Peter Vanheath against Turner
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1657 |
| Date | 01 January 1657 |
| Court | Court of Common Pleas |
English Reports Citation: 124 E.R. 20
COURT OF COMMON PLEAS
peter vanheath against turner. Peter Vanheath brought an action against Turner, and declared upon the custome of merchants, that if any merchant over the sea deliver money to a factor, and make a bill of exchange under his seal, and this is subscribed by the Mr. or by any of tha company of such merchants, that the merchant himself, or all the company, or any one in particular may be charged to pay that; and he shewed that one Morgan was factor of the company of which the defendant was one; and that the said Morgan WINCH, 25. MICH. 19 JA.C. C. P. 2t did substitute one Greenway, to whom the plan tiff delivered 1001. upon a bill of exchange, to which bill one Bounder being one of the company set to his hand in England; and so the action accrewed to the plantift'. The defendant pleaded nihil debet per legem, and upon that the plaintiff demurred in law; and the question was whether the defendant may wage his law, and it was argued by Serjeant Harvey that he shall not wage his law, for this is only an action upon the case, and sounds only in nonfesance, and here is no privity between the plantiff and defendant; for the bill was made over the sea, and subscribed here in England, and he shall not charge the defendant without a special custome, so that it is plaine that it is custorae which made the defendant lyable, and if the defendant do not pay for this no action of debt lyes, but only an action upon the case : and every plea ought to conclude to the point in action : and for that in trover and conversion non culp. ia a good plea: and yet he may traverse the finding, for this tends to the issue, and is good; and so in debt upon a lease for years, nihil debet is a good plea, or non dimisit, for the cause aforesiid, but when the plea doth not tend to the point in issue, it is otherwise, for he ought to traverse that which tends to the point in issue, and in our case the defendant may traverse the custome, or give answer to the nonfesance, but he shall not wage his law ; and an action lyes upon this contract against the Mr. for this, and so he concluded that judgement ought to...
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