297 which the plaintiff might allege to have been made. Besides, there are two questions here; first, whether the defendant be liable at all, and, if he be, then, *secondly, to what extent he is liable. At most, the payment of 107. *676] admits the liability to that extent only. In Seaton v. Benedict, 5 Bing. 32, Gaselee, J. says, "Payment into court generally, in assumpsit, admits nothing beyond the amount of the sum paid in. Where, indeed, there is a special contract, the payment into court admits that contract; but where, as in the common indebitatus assumpsit, the demand is made up of several distinct items, the payment admits no more than that the sum paid in is due." The plaintiff might have authorized repairs to the extent covered by the 107., or he might mean, although not actually liable, to assent to the liability to that extent; but, beyond that, to recur to his legal rights. And the jury may have answered the question in either sense. As to the payment for which the plaintiff gives credit in his particulars, the 707. is not shewn to have been paid by or on behalf of the defendant; and, even if that were shewn, he might have paid it as agent of Gautier and Dubois. But in fact the giving of the credit amounts only to an admission on the part of the plaintiff.

John Evans and Whitcombe contrà. The defendant, by his payment into Court admits that there was something due upon the repairs; and all that the jury ought to have considered was the amount due. Such a case as this must, since the late rule of Court, (Trin. 1 W. 4, 2 B. & Ad. 788,) be treated exactly as if the declaration set forth the items contained in the bill of particulars, the latter being now a part of the record. The language used by Tindal, C. J. in

Macarthy v. Smith, 8 Bing. 146, shews that the parties go to *trial upon

*677] the understanding that the complaint on the record amounts to neither more nor less than the claim made in the bill of particulars. The direction of the learned judge is also wrong. He left it to the jury to say whether there was a liability beyond the sum paid. But there could not be a shifting liability; the defendant must have been liable to the whole demand or to no part of it. Again, the direction to the jury was such as to induce them to suppose that the defendant's liability rested simply on Mills's right to bind him; whereas there were independent acts shown to have been done by the defendant which of themselves amounted to a recognition of liability.

DENMAN, C. J. This rule must be discharged. I think, substantially, all the material points were submitted to the jury. I had rather, indeed, that it had not been left as a question whether Mills had any authority at all to bind the defendant, because there were acts of recognition independent of any thing done by Mills, which tended to show the defendant's liability. But it was very proper that the jury should be desired to consider whether that authority extended beyond the sums paid. And, if it did not go beyond that, then it became a proper question whether, and how far, the defendant by his own acts had made himself liable to the demand. These questions were all, in substance, left to the jury, and they found a verdict for the defendant. After the verdict, the jury, in answer to the question put, negatived the authority of Mills altogether. But it does not follow, that the jury founded their verdict upon this belief; it may may have rested upon one of the other grounds. Where a ver*678] dict is returned upon a proper summing up, and an endeavour is made afterwards to disturb that verdict by reference to something which has operated on the minds of the jury, it must be shewn distinctly that they went upon that in giving their verdict. Here that is not the case.

LITTLEDALE, J. I am of the same opinion. The payment of money into Court may under some circumstances, amount to an admission of liability. It cannot be construed only as a purchase of peace, unless there be a stipulation of that sort at the time of the payment; which does not take place when money is merely paid into court. In that case it amounts only to a formal admission of the defendant by his attorney, that so much is due on a claim of the nature expressed in the declaration; that is, in the present case, for work and labour.

per

[ *679

It is no more an admission of liability than if a payment had been made on a similar account before action brought. In the present case, it did not necessarily follow from the payment that this work and labour should have been formed upon the vessel. Nor did it shew a liability of any sort upon the sum paid in. Now the liability, according to the case on behalf of the plaintiff, rests not in any interest of the defendant in the vessel repaired, but in directions given by him. So that it becomes material to ascertain, whether the admission of liability extends to the whole, or to how much of the claim. It may appear, either that there was an authority to the extent only of the money paid, or that there was an authority to the whole extent of the work performed. the defendant might be willing to undertake a liability for a partial repair, though not for a general one. That is a question for the jury. It is, however, *urged on the part of the plaintiff that, since the new rule, the case must be treated as if the particulars of demand were a part of the declaration; for instance, if the declaration had alleged certain work performed on the bowsprit, and so on. I cannot agree to this, so far as regards the effect of payment of money into Court. It might be that the full particulars were not originally annexed to the record, and in that case, there being only a claim for work and labour in the first instance, the defendant might choose to admit that he owed 107. for some work and labour, and pay that sum into Court, and afterwards might demand full particulars, which, when delivered, might contain what he considered new causes of action. For this reason, I think it safer to adhere to the rule, that the payment of money into Court does not bind the defendant to admit the particulars of the demand and that the particulars are not neces sarily connected with the payment. I am of opinion, therefore, that the ques tion was properly left to the jury. The liability would be established by Mills having authority, or, in default of that, by the defendant ratifying the engage ment; and, if the liability existed, the question would be, how far it extended. PARKE, J. I am not satisfied that the jury have found their verdict on the right ground; and, if the matter depended upon me, I should send the case to a second trial. The jury, in answer to the question put to them after the ver dict, negatived Mills's authority, and from the mode in which the question was put, and their answer to it, I should infer that they founded their verdict altogether upon Mills's want of authority; whereas it is clear, that he might have had none, and yet the *defendant have been liable to their demand. Un[*680 der these circumstances, I should have wished the case to have gone to a second trial, that the jury might have decided upon both questions; first, whether Mills had authority to bind the defendant; and secondly, in default of that authority, whether the defendant had rendered himself liable, by his own acts, to a greater amount than the money paid into Court. With regard to the effect of payment of money into Court, there is no doubt, but that if such a payment is made on a count alleging a special contract, it operates as an admission of that contract: if on a general indebitatus count for work and labour, or the like, on which the plaintiff might recover for one or more distinct contracts, it operates as an admission of a liability to that amount, on some one or more of such contracts: its effect, in both cases, is the same as if a payment had been made by the defendant to the plaintiff of the like sum before action brought. But in that case, supposing it had clearly appeared in evidence, that there was in reality one entire indivisible contract in question between the parties, to which the payment must necessarily be referred, such payment would have operated as an admission of that contract, leaving it open to the defendant to make out his defence as to the unsatisfied part of it: and, in like manner, the pay ment into Court on a general indebitatus count for several things, may, I conceive, in some cases, coupled with the evidence, have the effect of an admission of a particular contract. I do not mean to say, that the payment would have had that effect in the present case: but as the only transaction in question between the parties was, the demand for the repairs of the ship on one particular

*681] occasion, the payment of money into Court would certainly have had the effect of an admission of liability to a part of that demand: the defendant being at liberty to contend that he had not made himself liable beyond that amount. I cannot help thinking, that the jury have proceeded on a wrong ground; and that they have not taken into consideration at all the acts of the defendant as tending to establish his liability, but that they have inquired only whether Mills was the agent of the defendant; and assumed that, unless he were, the defendant would not be liable. On that account a new trial would have been more satisfactory to my mind. Rule discharged.

EVERETT v. YOUELLS. April 24.

The delivery of food to a juryman, after the jury were shut up to consider of their verdict, is no ground for setting the verdict aside, if it do not appear that such refreshment was supplied by a party to the cause, or that it was delivered to a juryman, whose holding out decided the event.

Affidavits of jurymen are admissible as to matters which pass openly in Court, but where there is a Judge's report on the same points, that is conclusive.

THIS was an action of assumpsit, on a warranty of sheep, tried before Vaughan, B., and a special jury, at the Norfolk spring assizes, 1832. The verdiet was for the defendant. Storks Serjt., in Easter term, 1832, (April 19th), moved for a rule to shew cause why there should not be a new trial(a); first, on the ground that the verdict was against evidence; and secondly, on affidavits. By the first of these, it appeared that the trial began in the afternoon of Friday, the 23d of March, and occupied the rest of that and all the following day; that on Saturday evening, at eight o'clock, the jury retired from the box to *682] consider their verdict, *and, not agreeing, were shut up till the following morning; and that about three hours after they were shut up, a servant of J. A., Esq., the foreman, conveyed a sandwich to him by stratagem. The second affidavit (by the plaintiff's attorney), stated the deponent's information and belief, that about ten o'clock on the Sunday morning, the jury had an interview with the Judge, who then observed to them on the subject of their verdict, "that concession ought to be made by the minority to the majority; shortly after which, they agreed to find for the defendant; and the deponent said he was informed and believed, that in consequence of the Judge's explanation, and of exhaustion for want of victuals, three jurymen whom he named, (not including J. A.) were induced, though against their inclination, to yield up their own opinion and agree with the rest of the jury to find for the defendant. Storks, Serj. also proposed to put in affidavits of two of the jurymen to a similar effect with the last. [Lord TENTERDEN, C. J. I doubt whether these are admissible.] They do not come within the decided cases, where jurymen have offered to allege their own misconduct; and a ground is laid for receiving them, if the Court be of opinion that the verdict was against evidence.

Lord TENTERDEN, C. J. The delivery of food to the foreman might be ground for imposing a fine, but it is not a reason for setting aside the verdict. It does not appear that the food was supplied by a party to the cause, nor on which side the juryman who received it, was at the time; that one juryman only held out; or that the delivery of refreshment to the one who held out turned the event of the trial. Unless the *affidavits would shew that this refreshment had the effect of carrying the verdict, they would not support the rule.(b)

*6831

LITTLEDALE, J., concurred.

(a) Before Lord Tenterden C. J., Littledale, Parke, and Patteson, Js.

(b) See Co. Litt. 2276. Dunc. Trials per Pais, 8th edit. 248, 252.

PARKE, J. The officer who attended the jury may be punishable for neglect; but it would be a fearful thing if verdicts could be set aside on such grounds as this.

PATTESON, J., concurred.

The rule, therefore, as to this point, was refused; but a rule nisi was granted on two of the grounds stated; one of them being the alleged misdirection of the learned Judge, which was said to have influenced a part of the jury :—Lord Tenterden at the same time observing that the statements on this point might, perhaps, go the length of shewing that the verdict was not that of the whole jury; but that this would be a very dangerous ground to act upon in setting aside a verdict.

The report of the learned Judge was now read; by which it appeared that the expressions he had used were different from those ascribed to him. Kelly and Austin, in opposition to the rule, were stopped by the Court.

F. Pollock, and Storks, Serjt., contrà, adverted to the affidavits of the two jurymen; contending (which was denied on the other side) that the Court, on the former occasion, had permitted them to be filed. [PARKE, J. We cannot hear these affidavits.] A juryman is competent *to state on affidavit what passes publicly in presence of the Court.

[*684

PER CURIAM. (a) We cannot receive statements from the jury to shew on what grounds they acted. Affidavits of jurymen may be admissible, to shew what questions they put to the judge (though that would come better from any other source) or they may be used to supply the defect of notes by counsel: but when we have the Judge's own statement, that is a better authority.

The Court, therefore, being of opinion that on the report there appeared no misdirection, nor any ground for saying that this was not the verdict of the whole jury; and that on the other point there was no reason for disturbing the verdict, the rule was

Discharged.

*The KING v. The Justices of the West Riding of YORKSHIRE.

April 25.

(In the Matter of BOWER.)

[*685

In a notice of appeal against an order for stopping up a footway (under 55 G. 3, c. 68, s. 3,) it sufficiently appears that the appellant is a party aggrieved, if it be stated that he and his tenants, occupiers of a farm and lands near the said way, and who have heretofore used, and have a right to use it, and also other persons and the public, will be put to great inconvenience.

The statute requires "ten days' notice" of an appeal to the sessions against such order. By a rule of the West Riding sessions, in cases of appeal "not otherwise directed by law," ten days' notice is to be given, exclusive of the day of notice and first day of the sessions: Held, that the statute meant ten days' notice, one inclusive and the other exclusive; that the sessions rule did not apply to this case, or if it were intended to do so, this Court would use its discretionary power of controlling the practice. The appellant gave notices of appeal against three orders, all of the same date; he attended the clerk of the peace to enter them, and the entry was in the following form. "A. appellant against an order of B. and C. Esquires, dated, &c, for stopping up footways in," &c. He paid the fee as upon one appeal. At the sessions, the appellant's counsel being called upon by the other side to elect which appeal he would proceed with, proved his notices upon one, which was dismissed on a supposed defect of notice, and the order confirmed, as were the two others, nothing being said of the appeals against these, to which the same objections would have applied. On motion for a mandamus to enter continuances and hear the appeals, it appearing that the preliminary objection taken was unfounded, and that the appellant had in reality intended to enter his appeal against all the orders, this Court made the rule absolute as to all three.

(a) Denman, C. J., Littledale and Parke, Js.

A RULE nisi had been obtained for a mandamus to the justices of the West Riding to enter continuances upon, and hear, the appeal of Joshua Bower against certain orders of two justices for diverting certain public footways in the township of Middleton, in the parish of Rothwell, in the said West Riding. The orders were three in number, all dated the 28th of May, 1832; and Bower, on the 25th of June, 1832, gave notices of appeal against each of the orders, and, among other objections, the following was stated in every notice. "Because, if the said order should stand, and the said road be stopped up, the appellant and his tenants, occupiers of a certain farm, lands, &c., near adjoining the said road, and who have heretofore used, and have a right to use, the same, and also other persons, and the public, would be put to great inconvenience." The notices did not otherwise state that the appellant was aggrieved by the *686] orders. *The next quarter sessions for the West Riding were held on the 5th of July; on which day the appellant's attorney entered an appeal with the deputy clerk of the peace, in the following form-" Joshua Bower, appellant against an order of J. A. and J. I. Esqrs., for stopping up footways in the township of Middleton, dated 28th May, 1832." And he paid the fee which is usual for entering one appeal, the deputy clerk of the peace not being apprised at the time that more than one order was in question. («) The three orders being, on the same day, returned to the sessions, the respondents' counsel called on the counsel for the appellants to elect which case he would enter upon; and he proceeded to prove his notices of appeal against the order which stood second. An objection was taken, but over-ruled, that the notice did not state the appellant to be a party aggrieved. It was then objected that there had not been ten days' notice of appeal according to the rules of practice of these sessions; one of which is as follows:-" Appeals. In all cases

of appeals not otherwise directed by law, ten days' notice in writing shall be given by the party appealing, his, her, or their attorney or solicitor, exclusive of the day of service and the first day of the sessions or the adjournment to which the appeal is intended to be made." The Court held this objection valid, and dismissed the appeal and confirmed the order. They also confirmed the other two orders, no appeal against them being entered upon, nor any evidence offered of service of notice as to them.

*Blackburne and Dundas now shewed cause. This is a notice given *687] under the statute 55 G. 3, c. 68, s. 3, which enacts that in case of a footway being stopped up by order of justices, it shall be lawful for "any person injured or aggrieved by any such order or proceeding," to appeal to the justices at

the

quarter sessions next after the expiration of four weeks from the first publication of notice of such order, "upon giving ten days' notice in writing of such appeal to the surveyor of the highways," &c.; and the said court of quarter sessions is hereby authorized and empowered to hear and finally determine such appeal. First, the fact of the appellant being a party aggrieved, is not shewn with the certainty which appears to be requisite on a comparison of the cases, Rex v. The Justices of Essex, 5 B. & C. 431, Rex v. The Justices of the West Riding, 7 B. & C. 678, Rex v. The Inhabitants of Blackawton, 10 B. & C. 792. Secondly, there was not ten days' notice according to the construction which the sessions have determined should be put upon those words in the statute. By the expressions there used it was left open to them to decide whether the ten days should be exclusive or inclusive, and then, to prevent disputes, have established a rule, which ought to have been observed. Thirdly, one appeal only was entered or proceeded upon; on two others the orders were confirmed, and as to those at least there is no ground for the application.

Follett contrà. It is clearly shewn by the notice, that though not stated in terms, that the appellant is aggrieved; on this point, therefore, the language of

(a) The attorney for the appellant swore that he served the notices of appeal, and "as such attorney did duly enter the said appeal at the clerk of the peace's office."