whereon to found a criminal profecution. But this will not deprive him of his civil remedy; for in a declaration for flander falsò dixit without malitiosè has been held fufficient. Mercer v. Sparkes, Ow. 51. Noy 35. S. C. and Moor 459. Anon. Copying a fcandalous 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 fo, because not done ad infamiam. Rex v. Beare, 1 Ld. Raym. 417. 2 Salk. 417. 12 Mod. It is now perfectly fettled that every one is anfwerable for the flander which he reports of another. Per (a) Lee Ch. J. G. Hall 1751. Bull. N.P. 10. Ed. 2. 220. With respect to the second point, it will be neceffary to confider the allegation in the declaration. The libel purports to be an account of what paffed in the Court of King's Bench, and it was not ftated 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 ftated, fhould have been specially pleaded in juftification. The general iffue 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 occafion of their publication, he should plead that juftification fpecially, 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 fide, where the Defendant pleaded that he spoke the words imputed to him as counfel, and in Aftley v. Younge, that the fcandalous 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 cafes 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 cafes 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 fome doubts being entertained upon the bench whether the matter of justification ought not to have been pleaded, the cafe ftood over; and no judgment was ever given. (b) (a) Vid. etiam Davis v. Lewis, 7 Term. Rep. 17. (b) See the reference to this cafe made VOL. I. M M by Lawrence J. in his judgment on the 1796. CURRY V. WALTER. IT REGULÆ GENERALES. T IS ORDERED, That from and after the laft day of this prefent Term, no fines which fhall appear to have been acknowledged more than twelve calendar months, shall be permitted to pafs the King's Silver Office without a rule of the Court, or an order under the hand of the Lord Chief Juftice or fome other Judge of this Court; and that where the conuzor or conuzors fhall be all living at the time of making the application for fuch rule or order, an affidavit fhall be made thereof. And in cafe any or either of the conuzors of fuch fine fhould not then be living, an affidavit fhall be made stating the time of the death of fuch conuzor or conuzors, and the application in fuch cafe for a rule or order that the faid 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 Juftice or fome other of the Juftices of this court, at his chambers; and that the rule or order in fuch laft-mentioned cafe, when obtained, fhall 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 first 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 fworn 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 OF EASTER TERM. CASES ARGUED AND DETERMINED IN THE COURT OF COMMON PLEAS, IN Trinity Term, In the Thirty-fixth Year of the Reign of GEORGE III. 1796. DOE on the feveral demifes of POTTER and Others v. June ft. THI Francis Bowyer being seized of the tenements and premises in the declaration mentioned, in his demefne as of fee, by his will, dated the 21ft of January 1779, duly executed and attefted as the law requires for paffing real estates, devised the said tenements and premises unto his nephew Thomas Bower for his life; remainder to Thomas Elde, Stephen Martin Leake, and William Whitaker, in truft to preserve contingent remainders; remainder to Thomas Bowyer Bower (the fon of Thomas Bower,) for his life, remainder to the heirs male of the body of Thomas Bowyer Bower, remainder to the younger children of the faid Thomas Bower, and remainder to the right heirs of Thomas Bower for Tenant for life leafes premises for 21 years, and before the expiterm dies; the ration of that trustees of the remainder man, then an infant, continue to rereserved, and he on coming of age mifes by auction; ceive the rent fells the pre in the conditions of fale the premifes are declared to be fub ject to the leafe, and in the conveyance to the leafe is referred purchafer the to as in the poffeffion of the leffee; and in the covenant against incumbrances, that leafe is excepted; the purchafer mortgages, and in the mortgage deeds the like notice is taken of the leafe, and the mortgagees for fome time receive the rent referved; held that the leafe expired with the intereft of the tenant for life, and that the notice fince taken of it did not operate as a new lease. 1796. DOE dem. V. ARCHER. ever. The faid teftator afterwards died without revoking or altering his faid will, fo feized of the faid tenements and premises with the appurtenances; by virtue whereof the faid Thomas Bower entered and became feized of the faid tenements for his life. And being fo feized by indenture of leafe, made on the 25th of September 1784, between the faid Thomas Bower of the one part, and Thomas Archer, fince deceased, of the other part, and bearing date the fame 25th September 1784, the said Thomas Bower demifed unto the faid Thomas Archer, his executors, adminiftrators, and affigns, the faid tenements and premifes, to hold the fame unto the faid Thomas Archer, his executors, adminiftrators, and affigns, from the feaft of St. Michael the Archangel next enfuing the date thereof, for the term of twenty-one years then next following, at the yearly rent of 90l., payable half yearly, as therein mentioned; by virtue whereof the faid Thomas Archer entered and was poffeffed thereof. In the month of January in the year 1790, Thomas Bower, the landlord, died, leaving Thomas Bowyer Bower, his fon, then an infant; and the said trustees named in the faid 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 faid leafe, and continued to receive the fame rent, as referved by the leafe, 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 fame year, and having previously, and after he came of age, fuffered a recovery thereof, and declared it to the ufe of himself in fee,) fold the faid premifes to Samuel Potter by public auction. In the conditions of sale by which the premises were fold to the faid Samuel Potter, it was declared that the fale was fubject to the faid leafe to the faid Thomas Archer, and the conveyance to the purchafer was by indentures of leafe and release, dated and made refpectively on the 20th and 21st November 1792. The release of three parts, between Thomas Bowyer Bower of the firft part, Thomas Smith Efq. of the fecond part, and Samuel Potter, linen-draper, of the third part; after reciting that the faid Thomas Bowyer Bower, on the 6th July last, did cause the meffuage or tenement and farm aftermentioned, with the appurtenances, to be put up to fale by public auction at Garraway's, fubject to the leafe therein after mentioned, and to a fee farm or quit rent of 2 10s. payable thereout to the faid Thomas Smith, as lord of the manor of Tottenham; that at fuch fale the faid Samuel Potter bid for, and being the highest bidder, bidder, was declared the purchaser thereof (fubject as aforefaid), at the price of 3,220l. exclufive of the timber, which was to be taken at a fair valuation; and that the timber had fince been valued at 1461. 5s. 2d. and that Mr. Potter had alfo agreed with Mr. Smith for the purchase of the fee-farm rent for 75 l.; witneffed, that in confideration of the purchase monies paid in manner therein mentioned, the faid Thomas Bowyer Bower and Thomas Smith did convey the faid meffuage or tenement and farm, and the faid quit-rent by the defcription therein mentioned; all which faid premifes were then in the tenure or occupation of Thomas Archer or his affigns, 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 faid Samuel Potter, his heirs and affigns, for ever, difcharged of the faid quit-rent of 27. 10s. Mr. Bowyer Bower, by the faid indenture, alfo entered into the ufual covenants of a feller; 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 to the Said Thomas Archer, for the term of 21 years, which would expire at Michaelmas 1805, was excepted. By indentures of leafe and releafe, dated and made on the 22d and 23d November 1792, the above premises were mortgaged by the faid Samuel Potter to Benjamin Fuller, Matthew Hancock, and Richard Shaw, Efqrs. for fecuring 2000l. and intereft; and in the description of the parcels, and the covenant againft incumbrances there was the like notice taken of the leafe to the faid Thomas Archer as in the conveyance to the faid Samuel Potter. The abovementioned mortgagees have been in receipt of the rents ever finçe their mortgage, and have received the fame of Thomas Archer the leffee half-yearly at Ladyday and Michaelmas down to Michaelmas 1793. The Defendants are the personal representatives of the faid Thomas Archer deceafed, and as fuch are in the poffeffion of the premises. On the 24th day of March 1795, a notice fubfcribed by the leffors of the Plaintiff, Richard Shaw, Samuel Potter, Benjamin Fuller, and Matthew Hancock, was ferved on the Defendants, by which notice they were required to deliver up the poffeffion of the faid premises on the 29th day of September then next. Under these circumftances, the queftion referved for the confideration of the Court was, Whether the Plaintiff was entitled to recover poffeffion of the faid premises? And if the Court fhould be of opinion, that he 1796. Doe dem. บ. ARCHER. |