legal one might have arisen; but contended, that in this case all presumption of a legal marriage was rebutted by the fact proved that this marriage was illegal. It is a strong circumstance in this case, that there could be no marriage after the plaintiff was of age, since the supposed wife was then on her death-bed, from which she never afterwards recovered: and if there was a marriage by banns before, it might easily have been proved by the plaintiff, on whom the onus lay. If the presumption in this case can be supported, the marriage-act will be totally repealed; and none of the settlement-cases which have arisen on this head would have existed, if, in cases where an illegal marriage was proved and relied on, a subsequent legal one could have been presumed.

Law, contra, was stopped by the Court.

Lord KENYON, Ch. J.-In the case of new trials it is a general rule, that in a hard action (a), where there is something on which the jury have raised a presumption agreeably to the justice of the case, the Court will not interfere by granting a new trial, where the objection does not lie in point of law. This rule is carried so far, that I remember an instance of it bordering on the ridiculous; where in an action on the game-laws it was suggested, that the gun with which the defendant fired was not charged with shot, but that the bird might have died in consequence of the fright; and the jury having given a verdict for the defendant, the Court refused to grant a new trial. In this case, though the first marriage was defective, a subsequent one might have taken place: the parties cohabited together for a length of time, and were treated by the defendant himself as man and wife; these circumstances therefore afforded a ground on which the jury presumed a subsequent marriage. And if there were any ground of presumption, it is sufficient in a case like this. In this case the parties did not intend to elude the marriage-act; but all their friends were fully informed of and concurred in the former marriage. And I think we should ill exercise the discretion vested in the Court, if, after the jury had presumed a subsequent legal marriage under all the circumstances of this case, we were to set aside their verdict. In a late case of Standen v. Standen (b), the jury presumed a legal marriage, though there was strong evidence to induce a suspicion that there had not been time enough for the banns to have been published three times.

(a) Salk. 644, 648.

(6) Sittings at Westminster after Easter 1789.

BULLER,

1791.

WILKINSON

against PAYNE.

1791.

WILKINSON

against PAYNE.

BULLER, J.-If the verdict be consistent with the justice, conscience, and equity of the case, we ought not to grant a new trial. This is not so strong a case as that of Deerley v. the Duchess of Mazarine (a), where the Court refused to grant a new trial though the verdict was against law. But in this case I doubt whether it was necessary to prove a legal marriage: considering the situation in which all these parties stood, I think that a marriage in fact was sufficient. In the case of settlements. alluded to in the argument, no derivative title can be set up, unless a legal marriage be established.

(a) Salk. 116.646.

Rule discharged (6).

(6) Vide Edmonson v. Macbell, ante, 2 vol. 4. Burton v. Thompson, 2 Burr, 664

Monday, Nov. 21st.

A. having de

clared on a pro-
missory note
against B.
made by C. to

A., by him in

dorsed to B., and by him again indorsed to A., and having obtained a verdict, the judgment was arrested.

THE

BISHOP against HAYWARD.

HE plaintiff declared on a promissory note made by one Collins, payable to the plaintiff or order, and afterwards indorsed by him to the defendant, who afterwards re-indorsed it to the plaintiff again. After verdict for the plaintiff on the general issue, a motion was made by

Bower, in arrest of judgment, upon the ground that nothing appeared to be due to the plaintiff on his own shewing; for the defendant would be entitled to recover back again the identical sum from the plaintiff for which he had now obtained a verdict against the defendant; and therefore as this would introduce a circuity of action, which the law does not permit, the declaration was bad upon the face of it.

Plumer, Lane, and Dauncey, shewed cause; contending, that there was no instance of a judgment being arrested, because prima facie there might be a circuity of action. But the plaintiff is entitled to maintain his verdict, if nothing appear which is necessarily inconsistent with his demand. And therefore if any case can be stated where upon this record the plaintiff, according to justice and law, would not be bound to refund the money again, the Court will presume after verdict that such a case was made out in evidence. Now, suppose it had happened that the plaintiff had refused to receive this note from Collins as a satisfaction for his debt unless Hayward put his name upon it, to which Hayward had agreed, and had delivered it again to the plaintiff, his name as payee having been first indorsed upon it by way of form; in this case, no doubt Bishop

would

would be entitled to maintain his action as subsequent indorsee
against Hayward, and yet Hayward could not have recovered the
money again of him as prior indorser, on account of the agree-
ment between them. That was this very case. The objection of
circuity only holds where there is necessarily an equality of ac-
tion. Moor, 23. But it does not necessarily follow that the plain-
tiff's recovering here will introduce a circuity of action. There
is nothing contrary to the law of merchants in a person's being
the indorsee of a note, which he had before indorsed. The in-
dorsement is only prima facie evidence of consideration. It may
be rebutted; and it might have been proved that the first in-
dorsement to Hayward was without consideration, and the se-
cond for a good one. And this must have been proved, other
wise the plaintiff could not have recovered a verdict; and, if the
defendant had had a counter-demand upon the plaintiff, he
should have pleaded a set-off: but it is not usual to state in the
declaration whether the indorsement were with or without con-
sideration. This is a motion in arrest of judgment; and after
verdict it must be taken that every thing was proved necessary
to enable the plaintiff to recover. 2 Burr. 899. The effect of
this verdict is not only that the plaintiff had a right under the
circumstances to recover against the defendant, but also that the
defendant could not recover the same sum back again from him
the note.
upon

Lord KENYON, Ch. J.-It is an invariable rule that every
plaintiff must, on his own stating of the case, shew sufficient to
entitle him to recover judgment against the defendant. And it
is a rule equally clear that every instrument ought to be de-
clared on according to its legal import. I do not say but that
there may be circumstances which, if disclosed on the record,
might entitle the plaintiff to recover against the defendant on
this note: but we are now called upon to form a judgment on
the title which he has disclosed. And on the face of the decla-
ration he has stated the note, as a legal existing note, and the
indorsements as legal existing indorsements; we are therefore
Then the case stands thus:
bound to consider them to be so.
That he, the plaintiff, being the original indorser of the note,
calls on the defendant who appears on the record to be a subse-
quent indorsee. And nothing can be clearer in law than that an
indorsee may resort to either of the preceding indorsers for
payment; whereas the present action is an attempt to reverse
this. I admit that a case might happen in which the plaintiff
might have stated that he was substantially entitled to recover

on

1791.

BISHOP

against HAYWARD.

1791.

BISHOP against

HAYWARD.

on this note, e. g. that his own name was originally used for form only, and that it was understood by all the parties to the instrument that the note though nominally made payable to the plaintiff, was substantially to be paid to the defendant: but if such were the case, the note should have been declared on according to its legal import; as was held in Minet v. Gibson (a). A name may be omitted in the declaration, if the legal operation of the instrument requires it. But in this case the plaintiff has stated facts subversive of his title.

BULLER, J.-The consequence of supporting this judgment would be that the plaintiff, without having any real demand on the defendant, may recover against him the judgment of the Court, without allowing to the defendant a possibility of defending himself. For on the trial it was only necessary for him to prove that the note in question was given, as stated in the declaration, payable to the plaintiff, that it was indorsed by him to the defendant, and by him re-indorsed to the plaintiff; the defendant cannot deny these facts; on proving which the judge at nisi prius was bound to say that he was entitled to recover, because he had proved the whole of his declaration. Then, having obtained a verdict, he comes to this Court, and relies on that verdict as conclusive that he has a cause of action, on the ground that this Court must presume after verdict that, if the case supposed by the plaintiff had not been proved, he could not have recovered at nisi prius. But on a motion in arrest of judgment we are bound to look at the title which the plaintiff himself has stated, beyond which no presumption can be admitted. The cases of presumption alluded to are where the plaintiff has stated a case defective in form, not where he has shewn a title defective in itself (b). The case commonly put of a presumption after verdict, is where a feoffment is pleaded without livery; there a livery is implied as making a part of the feoffBut if the title be defective on the face of it, the Court cannot sustain the judgment. There is no foundation for the argument relative to the set-off; for the statutes only enable a defendant to set off one debt against another.

Per Curiam,

Judgment arrested.

(@) Ante, 3 vol. 481. and H. Bl. Rep. 569.
(b) Vide Bull. N. P. 320. Rep. Temp. Hardw. 118.

STAINTON

1791.

STAINTON against BEADLE.

Tuesday, Nov. 22d.

A

aside an inqui

Rule having been obtained to shew cause why the inquisi- The Court set tion should not be set aside, on the ground that the writ sition taken on a writ of inquiry, of inquiry had been executed at the time of the assizes before because some of jurymen, some of whom were debtors (a) taken out of prison for the jury were the purpose,

Erskine now opposed it, saying that, however improper such a practice might be in general, the defendant ought not now to be permitted to take advantage of it in this case, having attended by his attorney the execution of the writ.

Holroyd, in support of the rule, said, that a similar application in the case of Turner v. Clark (b) had been successful; and that the defendant in this case could not be said to have waved taking advantage of this objection by attending below, as the circumstance of the jurymen being debtors was not discovered till afterwards.

Lord KENYON, Ch. J.-My doubt at first was, Whether the defendant had not waved taking advantage of this objection by appearing before the sheriff? but for the precedent's sake we ought to set aside this inquisition. His Lordship also hinted that, if the sheriff had been made a party to the rule, perhaps the Court would have made him pay the costs of the applicaRule absolute.

tion.

(a) Some of the jurymen were javelinmen attending the sheriff; but the Court said there was no objection to them.

(6) E. 31 Geo. 3. B. R.

debtors in prison, and taken out of custody

for the purpose of attending.

The King against The Inhabitants of LLANWINIO.

Wednesday,
Nov. 23d.

draw a conclu

BY Y an order of two justices, dated October 29th, 1789, A. If the Sessions Evan, his wife, and five children, were removed in De- sion of fact that cember 1790, from Hilrhedin to Llanwinio, both in the county the taking of a of Carmarthen; the Sessions confirmed that order, subject to the opinion of this Court on a case reserved.

tenement is

fraudulent, or

that it does not amount to 10.

decisive here,

The case stated, that an alteration was made in the order of per annum, it is removal by one of the magistrates immediately after the order though they was signed by both, but in the presence of the other, and before facts, and refer

state all the

the considera

tion of those questions to this Court.-An order of removal may be executed a year after it is signed, if the pauper's circunstances be not altered in the interval. An alteration in an order of removal by one justice in the presence of the other, before it is delivered to the parish officers, does not vitiate it.