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1796.

CURRY

WALTER

G. Hall 1751.

whereon to found a criminal prosecution. But this will not deprive him of his civil remedy; for in a declaration for slander falsò dixit without malitiosè has been held sufficient. Mercer v. Sparkes, Ow. 51. Noy 35. S. C. and Moor 459. Anon. Copying a scandalous matter is according to Lord Holt fufficient to conftitute a libel, for it perpetuates the memory of the scandal; though if the copy be made by a clerk in writing an indictment, or a student a note, it is not so, because not done ad infamiam. Rex v. Beare, i Ld. Raym. 417. 2 Salk. 417. 12 Mod. 220. It is now perfectly settled that every one is answerable for the flander which he reports of another. Per (a) Lee Ch. J.

Bull. N.P. 10. Ed. 2. With respect to the second point, it will be necessary to confider the allegation in the declaration. The libel purports to be an account of what passed in the Court of King's Bench, and it was not stated that the Plaintiff and Mr. Bingham did what was there afcribed to them, but that certain things were there afcribed to them. The truth of this account therefore, not the truth of the facts stated, should have been specially pleaded in justification. The general issue is either a denial of the publication, or that if published by the Defendant, the words are not actionable. The rule is, that where the Defendant admits the publication, and that the words are flanderous, but means to juftify under the occasion of their publication, he should plead that justification specially, in order that the Plaintiff may have notice of the nature of the defence. Underwood v. Parks, 2 Str. 1200. This was done in Brook v. Montague, cited on the other side, where the Defendant pleaded that he spoke the words imputed to him as counsel, and in Astley v. Younge, that the scandalous matter was contained in an affidavit made by the Defendant in the King's Bench in his own defence. The prefent differs materially from the cases relied on, viz. of a mistress giving in evidence her being called on for a character of a fervant, and of a friend having spoken of a tradesman's credit by way of advice; in those cases the parties uttering the imputed scandal had a duty to fulfil, which this Defendant had not.

The Court were of opinion that this action could not be maintained, but some doubts being entertained upon the bench whether the matter of justification ought not to have been pleaded, the case stood over; and no judgment was ever given. (6)

(a) Vid. etiam Davis v. Lewis, 7 Term. by Lawrence J. in his judgment on the Rep. 17

case of Tba King v. Wright, 8 Term. Rep.' (b) See the reference to this case made 298.

VOL. I.

мм

REGULÆ GENERALES.

11 T IS ORDERED, That from and after the laft day of this present

Term, no fines which shall appear to have been acknowledged more than twelve calendar months, thall be permitted to pass the King's Silver Office without a rule of the Court, or an order under the hand of the Lord Chief Justice or some other Judge of this Court; and that where the conuzor or conuzors Thall be all living at the time of making the application for such rule or order, an affidavit shall be made thereof. And in cafe any or either of the conuzors of such fine should not then be living, an affidavit shall be made itating the time of the death of such conuzor or conuzors, and the application in such cate for a rule or order that the said fine may pass the King's Silver Office fhall be made to the Court by motion, if in Term time, or if in Vacation to the Lord Chief Justice or some other of the Justices of this court, at bis chambers; and that the rule or order in such last-mentioned cate, when obtained, thall be filed with the præcipe and concord of the fine, at the King's Silver Office.

By the Court,

JA. EYRE.
F. BULLER.
J. HEATH.

G. ROOKE. It is ORDERED, That from and after the firft day of the next Term, in all actions requiring bail, the Defendant shall not be permitted to enter into the recognizance; but the bail fhall each of them enter into a recognizance of double the fum sworn to.

By the Court,

J. EYRE.
F. BULLER.
J. HEATH.
G. ROOKE.

In this term Samuel Shepherd of the Inner Temple, Efq. was

called to the honourable degree of Serjeant 'at Law, and gave rings with this motto,

Legibus Emendes."

END or EASTER TERM.

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In the Thirty-fixth Year of the Reign of GEORGE III.

Doe on the several demises of POTTER and Others v. Tune ift.

ARCHER and Another. THIS his ejectment, for certain premises in the parish of Totten- Tenant for life

ham in the county of Middlesex, came on to be tried before for 21 years, and Eyre Ch. J. at the fittings after Hilary Term 1796, when a ver before the expidi&t was found for the Plaintiff, subject to the opinion of the term dies; the Court, upon the following case:-

trustees of the

remainder mang Francis Bowyer being seized of the tenements and premises in then an infant, the declaration mentioned, in his demefne as of fee, by his will, continue to redated the 21 ft of January 1779, duly executed and attested as the reserved, and he, law requires for pafling real estates, devised the said tenements on coming of age, and premises unto his nephew Thomas Bower for his life; re- mises by auction; mainder to Thomas Elde, Stephen Martin Leake, and William of sale the preWhitaker, in truft to preserve contingent remainders; remainder mises are deto Thomas Bowyer Bower (the son of Thomas Bower,) for his clared to be sublife, remainder to the heirs male of the body of Thomas Bowyer and in the conBower, remainder to the younger children of the said Thomas "eyance to the Bower, and remainder to the right heirs of Thomas Bower for leafe is referred

to as in the por

session of the lesfee ; and in the covenant against incumbrances, that lease is excepted; the purchaser mortgages, and in the mortgage deeds the like notice is taken of the lease, and the mortgagees for some time receive the rent reserved; held that the lease expired with the interest of the tenant for life, and that the notice since taken of it did not operate as a new lease. MM 2

ever

1796.

ever.

Doe dem.
POTTER

ArchiR.

The faid teftator afterwards died without revoking or altering his said will, so seized of the said tenements and premises with the appurtenances; by virtue whereof the said Thomas Bower entered and became seized of the said tenements for his life. And being so seized by indenture of lease, made on the 25th of September 1784, between the said Thomas Bower of the one part, and Thomas Archer, fince deceased, of the other part, and bearing date the fame 25th September 1784, the faid Thomas Bower demised unto the said Thomas Archer, his executors, administrators, and affigns, the said tenements and premises, to hold the fame unto the said Thomas Archer, his executors, administrators, and afligns, from the feast of St. Michael the Archangel next ensuing the date thereof, for the term of twenty-one years then next following, at the yearly rent of gol., payable half yearly, as therein mentioned; by virtue whereof the faid Thomas Archer entered and was possessed thereof. In the month of January in the year 1790, Thomas Bower, the landlord, died, leaving Thomas Bowyer Bower, his son, then an infant; and the said trustees named in the said will received the half year's rent from the faid Thomas Archer, which became due at Lady-day 1790, according to the terms of the said lease, and continued to receive the same rent, as reserved by the lease, half yearly, until Michaelmas 1792, at which time the faid Thomas Bowyer Bower (having attained his age of 21 years in the month of April in the same year, and having previously, and after he came of age, suffered a recovery thereof, and declared it to the use of himself in fee,) fold the faid premises to Samuel Potter by public auction. In the conditions of sale by which the premises were sold to the said Samuel Potter, it was declared that the fale was subject to the faid leafe to the

said Thomas Archer, and the conveyance to the purchaser was by indentures of lease and release, dated and made respectively on the 20th and 2ift November 1792. The release of three parts, between Thomas Bowyer Bower of the first part, Thomas Smith Esq. of the second part, and Samuel Potter, linen-draper, of the third part; after reciting that the said Thomas Bowyer Bower, on the 6th July last, did cause the messuage or tenement and farm aftermentioned, with the appurtenances, to be put up to sale by public auction at Garraway's, fubject to the lease therein after mentioned, and to a fee farm or quit rent of 20. 1os. payable thereout to the faid Thomas Smith, as lord of the manor of Tottenham; that at such fale the faid Samuel Potter bid for, and being the higheft

bidder,

1796.

Doe dem.
POTTER

ARCHER,

bidder, was declared the purchaser thereof (subject as aforesaid), at the price of 3,220l. exclusive of the timber, which was to be taken at a fair valuation; and that the timber had fince been yalued at 1461. 55. 2d. and that Mr. Potter had also agreed with Mr. Smith for the purchase of the fee-farm rent for 75 l.; witnefled, that in confideration of the purchase monies paid in manner therein mentioned, the said Thomas Bowyer Bower and Thomas Smith did convey the said messuage or tenement and farm, and the said quit-rent by the description therein mentioned; all which said premises were then in the tenure or occupation of Thomas Archer or his assigns, at and under the yearly rent of 90l.; and were under leafe to him for a term of 21 years, which would expire at Michaelmas day 1805, together with the appurtenances, to hold the fame unto and to the use of the said Samuel Potter, his heirs and assigns, for ever, discharged of the said quit-rent of 2l. 10s. Mr. Bowyer Bower, by the said indenture, also entered into the usual covenants of a seller; and in the covenant for peaceable enjoyment, the rents and profits were to be received by the purchaser from the 29th September then laft; and in the covenant againft incumbrances, the faid leafe tothe faid Thomas Archer, for the term of 21 years, which would expire at Michaelmas 1805, was excepted. By indentures of lease and release, dated and made on the 22d and 230 November 1792, the above premises were mortgaged by the said Samuel Potter to Benjamin Fuller, Matthew Hancock, and Richard Shaw, Efqrs. for securing 2000l. and interest; and in the description of the parcels, and the covenant against incumbrances there was the like notice taken of the lease to the

said Thomas Archer as in the conveyance to the

faid Samuel Potter. The abovementioned mortgagees have been in receipt of the rents ever since their mortgage, and have received the same of Thomas Archer the lessee half-yearly at Ladyday and Michaelmas down to Michaelmas 1793. The Defendants are the personal representatives of the faid Thomas Archer de ceased, and as such are in the poffeffion of the premises. On the 24th day of March 1795, a notice subscribed by the leffors of the Plaintiff, Richard Shaw, Samuel Potter, Benjamin Fuller, and Matthew Hancock, was served on the Defendants, by which notice they were required to deliver up the poffeffion of the said premises on the 29th day of September then next. Under these circumstances, the question reserved for the confideration of the Court was, Whether the Plaintiff was entitled to recover possession of the said premises? And if the Court should be of opinion, that he MM 3

was,

4

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