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prohibition to the Insolvent Debtors' Court, it is not necessary to express any opinion.

PARKE, J. It is unnecessary to say whether or not such a pension as this would pass under the general assignment directed by section 11; I think it is clearly within the proviso of section 29, as granted to a person who had been in His Majesty's service in a civil office, and held under, and included in the estimates of a department of His Majesty's government.

Rule discharged with costs.

*The KING v. DONNISON and Another. April 25.

[*698

The rule established at nisi prius in prosecutions for libel in a newspaper, viz. that after production of the stamp office affidavit, a paper corresponding with it in title, printer's and publisher's name, and place of publication, may be put in and read as published by the parties therein named, without other proof on this point, applies equally on motions for criminal information.

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A RULE nisi had been obtained for a criminal information against these ties for misdemeanors in printing and publishing certain scandalous libels. The rule was drawn up on reading the affidavits of the Earl of Lonsdale and other persons, and a paper partly written and partly printed, thereto annexed,(a) and the several printed papers thereby referred to. Upon cause being shown, it ap peared that some newspapers, entitled "The Whitehaven Herald," published at Whitehaven, and bearing the name of the printer and proprietor, had been put in with (though not annexed to) the affidavits; but the latter consisted merely of the usual copy of the stamp office affidavit (that the defendants were the printer and proprietor of a newspaper called, &c. and intended to be published at Whitehaven,) and depositions by the Earl of Lonsdale and other persons, denying that the Earl had been guilty of particular acts of misconduct; as peculation, breach of certain trusts, entertaining ruffians at his table, &c. They did not in any more direct manner refer to the newspapers or any part of them, nor did they charge the defendants or any other person with having asserted or published the matters stated to be untrue; but the newspapers did, in fact, contain such imputations upon the Earl.

[*699

Armstrong now shewed cause. The rule must be discharged, for the affidavits do not, either directly or *by reference, impute any offence to the parties against whom this motion is made. The rule states that the printed papers are referred to by the affidavits, but that proves not to be the case; they make no reference to any paper or passage. The act 38 G. 3, c. 78, does not meet this objection; that merely gives facilities in proving who the printer and proprietor. [Follett, amicus curiæ, mentioned the case of Rex v. Featherstone, editor of The Western Times newspaper, in Trinity term, 1880, where the present objection was taken, and the Court enlarged the rule, in order that supplemental affidavits might be made.(b)]

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Sir James Scarlett and F. Pollock, contrà. On applying for the rule, the stamp office affidavit was produced, and newspapers were put in, corresponding with it in title, place of publication, and printer's and publisher's names. That by 38 G. 3, c. 78, s. 11, was sufficient proof that the papers in question had been printed and published by the defendants; and the rule is drawn up "on reading the printed papers," which shews that the libellous matter was read to the Court on moving for the rule.

The stamp office affidavit.

In the affidavits afterwards made, one deponent stated that he had read the libellous matter in a certain paper, &c. and another expressed his belief that it referred to the party complaining.

PER CURIAM. (a) As soon as the stamp office affidavit is proved, the statute enables the prosecutor to put in a newspaper corresponding with it, and to use such paper as evidence against the defendant. (Mayne v. Fletcher, 9 B. & C. 382.) That is the rule at nisi prius, and by parity of reasoning it *700] *should be so here. If no other cause is shewn, the rule must be absolute. Rule absolute.(b)

ELIZA KELLY v. JOHN PARTINGTON. April 26.

A master in giving the character of his late servant to a person intending to take her, charged her with theft; and in support of that charge, stated, that she had borrowed money when she came into his service, and repaid it before she received any wages. In reply to an inquiry made afterwards by a relation of the servant, he admitted that the time when he paid the wages was entered in a book, which he produced, but refused to state what the time was; and on the same party remonstrating, and observing that the servant, in consequence of her loss of character, might have gone upon the town, he answered, "What is that to us?"

Held, that this conduct was evidence to go to the jury (though slight,) that the communication to the intended master was made maliciously.

CASE for words imputing theft, with an averment that one James Stenning, in consequence of the words, refused to take the plaintiff as a shop-woman. At the trial before Patteson, J. at the sittings in Middlesex during this term, it appeared that Stenning, who was going to take the plaintiff into his service, inquired her character of the defendant, to whom she had been shop-woman; and the defendant, on that occasion, charged her with having secreted money taken from his till, and also stated that when she came into his service she borrowed half a sovereign of her mother, and that before she had been there two months, and before she received any wages, she paid her mother the money, and made her a present of a sovereign. The plaintiff's brother-in-law deposed that he afterwards called upon the defendant for an explanation of the words, when he repeated the same charges. The witness, with reference to the latter statement, observed that the defendant, no doubt, made entries in some book, of the *701] times at which he paid his servants' wages, and that on reference to it he would probably find that he was mistaken in what he had asserted. The defendant then went to his desk, took out a memorandum book, and looked at it; after which he turned to the witness, and asked, "Do you know when she received her wages?" the witness answered "No;" but he would go by the defendant's account, as that was likely to be correct. The defendant then said "If you do not know, I am not going to tell you," and put the book into the desk again. The witness upon this made some allusion to intended proceedings at law, and said he considered the case of theft as trumped up; to which the defendant made no answer, but "grinned" in a contemptuous manner at the witness; and upon his remonstrating, and observing that if the plaintiff had not had friends, she might have gone upon the town, the defendant said (speaking of himself and his wife) "What is that to us?" Evidence was then given in contradiction of the defendant's statement as to the time when the plaintiff repaid the half sovereign. Upon this case, Sir James Scarlett, for the defendant, submitted that there was no ground of action, inasmuch as the words spoken to Stenning were a privileged communication to a person inquiring the character

(a) Denman, C. J., Littledale and Parke, Js.

(b) But quære, (although the newspapers were properly before the Court as evidence against the defendants,) whether the affidavits ought not to have specifically pointed out the libellous matter complained of, and which the prosecutor's affidavits were intended to

contradict.

of a servant; and those to the brother-in-law were spoken to an agent of the plaintiff by way of explanation, which he had called for on her behalf; and there was no proof of express malice. Patterson, J., refused to nonsuit, but reserved leave to move; and the defendant having given some evidence to shew grounds of suspicion on his part, a verdict was found for the plaintiff, damages one shilling.

[*702

*Sir James Scarlett now moved to enter a nonsuit, and contended that, on the above facts, there was no evidence to go to the jury of express malice. In Child v. Affleck, 9 B. & C. 403, the case of malice was much stronger; but the plaintiff was nonsuited, and this Court held the direction right.

DENMAN, C. J. Where it is clear that the words complained of are nothing more than a communication from one master to another, informing him of the character of a servant, the case certainly ought not to go to a jury. But where there are other circumstances from which malice may be inferred, the question is for them to decide. Here there were such circumstances, though very slight; namely, the refusal to point out an entry in a book, when that became the means of proving or disproving a charge which the defendant had made; and the answer, "What is that to us?" when it was suggested that the plaintiff might have gone upon the town. I think, therefore, we ought not to grant a rule. LITTLEDALE, J., concurred.

PARKE, J. There was a slight case to go to the jury, and no more.

Rule refused.

*The KING v. The Inhabitants of TADCASTER.

April 27. [*703

A pauper in Nov. 1827, took a dwelling-house of A., at an annual rent of 61. 10s. In May, 1828, he took of B. a building used as a shed, situate in the same parish, but entirely separated and distinct from the dwelling-house, at an annual rent of 51. He occupied both, and duly paid the rents, until September, 1830: Held, that he thereby gained a settlement by renting a tenement under the stat. 6 G. 4, c. 57.

ON appeal against an order of two justices, whereby Jane Silversides, and her five children, were removed from the township of Leeds in the county of York, to the parish, township, or place of Tadcaster, the sessions confirmed the order, subject to the opinion of this Court on the following case :

The appellants admitted that William Silversides, the late husband of the pauper Jane Silversides, gained a settlement by apprenticeship in the township of Tadcaster, and the respondents admitted that he afterwards went to reside in the township of Leeds, and in November, 1827, took a dwelling-house, there situate, as tenant to one W. Wheelwright, and occupied the same until September, 1830, at the yearly rent of 67. 10s., which rent was duly paid for all that period; that in May, 1828, William Silversides also took a building used as a shed, where he carried on his business of a bricklayer and mason, situate in the said township of Leeds, as tenant to one Robert Myres, and occupied the same until September, 1830, at the yearly rent of 57., which rent was also duly paid for all that period. The dwelling-house was wholly separated and distinct from, and unconnected with, the other building, there being a separate and distinct tenement between them, belonging to and occupied by another person. The question for the opinion of the Court was, whether the pauper gained a settlement in Leeds by renting a tenement under 6 G. 4, c. 57.

*Milner and Baisen in support of the order of sessions. The pauper [*704 gained no settlement in Leeds. The settlement by renting a tenement arises by implication from the statute 13 & 14 Car. 2, c. 12, which authorizes two justices of peace to remove any poor person "coming so to settle, as aforesaid, in any tenement under the yearly value of 10%.," within forty days after he

shall so come to settle; and in the reign of George the first it was held in South Sydenham v. Lamerton, Str. 57, that the taking of an entire tenement of 107. per annum conferred a settlement though it lay in two parishes, but that two distinct tenements making together 107. per annum in different parishes would not. That decision was virtually overruled in Rex v. Newnham, Burr. S. C. 756, where it was decided that a settlement was gained by renting a house at a rent of 31. per annum of one landlord, and land at the rent of 87. of another landlord. Such was the state of the law before the passing of 59 G. 3, c. 50, which enacts "that no person shall acquire a settlement in any parish by reason of his dwelling for forty days in any tenement rented by him, unless such tenement shall consist of a house or building being a separate and distinct dwellinghouse or building, or of land within such parish, or of both, bona fide hired by him, at and for the sum of 107. a year at the least, for the term of one whole year; nor unless such house or building shall be held and such land occupied, and the rent for the same actually paid for the term of one whole year at the least, by the person hiring the same." Now these words seem to import, that there should be one tenement, taken at one time. It was decided, *how*705] ever, in Rex v. North Collingham, 1 B. & C. 578, and Rex v. Stow, 4

B. & C. 87, that the tenement required by this statute might consist of different parcels hired at different times. The act 59 G. 3, c. 50, was repealed by 6 G. 4, c. 57, which enacts, that "no person shall acquire a settlement by reason of settling upon, renting, or paying parochial rates for any tenement not being his or her own property, unless such tenement shall consist of a separate and distinct dwelling-house or building, or of land, or of both, bona fide rented by such person in such parish &c., at and for the sum of 107. a year at the least, for the term of one whole year; nor unless such house or building, or land, shall be occupied under such yearly hiring, and the rent for the same to the amount of 101. actually paid, for the term of one whole year at the least; provided always that it shall not be necessary to prove the actual value of such tenement." This latter statute differs from the former, inasmuch as it requires the house, or building, or land to be occupied, not by the party hiring the same, but under such yearly hiring. That expression imports, that the occupation should be under one, not several contracts of hiring. This case is not within the act, because the two buildings were not hired at the same time; and the words of an act of parliament are to be construed in their grammatical and natural sense, unless it appears clearly from the context that they were intended to be used in some other sense per Parke, J., in Rex v. Ditcheat, 9 B. & C. 186. But, secondly, in order to satisfy this statute, the tenement must consist of a *706] dwelling-house, or building, or of land, or of both. It will be said, that the *word both applies to any two of the three things previously mentioned, and consequently that the tenement may consist of a dwelling-house and building; but as the word building necessarily includes in it a dwelling-house, the statute may, therefore, be read as if it had said "a separate and distinct building, or land, or both;" and, if so, then two separate and distinct buildings would not satisfy the meaning of the statute.

Cresswell contrà. The dwelling-house and shed constituted a tenement within the meanining of 6 G. 4, c. 57, which, in terms, requires that it should consist of a dwelling-house, or building, or land, or both. No sufficient reason can be assigned why it should not consist of a dwelling-house and building as well as of a dwelling-house and land, or of a building and land. The argument on the other side assumes that only two things are specifically mentioned, to which the word both can refer; a dwelling-house and building being one, and land the other; but three things are, in fact, mentioned; and the word both, which, in strictness, can apply to two only, is perhaps improperly used in the place where it occurs in this sentence. But why may it not be considered as repeated three times, and the clause read thus: "unless the tenement shall consist of a dwelling-house or building, or both; or

of a dwelling-house, or land, or both; or of a building, or land, or both." By so reading it, effect will be given to the word both in its natural sense; and the intention of the legislature will be effectuated. Besides, building and land, for this purpose, are synonymous. Lord Coke says, "that land legally includeth all castles, houses, and other buildings; for castles, houses, &c., consist upon two things, viz., land or ground, as the foundation *or structure there[*707 upon; so as passing the land or ground, the structure or building thereupon pased therewith," Co. Litt. 4, a. In Rex v. Macclesfield, 2 B. & Ad. 870, Parke, J. expressed an opinion, that the occupation of a dwelling-house and another distinct building in the same parish, would confer a settlement; and there can be no reason why it should not, as well as the occupation of a dwellinghouse and land. Then, as to the different parcels of the tenement being taken at different times, there is no difference between the statutes 6 G. 4, c. 57, and 59 G. 3, c. 50, as far as respects the present case. Before the 59 G. 3, c. 50, a settlement might be gained by the occupation of a tenement under different hirings; and in Rex v. North Collingham, 1 B. & C. 578, and Rex v. Tonbridge, 6 B. & C. 88, it was held, under that statute, that a tenement consisting of two parts, hired by the year, at different times, provided it was hired at the aggregate rent of 107. per annum, and the whole was occupied for one whole year, would confer a settlement. The only difference (as to the present question) between that statute and the 6 G. 4, c. 57, is, that the first required the holding and occupation for a year, to be by the party hiring; but the second only requires the occupation to be under the yearly hiring; and in Rex v. Ditcheat, 9 B. & C. 176, and Rex v. Great Bentley, 10 B. & C. 520, it was held, that a pauper who rented a tenement for a year at a rent exceeding 107. per annum, but who underlet part, gained a settlement under the latter statute, the whole being occupied under the yearly hiring. To remedy the inconvenience resulting from those decisions, the 1 W. 4, c. 18, requires that the house, or building, or land, shall be occupied under the *yearly hiring by the person hiring the same. It is immaterial whether the rent be payable to one or several, [*708 and there need not be a concurrent occupation of the several tenements for the space of one whole year, Rex v. Ormesby, 4 B. & Ad. 214, though in the present case there was.

DENMAN, C. J. It has been often observed, that the word tenement in the decisions upon the statute 13 & 14 Car. 2, c. 12, has received a much larger construction than the legislature intended; but those decisions are so numerous, and have been acquiesced in so long, that we must abide by them, unless the legislature has in clear terms altered the law which they established. Now, if the statute 59 G. 3, c. 50, or 6 G. 4, c. 57, was intended to alter the law in this respect, it seems to me that the enactments have not hit this precise case. Under the first of those statutes it was held, that a settlement might be gained by the occupation of a tenement on different hirings. In Rex v. Stow, 4 B. & C. 87, a pauper, three weeks after May-day, 1820, hired a house and land in the parish of Stourton by Stow for a year from the preceding May-day, at a rent of 157. and at the expiration of that time hired it again for another year at the same rent. He occupied the premises from the time of the first hiring until six months after the second hiring, and paid the rent during the whole period; and it was urged that the house and land were not occupied as the statute required, for the term of one whole year. Abbott, C. J. there says, "It has been contended, the legislature must have meant the hiring, occupation, and payment to be for the same year; if that had been their intention, it would have been easy to say that the occupation and *payment should be for such term;" and [*709 Holroyd, C. J. says, "If it had been intended that the occupation should be for the same term as the hiring, the legislature would probably have introduced the words for the said term. It seems to me, that the words 'nor unless,' have been used in order to divide the sentence, and to exclude the construction now contended for on behalf of the appellants." Now those observa

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