing was not

an irregularity sufficient to set aside the proceedings. [ *394 ] *Lord MANSFIELD, C. J.-The filing is mere matter of


DENNISON, J.—The practice has been long settled. The

(p) In K. B. by bill, the bail should surrender the principal before the rising of the Court, on the return day of the second scire facias, or of the first, where it is returned; Wilmore v. Clerk, 1 Ld. Raym. 156; Anon. 6 Mod. 238; Anon. 8 Mod. 340 : and by original or in C. P. on the quarto die post, sedente curid ; Simmonds v. Middleton, 1 Wils. 270; Bailley v. Smeathman, 4 Burr. 2134; Derisley v. Deland, Barnes, 82; Lardner v. Bassage,

2 H. Bla. 593. And in C. P. the Court ordered the hour of the day or true time of the surrender to be entered by the filacer, that it might appear, whether the surrender was made before or after the rising of the Court; Ling v. Woodyer, Barnes, 69.

(9) But see Dudley v. Stokes, post, 1183.

(1) Perhaps Barr v. Satchwell, 2 Stra. 813.



ca. sa. must lie so long in the office. Both the return and the filing are mere matter of form. If we were once to alter these matters of form, it would unsettle all the practice.

Wilmot, J.-If we were to go into affidavits of the time of notice, it would be endless. The presumption of law is, that the bail always have the principal in custody, ready to surrender him when the plaintiff signifies his demand of him. The necessity of suing out a ca. sa. is, only to demonstrate the plaintiff's election of what process he chooses to pursue. The bail are to use due diligence, and learn that election in the proper office (s).

Rule discharged, with costs. (s) It is the settled practice of K. B. where the case of Webb v. Harvey, 2 T. R. that if the bail be summoned any time 757, is corrected ; ib. 88. See also Wright before the rising of the Court on the re- v. Page, post, 837-Tidd's Pr. 308, 1161, turn day of the writ, it is sufficient to fix (ed. 1821). them; Clarke v. Bradshaw, 1 East, 86,

not be set off.

FREEMAN v. Hvert. ACTION for money due for a parcel of cloth. Dunning Damages not yet moved to stay the trial of the cause, in order to send a com- recovered canmission into Portugal to establish a fact by way of set-off; viz." That in a former parcel of cloths sent to Portugal, and bought of the same plaintiff, it appeared, on opening the bale, that they were burnt in the pressing, which had greatly lowered their value. .

Norton, Solicitor-General, objected, that the set-off was not maintainable. You might as well set off the damages which you are entitled to recover for a battery : you should bring your special action on the case. "

And of that opinion was the Court, and denied the motion(t).

(1) Uncertain damages cannot be the subject of set-off; Howlet v. Strickland, 1 Cowp. 56 ; Weigall v. Waters, 6 T. R. 488; Gillet v. Mawman, 1 Taunt. 137; Crawford v. Stirling, 4 Esp. 207: neither can the penalty of a bond; Nedriffe v. Hogan, 2 Burr. 1024. Where the condition of a bond is to pay an annuity, the

arrears of such annuity may be set off;
Collins v. Collins, 2 Burr. 820 : or if it be
conditioned for the payment of liquidated
damages, they may be set off; Fletcher v.
Dyche, 2 T. R. 32. See Dowsland v.
Thompson, post, 910, and Com. Dig. Plead-
er (2 G 17).

The King v. PETER ANNET.

[ 395 ] DEFENDANT was convicted on an information for writing Judgment for a most blasphemous libel in weekly papers, called the Free blasphemy. Enquirer; to which he pleaded guilty. In consideration of which, and of his poverty, of his having confessed his errors in an affidavit, and of his being seventy years old, and some symptoms of wildness that appeared on his inspection in Court; the Court declared they had mitigated their intended sentence to the following, viz. To be imprisoned in Newgate for a month; to stand twice in the pillory, with a paper on his forehead, in

The King



scribed Blasphemy; to be sent to the house of correction to hard labour for a year; to pay a fine of 6s. 8d.; and to find security, himself in 1001. and two sureties in 501. each, for his good behaviour during life (v).

(v) R. v. R. Carlisle, 3 B. & A. 161.


The King v. The OVERSEERS of PORTSMOUTH. Sessions has no THE Overseers of Portsmouth, on behalf of themselves and original jurisdiction over

the rest of the parishioners, appealed to the Borough Sessions Overseers’ ac. against the accounts of the late Overseers; which coming on

to be heard at Easter Sessions, 1762, the Court made several orders thereupon, to which several exceptions were taken; and upon the first of them, viz. that the Sessions has no original jurisdiction relating to Overseers' accounts, the Court quashed the orders of Sessions; though it was alleged that the orders were founded not on 43 Eliz., but on 17 Geo. 2, c. 38 (u).

(u) Which last statute is amended by 50 G. 3, c. 49, by which it is enacted, s. 1, that overseers and church wardens shall submit their accounts to two or more justices residing near the place, who have power to administer an oath to them, and to strike out and disallow charges they deem unfounded, &c., and if the overseers, &c., neglect to submit their accounts, or to verify the same, or to deliver over to their

successors any goods, &c., the justices may commit them till they comply; and if they neglect to pay over arrearages, the succeeding overseers may levy the same by distress; and in default of distress, such justices may commit till payment. By s. 2. an appeal to Sessions is given to the overseers, &c. Decisions on this stat.Lester's Ca., 16 East, 374; R. v. Pascoe, 2 M. & S. 343; R. v. Bird, 2 B. & A. 522.


One may reco

WINTER v. TRIMMER. 0 - MORTON argued, that where there is a special penalty in ver more than the penalty of a a charterparty, you cannot recover more than that penalty in charterparty in an action on the case for breach of the contract; and cited 1 damages, by ac- Chan. Cases, 226; 1 Vern. 350. tion on the case

* 396 *Norton, Solicitor-General, contra : That, where there is a for breach of -penalty and covenants in the same deed, the party has his eleccontract. tion either to bring debt for the penalty or action on the cove

nant for damages.

Lord MANSFIELD, C. J.-In the case between the master and servant, last Term (w), it was determined, that you may either receive the penalty and rescind the contract, or bring action on the covenants and let the contract stand (w).

Verdict against Morton's client, the defendant.

(w) Bird v. Randall, ante, 373, 387.

(x) S. P. per Lord Mansfield, in Lowe v. Peers, 4 Burr. 2228. On the authority of the principal case it was decided, that where a memorandum of charter-party contained an agreement to perform certain

things, with a certain penalty for non-performance, damages roight be recovered in assumpsit for breach of the contract beyond the amount of the penalty; Harrison V. Wright, 13 East, 343.

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