The Express.
London, England, 1862-04-24 00:00:00

THE EXPRESS. THURSDAY EV

ttu rtt,ltgtnrt.

COVIZT OF QUEEN'S BEM:IL—APRIL 23.
Sittisss is Buico.—iliefure Justices Crunipton, Blackburn,
and Mellor.)
!lOLOMAN r. LARDER AND ANOTHER,

Mr. fterjesnt Mee said this was an action tried before Mr.
Justice Blackburn, at Wesuismater, when the jury returned
a verdict for the pinintilt --.l:iti *g.* .Nl. The defendants
are cv,limisl brokers, and the action wasbrought to recover
damages for selling, for lean than their real value, a quantity
of ostrich feathers. The learn." serjcsut moved fora role
nisi, calling upon the *lone onooc why anew trial
should Dot be bad on the ground of misdirection against
evidence, Ire.
Rule nisi greeted.

yea sad your family. I offend lb feCaptain Sainte% .tilad
he refuted it ; and now 1 give Mto yeu." The lamed
cement cootioued by saying that the statement which lie
Le 1 1.,.1110 was takeu from. the Chief Justice's sommiog up,
land the lemed judge went on to say that Mrs. liroun coo-
-1 tr,dicted it in very positive terms. The only goodies
which the judge left tip the jury was, which of the two
wituesses they believed, the plaintiff or the defeodant,
to the version given of that oonvereation ; and be said tiff
eappesing that the conversation which the plaintiff de
to had then place, whether that would give him a rig t to
retain the verdict be would oleain was • question which
need not be thin discussed. Mr. Kennedy went on to say
that she willingly assented to give bin, a deed of gift of the
es reversion of the tate, and that he drew up such • deed,
which she requested should be executed privately ; and fur-
ther, that Mr. Collies' a solicitoe, a friend of Mr. Kennedy,
whom he had introduced into the case as attorney for Mrs.
Swilden, should edema it. Mr. Kennedy went down the
evening before, and on the. morning of the 10th May, 1839,
the laity called at Mr. Colluis's office, found the deed already
engrossed, and executed it. From that time Mrs. Swinfen
and Mr. Kennedy cootinsed upon the most intimate terms
of friendship until September or October in Last year, when
a breach took place under circumstances which were pecu-
liarly painful, and which attached to Mr. Kennedy an
amount of opprobrium which it was distressing to think of
Si attaching to any human being. He had been in the
habit of visiting at Mrs. Swinfen'e constantly, and • good
deal was said about the terms which really subsiated be-
tween them.
The Lord Chief Justice—The cardinal question was
whether there was an account stated upon which an action
could be maintained, and these detail* did not cogently bear
upon that point.
Mr. Macaulay—But the question was raised who was to
be believed, from whose credit there was to be the largest
deduction upon account of supposed misconduct.
The Lord Chief Justice admitted that this was so. It
was opposable to medicate what was relative and what was
not when there wee • conflict of credit between two pawns.
Mr. Mambo—It was important also in this way, that
if the relation which Mr.
_Kennedy represented
existed. it was highly improbable that in the
very heyday of immoral intercourse between them
they should sit down upon • bench in the Zoological
Gardens, and that he should say, " Patients, do you owe
me '
20,0001.1" and she should say, " Yee • I do." He mid
that they were closely aseiciated in the early part of the
business, and that she used to sit at • table writing for him
as amanuensis, and that on one mission she said playfully,
" If all other things fail, I can get my living se your
clerk ;" and he said, " No ; you shall be coy sister." About
six months after the date of this incident, a latter from
Mrs. Swinfen began, "My deer Charles,-1 think that this
is an improper way, but as you insist epee it, as between
brother and sister, I assent to it." Xt. Mitiasdy asserted
in his libels that for two years they were living
in an immoral manner ; and after this she wrote to
him to say that she had contracted an engage
meut of marriage, and continued, " For all this, I
still wish to remain your affectionate friend," and added,
" Now don't throw yourself into • violent passion." It was
impunities to convey to their lordships fully the sort of
=which Mr. Kennedy could fall into, but in mu d
et la reference to the compromise lie said that It had
heesees arm ary to contend that the apessuat was
weld for Ilegality, that it mast be shown that there was a
eseroleney between the judge and the counsel, and that
ettlemes should be got to swear to the unfairness of the
Page ; that hie midwee mud up to the moat savage
ferocity spinet the delimpsets. whom he could utterly es-
fiertnisate. There was samara letter, Ia which he add
that she was perfidious is ocatractieg • mushy
"which would render his deed void, but saying
wain about the promise of 20,0001. A gentle-
ma mat to him from Mrs. Swinfen with • port of general
antheity, and said. " Would 10,0001. tempt you to pert
with the deed r but Mr. Kennedy would sot be tempted,
and the Oak fell through. Boort afterwards Mr. Kennedy
published beaffitills containing an advertisement of his in-
tended patephiel making imputations upon Mrs. Swinfen.
The dihedral mare most distinctly that at no tines was
there any midi= mode by Mr. Kennedy of any rammer*.
tiou to be geld Ultima, but that he ailed with a view to for-
ward MINK la his protearion, and from dislike to the
persons culeseasd on the other side, and that down to the
time this intim was brought tiers was not a .syllable
said shed 20,0001. or any specific sum, but
that the esly time money was motioned was when
he cemPalsed of the rained condition of • printing eata-
Without wish which he was connected, and she asked him
to weep lON. With regard to the transaction of April,
1869, tier version was that Mr. Kennedy spoke to her about
his being is some dignity or distress, and said that it
would be avast thisg for him if she would execute • deed
to enable him to miss money, and that she might cooed' in
him and depend upon the deed befog forthcoming. She
said that she had perfect confidence in hint, and she con-
wanted to execute the deed, and than was this allusion to
the circumstance in • letter of hers two or three weeks
afterwards, where she said, " I have proved that I have
faith in you. I told you that in order to rive yourwould
die for you if necessary ; that was not required,
but what was required I have done." She swore that
this referred to her confiding in his homer as to the deed
to enable him to raise money, and she was not cressex-
mined upon that. Mr. Kennedy's vendee was that it had
reference to the 20,000 f. The leaned ceased submitted
that even if the evidence of the plaintiff stood by itself! it
did not lay the substratum for au "account stated," which
meant • statement of account in reference to some antics-
dent legal liability. There were a number of eases which
showed that if the matter upon which an account stated
rested was one in reference to which an action would not
lie, then no action could be maintained upon the mount
The exception to this rule was stated in the strongest way in
" Cooking s. Ward," IC. 8., that "an account may be
stated concerning a matter where the plaintiff is without
legal evidence in support of his case," and not where the
debt was not • legal debt. There were the cues of "Porter
re Cooper," 1 Cr. M. and 11,, 387, and "Le Mare r.
C. H. and N., 656.
The Lord Chief Justice said it was not necessary to state
those caeca, for the rule of law was sufficiently clear for the
purposes of the day.
Mr. Macaulay also referred to " Vetch v. Ru sell,"
3 Q. 8., which was an action by a physician for fees. •
Mr. Justice Wills, thought that this had no analogy he
the present case. A counsel had exclusive privilege ap-
pearance in certain courts and as such • certain law me
applicable to him.
Mr. Mecaulay—Aod every act of his would be Mood U
not exprusly legalised, for he was • maintainer of them*
he was anpged in. In the 2 lostitute, wesisimei hag
the statute against " mintenance "prod that se Aim
or other person should take upon himself lbe beam et
any suit ; but, added the author, "it may sot be India%
stood hereby that soy person i• forbid to have conned
of pleaders or learned men in the law for their fee." He
submitted further that there was no evidence to go to the
jury of legal liability, and that there was misdirection in
this, that his lortithip simply. asked the jury whatbse
they believed the account given, whereas he their
have asked them whether they ware of opiates
that the language used amounted to an actual
contract for payment, or was it simply the language
of • client promising a gift to counsel. He, iu addition,
submitted that the verdict was spinet the weight of evi-
dence, for bow could it be supposed that the defendant in-
tended to make herself liable for 20,0001. upon sa acoonat
stated, as well as for 20,0001. upon the died ?
Mule granted upon all the points.