fendant corrupted one P. B. having a right to vote in the election, to give his vote for certain candidates (141), and it was proved, that P. B. did actually vote; but there was not any evidence given of his right to vote; the court were of opinion, that it was not necessary either to allege in the declaration, or to prove that the person corrupted had a right to vote (142); that the giving money to a person for his vote, and he standing by the presiding officer at the election, and giving his vote, which is received and not objected to, or controverted, is evidence of the party bribed having a right, proper to be left to a jury, although it be not conclusive evidence of such right; and on the authority of the preceding case of Comb v. Pitt, the court gave judgment for the plaintiff.

The party receiving the bribe (although particeps criminis) is a competent witness to prove the offence committed *.

So it has been holden, that the party giving the bribe, e. g. the agent of one of the candidates, is a competent witness to prove the fact, in a case where two years had elapsed from the time of the offence committed; although it was objected that he was particeps criminis, and so swore to excuse himself' (143).

i Rigg v. Curgenven, 2 Wils. 395.
k Phillips v. Fowler, E. 8 G. 2. C. B.
per Eyre, C. J. Bush v. Ralling, T.

29 & 30 G. 2. B. R. Say. Rep. 289. S. P.

1 Mead v. Robinson, Willes, 422.

(141) It was not alleged that the party bribed gave his vote; nor, indeed, is such allegation necessary. See ante, tit. Declaration, Bush v. Ralling.

(142) So in Lilly v. Corne, Worcester Sum. Ass. 1774, MSS. Burland, B. held, that it was immaterial whether the party corrupted had a right to vote or not, as the corrupter thought he had, and the party corrupted claimed to have a right to vote, although upon discussion of his right afterwards it should turn out that he had none.

(143) According to a manuscript note of this case, (cited by Lawrence, J. 4 East, 185). Mr. J. Abney conceived, that the objection went merely to the credit of the witness, and not to his competency. The other judges put it on the ground that the two years had expired. The grounds of the decision, as stated in Willes's Rep. 424, 5. were these, 1st, that two years had elapsed since the offences were committed, and, therefore, that neither the agent nor the person bribed could be prosecuted under the act; 2d, admitting the offences had been recently committed, yet the agent could only be considered as an accomplice, and as such was a competent witness; 3d, that in this particular case, the legisla

So a person claiming to be the first discoverer of the bribery of the defendant", and meaning to avail himself of it, if necessary, in case of the defendant's conviction (144).

The testimony of a quaker upon his affirmation is admissible in this action ".

In an action on this statute, Christopher Savile, Esq. was called as a witness. He had been indicted for perjury at the common law, found guilty, and stood in the pillory in Mark Lane, pursuant to the judgment of the court, and afterwards received the king's pardon. Lord Ellenborough, C. J. held, that he was a competent witness, admitting however, that it would have been otherwise if he had been convicted on the statute.

m Heward v. Shipley, 4 East, 180. n Atcheson v. Everitt, Cowp. 382.

o Dover v. Mestaer, London sittings after M. T. 42 G. 3. B. R. 5 Esp. N. P. C. 94.

ture, by holding out inducements, and offering an indemnity (2 G. 2. c. 24. s. e.) to offenders to discover and bring other offenders to punishment, impliedly made the discoverers legal witnesses. And they relied on the case of Phillips v. Fowler, 8 G. 2. in which Eyre, C. J. had admitted an accomplice under the same circumstances to be a witness.

(144) "By the 8th section of the statute under consideration, it is enacted, that any offender against the act, discovering within a certain time any other offender within the act, so that the person so discovered be thereupon convicted, the discoverer, not having been before that time himself convicted of the offence, shall be indemnified and discharged from all penalties and disabilities incurred under the act, that is, he shall have the benefit of using the verdict against the other offender for his own indemnity. Now, it is not probable that the legislature would have made that provision with regard to a discoverer, unless they had intended he should be a witness; for if he were not, such a provision would be almost nugatory and useless; it would be holding out an inducement for parties to make a discovery, and when made, they would be precluded the benefit of it. I think, therefore, that the statute has given a parliamentary capacitation to the witness through whom the fact is discovered, and who might otherwise at common law have been incapacitated." Per Lord Ellenborough, C. J. in Heward v. Shipley, 4 East's R. 183. It may be remarked, that in Bingley v. Earle, (mentioned in the case of Sutton v. Bishop, 4 Burr. 2284.) the plaintiff obtained a verdict on the evidence of Bishop, the discoverer, and it does not appear that any objection was taken to his tes timony.

Stat. 7&8 W. 3. c. 4. Treating Act.

It may not be improper to subjoin to this section the first clause of the statute 7 & 8 W. 3. c. 4. (commonly known by the name of the Treating Act) whereby it is enacted, "That no person hereafter to be elected to serve in parliament for any county, city, town, borough, port, or place, "within England, Wales, or Berwick-upon-Tweed, after the "teste of the writ of summons to parliament, or after the teste, or the issuing out or ordering of the writ or writs of election, upon the calling or summoning of any parliament, "or after any such place becomes vacant, shall by himself, "or by any other means on his behalf, or at his charge, be"fore his election, directly or indirectly, give, present, or "allow to any person, having voice and vote in such election,

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any money, meat, drink, entertainment, or provision, or "make any present, gift, reward, or entertainment, or shall "at any time hereafter, make any promise, agreement, obligation, or engagement, to give or allow any money, meat, "&c. to or for any such person in particular, or to any such county, city, &c. in general, or to or for the use, advantage, employment, profit, or preferment of any such person or place, in order to be elected, or for being elected to serve in parliament for such county, city, &c.'

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86

An action was brought by an innkeeper against two candidates (at an election of representatives in parliament for the borough of Ipswich) upon a bill for provisions furnished to the voters. The bill consisted of three descriptions of charges: 1st, for provisions furnished before the teste of the writ; 2d, for ditto after the teste of the writ to voters resident in the borough; 3d, for ditto to voters not resident in the borough. The defendants paid money into court sufficient to cover the charges of the first and last descriptions; a verdict having been found for the plaintiff, a motion was made for a new trial, on the ground of a part of the cause of action being illegal, by the above-mentioned statute. The court made the rule for a new trial absolute, Eyre, C. J. observing, that the contract was bottomed in malum prohibitum, and consequently the court could not enforce it. The legislature had drawn a strict line, which was not to be departed from: it said, that after the teste of the writ, no meat or drink should be given to the voters by the candidate; and that being the case, the court could not give any assist

p Ribbaus v. Crickett and another, C. B. E. 1798. 1 Bos, and Pul. 264.

ance to the plaintiff, consistently with the principles which had governed the courts of justice at all times. The counsel for the plaintiff having urged, that part of the provisions having been furnished to voters resident at a distance from the borough, and the verdict being good as to that part of the demand, the plaintiff might apply the money paid into court to any other part which he might think proper; Eyre, C. J. in answer to this argument, said, that such payment was an admission of a legal demand only, and the court could not allow it to be applied to an illegal account.

It is to be observed, that although, in the foregoing case, money was paid into court to cover the demand for provisions furnished to non-resident voters, yet the statute makes no difference between resident and non-resident voters. Hence, an action cannot be maintained by an innkeeper against a candidate for provisions supplied to non-resident, any more than to resident voters, after the teste of the writ

q Lofhouse v. Wharton, Durham ass. 1808. Cor. Wood, B. 1 Camp. N. P. C,

550. n.

CHAP. XV.

DECEIT.

I. Of the Action on the Case in Nature of Deceit, 1. On an implied Warranty.

2. On an express Warranty, and herein of the Sale and Warranty of Horses.

II. Of the modern Action on the case grounded on fraudulent Misrepresentation by Persons not

Parties to the Contract.

I. Of the Action on the Case in Nature of Deceit, 1. On an implied Warranty.

2. On an express Warranty, and herein of the Sale and Warranty of Horses.

1. ON an implied Warranty (1).-AN action on the case, in nature of deceit, may be maintained for the breach of an implied warranty; as if a merchant sell cloth to another, knowing it to be badly fulled; so if an innkeeper sell wine as sound and good, which he knows to be corrupt, although there be not any express warranty, yet an action on the case, a 9 H. 6. 53. b. 1 Rol. Abr. 90. (P.) pl. 3. S. C. cited by Lawrence, J. in Parkinson v. Lee, 2 East, 323.

(1)" By the civil law every person is bound to warrant the thing that he sells or conveys, although there be no express warranty; but the common law binds him not unless there be a warranty, either in deed or in law, for caveat emptor." 1 Inst. 102. a.