hibits any recovery for spirituous liquors unless the debt shall have been contracted at one time to the amount of 20s.

DEBT for goods sold, meat, drink, &c. provided, and for money paid, and on an account stated. The defendant pleaded, among other pleas, a set-off; and, as to the goods and drink, that the same consisted wholly of spirituous liquors; and that there was not at any one time any debt contracted for the same, or any part thereof, to the amount of 20s. or upwards. The plaintiff, by his replication, denied the matter of both pleas. The amount indorsed on the bill of summons, as claimed in the action, was 187.; and the plaintiff delivered a particular of demand to that amount. He afterwards, *under a judge's *12] order, delivered a fuller particular, which contained an account of spirituous liquors supplied to the defendant on different days, at a rate never amounting to 20s. in a day, but forming a total charge of 117. 2s.; and there was also an account of other articles, amounting to 237. 2s. At the trial before the under-sheriff of Middlesex, by a writ of trial, in the last vacation, it appeared that the defendant had paid the plaintiff 177. on the account between them; but there was no proof that either party had said any thing of applying the money so paid to any specific part of the demand. The defendant's counsel contended that he had a right to consider the demand of 117. 2s. for spirits as forming part of the residue of 177. claimed by the plaintiff, after allowing for the 177. already paid; in which case the stat. 24 G. 2, c. 40,(a) would apply, and the plaintiff's claim must be further reduced by 117. 2s. The under-sheriff left it to the jury, whether the plaintiff, when he received the 177., appropriated the 117. 28. of it to the payment of his demand for spirits; directing them, if they so found, to give the plaintiff a verdict for 177. The jury were of opinion that the appropriation was made, and they found their verdict accordingly for 171.

Mansel now moved for a new trial, or (by leave reserved) to reduce the damages. This is not a case in which an appropriation by the creditor ought to *have been presumed. The plaintiff, by proceeding for only 187., *43] gives general credit for a certain sum received: by inserting in his particular all the items of demand, up to 347., he admits that there has been no specific appropriation. The statute says expressly, that no person shall recover any sum or demand for spirituous liquors, unless such debt shall have been contracted at one time to the amount of 20s. By allowing the plaintiff to say now that the former payment was appropriated to this part of his claim, he would in effect be enabled to recover in contravention of the statute, and upon a consideration which the statute, in effect, renders illegal. [TAUNTON, J. He did not recover for the spirits in this action, if the jury were of opinion that he had been paid for these already.] The plaintiff ought to have shewn that he appropriated the payment.

Lord DENMAN, Č. J. If this action were brought for the 117. 2s. claimed for spirits, the statute would be an answer: but the action is not brought for that; the plaintiff seeks to recover what is due after that has been paid. The question is, whether the jury were warranted in saying that the former payment was on account of the spirits. The defendant made no appropriation of that payment; the plaintiff, therefore, might elect at any time to appropriate it to this part of his demand.

TAUNTON, J. The spirits have, in this case, been excluded from the verdict. The rule is, that if a debtor pays money on account, and does at the time state how it is to be applied, the creditor may make the appropriation. Here, the

(a) Stat. 24 G. 2, c. 40, s. 12, enacts, that no person "shall be entitled unto or maintain any cause, action or suit for, or recover either in law or equity, any sum or sums of money, debt or demands whatsoever, for or on account of any spirituous liquors, unless such debt shall have been really and bona fide contracted at one time, to the amount of 208. or upwards."

VOL. XXIX.-4

[*44

177. was paid without any application *to particular items of the account. The plaintiff then might apply that payment to the items in question: and he was not bound to tell the defendant, at the time, that he made such application; he might make it at any time before the case came under the consideration of a jury. There is, therefore, no "action maintained," or "recovery,' for the spirits, in this case, according to the terms of the statute; and there is no provision in the act that a party having been paid for spirits supplied in the quantities there mentioned, shall be liable to refund. The defendant, if he wished to avail himself of the act, should have appropriated the payment at the time of making it.

WILLIAMS, J.(a) The objection is, that this action may be considered as brought for the particular part of the account to which the statute would apply: but the defendant has disarmed himself of this objection by not appropriating the payment when he made it. The payment, having been made on account of the spirits, is valid; he could not have brought an action to recover the money back. Rule refused.(b)

*EX parte LAW. Monday, Nov. 10.

[*45

A testator died, indebted to an attorney for law expenses, including the preparation of his will, which was left in the custody of the attorney: the Prerogative Court having cited the attorney (at the instance of the personal representatives) to bring in the will, and leave it in the registry of that court, the Court of King's Bench, refused, in this stage of the proceedings, to interfere by prohibition, on the ground of the attorney's claim to a lien on the will.

WIGHTMAN had obtained a rule, in Trinity Term last, calling upon Mary Wood to shew cause why a writ in the nature of a writ of prohibition should not issue to the Judge of the Prerogative Court of Canterbury, commanding him to stay all further proceedings against John Law in the matter of Joseph Wood deceased, until the lien of him John Law, and of Richard Coates on the will of Joseph Wood should have been satisfied or discharged. The affidavits in support of the rule stated that Law and Coates were attorneys, and had been employed as such by Joseph Wood deceased; that J. W., at the time of his death, owed them 2007. for business done, including the preparation of his will; that J. W. deposited the will with Law and Coates; that it remained in their custody till the dissolution of partnership between Law and Coates; and that since the dissolution, and up to, and always since, the time of J. W.'s death, it had remained in the custody of Law; that application had been made, soon after the death of J. W., to Law, by the son and son-in-law of J. W., on behalf of Mary Wood the widow of J. W., to know if the will was in his custody, which Law admitted, but insisted upon having his account settled before the will was given up, upon which they directed him to make out his bill; that Law gave them a copy of the will; that afterwards Mary Wood made a written application to Law to have the will delivered to her, and the bill sent in; that Law subsequently delivered the bill of costs but persisted in *his refusal to deliver up the will till his account was settled, whereupon he was served with a [*46 citation from the Prerogative Court of Canterbury, at the instance of Mary Wood, requiring him to appear in that court, and bring in and leave in the registry of that court the original will. Law further deposed that he was advised that he and Coates had a lien on the will at common law, but he was informed

(a) Patteson, J., was absent.

(6) See Cruickshanks v. Rose, 1 M. & Rob. 100. Also Wright v. Laing, 3 B. & C. 165, as to the case of an unappropriated payment where one of the demands arise upon a matter forbidden by law.

that the Prerogative Court would decree that he should give up the will without payment of his bill of costs. It was further sworn that Sir John Nicholl, the Judge of the Prerogative Court, had, on a day subsequent to the day on which the citation required the will to be brought in, declared, upon the case being mentioned, that the claim of lien was no excuse for not bringing in the will; and that, if it was not brought in on or before the next sitting of the court, he should pronounce Law to be in contempt.

Follett now shewed cause. The Prerogative Court has an exclusive jurisdiction as so the probate of wills, or compelling the production of them: this court, therefore, will not interfere by prohibition, which is a proceeding applicable properly to cases where the Spiritual Court is exceeding its jurisdiction. As to the question of lien, this court, if a proper case should appear, may interfere when the question arises; but they will not anticipate it.

Wightman, contrà. It is true that the Spiritual Court has exclusive jurisdiction; but the question here is, whether the Court of King's Bench will interfere to prevent the Spiritual Court from proceeding in derogation of *the common law. In a tithe suit, this court interferes when a question *47] of modus, or other matter of common law, arises. Here a lien is claimed, which is a matter of common law. If this application were to fail, an attorney's lien on a will would be altogether nugatory.

LORD DENMAN, C. J. Your application goes to prevent the Spiritual Court from even having the will brought in till the lien is satisfied. You do not call on them not to keep it in the registry. We cannot presume that, when they have ordered the will in, they will do any thing improper. Supposing the question of lien to arise, we should see whether we could give effect to the right without injuring parties.

TAUNTON, J. There is clearly no ground for this application. It is assumed that the Prerogative Court are going to act in derogation of the course of common law; that is, that they will try the right of lien. I know that when a Spiritual Court proceeds to try a custom, or other similar question, this Court will interfere. But at present, it does not appear that anything is going to be done in derogation of the common law. The Spiritual Court has not only jurisdiction over wills, but exclusive jurisdiction; and they are not exceeding that jurisdiction when they order the will to be brought in. We cannot act upon the mere suggestion that it is likely they will proceed as this Court would not proceed. I trust that the Spiritual Court will hold the will to be in the possession of the parties who are entitled to it.

*WILLIAMS, J.(a) No ground has been shewn for this application. *48] We cannot say that the Spiritual Court will proceed improperly. Admitting that it is the proper place for the custody of wills, it is too much to say that we are to prevent their having that custody on the supposition that the rights of parties will be injured. The usual case of a prohibition being granted is, where there is either a proceeding contrary to common law, or cognisance taken of that which is cognisable only at common law.

Rule discharged with costs.(b)

In the Matter of Arbitration between BRIDGE and WRIGHT. Monday,

Nov. 10.

A Judge has power to give costs on proceedings at chambers, but it will be exercised only in extreme cases.

(a) Patteson, J., was absent.

(b) See Georges v. Georges, 18 Ves. 294, Balch v. Symes, 1 Turn. & R. 87, Tyler v. Drayton, 2 Sim. & St. 309.

F. Pollock had obtained a rule in Hilary term last, to shew cause why Bridge or his agents should not pay the costs of John Henry Law and others, incurred in opposing the several applications made against them respectively on summons before DENMAN, C. J. and LITTLEDALE, J., in the matter of this arbitration. The rule had been obtained, and was opposed, upon affidavits stating the course of proceedings before the learned Judges, which it is not necessary to particularise here.

Joseph Addison now shewed cause against the rule, and F. Pollock was heard in support of it. [TAUNTON, J. Some time ago, the Judges resolved that they had power to give costs on proceedings at chambers; but they determined that it should not be exercised except in extreme cases.] THE COURT(a)

[*49 Discharged the rule. (b)

The KING against SAMUEL FRANCEYS. Monday, Nov. 10.

On motion for a criminal information for a libel published in a newspaper, if the Stamp Office affidavit, under stat. 38 G. 3, c. 78, be put in to shew that the defendant is the printer and publisher, such proof is not sufficient unless the newspaper produced as containing the libel corresponded with the description in the affidavit, not only in title, but in the name of the place of printing.

And where the place of printing was called Union Street, Castle Street, in the affidavit, and Union Buildings, John Street, in the newspaper, the Court refused to enlarge the rule, in order that supplemental affidavits might be filed, showing that the places named were identical.

Where a newspaper is filed, together with affidavits, in support of a motion for a criminal information for a libel, the Court will take notice of it, if it correspond in the necessary particulars with the Stamp Office affidavit, though it be not annexed to, and expressly identified by, any affidavit.

SIR James Scarlett had obtained a rule in Easter term last, calling upon the defendant to shew cause why a criminal information should not be filed against him for printing and publishing certain alleged libels. The publications complained of were contained in numbers of a newspaper, called "The Liverpool Standard and General Commercial Advertiser.” The newspapers were not annexed to, and identified by, any of the affidavits; the deposition of the prosecutor simply stating that the libels had appeared from time to time in a certain newspaper, called, &c. A copy of the defendant's affidavit delivered at the Stamp Office was put in, with the certificate of a commissioner of stamps indorsed and verified on oath, according to stat. 38 G. 3, *c. 78, ss. 9, 13. This affidavit set forth that the defendant was the printer, pub[*50 lisher, and sole proprietor of a certain newspaper, called "The Liverpool Standard and General Commercial Advertiser," and that it was intended to be printed at the printing-office of the said S. F., situate in Union Street, Castle Street, in the parish, &c., and that it was entitled (as before.) The affidavits contained no further description of the newspapers; but newspapers were filed, (c) together with the affidavits, which contained the libels complained of, and bore the same title with that mentioned in the defendant's affidavit at the Stamp Office, but which purported to be printed at "Union Buildings, John Street."

F. Pollock, Kelly, and W. H. Watson shewed cause. The defendant is not shewn to be connected with the publication complained of. The paper pro

(a) Lord Denman, C. J., Taunton, and Williams, Js.

(b) See Read v. Lee, 2 B. & Ad. 415, Doe dem. Prescott v. Roe, 9 Bing. 104.

(c) The counsel for the defendant objected to these newspapers being noticed by the Court, as not being connected by express affidavit with the alleged libels: but the Court said they would take notice of them. See Mayne v. Fletcher, 9 B. & C. 382, Rex v. Donnison, 4 B. & Ad. 699.

duced does not correspond with that described in the affidavit at the Stamp Office. Even admitting it to be unnecessary that the affidavits in support of the prosecution should have the libel annexed and identified, under the eleventh section of the act, still that section applies only where the name or names and the place of printing of the paper produced, shall be the same as the name or names and the place of printing mentioned in the affidavit at the Stamp Office; and the proof of the publication and printing of the paper is not rendered unnecessary if this section be not complied with. Sect. 9, makes the affidavit

evidence of all contained in it; but that does not prove the publication

*51] by the defendant of a newspaper printed in Union Buildings, John Street. [Follett, in support of the rule, mentioned Rex v. Donnison, 4 B. & Ad. 698.] That was merely a question whether the statute dispensed with proof of publication by the defendants, on motion for a criminal information, where the paper was sufficiently described in the Stamp Office affidavit.

Sir James Scarlett and Follett, contrà. The title of the papers produced corresponds with that in the Stamp Office affidavit: the printer is not to evade the statute by printing in a place different from that which he has pointed out in his own affidavit.

Lord DENMAN, C. J. This rule must be discharged. If the paper be not printed in the place described in the Stamp Office affidavit, the act gives an easy proceeding against the party. (a) We must give effect to the express

enactments of the statute.

TAUNTON, J. Fault has been found with the statute, as going a great length in supplying presumption of publication and printing: we cannot carry it further.

WILLIAMS, J., concurred.

*52]

*The counsel for the prosecution then applied to have the rule enlarged,() in order that supplemental affidavits might be filed, alleging that that the two places were identical; and they referred to Rex v. Featherstone, cited in Rex v. Donnison, 4 B. & Ad. 699.

PER CURIAM. In a proceeding of this sort, parties should come prepared. The court would be setting a dangerous precedent, if they allowed the course proposed. Rule discharged.

MACARTHUR against CAMPBELL. Monday, Nov. 10.

On a motion for an attachment for not performing an award, the Court will not discuss objections to the award, not apparent on the face of it; as, that the arbitrator was partial, or that matters were brought before him (the reference being of all matters in difference) which are not disposed of by the award.

ASSUMPSIT. Plea, the general issue. On the 18th June, 1832, by an order of Lord Tenterden, the cause, and all matters in difference between the parties, were referred to an arbitrator; the costs of the suit and of the reference to abide the event of the award. The order was made a rule of court, 19th April, 1833. The arbitrator awarded 12th November, 1832, "that there is not any sum or sums of money due and owing from the said H. D. Campbell

(a) Section 2, requires an affidavit with "the true description of the house or building wherein any such paper is intended to be printed;" section 4, requires a fresh affidavit on changing the printing-house, place, &c.; section 7, imposes a penalty of 100l., for publishing without the proper affidavits having been sworn "as often as by this act is required;" section 10, requires that the paper shall centain the description of the place of printing, under a penalty of 100%.; and section 29, prescribes the mode of recovering penalties, by action or information.

(b) The rule had previously been twice enlarged, but not for the purpose of supplying deficient proof; and it did not distinctly appear at whose request this had been done.