1832.

Ezch. of Pleas, fore, be an extreme hardship on the defendant, and quite inconsistent with the object of the statute, which was intended for the relief of defendants, that the plaintiff should be at liberty to levy for more than the excess.

HEWS

PYKE.

Per Curiam.-The statutes 43 Geo. 3, c. 14, and 7 & 8 Geo. 4, c. 71, which were intended for the benefit of defendants subject to arrest, would effect a great hardship, if a plaintiff might pass by the money paid into Court, and issue execution for the whole sum recovered, and the costs. Suppose the case of a person arrested for 10007.; he would be put to the inconvenience of raising that amount to pay into Court, and, after verdict, of finding a like sum to meet the execution, or of suffering his goods to be sold by the Sheriff, and afterwards of waiting until an order could be obtained to have the money paid to him out of Court. To the plaintiff no hardship can accrue, as he can obtain the money out of Court at any time, and will be entitled to the costs of taking it out. The just interpretation of the direction in the Act, that the sum deposited shall remain in Court" to abide the event of the suit," is, that the plaintiff, if he succeeds, shall not be entitled only, but bound to resort to that in the first instance, and can issue his execution for the surplus only.

Rule refused.

END OF HILARY TERM.

ARGUED AND DETERMINED

IN

The Courts of Exchequer

AND

Exchequer Chamber.

EXCHEQUER OF PLEAS, EASTER TERM, 2 WILL. IV.

Cox v. THOMASON and WIFE.

THE first nine counts of the declaration were for a malicious prosecution. The tenth began by stating, by way of inducement, that before the committing of the grievances, &c., a certain portmanteau of the defendant Thomason, containing a sum of money, together with the money, had been feloniously stolen, taken, and carried away. The count then alleged a verbal slander relating to the portmanteau.

The eleventh count was as follows:-And afterwards to wit, on the 5th day of November, 1831, in the county aforesaid, in a certain other discourse, which the said defendant, Elizabeth Thomason, then and there had with, and in the presence of one Joseph Guildford and divers

puting that the plaintiff had stolen the money with which he paid for the meat, were spoken of and concerning the said meat. The part of the inducement, which stated, that the plaintiff had purchased the meat and paid for it, was not proved:-Held, that the want of such proof was immaterial.

1832.

Cox

บ.

THOMASON.

Exch. of Pleas, other good and worthy subjects of our said Lord the King, who then and there knew, and had heard of the premises in the introductory part of the said tenth count mentioned, of and concerning the said plaintiff, and of and concerning the said money in the introductory part of the said tenth count mentioned, and of and concerning the said Joseph Guildford, and of and concerning certain meat of the said Joseph Guildford, which he had before then purchased of the said plaintiff, who had before then purchased the same of certain other persons, and had paid for the same, she, the said Elizabeth Thomason, further contriving and intending as aforesaid, then and there, in the presence and hearing of the said Joseph Guildford and of the said other subjects of this realm, spoke and published to the said Joseph Guildford, of and concerning him, the said Joseph Guildford, and of and concerning the said meat, the words following (that is to say), Where did you (meaning the said Joseph Guildford) buy that meat (meaning the said meat of the said Joseph Guildford)? To which the said Joseph Guildford then and there answered and replied, and spoke and published, in the presence and hearing of the said subjects, of and concerning the said plaintiff, and of and concerning and relating to the said meat, and of and concerning the said Joseph Guildford, the words following (that is to say), "of Butcher Cox," meaning the said plaintiff, and meaning that he, the said Joseph Guildford, bought the said meat of the said plaintiff; whereupon the said defendant, Elizabeth, further contriving and maliciously intending to injure the said plaintiff, as aforesaid, then and there, in the presence and hearing of the said Joseph Guildford and of the said other subjects, falsely, wickedly, and maliciously spoke and published the following false, scandalous, malicious and defamatory words, of and concerning and relating to the said meat, and of and concerning and relating to the said plaintiff, and of and concerning and relating to the said money, in the introductory part of the

1832.

said tenth count mentioned (that is to say)-It's devilish Exch. of Pleas, hard that people should stuff their guts with meat that my money (meaning the money in the introductory part of the said tenth count mentioned) has paid for (meaning that the said plaintiff had feloniously stolen the said money, and had paid for the said meat with the same).

There were several other counts respectively similar to the tenth and eleventh.

At the trial before Gaselee, J., at the last Assizes for the county of Somerset, the defendant had a verdict on the counts for a malicious prosecution, and on all those for slander, except the eleventh and some similar counts for the same slander, on which the same question arose as on the eleventh. On the eleventh, and the similar counts, the plaintiff proved the words and the inducement, except that part of the inducement which stated that Cox, the plaintiff, had before then purchased the same meat of certain other persons, and had paid for the same. The plaintiff had a verdict on those counts, with 40s. damages.

Crowder now moved for a new trial.-The inducement was not proved. It is stated, that the meat, of and concerning which the slanderous words are stated to have been spoken, had been purchased by Cox from other persons, and had been paid for by him. The words are expressly laid to have been spoken of and concerning the "said meat." It might not have been necessary to state such inducement; but as the plaintiff has stated it, it was necessary for him to prove it. In Sheppard v. Bliss (a), it was alleged, that the words were spoken of and concerning certain soap, asserted by A. B. to have been stolen out of his yard. The evidence was, that A. B. had asserted, that the soap had been taken out of his yard; and Lord Chief Justice Abbott held the variance fatal.

(a) 2 Starkie, N. P. C. 510.

Cox

v.

THOMASON.

BAYLEY, B.—It might be in that case, that without those words of A. B. the words of the defendant might not have imputed a theft. If the words are actionable without the inducement, I do not know that the insertion of what is not proved occasions a variance; you are only bound to prove what is material.

In case for sell

ing goods distrained for rent

without an ap⚫ praisement, the measure of damages is the va

minus the rent

(a).

CASE for an excessive distress, selling without appraisement, and other irregularities in conducting the distress and sale.

At the trial, before Garrow, B., at the London Sittings lue of the goods after last Hilary Term, the plaintiff had a verdict on the count for selling without an appraisement, for 50%., the value of the goods sold minus the rent due, with leave to move to increase the damages to 90%., the whole value of the goods sold.

Bompas, Serjt., now moved accordingly. The plaintiff was entitled in this action to recover the whole value of these goods. They were sold without any proper appraisement. The sale of goods distrained for rent was authorized by the statute 2 W. & M. sess. 1, c. 5. Before that statute, the sale of goods taken for a distress was wholly illegal, and made the distress illegal and void, and the taker a trespasser ab initio, and clearly liable to the

(a) The same point was decided at Nisi Prius, in Notts v. Curtis,

coram Parke, J., Nottingham Lent Assizes, 1832.