Could the Jury have any doubt of its tendency? They had no right to take into their consideration the question of costs; they have only to deal out the damages. Their finding is manifestly contrary to justice. On one occasion, Mr. Justice Buller said, that a Jury would not be permitted to find a verdict contrary to the facts of the case. I am of opinion that there should be a new trial.

Mr. Justice GASELEE.-It is impossible to read this publication without seeing its object. The name by which the plaintiff is designated is that which is applied to persons of his calling as a term of ridicule. There is no doubt but that a publication calculated to render a person ridiculous is a libel. The case of Burton v. Thompson does not lay it down as a general rule, that a new trial will not be granted where it is probable the damages on the second trial will be small; but a new trial was refused under the peculiar circumstances of that case. Mr. Justice Foster, who tried that cause, reported to the Court, that the charge was proved, but that the injury complained of was so very inconsiderable that half a crown, or even a much smaller sum, would have been sufficient damages; and Lord Mansfield said: "It does not follow by necessary consequence that there must always be a new trial granted in all cases where the verdict is contrary to evidence; for, it is possible that the verdict may still be on the side of the real justice and equity of the case." Is the verdict here on the side of the real justice and equity of the case? The Jury do not affect to have so given it. If they thought the publication not a libel, they have found contrary to the evidence. The verdict, however, was not the result of a mere misconception on their part. They did not pursue a legitimate course. Their sole object was to deprive the plaintiff of his costs.

Rule absolute.

1827.

LEVY

บ. MILNE.

1827.

Monday,

May 21st. THIS

Trespass for as

was trespassing

KINGSBURY v. COLLINS and ELMES.

was an action of trespass. The first count of the saulting and im- declaration alleged that the defendants seized the plaintiff, prisoning the plaintiff-Plea, pulled, dragged about, pushed, and kicked him out of a that the plaintiff close in the county of Somerset, forced him to go before a magistrate, and imprisoned him for twenty-four hours. The second count was for assaulting, beating, and imprisoning the plaintiff. The third, for assaulting and beating him.

on the defendants' close,

whereupon the

defendants mol

liter manus im

posueruntReplication, that

the defendants had nothing in the close except

under R. N. C.; that before and

The defendant pleaded-First, the general issue; whereupon issue was joined-Secondly, to the assault in the first count, that, before and at the time when &c., the deat the time when fendant Collins was lawfully possessed of the close in the first count mentioned, and the defendant Elmes of certain tea

&c., and before

the defendants

had any thing

C. held it as

tenant from year

to year to R. N. C.; that it was

agreed between W. C., the plain

tiff, and one D., that W. C. should plough the land, and

the plaintiff and

the. eon, W. C.

in the close, W. zles growing in the said close; that the plaintiff entered into the close and cut the teazles without the leave of the defendants; that the defendants requested him to desist and depart, which he refused to do, whereupon the defendants, in defence of their possession of the close and teazles, gently laid their hands upon him to remove him, and did then and there remove him, &c. The third D. plant teazles plea, to the same assault, was similar, alleging both defendants to be possessed of the close and teazles. and the plaintiff The fourth stated that Collins was possessed of the close, and that Elmes acted as his servant. The fifth, that Elmes was possessed of the teazles, and that Collins acted as his servant. The sixth, seventh, eighth, and ninth pleas (to the assault and imprisonment in the second count,) were their own wrong similar to the second, third, fourth, and fifth pleas. The tenth, eleventh, twelfth, and thirteenth pleas (to the assault in the third count,)

to have one half,

and D. the other; and that the plaintiff entered to cut his and D.'s share of the tea

zles, when the defendants of

committed the

assault, &c.:

Held, on general demurrer,

that the replica

tion was suffici- third, fourth, and fifth. ent-although

it was contended that it did not

were also similar to the second,

None of the pleas, however, jus

tified the imprisonment in the first count mentioned.

allege that the interest of W. C. was continuing at the time the plaintiff so entered the close.

Replication to the second, sixth, and tenth pleas-that, at the said times when &c., Collins had nothing in the close in which &c., except under one R. N. Curtis, and before Curtis had any thing in the close, or Elmes in the teazles, W. Curtis held the close as tenant from year to year to R. N. Curtis; and that, W. Curtis being so possessed, before the said times when &c., and before Collins had any thing in the close, or Elmes in the teazles, it was agreed between W. Curtis and the plaintiff and J. Derrick, that W. Curtis should plough the land, and that the plaintiff and Derrick should plant teazles and cleanse and work them, and that, when the teazles should be arrived at maturity, W. Curtis should be entitled to one half of them, and the plaintiff and Derrick to the other half; that the plaintiff and Derrick did plant, cleanse, and work accordingly; that the teazles arrived at maturity; that the plaintiff went into the close to gather his and Derrick's share of them, and staid there till the defendants, of their own wrong, committed the trespasses in the introductory part of the second, sixth, and tenth pleas mentioned.

There were similar replications to the other pleas, and a general demurrer and joinder in demurrer.

The case came on for argument in the course of the last

term.

Mr. Serjeant Taddy, in support of the demurrer.—The replication is ill. The defendants in their pleas allege that they were possessed of the close and teazles. That allegation is neither confessed and avoided, nor traversed by the replication; but it is attempted to put in issue collaterally the fact of possession. The possession is admitted, but it is stated, that, before Collins had any thing in the close or Elmes in the teazles, W. Curtis held the close as tenant from year to year to R. N. Curtis, not stating how long W. Curtis's interest continued, or whe

1827.

KINGSBURY

ບ.

COLLINS.

1827.

KINGSBURY

v.

COLLINS.

ther it is yet determined. The allegation, therefore, that the defendants were lawfully possessed of the close and teazles is not incompatible with the facts stated in the replication; and, not being denied, is an answer to the action.

Mr. Serjeant Bosanquet, contra.-The pleas are bad. The imprisonment complained of in the first count is unanswered. Molliter manus imposuit can be no justification of pulling, dragging about, pushing, and kicking the plaintiff Collins v. Renison (a). In Gregory v. Hill (b) a plea of molliter manus imposuit, in order to turn the plaintiff out of the defendant's house, where she continued against his will, was held to be no answer to a charge against the defendant for striking the plaintiff repeated blows, and with great force and violence several times knocking her down.

[Mr. Justice Park.-That should have been taken advantage of by special demurrer

Mr. Justice Burrough—or by replying to the excess.] It has been contended, that, on the face of the pleadings, it is admitted that Collins was in possession of the close and Elmes of the teazles, and, being confessed, is not avoided. But it was perfectly immaterial, as to the plaintiff's case, whether or not Collins was possessed of the close, and Elmes of the teazles. The plaintiff's title to the moiety of the teazles is not impeached; and, if entitled to take them, he was justified in entering the close for the purpose of asserting his right. The replication avers, that Collins derived title under R. N. Curtis, and that W. Curtis was tenant from year to year under R. N. Curtis— thus shewing an indefinite tenancy from year to year. It must therefore be taken that, at the time of the agreement spoken of, W. Curtis was holding under a lease not de

termined. The plea alleges that Elmes was possessed of certain teazles growing in the close, but not of the entirety. It is not necessary to aver the continuance of an estate which is only to be defeated by a condition subsequent (a). If such were the fact, the defendants should have shewn that, at the time of entering into the agreement, W. Curtis's interest in the premises was so abridged that he had no authority to bind the estate. The plaintiff might have a right to enter, even although the interest of W. Curtis was put an end to. At all events, if it be necessary that it should appear that the estate was continuing, it does sufficiently so appear on this record, by implication. On general demurrer, defects in substance only can be taken advantage of, and not defects in form. It is averred, in the replication, that W. Curtis was possessed of the close for an indefinite period; that he made an agreement with the plaintiff; and that the latter entered the close in pursuance and to avail himself of that agreement. Any thing tending to shew by implication that the estate continued, is sufficient on general demurrer (b). If a tenant for life grant a rent-charge, and then surrenders to the owner of the fee, the surrender does not affect the title of the grantee (c).

[Mr. Justice Gaselee.-At the time of the agreement, it seems, W. Curtis was tenant from year to year of the close. Upon the determination of that tenancy by a notice to quit, would he not still be entitled to take as emblements the teazles planted before the notice?]

If the defendants had meant to shew that the estate of W. Curtis was abridged or defeated, they should have averred it. As the record now stands, the plaintiff has shewn an indefinite estate in W. Curtis, which does not appear to have been put an end to.

(a) Com. Dig. tit. "Pleader," (C.) 68. Attorney General Buckeridge, Hardr. 75, 82.

V.

(b) Com. Dig. tit. " Pleader," (C.) 67.

(c) Co. Lit. 338. b.

1827.

KINGSBURY

v.

COLLINS.