result of its formation, nothing as to the practicability of ascertain

*106] ing, after its formation, by any marks or limits or quantity previously existing and known, or by measure to commence and be taken from such marks, or with reference to such quantity, how much is now land, that once was sea. It is clear upon the evidence, that the land has been formed slowly and gradually in the way mentioned in the plea. The argument was upon the word "imperceptibly ;" and for the crown, two passages were cited from Sir Matthew Hale's treatise De Jure Maris, wherein that very learned writer speaks of land gained by alluvion, as belonging generally to the crown, unless the gain be so insensible that it cannot be by any means, according to the words of one of the passages, or by any limits or marks, according to the words of the other passage, found that the sea was there; idem est non esse et non apparere. In these passages, however, Sir Matthew Hale is speaking of the legal consequence of such an accretion, and does not explain what ought to be considered as accretion insensible or imperceptible in itself, but considers that as being insensible, of which it cannot be said with certainty that the sea ever was there. An accretion extremely minute, so minute as to be imperceptible even by known antecedent marks or limits at the end of four or five years, may become, by gradual increase, perceptible by such marks or limits at the end of a century, or even of forty or fifty years. For it is to be remembered that if the limit on one side be land, or something growing or placed thereon, as a tree, a house, or a bank, the limit on the other side will be the sea, which rises to a height varying almost at every tide, and of which the variations do not depend merely upon the ordinary course of nature at fixed and ascertained periods, but in part also, upon the strength and direction of the wind, which are different almost from 107] day to day. And therefore, these passages from the work of Sir Matthew Hale are not properly applicable to this question. And considering the word "imperceptible" in this issue, as connected with the words "slow and gradual," we think it must be understood as expressive only of the manner of the accretion, as the other words undoubtedly are, and as meaning imperceptible in its progress, not imperceptible after a long lapse of time. And taking this to be the meaning of the word "imperceptible," the only remaining point is, whether the accretion of this land might properly upon the evidence be considered by the jury as imperceptible. No one witness has said that it could be perceived, either in its progress, or at the end of a week or a month. One witness, who appears twice to have measured the land, says, that within the last four years he could see that the sea had receded, but he could not say how much; the same witness said, that it certainly had receded since he measured it last year, but he did not say how much; and, according to his evidence, the gain in a period of twenty-six or twenty-seven years, was on the average about five yards and a half in a year. Another witness speaks of a gain of from one hundred to one hundred and fifty yards in fifteen years; a much greater increase than that mentioned by the first witness; and this second witness adds, that during the last five years there had been a visible increase in some parts of from thirty to fifty yards. Upon the evidence of this witness, it is to be observed that he speaks very loosely, the difference between one hundred and one hundred and fifty in fifteen years, and between thirty and fifty in five years, being very great. The third witness said there had been some small increase in every year. The fourth witness said, the swarth increases every year very gra*108] dually, and perhaps, it had gathered a quarter of a mile in breadth in some places within his recollection, or during the last fifty-four or fifty-five years, and in some places it had gathered nothing. And this was the whole evidence on the subject. We think the jury might, from this evidence, very reasonably find that the increase had not only been slow and gradual, but also imperceptible, according to the sense in which, as I have before said, we VOL. X.-8

think that word ought to be understood. And, consequently, we are of opinion, that a new trial ought not to be granted, and the rule therefore, must be discharged. Rule discharged.

ASPINALL v. STAMP et al.

Where a defendant was by a Judge's order allowed to go to trial upon certain terms, upon payment to the plaintiff of a certain sum of money, and the costs incurred up to the date of the order; and the plaintiff consented to the trial proceeding on those terms before the costs had been paid: Held, that the defendant having obtained a verdict, was bound to pay those costs, and could not set them off against those afterwards taxed for him on the postea.

THIS was an action for an alleged trespass in seizing certain goods and chattels alleged to be the property of the plaintiff. The venue was laid in Yorkshire. The defendants justified under the 13 Eliz. c. 7, and 1 J. 1, c. 15, as assignees of one James Shaw, a bankrupt. But afterwards defendants entertaining doubts as to whether all the goods were the bankrupt's, made an application at a judge's chambers, whereupon the Lord Chief Justice made an order, "That upon payment of the sum of 20., together with the costs of the cause up to the date of the order, the defendants should be entitled to a

verdict in their favor, unless the plaintiff should, at the *trial, prove [*109

that the value of the goods enumerated on the back of the order, exceeded the sum of 207., or should prove a trespass as to entering the dwelling house or taking some of the other goods mentioned in the declaration." This order was served on the plaintiff's attorney, on the 19th of March last. The commission day at York was the 20th. About half an hour after the order was served, the defendant's attorney tendered the sum of 20l. to the plaintiff's attorney, and at the same time observed, that the amount of the costs could not then be known, but that he would pay them as soon as it was ascertained. The cause was tried at the York assizes, and the plaintiff failing to give the proof mentioned in the order, a verdict was found for the defendants. On the 17th of April, the costs payable to the plaintiff were taxed at 467. 13s., and the costs for the defendants were taxed at 132/. 10s.

Parke, moved that the defendants might be at liberty to deduct the interlocutory costs from those which were taxed for them, instead of paying them to the plaintiff, and cited Howell v. Harding, 8 East, 362. The plaintiff's attorney might have insisted upon having them paid before the cause was tried; but as he did not insist upon his right then, he cannot now resist this application.

Alderson, showed cause in the first instance, and contended that the payment of the costs mentioned in the order, was a condition precedent to the defendants' being entitled to go to trial on the advantageous terms which the order gave them.

[*110

*Per curiam. These costs were payable on a special order, and the payment was certainly a condition precedent, which ought to have been performed before the defendants could have the benefit of the order. Rule refused.

HUNTER v. SIMPSON et al.

In K. B. a defendant served with a copy of process by original, has eight days from the quarto die post of the return of the process to enter an appearance.

A RULE was obtained, calling upon the attorney for the defendants to show cause why he should not enter an appearance for the defendants, pursuant to his undertaking. On the 14th of June, the defendants' attorney received copies of a special capias against the defendants, returnable on that day, and gave an undertaking to appear for them. This rule was obtained on the 23d of June.

Chitty, showed cause, and contended that it was not necessary to enter an appearance until the 26th of June, and cited the rule laid down in Tidd's Prac. 246, 6th ed., that the appearance is to be entered within eight days after the quarto die post of the return of the process.

Archbold, contra. The practice adopted in this court is correctly stated, but that practice is wrong: the writ was returnable on the 14th of June, and the time allowed for the entering of appearances by 5 G. 2, c. 27, s. 1, is eight days from the return, not from the day of appearance. That day,

usually called the quarto die *post, was, at common law, a day granted

*111] ex gratia curiæ. The statute 12 G. 1, c. 29, first gave the common

appearance, and that enacted that it should be entered within four days from the return. The same expression is adopted in the 5 G. 2, c. 27, s. 1. Had the legislature intended to give the longer time contended for on the other side, they would have directed that the computation should be made from the quarto die post, and not from the return. The Court of C. P. have put that construction on the act which the plaintiff now contends for.

ABBOTT, C. J. The whole question is, what is meant by the expression, "return of the writ." The Court of C. P. have held it to mean the very day; we have held it to be, the quarto die post. Which construction is best I do not now pretend to decide; but we cannot make this rule absolute against a person who has not yet neglected to perform his undertaking according to the rule of practice prevailing in this court. The motion was made too soon, and the rule must be discharged, but without costs.

Rule discharged without costs.

*112]

*THORNE et al. v. R. HUTCHINSON et al., Bail of
J. HUTCHINSON.

Where a defendant was duly rendered after judgment in discharge of his bail, but notice thereof was not given until after execution had been regularly issued and executed against the bail, the court set aside the execution, and entered an exoneretur on the bail-piece on payment of costs.

CROWDER, had obtained a rule to set aside the execution issued and executed against the defendants, and enter an exoneretur on the bail-piece, on the ground that the defendent, in the original action was rendered in time in discharge of the bail.

Archbold, showed cause, and contended, that the application was too late, execution having been executed, and notice of the render not having been given until after that time. His affidavit stated, that final judgment was signed in the original action on the 11th of June, 1823. On the 30th of

March, 1824, a ca. sa. into Middlesex was issued against the defendant, and returned non est invent. In Euster term, which commenced on the 16th of April, writs of sci. fa., and alias sci. fa. against the bail were lodged with the sheriff of Middlesex, and returned. On the 28th of May, a non omit. test. fi. fa. was issued into Surrey, under which the goods of R. Hutchinson were seized. Two days after the seizure the attorney for defendants gave notice (and the fact was so) that the defendant in the original action was surrendered in discharge of his bail on the 17th of April preceding.

Per curiam. The defendant in the original action having been rendered in time, the execution against the bail must be set aside, and an exoneretur entered. But as they neglected to give notice of the render, they must pay the costs which have been incurred.

Rule absolute on payment of costs.

*MAY, Gent., One, &c. v. BROWN.

[*113

In an action for a libel, the defendant cannot, either in bar of the action or in mitigation of damages, give in evidence other libels published of him by the plaintiff not distinctly relating to the same subject.

Declaration stated that plaintiff was an attorney, and had been employed as vestry clerk in the parish of A., and that whilst he was such vestry clerk, certain prosecutions were carried on against B. for certain misdemeanors, and in furtherance of such proceedings, and to bring the same to a successful issue, certain sums of money belonging to the parishioners were appropriated and applied to the discharge of the expenses incurred on account of the said proceedings, yet defendant intending, &c., to injure the plaintiff in his profession of an attorney, and to cause him to be esteemed a fraudulent practiser in his said profession and in his office of vestry clerk, and to cause it to be suspected that the plaintiff had fradulently applied money belonging to the parishioners, on, &c.. at, &c., falsely and maliciously published of and concerning the plaintiff, and of and concerning his conduct in his office as vestry clerk, and of and concerning the matters aforesaid, the libel, &c. It appeared on the production of the libel at the trial, that the imputation was, that the plaintiff had applied the parish money in payment of the expenses of the prosecution after it had terminated: Held, that this was no variance, because it did not alter the character of the libel, the fraud imputed to the plaintiff being the same, whether the money was misapplied before or after the proceedings had terminated; and that the allegation, that the libel was published of and concerning the matters aforesaid, did not make it necessary to prove precisely that the libel did relate to every part of the matter previously stated.

DECLARATION stated that the plaintiff, before the publication of the libel thereinafter mentioned, had long been an attorney, and in that profession had been employed by the parishioners as vestry clerk in the parish of St. Matthew, Bethnal Green, and that, whilst the plaintiff was such vestry clerk as aforesaid, certain prosecutions were preferred and carried on against one Joseph Merceron, for certain misdemeanors before then alleged to have been committed by him; and in furtherance of such proceedings, and to bring the same to a successful issue, certain sums of money belonging to the parishioners of the parish of St. Matthew, Bethnal Green, were appropriated and applied to the discharge of the said expenses and law charges incurred on account of the said proceedings, to wit, at, &c.; yet the defendant, well knowing, &c., but contriving, &c. to injure plaintiff in his said business and profession of an attorney, and to cause him to be esteemed and taken to be a dishonest, corrupt, and fraudulent practiser in his said profession, and in his office and situation as vestry clerk as aforesaid, and to be a person not fit to be trusted therein, and to deprive him of the same, and to cause it to be [*114 suspected and believed, that the plaintiff had fraudulently and clandestinely appropriated and applied certain sums of money, of and belonging to the said

parishioners, theretofore, to wit, on, &c., at, &c., falsely, wickedly, and maliciously did compose, write, and publish in a newspaper called the Sunday Monitor, of and concerning the plaintiff, and of and concerning his conduct in his office as vestry clerk as aforesaid, and of and concerning the matters aforesaid, a certain malicious and defamatory libel, containing, amongst other things, the defamatory matters following, of and concerning the plaintiff, and of and concerning his conduct as such vestry clerk as aforesaid, and of and concerning the matters aforesaid, that is to say: "St. Matthew, Bethnal Green. At a vestry meeting held in the parish of St. Matthew, Bethnal Green, on Wednesday, the 29th of March last, the following resolutions were confirmed, and ordered to be printed in the Sunday Monitor. It is worthy of remark, that the circumstances to which the resolutions here inserted relate, took place shortly after the trial of Mr. Merceron (meaning the aforesaid Joseph Merceron,) though only very recently discovered; and the present Lord Chief Justice on that occasion, in his charge to the jury, expressly declared, that although notice had been given in the church, and although the vestry voted the payment of Mr. Merceron's law expenses, yet, if the jury thought that he had not given all the publicity to the transaction which it was in his power to give, then the charge of clandestinity was established. Mr. May, (meaning the plaintiff,) the vestry clerk, and Mr. Wrightson, were

then present as principal witnesses against Mr. Merceron, as *were

*115] also Mr. Bumford, and Mr. Talbot, two of the committee of his pro

66

secutors." And in a certain other part of which libel were contained the false, scandalous, malicious, and defamatory matters following of and concerning the plaintiff, and of and concerning his said duty and office of vestry clerk, and of and concerning other his legal and professional duties, and of and concerning the matters aforesaid, that is to say: Resolved, that a committee having been appointed on the 29th of April, 1818, to proceed with certain prosecutions against Mr. Merceron, (meaning the said Joseph Merceron,) and to raise by subscription a fund to defray the future law expenses consequent thereupon, the said committee did, on the 20th of August following, make a report in writing to the vestry, which stated that they had not raised any money by subscription to defray the future law expenses which they had nevertheless incurred; and that the said law charges consisted of two bills of Messrs. Knight & Freeman, viz. one amounting to 313l. 19s. 7d., and the other to 3141. 38., making together 6281. 2s. 7d. In consequence of such report several persons (specified by name in the declaration) and May, the vestry clerk, (meaning the plaintiff) were appointed to examine into the identity and accuracy of the said bills; and the aforesaid persons (thereby meaning the said persons so appointed as aforesaid, including the plaintiff,) did pass the amount of the said bills in three specific sums for payment, notwithstanding they well knew at the time that the real and true amount of the law and other expenses which the committee had altogether incurred, amounted to no more than 503l. 28. 7d., instead of 6281. 2s. 7d., of which only 2431. 28. 8d. ought to have been taken out of the poor rate fund, whereas 6281. 2s. 7d. was actually *taken This vestry, therefore, deem the conduct of *116] the aforesaid persons highly censurable, and they, in the most unqualified terms, censure them accordingly; but as respects the conduct of Mr. James May, the vestry clerk, (meaning the plaintiff) and legal adviser of this parish, who not only concurred in this transaction, but actually furnished a bill, paid before the vestry knew of the prosecutions, and incorporated it in his own hand writing with the unpaid law expenses of the committee; he also signed his name, as testifying to the truth of the printed receipts and disbursements of the parish in which were inserted the two fictitious bills under the denomination of Messrs. Knight & Freeman's bills; as also a charge of upwards of 6301. for weekly payments to outdoor poor, when they never received a farthing of it, and of which 1137. 9s. 3d. was expended by himself, (mean

F