1839.

May. 1.

The jury having given a verdict for only 20s. in a case of

slander, the Court refused to grant a new trial at the instance of the Plaintiff.

RENDALL V. HAYWARD.

CASE, for slandering the Plaintiff by saying he was a thief, and had stolen two pair of sheets.

It was proved at the trial, that the slander had been repeated in a way which indicated malice on the part of the Defendant, who refused to make any apology.

The jury, however, having found a verdict for only 20s. damages,

'Clarkson, on behalf of the Plaintiff, moved for a new trial, as this was a case in which the Judge had no power to certify, and the Plaintiff, though much aggrieved, would, as the verdict was under 40s., obtain

no costs.

TINDAL C. J. I think a more complete measure of justice would have been attained if the jury had given higher damages, but the Court never grants a new trial because the damages are low, unless there has been some mistake in a point of law on the part of the judge who presided, or in the calculation of figures by the jury.

The rest of the Court concurred, and Clarkson

1 L. R. 2. B 6 9 3

Took nothing.

1839.

SAUNDERSON and Others v. PIPER and Others.

May 1.

Se- drawn for

THE HE Plaintiffs, as indorsees, declared against the A bill of exDefendants as acceptors of a bill of exchange for change was expressed in 2451. for value received, bearing date the 30th of figures to be August 1836, and payable six months after date. cond count on an account stated. Plea to the count, that the Defendants did not accept; to second, that they did not promise as in that count pounds, value

alleged.

first

2451., in words, for two the hundred

received, with a stamp ap

At the trial, the Plaintiffs produced, in support of plicable to

their declaration, a bill of exchange, of which following is a copy:

"2451.

the

London, Aug. 30. 1836.

Six months after date, pay to our order two hundred

pounds for value received.

To Messrs. H. H. Piper

and Co. 42. East Chang

H. Piper,

Per Procuration of Thos.

the higher

amount:

Held, that
evidence to

shew that the

words" and forty-five" had been omitted by mistake was

Maltby, Son, and Co. not admissi

Henry Maltby.

Indorsed Thomas Maltby, Son, and Co."

The jury found a verdict for the Plaintiffs for 245l. and interest, subject to the opinion of the Court upon the following case:-

The Plaintiffs are extensive bill brokers in London. It was proved upon the trial, that the bill was drawn by Maltby and Co. upon, and accepted by the Defendants in payment of the sum of 245l., being the contract price of ten tons of lead sold by Maltby and Co. to the Defendants. The bill was drawn in figures for 245l., but the words " and forty-five" were omitted in the body of the bill by mistake. The bill, when drawn,

ble.

10213D 33

1839.

SAUNDERSON

V.

PIPER,

was upon a 6s. stamp; and the Defendants, when they accepted it, intended to accept a bill for 2451.

It was further proved, that the bill was left with the Defendants for two or three weeks for their acceptance; and application was made to them three several times for the bill as a bill for 245l.; the usual mode of applying for bills for acceptance being by the amount as expressed in the figures on the bill; and it was referred to on those occasions by the drawers and the Defendants as a bill for 245l.

It was also proved, that the usual course of business among extensive bill brokers in the city of London, is, to examine the bills discounted by them, by the figures and the stamp, not by reading the body of the bill, as it would be almost impossible, from the number of bills discounted daily, to take them by any thing but the figures and stamps.

On the 14th of January 1837, the Plaintiffs discounted the bill for Maltby and Co., and the Plaintiffs paid them 2457., less the discount for the same. Before the bill arrived at maturity, Maltby and Co. failed.

The Defendants upon the trial objected to the admissibility of the evidence of the facts relating to the transaction in respect of which the bill was drawn, of the intention of the parties, of the circumstances relating to the applications for the acceptance, and of the Defendant's conduct in regard to them: but the evidence was received, subject to the opinion of the Court upon the admissibility of the whole or any part of the same.

The question for the opinion of the Court was, whether, upon such of the evidence given at the trial as might be deemed to be admissible, the Plaintiffs were entitled to recover in this action, either the sum of 245l. and interest, or the sum of 2001. and interest. If the Court should be of opinion that the Plaintiff's

were entitled to recover either of those sums, a verdict was to be entered accordingly. If the Court should be of opinion that the Plaintiffs were not entitled to recover any sum from the Defendants, a nonsuit was to be entered.

Wilde Serjt. for the Plaintiffs. The amount of the stamp, the value of the goods for which the bill was accepted, and the conduct of the acceptors shews clearly that it was their intention to accept a bill for 2451.; and the bill being drawn for value received, the Plaintiffs only explain, and do not contradict or vary the instrument, by shewing what the amount of that value was. It has always been the practice so to explain mercantile instruments. Thus in Rex v. Elliott (a), where the prisoner was indicted for forging a 50l. promissory note, the body of the note omitted the word pounds; but the margin, containing the figures 50l., it was held that the prisoner was properly convicted. Marius lays it down, p. 32. 3d edit., "If it so fall out, that through unadvisedness, or error of the pen, the figures of the sum, and the words at length of the sum that is to be paid upon any bill of exchange do not agree together, either that the figures do mention more and the words less, or that the figures do specify less, and the words at length more, in either, or in any such like case, you ought to observe and follow the order of the words mentioned at length, and not in figures, until further order be had concerning the same, because a man is more apt to commit an error with his pen in writing a figure, than he is in writing a word: and also because the figures at the top of the bill do only, as it were, serve as the contents of the bill, and a breviat thereof, but the words at length are in the body of the

1839.

SAUNDERSON

V.

PIPER.

1839.

SAUNDERSON

v.

PIPER,

bill of exchange, and are the chief and principal substance thereof, whereunto special regard ought to be had." He is followed by Beawes, Lex Merc. 441. pl. 193. nearly in the same words, and Forbes, in his work on Bills of Exchange, extracts the passage, omitting the qualification. The qualification, however, implies that the drawee may wait for and receive information as to what was the real intention of the parties; and the whole passage applies rather to bills drawn on a general account of the details of which the drawee may be ignorant, than to bills drawn to obtain payment on a specific contract. Then, every contract must be taken fortius contrà proferentem ; and there exists here in the amount of the stamp an indication of intention which could not be found in the time of Marius. The rule which precludes the receipt of evidence to explain a patent ambiguity, does not apply to mercantile contracts, which are often framed in characters partaking of the nature of hieroglyphics, or expressed in language which conveys no meaning to an ordinary reader, and, therefore, from the necessity of the case, must be explained by parol evidence. Thus, in Smith v. Wilson (a), evidence was admitted to shew that by the expression 1000 rabbits, the parties meant 1200. In Bold v. Rayner (b) a variance between the bought and sold note was explained by the usage of trade. See also Bottomley v. Forbes. (c) And where a question arises as to the general intention of the parties, concerning which the instrument is not decisive, it has been held that proof of independent facts, collateral to the instrument, may be properly admitted; Rex v. Laindon. (d) Here, as the bill purports to be for value received, the Plaintiff may shew, as a collateral fact, what that value was, and then

(a) 3 B. & Adol. 728.
(b) 1 Mees. & Welsb. 348.

(c) 5 New Cases, 121.

(d) 8 T. R. 379.