Prezados,
Nao sei se ja mandei para a lista, mas esse caso é muito interessante. Um dos primeiros de dipr de contratos, mas nao é sobre comercio, e sim divida de jogo. Muito citado, pouco conhecido. Para a série, material histórico.
Um abraço
Nadia de Araujo
Robinson v Bland
COURT OF KING’S BENCH
[1558-1774] All ER Rep 177, Also reported 2 Burr 1077; 1 Wm Bl 234, 256; Bull NP 275; 97 ER 717
HEARING-DATES: 15 NOVEMBER 1760
15 November 1760
NOTES:
Notes
Considered: Wilkinson v L’Eaugier (1836) 2 Y & C 363; Applegarth v Colley (1842) 10 M & W 723; Daintree v Hutchinson (1842) 11 LJ Ex 397. Followed: Moulis v Owen, [1907] 1 KB 746. Considered: Saxby v Fulton, [1908-10] All ER Rep 857. Followed: Sociiti Anonyme des Grands Etablissements de Touquet Paris-Plage v Baumgart, [1927] All ER Rep 280. Considered: Carlton Hall Club, Ltd v Laurence, [1929] All ER Rep 605. Referred to: Bigg v Lawrence (1789) 3 Term Rep 454; Leapridge v King (1795) Peake, Add Cas 32; Calton v Bragg (1812) 15 East, 223; M’Kinnell v Robinson (1838) 3 M & W 434; Re Trye, Ex parte Guillebert (1838) 7 LJ Bcy 25; Quarrier v Colston (1842) 1 P1147; Allen v Kemble (1848) 6 MooPCC 314; Brook v Brook (1858) 3 Sm & G 481; Jacobs, Marcus & Co v Cridit Lyonnais, [1881-5] All ER Rep 151; Re Missouri SS Co (1889) 42 Ch D 321; Companhia de Mocambique v British South Africa Co, De Sousa v British South Africa Co, [1892] 2 QB 358; Kaufman v Gerson, (1903) 2 KB 114; CHT, Ltd v Ward, [1963] 3 All ER 835.
As to the enforcement of foreign contracts, see 7 HALSBURY’S LAWS (3rd Edn) 69 et seq; and for cases see 11 DIGEST (Repl) 420 et seq.
CASES-REF-TO:
Cases referred to:
(1) Slater v Emerson (1727) unreported.
(2) Barjeau v Walmsley (1746) 2 Stra 1249; 93 ER 1161; 25 Digest (Rep]) 438, 198.
(3) Champant v Lord Ranelagh (1700) Prec Ch 128; sub nom Lord Ranelaugh v Champante, 2 Vern 395; 1 Eq Cas Abr 289.
(4) Curenden Parish v Laland, Lancashire, Parish (1731) 2 Stra 903; 93 ER 929; sub nom Courland (Inhabitants) v Iceland (Inhabitants) 1 Barn KB 466; sub nom Cuerden Parish v Laland, 2 Sess Cas KB 167; 1 Bott, 517.
Also referred to in argument:
Dawes v Painter (1674) 1 Freem KB 175; 89 ER 126; sub nom Daws v Paynter, 3 Keb 26; sub nom Daws v Pindar, 2 Mod Rep 45; 8 Digest (Repl) 773, 411.
Blankard v Galdy (1693) 2 Salk 411; 4 Mod Rep 215; Holt, KB 341; Comb 228; 91 ER 356; 8 Digest (Repl) 768, 347.
Foubert v Turst (1703) 1 Bro Parl Cas 129; 2 Eq Cas Abr 475; 1 ER 464; sub nom Feaubert v Turst, Prec Ch 207, HL; 11 Digest (Repl) 494, 1154.
Fremoult v Dedire (1718) 1 P Wms 429; 24 ER 458.
Earl of Dungannon v Hackett (1702) 1 Eq Cas Abr 288; 21 ER 1051; 35 Digest (Repl) 224, 274.
Ellis v Lloyd (1701) 1 Eq Cas Abr 289; 21 ER 1052.
Lane v Nichols (undated) 1 Eq Cas Abr 388; 21 ER 1051; 35 Digest (Repl) 224, 275.
Harvey v East-India Co (1700) 2 Vern 395; 1 Eq Cas Abr 288; 23 ER 856; 35 Digest (Repl) 224, 276.
Beven v Clapham (1664) 1 Lev 143; 83 ER 339; sub nom Bevin v Chapman, 1 Sid 228; 1 Keb 799; 32 Digest (Repl) 408, 322.
Davis v Yale (1699) 2 Lut 946; 125 ER 528; 32 Digest (Repl) 408, 320.
Dupleix v De Roven (1705) 2 Vern 540; 23 ER 950; 11 Digest (Repl) 527, 1396.
Tourton v Flower (1735) 3 P Wms 369; 24 ER 1105; 22 Digest (Repl) 246, 2997.
Hussey v Jacob (1696) Cartb 356; 1 Com 4; Holt, KB 328; 1 Ld Rayon 87; 5 Mod Rep 175; 12 Mod Rep 96; 1 Salk 344; 88 ER 1189; 6 Digest (Repl) 141, 1018.
Bower v Bampton (1741) 2 Stra 1155; sub nom Boyer v Bampton, 7 Mod Rep 334; 93 ER 1096; 6 Digest (Repl) 141, 1020.
Pipon v Pipon (1744) Amb 25, 799; 9 Mod Rep 431; 27 ER 14, 507; sub nom Pippon v Pippon, Ridg temp H 165, LC; 11 Digest (Repl) 397, 525.
COUNSEL:
Serjeant Hewitt and Wedderburn for the plaintiff.; Blackstone and Coxe for the defendant.
PANEL: Lord Mansfield CJ, Denison and Wilmot JJ
JUDGMENTBY-1: LORD MANSFIELD CJ:
JUDGMENT-1:
LORD MANSFIELD CJ:
This is an extremely clear case, but it may be of use to state the general principles upon which it will be determined. There are two questions: (i) whether the plaintiff is entitled to recover anything, and what, upon the first count upon the bill of exchange considered as a written security; (ii) whether upon either of the other counts, upon the justice and equity of the case.
As to the first, the general rule established ex comitate et jure gentium is that the place where the contract is made, and not where the action is brought, is to be considered in expounding and enforcing the contract. But this rule admits of an exception, where the parties (at the time of making the contract) had a view to a different kingdom. HUBER says that (PRAELECTIONES, lib 1, tit 3, para 43) contracts are to be considered according to the place wherein they are to be executed. As, therefore, the bill in the present case is made payable in England, it is entirely an English transaction, and to be governed by the local law. This stands upon the same ground as that landed property must be governed by the local law, in consequence whereof, deeds and wills, made in Paris to convey land in England must be made and interpreted according to our law. It is clear that by the statute of Anne [Gaming Act, 1710] All bills of exchange upon a gaming consideration are void, and (by the way) the fact is not found whether, even in France, you may not enter into and contemplate the consideration of a gaming note. I rather think you may. Here the payment is to be in England; it is an English security; and it is clear that in England the writing, as a writing, is void.
Counsel for the defendant has argued very rightly that Sir John Bland could never be called upon abroad for payment of this bill until there had been a wilful default of payment in England. The bill was drawn by Sir John Bland on himself, in England, payable ten days after sight. In every disposition or contract where the subject-matter relates locally to England, the law of England must govern, and must have been intended to govern. Thus, a conveyance or will of land, a mortgage, a contract concerning stocks, must be all sued upon in England, and the local nature of the thing requires them to be carried into execution according to the law here.
The case does not leave room for a question, for the law of both countries is the same. The consideration of the bill of exchange might, in an action upon it, be gone into there as well as here. As to the money won at play, it could not be recovered in any court of justice there, notwithstanding the bill of exchange. This writing is, as a security, void (being for a gaming debt) both in France and in England. We may, therefore, lay the bill of exchange out of the case: it is very clear, the plaintiff cannot recover upon that count.
As to the other counts – for money had and received to the plaintiff’s use and for money lent and advanced to him, I think there is a plain distinction between the money won and the money lent, laying the bill of exchange quite out of the case. No action can be maintained for money won at gaming. The statute law prohibits any recovery upon a gaming consideration, as the common law does upon all other turpes causae. There are many cases where the law of the country in which the contract is made shall prevail, and it is hard to lay down the nice rule of distinction. There are many cases wherein foreign sentences are final, as with regard to the validity of marriages, many where they are only a ground of evidence prima facie. Here I must remark obiter that it was hinted on the part of the plaintiff that the law of Scotland must determine the validity of the marriages of minors there celebrated. HUBER, p 33, puts a parallel case, and determines expressly against it. I give no opinion; I only mention it to hinder bystanders from taking those arguments for granted. What makes an end of thispart of the case is that, as to money won, the money was won in France, and, therefore, its recovery ought to be governed by the law of France, and the law is the same in France and in England. As for the court of honour, it is no part of the law of the land; no court of justice will aid it; the parliament of Paris will take no cognizance of it. It is like the arbitrary jurisdictions set up here at horseraces and cockpits, or (as has been observed at the Bar) like the courts-martial in England which are to decide what is, or is not, behaving like a gentleman. If a cause really comes before them, well; if not, no court of law will adopt their rules of decision. But here the cause could not come before them; the bill was not payable, and it was no breach of honour not to pay it before it was due. I, therefore, lay this court out of the case, and, more especially, as this is a suit against representatives, not the party himself.
As to the money won, the contract is to be considered as void by the law of France, as well as by the law of England, which makes it unnecessary to consider how far the law of France ought to be regarded.
Next, as to the money lent. It has been twice judicially determined (Slater v Emerson (1) coram EYRE, CJ, and Barjeau v Walmsley (2) coram LEE, CJ) that the legislature meant only to void the security, not the contract, in order to give courts an opportunity to examine into the merits of the consideration which. in this case, is stated to be extremely fair. Possibly it might be lent to pay foreigners’ money won and thereby to extricate the deceased from the clutches of the court of honour. Here also then the law of France is the same as in England. The contract, when fair, is good in both countries, and the plaintiff must, therefore, recover under his counts for the general assumpsits.
The only question remaining is what interest he is entitled to receive. I find the general rule has been, upon all contracts carrying interest, to stop interest the day that the writ is sued out. This is certainly unreasonable, for the party can never have (by this rule) what he is entitled to, due interest. He can have no new action for the subsequent interest, nor any damages pendente brevi, as in the old actions at common law. In Chancery the rule established by LORD TALBOT in respect of tithes was that they should be paid down to the last act which the court has done to ascertain the sum. The Exchequer now pursues the same rule, having altered their old one upon my argument. I think in this case that the interest must be carried down to this time. It is but a trifle here, but I am glad of an opportunity to have this matter settled, and am desirous to consult the rest of the judges upon it that the practice of the courts may be uniform.
JUDGMENTBY-2: DENISON, J:
JUDGMENT-2:
DENISON, J:
Gave no opinion on this last point. As to the rest, he said it was a plain, clear, short case. It was determinable by the rules of the common law, and no other law. He continued: The money is made payable in England. As it is a foreign bill of exchange, it must of course be dated abroad, but it is to be paid here at home. The plaintiff has appealed to the laws of England by bringing his action here, and the case must be determined by them.
By the laws of England, the security is void, which might have been pleaded as well as it might be given in evidence, and the defendant needed not, in his plea, to have said where it was won at play. Being a transitory action, it must then have been tried where the action was brought, and so it must have been if the plea had been local. Indeed, in many cases that might be put the determination must have been according to the laws of the place where the fact arose. But the present case is not so. Here the security is void by the laws of the country where he brings his action upon it. And this security is one entire security both for the money won at play, and the money lent at play.
There is a distinction between the contract, and the security. If part of the contract arises upon a good consideration, and part of it upon a bad one; it is divisible, but, it is otherwise as to the security. That, being entire is bad for the whole. Therefore, the plaintiff ought to be barred of this action upon this bill of exchange, as being a void security by the laws of this country where he bringshis action. But still the contract remains, and he has a right to maintain his action for so much of his demand as is legal, which is the money lent.
JUDGMENTBY-3: WILMOT J:
JUDGMENT-3:
WILMOT J:
I have no doubt as to the money lent. If there had been no authority in point, I should have thought that the sound ground of the Act [Gaming Act, 1710] was merely to examine the consideration, and not conclude the drawer by his own written act. In the case put at Bar of a man’s lending money and winning it, then lending more and soon, I should think it a plain fraud on the Act. (NB – This is the very case in Barjeau v Walmsley (2) before cited and relied upon). As to the interest, I incline to Lord Chief Justice’s opinion. This is an action sounding in damages, and the damage is the detention of the plaintiff’s debt. I think, upon memory, that the old statutes of costs talk of the costs of the writ, which SIR EDWARD COKE extends to subsequent costs to the end of the suit. There is the same reason for extending the interest. As to the money won, when considered minutely, there is no case, no point, no law. The general question, whether a contract good abroad and void at home can be enforced here in England, is a very important one. I am clear in my opinion upon it, but it does not come into this case, because herein the law of England and France is the same. I pay no regard to the court of honour, a whimsical, fantastical court which the law of England will not lend its powers to assist. Besides, Sir John never was the object of this jurisdiction, and his representatives never can be. The place where the money is to be paid must guide the law. A strong reason for the plaintiff’s recovering in this action the money lent is that the bill of exchange is payable in England, and, therefore. it shall be determined according to the laws of England, where it is payable. As in Champant v Lord Ranelagh (3) Mich 1700, in Chancery (reported Prec Ch 128). A bond was made in England and sent over to Ireland, the money to be paid there, but it was not mentioned what interest should be paid. The Lord Keeper was of opinion that it should carry Irish interest. Therefore, as this money was payable in England, the law of England must be the rule of recovering it.
I give no positive opinion on the other point, supposing a bad contract by our law, but good abroad, is stipulated to be performed abroad. Yet I cannot help thinking that when a party applies to the courts of England, he must conform to the English law. I see no difference, whether the contract be void by the common or statute law. Both are established by the consent of the supreme legislative power, and numbers of contracts would be void by the common law which are good in foreign countries. For instance, in many parts abroad, a courtesan may maintain an action for the price of her prostitution. But, surely, that would never be maintainable here, though forbidden by no positive statute.
It was then objected on the part of the defendant that as the court had declared the whole bill of exchange void, as the statute declares it to be, utterly, to all intents and purposes whatsoever, it could not be taken notice of so as to make the 300 pounds carry interest, which, upon the mere general assumpsit laid in the two last counts, it would never do. It was compared with indentures of apprenticeship, upon which the duty was not paid, which being declared void by the statute 8 Ann, c 9, s 39, no settlement can be gained in consequence of a service under them: Curenden Parish v Laland, Lancashire, Pariah (4). But the court said that the security only being void, the contract contained in that security (which carried interest) remained in full force. Afterwards, in the same term, the Chief Justice declared that it appeared from the case (independent of the bill of exchange) that the plaintiff had lent the intestate 300 pounds bona fide, for which he took a void security, bearing interest ten days after date. This security is void by the statute, but we have before delivered our opinion that the contract remains and, therefore, interest is certainly due.
The next question is how far the interest should go. In the present case this is a very minute consideration, but I am glad of an opportunity of settling a point, the practice in respect to which is not founded in law, but upon a mistake. Injustice, undoubtedly, interest is due to the time when the debt is paid, for, when a man contracts to pay principal and interest, be ought to pay interest so long as he retains the principal. The court should, therefore, order the payment of interest up to the time when it orders execution to be taken out. It is said that damages are recovered and assessed by the jury, which will extend to this case. But we all know that in actions upon contracts for the payment of money, the damages are nominal; the true relief consists in the specific performance. When money is given as damages it is where the money is not itself the specific demand, but is used as a common measure to ascertain the amount of the injury. I have looked into and fully considered all the statutes upon the subject of damages. Not one has any reference to this matter. On the principles of common law, whenever a duty incurred (pending the writ) for which no other satisfaction could be had, damages were given to the time of the judgment. Thus, in account, the judgment is quod computet, which includes all items of account up to the time of computation. On a writ of annuity, after judgment, no new writ can be had for arrears. Judgment is, therefore, given for the whole that becomes due, pending the writ. Upon the Statute of Gloucester, which gives damages in a real action, SIR EDWARD COKE, 2 CO INST 288, holds that they shall extend to damages, pendants brevi. But whenever a new writ could be brought, damages were not computed pendente brevi as in covenant, actions of trespass, or for other torts.
Upon the same reason, if a man brings an action on a contract carrying interest, and the action hangs three or four years, no new action will lie for the mere interest, and, therefore, he ought to be allowed it now. The Court of Chancery has, in these matters of interest, a concurrent jurisdiction with courts of law, exclusive of its extraordinary jurisdiction by way of relief. This arises from the frequent contemplation of interest in respect of assets, and the consideration of assets always gives the Court of Chancery a jurisdiction. It would be absurd that two concurrent jurisdictions should be different in their principles, on which ground it is that courts of equity have usually conformed to the practice of the ecclesiastical courts in respect of legacies. In Chancery they always compute down to the time of the last act done by the court to liquidate the demand. I do not see why the jury should not in their discretion (according to the circumstances of the case) compute down to the verdict, or rather, to the first four days of the ensuing term. The mistake before hinted at, in the present course of practice, arises from the officer’s looking upon an action of assumpsit as merely an action of trespass, and as in common actions of trespass, damages are only recovered to the day of suing out the writ, therefore, they computed in the same manner here. Where an error is established and has taken root upon which any rule of property depends, it ought to be adhered to by the judges until the legislature thinks proper to alter it lest the new determination should have a retrospect and shake many questions already settled, but the reforming erroneous points of practice can have no such bad consequences, and, therefore, they may be altered at pleasure, when found to be absurd or inconvenient. Therefore, without computing to an exact nicety, let there be judgment for the plaintiff, for 300 pounds principal, and 75 pounds interest (viz, five years at 5 per cent, down to 10 Sept 1760).
DISPOSITION:
Order accordingly.
COURT OF KING’S BENCH
[1558-1774] All ER Rep 177, Also reported 2 Burr 1077; 1 Wm Bl 234, 256; Bull NP 275; 97 ER 717
HEARING-DATES: 15 NOVEMBER 1760
15 November 1760
NOTES:
Notes
Considered: Wilkinson v L’Eaugier (1836) 2 Y & C 363; Applegarth v Colley (1842) 10 M & W 723; Daintree v Hutchinson (1842) 11 LJ Ex 397. Followed: Moulis v Owen, [1907] 1 KB 746. Considered: Saxby v Fulton, [1908-10] All ER Rep 857. Followed: Sociiti Anonyme des Grands Etablissements de Touquet Paris-Plage v Baumgart, [1927] All ER Rep 280. Considered: Carlton Hall Club, Ltd v Laurence, [1929] All ER Rep 605. Referred to: Bigg v Lawrence (1789) 3 Term Rep 454; Leapridge v King (1795) Peake, Add Cas 32; Calton v Bragg (1812) 15 East, 223; M’Kinnell v Robinson (1838) 3 M & W 434; Re Trye, Ex parte Guillebert (1838) 7 LJ Bcy 25; Quarrier v Colston (1842) 1 P1147; Allen v Kemble (1848) 6 MooPCC 314; Brook v Brook (1858) 3 Sm & G 481; Jacobs, Marcus & Co v Cridit Lyonnais, [1881-5] All ER Rep 151; Re Missouri SS Co (1889) 42 Ch D 321; Companhia de Mocambique v British South Africa Co, De Sousa v British South Africa Co, [1892] 2 QB 358; Kaufman v Gerson, (1903) 2 KB 114; CHT, Ltd v Ward, [1963] 3 All ER 835.
As to the enforcement of foreign contracts, see 7 HALSBURY’S LAWS (3rd Edn) 69 et seq; and for cases see 11 DIGEST (Repl) 420 et seq.
CASES-REF-TO:
Cases referred to:
(1) Slater v Emerson (1727) unreported.
(2) Barjeau v Walmsley (1746) 2 Stra 1249; 93 ER 1161; 25 Digest (Rep]) 438, 198.
(3) Champant v Lord Ranelagh (1700) Prec Ch 128; sub nom Lord Ranelaugh v Champante, 2 Vern 395; 1 Eq Cas Abr 289.
(4) Curenden Parish v Laland, Lancashire, Parish (1731) 2 Stra 903; 93 ER 929; sub nom Courland (Inhabitants) v Iceland (Inhabitants) 1 Barn KB 466; sub nom Cuerden Parish v Laland, 2 Sess Cas KB 167; 1 Bott, 517.
Also referred to in argument:
Dawes v Painter (1674) 1 Freem KB 175; 89 ER 126; sub nom Daws v Paynter, 3 Keb 26; sub nom Daws v Pindar, 2 Mod Rep 45; 8 Digest (Repl) 773, 411.
Blankard v Galdy (1693) 2 Salk 411; 4 Mod Rep 215; Holt, KB 341; Comb 228; 91 ER 356; 8 Digest (Repl) 768, 347.
Foubert v Turst (1703) 1 Bro Parl Cas 129; 2 Eq Cas Abr 475; 1 ER 464; sub nom Feaubert v Turst, Prec Ch 207, HL; 11 Digest (Repl) 494, 1154.
Fremoult v Dedire (1718) 1 P Wms 429; 24 ER 458.
Earl of Dungannon v Hackett (1702) 1 Eq Cas Abr 288; 21 ER 1051; 35 Digest (Repl) 224, 274.
Ellis v Lloyd (1701) 1 Eq Cas Abr 289; 21 ER 1052.
Lane v Nichols (undated) 1 Eq Cas Abr 388; 21 ER 1051; 35 Digest (Repl) 224, 275.
Harvey v East-India Co (1700) 2 Vern 395; 1 Eq Cas Abr 288; 23 ER 856; 35 Digest (Repl) 224, 276.
Beven v Clapham (1664) 1 Lev 143; 83 ER 339; sub nom Bevin v Chapman, 1 Sid 228; 1 Keb 799; 32 Digest (Repl) 408, 322.
Davis v Yale (1699) 2 Lut 946; 125 ER 528; 32 Digest (Repl) 408, 320.
Dupleix v De Roven (1705) 2 Vern 540; 23 ER 950; 11 Digest (Repl) 527, 1396.
Tourton v Flower (1735) 3 P Wms 369; 24 ER 1105; 22 Digest (Repl) 246, 2997.
Hussey v Jacob (1696) Cartb 356; 1 Com 4; Holt, KB 328; 1 Ld Rayon 87; 5 Mod Rep 175; 12 Mod Rep 96; 1 Salk 344; 88 ER 1189; 6 Digest (Repl) 141, 1018.
Bower v Bampton (1741) 2 Stra 1155; sub nom Boyer v Bampton, 7 Mod Rep 334; 93 ER 1096; 6 Digest (Repl) 141, 1020.
Pipon v Pipon (1744) Amb 25, 799; 9 Mod Rep 431; 27 ER 14, 507; sub nom Pippon v Pippon, Ridg temp H 165, LC; 11 Digest (Repl) 397, 525.
COUNSEL:
Serjeant Hewitt and Wedderburn for the plaintiff.; Blackstone and Coxe for the defendant.
PANEL: Lord Mansfield CJ, Denison and Wilmot JJ
JUDGMENTBY-1: LORD MANSFIELD CJ:
JUDGMENT-1:
LORD MANSFIELD CJ:
This is an extremely clear case, but it may be of use to state the general principles upon which it will be determined. There are two questions: (i) whether the plaintiff is entitled to recover anything, and what, upon the first count upon the bill of exchange considered as a written security; (ii) whether upon either of the other counts, upon the justice and equity of the case.
As to the first, the general rule established ex comitate et jure gentium is that the place where the contract is made, and not where the action is brought, is to be considered in expounding and enforcing the contract. But this rule admits of an exception, where the parties (at the time of making the contract) had a view to a different kingdom. HUBER says that (PRAELECTIONES, lib 1, tit 3, para 43) contracts are to be considered according to the place wherein they are to be executed. As, therefore, the bill in the present case is made payable in England, it is entirely an English transaction, and to be governed by the local law. This stands upon the same ground as that landed property must be governed by the local law, in consequence whereof, deeds and wills, made in Paris to convey land in England must be made and interpreted according to our law. It is clear that by the statute of Anne [Gaming Act, 1710] All bills of exchange upon a gaming consideration are void, and (by the way) the fact is not found whether, even in France, you may not enter into and contemplate the consideration of a gaming note. I rather think you may. Here the payment is to be in England; it is an English security; and it is clear that in England the writing, as a writing, is void.
Counsel for the defendant has argued very rightly that Sir John Bland could never be called upon abroad for payment of this bill until there had been a wilful default of payment in England. The bill was drawn by Sir John Bland on himself, in England, payable ten days after sight. In every disposition or contract where the subject-matter relates locally to England, the law of England must govern, and must have been intended to govern. Thus, a conveyance or will of land, a mortgage, a contract concerning stocks, must be all sued upon in England, and the local nature of the thing requires them to be carried into execution according to the law here.
The case does not leave room for a question, for the law of both countries is the same. The consideration of the bill of exchange might, in an action upon it, be gone into there as well as here. As to the money won at play, it could not be recovered in any court of justice there, notwithstanding the bill of exchange. This writing is, as a security, void (being for a gaming debt) both in France and in England. We may, therefore, lay the bill of exchange out of the case: it is very clear, the plaintiff cannot recover upon that count.
As to the other counts – for money had and received to the plaintiff’s use and for money lent and advanced to him, I think there is a plain distinction between the money won and the money lent, laying the bill of exchange quite out of the case. No action can be maintained for money won at gaming. The statute law prohibits any recovery upon a gaming consideration, as the common law does upon all other turpes causae. There are many cases where the law of the country in which the contract is made shall prevail, and it is hard to lay down the nice rule of distinction. There are many cases wherein foreign sentences are final, as with regard to the validity of marriages, many where they are only a ground of evidence prima facie. Here I must remark obiter that it was hinted on the part of the plaintiff that the law of Scotland must determine the validity of the marriages of minors there celebrated. HUBER, p 33, puts a parallel case, and determines expressly against it. I give no opinion; I only mention it to hinder bystanders from taking those arguments for granted. What makes an end of thispart of the case is that, as to money won, the money was won in France, and, therefore, its recovery ought to be governed by the law of France, and the law is the same in France and in England. As for the court of honour, it is no part of the law of the land; no court of justice will aid it; the parliament of Paris will take no cognizance of it. It is like the arbitrary jurisdictions set up here at horseraces and cockpits, or (as has been observed at the Bar) like the courts-martial in England which are to decide what is, or is not, behaving like a gentleman. If a cause really comes before them, well; if not, no court of law will adopt their rules of decision. But here the cause could not come before them; the bill was not payable, and it was no breach of honour not to pay it before it was due. I, therefore, lay this court out of the case, and, more especially, as this is a suit against representatives, not the party himself.
As to the money won, the contract is to be considered as void by the law of France, as well as by the law of England, which makes it unnecessary to consider how far the law of France ought to be regarded.
Next, as to the money lent. It has been twice judicially determined (Slater v Emerson (1) coram EYRE, CJ, and Barjeau v Walmsley (2) coram LEE, CJ) that the legislature meant only to void the security, not the contract, in order to give courts an opportunity to examine into the merits of the consideration which. in this case, is stated to be extremely fair. Possibly it might be lent to pay foreigners’ money won and thereby to extricate the deceased from the clutches of the court of honour. Here also then the law of France is the same as in England. The contract, when fair, is good in both countries, and the plaintiff must, therefore, recover under his counts for the general assumpsits.
The only question remaining is what interest he is entitled to receive. I find the general rule has been, upon all contracts carrying interest, to stop interest the day that the writ is sued out. This is certainly unreasonable, for the party can never have (by this rule) what he is entitled to, due interest. He can have no new action for the subsequent interest, nor any damages pendente brevi, as in the old actions at common law. In Chancery the rule established by LORD TALBOT in respect of tithes was that they should be paid down to the last act which the court has done to ascertain the sum. The Exchequer now pursues the same rule, having altered their old one upon my argument. I think in this case that the interest must be carried down to this time. It is but a trifle here, but I am glad of an opportunity to have this matter settled, and am desirous to consult the rest of the judges upon it that the practice of the courts may be uniform.
JUDGMENTBY-2: DENISON, J:
JUDGMENT-2:
DENISON, J:
Gave no opinion on this last point. As to the rest, he said it was a plain, clear, short case. It was determinable by the rules of the common law, and no other law. He continued: The money is made payable in England. As it is a foreign bill of exchange, it must of course be dated abroad, but it is to be paid here at home. The plaintiff has appealed to the laws of England by bringing his action here, and the case must be determined by them.
By the laws of England, the security is void, which might have been pleaded as well as it might be given in evidence, and the defendant needed not, in his plea, to have said where it was won at play. Being a transitory action, it must then have been tried where the action was brought, and so it must have been if the plea had been local. Indeed, in many cases that might be put the determination must have been according to the laws of the place where the fact arose. But the present case is not so. Here the security is void by the laws of the country where he brings his action upon it. And this security is one entire security both for the money won at play, and the money lent at play.
There is a distinction between the contract, and the security. If part of the contract arises upon a good consideration, and part of it upon a bad one; it is divisible, but, it is otherwise as to the security. That, being entire is bad for the whole. Therefore, the plaintiff ought to be barred of this action upon this bill of exchange, as being a void security by the laws of this country where he bringshis action. But still the contract remains, and he has a right to maintain his action for so much of his demand as is legal, which is the money lent.
JUDGMENTBY-3: WILMOT J:
JUDGMENT-3:
WILMOT J:
I have no doubt as to the money lent. If there had been no authority in point, I should have thought that the sound ground of the Act [Gaming Act, 1710] was merely to examine the consideration, and not conclude the drawer by his own written act. In the case put at Bar of a man’s lending money and winning it, then lending more and soon, I should think it a plain fraud on the Act. (NB – This is the very case in Barjeau v Walmsley (2) before cited and relied upon). As to the interest, I incline to Lord Chief Justice’s opinion. This is an action sounding in damages, and the damage is the detention of the plaintiff’s debt. I think, upon memory, that the old statutes of costs talk of the costs of the writ, which SIR EDWARD COKE extends to subsequent costs to the end of the suit. There is the same reason for extending the interest. As to the money won, when considered minutely, there is no case, no point, no law. The general question, whether a contract good abroad and void at home can be enforced here in England, is a very important one. I am clear in my opinion upon it, but it does not come into this case, because herein the law of England and France is the same. I pay no regard to the court of honour, a whimsical, fantastical court which the law of England will not lend its powers to assist. Besides, Sir John never was the object of this jurisdiction, and his representatives never can be. The place where the money is to be paid must guide the law. A strong reason for the plaintiff’s recovering in this action the money lent is that the bill of exchange is payable in England, and, therefore. it shall be determined according to the laws of England, where it is payable. As in Champant v Lord Ranelagh (3) Mich 1700, in Chancery (reported Prec Ch 128). A bond was made in England and sent over to Ireland, the money to be paid there, but it was not mentioned what interest should be paid. The Lord Keeper was of opinion that it should carry Irish interest. Therefore, as this money was payable in England, the law of England must be the rule of recovering it.
I give no positive opinion on the other point, supposing a bad contract by our law, but good abroad, is stipulated to be performed abroad. Yet I cannot help thinking that when a party applies to the courts of England, he must conform to the English law. I see no difference, whether the contract be void by the common or statute law. Both are established by the consent of the supreme legislative power, and numbers of contracts would be void by the common law which are good in foreign countries. For instance, in many parts abroad, a courtesan may maintain an action for the price of her prostitution. But, surely, that would never be maintainable here, though forbidden by no positive statute.
It was then objected on the part of the defendant that as the court had declared the whole bill of exchange void, as the statute declares it to be, utterly, to all intents and purposes whatsoever, it could not be taken notice of so as to make the 300 pounds carry interest, which, upon the mere general assumpsit laid in the two last counts, it would never do. It was compared with indentures of apprenticeship, upon which the duty was not paid, which being declared void by the statute 8 Ann, c 9, s 39, no settlement can be gained in consequence of a service under them: Curenden Parish v Laland, Lancashire, Pariah (4). But the court said that the security only being void, the contract contained in that security (which carried interest) remained in full force. Afterwards, in the same term, the Chief Justice declared that it appeared from the case (independent of the bill of exchange) that the plaintiff had lent the intestate 300 pounds bona fide, for which he took a void security, bearing interest ten days after date. This security is void by the statute, but we have before delivered our opinion that the contract remains and, therefore, interest is certainly due.
The next question is how far the interest should go. In the present case this is a very minute consideration, but I am glad of an opportunity of settling a point, the practice in respect to which is not founded in law, but upon a mistake. Injustice, undoubtedly, interest is due to the time when the debt is paid, for, when a man contracts to pay principal and interest, be ought to pay interest so long as he retains the principal. The court should, therefore, order the payment of interest up to the time when it orders execution to be taken out. It is said that damages are recovered and assessed by the jury, which will extend to this case. But we all know that in actions upon contracts for the payment of money, the damages are nominal; the true relief consists in the specific performance. When money is given as damages it is where the money is not itself the specific demand, but is used as a common measure to ascertain the amount of the injury. I have looked into and fully considered all the statutes upon the subject of damages. Not one has any reference to this matter. On the principles of common law, whenever a duty incurred (pending the writ) for which no other satisfaction could be had, damages were given to the time of the judgment. Thus, in account, the judgment is quod computet, which includes all items of account up to the time of computation. On a writ of annuity, after judgment, no new writ can be had for arrears. Judgment is, therefore, given for the whole that becomes due, pending the writ. Upon the Statute of Gloucester, which gives damages in a real action, SIR EDWARD COKE, 2 CO INST 288, holds that they shall extend to damages, pendants brevi. But whenever a new writ could be brought, damages were not computed pendente brevi as in covenant, actions of trespass, or for other torts.
Upon the same reason, if a man brings an action on a contract carrying interest, and the action hangs three or four years, no new action will lie for the mere interest, and, therefore, he ought to be allowed it now. The Court of Chancery has, in these matters of interest, a concurrent jurisdiction with courts of law, exclusive of its extraordinary jurisdiction by way of relief. This arises from the frequent contemplation of interest in respect of assets, and the consideration of assets always gives the Court of Chancery a jurisdiction. It would be absurd that two concurrent jurisdictions should be different in their principles, on which ground it is that courts of equity have usually conformed to the practice of the ecclesiastical courts in respect of legacies. In Chancery they always compute down to the time of the last act done by the court to liquidate the demand. I do not see why the jury should not in their discretion (according to the circumstances of the case) compute down to the verdict, or rather, to the first four days of the ensuing term. The mistake before hinted at, in the present course of practice, arises from the officer’s looking upon an action of assumpsit as merely an action of trespass, and as in common actions of trespass, damages are only recovered to the day of suing out the writ, therefore, they computed in the same manner here. Where an error is established and has taken root upon which any rule of property depends, it ought to be adhered to by the judges until the legislature thinks proper to alter it lest the new determination should have a retrospect and shake many questions already settled, but the reforming erroneous points of practice can have no such bad consequences, and, therefore, they may be altered at pleasure, when found to be absurd or inconvenient. Therefore, without computing to an exact nicety, let there be judgment for the plaintiff, for 300 pounds principal, and 75 pounds interest (viz, five years at 5 per cent, down to 10 Sept 1760).
DISPOSITION:
Order accordingly.
Nenhum comentário:
Postar um comentário