The Sun.
London, England, 1853-01-26 00:00:00

NEWTON
STEEPLECHASES.

(THIS DAY.)

(BY ELECTRIC TELEGRAPH.)
THE GOLBORNE STEEPLECHASE STAKES.

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Eight ran.

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LAW INTELLIGENCE.-(THIS DAY.)

COURT OF QUEEN'S BENCH.

(Sittings in Banco, before Lord Campbell, Mr. Justice
Coleridge, Mr. Justice Wightman, and Mr. Justice
Erle.)
THE QUEEN (ON THE PROSECUTION OF DR.
ACHILLI) V. DR. NEWMAN.—JUDGMENT.

This morning having been fixed for giving judgment
in this important case, the court was very much crowded,
both by the bar and the public.
Nearly all the counsel engaged on each side were
present.

Lord Campbell said—We are of opinion that in this
case the rule for a new trial ought to be discharged. The
defendant has pleaded two pleas to the information, and

we think that on both pleas the verdict must stand for
the prosecutor. The defendant having admitted the
publication of the libel, and that it contains defamatory
charges against the prosecutor, there is no defence under
the plea of not guilty. The second plea of the defendant
alleges the truth of the matters charged in the libel
against the prosecutor, and says that it was for the
public benefit that these matters charged should be pub-
lished. This plea, so framed, rests on the statute of the
6th and 7th Vic., cap. 96, sec. 6. Before this enact.
ment the truth of the charges contained in a libel was
no defence to an indictment for publishing it ; the truth
could not enable the defendant to set up a defence under
the plea of not guilty, and no special justification on the
ground of truth could be foleaded. It was even said
" the greater the truth the greater the libel ;" but the
Legislature, thinking that such an enactment, misap-
plied, had brought discredit on the administration of
justice, and that, under certain circumstances and under
certain modifications, the truth of a libel might advan.
tageously be inquired into and be made to constitute a
complete defence, it passed the present statute. But this
statute provides that, until the defendant gives evidenc3
of the truth of the matters charged in his defence to the
indictment or information, it shall be necessam for
the defendant pleading to it to allege the truth of the
said matters, and further to allege that it was for the
public benefit that they should be published, to which
plea the prosecutor should be at liberty to reply gene-
rally, denying the whole thereof. This is quite clear,
that when the prosecutor, in reply to such a plea, says
that the defendant published the libel without the causes
alleged, and when issue has been joined on the replica-
tion, the prosecutor is entitled to a verdict, unless the
defendant proves to the satisfaction of the jury the truth
of all the allegations. What the jury have to decide is,
whether the whole plea has been proved or not. If they
find it is, the defendant is acquitted ; if they think that it
is not—that the defendant wrongfully published the libel
without the cause alleged—then he is guilty. The Legis-
lature did not contemplate that any question should be
put to them as to how much of the plea is true, for with-
out the truth of the whole a conviction must take place,
and that must be followed by a sentence. Nevertheless
the Legislature wisely thought that, although under
such circumstances sentence must be passed, a
just measure of punishment might depend upon the
unsuccessful plea of justification, and the evidence ad-
duced in support of it. In some cases, where the de-
fendant has no substantial evidence to support the plea,
he may attempt to support it by false testimony. On
the other hand, he may have had reasonable grounds for
believing that he could prove the whole of it, and he
may bring witnesses to substantiate a part of it, while
the material part of it may not be substantiated. Where
there has been a conviction, after a plea of justification,
what course is to be followed, so that justice may be
done, and a due measure of punishment meeted out, ac-
cording to the guilt of the defendant ! It is quite clear
the Legislature has enacted that, if, after such a plea,
the defendant shall be convicted on such an indictment
or information, it shall be competent for the court,
pronouncing sentence, to consider whether his guilt is
aggravated or mitigated by such plea, and by the evidence
given to prove or disprove the same. Such being the
existing law on the subject, let us apply it to the present
case. The defendant's plea of justification complies fully
with the conditions of the statute, for it alleges the truth
of all the matters charged in the libel, amounting in the
justification to twenty-seven distinct charges, and further
alleges that it was for the public benefit that all the said
matters should be published. The prosecutor replied,
denying the whole of the plea, and thereupon a single
issue was joined. After much evidence had been given
on both sides, the jury expressed their opinion that only
one of the charges mentioned in the plea was proved to
their satisfaction; and as to the issue joined on this plea,
the verdict was accordingly given for the prosecution.
The counsel for the defendant, in arguing the rule for a
new trial, hardly found any fault with the opinion ex-
pressed by the jury as to a considerable number of
charges mentioned in the plea, several of them being of
a very aggravated nature, such as saying that the
prosecutor debauched, seduced, and carnally knew
Rosa Di Allessandris, then being a chaste woman,
and robbed her of her honour, and that he was found
guilty of having so debauched, seduced, and carnally
known her, and robbed her of her honour, by the
Bishop of Viterbo ; such as the Bth charge, that ho car-
nally knew a certain other woman, then being chaste
and unmarried, whose name the defendant was unable to
ascertain, and robbed her of her honour ; such as the
Bth and 9th charges, which related to similar offences ;
such as the 15th charge, that he had been dismissed
from the college at Malta, among other things, for
offences which the authorities were unwilling to state or
describe and which they had hitherto refrained to state or
describe specifically ; such as the 20th charge, that the
prosecutor, after having debauched, seduced, and car-
nally known and robbed of her honour the said Rosa
Di Allessandris, he was obliged to give large sums of
money to her father as hush money, and by way
of compensation for the damage sustained by the
father, by loss of her services, and that this would be
proved by the reports and documents of the police at
Viterbo ; such as the 21st charge, that in and by certain
documents in the archives of the police, at Naples, it was
reported and declared that the prosecutor was known for
his habitual incontinency. In support of some of these
charges no evidence whatever was offered, and the jury
were clearly justified in finding that they were not estab-
lished. There is no affidavit alleging that any further
evidence can be given in support of them, and it is ad-
mitted that if a new trial be granted, the verdict of the
jury must still be that the defendant published the libel
without the cause alleged by him in the plea of justifi•

cation.
Mr. Sergeant Wilkins-1 think your lordship is under
a mistake ; we certainly did not make any such admis-

sion.
Lord Campbell—l apprehend it was admitted. It
could not possibly be denied.
The Attorney-General—We only admitted the facts
which were proved before your lordship.
Lord Campbell—There was no affidavit, or any sug-
gestion as to further evidence being offered in support
of these pleas, therefore, it was virtually admitted that

there must be a conviction on a new trial, whether there
was a direct statement to that effect or not. It was
quite clear that a verdict on the issue raised by the pleas
of the defendant must inevitably be for the prosecutor.
That must be taken as a clear fact in the case. There
was no suggestion of surprise, or that the case would be
at all amended on a future occasion. I consider, there-
fore, that if a new trial were granted, the verdict would
be that the defendant published the libel without the
cause alleged by him in his plea of justification ;
so that he would be again convicted, and again
brought up to receive the sentence of the Court. The
defendant's counsel confined their complaint to the opinion
expressed by the jury as to some charges of the prosecu-
tor. These certainly were of a very heinous character,
such, namely, as charges of seducing Eleanor Valenti,
at Viterbo, and Maria Principe, at Naples ; of adultery
with the wives of Carriboni and Garriboni, at Corfu ;
and of having had illicit intercourse with certain females
in this country. It has been very powerfully argued
that, with respect to all these charges, the jury were
wrong in saying they were not true, and that another
jury would come to a different conclusion. Now, even
if we were of opinion that with respect to any one of
those charges the evidence greatly preponderated
against the prosecutor, we, I conceive, could not with
propriety set the verdict aside and grant a new trial.
The only argument at bar which led to a different
conclusion was, that the plea might be considered as dis-
tributed, and that the jury were entitled to find a ver-
dict for the defendant on any part of the libel, which
was covered by a corresponding part of the justification,
which they found to be true. But this argument pro-
ceeds on a fallacious assumption. It has been uni-
formly held that in civil actions for libel, the plea of
justification is one and entire plea, It raises only one

issue, and unless the whole plea is prove 1, that issue must
be found for the plaintiff. Some difference of opini(
has prevailed, and it has been held that a partial justifi-
cation in a civil case ought to operate in the reduction of
damages, but all authorities agree that there can be no
partial finding for the defendant on the ground of the
justification being partially established. In a cri-
minal prosecution for libel, where the Legislature
has given the defendant liberty to plead the
truth as a defence, without any special direction in
case the whole justification should not be proved, the
jury would have no right to find that part of the justifi-
cation is proved, for there are no damages to be assessed
and the sentence to be pronounced rests exclusively with
the Court. But all doubt on the subject is removed by
the provision made by the Legislature, that wherever
there is a conviction after a plea of justification,
the Court, in pronouncing sentence, shall consider whe-
ther the guilt of the defendant is aggravated or mitigated
by his plea, and the evidence given to prove or disprove
the same. It is for the Court to consider the evidence
on one side and the other, and to form their own conclu-
sions whether it aggravates or mitigates the guilt of the
defendant. But their conclusion as to the sentence is to
be regulated, not by any declaration of the jury, as to
the credit which they think ought to be given to the
witnesses examined. It is quite clear that the opinion
expressed by the jury as to any particular parts of the
plea, as to the whole, for instance, not being proved,
could not be entered on the record. It may be reported
by the judge who presided at the trial, to the Court hi
whom the sentence is pronounced; but still the judges in
deliberating upon the sentence are bound to form their
conclusions on the evidence, and if it aggravates or mid-
gates the guilt to apportion the punishment accordingly.
The evidence, as it appears on the notes of the judg,r°
who conducted the trial, comes in the place of the pr°'
duction of affidavits as to the aggravation or mitigation
of the punishment when sentence is to be pronounced,
and it will be much more satisfactory than affidavits,
because as the witnesses were examined viva voce, and on
opportunity given for oross-examination, what they s3l
is much more satisfactory, and will afford a better
foundation for the sentence that is to be pronounced'
Under these circumstances, how can we set
aside the verdict, and grant a new trial
That course is adopted only when a different verdict
may be expected ; but here it is admitted that the ion:
has been properly formed, and that the jury must fin",
that the defendant published the libel without the allege'
cause of justification. Again, the defendant must col°
before us, and the evidence will have to be considered
by us in measuring out his punishment. For thesea
reasons the rule for a new trial must be discharged, on,
sentence must be pronounced. When the defendant i°
brought before Court to receive judgment, we will, 1114
the discharge of our sacred duty, consider whether hi{
guilt has been aggravated or mitigated by his plea °°
justification, and the evidence given to prove or disprov;
it ; and by so doing we conceive that the intentions
the Legislature will be strictly fulfilled, and that the COi9
of justice will be fully answered.
Rule discharged.
Sir F. Thesiger applied to the Court to certify that 00
prosecutor should be indemnified in respect to the COs
observing that, under the act alluded to in the judgine.,l'
the prosecutor, when a verdict was found in his favn_..e'
was entitled to recover from the defendant the costs sw'
tamed by reason of his plea of justification.
The Attorney-General trusted, as he had another
ej
gagement, that the question of costs would be defer/.
until a future occasion.
Lord Campbell—We shall give no opinion on the°
tI
ect until we hear both sides.
Sir F. Thesiger said he understood it would be 09-
venient for Dr. Newman to attend to receive the judgincot
of the Court on Monday next, and perhaps the Co
would fix that day for passing sentence upon him.
Lord Campbell—Very well. ba
It was then arranged that Dr. Newman shoo- to
brought up for judgment on Monday, and that
question of costs should be deferred until then. , for'
Lord Campbell suggested that, in order to avoid
ther expense, it would be better to dispense with ,c 0
davits in mitigation or aggravation of the sentetifso
having reference to the evidence at the trial. Of c° tot
additional affidavits would be produced if any new 23°
could be urged on either side.

SECONDARIES' COURT.
(Before Mr. Secondary Potter.)
,
THE EFFECT OF THE STATUTE OF LIMITATION.--
11
v. TRENDALL.
35 This was an action to recover the sum of 7 1 'l,
balance of an account for goods sold and delivered
Mr. Lucas appeared as counsel for the L.6tr:' Qbe
stated that plaintiff resided B Ism

iiriunarßyuc t ko inNgtv
account extended from Fe ember' 1 S-46"
consequently, if it could not be shown that they °r
or
been an admission in writing of the debt being.i the
unless a payment had been made on account willotill;
prescribed period, the demand was extinguished.
case, he should be able to show that the defendo
to
paid on account
Plaintiff was• called, and -roved that as the col)6' t

cane., . pro a.
was closed in November, defendant paid him 11' lei
cember of the same year, after which he left his rest
in Sprigg's-alley, Oxfordshire, and went to Leedsl,e
only returned in time to receive the writ within t'
years. 006
The whole of the case rested on the testinionY.
plaintiff and defendant—the payment of the 11. 1-
,
cember bringing it within one month of the statutete
The jury, without hesitation, found for the 061
the amount claimed.
NELSON V. BROOME. • id

This was an action against Harry Broome for j
_
expenses and preparing accounts. • ~AOF4
Mr. Duncan appeared for the plaintiff, but an „fc11"
ment was come to between the parties, and e '
taken by consent.
desot
The court was crowded to excess by parties -
of hearing the case, who went away evidentlf
pointed. oil