Star.
London, England, 1818-01-23 00:00:00

NAVAL INTELLIGENCE.

1.4* IlinattENCE-
r4;v2.ti,b gs
WVRT OF KaMS BENCH, JANUARY
HODGSON C. SCARLETT, ESQ.
We mentioned thissiegular and very important case,
on the motion by Mr: RAIN; early in the last Term,
to set aside a nonsuit ordered by Mr. Baron WOOD,
on the trial at the last Assizes for Lancashire. The
action was for slander, the plaintiff being an Attor-
ney, and the defendant the eminent Kings Counsel.
The words were alledged so have been spoken in the
course of a cause of Norris v. Cormick, tried at tIA
preceding Assizes, and they were thus inserted in
the first count of the declaration :—" Some actions
are founded in folly, some in knavery, and some in
both. Some in the folly and knavery of the Attor-
ney, and some in the folly and knavery of the party.
Mr. Peter Hodgson is the Attorney of the plaintiff:
he drew the promissory note fraudulently, and got
Bowman to pay into his hands the sum of 1501. flit
the benefit of the plaintiff. This was the most frau-
dulent thing I ever knew done by a professional
man. Mr. Peter Hodgson is a fraudulent and wick-
ed Attorney."
Mr. Justice HOLROYD first read the Report of Mr.
Baron Wood as to what passed on the trial, noticing
the ppening of Mr. Raine, who led for the plaintiff
at the Assizes ; after which his Lordship declared his
opinion to be, that the action was not maintainable,,
if the Counsel did not wander out of the cause, and
if what he stated were relevant to the matter in issue:
.slander in a judicial proceeding, his Lordship
'that be apprehended no action would lie ; it
scandalous or impertinent matter were introduced
rota"- bill in equity, the question was referred to the
and if he reported in the affirmative the
'plaintiff was compelled to pay costs ; but his laird-
'ship had never supposed that an action was main-
tainable upon it. The Counsel for the plaintiff had
submitted to to be nonsuited, the words being ad-
mitted.
The Report having been concluded, Lord Euxii-
Olloovou observed, that it was there stated as an
Astenistion by Mr. Raine _far the plaintiff Hodgson,
that the words spoken by the defendant were rele.
vant and pertinent.
Mr. RAIN it for his own sake, felt called upon to,
state, that he had made no such admission : he had
contended that that was a question tor the Jury. He
had submitted to the nonsuit, in deference to the
strong opinion of the Learned Baron, having, at the
lame time, an undoubted right 1d ,go to the Jury,
if he had chosen to do so, that they might decide
tramtiot, how far them was any ground for the
. The relevancy might, perhaps, have been
admitted for the sake of Argument, but certainly is
oo other way.
Mr. TOPPING, for the defendant, said, that the,
sdmissionitif the relevancy had formed a very pm-,
minent feature in the proceeding. The observation
of Mr. Scarlett had referred to a note proved, in the
case of Norris and Cormick, to have been given by
Bowman to two persons of the names of Cormick
and Spittal, and it was connected with the sale of a
ship, us which Norris had a share.
Mr. RAINX observed, that these facts did 1110 t ap-
pear on the Report.
Mr. TOPPING contended that be wait&ar.—
Norris Cormick had been fertunatel7 before
yir, Justice Bayley, who would recollect the facts.
He thin ProCeeded to shear cause against the rule,
observing, that it was quite clear by the Report, that
Mr. Baron Wood was right in directing the nonsuit;
the Learned Judge had, however, fallen into an mot
where he stated that the Counsel for the defendant
admitted that the words had been spoken ; no such
admission was made.
Mr. Ramie allowed that the observation was war-
ranted, and that the Learned Judge only meant, that
for the sake of raising the point on which he nonsuit-
ed the words were admitted to have been spoken.
Mr. TOPPING regretted that he bad not been pre-
sent at the trial on account of illness, and conse
quently that he had no note of the opening of Mr.
Raine ; he had, however, distinctly understood that
Mr. Raine had conceded that the words charged as
slanderous were addressed to a Jury in the course of
a cause to the facts of which they were relevant.—
The Learned Baron had then asked if the plaintiff
could prove malice, and the answer being in the ne
g-ative, he interposed again, and required to be
shewn a precedent for the proceeding, but none was
produced : then it was that Mr. Baron Wood ob-
served, that if such actions could be supported, it
would be most injurious, not merely to the Bar, but
infinitely more to the public. On the motion for the
Rule Nui last Term the case of Brooke v. Sir H.
Montague had been, referred to, in order to chew,
first, an instance of the kind ; and next, that the de-
fendant had put on the record a specialpliea of justi.
fication, from whence it was to be ircl,d that lie
could not have gone into his defence -tinder tl* ge-
neral issue ; but Mr. Justice Buller (N. P. 10.) had
held expressly otherwise.—" The defendant may, by
way of justification, plead that the words were spoken
by him as Counsel in a canoe, and that they were
pertinent to the matter in question, &c. ; or he may
gyve these matters in evidence upon the general issue,
for they prove him not guilty of the words mali-
ciously." No language could be stronger or more
to the point ; and if the fact that the words were ad-
In addition to the effects of the weather of last week devised to a Jury in the course of, and with reference,
in Scotland, we have to state that at Paisley the wind to a cause then pending, and without malice, did not
blew more tempestuously on Thursday than on any afford a protection to a Counsel, what protection had
of the preceding days, particularly towards the even- any Gentleman at the Bar ? their efforts for their
in. Two buildings were overturned by the violence clients must be para)ised ; the Judges themselves
orthe storm, in the tan-work of Mr. Thomson, New might not be exempt from actions of this kind, if in
Sneddon-street ; part of the newly erected dye work the course of their charges to the Jury they found oc-
of Mr. Scroggie, in the same street, was demolished ; casion to animadvert upon the fraudulent or wicked
a barn in Love-street was blown down, and the gable conduct of any party brought before.them.
of a house in New-street considerably injured. Great I Lord ELtewaottoUGH expressed a doubt whether
damage was done to chimney tops and the roofs of the words spoken were relevant to the matter in issue;
houses, and the broken materials were every where they might be relevant to the promissory note, but
strewed on the street. About four o'clock, a boy, it did not yet appear that that note was important to
eight years of age, was knocked down, and almost the case : prima facie the argument for the plaintiff
killed, by the falling of a can from a chimney top in this case might be thus shaped—malice or no ma-
in the High-street. I lice is a question for the Jury ; and if so, whatever
The last mails from Carlisle and Dumfries to Edits- tends to prove or to repel it, properly comes before
burgh, were carried forward in post-chaises, the roads them : all the circumstances attending the speaking
being blocked ttp with snow—the former near Ha- of the words seemed properly to beleng to the same
wick, and the latter at the Crook. I forum. The speaking of unauthorized- and slander-
Tuesday sennight, a man and his wife, both very ous words was of itself malicious, and the law did
old people, who had been visiting their friends the not require that at the time they were spoken there
preceding day, in going home from Gilmerton to should actually be malice in the mind of the utterer:
Loanhead, were blown sato ditch, aid both unfor- if the slander was unwarranted it was alsomalicious.
tunately perished. I Mn TOPPING said that the promissory note was a

MAILS T 1

'HIS DAYS

Dubtin
IVaterford

Lift. DUL
1 0
0 1

Aar. I
1 0
0 110'

Gurfosey and Jetsey 0 1
Holland 0 1
GkKtenburgh 0 5

France
Hambutgh
Flanders

1. •

FALMOUTH, JANUARY at.
Wind S.—Arrived the Prince Ernest packet, with
Mails from Lisbon, in eight days.

PORTSMOUTH, JANUARY 824
Wind S. S. W.--Arrived the Eclipse, WINTER,
from the Downs, for the Isle of France.

DEAL, J4NUARY
Wind S. W.—Sailed last night the Marsh, Rtcu-
TER, for Jamaica ; Barbadoes packet, BALSTdN, for
Barbadoes; John and Ann, Roamsots, fdr Havan-
nah, and have come back this mornin. Came down
from the River the John, VAUX , for Jamaica; Suc-
cess, MERCER, for Sierra Leone, and the Ocean, --,
for Gibraltar.

DOVER, JANUARY 22.
Wind W.S.W. blows hard.—Sailed last night the
Lord Duncan packet, Captain PASCOE, with a Mail
and passengers for Ostend. Arrived last night the
Leopold, Captain ROGERS, and l'lris, French packet,
from Calais, with passengers. Sailed this morning,
the Lord Duncan packet, Captain HAMILTON, and
King George, Captain MERCER, for Calais, with
passengers.
LIVERPOOL, JANUARY 21.

The Prince of Wales, of London, was boarded by
Captain REID, of the Charles, on the Ist instant,
about 40 miles west of St. Mary's. The vessel was
abandoned, dismasted, and 7 feet Witter in her hold ;
cargo mahogany.
GRAVESEND, JANUARY 22.
Arrived the Neptune, Hunter, from the Canary Islands; the
Wellington, Davis, from Rouen ; Fortune, Biggens, from Faro ;
Duke of Wellington, Martin, from Ostend ; and Admiral Grif-
fith, Mich, from Philadelphia.--Sailed the Mersey, Flint, tar
Yucatan ; Percy, Smith, fur Jamaica ; Lady Ford, Smog, At
Lisbon ; and Oak, Wymess, for Lisbon. •

and he urged the dreadfully responsible situation in
which Counsel would stand, if what his Lordsh4haci
stated were the law: all comment upon evidence or
facts must be done away with, for no.prudent man
would run the risk of exposing himself, to an **SI-
MI% Justice Bayley, in the case bf Norris u.
had been clear against the plaintiff, for whom Mr.
Hodgson was attorney: it was in evidence, that-the
plaintiff had already received more than was due to
him, and that his attorney knew it, and a sunsuit
was diieted accordingly : the promissory note was
read, to which Mr. Hodgson had been privy, and by
which his client's claim was mote than satisfied. He
further begged to refer the Court to the case of Wood
v. Gunston, (Styles, 462 ; and Yin. Abr. tat. Counsel-
lor, 478), it was in these words :—" Ott a trial at
bar, on an action upon the case for words between
W. plaintiff and G. defendant, it was said by Glysm,
Chief Justice, that if a Counsellor speak scandalous
words against one, in defending his client's cause, an
action does not lie against him for so doing of his
duty to speak for his client, and it shall be intended
to be spoken according to his client's instructions."
Lord ELLBNIOROUGH—Within the scope of his
duty certainly.not.
Mr. TOPPING added, that Counsel, in the honest
discharge of their professional functions, might have
different notions ; one might make an observation
that another would avoid, or in stronger language
than some might consider prudent, and yet without
the least imputation or suspicion of malice : misera-
ble, indeed, would be the condition of the Bar, if
Counsel were liable to have their words, uttered often
in the warmth of an honest zeal, weighed in such
nice scales. It would then be necessary for them
merely to open the declaration, and call the witnes..
ses, omitting all comment, however necessary and
justifiable. Advocates hitherto had been looked up
to as a most respectable and useful body ; but if their
rights, property, and even liberty, were thus to be
put in jeopardy, it would be far better that the race
should be utterly extinguished. ,
Mr. Serjeant HULLOCK followed on the same side.
Two grounds had been stated by Mr. Raines for his
Rule to set aside the nonsuit: Ist, That the words
were in themselves false ; Second, That as there was
no justification on the record, the plaintiff must ne-
cessarily have been entitled to the verdict. As to the
second point, it seemed clear that no special plea
was required.
'Lord Ettenaoaouon.--Certainly every thing that
goes to the repulsion of the charge of malice, may
be given in evidence under the general issue.
- Mr. Serjeant Iluu.ocz continued.—Consequently
'the first point was the only one of importance. Of
course he could not mean to argue that -a Counsel
was at perfect liberty to say all be pleased, or to ut-
ter all kinds of aspersions upon the parties or their
attosns with impunity--; but in any action for slan-
der against him, it.vals,itecessary not merely to chew
that the words spoken were false, but that they were
malicious, and this not by inference of law, but by
direct proof of a malignant motive. In ordinary
eases it was enough to prove the falsehood and that
malice was intended, but here there was a great dis-
tinction, as was shewn by the fact of entering into
theaof under the general issue, Which could not
be hit common actions for defamatory words.
He itibmittid that the principle of law which go-
vemea'actions brought by servants againsttheir mat-
ters for false characters, applied to the present, vie.
that express malice must be established in evidence.
In support of this position, he cited Weatherston v.
Hawkins (I T. R. 110); Edmondson v. Stephenson,
(Bull. N. P. 8) ; Hargrave v. Le Gretton, (4 Burr.
2425); and Rogers v. Sir J. Clifton, (S Boss. and
Pull. 587).
Lord ELLEsmoitobou.—Malice, I agree, is to be
proved, but in what way ?—by the absence of any
justification for speaking the words, not express
lice by a declaration of ill-will; but if there he no
colour or authority for what is said, the law infers
malice.

Mr. Justice BAYLEY observed, that the stress of
the case was, whether the words spoken were or we e
not relevant to the cause ?

Mr. Serjeant Htn.toce was ready to allow that
when a Counsel went out of his way for the purpose
of calumniation, when what he stated had no rete.
rence to the matter in issue, but was a mere inven-
tion, malice would be inferred; but here the. carp
was directly otherwise; the words, that Mr. Hodg-
son was a fraudulent and wicked attorney, had met-
rence to a bill of exchange material to the cause and
given in-evidence in it.. The Learned Serjeant thee
briefly related the leading facts as proved its the use
of Norris and Connick, in order to shew that Mr.
Hodgson well knew, before he brought the plaintiff
into Court, that he (the.plaintitf) had no claim upon
the 'clefteatkviti. that claim having been satisfied b
ineriaitkilapromissory note, in the drawing of which
Mr. Hodgson had himself been instrumental. At the
criatthfiiok of the detail,
Lord ELLENNOROUGH said, if that be the state of
facts, the words appear to be very relevant.
Mr. Justice BAYLEY, who tried the cause of Norris
v. Cormick, added a few material particulars to those
stated by Mr. Serjeant Hußock.
Lord ELLENBOROUGIL—II should seem that Mr.
Hodgson knew that his client was bringing an action
for money which he had been already paid. He is
therefore not conducting himself as he ought tudo
in bringing the action, and the question is, wl.eiher
these facts do not sufficiently repel the malice ?
Mr. Serjeant HuLtoce added, that if the nonsuit
were set aside, the only consequence would be, that
the parties would go down again to the Assizes, god
at length arrive only at the same result.. .
Lord ELLENBOROUGH called upon Mr. Raine to
state whether he disagreed in the representation of
facts made by Serjeant Ilullock ?
Mr. RAINE objected to pledging his memory, but
appealed to the Learned Judge who tried the cae,e,
whether he had thought the obserrations of Mr.
Scarlett warranted ? summing up he had told
the Jury that he saw nothing improper in the con-
duct of Mr. Hodgson,
Lord ELtiusisotiovuu observed, that in the words
t and tacked there might be some excess ;
certainly Mr. Hodgson deserved blame for bring-
ing a cause into Court, when he was conscious that
Ibis client must be defeated.

Mr. RAINE contended, that whether he was or was
not conscious was a point at issue.
Mr. Justice BAYLZY observed, that in summing up