BANK OF ENGLAND

V.

ANDERSON.

transactions in bills of exchange, where the acceptors consisted of a partnership Com. Pleas. of more than six persons; for that no man could tell, by looking at the bill, at what period the time of borrowing took place, or whether the bill had six months to run from such time or not. The first answer to this objection is, that the difficulty does not occur in the present, or in any case, where the bill is drawn at less than six months from its date; for in such case, every person must know, that the bill had been accepted within six months from the borrowing. Secondly, that although, if a bill should be drawn at a longer period than six months, and accepted within six months, next before the time of its maturity, the transaction would be a violation of the provisions of the statute; and all persons who were privy to it, would be prevented from enforcing the acceptance; still, such violation of the prohibition of the statute, would not affect a bona fide holder without notice. If bills of exchange so accepted, cannot lawfully be issued, the danger of their being employed as circulating paper cannot be great; but, on the other hand, if bills at very short dates may be lawfully accepted, it is obvious that a paper circulation might be created by such bills, almost equivalent to a circulation of promissory notes payable on demand. Notwithstanding, therefore, the objections which have been urged on the part of the defendants, to the construction of the clauses above adverted to, we are of opinion, that the acceptance stated in the case, falls within the prohibition contained in the statute of William 4 ; and we feel no doubt, that it falls within the mischief which the statute of Anne, and all the subsequent acts intended to provide against, viz.-the permitting any other body corporate, or any partnership consisting of a large number of persons, to enter into competition with the Bank of England, by the issue of notes or bills, either payable on demand or at short periods from their issue. This construction of the prohibitory clause, gives a real benefit and protection to the Bank of England; and that something real and substantial was intended to be given by the legislature on the one hand, and was on the other hand, thought and believed by the Bank of England to be given to them, is evident from the constant repetition in all subsequent acts in the same words, of the identical provision, contained in the statute of Anne; for, if not a real privilege, why was it continued to be inserted? The construction contended for by the defendants, that it must be confined to bills under the seals of the co-partners, gives in reality no benefit or protection at all at the present period, if it ever could have given any. But it is not only to be considered, that such was the sense in which Parliament and the Bank of England, who may be considered as the contracting parties, understood the provision; but such also, has been the general understanding of all at the time the first act passed, and from thence to the stat. of W. 4. For no instance can be pointed out, until the present, in which a banking co-partnership consisting of more than six in number, have been found in the course of their dealing as bankers, to accept bills of exchange payable at a less interval than six months from their acceptance. And if no other argument was brought forward, we attribute great weight to the maxim of law, contemporanea expositio fortissima est in lege. Upon the whole, therefore, we shall certify to the master of the rolls the opinion of the judges who heard the argument to the effect above stated. The following certificate was subsequently sent to the master of the rolls :

"We have heard this case argued by counsel, and are of opinion that the acceptance by the London and Westminster Bank of the bill mentioned in the

Com. Pleas.

BANK OF
ENGLAND

V.

ANDERSON.

case, was not lawful, regard being had to the provisions of the act 3 & 4 W. 4, c. 98, and the other acts passed and now in force respecting the Bank of

England.

"N. C. TINDAL,

"S. GASELEE,

"J. VAUGHAN,

"J. B. BOSANQUET."

Nov. 25.

In trespass for

breaking a house, the de

fendant pleaded not guilty, and an entry to

DUNNAGE v. KEMBLE and others.

TRESPASS for breaking and entering the dwelling-house of the plaintiff, and seizing the goods therein. Pleas-first, not guilty; secondly, as to breaking open the door of the house, that the plaintiff was weekly tenant to the defendant Kemble; and that rent being in arrear, and the outer door open, the defendants entered and distrained the plaintiff's goods. The plaintiff joined issue on the first plea, and replied de injuria to the second plea. At the trial, plaintiff on the before Vaughan, J., the jury found a verdict for the plaintiff, with one farthing

make a distress.

A verdict was found for the

first issue,

damages one

farthing; and for the defendant on the second issue:Held, that the plaintiff was not entitled to costs, unless the judge certified under

22 & 23 Car. 2, c. 9.

damages on the first issue, and for the defendant on the second issue. The learned judge did not certify as to costs, and the prothonotary not having taxed any costs to the plaintiff,

Andrews, Serjt., obtained a rule nisi to review the taxation. He contended that the plaintiff was entitled to his full costs. Hughes v. Hughes (a), Smith v. Edwards (b).

Talfourd, Serjt. shewed cause.-In Hughes v. Hughes (a) it was held, that in trespass to land, a verdict, though under 40s., on a plea of not guilty, entitles a plaintiff to full costs, without a certificate under 22 & 23 Car. 2, c. 9. Smith v. Edwards (b), is to the same effect. But these cases were decided under a misapprehension that, since the new rules of pleading, the title to the land could not come in issue, under the plea of not guilty. But that is not so, because there are many cases where the title may come in question under this plea (c). As under the 11 Geo. 2, c. 19, s. 21, which enacts, "that in all actions of trespass, or upon the case, to be brought against any person or persons, entitled to rents or services of any kind, his, her, or their bailiff or receiver, or other person or persons, relating to any entry by virtue of this act or otherwise, upon the premises chargeable with such rents or services, or to any distress or seizure, sale or disposal of any goods or chattels thereupon, it shall and may be lawful to and for the defendant or defendants in such actions, to plead the general issue, and give the special matter in evidence, any law or usage to the contrary notwithstanding." So under sec. 44 of the Bankrupt Act, 6 Geo. 4, c. 16; sec. 109 of the Highway Act, 5 & 6 W. 4, c. 50; and other statutes. The stat. 3 & 4 W. 4, c. 42, sec. 1, which authorized the judges to make the new rules of pleading, provides "that no such rule or order shall have the effect of depriving any person of the power of pleading the general isssue, and giving the special matter in evidence in any case, wherein he is now or

(a) 2 Cr. M. & R. 663; 1 Gale, 302.
(b) 4 Dow. P. C. 621; 1 Har. & Wol. 497.

(c) See note (b) in Hughes v. Hughes, 1 Gale, 302.

hereafter shall be entitled to do so, by virtue of any act of parliament now or hereafter to be in force." Therefore, as the title might have been in issue, and as the judge has not certified that it did come in question, the plaintiff is not entitled to more costs than damages, and the decision of the prothonotary was correct.

Andrews, Serjt. and Bompas, Serjt.. in support of the rule, relied upon Hughes v. Hughes (c), and Smith v. Edwards (d).

TINDAL, C. J.-The argument now urged against this rule, does not appear to have been raised in the former decisions: as the question is of some importance, we will take time to consider it.

Com. Pleas

DUNNAGE

υ.

KEMBLE.

Cur. adv. vult.

The Court subsequently came to the following decision :

"The Court have considered this case, and are of opinion that the plaintiff is not entitled to costs without a certificate under the statute Car. 2; and, therefore, the rule for directing the prothonotary to tax his costs must be discharged, but without costs."

Rule discharged.

(c) 2 Cr. M. & Ros. 663; 1 Gale, 302.

(d) 4 Dow. P. C. 621; 1 Har. & Wol. 497.

REGULÆ GENERALES.

"WHEREAS, by the statute 5 & 6 William 4, chapter 82, it is enacted, 'That from and after the 31st day of December, 1835, the several offices in his majesty's Court of Common Pleas thereinafter mentioned, viz.—the Chirographer, and the Secondary, Register, and Clerks of Counties in the office of the Chirographer; of the Clerk of the King's Silver, and of the Clerk of the Return Office and of the Inrolment of Writs for Fines and Recoveries; and also, the several offices in the Alienation Office, consisting of two Commissioners, a Receiver-General, two entering Clerks, a Master in Chancery appointed for taking affidavits, and an office-keeper, be abolished.'

"And whereas, by the said act, it is further enacted, That the several records, books, and other documents of and concerning the duties and business of the said offices so abolished as aforesaid, shall, on or before the said 31st day of December, be delivered by the several officers or persons now having custody of the same, into the hands and possession of the officer of the Court of Common Pleas, at Westminster, for the time being, appointed or to be appointed by the Lord Chief Justice of the Court of Common Pleas, for the purpose of examining, filing, and recording, all certificates of the taking of acknowledgments by married women of deeds, under the provisions of the statute 3 & 4 William 4, chapter 74, intitled "An Act for the Abolition of Fines and Recoveries, and for the substitution of more simple modes of assurance," to be by him kept and preserved; subject, nevertheless, to such rules,

Com. Pleas.

REG. GEN.

orders, and regulations as the Court of Common Pleas shall or may from time to time make or ordain in respect of the same.'

And whereas, Mr. Thomas Sherwood is the officer of the said Court of Common Pleas for the time being, who has been appointed under and by virtue of the said act of 3 & 4 William 4th., chapter 74.

"It is ordered, that the said several officers hereinbefore mentioned, whose offices have been so abolished, and any other persons now having custody of all or any of the records, books, and other documents, of and concerning the duties and business of the said several offices so abolished as aforesaid, do forthwith deliver up to the said Thomas Sherwood, all such records, books, and other documents, to be by him kept and preserved, subject to such further order, rules, and regulations, as the said Court of Common Pleas shall hereafter make or ordain in respect of the same.

Read in Court, 25th November, 1836.

"N. C. TINDAL,

"S. GASELEE,

“J. VAUGHAN,

"J. B. BOSANQUET."

[MICHAELMAS TERM, 7TH WILLIAM 4TH, 1836.]

"It is ordered that from and after the the last day of this term, all rules upon sheriffs, other than the sheriffs of London and Middlesex, to return writs either of mesne or final process, and rules to bring in the bodies of defendants, be eight day rules instead of six day rules."

(Signed by all the Judges.)

END OF MICHAELMAS TERM.

A

DIGEST

OF THE

CASES REPORTED IN THIS VOLUME;

CONTAINING

THE DECISIONS OF THE COURT OF COMMON PLEAS

FROM

EASTER TERM, 1836, тO MICHAELMAS TERM, 1836, INClusive.