[6 c]

together with the damages was affirmed also for all the costs, because there was just cause of suit, which warrantranted the costs, though part of the suit was without cause. (2)

verdict, will always construe them in that sense which may support the verdict. 8 Mod. 240, Burges v. Bracher. 1 Barn. & Cres. 297, Huntingtower v. Gardner.

When the words are, on the face of them, obviously and unequivocally defamatory, it is sufficient for the plaintiff to set them forth in his declaration and to prove that they were uttered by the defendant. When they derive their actionable quality from extrinsick circumstances, the plaintiff must state, by way of introduction and colloquium, all those circumstances which are necessary to fix upon the words their defamatory meaning; the jury must judge, from the evidence, whether the words were used in the sense imputed to them by the plaintiff, and the court will determine whether such words taken in the malicious sense imputed to them, can alone, or by the aid of the circumstances stated upon the record, form the legal foundation of an action.

(2) In this case the damages were severally assessed by the jury, but entire costs and entire judgment given. See Cro. Ja. 343. S. C.

The authority of this case is denied 1 Salk. 24, Cutting v. Williams, where it was held that a judgment could not be reversed in part, to wit, as to one count, and affirmed as to the other, except where the judgment is partly by common law and partly by statute. That case however differed from the case in the text, as entire and not several damages were assessed, and judgment accordingly. But there are other cases on this point not easily reconciled with the case in the text. Thus in Cro. Ja. 424, Lloyd v. Pearse, it was held that if several damages be given on two issues and an entire judgment for both, and one of the issues be erroneous, it shall be reversed in toto. So in Cro. Car. 471, Goodier v. Platt, entire judgment was rendered in C. B. upon a verdict quod recuperet seisinam de uno messuagio et duabus acris terræ et pasturæ. Upon a writ of error it was held that this, being ill for uncertainty as to the land and pasture, though good as to the messuage, and though the court below might have given a valid judgment for that, should now be reversed for the whole. In 2 Str. 934, Lampen v. Hatch, which was case for words and damages assessed at 10s. and costs £13, though by Stat. 21. Jac. 1. ch. 16, if damages are found under 40s. there shall be no more costs than damages; the judgment was, on error, reversed in the whole. But it seems from the report of this case that this was done at the request of the plaintiff in the action, on account of the smallness of the damages, and perhaps with a view to institute a new suit. In 1 Salk. 312, Rouse v. Etherington, it is said that costs are but an accessary to the principal judgment which cannot be reversed quoad them only. See also Cro. Eliz. 162, Bugberd v. Reginam.

But the better rule is that which may be collected from the text; that where a judgment consists of distinct parts which are apparent on the record, it may be reversed as to the parts erroneous and affirmed as to the residue.

Thus in an action of dower against two tenants and judgment against them; after which one of them died, and his heir and the survivor brought error, upon which the first judgment was affirmed, and a writ of seisin awarded against both, but execution for damages and costs awarded against the survivor only; this judgment was reversed as to the damages and costs and affirmed pro residuo. 2 Str. 972, Kent v. Kent. So where on sci. fac. in C. B. judgment was rendered for the plaintiff, and execution awarded for the debt and £6. 10s. for damages and costs, this

judgment was reversed, on writ of error, as to the £6. 10s. and affirmed as to the rest. 2 Stra. 807, Henriques v. Dutch W. I. Co. So in sci. fac. against an executor, execution was awarded, and then the record went on with a consideratum est etiam that the plaintiff'should have costs. On error brought it was held that the plaintiff was not entitled to costs, and the judgment, as to them, was reversed, and affirmed for the rest. 1 Str. 188, Bellew v. Aymer. So where a common informer recovered judgment for the penalty and also for damages and costs, judgment was reversed as to the damages and costs, and affirmed as to the penalty. 4 Bur. 2018, Frederick v. Lookup. See also Cro. Eliz. 537, Grymston v. Reyner, acc.

The same rule is recognized in New York. 8 Johns. 111, Smith v. Jansen. 8 Johns. 558, Bradshaw v. Callaghan. 12 Johns. 340, Anon. And in Massachusetts. 2 Mass. 164, Nelson v. Andrews. 3 Mass 252, Glover v. Heath. 7 Mass. 453, Waite v. Garland. 9 Mass. 533, Whiting v. Cochran. 11 Mass. 206, Cummings v. Pruden.

In Pennsylvania, judgment in a criminal case will not be reversed in part. 2 Bin. 79, Jackson v. The Commonwealth.

But where the judgment is entire, and cannot be separated into distinct parts apparent on the record, if it is erroneous in part, it must be reversed in the whole.

Thus where the error assigned was that one of the defendants, at the time of the judgment, was an infant and appeared by attorney, where it ought to have been by guardian, the judgment being upon a verdict, it was held by all the Judges and Barons that as the damages and costs were entire, the judgment must be reversed as to both the defendants. Cro. Ja. 303, King v. Marlborough. So where an action of debt was brought against an executor for divers sums of money, for some of which debt would not lie against an executor, and entire judgment was given for all, it was held that the judgment was erroneous in all. Cro. Eliz. 425, Germyn v. Rolls. So where the writ is not good for part, as in formedon de uno crofto, messuagio, &c. if the demandant recovers, and on error it is adjudged that formedon does not lie for a croft, the judgment will be reversed in toto; for there can be no good judgment on a bad writ. Bac. Ab. Error. M. 1. So if a general judgment be rendered for the plaintiff on a declaration containing several counts, and any one of the counts be bad, it must be reversed for the whole. 1 T. R. 151, Trevor v. Wall. 5 Johns. 430, Cheatham v. Tillotson. 5 Johns. 476, Backus v. Richardson. 9 Mass. 198, Kingsley v. Bill.

[6 d]

BROCK VS. SPENCER.

Visne good, whether from town or parish.

Vide Crow v. Edwards, ante 5 b.

WALSH US. WRAY.

Visne good, whether from town or parish,

Vide Crow v. Edwards, ante 5 b.

[7]

Trespass.

Not. 1 Ro. 361.

Rot. 3461.

Lease by a prebend is to

tally defeated

by his succes

sor.

SPENDLOWES vs. BURKET.

A lease by a parson is not binding upon his successor unless confirmed by the patron and ordinary during the parson's life.

A lease for years by a parson, defeated by one successor within the term, shall not be revived against another successor within the term.

A lease or rent charge by a parson, to begin after his death, if confirmed in his life time, shall bind his successor.

JOHN SPENDLOWES brought an action of trespass Trin. 11. Jac. against Richard Burket for breaking of his close, and taking away twenty four lambs, and certain cartloads of hay, rye, barley, oats, pease and wheat, and certain stones of wool. In pleading upon demurrer the case was thus. Robert Cressey, being prebend of the prebendary of Palderton and Farrington, in the church of the blessed Virgin Mary of Lincoln, was seized of the rectory of Palderton, with the apurtenances in his demesne as of fee, in the right of his said prebendary, and so seized, the twentieth day of February, 13 Eliz. did demise the same rectory by indenture unto Sir Jarvase Clifton, knight, and George Clifton, esquire, for seventy years; then Thomas, Bishop of Lincoln, who was patron of the said prebend, and ordinary in the same diocess, granted the next avoidance of the said prebend unto one Humphrey Toy, 5 April, Anno 1571, which grant was confirmed by John Whitgift, dean and chapter of the said cathedral church of the blessed Virgin Mary of Lincoln, the third day of August, 1572. After which, the same Thomas Bishop of Lincoln, 20 die Julii. Anno Reg. Eliz. 16. did confirm the lease made by Cressey unto Sir Jarvase and George Clifton, and the dean and chapter did likewise confirm it the 18th day of September in the same 16th year; the same Robert Cressey being still prebend, and alive. Then died Cressey the prebendary in the 24th year of the Queen, and the next avoidance being brought down unto one Thomas Fisher and Ralph Bowyer Esq., they presented unto the same prebendary, John Prat, clerk, who was admitted, instituted, installed and inducted into the same. And after that the same Prat entered into the same rec

[7 a]

tory, and was therefore seized in his demesne as of fee in the right of the said prebendary. Then died Thomas, Bishop of Lincoln, and William Chatterton succeeded P. 12 Jac. him; then died Prat the prebend the 7th of September, 1607. After whose death, Chatterton the bishop did collate the same prebendary unto one Thomas Burton, clerk, whom he caused to be instituted and inducted into the said prebendary, who entered into the said parsonage, and leased the same, Jan. An. Reg. Jac. 8. unto one Anthony Ward for five years, from the feast of Saint Martin, then past. And then this lease was conveyed unto Spendlowes, who entered; upon whom Burket, as servant unto Henry Carvil, who claimed under the lease made by Cressey unto the Cliftons, entered upon a close being glebe, and took the lambs and corn being tithes of the parsonage of Palderton aforesaid; whereupon Spendlowes brought his action of trespass.'

Dy. 72. b. 133.

Ro. 1. R. 361.

Co. Lit. 46. a.

And now it was adjudged Pasch. 12. of the king, that the plaintiff should recover; for though the lease made by Cressey, for seventy years, was not yet expired in time, and though Burton the prebend came in after, and under the confirmation of the lease; yet Prat, the prebend before him, came in by the grant of the next avoidance by a grant made, confirmed and perfected before the con- 1 Ro. 480. p. 5. firmation of the lease, and so consequently was not sub- 1. Cro. 582. ject unto it; and then, when he entered upon the parson- 1. Moor 481. age, he was seized in his demesne as of fee, and so did Jones 454. Mo. defeat the lease totally, so as it could never revive or take place against any successor whatsoever; upon which reason there is a large discourse in the Earl of Bedford's case, Co. L. 7. fo. 8. And though Littleton seems to be 8. Plo. 449. b. of opinion, that the parson hath not the right of fee-simple, he doth expound himself, as to the bringing in of the writ of right; but otherwise the act of the parson is it which charges or gives. And it sufficeth that the patron

Dyer 62. pl. 5.

296. x.

66. Co. L.

Co. lib. 7. fol.

1 Inst. 341. b.

or ordinary do either license or assent. And therefore Co. Lit. 309.b 6 E. 6. Dyer 69. If a parson make a lease, or charge his 1 Ro. R. 442 glebe to begin after his death, and the patron and ordinary confirm it in his life, this shall bind his successors. (1)

[76]

(1) For the law relating to leases by ecclesiastical persons, &c., sec Co. Lit. 44. a. Com. Dig. Estates. G. 3. 4. Bac. Ab. Leases and Terms for years. E. F. G. H.

In Massachusetts by Stat. 28. Geo. 2. c. 9, re-enacted by Stat. 1785. c. 51, the deacons of the several protestant churches, not being episcopal churches, and the church wardens of the several episcopal churches are made corporations so far as to take, in succession, all grants and donations made to their several churches; and wherever the ministers, elders or vestry shall, in such grants or donations, have been joined with such deacons or church wardens, as donees or grantees in succession, such officers and their successors, together with the deacons or church wardens, shall be deemed the corporation; and the ministers of the several protestant churches are also made sole corporations capable of taking in succession any parsonage lands granted to the minister and his successors, or to the use of the ministers. And no alienation of any such lands belonging to churches, made by the deacons without the consent of the church, or by church wardens without the consent of the vestry, shall be sufficient to pass the same. And no alienation made by ministers of lands held by them in succession shall be valid any longer than during such alienor's continuing minister, unless made with the consent of the vestry, if he be an episcopal minister, or of the town or parish, if he be a protestant minister of any other sect.

Ministers, being thus made sole corporations, stand on. the same foundation, as to their parsonages, with all other sole corporations, holding lands in succession at common law. They hold the lands in the right of their parish or church; and if they hold them in fee simple, the fee, in case of deprivation, resignation, or death, is in abeyance until there be a successor; the parish or church, in the meantime, having the custody and being entitled to the profits, but having no authority to alien the lands. 2 Mass. 500, Weston v. Hunt. 5 Mass. 555, Dillingham v. Snow. 7 Mass. 445, Brunswick v. Dunning. 10 Mass. 93, Brown v. Porter. 15 Mass. 464, Jewett v. Burroughs.

Lands appropriated, by the original proprietors of a township, to the use of the ministry, or a donation of lands to the use of the ministry, has the same import as a donation to the minister and his successors or to the use of the ministers. 10 Mass. 93, Brown v. Porter.

If the minister alien the parsonage lands with the assent of the parish, or of the vestry of the church, it will bind his successor; if without such assent, it will not be a discontinuance of the estate, so as to drive the successor to his action, but he may enter. 2 Mass. 500, Weston vi Hunt. 10 Mass. 93, Brown v. Porter. So if a minister be disseized, or if his predecessor was disseized, he may enter, if the right of entry be not taken away, or bring his writ of entry, or writ of right, as the case may require. 2 Mass. 500, Weston v. Hunt. 12 Mass. 285, Brown v. Nye. 15 Mass. 464, Jewett v. Burroughs.

The parish cannot convey the parsonage to the minister to be held by him in his personal right. 14 Mass. 333, Austin v. Thomas. And if a parish give its consent that the minister may convey the parsonage, he cannot, by will, communicate his authority to his executors. Ib.

A conveyance to the treasurer of a town for the use of the inhabitants, as a parsonage, there being no parish in the town distinct from the town, is a grant to the use of the ministers within the meaning of the statute. Ib. So a conveyance to a church, to the use of the church, or to the church and their successors in office, or to the church, without limitation of use, is a conveyance in trust for the parish. 16 Mass. 488, Baker v. Fales.

The deacons of a church, are not, by this statute, made a corporation for the purposes of receiving and managing a fund raised for the support of a minister. 9 Mass. 254, Boutelle v. Cowdin.