to be a parting with the legal interest, it must, in all cases of this description, have the effect of placing the tenant completely under the control of his landlord. The words. "otherwise part with," mean "assign." Here there has been no assignment of the legal interest, and I think there is no ground for disturbing the nonsuit. BAYLEY, J.-I am of the same opinion, and think this case is not distinguishable from Crusoe v. Bugby, where the covenant on which the question arose was, "that the lessee, his executors or administrators, shall not, nor will at any time or times during this demise, assign, transfer, or set over, or do, or otherwise part with, or put away, this present indenture of demise, or the premises hereby demised, or any part thereof, to any person or persons whomsoever, without the licence and consent of the lessors, &c. being first had and obtained." The question there was, whether the fact of the lessee having granted an under lease of the premises worked a forfeiture, and the Court said, "the Courts have always held a strict hand over these conditions for defeating leases. Very easy modes have always been countenanced for putting an end to them. The lessor, if he pleased, might certainly have provided against the change of occupancy, as well as against an assignment, but he has not done so by words which admit of no other meaning. Assign, transfer, and set over, are mere words of assignment—otherwise, do, or put away, signifies any other mode of getting rid of the premises entirely, and cannot be confined to the making an under-lease." That is an authority in point, and the words here must receive the same construction. The lessee has only deposited the lease as a security, which it was competent for him to do. There is no "parting with the legal interest" within the meaning of the covenant, because the lessee might at any time redeem the indenture by paying off the incumbrance upon it. The other Judges concurred. 1824. DOE 0. HOGG. 1824. Monday, Where to a a libel, imputing to the plaintiff barbarous cruelty to his horse, the defendant pleaded pleas of justification; first, that the libel was true in all its particulars; and second, that it was true in substance and effect, and the jury found that the first plea was true with the ex WEAVER V. LLOYD, Gent. declaration for CASE for a libel published in the Oxford Journal, of and concerning the defendant's conduct, in his treatment of a horse, in riding from Oxford to Abingdon. Plea, first, not guilty; second, that the matters contained in the alleged libel, were true in every particular; and third, that the several matters in the supposed libel contained, at the time of composing and publishing thereof, were true in substance and effect. Issue on these pleas. At the trial before Garrow, B. at the last Assizes for Oxfordshire, several witnesses were called to prove the defendant's pleas of justification. The jury under the learned Judge's directions found specially, as to the second plea, that all the matters stated in the libel were true, with the exception of two statements, namely, first, "that on reaching Abingdon, the horse preception of two sented a shocking spectacle, having an eye literally knocked out;" and secondly, " that plaintiff being conscious that its particulars of condition would excite attention, he ordered the person who aggravated cruelty to the had the care of the horse, not to let any one go into the horse, and that stable to see it ;" and as to the third plea, they found that the matters contained in the libel were true in substance and effect, and gave for the plaintiff one shilling damages, if the Court should be of opinion that the want of proof of the two to the opinion statements above-mentioned, did not render their verdict of the Court statements, containing the second was true in substance and ef fect, and gave a shilling dainages, subject as to the propriety of their verdict: Held, that their ver A plea, stating that libel incorrect. W. E. Taunton now moved to enter judgment for the dict was right. defendant non obstante veredicto. The particulars which failed in proof in support of the second plea of justification, were altogether immaterial, because the paragraph of which the plaintiff complains, would be equally libellous if those effect," means, allegations had not formed part of it. It appeared in evithat it is true dence, and was stated in the libel, that the plaintiff in riding in every material particular. lous matter complained of, " is true in substance and from Oxford to Abingdon, had brutally and unmercifully beaten his horse, but though neither of the horse's eyes was literally knocked out, yet the auimal had been so dreadfully injured, that it was necessary to bind up both his eyes, and it was in evidence that he could not see with either for three or four days. In the result, the animal recovered the use of both his eyes, under the skilful treatment of a farrier. It must be admitted then, that there was no proof that either of the animal's eyes was knocked out, but it is submitted that the want of proof of the truth of this allegation will make no difference. The case of Edwards v. Bell (a) seems to be an authority for this. That was an action for a libel against the printer of a newspaper. The plaintiff was minister of a dissenting assembly or congregation, at Great Marlow, in Buckinghamshire. The paragraph complained of was to the following effect: "A serious misunderstanding has taken place between a dissenting minister at Great Marlow and his congregation. The cause of it originated out of some prejudicial reflections thrown out by the minister, against a young lady of great accomplishments and spotless reputation. The matter, we understand, is about to be taken up with a strong hand." The defendant pleaded a justification of the alleged libel, which failed in proof in two particulars; first, that it did not appear that any serious misunderstanding had taken place between the minister and his congregation; and second, that, instead of proving, as was alleged, that the plaintiff had delivered the offensive words complained of from the pulpit, he had, in point of fact, delivered them from a tent or other station assigned to him. The Court, after a verdict found for the plaintiff, allowed judgment to be entered for the defendant non obstante veredicto. It cannot be denied that these parts of the libel in that case were material in aggravating the character of the libel. In the present case the libel was proved to be true in most of its material circumstances. It was proved that the animal presented a shocking spectacle, and (a) Not in print. 1824. WEAVER 0. LLOYD. 1824. WEAVER 7. LLOYD. though the eye was not literally knocked out, yet that was only one of the circumstances entering into the description of the barbarity alleged. The third plea was completely made out in evidence, and on the authority of the case cited, the Court will give judgment for the plaintiff non obstante veredicto. ABBOTT, C. J.-I am of opinion that neither of the defendant's pleas was proved. I take it that the two statements which remain unproved, were material parts of the libel; first, the particular description of the state of the horse, in alleging that his eye was literally knocked out; and secondly, in stating that the plaintiff had ordered a person who had the care of it, not to allow any body to see the horse. The defendant, by his second plea, undertakes to prove the whole truth of the libellous matter. He has failed to make out these two material allegations, and therefore that plea cannot be supported. Then as to the third, I am of opinion that when a defendant says that a libel is true in substance and effect, that must be understood to mean, that every material particular contained in it is true. The defendant, therefore, has not proved the truth of his third plea, and consequently the verdict must stand. BAYLEY, J.-I am of the same opinion. The defendant's pleas of justification go to the whole matter contained in the libel, and consequently he is bound to prove every material circumstance justified. I am of opinion that both the circumstances which failed in proof, were material parts of this libel. It is alleged that the plaintiff was guilty of barbarity towards his horse by beating, whipping and spurring him, and that the animal presented a shocking spectacle, and that one of his eyes was literally knocked out. Taking it that the substance of the libel was in treating the animal with barbarity, still the allegation of having knocked the eye out, was an excess of barbarity which was not proved. It is a general rule, that the justification must go the whole length of the libel in all its material parts. This justification does not go that length, and therefore there is no ground for disturbing the verdict. HOLROYD, J.-If Mr. Taunton's argument could prevail, it must go this length, that where a libel charges a plaintiff generally, with cruel usage to his horse, and then goes on to describe the particulars of that usage minutely, it is sufficient for a defendant in his justification, to prove the cruel usage generally, without proving any of the particulars of it. I have never understood that to be the rule; on the contrary, I apprehend it has always been held, that in order to support a plea of justification in an action for a libel, all the libellous matter must be proved to be true in its particulars. That certainly has not been done in the present instance, and therefore these pleas being unsupported by the evidence, the declaration remains unanswered, and the plaintiff is entitled to a verdict. LITTLEDALE, J.-The defendant's evidence has failed him in the most important part of the case, for the most serious and defamatory charges contained in the libel, turn out to be wholly unfounded in truth. It is, as it appears to me, a much more offensive thing to publish of a man that he has knocked his horse's eye out, and that having done so, he has given orders to prevent any person from examining it, than merely to say, in general terms, that he has been guilty of cruel usage towards his horse, and rendered it a shocking spectacle. Such a detail of particulars following the general charge, goes to the very gist of the action, because they are matters of great aggravation, which must naturally and properly tend to increase the quantum of damages. I am therefore clearly of opinion, that these pleas are unsupported by evidence in the most important particulars, and that they present no sufficient answer to the action. Rule refused. 1824. WEAVER V. LLOYD. |