1829. REEVE V. STAREY. coals called "Stewart's Walls-end coals;" the same coals so sold as aforesaid, then and there being coals of another and different sort from coals of the said sort called "Stewart's Walls-end coals," contrary to the form of the statute in such case made and provided; whereby, and by force of the said statute, the said defendants then and there forfeited, and became liable to pay, for their said offence, the sum of 201. per chaldron, for each and every of the said chaldrons of coals, so sold by the said defendants as aforesaid, then and there amounting to a large sum of money, to wit, the sum of 1007. &c.: and thereby, and by force of the statute &c., an action accrued to the plaintiff, &c. Plea-Nil debet. From the evidence it appeared, that, in the month of July, 1828, the defendant Starey applied to a Mr. Coward, living in Cheapside, and wished him to buy some coals. He agreed to purchase a room of the best Walls-end, at 45s. a chaldron, for ready money. On the 18th July the coals were delivered, and two or three days afterwards, another of the defendants, named Grellier, called and brought a bill of parcels; Mr. Coward told him that the coals were not the sort that he had ordered; Mr. Grellier replied, that they were as good, because they had been sifted. The only difference between Eden's Main, and Stewart's Walls-end coals is in the size. The tickets which were sent with the coals, had originally contained the words "Eden's Main;" but there were written over them the words "Stewart's Walls-end." Both these were in the hand-writing of Mr. Grellier, as were the words Starey, Grellier, & Co.," which were on one of the tickets. 66 A labouring ship-coal-meter proved that, on the 4th of July, he delivered four rooms of Eden's Main coals from a ship called the Blagden, into a barge called the Hogarth; and that he made out a certificate of the quantity and description of the coals, which was signed by the master of the vessel, and given to the lighterman to take to the wharfinger (a). This certificate was not produced, but a person from the cocket-office produced the fitter's certificate of the general cargo of the ship Blagden, which was of two hundred and thirty chaldrons of Eden's Main coals; and a land-coal-meter, stationed at Pearson's wharf, where the defendants were in the habit of drawing their coals, proved that, on the 17th of July, five chaldrons of Eden's Main coals were taken from the barge Hogarth, and loaded into two waggons, to be taken to Mr. Coward's on the following morning. The witness added, that he made out the meter's tickets, and countersigned the vender's tickets; and that he wrote the words " Eden's Main" in the meter's tickets, after they had been written in the vender's tickets by the defendant Grellier. Campbell, for the defendants, submitted that, upon this evidence, there was no case to go to the Jury. By the 55th section of the 47 Geo. 3, sess. 2, c. lxviii., the certificate of the ship-meter must be delivered to the lighterman; and it is only by means of this certificate that the coals. can be identified (b). They were lost sight of from the 4th of July, when they were taken from the ship, till the 17th, when they were taken from the barge; and, without the certificate, the chain of evidence is broken, and there is no proof that they were the same coals. Lord TENTERDEN, C. J.-According to the evidence, the defendant Grellier writes the tickets himself, and he calls them Eden's Main Coals. I am of opinion that this supplies the want of the certificate. I think there is quite enough to identify the coals. Campbell then addressed the Jury for the defendants, and contended that no fraud was meditated or attempted. The act says, if any person knowingly shall sell, &c. (a) This is required by s. 55 of the 47 Geo. 3, sess. 2, c. lxviii. (b) Vide also sect. 92, post, p. 20, note (a). 1829. REEVE V. STAREY. 1829. REEVE บ. STAREY. Now, this might be a mistake on the part of Mr. Grellier; and there is no evidence at all to affect either of the others. There is no evidence of the coals being Eden's Main. The meter's certificate is not here; and Mr. Grellier might have discovered, between the afternoon when the waggons were loaded, and the next morning when they went out, that he had made a wrong insertion, and he might have made the alteration in consequence. There is not that satisfactory proof which is necessary to support an action to recover penalties. Lord TENTERDEN, C. J., (in his summing up), said—The single question is, whether these coals were sold as a different and better sort than they were. The defendant, Grellier, when told by Mr. Coward, that the coals were not those he ordered, does not say that they are not of a different quality, but he says that they are as good. From the evidence, it is clear, that a cargo of Eden's Main coals, came in the ship Blagden; and that, on the 5th of July, a portion of these coals was put into the barge Hogarth. Thus far it is all clear. Then there is the evidence of the land-coal-meter, who proves the entry in the ticket, in the hand-writing of the defendant Grellier. If that entry had been of a wrong sort, the land-meter would have detected the error, and would have set Mr. Grellier right (a). He was therefore obliged to put it in correctly. If this satisfies you that Mr. Grellier, at least, knowingly committed this fraud, then you will find your verdict for the plaintiff; if, on the contrary, you will find for the defend ants. Verdict for the plaintiff,-1007. (a) By the 92nd section of the act before mentioned, it is provided that the land-coal-meter may demand from the wharfinger a sight of the ship certificate, in order that he may be satisfied that the coals sent from any wharf in wag gons or other carriages, are of the sort or description mentioned in the tickets, by the act directed to be delivered by the vender to the purchaser; and the meter, if satisfied, is to countersign the vender's ticket. Scarlett, A. G., Denman, C. S., Bolland, and Patte son, for the plaintiff. 1829. Campbell, and Platt, for the defendants. [Attornies-W. L. Newman, and Stevens & Co.] Further adjourned Sittings in London, after BEFORE LORD TENTERDEN C. J. REEVE บ. STAREY. CROPLEY V. CORNER. ASSUMPSIT by the plaintiff as indorsee of a bill of ex- Oct. 19th. Action by the indorsee against the acceptor of a bill of exchange; the de fendant had tak The Plea en the benefit of the Insolvent he To prove the acceptance, the drawer was called; stated on the voire dire, that the defendant had taken the benefit of the Insolvent Act, and that he (the witness) was named as a creditor in the schedule. Thesiger, for the defendant.—This person is not a competent witness. He cannot sue the defendant, because his debt is in the defendant's schedule; but he is still liable to the plaintiff. His interest, therefore, is, to let the plaintiff recover as much as possible from the defendant, to lessen his own liability. In ordinary cases, the drawer is a good witness, because he can recover over; but, in (a) There was no plea under the Insolvent Debtors' Act. See the case of Nias v. Nicholson, ante, Debtors' Act, and had set down the drawer as a creditor, in his schedule: Held, that the drawer was, notwithstanding this, a compe tent witness for the plaintiff in this action. 1829. CROPLEY v. CORNER. the case of an accommodation bill, the drawer cannot recover over, and he is not a competent witness. Lord TENTERDEN, C. J.-I think that the drawer is a competent witness in this case. A judgment against the present defendant would be no bar to a future action against the drawer. I think he may be examined. The drawer was examined. Verdict for the plaintiff. Chitty, for the plaintiff. Thesiger, for the defendant. [Attornies-Garry, and Pratt.] Oct. 20th. The Judge, at the trial, will not allow an JELF, Knt. v. ORIEL and Another. ASSUMPSIT on a bill of exchange, for 2007., dated May 19th, 1828, drawn by the defendants on Lord Audder the stat. 9 ley, and by them indorsed to the plaintiff. Plea-General amendment un Geo. 4, c. 14, when there is would not have issue. The first count of the declaration stated, that the bill occurred if com- was accepted by Lord Audley," payable at Sir James Esdaile & Co.'s, Bankers, London, or at No. 18, Poland mon care had been used in the drawing of the declaration. Street, Oxford Street." The witness, who proved the acceptance to be of Lord Audley's hand-writing, stated, that the words, " or at No. 18, Poland Street, Oxford Street," were not of his Lordship's hand-writing; indeed, it was manifest that those words had been added afterwards. Denman, for the defendant, objected that this was a variance. |