LIMITATION OF ACTIONS.-LITERARY PROPERTY. 357 been accomplished without such a publication, or in more guarded language. Ibid. And see ante, LIBEL, pl. 10, 43-4-6. A paragraph in one newspaper charging another with fraud, is actionable. Stuart v. Lovell, 1 Stark. 93. Ellenborough, C. J. 1817. LIMITATION OF ACTIONS. A. IN ASSUMPSIT. A. (a) From what time to be computed. A defendant is not responsible for a libellous letter written by one who is in Quære, whether there is any limitathe habit of writing his letters of busi-tion to an action for contribution against ness, without proof of his having adopted a co-obligor; see Brooke upon Stat. the libel. Harding v. Greening, Holt, Lim. 15. cited C. D. Temps. 611. 531. Gibbs, C. J. 1817. And the court discharged a rule for setting aside nonsuit, 1 Moore, 477. A. (c) Evidence. It is no defence that the particular facts charged were communicated to the defendant by a third person. Mills and Wife v. Spencer and Wife, Holt, 533. Gibbs, C. J. 1817. A. (d) Where waved. A bare acknowledgment of the debt is not sufficient. Lara v. Bird. Peake's Evidence, 197, 1791. C. IN EJECTMENT. (a) From what time to be computed. A. being lessee in remainder, expectAnd see Lord Northampton's case, ant upon the determination of a prior 12 Co. Rep. 133; Maitland v. Gold-lease, dies intestate. Administration is ney, 5 East, 426. Upon the general issue, the plaintiff cannot give evidence to disprove the truth of the libel. Stuart v. Lovell, 5 Stark. 93. Ellenborough, C. J. 1817. not taken out until after the expiration of the first lease. As against a party claiming under A., the adverse possession must be considered as commencing from the moment the first lease expired, But in another case it was said, that and not from the grant of administrasuch evidence, though clearly admissi- tion. Fairclaim v. Little. Burrough, J. ble, would give liberty to the defendant Salisbury Summer Assizes, 1818. to show the libel to be true. Brown v. N. Where the statute once begun to Croome, 5 Stark. 597. Ellenborough, run, no disability in a party to whom the right may devolve before the twenty C. J. 1817. Nor can he produce other libels to years have elapsed, will impede the show the quo animo, unless the intention course of the statute; 4 Taunt. 826. is equivocal. Stuart v. Lovell, ubi Plowden, 347, 370; 4 T. R. 300, 306, n.; 6 East, 80.. supra. 358 MISDEMEANOR.-NATURALIZATION. Nor a receipt given by the author "Les établissemens de commerce ne for money paid to him as the price of pourront jamais être considérés comme his copyright. Ibid. MISDEMEANOR. A. WHAT SHALL BE. A. (a) Conspiracy. To support an action for a conspiracy in issuing a commission of lunacy, malice and a want of probable cause must be proved. On proof of a total want of probable cause malice may be implied; but, although express malice be proved, some slight evidence of a want of probable cause must be given. Turner, Bart., v. Turner and others, 1 Gow, 50. Dallas, C. J. 1818. NATURALIZATION. A. Distinction between Denization by Letters Patent and Naturalization by Parliament, ayant été faits sans esprit de rétour." Upon the construction of this clause, the Cour de Cassation decided that the letters of denization did not amount to a "naturalisation acquise en pays étran ger." The court considered the denization as an imperfect and incipient naturalization, founding their judgment upon an opinion produced from England, stating, that no "naturalization" could be obtained in that country without an act of parliament. The importance of the question will, it is presumed, excuse the introduction of the following observations. The word "6 denizen," in its proper and original sense, served to distinguish of the King of England from foreigners. the persons born within the allegiance Sometimes, though less frequently, it was applied to the natives of a borough, &c. possessing certain privileges and franchises from which strangers, though English subjects, were excluded. The word denization signifies a grant of the quality of natural subject, which, by the laws of England, the king alone has the right to confer. It is true, that in a more modern and less proper sense, the word "denizen" has been used to designate a foreigner who has become a subject by letters of denization; in which latter sense, the word denizen is now used in common language and in acts of parliament. In In an action depending in the French ordinary conversation, the word "decourts between J. L. P. Brunet and a nizen," in its proper signification, is British officer of high rank, the ques- become obsolete, if that term can be tion was, whether Brunet, by accepting applied to a word, which, in ordinary letters of denization in England, (though conversation, occurring in England, was he had since returned to France,) had so at no period likely to suggest itself to far lost the rights of a French citizen as the mind of the speaker. to be incapable of suing a foreigner upon By obtaining letters of denization a cause of action arising out of France. the foreigner acquires the rights of The Code Civil contains the following one who is born a subject, and conprovision (a):tracts the same obligations. But the "La qualité de Français se perdra, 1°, King of England has not the power of par la naturalisation acquise en pays granting to any even of his own subétranger; 2, par l'acceptation non jects, privileges which would prejuautorisée par le roi de fonctions pub-dice the rights of other subjects. liques conferées par un gouvernement Letters patent of denization, therefore, etranger; 3° enfin par tout établissement cannot possess a retrospective operation, fait en pays étranger sans esprit de ré-for disturb any rights already vested in third persons. On this account, Brooke, C. J. says, "Nota pro lege anno, 36 tour. (a) Art. 17. dition. But, as letters of denization do not proceed upon this fiction of making a person a subject from the time of his birth, they are capable of admitting restrictions; and, it is possible to imagine such restrictions to be imposed upon the grant as to confer only in an incomplete manner, the quality of a British subject. But though such a case may be supposed, it does not appear ever in fact to have existed. H. 8. that if a foreigner come to England |tion does not begin to be in force except and bring his son with him, who was from the date of the letters patent.' born beyond the sea, and is an alien as In another case it is said, that nais his father, there the king cannot, by turalization is always made in parhis letters patent, make the son heir to liament and is perpetual, for if a man be his father nor to any one else, for he naturalized for one hour he is so for cannot alter the laws by his letters patent, ever (c)." nor in any way except by parliament, It would indeed be a contradiction to for he cannot disinherit the right heir maintain that naturalization by act of nor disappoint the lord of his escheat (a)." parliament has reference to the moment Where such a retrospective operation of the party's birth, and yet that it can On the is desired it is necessary to apply to be limited to a single hour. parliament, who, in naturalizing a fo- same principle, a release given by a crereigner, must be considered not as ad- ditor to his debtor is absolute, even ministering the law but as dispensing though it purport to be available only with it, or rather as making a new law pro for a limited period, or to be on conhâc vice. Besides which, as every act of parliament is presumed to include the consent of the whole nation, those who would have inherited or who might have entered pro defectu hæredis if the naturalization had not been effected, are not at liberty to consider themselves aggrieved even by the operation of a law which places the party in the same situation as if he had been actually born in this country. This induced the Court of C. P. to declare, "that an act of naturalization is It is required by statute (32 H. 8. cap. not to be extended by equity, since it 16. s. 7.) that in all letters patent of decarries with it somewhat of injustice, nization a clause be inserted, importing inasmuch as it may have the effect of that they shall be void, if the party endisinheriting natural subjects." And gages in any unlawful trade, or does not the Chief Justice, Sir O. Bridgman, obey the laws of the realm. But this added, "that such a kind of naturaliza- appears to be merely in terrorem. tion is contrary to the systems of other"If an alien be made a denizen, and states in France, where those who are the letters of denization have a proviso, naturalized cannot enjoy the same privi- (as is usual in such charters) that the leges (b). denizen shall do his liege homage, and The distinction between naturaliza-that he shall be obedient and observe tion by act of parliament and deniza- the laws of the realm, this proviso does tion by letters patent is expressed in a not amount to a condition, for, although few words in an argument in Carter, he never does homage, and does not 169. "Naturalization is an adoption, obey the laws, this shall not make the by means of which a foreigner ac- denization void, for if he does not obquires, by right of birth, all which an serve the laws he shall suffer the penalEnglishman can claim. Naturalization ties which they impose (d).” acts from the time of birth; but deniza Bro. Abr. tit. Denizen et Alien, pl. 9. (b) Collingwood v. Pays, 1 Sid. 197. In this case it was decided, that even an act of parliament was not co-extensive in its operation, with actual birth; since the former, before the union, only made the party a natural subject in that state, (e. g. Ireland) in which the act passed, leaving him an alien in the other two, (England and Scotland.) Denization, therefore, appears to be a perfect prospective naturalization. The only difficulty in the question seems to arise from the peculiar mode in which the latter word is used in English juris (c) Godfrey v. Dixon, 2 Rolle's Rep. 95. Cro. Jac. 539. (d) 1 Roll. Abr. 195. Pasch. 8 Jac. in Scaccario; Verseline Manning's case. OFFICER. B. AUTHORITY. prudence. The English constitution} has always regarded the power of adopting new members into the state as an inalienable prerogative of the crown; and, strictly speaking, the exercise of this right by the king alone by his letters patent of denization is the only court of competent jurisdiction is senA person convicted of a crime by a mode of adoption which the law recogtenced to pay a fine, and is committed in nizes. When a man is naturalized by execution until that fine be paid. Alact of parliament, in addition to that denization which the king confers at the though the officer to whose custody he is committed voluntarily permit him to moment the royal assent is given to the bill, he obtains some collateral advan-escape before payment of the fine, yet it is afterwards his bounden duty to retake tages by a new law made pro re nata, to him. Bull v. Jones, Esq., 1 Gow, 99. which, under the existing laws, he could Dallas, C. J. not through any means attain. These advantages thus gained emanate from the same authority, which, by a similar though less usual exercise of its power, may declare the city of Quebec to be part of the County of Middlesex. A person who has obtained letters of denization has at all times been con sidered as enjoying the same rights, privileges, and immunities, and as contract. ing the same obligations as a natural born subject (e). (e) Thus in Nichols v. Nichols, Plowden, 482-3, it is said, "the Lord Dyer cited a case which he said was in Frowick's reading, and was thus:-A man makes a lease for years, of land, to an alien, upon condition that if the alien pays to the lessor such a sum of money during the lease, then he shall have the fee, and afterwards the king makes him a denizen, and after C. PRIVILEGES. C. (a) As defendants. A gaoler receiving and detaining a person under the warrant of a magis54 Geo. 5. c. 44.; and, therefore, on trate, is intitled to the protection of the producing and proving the warrant under which the detention was made, it is immaterial whether or not the magistrate had jurisdiction to grant it. Butt v. Newman, 1 Gow, 97. Dallas, J. 1819. PARTNERS. that he pays the money, and all this matter is A. WHAT SHALL BE A PARTNERSHIP. afterwards found by office, in this case, he said, that Frowick was of opinion, that the king should have the fee. But, (with submission) says this very learned reporter, it seems to me A. (b) With respect to strangers. Si margarita tibi vendenda dedero, that the law is not so; for, when the condition ut, si ea decem vendidisses, redderes mihi was, that upon the payment he should have the fee, the fee shall not vest until the payment; naturalized, placing them as before in the midfor, although the condition shall have relation dle. to the livery for the avoiding of incumbrances, The registry acts require the party applying yet, as to the vesting of the fee, it should only for a register to swear that he is bona fide a have relation to the time of the payment; for subject of Great Britain The form of the oath the condition was, that if he paid the money, then goes on to negative that the party has then he should have the fee, and he could not taken the oath of allegiance to a foreign state, have the fee before; and then, when the fee or, if he has taken such oath, to state that he vested in him, he was a natural subject, and is since become a subject by letters of denization, had capacity to take as a subject. so that the or by naturalization by act of parliament. time when the condition was made, is not so Thus a denizen who has taken the oath of alle much to be regarded as the time when the fee giance to a foreign power must swear that he vests, and when it vested in that case, the les-Las since become a subject by denization, but see was capable as a subject." By 43 Geo. 3. cap. 155. sect. 21. aliens, who are the domestic servants of natural born subjects, denizens, and persons naturalized, are exemted from the operation of the Alien Act, and the 36th section in like manner classes de as nothing is said respecting denizens who have not taken such oath, it follows that they must swear simply that they are bonâ fide subjects. If this were not so, denizens who had taken the oath of allegiance to a foreign power, would be placed on a better footing than those who had nizens with natural born subjects and persons not. decem; si pluris, quod excedit tu haberes: mihi videtur, si animo contrahenda societatis id actum sit, PRO SOCIO esse actimem; si minus, præscriptis verbis ; Dig. 17, 2, 44. In this passage the animus contrahenda societatis appears to 13. PRACTICE. E. NOTICES. be opposed by Ulpian merely to a volun- E. (c) Effect of notice to produce papers. tary gift of the contingent profit, made After a notice to produce a lease and without reference to any beneficial exeffect-a nonsuit on the trial of the cause, the ertions on the of the part person ing the sale; see Pothier, Traité du defendant assigns the lease without the Contrat de Societé, chap. 1. sect. 3. num. privity of his attorney on record. A A distinction of a nearly similar second action is afterwards brought, and nature is made by Julian; Dig. 17, 1, another notice to produce the lease is 52. In the case of Benjamin v. Porteus, served upon the attorney, who informs 2 H. Bla. 591, the broker, who was to the person serving the notice that the keep for himself whatever he could get lease had been assigned, and that the beyond a certain price, as a reward for assignment was made without his prihis trouble, was, however, considered vity. by Heath, J. and Rooke, J. against the opinion of Eyre, C. J. as a competent witness for his employer. And see ante, APPENDIX, BANKRUPT, C. The plaintiff being acquainted with the place of the defendant's residence: held, that it was incumbent upon him to have inquired of the defendant, in whose possession the lease was, in order to render secondary evidence of its contents admissible. Knight B. ACT OF CO-PARTNER, IN WHAT v. Martin, 1 Gow, 103. Dallas, C. J. CASES BINDING. 1819. A pledge by one partner of partnerSemble, that where the plaintiff serves ship property will bind his co-partners, although the pledge is made without the defendant with notice to produce an their privity and consent, provided the instrument in his possession under pledgee had no notice that the property which both parties claim the same inwas joint property, and there be no fraud terest, it is not necessary for the plainin the transaction. Raba and Robles v. tiff to prove the execution of the instruRyland and another, 1 Gow, 135. Dal-ment by the testimony of the subscribing las, C. J. 1819. PEERAGE. Sce ante, PRACTICE, pl. 78. A. PLEADED IN ABATEMENT. And see 19 Ass. pl. 14.; Co. Litt. witness: aliter, where their interests are adverse. Knight v. Martin, 1 Gow, 26. Dallas, C. J. 1818. And see ante, PRACTICE, pl. 44, 45. Pearce v. Hooper, 3 Taunt. 60. H. PUTTING OFF TRIAL. In Iremonger v. Hunt, coram Wood, B. Winchester Lent Assizes, 1810, the defendant moved to put off the trial on an affidavit made by himself, stating, that the action was brought for a trespass, in sporting over land in the possession of the plaintiff, that the defendant had a clear right of sporting there, that A..B., a material witness to establish such right, was unavoidably absent, having been subpoenaed to attend the trial of the defendant and others, for a conspiracy at the York As |