above cited, he could not contend that the action was not maintainable, but he renewed the objection, that this paper was offered as evidence of a contract, and, therefore, ought to have been marked with an agreement stamp; to make it admissible in evidence merely as a receipt, it ought not to contain any thing beyond the bare fact of payment of the money. PARK J. This objection would in all cases confine the use for which a receipt can be produced in evidence to the bare fact of the payment of a sum of money, excluding all evidence of the consideration on which it was paid. BURROUGH J. The right to recover this money proceeds not on any contract, but on the facts which have subsequently to this payment occurred, the birth and death of the infant. Suppose there were a receipt for 5007. for building a house, or for a house to be built, would that be incapable of being produced in evidence, as being proof of an agrement? RICHARDSON J. The objection goes to this extent; that if in any case a receipt notices the terms or consideration of the payment, it requires an agreement stamp. This action proceeds not on any agreement contained in this paper, but on the ground that upon the facts of this case a part of this money is become recoverable by the law of the country. The receipt merely shews the money to have been paid on account of the maintenance of a bastard child. The doctrine contended for would go to this extent, that a receipt must never express any thing except the bare fact of payment of a sum of money. Rule refused.: 1819. WATKINS บ. HEWLETT. 1819. May I. cupier of land, tithes, refused modus: Held, BOWER, Clerk, v. MAJOR. Where an oc- DEBT on the statute 2 and 3 Edw. 6. c. 13. s. 1., by the Plaintiff as rector of the parish of Staple Fitzpaine, against the Defendant, as the occupier of lands in the same parish, for the treble value of tithes which the Defendant had omitted to set out. On the trial before Best J. at the Somersetshire spring assizes, 1819, it apin kind, alleg-peared that the Defendant had at one time paid the ing that he was Plaintiff a composition for all his tithes, that for two years exempted by a preceding the trial, he had again paid his tithes in kind, that in an ac- except the tithe of hay; which he had not paid, either tion on 2 and in kind or by composition. There was no evidence of 3 Edw. 6., for the treble value any determination of the composition as to the tithe of the tithes, it of hay, either by agreement or notice; but the Plainwas not neces- tiff's proctor proved that the Defendant had refused notice to deter- for the two last years to set out the tithe of hay, insistmine the coming that he was exempted by a modus. On the part position; the of the Defendant, it was contended that the Plaintiff was not entitled to recover, without giving evidence of a notice to determine the composition.. But Best J. rendering no having likened this to the case of landlord and tenant, [where, if there is evidence that the tenant has disclaimed his landlord's title, the landlord may recover in ejectment, without proving a notice (a) to quit,] the jury found a verdict for the Plaintiff. sary to prove a occupier's disclaimer of the rector's title to tithe in kind tice unneces sary. Pell Serjt. now moved for a rule to shew cause why a new trial should not be granted, on the ground, that whatever the rule might be in ordinary cases between landlord and tenant, in a penal action like the present, the Defendant ought not to be concluded by mere evidence of a conversation, in which he had spoken of a modus; but that a notice to determine the composition ought to have been distinctly proved. The point, he said, was quite new, and he could find no case on the subject. DALLAS C. J. We cannot distinguish this from the case of landlord and tenant, the principle is quite clear. The rest of the Court concurring, Pell took nothing by his motion. 1819. BOWER v. MAJOR. TOUSSAINT v. DARBON. May 1. changing on wine which she had been hired to carry from one house to another, the Court will not THE Plaintiff had employed the Defendant, a wine In an action cooper, to convey, for certain hire to be therefore against a winepaid to the Defendant, a quantity of wine, part of the Cooper, for Plaintiff's private stock, from the house of Starling the road at Highgate, to the house of Rice in Jermyn Street. The wine, which was of the best quality, having been changed on the road, and very bad liquor substituted for it, the Plaintiff brought this action on the case against the Defendant, for a breach of duty, alleging presume that that she had converted the wine to her own use, and the wine was substituted other wine for it. At the trial before the purpose of Dallas C. J. during the Middlesex sittings after Hilary term, 1819, the jury found a verdict for the Plaintiff, with 301. damages. Lens Serjt. now moved to enter a nonsuit, on the ground, that under the excise laws, especially 26 G. 3. c. 59. wine could not be moved for the purpose of sale, B 3 from removed for sale, and so transaction illegal under the excise laws. consider the 1819. TOUSSAINT ข. DARBON. from one private stock to another, by any but a licensed dealer, or by an auctioneer for the purpose of being sold by auction. If the wine to be removed were a gift, a permit might be procured, but never where the removal took place upon a sale, except as before stated. By the 8th and 9th sections of the act, wholesale dealers were obliged to take out a licence, and by the 11th, retail dealers also. Here, there was neither licence nor auction. The Plaintiff, however innocently, sold, and ordered the wine to be removed contrary to the regulations of the wine laws. This, therefore, was an illegal transaction, and both parties being in pari delicto, the Plaintiff could not recover. DALLAS C. J. Where do you find that the wine was removed on sale? there was no evidence to that effect. The whole history of the wine was clearly traced. It was shewn that a merchant had taken it out of the king's warehouse, and had regularly paid the duty. The merchant, being about to quit business, proposed to send some of the wine to a friend at Hampstead. The gentleman at Hampstead, afterwards disposed of it to the Plaintiff, who employed the Defendant to remove it to the house of Rice in Jermyn Street, the Defendant engaging to procure the proper permits. There was no evidence of any sale by the Plaintiff to Rice, though there might be such a presumption. The Plaintiff had nothing to do with the importation, and there was no breach of the revenue law. BURROUGH J. The case has nothing to do with the excise laws. PARK J. I am of the same opinion. But I think, my Lord's candor has gone too far in presuming that this 12 this was a sale, when as a gift, it might be legally removed. RICHARDSON J. A gift of the wine would be lawful. Why are we to suppose that this wine was sold, rather than given? Rule refused.. 1819. TOUSSAINT V. DARBON. GODSON, Gent. v. HOME. May 1. written a let whom it was addressed for employing the Plaintiff to sue, added, "If attorney, who ACTION for defamation. Upon the trial of the The Defendcause at the Worcester Spring Assizes, 1819, be- ant having fore Richardson J. it appeared, that Nash having ter, blaming employed the Plaintiff to sue Giles, executor of the person to Wilder, the Defendant wrote to Nash in the following terms: "Sir, To my great astonishment, Mr. Giles informs me, that you have employed Mr. Stephen Godson of Worcester, to trouble him for the you will be debt due to you from the estate of Mr. Wilder." The misled by an writer, after advising Nash at some length to desist from this action against Giles, proceeded as follows: "If you will be misled by an attorney, who only considers his own interest, you will have to repent it: you may think, when you have once ordered your think, when attorney to write to Mr. Giles, he would not do any dered your atmore without your further orders, but if you once torney to write set him about it, he will go to any length without to Mr. B., he further orders." Richardson J. left it to the jury to consider, whether the expressions above cited, were out your fur only considers his own interest, you will have to repent it. You may you have or would not do any more with ther orders; but if you once set him about it, he will go to any length without further orders." Held, in an action for defamation, that the jury were properly directed to consider whether these expressions were meant of the profession in general, or of the Plaintiff in particular; and that it was not necessary to leave it to them to consider whether this was a confidential communication, or a malicious attack on the Plaintiff's character. |