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1822.

COSTER

MEREST.

them; and submitted, that although the Court would not in general receive affidavits of jurors as to the grounds of their verdict, still that as the present application was founded on the affidavit of the plaintiff alone, unsupported by any other, and as he had made a pointed allusion to the jury, their affidavits ought to be received in this particular instance. The letters written by Hance were admissible, to shew that no consideration had passed between him and the defendant, as the drawer and acceptor of the bills. It was therefore incumbent on the plaintiff, as indorsee, to prove what consideration he had given for them; and more particularly so, as the defendant had given him notice so to do. The letters were equally admissible in this case as in Kent v. Lowen, without calling the drawer himself; as there they were received in evidence to shew an usurious consideration for the note; and here they were adduced to shew that there was no consideration as between the drawer and acceptor, under the former of whom the plaintiff claims. At all events, there was enough suspicion in the case to call on the plaintiff to shew what consideration be gave for the bills; for the cases of Rees v. The Marquis of Headfort (a), and Paterson v. Hardacre (6), have established the priociple, that in an action by the indorsee of a bill, if it appear that a prior party has been defrauded of it, the plaintiff must be prepared to prove under what circumstances, and for what value, he became the holder, if he has previous notice so to do.

Lord Chief Justice DALLAS.-This case embraces a question of delicacy and novelty, as the plaintiff, by his affidavit, calls on the jury in terms, to say whether

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1822.

Coster

MEREST.

they were influenced or not by the handbills which were circulated at the trial. It is a fundamental rule, that a cause should proceed with the utmost impartiality. I remember a case at Maidstone, where a printed report of the trial had been circulated before the cause was tried, and it was accordingly put off. Here however, the application is made after verdict, and tends to impeach the character of the jury; as if they had seen the handbills in question at the trial, they should have said so before they proceeded to give their verdict. Still, however, it would be a dangerous precedent to allow their affidavits to be received; or to assume for a moment that they had acted under influence or prejudice. I thought there was sufficient suspicion in the case to throw the onus on the plaintiff, to prove what consideration he gave for the bills; and more particularly so, as the defendant had given him notice so to do. On that point, however, I forbear to express an opinion; but, under all the circumstances, I think there should be a new trial, when some further light may be thrown on the publication of the handbills in question.

Mr. Justice PARK.-The case of Kert y. Lowen is not to be considered as a mere nisi prius authority. I contended there, that the letters offered in evidence were not admissible, as they were not upon oath, and might have been collusively written: and I afterwards' moved the Court for a new trial, which was refused;

; as the letters, from their dates and postmarks, appeared to be contemporaneous with the making of the note.

Mr. Justice BURROUGH.--If the jury have found a corrupt verdict, they are liable to an attaint. Still, however, their conduct ought not to be impeached on

1822.

an application of this nature; and it might tend to the most pernicious consequences if the Court were to allow their affidavits in answer, to be received or filed.

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Mr. Justice RICHARDSON concurred.

Rule absolute (a).

(a) See Owen v. Warburton, 1 New Rep. 326. Hindle v. Birch, Ante, Vol. I. 455. Jackson v. Williamson, 2 Term Rep. 281.

GIDLEY, Executor, &c. v. LORD PALMERSTON, Friday,

May 17th. This was an action of assumpsit, brought by the An action of plaintiff as executor of Christopher Holland, deceased, assumpsit cauagainst the defendant. The first count of the declara- tained against

the Secretary tion stated, that the said Christopher Holland had been at War by a reone of the established clerks in a certain public office the War Ofice, or department in the united kingdom, called the War for his retired

allowance, alOffice; and before the time of the promise mentioned though such alin the said first count of the declaration, had been per- included in the mitted to retire from such office, and as such retired yearly esti

mates, drawn clerk, had been allowed, and was duly entitled to re- for by such Se

cretary, and receive, from the public monies of the united kingdom, ceived by him the sum of 2001. in each and every year, as a compen- such specific al

as applicable to sation, or retired allowance, for his services as such low

the grounds that clerk as aforesaid ; and that the defendant, at the time the Secretary is of making such promise, was the Secretary at War, onlychargeable and as such was at the head of the said War Office; and official chathat the several sums of money necessary for the pay- that an action

cannot be main. ment of allowances or compensations granted, as re- tained against

him as such, for any thing done by him in that character, although it may amount to a breach of employment, and constitute a particular and personal liability; as it would tend to expose him to an infinite number of actions, to be brought by any persons who might suppose themselves aggrieved.

1822.

GIDLEY

LORD

tired allowances, to any person having held any employment in the War Office, were, in every year,

amongst other sums of money, placed by act of parPalmerston. liament at the disposal of the Secretary at War for the

time being, to enable him to defray the charges of such compensations or retired allowances; and it was his duty to pay them over, or permit them to be received by the persons respectively entitled to receive the same; that the sum of 2001. the retired allowance which the said Christopher Holland was annually entitled to receive, had been in the respective years 1816, 1817, and 1818 (amongst other things) duly voted and granted by act of parliament for the due payment of the said allowance to the said Christopher Holland, as such retired clerk; and had been and was in the same years respectively placed by act of parlia. meut at the disposal of the defendant, as the Secretary at War for and during those years respectively; whereupon it became the duty of the defendant, as such Secretary at War, in each of the said years, to have paid over, and to have suffered the said Christopher Holland to receive the said 2001. in each of those years; that the sum of 600l. being due and unpaid for the amount of the said retired allowance for the three several years aforesaid, the defendant, in consideration thereof, undertook and promised the said Christopher Holland, in his lifetime, to pay over to bim, or to permit him to receive the said sum on request; and then averred a breach of the promise, viz. that the defendant would not pay over to the said Christopher Holland in his lifetime, nor to the plaintiff, as his executor, since his death ; neither would he suffer the said Christopher Holland in his lifetime, nor the plaintiff, as such executor, since his death, to receive the said sum; but that the same was still wholly unpaid.

There were also counts for money had and received 1822. to the use of the testator, andon an account stated. The

GIDLEY defendant pleaded the general issue; and at the trial

LORD of the cause before Lord Chief Justice Dallas, at West- PALMERSTON, minster, at the Sittings after Hilary Term, 1820, a verdict was found for the plaintiff, 3501. 10s. damages, subject to the opinion of the Court on the following case :

Christopher Holland, the testator, had been for many years during his life, one of the established clerks in the War Office; and on the 9th March, 1815, obtained leave to retire from his situation, and, upon the recommendation of the Secretary at War, and by the authority of the Lords Commissioners of his Majesty's Treasury, was placed upon the list of retired established clerks of the War Office, with an allowance of 2001. a year, commencing from the 3d of the same month of March inclusive, and which allowance was granted to him with due observance of the provisions of the statute 50 Geo. 3. c. 117. Holland continued apon such list of retired established clerks from the said 3d March, 1815, until the 25th August, 1818, when he died, having first made his will, and appointed the plaintiff his executor, who after his death duly proved the same. The defendant, during the whole of the said period, and at the time of the commencement of this action, was his Majesty's Secretary at War. The mode in which the compensations, or retired allowances, granted to the retired clerks at the War Office, are provided, is as follows:-Estimates are prepared in every year, entitled “ Estimates of Army Services," containing separate estimates of all the allowances, compensations, and emoluments, in the nature of any superannuation or retired allowances, to any persons, in respect of their having held any public offices or employments of a civil nature, and prepared agreeably to the act 50 Geo. 3, c. 117. These estimates are laid

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