seisin of the place wasted; nor to find a verdict for the defendant for so much of the waste as the plaintiff does not prove, for in this action the plaintiff only goes for damages, and the jury may assess them generally; but yet the plaintiff is bound to set out the nature, quantity, and quality, of the waste, that the defendant may be apprised of the charge, and prepared for his defence. (a)

(a) Serjt. Williams's note, 2 Saund. 252, c, 5th edit.

Action on the Case for Dilapidations.

ANALOGOUS to the action on the case for waste, is the action on the case for dilapidations, which may be maintained by a rector against his predecessor, or the executors of his predecessor, on the custom of England (a); and an action for dilapidations of a prebendal house may be brought by a succeeding prebendary against his predecessor. (b) But a curate, though he receive the tithes by licence or agreement, and have an allowance for the repairs of the parsonage house, &c. yet being but at will, and not coming in by institution and induction, is no incumbent, and his executors, &c. cannot be sued or charged in the spiritual court for dilapidations. (c)

When the premises on which the dilapidations are alleged to have been committed, have been devised to certain persons in trust, to permit the vicar for the time being, to receive the rents and profits, (the expenses for necessary reparations being first deducted,) the common law obligation on the vicar does not attach, the donor of the premises in question having distinctly provided for the necessary repairs in another way. (d) And where the premises were copyhold, and devised to certain trustees in the above manner, and the plaintiff declared that the defendant was seised in right of his vicarage of the premises in question, it was held, that the above circumstances were not proof of such.a seisin as would maintain the action. (e) In an action for dilapidations, where it appeared that successive rectors had been in possession of the land for above fifty years past, but that the absolute seisin in fee of the same land was in certain devisees, since the statute 9 Geo. 2, c. 36, and that no conveyance was enrolled according to the first section of that act, nor any disposition of it made to any college, &c. according to the fourth section, it was held, that no presumption could be

(a) Jones v. Hill, 3 Lev. 268. Wats. Clerg. Law, 409, 2 Burn's Eccles. Law, 153. Sollers v. Lawrence, Willes, 421. (b) Radcliffe v. D'Oyley, 2 T. R.

630.

(c) Pawley v. Wiseman, 3 Keb 614.

Wats. Clerg. Law, 409, but see 2 Burn's
Eccl. Law, 153.

(d) P. Park, J. in Browne v. Ramsden, 8 Taunt. 565.

(e) Browne v. Ramsden, 8 Taunt. 559. 2 B. Moore, 612, S. C.

made of any such conveyance enrolled, (which if it existed, the party might have shewn) and consequently that the rector had no title to the land, and could not recover for the dilapidations, as the statute avoids all other grants, &c. in trust for any charitable use made otherwise than is thereby directed, although in fact, it appeared, that one of the devisees was the then rector, and that the title to the rectory was in Baliol college, Oxford. (a) The successor of a rector may have separate actions against the executor of his predecessor for dilapidations to different parts of the rectory. They are different and independent injuries in respect of the different parts; the injury from the dilapidations of the house is one thing, that from the dilapidations of the chancel is another, and the causes are distinct. (b)

The plaintiff in his declaration must state a title, and if he entitle himself by the resignation of his predecessor, he ought to show how the resignation was made. (c)

(a) Wright v. Smythies, 10 East, 409. (c) 1 Lutw. 116.

(b) Young v. Munby, 4 M. & S. 183.

Action on the Case for Slander of Title.

WHERE a man falsely and maliciously speaks and publishes of another words which tend to disinherit him (a), or to deprive him of his estate (b), an action on the case may be maintained for such injury; but, in order to support such an action, some special damage must have been sustained, for the words are not actionable in themselves. (c) If a man publishes a lease which he himself has, and which he knows to be counterfeit, for a true lease, an action will lie. (d) And so though the words are spoken to a stranger, and not to the intended purchaser (e); and though the party has a remedy against the person who has wrongfully disturbed him in his possession, in consequence of the slander. (ƒ)

If the words themselves appear not to impeach the title, an action will not lie. Thus if the plaintiff declare that A. by fine settled land upon himself for life, remainder to his first son thereafter to be begotten in tail, remainder to the plaintiff; and, that the defendant, after the death of A., in slander of his remainder said, that B. is the lawful son of A., begotten after his marriage, ubi revera he is not so, an action on the case does not lie, for if he was his son after marriage, yet, unless he was born after the fine levied, it is no prejudice to the plaintiff's remainder. (g)

(a) 1 Rol. Ab. 37, l. 27. Com. Dig. Action on the case for Defam. (C. 1) (D. 11).

(b) Bois v. Bois, 1 Lev. 134. 1 Sid. 214, S. C.

(c) Tasburgh v. Day, Cro. Jac. 484. Gerard v. Dickenson, Cro. Eliz. 197. Lawe v. Harwood, Cro. Car. 141. Com. Dig. Action on the case for Defam. (C. 2. 2 Saund. 117, note, 5th edit. But in Elborough v. Allen, 2 Rol. Rep. 248, it was held to be actionable to call a man a bastard, without shewing special damage. Doddridge, J. Diss.

Com. Dig. Action on the case for Defam. (D. 11); and see Bois v. Bois, 1 Lev. 134, and Humphreys v. Stanfield, Cro. Car. 469. See also May v. Hodge, 2 Ld. Raym. 1287.

(d) Gerard v. Dickenson, 4 Rep. 18, a. Cro. Eliz. 197, S. C.

(e) Williams v. Linford, 2 Leon. 111. (f) Per Hale, C. Justice, Newman v. Zachary, All. 3. Com. Dig. Action on the case for Defam. (C. 1).

(g) Booth v. Trafford, Dal. 105. Com. Dig. Action upon the case for Def. (C. 2).

To maintain this action, the slander must be such as goes directly to defeat the plaintiff's title. (a)

This action will, it is said, lie by an heir apparent, who has an expectancy which is endangered by the words (b); or by a younger son, who, on the death of his elder brothers without issue, would be entitled under an entail. (c)

It should seem, that two jointenants, or coparceners, may join in an action of slander of their title to their estate; for as it must be shewn in the declaration, and proved, that the plaintiffs received some particular damage, by reason of the slander, the damage, as well as the interest in the estate, is joint. (d)

In order to sustain this action, there must be malice either express or implied (e), for malice is the gist of the action. (ƒ) Therefore, where the defendant speaks the words bonâ fide, claiming an interest in the property, no action will lie; for otherwise, no one would be able to make a claim or title to land, or begin any suit, or seek advice, or counsel, without subjecting himself to an action. (g) And this rule extends to the agent or attorney of the party so bonâ fide claiming an interest, who delivers a message sent by his client, if he does not vary in any material point from the words used by his client.(h) And where the words are spoken by a counsel, or attorney, to his client, who advises with him upon the purchase, they are not actionable. (1) But, unless the party making use of the slanderous expressions, acted under the direction of the person interested, an action will lie. (k) The rule, that no action can be maintained where the defendant claims an interest, will not extend to the case where he knows that he has no title, but maliciously asserts that he has. ()

(a) Per Ld. Mansfield, in Hargrave v. Le Breton, 4 Bur. 2425.

(b) Humphrys v. Stanfield, Cro. Car. 469. 1 Rol. Ab. 38, l. 5, 15. Com. Dig. Action on the case for Def. (D. 11); but quære as to special damage. See post.

(c) Vaughan v. Ellis, Cro. Jac. 213. In this case there was special damage. (d) Sergt. Wms. note. 2 Saund. 117, 5th edit.

(e) Hargrave v. Le Breton, 4 Burr. 2422.

(f) Per Lawrence, J. in Smith v.

Spooner, 3 Taunt. 255.

(g) Gerard v. Dickenson, 4 Rep. 18, a. Cro. Eliz. 197, S. C.

(h) Hargrave v. Le Breton, 4 Bar. 2422.

(i) Johnson v. Smith, Moor, 187. Com. Dig. Action on the case for Defam. (C. 2).

(k) Rowe v. Roach, 1 M. and S. 304. (1) Per Mansfield, C. J., in Smith v. Spooner, 3 Taunt. 251. Gerard v: Dickenson, 4 Rep. 18, a. Cro. Eliz. 197, S. C.