1800. BISHOP ບ. YOUNG. receipt of the money. So also in Hodges v. Steward, Skinn. 346. it is allowed by the Court that debt will lie against the drawer of a bill of exchange for value received; and the reason given is, “but this is for the apparent consideration." Now, in point of fact, has not this principle been applied to promissory notes where there has been an apparent consideration? In Rumball v. Ball the Plaintiff was allowed to recover in debt on a note which from its tenor was clearly a promissory note within the statute. Indeed, if it be true that an action of debt will lie against the drawer of a bill of exchange in favour of the payee, it seems to me to be the necessary effect of the statute of Anne, which puts notes on the same footing with bills of exchange, that debt may be maintained by the payee of a promissory note against the maker. That statute makes a distinction between the remedies which it gives to the payees and the indorsees; it enacts, that the payee may maintain an action upon the note in the same manner as he might do upon any inland bill of exchange against the person who signed the same, and that the indorsee may maintain his action either against the person who signs such note or against any of the persons who indorse the same, in like manner as in cases of inland bills of exchange. If, therefore, he to whom a bill of exchange for value expressed is made payable, may bring an action of debt against the person who signed it, it follows from the very words of the statute, that he to whom a promissory note, having an apparent consideration, is made payable, may have the same remedy of debt against the person who signed such note. I take no further notice of the case of Rudderv. Price, than to observe, that though it was argued for the Defendant by a person of great abilities, it did not occur either to him or to the Court, to observe that, whether the instalments on the note were due or not, still the form of the action was misconceived. Under these circumstances, the Court is of opinion, that in this particular case the action of debt may be maintained. We do not say how the case would stand if the action were brought by any other person than he to whom the note was originally given, or against any other person than him by whom it was signed and made, or if the note itself did not express a consideration upon the face of it. Per Curiam, Judgment for the Plaintiff. 1800. LAING V. KAINE, One, &c. Feb. 5th. A RULE nisi having been obtained for setting aside a judg- If 4. agree to old warrant of by him " so as to enable B. to enter up judgment thereon," judgment may be entered up under a judge's an affidavit of the subscribing witness (a). order, without ment entered upon a warrant of attorney under a Judge's acknowledge an order, upon the ground of the order having been obtained without any affidavit of the subscribing witness to the warrant of attorney; Shepherd, Serjt. now shewed cause, and relied on an affidavit by the Plaintiff's attorney, which stated that the warrant of attorney was given to secure a sum of money payable by instalments; that the deponent being under a difficulty to procure the subscribing witness at the time when one of the instalments became due, applied to the Defendant himself, and after stating his difficulty, proposed that the Defendant should acknowledge the warrant of attorney "so as to enable the deponent, if it should become necessary, to enter up judgment thereon," he giving the Defendant time to pay the instalments then due; that the Defendant agreed to this proposal, and that the instalment not being paid within the time, judgment was entered up. Williams, Serjt., in support of the rule, cited Abbot and Another v. Plumbe, Doug. 216. and insisted that the Defendant's acknowledgment would not avail (b), though he allowed, that where a Defendant agrees to admit an instrument, the evidence of the subscribing witness may be dispensed with. Lord ELDON, Ch. J. and HEATH, J. were of opinion, that upon a fair construction of the affidavit it appeared that the Defendant did not simply acknowledge the instrument, but agreed that the Plaintiff should act upon it as if the witness himself had been produced. ROOKE, J. seemed to entertain some doubts upon the subject. Rule discharged. (a) And see Park v. Mears, 3 Esp. Rep. 171, post. 217. Call v. Dunning, 5 Esp. Rep. 16. Cunliffe v. Sefton, 2 East, 183. (6) Recognized per Lawrence, J. Barnes v. Trompowsky, 7 T. R. 267. . The 1800. Feb. 5th. The KEEPERS and GOVERNORS of the Possessions, &c. of HARROW SCHOOL v. ALDERTON. In an action of THIS waste on the statute of Glouces ter against te nant for years, for converting three closes of meadow into garden ground, if the jury give only one farthing damages for each close, the Court will give give the Defendant leave to enter up judgment for himself (a). HIS was an action of waste on the statute of Gloucester, for ploughing up three closes of meadow-land, and converting the same into garden-ground, and building thereupon, to the damage of the Plaintiffs of 500l. Plea, Not guilty (6). The cause was tried before Heath, J., at the Westminster sittings after last Trinity Term, when the jury found a verdict for the Plaintiff with three farthings damages, being one farthing for each close. In the Michaelmas Term following, Cockell, Serjt., obtained a Rule, calling on the Plaintiff to shew cause why the judgment should not be entered up for the Defendant, on account of the smallness of the damages recovered, on the principle that de minimis non curat lex; and cited in support of the application Bro. Abr. tit. Waste, pl. 123. Co. Lit. 54. a. 2. Inst. 306. Cro. Car. 414. 452. Finch's Law, lib. 1. cap. 3. s. 34. adopted 3 Black. Com. 228. Vin. Abr. tit. Waste N. and Buller's N.P. 120. Shepherd, Serjt., now shewed cause. There are two species of waste: that which consists in the abuse of the thing in which the waste is committed, and the consequent deterioration of its value, and that which changes the nature of the thing itself. In waste of the first kind, if the damage be very small, it may be right that no action should lie, because the deterioration is the offence of the waste. But where the waste consists in the alteration of the property, that alteration is the essence of the waste. If then the amount of pecuniary damage be the criterion of this kind of waste also, the distinction will no longer exist; for it will then be the deterioration of value, and not the alteration of the property which will constitute the waste. It is clear that "if the tenant convert arable land into wood, or è converso, or meadow into arable, it is waste; for it changeth not only the course of his husbandry, but the evidence of his property." Co. Lit. 53. b. though it be for the advantage of the lessor, Dyer, 35. b. Hob. 234. 2 Leon. 174. per Periam, J. and Owen, 67. All the cases in which the rule contended for has prevailed, have been cases of deterioration of property; and though the Court will not allow the judgment to be entered for (a) Vide Pindar v. Wadsworth, 2 East, 154. Redfern v. Smith, 1 Bing, 382. (b) For precedents of pleadings in this action, see Co. Ent. tit. Waste, and Rastall, Ent. same title. the 1800. The of HARROW SCHOOL บ. ALDERTON. the Plaintiff where the damages in such a case are small, yet though the damages be small in this case, where the nature of the property itself has been changed, they will not deprive the GOVERNORS, &c. Plaintiffs of a judgment by which they are entitled to recover the land (a). The observation of Bracton, lib. 4. c. 18. s. 12. fol. 316. b. that vastum erit injuriosum nisi vastum ita modicum fuerit, propter quod non sit inquisitio facienda, seems to be confined to cases of deterioration; for he is there only speaking of the tenant, who, in taking estovers, si mensuram excedat utendo et capiendo ultra rationabile estoverum suum, utitur quasi in alieno. It is also to be observed, that where waste is found to have been committed in several places, the Plaintiff is entitled to recover the thing wasted, notwithstanding the smallness of the damages, 14 H. 4. 11. b. Bro. Abr. tit. Waste, pl. 70. Lord ELDON, Ch. J. I confess, that when this application was first made, I was not aware, that under the circumstances of the case the Defendant was entitled to demand judgment: but my Brother Heath has satisfied me that the application is supported by the current of authorities. I do not indeed see precisely on what ground those decisions have proceeded; though I can easily conceive many cases in which it may be extremely unconscientious for a Plaintiff to take advantage of his judgment, where such small damages have been recovered as in this case. As, if the owner of land suffer his tenant to lay out money upon the premises, and then bring an action of waste to recover possession when the land may have been improved to ten times the original value. The cases do not appear to authorize the distinction contended for by my Brother Shepherd. Whether the waste committed be by alteration of the property, or by deterioration, still the jury, in estimating the damages, take into consideration the injury which the Plaintiff has sustained; and in this case the jury have estimated the damage which these Plaintiffs have sustained, by the alteration of their (a) By the statute of Gloucester, 6 Ed. 1. c. 5. if tenant for life or years do waste, he shall forfeit the place wasted, and treble damages; if a guardian, he shall forfeit his wardship, and shall render damages to the heir if the wardship forfeited be not sufficient to satisfy the damages. In Hil. 34 Ed. 3. an infant having brought waste against his guardian, damages were found to the value of twenty-one pence; and it was contended, that for the smallness of the value it should not be adjudged waste. The Court upon great consideration awarded "that the Plaintiff should re- property, 1800. The GOVERNORS, &c. of HARROW SCHOOL v. ALDERTON. Feb. 5th. If by abuse of the process of one of the Courts at West minster a sheriff's officer extort a promissory note from a suitor, and then declare upon that note in another of the minster, the property, at three farthings only. The Courts of Common Law seem to have entertained a sort of equitable jurisdiction in cases of this kind. HEATH, J. This doctrine prevailed as early as the time of Bracton, who wrote before the statute of Gloucester. With respect to the distinction taken, there is no reason why pecuniary damages should not be assessed for the alteration of property as well as for the deterioration. Thus, if a tenant convert a furzebrake in which game have bred into arable or pasture, by which its real value would be improved, but its value to the landlord depreciated, it would be the business of the jury to assess damages to the landlord thereon. ROOKE, J. I am of the same opinion. THIS Ex parte EVAN EVANS. Rule absolute. HIS was an application under the Lord's act, 32 Geo. 2. c. 28. s. 11. (a) for an order to punish two sheriff''s officers for extortion, and to stay their proceedings in an action against the petitioner, with costs. By the affidavit on which the application was founded, it appeared that the petitioner having sued process of quo minus out of the Court of Exchequer, applied to one of these officers to arrest a person in Oxfordshire, and proCourts at West-posed to give him ten guineas if he should succeed in making the arrest, but nothing in case he should fail; that the other officer, who was the principal, refused this proposal, but insisted on, and had his regular fee of one guinea; that the two officers under 32 Geo. 2. then effected the arrest, and having so done, demanded the ten guineas which had been offered in the manner above mentioned, and obliged the petitioner to give them his note for that sum; that on this note the petitioner was sued in the Mayor's Court at Oxford, but the proceedings there were afterwards stayed, on the petitioner giving the officers a new note latter Court cannot interfere summarily to punish the officer c. 29. s. 11. (a) By that section, "for the more speedily punishing gaolers, bailiffs, and others, employed in the execution of process, for extortion and other abuses in their respective offices and places," upon the petition of any person arrested by any process, complaining of exaction or extortion by any gaoler, &c. "unto any of his Majesty's Courts of Record at Westminster from whence the process issued by which any person who shall so petition was arrested, or under whose power or jurisdiction any such gaol, prison, or place is," such Court is authorized" to hear and determine the same in a summary way, and to make such order thereupon for redressing the abuses which shall by any such petition be complained of, and for punishing such officer or person complained against, and for making reparation to the party or parties injured, as they shall think just, together with the full costs of every such complaint." for |