1829. DOE V. HADDON. ever. such consent and approbation of the said E. C. Lord Eliot and John Eliot as aforesaid, testified as aforesaid,) did thereby revoke, annul, determine, and make void all and every the uses, estates, limitations, trusts, powers and provisoes by the said indenture of the 27th and 28th days of June, 1791, limited, expressed and contained, of and concerning the same premises, as far as should or might be requisite for the effectual conveying and assuring thereof, according to the true intent and meaning of the now reciting indenture, did, (with such consent and approbation as aforesaid, testified as aforesaid) thereby limit and appoint all and singular the said hereditaments and premises thereby granted, released and confirmed, with the appurtenances, unto and to the use of the said E. Whittaker, his heirs and assigns, for And it was by the now reciting indenture declared that the said premises should, from the date thereof, be for ever freed and discharged from all the uses, estates, limitations, powers and provisoes, by the said indentures of the 27th and 28th days of June, 1791, limited, declared and contained, as far as should be requisite, as aforesaid, and that the same and all fines and recoveries of the said premises should enure, as concerning the same, to the use of the said E. Whittaker, his heirs and assigns, for ever. The said indenture of the 6th August, 1801, is duly executed by the said Earl of Chatham and William Pitt, E. C. Lord Eliot and John Eliot, and attested in manner required by the power of sale and exchange contained in the said indenture of settlement of the 28th June, 1791. The case then set out indentures of lease and release, 27th and 28th January, 1802, whereby Edward Whittaker bargained, sold, and released unto Edward Worger, one of the lessors of the plaintiff, part of the premises sought to be recovered. The question for the opinion of the Court is, whether by the settlement of the 27th and 28th June, 1791, a term of 1000 years having been created and limited to the Right Honourable George Lord Bishop of Lincoln, and the Most Reverend Joseph Turner, D. D. they were material and necessary parties to the deeds of 5th and 6th August, 1801, or whether there should not have been a count on their demise. Cornish for the plaintiff. The Bishop of Lincoln and Dr. Turner were not necessary parties to the deed of 1801, unless the estate for the term of 1000 years was in them. The conveyance of 1791 operated as an appointment to the Earl of Chatham and William Pitt in fee, and all the subsequent limitations became trust estates. Secondly. The uses created by the deed of 1791 were overreached and defeated by the revocation contained in the deed of 1801. The counsel for the plaintiff had proceeded thus far in his argument, when it was perceived that the counsel for the defendants was not in Court. Upon which, the Court, being clearly of opinion with the plaintiff, gave him judgment nisi, which, on a subsequent day, after hearing a few observations from Chitty for the defendants, was made absolute. Postea to the plaintiff. 1829. Doe v. HADDON. CLEMENT V. CHIVES, in Error. cation, stating gross miscon ERROR upon a judgment in the Court of Common A written or Pleas. The second count stated that Clement, the defend- printed publiant below, and plaintiff in error, published in a certain that A. has newspaper, a certain false, scandalous, and malicious and been guilty of defamatory libel, of and concerning Chives, the plaintiff duct in insulting persons in below, and defendant in error, containing therein, amongst a barefaced other things, the false, scandalous, malicious, and defama- manner, is tory matter following, of and concerning Chives; that is to say, "Greenwich Coachmen.-The insolence of the Greenwich coachmen and their cads becomes intolerable. Our notice has been called to Thomas Chives, (meaning, &c.) and his cad, who on Tuesday last insulted two females and libellous. 1829. CLEMENT v. CHIVES. some gentlemen, who were outside passengers, in the most barefaced manner." Plea, not guilty, to the whole declaration. General verdict of guilty, with 57. damages; and a general judgment for the plaintiff below. The error assigned was, that the second count (a) did not disclose any sufficient cause of action. Platt, for the plaintiff in error. The libel not being laid to have been spoken with reference to the business of a coachman, nor appearing to have been attended with special damage, this count cannot be supported (b). The mis (a) The damages being general, the judgment below could not be supported unless all the counts were good. If, however, the Court of Error had come to the conclusion that this second count was bad, it would have become material to inquire if any of the other counts could be supported, in order to ascertain whether a venire de novo should be awarded. In Fisher v. Clement, (ante, i. 281; 7 B. & C. 459,) no such inquiry was made, the Court awarding a venire de novo upon the assumption that the counts not objected to in argument were good, though error was assigned upon those counts also. After the trial upon the venire de novo, the Court, however, was of opinion that these counts were also insufficient. This proceeding would have been rendered unnecessary, if the whole record had been inspected, and a general judgment of reversal pronounced in the first instance. (b) In civil proceedings the question of libel or no libel appears to be in all cases matter of law for the decision of the Court, though it is enacted and declared by Mr. Fox's act, (32 Geo. 3, c. 60,)" that upon the trial of an indictment or information for a libel, the jury may give a general verdict of guilty or not guilty upon the whole matter put in issue, and shall not be required or directed by the Court to find the defendant guilty merely on the proof of the publication, and of the sense ascribed to the same in the indictment or information." In a civil action the plaintiff must shew the publication of the alleged libel, and must prove every material inducement and innuendo. After he has done this, it is conceived that unless some fact be adduced on the part of the defendant, tending to shew that the publication took place under circumstances which rendered it justifiable, the plaintiff is entitled to call upon the judge who presides to direct the jury authoritatively, and upon his own responsibility, whether the matter published is or is not a libel, without leaving it to the jury to form any opinion as to the tendency of the publication, or the intention of the publisher. Mr. Fox's act was founded upon a jealousy of the controul exercised by political judges over juries upon conduct charged in the libel is, having insulted some person; which could not subject the party either to an action or to an indictment. [Parke, J. It charges the party with gross misconduct.] That charge is afterwards explained. Chitty contrà, referred to 3 Bac. Abr. Libel (A 2). Cur. adv. vult. BAYLEY, J. on a subsequent day delivered the judgment of the Court.-There is a marked distinction in the cases between verbal and written slander; the latter being usually attended with more premeditation, and being productive of more extensive and permanent injury than the former. In King v. Lake (a), where the libel charged the plaintiff with having presented a petition "stuffed with illegal assertions, ineptitudes, and imperfections, clogged with gross ignorances, absurdities, and solecisms," Lord Hale said, "that although such general words spoken once, without writing or publishing them, would not be actionable, yet here their being written and published, which contains more the trial of offences commonly of a political character, and where no bill of exceptions would lie. But the application of the same rule to civil actions would not only introduce great uncertainty and confusion, but would deprive the subject of the chief protection which he at present enjoys. As the law now stands, if the judge at nisi prius holds that to be a libel which ought not to be so held, the defendant may secure the revision of that opinion by a higher tribunal, by tendering a bill of exceptions. So if that be held to be no libel which is conceived in point of law to amount to a libel, the plaintiff may save himself in like manner. But the transferring of the (a) Hardres, 470. 1829. CLEMENT v. CHIVES 1829. CLEMENT บ. CHIVES. malice, they are actionable. In Cropp v. Tilney (a), Lord A termor, and CASE, on 9 Geo. 1, c. also the party seised of the freehold subject to the term, may each recover on 9 Geo. 1, c. 22, for damage by fire to certain barns and outhouses, being at the time of the fire in the occupation of John Otton, the reversion thereof, after a certain term of years, belonging to the plaintiff. At the damages to the extent of 2001. against the hundred for the injury resulting from a felonious burning in respect of their possessionary and reversionary interests. Where the reversioner sues, no servant of his having had the care of the premises, he is the proper person to give in an examination. The examinant is not bound to state mere suspicions entertained. by him as to the person who committed the offence, unless interrogated thereto by the magistrate. The two days allowed by 9 Geo. 1, c. 22, for giving notice of the offence, were held to be exclusive of the day on which the fire happens. |