bound in an obligation to one Hyckman, and in the obligation he was called John Shotbolt, which was a mistake. But William Shotbolt, well perceiving his misnomer, sealed and delivered the bond as his deed. In debt brought upon this bond against him by name of William Shotbolt, otherwise called John Shotbolt, he pleaded non est factum; and this special matter was found by verdict. Whether he should be charged by this bond and plea, was the doubt. The postea was special; and Per Curiam-"The plaintiff shall not recover upon this verdict, but it had been better for him to have brought the action by the name of John, as he is named in the bond, and then if he had appeared to it, and pleaded as above, non est factum, he should be concluded by the bond."

So, in Watkins v. Oliver,(1) in error. The plaintiffdeclared in debt against Edmund Watkins, otherwise Edward Watkins, that he, by the name of Edmund, was bound in an obligation for the payment of one hundred pounds, and for non-payment the action was brought. The condition was, that Roger Watkins pay fifty pounds to the plaintiff at such a day. The defendant pleaded payment by Roger Watkins, at the day; and issue being taken thereupon, it was found for the plaintiff, and judgment accordingly. Error was brought, for that Edward Watkins is obliged, and Edmund is sued, which cannot be intended one and the same person; and no averment can help it, for one cannot have two christian names, and there cannot be any estoppel. And of that opinion were all the judges. But if the condition had been, if Edward Watkins paid the fifty pounds, and the issue had been that the said Edward Watkins paid, and the verdict had found for the plaintiff, then the verdict should make it an estoppel; and the court should be ascertained that they were one and the same person. But as it is here

(1) Cro. Jac. 558.

a stranger paying the sum which is so found, it cannot help the plaintiff. Wherefore, for this cause, the judgment was reversed.

And in Maby v. Shepherd.(1) Debt upon an obligation for forty pounds, by Edmund Shepherd. The defendant demanded oyer of the deed and of the condition which was entered in hæc verba "noverint universi per præsentes me Edwardum teneri, &c. in forty pounds," and he subscribed it by the name of Edmund Shepherd, which was his true name. The defendant pleaded non est factum testatoris. The jury found that it was the deed of the said Edmund Shepherd the testator. It was moved, that notwithstanding the verdict is found for the plaintiff, yet the judgment ought to be given against the plaintiff, for he declares upon a bond of Edmund Shepherd, and shows a bond of Edward Shepherd, which is another person; and they never were the same, but distinct names. And although it be subscribed by the name of Edmund, yet that is no part of the bond; which being apparent to the court, the plaintiff cannot have judgment. The whole court were of that opinion; and although the jury found it to be the deed of the said Edmund, yet that would not help it, for he ought to have brought his action according to the bond.

In Bright v. Eynon.(2) Action by the plaintiff, as executor of one Hannah Crisp, upon a promissory note by the defendant to the testatrix. The defendant set up a discharge, in writing, by the testatrix. The body of the discharge was all his own hand; but he called two witnesses who said they believed the name Hannah Crisp subscribed, to be the hand of the testatrix; but their knowledge of her hand was very slight, one of them having only seen her sign a receipt. It appeared from the report, that there were conceded facts sufficient to induce the jury to draw the con

(1) Cro. Jac. 640.

(2) 1 Burr. 390.

clusion of law, that the discharge was fraudulent and void: they, however, found for the defendant. Motion for a new trial, on the ground that the jury found against legal conclusions, directly inferable from the facts. Lord Mansfield, after expatiating at large upon the utility and practice of granting new trials, consented to a new trial, the other judges concurring, observing-"What I go upon is the apparent manifest fraud and imposition in obtaining the discharge from the testatrix, if she really signed it. Fraud or covin may, in' judgment of the law, avoid every kind of act. What circumstances and facts amount to such fraud or covin, is always a question of law. The writing upon the face of it speaks imposition. It purports being for consideration. She releases the principal, in consideration of £5 per cent. during her life, which is only legal interest, and the precise rate he was obliged to pay by his note.-I left the question of fraud to the jury, without any express direction that the circumstances spoke fraud apparent."

So, in Edie v. East India Company, (1) in assumpsit on two bills of exchange by the endorsers. Both bills were endorsed by the payee; but the words "or order" were originally omitted in the endorsement of one of them. On the first bill there was a verdict for the plaintiff, and on the second, for the defendant. It was now moved to set aside the verdict found for the defendant, on the ground that the jury had found directly contrary to the settled law, and had founded their verdict upon the custom of merchants, of which evidence was improperly permitted to be given at the trial; for the custom of merchants is part of the law; and the law being fully settled on this point, no evidence in contradiction to it ought to have been admitted, nor could any finding of a jury alter it. Lord Mansfield-"I thought at the trial, that the defendants might be at liberty to go

(1) 2 Burr. 1216. Ante, 169.

into the usage of merchants upon this occasion.-I told the jury, that by the general law, (laying the usage out of the case,) the endorsement would follow the nature of the original bill, and be an absolute assignment to the endorsee or his order. And after having told them that this was the general law, then I left to them upon the particular evidence of the usage that had been laid before them. Since the trial, I have looked into the cases, and have considered the thing with a great deal of care and attention, and thought much about it, and I am very clearly of opinion, that I ought not to have admitted any evidence of the particular usage of merchants in such a case, for the law is already settled."(1)

And, in Hodgson v. Richardson, (2) where the jury found a verdict for the insured against an underwriter-though a material fact as to the commencement of the voyage was not disclosed, and therefore the contract different. Lord Mansfield, for this cause directing a new trial, took this distinction" The question is, whether here was a sufficient disclosure; i. e. whether the fact concealed was material to the risk run. This is a matter of fact; and if material, the consequence is matter of law, that the policy is bad."

In Tindal v. Brown.(3) Action on a promissory note, against the endorser. The reasonableness of the notice of non-payment to the endorser, became the most material question. Two juries had found for the plaintiffs, on the ground of the notice having been sufficient. It was now moved, that the second verdict should be set aside, as against law. Erskine, for the plaintiffs, admitted that it was not now to be disputed, that what should be considered to be a reasonable time was a question of law; but contended that in this case the plaintiffs had used due diligence, and relied

(1) Et vide, 2 Burr. 931. (3) 1 Term Rep. 167.

(2) 1 W. Blacks. 463.

upon the fact that the sum in controversy was small. The counsel for the defendant were stopped by the court, who referred to their former decision, and added-"That though it was true, in general, that the court would refuse to grant a new trial when the sum in litigation was small, yet that rule did not apply where a verdict had been given against law." On the third trial, a special verdict was found, containing the same facts, on which the court gave judgment for the defendant; and that judgment was afterwards unanimously affirmed in the Exchequer Chamber.(1)

So, also, in Farrant v. Olmius.(2) Covenant by lessor against lessee. The lease set out in the declaration contained, besides a common reservation of a certain fixed annual rent, the following redendum-"Yielding and paying the further yearly rent of £50 for every acre of the lands and hereditaments thereby demised, except certain fields mentioned in the former reservation, which the said defendant should plough, dig up, or convert into tillage. There were also covenants for repairing, and for delivering up the premises in repair. The judge directed the jury to find such damages for the breach of the covenant to repair, as in their judgment would be a compensation to him for the actual damage he had thereby sustained; and as to the other breaches, he directed the jury, that the plaintiff was entitled to recover damages at the rate per annum mentioned in the redendum. The jury brought in a verdict for £1100 damages, and being desired by the learned judge to specify how much they allowed for the repairs, and how much for the land, they stated that they found £500 damages for the repairs, and £600 in respect of the injury done to the land. A rule nisi was obtained for a new trial, on the ground that the jury were bound to give

(1) Vide 2 Term Rep. 186. 3 Burr. 1663.

(2) 3 Barn. & Ald. 692.