Alexander and Follett (with whom was R. Hildyard,) contrà. In the introductory part of the complaint, the discourse is not said to have been of and concerning the plaintiff in his profession, but simply of and concerning the said plaintiff so carrying on the said profession, which are mere words of description. It may be doubtful whether this do not limit the effect of the whole allegation, so as to prevent the plaintiff from calling in aid the averment which occurs afterwards, applying the words spoken to the plaintiff, of and concerning him in his profession. But, independently of this difficulty, a charge of incontinence is not actionable *without special damage. This was held after verdict

*5] in Parrat v. Carpenter, (Cro. Eliz. 502, S. C. Noy. 64; and see Gascoigne v. Ambler, 2 Ld. Raym. 1004,) although there the plaintiff was alleged to be parson of D.; and there is as much ground for saying that a clergyman would be deprived of his cure for incontinence, as that a physician would lose his practice. The cases upon this subject are collected in Selwyn's Nisi Prius, Slander, II.,(a) in Comyn's Digest (as cited on the other side,) and in Viner's Abridgment, Actions [for Words,] D. a., and S. a. to U. a. On reference to those authorities there will be found an universal rule, that, where words have been held to be slanderous as spoken of a physician, they have imputed want of sufficient professional acquirements or skill.(6) In Lumby v. Allday, 1 Cr. & J. 301, S. C. 1 Tyrwh. 217, the declaration stated that the plaintiff was clerk to a gas light company, and that the defendant, intending to cause it to be believed that the plaintiff was of a bad character, unfit for his situation, and an improper person to be employed by the company, and to cause him to be deprived of his situation, used words which charged him with incontinence; and the judgment was arrested after verdict. In giving judgment, Bayley, J. said, "Every authority which I have been able to find, either shows the want of some general requisite, as honesty, capacity, fidelity, &c., or *con*6] nects the imputation with the plaintiff's office, trade, or business. As at present advised, therefore, I am of opinion, that the charge proved in this case is not actionable, because the imputation it contains does not imply the want of any of those qualities which a clerk ought to possess, and because the imputation has no reference to his conduct as clerk." Words, which may injure a man in his profession, but which do not necessarily do so, are not actionable without special damage; they must be spoken with reference to the actual trade. A maid servant would undoubtedly be less likely to obtain a place if charged with prostitution, yet such a charge would not of itself be actionable. A schoolmistress probably would suffer in her calling, by being charged with incontinence; yet such a charge is not actionable without special damage. (c) And the words, if not actionable for want of special damage, cannot be aided by an averment that they were spoken of the plaintiff in his profession, or even that they charged him with having committed the act imputed in his particular professional character. Abstaining from acts of incontinence cannot be put as part of the profession of a physician; and, consequently, the committing or not committing them has nothing to do with the exercise of the profession. The abstinence is a duty not peculiar to a physician. Morally speaking, it is the duty of all men; but the question is, whether a charge of its non-observance affords a legal ground of complaint. A merchant might be under the necessity of

(a) Page 1260 to page 1267, (8th ed. 1831.)

(b) As, "thou art a quack salver," Vin. Abr. Actions [for Words], (S. a), pl. 10, Allen e. Eaton. "Thou art a drunken fool and an ass; thou never wast a scholar, thou art not worthy to speak to a scholar; this I will prove and justify," Ibid. pl. 11, Cawdry v. Chickly, S. C. Cro. Car. 270; and Goodb. 441, pl. 509. "He is an emperic and mountebank, and a base fellow," Viner ut sup. pl. 12, Goddart v. Haselfoot.

(c) Per Twisden, J., in Wharton v. Brook, 1 Ventr. 21; and see Wetherhead v. Armitage, 2 Lev. 233; S. C. Freem. 277, as Witherly v. Hermitage; and 2 Show. 18, as Wetherhead v. Brookborne.

VOL. XXIX.-3

[ *7

frequenting a house in the exercise of his trade; but *it would not be sufficient, without special damage, to aver that, in doing so, he had obtained access to a female living in the house, and had been criminally connected with her: yet this is precisely analogous to the extreme case suggested on the other side as proveable consistently with the present record. In Hartly v. Herring, 8 T. R. 130, where incontinence was imputed to a licensed preacher at a dissenters' chapel, the whole argument on both sides assumed the necessity of special damage. A similar remark applies to Moore v. Meagher, 1 Taunt. 39, and Hunt v. Jones, Cro. Jac. 499. Unless this limitation be adhered to, that the words must refer to the actual exercise of the calling, it is impossible to say what imputation may not be held to be injurious to a man in his profession. Cur. adv. vult.

Lord DENMAN, C. J., in this term (Nov. 24th,) delivered the judgment of the Court.

There are obvious and very good reasons for the jealousy with which the courts have always regarded actions of slander, particularly those in which no indictable offence has been imputed; but here the plaintiff states the grievance as affecting him in his business, office, or profession, without charging that any actual damage has accrued to him from the words spoken.

Some of the cases have proceeded to a length which can hardly fail to excite surprise; a clergyman having failed to obtain redress for the imputation of adultery, (Parrat v. Carpenter, Noy. 64; S. C. Cro. Eliz. 502); and a schoolmistress having been declared incompetent to maintain an action for a charge of prostitution. (Per Twisden, J., in Wharton v. Brook, 1 Ventr. 21.) *Such words were undeniably calculated to injure the success of the plaintiffs in their several professions; but not being applicable to their conduct therein, no action lay.

[ *8

The doctrine to be deducted from the older cases was recently laid down, after a full discussion, by Mr. Baron Bayley, in Lumby v. Alday, 1 Cro. & J. 305 S. C. 1 Tyrwh. 224. "Every authority which I have been able to find, either shews the want of some general requisite, as honesty, capacity, fidelity, &c., or connects the imputation with the plaintiff's office, trade, or business.'

In that case, accordingly, where a verdict had been recovered by the clerk of a Gas Company, on a declaration alleging that the defendant, wishing to cause it to be believed that the plaintiff was unfit to hold his situation, and to cause him to be deprived of it, had said to him, "You are unfit to hold your situation," and then imputed incontinence as the reason of his unfitness, the Court of Exchequer thought the judgment ought to be arrested.

In the present case much doubt was entertained, whether the words were not actionable within the rule just adverted to. For, being laid as spoken of the plaintiff as a physician, in which character he may have opportunities of abusing the confidence reposed in him, to commit acts of criminal conversation, the statement must be thought large enough to admit such proof to be adduced on the trial, in which case the necessary proof would be presumed to have been given, and the judgment ought not to be arrested. But, after full examination of the authorities, we think that, in actions of this nature, the declaration ought not merely to state *that such scandalous conduct was imputed to the plaintiff in his profession, but also to set forth in what manner it was [ *9 connected by the speaker with that profession. For this defect the judgment must be arrested. Rule absolute.

PADDON against BARTLETT and Another. Monday, Nov. 3.

Premises were mortgaged to trustees for the purpose of securing 11377., and the trustees were authorized to sell, and out of the proceeds, in the first place, to pay the costs of

putting the deed in execution, and also a reasonable sum of money by way of satisfaction to themselves for their trouble in executing the trusts. The deed had the stamp of 51. required by 48 G. 3, c. 149, for mortgages to secure any sum exceeding 1000l. and not exceeding 2000%.:

Held, that the stamp was sufficient, no proof being given that the sum to be raised, including a reasonable satisfaction to the trustees, would exceed 20002.

DEBT, for rent, on an indenture of lease made in 1811. The defendants pleaded, amongst other things, as to part of the rent, that the plaintiff had, by indenture of the 30th of June, 1815, assigned his right in the demised premises, and was no longer reversioner. The plaintiff, by his replication, denied the assignment. On the trial before Lord Denman, C. J., at the last Summer assizes for the county of Devon, the indenture of assignment was put in, and admitted to have been duly executed. It appeared to be a mortgage of the premises by the plaintiff to two persons as trustees, for the purpose of securing 11377. and interest. After empowering them to sell the premises, it authorized them, or either of them, out of the proceeds, "in the first place to pay and discharge the costs and expenses to be incurred in the execution and due performance of the trusts hereby reposed in them or him, and also a reasonable sum of money by way of satisfaction for their and his trouble in and about the execution of the trusts hereby in them and him reposed, or otherwise by reason of *10] these presents." The deed had the stamp of 57. required *by 48 G. 3, c. 149, Schedule Part I. tit. Mortgage, for a mortgage to secure any sum exceeding 1000l. and not exceeding 20001. Newman, for the plaintiff, contended that the stamp was insufficient, for that the sum secured to the trustees for their trouble was a charge subject to stamp duty; and as the amount they were to receive was uncertain and without any limit, a 207. stamp should have been imposed; and he cited Dickson v. Cass, 1 B. & Ad. 343. The Lord Chief Justice overruled the objection, and the defendant had a verdict on the plea in question, but leave was given to move to enter a verdict for the plaintiff.

Newman now moved accordingly, and restated the objection taken at the trial. The compensation here given to the trustees is not one of the ordinary or regular expenses of a trust deed of this kind; the Court cannot say what its amount may be, and the parties themselves have affixed no limit. [Lord DENMAN, C. J. The word "reasonable" gives a limit.] The parties should have said, "a reasonable sum of money not exceeding so much. Those who rely on the sufficiency of the stamp, ought to have shewn that the sum would not exceed 20007.

Lord DENMAN, C. J. It lay upon those taking the objection, to shew that a "reasonable satisfaction" would raise the whole amount above 20007. We are all of opinion that there is nothing in the point.

TAUNTON, J. Concurred.

*11]

*PATTESON, J. In Dickson v. Cass, 1 B. & Ad. 343, the stamp was not sufficient to cover any thing beyond the bare amount secured. WILLIAMS, J., concurred.

Rule refused.

DOE dem. EVANS against ROE. Tuesday, Nov. 4.

The rule of Court, Mich. 3 W. 4, that every declaration shall be entitled of the day of the month and year on which it is filed and delivered, does not apply to declarations in ejectment.

The Court refused to set aside a declaration in ejectment, in which the notice was dated of a day after the service of declaration.

THE declaration was in ejectment, and was entitled of Trinity term generally; the notice at the foot of the declaration was dated the 1st November, and the declaration with such notice was served on the 31st October.

R. V. Richards moved for a rule to shew cause why the declaration should not be set aside for irregularity. First, the rule of Michaelmas term, 3 W. 4, 4 B. & Ad. 4, orders that every declaration shall be entitled of the day of the month and year on which it is filed or delivered. The words "every declaration" must comprehend a declaration in ejectment. Secondly, the date of the notice is necessarily false, or else the service is irregular.

Lord DENMAN, C. J. The rule of Court does not extend to declarations in ejectment.

TAUNTON, J. concurred.

*PATTESON, J. That was understood in the case of Doe dem. Fry v. Roe, 3 Moore & Scott, 370. And, as to the other objection, it was not necessary that there should be any date to the notice at all. WILLIAMS, J. concurred.

[*12

Rule refused.(a)

HARGREAVES against HUTCHINSON. Tuesday, Nov. 4.

Defendant lent money at usurious interest to plaintiff; to colour the transaction, a sale of goods for the amount of the money lent was made by plaintiff to defendant, and the goods were transferred; and it was agreed that they should be resold by defendant to plaintiff at a higher price, if a bill drawn by defendant on plaintiff for the re-purchase money, should be honoured. The bill was dishonoured, and the defendant retained the goods. Held that the plaintiff might recover in trover for the full value of them, without deducting the money advanced on the first pretended sale.

TROVER for 146 quarters of malt. Plea, not guilty. On the trial before Lord Lyndhurst, C. B., at the last York Summer Assizes, it appeared, that in April, 1833, the plaintiff had applied to the defendant to advance him a sum of money on the security of some malt, which the defendant then refused to do; but the parties afterwards agreed that the plaintiff should sell the malt to the defendant at 40s. per quarter. This was done, and the price, 2927., paid, and the malt delivered to the defendant. After this, another agreement was made, that the plaintiff should repurchase the malt at 438. per quarter, if two bills, drawn by the defendant on the plaintiff as the re-purchase money, should be honoured by the plaintiff at maturity. The bills were dishonoured, and were taken up by the defendant, and the defendant retained the malt, for which the plaintiff brought the present action. The Lord Chief Baron told the jury, that if they considered the agreements for the purchase and re-purchase of the malt to be merely colourable, and *intended to cover an usurious loan by the defendant to the plaintiff, there was no contract by which the property in the malt could be transferred, and the plaintiff must have a verdict for its present value, which his witnesses estimated at 62s. per quarter. The jury found a verdict for the plaintiff, damages 4527. 12s., being the price of the malt at that estimate.

[*13

Alexander now moved to reduce the verdict by 2927., the sum paid by the defendant to the plaintiff at the first transfer, on the ground of the injustice of allowing the plaintiff to retain both the value of the malt and the money advanced upon it; and he mentioned the case of Fitzroy v. Gwillim, 1 T. R. 153, (see also Hindle v. O'Brien, 1 Taunt. 413,) admitting, however, that its autho rity was questionable. See Roberts v. Goff, 4 B. & Ald. 92. Tregoning v. Attenborough, 7 Bing. 97. [PATTESON, J. Have we any discretion? The contract is altogether void]. Rule refused.

PER CURIAM.(b) There can be no rule.

(a) See Doe dem. Ashman v. Roe, 1 New Cas. 253.

(6) Lord Denman, C. J., Taunton, Patteson, and Williams, Js.

*DOE dem. PARKER against GREGORY. Wednesday, Nov. 5.

A widow, tenant for life of lands settled upon her for jointure (such settlement being made in execution of a power granted to the deceased husband), married, and levied a fine of the lands jointly with her second husband. She died, and the second husband held for more than twenty years after her death: Held, that the fine was void, but that the possession of the second husband, after the wife's death, was a bar to ejectment brought by the party on whom the reversion in fee had descended during the estate for Ilfe.

EJECTMENT for lands in Gloucestershire. On the trial before Alderson, B., at the last Gloucester Summer Assizes, the following facts were proved. Thomas Rogers, being seized in fee of the lands in question, devised them to his son, Thomas Rogers, for life, remainder to William Rogers in tail male, remainder to the devisor's right heirs in fee. (a) The will gave a power to the tenant for life to settle a certain portion of the lands upon his wife for life, by way of jointure. After the death of the devisor, the son, Thomas Rogers, being then tenant for life, settled the lands in question, being not more than the portion defined, upon his wife for life. He died in 1798, leaving his wife surviving, who afterwards married a person of the name of Vale. In 1810, Mr. and Mrs. Vale levied a fine of the lands to their own use in fee. In 1812, Mrs. Vale died, more than twenty years before the commencement of this action. Mr. and Mrs. Vale had continued in possession of the lands, until Mrs. Vale's death, and Mr. Vale from thenceforward continued in possession till his own death, which occurred in 1832. William Rogers died, leaving several children, all of whom died before Mrs. Vale; and of whom none left issue, except one daughter, who died one month before Mrs. Vale, leaving issue, a son, who died without issue in 1814, within twenty years of the bringing of the action. *15] The lessor of the plaintiff was heir-at-law to the devisor, Thomas Rogers. It did not appear how the defendant got into possession. On these facts, the learned judge nonsuited the plaintiff on the ground that the right of entry was barred by the statute of limitations, but he reserved leave to move to set the nonsuit aside, and enter a verdict for the plaintiff.

Talfourd, Serjt., now moved accordingly. There was no adverse possession on the part of Mr. Vale, and, therefore the statute of limitations does not bar the right of entry. He had come into possession lawfully, and in right of his wife. In Reading v. Rawsterne, 2 Ld. Raym. 830; S. C. 2 Salk. 423, it was said by the Court, that "the Statute of limitations does not bar a man, but where there is an actual disseising." Here, Mr. Vale was at least tenant by sufferance; and, therefore, had no adverse possession. In Doe dem. Burrell v. Perkins, (b) it was held that, where a tenant pour auter vie had held over after the death of cestui que vie, and his son had held on after him, and had levied a fine, no entry was necessary to avoid the fine; for that the son had acquired no title, there having been no wrongful entry, but only a wrongful continuance of possession. So in William, Lessee of Hughes, v. Thomas, 12 East, 141, where tenant for life levied a fine, and died, devising the lands in fee, the entry *16] of the devisee was held to be no disseisin of the reversioner. *The present case is of course not affected by the fine levied in 1810, such fine being purely void, under the statutes 11 H. 7, c. 20, and 32 H. 8, c. 36, s. 2. Perhaps also it may be contended, that the intermediate estate in tail male did not

(a) The will contained several intermediate limitations, which are not specified here none of them affecting the points discussed.

(b) 3 M. & S. 271. It is difficult to see how the son's entry, in that case, could be otherwise than wrongful, his father being only tenant by sufferance. See the remarks in Morley and Coote's edition (1819) of Watkins's Principles of Conveyancing, p. 25, (note). The case is, however, recognized by Bayley, J., in Hall v. Doe dem. Surtees, 5 B. & Ald.