1839.

BEVAN

v.

REES

and Another.

Evans v. Judkins (a). A debtor has no right, by placing a heap of money before his creditor, and by calling on him to take his demand out of it, to throw upon the latter the onus of not taking too much. In Wade's case, and other subsequent authorities to the same effect, the money was produced in such a manner that the sum due was separable from the mass.

Lord ABINGER, C. B.-The rule must be discharged. Where a creditor claims the amount due to him, and his debtor comes with a sum exceeding that amount, and makes an offer to pay what is due, and the creditor makes no objection, on the ground of not having change, that is a good tender. If indeed, the creditor does not happen to know the precise amount due, and tells his debtor so, the case might be different. But here it is admitted, that the plaintiff's attorney knew the amount when the defendant's shopman went to him with the money, and when the latter asked what was due, he refused to tell. The shopman then laid the money on the desk, and said, “tell me the amount, and I will tender you the exact sum; if you will not do that, take it yourself from the money I produce." This the attorney refuses to do, unless the balance of a shop account is fixed at a certain amount.

ALDERSON, B.-The attorney refused to say what was due, unless the opposite party would allow a set-off to stand at a certain amount. That was a condition which he had no right to impose. Then is it not a tender, if a party says, "tell me the amount due, or if you will not do that, take what you consider due out of the amount I put down before you?"

GURNEY, B., concurred.

MAULE, B.-It seems to me, that this is a good tender,

(a) 4 Camp. 156.

1839.

BEVAN

v.

REES

for although a tender must be made of a specific sum, yet, whenever the creditor has the option of taking the money without any condition of this nature annexed to the offer, that is a good tender. But if there be a condition of this and Another. nature, as "I will pay the money, provided you put it into your pocket," and such like, there is nothing in the refusal of which the debtor has a right to complain. Here the offer was not coupled with any condition; and it was in the power of the plaintiff to take the sum tendered.

Rule discharged.

LEACH v. SIMPSON and Rock.

TRESPASS, for assaulting the plaintiff, and forcing The rule that a

written deposition taken

under 7 Geo. 4, c. 64, is the

best evidence

of a statement

made before a magistrate, is

not confined to

the individual case in which

it is taken, but applies to all proceedings in

which it is sought to

evidence.

him out of a theatre, and carrying him along divers public streets to a certain watch-house, and thence to a common gaol, and there imprisoning him. The defendants pleaded jointly not guilty; and the defendant Simpson further pleaded, that he was acting manager of the said theatre, at which the plaintiff, on the evening when the alleged trespass took place, was engaged to perform in a certain piece about to be exhibited; that the plaintiff unlawfully went into the boxes which were set apart for visitors, and thence across the pit and benches, and upon the stage, adduce it in conducting himself improperly, and, without the consent of Simpson, addressing the audience, exciting them to riot and breach of the peace, and that a portion of the audience, excited by such conduct on the part of the plaintiff, proceeded to make a great uproar, and to act in violation of the peace: whereupon the defendant Simpson, as such manager, to preserve the peace and prevent further mischief, gave the plaintiff in charge to the defendant Rock, who was a constable, who took him into custody, which are the same supposed trespasses, &c.

1839.

LEACH

t.

SIMPSON

and Rock.

At the trial, before Lord Denman, C. J., at the last assizes for the County of Warwick, the defendant, in support of his justification, proved the affray mentioned in the plea, and that the plaintiff was, on the following morning, brought before a magistrate on a charge of riot. The plaintiff's counsel proposed to ask some questions as to what had then been said before the magistrate; but it appearing that the statement had been taken down in writing, it was contended, on the part of the defendant, that the depositions ought to be put in. The learned judge was of that opinion, and rejected the evidence, and a verdict was found for the defendant.

Waddington, in Easter Term, moved for a new trial, on the ground that the evidence had been improperly rejected. The rule that the deposition is the last evidence of what passed before a magistrate, does not apply to a collateral proceeding in a civil action. The 7 Geo. 4, c. 64, s. 3, provides, that "the justices shall take the examination of the person charged, and the information upon oath of those who shall prove the facts and circumstances of the case, or so much thereof as shall be material, into writing, before he shall commit to prison or require bail from the person so charged." That enactment only makes the deposition the sole evidence in that particular case, but does not affect the general rule that a statement by a party before a magistrate is receivable as an admission against his interest in a civil suit. The mere circumstance of certain testimony having been noted down by a person in authority, does not exclude all other proof of what passed. If that was so, the judge's notes would be the only evidence of what passed at the trial. [Lord Abinger, C. B. A judge only takes notes for his own private convenience; there is no law which requires him to do so.] Besides, it does not appear that the deposition was read over to the witness, or signed by him or even that he was sworn before the magistrate.

Lord ABINGER, C. B.-When testimony has been reduced to writing by a person of competent authority, the writing is, in the first instance, the only proper evidence of that testimony: and the rule is the same, whether the evidence be taken by means of interrogatories in Chancery, or by depositions before a magistrate. I never before heard it objected that the rule did not extend to civil cases; but there can be no doubt that it does.

PARKE, B.-The rules of evidence must be the same in civil and criminal cases. Until the contrary is shewn, it is presumed that the magistrate took down all that was material in the testimony. That deposition, therefore, is the best evidence of what was said, and ought to be produced, before the witness is questioned as to what passed on that occasion. It is, however, by no means conclusive, and if it appears, on production of the depositions, that it contains no mention of certain statements alleged to have been made before the magistrate, the witness may then be asked if he did not make them. Then as to the signing, as the act only requires that the depositions should be signed by the magistrate, the signature of the witness is not requisite.

ALDERSON, B.-We must presume that the magistrate took down all that was material, as required by the statute. Those depositions are then the best evidence of the statement used.

1839.

LEACH

V.

SIMPSON

and

Rock.

Rule refused.

1839.

IN RE OTHO MANNERS.

An inquisition CRESSWELL had obtained a rule to shew cause why

in outlawry is in this Court, returned into the Queen's Remembrancer's office, therefore a

one Harvey should not be at liberty to traverse the inquisition taken in this case, or why it should not be quashed. It was a proceeding in outlawry, and the affidavits upon which the rule was obtained, were entitled motion relating "In the Exchequer of Pleas. The Queen for the prosecution of Thomas Carter, the elder, against Otho Manners."

to it should be

made through the medium of one of the side clerks.

Wightman shewed cause, and objected that the application was improperly made on the common law side of the Court, as the inquisition was returned into the Queen's Remembrancer's Office. He referred to Manning's Exchequer Practice, p. 96.

Cresswell, contrà, contended that a party had a right to apply for leave to come in and traverse an inquisition, and that until permission was granted, the proceedings were on the common law side of the Court.

PER CURIAM.-The inquisition is supposed to be in the Remembrancer's Office, and we cannot hear you, unless instructed by one of the side clerks.

In trover, against the assignees of a bankrupt, the defendants

may, under the plea of " not

possessed," give

evidence that

ISAAC v. BELCHER and Others, Assignees of JOEL, a Bankrupt.

TROVER for household furniture, wine, &c. Pleas, not guilty, and that plaintiff was not possessed, &c., as of his own property.

At the trial before Lord Abinger, C. B., it appeared

the goods were in the order and disposition of the bankrupt as reputed owner.