1791.

MASTER against MILLER.

66

"the bill; and this will satisfy the justice of the case, without infringing any rule of law." All these cases prove that the remedy shall be enlarged, if necessary, to attain the justice of the case; and that if the plaintiff has justice and conscience on his side, and the defendant has notice only, the plaintiff shall recover in an action for money had and received. Let us not be less liberal than our predecessors, and even we ourselves, have been on former occasions. Let us recollect, as Lord Ch. J. Wilmot said in the case I have alluded to, that not only boni judicis est ampliare jurisdictionem, but ampliare justiciam: and that the common law of the land is the birthright of the subject, under which we are bound to administer him justice, without sending to his writ of subpœna, if he can make that justice appear. The justice, equity, and good conscience of the case of these plaintiffs can admit of no question; neither can it be doubted but that the defendant has got the money which the plaintiffs ought to receive. For these reasons I am of opinion that the plaintiffs are entitled to judgment on either of these three counts in the declaration, namely, on the count on the bill of exchange, stating the date to be the 26th; or on the count for money paid; or on the count for money had and received.

GROSE, J.-The only question in this case is, Whether there appears on the face of this special verdict a right of action in the plaintiffs on any of the counts? The first count is on a bill of exchange dated the 20th of March; but there being no proof of any bill of that date, there is clearly an end of that count. The second is on a bill dated the 26th of March; but the defendant objects to the plaintiffs' recovering on this count also, because, the bill having been altered while it was in the hands of Wilkinson and Cooke, it is not the same bill as that which was accepted; and that is the true and only question in the cause. My idea is, that the plaintiffs' right of action, as stated in this count, cannot be maintained at common law, but is supported only on the custom of merchants, which permits these particular choses in action to be transferred from one person to another. The plaintiffs, as indorsees, in order to recover on this bill, must prove the acceptance by the defendant, the indorsement from Wilkinson and Cooke to them, and that this was the bill which was presented when it became due. Now has all this been proved? The bill was drawn on the 26th of March, payable at 3 months' date; the defendant's engagement by his acceptance was, that it should be paid when it became due, according to that date; but afterwards the date

was

was altered; the date I consider as a very material part of the bill, and by the alteration the time of payment is accelerated several days: according to that alteration, the payment was demanded on the 23d of June, which shews that the plaintiffs considered it as a bill drawn the 20th of March; then the bill which was produced in evidence to the jury was not the same bill which was drawn by Peel and Co. and accepted by the defendant; and here the cases which were cited at the bar apply. Pigott's is the leading case; from that I collect, that when a deed is erased, whereby it becomes void, the obligor may plead non est factum, and give the matter in evidence, because at the time of plea pleaded it was not his deed; and secondly, That when a deed is altered in a material point by himself, or even by a stranger, the deed thereby becomes void. Now the effect of that determination is, that a material alteration in a deed causes it no longer to be the same deed. Such is the law respecting deeds: but it is said that that law does not extend to the case of a bill of exchange. Whether it do or not must depend on the principle on which this law is founded. The policy of the law has been already stated; namely, that a man shall not take the chance of committing a fraud, and, when that fraud is detected, recover on the instrument as it was originally made. In such a case the law intervenes, and says, That the deed thus altered no longer continues the same deed; and that no person can maintain an action upon it. In reading that and the other cases cited, I observe that it is no where said that the deed is void merely because it is the case of a deed, but because it is not the same deed. A deed is nothing more than an instrument or agreement under seal: and the principle of those cases is, that any alteration in a material part of any instrument or agreement avoids it, because it thereby ceases to be the same instrument; and this principle is founded on great good sense, because it tends to prevent the party in whose favour it is made, from attempting to make any alteration in it. This principle too, appears to me as applicable to one kind of instruments as to another; but it has been contended that there is a difference between an alteration of bills of exchange and deeds; but I think that the reason of the rule affects the former more strongly; and the alteration of them should be more penal than in the latter case. Supposing a bill of exchange were drawn for 100l. and after acceptance the sum was altered to 1000l.; it is not pretended that the acceptor shall be liable to pay the 10007; and I say that he cannot be compelled

to

1791.

MASTER

against MILLER.

1791.

MASTER

against MILLER.

to pay
the 100l. according to his acceptance of the bill, because
it is not the same bill. So if the name of the payee had been
altered, it would not have continued the same bill; and the
alteration in every respect prevents the instrument's continuing
the same, as well when applied to a bill as to a deed. It was
said that Pigott's case only shews to what time the issue re-
lates: but it goes further, and shews, that if the instrument be
altered at any time before plea pleaded, it becomes void. It is
true the Court will enquire to what time the issue relates in both
cases. Then to what time does the issue relate here? The plain-
tiffs in this case undertook to prove every thing that would sup-
port the assumpsit in law, otherwise the assumpsit did not arise.
It was incumbent on them to prove, that before the action
was brought, this identical bill, which was produced in evi-
dence to the jury, was accepted by the defendant, and re-
fused: but if the bill, which was accepted by the defendant,
were altered before it was presented for payment, then that
identical bill which was accepted by the defendant, was not
presented for payment; the defendant's refusal was a refusal
to pay another instrument; and therefore the plaintiffs failed
in proving a necessary averment in their declaration. If
the bill had been presented and refused payment, and it
had been altered after the action was brought, then it
might have been like the case mentioned at the bar. It was
contended at the bar, that the enquiry before a jury in an ac-
tion like the present should be, Whether or not the defendant
promised to pay the bill at the time of his acceptance? But
granting that he did so promise, that alone will not make him
liable, unless that same bill were afterwards presented to him. I
will not repeat the observations which have been already made
by my Lord on the case in Molloy but the note of that case is
a very short one; and the principle of it is not set forth in any
other book, nor indeed do the facts of it sufficiently appear. I
doubt also whether it was a determination of this Court: it only
appears that there was a point made at nisi prius, but not that it
was afterwards argued here: but it has been said that a decision
in favour of the plaintiffs will be the most convenient one for
the commercial world: but that is much to be doubted: for if,
after an alteration of this kind, it be competent to the Court to
enquire into the original date of the instrument, it will also be
competent to enquire into the original sum and the original
payee, after they had been altered; which would create much
confusion, and open a door to fraud. Great and mischievous neg-

lects

lects have already crept into these transactions; and I conceive, that keeping a strict hand over the holders of bills of exchange, to prevent any attempts to alter them, may be attended with many good effects, and cannot be productive of any bad consequences, because the party who has paid a value for the bill may have recourse to the person who immediately received it from him. On these grounds, therefore, I am of opinion that the plaintiffs cannot recover on the second count. Neither do I think that they can recover on the general counts, because it is not stated as a fact in the verdict that the defendant received the money, the value of the bill.

Per Curiam,

Judgment for the defendant (a).

(a) This judgment was afterwards affirmed in the Exchequer Chamber. Vid. post. 5 vol. 367.

JENNINGS against NEWMAN, Administratrix.

1791.

MASTER

against MILLER.

Tuesday, July 5th.

count on a

promise made
by the defendant,
as administrator,

to pay money re

as such, to the

with other

424.

THE four first counts in this declaration were on promises A made by the intestate; the fifth stated, That after the death of the intestate, the defendant, as administratrix, was indebted to the plaintiff in 1000l. for so much money by the defendant, ceived by him, as such administratrix, had and received to and for the use of plaintiff's use, the plaintiff. To this there was a special demurrer, because cannot be joined the two causes of action, the one from the intestate, and the counts on promises made by other from the administratrix, could not be joined. the intestate. Baldwin, in support of the demurrer, after observing that [2 B. & P. 76. those counts only could be joined to which the same plea might be pleaded, and on which the same judgment might be given (a), insisted that the fifth count in this declaration could not be joined with the preceding ones, because the defendant could not plead plenè administravit to that count, as the cause of action arose after the death of the testator, Barry v. Rush (b); and because the plaintiff would be entitled to a judgment de bonis propriis on this count; whereas the others would only warrant a judgment de bonis testatoris.

Wigley, contrà, answered, that the whole cause of action was against the defendant in the character of administratrix; that she was named as such at the beginning of the declaration; and each of the counts alleged the promise to have been made by her as administratrix. If so, the defendant might picad plenè administravit to the last count, as was done in Rann v. Hughes (c),

(a) Brown v. Dixon, ante, I vol. 274, and ▲ Wils. 252.
(b) Ante, 1 vol. 691.

(c) 7 Bro. Parl. Cas. 550.

3 East. 104. 5 Ibid, 150.]

1791.

JENNINGS against NEWMAN.

as well as to the other counts, and the same judment de bonis testatoris may be given upon all; and this is distinguishable from the case of Hawkes v. Saunders (a), because there the declaration was against the defendant in her own right. In King v. Thom (b), where the payee of a bill of exchange indorsed it to A. and B. as executors, it was held that they might declare on it as such in an action against the acceptor. Then by a parity of reasoning the creditor of an intestate may sue the administrator for money received by him as such. With respect to the case of Barry v. Rush; there the defendant had given a bond as administrator to submit to an award, touching matters in difference between the intestate and a third person; and the Court held, That the entering into the bond was an admission of assets, and precluded the defendant from pleading plenè administravit. If the case of Rose and Wife v. Bowler and another, executors (c), be cited on the other side, where it was said, that an executor could not be charged, as such, for money had and received by him, because it made him personally liable, the answer is, that this was only incidentally noticed with other objections; and the Court seem principally to have determined that case, on the ground that money could not be received to the use of the husband and wife, without any meritorious cause of action appearing in the wife; but

The Court were clearly of opinion that these counts could not be joined, because the last count stated a cause of action after the intestate's death, which would exclude one of the pleas that might be pleaded to the other counts, and would warrant a different judgment; but they gave the defendant leave to amend, by striking out the last count, on payment of costs.

(a) Cowp. 289.

(b) Ante, I vol. 487.

(e) H. Bl. Rep. 108.

Wednesday,
July 6th.

A settlement

may be gained

by renting the fogs, or aftergrass, of a mea

dow of the yearly value of 10%.

[4 M. & S. 210.]

The KING against The Inhabitants of BRAMPTON.

THE pauper, Thomas Caile, rented certain premises in Brampton in Cumberlamd, of the yearly value of 91. and, during part of the time, took the fogs, or after-grass, of two fields, the one for 30s. and the other for a guinea, a year; the whole of which together he occupied for more than 40 days. The Sessions confirmed the order; by which he was removed from Penrith to Brampton.

On a rule to shew cause why the order of Sessions should not be quashed,

The