request of the defendant. The plaintiff had put it in the vendee's power to take away the goods, and that, according to the opinion of Holroyd, J., in Smith v. Chance, 2 B. & A. 755, was sufficient to, maintain the action.

But the court were clearly of opinion, that there was no actual acceptance of these goods by the buyer within the 17th section of the statute of frauds, and that the plaintiff was not entitled to recover on the count for goods sold and delivered, and the rule was made absolute,

Rule absolute.

STODDART v. PALMER.

64

Where in an action for a false return to a fieri facias, the declaration stated that the plaintiff in T. term, 2 G. 4,.by the judgment recovered, &c., as appears by the record," and the proof was of a judgment in Easter term, 3 G. 4: Held, that this was no variance; for that the averment, as appears by the record," was surplusage, and might be rejected, inasmuch as the judgment was not the foundation of, but mere inducement to the action.

ACTION against the defendant, as late sheriff of Surry, for a false return of mulla bona to a writ of fieri facias. The declaration stated that the plaintiff, in Trinity term, in the second year of our lord the now *king, in the [*3 Court of King's Bench, by the consideration and judgment of the court, recovered, &c., as by the record remaining in the Court of King's Bench appears. Plea, general issue. At the trial it appeared, upon the production of the record of the judgment, that the costs were taxed on the postea in Easter term, the 3 G. 4; and the Lord Chief Justice was of opinion that this was a variance, and the plaintiff was nonsuited. A rule nisi had been obtained for setting aside this nonsuit, against which

Marryat now showed cause. The plaintiff having set out a judgment in his declaration, and concluded prout patet per recordum, was bound to prove a judgment precisely the same in all its circumstances as that alleged. Pope v. Foster, 4 T. R. 590, is in point; and although the decision in that case was overruled by that of Purcell v. Macnamara, 9 East, 157, yet in the latter case, Lord Ellenborough expressly took the distinction, that if the plaintiff had stated the record, and then alleged prout patet per recordum, that it would not have been an allegation of substance but of description. This, therefore, falls within that distinction. In the subsequent case of Phillips v. Shaw, 4 B. & A. 435, and 5 B. & A. 964, this averment was omitted in the count on which the verdict was taken. Besides, it was impossible to maintain this action without showing a writ founded upon that judgment. The judgment, therefore, is the very foundation of the action, and it was necessary to set it out precisely.

Scarlett, contra. The averment of prout patet per recordum is unnecessary. It may be, therefore, rejected, as surplusage, for the distinction is, as laid down in Co. Litt. 303, and recognised and acted upon in Wate v. Briggs, [*4 1 Ld. Raym. 35, 3 Salk. 565, that when the record is the ground of the plaintiff's action, he ought to conclude prout patet per recordum; but where it is matter of inducement only, that is unnecessary." That was an action of debt for an escape. The commitment was held to be mere inducement, and the prout patet per recordum to be unnecessary. So in this case the judgment is mere inducement, the foundation of the action being the false return. The allegation, therefore, was unnecessary. It may be rejected altogether, and the plaintiff will still have a sufficient cause of action dis

closed in his declaration. That being so, it was not necessary for him to give evidence of a judgment, in all its circumstances precisely the same as that set out in the declaration.

*5]

ABBOTT, C. J. We are all of opinion that this rule ought to be made absolute. Whatever may have been the rule upon this subject in ancient times, a distinction is now established between allegations of matter of substance and allegations of matter of description. The former require to be substantially proved; the latter must be literally proved. That distinction was laid down by the court in Purcell v. Macnamara, and has since been acted upon in the case of Phillips v. Shaw. If, therefore, the allegation that the plaintiff by judgment recovered, &c., be an allegation of substance only, it was sufficient to prove any judgment to warrant the writ. If, on the other hand, it be an allegation of description, it was necessary to prove a judgment, *corresponding in time and in all other circumstances with that stated in the declaration. Now it is contended, that this is a descriptive allegation, because the plaintiff has alleged a judgment "prout patet per recordum." The declaration in Purcell v. Macnamara, and the count on which the verdict was taken in Phillips v. Shaw, did not contain any such averment, and Lord Ellenborough, in the former case, intimated an opinion, that if there had been such an averment, it might have been considered as descriptive of the record, and that the variance would have been fatal. But, upon consideration, it appears to us that that opinion is not correct, and that the introduction of the averment in this case is wholly immaterial. It is an unnecessary allegation, and may be rejected as surplusage; and if it can be altogether struck out of the declaration, without injuring the plaintiff's cause of action, it is quite clear, that the proof necessary to support such an allegation (when material) need not be given. Now it is fully established, by the passage referred to in Co. Litt. 303, 1 Ld. Raym. 35, 3 Salk, 565, and the case of Wate v. Briggs, that where a matter of record is insisted upon only by way of inducement, and not as the very foundation of the action, the party insisting upon it need not conclude "prout patet per recordum." That being so, the averment in this case was unnecessary, and may be rejected as surplusage; and if it be rejected, then the case is precisely similar to those of Purcell v. Macnamara, and Phillips v. Shaw. For these reasons we are of opinion, that the rule for setting aside the nonsuit must be made absolute. Rule absolute.

By statute 55 G. 3, c. 137, s. 6, no church warden or overseer of the poor, either in his own name or in the name of any other person, shall apply for his own profit, any goods, materials, or provisions for the use of any work house, or otherwise for the support or maintenance of the poor in any place for which he shall be appointed overseer, during the time he shall retain such appointment, nor shall be concerned directly or indirectly in supplying the same, or in any contract or contracts relating thereto, under the penalty of 1007. Held, that an overseer who supplied coals indirectly for the use of the poor, was not liable to any penalty, unless he did it with a view to his own profit.

THIS was a penal action, founded on the 55 G. 3, c. 137, s. 6. The first count of the declaration charged, that the defendant, on, &c., was overseer of the poor of the liberty of Saffron-hill, Hatton-garden, and Ely-rents, in the county of Middlesex, duly appointed in that behalf, to wit, at, &c., and that during the time he retained such appointment as aforesaid, to wit, on, &c., did, in his own name, provide, furnish, and supply certain goods, to wit, coals for the use of a work house belonging to the said liberty for which he

B

was appointed, to wit, at, &c., contrary to the form of the statute by reason whereof, &c. Another count stated, that the defendant did, in the name of a certain other person, provide, furnish, and supply, for his, defendant's, own profit, coals for the use of a certain work house, &c. The third count stated, that he was concerned indirectly in supplying, for his own profit, coals, &c. The fourth stated, that he was concerned directly in supplying coals, for the use of the work house, (omitting the words, "for his own profit.") The fifth count was, that he was concerned indirectly in supplying coals for the use of the work house. The sixth count, that he was concerned in a certain contract relating to the providing, furnishing, and supplying goods, materials, and provisions for the use of the work house. At the trial before Abbott, C. J., at the sittings after Machaelmas term, it appeared that the defendant was a coal merchant, and that he was duly appointed overseer of the *liberty of Saffron-hill, Hatton-garden, and Ely-rents, and during the [*7 time that he was overseer, a quantity of coals were provided for the work house, nominally by one Gaubert, who was the brother-in-law of the defendant, but that the latter had an interest in the coals. It was doubtful upon the evidence, however, whether either he or Gaubert made any profit by them. The Lord Chief Justice was of opinion, that unless the defendant acted with a view to profit, it was not a case within the 55 G. 3, c. 137, s. 6; and he told the jury to find for the defendant, if they were of opinion, upon the evidence, that the defendant did not send in the coals with a view of making a profit. The jury having found for the defendant, a rule nisi for a new trial had been obtained in last Hilary term.

Scarlett, now showed cause. It is quite clear, that if the defendant had, in his own name, or in the name of another, supplied the coals for the use of the poor at prime cost, he would not have been within the words of the act of parliament, because they would not be supplied for his own profit. The words, for his own profit, over-ride the whole clause; for the legislature cannot have intended to subject a party to a penalty, concerned directly or indirectly in furnishing and supplying provisions for the poor, or in any contract relating thereto, when the very same party does not incur any penalty by supplying the same provisions in his own name, provided it be not done for his own profit.

Gurney, contra. The act creates two distinct species of offences. The first is the supplying of provisions, either in the name of the overseer, or in that of another *person, and that must be for his own profit. The second offence [*8 is the being concerned directly or indirectly in supplying provisions, or in any contract relating thereto, and there the words, for his own profit, are omitted. A party who, in his own name, or even in that of another person, supplied the provisions openly, might do so, provided it were not done for his own profit; but the being concerned secretly in supplying the same, or in any contract relating thereto, is a suspicious circumstance, and the legislature may intentionally have made that an offence, although it were not done with a view to profit.

ABBOTT, C. J. We are all of opinion that this rule must be discharged. The question, in this case, arises upon the construction of the 55 G. 3, c. 137, 8. 6; the words are, that "no churchwarden or overseer of the poor, either n his own name, or in the name of any other person or persons, shall provide, furnish, or supply, for his or their own profit, any goods, materials, or provisions, for the use of any work house, or otherwise, for the support or maintenance of the poor in any parish or place for which he shall be appointed such overseer, during the time which he shall retain such appointment, nor shall be concerned directly or indirectly in furnishing or supplying the same, or in any contract or contracts relating thereto, under the penalty of 1007." Now, if the overseer himself, in this case, had supplied all the provisions required for the support of the poor, at prime cost, and not with a view to his

own profit, it is quite clear that he would not have committed any offence within the words of this part of the act of parliament: that was laid down by *9] Gibbs, C. J., in Pope v. Backhouse, 8 Taunt. 248. Inasmuch, therefore, as an overseer providing, in his own name, the poor of his parish with all the provisions and goods required for their support, would not be liable to any penalty, provided he made no profit, it cannot be supposed that the legislature intended that the same overseer who is concerned directly or indirectly in any contract for supplying any part of the provisions, however small, should be liable to a penalty, although he derived no profit from it. That would involve a manifest contradiction. I think, therefore, that the words, for his own profit. must be taken to over-ride the whole clause, and that the legislature intended that no overseer for his own profit, either in his own name or in that of any other person, should supply the poor with provisions, nor be concerned, directly or indirectly, in any contract relating to it.

Rule discharged.

STANWAY v. HESLOP.

The court will not change the venue in an action on an award.

A RULE having been made to change the venue,

Park, obtained a rule to discharge the former rule, on an affidavit that the action was brought upon an award.

Patteson, showed cause.

It is true that in Whitburn v. Staines, 2 B. & P. 355, the Court of Common Pleas refused to change the venue, the *10] action being on an award, but in Greenway v. Carrington, 7 Price, 564. Wood, B., expressed considerable doubt of that, as a general proposition, and it has never been held in this court that the venue may not be changed in such an action.

ABBOTT, C. J. There is not any case deciding that the venue may be changed in an action on an award, and as the contrary has been held in the Court of Common Pleas, we think it best that the practice of this court should be conformable to that decision.

t See Morice v. Hurry, 7 Taunt. 306.

Rule absolute.t

LONG v. GREVILLE.

Assumpsit for goods sold and delivered, and on the money counts. Pleas, general issue, and the statute of limitations. Defendant paid money into court generally: Held, that such payment did not take the case out of the statute.

ASSUMPSIT for goods sold and delivered, and on the common money counts. Pleas, non assumpsit, and the statute of limitations. At the trial before Abbott, C. J., at the Westminster sittings, after last Michaelmas term, the plaintiff's witnesses swore, that in 1813, the defendant dined several times at plaintiff's hotel, together with other persons; that each person was to pay

for his own share of the dinners; that the bill for that and for small sums expended on account of the defendant amounted to 137. In 1822, a bill was delivered to the defendant, who refused to pay it, saying, that he had never dined at plaintiff's hotel unless invited. He afterwards paid 27. 12s. 6d. into court generally. The Lord Chief Justice thought that the case *was not taken out of the statute of limitations, but left it to the jury to say [*11 whether the defendant had, at the time when he dined at the plaintiff's hotel, consented to pay for his share of the dinners, and gave the defendant leave to move to enter a nonsuit. The jury found for the plaintiff, and in Hilary term, a rule for a nonsuit was obtained, against which

Gurney and Claridge, showed cause, and contended, that by paying money into court generally, without confining it to any one item of the bill, the defendant had admitted that something was due to the plaintiff. The amount alone remained in dispute. Stoveld v. Brewin, 2 B. & A. 116, Dyer v. Ashton, 1 B. & C. 3. Now, unless the case were taken out of the statute nothing could have been due, the whole demand having arisen ten years ago.

Denman, contra, was stopped by the court.

Per curiam. If we were to hold, that by the payment of money into court, in this case, the defendant had excluded himself from the benefit of the statute of limitations, we should certainly give to such a payment an effect never before contemplated. Where money is paid in upon a declaration, setting forth a special contract, that is admitted as alleged. But in no case has the effect gone beyond admitting that the sum paid in is due. Here no special contract was set out; the declaration only stated that so much money was due. The payment into court was equivalent to saying so much is due and no more. You cannot, from such a *negative, imply an affirmative. The plaintiff, therefore, with respect to the rest of his demand, was in pre- [*12

cisely the same situation as if that sum had not been paid in, and the rule for a nonsuit must be made absolute.

Rule absolute.

SIDAWAY v. HAY.

A debt contracted in England by a trader residing in Scotland, is barred by a discharge under a sequestration issued in conformity to the 54 G. 3, c. 137, in like manner as debts contracted in Scotland.

DEBT for goods sold and delivered, with the common money counts. Pleas, first, nil debet; second, the statute of limitations; third, actio non; because defendant before and on January the 1st, 1814, and thence continually until the sequestration of the estate, heritable and moveable, real and personal, of defendant thereinafter mentioned, was a merchant and trader in gross and by retail, to wit, an ironmonger, residing and carrying on his said trade at Edinburgh, in that part of the United Kingdom, called Scotland; and during all that time sought his living by buying and selling; and that defendant on the day and year aforesaid became indebted to C. & Co. in the sum of 1867. 15s. 2d. for a just and true debt, and was also indebted to divers other persons in divers large sums of money; and being so indebted, and being insolvent and unable to pay the said debt due to C. & Co., and the said other debts, afterwards, on, &c., at Edinburgh aforesaid, became and was under legal diligence by horning and caption against him for the debt due to C. & Co.; and having fled for his personal safety from such diligence, did afterwards, and within