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the objection had been given to A. before the race: Held, that he was not entitled to recover his subscription money.

Assumpsit, for money had and received, and upon an account stated. Plea : non assumpsit.

The particulars of demand were as follows :-
“To the account of the hack stakes at the Cambridge Coronation Races,
after deducting the stake of second horse .

£14 0 To the account of the hurdle race sweepstakes at the Cambridge Coronation Races, deducting the stake of the second horse

30 0 To cash received by defendant of plaintiff,--entrance money to said races, and fees obtained as clerk of the course

3 10" At the trial before Tindal C. J., at the last Cambridgeshire assizes, it was proved that the defendant was clerk of the course and stakeholder at the Cambridge “Coronation Races," which took place on the 30th June 1841. There were two sweepstakes, in respect of which the action was brought, one of which was called the hack stakes, and the other the hurdle stakes. By the printed rules of the races, thorough-bred horses in the hack stakes were to carry seven pounds extra, and in the hurdle stakes they were not to run at all

. The plaintiff entered his horse, Cavallo, as "not a thoroughbred” horse, for both stakes, and paid the defendant as clerk of the course, 11. entrance money for the hack stakes, 21. for the hurdle stakes, and 10s. fee. An objection to Cavallo, as a thorough-bred horse, was delivered to the plaintiff before the race. The horse, however ran, and won both races. The question had been referred to the stewards ; who decided that Cavallo was a thorough-bred horse, [6] and, therefore, that the plaintiff was not entitled to either of the stakes.

On behalf of the plaintiff it was contended, that at any rate he was entitled to recover the 31. 10s. entrance money; but the Lord Chief Justice, on the authority of Marryat v. Broderick (Murph. & Hurlst. 96, S. C. 2 M. & W. 369), directed a nonsuit, reserving leave to the plaintiff to move to enter a verdict for that amount.

Channell Serjt. now moved accordingly, and contended that, either there was no satisfactory proof of the objection having been properly made before the race, or the entrance money had been paid without consideration; and that, either way, the plaintiff was entitled to recover the 31. 10s.

TINDAL C. J. This is not like the case of an insurance; where a party paying the premium may recover it back before the risk has commenced (6). It is more like the case of money paid by a party in his own wrong. It is clear from the evidence in the cause, that the entrance money was to form part of the stakes.

COLTMAN J. Suppose after the money had been paid, that the horse had not run, or had died, -would the plaintiff have been entitled to recover the money back?

ERSKINE J. If we were to hold that the plaintiff had a right to recover his subscription money, it would be offering a premium to a man to enter a horse under a wrong description. If no objection were taken, he might win the race; and if an objection were taken, he would have his


back. [7] CRESSWELL J. It is like the case of a joint fund. Each person contributes his share, and takes his chance of winning.

Rule refused (a).

BLAKE v. BEAUMONT. April 18, 1842. (S. C. 4 Scott, N. R. 617; 1 D. N. S. 697; 11 L. J. C. P. 222.] A. the drawee of a bill, accepts it payable at a particular place, without stating it to

be payable there only or not elsewhere : Held : that such bill may, in an action

(6) Vide dict. per Lord Mansfield C. J. in Tyrie v. Fletcher, Cowp. 668; Penson v. Lee, 2 B. & P. 330.

(a) That the action, supposing any action to be maintainable, was properly brought against the stakeholder, see Ker v. Osborne, 9 East, 378 ; Robson v. Hall, Peake, X. P. C. 127, 128; Munk v. Clarke, 2 N. C. 299, 2 Scott, 475.

against A., be declared upon as made payable at that place, although since the 1 & 2 G. 4, c. 78, such an acceptance amounts to a general acceptance (post, 10 (c)).

Assumpsit, by the indorsee against the acceptor of a bill of exchange. The second count, (upon another bill,) stated that the drawers made their bill directed to the defendant, &c., "and the defendant then accepted the last-mentioned bill, payable at a certain place in London, to wit, at the banking house of W. D. and Co. London ; averment of presentment to the defendant at W. D. and Co. and non-payment. The third count was upon another bill, accepted in a similar manner to that of the bill mentioned in the second count.

Pleas : to the first count, first, that the alleged drawers did not draw, and secondly, that the defendant did not accept; to the second and third counts, non acceptavit (a) only ; upon all which pleas issue was joined.

At the trial before Gurney B. at the last assizes for the county of Surrey, the plaintiff gave in evidence bills accepted by the defendant, which corresponded literally with those set out in the second and third counts, and the jury found a verdict in his favour ; leave being [8] however reserved to move to enter the verdict for the defendant on the issues upon the last two pleas.

Shee Serjt. now moved for a rule accordingly, upon the ground of variance. The declaration, though agreeing literally with the bills produced, is framed as upon an acceptance at a particular place. By the 1 & 2 G. 4, c. 78, s. 1, it is enacted, “ that the acceptance of a bill of exchange payable at the house of a banker or other place, without further expression in the acceptance, shall be deemed to be, to all intents and purposes, a general acceptance; but that if the acceptor in his acceptance express that he accepted the bill payable at a banker's house or other place only, and not otherwise or elsewhere, such acceptance shall be deemed to be a qualified acceptance.” The acceptance, therefore, in this case not purporting that the bill was payable at the banking house of Messrs. W. D. and Co. only, was in law a general acceptance and should have been so declared upon. [Tindal C. J. No doubt in point of law this is a general acceptance, but the question is, whether there is any variance. At most the statement of the place where the bills were made payable was unnecessary, and the rule, utile per inutile non vitiatur, would seem to apply.) The declaration states that the bills “were payable at a certain place,” but in law they were not so, for they were payable any where. The plaintiff has treated the bills in his declaration as though they were payable only at that particular place; for he has averred a presentment there and nowhere else. In Exon v. Russell (a), which was an action by the indorsee against the maker of a promissory note, the plaintiff declared that the defendant made the note payable at the house of Messrs. B. and Co. London. Upon production of the note at the trial, it appeared that the address at [9] the house of Messrs. B. and Co. was written at the foot of the note. This was held to be a variance. Lord Ellenborough C. J. in giving judgment, said " The plaintiff had taken upon himself to aver that such is the import of the note; he has therefore not truly stated the note ; for he has stated that it is made payable at a particular place. Therefore he ought to have been nonsuited, upon the ground that he has misdescribed the note as payable at a particular place, which it is not; the address being no part of the contract, but a memorandum.” That case was decided before the passing of the 1 & 2 G. 4, c. 78; but the principle is applicable to the present case ; for that act declares that such an acceptance as the present shall be considered as a general acceptance. The statement of the place where the bill was made payable must, therefore, be considered only as a memorandum and not as any part of the contract. [Erskine J. These bills are so far payable at the particular place mentioned, that in an action against the drawer, presentment to the acceptor at that place must have been proved; Gibb v. Mather (a)}.

(a)? Vide 1 Mann. & Ryl. 395 (a), 398 (a), 399 (d).

(a)2 4 M. & S. 505. See also Williams v. Waring, 5 Mann. & Ryl. 9. S. C. 10 B. & C. 2.

(a)3 8 Bingh. 214. S. C. 2 Moo. & Sc. 387; 2 Cro. & Jerv. 254. And see Saunderson v. Bowes, 14 East, 500 ; Roche v. Campbell, 3 Campb. 247; Bayley on Bills, 220; Lyon v. Holt, 5 M. & W. 250. In Higgins v. Nichols, 7 Dowl. P. c. 551, the argument and judgment appear to have proceeded upon the assumption that the 1 & 2 G. 4, c. 78, applied to all actions upon acceptances, even those against drawers and indorsers.

Tindal C. J. A party may either follow the words of a contract literally or state its legal effect. Here, the statement in the declaration is different from the legal effect of the contract. In Chitty on Pleading (6), it is laid down as a principle, “that a contract or written instrument should (10] be stated according to its legal effect," and the author adds, “indeed in some cases it has been held proper, and indeed absolutely necessary to depart from the terms of the contract; and a party has been defeated on the ground of variance where he has used the precise words of the contract, but mis-stated its legal operation.” Thus if a deed be by the words dedi et concessi, &c., yet if it operate as a bargain and sale, it ought to be so pleaded (a). Barker v. Lade (6)" is to the same purport. The acceptance, therefore, ought to have been pleaded according to its legal effect, that is, as a general acceptance.

TINDAL C. J. I think the effect of the statute is to relieve a plaintiff from the difficulty under which he previously laboured, and to enable him to treat an acceptance as general, which, before the act, was a particular one. But although in this case there was, in law, a general acceptance—that is, an engagement to pay any where ---such general acceptance would include, amongst others, the particular place mentioned in the declaration ; and it does not lie in the defendant's mouth to say that the bill was not payable at that place, when he has himself referred the parties there for payment.

The rest of the court concurred.
Rule refused (c).

[11] BELL, Public Officer, &c., 0. GARDINER. April 21, 1812. (S. C. 4 Scott, N. R. 621; 1 D. N. S. 683; 11 L. J. C. P. 195. Applied, Townsend v.

Croudy, 1860, 8 C. B. (N. S.) 495. Approved, Brownlie v. Campbell, 1880, 5 App.

Cas. 952.] A negotiable security given by a party in satisfaction of a liability from which he was

discharged in law,-in ignorance of the facts which constituted such discharge, cannot be enforced against him, though he may have had the means of knowing those facts.-- Therefore, where a bill of exchange indorsed by A. for the accommodation of the drawer, was afterwards altered in a material point, with the consent of the drawer, and when the bill was at maturity, B., the then holder, made a demand upon A., who, ignorant of the alteration, though he had ample means of knowing

(b)? Vol. i. p. 305, 6th ed. See also Stephen on Pleading, p. 417, 4th ed. In Wickes v. Gordon, 1 Chitt. Rep. 67, Holroyd J. says, “The most correct way of pleading is, to plead the words according to their legal effect, instead of adopting the words used, which is not always safe.” And see Com. Dig. Pleader (C. 37); Wms. Saund. vol i. p. 235 b. (1); vol. ii. p. 97 b. (2); Howell v. Richards, 11 East, 633; Tempest v. Rawling, 13 East, 18, 20; Latham v. Rutley, 2 B. & C. 20; 3 D. & R. 211; Saunderson v. Griffiths, 5 B. & C. 909; 8 D. & R. 643 ; 5 Mann. & Ryl. 451 ; Bac. Abr. Pleas & Pleading (I. 7), vol. v. 421, 6th & 7th ed.; ante, vol. i. p. 305, 306 (a). For the reason, vide ante, vol. i. p. 281 (d).

(a) Vide Taylor v. Vale, Cro. Eliz. 166.
(6) 4 Mod. 149. S. C. 3 Lev, 291. See also 2 Wms. Saund. 96 b. (1).

(C) See Selby v. Eden, 3 Bingh. 611; Fayle v. Bird, 6 B. & C. 531. The objection taken in the principal case appears to have been,—not that [11] the plaintiff had shewn an insufficient presentment, but that having alleged a conditional and limited contract, he had proved an unconditional and general contract. If the defendant had traversed the presentment stated in the declaration, such traverse would have been material in respect of the contract declared upon, which would have been admitted by the traverse to be the true contract; but it would, for the reason pointed out in the judgment, have been immaterial with reference to the real contract between the parties, according to the provisions of the 1 & 2 G. 4, c. 78. In Alsop v. Claydon the declaration was upon a promise to pay the plaintiff 5l. when the defendant should be required. The jury found that the defendant promised to pay the plaintiff 51., but said nothing as to the request; judgment quod querens nihil capiat per breve. Sir F. Moore, 406. S. P. Peeter v. Carter, 2 Roll. Abr. 719, 21 Vin. Abr. 463; and see Barker v. Rowle, ib.; Kitchenman y. Evesque de Osorie in Ireland, 2 Roll. Abr. 720, 21 Vin. 464.

it, gave B. a promissory note for the amount of the bill and expenses : Held, that it was a good defence to the action on the note by B., that at the time A. gave it, he was not, in fact, aware of the alteration in the bill.

Assumpsit, by one of the public officers of a co-partnership, styled “The National Provincial Bank of England,” upon a promissory note made by the defendant in favour of the bank, on the 22d August 1840, for 2031. 5s. 6d., at two months after date.

Second plea : that before the making of the note, to wit, on the 11th April 1840, one William Martin drew his bill of exchange directed to one Samuel Shirley, and thereby requested Shirley three months after the date thereof, to pay to the order of Martin 2001.; that Martin then delivered the bill to Shirley, and requested Shirley to accept the same for Martin's accommodation ; [12] that Shirley then accepted the bill for the accommodation of Martin, and then redelivered the same, so accepted, to Martin ; that Martin indorsed the bill with his own name, and then delivered the same to the defendant, and then requested the defendant to indorse the bill for the accommodation of him, Martin ; that the defendant then, in compliance with such request, indorsed the bill for the accommodation of Martin, and then redelivered the same to Martin ; that he, the defendant, so indorsed the bill for the accommodation of Martin merely, and without having received any consideration or value for such indorsement, and that he had not since received any consideration or value for the same; that at the time he, defendant, so indorsed the bill, the same bore a certain date, to wit, the 11th of April 1840, and that after the indorsement by the defendant, and after the bill had been redelivered by defendant to Martin as aforesaid, and before the same was paid and delivered to the said copartnership as hereinafter mentioned, to wit, on the day and year last aforesaid, the date of the

bill was altered to a certain other date, to wit, the 21st April 1840, and that such alteration was made without the knowledge or consent of the defendant, and that the defendant was and remained ignorant of such alteration having been made from thence until after the making by him, the defendant, of the said promissory note, and until after the delivery of the same to the said copartnership, as in the said declaration mentioned, to wit, until and upon the 1st day of September 1840; that after the making of the alteration in the date of the bill as aforesaid, to wit, on the 21st of April in the year last aforesaid, the said bill with the date thereof so altered was paid and delivered to the said co-partnership, who held the same from thence until afterwards, to wit, on the 22d of August in the [13] year last aforesaid ; that on the day and year last aforesaid the said co-partnership, applied to the defendant for payment to them of the amount of the bill; and thereupon the defendant believing that the bill was in the same state in which it had been when he, the defendant, so indorsed it as aforesaid, and being ignorant of the said alteration in the date thereof, and never having assented or agreed thereto, agreed with the said copartnership to make and deliver to them the said promissory note in consideration of his said supposed liability to the said co-partnership upon the bill, and for no other consideration whatever; that the defendant, in pursuance of such agreement, did make the said promissory note, and did deliver the same to the said co-partnership as in the said declaration is mentioned, in consideration of his supposed liability upon the bill, and for no other consideration whatsoever. And so the defendant saith that he made the said promissory note, and delivered the same to the said co-partnership in the mistaken belief that he was liable to pay to them the amount of the said bill; and that he, the defendant, never received any consideration or value for making the said promissory note, or for delivering the same to the said co-partnership, or for the payment thereof. Verification.

Replication : de injuriâ (a).

At the trial before Tindal C. J., at Guildhall, at the sittings after last Trinity term, it was proved, on the part of the defendant, that he had indorsed the bill for the accommodation of Martin, and that the bill then bore date the 11th of April ; that the date was afterwards altered to the 21st, with Martin's consent, but without the privity of either the acceptor or the defendant; that the defendant had made a memorandum [14] of the time when the bill would fall due, viz. on the 14th July ; that notice of the dishonour of the bill, stating it to be due on the 24th of July, was given to the defendant, and the amount was demanded from him ; that on two

(a) Vide ante, vol. i. pp. 235, 720 (1); ii. 171, 298, 348.

occasions after this notice the defendant saw the bill, and that he gave the note, on which the action was brought, for the amount of the bill and the expenses.

The Lord Chief Justice left it to the jury to say whether, at the time of giving the note, the defendant had any knowledge of the alteration in the bill; and that the question was not, whether he had the means of knowledge, of which there could be no doubt. The jury having found that the defendant had no knowledge of the alteration when he gave the note, the verdict was entered in his favour on the issue on the second plea.

Channell Serjt., in last Michaelmas term, obtained a rule nisi for judgment for the plaintiff non obstante veredicto, or for a new trial, on the ground, either that the plea was no answer to the action, inasmuch as it should have also alleged that the defendant, at the time he gave the note, had no means of knowing that the bill had been altered ; or that, if the plea might be considered as also negativing the means of knowledge, then the direction of the Lord Chief Justice was incorrect. He put the case as standing upon the same ground as if the defendant had paid the note, and was seeking to recover back the amount in an action for money had and received; Bilbie v. Lumley (2 East, 469), Milnes v. Duncan (6 B. & C. 671, 9 D. & R. 731).

Talfourd Serjt. (with whom was Gray) now shewed cause. The question is, whether the note was given by the defendant under a mistake as to the real facts ; for, if so, although that mistake may have arisen from his own [15] negligence, payment cannot be enforced. This case has been put by the other side on the same footing as an action for money had and received. It may be so considered ; and none of the decided authorities, from Bilbie v. Lumley downwards, militate against the proposition contended for on the part of the defendant. But the question may be considered as set at rest by the recent case of Kelly v. Solari (9 M. & W. 54), where it was held, that if a party pay money under a forgetfulness of facts at the time of payment, he is entitled to recover it back, though he had full means of knowledge at the time. That was an action by one of the directors of an insurance company to recover money paid to the defendant on an insurance upon the life of her deceased husband. The policy had, in fact, lapsed just before the death of the party, by non-payment of the last quarterly premium. The actuary of the office had informed two of the directors of this fact, and one of them had written the word “lapsed,” in pencil, on the policy. Some months afterwards the defendant, as executrix of her late husband, applied to the office for the payment of the policy in question, and of two other policies. The directors drew a cheque for the amount, having, as they stated at the trial, entirely forgotten that the policy had lapsed. Lord Abinger C. B., before whom the cause was tried, was at that time of opinion, that if the directors had had knowledge, or the means of knowledge, that the policy had lapsed, the plaintiffs were not entitled to recover; and that their subsequently forgetting it would make no difference; and the plaintiff was accordingly nonsuited. A rule nisi was obtained, on the part of the plaintiff, to set aside this nonsuit, and enter a verdict for the plaintiff, or for a new trial; and, after argument, in which the various authorities were brought under the consideration of the court, Lord Abinger C. J. thus expressed himself :-[16] “I think the defendant ought to have had the opportunity of taking the opinion of the jury on the question, whether, in reality, the directors had a knowledge of the facts, and, therefore, that there should be a new trial, and not a verdict for the plaintiff ; although I am now prepared to say, that I laid down the rule too broadly at the trial, as to the effect of their having had means of knowledge. That is a very vague expression, and it is difficult to say, with precision, what it amounts to; for example, it may be that the party may have the means of knowledge on a particular subject, only by sending to and obtaining information from a correspondent abroad. In the case of Billie v. Lumley, the argument as to the party having means of knowledge was used by counsel, and adopted by some of the judges; but that was a peculiar case, and there can be no question, that if the point had been left to the jury, they would have found that the plaintiff had actual knowledge. The safest rule, however, is, that if the party makes the payment with full knowledge of the facts, although under ignorance of the law, there being no fraud on the other side, he cannot recover it back again. There may also be cases in which, although he might, by investigation, learn the state of facts more accurately, he declines to do so, and chooses to pay the money notwithstanding; in that case there can be no doubt that he is equally bound. Then there is a third case, and the most difficult one, —where the party had once a full

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