debt upon which he was arrested, but for his own debt of 800%. also. Swanwicke upon this indorsed the bill of lading to Scott, pretending the goods were his own. Next day Fontaine came down from London, and being informed of this transaction, applied to Scott, assuring him the goods were consigned to Swanwicke as a factor only; which was the truth; and indorsed the other bill of lading to the defendant, who, when the ship arrived, having given the master security, obtained possession. Scott afterwards became a bankrupt, and the plaintiff his assignee. WRIGHT V. CAMPBELL. Wallace, for the plaintiff, argued, that the consignment of the bill of lading conveys the property (Evans and Martlet, Lord Raym. 271), as much as an indorsement of a bill of exchange. The assignee is not bound by any equitable right without notice. The trust should have been declared for the use, or on account of the consignor; and then the trust would *have been apparent. The contrary presumption arises upon [629 ] the words " or order." Davenport, for defendant, insisted, that the bill of lading is only a promise to deliver goods to the consignor "or order;" Whitecombe and Jacob, Salk. 160. That a factor cannot pledge for his own debt, Stra. 1178 (a). That the indemnity, being for both debts, is not a good consideration for the assignment to Scott, but carries a fraud on the face of it. Lord MANSFIELD, C. J.-There is no difference between law and equity in this case. The assignee of a bond, &c. stands in the place of the obligee. In bills of exchange the drawer gives authority to negotiate it to a third person, who stands in the place of the drawee. If the property of a cargo at sea is transferable by indorsement, the indorsee must also be under the same circumstances as the original owner. This is also clear, that if the owner gives an authority to deliver goods to A. or B. without declaring whether factor or no, he retains a lien upon the goods, so far as they can be traced specifically, before they are sold. But, if sold, the factor only becomes the debtor. If the factor plays them over into another hand, either voluntarily without consideration, or with notice of the circumstances, the assignee stands just in the same place as the factor did (b). But if sold by the factor, while at sea (as they may be) without fraud or notice, the vendee then comes in under the authority of the owner (c). The whole, therefore, turns upon (a) S. P. Newsom v. Thornton, 6 East, 17, where Le Blanc, J., said; "the case of Wright v. Campbell, appears, I think, to be that of a sale; for it was agreed that Scott, the indorsee of the bill, should sell the goods. But at least we may say of it, that it is not an authority for holding, that a factor may pledge the bill of lading, though he could not pledge the goods themselves." S. P. Martini v. Coles, 1 M. & S. 140; Queiroz v. Trueman, 3 B. & C. 342; S. C. 5 D. & R. 192. (b) In 4 Burr. 2050, Lord Mansfield is reported to have said; "If a factor pays (c) As to the effect of assigning a bill of 1 WRIGHT V. CAMPBELL. [ *630 ] this point, whether there was an assignment, for good considerations, bona fide and without notice: Nothing of which is stated in the case. It is indeed a suspicious circumstance, that he should trust to the word of the factor Swanwicke, that they were his own. The bail was no consideration in this case; for the goods were not worth above 4007., and the prior debt to Scott was 8007. But, as it does not appear to have been tried, whether fraudulent or no, I think there should be a new trial. *YATES, J.-It seems doubtful, whether an indorsement of a bill of lading makes it negotiable in the same degree as a bill of exchange. It is only the master's acknowledgment of having received the goods. Swanwicke has a personal authority to sell. Can he assign that to Scott? The transaction has every circumstance of fraud, but we cannot determine it to be fraudulent. ASTON, J.-Same opinion. HEWITT, J.-Same opinion. A bill of lading differs from a bill of exchange, in that the consideration is delivered in the one case, and not in the other. New trial ordered without costs. lading, see Lickbarrow v. Mason, 2 T. R. case, p. 366), and S. C. 6 East, 20, n. (a); Salomons v. Nissen, 2 T. R. 674; Cuming v. Brown, 9 East, 506. Devise on condition prece dent, that if A. marries without a competent portion, or without consent [of trustees], the issue should not inherit, is performed, by having the portion only, without consent; LONG v. DENNIS. S. C. 4 Burr. 2052. ROBERT Berriman devised lands to trustees in trust, to pay his son the yearly rents for life; then to the use of the son's widow for life, subject to the proviso after mentioned; then to his first and other sons in tail, subject to the like proviso; remainder to the testator's daughters in fee. The proviso was, "That if his son Robert should marry a woman not having a competent marriage portion, or without consent of his trus"tees; then the lands should go to the testator's two daugh"ters in fee. And that the said proviso should not be con"strued or taken in terrorem, but should take effect.” 18th October, 1730, the testator died: Afterwards Stevens, one of the trustees, married Mary one of the testator's daughters. In 1739, the son married, and died in 1765. The jury found, that the wife had a competent marriage portion, but was married without the consent of the trustees. Gould, for the plaintiff, argued, that both parts of the condition ought to have been performed, and cited Creagh and Ux. [ *631 ] *against Wilson, 2 Vern. 572, and Carey and Bertie, 2 Vern. 333 (d); and insisted, that this was a condition precedent with respect to the wife and issue. Lord MANSFIELD, C. J.-Provisions in restraint of marriage (d) And also Harvey v. Aston, 2 Com. R. 726, 1 Atk. 361. LONG v. DENNIS. are extremely odious, and therefore construed strictly; and any liberal construction allowed to avoid them (e). They are contrary to public policy, and cruel in the parent, who can have no knowledge of circumstances that may arise after his death. They are all void by the Roman law; but in ours a distinction is taken. When they are conditions precedent, they are good; but if subsequent (unless there be a devise over), they are void, and construed to be only meant in terrorem. This shews the cruelty of the thing in the opinion of the Judges; else such a distinction could hardly be supported. The testator's saying, it shall not be construed in terrorem, is only making it doubly in terrorem. Even this has been strictly construed. Dayly and Clanrickard (f), in Chancery; the consent of trustees was made a condition precedent. They demanded a settlement: it was refused, and a private marriage had without consent: afterwards the husband made the settlement required. Lord Hardwicke held it a good performance of the condition. Burlton and Humfrey (g), Chan. 1755; a like case of previous consent in writing being made a precedent condition with a devise over: a subsequent consent held sufficient. These cases go farther and are much stronger than the present. This is quite new, and begins the forfeiture of the inheritance with the innocent issue. The offender is to enjoy the estate for his life. I have no doubt of the father's intention. He had no idea of a good wife, unless she brought a competent fortune: that is his first object. But if other qualities should be found equivalent (if possible) to money, he would not trust his son to determine in that case, but left it to the cool judgment of trustees. He could never mean, that both parts should at all events be fulfilled; that (if the trustees consented) a question might afterwards arise concerning the competency of the portion. Either of them performs the condition. *Another point [ *632 ] is also material. One of the trustees is eventually become the especially as person to take advantage of the forfeiture. The refusal of such one of the trusa one is nothing, unless he shews a material reason. Other- terwards conwise, Chancery would decree him to consent. YATES, ASTON, HEWITT, Js., same opinion. (e) The reader is referred to a learned note in 2 Roberts on Wills, 335, n. (7), (3d ed.), upon conditions in restraint of marriage, where all the cases are collected, and among others those of Peyton v. Bury, 2 P. Wms. 626; Scott v. Tyler, 2 Bro. C.C. 431; and Mr. Eden's note, ibid. 489. and also to Mr. Fonblanque's Treatise on Equity, vol. i. 258, (5th ed.)-Marples v. Bainbridge, 1 Madd. 590; Aislabie v. Rice, Postea to the defendant. 3 Madd. 256, 2 B. Mo. 358; 8 Taunt. (f) Or Desbouverie, 2 Atk. 261. tees became af cerned in interest. In actions for crim. con. there must be proof MORRIS v. Miller. S. C. 4 Burr. 2057; Bull. N. P. 28. ACTION for criminal conversation with the plaintiff's wife. The only proof of the marriage was by reputation and cohaof a marriage in bitation of the parties. fact. So in case of bigamy. Per Lord MANSFIELD, C. J., and tot. Cur.'-In these actions there must be proof of a marriage in fact, as contrasted to cohabitation and reputation of marriage arising from thence. Perhaps there need not be strict proof from the register, or by a person present, but strong evidence must be had of the fact: as by a person present at the wedding dinner, if the register be burnt, and the parson and clerk are dead (h). This action is by way of punishment: therefore the Court never interfere as to the quantum of damages. No proof in such a case shall arise from the parties' own act of cohabitation. The case of bigamy is stronger than this: and on an indictment for that offence, Dennison, J., on the Norfolk Circuit, ruled, that though a lawful canonical marriage need not be proved, yet a marriage in fact, (whether regular or not), must be shewn (i). Except in these two cases, I know of none where reputation is not a good proof of marriage (k). (h) S. P. Birt v. Barlow, 1 Doug. 171, where it was held, that an actual marriage might be proved by a copy of the register, if the identity of the parties was established, which the minister, clerk, or subscribing witnesses to the register, are not the only competent witnesses to prove, but which may equally be proved by the bellringers who rang the bells at the wedding; by persons present at the dinner; or by a maid-servant who should prove, that her mistress went always by the maiden name till the day of the marriage; that she went Plaintiff nonsuited. out on that day, and on her return and ever since had been called by the name of the husband. (i) Mr. East observes-" This it seems must be understood, where there is prima facie evidence of a marriage;" 10 East, 287, n. (b). See further as to proof of marriage on indictments for bigamy, 1 Russ. Cr. & Misd. 290; 1 East's P. C. 469. (k) As to the proof of a marriage by reputation, see St. Devereux v. Much Dew Church, ante, 367. [ 633 ] FAIKNEY v. REYNOUS and RICHARDSON. S. C. 4 Burr. 2069. Money borrowed DEBT on bond, 23 February, 1765, for 30007. Defendants pray oyer of the bond and condition, viz. for securing 15007. and interest. Pleas:-1. Non est factum, and issue thereon. 2. That, since the statute 7 Geo. 2(7), the plaintiff corruptly entered into several agreements for transferring sundry parcels to pay a stockjobbing contract, though of a partner in the transaction, is not within the (1) C. 8, s. 5, by which it is enacted, "That no money or other consideration whatsoever shall be voluntarily given, paid, had, or received, for the compounding, satisfying, or making up any difference for the not delivering, transferring, having, or receiving, any public or joint stock or other public securities, or for the not performing of any contract or agreement so stipulated or agreed to be performed; but that such contract and agreement shall be specifically performed, and the stock or security agreed to be assigned, &c. shall be actually so done, and the money or other consideration shall be actually and really given and paid: and that every person offending shall forfeit 100%." FAIKNEY REYNOUS. of stock on the joint account of himself and defendant Richardson, to be delivered at a certain time called the rescounter day, in February following; and, in performance thereof, corruptly, and contrary to the form of the statute, paid 30007. to statute, but re12 divers persons, for making up the differences in price for not coverable. performing said contracts; and that the bond was made for securing to the plaintiff 1500l., being Richardson's moiety of said differences, and for no other consideration, and therefore void in law. The plaintiff demurs, and defendant joins in de 12 murrer. Lord MANSFIELD, C. J.-I am clear that this is no defence, even allowing it to be well pleaded (m). Compounding differences for stock sold is not malum in se, but merely prohibitum. Where a thing is prohibited by act of Parliament, it is void as between the parties, and no Court of justice will allow a man to recover for what is made unlawful to be done. But this case is not within the act of Parliament. The bond is for money lent to another to fulfil a prohibited contract. If a man lends money to be lent upon usury, or to pay a gaming debt, can it not be recovered? There is no difference, whether borrowed of Faikney or of any other person. YATES, ASTON, HEWITT, JS., same opinion. (m) See 3 T. R. 424, and Collins v. Blantern, 2 Wils. 347. (n) Though this case is supported by the decisions in Petrie v. Hannay, 3 T. R. 418, and Watts v. Brooks, 3 Ves. Jun. 612, yet its authority has been much impeached, if not even overruled by several subsequent cases. As where one Bristow had agreed with the plaintiff, an underwriter, to take half his risk, in contravention of stat. 6 G. 1, c. 18, s. 12. A loss having happened on a policy underwritten by the plaintiff, who paid the whole of it, Bristow paid his moiety into the hands of the defendant: it was held, that the plaintiff could not recover such moiety from the defendant; Sullivan v. Greaves, Park's Ins. 8 (ed. 1817). Again, it was determined in a similar case, that the plaintiff could not recover his share from the person who had been his partner in insuring ships. There Eyre, C. J., observes upon the case of Faikney v. Reynous, that there the bond was given to secure the repayment by a third person of his proportion of the money paid by the plaintiff in stock-jobbing, and that the case of Petrie v. Hannay was decided expressly on the authority of the former case; but that perhaps it would have been better, if it had been decided otherwise; Mitchell v. Cockburne, 2 H. Bla. 379; Booth v. Hodgson, 6 T. R. 405, acc. Again, where A. was employed by B. in stock-jobbing transactions, and paid the differences for him, and for part of the amount of them drew on B., and then indorsed the bill, accepted by B., to C.: it Judgment for the plaintiff (n). was held, that C. could not recover on the |