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1798.

WILLIAMS

BARTHO-
LOMEV.

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If Mrs. Breedon had ordered the Defendant to pay the money to Dr. Breedon, the payment could never afterwards have been questioned. The tenant in that case would have had nothing to do with any transaction 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 question then is, whether there be any thing in Mrs. Breedon's conduct which amounts to a confirmation of the payment ? Now, to constitute that, fome act must appear to have been done by her with knowledge of her own situation. Here a right to the rent was infifted upon by Dr. Breedon ; and Mrs. Breedon, being deceived both in point of law and fact, acquiesced in the payment of that rent to another to which the was entitled. Her right, therefore, ftands as it did before Dr. Breedon, whose claim was clearly adverse, received any rent at all.

HEATH J. I continue of the opinion which I held at the trial. It does not seem 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 said by my Brother Shepherd struck me very much. Suppose a lease made, and a person claim as heir at law, to whom the rent is paid; and afterwards the true heir at law is discovered, will it be said that he shall not recover ?

Rooke J. The tenant having taken a lease from Mrs. Breedon, muft 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 discovered, and her executor is therefore now warranted in recovering the rent from the tenant.

Rule discharged.

WILLIAMS, Executor of ELIZABETH BREEDON, v.

BREEDON.

Nov. 19th.

T! *RESPASS. The first count was for cutting down, felling, throw- Where a general

ing down, grubbing up, proftrating, and destroying the tim- verdict has been ber-trees and other trees, and the underwood and coppices of counts

, one of

given on two underwood of Elizabeth Breedon deceased, in her life-time, of the which

is bad, and value of 300l., and the bushes and boughs thereof coming, taking, Judge's notes

appears by the and carrying away, and converting to the use of the Defendant. that the jury

calculated the dence applicable to the good count only, the Court will amend the verlict by entering it on that count,

damages on evithough evidence was given applicable to the bad count also.

The

1798.

WILLIAMS

BREEDON,

The second count was for seizing, taking, and carrying away the goods and chattels, viz. wood, timber, underwood, bushes, and boughs of the said Elizabeth deceased, in her life-time, of the value of other 300l.

Plea. Not Guilty.

At the trial before Heath J., at the Berkshire Summer aflizes at Abingdon, it was proved that the Defendant (the remainderman mentioned in the last case, and who had acted on an idea that Elizabeth Breedon had forfeited her interest in the premises by a supposed marriage with one William Williams) cut down the wood in question: and the several sums of money for which he fold the different parcels being ascertained; 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 thew cause why the judgment should not be arrested :

Le Blanc now shewed cause against that rule. Admitting that an executor cannot maintain this action for trees cut down in the life-time of his teftator (a), under the first count of this declaration, yet as it appears by the report that the evidence on which the verdiet of the jury was founded applies to the second count only, the Court may rectify any mistake by entering a verdict on that count.

Williams Serjt. in support 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 those damages to the second count only, and that if therefore the first 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 shew 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 sums for which the parcels of wood cut down by the Defendant were fold. This circumstance, therefore, does entitle the Judge to alter the postea, and the

(a) Vid. Emerson v. Emerson, i Vint. trespass to an executor for a clausura fregit 187. and allo De Mafon v. Dixon, Sir or trees cut in the life time of his reitator. William Jones 174, where Hyde and Jones Vid. etiam what was said by Lord Kergen, Js. he'd that the 4 Ed. 3. 6. 7. did not give 37. R. 549.

Court

1798.

Court must consider the case in the same light as if a verdict
had been found for the Defendant on the first count, and for the
Plaintiff on the second.
Per Curiam,

Rule discharged. (a)

WILLIAMS

BREIDON.

(2) Eddowes and Another v. Hopkins and 730. allo Spencer v. Goter, i H. Bl. 78. Another, Doug. 376. Grant v. aftle, Doug.

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BELL V. STONE.

Nov. 19th.

2 Eaft, 430. A CTION on the case for defamation. The first count of the A letter written

declaration, after stating that the Plaintiff was a land-fur- to a third person veyor, averred that the Defendant, intending to injure him in “ a villain.” held his reputation and hurt him in his profeflion, wrongfully and out proof of fpemaliciously wrote and published a certain fcandalous, malicious, cial damage. and defamatory libel, in the form of and as a letter addressed to one N.B. to whom the Defendant was indebted in a large sum 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 absence, I but little thought you “ would have been made the dupe of one of the moft infernal “ villains that ever disgraced human nature; but I suppose you

were deceived by those whom you thought well of, and whom “ he will deceive if they will give him an opportunity; I am “ told they are respectable, and how they can be connected “ with him is the most astonishing thing to me; Mr. H. writes

me you called upon him (meaning the Plaintiff) on the subject “ of your account, for which the villain gave you his note at “ five months;” that the Defendant in further prosecution of his faid malice fent the said letter to the said N.B., to the great hurt, prejudice, and injury of the Plaintiff, and to his great difcredit and disgrace. There were other counts on words spoken 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 suffered special damage in consequence of publishing the said libel and speaking the said words, viz. that he was arrested by the said N.B. for the sum which he owed to him, and that he loft his business, fc.

Plea. The general issue.

This came on to be tried at the Bedford Summer assizes, when, the Plaintiff having failed in proving the special damage laid, Macdonald Ch.B. was of opinion that the letter on which the first

count

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count proceeded, unsupported by proof of special damage, was not actionable, and directed a verdict for the Defendant. The counsel for the Plaintiff, however, contending that the letter itself was actionable, the Chief Baron asked the jury what damages they would give fupposing 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 cause why the verdiet for the Defendant should not be set aside, and a verdict be entered on the first count for the Plaintiff for 1s., on the ground that though the words in the first count might not be actionable, if only spoken, yet that being committed to writing, they were fo.

Le Blanc Serjt. was this day to have shewn cause,

But the Court expressing themselves 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

Rule was made absolute. (6)

(a) 5 Co. 125. b.

neg, 2 Str.899. Fitzgió, 253, 4. Villers v. () Sir John Auftin v. Col. Cuipepper, Monoley, 2 Wilf. 403. King v.Sir Edward Skyn. 124. 2 Sbow.313. Harman v. Dela- Lake, Hardres, 470.

bring money into ASSUMPSIT.

Nov. 20th.
2 Bof. & Pull.

LE GREW v. COOKE.
393
If Defendant

The Defendant pleaded as to all but 30l. nonCourt on a plea

assumpsit, and as to that fum a tender, and brought the of tender, Plain- money into court. The Plaintiff replied an original sued out on tiff may take it out, though he a particular day, and that the money was not tendered before reply that the

that day, but took the money out of court. tender was not made before A rule having been obtained on a former day, calling on the action brought. Plaintiff to shew cause 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.

Le Blanc Serjt. now shewed cause. In an action on the case, where the cause of action does not arise from the non-payment of a particular sum at a particular day, the plea of tender admits the sum tendered to be due to the Plaintiff, and only denies his right to damages beyond that fum. But to the fum tendered the Plair-" tiff will be entitled, even though he should be nonfuited or a verdict pass against him, because the Defendant has admitted so much to be due to him: nor will the Court retain that money in their hands which must belong to the Plaintiff, in order to

secure

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secure the Defendant's cofts. Cox v. Robinson, 2 Str. 1027. Caf. temp. Hard. 206. S. C.

Cockell and Shepherd Serjts. contra. It is said in i Crompton's Prac. p. 150. that “ If a tender be pleaded with a toujour prist, “ and the money brought into court, if the Plaintiff would go “ for further damages he must not take the money out of “ court, but take issue on the tender, or reply a request and “ refusal; and if such issue is found against him he will be barred « of his a&tion: 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 cases of Horn v. Lewin, 1 Lord Raym. 643. and Burton v. Souter, 2 Lord Raym. 774.

And the reason 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 settled 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 case, by what right can the Court retain it, as a security 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 pafled for the Defendant, that the Court will lay hold of it to secure the Defendant's cofts(a): and if it could be shewn that the Plaintiff was now in that situation, the Court would not let him take out the money without doing justice to the Defendant. It being once admitted that the Plaintiff will be entitled to the

money tendered at all events, the application must fall to the ground. The reason given in Barnes against allowing the Plaintiff to take the money out of court is abfurd; that case is therefore felo de fe, and the present application rests upon no other foundation than the opinion of a writer, who has indeed in general reported the

(2) Vid. Ratbbono v. Stedman, Cooke's court on the common rule and verdicts Cal. Prac. C. B. 54. and Maddox v. Pafton, found for the Defendants, they were allowed 'it. 117. where money having been paid into to take it out of court in part of their costs.

practice

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