Doran Plaintiff in error v. O'Reilly and others Defendants in error [1817] UKHL 5_Dow_133

UKHL

Doran Plaintiff in error v. O'Reilly and others Defendants in error

[1817] UKHL 5_Dow_133

REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS, During the Session , 1816—17.

57 Geo . III.

ENGLAND.

IN ERROR FROM THE EXCHEQUER CHAMBER.

No. 7

Doran Plaintiff in error v. O'Reilly and others Defendants in error

March 7 , 1817 .

the demand being made in lawful money of Great Britain, and the Defendant below having suffered judgment to go against him by default, he had himself assessed the amount, and that there was no occasion to send the matter to a jury by writ of inquiry.

ERROR. — DEBT. — FOREIGN JUDGMENT. — WRIT OF INQUIRY. — COSTS.

Debt in K. B. and demand made in lawful money of Great Britain, founded upon a judgment of the supreme Court of Jamaica obtained in an action of assumpsit in that Court for so much Jamaica currency,—the declaration in K. B. stating that this amounted to so much in British money. Final judgment by default against the Defendant, and error brought in the Ex. Ch.; and there, the errors not being argued, judgment affirmed, and thereupon error in Dom. Proc. Held that

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Count in the declaration for interest upon the forbearance of money on request: This is well laid, a promise to pay interest being implied.

Where errors are argued in Dom. Proc. without having been argued below, and judgment is affirmed, though the alleged errors may be well worthy of consideration, the House will make the plaintiff in error pay the costs of the proceedings there, as if the case had not been argued at all in that House.

Action of debt in K. B. upon a foreign judgment obtained in assumpsit.

This was an action in debt commenced by the Defendants in error in the Court of King's Bench in 1815, to recover from the Plaintiff in error the sum of 4934 l . 11 s . of sterling British money, due to them upon and by virtue of a certain judgment obtained by them against the Plaintiff in error in the supreme Court of Judicature in and for the Island of Jamaica, before the chief Judge and his associates Judges of that Court, in a suit for non-performance of certain promises and undertakings made by the said Plaintiff in error to the Defendants in error. The first and second counts in the declaration in the action in K. B. at Westminster, founding on the foreign judgment, were as follows:

Declaration.

First count on foreign judgment.

Second count on foreign judgment.

“London (to wit). Thomas O'Reilly, George Young, William Gordon, John Murphy, and James Farrell, who have survived James Westerman May, their late partner now deceased, complain of William Doran, who hath survived Daniel Robinson now deceased, being in the custody of the marshal of the Marshalsea of our Lord the now King, before the King himself, of a plea

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Count for interest.

Then followed counts for goods sold and delivered, money borrowed, money paid, money had and received, interest, and on an account stated. The count for interest was in these terms:

and by the said Thomas, George, William Gordon, John, James Farrell, and James Westerman, in the life-time of the said James Westerman, and since his death, by the said Thomas, George, William Gordon, John, and James Farrell, forborne to the said William Doran and the said Daniel in his life-time, and to the said William Doran, since the death of the said Daniel, at their special instance and request for divers long spaces of time, before then elapsed, and to be paid by the said William Doran, to the said Thomas, George, William Gordon, John, and James Farrell, when he the said William Doran should be thereunto afterwards requested; whereby, and by reason of the said last mentioned sum of money being and remaining wholly unpaid, an action hath accrued to the said Thomas, George, William Gordon, John, and James Farrell, to demand and have of and from the said William Doran the said last mentioned sum of money, further parcel of the said sum above demanded.”

“And whereas also the said William Doran, afterwards, and after the death of the said James Westerman, to wit, on the first day of October in the year of our Lord one thousand eight hundred and fifteen, at London aforesaid, in the parish and ward aforesaid, was indebted to the said Thomas, George, William Gordon, John, and James Farrell, in the further sum of two thousand pounds, of like lawful money for money before that time and then due and payable from the said William Doran to the said Thomas, George, William Gordon, John, and James Farrell, for interest upon and for the forbearance of divers other large sums of money, before then due and owing from the said William Doran and Daniel, during the life of the said Daniel, and the said William Doran, since the death of the said Daniel, to the said Thomas, George, William Gordon, John, James Farrell, and James Westerman, in the life-time of the said James Westerman, and to the said Thomas, George, William Gordon, John, and James Farrell, since the death of the said James Westerman,

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Defendant makes default, and final judgment signed.

Error in Exch. Ch.

Error in Dom. Proc.

The Plaintiff in error having suffered judgment to go against him by default, final judgment was signed on the 11th January, 1816, for the debt demanded, and 22 l . damages and costs. Upon this a writ of error was brought in the Exchequer Chamber, where, general errors only having been assigned and not argued, the judgment was affirmed on the 13th November, 1816. The Plaintiff in error then brought a writ of error returnable before the Lords in Parliament, which, with a transcript of the record, was brought up on 28th January, 1817; and the Plaintiff assigned the general error, and a special error not insisted upon. The House took the cause

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Errors.

“The Plaintiff in error humbly conceives that the declaration and judgment in this case will appear erroneous to your Lordships.

He contends that the action of assumpsit is in its form and nature an action of tort, though founded upon contract—and that damages given for a tortious breach of promise cannot be converted into a debt by the judgment of any court of foreign judicature; that the judgment in an action of assumpsit given by such court of foreign judicature, is indeed good primâ facie primâ facie evidence of the breach of the promises and undertakings therein complained of, but that it is no evidence of any debt subsisting between the parties to such action, nor of the amount of the same.

Also, that debt cannot be maintained for the value of foreign money, or for other demand, which in its nature is wholly uncertain in amount, and can only be ascertained by the finding of a jury.

Also, that if debt can be maintained for a demand which in its nature is wholly uncertain in its amount, judgment ought not to be entered up

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Also, that by the law of the land interest is not demandable on the forbearance of money though forborne on request, without a special contract for the same; and that such contract, or the grounds from which it may be implied, ought to appear upon the face of the declaration.

Also, that the manner in which money becomes due and owing ought to appear on the face of the declaration, that the Court may be enabled to judge whether interest be demandable for the forbearance of the same; and that it is too general and altogether uncertain to state that money is due and payable for interest upon, and for the forbearance of money due and owing, without stating on what account.”

Writ of inquiry.

Vid . also Emery v. Fell

2 T. R. 28.— Bonafous v. Walker , ib. 126.— Lord v. Houston , 11 East. 62.

Mr. Richardson (for Plaintiff in error). One of the errors, and it goes to the whole record, is, that a general judgment ought not to have been entered up till a writ of inquiry had been issued to ascertain the amount of the sum due. The proceedings in the Courts, in actions of debt, have varied. Formerly it was necessary to state the contract with precision, and the exact sum; and if there was a variance between the sum laid in the declaration and the sum really due, the Plaintiff failed altogether. There was no occasion at that time for the inquiry. But ever since the case of Aylett v. Lowe , 2 Blac. R. 1221, any sum may be recovered not

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Judgment in foreign Court.

Another objection is, that the cause of action in the foreign Court is assumpsit, and the judgment of a foreign Court in such an action is not a sufficient ground for an action of debt in this country. In Walker v. Witter , 1 Doug. 1; the ground of action in the foreign Court was itself debt .

Foreign money.

Another objection is, that the recovery is in foreign money, and the Court cannot, without evidence, known the amount in British money. There is a difference in the practice of the Courts with respect to foreign and British money, and foreign and inland bills of exchange. With respect to British money and inland bills of exchange, where the amount is simply a matter of computation, the Court refers it to the Master, to calculate and ascertain the amount of the sum due. But with respect to foreign bills and foreign money the Courts direct a writ of inquiry; Maunsell v. Massareene (Lord) , 5 T. R. 87. Such was the course adopted in early times also, in regard to foreign money, as appears from Bagshaw v. Playn , Cro. El. 536; where it was held to be error that no inquiry was executed,

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Interest.

Then with respect to the count for interest, no contract is shown; and debt does not lie for interest on the forbearance of money on request. It must be founded on contract in some way or other, and no such thing appears here. In Seaman v. Dee , 1 Vent. 198. it was decided on the authority of Lord Hale, that interest could not be recovered in debt, unless upon contract, and that the proceeding must be by assumpsit and damages. I am

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The result of the whole then is, that in actions of debt, the amount of the sum really due is as indefinite as in assumpsit; that there exists the same reason for directing an inquiry in debt as in assumpsit; that the Court ascertains the amount by reference to the Master only in cases where it is a matter of mere computation; that all the reasons which apply to cases of tort and assumpsit apply to cases of debt, and that the same inquiry ought to have been directed, at least with respect to the foreign money counts, as to which the proposition is supported, not merely by the reason of the thing, but also by decided cases.

Inquiry.

Foreign money.

Davidgs v. Wychalls .

Mr. Littledale (for Defendant in error). There is no case in which a writ of inquiry has been directed in an action of debt, where the demand has been in lawful money of Great Britain; and Mr. Richardson himself in Taylor v. Capper , 14 East. 442. admitted that he had not been able to find any instance of it. He relied on two cases, Bagshaw v. Playn , Cro. El. 536. and Rands v. Peck , Cro. Jac. 617. But in the former the demand was in Flemish money, and as the judgment must be for Flemish money, it was thought that a writ of inquiry should have been directed to ascertain the value. But even in actions for foreign money it has not been thought necessary always to direct an inquiry. In a case cited in Bagshaw v. Playn , where debt was brought

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Vide Bruce v. Rawlins , 3 Wils. 61, 62.

What then is the principle with respect to the directing of writs of inquiry? In 5 Com. Dig. Debt , (A.) 8. it is stated that Debt may be brought for a quantum meruit with an allegation that the worth is so much: Vaux v. Mainwarring , Fort. 197.; Bloome v. Wilson , Jones (Sir T.), 184. So that it has been the practice to bring debt on a quantum meruit with an allegation that the worth

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Foreign judgment.

Slade's case. Coke, R. vol. 2. p. 93. Oct. Ed.

Consideration. Vid . Plaistow v. Van Uxem , 1 Doug. 5 n.

As to the objection that debt cannot be maintained on a foreign judgment in assumpsit, the case of Walker v. Witter , 1 Doug. 1. is an authority for me on that point. But then it was said, the action in the foreign Court there was itself debt . What does it signify whether it was debt or assumpsit? The forms of the declarations are nearly the same, and Buller, J. says, in Walker v. Witter , that the old cases show that wherever indebitatus assumpsit is maintainable, debt is also: and he quotes Slade's case, Co. R. Neither is it necessary that the consideration of the foreign judgment should appear, though it does appear upon our declaration.

Interest.

With respect to the count for interest, Mr. Richardson says, that a special contract ought to have been averred. But that is not necessary. It may be expressed or implied, and the practice is to state the matter as it really is, and it is sufficient if it appears that there is a contract. The forbearance of money is considered in the usury acts as a contract for interest, and the forbearance creates a contract. Hale's doctrine in Seaman v. Dee , 1 Vent. 198. would go the length of establishing that interest could never be recovered as such, but only by way of damages: and Lord Kenyon says, in Herries v. Jameson , 5 T. R. 553. that the reasons given for the doctrine go rather the other way.

The judgment therefore, I submit, ought to be affirmed on the whole declaration, or at least on some of the counts.

12 Anne, st. 2. cap. 16.

Mr. Richardson (in reply). I do not deny that debt may be maintained for any sum that may be liquidated; and, if the Plaintiff over-values, the

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Judgment. March 7, 1817.

Where errors are argued in Dom. Proc. without having been argued below, and the judgment is affirmed, though the alleged errors should be well worthy of consideration, the plaintiff in error pays the whole costs of the proceedings in D. P. as if the case had not been argued there at all.

Lord Eldon (C.) Although errors are brought before your Lordships, without having been argued in the Courts below, if there is error the Plaintiff in error is entitled to your Lordships' judgment. At the same time I repeat, not however stating it as at all reflecting upon either of the two most learned persons who have argued the case here, that this House always takes that circumstance into consideration, not so as to influence its judgment with respect to the case itself, but with reference to our practice as to costs. For if a party suffers his cause to pass without argument through the Courts below—and the question here was well worthy of their attention—and assigns his errors only two or three days before the cause is brought to hearing in this House, he must, by our practice, pay the costs of the proceedings here.

The demand made in lawful money of Great Britain, and Defendant below had himself assessed the damages, and no occasion to send the matter to a jury. Interest.

With respect to the case itself my opinion is, that, ably as the errors have been argued on the part of the Plaintiff in error, they have not been established. I think the demand was made in lawful money of Great Britain, and that the defendant below himself assessed the amount, and there was no occasion to send the matter to a jury. And as to the point of interest, I think that sufficiently laid in the declaration to imply a promise to pay, and that, on that point also the Defendant in error is entitled to your Lordships' judgment. I propose, therefore, that we should give judgment, as if the case had not been argued in this House at all, that is, to give the Defendant in error his costs of the proceedings here.

Judgment affirmed , with 140 l . costs.

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Judgment at the same time affirmed in another cause (not argued) of the same nature, relating to the same subject, and between the same parties, with 140 l . costs.