The Statesman.
London, England, 1810-07-18 00:00:00

THZ 'STATPSIVIAN.

LAW INTELLIGENCE.

....
COURT OF KING'S BENCH, AIL! 17.
LOVELL V. VALLEE.

The ATTORNEY.GENEUAL stated, that this was,
a complaint made by the proprietor of a news-
paper against the Defendant, one of the newsmen
whom lie employed, for having, under pretence
of eircelatirig The Statesman, circulated a paper
called The Alfred, and thereby deprived the pre.
prides. of The Statesman of the benefit of dice.
lating his paper. The matter in dispute between
the parties was extremely insignificant, but the ge-
neral consequence to the Plaintiff, and all other
persons standing in his situation as proprietors of
newspapers,. was very great indeed, because the
profits of their papers depended, as every one
knew, upon the wideness of their circulation.
Persons, who were proprietors of papers, were
of necessity obliged to trust to others to satisfy
the orders of their customers; and if those they
trusted betrayed the confidence reposed in them,
and, instead of circulating the paper of their em.
ployer, put off another in its stead, they, by
that means, did them e double injury ; they nut
only depri►ed the proprietor of the benefit of his
paper, but by setting up a rival paper, prevented
those fair advantages he had a right to look to,
both for the present and the future. Such was
the conduct which he understood the Defendant
Waller had pursued. The paper, called The
Statesman, at one time belonged to a number of
persons, of whom the Plaintiff, Mr. Lovell, was
one; but they afterwards separated, and Mr.
Lovell became the sole proprietor, and shortly af.
terwards•. gentleman, of the name of Horsley,
who resides at Cauterbury, sent to his office de.
siring The Statesman might be,forwarded to him
at Canterbury. This order being left at the office
of The Statesman, Mr. Lovell did that which
was always done in a similar case. He sent to a
newsman to execute the order, and the newsman he
selected was the Refendant, Mr. Waller ; he de.
sired him to send a Statesman regularly to Mr.
Horsley. The Defendant not knowing Mr. Hors-
ley, but willing to execute the order, wrote to
him, and desired he would give him, as was usual,
a reference to somebody who would pay for the
papers which he was to send to him. Mr. Hors-
ley aceurdit(4ly gave hen such reference. The
Attorney. General observed, that before he stated
huw arr. Walter timid conducted himself, it would
be proper to state the source from whence his pro.
fit was derived. The owner or proprietor of a
newspaper received the order from the country, het
gave that order to the newsman, who sent the pa.
per to the customer, and recei►ed the price for it.
The newsman had a general account with the
owner or proprietor of the newspaper, and paid
him for all the papers he had of him, and be un-
derstood that the charge to the newsman was
somewhere about three halfpence a paper less than
the price charged to the general customer. Out
of the profits of the newspaper the newsmen uni.
formly received this allowance. Thus having
slated how Mr. Lovell was the proprietor, the
Defendant, Waller, the newsman, and Mr. Hor.
sky the customer, and how the order had been
given to Mr. Lovell, and by, him transferred to
the Defendant, it only remained to state bow the
Defendant had conducted himself. From the
month of June, isoN to May, isto, the De.
fondant regularly seht The 4tatesitian to Mr.
Horsley, but afterwards, whether he was acted
upon by the influence of others; or prejudiced or
moved by the suggestions of others, it io fell out
that Mr. Horsley, instead of recei►ing The States-
man, received 77e Alfred—he was, as might be
supposed, extremely surprised at this ; he thought
fur a day or two it might be owing to a mis-
take, as such mistakes frequently did happen
without any design. It was perfectly well known
that in the country persons frequently received a
wrong paper. In the present instance, however,
there was no mistake; it went on regularly for
several days, when Mr. Horsley finding The
Statesman was never sent to him, but that he re.
ceived The Alfred instead of The Statesman—
he went to' town, called at the (Mice of Mr.
Lovell, and complained that he no longer received
his paper which he had ordered, but this other Pa.
per, The Alfred. Mr. Lovell was very much
surprised at the circumstance, and he sent to the
Defendant, Waller, on the subject. Waller made
some frivolous excuses which satisfied Mr. Lovell
that he had endeavoured to substitute The:Alfred
for The Statesman, and he consequenay took the 1
' order out of his 'hand, and employed another news.
man. It was for the injury which the' Plaintiff
; had sustained (luring the time The Statesman
ought to have been sent to Mr. Horsley, but was
not sent, that he had brought the present action.
'The Jury would nut fail to observe, that tise,De.
fondant was expressly employed by the Plaintiff
to send The Statesman to Mr. Horsley. By his
sending that paper, M►. Lovell would have had the
'profit which belonged to him as the Proprietor;
the Defendant, W.dide, would also have derived
his profit, namely the difference of the price at
which it was sold to him, and the price at which
it was sold to the customer. It was the dtity
which the Defendant owed to Mr. Lovell, wise
was hit employer, and who had engaged him to
send tin paper to Mr. Hanley which he had direct-
ed him to send. Mr. Lowell supposed he was go-
ing on with the otder and sanding The Statesman,
instead of which he had substituted another Paper,
and this was doing his employer a most material
injury. He was aware he could go for nothing but
nominal damages. Thu damages actually sustain..
ed were very trifling.; but if these instances were
multiplied, the loss would be very considerable.—
Above all things it was necessary to put a stop to
such practices, and lie trusted the Jury would, by
their verdict, convince Mr. Waller that such prac-
tices were not to be endured.
Mr. Burke, front the Stamp-Office, proved, by
the production of the usual bond and affidavit, that
Mr. Loitell was the sole Proprietor of The State:-
non.

Mr. GAnnow objected that the production of
the documents filed at the Stamp-Office under the
late Act of Parliament, thong') they were evidence
against a Proprietor of a Newspaper, could not
be evidence for him.

,r

Lord ELLMOROUOM entertaining doubts upon
this point, desired to see the Act of Parliament,
observing that such evidence wu not evidence by
the common law, medics admissibility to prove the
Proprietorship f the Plaintiff must depend on the
words of the statute.

The ATTOZWIT•GSNIMALI however, to put
the question beyond all doubt, called Mr. Ryder,
who proved that the Plaintiff, was the sole Pro.
prietor of the Paper.
The Witness said, that he himself was nomi.
nally the Publisher, and the Printer's name was
M'Ardell, but the result of a very strict cross.
examination of him by Mr. Garrow was, ihat the
types and presses did not belong to the Printer,
and that, in point of fact, be was ouly the clerk
or servant of the Plaintiff.

Lord ELt.raiaottouaa interrupted the course
of the cross.examination of this witness, by ob.
serving, that whether the witness was Printer or
not, was a collateral fact, which had osthing to
do with tile particular question, and his Lordship
thought, that to persist in such a course of cross.
examination would seem as if the object was to he
looking after purposes which he would nut wish to
have accomplished through the snedituu. of an ac.
tion of this sort.

Mr. O*aaow then endeavoured, by cross.exa.
mining the witness, to infer, that The Statesmen
had been published. at too late an hour of the
evening for the Defendant to avail himself of the
post, without paying what was termed the Pence
at the Post-office; but in this object be failed, for
the witness proved, that when the Paper was p.ib.
fished at so late an hour, that the Defendant, Waiter,
was obliged to pay the Pence at the Post Office,
the Pence were always allowed to him iv the
Proprietor. The witness further stated, that, to
the best of his knowledge, the Paper was never
too late for the post (the Pence being paid), with
the exception of once or twice, and that happened
at the late 0. P. row, and on the liberation of Sir
Francis Burdett from the Tower.

Mr. Horsley proved the facts stated by the At.
torney.Geoeral, relative' to his having ordered
The Statesman, and The Alfred hiving been sup.
plied to him in its stead. He produced the letter
containing the order to Mr. Lowell, which was
read, and he also produced another, which was not
read,

Mr. GARROW submitted that there was no evi.
dem that the Defendant bad ever sent The Alfred.
either to the witness last examiaed, or to any one
else.

Lord ELLZNIOROOOII observed, that be bad it
epee his notes that Mr. Horsley having ordered
The Statesmen, had received it for a time, and
I that-then The Alfred was sent to him.
Mr. Hanley was again called up, and examined
by Lord Ellenborough. He proved that after the
Defendant bad written to him for a reference to
some person to pay fur the paper, nothing ever
passed to indicate to him that he received The
.Alfred through a different channel : the envelopes
and the'hand.writing.of the addresses containing
7'he Alfred were the same as those by which he
had. received The. Statesman, and consequently
I the fair inference was, that the person who had
sent him the one paper, bad transmitted him the
other. .
Me..aisanow observed, that his Learned Friend
had read one letter from Mr. Henley to Mr. Lo-
lel, ordering The Statesman to be sent to him,
and he had been shown another letter from Mr.
Waller, which might have been explanatory of
the first; but his Learned Friend, exercising as
good a judgment as any Counsel could form for his
client, had not thought proper to read thatletter ;
the inference was, that it contained something to
the prejudice of his client's case. Whatever
other advantages might accrue to the Proprietor of
The Statesman by bringing the present action, he
was clear he could not recover of the Defendant,
Waller, and under his Lordship's direction he
would state his reason for entertaining that opi-
nion : first, he submitted, that, if there was any
cause of complaint against the Defendant, Mr.
Lovell upon this evidence was nut the person who
' was entitled to make it ; the person who alone had
the right of making the ouniptaint was Mr.
Horsley. It stood upon the evidence before the
Court, that the Plaintiff, Mr. Luvell, was not
the person wbu employed the Defendant, Waller,
but that Mr. Horsley by his own letter, addressed
to the Defendant, a vendor of newspapers, in
answer to his requisition of a reference, had di-
rected him to send The Statesman. Ho bad di-
rected him to send him a newspaper, just as say
one would direct a stationer to send him a quire of .
paper weekly. A person ordering snob A coutmo.
dity of a stationer, who must purchase it of some.
body, else, because he did nut make it himaelf,
'would send that article which he could must con.
veuiently procure—there was no.privity stated as
between the Plaintiff, Lovell, and Mr. Horsley,
upon which the former could found an action
against this Defendant—there was no contract with
him to supply The Statesman till it was counter.
°sanded—therefore if any one was entitled to make.
complaint, it was Mr. Horsley; but putting this
difficulty out of the 'way, be would proceed to ex.
amine the subject.. The, question was, whether
there was an undertaking on , the part of the De.
fondant to supply Mr. Horsley with these, papers
as they should come from Mr. Lovell'a. press?
Supposing there was an undertaking on the part of
the Defendant to send The Statesman to .Mr.
Horsley, what was there to show that haled done.
any thing in breach of that undertaking ? He
submitted it had nut been proved that the Defend-
ant bad sent any one publication of The Alfred- to
Mr. Horsley; there was nothing so common as for
the proprietor of a new and early published news.
paper to send his publication to different persons
without its being ordered,' 0 hopes of having it
patronized ;—ho recollected . very well that the
first publication of The
,Alfred had been sent to
him, he was particular in his recollection of it,
because it contained a long and able paper on the
subject of raising the posse comitatus, by a Gen-
tleman who was in the habit of endeatouring to in..
form the public by the labours of his pen7--he
meant Major Cartwright ; or if it was cot open
that subject, it Was with reference to the Privi.
kites of Parliament, which that great Reformer

4"7.9171".17--

~.y~

•

Tad taken upon him to di,cusl. Sach s ape( had
been sent to him without his haviii4 ordered its
and it might have been sent in the same ammo. In
Mr. Horsley.
Lord EY.LYNROROuGH.-t► If that bad been the
case, Mr. Horsley would have received two pa.
pers."
Mr. GARROW remarked, there was another
reason why Mr. Horsley might have had The W.
Fred sent to him, and that was the lateness of the
hour at which The Statesman was published. He
had cullected from the Gentleman who had called
himself a nominal Printer, that it might have hap.
pened that ?'he Statesman had more than once
been published at • late hoar. The Statesman
was a paper with a great title and character. It
was the paper of the Friends of Liberty, Reform,
and of these who lined what they Outsell, a bet.
ter order of things. If there was an 0. P. riot,
or a grand procession in honour of a great Patriot's
liberation from the Tower, all the world would be
naturally running to The Statesman, w hrre such
events were placarded, in order to obtain a full
account ; the consequence would be., that the
wholesale purchasers would be disappointed, and
therefore they would go away, and supply their
customers with some other paper. The Learned
Counsel said, he did nut think it necessary to call
any evidence on the part of the Defendant.
Lord ELLensoaouciu—" Tee puint that it is a
matter of contract between Mr. 11..r51 y amid the
DefentLiot Waller, is a question which is on the re.
cord. I think this action might be maintained by
Mr. Horsley also ; bot the present question .s for
a collateral tort, by the non-delivery of that which
this elan, the Defendant, has undertaken to de.
liver."

Mr. GARROW observed, that his CUR Wbs not
upon the record without the viriJerice, though it
would; if the case of the a rettdant had been
proved as it had been opened.. He admitted that
there might have been a contract between Air. Lo.
veil, the Plaintiff, and Horsley,. that Waller should
send The Statesman to Mr. Horsley ; but •his ob.
jection was, that there was no privity bete evil Mr.
Lovell and the Defendant, Waller, but that Wal.
ler was executing the order of Horsley.
Lord Eu.ssiaonounn " The declaration
says, that the Defendant, in considelation of the
Plaintiff's permitting him to supply Mr. Horsley,
he undertook to do so."
Mr. GARROW submitted, there was noevidencis
of that.
Lord ELLensoltouati observed, that there was
sufficient evidence; and he read the letter of Mr.
Horsley, in proof of his assertion. His Lordship
observed, that when the D•fendant . received the
order from Mr.*Lovell t., send the Now to Mr. -
Horsley, ho agreed to rind the papers which he
should receive from Mr. Lovell, and he was bound
to do so. His Lordship said, that when he used
the word tort, he was mist Ikea, as this was an
action of aosampsit —there was an agreement on
the part of the Defendant with the Proprivtor of
this newspaper, to send The Sl'stesman to Mr.
Horsley; and there ass also a similar G.:reinvent
on the part of the Defendant *WI Mr. H qsley,
from which it followed that Mr. Horsley might
also maintain an action, as well as the Plaintiff.'
• Mr. GARiOW contended, that this was nothing
more than the recommendation of a customer to
the alendaut.on the part of Mr. Loves ; anti
that. flomley having become the perehaserk the
!Pendant had undertaken to supply him with
The .Statesman.
Lord ELLanaoaotrou—" The papers are not
ear.marked, so as to be identified ; but the
fondant has formed this contract, by whirl; the
Defendant had engaged to send the papers he shook,
receive from The Statesman Office, and he was •
therefore bound to send The Statesman, and no
other."

Mr.,GAnitow said, the way he put it was this.:
If he was a distiller, and should sly to a person,
that If he would buy his spirits of him, ho would
recommend him to a ciluotry 'concern ; •the party
accordingly dealt with him as long as 1w seed him
a sound commodity ; but when •he ceased to do
so, be went to anothCr distillcr.
Lord E'LLENBuitotiGit—" You ire bound by •
the original order ; it is only by the original order
your contract is to be considered."

Mr. GAR if your forth* thinks so
I have nothing further to observe."
Lord Et. tAntio novas. -••4• Gentlemen, the only
question iof fact ID be submitted to you is, whether
-this man, the Defendant, has tent The Alfred to
Mr. Horsley instead of The Slateses,sn ; that
The Statesman was not sent to hini during.* par-
ticular period i, clear; and it is equally clear that
during the same period, The. Alfred was sent. to
him, and it was received bp bow under the seine
envelope, and with the same regularity be uad biz
fore received The Statesman ; -sod having given
orders to the Defendant fur The Statesman, and
to no one else, I can refer to no :other pers,rii than
the Defendant as the person by whom The Al-
fred was so subsktuted, in lieu of The Slate•mrin•
If you think that the Defendant,. Walter, sulisti.
Htuted the one paper fur the other, beyUnd all .
question the ground of the present action will be
proved, for the ground of the metro is the sub.
stitution of the one paper for the other. The let.
ter of Mr. Waller has been read to you. It be.
gins to this effect : " Sir, your order fur 77ia
Statesman to beietit to you was, by the propri-
etor of that paper, given over to me to execute."
This letter skews that the order of Mr. Horsley
was first communicated to the proprietor of The
Statesman, and that the proprietor of The States.
asan had selected the Defendant, Waller, to exc.
cute it ; therefore the Defendant, as has beets
truly stated, contracted a double duty—he
contracted with the Plaintiff, Lovell; to pur.
chase The Statesman of him, and he also
contracted with Mr. Horsley to supply him with
that Paper and no other—it is fur the breach of his
duty in not regularly seating' this identical Paper,
The Statesman, that the present action is brought.
That part of the case Is mule out distinctly, and
the only question on which there Is nut the most
distinct proof is, whether The Alfred which , was
received by Mr. Horsley came from the hands of
the Defendant, Waller; but as Mr. Horsley gave
no orders to any ens also but the Defendant, as •