Reports of that reverend and learned judge, Sir Humphry Winch Knight sometimes one of the judges of the Court of Common Pleas : containing many choice cases, and excellent matters touching declarations, pleadings, demurrers, judgements, and resolutions in points of law, in the foure last years of the raign of King James, faithfully translated out of an exact french copie, with two alphabetical, and necessary table, the one of the names of the cases, the other of the principal matters contained in this book.

Dodderidge against Anthony, Entred Mich. 19. Jac. Rot. 1791.

ENt. Mich. 19. Jac. Rot. 1791. Peter Dodderidge brought an action of ac∣compt against one Anthony, and he declared that he de••ivered to the Defendant so many pieces of cloath, called Bridge-water red to be sold at Bilbo in Spain, and the Defendant said, that he sold the same cloath at Bilbo in Spain for 40. l. 18. s. English, to be paid in May next insuing, the sale which was in November before, and over he alledged the Custome of Merchants to be, that if any Mer∣chant had goods in the same Kingdome to be sold to another Merchant, and he sell the goods to be paid at a day to come, and this is done before a publick Notary, and thereby a Bill signed and acknowledged to him & in his name who sold the goods, and that if the Merchant who so sold the goods, delivered the Merchant who was owner of the goods, this Bill so taken in his name, this shall be a discharge to him of the goods: and he averred that he sold them to a Spanish Merchant, and that he took a Bill accordingly, and at London offered that Bill to the Plantiff, who refused that, and upon this plea the Plantiff demurred. Attoe argued that the plea is not good, because he had not alledged that the partie who takes such a Bill may plead that, and the Custome is also alledged with an (if) if the party sell, and if he take the Bill, and not with positive averment, that he may so sell and may so take the Bill, which being delivered to the owner of the goods, shall be a discharge to the factor who sold the goods: and here this custome is not good by the Common Law, for if I deliver goods to another to sell, and he sell them to be paid the money at a day to come, this is not good, for he ought by his sale to make a compleat contract: and if I sell my horse for 10. l. I may retain the horse till the money is paid, for till then the contract is not compleat; and so in this case, and here the Plantiff shall have an action of accompt upon this delivery, and if he sell them otherwise, or do not sell them for ready money, he had gone beyond his Com∣mission, and this Custome is unreasonable, that the Bill shall be taken in his name who sold the goods, but perchance if the custome had been alleadged, to take the Bill in the name of the owner of the goods, this had been good; but in our case the owner of the goods may not sue, nor have any remedy for his goods, except the factor will go into Spain and sue the said Bill, and it is unreasonable to leave this to the pleasure of my factor, whether I shall have any remedy for my goods sold, and it is very unreasonable that I shall be paid with a Bill which may not be sued, and here the Plantiff is a stranger to the Custome of Spain, and shall not be bound by that.

Serjeant Harris to the contrary: the Custome which is alledged is good among Merchants, though it is not good according to our Common Law, and so if two Merchants trade joyntly, and one of them dies before severance of the goods, yet his executor shall have his part, and not the Survivor, and so by the law of Mer∣chants a man cannot wage his law in debt upon a simple contract; by which it is apparant that the laws of Merchants differ from our laws, and indeed the laws of Merchants are National laws: and that this is the Custome in Spain is confessed by the demurrer, and then we may not examine that by the reason of our laws, and the laws of Merchants ought to be favoured for trading sake, which is the life of every Kingdome; and by the law of Merchants a Bill without seal is good, and yet by our law it is but an escrowl: and so I pray judgement for the Defendant. Hobert chief Iustice, when the Merchant had delivered goods to the factor to sell,

he had made the factor negotiator gestorum: and for that reason the factor may sell the goods without ready money, and this is good reason, for perchance the goods are of that nature that they will not keep without perishing, by which clear∣ly it appears, that if I deliver goods to another to Merchandise, and to sell, he may sell them without ready money, but if my factor or Bailiff will sell them to one which he knows w••ll prove a Bankrupt without ready money, this is not good: but secondly, he held the custome, as it is here alledged, not to be good, for then the partie shall have no remedy for his money, except the factor will go into Spain and sue the Bill, and the laws of Merchants are special laws for their benefit, and not for their prejudice: and this custome as it is alledged is too large: but if he had alledged that such Bill taken by the factor shall be as good and effectual to the Mr. as if it had been taken in his own name, this had been good, besides the custome is not good, for it is alledged to be that when the factor had delivered the Bill to the owner of the goods, this shall be a discharge to him who was the factor, and here is no time set within which this may be delivered, and so for ought is shewed it may be delivered 10. years after, which may be good; and to that which had been said, that the laws of Merchants are national laws, he denied that, for every Kingdome had its proper and peculiar laws, and though this is the law of Spain, and national to them, yet this ought to be reasonable, or else it shall not binde: and judgement was commanded to be entered for the Plan∣tiff, Hobert and Winch being only present.

It was ruled that he who had land in a parish who did not inhabit there, shall be chargable to the reparation of the Church, but not to the buying of ornaments of the Church, for that shall be levied of the goods of the parishioners, and not of their lands, by Sir Henry Yelverton, and said to be so formerly adjudged.

In trespas the Defendant pleads, that one such was possessed of a term for years, and bring so possessed by his last will and Testament devised that to the Defendant, and died, after whose death the Defendant entered, and was possessed by vertue of the devisee, upon which plea the Plantiff demurred generally: and Hutton thought this plea prima facie to be good, though the Defendant had not expresly alledged that the devisee died possessed, but his plea implies that, for he had said, that he entered by vertue of the devisee and was possessed, and this on∣ly matter of form, and not matter of substance, and no cause of general demurrer, which Winch also granted that this was also matter of form, and not matter of substance.