spoken of a physician, are not actionable without special damage: and if they were so spoken as to convey an imputation upon his conduct in his profession, the declaration ought to show how the speaker connected the imputation with the professional conduct.

ACTION for slander. The declaration contained four counts, of which the third only was proved at the trial. The inducement to the first count stated, that the plaintiff exercised and carried on the profession of a physician at H., and that before, and at the time, &c. there was a rumour and report in and about H., and the neighbourhood thereof, that a physician residing at H. had been criminally connected with a married woman, and had been and was guilty of adultery. The third count charged, that in a discourse had in the hearing of divers, &c., and particularly J. B. and C. H. P., of and concerning the said plaintiff, so carrying on the said profession as aforesaid, and of and concerning the said rumour and report, the defendant, falsely and maliciously contriving and intending to have it believed, that the plaintiff had been guilty of a criminal connexion with a. married woman, in the presence, &c., spoke and published the several false, &c. words following, of and concerning the said plaintiff, so carrying on such profession as aforesaid, and of and con[ *3 cerning him in his said profession, and of and concerning the said rumour and report, that is to say, "Have you heard that it is out who are the parties in the crim: con..affair that has been so long talked about?" (meaning the said rumour and report that a physician at H. had been criminally connected with a married woman.) And the said C. H. P. demanded who it was; and the said defendant falsely, &c. answered, "Dr. Ayre," (meaning that the said plaintiff had been guilty of a criminal connexion with a married woman, and that he was the person alluded to in such rumour and report.) By means of the committing, &c., the said plaintiff has been greatly injured, &c. Here followed a statement that divers persons, not named, had refused to have acquaintance with the plaintiff, or to have any transactions with him in the way of his said profession, as they were before accustomed to have, and otherwise would have had. On the trial before Taunton, J. at the York Spring assizes, in this year, a verdict was found for the plaintiff on the above count.

In Easter term last, Alexander obtained a rule calling on the plaintiff to shew cause why the judgment should not be arrested. In Trinity term last (June 10th),

F. Pollock, Wightman, and Raines shewed cause. (a) An action lies for imputing adultery to a medical man, such imputation being made concerning him in his profession. It directly injures him in his profession, which is the only safe criterion that can be suggested, and which will be found to agree with the decisions. Thus it is not *actionable to say of a counsellor, "he has no more wit than a jackanapes," but it is actionable to say of him, "he has no [*4 more law than a jackanapes :" (Per Cur. in Cawdrey and Tetley's case, Godb. 441, citing Palmer's case, Palmer v. Boyer, Cro. Eliz. 342 :) the reason of which distinction evidently, is, that wit is not, but that knowedge of law is, essential to the profession of a counsellor. The cases are collected in Comyns's Digest, Action upon the Case for Defamation, D. 13, to D. 27, and F. 8, to F. 10, and the same principle will be found to prevail in them. It cannot be contended that an imputation of unchastity may not be so applied to a physician, as to render it highly improbable that he should be treated with that confidence which is essential to his practice. The words may be supposed to have been spoken of him so as to convey an imputation that, by taking advantage of the access allowed him to a female patient, he had intrigued with her and after verdict, the charge set forth in the declaration may be interpreted in any way not inconsistent with the words.

:

(a) Before Lord Denman, C. J., Littledale, Taunton, and Williams, Js.

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 *5] is not actionable without special damage. This was held after verdict 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.(b) 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 charg ed 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 . Brookborne.

VOL. XXIX.-3

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 43s. 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 [*13 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.

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 authority 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].

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.

Rule refused.

*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

life.

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 with*15] out issue in 1814, within twenty years of the bringing of *the action. 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.

determine till the death of William Rogers's grandson in 1814; and, if so, the reversioner could not commence his action till then, so that he is not barred. [TAUNTON, J. The grandson cannot come within the description in the devise. PATTESON, J. The grandfather was remainder man in tail male, and the grandson could only take by the form of the gift.]

PER CURIAM. (a) The fine will make no difference; but, as to the question of the husband's adverse possession, we will take time to consider.

On a subsequent day in this term, Lord DENMAN, C. J. delivered the judgment of the Court.

The other points moved by my brother Talfourd were disposed of by the Court, but we wished to consider whether he was entitled to a rule on the ground that there had been no adverse possession for twenty years. The fact was, that the defendant had been in possession for a longer period, from his wife's death, but he came in originally in her right, and had not directly ousted the rightful owner, but merely continued where he was, to his exclusion. A case of Reading v. Rawsterne, reported by Lord Raymond and Salkeld, 2 Ld. Raym. 830; S. C. 2 Salk. 423, was mentioned; but in that case, though an actual disseisin is declared necessary, those words must be taken with reference to the subject matter, and are there contra-distinguished *from the mere perception of [*17 rents and profits, in the case of joint-tenants. But in Doe dem. Burrell v. Perkins, 3 M. & S. 271, the Court was of opinion that a fine levied by a person who was in possession under the same circumstances as the defendant here, operated nothing, because he came in by title, and had no freehold by diseisin ; and it was argued, that the defendant here was also to be considered as having entered rightfully, and committed no disseisin. We are, however, of opinion, that though this may be so for the purpose of avoiding a fine, it cannot prevent the defendant's possession from being wrongful, from the very hour when his interest expired by his wife's death. It is clear that he might have been immediately turned out by ejectment. We think, therefore, that his continuing the same possession for twenty years entitles him to the protection of the statute of limitations, and that this action had been brought too late.

Rule refused.

DOE on the Demises of BULLEN and Another against MILLS. Wednesday, Nov. 5.

Premises being in the possession of a tenant under an indenture of lease, a party claiming them by an alleged title adverse to that of the lessor, and prior to the lease, demanded them of the lessee, and ultimately obtained possession by paying him 207. The landlord afterwards brought ejectment against the party so in possession, the term having been forfeited:

Held, that the defendant could not set up his adverse title against the landlord.

EJECTMENT for a cottage. On the trial before Lord Denman, C. J., at the last Dorchester assizes, the material facts appeared to be as follows:-The cottage was originally built forty years ago by one Dare, *on a strip of land

near two closes now belonging respectively to the lessor of the plaintiff [*18 and to the defendant. Each party maintained that the strip was, at that time, the property of persons under whom he now claimed. The cottage was burnt, and afterwards, (about twelve or thirteen years ago) rebuilt by one Williams. Bullen, the lessor of the plaintiff, finding Williams in possession, claimed title to the cottage; and, in 1823, induced Williams to take a lease of it under him. An indenture of lease was accordingly executed by Bullen to Williams for ninety-nine years, if certain parties should so long live. Williams held it for

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