CASES

ARGUED AND DETERMINED

IN THE

COURT OF KING'S BENCH,

IN

MICHAELMAS TERM,

In the Ninth Year of the Reign of GEORGE IV. — 1828.

MEMORANDA

In the early part of this term, Mr. Justice Holroyd resigned his seat in this Court. He was succeeded by James Parke of the inner Temple, Esq., who was called to the degree of Serjeant, and gave rings with the motto "Justitiæ tenax.' He took his seat in this Court on Tuesday, the 18th day of November, and was afterwards knighted. Thomas Denman, Esq., took his seat within the bar, having received a patent of precedence.

HELPS v. GLENISTER.- p. 553.

The statute 58 G. 3, c. 75, prohibits the buying of pheasants in all cases, and therefore by a contract for the sale of live pheasants, no property passes to the purchaser. TROVER for live pheasants. Plea, general issue. At the trial before Holroyd, J., at the Summer assizes for the county of Bucks, 1828, the following appeared to be the facts of the case: The plaintiff was a dealer in pheasants residing at Bayswater. The defendant was a breeder of pheasants residing in Buckinghamshire. In October, 1827, the plaintiff went to the defendant to purchase some live pheasants, which were kept in pens. He agreed to purchase twenty-seven old birds at the rate of 51. 108. per score, and paid for the same; and the defendant agreed to keep them at 2d. per head per week, until the plaintiff should take them away. The plaintiff afterwards agreed to buy 100 young birds at 47. per score, and paid 2s. 6d. as a deposit, and the defendant agreed to keep them at the same rate, until such time as the plaintiff could conveniently take them away. Three-fourths of the young birds were hens, which bear a higher price than cocks, being more valuable for breeding, and the price was calculated accordingly. The plaintiff afterwards took away the twenty

seven old pheasants and thirteen young ones, and subsequently demanded the remaining eighty-seven, and tendered the plaintiff the price agreed upon. The defendant refused to deliver them. The learned Judge was of opinion that the buying of these pheasants was prohibited by the statute 58 G. 3, c. 75, and that no property, therefore, passed to the plaintiff by the contract of sale. The plaintiff was, therefore, nonsuited.

B. Monro now moved to set aside the nonsuit. It must be conceded that if the purchasing of these pheasants be prohibited by the statute 58 G.3, c. 75, the plaintiff cannot maintain the action. By former statutes for the preservation of game, the selling of game was prohibited in certain cases, and the statutes on this subject were passed in order to prevent the destruction of game. The purchasers of live pheasants for the purpose of breeding are not within those statutes. The 2 Jac. 1, c. 27, s. 4, enacts, that every person who shall sell or buy to sell again any deer, hare, partridge or pheasant (except partridges and pheasants reared and brought up in house or houses, or brought from beyond seas), shall forfeit for every deer, hare, or pheasant so bought 208.

The statute 5 Anne, c. 14, after reciting that the existing laws were insufficient to prevent the destruction of game, by reason of the multitude of higlars and chapmen who encouraged idle persons to neglect their employment, to destroy the same, enacted by s. 1, that all the laws then in being for preservation of game not thereby repealed, should continue in force. S. 2 prohibits any higlar, chapman, &c., from selling any pheasant, &c. The exception in s. 4 of 2 Jac. 1, c. 27, not being repealed, was, therefore, continued by the express words of s. 1 of stat. 5 Anne, c. 14. The statute 28 G. 2, c. 12, was passed to remove doubts as to the meaning of the word chapman, and left the law in other respects as it was before. If that be so, the selling of pheasants reared in houses was not prohibited before the stat. 58 G. 3, c. 75. Now that stat. is entitled an act for the more effectual prevention of offences connected with the unlawful destruction and sale of game. It assumes, therefore, that there may be a lawful sale of game. This statute for the first time makes the buying of a hare, pheasant, &c., an offence. It recites, that selling game was already prohibited, and proceeds to subject the party buying to a penalty. But the buying is only made an offence in those cases where the selling would have been an offence before, and the selling pheasants reared in houses was not prohibited. Here it was proved that the defendant was a breeder of pheasants, and that the pheasants in question were openly exposed for sale by him in pens. It was therefore fair to presume that they were reared in a house by him. But supposing the purchase in this instance to have been within the words, it was not within the spirit of the statute, which was passed to prevent the destruction of game, whereas the object of the parties here was its preservation, the pheasants having been purchased for breeding, and a higher price paid for the hen birds with that view. In Bridger v. Richardson, 2 M. & S. 568, it was held, that the 3 Jac. 1, c. 12, which prohibits persons from "willingly taking, destroying, or spoiling any spawn, fry, or brood of any sea fish in any wear, or other engine or device whatsoever," did not comprehend shell fish, and if it did, it meant a taking for destruction, and not a taking of oyster spawn for the purpose of removing it to beds for further growth and maturity, to make it marketable.

Lord TENTERDEN, C. J. The exception in the statute of 2 Jac. 1, c. 27, s. 4, is not incorporated in the statute 5 Anne, c. 14, or the 28 G. 2, c. 12, which statutes prohibit the selling and offering to sale of any game,

or in the statute 58 G. 3, c. 75, which makes the buying of game an offence. The language of the 58 G. 3, c. 75, is general, and the exception in the statute 2 Jac. 1, c. 27, seems to be done away with. But if it could be engrafted on the statute 58 G. 3, c. 75, it would have been incumbent on the plaintiff to have proved at the trial that the pheasants purchased by him had been reared in a house, or brought from beyond the seas. There was no proof at the trial to bring the case within the words of that exception; I think, therefore, that in either view of the case the nonsuit was right.

Rule refused.

WHITNASH and Another v. H. GEORGE and B. GIFFORD.

p. 556.

In an action upon a bond given to bankers, conditioned for the fidelity of a clerk, entries of the receipt of sums of money made by the clerk in books kept by him in the discharge of his duty as clerk, are, after his death, evidence against his sureties of the fact of the receipt of the money.

DEBT on bond, dated the 6th of October, 1824. The defendant George suffered judgment by default. The defendant Gifford craved oyer of the bond and condition. The condition, after reciting that the plaintiff's had taken one Samuel Pitman into their service as a clerk, and that H. George and R. Gifford had agreed to enter into the bond for his fidelity in the said employ, was that Pitman should from time to time, and at all times, so long as he should be in the service of the plaintiffs, well, and truly, and faithfully, account for, pay over, and deliver unto the plaintiffs, their executors, &c., or to such other person or persons as they, or any or either of them, should direct, all sums of money, books, papers, matters, and things of or belonging to the plaintiffs, which should at any time, and from time to time, be received by, or come to the hands of him, the said S. Pitman, and also did and should act and conduct himself, at all times, with fidelity, integrity, and punctuality in and concerning the matters and things which should or might be reposed in or intrusted to him as such clerk as aforesaid. Plea, that Pitman 'did from time to time, and at all times, so long as he continued in the service of the plaintiff, well, truly, and faithfully account for, pay over, and deliver unto the plaintiffs all sums of money, books, papers, matters, and things belonging to the plaintiffs, which at any time, and from time to time, was or were received by, or came to the hands of him, Pitman; and act and conduct himself at all times with fidelity, integrity, and punctuality, in and concerning the matters or things which were reposed in or intrusted to him as such clerk as aforesaid. Replication, that during the said time that Pitman so remained in the said service of the plaintiffs as such clerk, to wit, on the 7th of October, 1824, he, Pitman, as such clerk, had and received, for and on account of the plaintiffs, divers sums of money, amounting to 20007., belonging to the plaintiffs, yet Pitman, although often

requested, had not accounted for or paid over the same, or any part thereof, to the plaintiffs. Rejoinder, that Pitman did not as such clerk have or receive, for and on the account of the plaintiffs, the said sums of money in the replication mentioned, or any part thereof. At the trial before Littledale, J., at the Summer assizes for the county of Somerset, 1828, it appeared that the plaintiffs were bankers at Yeovill, in Somersetshire; and that Pitman became their clerk in October, 1824, and continued to act as such until February, 1826, when he died. It was his duty, as such clerk, to keep the plaintiffs' books. In order to prove that Pitman was indebted to the plaintiffs at the time of his death, on account of money received by him in his character of clerk, the plaintiffs produced the book kept by him, in which there were entries in his hand-writing of various sums of money received by him during the time he continued in their service as clerk. It was objected, that although these entries would have been evidence against Pitman, they were not evidence against the defendants, who were his sureties. The learned Judge received the evidence, and directed a verdict to be found for the plaintiffs, but reserved liberty to the defendants to move to enter a nonsuit.

Merewether, Serj., now moved accordingly. The entries in the books were not admissible in evidence against the defendants. They were not the best evidence of the money having been received by Pitman. The parties who paid the money to him might have been called. In Cutler v. Newlin, Mann. Dig. 137, on the execution of a writ of inquiry under the 8 & 9 W. 3, c. 11, on an indemnity bond, an admission by the principal of the amount of the damnification was considered by Holroyd, J., inadmissible, and the amount was proved aliunde. In Goss v. Watlington, 3 Brod. & Bingh. 132, the Court of Common Pleas held, that in an action against a surety who had entered into a joint bond with his principal on his appointment to a public office, conditioned for payment of all moneys received, and further, that the principal should from time to time enter into certain books all moneys by him received, entries in such books by the principal were after his death evidence against the surety. But the decision in that case proceeded on the ground that the books were public books.

Lord TENTERDEN, C. J. It appears by the recital in the condition of the bond, that the plaintiffs had agreed to take Pitman into their service as a clerk, and that the defendants had agreed to become bound for his fidelity in the said employ; and the condition was, that Pitman should well and truly account for, pay over, and deliver to the plaintiffs, or to such other persons as they should direct, all sums of money, books, papers, matters, and things belonging to the plaintiffs, which should come to his, Pitman's, hands. The defendants plead general performance. The plaintiffs reply, that Pitman, as such clerk, had received, for and on account of the plaintiffs, divers sums of money belonging to the plaintiff's and had not accounted for or paid over the same to the plaintiffs. The defendants rejoin, that Pitman did not, as such clerk, have or receive, for and on the account of the plaintiffs, the said sums of money in the replication mentioned; and upon that allegation issue is joined. It lay upon the plaintiffs, therefore, to show that Pitman did have and receive sums of money for which he had not accounted. In order to prove that fact, the plaintiffs produced the books kept by Pitman in discharge of his duty as their clerk. Those books contained entries made by him, whereby he

charged himself with various sums as having been received by him on account of the plaintiffs. The question, therefore, is, whether those entries be evidence after his death against the defendants, who bound themselves to the plaintiffs, that he should faithfully discharge his duty as clerk, and account to the plaintiffs or to their nominee. I think those entries whereby he charged himself with sums of money as having been received by him for the plaintiffs were admissible in evidence against the defendants in an action on the bond, whereby they became bound that Pitman should faithfully discharge his duty as clerk. It is part of the duty of a banker's clerk to make entries (in the books kept by him) of all sums of money received by him for his employers. Such entries made by the clerk must, as against his sureties, who contracted for the faithful discharge of his duty, be taken prima facie to have been made by him in discharge of that duty. I think, therefore, that in this action the entries made by Pitman, (in those accounts which it was his duty as the clerk of the bankers to keep,) whereby he charged himself with the receipt of sums of money, were after his death admissible evidence of those sums having been received by him, not altogether as declarations made by him against his interest, but because the entries were made by him in those accounts which it was his duty as clerk to keep, and which the defendants had contracted that he should faithfully keep,

BAYLEY, J. The foundation of the decision in Goss v. Watlington, 3 Brog. & Bingh. 132, was, that the entries made by the collector were admissible, not merely as a declaration made by him against his interest, but on the ground that they were entries in those very books, which by the condition of the bond the principal was bound faithfully to keep. The entries were evidence against the surety, because they were made by the collector in pursuance of the stipulation contained in the condition of the bond. That case in principle is the same as the present.

Rule refused.