1828. PECKHAM ADAMS, v. LASHMOOR The whole transactions were bona fide between the bankrupt and the defendants, and without any and ANOTHER, knowledge on their part of an act of bankruptcy. Assignees of The first question in the cause was, whether the first quantity of wine not having been transand ANOTHER. ferred to the names of the defendants until the 22d of June, was excluded from the protection of the 81st section of 6 G. 4. c. 16. As to this the defendants contended that it became their property from the 4th of May, they being the persons meant by Lashmoor & Co. in the transfer of that date; and that, at all events, Lashmoor & Co. were their trustees from that date. The second point was, whether the first commission, not having been gazetted, could be deemed notice to the defendants within the 83d section; and if not, then as to the second commission the transaction would be protected, not being within two months of that commission. LORD TENTERDEN C. J. said, I feel no difficulty on either point. The mistake in the names in the first transfer does not defeat the claim of the defendants; and, at all events, Lashmoor & Co. would be trustees for them. As to the second point, the first commission was issued, and that is enough, within the proviso of the 81st section, to deprive the defendants of the protection of that section. The 83d section does not apply. Verdict for the plaintiffs as to the second quantity transferred only. Sir J. Scarlett, F. Pollock, and Barstow for the plaintiff. Gurney and Comyn for the defendant. 1828. WEBB v. HILL and Another. CASE for a malicious arrest. WESTMINSTER, In an action arrest the allegation that the defendants "did not pro secute the suit complained of, but therein made default pledges were and their The declaration, in alleging the termination of for a malicious the original suit, stated that the said "plaintiffs in that action did not prosecute their said suit, but therein made default, whereupon it was considered that the said plaintiffs should take nothing by their bill, and the pledges to prosecute be in mercy" &c. In support of this allegation the plaintiffs put in a rule to discontinue; and upon the Lord Chief Justice interposing an objection to the sufficiency of such proof, they cited Bristow v. Haywood, ance. Such 4 Camp. 214.; and at all events proposed that his record cannot Lordship should allow an amendment of the record under 9 G. 4. c. 15. in mercy &c." is not support ed by proof of a discontinu be amended at Nisi Prius under 9 G. 4. c. 15. not being a mere mistake in setting out a written instru ment, but an allegation of something to tally different LORD TENTERDEN C.J. said, that it did not appear in the case cited what was the averment in the declaration; but as the other learned judges, Bayley, Holroyd, and Parke, were sitting in the adjoining court, he would consult them. This his Lordship from the proof. did, and on returning pronounced the following judgment: I have had the advantage of obtaining the opinions of my learned brothers, and we all decidedly think that the proof offered does not support the allegation in the declaration: it so entirely differs from it, that the plaintiff must be nonsuited. The rule of law is clear, that you must show in actions of this description, how the proceeding complained of, whether civil or criminal, 1828. WEBB v. HILL was terminated. It had occurred to me, and I mentioned it to my learned brothers, that possibly the latter part of the allegation might be rejected, and ANOTHER. and that you might stop at, "did not prosecute their suit." But that alone would probably be bad, because it does not show how it was terminated; and by allowing it to be rejected now, we deprive the party of the benefit of a demurrer, and therefore the other statement, which is good as such, ought not to be rejected. If you stop at the words "but therein made default," then we all think that those words have a legal meaning different from a discontinuance. Taking the whole allegation, it amounts to the legal description of a nonsuit. The difference is one of substance, not of form only; for in order to support this action, you must show malice and want of probable cause. Now whether or no the parties merely let the action drop, and became non-prossed or nonsuited; or whether they discontinued the action, which is their own act, materially affects the evidence of malice and want of probable cause. It was considered by the court in Sinclair v. Eldred, 4 Taun. 7, that merely not proceeding in an action was not sufficient evidence to support this charge; whereas in Nicholson v. Coghill, 4 B. & C. 21., this court considered that the party's discontinuing an action did go to show malice and want of probable cause. The variance, therefore, is material, and goes to affect the whole course of evidence throughout the cause. It was suggested by the counsel for the plaintiff, that this was a case in which I might amend at Nisi Prius, within the recent act of parliament; 1828. WEBB บ. but we all think this is not a case within that statute. This is nothing like a mere mistake in setting out a written instrument; it is the allegation of a matter totally different from that offered in and ANOTHER. evidence these two things are altogether of a different kind. HILL Nonsuit. Denman C. S. and Carrington for the plaintiff. Sir James Scarlett for the defendant. THOMPSON v. LEWIS. WESTMINSTER, ASSUMPSIT for work and labour as an apothecary, In an action and medicines supplied. wit by an apothecary, to prove In order to bring himself within the statute, practising as such previous 55 G 3. c. 194. s. 21. the plaintiff called two to August nesses, both of whom stated that the plaintiff had 1815, the plaintiff ought attended persons in their family previous to 1815 to show in stances of up prescriptions; merely attending in cases of diseased limbs, and had supplied medi- compounding cines and effected cures. But no evidence was and making given of any compounding, or making up any prescription. One point made for the defence was, that the plaintiff was a quack and ignorant person, and incapable of compounding, and that in fact no benefit was derived from the plaintiff's services. LORD TENTERDEN C. J., in summing up, told the jury that the first question was, Whether the plain local conplaints is not enough. 1828. THOMPSON บ. LEWIS. tiff had shown himself entitled to sue, by proving that he "was in practice as an apothecary prior to or on the 5th day of August, in the year 1815," within the meaning of the statute 55 G. 3. c. 194. s. 21. Now in order to know what the legislature meant by practising as an apothecary, it is important to look into that statute to see what the duties of an apothecary are intended to be; and we find that one of the principal duties there stated, is that of compounding medicines according to the prescriptions of physicians. Now in this case you have evidence of two instances of practice of the plaintiff in curing, or attempting to cure certain local complaints, and furnishing medicines to the patients under those complaints; but you have not a single instance of compounding a physician's prescription given, nor any thing to show that he was capable of compounding, or professed to compound, medicines. It is not enough to satisfy that statute, that the plaintiff professed to cure merely local complaints, and practised in that mode only: to entitle him to sue, he must have practised the general duties of an apothecary. If you think this evidence makes out that he did so practise, you will find for the plaintiff; if you think otherwise will find for the defendant. you Verdict for the defendant. Reader for the plaintiff. Sir James Scarlett for the defendant. |