1800. Gibbs then obtained a rule to fhew caufe why the proceedings against the bail fhould not be ftayed, upon payment of the debt CLARKE fworn to and the costs to be taxed by the Maiter. BRADSHAW. againft Erskine, Garrow, and Marryatt, now fhewed caufe. They stated that the action was by bill and the ac etiam for 4000l.: that the fum fworn to for which the defendant was holden to bail was only 1900/. 105.: but the fum recovered was 2,5497. 10s.: and they contended, 1ft, that the bail were liable to the extent of the fum recovered, being within the amount of the fum named in the procefs. Martin v. Moor, 2 Stra. 922. or if not, 2dly, that each of the bail were feparately liable to the extent of the fum fworn to; and therefore both together were liable to [91] an amount which would cover the damages recovered and costs. Debl v. Johnfon in C. B. 1 Bof. & Pull. 205. vide Calveraq & ux. v. De Miranda, Barnes, 2d edit. 76. S. P. [92] Monday, Nov. 24th. A bill of exchange pay LE BLANC J. obferved that in C. B. the bail enter into a recognizance for double the amount of the fum fworn to. The Court on confideration of the rule of Court, E. 5 Geo. 2. (a) and of the cafe of Jackson v. Haffel (b), and of another cafe, furnished by the Mafter, of Tranel v. Rivaz and another, Tr. 16 Geo. 3. (c) (which Lord Kenyon read from the Master's note) faid that it was abfolutely of courfe to grant the application. That the bail to the action were altogether only liable to the amount of the fum fworn to and cofts; though as between them and the plaintiff that fum might be levied upon either of them. But the plaintiff could not recover it twice over from the bail, by taxing each feparately to that amount. Rule abfolute (d). (b) Doug. 330. (a) Rules and Orders of K. B. 10*. (c) Tranel v. Rivaz and another, Tr. 16 G. 3. B. R. "In an action on the recognizance of bail leave was given to flay proceedings on payment of the fum fworn to, viz. zool. the costs in the original action, and the cofts against the bail, and of the application; although on caufe fhewn it appeared that the defendant was gone abroad, and that the plaintiff had recovered 5col" (d) The diftinction is between bail to the action and bail to the fherif; the latter are liable to the whole debt (without regard to the fam fworn to) and cofts, provided the amount does not exceed the penalty of the bail bond. Stevenson v. Cameron, 8 Term Rep. 28. Orton v. Vincent, Cowp. 71. So in C. B. Mitchell v. Gibbons, H. Blac. 76. So the heriff is liable to the whole amount if he difcharge the defendant without taking a bailbond, Stevenson v. Cameron fupra: or generally, upon an attachment against him for not bringing in the body. Forelds v. Mackintosh, 1 H. Blac. 233. Heppel v. King, 7 T. R. 379. *The reafon of making this rule which is particularly worded may be gathered from the cafe of Genbaldo v. Cognoni, M. 3 Ann. Salk. 102. where Lord Holt held that if the fum recovered exceeded the fum in the ac etiam the bail were not liable at all, because their recognizance was to answer the condemnation, which in that cafe could not be. PARR against ELIASON and Others. N trover for a bill of exchange, it appeared that the plaintiff, refiding at Liverpool, in 1799 became poffeffed of the bill in quefable to A. or tion, which was drawn by a correfpondent in the West Indies upon order, which a houfe in London in favour of the plaintiff or his order, and acwas legal in its inception, was by him indorfed to B. for an ufurious confideration, who paffed it to a third perfon for a valuable confideration, without notice of the ufury, by whom it was paid to B.'s affignees after his bankruptcy, in fatisfaction of a debt owing to the bankrupt's eftate: held that the indorsement of A. to B. on an ufurious account did not avoid the bill in the hands of an innocent holder by virtue of the ftatute of ufury; and that B.'s afflignees being clothed with the rights of fuch innocent indorfee were entitled to hold the bill against A., tho' as between A. and B. the fecurity was void. An agreement on unting a bill that the party fhould take in part payment another bill which had time to run as cash, the full difcount was taken, is ufurious. cepted ELIASON. cepted payable on the 27th of July 1800. The plaintiff having 1800. occafion to raife money applied to the houfe of Perfent and Bodekér on the 18th of June 1799 to difcount the bill, which they agreed PARR to do and took the full difcount; ftipulating however that the against plaintiff should in part payment of the money take their acceptance of a bill to be drawn by him on them at three months date, which was done accordingly; and at the fame time the plaintiff indorfed the original bill in queftion to them. Perfent and Bodeker became bankrupts in September 1799, having firft negotiated the bill; and the fame was afterwards paid to the defendants, as affignees under their commiffion, in fatisfaction of a debt due to the bankrupts eftate. It also appeared that after the bankruptcy the plaintiff was obliged to take up and pay the bill drawn by him upon the bankrupts and accepted by them. At the trial before Lord Kenyon at Guildhall, it was contended on the part of the plaintiff, that the indorsement of the bill by him to the bankrupts for an ufurious confideration avoided the fecurity by the ftat. 12 Ann. ft. 2. c. 16. whereby all bonds and affurances for "payment of any money to "be lent upon ufury &c. fhall be void;" which has been holden to avoid fecurities of this kind even in the hands of innocent indorfees for a valuable confideration without notice. Lowe v. Waller (a), and Bowyer v. Bampton (b). But Lord Kenyon was of opinion that [ 93 1 the affignees of the bankrupt had a right to protect their poffeffion of the bill by the title of the party from whom they received it in payment, who was an innocent holder; and that the bill being valid in its inception the ftatute of ufury did not apply to the prefent cafe: and thereupon the plaintiff was nonfuited. A rule having been obtained on a former day in this term, calling on the defendants to fhew cause why the nonfuit fhould not be fet afide and a new trial had, Law, and Wood, were now called upon to fupport the rule. It is clear that the confideration for indorfing the bill, as between the plaintiff and the bankrupts, was ufurious, and if it had come to the hands of the affignees immediately from the bankrupts their title must have been affected by the ufury. But though the defendants may be confidered as standing in the fituation of innocent holders, yet the inftrument itfeif is avoided by the tatute of ufury, and no title could be conveyed by the plaintiff's indorfement. The bill being originally made payable to the plaintiff or his order, without his indorsement it was not negotiable, nor was any affurance in law to any other perfon: then the ufurious confideration was cotemporaneous with the first existence of the inftrument as an affurance to the bankrupts. Suppofe the bill had been drawn by the plaintiff himself payable to his own order, and he had agreed to indorfe it for an ufurious confideration, it cannot be pretended but that it would have been void by the ftatute: this then is the fame in effect; for every indorsement is as it were a new drawing of the bill (c); and the affignees, though innocent holders, mult in any [ 94 1 action upon the bill derive title through the first indorfer. If the bankrupts could not have maintained an action against the plaintiff (a) Dougl. 736. () Vide 2 Barr. 674. VOL. I. 14 Amn. c و .b) a Str. 155. upon the Gaming A) E upon 94 PARR against ELIASON. 1800. upon his indorfement on account of its being an affurance for an ufurious confideration, neither could any fubfequent holder, according to the conftruction put upon the ftatute. Then it is inconfiftent to fay that though no action could be maintained against the first indorfer, yet that title may be made through him to another. Erskine, Gibbs, and Taddy, contrà, were ftopped by the Court. Lord KENYON C. J. There is nothing in the point: and it might be attended with ferious confequences if it could be fuppofed that the Court entertained any doubt upon it. The commerce of this country fubfifts upon paper credit; but if this action could be maintained no man would be fafe in taking even a bank of England poft bill payable to order; for however juft and legal it might be in its inception, if the payee paffed it to another for an ufurious confideration it is now contended that it would be void in the hands of any fubfequent innocent holder, and might be recovered from him. Where the bill itself in its original formation is given for an ufurious confideration the words of the ftatute of Anne are peremptory that the affurance fhall be void; and the construction which has been put upon the ftatute has gone far enough in saying that it fhall be avoided even in the hands of an innocent indorfee without notice. But no cafe has gone the length now contended for, nor do the words of the ftatute require it. Here the bill was fair and legal in its concoction, and therefore no advantage can be taken of what happened afterwards against bonâ fide holders. The defendants ftand clothed with the rights of the party from whom they received the bill in payment, and must therefore be taken to be holders for a valuable confideration without notice. I referred at the trial to a cafe in Siderfin, (a), which is a very leading authority, wherein it is faid, that though a conveyance may in its creation be fraudulent and voidable as against a purchafer, yet it may become valid by matter ex poft facto: and that a perfon to whom a conveyance was made which was voluntary in its creation, and therefore voidable, might be protected by the title of a fubfequent purchafer for a valuable confideration who had acquired an intereft in it. [95] Per Curiam, Rule difcharged (b). (a) Prodgers v. Langbam, 1 Sid. 133. See alfo Lowther v. Carleton, Caf. in Eq. temp. Ld. Talbot 187. where a purchater for a valuable confideration, but with notice, protected himfelt by making title through a third person whofe title could not be impeached by notice And feveral cates in 2 Vern. 159. where purchafers for valuable confiof the pr or detect deration without notice have protected themieives by getting a legal titie, though obtained originally by urdue means. And vi. . 1. by Serjt. Williams, where all the cales are very ably collected; and Cuthbert v. Haley, (b) Vide Ferrail v Shaen, 1 Saund. 294. that a bond which was good when made is not avoided by a fui fequent ufurious contract for delaying the day of payment of it. [96] 8 Term Rep. 390. Monday, um paid on VANDYCK and Others against HEWITT. HE plaintiff declared upon a policy of infurance on goods at and fron. London to Embden or Amfterdam, at a premium of inforance to ten guineas per cent. to return five upon their arrival at the place Cover 4 trad- of deflination; with an averment that the infurance was made for ing with an enemy cannot be recovered back, tho' the underwriter cannot be commpelled to make good the lofs. 8+ the the benefit of certain perfons therein named; and then declared as 1800. upon a lofs by capture in the course of the voyage insured. The declaration alfo contained counts for money paid and for money VANDYCK had and received. The goods were shipped on board a Prussian neutral veffel, on account, partly, of the plaintiffs who were naturalized foreigners. refident in London, and partly of certain other perfons, aliens, then refident in Holland. At the trial at Guildhall the infurance itfelf was abandoned on the ground of its being intended to cover a trading with an enemy's country, Holland being at the time of fuch inlurance in a state of hostility with this kingdom; and therefore falling within the decifion of the cafe of Potts v. Bell (a): but it was contended that the plaintiffs were entitled to recover back the premium, becaufe the policy never attached, and confequently the defendant's rifk never commenced. Lord Kenyon permitted a verdict to be taken for the plaintiff for that amount, with liberty to the defendant's counfel to move to fet that afide and to enter a verdict for the defendant. A rule nifi was accordingly obtained on a former day in this term for that purpose; against which agauft HEWITT. Erskine, Park, and F. Warren, now fhewed caufe. Here was no fraud intended, as in the cafe of fmuggling tranfactions. The [97] allured are neutral foreigners, who have paid money to the defendant for a certain confideration the benefit of which they are precluded from receiving by a rule of public policy: it is but just therefore that as the infurance never attached, and the underwriter has not incurred any risk, he should not be fuffered to retain the confideration (6). Admitting the contract to be illegal, yet according to Lacauffude v. White (c) the party who has depofited money upon an illegal confideratin, (as in that cafe upon an illegal wager) may recover it back again even after the event is determined against him. They alfo referred to the cafe of Nesbitt v Whitmore in Eafter term lait, where this point was agitated, and where finally the premium was returned (d). Law and Garrow contra were stopped by the Court. Lord KNEYON C. J. There is no diftinguishing this on principle from the common cafe of a fmuggling tranfaction. Where the vendor affifts the vendee in running the goods to evade the laws of the country he cannot recover back the goods themselves or the [98] value of them (e). The rule has been fettled at all times, that where both parties are in pari delicto, which is the cafe here, potior eft conditio poffidentis. (a) 8 Term Rep. 548. (b) Tyre v. Fletcher, Cap. 668 (c) 7 Term Rep. 535. (d) In that cafe under fimilar circumftances with the prefent, Giles for the plaintiff admitted that he could not recover trekfs upon the policy fince the determination in Bell v. Pets: but he contended that the plaintiff was entitled to take a verdi for the premium, which had not been paid into Court This was refifted by Park for the defendant, on the ground th no fuch queftion had been referved at the trial. Et per Curiam, That point not having been made, and he jury not having affeffed any fuch dama es, but only the amount of the lofs to be recove ed, fuppofing the plaintiff to be entitled to it in point of law, we cannot now inte po fe any o her fum in lieu of their verdict. Whereupon Giles prayed leave to amend the verdict by the Judge's notes. The Court with much reluctance, and with a view to a compromite, gran ed a rule to thew caute. And afterwards it was agreed between the parties that the premium fhould be repaid, without cofts on either fide. (e) Vide Clugas v. Penaluna, 4 Term Rp 456. and Waymell, v. Read, 5 vol. 599. E 2 LE 1800. LE BLANC J. The ground of the determination in Lacauffade v. -White has been fince very much canvaffed in a later cafe, of Howfon VANDYCK v. Hancock (a), where it was confidered that money depofited upon against HEWITT. an illegal wager, and paid over to the winner, could not be recovered back from him. Tuesday, Amere pro mite by a creditor, that if he Per Curiam, (a) 8 Term Rep. 575. Rule abfolute for the verdict to be entered for the defendant (b). (6) So in Lowry v Bourdieu, Deugl. 468. the Court held that the affured could not recover back the premium paid upon a gaming policy without intereft, which is illegal within the ftat. 19 Geo. 2. c. 37. JOHNSON and Another against COLLINGS.. THE plaintiffs declared in the first count against the defendant as the acceptor of a bill of exchange drawn by one Ruff, dated debtor to his the 25th of October 1799, and directed to the defendant, whereby he was required two months after date to pay to the order of the would draw drawer 237. 10s. 6d. value received, which bill was afterwards ina bill upon dorfed by Ruff to one Jane Ruf, and by her to the plaintiffs. There were other general counts for had and received, money paid, and upon an account ftated. To which there was a his demand plea of the general iffue. him at a certain date for the amount of he should then have the money and would in law to an acceptance when drawn: and an in valuable confidera tion, be drawee no money *At the trial before Le Blanc J. at the laft Worcefier affizes it appeared in evidence that Ruff, having furnifhed goods to the defendant to the amount of the bill, applied to him for payment, when pay it, does the defendant excufed himself at that time, but faid that if Ruff not amount would draw on him a bill at two months from the 25th of October for the amount he fhould then have money and would pay it. of the bul Ruff afterwards drew the bill in queftion, dated 25th of October at two months, but it never was in fact prefented to the defendant for his acceptance; nor did he ever in fact accept it, otherwife than dorfee for a as is stated above. It was faid at the trial to be the practice at Brifol, where the defendant lived, not to accept bills or to have them prefented for acceptance. Ruff, to whofe own order it was tween whom made payable, having indorsed the bill, afterwards pafied it to the and the plaintiffs in difcharge of an old debt: but no communication took communi- place at the time between the plaintiffs and the defendant. After cation paf- this and before the bill became due Ruff became a bankrupt; and fed at the when the bill was due the plaintiffs prefented it to the defendant taking the for payment, who then declined it on account of Ruff's bankruptcy bili, cannei- without an indemnity, admitting however that he owed the money ther cover either to Ruff or Ruff's affignees. The learned Judge was of count as for opinion that a mere promife, fuch as this, to accept a bill when it an accept- fhould be drawn, at least unless made to a third perfon, or accomthe general panied at least with circumstances which might induce a third perfon to take the bill, (which was not the case here,) did not amount to an acceptance, and therefore the plaintiffs were not entitled to recover on the first count. And that as there had been no com*[ 99 ] munication between these parties at the time, nor any confideration having paffed as between them, there was no evidence to warrant a [100] finding for the plaintiffs on either of the money counts: whereupon time of his upon the ance, nor on counts as for money had and received &c. he |