*"Articles of agreement, made the 1st day of January, 1828, between

*5] Henry Rains, of, &c., of the one part; and William Godfrey Kneller, of, &c., of the other part. The said Henry Rains hereby agrees to demise by a lease to, and the said William Godfrey Kneller agrees to take a lease, and execute a counterpart thereof, of all that messuage, situate, &c., to hold the same from the 29th of September, now last past, for ten years and three quarters, wanting twenty-five days, at and under the clear yearly rent of 801. payable quarterly, on the usual days of payment of rent, the first quarterly payment thereof to become due on the 25th day of March, 1828. And the said William Godfrey Kneller doth hereby agree from henceforth to repair, and keep repaired, the said messuage, &c.; and also to insure and keep insured, the said messuage, &c., in some Insurance Office in London, in the sum of 500l. And it is hereby also further agreed, in case the yearly rent hereby reserved, or any part thereof, shall be in arrear and unpaid for the space of twenty-one days next after any of the before-mentioned days appointed for payment thereof, the said Henry Rains, his executors, administrators, or assigns, shall have the like power of distress for such rent in arrear, as if the lease had been granted to him the said William Godfrey Kneller, by the said Henry Rains, of the premises hereby agreed to be demised; and also shall have the like power of re-entry upou the premises, in case of a breach of any of the agreements herein mentioned, on the part of the said William Godfrey Kneller, his executors, administrators, or assigns, as aforesaid. In witness, &c.

Carrington, for the defendant. I submit, that, under these articles, there is no power of re-entry for non-payment of rent. The power of re-entry is only for *6] the breach of any of the agreements therein mentioned; now, there is no agreement to pay rent, and the only agreements on the part of the tenant are, to repair and to insure; and it could hardly have been meant, that the pay. ment of rent should be one of the agreements, the breach of which was to incur a forfeiture, because it is stipulated, that, if the rent is unpaid for twenty one days, the landlord may distrain. Now, if the non-payment of rent gives the landlord a right to re-enter, he might put an end to the whole term the moment that any rent was in arrear, although he would not be entitled to distrain for hig rent till after the lapse of twenty-one days.

Lord TENTERDEN, C. J. I think that the words, "at and under the rent of 801. a year," constitute an agreement; and I think, that the lessor of the plaintiff might have maintained assumpsit for the rent in this agreement. I think, also, that it is not quite clear that the words "like power of re-entry," were not meant to apply to cases where the rent was in arrear for twenty-one days. This is a very confused agreement, but the lessor of the plaintiff is entitled to recover. Verdict for the plaintiff.

Comyn, for the lessor of the plaintiff.
Carrington, for the defendant.

[Attorneys-Rains, and Ewington and Chilcote.]

that nothing herein contained shall extend to bar the right of any mortgagee or mortgagees of such lease, or any part thereof, who shall not be in possession, so as such mortgagee or mortgagees shall and do, within six calendar months after such judgment obtained, and execution executed, pay all rent in arrear, and all costs and damages sustained by such lessor, person or persons entitled to the remainder or reversion as aforesaid, and perform all the covenants and agreements, which, on the part and behalf of the first lessee or lessees, are and ought to be performed."

*ADJOURNED SITTINGS IN LONDON, AFTER TRINITY TERM,

1829.

[*7

BEFORE LORD TENTERDEN, C. J.

HUMPHREYS v. MILLER. July 14.

If a libel, purporting to be a circular, written by the secretary of a society for the protection of trade against swindlers, impute certain specific facts to the plaintiff; a witness cannot be asked what he understands by finding a person's name inserted in such a circular; but he may be asked whether there is any meaning in such a circular, beyond what appears on the face of it. If the members of such a society agree to contribute towards all law expenses respecting it, and an action be brought against the secretary of it for a libel, it seems that a member of the society is a competent witness for the defence, because an agreement by parties, that they will bear each other harmless in doing wrong, is void. In this case a member of the society was examined for the defence, but the secretary released him before he gave his evidence. LIBEL. The declaration stated, that the plaintiff was a wine-merchant, and Custom-house agent, and that the defendant was used and accustomed to publish certain notices or lists, purporting to contain the names of certain persons, signifying that they had been guilty of fraud in the way of their business, and were unfit and improper persons to be supplied with goods on credit; and that the inserting of the name of a person in such notices or lists, with a statement that bills had been circulated purporting to be accepted by such person, payable at a banker's where he had no account, did signify that such person had been guilty of fraud in the way of his business, and was an unfit person to be supplied with goods on credit; and that the defendant well knowing, &c., published the following libel of and concerning the plaintiff in his said trade and business:

"12th Notice, 1828

Society for the Protection of Trade.-Treasurers, Messrs. Veres, Ward & Co., Bankers, Lombard Street. Solicitor, Mr. Thomas Miller, 22 Ely Place, Holborn.

"Sir,--I am directed to inform you, that William Patterson, schoolmaster, formerly of Staines House, Barbican (vide 8th Notice, 1827), also at 28 White Hart Place, *Kennington Lane, as grocer, &c., and more recently of 195 [*8 Upper Thames Street, has been convicted of felony, and sentenced to transportation; and that John Wright, formerly acting as shopman to the above William Patterson, late as dealer in wines, grocery, &c., near Maidenhead Bridge, is now residing at Reading, Berkshire.

"I am also directed to inform you, that bills have been circulated, purporting to be drawn by William Crawford & Co., 45 Ludgate Hill, on, and accepted by, Thomas Humphries, 9 Water Lane, Tower Street, made payable at a banker's where he had no account; also, that John George Jelf (vide 9th Notice, 1828) has been convicted and sentenced to be transported; and that Jacob Manger, cheesemonger, late of 309 Blackfriars Road (vide 11th Notice, 1828), and since of Mount Street, Grosvenor Square, is now in Whitecross Street Prison. "By order of the committee,

"22 Ely Place, July, 1828.

"THOMAS MILLER, Secretary.

In some of the counts it was charged, that the names of the plaintiff and the other persons were printed in a conspicuous manner, by which it was meant to be imputed, that the plaintiff, by accepting the bill, had been guilty of fraud; and in others, that he was an unfit person to obtain goods on credit. (a)

(a) As it was held in the case of Goldstein v. Foss, 2 C. & P., Add. p. iii., that a declaration for a libel, which did not, on the face of it, import the meaning applied to it, to make it actionable, was bad, without an introductory allegation; the form of such allegation in the dif ferent counts of this declaration may be acceptable, as it is believed that no form of the kind is to be found in the printed collections.

First count.-After the general allegation of good character, and an allegation that the plain

*9]

*Pleas-The general issue and two special pleas, the one stating the accepting of a bill by the plaintiff, payable at *Messrs. Veres, Ward, & *10] Co.'s, which was refused payment; and that the plaintiff made the bill payable at the said bankers', without any expectation of having effects there when it became due. The other plea of justification was more general in its form. Replication de injuria.

It appeared that the defendant was the secretary of a society, called "The Society for the Protection of Trade," and that he had sent a copy of the letter in question to every member of that society.

The publication having been proved, the plaintiff's couusel wished to ask one of the witnesses, what he understood by finding a man's name inserted in one of these letters.

Scarlett, A. G. I must object to this. There have been cases where names only have been put down, and, *in those cases, evidence was given of what was meant; but this letter professes to state specific facts.

*11]

F. Pollock, for the plaintiff. In those cases it was stated, that the party was an unfit person to become a member of that society.

Lord TENTERDEN, C. J. That, unexplained by evidence, might mean any

tiff carried on the business of a wine-merchant and custom-house agent, and had never been suspected of the offences and misconduct, &c., it proceeded as follows:-" That, also, before and at the time of the committing of the grievances by the said defendant, as hereinafter in this and the two next counts mentioned, divers persons had been associated together under the name and description of a 'Society for the Protection of Trade,' and the said defendant, under colour and pretence of being the secretary of the said society, had from time to time published, and caused and procured to be published, and was used and accustomed to publish and cause to be published certain lists or notices, purporting to be made or given by the order of the committee of the said society, and by the said defendant as secretary thereof, containing therein the names of certain persons, for the purpose of denoting or signifying, that the said last-mentioned persons had been guilty of fraud in the way of their trade or business, and were unfit or improper persons to be supplied with goods on credit, and in which said lists or notices so pub. lished and caused to be published by the said defendant, as aforesaid, the names of the said lastmentioned persons were printed in a conspicuous manner; and before and at the time of the committing of the grievances by the said defendant, as hereinafter in this and the next two counts mentioned, the printing and publishing, and causing to be printed and published by the said secretary of the said society, in one of the said notices or lists, of the name of a person engaged in trade or business, in a conspicuous manner, as aforesaid, together with a statement, that bills had been circulated, purporting to be drawn on and accepted by such person, payable at a banker's where he had no account, did import and signify, that the said person had been guilty of fraud in the way of his said trade and business, and was an unfit and improper person to be supplied with goods on credit." That the defendant, well knowing the premises, but greatly envying, &c., published of and concerning the plaintiff, in the way of his said trade, the libel in question. The whole notice was set out with innuendoes, and the count then proceeded as follows:-"In which said libel the words William Patterson, John Wright, W. Patterson, William Crawford & Co., Thomas Humphries, John George Jelf, and Jacob Manger were printed in a conspicuous manner, and thereby then and there meant to insinuate and cause it to be suspected and believed of and concerning the said plaintiff, that the said plaintiff had been guilty of fraud in accepting and being privy to the circulation of bills of exchange, made payable at a banker's where he had no effects or account, and was unfit to be trusted with goods on credit in the way of his said trade and business as aforesaid."

The second and third counts set out parts of the libel, without any prefatory allegation, and merely stated, "that the said defendant, as such secretary as aforesaid, contriving, and intending further to injure," &c.

The fourth count was similar to the first, except, that it imputed, that the insertion of the names in the lists signified that the persons were unfit and improper persons to be supplied with goods on credit in the way of their trade and business, instead of saying that they had been guilty of fraud.

The fifth count was similar to the second, only having the like alterations.

The sixth count was:-"That before and at the time of committing of the grievances by the said defendant as hereinafter in this and the next count mentioned, the said defendant had been and was the secretary of a society for the protection of persons engaged in trade; and as such secretary, the said defendant, before the time of the committing of the grievances by the said defendant, as hereinafter in this and the next count mentioned, had been used and accustomed to publish lists for the use of the members of the said last-mentioned society, containing therein the names of persons who had been guilty of fraud in the way of their said trade and business, and were on that account unfit and improper persons to be supplied with goods on credit in the way of their said trade or business as aforesaid. Yet the said defendant well knowing the premises," &c. It then set out the part of the libel that respected the plaintiff, with innuendoes; and there was another count with this prefatory allegation, but stating, that the inserting of the names in the list imputed that the persons were unfit and improver versons to be trusted and dealt with on credit in the way of their said trade and business.

thing, and it does not necessarily impute dishonesty. It might be, that the party was an ill-tempered man, and that they, therefore, did not like him to belong to their club. This letter does not state anything obscure, or anything that requires explanation. It states, as a fact, that a particular person has drawn bills, under particular circumstances.

Brougham, for the plaintiff. We wish to show, that, independently of what is stated in the letter, the mere circumstance of a person's name being put in this list has a meaning.

Lord TENTERDEN, C. J. In the case of Goldstein v. Foss, 2 C. & P. 252, and Add. iii, several persons were said to be unfit to become members of a society, without more; but here the difference is manifest: this letter professes to state distinct specific facts as to each person.

F. Pollock. I wish to ask the witness, whether there is any meaning in this letter beyond what appears on the face of the paper.

Lord TENTERDEN, C. J. I will allow you to ask that if you choose. The question was put; but the witness stated, that he *was not aware of any meaning beyond that which the words imported.

[*12

For the defence, Mr. Eaton, one of the members of the society of which the defendant was secretary, was called. He admitted, on the voire dire, that he would be liable to pay a share of the expenses of this cause, as there was a rule of the society, that the subscribers should contribute to all law expenses.

Brougham, for the plaintiff, objected that the witness was interested.

Scarlett, A. G., contrà. This agreement among the subscribers is good for nothing. If this letter is a libel, and a judgment passes for the plaintiff, Mr. Miller is a wrong-doer, and cannot recover over, there being no contribution among wrong-doers.

Brougham. This is not a case of contribution. These parties are bound to bear each other harmless.

Lord TENTERDEN, C. J. A contract between parties, that they will bear each other harmless in doing wrong, is void. However, if this party would be liable for a share of the expenses, in the event of a judgment passing against the present defendant, he is incompetent.

F. Pollock. Though between tort feasors, there is no contribution, would not the law enforce an agreement of this kind where the wrong was accidental?

Scarlett, A. G. The rule of this society is, that the members shall contribute to all expenses. Now, that must be taken to mean legal expenses, and not expenses incurring by publishing libels. If this is an innocent publication, this witness may be liable to contribute towards the costs; but if it be a

libel, Mr. Miller cannot recover over. This witness has, therefore, an in- [*13

terest to make it out a libel; and, therefore, he comes now to speak against his interest.

Lord TENTERDEN, C. J. I think it a very doubtful matter; there is a great deal of doubt. I should, therefore, be disposed to receive the evidence. Before the witness was examined, Mr. Miller gave him a release.

Lord TENTERDEN, C. J. That will prevent Mr. Miller from calling upon the witness, but it will not prevent any of the other members from doing so, unless, indeed, it prevents Mr. Miller from suing any of them.

Mr. Eaton was examined.

For the defence, evidence was given in support of the pleas of justification.
Verdict for the defendant.

Brougham, F. Pollock, and Kelly, for the plaintiff.
Scarlett, A. G., and Follett, for the defendant.

[Attorneys J. Harrison, and T. Miller.]

See the cases of Goldstein v. Foss, 2 C. & P. 252, and Add. iii.; and Getting v. Foss, 3 C. & P. 160.

*14]

*POCOCK v. RUSSELL, Gent. July 10.

Where an attorney is employed by one person to sue out a commission of bankrupt on the petition of another person, the person so employing the attorney, and not the petitioning creditor, is the person liable to pay the attorney the costs of suing out the commission.

ASSUMPSIT for goods sold and delivered. The defence was a set-off; and it appeared that the defendant, who was an attorney, had been employed by the plaintiff to sue out a commission of bankrupt on the petition of a person named Wilkins; and his bill for procuring the commission came to more than the amount of the plaintiff's claim.

Scarlett, A. G., for the defendant, contended that, under these circumstances, the defendant was entitled to a verdict.

F. Pollock, for the plaintiff, submitted that Wilkins, and not the plaintiff, was liable to pay for the commission. He cited Finchett v. How, 2 Camp. 275; (a) in which Lord Ellenborough held, that the petitioning creditor and another could not be sued jointly; and contended that a fortiori, a third person could not be sued alone.

*Lord TENTERDEN, C. J. Wilkins, in this case, never was liable, and *15] never could be made liable. The plaintiff is the employer of the defendant, and must pay him. Therefore, the defendant is entitled to the verdict. Verdict for the defendant.

F. Pollock and Starkie, for the plaintiff.
Scarlett, A. G., and Hutchinson, for the defendant.

[Attorneys-T. Pocock, and In person].

(a) That was an action by the solicitor, against two persons who had been chosen assignees of a bankrupt, to recover the costs of suing out the commission; one of the defendants was the petitioning creditor, and it was objected that, as the petitioning creditor was, by the act of Parliament, 5 Geo. 2, c. 30, s. 25, to sue out the commission, "at his own costs and expenses,' another person could not be jointly liable with him. For the plaintiff it was contended, that if both the defendants had retained the plaintiff to sue out the commission, both would be liable to pay him: But Lord Ellenborough said, that the words were express, that the petitioning creditor should sue out and prosecute the commission, till the choice of assignees, at his own costs and expenses: and that these costs and expenses, therefore, could not be recovered in a joint action against him and another person.

The case of Finchett v. How, was decided on the stat. 5 Geo. 2, c. 30 (now repealed); but, by the bankrupt act, 6 Geo. 4, c. 16, s. 14, it is enacted, "that the petitioning creditor or cre ditors shall, at his or their own costs, sue forth and prosecute the commission until the choice of assignees," &c.

A. sold to B. for 951. two pictures, representing them as "a couple of Poussin's." They were, in fact, not originals, but very excellent copies; B. did not offer to return them :-Held, that if the jury thought that B. believed, from the representation of A., that they were originals, he was not bound to pay the price agreed upon; but that, as he kept them, he was liable to pay such sum as the jury might consider to be the value."

ASSUMPSIT for the price of various articles of virtu, and among them two pictures, charged in the particulars of demand as having been agreed for at 957. The plaintiff was an Italian doctor, and the defendant an attorney. It appeared that the plaintiff had represented the pictures in question as "a couple of Poussin's." It was admitted, that they were not originals; but it was contended, on the part of the plaintiff, that the price would show that they were never intended to be sold as originals, which would be of much higher value, and that they were only sold as very good copies.

Lord TENTERDEN, C. J., left the question to the Jury, saying-If you think that the defendant bought these pictures, believing, from the plaintiff's representation, that they were original pictures painted by Poussin, then I am of opinion that the defendant is not bound by his bargain.

VOL. XIX.-49

2 K