Star.
London, England, 1820-11-17 00:00:00

THE KING V. SIR FRANCIS BCRUETT.

Mr. DENMAN said, that it was his duty to support
the argument of his Learned Friend, Mr. Searlett,
calling upon the prosecutor to show cause %shy a new
trial should not be had upon the ground that no
offence had been committed within the jurisdiction
where the trial took place, and the first proposition
which he had to establish was, that the mere writing
of the libel did not amount to an offence. his
Learned Friends, the Attorney and Solicitor-Gene-
ral, found it essential to their argument to maintain
that the writing in itself was a libel.
Mr. Justice BAY LEY—But here has been a pub-
lication.

Mr. DESMA N—Bnt there was no proof of what
way that publication took place; and, although he
might admit, for the sake of the argument, that the
letter had been written with the intention of publish-
ing it, yet even that intention, if it were not put into
execution, did not amount to any offence, and there
was not a single authority for a contrary opinion, with
the simple exception of the case of The King and Bier,'
and in that case, Chief Justice Holt not only did not
'rely on antecedent authorities, but his position was
at direct variance with all former authorities, and
before their Lordships came to the same conclusion,
they also should get rid of those authorities ; they,
too, would find it necessary to say, that the opinion
of Lord Coke, in Lamb's case, was erroneous. Of
course it became extremely important to look at the
wording of that case, and the mode in which it was
supported.—(The Learned Counsel here referred to
the precise words of the indictment itself—composuit
scripsit ct
.fecit, (S-c. guos guidon tlivulga vitet publi-
cavil )—and in that case the Jury found quoad col-
lectionem et scriptionem culpabilis, quoad publicationem
non culpabilis—and yet the doctrine of Holt would
make the collection of libels a crime, because, after
the d:ath of the collector, they might fall into other'
hands, and thus be promulgated to the world. There
was nothing like that doctrine in the whole law of
England, with the exception of forgery, which, in
itself, was a criminal act; but the two cases were so
decidedly opposed to each other, that no analogy
could be instituted between them. .In the case of
forgery, the right of property was equally affected,
and if the addition of a cipher, or the alteration of a
word could make a man liable for £5OOO instead of
£5OO, the offence consisted in that addition or altera-
tion. But if a man were to be considered guilty .of
libel because he happened to have in his desk or his
library what, if published, would amount to libel,
he knew not who could be considered beyond the
power of this visitation who had a copy of Gibbon
or Flume in his possession. Some chapters might
be selected from these writers, and a 'man found
guilty of libel for having and keeping in his pos-
session certain libels. But whatever might be the
maxims in other countries, where the Press was sub-
ject to the inspection of the Police, yet in England
no man was amenable to the laws for having such
works in his possession. That being the case then,
and the obligation imposed upon Chief Justice Holt
of dispensing with the case in Coke, and his quoting
no authority, but saying, that the mere writing was
punishable, he was assured would never be recog-
nized by their Lordships, except as an example to
be avoided.

Mr. Justice BEST—In what sense was the term
writing used in the case of g The King and Bier?'
Mr. DEN!sAN said, in the sense of copying, he
apprehended ; but his Learned Friend, the Attorney-
General, had sail, that writing with a view to publi-
cdtion, or collecting libels with a similar object, was
an offeßce, and he referred to cases in the Star Cham-
ber ; but in looking into these cases, it turned out
that the persons who were there convicted were not
only guilty of writing but of publishing. He did not
mean to lead their Lordships through the Roman
law on this subject, but it was quite evident from the
cases which bad been cited from it, that the libels
were either published, or proved to be published by
the writer. He remembered that the Attorney-Ge-
neral said that he did not go to the Roman law, be-
cause he could not find authCirities in the English
law, but though his Learned Friend might select
examples from the practice of the Emperors, yet he
apprehended such authorities would have even less
weight with their Lordships than the case of ' The
King and Bier,' where the Chief Justice laid down
law for which there was no English authority, and
nothing but the Roman law to resort to, which when
observed, appeared most equivocal, and when exa-
mined, implied the publication.
The CHIEF JUSTIOE.—Are you aware, Mr. Den-
' man, of the case in the Fourth Volume of Mackstwic's
Commentaries?

Mr. DEntAw.—f mean, my Lord, to refer to that
case in the course of my argument. Them was the
case of Doctors Edmunds and Hooper, where one of,
them libelled theother, and sent a letter to him alone,
but he made it public by his own fault : but as it
might tend to a breach of the peace, he might, at the
suit of the King, be found guilty of libel. In order,
however, to be made liable, lie must take steps tend-
ing to a breach of the peace, which alone would cony
stitute the offence. In the reign of Charles 11. there;
were some doctrines never acted on before and never
recognised since. In the case of " the King against
Harris," Sr William Scruggs said, that all persons

writing, printing, or publishing libellous pamphlets;
were liable to Save such books seized, And themtelvel
pro, baited. •
Mr. Justice was the opinion of the
twelve Judges. •
. • o
Mr. DENnutim—Yes, my Lord, in the tunes of Charles 11. and further, that all writers in newspaperi
were indictable, and punishable on that account.
The CHIEF JUSTICE.-1 never, until the premt
argument, heard one insinuation against the character
of Chief Justice Holt. He passed his early life in
opposing those doctrines that made against tht liberty
of the subject, and he continued to oppose them alter
his elevation to the situation of Cl.ier Justice.

Mr. DeNsias said, that it was extremely painf',ll.
to him to be compelled to cast am- reflection on the
character of Chief Justice Holt, bat it was the miij,
fortune of the time in which Lor.l Holt rived that the
best minds, after obtaining the principal object of
their ambition, unconsciously sunk undef the inrai-
ence of those principles, in opposing which their ear;
liest and best days had been past. So late as 1618;
it was laid down by Sir G. Jeffreys, that the writing
or publishing any intelligence without the King's
pet mission, was an offence against the State; and
-:non after the Restoration, an Act passed prohibiting
that any book should go forth to the world except'
by permission of the licenser, and it was not until
after the Itcve-Aution that this law was dispensed with;
and that, too, after an attempt was first made to re,
new it. The doctrine was then extremely different
.from what it is in these days, since tilt only did the
tight of licensing exist, but the general warrant of
searching for all papers continued until the year
1667, when Lord Camden pronounced against it.—
In the State Trials, Lord Camden expressed as clear
an opinion as a Judge could on the subject of gene-'
ral warrants, and if the right of search no longer re-
mained, the mere writing could not ccnstitute
The very supposition implied the right.. of search. If
the writing; only were punishable when the paper
was published,. then in its simple state it is no offence:
but the Attorney-General went the whole length of
saying, that the mere writing amounted to an offence.
Now, he believed it was the general feeling of Weir-.
minster Hall, that the case of " the King and Bier,"
had become obsolete. It was certainly not now ques-
tibned for the first time, because there was in Mr.
Starkie's book a very long and a very modest argu-
ment to shew that the case in question was not law',
that the authorities were inapplicable, and that there
were other cases at direct variance with it, by which
the law therein stated was particularly questioned.
Mr. Justice BEsr.—lf the case rested on the au-
thority of " the King and Bier," after what Lord
Camden said on that subject, I should think that the
law of that case was very questionable; but if the
letter was written with the intent that it should be
published, that was one step towards a crime, and
every step towards a crime is a misdemeanour.

Mr. liesmn N.-•-• Upon general principles, though
the letter was written, yet, as long as it was withheld
from publication no offence was committed. Their
Lordships would perceive the pernicious consequences
that must result from the recognition of such a prin.!.
ciple; it would hold out a premium to spies, and
establish in every family a sort of inquisitorial power
that must make servants the arbiters of life and
berty, and the supreme disposers of both ; it would
be holding out a bribe to servants to break open the
desks of their masters, and drag into public view
what was, perhaps, never intended to see the light.
lie would suppose the case of a man, who, in a mO=
ment of irritation, had written a violent letter, who
afterwards repented of having written it, and was it
to be asserted that at a period, however distant, the
individual who wrote that letter was afterwards td
be punished because he did not execute his original
intention ? There was no authority for such a pro-
ceeding, with the single exception of " the King and
Bier," and he was quite sure that their Lordshipe
opinion would not confirm that authority. It had
been said, that the writing and the publication was
one and the same offence ; but this was a most unz
founded assertion : they were distinct and separate
acts, they might be performed by different hands.—:
In the case of " the King and Johnston," the trial
curred at Middlesex, and not in Dublin, for the let-
ters were published here. There was no doubt but ,
Sir Francis Burdett might have been tried in Middle=
sex for circulating there what he wrote, if the offence
was committed.

Mr. Justice BEST.—If I, living in the country,
write to a Newspaper Office in London, desiring them
to send me a Newspaper, and they send down one
containing libelous matter, where does the publica,
Lion take place ?
Mr. DENMAN.-I should certainly apprehend that
the publication took place in the County to which
' the Newspaper was sent. Cases of nuisance were
guided, it was true, by a principle apparently but
not really different. •A windmill, for instance, to
situated in one County as to produce annoyance and
inconvenience in another, might give rise to an in-
dictment in either of, the two Counties. With re-
spect to the presumption that the letter had been
sent open, it was, in his opinion, in direct opposition
to the way in which that presumption should have
been; because there was evidence to be had of the
fact; the person to whom the letter was sent might
have been called to that fact. Sir Francis Burdett.
was seen on the 22d or 23d riding on the borders of
ltutlandshire, and it did not appear that he had not
put the letter .into the post-office in that County.
He might have delivered it to his servant to put into
the Post-office. But there was also this remarkable
circumstance, namely, that the 'letter given to Mr.
Bickerstaff m as contained in an envelope, and direc-
tions given to him to forward it to Mr. Brookes,
which shewed that Sir Francis Burdett did not de-
liver it to Mr. Bickerstaff; The Learned Counsel on
the other side, with all their ingenuity, and months
for preparation, had discovered only a single autho•
rity, a maxim from the State Trials, and upon look-
ing for that maxim it was not to be found there ;
and then the • Solicitor-General had to recur to the
authority of Mr. .11:if-grave, whose accuracy was
never questionable, but who himself disclaimed th
very part of the work upon which the Solicitor-Ge-
neral's argument rested. Upon the whole of this
case then, he trusted, that he had offered sufficient
observations to convince the Court that the wilting
alone did not constitute the crime, and that the pub.
lication was essential to the commission of the crime
of libel s that no publication was ;moved in the
County where the indictment was laid; mid thst,

consequently they. Were entitled to a new trial. `here
was no evidence at all that a criminal act had been
committed within the jurisdiction where the trial
took place; and, under all the circumstances, doubt
enough, he conceived, had been raised in this extraor-
dinary and long discussed case, to grant a new trial.
Mr. PHILLIPS followed on the same side. If he
was to understand from their Lordships that the
mare writing had nothing to do with the present
question, lie should not trouble their Lordships with
a single remark on that part of the case.
The CALEB JUSTICE.—We have more than once
iatiniated, that we do not consider ourselves called
upon to say whether or not the mere writing amounts
to a crime.
Mr. Putuurs.—lf I am to understand, my Lords,
that such is the unanimous opinion of the Court,
shall certainly not occupy the time of the Court
arguing upon it. The Learned Counsel then pro-
ceeded to reina' k upon the various cases cited by
:Mr. Denman, and to urge their applicability to the
present argument. With respect to the doctrine in
Paine's case, he observed, that as it was stated to
have been pronounced in one, of the Reports, it was
an extra-judicial opinion. He then proceeded to re-
mark upon the authorities derived from the Civil
Law, and contended, that the remark of the Soli-
citor-General, accompanying the quotation from
Vinerus--Nam utrunique est a innyosuni, was not ap-
plicable to the present proceeding. Since Vinerus
went on to say that it was questioned, and as he
adds, nietito. In cases of forgery, it had. been said,
that there was a crime committed by the very act
of alteration or addition, but the present proceeding
was very different from the case of forgery. It was
said, that the publication was a medium of proof,
but it was quite certain that the publication was ne-
cessary to constitute the crime, and a medium was
not essential for the purpose. The Commentary of
Coke was decisive, he states, that such persons as
shall publish the false intelligence only shall be pu-
nishable. The laws of Edgar spoke of such persons
only as of their own heads propagated the intelli-
gence, and rendered it punishable by the loss of the,'
offender's tongue. As to the point of publication
the cases were all of one character, proving that the
offence should be completed in the County where
the person committed it. It was said the inception
of the offence commenced in the County of Leices-
ter, and that sending it from thence was a publica-
tion. In all other cases analogous, if the offence
consisted of parts (each consisting of a complete of-
fence in itself), every part so constituting an offence
must each be tried in the County where it was com-
mitted. Such was the decision in a case where
poison had been given in one County, and the death
of the person poisoned had taken place in another.
Mr. Justice BAYLEY.—There would be perhaps a
difference of opinion as to the course which might
be taken with a person who had written a libel in
this country, and sent it over to France for publication.
Mr. PH ILL: rs—He must contend that the prin-
ciple he had throughout advocated was not sup-
ported only ou the authority of the nuisance case, an d
oa the c Ise of usury alluded to so impressively by his
Learned Friend, but the case of nuisance mentioned in
Fitzherbert, was one where the same principle was
recognised, it appearing that the nuisance was occa-
sioned by raising piles in the River Lea, within the
County of Essex, whilst the effects of the nuisance
were experienced by the parties to the indictment in
the County of Middlesex. With respect to the pub-
lication in Leicester, he contended it was not proved
that such a publication had taken place. Even the
law was not such as had been stated, that the mo-
ment the letter was put in the post, or given to a
servant, the offence was completed, as was obvious
by the decision in “ Metcalf and Martyr," Third
Term Reports.
Mr. Justice BAYLEY.—Then you say nothing is a
publication except communication of contents.
The Learned Counsel admitted that such was his
construction of the law. The letter was found in
Mr. Bickerstaff's possession on the 22d, and Mr.
Brookes said it was delivered to him under the in-
junction to publish it in Middlesex. The first know-
ledge of the contents of the letter was derived in Mid-
dlesex. It was fair to suppose, then, that Mr. Bicker-
staff was in Middlesex one or two days before; this
might be as well presumed as the presumption on the
opposite side, that Sir Francis Burdett had written
the letter when in Leicestershire, because he was
seen riding on the 2'2d and 23d through a toll-gate,
near Melton Mowbray. As to the principle that a
delivery from the band was a proof the defendant
had written it there, would any reasonable man then
contend, that Sir Francis might not have been at any
time during those days in any other County? Rut-
landshire was in the immediate vicinity of this very
toll-gate. In the case of the seven Bishops, it was
proved that the libellous petition was in the hands of
the King, and it was also proved to have been in the
possession of the Bishops by their signature the ob-
vious presumption was., that it must have been given
to the King by them, and it rested with them to dis-
prove the fact hus presumed.
Mr. Justice BAYLEY.—The objection then was, that
though they might be inferred to be the publishers,
non constat that they had so published it in the County
of Middlesex; and until Lord Sutherland was called,
no evidence decisive of the fact of delivery was at
all adduced.
The Learned Counsel here read the Judge's notes
on the occasion of summing up to the Jury, and beg-
ged the attc ition of the Court to the subject. He had
stated, that " if there were no evidence of the publi-
_ cation satisfactory to the minds of the Jury, that
would be a circumstance of which he would have
the full benefit on the trial with the Jury. The en-
velope might, for aught he knew, have been opened
and seen in Leicestershire, which would have the ef-
fect of publication. Elle wished the attention of the
Court to be directed to this sentence.) The person
accused had been seen at Kirby Park on the day
which was the date of the letter, and had been seen
on the 22d and 23d passing along the road in its
neighbourhood by a toll-gate-keeper. The corps
dolsrti, therefore, of the offence was committed within
the County. It rests with Sir Francis Burdett to
chew that he did not deliver to any of the persons
mentioned the letter in question. From the evi-
dence, I have little hesitation in saying, the Jury will
be warranted in agreeing to a verdict, that the libel
bad been published and delivered with that intent in
Leicestershire." Now, in this charge, notwithstand-

ing the Judge had said, that " for aught he knew"
the envelope might have been opened and seen in Lei-
cestershire, the Court would see that it was not at all
probable, because there was.,no proof whatever of
Mr. Bickerstaff having ever been seen at this time
nearer to the place where the venue was laid than
one hundred miles. It was then said, that the
bizbpre-
sumption
was extre ly strong that Sir Francis Bur-
dett must have pu ed it in the County where he
was then known to eat the time. What would be
the weight of the presumption, if it were only con-
sidered for a moment that Sir Francis Burdett might
1 in any of his rides have delivered this letter himself
lat a Post-Office in any part of the neighbouring
County of Rutland, or elsewhere? The proof of the
fact would then lie with himself, and the nature of
his situation as a defendant, would close his mouth
for ever as to the point on which his defence solely
could have been established. Something had been
said of its being given by Sir Francis Burdett, at
Kirby Park, to an agent in Leicestershire, with a
view to its publication in Middlesex. Now, there
was not the least proof of any such thing being even
probable. A similar observation might be made with
respect to the presumption that this.letter mast ne-
cessarily have been delivered by the defendant for
publication at Kirby Park. Such was the impression
created oa his mind by the view he had been able to
take of the case which had so deeply interested many.
He regretted to -say, that it appeared to him too
great a deference had been paid by the Jury to
the impressive and eloquent charge of the Judge
on the trial. It seemed to him, that an impres-
sion had been created en their minds which was
by no means warranted by the evidence adduced on
the trial, but was frequently at variance with it.—
Their Lordships had often seen the complete surren-
der which men in a Jury-box made of their own
judgment and impression, in deference to the supe-
rior acquirements and knowledge of the Judge who
presided.. In the case of the nuisance by windmills,
when an accident had occurred in a County different
from that in which they were 'erected, it had - been
considered necessary to state the Parish and County
wherein the accident took place, as well as that which
was the locus of the nuisance itself. It was obvious,
too, that the nuisance might be felt injurious in vari-
ous Counties at once. .

Mr. Justice BEST.—There might possibly arise no
nuisance to the inhabitants of a county
,where the
cause of the nuisance originated, as in the breaking
down sluices of a dam or river.

Mr. PHILLIPS.—In Fitzherbert it was laid down,
that a nuisance in one county arising from the state
of a broken wall, might prove a nuisance to a party
in right of his holding property in another county
affected by the state of the.wall ; but it was observ-
able in all these cases, that the decisions given re-
cognized the principle, that there was a wide and
material difference as to the principle of law respect-
ing the venue in cases of a civil nature, compared
with those of a -criminal nature—in the latter cases
the limitation being strict, in the former of consider-
able latitude. In the usurious case, Scott v. Braham,
reported in 2 Term Reports, the Learned Judge,
Ashurt, was of opinion, it was true, that where the
money was received on account of this usurious con-
sideration, and the account finally settled, the venue
should be laid. In this opinion he was single.
Mr. Justice BEST.—No ; in the case stated in the
Reports, it is said, that Justices Buller and Grose
were of this opinion also, and their reason then given
was, that the offence was not consummated before
the usurious consideration had been paid, which oc-
curred in another county. This, though a penal)
action, however, was one not strictly applicable, be-
cause the present case was one of a highly criminal
nature, and he would only, therefore, again remind
the Court of the necessity there existed to distinguish
between civil and criminal cases. The Rule had cer- I
tainly been extended so far as related to penal sta-
tutes; but the old and original distinction prevailed
as to criminal cases, where it was as strictly pre-
served as in the selection of a Jury from the vicinity
of the place where the offence was committed, in-
stead of from the body of the county, in cases of
felony. The reason given for this rule by Lord Coke
is-simple, that the Jury of one county, by the law of
the land, could not inquire into an offence commit-
ted in another.
Mr. Justice BAYLEY.—Then, on the contrary, it
might be argued, that a Jury in Middlesex could not
try an offence committed partly in Leicestershire.
Mr. Justice BEST—So that, by your argument, the
offender must necessarily be acquitted, let him be
tried where he would.
Mr. PHILLIPS would not contend for any such con-
struction of the law. He would suppose the case of
a subject of this realm entering into a foreign service,
which, by the Act of the Sd of James I. had been
made felony. Lord Coke had said, this offence was
not triable in the place where the offence was corn-'
pleted, for that- was in a foreign country ; it was
therefore necessary, and such was the rule of law,
that he must be tried in the country in which the
port or haven was when he bad so embarked to serve
under a foreign Prince ; but this was a case met by a
distinct exception in law, dictated by the necessity. f
the case. Here the offence was laid and committed
within the realm, and the objections, he hoped,would
be considered conclusive, that his Learned Friends
had argued this case under a fallacious view of the
subject. This case was one of deep interest to the
party and to the Public. It was an object of great
importance to the community, that the adminis-
tration
of justice should not only be perfectly pure,
but also unsuspected. He concluded a long and able
argument, by expressing a hope that their Lordships
would be of opinion the defendant should have the
benefit of a new trial.
Mr. 13Lacxavanz professed he had nOdisposition
to trespass, on the present occasion, longer than was
necessary, and consistent with a mere citation of the
opinion of others, after the able examination the case
had received already. His view of the case was this,
that either writing libellous matter was an offence,
or that writing with publication was an offence,
which he did not doubt, or that publication alone
was an offence. As to the venue where this indict-
ment was made, he trusted that his objections would
be found so strong as to prove decisive of this case.
In the case of death, occasioned by a stroke given in
another county, there was, it appeared by the judg.
ment, no option given as to the venue, which it was
now held should he laid in the cour..where the
death happened. Lacy's case was similar, or even

still stronger, who, having struck a man at sea, wbo
afterwards died on shore, was discharged as not tri-
able at all, the offence having been committed in no
county. The case of murders had supported the
reasonable construction of law on all offences which
had two distinct pails necessary to constitute the of-
fence. The law was settled, that it wai not possible
to try a misdemeanour with the same latitude, as to
place of venue, as hid been laid down in penal in-
dictments. In this case, the obvious inference was,
that the offence should be tried, not in Leicestershire,
where no one knew or heard of the letter, but in
Middlesex, where alone it obtained publicity, and
the consummation of the crime took place. 44 The
King v. Bier"-would no longer be decisive as to
writing alone. 44 Tee King v. Nell and Carter" was
strong indeed, if it were not now doubted whether it
was authority, as the punishment of the apprentice
of the printer, who only set up the matter in types,
was rather severe. .As to the culpability of keeping
by one a libel, it was only punishable in' the Star
Chamber, as would appear by an anonymous case
in Ist Ventris. The Libel Act decided, that a Jury
should be judges of the intention of the writer, as
well as the publication; but, in its enactment, it ap-
peared to confine itself only to the publication, and
was not applicable to the fact of writing it. There
was enough of authority to establish the doctrine,
that if a man wrote a libel from the dictation of ano-
thee, he was guilty of the offence of libel. The
Learned Counsel then argued, at some length, that
there was a deficiency of proof of the publication in
Leicestershire. He agreed with Mr. Phillips, as to
,the presumption being so strong that the publication
took place in Middlesex as in Leicestershire, from its
being first found in Mr. Bickerstaff's hands; and he
could not see that, though the facts were certainly
different, the principle of presumption was the same
in this as in the case of the seven Bishops.
Mr. Justice BEST.—There was not proved one act
to have taken place by the Bishops in Middlesex.
Mr. Justice BAYLEY.—The Bishops, you perceiie,
had admitted the making, but had not said where
they had made or written the libel. The publication'
in person, or causing to be published, was equally an
offence in law: A libel might depart, however, from
the custody of its writer, and yet not amount to a
publication ; as in case of its falling into the fire, and
afterwards being recited by himself, out of vanity, to
other persons; or it might be lost in the streets, and
be published by other persons.
The CHIEF Jusrtec observed, g►at Mr. Justice
Holroyd being obliged to leave the Court, they
would not be able that day to proceed further with
the argument.
The ATTORNEY-GENERAL begged IO know whe-
ther the Court would come to any determination when
they would have leisure to resume the argument?
Mr. Justice BAYLEY said, there were already fifty-
four cases on the special paper, and fourteen motions
for new trials set down. The Court must absolutely
get through the special paper first, before anything
could be done further hi this business.
COURT OF ARCHES, NOVEMBER
BUTTER V. ROBSON.

This was a case of subtraction of legacy instituted
by the plaintiff, Thomas Butter, against Mr. Robson,
one of the executors of the late Henry Holland, Esq.
to recover a legacy bequeathed in the following terms:
" To each and every of my servants and clerks who
shall have lived with me, or been in my service for
three years, two year's salary of wages, at the rate of
such salary or wages as they have previously re-
ceived ;"—and the question now was on the admissi-
bility of the libel pleading such subtraction.

Dr. SWA' in objection thereto, contended, that
the interest of alleged legatee was not set forth
with such distinctness as it ought to have been, and he
cited a case from 2 Vernon, 547, in which it was said
that a Steward of a Court Baron, who officiated also
far other persons, was not to be considered in the
light of a servant attached to a particular individual.
Now it might happen that the plaintiff Butter had
served Mr. Holland in some such vague and tempo-
rary capacity, and then it .would be in the power of
the executor to resist his demand, which he could net
do on the present plea, which was in the general terms
of the will that he had served Mr. Holland two years,
without specifying how or in what capacity.
Dr. ADAMS, in support of the libel, denied that it
was necessary to plead more specifically, inasmuch as
the libel exactly followed the words of the will; and
it might, perhaps, happen, that in describing Mr.
Butter's services, they might find some difficulty to
give a clear description of them under any one par-
ticular head, as Mr. Holland employed many clerks
or servants in a sort of intermediate capacity.
Sir JOHN /sitcstou. said, "the only question here is,
whether the averment in the libel, if proved, will en-
title the claimant to recover the legacy? and I think
in a common libel. of this kind it is not only unneces-
sary to go into great minuteness of specification, but
it is more proper to follow in the averment the exact
words of the will. Here the third article states the
bequest, and the fourth article strictly follows it,
stating that the claimant was in the !ervice of the
late Mr. Holland for two years at such yearly wages.
If the service was not such as to entitle the legatee,
the executors may counterplead but as the libel
stands now, I sde no objection to its admission."
Dr. SWABEY then observed, that there was a tech-
nical error which should be corrected. The citation
first issued (properly) in this cause as against Mr.l
,Robson and his co-executor, but the libel does noel
follow the citation, as it undoubtedly ought to do,
but is directed against one executor only. It was
suggested that there had been some difficulty in
serving the citation op the other executor at the time
(from his being abroad, or some similar reason), and
therefore the libel only mentioned Mr. Robson.
The COURT intimated, that though it might be
more regular to proceed as against boll exectw)rs,
yet undoubtedly either executor might be proceeded
against, for each would be liable.—Libel admitted.

An Inquest was held on Tuesday, at the White{
Lion, in Jathes-street, Covent-Garden, on the body
of J. Dawson, a salesman in Covent-Garden Market,
I who Was .killed by *the wheel of a waggon passing
i over him, he having been thrown from the back of a
hackney coach, which he and others had•t4en is
order to see the illuminations" in consequence of a
' drayman having backed his horses tug rapidly. Ver-
i diet—Accidental Death.