Bölin v. Mellidew.

the interrogatories, held up three fingers of his right hand, which, it appeared, was the mode of calling God to witness there used in swearing.

Channell, Serj., (May 3,) moved for a rule to show cause why the depositions returned should not be read in the evidence, although no oath had been administered to the commissioners or witnesses, or why a new commission should not be issued.

[Cresswell, J. What authority has this or any other court to receive evidence not given upon oath, except by virtue of some statute? There is no statute giving us any such authority.

Jervis, C. J. If we could decide upon motion that these depositions are evidence, we should be depriving the other party of his right to a bill of exceptions.].

In Clay v. Stevenson, 3 Ad. & E. 807; s. c. 4 Law J. Rep. (N. s.) K. B. 212, the court dispensed with the oath usually administered to the commissioners, because the circumstances of the case required it. That may be done in this case.

The court having suggested that the matter should stand over, in order that further inquiry should be made respecting the law of the duchy of Schleswig,

Channell, Serj., (May 5,) mentioned the case again, and produced affidavits which stated that, by the laws of Schleswig, holding up three fingers of the right hand before deposing amounted to an oath, and that the only persons who have power to call upon witnesses to swear in that or any method are burgomasters, all other oaths being illegal. And he now moved that a commission should be issued to burgomasters to examine the witnesses in such a manner as to be binding upon their consciences, and that the usual condition, requiring the commissioners to be sworn, should be dispensed with.

[Talfourd, J. You must take care to bring the proceeding within the principle of Omichund v. Barker, Willes, 538; s. c. 1 Smith's Lead. Cas. 195.

Williams, J. There must be some appeal to a divine power by the witnesses before they make their statement.]

Rule nisi.

Byles, Serj., (May 12,) showed cause, and submitted that the rule, if made absolute, must be on payment of costs.

Channell, Serj., was not called upon.

Per curiam. The rule will be absolute for a new commission to be issued to burgomasters without requiring them to be themselves sworn, on payment of costs of this rule, and of all costs incurred by the defendant, by reason of the failure of the former commission.

Rule accordingly.

Besant v. Cross.

BESANT v. CROSS.1

Easter Vacation, May 9, 1851.

Practice-Issuable Plea― Bill of Exchange - Security - Payment.

The terms of a bill of exchange cannot be altered by a parol contract.

A plea to the further maintenance of an action, brought by the indorsee against the acceptor of a bill of exchange, stating that the defendant was indebted to T. the drawer, that it was agreed between them that defendant should pay by four instalments, and that the defendant should accept a bill; that the defendant accepted the bill in the declaration mentioned as security for the payment of the debt; that T. indorsed to the plaintiff to hold the bill as his agent; that the defendant paid three of the instalments before action, and the fourth after action, on the day when it became due, and that it became the duty of T. to return the bill to the plaintiff :·

Held, a bad and non-issuable plea.

ASSUMPSIT on a bill of exchange for 981. 19s. 6d., drawn by Thomas upon and accepted by the defendant, and payable to the order of the drawer four months after date.

The defendant was under terms to plead issuably, and he pleaded the following plea to the further maintenance of the action: That before the time of the making and accepting of the said bill, he, the defendant, was indebted to Thomas in 65l.; and thereupon, and before the making and accepting of the bill, it was agreed by the defendant and Thomas that the defendant should pay to Thomas the said sum of 651., by four instalments of 16l. 5s. each, to wit, on, &c., and that, for the purpose of securing the due payment of the said sum of 651. as aforesaid, Thomas should make his bill of exchange, and that the defendant should accept the same; that, in pursuance of the said agreement, Thomas made, and the defendant accepted, the bill in the declaration mentioned, for the purpose of securing to Thomas the due payment of the said sum of money, and not otherwise, and, save as aforesaid, there never was any value or consideration for the acceptance of the bill, or for the payment by the defendant of the amount; that Thomas afterwards indorsed the bill to the plaintiff without value or consideration, in order that the plaintiff might hold it as the agent of Thomas, and that the plaintiff has always held, and now holds, the same without value or consideration, and as his agent; that before the commencement of the suit, the defendant paid to Thomas, and Thomas accepted from the defendant, the first three instalments, amounting to 481. 15s., in full satisfaction and discharge of the said three instalments, and that after the commencement of the suit, to wit, on, &c., being the day agreed upon for the payment of the last instalment, he, the defendant, paid to Thomas, and Thomas then accepted and received of and from the defendant, the said last instalment, in pursuance of the said agreement so due to Thomas; that it thereupon became, and was the duty of Thomas, to obtain the bill from the plaintiff and return it to the defendant, and not to let the

2 20 Law J. Rep. (N. s.) C. P. 173. 15 Jur. 828.

Besant v. Cross.

suit proceed; yet Thomas did not obtain the bill from the plaintiff, but wrongfully suffered the suit to proceed, and the plaintiff continued the agent of Thomas. Verification.

Judgment was signed on this plea on the 23d of April, and notice given on the 24th; and a rule to compute was granted on the 28th. A rule nisi was obtained to set aside the judgment and the subsequent proceedings for irregularity.

Lush now showed cause. The judgment ought to stand. This plea is clearly a non-issuable one. It would be bad on general demurrer, or after verdict. The plea sets up a parol contract, varying the terms of a bill of exchange, which it has often been held cannot be done; as in Adams v. Wordley, 1 Mee. & W. 374; s. c. 5 Law J. Rep. (N. s.) Exch. 158., where Lord Abinger says, that a party to a bill is estopped from saying that he made any other contract except that which appears on the face of the bill. Here the plaintiff could not take issue on the plea. He could not traverse the agreement or the payment, because both were immaterial.

Bramwell, in support of the rule. The plea is good and issuable. There were three instalments paid before the commencement of the suit, the payment of which the defendant was entitled to plead. The judge would not give leave to plead one plea in bar, and one against the further maintenance. It is said, that although payment would be a sufficient plea, yet payment pursuant to an agreement will not do.

[Cresswell, J. You cannot plead payment in pursuance of an agreement in an action on a bill, because that is seeking to vary the terms of the bill.]

There are many cases in which a party is entitled to show that a bill was made on other terms than are mentioned in it.

[Jervis, C. J. Why did you not plead payment in pursuance of the agreement, and in satisfaction of the bill?]

That was unnecessary, and would have been incorrect. The plea is one of a failure of the consideration for which the bill was given.

JERVIS, C. J. I am of opinion that the rule ought to be discharged. The plea is plainly bad. When the bill was due, it is admitted that the action would well lie, and then the payment afterwards could be no answer, unless the agreement suspended the right of action. In that case it would be varying a written contract by parol.

CRESSWELL, J., concurred.

WILLIAMS, J. This is an obscure way of pleading that the defendant did not promise what on the face of the bill it appears he did promise.

TALFOURD, J., concurred.

Rule discharged.

Prew v. Squirc.

PREW v. SQUIRE.1

Easter Vacation, May 10, 1851.

County Courts Extension Act, 13 & 14 Vict. c. 61, s. 11, 12, 13Costs Judgment for Plaintiff on Demurrer- Verdict.

Where a plaintiff in an action of contract, after judgment on demurrer, recovers less than 207. on an inquisition of damages, he is deprived of his costs by the 13 & 14 Vict. c. 61, s. 11, the case not coming under the exception as to judgment by default.

Quare, whether the word "verdict," in the 12th section of the 13 & 14 Vict. c. 61, means a verdict at the trial of the cause only, or includes a verdict on a writ of inquiry. See Reed v. Shrubsole, 18 Law J. Rep. (N. s.) C. P. 225.

In this case the declaration was for a breach of covenant in a lease. The defendant demurred to the declaration. On the argument before this court, in Hilary term, January 30, 1851, the plaintiff had judgment. On the 1st of February, interlocutory judgment was signed, and a writ of inquiry was executed on the 13th of February, at the sheriff's court, when the jury gave one farthing damages. On the 25th of February, final judgment was signed on the inquisition, and on the 26th the costs were taxed.

On the taxation of costs, it was objected, for the defendant, that the plaintiff was deprived of costs by the County Courts Act, 13 & 14 Vict. c. 61, s. 11; but the master decided that the judgment was a judgment by default, under the exception in the 11th section, and that, therefore, the section did not apply. The taxation was accordingly proceeded with.

A summons was afterwards served, calling upon the plaintiff to show cause why the final judgment, as far as it related to costs, should not be set aside. Maule, J., referred the parties to the court, and in the mean time ordered a stay of proceedings.

Prentice (April 16) applied for and obtained a rule nisi to set aside the final judgment, as far as it related to costs, with costs of the judgment and the application.

Byles, Serj., and Wordsworth now showed cause. The question in this case arises upon the construction of the 11th, 12th, and 13th sections of the County Courts Extension Act, 13 & 14 Vict. c. 61. The 11th section enacts, that if a plaintiff in an action of contract, brought in one of the superior courts, shall recover a sum not exceeding 201., the plaintiff shall have judgment for such sum only, and no costs, except in cases afterwards mentioned and in case of judgment by default, and that no suggestion shall be necessary. The 12th section then provides, that if a less sum than before mentioned be recovered by verdict, and the judge shall certify that the cause of action was one for which a plaint could not have been entered in the county court, or that there was sufficient reason for bringing the action in the superior court, the plaintiff is to have the same judg

1 20 Law J. Rep. (N. s.) C. P. 175. 15 Jur. 775.

Prew v. Squire.

ment for costs as if the act had not passed. The 13th section goes on to provide that, whether there be a verdict or not, if the plaintiff shall make it appear to the satisfaction of the court, or of a judge at chambers, on summons, that the action was brought for a cause in which concurrent jurisdiction is given to the superior court by the 9 & 10 Vict. c. 95, s. 128, or for which no plaint could have been entered in the county court, or that the cause was removed from a county court by certiorari, the court or judge at chambers may direct that the plaintiff shall recover his costs. The plaintiff will be subject to a hardship if the court decides against him, and therefore it will, if possible, construe the act so as to relieve him. The case is not within the 128th section of the 9 & 10 Vict. c. 95, and therefore the plaintiff could not have got his costs under the 13th section of the Extension Act. Nor could he have obtained a certificate under the 12th section of the latter act, because that applies to a recovery by verdict, and that has been held to mean a verdict at the trial of the cause, and not on an inquiry of damages. Reed v. Shrubsole.

[Jervis, C. J. The section may apply to any recovery by the verdict of a jury, and the hardship, if there be any, would then be cured by certificate. It cannot, of course, apply to a writ of inquiry on a judgment by default.

Williams, J. In Reed v. Shrubsole, I adopted the principle that, to avoid injustice, the word "verdict" should be construed in its narrower sense. Had justice required it, I should have given that word its wider sense.]

It is submitted that the exception as to judgment by default may meet the present case. At all events, the rule should not have been in the terms in which it was granted, but should have been to amend the inquisition.

Prentice, in support of the rule, was not called upon by the court.

JERVIS, C. J. I am of opinion that this rule must be made absolute, our judgment being subject to revision by writ of error. The plaintiff takes his chance of getting something, and he signs final judgment on the inquisition. It is said he is under a hardship, but I think we ought not to listen to that suggestion when the case is so plain. There is nothing in the technical objection about the inqui sition. If the inquisition be as bad as may be, it is not complained of, but the judgment for the costs. We come now to the real question, and that does not depend upon the meaning of the word "verdict" in the 12th section. There is no manifest injustice in constru ing the act of Parliament against the plaintiff, nor any doubt about its real meaning. But it is unnecessary to examine whether there be any injustice or not, because the words of the act are plain. It says, if in any action commenced after the passing of this act, in any of her majesty's superior courts of record, in covenant, debt, detinue, or assumpsit, not being an action for breach of promise of marriage, the plaintiff shall recover a sum not exceeding 201., the plaintiff shall have judgment to recover such sum only, and no costs, except in the