burrow palm Robinson esquire versus whether bland spinster administratrix de  good non of sir John Bland Bart decease Saturday that Nov SC black Sayers l of  d bull game debt win in France not recoverable in England follow Moulis v Owen  king b this be a case reserve at nisi prius at westminsterhall before ld  Mansfield d may l a the action be a action upon the ease upon several promise  and the declaration contain three count the first count be upon a bill of  exchange draw at parish by the intestate sir John Bland on the first of August  and bear that same date on himself in England for the sum of sterling Payable  to the order of the plaintiff ten day after sight value receive and accept by  the say sir John Bland the d count b be for money lend and advance by the say  plaintiff to the say sir John Bland at his request the d count be for money  have and receive by the say sir John Bland to and for the use of the plaintiff  and the plaintiff damage be lie at the defendant plead the general issue that  sir John Bland do not undertake and promise c and issue be join thereon the  verdict be find for the plaintiff and give for damage subject to the follow  case state for the opinion of the court on the follow fact prove and admit  videlicet that the bill of exchange be give at parish for there lend by the  plaintiff to sir John Bland at the time and place of play and for more lose at  the same time and place by sir John Bland to the plaintiff at play that the  play be very fair and there be not any imputation whatsoever on the plaintiff  behaviour that there be several gentleman and person of fashion then and there  at play beside the plaintiff and sir John Bland that in France money lose at  play between gentleman may be recover as a debt of honour before the marshal  of France who can enforce obedience to their sentence by imprisonment though  such money be not recoverable in the ordinary course of justice c burrow that  money lend to play with or at the time and place of play may be recover there  as a debt in the ordinary course of justice there be no positive law against  it that sir John Bland be and the plaintiff be a gentleman the question  wasWhether under these circumstance the plaintiff be entitle to recover any  thing and what against the defendant it be first argue on Tuesday that June  last by Mr serj Hewitt for the plaintiff and Mr Blackstone for the defendant  and again yesterday and today by Mr Wedderburn for the plaintiff and Mr Cox  for the defendant upon the conclusion of this second argument Lord Mansfield  say that in the present case the fact state scarce leave room for any question  because the law of France and of England be the same the first question be  whether the plaintiff be entitle to recover upon this bill of exchange by  force of the write the second question be whether he be entitle to recover  upon the original con a see Cowp durn Bosanq east durn brown h Bl b this be  not a good count against the loser though it may be against a stakeholder if  the game have be lawful c si nothing disgraceful manda si yet alias quod manda  in honesty sit no one ex eastern order action be just as young man luxuriant  mandet flute ut pro courtesan fidegubras et tu sciens mandatum to take non to  have order act idem and to hold fast si mandaveri flute ut of to of a  courtesan money lend to because simile be ac si to make away with to give as a  loan et facing good fide vin Com Inst lib title page b burrow er p sideration  and contract by the justice and equity of his case exclusive of any assistance  from the bill of exchange and take that to be a void security as to the first  question the defendant have object that the consideration of the bill of  exchange be whole money win and lend at play therefore by force of the write  the plaintiff can not by the law of England recover such security be utter  void and no doubt the law of England be so there be three reason why the  plaintiff can recover here upon this bill of exchange saint the party have a  view to the law of England the law of the place can never be the rule where  the transaction be enter into with a express view to the law of another  country as the rule by which it be to be govern Huberi praelectiones lib title  pa be clear and distinct yes yet c locus in quo shrinking c rather considerand  c see to bind up voet speak to the same effect burrow now here the payment be  to be in England it be a English security and so intend by the party d  reasonMr Cox have argue very right that sir John Bland can never be call upon  abroad for payment of this bill till there have be a wilful default of payment  in England the bill be draw by sir John Bland on himself in England Payable  ten day after sight in every disposition or contract where the subject matter  relate local to England the law of England must govern and must have be intend  to govern thus a conveyance or will of land a mortgage a contract concern  stock must be all sue upon in England and the local nature of the thing  require they to be carry into execution accord to the law here d d reasonThe  case do not leave room for a question for the law of both country be the same  the consideration of the bill of exchange may in a action upon it be go into  there as well as here and as to the money win at play it can not be recover in  any court of justice there notwithstanding the bill of exchange this write be  as a security void be for a game debt both in France and in England we may  therefore lie the bill of exchange out of the case it be very clear the  plaintiff can recover upon that count second question then as to the other  count for money have and receive to the plaintiff use and for money lend and  advance to he consider it distinct as to each part the money win and the money  lend first as to the money win by the rule of the law of England no action can  be maintain for it to this it have be object that the contract be make in  France therefore ex comitate the law of France must prevail and be the rule of  determination I admit that there be many case where the law of the place of  the transaction shall be the rule and the law of England be as liberal in this  respect as other law be this be a large field and not necessary now to be go  into it have be lie down at the bar that a marriage in a foreign country must  he govern by the law of that country e burrow where the marriage be have which  ill general be true f but the marriage in Scotland of person go from hence for  d a man personal estate be distributable accord to the law of that country  where he dwell but to enable a person to sue for any part of the personal  estate he must qualify himself from that which be the proper jurisdiction of  the place where the personal estate lie but that do not determine the right to  the equitable property per ld chancellor in Pipon v Pipon m S and the SC be  cite per ld Hardw ves e if the party marry abroad and continue there of course  they will be man and wife if the marriage be valid accord to the law of the  foreign country otherwise not and it will be absurd that their state in this  respect shall be change by their removal from one country to another as it  must be if the validity of the marriage be determine by the law of any other  country than that where the marriage be have and on this ground it seem that  the delegate may determine against a marriage solemnized abroad between Mr  morris and a natural daughter of the late ld Baltimore see also comens f cro  James burrow er p that purpose be instance by way of example g they may dome  under a very different consideration accord to the opinion of Huberus pa and  other writer No such case have yet be litigate in England except one of a  marriage at ostend which come before Lord Hardwicke who order it to be try in  the ecclesiastical court but the young man come of age and the party be marry  over again so the matter be never bring to a trial the point that the  plaintiff must rest upon in the present case be this the moneywas win in  France therefore it ought to be govern by the law of France and it be  recoverable there before the marshal of France who can enforce obedience to  their sentence the parliament of parish will pay no regard to their judgement  nor carry it into execution the marshal of France proceed personal against  gentleman as to point of honour with a view to prevent duel they can not have  take cognizance of the present matter it be not within their jurisdiction it  be no breach of honour in France for the money be Payable in England and sir  John Bland can not be say to have forfeit his honour till the ten day be out  and till the money have teen demand in England and payment refuse there sir  John Bland be actual dead in a very short time after he give the note the  marshal of France can only proceed personal against the gentleman who lose the  money but have no power over his estate or representative after his death  therefore as to the money win the contract be to be consider as void by the  law of France as well as by the law of England which make it unnecessary to  consider how far the law of France ought to be regard next as to the money  lentThe sense of the legislature seem to I to be agreeable to the a case that  have be cite the Act of c c do not meddle with money lend at play but as to  money exceed lose and not pay down at the time of lose it it say burrow that  the loser shall not be compellable to make it good but the contract and  contract for the same and for every part thereof and all security shall be  utter void c the word contract and contract for the same be not in Ann and I  dare say be design leave out it only say that all note bill bind judgement  mortgage or other security c for money win or lend at play shall be utter void  c here the money be fair lend without any imputation whatsoever sir John Bland  the borrower of it be in a foreign country may very natural have be distress  under his then situation among foreigner for want of have ready money or know  how to procure it and it may be even a kind and generous and commendable act  to lend it to he at that time to extricate he from his difficulty as he be  then circumstance the jury have leave it quite open to the court to determine  whether any thing and what be recoverable as to the money win we think it can  not be recover as to the money lend the plaintiff be entitle to it both by the  law of England and by the law of France interest will be Payable upon this  bill after the expiration of the ten day the g ves Eq Abr r r but it have be  since determine in the inferior ecclesiastical court and affirm by the  delegate that such Scotch marriage be valid V Hussey v Jacob Carthew Mod salk  ld raym bowyer v Bampton strange Barjean v Walmsley strange a and slater v  Emmerson before Eyre ld Ch I c b at the sit at guildhall after m term g see  also buller a the case in Str be on a lend by parole only though it seem  difficult to maintain even that determination at least upon the reason there  give and in that case the person who lend the money win it again of the  borrower so that it be a mere contrivance to evade the law as to all the other  case cite they be nothing to the purpose but rather make against the judgement  in this case as they do not at all apply to it except it be a dictum in the  case of Hussey v Jacob which be decide in the case of boyer v Brampton Str  Seealso will ace c burrow er p question will be how far the interest ought to  be carry down it be general say to the day of the writ bring I e of commence  the action but I do not see why it shall not be carry far it be equal  reasonable it be the right of the party to have it to the last act of the  court ascertain the sum due I have long wish for a opportunity to have this  point consider by the court because I will not take upon myself at nisi prius  to change what have common be the practice but as to this last point we will  think of it for a day or two Mr just denison give no opinion now on this last  point as to the rest he say it be a plain clear short case it be determinable  by the rule of the commonlaw and no other law the money be make Payable in  England as it be a foreign bill of exchange it must of course be date abroad  but it be to be pay here at home and the plaintiff have appeal to the law of  England by bring his action here and ought to be determine by they burrow but  by the law of England the security be void which may have be plead as well as  it may be give in evidence and the defendant need not in his plea to have say  where it be win at play and be a transitory action it must then have be try  where the action be bring and so it must have be if the plea have be local  indeed in many case that may be put the determination must have be accord to  the law of the place where the fact arise but the present case be not so here  the security be void by the law of the country where he bring his action upon  it and this security be one entire security both for the money win at play and  the money lend at play there be a distinction between the contract and the  security if part of the contract arise upon a good consideration and part of  it upon a bad one it be divisible but it be otherwise as to the security that  be entire be bad for the whole therefore the plaintiff ought to be bar of this  action upon this bill of exchange as be a void security by the law of this  country where he bring his action but still the contract remain and he have a  right to maintain his action for so much of his demand as be legal which be  the money lend as to the time of carry down the interest it may be proper to  consider of it a little while Mr just WilmotHere be two sum demand which be  blend together in one bill of exchange but be divisible in their nature as to  the money lentthe case that have be cite be in point that it be recoverable  but if there be none yet I shall be clear that the plaintiff may maintain a  action for that as to contract be good and the security voidthe contract may  certain be good though the security be void and I think that this contract be  good though the security be void by the statute of Ann this be not state to be  money lend to play with or for the purpose of play but lend at the time and  place of play only nothing appear upon this case to induce any suspicion that  it be lend for any bad purpose the statute mean to prevent excessive game and  to vacate all security whatsoever for money win at play and the genuine true  and sound construction of Ann be to understand it as intend to prevent any  security be take for money win at play or lend to play with when the borrower  have lose all his ready cash but not to make the contract itself void where  the money be fair and good fide lend though at the time and place of play as  to the interest that shall be give to the plaintiff upon the sum lend in the  assessment of the damage burrow this be a action that sound in damage and the  true measure undoubted be the damage which the plaintiff sustain by the  nonperformance of the contract and that damage be the whole interest due upon  the sum lend videlicet fromthe time of its be Payable up to the time of sign  the judgement nay oven then he may suffer he may still be keep out of his  money by a writ of error for a still further time accord to my memory Lord  coke exposition of the statute be that the cost of the writ shall extend to  all the legal cost of the suit Ann c v Inst on stat glouc Edward burrow er p  the present case notwithstanding the question that have be agitate in argue it  come out to be no case at all no point at all no law at all indeed whether a  action can be support in England on a contract which be void by the law of  England but valid by the law of the country where the matter be transact be a  great question t though I shall have no great doubt about that but that case  do not exist here for it be not here state that such a debt as this for money  win at play in France be recoverable in the ordinary court of justice there  but quite the contrary so that the law of France and of England be the same as  to the money win the contract be void as to that by the law of both country  and as to this wile illegal fantastical court of honour the court of the  marshal of France act only in mask contrary to the universal and general law  even of the country where the transaction happen and contrary to the genius  and spirit of our own law too it will be absurd to suppose that the bare  possible accidental chance of a recovery in that court shall be a foundation  for maintain a action here upon a matter prohibit by the law of both country  beside sir John Bland himself as it seem be not and the present defendant the  person now before this court can never have be the object of the jurisdiction  of that court the remedy there in its utmost extent be only in mask and this  defendant be a administratrix only a strong reason for the plaintiff recover  in this action the money lend be that the bill of exchange be Payable in  England and therefore it shall be determine accord to the law of England where  it be Payable as in the case of sir John champant v ld Ranelagh burrow mich in  chancery report in precedent in chancery a a bind be make in England and send  over to Ireland and the money to be pay there but it be not mention what  interest shall be pay my Lord keeper be of opinion that it shall carry Irish  interest therefore as this money be Payable in England the law of England must  be the rule of recover it I give no opinion as to the other point yet I can  help think that where a person appeal to the law of England he must take his  remedy accord to the law of England to which he have appeal there be no  difference in this case between the statute law and the commonlaw of England a  contract can be maintain upon the one that be void by the other the law of the  place where the thing happen do not always prevail in many country a contract  may be maintain by a courtesan for the price of her prostitution and one may  suppose a action to be bring here upon such a contract which arise in such a  country but that will never be allow in this country therefore the law loci  can in all case govern and direct the sentence of foreign court have always  some degree of regard pay to they by the court of justice here and it be very  right that a attention shall be pay to they as far as they ought to have  weight in the case depend but if a man original appeal to the law of England  for redress he must take his redress accord to that law to which he have  appeal for such redress therefore if this rule of determination be different  by the law of France from our rule here yet I shall incline that the law of  England where the action be bring shall prevail against the law of France if  they do real clash with each other because the party seek redress have choose  to apply here a but give no opinion at all on this point as to the money  lentthere can be no doubt because there be no law either in England or France  that hinder the plaintiff from maintain his action for it the printer or  reporter must here have most plain err a SC vern report direct contrary to  bring in CLSee also atk and queen atk contra ves contra vin Eq Abr a but in  case of loan interest shall be pay accord to the law of the country where the  debt be contract though sue for it here l Q Abr and so it be if the money be  Payable there and the creditor there and it be not only the law of England but  it seem of every other country to adjudge of covenant accord to the law of the  country where make burrow er p as to the carry down the interest to a fix time  the court take time to consider that single point burrow and on Saturday d of  November Lord Mansfield deliver the resolution of the court upon that point  which be to the follow effect we have give our opinion already upon all the  part of this case except the single point of carry down the interest which  opinion be that the plaintiff can only recover the principal sum real and good  fide lend by the plaintiff to sir John Bland at parish the remain question be  whether it shall carry interest and to what time such interest ought to be  compute and allow as to the former of these two question the case state be  that the bill of exchange be give at parish for there lend by the plaintiff to  sir John Bland for which he give the plaintiff a security void in point of law  as a security but the give the bill of exchange upon such consideration be  state in the case as a fact admit and show that upon the loan the intention  and agreement of the party be that the money shall carry interest if not repay  within the limit time the contract remain good though he give a void security  to perform it so that it be a liquidate sum which carry interest from the time  at which it be agree to be pay but the question be whether it be to stop at  the commencement of the action or to be carry on to the time of liquidat the  debt by the verdict or by the judgement this difference be very small in the  present case and scarce worth litigate between these party but I be glad of  the opportunity which this case offer of discuss the question and settle the  point to be a rule for all case of the same nature that may hereafter arise  the general practice of associate in take damage in these case be I be inform  to stop at the commencement of the action and to allow the interest no further  down but this practice however general be not find in law but in mistake and  misapprehension and this will appear very plain whether it be consider upon  the foot of natural justice or law burrow first in point of justiceNothing can  be more agreeable to justice than that the interest shall be carry down quite  to the actual payment of the money but as that can be it shall be carry on as  far as to the time when the demand be complete liquidate although his be  nominal a action for damage and damage be nominal recover in it yet it be real  and effectual bring for a specific performance of the contract for where the  money be make Payable by a agreement between party and a time give for the  payment of it this be a contract to pay the money at the give time and to pay  interest for it from the give day in case of failure of payment at that day so  that the action be in effect bring to obtain a specific performance of this  contract for pecuniary damage upon a contract for payment of money be from the  nature of the thing a specific performance and the relief be defective so far  as all the money be not pay then to consider it upon the common and statute  law there be no statute nor any principle of the commonlaw against it we have  look into all the statute that can be suppose to concern this practice and  there be no statute that have any reference to the matter the damage give by  statute be where the action be against such as come in under wrongdoers only  or where a specific thing be to be recover it be agreeable to the principle of  the commonlaw that wherever a duty have incur pen the writ for which no  satisfaction can he have by a new suit such duty shall be include in the  judgement to be give upon the action already depend of this there be many  instance in a writ of account the first judgement be quod to sum up and on  such account all article of account though incur since the writ shall be  include and the whole bring down to the time when the auditor v post Bodilly v  Bellamy d Nov S p pa and see new abridgment of the law vol pa very short and  clear burrow er p make a end of their account so in the ancient writ of  annuity intermediate sum grow due pen the action shall be include in the  judgement because a new action can be bring for they on the statute of  Gloucester Edward whereby damage be give in real action on a writ of entry to  recover the specific land that statute give damage general burrow without say  till what time yet the construction upon it have be that they shall compute  all the damage that have arise pendent shorten when a new action may be bring  and a satisfaction obtain thereupon for any duty or demand which have arise  since the commencement of the depend suit that duty or demand shall not be  include in the judgement upon the former action as in covenant for nonpayment  of rend or of a annuity Payable at different time you may bring a new action  so often how often as often as the respective sum become due and pa able so in  trespass and in tort new action may be bring as often as new injury and wrong  be repeat and therefore damage shall be assess only up to the time of the  wrong complain of but where a man bring a action of assumpsit for principal  and interest upon a contract oblige the defendant to pay such principal money  with interest from such a time he complain of the nonpayment of both the  interest be a accessary to the principal and he can not bring a new action for  any interest grow due between the commencement of his action and the judgement  in it here the plaintiff can bring a new action for the interest for he have  already have a satisfaction upon the defendant promise the court of chancery  have in case of this kind often a concurrent jurisdiction with the court of  commonlaw on account of asset not a extraordinary but a ordinary jurisdiction  by reason of the fund and it seem absurd that two court of justice who have  concurrent jurisdiction shall go by different rule they ought to act uniform  as far as may be the court of chancery follow the ecclesiastical court in case  where they have concurrent jurisdiction now in chancery interest be compute  even up to the day when it be conjecture or agree that the master report will  be confirm though a future day which they fix accord to probable conjecture I  do not know of any court in any country and I have look into the matter which  do not carry interest down to the time of the last act by which the sum be  liquidate why then may not jury compute interest to the time of the verdict or  even till the end of four day within the next term before which time the  plaintiff can sign his judgement I think I can see how this mistake have  happen I dare say that associate have not distinguish between burrow this  species of action it be call a action of trespass on the case and common  action of trespass such as action for assault battery false imprisonment c  carry down the interest do a plaintiff complete justice it be agreeable to the  principle of the commonlaw and interfere with no statute it take from  defendant the temptation to make use of all the unjust dilatories of chicane  for if interest be to stop at the commencement of the suit where the sum be  large the defendant may gain by protract the cause in the most expensive and  vexatious manner and the more the plaintiff be injure the less he will be  relieve here the jury have leave the matter quite open to we we can bring the  interest down to the time of the liquidation and ascertainment of the sum real  due from the defendant to the plaintiff which be the time of give the  judgement and the sum a trifle indeed in this case for which the judgement be  to be enter will then be about a little more or less therefore let judgement  be enter for that sum RuleThat the postea be forthwith deliver to the  plaintiff attorney and that the plaintiff shall be at liberty to enter up  judgement on the verdict obtain in this cause but it be further order that  such judgement shall only stand security to the plaintiff for the sum of  parcel of the sum of the damage assess by the jury and the plaintiff cost to  be tax by Mr Owen v Inst see the distinction between these in the case of  Haward v bank in this term post p burrow er p Thursday that Nov this be  grandjury day it be intend by the sheriff and press by the two knight of the  shire for Middlesex that all the principal gentleman of the county not few  than fourscore in number shall be swear of this grand jury in order to their  be include in a address to his majesty from and in the name of the grand jury  of Middlesex upon his accession to the crown but upon the sheriff mention of  this to I it seem to I to be irregular and improper to swear more than  twentythree because if a number amount to two full jury or more shall be swear  it may happen that a complete jury of twelve may find a bill to be a true one  though other twelve or even many more than twelve of the very same jury may  reject it as a true one which will be inconvenient as well as contradictory  and even somewhat absurd and ridiculous Lord Mansfield upon be apprise of this  say it will be monstrous to swear fourscore and that the officer can not  proper swear more than three and twenty