of collection: and this construction will support the rate. If the rate had been according to different proportions of the clear annual profit or value of the subject of occupation, it would have been otherwise; but annual rent is not annual profit or value. We are, therefore, of opinion, that the order of sessions should be confirmed. Order of sessions confirmed.

BLADES against FREE, Executor of G. W. Clark. 1829. 1829. Where a man, who had for some years cohabited with a woman that passed for his wife, went abroad, leaving her and her family at his residence in this country, and died abroad: Held, that the woman might have the same authority to bind him by her contracts for necessaries, as if she had been his wife; but that his executor was not bound to pay for any goods supplied to her after his death, although before information of his death had been received.

[S. C. 4 Man. & Ry. 282; 7 L. J. K. B. O. S. 211. Discussed, Smout v. Ilberry, 1842, 10 Mee. & W. 11.]

Assumpsit. The declaration contained several special counts; the first of which stated that G. W. Clark, in his lifetime, was resident or dwelling with one Mary as his wife, and divers his children and servants, and was about to depart this realm and go to certain parts beyond the seas, to wit, to the East Indies; and thereupon, in consideration that the plaintiff would, after the said intended departure of him, Clark, furnish and supply to the order of the said Mary such goods for the use of her the said Mary, and the said children and servants, as the said Mary should reasonably require, he Clark promised that he, his executors or administrators, would pay for them. Averment, that plaintiff did supply [168] the said Mary with certain goods which she reasonably required for the use aforesaid, and which at that time were worth, &c. The second special count stated the contract to be, that plaintiff should supply the said Mary with such goods as she should reasonably require, until reasonable and lawful notice to discontinue such supply should be given to the plaintiff; and that Clark, his executors, or administrators would pay for the goods so supplied. The third special count stated the contract to be, to supply goods until Clark should return, or notice to discontinue the supply should be given; or, in the event of his death without returning, until plaintiff should have notice of his death. Counts for goods sold and delivered, &c. Plea, the general issue. At the trial before Lord Tenterden C.J., at the Westminster sittings after Michaelmas term 1827, a verdict was found for the plaintiff on the special counts, subject to the opinion of this Court on the following case:

G. W. Clark, deceased, in the declaration in this cause mentioned, of whom the said defendant is executor, during the year 1822, and from that time until the month of January 1823, resided upon his own freehold property at Kinsall Green, in the county of Middlesex, with one Mary Steers (who passed under the name of and dwelt with him as, but was not, his wife), and their children and servants. In the month of January 1823, Clark left England for the East Indies, leaving the said Mary Steers and family on the premises at Kinsall Green, who continued to deal with the plaintiff and other tradesmen, and they continued to reside there until the end of the month of August 1825.

During the residence of Clark at Kinsall Green, and up to the time of his departure from England, that is to [169] say, from the month of November 1822, he dealt with the plaintiff and other tradesmen in that neighbourhood for articles in the way of his and their trade, for the supply, upon credit, of himself and family aforesaid; the orders for the same being given by Mary Steers, and the same being paid for by Clark at certain periods from and after the delivery thereof. The plaintiff continued to supply goods in the way of his trade to the order of Mary Steers, for the use of herself and the family aforesaid, from the month of January 1823 until the end of August 1825; whereof the goods, for the value of which 201. 3s. 10d., this action was brought, were part, and were supplied as aforesaid between the month of October 1824, and the month of May 1825 inclusive.

Clark died in the East Indies on the 31st of December 1824, without having returned to this country since his departure before mentioned. The defendant tendered to the plaintiff the sum of 71., part of the sum of 201. 3s. 101d., the sum of

71. being the value of so much of the goods as were supplied up to and including the 31st December 1824, and the same was received by the plaintiff before the commencement of this action. In or about the month of August 1825, and not before, intelligence of the death of Clark reached England, and was communicated to the plaintiff and other tradesmen and persons residing at Kinsall Green.

Kelly for the plaintiff. The question is, whether Clark may not be taken to have agreed, before he left England, to pay for such goods as were furnished before notice of his death was received. [Bayley J. Suppose the woman had been his wife, could the executor have been compelled to pay?] This case is stronger in favour [170] of the plaintiff, for had she been the wife of the deceased, in all probability she would have been provided for, and able to pay for the goods furnished after her husband's death. [Parke J. Suppose, after Clark's departure, she had cohabited with another man, would Clark have been liable?] No, her misconduct would have been an answer. [Parke J. Then you cannot infer a contract to pay until notice of Clark's death, but until notice of that, or the misconduct of the woman, and the declaration is not framed upon such a supposed contract.] The contract is the same, but the law in such case dispenses with the performance, and such dispensations need not be set out in the declaration. The real question is, whether the contract was revoked by the death of Clark? Now, although an authority may be revoked by death, a contract cannot. In M'Donnell v. M'Donnell (Buck, 399), it was held that bankruptcy did not make void the acts done under a power of attorney previously given by the bankrupts; and in that case, the Vice-Chancellor cited a case tried before Lord Kenyon, where a power of attorney had been sent out to India, and certain acts were done under it there, after the death of the principal, but before notice of it, and Lord Kenyon supported those acts.

Chitty, contrà, was stopped by the Court.

Bayley J. There is no doubt that a man may make an express contract for goods to be supplied to his wife or mistress after his death, for which his estate would be liable. But here there was no express contract. What [171] then is the inference of law that the woman had the same authority to bind the deceased by her contracts, as if she had been his wife, and such an authority would be revoked by his death. It is said, that this is hard upon the tradesman. But he trusts, at his peril, whether the credit is given upon the order of a married woman or a mistress. If he is unwilling to run the risk, he should require an express contract, if he does not do so, and sustains a loss, that is by reason of his own carelessness. It seems to me that the woman in this case had the authority of a wife, and that she could not make any contract to bind the estate after the death of the testator. The defendant is therefore entitled to have a nonsuit entered.

Littledale J. In this case there was no express contract, and none can be implied from which the plaintiff can derive a right to recover. There was no continuing implied contract made by the deceased, but an authority to the woman with whom he cohabited to make contracts for him from time to time, and at his death that authority ceased. The tradesman cannot be better off than if this had been a question upon the contract of a wife, and her contracts cannot bind the husband's estate if made after his death.

Parke J. It is clear that the plaintiff cannot be entitled to recover, unless he makes out a contract between himself and the testator. No contract was proved. All that can be said is, that he gave the woman an implied authority to bind him as a wife might have done. Such an authority may have been given; but in the absence of any contract with the testator, the executor cannot be [172] bound. If a contract were to be presumed, it could only be a contract for necessaries, which is not the contract described in the declaration.

Postea to the defendant.

CLEMENT against CHIVIS. (In Error.) 1829. It is libellous and actionable to publish of a man that he has been guilty of gross misconduct, and insulted females in a barefaced manner.

[S. C. 4 Man. & Ry. 127; 7 L. J. K. B. O. S. 189.]

Libel. The first count of the declaration stated, that the plaintiff below (Chivis), before and at the time of the committing of the grievances, &c. was the proprietor of

a certain stage-coach, wherein he was used and accustomed to carry and convey passengers for hire, profit, and reward to him in that behalf; and that in so doing, he had always properly conducted himself, &c., but that defendant well knowing the premises, and intending, &c., on, &c., at, &c., falsely, wickedly, and maliciously did compose and publish, and cause and procure to be published of and concerning the plaintiff, and of and concerning him as such proprietor as aforesaid, a false, scandalous, malicious, and defamatory libel containing therein, &c. of and concerning the said plaintiff, and of and concerning him as such proprietor as aforesaid; that is to say, "Greenwich coachmen. The insolence of some of the Greenwich coachmen and their eads becomes intolerable. Our notice has been called to the gross misconduct of Thomas Chivis (the plaintiff) and his cad, on coach No. 7600, who, on Tuesday last, insulted two females and some gentlemen, who were outside passengers, in the most barefaced manner," &c. [173] The second count omitted the statement of plaintiff's being the proprietor of a coach, and alleged the libel to be "of and concerning the plaintiff" only, and then set it out as before. It was averred as special damage, that by reason of the libel one John Davies, who would otherwise have gone by and been carried and conveyed by the plaintiff in his coach for hire and reward to the plaintiff in that behalf, had thence hitherto wholly neglected and refused so to do. Plea, the general issue. The jury found for the plaintiff, damages 51.; and as to the matters alleged for special damage, they found that one John Davies in the declaration mentioned, who would have gone by and been carried and conveyed by the plaintiff in bis said coach for hire and reward to him, the plaintiff, in that behalf, hath not thence hitherto wholly neglected and refused so to do. A general judgment for the plaintiff below was entered up, whereupon a writ of error was brought, and the case was now argued by

Platt for the plaintiff in error; who contended, that the supposed libel was not actionable if taken by itself, and without reference to the plaintiff's business, and without proof of some special damage. That the second count did not mention the plaintiff's occupation, and the jury had negatived the special damage; consequently, the judgment being general, was erroneous. The alleged libel was merely a charge that the plaintiff insulted somebody. The meaning of the word insulted is very indefinite it imputes nothing actionable or indictable. [Parke J. It states that the plaintiff was guilty of gross misconduct.] That is afterwards [174] explained by the statement that he had insulted some passengers.

Chitty contrà, contended, that in order to make written slander actionable, it need not impute indictable matter; it is sufficient if it tends to bring the party into odium or contempt. Bac. Abr., Libel, A, 2.

Cur. adv. vult.

On a subsequent day the judgment of the Court was delivered by

Bayley J. This was a writ of error from the Court of Common Pleas, and the error assigned was, that a general judgment had been entered for the plaintiff; whereas, the second count of the declaration did not set forth any sufficient cause of action. The introduction to that count stated only that the libellous matter was published "of and concerning the plaintiff," without reference to his occupation. But it imputed to him gross misconduct, and that he had insulted two females in a barefaced manner. It was insisted that this did not constitute a libel, and that was the question reserved for consideration. There is a marked distinction in the books between oral and written slander. The latter is premeditated, and shews design; it is more permanent, and calculated to do a much greater injury than slander merely spoken. There is an early case upon the subject, in which this distinction was adverted to, King v. Lake (Hardr. 470), where the libel charged the plaintiff with having presented a petition to the House of Commons, "stuffed with illegal assertions, ineptitudes, im-[175]perfections; clogged with gross ignorances, absurdities, and solecisms." A special verdict was found; and upon argument, Hale C.B. held, that "although such general words spoken once without writing or publishing them would not be actionable, yet, here they being writ and published, which contains more malice, they are actionable." This appears to have been a cross action, arising out of some dispute, as Lake v. King (1 Saund. 120, 131. 1 Sid. 414); but in the latter case it was held, that the action could not be maintained, on the ground that the alleged publication was a privileged communication. In a subsequent case Cropp v. Tilney (3 Salk. 225. Holt, 426). Holt C.J. says, "Scandalous matter is not necessary to make a libel; it is enough if the defenK. B. XXXVIII.-3

dant induces an ill opinion to be had of the plaintiff, or to make him contemptible and ridiculous." In Hawk. P. C. ch. 73, s. 1, it is said, with reference to the criminal law, "It seemeth that a libel, in a strict sense, is taken for a malicious defamation, expressed either in printing or writing, and tending either to blacken the memory of one who is dead, or the reputation of one who is alive, and to expose him to public hatred, contempt, or ridicule.' The distinction between written and oral slander has also been recognized in Villers v. Monsley (2 Wils. 403), Bell v. Stone (1 B. & P. 331), Thorley v. Lord Kerry (4 Taunt. 355), and Robertson v. M'Dougall (4 Bing. 670). Having then ascertained the rule, it is only necessary to enquire whether the publication in question does hold up the plaintiff to public hatred, contempt, or ridicule. It states that he was guilty of gross misconduct, and then describes in what that misconduct consisted; viz. in in-[176]-sulting two females, and some gentlemen in the most barefaced manner. That was a very serious and contumelious imputation, clearly calculated to bring the plaintiff into contempt by some persons, and hatred by others; and, therefore, according to the rule established by the cases referred to, we think that the publication was libellous, and sufficient to maintain the action. The judgment of the Court below must, therefore, be affirmed. Judgment affirmed.

THE KING against THE INHABITANTS OF DITCHEAT. 1829. By the 6 G. 4, c. 57, which repealed the 59 G. 3, c. 50, it is enacted, that no person shall acquire a settlement by reason of settling upon any tenement, unless it shall consist of a separate and distinct dwelling house, or of land, or of both, bonâ fide rented by such person, at the sum of 101. a year at the least, for the term of one whole year, nor unless such house or building, or land, shall be occupied under such yearly hiring: Held, by Littledale and Parke Js., Bayley J. dissentiente, that under this statute, a pauper who rented a dwelling-house at the yearly value of 101., and resided in it, but underlet part, thereby gained a settlement.

[S. C. 4 Man. & Ry. 151; 7 L. J. M. C. O. S. 110. Considered,
R. v. Westbury-on-Trym, 1857, 7 El. & Bl. 450.]

Upon an appeal against an order of two justices, whereby Martha Jerrard, the wife of Thomas Jerrard, then in St. Thomas's Hospital in the borough of Southwark, in the county of Surrey, and their children, were removed from the parish of Ditcheat, in the county of Somerset, to the parish of Lyncombe and Widcombe, in the same county, the sessions quashed the order, subject to the opinion of this Court on the following case :

The pauper's husband rented a tenement in Lyncombe and Widcombe by the year, viz. from Lady-Day 1825 until Lady-Day 1826, at the yearly rent of 151., with liberty to quit at any time on giving a quarter's notice. After the first month's occupation, the pauper's husband left the pauper living in the tenement and went to London, and remained there about seven months, during which period she remained in the tenement, [177] and until she quitted it as after mentioned; and she paid the year's rent, the receipts for which were given as if it had been received from her husband. A few days after the 25th of March 1825, the pauper's husband let an apartment in such tenement to one Gay, at the yearly rent of 81., payable quarterly, with liberty to quit at any time on giving a quarter's notice; and the same was occupied by Gay from the time of his taking until the 25th of March 1826, and his rent paid to that time. The pauper's husband gave notice at Christmas 1825, to quit at Lady-Day 1826. The landlord permitted the pauper to occupy part of the tenement until midsummer 1826, on paying him 38s. for the same; and the pauper quitted at midsummer 1826: the pauper's husband never paid any parochial rates although rated.

Moody, in support of the order of sessions. There was no residence in the parish by the husband for forty days. It is not sufficient that his wife and family have resided forty days, Rex v. St. George, Southwark (7 T. R. 466), Rex v. South Lynn (5 T. R. 664). Then as to the two periods, the statute 59 G. 3, c. 50, was repealed by the statute 6 G. 4, c. 57, which passed on the 22d of June 1825. The settlement of the pauper was not then completed. In order to gain a settlement at all, the whole period must be under the one statute or the other. The words of the latter

statute are all prospective, consequently the period which was begun under the repealed statute cannot be added to the part under the latter. This rule of construction was adopted on the passing of the first statute, and ought to be applied to this, Rex v. St. Mary-le-Bone (4 B. & A. 684).

[178] If the Legislature had intended to introduce a different principle in this case, the words used would not have been all future and prospective. If the two periods can be connected, all the conditions required by the 6 G. 4, c. 57, which passed on the 22d of June 1825, must be shewn to have existed from that time. That is not so in this case, because the house was not occupied by the party hiring the same. The statute 6 G. 4, c. 57, repealed the statute 59 G. 3, c. 50.; and it is a principle of construction, that the same rules be applied to statutes made in pari materia, Rex v. North Collingham (1 B. & C. 584). Under the 59 G 3, c. 50, it was necessary that the house should be held, and the land occupied, by the person hiring the same, for the term of one whole year at least. Under the 6 G. 4, c. 57, that distinction is abolished; and the words are, "That the house, or building, or land, shall be occupied under such yearly hiring, and the rent for the same actually paid for the term of one whole year at the least." Now, the term "occupied" in this latter statute must have the same meaning as was given to it by the decisions on the 59 G. 3, c. 50; and it was held in several cases, that the term " occupied" in that statute was not satisfied unless the party had the exclusive occupation of the premises. If part was let out in lodgings no settlement could be gained, Rex v. North Collingham (1 B. & C. 578). In that case Abbott C.J. says, "As to the second question, it is to be observed, that a different expression is applied to land and to houses. The house is to be held, but the land is to be occupied: it was probably intended that a party taking lodgers, properly so called, should not be thereby prevented from [179] gaining a settlement." The same principle was adopted in Rex v. Tonbridge (6 B. & C. 88). There Bayley J. says, "It is not in terms found that there was a joint occupation; but as Maynard was to participate in the occupation, we think it must be taken that be did, and if so, the pauper cannot be considered as occupying more than a moiety of the garden." Rex v. Great Bolton (8 B. & C. 771), is to the same effect. [Parke J. There is this difference in the two statutes; in the former, the occupation must be by the party hiring the same. In the 6 G. 4, c. 57, the words "by the party hiring the same" are omitted.] That is so; but the Legislature must have intended those words to be supplied, otherwise the conditions requisite for a settlement might be performed by other persons than the party acquiring the settlement; and this absurdity would follow, that a party might take the premises for a year, and immediately assign them, and himself be absent, and altogether unconnected with premises for the rest of the year, and yet acquire a settlement. Unless these words are understood as part of this statute, the law as to this species of settlement will be thrown back into all the confusion and uncertainty that existed before the passing of the statutes 59 G. 3, c. 50, and 6 G. 4, c. 57, and which the Legislature intended to get rid of. Supposing, therefore, the periods to be connected, still, as the pauper did not exclusively occupy the whole, no settlement could be gained.

Jeremy and Rogers contrà. The intention of the Legislature must be collected from the Act of Parliament. It may be fit to consider what the state of the law was [180] before the 6 G. 4, c. 57, and what alteration was introduced by that statute, particularly with respect to occupation. By the 13 & 14 Car. 2 the term for which the tenement was taken, for which it was occupied (after forty days), or by whom it was actually occupied, was immaterial. The 59 G. 3, c. 50, required that the tenement should be taken for a year, and if it consisted of a house, that it should be held; if of land, that it should be occupied for that period by the person hiring the same. These words in the last part of the sentence apply to every separate branch; but the house need not have been occupied under the original hiring; for the occupation of the same tenement under the different hirings might be connected, Rex v. Stow (4 B. & C. 87), or different tenements might be taken at different times, Rex v. North Collingham (1 B. & C. 578). But the 6 G. 4, c. 57, requires that the occupation should be under the yearly hiring, but not by the person hiring the same. One restriction is substituted for the other. When the 6 G. 4, c. 57, passed the 59 G. 3, c. 50, must be taken as if it never existed, The Bishop's case (12 Coke, 7), Tattle v. Grimwood 43 Bingh. 496). Supposing it never to have existed, the 6 G. 4, c. 59, only requires that the pauper shall rent for a year, and that the premises shall be occupied under