journed sessions to be holden for any division of the country would he sufficient under this act. D. F. Jones, in support of the rule, admitted, that though all the other provisions of the statute 49 G. 3. c. 68. had reference to an extended liability of the reputed father in point of expense, yet the terms of the seventh section were general, "no appeal in any case relating to bastardy." But he contended, that inasmuch as it appeared upon his affidavits that it had been the practice of those sessions to enter the appeal at the next sessions, and to hear it at the subsequent sessions, the prohibitory words of the statute would be satisfied by holding, that the appeal could not be heard and decided at the next general quarter sessions, unless the notices and recognizances were given in time for such sessions. At all events notice and recognizance having been, in fact, given in time for the sessions to be held by adjournment at Spalding for another division of the county, Ulyatt, was entitled to have the appeal received and heard, Rex v. Coyston, 1 Sid. 149. Per curiam. No alleged practice can prevail against the positive words of the act, " that no appeal shall be brought, received, or heard." [*550 The justices, therefore, had no power to enter or receive the appeal. And as to the Spalding sessions, they appear to be only adjourned sessions, whereas the words of the act are," the next general quarter sessions of the peace for the county." The notice and recognizance were clearly too late, and this rule must be discharged. Rule discharged. PATTERSON, on the demise of GRADRIDGE et al, v. EADES. An ejectment brought in an inferior court on a lease executed and sealed on the premises, which were within the jurisdiction of that court, may be removed into this court by certiorari, if there be any ground for believing that it cannot be impartially tried in the inferior court. THIS was an ejectment brought in the court of the mayor, recorder, and bailiffs of the city of Winchester, on a lease executed and sealed on the premises by the lessors of the plaintiff. The defendant having removed the cause by certiorari and return off the file on an affidavit stating the execution of the lease on the premises which lay within the city of Winchester, and that the plaintiff intended to proceed to trial in the court below as soon as the recorder (a barrister), should be present to preside, which was expected to be before the next assizes. The affidavits in answer stated, that the defendant was apprehensive that the cause would not be fairly and impartially tried in the town court, by reason of the deputy town clerk being, as the defendant believed, the attorney of the lessors of the plaintiff, and having the impanelling of the jury. *Jeremy, now showed cause, and relied on the facts stated in the affidavits. [*551 W. E. Taunton, in support of the rule. The distinction is, whether a lease had or had not been sealed on the premises. In the former case, the practice is for the court to award a procedendo, because the land is local property within the jurisdiction of the court below, in the latter not. Runnington on Ejectment, 151, 152. Sellon's Pract., 2d edit. vol. ii. 138., Allen v Burneye, 2 Keble, 119, and Jones v. Davies, 1 B. & C. 143. Besides, the lessors of the plaintiff will be delayed, if the trial of the cause should stand over until the assizes. ABBOTT, C. J. This is a cause commenced in a court of inferior jurisdic tion, and the defendant is entitled to his writ of certiorari. The rule relied on is only to be found in Sellon's Practice; and that book, though a very valuable one, has been published too many years to be relied on as being an authority at the present day in all cases. The defendant's apprehension of not having a fair trial is a sufficient ground for his suing out a certiorari. The present case is essentially different from that of Jones v. Davies. HOLROYD, J. The writ of certiorari is a matter of course; it is like a re. fa. lo. in replevin, and I cannot see why an ejectment should not be remov able as well as a replevin. At any rate, the defendant's apprehension is a sufficient ground to justify us in retaining the cause. Rule discharged. *552] *WEATHERBY v. GORING. The court will not, before issue joined, entertain a motion to change the venue in an action on a specialty. COVENANT on an indenture of apprenticeship. Before plea, Wightman moved to change the venue from London to Lancashire, on an affidavit that the cause of action, if any, arose in that county, and that all the witnesses resided there. Cresswell, showed cause and contended, that the defendant could not be entitled to change the venue, without making an affidavit of merits; for otherwise, it would not appear that he had any defence, or any witness to examine. Per curiam, The motion was made too soon. Until issue has been joined, the court cannot tell whether the defendant intends to sit up any defence to the action, and he cannot be entitled to change the venue in an action on a speciality, unless it appears clearly that he will have some witnesses to examine on the trial of the cause. Rule discharged. *553] *INWOOD v. ROBERT RICHARD MAWLEY, CHARLES By the statute 13 Car. 2. c. 2, s. 3, upon an appearance for the defendant by attorney of the term wherein the process is returnable, unless the plaintiff declare before the end of the term then next following after appearance, judgment of non pros. for want of a declaration may be entered against him: Held, that the statute contemplated such an appearance as would entitle the plaintiff to declare; and, therefore, where a latital against three defendants having issued, returnable on the last day of Trinity term, but only one of the defendants being served, an alias issued returnable on the last day of Michaelmas term, and one other of the defendants was served with a copy. In Hilary term, following a pluries latitat issued, returnable on the last day of Hilary term, but which was not served on the third defendant, and another pluries issued returnable on the 19th of May, in Easter term, a copy of which was served on the third defendant. An appearance was entered for all the defendants in Easter term, and the plaintiff not having declared in Trinity term, the defendant signed judgment of non-pros: Held, that such judgment was regular, within the stat. 13 Car. 2, c. 2, s. 3. A RULE nisi had been obtained by Comyn, for setting aside the judgment of non-pros. for irregularity. It appeared that a latitat was issued on the 17th Y of June, 1823, returnable on the last day of Trinity term; and that a copy was served on the defendant Tress, on the 18th of June, but not upon the other defendants. On the 24th of November, 1823, an alias latitat, issued against the defendants returnable on the last of Michaelmas term; and on the 25th of November, a copy of this alias latitat, was served on the defendant Robert Richard Mawley, but the plaintiff's attorney could not effect any service thereof, on the defendant Charles Mawley, before the return. On the 9th of February, 1824, a pluries latitat issued against the defendants returnable on the last day of Hilary term, which the plaintiff's attorney could not succeed in serving upon Charles Mawley, in consequence of his absence from London; and another pluries writ, issued on the 12th of February, 1824, against the defendants, returnable on the 19th of May, in Easter term, last past, a copy of which last writ was served upon Charles Mawley, on the 10th of May. An appearance was entered for all the defendants in Easter term, which ended on the 31st of May. Trinity term, ended on the 7th [*554 of July, and on the 9th of July, the judgment of non-pros. was signed. E. Lawes, showed cause. There was no appearance upon which the plaintiff could declare until Easter term, because, till that time, all the defendants were not in court. In Brandon v. Henry, 3 B. & A. 514, the defendant was arrested on a bill of Middlesex, on the 22d of November, and special bail were put in in Michaelmas term, and perfected in Hilary term, and judgment of non-pros. being signed in Hilary vacation, was held to be irregular, and the court said that the plaintiff was guilty of no laches in not declaring in Michaelmas term, as the defendant was not then fully in court. All the defendants were not in court until Easter term. Now the statute must have contemplated such an appearance of the defendants as would entitle the plaintiffs to declare against them. Comyn, contra. The first writ being joint, and no appearance entered of the term of which such writ was returnable, the statute of the 13 Car. 2, stat. 2, c. 2, s. 3, does not apply, and the judgment of non-pros. cannot be entered. That statute enacts, that "upon an appearance entered for the defendant by attorney, of the term wherein the process is returnable, unless the plaintiff shall put into the court from whence the process issued his declaration against the defendant, before the end of the term next following after appearance, a nonsuit for want of a declaration may be entered against him." *Now here, no appearance has been entered for the defendants, of the [*555 term when the first process was returnable, and therefore, the statute does not apply to this case. In Holmes v. White, cited in Prigmore v. Bradley, 6 East, 314, the Master reported that a non-pros. could never be signed, unless bail were filed in the term in which the writ was returnable. ABBOTT, C. J. I think that the appearance directed by the statute to be entered for the defendant must be an available appearance. In Brandon v. Henry, the court seemed to consider that the plaintiff was entitled to one clear term to declare in after the defendant was fully in court. Here, the appear. ance was entered for all the defendants in Easter term. There was no appearance before, so as to entitle the plaintiff to declare. The plaintiff could not declare until that time, and he was bound to declare only in Trinity term. The judgment of non-pros. was not signed until after Trinity term; it is therefore regular, and this rule must be discharged. Rule discharged. *ANDREW DUNCAN v. HENRY THWAITES, et al. Declaration for a libel stated, that the plaintiff was taken before a justice to answer a charge of having assaulted A. B., and that the said charge was proceeded upon, and, in part, heard, and witnesses were examined concerning the same, of which A. B. was one, and the further examination was adjourned to a future day; that at the time of publishing the libel no bill of indictment had been preferred against the plaintiff in respect of the charge, nor any trial had, and the subject matter of the charge was undetermined, yet that defendants, intending to hinder and obstruct the course of justice, and to prevent the plaintiff from having a fair trial, maliciously published in a newspaper, on the 10th of July, the following libel: "One A. D., of &c., underwent a long examination on a charge of having indecently assaulted a female child only thirteen years old. The evidence of the child herself, and her companion, A. D's own cousin, displayed such a complication of disgusting indecencies, that we cannot detail it. It is right, however, that we should say that the accused denied the principal facts alleged, and that the child. ren made some slight variation in their evidence." The same count charged the defendants with publishing another libel on the 18th of July, stating that A. D., who was charged a week ago with attempting to violate the person of a girl of thirteen, was again examined, but no further evidence was heard, and he was ordered to enter into a recognizance for 2007., and all the witnesses were bound over to prosecute.' There were other counts setting out the libels, but making no reference to any proceeding before a magistrate. Plea, first, not guilty; secondly, that on, &c., at, &c., before J. H., justice, the plaintiff did undergo a long examination, &c., (repeating the libel) and that afterwards, to wit, on the 15th of July, at the public office, Bow street, the plaintiff was again examined, &c., (repeating the second libel.) The plea then stated that the supposed libels contained no other than true, fair, just, and correct report and account of the proceedings which took place on the 8th and 15th days of July, respectively, at the said public office, Bow street, and were published by the defendants, with no scandalous, defamatory, unworthy, or unlawful motive whatever, and that the proceedings therein reported took place publicly and openly at the police office, and the reports or accounts thereof composing the said supposed libels, were printed and published in the said newspapers as public news of such public proceedings, and with no other intent, and for no other object or purpose whatsoever: Held, upon demurrer, that this plea was bad, inasmuch as it was no justification of the publication of slanderous matter, that it contained a correct report of the proceedings which took place in the course of a preliminary inquiry before a magistrate. The third plea was, that the several matters and things in the supposed libels contained were true: Held, that this plea was bad, because it was uncertain whether it meant that the report in the newspaper was a true report of the proceedings, or that the facts mentioned in it were true; and if the latter were the meaning, then the plea was much too general. The fourth plea to the whole declaration stated, that, the supposed libel was nothing more than a fair, true, and correct report of proceedings which took place publicly and openly before the justice at the public office: Held, that this plea was bad, because it was no answer to those counts which did not allege that any proceedings had taken place before a justice. The fifth plea, which was pleaded to the counts containing the libel of the 10th of July, was, that the plaintiff on the 8th of July, was before the justice, and underwent a long examination, as in the second plea, and upon that occasion the mother of A. C. deposed as follows. (The plea then set out the depositions verbatim, and by them it appeared that the libel complained of did not contain a full, fair, and accurate report of what passed at the police office, and on that ground, it was held that this plea was clearly bad.) The sixth plea, which was pleaded to the libel of the 15th of July, alleged that the plaintiff was examined at the police office, and ordered to enter into recognizances, as in the libel mentioned: Held, that this plea was good, inasmuch as the publication of the 15th of July, contained no statement of the evidence, nor any comment upon the case, but merely stated the result of what the justice had thought fit to do. The seventh plea was, in substance, the same as the fifth, and held bad, for the same reaThe eighth being similar to the sixth, was held good. sons. DECLARATION, stated that plaintiff was a person of good fame, and that he had not been guilty, or until the time of the committing of the said several *557] *grievances by the defendants as thereinafter mentioned, been suspected to have been guilty of indecently assaulting female children, or of attempting to violate the persons of female children, or of attempting feloniously to ravish and carnally know any female against her will, or any other such crime; and that the plaintiff, before and at the time of the committing of the said several grievances by the several defendants as thereinafter mentioned, was and still is a solicitor of the High Court of Chancery. By means of which said several premises, the plaintiff had not only obtained the good opinion, &c., but also, in the way of his aforesaid profession, was honestly acquiring great gains, &c., to wit, at, &c. And that before the printing and publishing the respective false, scandalous, malicious, and defamatory libels in this first count, to wit, on the 8th of July, 1823, to wit, at, &c., the plaintiff was taken and brought before Thomas Halls, Esq., being then and there one of the justices of our lord the present king for Westminster and Middlesex, to answer a charge, complaint, and accusation against the plaintiff, for having assaulted Ann Chandler, and behaved in an indecent manner towards her; and the plaintiff being so taken and brought before the said justice, the said charge was, to wit, on the 8th of July, in the year aforesaid, to wit, at, &c., proceeded upon, and in part heard and examined into before the said justice, and certain witnesses were heard and examined concerning the said charge, of which said witnesses so heard and examined the said Ann Chandler was one, and the further inquiry and *examination concerning the [*558 said charge was adjourned by the said justice to a future day; but at the time of printing and publishing the false, scandalous, malicious, and defamatory libel in this count mentioned, no bill of indictment had been preferred against the plaintiff for or in respect of the said charge, nor had any trial of the plaintiff by a jury of the country been had or taken place for or in respect of the said charge, and the subject matter of the said charge was then undecided and undetermined, to wit, at, &c. ; yet the defendants well knowing the premises, but contriving and intending wrongfully, unlawfully, and maliciously to hinder and obstruct the due course and proceedings of the administration of law and justice, and to hinder and prevent the plaintiff from having a fair and impartial trial in respect of the said charge, and to influence, inflame, and prejudice the minds of the liege subjects of our said lord the king against the plaintiff, and to make it be believed that he, the plaintiff, had been, and was guilty of having indecently assaulted a female child, and to injure the plaintiff in his aforesaid good name, fame, and credit, and also in his said profession and business of a solicitor, and to subject him to the pains and punishment to which persons, who are guilty of indecently assaulting females, are liable by the laws of this kingdom, and to vex, harrass, oppress, impoverish, and ruin him, the plaintiff, heretofore, and before any bill of indictment was preferred against the plaintiff for the said supposed offence, and before any trial of the plaintiff was had by a jury of the country for the said supposed offence, and whilst the subject matter of the said charge was undecided and undetermined, to wit, on the 10th of July, 1823, to wit, at, &c., unlawfully, wrongfully, maliciously, and injuriously did print and publish, and cause to be printed and [*559 published, in a certain newspaper called the Morning Herald, a certain scandalous, malicious, and defamatory libel, of and concerning the plaintiff, and of and concerning the said charge, and of and concerning the said proceeding upon, and in part hearing, investigating, and examining of the said charge before the said justice, containing therein divers scandalous, malicious, and defamatory matters and things of and concerning the plaintiff, and of and concerning the said charge, and of and concerning the said proceeding before, and in part hearing, investigating, and examining the said charge before the said justice, according to the tenor and effect following: that is to say, "One Mr. Andrew Duncan, of New Inn, (meaning the said plaintiff,) underwent a long examination on a charge of having indecently assulted a female child of only thirteen years old, (meaning the said Ann Chandler,) the evidence of the child herself, (meaning the said Ann Chandler,) and her companion Mr. Duncan's (meaning the said plaintiff's) own cousin of the same age, displayed such a complication of disgusting indecencies that we cannot detail it. It is right, however, that we should say the accused (meaning the said plaintiff) denied the principal facts alleged, and that the children made some slight variation in their evidence. Eventually the accused (meaning the said plaintiff') was admitted to bail himself in 1007., and two sureties in 50l. each for his ap |
