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fire must be an act done with the intention, or calculated to have the effect of injuring others.

Merewether Serjt. and Follett now shewed cause. After verdict it must be presumed, that the words spoken were used by the defendant in the sense charged by the innuendos in the declaration, viz. that they were intended to impute to the plaintiff, that he had been guilty of wilfully setting fire to his own premises; and then Peake v. Oldham (a) shews, that after verdict the declaration is sufficient. Lord Mansfield there said, "that the word guilty implied a malicious intent, and could be applied only to something which was universally allowed to be a crime." [Parke J. The words may have been used in the sense charged in the innuendo without imputing to the plaintiff any crime, for he may have set fire to his own house wilfully without any intention to injure or defraud others. Patteson J. The act of setting on fire his own house may have been wilful, though not unlawful or criminal. It would not be sufficient in an indictment for such an act, to allege merely that the defendant had wilfully set fire to his house.] The defendant, after verdict, must be taken to have imputed to the plaintiff that he was guilty of having wilfully set his house on fire, and the Court, therefore, will presume all circumstances which were necessary to constitute the wilful burning a crime in point of law; viz. either that the house was insured, and that the intent was to defraud the insurers, in which case, it would be a statutable felony, by 7 & 8 G. 4. c. 30. s. 2.; or, that it was situate in a town, in which case, the setting it on fire would

(a) 1 Cowp. 278.

1833.

SWEETAPPLE against JESSE.

1833.

SWEETAPPLE against JESSE.

have been a misdemeanour at common law, Hawkins's P. C., Book 1. c. 39. s. 15. It is sufficient, after verdict, if the charge made by the defendant is consistent with the guilt of the party. In a note to 1 Wms. Saunders 228.a., it is said, that where in debt for rent, by a bargainee of a reversion, the declaration omitted to allege the attornment of the tenant, which, before the statute 4 & 5 Anne, c. 16. s. 9., was a necessary ceremony to complete the title of the bargainee, and upon nil debet pleaded, there was a verdict for the plaintiff, such omission was cured by the verdict by the common law, Hitchens v. Stevens (a). [Patteson J. The

29.417 judgment in that case proceeded on the ground, that if the plaintiff had not given the attornment in evidence, he must have been nonsuited, and the rule there laid down is, that wheresoever it may be presumed that any thing must of necessity be given in evidence, the want of mentioning it in the record will not vitiate it after verdict; but Jackson v. Pesked (b), and the authorities there cited, shew that the plaintiff is only bound to prove what the allegations in his declaration necessarily require to be proved.]

DENMAN C. J. After a verdict for the plaintiff, the Court are bound to presume all matters which it was necessary for him to prove in support of his declaration. Here the plaintiff was bound to prove that the words were spoken with the intent to impute to him that he had wilfully set fire to his house; but that is not necessarily a crime, and therefore the words, though spoken with that intent, are not actionable.

(a) 2 Show. 233. Sir T. Raym. 487.

(b) 1 M. & S. 234.

LITTLE

LITTLEDALE J. After verdict for the plaintiff, the Court must presume such matters as it was necessary for him to prove, in order to support the allegations in his declaration. Now, here the plaintiff was bound to prove that the words spoken were intended to impute to him that he had wilfully set fire to his premises; but it is possible that he may have done such an act with an innocent purpose. Such an act is only a crime punishable by law under certain circumstances; and, it not being averred that the words were intended to impute that the plaintiff had done the act under such circumstances, the words spoken do not necessarily import that he had committed any offence, and are not actionable: consequently the judgment must be arrested.

PARKE J. I am of the same opinion. If the house of the plaintiff was contiguous to others, it might have been a misdemeanour at common law for him to set it on fire; but if the words in the declaration were spoken with an intent to impute that offence, it ought to have been averred that the house was contiguous to others. So, if his house was insured, and the words were spoken, with intent to impute to him, that he had set it on fire with intent to defraud the insurers, it ought to have been averred on the record, that the house was so insured, and that the words were spoken with that intent. Nothing of that sort is stated. There is nothing to shew that any offence was charged. After verdict, the rule is, as stated by my Brother Littledale, that those things must be taken to have been proved, which were necessary to support the averments in the declaration. If the declaration had alleged an intention

to

1833.

SWEETAPPLE against JESSE.

1833.

SWEETAPPLE
against
JESSE.

to impute by the words, that the plaintiff had been guilty of wilfully setting fire to his premises, under circumstances which would have made it a crime, then, after verdict, it must have been presumed that the words were proved to have been used in that sense.

PATTESON J. concurred.

Rule absolute.

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Thursday,
May 23d.

WILLIAMS against JARRETT.

In the stamp ASSUMPSIT by indorsee against drawer of a bill

act, 55

c. 184. Sche-
dule, Part 1.
(title Bill of
Exchange),
which imposes

a certain duty

on bills "ex-
ceeding two
months after

date;" the date
means the time
expressed on

the face of the
bill, not the

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of exchange for 90l., payable two months after

date to John Harris or order. Plea, the general issue. At the trial before Patteson J. at the Bristol Summer

assizes 1832, it appeared that in July 1831, Harris, having a demand on the defendant for wheat sold to him, wrote the bill in question on a three-and-sixpenny stamp, and sent it to the defendant for signature. It was dated August 1, 1831. The defendant signed and returned it to the messenger. This occurred at least a by sect. 12. if a week before the 1st of August. On that day, Harris bill purporting sent the bill, indorsed by him, to the plaintiff, who gave him the money for it. It was objected, on behalf of

time when it

actually issued.

And although

to be payable

at two months

from a certain

time, be issued

before the com-
mencement of
that period,
without pay-
ment of a pro-

the defendant, that the bill had been issued before the

1st of August, and post-dated, and therefore being payable at two months after date, it should have had a portionate duty, four-and-sixpenny stamp, according to 55 G. 3. c. 184.

the maker is

liable to a

penalty; yet a bill so post dated, and bearing the inferior stamp, corresponding with the purport of the bill, is admissible in evidence, being, on the face of it, conformable to the schedule.

Schedule,

Schedule, part 1. title "Bill of Exchange," and section 12. (a). The learned Judge nonsuited the plaintiff upon this objection, and in the next term a rule nisi was obtained for a new trial on the authority of Upstone v. Marchant (b).

Merewether Serjt. and Crowder now shewed cause. It is true that in Upstone v. Marchant (b) this Court held that the word "date" in the schedule denoted the period of payment on the face of the bill. But the twelfth section of the act was not adverted to there. The date on the face of a bill is only primâ facie evidence: substantially the date is the time when it is issued. The twelfth section of 55 G. 3. c. 184. clearly gives this effect to the word "date" in the schedule, for by that clause if a bill be made payable at a certain time after date, and be dated subsequently to the day on which it is issued, so as not in fact to be payable within two months, then unless the same shall be stamped so as to denote the duty on bills payable more than two months after date, the party making or issuing such bill shall forfeit 100%. The provision of the schedule would be

(a) The schedule imposes a duty of 4s. 6d. on inland bills, from 501. to 100%. in amount, "exceeding two inonths after date, or sixty days after sight." By sect. 12. it is enacted, "that if any person or persons shall make and issue, or cause to be made and issued, any bill of exchange, draft or order, or promissory note for the payment of money, at any time after date or sight, which shall bear date subsequent to the day on which it shall be issued, so that it shall not in fact become payable in two months, if made payable after date, or in sixty days, if made payable after sight, next after the day on which it shall be issued, unless the same shall be stamped for denoting the duty hereby imposed on a bill of exchange and promissory note, for the payment of money at any time exceeding two months after date, or sixty days after sight, he, she, or they shall, for every such bill, draft, order, or note, forfeit the sum of 100%.”

1833.

WILLIAMS

against JARRETT.

(b) 2 B. & C. 10.

VOL. V.

D

defeated

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