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precisely at the time when it was alleged. So here, it is wholly immaterial, with respect to the character of the slanderous matter imputed by this libel, whether the charge be, that the money was applied before or after the prosecution was terminated. For these reasons I am of opinion, that the present rule must be discharged.

LITTLEDALE, J. I think that the evidence was properly rejected. Upon the plea of not guilty the only question was, whether the defendant had published the libel in question. Upon that issue, therefore, it was not competent to the defendant to give in evidence other libels published of him by the plaintiff. That was no part of the issue raised upon this record. I think that ther could not be received as evidence to mitigate the damages. If they were received in evidence to mitigate damages, see what the situation of the plaintiff would be; he has no notice that the libels will be offered in evidence; he has no means, therefore, of disproving the fact of having published them. The defendant may come prepared to prove that the plaintiff did in fact publish them. If the plaintiff had notice that such proof was intended to be given, *134] he might be prepared with evidence either to show that he never published them at all, or that he was justified in publishing them. The plaintiff, by whom they are alleged to have been published, ought to be in as good a situation as if he himself was a defendant in an action brought against him on those libels. That, however, is not the only inconvenience. For this would not only be a set-off of libels, but a great deal more; for in a common set-off the debt is extinguished. If the defendant, by a set-off, reduce the debt claimed of him, that demand so proved, and of which the defendant has had the benefit, can never be claimed again. But in this case, the libels which were offered in evidence, as published by the plaintiff, would go to reduce the damages, and yet the defendant might afterwards bring an action against the plaintiff for publishing those very libels; and although the plaintiff, in conse quence of those libels having been received in evidence against him, has been prevented from getting more than 10. damages, when he otherwise would have been entitled to 1001., still that would not operate to estop the defendant from bringing an action, as in the case of a common set-off. At common law, a set-off is not allowable at all; and even where it is allowable by the act of Parliament, the plaintiff always has previous knowledge of what the set-off is to be, either by plea or by notice. So that if the evidence were admitted in this case, the party would be in a worse situation in that respect than the defendant in a common case of set-off of a debt. If this evidence were admissible, the defendant in an action for an assault, would, upon the same principle, be entitled to give in evidence that, two or three months before, the plaintiff had assaulted him. I think, therefore, that this evidence was properly *135] *rejected, both on the ground that a plaintiff in such a case has no notice of the intended defence, and that it would produce great inconvenience, by leading to a multiplicity of inquiries.

I am of opinion, also, that there is no variance. In an action for a libel it is necessary in the declaration to show the libel, the time at which it was published, and that it relates to the plaintiff. If, on the face of the libel the plaintiff is mentioned by name, or is described as filling a particular character, it is not necessary to show by averment that the libel relates to him individually, or in that particular character. In this case, therefore, in order to maintain this action, no averment was necessary, because the plaintiff was described in the libel as Mr. May, vestry clerk. But, if a party bringing an action for a libel wishes to show that he sustained additional injury in respecɩ of a particular character which he filled, or in respect of other circumstances entitling him to damages, then it is necessary to show by averment those circumstances, or that he filled that character, in order to entitle himself to greater damages, upon account of the discredit thrown on him in that character. Now here the plaintiff does claim damages in respect of the injurious

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imputation cast upon him in his character of vestry clerk; for the declaration states, that whilst the plaintiff was such vestry clerk as aforesaid, prosecutions were carried on against Merceron; and in furtherance of such proceedings, and to bring the same to a successful issue, monies were appropriated and applied to the discharge of the expenses and law charges incurred on account of the proceedings. He makes this averment to connect himself in his character of vestry clerk with some part of the libel, and if he *seeks [*136 to recover damages in respect of his character as vestry clerk, he must prove that allegation, but if he does not prove it, it does not prevent him from recovering damages in respect of the injury sustained in his individual capacity. The declaration then goes on to describe the tendency of the libel, or the intention with which the defendant published it. It states, that the defendant, "intending to deprive the plaintiff of his good name, and to injure him in his business and profession of an attorney, and in his office of vestry clerk, and to cause him to be esteemed a fraudulent practiser in his said profession of an attorney, and in his said office as vestry clerk, and to be a person not fit to be trusted therein, and to deprive him of the same, and to cause it to be suspected and believed that the plaintiff had fraudulently and clandestinely appropriated and applied certain sums of money belonging to the parishioners, published the libel;" the character of the libel, therefore, of which the plaintiff complains, is one, the tendency of which is to injure him in his individual character, in his character of attorney and vestry clerk, and to cause it to be suspected that he had fraudulently applied money belonging to the parish. The declaration then goes on to say, that the defendant published the libel of and concerning the plaintiff, and of and concerning his conduct in his office as vestry clerk, and of and concerning the matters aforesaid. Now these latter words, of and concerning the matters aforesaid," connect the libel afterward set out with the previous averments, so far as they are calculated to show that the libel is of the particular defamatory character. I think that the plaintiff, therefore, was only bound to allege and prove a libel of that character, viz. a libel, charging him with having fraudulently applied *mo[*137 ney belonging to the parishioners. It has been urged, that it was necessary in this case to prove every word contained in the previous averments, because the allegation that the libel was "of and concerning" such and such things amounted to a specific description of the libel; but I think that it does not amount to a specific description of the libel, but to a description of the nature of the injury the plaintiff has sustained. It seems to me, that when the declaration alleges the libel to be published "of and concerning the plaintiff, and of and concerning his conduct as vestry clerk, and of and concerning the matters aforesaid," that, reddendo singulo singulis, it may be considered in the same light as if the words "of and concerning" had followed each of the previous averments. If, therefore, the declaration had stated that certain prosecutions had been preferred against Merceron, and in furtherance of the proceedings, and to bring the same to a successful issue, money belonging to the parishioners had been applied in discharge of the expenses, and it had then been averred that the libel was published of and concerning the matters aforesaid; I think that the latter words would not be applicable to all the subject-matter recited in the previous averment, but only to so much of it as was material to show the libel to bear the defamatory character ascribed to it in the declaration. The charge in the libel is, that parish money was improperly applied. It is wholly immaterial whether it was applied while the proceedings were in progress or after they had terminated. That term does not form any ingredient in the quality of the slander, nor can it in any degree alter the nature of the injury sustained by the plaintiff. In The King v. Horne, the averment was, that the libel was published of and concerning the king's government and the employment of his troops;" [*138 that was one entire proposition, for the libel was not of and concern

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ing the government, except so far as it related to the act of governmet exercised by the troops. It was not of and concerning the king's troops individually, but as acting on behalf of the government, it was, therefore, an entire proposition, and the allegations were not divisible; but here they are perfectly distinct. In Peppin v. Solomons, 5 T. R. 496, which was an action ou a policy of insurance, the declaration stated, that after the making of the policy the ship sailed. The evidence was, that she sailed before; but it was held to be no variance, because it was quite immaterial whether she sailed before or after the making of the policy. So here, it was quite immaterial whether the money was appropriated whilst the proceedings were in progress against Mr. Merceron, or after they had terminated. I am, therefore, of opinion, that the averment did not require proof applicable to the whole of the allegation; and, secondly, that if such proof was necessary, it has been given upon the only material point upon which the question arose.

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Declaration for a libel stated that the plaintiff was an attorney, and that the defendant, intending to injure him in his good name, and in his said profession of an attorney, published a libel of and concerning the plaintiff, and of and concerning him in his said profession. At the trial, the plaintiff failed in proving that at the time of the publication of the libel he was an attorney: Held, that this was not a fatal variance between the allegation and the proof, the words of the libel being actionable, although not used with reference to the professional character of the plaintiff.

+ Lewis v. Walter.-In this case the declaration alleged that the plaintiff was an attor ney, and that the defendant, intending to injure him in his good name, and also in his business of an attorney, published the libel of and concerning the plaintiff, and of and concerning him in his said business or profession. At the trial before Abbott, C. J., at the Londoa sittings after Michaelmas terin, 1822, the plaintiff merely proved that he was admitted an attorney on the 5th of July, 1813. He failed in proving that he had either taken out a certificate in the year 1819, (the libel having been published in that year.) or that *139] he had during that time, practised as an attorney. The Lord Chief Justice was of opinion, that as the allegation in the declaration was not merely that the plaintiff had been admitted as an attorney, but that the mater published of him by the defendant was of and concerning him in his business and profession of an attorney, it was necessary for him to prove that he was an attorney at the time of the publication; and the plaintiff was nonsuited. A rule nisi for setting aside the nonsuit was obtained in the following term, upon the ground that the allegation in the declaration was divisible, and that it was sufficient for the plaintiff to prove that the libel was published of and concerning him in his individual capacity, the words being actionable, although not used with reference to his professional character. The point was fully discussed in Trinity term, 1823; and it was contended by the defendant's counsel that the allegation was descriptive of the libel itself, and that there was consequently a variance between the allegation and the proof. No judgment was pronounced at that time; but in the course of this term. Abbott. C. J., after stating the facts of the case, said that it must be governed by the decision in May v. Brown, and that the rule for setting aside the nonsuit, must therefore be made absolute.

AUSTIN v. DEBNAM.

Where there are mutual dealings between two parties, and items known to be due on each side of the account, an arrest for the amount of one side of the account, without deducting what is due on the other, is malicious, and without probable cause.

CASE for a malicious arrest. The declaration alleged, that defendant, on, &c., at, &c., not then having any reasonable or probable cause of action whatsoever against the plaintiff, to the amount of the sum of money for which he maliciously caused him to be arrested as thereinafter mentioned, maliciously caused and procured a bill of Middlesex, to be issued out of the Court of King's Bench, commanding the sheriff of Middlesex, to arrest the plaintiff, and falsely, and without having any reasonable or probable cause of action whatever against the plaintiff, to the amount of 157. or upwards, caused and procured the said bill of Middlesex, to be, and the same was indorsed for bail for 237. And the said defendant afterwards, to wit, on &c., at, &c., without any reasonable or probable cause of action *whatsoever against the [*140 said plaintiff, to the amount of 157. or upwards, maliciously caused the plaintiff to be arrested, and kept imprisoned until he gave a bail bond; and plaintiff did afterwards, to wit, on, &c., at, &c., pay to the defendant the sum of 51. 58., and also the sum of 37. 13s. 6d. in full discharge of the said suit; which said sum of 5/. 5s. defendant accepted of and from the plaintiff as the amount of the debt in the suit, and the sum of 37. 13s. 6d. for the costs. And such proceedings were thereupon had in the said suit, that it was ordered by Bayley, J., that all proceedings in the said suit should be stayed, which order was afterwards made a rule of court; and the said action was, and is by means of the said premises, and according to the course and practice of the court, wholly discharged, ended, and determined. By means of which said premises plaintiff was injured, &c. (in the usual form.) Plea, general issue. At the trial before Abbott, C. J., at the London sitting, after last Trinity term, the affidavit to hold to bail, and the bill of Middlesex, indorsed for bail for 231. were proved, also the arrest and the execution of the bail bond for which the plaintiff paid 17. 9s. It also appeared in evidence, that the plaintiff was a baker and the defendant a carpenter; the latter did work for the plaintiff, and bought bread of him. They had a dispute, and the plaintiff desired the defendant to send him his bill; and on the following day, defendant said he had reckoned up his book and there was 51. coming to him. A letter from the defendant's attorney, demanding of plaintiff payment of the balance due to defendant, was proved. The whole account for carpenter's work, not allowing for bread furnished by the plaintiff, was 207.; plaintiff tendered that sum; defendant refused it at first, *saying, that it was more than was due, then that he had employed an attorney and could not settle it. After After [*141 the plaintiff was arrested defendant being asked why he arrested him for 237., replied that there had been obstinacy on both sides; and in reply to a question whether he ha'i cast up his books, answered that he had, and that 51. was due to him. The payment of 5l. 5s. for the debt, and 37. 13s. 6d. costs, was also proved, and a receipt was put in, given by the defendant for the first-mentioned sum as being the balance due to him. The rule of court for staying proceedings was then put in. Gurney, for the defendant, contended, first, that the rule could not be considered as a termination of the suit; and, secondly, that although the plaintiff might have a right of set-off, yet still 201. and upwards, was a debt due to the defendant; and he cited and relied on Brown v. Pigeon, 2 Campb. 594. Scarlett, contra, as to this point, mentioned Dr. Turlington's case, 4 Burr. 1996, and Dronefield v. Archer, 5 B. & A. 513; thirdly, it was objected, that the plaintiff was not at liberty on this declaration to give evidence of the set-off, the special circumstances not being stated. The Lord Chief Justice overruled all the objections, and left

it to the jury to say, whether the plaintiff had been maliciously arrested, but gave the defendant leave to move for a nonsuit. A verdict being found for the plaintiff with 57. damages in Michaelmas term, a rule to enter a nonsuit or for a new trial, was obtained on the points urged for the defendant at the

trial.

Scarlett and Archbold, now showed cause. All the transactions between the plaintiff and defendant show a plain understanding, that the bal*142] ance of the accounts was to be considered as the debt existing between them. The defendant, soon after the quarrel, said, he had cast up his book, and 51. was due; the attorney wrote, and demanded the balance due to the defendant, and the latter, when 201. was tendered, at first refused to accept it on the ground that so much was not due. But admitting that this evidence did not show an understanding that the balance was to be considered as the real debt, still, where there is a running account, an arrest cannot be lawfully made for more than the balance. Since the statute of set-off, the just debt is to be taken as the ground of arrest. This was held in Dr. Turlington's case, cited with approbation by Lord Mansfield, in Barclay v. Hunt, 4 Burr. 1996; and again, expressly in Dronefield v. Archer, where the court said, that the reasonable and probable cause for arrest, is the obtaining security for that' which is fairly due, and that is the balance.

Gurney and Chitty, contra. The first question is, whether the defendant had a probable cause for arresting the plaintiff. The case of Brown v. Pigeon, clearly shows that he had; there was no evidence, that the defendant had agreed that the balance of the accounts should be considered as the existing debt, nor does the statute authorising a set-off expressly direct that it shall be made. It is very different in that respect from the 5 G. 2. c. 30, as to mutual credits. The plaintiff' might not have chosen to insist upon his set-off. But, even supposing that in strict law the balance only is the debt, it by no means follows that the arrest was malicious. Secondly, the declaration is insuffi*143] cient to let in evidence of the cross demand. It does not apprize the defendant of the real cause of complaint, but says, generally, that the defendant had no cause of action against the plaintiff, whereas the special circumstances should have been set forth.

ABBOTT, C. J. It is not clear that the general question arises upon the evidence given in this case, which certainly tends to show an understanding between the parties, that the balance only was to be considered as the existing debt. But I am of opinion upon the construction of the statute of set-off, that where there are mutual accounts, the balance only is to be considered as the existing debt for the purpose of arrest. Notwithstanding the great respect which I feel for every decision by Lord Ellenborough, I cannot forbear observing that the case of Brown v. Pigeon, was only a Nisi Prius decision, and the termination of the suit was such (a juror being withdrawn) as to give no opportunity of revising the opinion there expressed. Since that time the case of Dronefield v. Archer, was before the court, and the former case was cited, yet the arrest being on one side of the account, only, was held to be malicious. That decision appears to me consistent with justice and common Then an objection has been made to the declaration: it does not, as stated in argument, allege that the defendant had no cause of action against the plaintiff, but that he had no reasonable or probable cause of action to the amount for which the plaintiff was arrested. It is certainly rather loosely framed, but still I think it was sufficient to let in evidence of the real justice *144] of the case, and that shows that the plaintiff was entitled to maintain the present action; this rule must, therefore, be discharged. HOLROYD and LITTLEDALE, Js., concurred.

sense.

VOL. X.-10

Bayley, J., was in the Bail Court.
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Rule discharged t

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