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SCOTTISH_HoL_JURY_COURT

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(1817) 5 Dow 133

REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS, During the Session, 1816—17.

57 Geo. III.

ENGLAND.

IN ERROR FROM THE EXCHEQUER CHAMBER.

No. 7


Doran     Plaintiff in error

v.

O'Reilly and others     Defendants in error

March 7, 1817.

ERROR. — DEBT. — FOREIGN JUDGMENT. — WRIT OF INQUIRY. — COSTS.

Debt in K. B. and demand made in lawful money of Great Britain, founded upon a judgment of the supreme Court of Jamaica obtained in an action of assumpsit in that Court for so much Jamaica currency,—the declaration in K. B. stating that this amounted to so much in British money. Final judgment by default against the Defendant, and error brought in the Ex. Ch.; and there, the errors not being argued, judgment affirmed, and thereupon error in Dom. Proc. Held that

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the demand being made in lawful money of Great Britain, and the Defendant below having suffered judgment to go against him by default, he had himself assessed the amount, and that there was no occasion to send the matter to a jury by writ of inquiry.

Count in the declaration for interest upon the forbearance of money on request: This is well laid, a promise to pay interest being implied.

Where errors are argued in Dom. Proc. without having been argued below, and judgment is affirmed, though the alleged errors may be well worthy of consideration, the House will make the plaintiff in error pay the costs of the proceedings there, as if the case had not been argued at all in that House.

Action of debt in K. B. upon a foreign judgment obtained in assumpsit.

This was an action in debt commenced by the Defendants in error in the Court of King's Bench in 1815, to recover from the Plaintiff in error the sum of 4934 l. 11 s. of sterling British money, due to them upon and by virtue of a certain judgment obtained by them against the Plaintiff in error in the supreme Court of Judicature in and for the Island of Jamaica, before the chief Judge and his associates Judges of that Court, in a suit for non-performance of certain promises and undertakings made by the said Plaintiff in error to the Defendants in error. The first and second counts in the declaration in the action in K. B. at Westminster, founding on the foreign judgment, were as follows:

Declaration.

First count on foreign judgment.

Second count on foreign judgment.

“London (to wit). Thomas O'Reilly, George Young, William Gordon, John Murphy, and James Farrell, who have survived James Westerman May, their late partner now deceased, complain of William Doran, who hath survived Daniel Robinson now deceased, being in the custody of the marshal of the Marshalsea of our Lord the now King, before the King himself, of a plea

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that he the said William Doran render to them the said Thomas, George, William Gordon, John, and James Farrell, the sum of fifty-four thousand pounds of lawful money of Great Britain, which he the said William Doran owes to, and unjustly detains from them. For that whereas the said Thomas, George, William Gordon, John, James Farrell, and James Westerman, heretofore and in the life-time of the said James Westerman, to wit, the first Monday in October, in the fifty-first year of the reign of our sovereign Lord the now King, and in the year of our Lord one thousand eight hundred and eleven, in a certain court of our said Lord the King, called a supreme Court of Judicature, held for our said sovereign Lord the King, at the town of Saint Jago de la Vega, in the county of Middlesex, in and for the island of Jamaica, and within the jurisdiction of the said Court, to wit, at London, in the parish of Saint Mary-le-Bow, in the ward of Cheap, on the day and year aforesaid, before the Honourable John Lewis, Esquire, Chief Judge of the said Court, and his associates, then sitting Judges of the same Court, in a certain action in the said Court brought by the said Thomas, George, William Gordon, John, James Farrell, and James Westerman, against the said William Doran, and the said Daniel Robinson, for the non-performance of certain promises and undertakings by the said William Doran and Daniel, before that time made to the said Thomas, George, William Gordon, John, James Farrell, and James Westerman, by the consideration and judgment of the same Court recovered against the said William Doran and the

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said Daniel, the sum of five thousand six hundred and seventy-five pounds two shillings and six pence current money of Jamaica aforesaid, which in and by the said Court was then and there adjudged to the said Thomas, George, William Gordon, John, James Farrell, and James Westerman, for their damages which they had sustained in that behalf, and also five pounds seven shillings of like current money for their costs and charges by them about their suit in that behalf expended to the said Thomas, George, William Gordon, John, James Farrell, and James Westerman, by the Court there of their own assent adjudged; whereof the said William Doran and Daniel were convicted, which said judgment still remains in the said Court in full force, not in any way reversed, annulled, paid off, or satisfied, to wit, at London aforesaid, in the parish and ward aforesaid. And the said Thomas, George, William Gordon, John, and James Farrell, in fact say that neither the said Thomas, George, William Gordon, John, James Farrell, and James Westerman, or either of them, in the life-time of the said James Westerman, or the said Thomas, George, William Gordon, John, and James Farrell, or either of them, since the decease of the said James Westerman, have as yet obtained any execution or satisfaction of and upon the said judgment so recovered as aforesaid; and that the said damages, costs and charges so recovered as aforesaid, amount in the whole to a large sum of money, to wit, to the sum of five thousand pounds of lawful money of Great Britain, to wit, at London aforesaid, in the parish and ward aforesaid. Whereby and by

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reason of the said last mentioned sum of money still being and remaining wholly unpaid, an action hath accrued to the said Thomas, George, William Gordon, John, and James Farrell, to demand and have of and from the said William Doran the said last mentioned sum of five thousand pounds, parcel of the said sum above demanded. And whereas also the said Thomas, George, William Gordon, John, James Farrell, and James Westerman, heretofore and in the life-time of the said James Westerman, to wit, on the said first Monday in October, in the said fifty-first year of the reign of our said sovereign Lord the now King, and in the said year of our Lord one thousand eight hundred and eleven, in a certain Court of our said Lord the King, called a supreme Court of Judicature, held for our said sovereign Lord the King, at the said town of Saint Jago de la Vega, in the county of Middlesex, in and for the said island of Jamaica, and within the jurisdiction of the said Court, to wit, at London aforesaid, in the parish and ward aforesaid, the day and year last aforesaid, before the said Honourable John Lewis, Esquire, chief Judge of the said Court, and his associates then sitting Judges of the same Court, by the consideration and judgment of the same Court, recovered against the said William Doran, and the said Daniel, the sum of five thousand six hundred and seventy-five pounds two shillings and six-pence of like current money of the said island of Jamaica, which in and by the said Court was then and there adjudged to the said Thomas, George, William Gordon, John, James Farrell,

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and James Westerman, for their damages which they had sustained by reason of the non-performance of a certain promise and assumption then lately made by the said William Doran, and Daniel, to the said Thomas, George, William Gordon, John, James Farrell, and James Westerman, and also five pounds seven shillings of like current money, for their costs and charges by them about their suit in that behalf expended to them the said Thomas, George, William Gordon, John, James Farrell, and James Westerman, by the Court there of their own assent adjudged, whereof the said William Doran, and Daniel were convicted, which said last mentioned judgment still remains in the said Court in full force, not in any way reversed, annulled, paid off, or satisfied, to wit, at London aforesaid, in the parish and ward aforesaid; and the said Thomas, George, William Gordon, John, and James Farrell, in fact, further say, that neither the said Thomas, George, William Gordon, John, James Farrell, and James Westerman, or either of them, in the life-time of the said James Westerman, or the said Thomas, George, William Gordon, John, and James Farrell, or either of them, since the decease of the said James Westerman, have as yet obtained any execution or satisfaction of and upon the said last mentioned judgment so recovered as last aforesaid, and that the said last mentioned damages, costs, and charges, so recovered as last aforesaid, amount in the whole to a large sum of money, to wit, to the sum of five thousand pounds of like lawful money, to wit, at London aforesaid, in the parish and ward aforesaid,

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whereby and by reason of the said last mentioned sum of five thousand pounds still being and remaining wholly unpaid, an action hath accrued to the said Thomas, George, William Gordon, John, and James Farrell, to demand and have of and from the said William Doran the said last mentioned sum of five thousand pounds further parcel of the said sum above demanded.”

Count for interest.

Then followed counts for goods sold and delivered, money borrowed, money paid, money had and received, interest, and on an account stated. The count for interest was in these terms:

“And whereas also the said William Doran, afterwards, and after the death of the said James Westerman, to wit, on the first day of October in the year of our Lord one thousand eight hundred and fifteen, at London aforesaid, in the parish and ward aforesaid, was indebted to the said Thomas, George, William Gordon, John, and James Farrell, in the further sum of two thousand pounds, of like lawful money for money before that time and then due and payable from the said William Doran to the said Thomas, George, William Gordon, John, and James Farrell, for interest upon and for the forbearance of divers other large sums of money, before then due and owing from the said William Doran and Daniel, during the life of the said Daniel, and the said William Doran, since the death of the said Daniel, to the said Thomas, George, William Gordon, John, James Farrell, and James Westerman, in the life-time of the said James Westerman, and to the said Thomas, George, William Gordon, John, and James Farrell, since the death of the said James Westerman,

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and by the said Thomas, George, William Gordon, John, James Farrell, and James Westerman, in the life-time of the said James Westerman, and since his death, by the said Thomas, George, William Gordon, John, and James Farrell, forborne to the said William Doran and the said Daniel in his life-time, and to the said William Doran, since the death of the said Daniel, at their special instance and request for divers long spaces of time, before then elapsed, and to be paid by the said William Doran, to the said Thomas, George, William Gordon, John, and James Farrell, when he the said William Doran should be thereunto afterwards requested; whereby, and by reason of the said last mentioned sum of money being and remaining wholly unpaid, an action hath accrued to the said Thomas, George, William Gordon, John, and James Farrell, to demand and have of and from the said William Doran the said last mentioned sum of money, further parcel of the said sum above demanded.”

Defendant makes default, and final judgment signed.

Error in Exch. Ch.

Error in Dom. Proc.

The Plaintiff in error having suffered judgment to go against him by default, final judgment was signed on the 11th January, 1816, for the debt demanded, and 22 l. damages and costs. Upon this a writ of error was brought in the Exchequer Chamber, where, general errors only having been assigned and not argued, the judgment was affirmed on the 13th November, 1816. The Plaintiff in error then brought a writ of error returnable before the Lords in Parliament, which, with a transcript of the record, was brought up on 28th January, 1817; and the Plaintiff assigned the general error, and a special error not insisted upon. The House took the cause

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for hearing out of its course, as it usually does where it is apprehended that the writ of error is brought merely for delay, and the agents having been ordered to attend, and asked whether they were ready to proceed to hearing, and it having been stated on the part of the Plaintiff, that he had additional errors to assign, and a short day having been appointed for assigning the errors, the hearing was fixed for the 7th March, 1817. The errors, as stated in the case for the Plaintiff in error signed by Mr. Richardson, were these:

Errors.

“The Plaintiff in error humbly conceives that the declaration and judgment in this case will appear erroneous to your Lordships.

He contends that the action of assumpsit is in its form and nature an action of tort, though founded upon contract—and that damages given for a tortious breach of promise cannot be converted into a debt by the judgment of any court of foreign judicature; that the judgment in an action of assumpsit given by such court of foreign judicature, is indeed good primâ facie evidence of the breach of the promises and undertakings therein complained of, but that it is no evidence of any debt subsisting between the parties to such action, nor of the amount of the same.

Also, that debt cannot be maintained for the value of foreign money, or for other demand, which in its nature is wholly uncertain in amount, and can only be ascertained by the finding of a jury.

Also, that if debt can be maintained for a demand which in its nature is wholly uncertain in its amount, judgment ought not to be entered up

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for such amount as the Plaintiff may choose to suggest, nor ought it to be final in the first instance, but a writ of inquiry ought previously to issue to ascertain the amount, and judgment should be entered up accordingly.

Also, that by the law of the land interest is not demandable on the forbearance of money though forborne on request, without a special contract for the same; and that such contract, or the grounds from which it may be implied, ought to appear upon the face of the declaration.

Also, that the manner in which money becomes due and owing ought to appear on the face of the declaration, that the Court may be enabled to judge whether interest be demandable for the forbearance of the same; and that it is too general and altogether uncertain to state that money is due and payable for interest upon, and for the forbearance of money due and owing, without stating on what account.”

Writ of inquiry.

Vid. also Emery v. Fell

2 T. R. 28.— Bonafous v. Walker, ib. 126.— Lord v. Houston, 11 East. 62.

Mr. Richardson (for Plaintiff in error). One of the errors, and it goes to the whole record, is, that a general judgment ought not to have been entered up till a writ of inquiry had been issued to ascertain the amount of the sum due. The proceedings in the Courts, in actions of debt, have varied. Formerly it was necessary to state the contract with precision, and the exact sum; and if there was a variance between the sum laid in the declaration and the sum really due, the Plaintiff failed altogether. There was no occasion at that time for the inquiry. But ever since the case of Aylett v. Lowe, 2 Blac. R. 1221, any sum may be recovered not

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exceeding the sum claimed, and so it was held also in M'Quillin v. Cox, 1 H. B. 249. It was then no longer necessary to state the exact sum, and the amount became as indefinite in debt as in assumpsit. This alteration, making the sum really due as indefinite in debt as in assumpsit, was attended however with this inconvenience, that the amount must be assessed at the trial; and in a judgment by default, or upon demurrer, an inquiry is necessary. There are cases where a writ of inquiry has been directed in debt; Blackmore v. Flemyng, 7 T. R. 446.: and there is no decision that it is unnecessary.

Judgment in foreign Court.

Another objection is, that the cause of action in the foreign Court is assumpsit, and the judgment of a foreign Court in such an action is not a sufficient ground for an action of debt in this country. In Walker v. Witter, 1 Doug. 1; the ground of action in the foreign Court was itself debt.

Foreign money.

Another objection is, that the recovery is in foreign money, and the Court cannot, without evidence, known the amount in British money. There is a difference in the practice of the Courts with respect to foreign and British money, and foreign and inland bills of exchange. With respect to British money and inland bills of exchange, where the amount is simply a matter of computation, the Court refers it to the Master, to calculate and ascertain the amount of the sum due. But with respect to foreign bills and foreign money the Courts direct a writ of inquiry; Maunsell v. Massareene (Lord), 5 T. R. 87. Such was the course adopted in early times also, in regard to foreign money, as appears from Bagshaw v. Playn, Cro. El. 536; where it was held to be error that no inquiry was executed,

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as the value of Flemish money was not known to the Court. ( Lord Eldon, C. Did the Plaintiff there claim in Flemish money?) He claimed 47 l. Flemish money, amounting to 40 l. English. ( Lord Eldon, C. What did the Defendant plead?) He pleaded plene administravit, which is not to the present purpose; but the judgment was set aside. ( Lord Eldon, C. The Court will ascertain the amount by its own officer now.) No, not in questions as to foreign money and foreign bills of exchange; nor in any case except where the amount is a matter of mere calculation. In Cuming v. Monro, 5 T. R. 87. a case of proclamation money of an American State, the Court would not send it to the Master to fix the value of foreign money, but directed an inquiry; and thus the Court acted in Maunsell v. Massareene, in the same page, so that the distinction was supported by the modern as well as the ancient cases. In Rands v. Peck, Cro. Jac. 617. which was an action of debt, for that the Defendant owed to the Plaintiff 600 guilders monetæ Poloniæ, and that the value was 220 l. legalis monetæ Angliæ, &c., the Jury found that the value was 220 l. English, the value not being otherwise known to the Judges.

Interest.

Then with respect to the count for interest, no contract is shown; and debt does not lie for interest on the forbearance of money on request. It must be founded on contract in some way or other, and no such thing appears here. In Seaman v. Dee, 1 Vent. 198. it was decided on the authority of Lord Hale, that interest could not be recovered in debt, unless upon contract, and that the proceeding must be by assumpsit and damages. I am

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aware that some doubt has been thrown on that doctrine, by what Lord Kenyon said in Herries v. Jameson, 5 T. R. 553.: but it was not overruled in that case, nor was it necessary there that it should be overruled.

The result of the whole then is, that in actions of debt, the amount of the sum really due is as indefinite as in assumpsit; that there exists the same reason for directing an inquiry in debt as in assumpsit; that the Court ascertains the amount by reference to the Master only in cases where it is a matter of mere computation; that all the reasons which apply to cases of tort and assumpsit apply to cases of debt, and that the same inquiry ought to have been directed, at least with respect to the foreign money counts, as to which the proposition is supported, not merely by the reason of the thing, but also by decided cases.

Inquiry.

Foreign money.

Davidgs v. Wychalls.

Mr. Littledale (for Defendant in error). There is no case in which a writ of inquiry has been directed in an action of debt, where the demand has been in lawful money of Great Britain; and Mr. Richardson himself in Taylor v. Capper, 14 East. 442. admitted that he had not been able to find any instance of it. He relied on two cases, Bagshaw v. Playn, Cro. El. 536. and Rands v. Peck, Cro. Jac. 617. But in the former the demand was in Flemish money, and as the judgment must be for Flemish money, it was thought that a writ of inquiry should have been directed to ascertain the value. But even in actions for foreign money it has not been thought necessary always to direct an inquiry. In a case cited in Bagshaw v. Playn, where debt was brought

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for 20 l. English, and the Plaintiff declared on 22 l. Portuguese, value 20 l. English, the judgment for 20 l. was held right without an inquiry. As to the case of Rands v. Peck, in Cro. Jac. 617, the demand there was in Polish money; and as the judgment must be for Polish money, the value was found by a jury. In Draper v. Rastall, Cro. Jac. 88, referred to in Rands v. Peck, the action was for 39 l. for that the Plaintiff had sold to the Defendant three northern clothes for 66 l. monetæ Flandriæ, amounting, tempore emptionis, to 39 l. Angliæ; and, on motion in arrest of judgment, for that the demand ought to have been for 66 l. Flemish, according to the contract, it was held that the demand in English money was well made, and, if made contrary to the truth, the Defendant might have pleaded in abatement; and that, as it was admitted on the record that so much was due in British money, no further inquiry was necessary. So that the distinction is whether the demand is or is not made in British money: and the demand, in these cases, may be well made in British money; for, even in the common action of assumpsit, Harrington v. Macmorris, 5 Taunt. 228. it was held to be no variance that the allegation was a loan in British money, and the proof a loan in foreign.

Vide Bruce v. Rawlins, 3 Wils. 61, 62.

What then is the principle with respect to the directing of writs of inquiry? In 5 Com. Dig. Debt, (A.) 8. it is stated that Debt may be brought for a quantum meruit with an allegation that the worth is so much: Vaux v. Mainwarring, Fort. 197.; Bloome v. Wilson, Jones (Sir T.), 184. So that it has been the practice to bring debt on a quantum meruit with an allegation that the worth

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was so much; and how is it that it was not thought of to direct a writ of inquiry for a jury to ascertain how much was due? The truth is, that a writ of that description is not necessarily directed in any case. It is merely an inquest of office to inform the conscience of the Court, for the judges themselves may assess the damages: 1 Roll. Abr. 571—573, et ib cit. Ley v. Folliot (Lord); Brookes' Abr. Damages, pl. 54—194. There are an infinite variety of cases in the old books where this language, that the justices may assess the damages, is held; and it has been also held in more modern cases, as in Holdipp v. Otway, 2 Saund. 106. I am aware that the case is not directly in point, and I mention it only with reference to the language. And, even so late as the early part of his present Majesty's reign, Wilmot, Ch. J. said in Bruce v. Rawlins, 3 Wils. 61, 62. that the judges might assess the damages. That is the principle on which the Court refers it to the Master to ascertain the sum due, because the judges may take the matter out of the hands of a jury when they please. Mr. Richardson says that they direct an inquiry to ascertain the value of foreign money. They usually do, but they may refer that too to the Master if they think proper. The reason why the Court directed an inquiry in the case of Cuming v. Monro, 5 T. R. 87. was, that the proclamation money being at one time of no value at all, the Court wished to ascertain its value at another time. But all this goes to the discretion of the Court; and the doctrine, that the value of foreign money ought always to be ascertained by a jury, is contrary to the whole current of authority.

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Foreign judgment.

Slade's case. Coke, R. vol. 2. p. 93. Oct. Ed.

Consideration. Vid. Plaistow v. Van Uxem, 1 Doug. 5 n.

As to the objection that debt cannot be maintained on a foreign judgment in assumpsit, the case of Walker v. Witter, 1 Doug. 1. is an authority for me on that point. But then it was said, the action in the foreign Court there was itself debt. What does it signify whether it was debt or assumpsit? The forms of the declarations are nearly the same, and Buller, J. says, in Walker v. Witter, that the old cases show that wherever indebitatus assumpsit is maintainable, debt is also: and he quotes Slade's case, Co. R. Neither is it necessary that the consideration of the foreign judgment should appear, though it does appear upon our declaration.

Interest.

With respect to the count for interest, Mr. Richardson says, that a special contract ought to have been averred. But that is not necessary. It may be expressed or implied, and the practice is to state the matter as it really is, and it is sufficient if it appears that there is a contract. The forbearance of money is considered in the usury acts as a contract for interest, and the forbearance creates a contract. Hale's doctrine in Seaman v. Dee, 1 Vent. 198. would go the length of establishing that interest could never be recovered as such, but only by way of damages: and Lord Kenyon says, in Herries v. Jameson, 5 T. R. 553. that the reasons given for the doctrine go rather the other way.

The judgment therefore, I submit, ought to be affirmed on the whole declaration, or at least on some of the counts.

12 Anne, st. 2. cap. 16.

Mr. Richardson (in reply). I do not deny that debt may be maintained for any sum that may be liquidated; and, if the Plaintiff over-values, the

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Jury may mitigate. Mr. Littledale says, that in some cases of foreign money the Court did not think it necessary to direct a writ of inquiry; but then there was an averment that so much was due in British money. The ground therefore was, that the Court knew the value, and did not want the assistance of a Jury. It is clear that a writ of inquiry may be directed in an action of debt, and it has been done in modern cases, as in Blackmore v. Flemyng, 7 T. R. 446.; and it has been held that it may be done in action of debt on specialty, in order to ascertain the interest, so that there is express authority that the writ may issue in actions of debt. As to the case of Draper v. Rastall, Cro. Jac. 88. a Jury intervened there, and the sum due was found in a formal way. But Mr. Littledale finds dicta in the ancient books that the Judges may themselves assess the damages. But that is only in cases of mayhem, and there the Court may fix the damages, super visum corporis. That however rests on a different principle from that upon which other cases depend. There are dicta also confining the discretion of the Judges to matters of mere computation. The observation of Wilmot, Ch. J. was a mere obiter dictum. As to the question of interest, it is true that the usury act states the forbearance of money as a consideration for interest: but it is not called a contract, and there is no case where it has been so called. It does not appear that the law always supposes that the forbearance of money due imports a contract to pay interest; and the authority of Hale in Seaman v. Dee, 1 Vent. 198. has not been over-ruled.

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Judgment. March 7, 1817.

Where errors are argued in Dom. Proc. without having been argued below, and the judgment is affirmed, though the alleged errors should be well worthy of consideration, the plaintiff in error pays the whole costs of the proceedings in D. P. as if the case had not been argued there at all.

Lord Eldon (C.) Although errors are brought before your Lordships, without having been argued in the Courts below, if there is error the Plaintiff in error is entitled to your Lordships' judgment. At the same time I repeat, not however stating it as at all reflecting upon either of the two most learned persons who have argued the case here, that this House always takes that circumstance into consideration, not so as to influence its judgment with respect to the case itself, but with reference to our practice as to costs. For if a party suffers his cause to pass without argument through the Courts below—and the question here was well worthy of their attention—and assigns his errors only two or three days before the cause is brought to hearing in this House, he must, by our practice, pay the costs of the proceedings here.

The demand made in lawful money of Great Britain, and Defendant below had himself assessed the damages, and no occasion to send the matter to a jury. Interest.

With respect to the case itself my opinion is, that, ably as the errors have been argued on the part of the Plaintiff in error, they have not been established. I think the demand was made in lawful money of Great Britain, and that the defendant below himself assessed the amount, and there was no occasion to send the matter to a jury. And as to the point of interest, I think that sufficiently laid in the declaration to imply a promise to pay, and that, on that point also the Defendant in error is entitled to your Lordships' judgment. I propose, therefore, that we should give judgment, as if the case had not been argued in this House at all, that is, to give the Defendant in error his costs of the proceedings here.

Judgment affirmed, with 140 l. costs.

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Judgment at the same time affirmed in another cause (not argued) of the same nature, relating to the same subject, and between the same parties, with 140 l. costs.

 1817

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