the note must be taken to have been made in Ireland, and to be payable there; for the other objection is clearly fatal, viz. that the money is not stated in the declaration to be Irish currency. In Ireland there may be a contract to pay a certain sum in English money. Now, in pleading it is usual to state the legal effect of an instrument; and therefore, when in an English Court an instrument is described as containing a promise to pay a sum generally in pounds, shillings, and pence, English money must be understood; so that if the instrument in reality promises to pay this sum in Irish currency, there is a fatal variance.

Rule refused.

BOONE against MITCHELL. Tuesday, November 12th, 1822. Declarations, in consideration that plaintiff would procure A. B. to grant a lease to defendant; the latter promised to pay the plaintiff 1701. The proof was, that A. B. having agreed to grant a lease to the plaintiff, the latter undertook, originally, to assign it to defendant, for the consideration mentioned; but that afterwards, a lease, to which plaintiff was a party and assented, was granted immediately by A. B. to the defendant. The consideration to be paid by the defendant to the plaintiff was not mentioned in that lease: Held, first, that the lease was not void on account of this omission, the ad valorem duty imposed by the 50 G. 3, c. 184, applying only to considerations passing between lessor and lessee; and, secondly, that the evidence proved the substitution of a new contract to procure a lease from A. B. to the defendant, in lieu of the original contract, and that there was not any variance.

[S. C. 1 L. J. K. B. O. S. 25. Commented on, Attorney-General v. Brown, 1849, 3 Ex. 668.]

This was an action of assumpsit. The first count of the declaration stated that, in consideration that the plaintiff, at the request of defendant, would procure the governors of a certain charity to grant a lease to the defendant, the defendant undertook to pay [19] the plaintiff a certain sum, to wit, 1701.; it then averred that the lease was procured, and stated a breach in non-payment.

At the trial before Abbott C.J., at the London sittings after last term, it appeared that the plaintiff, having an agreement for a lease from the governors of the charity, contracted with the plaintiff in writing, in consideration of 1701., to assign the lease to him, the defendant, when it should be obtained. The defendant paid part of the money, and was let into possession by the plaintiff, who was already in the occupation of the premises; afterwards the lease, instead of being granted to the plaintiff, and being by him assigned to the defendant, was, by the consent of the plaintiff, granted directly by the governors to the defendant. The plaintiff was a party to the lease, and testified his assent in consideration of the defendant covenanting to perform the covenants, omitting to notice any pecuniary consideration. It was objected by the defendant's counsel, that the contract declared upon (to procure a lease) varied from the contract proved in evidence, which was to assign a lease; but the Chief Justice reserved the point, and the plaintiff had a verdict.

F. Pollock moved to enter a nonsuit on two grounds; first, that the contract stated in the declaration being to procure a lease for 1701., and the contract proved in evidence being to assign a lease, there was a variance; and there was a wide difference between the situation of a direct lessee, who would always be liable on the covenants, and an assignee, whose liability would be at an end on his parting with the term; and if the lease itself was resorted to, in order to shew that the defendant was [20] contented to take the lease to be granted to himself instead of having an assignment, then, he contended, a second objection was raised on the Stamp Act, 55 G. 3, c. 184, by which a stamp is imposed according to the consideration given for the lease, and also according to the rent reserved. Here the legal estate was in the governors, and they having agreed to grant a lease to the plaintiff, he had an equitable interest; and both parties concurring, (the governors in consideration of the rent, and the plaintiff in consideration of the 1701.,) a lease was granted to the defendant; which lease, having no stamp in respect of the consideration of 1701. to the plaintiff, and no such consideration being stated on the face of it, was void.

Per Curiam. The Stamp Act requiring the consideration to be set out, and impos

ing an ad valorem duty on the consideration, applies only to the case of a consideration passing between the lessor and the lessee. The Legislature never could have intended the lease to be void by the lessor's omitting to state a consideration which he might not, and perhaps could not, be aware of. As to the other point, there is sufficient evidence of a substitution of a contract for procurement of a lease, instead of an assignment of one, to sustain the declaration as framed; and the plaintiff is therefore entitled to the verdict which he obtained.

Rule refused.

[21] THE KING against KIRK. Wednesday, November 13th, 1822. An order of justices for diverting a highway stated that the new road was to pass through the lands of the late T. J., and that the justices had received evidence of the consent of the said T. J. in his lifetime: Held, that this order was bad, because it did not thereby appear that T. J. was the owner of the estate at the time when the order was made.

[S C. (sub nom. R. v. Denbighshire JJ.), 2 D. & R. 52.]

An order of two justices for the county of Denbigh, made at a special sessions held on the 7th of June, 1821, recited that they had found, upon view, that a certain part of a highway therein particularly described, by reference to a plan annexed to the order, might be diverted and turned, so as to make the same nearer and more commodious to the public; and that they had viewed a course in lieu thereof, therein also particularly described, by reference to the same plan, part of which new road was to pass through the lands and grounds of the late Thomas Jones, Esq. The order then stated that they had received evidence of the consent of the said T. Jones, Esq., in his lifetime, to the said part of the new road being made and continued through his lands, by writing under his hand and seal; and directed the road to be diverted and turned accordingly. The sessions, on appeal, having confirmed this order, it was removed into this Court by certiorari, and a rule nisi had been obtained for quashing it, and the order of sessions confirming it; against which

Marryat now shewed cause. By 55 G. 3, c. 68, s. 2, it is enacted, that when it shall appear, upon the view of two justices, that any public highway may be diverted so as to make the same nearer or more commodious to the public, and the owner of the lands through which such new highway so proposed to be made shall consent thereto, by writing under his hand and seal, it shall be lawful for the justices to divert such highway, and by [22] such means, and subject to such exceptions and conditions as are contained in the 13 G. 3, c. 78. Now, by the 70th section of the latter statute, the justices are bound to pursue the form given in the schedule thereto. Davison v. Gill (1 East, 64). The order in this case is copied from the form given in the schedule to that statute; and the question is, whether it sufficiently appears, on the face of it, that the consent of the owner of the lands, through which the new road was to pass, was obtained. Now every intendment ought to be made in favour of the order. It clearly appears that the consent of T. Jones, who had been the owner, was obtained ; and once given, it could not be revoked. It was binding upon any person to whom the lands afterwards came. If this were not so, it would be most inconvenient; for it would be competent to a subsequent purchaser of the estate to revoke the consent given by the former owner, even after all the expence of making the new road had been incurred besides, by 55 G. 3, c. 68, s. 3, the sessions are authorised finally to determine the appeal; and they have confirmed the order (b).

Abbott C.J. I am of opinion that this order must be quashed. It seems to me that the proper construction of the statute will be, to hold that there must be a consent of the person who is the owner of the estate at the time when the order is made. Now, here it does not appear, upon the face of the order, that the person whose consent was obtained was alive, either at the time when the order was made, or at any time after the [23] proceedings had commenced; for it is not stated whether the consent was given before or after the justices had made their view. Our present

(b) But see Rex v. Sheppard, 3 B. & A. 417, where it is held, that, notwithstanding this, the certiorari is not taken away.

K. B. XXXVI.—1*

decision will not affect the question, whether the owner of an estate may revoke a consent given by a former owner who was alive, and consenting at the time the order was made; we only decide, that it must appear on the face of the order that the consent of the person who is the owner at the time when the order is made, has been obtained.

Order of sessions quashed.

THE KING against THE INHABITANTS OF ALL SAINTS, CAMBRIDGE. Wednesday, November 13th, 1822. Where a pauper resided for a year in a house in the parish of A., and during all that time had two subsisting parol contracts for two ponds, or the rushes and flags growing therein, which he was to have the exclusive right of cutting at his pleasure: Held, that these were a sufficient tenement (being together above the value of 101. per annum) to confer a settlement in A.

[S. C. 3 D. & R. 47.]

Two justices removed Lydia Fowler from the parish of The Holy Trinity to the parish of All Saints, Cambridge. The sessions, on appeal, confirmed the order, subject to the opinion of this Court on the following case. The pauper's maiden settlement was in All Saints' parish. In 1793 she married William Fowler, a maker of chairbottoms and mats; and the question was, whether he had any legal settlement. The following were the circumstances as to that point. In 1807 he hired a house in the parish of St. Peter's, Cambridge, of the value of 91. 10s. per annum, and resided therein with his family above a year; during the same time he had two separate parol contracts for two ponds, or for the rushes and flags growing therein, upon these terms: one of the ponds was of the extent of three acres, in which he was to have the exclusive right of cutting the rushes and flags at his pleasure, but not of draining off the [24] water; the owner had the right to use the water, or to drain it off, as he thought proper. For this W. F. was to pay 5s. a year to the occupier of the farm in which it was situated. The pond was not fenced off from the rest of the field, and the occupier's cattle, when depasturing there, used the pond for drinking at; but the rushes and flags were not such herbs as cattle would eat. The other pond was only about a quarter of an acre, and was occupied under similar circumstances, at the yearly rent of 5s., and two doormats of the value of 2s. The next year W. F. agreed to pay 10s. for the same, but died before the rushes were all gathered. The contracts for the ponds subsisted during all the time that W. F. occupied the house in the parish of St. Peter's. The sessions thought this was not sufficient to establish a settlement in that parish, and confirmed the original order.

Starkie, in support of the order of sessions. This was a personal contract for the rushes, and not a tenement. The pauper's husband took no interest in the soil, but had a mere privilege of going upon the land to cut the rushes which he had bought. In Pincomb v. Thomas (Cro. Jac. 524), it was held that the soil was not reserved out of a lease, by an exception of saleable growing woods; so, in Warwick v. Bruce (2 M. & S. 205), it was held that no interest in the soil passed by a sale of growing potatoes. And in the case of Rex v. Old Alresford (1 T. R. 358), where the question was, whether the pauper gained a settlement by renting the fishery of a pond, with the spear, sedge, flags, and rushes growing in and about the same, at 101. per annum, the [25] Court decided, that the soil passed with the fishery; but the sedge, &c. was not relied upon, as passing the soil, either by the counsel or the Court. The cases of Rex v. Whixley (1 T. R. 137), and Rex v. Stoke (2 T. R. 451), proceeded on the ground, that the grass being the whole produce of the land, by a grant of that an interest in the soil passed. But even admitting this to have been a tenement, still the pauper's husband did not occupy, for 40 days, a tenement of the value of 101. per annum; for it must be presumed, that he began to cut the rushes immediately after taking the ponds: the value of the tenement would therefore decrease de die in diem. Rex v. Bowness (4 M. & S. 210).

Tindal and Storks, contrà, were stopped by the Court.

Per Curiam. There is no valid distinction between a lease of grass and one of rushes growing upon the land. This case is therefore similar to that of Rex v. Stoke. If this had been a bargain for any thing in a state to be severed, as in Warwick v. Bruce, it would have been a personal contract; but here, the pauper's husband had a right

to all the rushes which might grow in the ponds during the year. That gave him a continuing interest in the soil for a whole year; and by renting those ponds, together with the house in the parish of St. Peter's, he held a tenement of a greater value than 101. per annum. It is found as a fact, that he resided in that house for more than a year; he therefore gained a settlement in that parish. The con-[26]-sequence is, that the pauper was improperly removed to the parish of All Saints; and that both the orders must be quashed.

Both orders quashed.

THE KING against WADDINGTON. Thursday, November 14th, 1822. A publication stating Jesus Christ to be an impostor and a murderer in principle, is a libel at common law. Semble, that the 53 G. 3, c. 160, does not alter the common law, but only removes the penalties imposed upon persons denying the Trinity, by 9 and 10 W. 3, c. 32, and extends to such persons the benefits conferred upon all other Protestant dissenters, by 1 W. & M. s. 1, c. 18.

[S. C. 1 L. J. K. B. O. S. 37.]

This was an information by the Attorney-General against the defendant for a blasphemous libel. The effect of the libel set out in the information was to impugn the authenticity of the Scriptures; and one part of it stated that Jesus Christ was an impostor and a murderer in principle, and a fanatic. The defendant was tried at the Middlesex sittings after last Trinity term, and convicted. Before the verdict was pronounced, one of the jurymen asked the Lord Chief Justice, whether a work which denied the divinity of our Saviour was a libel. The Lord Chief Justice answered, that a work speaking of Jesus Christ in the language used in the publication in question was a libel; Christianity being a part of the law of the land. The defendant, in person, now moved for a new trial; and urged that the Lord Chief Justice had misdirected the jury, by stating that any publication in which the divinity of Jesus Christ was denied was an unlawful libel; and he argued, that since the 53 G. 3, c. 160, was passed, the denying one of the persons of the Trinity to be God was no offence; and, consequently, that a publication in support of such a position was not a libel.

[27] Abbott C.J. I told the jury, that any publication in which our Saviour was spoken of in the language used in the publication for which the defendant was prosecuted, was a libel. I have no doubt whatever that it is a libel to publish that our Saviour was an impostor and a murderer in principle.

Bayley J. It appears to me, that the direction of my Lord Chief Justice was perfectly right. The 53 G. 3, c. 160, removes the penalties imposed by certain statutes referred to in the Act, and leaves the common law as it stood before. There cannot be any doubt, that a work which does not merely deny the Godhead of Jesus Christ, but which states him to be an impostor and a murderer in principle, was, at common law, and still is, a libel.

Holroyd J. I have no doubt whatever that any publication in which our Saviour is spoken of in the language used in the work which was the subject of this prosecution, is a libel. The direction of the Lord Chief Justice was therefore right in point of law; and there is no ground for a new trial.

Best J. My Lord Chief Justice reports to us, that he told the jury that it was an indictable offence to speak of Jesus Christ in the manner that he is spoken of in the publication for which this defendant is indicted. It cannot admit of the least doubt that this direction was correct. The 53 G. 3, c. 160, has made no alteration in the common law relative to libel. If, previous to the passing of that statute, it would have been a libel to deny, in any printed work, the divinity of the second person in the Trinity, the same publication would be a libel now. The 53 G. 3, c. 160, as its title expresses, [28] is an Act to relieve persons who impugn the doctrine of the Trinity from certain penalties. If we look at the body of the Act to see from what penalties such persons are relieved, we find that they are the penalties from which the 1 W. & M. sess. 1, c. 18, exempted all Protestant dissenters, except such as denied the Trinity, and the penalties or disabilities which the 9 and 10 W. 3 imposed on those who denied the Trinity. The 1 W. & M. sess. 1, c. 18, is, as it has been usually called, an Act of Toleration, or one which allows dissenters to worship God in the mode

that is agreeable to their religious opinions, and exempts them from punishment for non-attendance at the Established Church, and non-conformity to its rights. The Legislature, in passing that Act, only thought of easing the consciences of dissenters, and not of allowing them to attempt to weaken the faith of the members of the Church. The 9 and 10 W. 3 was to give security to the Government, by rendering men incapable of office who entertained opinions hostile to the established religion. The only penalty imposed by that statute is exclusion from office; and that penalty is incurred by any manifestations of the dangerous opinion, without proof of intention in the person entertaining it either to induce others to be of that opinion, or in any manner to disturb persons of a different persuasion. This statute rested on the principle of the test laws, and did not interfere with the common law relative to blasphemous libels. It is not necessary for me to say, whether it be libellous to argue from the Scriptures against the divinity of Christ; that is not what the defendant professes to do. He argues against the divinity of Christ, by denying the truth of the Scriptures. A work containing such arguments, published maliciously (which the jury in this case have [29] found), is by the common law a libel; and the Legislature has never altered this law, nor can it ever do whilst the Christian religion is considered to be the basis of that law.

Rule refused (a).

FOWLE, Executor of Woodman, &c. against WELSH. Friday, November 15th, 1822. Covenant to save harmless certain premises against all actions, suits, claims, and demands whatsoever, both in law and equity, which might be made, commenced, or prosecuted by H. W. P., or T. B. W. P. Breaches, 1st. That H. W. P. on, &c. at, &c., who then and there made a claim and demand, and claimed to have a right and title to the premises, entered and cut trees, &c., and procured the occupier to attorn to him. 2dly. That certain title-deeds relating to the premises were withholden by one A. W., at the instance, and through the claim and demand of T. B. W. P. Plea to 1st breach, that H. W. P. had no lawful claim or title to the premises; to 2d breach, similar plea as to T. B. W. P. Demurrer and joinder: Held, first, that H. W. P. and T. B. W. P. being named in the covenant, the indemnity extended to all claims made by them, whether upon lawful title or otherwise; and, secondly, that the Acts upon which the breaches were assigned were claims in law within the meaning of the covenant. Query, whether the breaches would have been good in form, if specially demurred to.

[S. C. 2 D. & R. 133; 1 L. J. K. B. O. S. 17.]

Covenant. The plaintiff declared, that, by a deed-poll of the 12th September, made in the lifetime of W. Woodman, plaintiff's testator, (reciting, amongst other things, that, in 1811, T. B. White Parsons, in consideration of 28001., by lease and release, granted, &c. to Aaron Blandford, in fee, certain premises therein described; and that the said Aaron Blandford having occasion for 20001., had borrowed that sum of the said W. Woodman, and, for securing repayment thereof, had, by lease and release, bearing date 10th and 11th September, 1812, granted, &c. the said premises to the said W. Woodman, his heirs and assigns, subject to a proviso for redemption :) "The said Aaron Blandford and the said defendant, for better securing. the repayment of the said sum of 20001. to the said W. Woodman, his executors, &c. did severally covenant, promise, and agree, [30] to and with the said W. Woodman, his heirs, executors, &c. that for so long time as the said W. Woodman, his executors, &c. should continue the said sum of 20001. out at interest on the said premises, they the said Aaron Blandford and the said defendant, their heirs, &c., and each of them, should and would save harmless and keep indemnified the said W. Woodman, his heirs, executors, &c. and also the said premises, of, from, and against all actions, suits, claims, and demands whatsoever, both in law and equity, which should or might be had, made, commenced, or prosecuted, by T. W. Parsons, H. W. Parsons, or T. B. W. Parsons, and of and from all costs, charges, and expenses which the said W. Woodman, his heirs, executors, &c. should sustain, by reason of such actions, suits, claims, and

(a) See Rex v. Carlile, 3 B. & A. 161, and Attorney-General v. Pearson, 3. Merivale, 352.