1838.

INGRAM

U.

LAWSON.

Special demur

rer.

time being did then and there, to wit, at the port or place last aforesaid, hire, procure, and ship divers, to wit, twenty additional hands in and on board of the said ship; that afterwards, and before the said time when &c., to wit, on &c., one William Tyler sent to the then editor of the said newspaper in the declaration mentioned, and the said editor then received, a certain letter addressed to the said editor, and containing therein the supposed fal-e, scandalous, defamatory, and libellous matter set forth in the declaration; and that the said ship in the said supposed libel mentioned and the said ship in the plea mentioned were and are one and the same ship, and not other or different, and the two voyages mentioned in the said supposed libel to have been performed by the said ship, and the said two voyages in the plea mentioned, were the same two voyages, and not other or different: wherefore &c.-verification.

To this plea the plaintiff demurred specially, assigning for causes-that the plea, though pleaded to the whole action, disclosed no answer or defence as to a material part of the libel above complained of, that is to say, as to so much of the said libel as imputed that the said ship was unseaworthy at the time of the said publication, and with reference to the said intended voyage, and that she had been sold to jews to take out convicts, nor as to any of the matters of the said libel save as to such as were alleged to have occurred during the said two preceding voyages-that the plea was double and multifarious, in this, to wit, that it not only asserted the truth of certain matters of the said libel, but also alleged that the said William Tyler sent, and the said editor received, the said letter in the plea mentioned; and that the plea attempted to set up two distinct grounds of defence, that is to say, a justification on account of the cause of publication, and a justification by averring the truth of the matters of the libel-that the plea amounted to the plea of not guilty,

and was argumentative-that it made allegations which were averments of evidence, and not of facts, and involving matter of law, and not fact-that it concluded with a verification, whereas it ought to have concluded to the country-that, though it did not aver the truth of all the material matters of the libel, it did not deny that the same libel was published wrongfully, maliciously, and injuriously, as stated in the declaration-that the plea contained irrelevant and superfluous matter, to wit, so much of the same plea as alleged the sending by Tyler and the receiving by the said editor of the letter in the plea mentioned, as therein alleged-that, on the plea as above pleaded, no single, sufficient, and pertinent issue could be joined—and that the plea was in other respects informal, uncertain, and insufficient. Joinder.

Henderson, in support of the demurrer, was stopped by the court-Tindal, C. J., observing that the plea, though professing to be an answer to the entire libel, left uncovered a material part.

Humfrey, in support of the plea.—The plea justifies all that is libellous in the letter, viz. that the ship was unseaworthy, and kept afloat only by labouring at the pumps. All that is left unanswered, is, the statement that the vessel had been sold to the jews to take out convicts; and there is no allegation in the declaration that that statement imports anything libellous. No special damage is assigned.

TINDAL, C. J.-It is not necessary to assign for special damage that which is the natural and unavoidable result of the libel. To say of a ship seeking passengers, that she is chartered to take out convicts, is clearly libellous.

The rest of the court concurring

Judgment for the plaintiff.

1838.

INGRAM

v.

LAWSON.

1838.

Thursday, Nov. 15th.

A gentleman

articled to an

the middle of the term, and went to the

Ex parte MASTERMAN.

MR. MASTERMAN was articled to an attorney, and,

attorney quitted after the expiration of about three years of the term, was the service about assigned to another; the assignment having relation to the day on which the clerk removed from the one office to office of another the other, but not having been actually executed until a fortnight afterwards. Under these circumstances, the Examiners declined to examine him without the direction of one of the courts, conceiving the service to have been incomplete.

attorney, to whom he was assigned. A fortnight having elapsed between

the time of the

clerk's quitting

the former attorney and the execution of the assignment, though the service continued without interval-the Examiners declined to examine him :The court intimated an opinion that the examination should be taken de bene esse.

Kelly now moved for an order to that effect.-He submitted that the service was sufficient (15). [Tindal, C. J. What authority has this court to interfere? We do not even know that the gentleman, if examined and passed, will come here to be admitted.] The Examiners are appointed by, and of course are subject to the control of each and every of the courts. [Bosanquet, J.-The examination by the Examiners is virtually an examination by the court.]

TINDAL, C. J.-Without giving any opinion as to the sufficiency of the service, it is enough to say that we think the applicant should be examined de bene esse; the objection may be taken when he applies to be admitted: or, the Examiners may refuse to grant him a certificate; when he may under the 3rd rule (Hilary Term, 6 Will. 4,) present a petition by way of appeal to the judges (16).

(15) See Ex parte Rowle, 2 Chit. 61; Ex parte Matthews, 1 B. & Ad. 160; Ex parte Hubbard, 1 Dowl. 438; Ex parte Frost, 3 Dowl. 322.

(16) This course, it would seem,

is hardly applicable to a case like the present: the certificate being a certificate of "fitness and capacity to act as an attorney," and not of due service under the articles. See the rules, 3 Scott, 1.

WATSON v. REEVE and Another.

1838.

Thursday, Nov. 15th.

ing seventh in

causes being

drawn," and

THIS was an action of trover for a gun. The cause A cause standstood seventh in the paper for the sittings at Westminster the paper (three on Saturday, the 11th instant. The defendants' attorney of the preceding having consulted counsel as to the evidence necessary to marked "withestablish his clients' defence, and seeing the state of the the other three cause list, did not think it necessary to deliver the brief until eleven o'clock in the morning, when he proceeded to the court, and found that the cause had been taken as undefended about twenty minutes before his arrival.

the

in

between the same parties) was called on the morning.

at 11 o'clock in

The defendants' attorney had not instructed counsel; but one

of the defendants (a sheriff's

officer) was in court at the

time, and made

no objection to

the cause pro

ceeding. A verdict having

been found for

the plaintiff for refused to grant

71., the court

a new trial, even on the

terms of costs

being paid by

attorney.

Gray, upon an affidavit of these facts, and swearing to merits, moved for a rule nisi for a new trial, on payment of costs.-In De Roufigny v. Peale, 3 Taunt. 484, the cause stood first in the cause-paper for trial at a sitting in term; when the cause was called on, the defendant's attorney had delivered no brief to his counsel, although he had had a consultation with him the preceding night; and the cause being thus undefended, a verdict passed for the plaintiff. Soon after the verdict had been recorded, defendant's attorney came into court with a brief to struct counsel. Upon a motion for a new trial, the court the defendants' said "that it would be only encouraging the negligence of attornies, to grant such an indulgence in the ordinary way, at the client's expense: attornies ought to know that they are amenable to their clients for the consequences of such neglect; neither would it be putting the plaintiff in the same situation if they were to grant the rule on the payment of costs between party and party:" and they granted a rule nisi (which on a subsequent day was made absolute) for a new trial, upon payment by the defendant's attorney, out of his own pocket, of all costs as between attorney and client. [Bosanquet, J., referred to Gwilt v. Crawley, 8 Bing. 144, 1 M. & Scott, 229. There, the de

1838.

WATSON

v.

REEVE.

fendant's attorney had notice on the 26th November that his cause was set down for trial; five days afterwards it was called on and tried as an undefended cause, no one appearing for the defendant: the defendant's attorney having on the day of trial delivered no briefs-this court refused to grant a new taial upon any terms.] It did not appear in that case that the defendant's attorney had examined witnesses, or taken any other steps towards the defence of the action: here it does.

THE COURT granted a rule with considerable hesitation and reluctance; TINDAL, C. J., observing that it was a case of very gross negligence on the part of the attorney, and that the rule could only be allowed to go on the same terms as that in De Roufigny v. Peale, and that it must not be put in the new trial paper, but come on as a motion.

Humfrey now shewed cause, upon an affidavit stating, that, of the six causes that stood in the paper before the cause in question, three were marked "withdrawn," and the other three were actions between the same parties, and when called on verdicts passed in them by consent; that, when this cause was called on, and during the whole course of the plaintiff's case, one of the defendants (a sheriff's officer, and therefore not likely to be unconversant with the business of a suit,) was in court, and made no objection to the cause proceeding. In Gwilt v. Crawley, Tindal, C. J., says: "It would be gross injustice to the plaintiffs if we were to listen to the application, as it would enable defendants to lie by, and, after learning the particulars of the plaintiff's case, to harass him with a new trial and evidence got up in answer." Not only would the granting a new trial in this case be an act of injustice to the plaintiff; but the refusing it will be an act of humanity to the defendants, the verdict being only for 77.; besides