1824.

SIDAWAY

v.

HAY.

in express terms, give that power to assignees under an English commission, it was decided that the action was not properly brought in the name of the trustee. Upon this view of the cases, it appears that no one of them contains a decision contrary to our present opinion, which is founded not on any general principle, but on the effect of the particular statute on which the defendant rests his plea. For the reasons I have already mentioned, the judgment of the court must be entered for the defendant.

Judgment for the defendant.

Monday,

June 28.

MAY, Gent, one &c., v. BROWN.

In an action CASE for a libel. The declaration stated that long be

for a libel the declaration stated, that

plaintiff was an attorney

and had been employed by the parishion

ers of the

fore the publication of the libel thereinafter mentioned, plaintiff had been an attorney; and being such attorney had been employed by the parishioners of the parish of St. Matthew, Bethnal Green, as vestry clerk; that while plaintiff was such vestry clerk, certain prosecutions were parish of St. preferred and carried on against one Joseph Merceron, for M. as vestry certain misdemeanors before then alleged to have been clerk; that while he was such vestry clerk, certain prosecutions were preferred against one M. for certain misdemeanors, and that in furtherance of such proceedings, and tobring the same to a successful issue, certain sums of money belonging to the parishioners were appropriated and applied to the discharge of the expenses and law charges incurred on account of the said proceedings; yet defendant, intending to injure plaintiff in his profession of an attorney, and to cause him to be esteemed a fraudulent practiser in his said profession and in his office as vestry clerk, and to be a person unfit to be trusted therein, and to deprive him of the same, and to cause it to be suspected that plaintiff had fraudulently appropriated money belonging to the parish, falsely and maliciously published of and concerning plaintiff, and of and concerning his conduct in his office as vestry clerk, and of and concerning the matters aforesaid, the libel. When the libel was produced at the trial, the imputation appeared to be, that the plaintiff had appropriated money belonging to the parishioners in discharge of the expenses of the prosecutions after they had terminated: Held, not a material variance, for the character of the libel was not altered, the misconduct imputed to the plaintiff being the same, whether the money was so applied before or after the termination of the prosecutions, and the averment, that the libel was published of and concerning the matters aforesaid, not making it necessary to prove literally that the libel did relate to all the matters previously stated. Held also, that other libels published by the plaintiff of the defendant, not relating precisely to the same subject, could not be received in evidence, either in bar of the action, or, in mitigation of damages.

committed by him; and that in furtherance of such pro-
ceedings, and to bring the same to a successful issue, certain
sums of money belonging to the parishioners of the said
parish, were appropriated and applied to the discharge of
the expenses and law charges incurred on account of the
said proceedings, to wit, at &c. ; yet defendant, well
knowing &c., but contriving &c., to injure plaintiff in his
said business and profession of an attorney, and to cause
him to be esteemed and taken to be a dishonest, corrupt,
and fraudulent practiser in his said business and profession,
and in his office and situation as vestry clerk as aforesaid,
and to be a person unfit to be trusted therein, and to deprive
him of the same, and to cause it to be suspected and be-
lieved, that plaintiff had fraudulently and clandestinely ap-
propriated and applied certain sums of money of and
belonging to the said parishioners, theretofore, to wit, on
&c., at &c., falsely, wickedly, and maliciously, did compose,
write, and publish in a certain newspaper, called The
Sunday Monitor, of and concerning plaintiff, and of and
concerning his conduct in his office and situation as vestry
clerk as
aforesaid, and of and concerning the matters afore-
said, a certain malicious and defamatory libel, containing,
amongst others, the defamatory matters following, of and
concerning plaintiff, and of and concerning his conduct as
such vestry clerk as aforesaid, and of and concerning the
matters aforesaid, that is to say: "St Matthew, Bethnal
Green. At a vestry meeting, held in the parish of St.
Matthew, Bethnal Green, on Wednesday, the 29th of
March last, the following resolutions were confirmed and
ordered to be printed in The Sunday Monitor. It is worthy
of remark, that the circumstances to which the resolutions
here inserted relate, took place after the trial of Mr.
Merceron, (meaning the aforesaid Joseph Merceron,)
though only very recently discovered; and the present
Lord Chief Justice on that occasion, in his charge to the
jury, expressly declared, that although notice had been
given in the church, and although the vestry voted the

1824.

MAY

-0.

BROWN.

1824.

MAY

v.

BROWN.

payment of Mr. Merceron's law expenses, yet, if the jury thought he had not given all the publicity to the transaction which it was in his power to give, then the charge of clandestinity was established. Mr. May, (meaning plaintiff) the vestry clerk, and Mr. Wrightson, were then present as principal witnesses against Mr. Merceron, as were also Mr. Bumford and Mr. Talbot, two of the committee of his prosecutors." And in a certain other part of which libel were contained the false, scandalous, malicious, and defamatory matters following, of and concerning plaintiff, and of and concerning his said duty and office of vestry clerk, and of and concerning other his legal and professional duties, and of and concerning the matters aforesaid, that is to say: "Resolved, that a committee having been appointed on the 29th day of April, 1818, to proceed with certain prosecutions against Mr. Merceron, (meaning the said Joseph Merceron,) and to raise by subscription a fund to defray the future law expenses consequent thereupon, the said committee did, on the 20th day of August following, make a report in writing to the vestry, which stated that they had not raised any money by subscription to defray the future law expenses which they had nevertheless incurred; and that the said law charges consisted of two bills of Messrs Knight & Freeman, namely, one amounting to 313/. 19s. 7d. and the other to 314. Ss. making together 6281. 2s. 7d. In consequence of such report several persons, namely, &c. (these persons were specifically named in the declaration) and May, the vestry clerk (meaning plaintiff) were appointed to examine into the identity and accuracy of the said bills; and the aforesaid persons (meaning the said persons so appointed as aforesaid, including plaintiff) did pass the amount of the said bills in three specific sums for payment, notwithstanding they well knew at the time that the real and true amount of the law and other expenses which the committee had altogether incurred amounted to no more than 5031.2s.7d., instead of 6231.2s.7 d., of which only 243/. 2s. 8d. ought to have been taken out of

the poor's rate fund, whereas 6281. 2s. 7d. was actually taken. This vestry, therefore, deem the conduct of the aforesaid persons highly censurable, and they, in the most. unqualified terms, censure them accordingly; but as respects the conduct of Mr. James May, the vestry clerk (meaning plaintiff) and legal adviser of this parish, who not only concurred in this transaction, but actually furnished a bill, paid before the vestry knew of the prosecutions, and incorporated it in his own hand-writing with the unpaid law expenses of the committee; he also signed his name, as testifying to the truth of the printed receipts and disbursements of the parish, in which were inserted the two fictitious bills under the denomination of Messrs. Knight & Freeman's bills; as also a charge of upwards of 6301. for weekly payments to out-door poor, when they never received a farthing of it, and of which 1137. 9s. Sd. was expended by himself (meaning plaintiff) and other persons, called constituted authorities, in eating and drinking; this vestry therefore consider Mr. James May (meaning plaintiff) as most unworthy of their future confidence and support" (meaning that plaintiff, in the examination and allowance of, and in his conduct and proceeding with respect to the said bills and accounts, supposed to have been incurred for and on behalf of the said parishioners, acted corruptly and fraudulently as vestry clerk of the said parish). Pleas-first, the general issue, not guilty; and second, a justification, alleging the truth of the matters contained in the libel. Issue on both pleas. At the trial before Abbott, C. J., at the adjourned Middlesex Sittings after Easter Term, 1823, the libel set forth in the declaration being produced in evidence, it was objected for the defendant that there was a fatal variance between the evidence and the record; for that the declaration averred that certain prosecutions had been preferred against Mr. Merceron, and that in furtherance of such proceedings, and to bring the same to a successful issue, certain sums of money belonging to the parish were appropriated to the payment of the expenses, whereas the libel read in evidence alleged that the money

1824.

ΜΑΥ

ย.

BROWN.

1824.

MAY

10.

BROWN.

had been so appropriated after the termination of those prosecutions. The learned Judge overruled the objection, but reserved the point, giving the defendant leave to move to enter a nonsuit. It was then proposed for the defendant to put in evidence certain other libels said to have been. published of him by the plaintiff, but which did not bear reference to the same subject as that of the libel upon which the action was brought. The learned Judge refused to receive any particular libels in evidence, but he admitted evidence of a general nature to shew that, before the libel in question was published, the plaintiff had published other libels of the defendant. The Jury having found a verdict for the plaintiff upon both pleas,

Copley, A. G., in Trinity Term last, obtained a rule nisi for a nonsuit or a new trial upon both points; against which

Scarlett, Gurney, and Holt, now shewed cause. In order to support this verdict, the plaintiff must make out two propositions; first, that there is no variance, and second, that the evidence rejected was in its nature inadmissible, and therefore properly rejected. First, as to the variance. The allegation objected to is, that the libel was published "of and concerning the matters aforesaid." Now "the: matters aforesaid" are mere introductory circumstances, forming part of the inducement, and not constituting any part of the description of the libel itself, therefore an allegation relating only to them need not be proved to the letter; for a declaration in an action of tort is sufficiently supported by evidence of the same cause of action as that set out, and it is unnecessary to prove in totidem verbis all the particulars of the charge. Yarley v. Turnock (a), Figgins v.Coggswell (b), Ricketts v. Salwey (c), and Lord Churchill v. Hunt (d).. This is a divisible, not an entire, allegation; consequently proof of a part of it is sufficient.. Rex v. Hunt (e), Rer v., (b) 3 M. & S. 369. (c) 2 B. & A. 860. (e) 2 Campb. 583.

(a) Paliner, 260.
(d) Id. 685.