CASES ARGUED AND DETERMINED IN THE Court of COMMON PLEAS, AND OTHER COURTS, IN Easter Term, 1 In the Fifty-ninth Year of the Reign of GEORGE III. WATKINS . HEWLETT. 1819. April 28. THIS note, express ing a pro spective and HIS was an action for money lent, money had and A receipt for received, and on the other money counts; and a promissory upon the trial of the cause at Guildhall, at the sittings after Hilary term, 1819, before Dallas C. J., it appeared, that the Plaintiff having been charged as the putative father of a child, wherewith a pauper of the parish of Horfield was pregnant, and which was likely to be born a bastard, and to be chargeable to the executory consideration on which the money thereby 'secured is to be paid, may be given in evidence as a receipt on a receipt stamp, and does not require an agreement stamp, as evidence of a contract. If the putative father of a bastard, pay, before its birth, a fixed sum to the parish officers to discharge him of all future responsibility for the maintenance of the child, after the birth and death of the child he may recover back such part of the money as remains unexpended, as had and received to his use. 1819. WATKINS V. parish, gave the Defendant, who was then a parish officer of Horfield, his promissory note for 35., upon which the Defendant gave him a receipt, upon the apHEWLETT. propriate receipt stamp, expressing, that the Defendant had "received of the Plaintiff, a bill at two months, for 351., which, when paid, would discharge him from the expences of an illegitimate child, which was likely to become chargeable to the Defendant's parish." The Defendant negotiated this note, and received thereon the sum therein specified, and the note, when due, was paid by the Plaintiff. The child was born a bastard, and died a few days after its birth, and there was no distinct evidence, that any part of the 351. was expended by the parish, on its birth, maintenance, or burial. The Plaintiff now sued to recover the residue as money had and received to his use, upon the authority of Stainforth v. Staggs (a), and the King v. Martin. (b) Hullock Serjt. for the Defendant, contended, that the receipt offered in evidence, was offered as proof of a contract which subsisted between the parties, stipulating the terms on which the sum of 351. was paid; and that whether the paper itself contained the contract, or were only evidence of the contract, the subsisting stamp act (c), required that it should bear an agreement stamp. Dallas C. J. was of opinion, that the evidence was admissible, but reserved the objection; and there being no proof of any money expended on the infant, a verdict passed for the Plaine tiff for 354., with liberty to the Defendant to move to enter a nonsuit, if the evidence had been improperly admitted. Hullock Serjt. now moved to set aside the verdict and enter a nonsuit; he admitted, that after the cases (a) Cit. Campb. 398. n. (c) 55 G. 3. c. 184. 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, ás 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 V. HEWLETT. : B 2 1819. May 1. Where an occupier of land, who had been under composition for tithes, refused to pay the composition, or set out tithes BOWER, Clerk,, v. MAJOR. DEBT on the statute 2 and 3 Edw. 6. c. 13. s. I., 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 modus: Held, 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 com- ing that he was exempted by a modus. On the part position; the occupier's dis- of the Defendant, it was contended that the Plaintiff' claimer of the 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, sary to prove a rector's title to tithe in kind tice unneces sary. [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. 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 she had been 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. wine which The wine, which was of the best quality, having been hired to carry changed on the road, and very bad liquor substituted from one house for it, the Plaintiff brought this action on the case Court will not to another, the 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 Dallas C.J. during the Middlesex sittings after Hilary term, 1819, the jury found a verdict for the Plaintiff, with 30%. 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 the purpose of sale, and so transaction illegal under the excise laws. consider the |