1813. WHITE v. WILES. HEATH, J. The payment of rent is not equivalent to a delivery of the goods. Suppose a part of the oil in some of these cisterns were lost or burnt, who is to know whether it is the vendor's or the purchaser's oil that is destroyed? We do not pretend to reconcile the case of Austen v. Craven with that of Whitehouse v. Frost, it would be impossible so to do; and unless the plaintiff can overthrow that case, it is impossible to grant a new trial here. There are, besides, numbers of old cases, in which it has been held, that the plaintiffs could not succeed for want of a sufficient certainty and separation of the goods sold. The Court refused the rule. CHAMBRE, J. was absent, in consequence of indisposition. tures with the residue of the mass, the purchaser came to draw off what he had bought. [180] Nov. 11. Lord Mayor's day is not such an holiday as entitles the to an extraor on that day. WORTHY. PALTER. ONSLOW, Serjt., yesterday moved that the deputy sealer of writs might be ordered to repay to the defendant, a sealer of writs prisoner, or his attorney, the sum of 10s., which he had insisted upon receiving on the 9th of November, over and above the sealing a writ ordinary fee of 7d., for sealing on that day, being the lord mayor's day, a writ which was necessary to the defendant's discharge out of custody, to which he then stood entitied. The officer was found at the office, at his usual hours; but he insisted that the day was a holiday, and that he was therefore not compellable to do any business; and he demanded this extraordinary fee for doing it, which the defendant's attorney paid him, under a protest of its illegality, and a threat of application to the Court. The Court desired that the officer might have regular notice of this application, and that the matter might be again mentioned. On this day Onslow stated that the officer had rendered his motion unnecessary, by repaying the 10s., upon service of the notice, being satisfied that the lord mayor's day was not such a holiday as entitled him to this additional fee. 1813. THIS HODGSON and Others v. TEMPLE. HIS was an action brought to recover the price of spirituous liquors sold and delivered to the defendant Nicholas Temple. Upon the trial of the cause at the sittings after Trinity term, 1813, the plaintiffs, who were distillers, proved that they had delivered divers quantities of spirits by the orders of the plaintiff under permits which they obtained, authorizing the delivery of the goods to Richard Temple as the buyer, and for his use, at a rectifying distillery which was entered with the excise officers as the distillery of Richard Temple, situate in Peartree-street; but it was in fact the property, and carried on for the benefit, of the defendant. The defendant also kept a licensed retail shop in Fleet-street, for the sale of spirituous liquors, which the plaintiffs distinctly knew. After verdict for the plaintiff, Shepherd, Serjt., now moved to set it aside, upon the ground that by the statute 26 Geo. 3. c. 73. s. 54. "no person licensed to sell brandy or other spirits by retail, or selling brandy or other spirits by retail, shall be the proprietor or owner of any distillery or rectifying house, or have any part or share in any distillery or rectifying house, or be in any manner concerned in the trade or business of a distiller, rectifier, or compounder of spirits;" and the section then proceeds to impose a penalty of 2001. for the offence; and he urged that the plaintiffs having furnished these liquors for the very use and purpose of being illegally employed in both trades, and obtaining permits for the delivery to Richard Temple, for the very purpose of concealing these practices of the defendant, whose occupation of a retail dealer in spirits they well knew, they were so far participes criminis, that they [182] could not recover the price of the goods so sold, according to the authority of Clugas v. Penaluna, 4 Term Rep. 466. and other similar cases. MANSFIELD, C.J. This would be carrying the law much further than it has ever yet been carried. The merely selling goods, knowing that the buyer will make an illegal use of them, is not sufficient to deprive the vendor of his just right of payment; but to effect that it is necessary that the vendor should be a sharer in the illegal transaction. 1813. HODGSON v. TEMPLE. HEATH, J. Cases have been decided upon this distinction, as where a smuggler, in time of peace, bought brandy in France, and brought it over here, and sold it, it was held that the vendor might recover the price of it in our courts, Holman v. Johnson, Cowp. 342.: but where a smuggler bought brandy in Guernsey, and the vendor packed it in ankers in preparation for smuggling, he could not recover the price of it, because he was aiding in the breach of our revenue laws. Biggs v. Lawrence, 3 Term Rep. 454. The Court refused the rule. CHAMBRE, J. was absent. [ 183 ] Nov. 11. The guarantee of a bill discharged by bankruptcy of his liability on the bill, is not an incompetent witness in an action on the bill by reason BRIND 7. BACON. EST, Serjt., moved to set aside a verdict on account of Bthe admision of the testimony of a witness, whom he contended to be incompetent; the witness was guarantee of a bill of exchange, and had been a bankrupt; and Best had objected that although he was altogether discharged as to the bill by the statute 49 Geo. 3. c. 121. s. 8. yet that he was not thereby of his liability discharged from the costs of any action that might be brought on the bill, because those costs, being only a consequential damage of the bankrupt's engagement, would not ensue the original debt, and could not be proved under the commission, and therefore created a remaining interest which rendered the witness incompetent. to costs in an action on the bill. MANSFIELD, C. J. and HEATH, J., the only judges present, agreed that the costs must follow the debt, and that it was impossible to separate them, and Refused the Rule. 1813. Doɛ, on demise of JONES and Others, v. WILDE. HE plaintiffs in this ejectment, tried before Dampier, J., at the summer assizes, 1813, having proved a prima facie possession of the premises in the defendant, the latter, to whom in fact the land had been demised, but who had shifted over the land to his son, called him to prove that he the son was really the tenant in possession, and that the defendant was only a bailiff and manager for him; but Dampier, J. rejected the witness. Best, Serjt. now moved for a new trial, contending that this [184] case differed from those wherein it has been held that a tenant in possession is an incompetent witness in an ejectment against his landlord; for in this case the effect of the evidence would be, to subject the witness both to an ejectment and an action for mesne profits, and therefore was contrary to his interest. MANSFIELD, C. J. He comes to rebut a verdict which would have the effect of turning him out immediately; and that is an immediate interest, and outweighs the contrary and remoter effect of his subjecting himself by his testimony to an action. Rule refused. LE BLANC, demandant; PocoсK, tenant; NICHOLAS, VAUG Vouchee. Nov. 12. Where the abroad and "AUGHAN, Serjt., moved that a recovery might be al- vouchee in a lowed to pass under the following circumstances. The recovery vouchee resided in Switzerland, the communication with which country was at present extremely difficult. The commission to take the acknowledgment had been directed to Desmoulins, a banker, and Cazenove D'Arlans, a member of the grand notary public certified that the commissioner by whom the affidavit of taking the ac knowledg. ment was in fact sworn before S., a magistrate authorized to administer an oath, made it before G., (the other com missioner,) which said S. was duly authorized to administer an oath, the Court considered it as a clerical error, and allowed the recovery to pass. council 1813. LE BLANC, Demandant. council of Lausanne; and Desmoulins had made an affidavit of the due taking of the acknowledgment, which was transmitted hither, and appears to have been sworn before Secretan, a lieutenant and judge of the pays de Lausanne. But Juste Golie, the notary public who certified the making of the affidavit, certified that Samuel Desmoulins was sworn to the truth of the affidavit, before Cazenove D'Arlans, member of the great council, and that the said Secretan was a person author[185] ized to administer an oath, and that the names of Desmoulins and Secretan subscribed thereto were of the hand-writing of those persons. Vaughan prayed, that as this was evidently a clerical mistake of the notary, who had inserted the name of Cazenove D'Arlans instead of that of Secretan, there being no previous mention of Secretan in the certificate, to which the words "the said Secretan" could refer, this certificate might be deemed a sufficient compliance with the rule of court, Hil. T. 14 G. 3. which requires, that if the parties are in parts beyond the seas, the affidavit shall be made by one of the commissioners who hath taken the acknowledgment, and shall be sworn before some magistrate of the place where such acknowledgment shall be taken, having due authority to administer an oath, and in the presence of a notary public, which notary shall also certify in writing under his hand and seal, as well the due administering of the said oath, as also the name, signature, and office of the magistrate administering the same. He mentioned the case of a fine which had been acknowledged before a judge of one of his majesty's courts of record in Ireland, in which the notarial certificate had been dispensed with; he admitted, however, the diversity between that case and this. The Court thought that it was impossible not to see, upon reading the certificate, that this was a mere clerical mistake of the one name for the other, and permitted the recovery to pass. |