HOLROYD J. The plaintiff is entitled to our judgment, unless he is estopped, either by the deed of release or by the receipt indorsed on it. As to the latter, it is sufficient to observe, that, not being under seal, it cannot amount to an estoppel; but can only be evidence for the jury, capable of being rebutted by the other circumstances in the case. And, if so, then, as it is admitted that no such payment has actually been made, this receipt becomes of no importance. As to the deed, it seems to me to depend on the construction to be given to the words already referred to, "In consideration of the said sum of 401. being now so paid, as hereinbefore is mentioned." If the deed had absolutely stated a payment, unaccompanied by such words of reference, the case would be very different. But, here, there are words of reference; and we must, therefore, look to the prior part of the deed, and there we find no statement of actual payment, but only of an agreement to pay. It seems to me, therefore, that this does not amount to an estoppel, so as to shut out the plaintiff from proof of the truth of the transaction. Estoppels are odious in the law, and, being so, they ought not to be allowed, unless they are very plainly and clearly made out. That is not the case in this deed; and, therefore, I think, it is no estoppel; and then the verdict is right. BEST J. If a party give a general release, it will, undoubtedly, extend to all debts then due; and the passage cited from Co. Litt. is to that effect. But that must be understood of a release without any previous recital, qualifying its operation. If there be introductory matter, that will qualify the general words of the release. That is the case herc. It is quite clear, looking at the recital, what was the intention of these parties. Ss 2 The 1822. LAMPON against CORKE. 1822. LAMPON against Corke. The words, "as hereinbefore is mentioned," shew that the parties referred to the previous part, where an agreement to pay is stated. In Rowntree v. Jacob, the debt was, in general terms, admitted to have been paid. But that is not so here, there being words of reference annexed. As to the receipt indorsed, that stands on a different ground; for, not being under seal, it is no estoppel, and its truth may be disputed. This rule must, therefore, be refused. Rule refused. Friday, April 26th. The KING against BISHOP, Esq. Where the facts SCARLETT had obtained a rule nisi in last Michael tending to criminate a magistrate took place twelve months before the application to the Court, they refused to mas term, for a criminal information against the defendant for corrupt practices as a justice of the peace. The latest circumstances alleged in the affidavits for the prosecution, took place in 1820. But in order to grant a criminal account for the delay, the prosecutor swore that he had information, although the prosecutor, in order to excuse the delay, stated that the facts had not come to his know. no knowledge of the facts till shortly before the application, when there having been a meeting of magistrates on the 17th November last, for the purpose of investigating the defendant's conduct, he and another mashortly previous gistrate not being satisfied with the defendant's explanation, instituted the present enquiry. ledge till very to the applica tion. Campbell and Oldnall Russell, shewed cause, and objected, first, that the application was too late. And they referred to Rex v. Marshall (a), and Rex v. Harries (b), where it was so held. If the want of knowledge will afford an excuse, a wide door will be open, for it will be in all cases easy to find some one in that situation who will prosecute. (a) 15 East, 322. (b) 13 East, 270. Scarlett Scarlett and Taunton, contrà, relied on the investigation on the 17th November last, as taking the case out of the usual rule. ABBOTT C. J. We do not by discharging this rule, shut the door to an enquiry, for a bill of indictment may still be preferred against the defendant. But if we were to admit this excuse, we should entirely frustrate the very useful rule to which we have been referred. Perhaps, if at the investigation all the magistrates present had concurred in directing such an application to be made, the case might be different; but that does not appear to be the case. The rule must be discharged. The Court upon this objection, having refused to discharge the rule with costs, Campbell waived the objection and went into the merits. Rule discharged with costs, 1822. The KING against BISHOP. GARBUTT and Another against WATSON. Friday, ASSUMPSIT for the non-performance by the de- Where there fendant of a special agreement, relating to the sale contract by the was a verbal plaintiffs, who were millers, for the sale of a quantity of flour, which, at the time, was not prepared, and in a state capable of im of 100 sacks of flour, Plea general issue. At the trial mediate deli very: Held, that this was a contract for the sale of goods within 29 Car.2. 1822. GARBUTT against WATSON. nor any earnest paid. The flour at the time of the bargain was not prepared, so as to be capable of being immediately delivered to the defendant.' The learned Judge at the trial was of opinion, that the case fell within the 17th section of the statute of frauds, and the plaintiffs were accordingly nonsuited. And now, Scarlett by leave, moved to enter a verdict for the plaintiff. This case falls within the authority of Towers v. Osborne (a), Clayton v. Andrews (b), and Groves v. Buck. (c) In all these cases the Court held, that where the goods were not capable of immediate delivery, the sale did not fall within the statute of frauds. Rondeau v. Wyatt (d) is distinguishable, for there the flour was fully prepared, but here it only existed in the shape of unground wheat, at the time of the sale. ABBOTT C. J. In Towers v. Osborne, the chariot which was ordered to be made, would never but for that order have had any existence. But here, the plaintiffs were proceeding to grind the flour for the purposes of general sale, and sold this quantity to the defendant as part of their general stock. The distinction is indeed somewhat nice, but the case of Towers v. Osborne is an extreme case, and ought not to be carried' further. I think this case was rightly decided, the contract being one for the sale of goods, and falling within the 17th section of the statute of frauds. BAYLEY J. The nearest case to this is Clayton v. Andrews. But that decision was, as it seems to me, (a) 1 Str. 508. (b) 4 Burr. 2101. corrected corrected by Rondeau v. Wyatt. This was substantially a contract for the sale of flour, and it seems to me immaterial, whether the flour was at the time ground or not. The question is, whether this was a contract for goods, or for work and labour and materials found. I think it was the former, and if so, it falls within the statute of frauds. HOLROYD J. I am of the same opinion. I cannot agree with the judgment of the Court in Clayton v. Andrews. This was a contract for the sale of goods, and therefore the verdict is right. BEST J. concurred. 1822. GARBUTT against WATSON Rule refused. CARTWRIGHT, Esq. against WRIght. ACTION on the case for a libel. Plea general issue. At the trial at the Westminster sittings after last Hilary term before Abbott C. J., the libel given in evidence was contained in a book published respecting Mr. Cobbett by the defendant, called "The Book of Wonders," and was as follows: Many well intentioned persons have expressed their surprise, that the "Enlightener" should have been willing to accept of a seat in corruption's den, purchased with the bank notes of man, whose "incapability and baseness" he had so powerfully exposed. To convince such persons, that this line of conduct was strictly patriotic, we have only to assure them, that in so doing, he was walking in the footsteps of that "Venerable Veteran," whose "Creed is the criterion of excellence," (see No. 195.) and who, in an S s 4 a article Saturday, Where a libel- as proved, con ferences, by which it appeared to be in fact the lan guage of a third person speaking of the plaintiff's con duct, and the declaration in setting it out pad omitted those refer ences: Held, that these omis sions altered the sense of the remainder, and that the vari ance was fatal. |