The Sun.
London, England, 1851-06-18 00:00:00

MAJORITY-NOES, 76.

Adair, R. A. French, F. I'rice, Sir Robert
Anson, Colonel Geach, Charles Ricardo, Osman
Babies, M. T. Gibson, T. M. Rich, Henry
Baring. sir F. Grangerj. C. Richards, Richard
Bell, Jacob Greufell, C. Pascoe Roebuck, J. A.
Bellew, R. M. Grey, Sir George Russell, F. C. H.
Bentinck, Lord H. Grey, It. W. Sandars, George
Birch, Slr I'. Harris, Richard Smith, J. Benjamin
Boyd, John Hatchell, John Somerville, Sir W.
Boyle, Colonel Hawes, Benj. Stanton, W. S.
Bright, John Hey-worth, L. S:ephenson, Robert
Brotherton, J. Howard, Lord E. Strickland, Sir G.
Brown, W. Hume, Joseph Thompson, Colonel
Carter, J. B. llumphery, Ald. Townsheud, Captain
Cobden, R. Kershaw, James Trelawny, J. S.
Cockburn, Sir A. Lewis, G. C. Verney, Sir 11.
Cowper, W. F. Loveden, Pry-se Vivian, J. H.
Craig, Sir NV. G. Mackie, John Walmsley, Sir J.
Crawford, Rob t. W . Mackinnon, W. Wilson, James
Crowder, R. B. Mitchell, T. A. Wood, Sir Charles
Dawes, Edward Morgan, li. K. Wood, Sir W. P.
Halides, Admiral Mostyn,.E, M. L. Young, Sir John
Dirndls, Sir David Mowatt, Francis
Ellis, John
__ _ Palmerston, Viscount TELLERS.
Evans, J. Parker, John Hayter, W. G.
Ferguson, Sir E. Perfect, R. Hill Lord Manta
Fox, W. J. Pilkingteu, James ,

LAW INTELLIGENCE.
COURT OF QUEEN'S BENCH, June 17.
THE DUKE OF ISRUNSWICK v. HARMER.

, showed Mr. Chambers, Mr. Atherton, and Mr. Hugh Hill
cause against a rule, calling on the plaintiff to show why the
Master should not be at liberty to tax the defendant's costs
of the first trial which had been had in this case, so as to
make the plaintiff pay the costs of that trial. This was in
substance an application to alter the terms of the rule on
which the new trial was granted. Such an application was
the first of the kind. There were no new statements of
fact which should alter the decision of the Court in this case.
The action was brought in February, 1848, in respect of
articles in the Dispatch newspaper of September, 1830, and of
July, 1847. The plaintiff at the first trial obtained a verdict
for 5001. damages, on the evidence of one Rheinhold. An
application was made for a new trial, on the ground that the
defendant was taken by surprise by that witness's evidence,
whirls was alleged to be quite untrue. The rule was ob-
tained on the affidavits of Mr. Steele, the defendant's attor-
ney, and four or five other persons. On showing cause, the
Duke of Brunswick, Rheinhold, and some other people made
affidavits. The question was, whether Rheinhold's statement
made at the trial, as to the mode of obtaining the newspaper,
had been true or not. All that was said by these parties was
duly considered by the Court when that rule was made ab-
solute for a new trial. The Court would therefore do nothing
unless some new facts were brought to the notice of the
Court. None such appeared here. There was no one of the
affidavits, on either side, that at all implicated the Duke.
On the contrary, there could be no doubt that he had been
deceived by the statements of Rheinhold, and that when he
called that person as a witness he fully believed Rheinhold's
statements to be true. The only person whose affidavit went
to impute to the Duke a knowledge of the falsehood of
Rheinhold's statements was a person named Eason, who
pretended to have been at Brunswick House, to have had
conversations with the Duke, and to have informed him of
the particulars of Rheinhold's evidence. Every statement
of Eason's as to this matter was contradicted by the Duke
himself, and by three or four other persons, who showed that
Eason had not been at Brunswick House at the time stated.
Sir F. MESMER, was heard in support of the ru'e, and
said he belived the proposition put forward by the Learned
Counsel on the other side, that the Court could not disturb
a rule where the new matter; alleged was within the know-
ledge of the parties at the time when the rule was made,
was a correct proposition, and would apply in the present
case. He apprehended that their Lordships had an inherent
jurisdiction with regard to costs on an occasion of this kind,
when their Lordships found that they had been deceived,
and that there had been a perversion of truth and justice,
and he could undertake to satisfy them that not only had a
verdict been obtained by wilful and deliberate perjury, but,
in point of fact, that the plaintiffs conduct had been such,
and the opportunities of explaining his conduct so striking,
that their Lordships would come to the conclusion, under
the circumstances, that they ought to indemnify the
defendant against ;the costs which he had most
unjustifiably been made to incur. Now, when his
Learned Friends said nothing of the kind was
ever heard of before, perhaps they were not 'aware of
the case of "Anderson r. George," in the Ist vol. of Burrow's
Reports, page 352, where the plaintiff obtained a verdict by a
trick, and where Lord Mansfield set aside the verdict with-
out the payment of costs, but declared the next time a party
obtained a verdict by an unfair or " unconscionable" advan-
tage, without trying the real qcestion, he should set aside the
verdict and make him pay the costs. Now this was a case,
not where there had been an " unconscionable" and unfair
advantage taken of the defendant, but where, he should show
their Lordships, the verdict had been obtained by perjury.
The action was for several libels, one of them being for an
article published in the Weekly Dispatch on the 19th of Sep-
tember, 1830 ; the other alleged libels were articles contained
in copies of the same newspaper, published at different dates,
in 1847. In answer to the charge for the libel on the 19th
of September, 1830, the statute of limitations was pleaded,
and therefore it was absolutely necessary for the Duke of
Brunswick to have the means of proving the publication of
the newspaper within six years, and for that purpose he
called as his witness this Casimer Rheinhold, who declared
that he had gone to the MTh& Dispatch office prior to the
14th of March, 1848, being the day on which the action was
brought, and that he there bought a copy of the 'freckly
Dispatch, which he produced at the trial. Of course the pro-
duction of such a witness was necessarily a surprise to the
defendant, who was not in the least degree prepared for the
evidence he gave. On inquiries being made after
the trial the defendant had good reason to
believe that the statement made by Rheinhold
was entirely false—that no such newspaper was in the Dis-
patch office at the time. But Rheinhold alleged he purchased
it there, and accordingly an application was made to the
Court for a new trial, founded on the affidavits of various
parties, which:were produced in order to show that Rheinhold
had sworn falsely. Of course the Court on that occasion
came to no conclusion on the subject beyond that there were
circumstances in the case to justify the Court in sending it
down for a new trial, and having investigated further the
truth of the statement which Rheinhold had made; but the
Court indicated its own impression with respect to the ex-
traordinary circumstances under which It heinhold's testimony
was adduced by making a rule that the costs of the case
should abide the event of the trial. When the Court sent
down the case for a new trial of course it anticipated that
Casimir Rheinhold would be called on at the second trial
and would repeat the evidence which he gave in the first in-
stance, and that the evidence adduced in the affidavits would
be brought forward in answer to the statements of Rheinhold,
and that the whole matter would go to the jury for their
consideration and determination. Their Lordships would
see that this was not a case of disputed facts, in which there
might be contradictory evidence, and in which it might be
difficult to say where the truth laid, but there was a simple
isolated fact to be ascertained for the purpose of getting rid
of the plea founded on the statute of limitations. It was a
remarkable circumstance, and one which should not be lost
sight of, that from the beginning to the end of the Duke of
Brunswick's affidavit Casimarßheinhold's name was not once
mentioned, nor any attempt whatever made to deny tht t
he had an interview with him, or that he knew his address.
He contended that the defendant had been brought to his
present position by the conduct of the plaintiff himself,
because, had it not been for Rheinhold's evidence on the first
trial, there could be no doubt whatever but that the verdict
would have been in the defendant's favour. The defendant

in fact had been compelled to pay costs by reason of the deli-
berate perjury of liheinbold, while what took place on the
second trial established beyond all question that the Duke
had been fully aware of the fact that Itheinhold's evidence
was not true. Now, had the Court been aware of that when
they made the original rule, would they nut have made the
order for which he (the Learned Counsel) was now contend-
ing ? If the Court had been aware that the plaintifrobtained
his verdict by such scandalous means, would they not at once
hove ordered that he should pay the costs of the other
side? Ile was prepared to insist that the Court had jurisdic-
tion over these costs; and, having that power, the next
question arose was, how best they could exercise that juris-
diction for the benefit of the public. Ought they not to use
it in favour of a party who had been most improperly loaded
with expenses which he would not have incurred had it not
been for the plaintiff's own misconduct ?
Mr. Justice PArrxsoN asked if there was any instance
where the Court had ordered the successful party in a trial

to pay the costs ?
Sir F. DIESIGER did not know of any ; but this case,
as it now stood, was precisely the same as it there had been
no verdict in the plaintiff's favour ; and their Lordships
would not be doing justice to the defendant if they acted
under the impression that the first verdict was good.
Under these circumstances he submitted to their Lordships
that it appeared clear that the plaintiff had been immediatecouldly
connected with this perjured testimony, and justico
only be done by making this rule absolute.
Mr. JAmEs,Q.C., and Mr. Bova!, were heard on the same

side.
Lord CAltrnam, after consulting with the other Learned
Judges, said, with some degree of warmth—ln this case 1
unfortunately differ from my brethren as to what ought to
be done; and entertaining a strong opinion upon the subject,
it is my duty to express that opinion openly. I think the
rule ought to be made absolute. The first question is,
a
whe-
ther the Court has power to award that the costs shall be
paid by the Duke of Brunswick. Upon that point I can
have no doubt; the defendant has succeeded in the action ;
there is a particular verdict in his favour, and judgment
,
has been entered up upon that verdict. w having suc-
ceeded in the action, ought he not to be?inaemnitled for the
costs he has incurred in defending it
have the costs of defending himself Ought he not to
trial when a wrongful verdict was returned oagainsthet
him.first
Generally speaking, where there is a new trial granted, it is
upon the payment of costs, because it is to be supposed that
no fault can attach to the winning party;
appear clearly and distinctly that the first
b v
erud
itc
ti f it
had s should
obtained by perjury, and ere is reason to believe that the
party obtaining the verdict. was privy to the perjury, he
ought not only to be deprived of costs, but to pay the costs
of the other side.
ld
in the case to which was the opinion of lir,dnDlearn3oti c.
reference had sn
George," where he says that if a plbaienentiffmoabdteained "Anderson
.verdict
by a trick, and the verdict was afterwards set aside the
plaintiff should be compelled to pay costs. Now surely,
in a case where it has been shown that a verdict was ob-
tained by perjury, should we not act upon the same rule, and
order the plaintiff to pay the costs? Certainly I think we
should, for the defendant is not indemnified unless lie ob-
tains the costs necessary upon defending himself when the
verdict was obtained against him by perjury. Then, if the
Court has power to award that the costs shall be paid by the
plaintiff iu cases where the verdict has been obtained by
perjury, what prevents that power being exercised?
It is said that there is no precedent for such a
proceeding; well, thou, if there is no precedent, I
think it is fit that such a precedent should be made. I have
no scruple in giving my opinion that this is a fitting occa-
sion for making that precedent. To be sure, when the rule
was made by the Court for a new trial, it was not then or-
dered that the verdict should be set aside, with the coststobe paid by the plaintiff, because the facts were not then
fully complete or properly before the Court, otherwise, in
my
opinion, the Court ought then to have set aside the ver-
dict, and ordered the costs to be paid by the plaintiff. But
the Court, Upon that occasion, only *et ft-Kit the Verdict,

directing that the costs should abide the event—that is to
say, if the plaintiff succeeded upon the second trial, he
should have his costs. At the time the rule was granted
there was nothing to convince the Court that the verdict
had been improperly obtained, while the Court had
every reason to believe that Casimir Rheinhold
would be again called, to be confronted with
those who could show that he had been guilty
of perjury. Under those circumstances, it would have
been unbecoming in the Court to have pronounced that
Rheinbold had been guilty of perjury by ordering the plain-
tiff to pay the costs. Therefore I think the rule was pro-
perly framed, that the verdict should be set aside, the costs
to abide the event. But what has since happened? Con-
sider what has taken place since that rule was made. One
objection made to this rule is, that the application has
come too late, but I think it could not possibly have
been made sooner, because the former rule having
been granted, it would have been impossible un-
til the second trial had taken place to apply
to reframe the. rule. Even if the defendant had been in pos-
session of any evidence to show that perjury was committed
on the first trial, the Court would not have entertained an
application to alter the terms of the rule until the second
trial had taken place. Therefore I think no delay is attri-
butable to the defendant. Ile makes this application when
the costs are to betared, and the question is what costs he
_
shall be allowed. Now I hope we are not to be governed by
any technicalities, such as those which have been urged upon
us, that after a rule has
once been made it cannot be altered.
The Court has always in its own power to control any rule
which it has pronohnced until final judgment has been ob-
tained upon it. Well, then, is there not strong evidence in
this case from whichit may be fairly inferred that the first
verdict was obtained b.y perjury, and that the plaintiff was
privy to it. That Rheinhold perjured himself I cannot enter-
tain the smallest doubt, because upon the application for the
new trial there were the strongest affidavits to show that no copy
of the newspaper had been published, that none could have
been purchased in the manner described. But when the se-
cond trial took place, where was Casimir Rheinhold: lie
was not forthcoming. Certainly he was net in the witness-
box. The Learned Counsel who conducted the case for the
plaintiff said it is much to be regretted that Casimir Rhein-
hold cannot be called. He said he could not he found, but
at all events he was not called, and therefore there was no
evidence at all to support the libel of September, 1830, and
the defendant obtained such a verdict as he would have se-
cured on the first trial, had it not been for this perjured evi-
dence. The defendant would have been entitled to his costs
had Casimir Rheinhold not been called on the first trial, and
surely it could not be said now that he was not equally
entitled to them. What evidence is there to lead
to the conclusion that the plaintiff could not have been
cognizant of the perjury? He has denied what has been
sworn by Eason, but he has taken no notice_
He swears
of what is
sworn by Goddard. Now what does he swear?.
that he saw Casimir Rheinhold go into Brunswick House on
the 18th of January, a few days before the trial, and the
Duke gives no explanation on that point. Therefore I
cannot doubt that on the 18th of January Casimir Rhein-
hold was at Brunswick House and I cannot doubt that the
Duke of Brunswick knew where he was at the time of the
second trial. He hag not denied the allegations contained
in the affidavits, nor does he give any explanation of what
took place on the 18th of January. He gives no informa-
tion whatever of the instruction which he gave to the
Learned Counsel, to the effect that Casimir Rheinhold had
lett the country. There was no evidence to show that
Rheinhold had left the country, and therefore, however pain-
ful it may be to me to come that conclusion, I cannot help think-
ing that when Rheinhold showed himself in thelwitness-box
the Duke of Brunswick was fully aware and cognizant of the
nature of his evidence. I cannot bring my paind to doubt
that Rheinhold was known to be a witness whom the Duke
ought not to have brought forward, and if that be so I think
it is not now too late to make this application. I think it
would not be creditable to the jurisprudence. of this country
if the defendant, against whom an action has been brought,
for which there was no foundation, and against whom a ver-
dict has been obtained by perjury, should not be indemnified
by obtaining those costs which that perjury had produced.
Upon this point my mind is made up, and I am clearly of
opinion that this rule ought to be made absolute.
Mr. Justice ParrEsox regretted that he could not concur
with the Lord Chief Justice as to the rules of the Court, and
the more so as he agreed with his Lordship as to the justice
and propriety of the principles laid down by him. He (Mr. Jus-
tice Patteson) thought that the Court had no power to do
what was now asked, and it was admitted that there was
no former instance of such a proceeding. The opinion of
Lord Mansfield had never been acted on, and with all due
submission to Lord Mansfield, he (Mr. Justice Patteson)
doubted whether that opinion was correct. If perjury was
committed, the proper remedy was that of indicting the
parties guilty of committing it; but if the rule now pro-
posed was adopted, it would be very difficult to know where
to stop. It would likewise have been difficult to
mould the rule for the new trial differently from what it
was, for the same difficulty would still have arisen as to
the application of it to the party himself. If a new prac-
tice was to be introduced it should be done on the very clear-
est case, and he was not satisfied that this was one of that
sort. He was not satisfied that the imputation was brought
home to the Duke. No doubt the fact that Rheinhold was
not even mentioned in the Duke's ailidavit was suspicious;
but suspicion was not sufficient. If the case had rested on
Eason's testimony, it would be that of a person on whom
much reliance could not be placed. All this led to the belief
that the Duke knew at the date of the second trial that
Rheinhold was not a witness to be trusted, but was not sufii-
cient to show that he was aware of it before the first trial.
So that it the Court had the power, this was certainly not a
case in which to exercise it; but he was of opinion that the
Court had no such power, and that such a rule would only
lead to an increase of perjury.
Mr. Justice COLERIDGE was inclined to think that the
Court might have the power to do what was now asked, if
the circumstances justified it, but he did not think that the
circumstances here did afford a justification for it. A jury
would hardly have felt justified in finding the Duke guilty,
and yet, if he was not, there was no ground for making this
rule absolute.

Mr. Justice ERLE, though well inclined to prevent from
obtaining costs any person who had been guilty of suborna-
tion of perjury, he did not think that the Court could pro-
ceed to effect such a purpose by trying the question of per-
jury on affidavits. And for himself, he must say, that in
this case he did not think that subornation or perjury had
beers committed by the Duke; and that if that question had
been submitted to a jury there might well have been a ver-
dict of not guilty.
Ruls discharged.