MICHAELMAS TERM, 23 VICT.

stamped this bill, because at the time they did so the receipt stamp upon it was no stamp at all. But I think that they were right in every way. The 16 & 17 Vict. c. 59 did not abolish receipt stamps, so as to render this bill a piece of waste paper. It seems to me that the bill was properly received in evidence, and that there ought to be no rule.

WATSON, B.-I am entirely of the same opinion. Whether a point upon the stamp law can be reserved by a Judge at the trial is a matter for consideration. Two objections have been raised: first, that the Commissioners had no power to affix another stamp on this bill; and, secondly, that, even if they had, there was no existing stamp upon it. It is clear that the Commissioners had power, upon payment of the penalty, to restamp an instrument originally stamped with a stamp of a wrong denomination. Then the question is, whether the 16 & 17 Vict. c. 59 has absolutely destroyed the stamp then on the bill, so as to render it a piece of waste paper. I am clearly of opinion that it has not. That Act only requires a 1d. stamp in lieu of the former stamps: it does not say that every piece of paper stamped with the old stamps shall cease to be of any avail in law. Therefore I am of opinion that the Commissioners had power to restamp this instrument, and that they have properly exercised it.

CHANNELL, B.-I agree with the view taken by the Lord Chief Baron and my brother Watson. This is an application, in point of form, to set aside a verdict for the plaintiff; and the question depends on whether this bill was a void instrument for want of a stamp. I doubt whether we have any jurisdiction to interfere in the matter, but as my brother Martin has wished us to express an

1859.

HEISER

v.

GROUT.

1859.

HEISER

v.

GROUT.

opinion, in order that he may act upon it, we have heard the matter discussed. I am of opinion that the defendant is not entitled to a rule. If this bill had been restamped before the 16 & 17 Vict. c. 59 passed, the question could not have admitted of any doubt: the language of the 37 Geo. 3, c. 136, is too clear. But reliance is placed on the 16 & 17 Vict. c. 59 as rendering the bill a piece of waste paper. I should require strong words before I came to the conclusion that the power given to the Commissioners by the 37 Geo. 3, c. 136, and in which the public are interested, is taken away by the statute of Victoria. It seems to me clear that it is not. With reference to the 18th section of that Act, the word "useless" means, not that if a person having a bill stamped with a receipt stamp chooses to have it restamped he may not do so, but that, as in the case of spoiled stamps, the Commissioners may make an allowance for receipt stamps as useless.

Rule refused.

Nov. 5.

To an action

for goods sold

&c.. the defendant was allowed to

HAMILTON V. GRAINGER.

THIS was an action to recover 150l. for goods sold and

and delivered, delivered, money paid, and money due on accounts stated. The defendant took out a summons at Chambers for leave to plead the following several matters. First, except as to never indebted. 237. 4s.: Never indebted.-Secondly, except, &c.: PaySecondly: payment. ment.-Thirdly, to the first and third counts, except, &c. : Thirdly that

plead. - First:

:

the goods were That the goods were exciseable liquors, to wit wine, sold

exciseable

liquors, to wit

wine, sold by retail, to be consumed by the defendant and others on the plaintiff's premises, she not being licensed. Fourthly: that the goods were wines and suppers supplied to the defendant in a brothel kept by the plaintiff, for the purpose of being consumed there by the defendant and divers prostitutes in a debauch, to incite them to riotous, disorderly, and immoral conduct.

But this Court refused to allow the defendant to plead, together with the above pleas, that he was entirely deprived of understanding by intoxication, when he made the contracts, as the plaintiff well knew, and that the goods were liquors supplied to increase his intoxication, and that he derived no benefit from them.

by retail by the plaintiff to be consumed by the defendant and others on the plaintiff's premises, she not being licensed, contrary to the statute.-Fourthly, to the same counts, except, &c. That the goods were wine and suppers supplied to the defendant in a brothel and disorderly house kept by the plaintiff, for the purpose of being consumed there by the defendant and divers prostitutes in a debauch there to incite them to riotous, disorderly and immoral conduct, and that the accounts were stated concerning the price.—Fifthly, to the same counts, except, &c.: That the defendant was entirely deprived of judgment and understanding from intoxication when he made the contracts, as the plaintiff well knew, and the goods were liquors supplied to increase his intoxication, and that he derived no benefit from the same. -Sixthly, as to 231. 4s.: payment into Court.

The summons was heard before Martin, B., who refused to allow the third plea.

F. Gibbons now moved for leave to plead all these pleas. -The plea is framed on the 9 Geo. 4, c. 61, s. 18, which enacts, "That every person who shall sell, barter, exchange, or for valuable consideration otherwise dispose of, any exciseable liquor by retail, to be drunk or consumed in his house or premises, or shall permit or suffer any exciseable liquor to be sold, bartered, &c., without being duly licensed so to do, &c., shall, for every such offence, on conviction before one justice, forfeit and pay any sum not exceeding 201. nor less than 57., together with the costs of the conviction." The effect of that enactment is to render void any contract of sale of exciseable liquor by an unlicensed person, and consequently the plaintiff cannot maintain this action. [Martin, B.-Johnson v. Hudson (a) is an authority the other way. There the Court considered that, as there was no clause (a) 11 East, 180.

1859.

HAMILTON

v.

GRAINGER.

1859.

HAMILTON

v.

GRAINGER.

EXCHEQUER REPORTS.

making the contract of sale illegal; it was, at most, the breach of a mere revenue regulation, which was protected by a specific penalty.] That case was decided on the construction of the statute relating to duties on tobacco, which passed for revenue purposes. In Ritchie v. Smith (a), a plea of this kind was allowed, together with other pleas; and on motion for judgment non obstante veredicto, the plea was held good. The Court were of opinion that the 9 Geo. 4, c. 61, s. 18, was not passed for mere revenue purposes, but also for the protection of public morals.

Per CURIAM (6).—The defendant may be allowed to plead all the pleas except the fifth (c), and application should be made at Chambers for an order for that purpose.

(a) 6 C. B. 462.

(b) Pollock, C. B., Martin, B.,

Bramwell, B., and Watson, B.

(c) See Gore v. Gibson, 13 M. & W. 623.

Nov. 16.

Declaration :

that on the

WEBSTER V. NEWSOME.

DECLARATION. That an agreement, dated 16th of

16th of March, March, 1858, was made between the plaintiff of the one

1858, an agree

ment was made between H. and the plaintiff, that a patent of the plaintiff's for an alloy should be assigned to H., H. paying to the plaintiff by way of royalty Id. per pound for each pound of alloy made or used by him under the letters patent during the existence of the letters patent, the royalty to be accounted for every six months after the date of the letters patent or from making any of the alloy, with a covenant for further assurance by the plaintiff: that on the 13th of November, 1858, in pursuance of the agreement, and for the purpose of carrying out the terms thereof, by deed, made between the plaintiff and H., the letters patent were assigned to H., subject to the payment of the royalty upon every pound of alloy which should be manufactured by H. to be ascertained in manner therein mentioned, and H. covenanted to pay ld. per pound for each pound of the alloy which he should make or sell: that on the 17th of December, 1858, by agreement between the plaintiff and the defendant, the defendant, in consideration of 250l. to be paid on the 23rd instant, &c., agreed to purchase the right of the plaintiff "in an agreement entered into with H., dated March 14, 1858 (meaning the agreement herein before set forth), to receive a royalty of 1d. per pound on the metal sold under the patent specified therein; the second instalment to be paid conditionally, &c., otherwise the 2501 to be paid on the 23rd proximo to be considered as full purchase money for the plaintiff's right in the aforesaid agreement."-Breach: that defendant had not paid the 2501.

The plea set out the deed of November 13th which, reciting that the plaintiff had agreed

part, and H. A. Holden of the other part, whereby, after reciting that the plaintiff, being in possession of an alloy for certain metal applicable for bearings and mill brasses, and desirous of obtaining letters patent, had arranged with Holden to make known to him the mode of making the said alloy, and to take out the letters patent in his own name but at the expense of Holden, and to assign the same to Holden, subject to certain payments to be made to the plaintiff as a royalty on all metals to be made by Holden under the said letters patent: it was witnessed and mutually covenanted and agreed between the plaintiff and Holden, that the plaintiff would give to Holden the fullest information for making the alloy; that the letters patent should be taken out in the name of the plaintiff, but held and retained by Holden and for his benefit alone, subject to the allowance and payments to be made to the plaintiff as therein expressed; that the plaintiff should, immediately on the patent being sealed, execute an assignment thereof to Holden; that the plaintiff should not, during the existence of the patent, do any act whereby the same should be defeated or the rights of Holden in the profits to be derived

1859.

WEBSTER

v.

NEWSOME.

to assign the patent to H., H. paying Id. per pound on the alloy which he should manufacture and vend: it was witnessed that the plaintiff assigned to H., subjected to the payment of a royalty of Id. per pound on every pound of alloy manufactured by him, to be ascertained in manner and at the times therein mentioned. And H. covenanted to pay a royalty of 1d. per pound on every pound of alloy which he should make and sell, to be paid quarterly, the first payment to be made on the quarterly day next after the vending of any of the alloy; and for the purpose of ascertaining the quantity sold, to keep an account of the quantity made and tended: provided that, if H. neglected to supply any person desirous of purchasing alloy, &c., it should be lawful for the plaintiff to manufacture and vend the alloy, and use the invention for his own use: that plaintiff accepted the deed and agreement therein in the place of the previous agreement, and exonerated H. from any further performance of the agreement: that the defendant when he entered into the agreement had no knowledge of the deed or of the exoneration of H.: that defendant meant to buy the royalty under the agreement and not under the deed; and that the defendant had no knowledge of the provision in the deed, that the plaintiff was to be at liberty to make the alloy for his own use.

Replication: that before suit the defendant had notice of the deed and did not within a reasonable time repudiate or give any notice to the plaintiff of his intention to repudiate his agreement.

Held: First, that the plea was a good answer to the action, inasmuch as it shewed that the plaintiff had by the deed incapacitated himself from giving to the defendant that which he had bought. Secondly, that the replication was bad.