If Mrs. Breedon had ordered the Defendant to pay the money to Dr. Breedon, the payment could never afterwards have been queftioned. The tenant in that cafe would have had nothing to do with any tranfaction between Mrs. Breedon and Dr. Breedon, be the title what it might: if he had obeyed the order of Mrs. Breedon, it would have been a payment to her agent. The next queftion then is, whether there be any thing in Mrs. Breedon's conduct which amounts to a confirmation of the payment? Now, to conftitute that, fome act muft appear to have been done by her with knowledge of her own fituation. Here a right to the rent was infifted upon by Dr. Breedon; and Mrs. Breedon, being deceived both in point of law and fact, acquiefced in the payment of that rent to another to which fhe was entitled. Her right, therefore, ftands as it did before Dr. Breedon, whofe claim was clearly adverfe, received any rent at all. HEATH J. I continue of the opinion which I held at the trial. It does not feem to me that the Defendant was under any peculiar difficulty. He might have had recourse to a bill in equity to be indemnified. What was faid by my Brother Shepherd ftruck me very much. Suppose a leafe made, and a perfon claim as heir at law, to whom the rent is paid; and afterwards the true heir at law is difcovered, will it be faid that he fhall not recover? ROOKE J. The tenant having taken a leafe from Mrs. Breedon, must answer for the defect of rent. She made a mistake, and thought her title at an end when it was not; the mistake was afterwards difcovered, and her executor is therefore now warranted in recovering the rent from the tenant. Rule discharged. 1798. WILLIAMS v. BARTHO LOMEW. WILLIAMS, Executor of ELIZABETH BREEDon, v. BREEDON. Nov. 19th. TR RESPASS. The first count was for cutting down, felling, throw- Where a general ing down, grubbing up, proftrating, and deftroying the timber-trees and other trees, and the underwood and coppices of underwood of Elizabeth Breedon deceased, in her life-time, of the value of 300l., and the bushes and boughs thereof coming, taking, and carrying away, and converting to the use of the Defendant. verdict has been given on two counts, one of which is bad, and it appears by the Judge's notes that the jury calculated the damages on evi dence applicable to the good count only, the Court will amend the verdict by entering it on that count, though evidence was given applicable to the bad count alfo. The 1798. WILLIAMS V. BREEDON. The fecond count was for feizing, taking, and carrying away thegoods and chattels, viz. wood, timber, underwood, bufhes, and boughs of the faid Elizabeth deccafed, in her life-time, of the value of other 300l. Plea. Not Guilty. At the trial before Heath J., at the Berkshire Summer affizes at Abingdon, it was proved that the Defendant (the remainderman mentioned in the laft cafe, and who had acted on an idea that Elizabeth Breedon had forfeited her intereft in the premises by a fuppofed marriage with one William Williams) cut down the wood in queftion: and the feveral fums of money for which he fold the different parcels being afcertained; the jury found a verdict for the Plaintiff with general damages to that amount, but if the Court should be of opinion that the action was not maintainable, then a verdict to be entered for the Defendant. However, Williams Serjt. on a former day having obtained a rule to fhew caufe why the judgment fhould not be arrested : Le Blanc now fhewed caufe againft that rule. Admitting that an executor cannot maintain this action for trees cut down in the life-time of his teftator (a), under the firft count of this declaration, yet as it appears by the report that the evidence on which the verdict of the jury was founded applies to the fecond count only, the Court may rectify any mistake by entering a verdict on that count. Williams Serjt. in fupport of the rule, contended that as evidence was produced at the trial of the fact of cutting down the trees, and the jury had given general damages, the Court could not apply thofe damages to the fecond count only, and that if therefore the firft count was bad, the judgment must be arrested. BULLER J. As evidence was given at the trial of the fact of cutting down, if there had been no other evidence to fhew on what ground the damages were given by the jury, it certainly would not be competent to the Court to alter the verdict. But in this cafe there was evidence to fhew that the damages given by the jury were compounded of the different fums for which the parcels of wood cut down by the Defendant were fold. This circumftance, therefore, does entitle the Judge to alter the poftea, and the (a) Vid. Emerson v. Emerson, I Vent. 187. and alfo De Mafon v. Dixon, Sir William Jones 174, where Hyde and Jones Js. held that the 4 Ed. 3. c. 7. did not give trefpafs to an executor for a claufum fregit or trees cut in the life time of his teftator. Vid. etiam what was faid by Lord Kengen, 3 T. R. 549. Court Court muft confider the cafe in the fame light as if a verdict had been found for the Defendant on the firft count, and for the Plaintiff on the fecond. Per Curiam, Rule difcharged. (a) (a) Eddores and Another v. Hopkins and 73c. allo Spencer v. Goter, 1 H. Bl. 78. Another, Doug. 376. Grant v. Aftle, Doug. 1798. WILLIAMS V. BREIDON. A CTION on the cafe for defamation. The first count of the declaration, after ftating that the Plaintiff was a land-furveyor, averred that the Defendant, intending to injure him in his reputation and hurt him in his profeffion, wrongfully and maliciously wrote and published a certain fcandalous, malicious, and defamatory libel, in the form of and as a letter addreffed to one N.B. to whom the Defendant was indebted in a large fum of money, in which letter was contained, of and concerning the Plaintiff, the following matter: "After the communication I "had with your fon in your abfence, I but little thought you "would have been made the dupe of one of the moft infernal " villains that ever difgraced human nature; but I fuppofe you "were deceived by thofe whom you thought well of, and whom "he will deceive if they will give him an opportunity; I am "told they are refpectable, and how they can be connected "with him is the most aftonishing thing to me; Mr. H. writes me you called upon him (meaning the Plaintiff) on the fubject "of your account, for which the villain gave you his note at "five months;" that the Defendant in further profecution of his faid malice fent the faid letter to the faid N. B., to the great hurt, prejudice, and injury of the Plaintiff, and to his great difcredit and difgrace. There were other counts on words fpoken in derogation of the Plaintiff's profeffional character, and of his ability to pay his debts. The conclufion, referring to all the counts, ftated that the Plaintiff fuffered special damage in confequence of publishing the said libel and speaking the faid words, viz. that he was arrefted by the faid N. B. for the fum which he owed to him, and that he loft his bufinefs, &c. Plea. The general iffue. This came on to be tried at the Bedford Summer affizes, when, the Plaintiff having failed in proving the fpecial damage laid, Macdonald Ch.B. was of opinion that the letter on which the firft count 2 Eaft, 430. A letter written calling Plaintiff actionable, with- 1798. BELL V. STONE. count proceeded, unfupported by proof of fpecial damage, was not actionable, and directed a verdict for the Defendant. The counfel for the Plaintiff, however, contending that the letter itfelf was actionable, the Chief Baron afked the jury what damages they would give fuppofing the Plaintiff entitled to a verdict in point of law. The jury answered Is. Sellon Serjt. on a former day obtained a rule to fhew caufe why the verdict for the Defendant fhould not be fet afide, and a verdict be entered on the first count for the Plaintiff for 15., on the ground that though the words in the firft count might not be actionable, if only fpoken, yet that being committed to writing, they were fo. Le Blanc Serjt. was this day to have fhewn cause, But the Court expreffing themfelves clearly of opinion that any words written and published, throwing contumely (a) on the party, were actionable, Le Blanc declined arguing the point, and the (a) 5 Co. 125. b. (b) Sir John Auftin v. Col. Culpepper, Skyn. 124. 2 Sbow. 313. Harman v. Dela Rule was made abfolute. (b) ney, 2 Str. 899. Fitzgib. 253, 4. Villers v. Manoley, 2 Wilf. 403. King v.Sir Edward Lake, Hardres, 470. Nov. 20th. 2 Bof. & Pull. 393. If Defendant 1 bring money into ASSUMPSIT. Court on a plea LE GREW v. COOKE. The Defendant pleaded as to all but 30l. nonaffumpfit, and as to that fum a tender, and brought the of tender, Plain- money into court. The Plaintiff replied an original fued out on a particular day, and that the money was not tendered before that day, but took the money out of court. tiff may take it out, though he reply that the tender was not made before A rule having been obtained on a former day, calling on the action brought. Plaintiff to fhew caufe why the replication to the plea of tender should not be ftruck out, on the ground of the Plaintiff's having admitted the tender by taking the money out of court. of Le Blanc Serjt. now fhewed caufe. In an action on the cafe, where the caufe of action does not arise from the non-payment a particular fum at a particular day, the plea of tender admits the fum tendered to be due to the Plaintiff, and only denies his right to damages beyond that fum. But to the fum tendered the Plaintiff will be entitled, even though he should be nonfuited or a verdict pafs againft him, becaufe the Defendant has admitted fo much to be due to him: nor will the Court retain that money in their hands which muft belong to the Plaintiff, in order to fecure fecure the Defendant's cofts. Cox v. Robinfon, 2 Str. 1027. Caf. temp. Hard. 206. S. C. 66 Cockell and Shepherd Serjts. contrà. It is faid in i Crompton's Prac. p. 150. that " If a tender be pleaded with a toujour prift, " and the money brought into court, if the Plaintiff would go "for further damages he muft not take the money out of court, but take iffue on the tender, or reply a request and "refufal; and if fuch iffue is found against him he will be barred "of his action: but if he take the money tendered out of court, "judgment is given for the Defendant to go quit;" and a cafe in this court of Cliff v. Jones, T. 5 Geo. 1. C. B. is there cited. This doctrine is perfectly agreeable to the opinion of Lord Holt, in the cafes of Horn v. Lewin, 1 Lord Raym. 643. and Burton v. Souter, 2 Lord Raym. 774. And the reafon why a party fhould not take money out of court when he traverses the tender, is given in Hill v. Williams, Barnes 358. 3d ed., namely, that the replication to the tender is a refusal to accept the money. BULLER J. This is a point of practice which I had thought as clearly fettled as any point ever was; and I am much deceived if it has not been more than once before the Court of King's Bench. It is perfectly certain, that whatever may become of this action, the Plaintiff will be entitled to the money tendered: and if that be the cafe, by what right can the Court retain it, as a fecurity for the Defendant's cofts, on the chance of a verdict being given in his favour? I agree that if the Plaintiff be negligent and do not take the money out of court until after a verdict has paffed for the Defendant, that the Court will lay hold of it to secure the Defendant's cofts (a): and if it could be fhewn that the Plaintiff was now in that fituation, the Court would not let him take out the money without doing juftice to the Defendant. It being once admitted that the Plaintiff will be entitled to the money tendered at all events, the application muft fall to the ground. The reafon given in Barnes against allowing the Plaintiff to take the money out of court is abfurd; that cafe is therefore felo de fe, and the prefent application refts upon no other foundation than the opinion of a writer, who has indeed in general reported the (a) Vid. Rathbone v. Stedman, Cooke's Caf. Prac. C. B. 54. and Maddox v. Pafton, id. 117. where money having been paid into court on the common rule and verdicts 1798. LE GREW v. COOKE. |