1831. COLLIER v. SIMPSON. Wilde, Serjt., proposed to shew that the prescriptions were proper, and the doses not too large; and wished to put in medical books of authority, to shew what was the received opinion in the medical profession. TINDAL, C. J.-I think I cannot receive medical books. Wightman. When foreign laws are to be proved, it frequently happens that a witness produces a foreign law book, and states it to be a book of authority. TINDAL, C. J.—Physic depends more on practice than law. I think you may ask a witness, whether, in the course of his reading, he has found this laid down. Sir H. Halford, the President of the College of Physicians, was called. He stated that he considered the medicine proper, and that it was sanctioned by books of authority. He stated that the writings of Dr. Merriman and Sir Astley Cooper were considered of authority in the medical profession. Sir Bompas, Serjt.-I submit that medical books cannot be cited-more especially those of living authors. Astley Cooper and Dr. Merriman might be called. Wilde, Serjt.-I wish to shew that these books are acted upon by persons in the medical profession. TINDAL, C. J.-I do not think that the books themselves can be read; but I do not see any objection to your asking Sir Henry Halford his judgment, and the grounds of it, which may be, in some degree, founded on books, as a part of his general knowledge. Verdict for the plaintiff-Damages, 40s. Wilde, Serjt., and Wightman, for the plaintiff. [Attornies-Mayhew & Co., and Lonsdale.] 1831. COLLIER v. SIMPSON. HEWITT v. PIGGOTT, Esq. ACTION against the Sheriff of Somersetshire for a false return of nulla bona to a writ of fi. fa., issued upon a judgment obtained in Easter Term, 1828, against the Earl of Egmont, upon a bond debt for 40007. The defence was, that in 1824 the whole of the property of the noble Earl was conveyed to trustees for the benefit of creditors; and, that although the plaintiff had not in fact executed the deed, his debt, upon which the judgment was obtained, was inserted with the others in the deed; that he was fully acquainted with this arrangement at the time, and had requested, that payment might be made out of the trust funds of a bill of exchange drawn by him upon the Earl of Egmont for 300%., and had writ ten various letters expressing his wish to have debentures for his debt like the other creditors, according to the provisions of the deed. filed in plaintiff It appeared that a bill of discovery had been Chancery, on the part of the Earl, against the Hewitt, and that his answer contained a schedule of let ters in his possession from the Earl and other persons relating to these transactions. An order or decree was subsequently made in the suit, requiring the present plaintiff to bring all the said letters, papers, &c., mentioned in his answer, into the proper office of the Court, to be deposited there. Wilde, Serjt., for the defendant, proposed to put in this order, with a view to introduce a letter written to the pre 1831. HEWITT v. PIGGOTT. sent plaintiff, which had been so deposited by the plaintiff under it. Cross, Serjt., objected, that, to make any part of the proceedings in equity evidence in this cause, the bill and answer must be put in, upon which the order in question was founded; and that it was not competent to the defendant to select a particular document, which might bear a very different interpretation from its primá facie import, when explained by the other parts of the proceedings to which it related. TINDAL, C. J.-The object of putting in this order is merely to introduce a letter which it is alleged the plaintiff produced from his own custody, and placed in the Six Clerks' Office. I think the order is admissible of itself, being an act of the Court, not affecting the rights of either of the parties; but it is another question whether the letter can be given in evidence. The order was then read. A clerk from the Six Clerks' Office then produced several bundles of letters and papers as having been deposited there under the said order, from among which the letter in question was taken. Cross, Serjt., objected to its being read, unless the bill and answer, of which this letter was in fact made a part, either by being set out in the answer, or being therein referred to and described, were also read. It might be the fact, that the present plaintiff had, in his answer in Chancery, given such explanations with respect to the letter, as would destroy or materially alter the effect for which it was attempted to give it in evidence on the other side. Wilde, Serjt.-The letter is not written by the present plaintiff, and, therefore, it cannot be made evidence against him in the ordinary way, by proof of the handwriting. But it appears, by the order, that it has been in his possession for a considerable time, and it may be inferred that he is not only well acquainted with its contents, but has acted upon it. He will have full opportunity of giving any fair and legitimate explanation of its contents here, which he may have given in his answer in Chancery; and the defendant ought not to be required to put in the whole proceedings, by which he would probably have to produce as his evidence the partial statements of the plaintiff in his own favour, which have nothing to support them. TINDAL, C. J.-The letter cannot contain any statement made by the present plaintiff himself at the time it was written, because it is a letter written and sent to him. It is not proposed to put in with it any letter in reply, written by the present plaintiff; but, it may be that his answer in Chancery contains such a contradiction or explanation of any parts of the letter which may seem to bear against his right to recover in this action, as will at once wholly neutralize its effect. I think, therefore, that the letter is inadmissible without the bill and answer. The letter was not read. Verdict for the defendant. Wilde and Jones, Serjts., and Follett, for the plaintiff. Cross, Spankie, and Andrews, Serjts., and Steer, for the defendant. [Attornies-Vines & A., and R. Hill.] See the case of Fairlie v. Denton, Vol. 3 of these Reports, p. 103. 1831. HEWITT v. PIGGOTT. 1831. Adjourned Sittings in London after Trinity Term, 1831. BEFORE LORD CHIEF JUSTICE TINDAL. July 2nd. sale of a colt contained the following words after the date, name, and sum, "for a grey part as related BUDD v. FAIRMANER. A receipt on the THE declaration stated, that in consideration that the plaintiff would deliver to the defendant a certain mare, and also pay him 10%. in exchange for a certain colt, the defendant undertook, and then and there faithfully promised that the said colt was then and there a four years old colt. It then averred that the plaintiff delivered the mare and paid the 10., "yet the said defendant, contriving and fraudulently intending to injure the said plaintiff, did not perform or regard his said promise and undertaking, but thereby craftily and subtilly deceived the said plaintiff in this, (to wit) that the said colt, at the time of the making of the said promise and undertaking of the said defendant as aforesaid, was not a four years old colt, but on the contrary thereof was much less than a four years old colt, (to wit) a three years old colt, whereby the said colt became and was of no use or value to the said plaintiff," and whereby also the said plaintiff "was put to great charges and expense in feeding, keeping, and taking care of it," &c. a representation only, and not a warranty. The action was brought to recover the expense of keeping the colt mentioned in the declaration for a year, it being contended, on the part of the plaintiff, that the defendant warranted the colt to be, at the time of the bargain for it, a four years old, whereas, in point of fact, it was only a three years old. When the bargain was made, the following receipt was signed by the defendant "Received, August 4th, 1830, of Mr. Budd, ten pounds for a grey four years old colt, warranted sound in every respect. John Fairmaner." |