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

MAJORITY-NOES, 7G.

Adair, R. A. French, F. Price, Sir Robert
Anson, Colonel Geach, Charles Ricardo, Osman
Baines, M. T. Gibson, T. M. Rich, Henry
Baring, Sir F. Granger,:T. C. Richards, Richard
Bell, Jacob Grenfell, C. Pascoo Roebuck, J. A.
Bellew, li. I,lf. Grey, Sir George Russell, F. C. H.
Bentiuck, Lord H. Grey, It. W. Sand ars, George
Birch, Sir T. Harris, Richard Smith, J. Benjamin
Boyd, John Hatchell, John Somerville, Sir W.
Boyle, Colonel Hawes, Benj. . Stanton, W. S.
Bright, John Heyworth, L. S,ephenson, Robert
Brotherton, J. Howard, Lord E. Strickland, Sir G.
Brown, W. Hume, Joseph Thompson, Colonel
Carter, J. B. Ilumphery, Ald. Townshend, Captain
Cobden, R. Kershaw, James Trelawny, J. S.
Cockburn, Sir A. Lewis, G. C. Verney, Sir 11.
Cowper, W. F. Loveden, Pryse Vivian, J. H.
Craig, Sir W. G. ICiackie, John Walmsley, Sir J.
Crawford, Robt. W . Mackinnon, W. Wilson, James
Crowder, R. B. Mitchell, T. A. Wood, Sir Charles
Dawes, Edward liorgaii, H. IC. Wood, Sir W. P.
Dundas, Admiral Mostyn, E. M. L. Young, Sir John
Dundas, Sir David Mowers, Francis
Ellis, John Palmerston, Viscount TELLERS.
Evans, J. Parker, John Hayter, W. G.
Ferguson, Sir li. Perfect, R. Hill, Lord Marcus
Fox, W. J. Pilkingten, James

LAW INTELLIGENCE.
COURT OF QUEEN'S BENCH, ✓une 1;.
THE DUKE OF BRUNSWICK 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 bad 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,
which 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. TnastesEn was heard in support of the rue, and
said he belived the proposition put forward by the Learned
Counsel on the other side, that the Court could net 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 plaintiff's 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 v. 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 Weehly 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 Weekly
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 liheinhold 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 lit 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 rtheinhold,
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 Casimarltheinhold's name was not once
mentioned, nor any attempt whatever made to deny the 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 hiinself,
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 Itlaeinbold, while what took place on the
second trial established beyond all question that the Duke
had been fully aware of the fact that Rheinhold's evidence
was not true. Now, had the Court been aware of that when
they made the original rule, would they not have made the
order for which he (the Learned Counsel) was now contend-
ing? If the Court had been aware that the plaintiff obtained
his verdict by such scandalous means, would they not at once
hove ordered that he should pay the costs of the other
side? He 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 ParrEsose asked if there was any instance
wheie the Court had ordered the successful party in a trial
to pay the costs ?
Sir F. THESIGER did not know of any; but this case,
as it now stood, was precisely the same as if there had been
no verdict in the plaintiff's favour ; and their Lordships
would not be doing justice to the deendant 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 immediately
connected with this perjured testimony, and justice could
only be done by making this rule absolute.
Mr. Jamas,Q.C., and Mr. Boma, were heard on the same

side.
Lord CAIkErnELL, after consulting with the other Learned
Judges, said, with some degree of warmth—ln this case I
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 questiopnoi
whe-
ther the Court has power to award that the costs sl;allbe
paid by the Duke of Brunswick. Upon that
action ;
is,
I can
have no doubt ; the defendant has succeeded i
there is a particular verdict in his favour, anti the
has been entered up upon that verdict. New and judgment
i
suc-
ceeded in the action, ought he not to be inderne-jaeve'da gfor the
costs he has incurred in defending it?
Ought he not to
have the costs of defending himself
u 1
)onthse first
trial when a wrongful verdict was returned a gaiiit him.
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 Winn:
appear clearly and distinctly that the first verdict had been
winning party ; but if it should
obtained by perjury, and there
party obtaining the verdict is reason to believe that the
was privy to the perjury, he
ought not only to be deprived of costs, but to pay the costs
of the other side. Such was the opinion of Lord Mansfiehl
in the case to which reference had been made" Anderson r.
George," where he says that if a plaintiff obtained a verdict
by a trick, and the verdict was afterwards set aside the
Plaintiff should be compelled to pay costs. low surely,
in
in a case where it bee 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 he 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 in cases where the verdict has
ower hung exercised?
It is said that there is no precedent for such a
proceeding; well, then, if there is no precedent, I
think it is tit that such a precedent should be made. I have
rule
no scruple in giving my opinion that this is atjettn inttghhetxca-
sion for making that precedent. To be sure,
w
was made by the Court for a new trial, it was not
or-
dered that the verdict should be set aside, with the costs tstobe paid by the plaintiff; because the facts were not then
fully complete or properly before the Court,otherwise
my opinion, the Court ought then to have set aside the
‘,,c irri.
diet, and ordered the costs to be paid by the plaintiff. But
the Cart, upoa that occasion,
poly set aside the verdict,