The Statesman.
London, England, 1823-11-10 00:00:00

THE STATESMAN

COURT OF CHANCERY, Nov. 8.

Goon Lev V. TIC DUNS Or SOMSRSETIMIDediRtOIy
after his Lordship bad this morning taken his seat, Mr.
Gourley addressed the Court, and again complained that
his papers bad been taken away by the solicitor for the
defendant. He was now only &moos to know from his
Lordship whether there was any danger that the original
papers would be in any manner injured or altered ?—The
wait CHANCELLOR said, that the original document, were
in the bands of the Court, and could riot by possibility be
altered.—Mr. Gourley begged pardon for the unnecessary
interreption he had given.
Mr. WETHZRELL moved that a writ of Ile tweet regao
which hadsbeen issued against Sir O. Wood, an Officer of
rank in the East India service, should be recalled, and
that all the proceedings had upon it should be reseind..d.
It appeared that the following were the circumstances
under which the writ bad been issued :—Sir O. %Vood had
purchased ao estate of Mr. Parry, the East India Director,
and Mr. Muspratt, who is at present a candidate for a seat
in the directory, as trustees for a Mr. Hoban—an estate
for which he was to pay 36,0001.—0 n the 29th of September
1819. Before the time arrived for completing this agree-
ment, Sir O. Wood took various objections to the due of
the plaintiffs, Messrs. Parry and Muspmtt, and had since
employed every legal means to get rid of his contract.—
The plaintiffs having heard that Sir O. Wood had applied
to the Court of Directors for leave to return to India,
moved the Maser of the Rolls for a writ of see treat regno
against Sit O. Wood, on the ground that if he left this
country, they would be unable to compel him to complete
the bargain which they had made with him. Having ob-
tained that writ, they put it into the hands of the proper
officer, and had Sir O. Wood arrested for 36,0001. After
Sir lieorge bad been five days in confinement, be paid the
money into the hands of the Sheriff, and gave bail for any
additional expenses that might be incurred under it.—
Under these circumstances, Mr. Wetherell moved that the
writ be discharged—first of all, because there was no debt
due to the plaintiffs, as they bad not yet made good their
title ; and secondly, that if there was a debt, it was not
to the antosut which they demanded, as they still bad the
estate to look to for their own indemnity,.
After Mr. SHARI/ILL and another barrister had been
beard on the same side,
Mr. HART, Mr. SUODIN, and Mr. PRESTON, wereheard
in defence of the writ.
Mr. WiTHERSLL was rising to reply, when—
The Logo CHANCELLOR observed, that he would bear
him further on the subject on Monday. In the meanwhile
he would inform the bar, that thought he admitted the
right of the Muter of the Rolls to issue the writ of se
tarot regno, he did not think that the Vice Chancellor bad
power to do it. Indeed, in all cases where the Vice Chan-
cellor had issued such a writ, he had himself thought it
necessary to inspect all the original documents.

statement in the alleged libel was made front commendable
motives, and with a sincere conviction of its troth: After
the Jory had been absent from Court above-two bouts.
they returned, and asked whether a malicious intent was
not necessary to constitute libel; to which his Lordship
returned no direct answer, but replied, that when a man
published a paper ten ing to produce certain mulls, they
might infer that be intended to produce those results,
unless the contrary were proved, and the ones of proving
the contrary lay on the defendant.
The LORD Crater Justice expressed a doubt whether his
expressions had been accurately reported ; as he thought
that he began by laying down a more general propnsi•
tion, sod afterwards made the particular application to
the case.

The Coarstox SERGEANT replied,that he thought his note
was accurate, as it was taken immediately after the expres-
sions were used, and was confirmed by other accounts
which be hail seen. Application had been made at the
Crown Office for the short-hand writer's notes, but they
had been refused; and therefore be could only rely on his
own. Now he submitted that the Lord Chief Justice was
wrong in representing& malicious intent as &presumption of
law necessarily deducible from the tendency of a writing,
'Airlift was a question of fact for the jury to decide on all
the circumstances before them. Undoubtedly, it was not
accessary to have extrinsic proof of malice; the intention
might be inferred from the tenour of the writing itself;
but it wasclear the jail did not think it necessarily dedu-
cible from the writing, or their question would hove beets
palpably superfluous.
Mr. Justice BAYLET.—Are you not wrong when yea
Wert that malice is not a presumption of law? On the
"Hwy, the law often presumes it from the tendency of a
No's actions. Thus, in a prosecution under 43 Oro. 111.,
be setting lire to a mill, where it was shown that the
risoner was a man infirm though not of insane mind, the
jury found him guilty of setting fire to the mill, but ex.
pressed a doubt whether th-y ought not to have evidence
of a malicious intent beyond that supplied by the act itself,
to satisfy the terms of toe statute. The point was accord-
ingly reserved for the opinion of the Judges; but ..tbey
thought it too plain for argument, and unanimously held
the conviction right.
The COULSON SIROCANTT said, that he was far front dis-
puting the law of that case, because there the act was
unequivocal in itself, and could only spring from the
motive imputed. He did not mean II- assert that collateral
proof of malice was ever requisite; bat that the existence
or non-existence of that necessary ingredient in guilt was a
question in every case for the jury.
Mr. Justice BATLEY.—When a man is tried for uttering a
forged note, the intent laid is to "defraud the (governor and
Company of the Book of England ;" not because theoffiender
intended to defraud the Bank, about which be knew, sad
cared nothing; but because the natural tendency of his act
is to defraud the Bank.
The Comfort SZIOCANT replied, that in such cases there
was almost always a count inserted, laying the intent to
defraud the party to whom the note was paid; otherwise
he should greatly doubt whether a man who clearly had no
idea of defrauding the Bank could be convicted.
Mr. Jostice BEET.If a man, arrested by a police officer
turns on him, and shoots him through the brad, there is'
no malice in the ordinary sense of the term —no previous
ill will—sod yet lie is charged with murder, *of his malice
aforethought." and executed.
The COMMON SERGEANT proceeded to object to that
part of the answer given to the Jury, in which it was said
that the "ones of disproving the inference of malice lay
oa the defendant," fro:n which he contended they would
naturally infer that he must call witnesses to prove the
circumstances under which he published, and could nut
rely on mere observation and reasoning.
Mr. Justice BATLIT asked whether any evidence was
riven to justify the expression, " It is from authority we
Peak ?"
i The Comatose SIMIAN? replied, that there certainly
was no evidence given, but that he bad argued that the
words were natal° be taken in an official meaning,but that.
fairly construed, they implied no more than the journalist
received his intelligence front some one on whom he could
rely. The existence of rumours was admitted, though they
were also admitted to be grdundless ; and it was contended
that, considering the circumstances, an editor bad a right
boise fide to bring them before the public. Here, then.
the jury were first told that the bare falsely imputing to a
man insanity was criminal, without any qualification as to
malicious design ; and when they returned and asked if
they must not find malice, they were not answered in the
direct manner which they were entitled to expect, but
they were told that they mast infer malice from the act of
publication, unless the contrary was shown. That they
had doubts whether malice was fairly deducible from the
passage itself, was clear from their long deliberation ; they
were misled both by the original charge and the reply to
their question ; and thus the defendants were deprived of
their fair chance of acquittal.
Mr. BROUGHAM rose to make a similar motion OR behalf of
Mr. Harvey: He considered the objections to the charge and
reply of the Lord Chief .ldsttee as resolving themselves into
threat—first, his use of the word " false " in his charge ; se-
cond, his omission to answer the question of the jury in di-
rect terms ; and third, the explanation which he substituted
for such answer. His Lordship told the jury, that " falsely
to assert of any man that he was Insane, was criminal ;" and
then added, that " the counsel for the defendant had admitted
that the assertion was false." Now the counsel for the defend-
ant had made no such admission ; they. had, indeed, admitted
that the statement was salt-se; but their whole reasoning was
directed to show that it was not false—that was, wilfully false.
Now there was a wide difference between falsehood and un-
truths, as every one knew, in common parlance; the former
might be innocent ; the latter was always guilty, and usually
expressed by a shorter term.—(A laugh.) A man might assert
what he believed to be true, and which turned out to be un-
true; or he might assert that of which he had no knowledge.
and yet might not be guilty of falsehood in its worst legal
acceptation, as was proved by the case of " Haycroft v.
I Creasy," where an untrue representation of matters which the
party did not know. was holden not to @outfight ground of
action. The use of this equivocal word, then, was calcolated
(though not intended) to mislead the jury, especially when se-
companied by the rest of the charge. Again, why was not
their question met with a direct answer? They asked. "Most
we not And a malicious motive r' The plain answer to which
was. "Yes ;" for malice was the gist of the charge; and yet
that answer was not given. Instead of that plain reply, they
were again.misled by the direction that they might later malice
from tendency, unless the defendant proved its absence; pe-
cause they would naturally construe the word " prove "las
appiicanle only to evidence, and not to mantra and reason-
ing ; and thus they might think the defendants had done no-
thing, because they had called no witnesses. This remark was
more mischievous, severed from the cnarge, than if it had been
part of it; and very probably induced the verdict. Oa these
grounds the learned counsel submitted that the jury had pro-
biddy been misled, and that the defendants were entitled to a
new trial.
Mr, Justice BATLEY said, he was clearly of opinion that
there was no ground for the motion; as the Lord Chief
Justice had most correctly laid down the law in his origi-
nal charge, and had given a most proper reply to the
question of the jury. it was the duty of jurors to apply the
law to the facts of every case; and where, as in this, the
evidence was all on one side, they were bound to give their
verdict upon it. The words " from authority" implied
knowledge, and pledged. the writer to the truth of his
alley tions ; so that, in this instance, the libel was not only
@atm, but it was false in the worst acceptation of the
term. A statement might, indeed, be untrue, and yet it
might be innocent, if the party made it with a belief of its
truth; but if he made it without knowing whether it was
(true or false, be was culpable, and might be indicted fur
padary, as if he knew it to be groundless. If the defendants
had any thing like authority for their assertion,. they might
have proved it; they had not done so; and therefore the
jury were justified in taking the assertion as a wilful false-