1835. Wednesday, TURNER and Others v. W. IzoN and E. KETLAND. Nov. 25th. THIS A cause was referred, and the arbitrator stated the facts specially on his was an action for goods sold and delivered. The cause was referred, and the matters specially stated by the arbitrator on his award, in order to take the opinion of the court thereon. On the case coming on for argument, the On the plaintiffs were advised that the defendant Ketland had been improperly joined in the action; and award for the opinion of the court. matter coming on for argu ment, the plaintiff's being ad vised that one of the defen dants was im in the action The court per mitted them to discontinue, on Wilde, Serjeant, on a former day, obtained a rule calling upon the defendants to shew cause why the plaintiffs should properly joined not be at liberty to discontinue the action upon payment to the defendants of their costs of the action and of and occasioned by the application-the plaintiff's undertaking not to bring any joint action against the defendants in this cause. He referred to Roberts v. Marriett, 2 Wms. being made for Saund. 73, where the court after demurrer joined gave the plaintiff leave to discontinue on payment of costs, and to the authorities collected in note (1) to that case (a); and payment of the costs of the cause (no provision the costs of the reference and award) and of the motion, and undertaking not to bring any joint action against the two defendants, nor any separate action against the defendant so improperly joined. (a) "After demurrer argued and allowed, the court has permitted a discontinuance, on payment of costs, where there was a mistake in the plaintiff in pleading-2 Lev. 124, Rex v. Burnis; Ibid. 209, Eut v. Withers; 1 Lev. 191, Jones v. Pope, S. C. 1 Saund. 39, 1 Sid. 306; 1 Lev. 192, Bennet v. Filkins, S. C. 1 Saund. 23; 1 Lev. 298, Martin v. Delboe; 3 Lev. 440, Stephens v. Cooper; 1 Stra. 76, Butler v. Malissy; Ibid. 116, Henderson v. Williamson: but now the court usually gives the party leave to amend upon payment of costs. And, after special verdict, the plaintiff may discontinue by leave of the court, because it is not complete and final: this, however, is a matter of great favour—1Salk. 178, Price v. Parker. And the court will not grant leave in a hard action-Cases temp. Hardw. 200, 201, Boucher v. Lawson. Nor will they do it to give the plaintiff an opportunity of adducing fresh proof to contradict the verdict2 Bl. Rep. 815, Roe v. Gray. And leave to discontinue is never granted after a general verdict--1 Lev. 48, Anon.; 1 Salk. 178, Price v. Parker; or after a writ of inquiry executed and returned-Carth. 86, Stevens v. Etherick, S. C. 1 Show 63. Or after a peremptory rule for judgment on demurrer - 1 Salk. 179, Turner v. Turner." also to Tidd's Practice, 9th edit. p. 679, where it is said"The rule to discontinue may be had as a matter of course, from the clerk of the rules in the King's Bench, at any time before trial or inquiry (Price v. Parker, 1 Salk. 178): and leave has been given to discontinue after argument and before judgment on demurrer (Stephens v. Cooper, 3 Lev. 440; Butler v. Malissy, 1 Stra. 76, 116). And, even after a special verdict, the plaintiff may discontinue, by leave of the court, because that is not complete and final; but in this case it is a great favour (Price v. Parker): and it is never granted after a general verdict, or writ of inquiry executed and returned (Stephens v. Etherick, Carth. 86, 1 Show 63), nor after a peremptory rule for judgment on demurrer (Turner v. Turner, 1 Salk. 179). A discontinuance is not allowed in the Common Pleas after a special verdict, in order to adduce fresh proof in contradiction to the verdict (Roe v. Gray, 2 W. Bl. 815). And where the plaintiff moved to discontinue, upon payment of costs, after judgment given for him on demurrer, but not entered of record, and a writ of error brought, and bail put in thereupon, the court refused to make a rule to discontinue without payment of costs on the writ of error-Pym v. Warren, Barnes, 169." Goulburn, Serjeant, shewed cause.-The court have no power to interfere: or, if they have, the circumstances of this case are not such as to warrant them in so doing. [Tindal, C. J.-After a special verdict we clearly have authority to grant leave to discontinue: why have we not, therefore, after an award made setting out the facts specially?] Here, the verdict is final: the plaintiffs electing to retire from the argument, the defendants were entitled to judgment. This case, therefore, goes much further than that of a special verdict: and it is perfectly well understood, that a discontinuance is never permitted after a general verdict-Price v. Parker, Stephens v. Etherick; 1835. TURNER v. IZON. 1835. TURNER. v. IZON. and the reason assigned is that it would enable the plaintiff to have as many new trials as he pleased. In Roe d. Gray v. Gray, the court refused to allow the lessor of the plaintiff to discontinue after a special verdict. Wilde, Serjeant, in support of his rule.-The cases cited only tend to shew that the permitting a discontinuance is matter of favour: and in every instance in which a plaintiff has been refused the indulgence, he wished to bring the same action again. Here, however, the plaintiffs only seek to be allowed to bring another action against one only of the defendants, to try a totally different question. TINDAL, C. J.-If by proceeding to judgment the defendants would be entitled to a different measure of costs, there might be good reason for our withholding the leave prayed by this motion. But, on looking to the reference and award, it will be found that the costs of the reference and award are not provided for. The simple question, therefore, is whether or not a second action may be brought. As at present advised, I see no reason why it should not. If any difficulty presents itself in the way of the plaintiffs, I cannot think we are doing wrong in removing it. The plaintiffs must, however, also undertake not to bring another action against the defendant Ketland alone. The rest of the court concurring Rule absolute accordingly (b). (b) See Sweeting v. Halse, 9 B. & C. 369, 4 M. & R. 544, where after a general verdict for the defendant, and a rule absolute for a new trial, the plaintiff had a rule to discontinue. There, although the question whether upon such discontinuance the defendant was entitled to the costs of the trial (which it was held he was) was argued at length, the objection to a discontinuance after a general verdict was not mooted. And see Ames v. Ragg, 2 Dowl. 35-Goodenough v. Beetles, 2 C. M. &. R 240. "To entitle a plaintiff to discontinue after plea pleaded, it shall JACKSON v. ADAMS. THIS was an action on the case for slander. The se cond count of the declaration stated, that, before the time of the committing the grievances by the defendant as next thereinafter mentioned, the plaintiff had been in a certain parish office, to wit, one of the churchwardens of the parish of Stoke Gabriel, in the county of Devon, and during the plaintiff's continuance in such his office had always faithfully and honestly demeaned himself in his said office of churchwarden; nevertheless, the defendant, well knowing the premises, but devising and maliciously intending, not only to injure the plaintiff in his said good name, fame, credit, and reputation with and amongst all his neighbours and other good and worthy subjects of this realm, and to cause it to be suspected and believed by those neighbours and subjects that the plaintiff had been and was guilty of the misconduct and offences thereinafter mentioned to have been charged upon and imputed to him, and had grossly misconducted himself as such churchwarden as aforesaid, and to vex, harass, and oppress the plaintiff, theretofore, to wit, on the 7th October, 1834, in a certain discourse which the defendant then had with the plaintiff of and concerning the plaintiff and of and concern The court refused to arrest the judgment. The second count contained an averment by way of innuendo, "that the plaintiff, whilst in his said office of churchwarden, had been guilty of stealing ropes, and that the subjects of our lord the king then understood that that was the meaning of the said words:"-Held, that the word "stealing," could not by any reasonable intendment have any other meaning than that of the commission of the offence of larceny; and therefore that the inuenndo was negatived by the plaintiff's own evidence that the defendant had intended to impute to the plaintiff that he had defrauded the parish on the sale of the bell-ropes. In an action of slander, words spoken by the defendant in relation to the same transaction, on a former occasion, are receivable in evidence to shew the animus. not be necessary to obtain the defendant's consent, but the rule shall contain an undertaking on the part of the plaintiff to pay the costs, and a consent that, if they are not paid within four days after 1835. JACKSON ย. ADAMS. ing his conduct as churchwarden as aforesaid, in the presence and hearing of divers good and worthy subjects of this realm, the defendant, contriving and intending as aforesaid, then and there, in the presence and hearing of the said subjects, falsely and maliciously spoke and published of and concerning the plaintiff and of and concerning his conduct as churchwarden as aforesaid, the false, scandalous, malicious, and defamatory words following, that is to say, "Who stole the parish bell-ropes? How do the ropes wear?" (meaning that the plaintiff had, whilst in his said office of churchwarden as aforesaid, been guilty of stealing ropes), and the said subjects of our said lord the king then understood that that was the meaning of the said words: By means of the committing of which grievance the plaintiff had been and was greatly injured in his good name, fame, and credit, and brought into public scandal and disgrace with and among his parishioners, neighbours, and other good and worthy subjects of this realm, insomuch that divers of those parishioners, neighbours, and subjects to whom the innocence and integrity of the plaintiff in the premises were unknown, had, on the occasion of the committing of the said grievance, from thence hitherto suspected and believed &c. the plaintiff to have been and to be a person guilty of the misconduct and offences imputed to him as well in the said office as otherwise, and had by reason of the committing of the said grievance by the defendant as aforesaid from thence hitherto wholly refused and still did refuse to have any transactions, acquaintance, or discourse with the plaintiff, as they were before used and accustomed to have, and otherwise would have had, &c. &c. The defendant pleaded not guilty. At the trial before Patteson, J., at the last Spring Assizes at Exeter, after proof given of the speaking of the words charged, the plaintiff, in order to shew that they were spoken maliciously, offered in evidence the record in |