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1835.

CANNELL

CURTIS.

legation that the plaintiff was appointed assistant overseer and that the libel was published of him in that character, cannot be rejected as surplusage: it is indivisible, and must be proved as made. Where a particular meaning is by an innuendo or colloquium given to the words of a libel, the plaintiff is bound to prove them accordingly. “If the plaintiff," says Bayley, J., in May v. Brown, 3 B. &C. 113,“ in stating the libel, had connected it by innuendo with a particular allegation, then he would be bound to prove a libel relating to the matter contained in that allegation.” So, in Sellers v. Till, 4 B. & C. 655, 7 D. & R. 121, where the declaration stated that the plaintiff was treasurer and collector of certain tolls, and that the defendant spoke of and concerning the plaintiff, as such treasurer and collector, certain words, " thereby meaning that the plaintiff, as such treasurer and collector," had been guilty of the misconduct imputed to him; it was held that the plaintiff was bound to prove that he was such treasurer and collector. In Williams v. Stott, 1 C. & M. 687, Bayley, B., says: “You may reject, on demurrer, or on motion in arrest of judgment, an innuendo which is not warranted by the preceding allegations in the declaration; and all the cases which have been cited by the plaintiff's counsel are cases of this description. But the question here is, whether you may reject at the trial an innuendo which is good upon the face of the declaration. By such an innuendo the plaintiff makes it part of his case that the alleged slander bears the peculiar character which he assigns to it; and I know of no instance in which it has been held that you may separate the words themselves from the explanation which the plaintiff has given to them."

Tindal, C. J.-I am of opinion that the rule for entering a nonsuit in this case ought to be discharged. The ground upon which the rule was obtained is, that the issue raised on the plea to the first count has been virtually found for the defendant, that is, that the allegation in the

CURTIS.

count which that plea traverses has not been supported

1835. by the evidence. The allegation is, that the plaintiff had

CANNELL been appointed and was assistant overseer of the parish of West Rudham, in the county of Norfolk, and had made out and passed certain accounts of him the said plaintiff as such assistant overseer as aforesaid, the same containing (amongst other things) an account of the receipts and disbursements of the plaintiff as such assistant overseer, and which said accounts so made out, the plaintiff, before &c., had verified on the oath of him the said plaintiff. The plea is a distinct traverse or denial of this allegation. The objections arising out of this traverse are two-first, that there was no proof that the plaintiff had been duly appointed assistant overseer, as alleged in the countsecondly, that the plaintiff failed in proving that he passed and verified on oath his accounts as such assistant overseer. 1. As to the first point, the evidence consisted of a regular First point. and formal appointment of the plaintiff to be assistant overseer of the parish, under the hands and seals of two magistrates. That appears to me to be a complete answer to the objection. All the authorities concur to shew that it was only necessary for the plaintiff to allege and to prove that he acted in the character and capacity of assistant overseer. But it has been contended, that, as the plaintiff bas thought fit to go further, and to allege an appointment, be was bound to support that allegation by proof of an appointment good in omnibus. It appears to me, however, that the allegation in question, traversed as it is in the plea, amounts to no more than an allegation of an appointment de facto. The appointment by the magistrates is an act separate and distinct from the election by the vestry. If the defendant had intended to put in issue the fact of the election, he should have alleged that the vestry was not duly assembled or the election not duly made; and then probably the question might have been raised. But, if, upon a mere traverse of the appointment, the defendant

1835.

CANNELL

CURTIS.

Second point.

were allowed to go into an investigation of all the circumstances that took place anterior to the appointment, the plaintiff would come to the trial totally unprepared to meet the objection. In Moises v. Thornton, where the declaration contained an averment that the plaintiff practised physic under a diploma, it was held to be satisfied by the production of a regular diploma bearing the university seal: the defendant never could have been permitted to contest the fact of the diploma having been duly obtained, or to shew that the university had broken through any of their rules in granting it: nothing was in issue between the parties but the mere fact that the plaintiff practised under a diploma: so, here, nothing was in issue but the mere fact that the plaintiff was acting as assistant overseer under an appointment by the magistrates. 2. Then, as to the objection that the accounts passed and verified by the plaintiff were not, as stated in the declaration, and traversed by the plea, the accounts of the plaintiff. It appeared that the accounts purported to be, and in fact were, the overseers' accounts; and they were so headed. I am far from saying that that was not the proper mode for a deputy to render accounts—in the names of his principals. It appeared, however, that all the receipts and payments had been made by the plaintiff in virtue of his office of assistant overseer. The mere circumstance of their being headed in the names of the overseers, would not render the accounts the less the plaintiff's accounts.-A third objection has been urged, viz. that the writing complained of is not libellous per se, for that the plaintiff could not be guilty of perjury, inasmuch as the oath alleged to have been taken by him was voluntary, and not required by any statute. The statutes 17 Geo. 2, c. 38, s. 1, and 50 Geo. 3, c. 49, s. 1, however, require the overseer to verify his accounts on oath ; and the 7th section of the 59 Geo. 3, c. 12, authorizes and impowers the assistant overseer to execute all such of the duties of the office of overseer of

1835.

the poor as should be expressed in the warrant for his appointment, in like manner and as fully to all intents and purposes as the same might be executed by any ordinary overseer of the poor: and the verification of the accounts was one of the duties of the office which the plaintiff was by the warrant for his appointment required to perform.

CANNELL

v. CURTIS.

PARK, J., concurred.

GASELEE, J.-The justice of the case is clearly with the plaintiff : and, with one exception, I concur in what has fallen from the Lord Chief Justice. But I entertain some doubt as to whether the allegation that the plaintiff had made out and passed his accounts as assistant overseer, was made out by proof of the passing of the accounts produced, headed " overseers accounts.” Probably the more correct mode of stating the fact would have been, to state that the plaintiff, as assistant overseer, had performed all the duties of the office of overseer, and that he, as such assistant overseer, being the person by whom the accounts had been kept, passed and verified them.

Rule discharged.

MARTIN V. MARTIN.

Wednesday,

Nov. 11. SHEE, on a former day, on the usual affidavit, obtained in answer to a

rule for judga rule nisi for judgment as in case of a nonsuit.

ment as in case of a nonsuit, the

plaintiff's atWhately shewed cause, on an affidavit by the plaintiff's torney swore attorney which stated that the defendant having pleaded that he had not a set-off as to all but 51., and paid that sum into court; liter, nor had it that, as to the set-off, the plaintiff replied that he was not his knowledge indebted ; and that to which the plaintiff replied in the Held, a sufficient ordinary form; but that no similiter had been added by the plaintiff's attorney, nor had it been added, to his knowledge or belief. He submitted, that, the cause not

added the simi

been added to

or belief:

answer.

1835.

being at issue, the motion was premature.—Gilmore v. Melton, 2 Dowl. 632; Brown v. Kennedy, 2 Dowl. 639; Seabrook v. Cave, 2 Dowl. 691.

MARTIN

MARTix.

Shee, in support of the rule (admitting that the cases cited were not distinguishable from the present, provided the fact were as alleged), objected that it did not sufficiently appear upon the plaintiff's affidavit that the similiter had not been added, to countervail the distinct affidavit on the part

of the defendant that the cause was at issue.

Per Curiam.--The fact of the cause being at issue appears to us to be sufficiently negatived; and consequently the rule must be discharged with costs.

Rule discharged.

Reeves and Another o. ELIZABETH WARD, Executrix Wednesday,

of Daniel WARD, Deceased. Nov. 11. To a declara

This

was an action brought against the defendant tion on two pro• missory notes

as executrix of her late husband to recover the balance made by a tes- due on two promissory notes, the one for 301., the other tator, his executrix pleaded for 33l. 4s. 2d., made by the deceased and payable to the that she had not at the time of plaintiffs: 151. had been paid on account. The defendant the commencement of the ac

pleaded that she had not at the time of the commencement tion, or at any of the action, nor at any time since, had any goods or time since, any goods or chat- chattels which were of the said Daniel Wärd at the time tels which were of the testator

boere of his decease, in her hands as executrix to be adminisat the time of

tered. The plaintiffs replied, that, at the commencement his decease, in

as ex• of the action, and since, the defendant had divers goods ecutrix to be administered

and chattels which were of the said Daniel Ward at the omitting the

time of his decease, in the hands of the defendant as exusual averment that she had ecutrix as aforesaid to be administered, of great value, fully administered. The plaintiff in his replication took issue on the defendant's possession of assets :-Held, that, under this issue, it was competent to the defendant to give in evidence payments made by hier before the commencement of the action, to exhaust the assets shewn to have come to her hands.

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