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SIBLY

V.

CUMING.

* Vide aute,

p. 2283.

1769. This case differs from the case of Sulton versus Bi

shop,* and from Gardiner versus Hornet for, in those cases, the indemnity could not have been pleaded : but here, the indemnity is completed by judgment before the action was brought.

This method of giving it in evidence would be an eva

sion of the Statute of 4 Ann. c. 16. § 7. which excepts + In C B. Temp. Ld. Ch. been no need of the exceptions in the fifth section of it.

penal Statutes. So, on 21 J. 1. c. 4. there would have J. Willes; tried before This act has been construed to extend only to former Acts Mr. Baron

of Parliament, and not to subsequent ones : therefore ! Smythe.

only use it as an argument “ that before that act, it must « have been pleaded."

He concluded this first point with observing that a plea of Nil debet differs from the general issue of Non assumpsit: in which case, any thing that shews a discharge from the demand may be given in evidence.

Second POINT– Whether (even supposing that it might be given in evidence) this evidence shews " That “ Cuming was the discoverer.”

It is not such conclusive evidence, as to preclude the jury from exercising their judgment " whether he was or

was not the discoverer."

There can not be two first discoverers of the same of fence,

It depends upon the circumstances ; " which of these “ two was the discoverer;" Cuming, the plaintiff, in that action ; or Beard, the witness.

Here, the affidavit was made, to found the declaration upon. And the discovery had not been made before Beard's affidavit : therefore he must have been the first discoverer.

Though Cuming sent his servant for Beard, it does not follow from thence “ That Cuming was the discoverer."

Therefore he prayed that the postea might be delivered to the plaintiff.

Mr. Mansfield, contra, for the defendant, argued-Ist,

That the defendant was at liberty to give this evidence [ 2467 ] upon the plea of Nil debet : and 2dly, that the evidence

proves the defendant to be the discoverer.

First-He agreed to the Serjeant's principles, “ That " where the defendant would introduce into his defence. 56 any collateral matter wbich does not deny the charge in the declaration, he must plead it."

The declaration will always shew what the defendant may give in evidence upon the general issue. · I'he Judges have been more liberal of late years, mitting matters to be given in evidence on Non assumpsté.

SIBLY

CUMING,

5

case,

But the old rules were the same, in Non assumpsit and on 1769. Nil debet. 2 Roll's Abr. 682, 683. Title “ trial," Evidence E. F.

This does not depend upon the old rules of pleading v. only: for, the Act of 21. J. 1. c. 4. extends to actions upon subse uent Statutes. (Which Lord Mansfield (Post.247. Qu. denied.). The point, he said, was not before the Court, Park. 182. in the two cases (of Gaul and Hicks) in 1 Salk. 372 and 21 Vin. 131.] 373; and 2 Hawk. P. C. 270, 278. considers the words of that Statute as general words : and they are so. And as to actions upon penal Statutes, it is held as an invariable rule 66. That they must be brought in the particular ". County :” and if they are not, that it may be given in evidence on Nil debet. Now that can be founded on no other law than the Statute of 21 J. 1. c. 4. And if the Statute extends to subsequent Statutes as to that one case, it must do so, as to all others.

As to 4 Am. c. 16.-It would follow from the Serjeant's argument, “ That in civil cases, a man should take advantage of pleading many matters ; and in penal

be confined to one only." But see 2 Roll's Abr. 682. and many other books; and Bro. “ general “ issue," pl. 14.

Another Act, 31 Eliz. c.5. limits common informers to șile within a year. On Nil debel pleaded, the defendant may give in evidence, a discharge by lapse of time; viz. that the matter arose above a year before the action brought. :

In the case of Gardiner versus Horne, there were two cross actions for bribery. A. succeeded in the first: on the second, he would have given in evidence that recovery, to prove him a discoverer, Mr Baron SMYTHE held " that he might:" and the Court of Common Pleas were of the same opinion.

Second point-Upon this evidence, Mr. Cuming is the [ 2468 í discoverer, and intitled to a discharge.

As to the evidence being conclusive upon the jurythese stated facts are to be considered as facts found by the jury, upon a special verdict.

Mr. Cuming has made the discovery; and has prosecuted to judgment and execution. A witness may have been an involuntary one; and not have wished to convict: but the prosecutor certainly wished to convict. It was not necessary to state why Mr. Cuming sent for Beard: but here it appears that it was in order to convict Sibly. The time of bringing the action shews that Mr. Cuming was the discoverer; and no other discoverer is stated upon the case.

Mr. Serjcant Burland, in reply.

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1769. As to the first point - The declaration does not sufi.

ciently shew what the plea must be.

Vil debet,denies the plaintiff's demand: but it

does not slew that it was discharged by a collateral matCUMING. ter. Nor can such a discharge be given in evidence.

The act of 21 J. I. C. 4. does not extend to ottences since created, nor to actions given by subsequent Statutes. 1 Salk. 372, Rer versus Gaul; and S. C. in 12 Vod.993.

The king versus Gall. I Salk. 373. Ilick's case ; and 5 It is there Mod. 425.* And all the clauses of it are within the same styled " Ano rule and reason ((). anymous:" but it

The reason of laying the action in the county where is, lnost imanites

thick's the matter arises, is because they are local actions, and Case. the venue must come from the hundred. Therefore the

Judges have holden, that popular actions must be brought in the county.

Where the Act of Parliament fixes a particular time, the defendant may give the discharge in evidence; because he is not liable to a prosecution under that act; he is not the object of the act; but here, he is the object of the act, unless discharged by the collateral matter.

As to the case of Gardiner versus IlorneThe defendant could not plead it at the time. Here, the judgment is complete : and there was no impediment agairist plead

In the Reading cases, the recovery was pleaded as puis

darreine continuance. [ 2469 ] As to the SECOND POINT—This witness was not unwil,

lingly drawn in to give the evidence : be roluntarily made the aflidavit.

The writ which the plaintiff brought was only a quare clausum fregit: upon which, the plaintiff might have de. clared for any other matter. Therefore it was not the commencement of this suit, in particular; but only of a suit, in general.

Lord MANSFIELD--I give ro opinion now, on the first point. But on the second-It does not follow that the prosecutor must be the discoverer; he sets up another person to bring the action. The Act of Parliament meant to turn the actors of bribery against each other. 'The man that tells it, is the discoverer ; the plaintiff in the action brought in the Common Pleas by Cuming versus Sibly, was only the person who advised or persuaded

the other to discover. + Vide ante, p. 2284, 2286.

In the case of Sulton versus Bishop, the † witness ( Bi

ing it.

(a) S. P. Andr. 25 ace, and consequently no affidavit is necessary, but still the offence must be laid in the proper County, Buller 196, and note the Stat. 31 Eliz. c.5.3 5. expressly requires it to be so.

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V. CUMING

shop) was the discoverer. So here, Beard was the dis- 1769. coverer.

But if it be considered as doubtful upon the evidence, " Who was the discoverer;" the jury have found it against Cuming:

Mr. Justice Yates, as to the first point, gave no determinate opinion. Yet he inclined to think with Mr. Mansfield ; though he professed to give only his present sentiments.

He was not satisfied that this was matter of substance, necessary to be specially pleaded. It seemed to him rather matter of inducement. And where it is matter of inducement, it may be given in evidence, upon the general issue; though not, where it is matter of substance. Now this seemed, he said, to be more of the nature of inducement. He thought, the defendant was no object of this law.

He said, a proviso in the same Act of Parliament, and the matter provided in it, may be given in e:idence, on the general issue.

And be specified the case of an action against a parson (Buller 295. for merchandizing, contrary to 21 1. 8. c. 19. which has Hawk. P. C. a proviso for the necessaries to maintain his household. 250. $ 113.)

Now here is a proviso in this Act of 2 G. 2. which, in effect, says that a person who has been a discoverer shall not be an object of this law.* The defendant has pleaded “ Nil debet.. The judgment will relate back † to the and vide ante, time of the discovery. The defendant maintains the p 2284. the issue, by shewing that he does not owe the money. I think very words of the discoverer is not an object of the Act.

+ V. ante, p. As to the SECOND POINT-He held that the defendant 2286. can not here be considered as the discoverer. He bas in- (+2470 ] deed shewn “ That he was not ; but that Beard was ; for, 56 he could not have known what the fact was, unless BEARD had discovered it."

Mr. Justice Aston-If it had been a distinct Act [Buller 295.) of Parliament, it ought to have been pleaded: but here is a substantive clause (in nature indeed of a proviso) for indemnity, in the same Act of Parliament. “And if this had been pleaded, it would not have been sufficient : for, it would not have appeared upon the plca, “ that he was 66 the discoverer.”

Beard was clearly the discoverer; and he was the person intitled to the exemption. Therefore the plea would not have been sufficient; because it would not haye shewn that the defendant was thereby exempted.

Mr. Justices WILLES, who tried the cause, attested that the case meant to consider the facts, in the same manner as if they had been specially found.

* Vide sect. 7.

1769.

SIBLY

V.

CUMING.

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He gave no opinion upon the first point.

As to the second, he was clear in concurring with the rest of the Court.

Beard) was certainly the first discoverer; and ought to have the benefit of it. The defendant is not intitled to the benefit of the exemption.

Lord MANSFIELD now said (upon the first point) that
he thought this matter miglu be given in evidence.

Per Cur'.
Postea to be delivered to the PLAINTIFF.

[ 2471 ]

LÄyy mer. Baker.
Monday 20th
Nov. 1769.
Offender dis- THIS

Tus was an action upon the Statute of 2 G. 2. c. 24.
covering bri. for the more effectual preventing bribery and corrup-
bery may tion in the election of members to serve in Parliament ;
plead Nil debet
and give this

the seventh section whereof enacts, that if any person case in evi. shall ask, receive, or take any money, or other reward, dence.

he shall forfeit £500. and be disabled to vote at any elec[See 2 Durn, 584. 1 Bosan.

tion. 182.)

This was at an election for Bramber in Susser.

Upon Nil debet being pleaded, a verdict was found for the plaintiff.

On Tuesday the 7th of this month, Mr. Ilallace moved in arrest of judgınent. His objection was that the charge was too loose and general: it is only " that the defendant “ did receive a gift or reward;” without specifying what he reccivcd or took, as a reward ; whether money, or what particular species of reward.

Mr. Dunning, Mr. Serjeant Leigh, and Mr. Davenport now shewed cause, on behalf of the plaintiff

. They said that this, though general, was suficient after a verdict , whatever it might have been upon a demurrer for a special cause : for, a pleading which upon demurrer would be bad, for its being too general, may nevertheless be sufficient after a verdict. And so was the case in 1 Mod. 70. Caterall v. llarshall. 2 Keb. 692. S. C.

The declaration is in the very words of the Act of Parliament. And the charge is found by the jury to be true, " that he did receive a gift or reward ;” and is therefore within the act.

Mr. Wallace, contra. All that the declaration says is— " that he took a gift or reward, to give his vote :” which is in the disjunctive. Co. Litt. 303. and Long's case, 5 Co. 120.

The clefendant could have no notice, to make his de fence.

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