Court Of King's Bench, We...
The Times, 1824-05-08T00:00:00

TheATTORtNY-tGEENERA. moved forarule tosnow cause wh the verdict in this case should not beset aside and a new trial had. wt was an action for a malicious arrest, tried before the Lord Chief Justice at the last sittings for Londlon, when a verdict was given for the plaintiff with 2501. damages. He would state the outline ofthe case very shortly, because no dispute could arise respecting the facts on which his motion was founded. Mlr. Revengs, beingSecretaryof State for Foreign Affairs to the Colombian Government, wrote to Mr. Mendez, the iMinister of that Governmzent in England, request- ing and urging him to procure a supply of arms and accoutrements for the army of the State. In pursuance of this (direction, Alr. Alen- dez applied to Air. *Mackintosh, and he supplied articles of the de- scription required to the extent of 150,000h., which were shipped ob board one or niore ships for Colombia, and sent with a supercargo to that country. Some disputes arose respecting the mode in which payment should be made or secured to M,tr. tlackintosh; and it was proposed that he should receive debentures binding the property of the State. At this time, a gentleman named Zea was in 1,ndon, negotiating a loan for the service of the Colombian Govemment; ansd doubts arose whether debentures in the name of MIr. Mlendez, circu- lating cotemporaty with debentures issued by Mlr. Zea, would be of any marketable value. This difficalty gave rise to long negotiations, which were contlucted chiefly at Paris. While they were pending, iMr. Revenga himself went to tbat city: he took part in the discus- sions; ant ultimately refused to sanction the debentures which 'lr. AMendez had issued. The debenturesthusbecameiutterly worthless, and Mlr. Alackintosh was left in a state of considerable perplexity and alarr for the result of an enterprise in which he had so largely embarked his foitunes. While matters were in this condition, Air. Revenga, who had returned from Paris to South America, came to England, as the MAinister Plenipotentiary of the Colombian Government; but as that state was not recognized by this country he was not invested with the rights of an ambassador, but lived here as a private individual. Application was now again made for his sanction to the debentures issued by Mlfr. bilendez, and which in honour and good faith the Colombian Government were bound to ratify ; but it was again refused Illr. Mackintosh then took the opimon of gentlemen at the bar, and also of lr.Espinasse, a special pleader of great experience and high character, as to the rights and liabilities of the parties with whom he bad contracted. All the pa- pers were fairly laid before Illr. Espinasse; his attention was direct- ed to all the bearings of the case; and he gave his decided opinion that the contract was binding on the members of the Colombian Go- vermnent; that Alr. Revenga, as one of the members of that Go- Vernrnent, was personally liable; and that he might be arrested without any danger of an action for a malicious arrest. He quali- fied this opinion only by the proviso that Air. Revenga, though per- sonally liable, was not solely liable, and might defeat the action in the first instance by a plea in abatement, setting forth the names of the parties who ought to be sued with him. lie founded his opinion on this reasoning-the Colombian Government are not recognized by thils Government as a state; they are a collection of individuals who have obtained possession of the supreme power in one of the colonies of Spain, with which country we are at peace; and there- fore they are a mere body of individuals, subjeet to all the liabili- ties of private persons fbr the contracts into which they may enter. Acting on this opinion, Alr. iMlackintosh issued a writ, and caused Mir. Revenga to be arrested. The amount of the goods furnisled ac- cordingto the contract was 150,0001. The LORD CHiEF JUST1CcE.-But their value was much less. The ATTORTEY.-G_EfERAL.-Tuhe arrest was for much less also-for 90,0001.; but the amount was not material to the question. Alr. Revenga remained in prison aboutsix weelts, or rather more. 'I'he LORD CHIEF JUSTvCE.--HIe was arrested on the 20th of March, and discharged on the 17th of May, having put in Mr. Goldsmith and Air. Cohen as his bail, the attorney fbr Mr. Mlack- intosh engaging that he would not require them to justify. The plaintiffafterwards ha(t time to declare- The ATTORirEY-.GExERAL--:1e bad time to declare till Michaelmas term, and then he discontinued the action. The LORD CC1IE1 JUsTicE.-It must not be forgotten that Alr. Hevenga was not disch.arged until the time to declare was near its expiration; and the defendant in that cause could not have had further time to declare if lie had detained Air. Revenga in custody. The ATTrOiNuEa -GENERAL proceeded.-To sustain the action for a malicious arrest, two things were requisite-malice, and the want of prob!ahle cause; and either express nialice must be proved, or the want of probable cause must be so glaring as to raise tne pre- sumption of a malicious motive. In this case, the malice suggested was ans indirect motive for the arrest, which it was argued amounted to malice in point of law : on this he would observe hereatter ; but granting, for the sake of argument, that malice existed, he would now contend that tlere was clearly probable cause. WVhat was pro- bable cause was not matter of fact for the jury, but matter of law for the Judge, anti the defendant was entitled to the opinion of the Judge who presided on the question. Mlr. Justice BAYLEY.-Alay it not sometimes be a mixed ques- tion of law and fact? The ATToRNEY-G.GNERAL .Yes, nly Lords where the facts are doubtful; because then the jury must hnd the circumstances on which the Judge must decide. But here all the facts were ascertain- ed, and tberefore theNxistence or non.existence of probable cause was purely a question of law. To prove this it was scarcely neces- sary at tnis time to cite cases. In Buller's Niri Pt-is, it wY5s laid down as an established principle, and it had never been disputed. It was said that it this case there was an indirect motive for the ar- rest, and therefore the jury must infer nialice. Was this true? Suppose a man owed another a debt, and also held possession of a house to which he was eiititled, would it bemalicious to arrest him for the debt,in order to induce himn to resign possession of the bouse? Then, as; to the question of probable ca;use, was Mr. Espinasse right or wrong in his law? ? The bOltD CHaE Ju5TacE.-Wroag..rong beyond all ques- tion, in my Judgmient. The ATTo WRV-GIIirRiAL.-Wbat, tlien, is si man to do, my he should thinik of that before be makes hsis bargain. MVr. Justice BAYL.EY.-WaS it ev'er stated or suggested that Mr. Mlackintosh was to look to any one:but the Goyemnment of Colonm- bia for payment ? The LotD CHIEF JUSTICE.-0h, certainly Dot;VMx. Revenga wrote as by desire of the President. - Thc ATTORN4EY.GENEURAL.-He gave authority to Mlr. Men- dez to miake the cointract. The LonD CusxrF JUSTICEC.-If YouI rest on that, the contract did not follow the authority, bit was at variance fromn its express directions. The ATT0ItNEY.GEe,ERAL.-But what is a Man to do in the Situation of Mtr. Mlackintosh? Ile finds himself in a situation of grea emarrssmnt; e lysaltlefatsunireservedly beforea gen- tlemn o exerince nd harcte; 2d he receivesan opinion from himexpessd i thclaret pssile ers,sntl apparendy supported by oget rasoing Ishe ulpbleifhe acts upon it ? WVhat does Mr. spiass sayon fui cosidraton of the facts? " 1I am of opiiontha th cotrat f te 2th f Fbruryis a valid and bind& lgonract, andi ought to be performed by th oenment of Co- lmi.I consider the authority given to Mr.lendez quite sufficient to miake the GoTernmenit responisible for his acts generaly, but parti. cularly in this case, becauise there was a specific authority given to himi to order the articles wlhich form the subject of Mlr. Mal1untosh's claim. I consider the law to to be mnost clearly established, that a mredsni nothbo und bv the amt of a limilted agent acting under a ndathrty when he exceeds that authority, but that he is bouind by the acts of' his general agent, altliouigb in the particular contract the agent deviatedc froi- private instructions given to him., but of -which the persons wvith whom the contract was made lhad no notice. The caseof"WXhitehead aRdothers v. Tuckett," i5East, 400, is a direct authority to this etfe~ct, and the same principle may be collected from the case of 'FPenni v. Harrison,' 3 Termn Reports, 760, 1. Upon tkis point, I am decidedly of opinion the contract en- tered into with Mlr. Alackintosh was binding, even though Mr. lllendez might have contracted for the articles at a hiRgher price than ho was authorized to give; the limit contained in Mlr. Revenga's letters not lhaving been communicated to Air. Mackintosh. The Go- vernment of Colombia not having been recognized by our Govern- mient as a Government of an indlependent state, I ami of opinion that British subjects who have entered into contracts with that Govemn. ment have a right to consider the persons formning the Government and wvith whiom the contract was maide, as private individiuals, and that if they comne within the jurisdiction of the Courts of this coun- try thiey mnay be sued as such. Mlr. Revenga, in his letter of the 24th of October, 1820, designiated himself as ' the Mlinister of State anid Foreign Affairs;' as suchi, I tltitik Mlr. Mlack-intosh has a right to consider himi as one of the individuals foraling (what: I think may be considered) the firm of trade carrying on business under the firmn or name of I The Governmient of Coloimbia ;' think- ing as I do, that, not being recognized by our Government, they can only be considered a priv ate Merchants." AMr. Justice BAYLEY.-Have you eveni shown that Mfr. Re- veai b feme o h efirm TheAvTToaNxv.GgWgRAL.....e signs himself "MAinister of State, and Secretary of Foreign Affairs." Mr. Justice BAYLEYr.-I.S not that bring rather in the situation of head clerk than of a partner in the firm? (A laugh.) The ATTORNEY-GlExERAL...My Lord, he wrote to Mfr. Nen- dez in these terms :-" The thiree great departments which consti- tute Colombia being nowi united, our credit oughit to be much im- provedl,asyou will,nadoubt, considerintbheexecution ofyour contracts for armis. We are in extreme want of them in Angostura." And aan"His Excellency has received with the highest satisfaction the pleasing communication which -you have mnade, that in a short timne vou willI be able to send a quanitity of arms, warlike stores, anid clothing. Ilis Excellency charges mne to recomnmend to you the greatest possible despatch in effecting the transmission of thes ar- ticles. I have to observe to you, that the articles whereof we are most in wanlt, are mnuskets, gunipowder, anid clothing." Hiere he uses the term " we," and speakst as one of the parties concerned. l,1r. Justice BAyi-E:Y.-Niot more than a clerk, for his principals. The ATTORxEy-GSxENEAL...Thlat applies to the question whe- ther Mlr. Mlackintosh could ultimately succeed ini his action not to the question whether lie had probable cause to bring it. Ufa mana coslsa personi of Alr. Espir.asse's acknowledged 'skill, and if he receives fromi such a gentleman an opinion that a party of whomi he complains is liable to be sued and arrested, can it be said, wlhen he sues and arrests him, that he does so without reasonable and pro- bable cause ? Mr. Justice BAYLEY.-Certainly not, if lie believes the opinion to be correct, arid acts bota,iede upon it. The LostD CHIEF JUSTCCE.-WAVU you state how Ileft the case to thejury ?-I think it was in this manner :-Isaid if we were new tryinlg the action against Air. Revenga for goods sold and delivered, the cauise would have terminated some hours before, because I was most clearly of opinion that such an action could not be supported. But we were trying a very different question-.whether Mlr. Mlackin- tosh, in arresting Mlr. Revenga, acted maliciously and without rea- sonable and probable cause. Now, before ahe resorted to this meaur, he took the opinion of a gentleman whio, tliough not attlhe brha,to my personial knowledge, been long in the practice of his Profession. If thejurv thought toiat he actcd fairly and banafide on that opinion, believingj at the timec whien he commenced his action that he could succeed in the issue, tlhen, although he was midstak-en, he was not liable to be -sued for a malicious arrest, and their veredict ought to pass for the defendant; but if, adverting to all the circum- stances in proof, they thought that he did not act bona .fide on the 8pinion, and never iaidexpect to succeedI in the action,' but com- menced it in the hope, by the pressitre of imprisonment, to obtain anothier antd diff'erent resuilt, thern their verdict ought to pass for the plaintiff,with such reasonable and temperate damages as might satis- fy the justice of the case. TheATTORsEH-rGENERAL.-.Certain)ly, iny Lord; but the question of probable cause was not decided. Thje LonD CHIEF JUSTICE.-If YOU putt it to tie to say whethier there 'Was any probable cause for the action, I must say that there was nione, tor te action could on no ground be Supported. The ATT0RNEY-GE?ERA,L.-SurC1y an action which cannotrbe supported is not necessarily an action without probable cause ? The MOtive -Of tho pi's-ty inust be consitdertd - - - -- - The Loito CHtIEF JUSTICE.-Of the motive-no mnan can doubt: it was to induce Mlr. Revenga to ratify the debentures. The ATToRNEy_.GEXEaAr...But that, I suibmit, is applicable to the question of' malice. On the question of Probable cause, I contendL that there was no evidence whatever to show, or even to raise a suspicion, that the plaintiff' did not believe the opinion of Mr. Espinasse tobheacorrect opinion. The LoiRID CHIEF JUSwT1E..-A think there was evidence that Air. Mackintosh wias actuated by another mnotive than a hope and belief that he should recover. Hie takes time to declare; he con- sents to thle discharge of Air. Revenga just before the time would expire when he must declare; he then takes further time to declare.; in AMichaelmas Term, being comnpelled by a peremptory rule, he declares; and a few days after lie takes out a rule to disconitinue the action on the payment of costs. MVr. JUStice BAYLEY..- ..OIs put the criterion as not whether a man It-as, but whiethier a man tldinkst lie has, probable cause. Now, if a man arrests another maliciously, it is not enough that he thought he had a legal right: he must show that he had reasonable ground to think so. The ATTORNEY-GEa.ERAL.-BUt is tlhere, can there be, a want of probable cause when there are doubts. about the law ? I am now on the question of probable cause, and contendI that the cir- cutrstances from whence malice may he inferred ought not to be im- parted into this part of the case, when they applied entirely to an- other. Mir. Justice HOLRtoyn begged the Attorney-General to read the Lord Chief Justice's charge again, as it seemed to himi to mieet the ob iection on wvhich he was relying. ?rbe AT TO0RNEY..GENERAL read his note of the charge, which corresponded with the statement made by his Lordship. MrT. Justice HOLROYD.-The charge of his Lordship seems to me to steer clear of the objection. He distinctly, states, that a ver- dict far the plaintiu'mutst proceed, not only on the ground that theo defendant acted maliciouisly, but that hie did not act on the opinion wvith any expectation of recovering in the s-uit. The ATovyGxEA.-hv on the other point, I deny that there was any evidence of such indirect motives as would amioun;t to legal mialice. The LoRD CHIlEF JUSTICE.-Thle motive really was almost avowed, and was evidenit fromn the whole cerresrvondence between Mlr. Nornby, the attorney for MVr. Mlackintosh, aiid the plaintiff. In one of those letters MVr. Horuby took on himsclf to tell Mr. Re- venga that by the law of this counitry be was personally liable; on whiich I made a remark- The ATTOnxEY-GEN ERAL.-YeS; hut your Lordahipiqualified that remark, by saying that it was -not u-nusual to de so. The Lon) CiliEr JIJSTICE.-YeS ; I said Mr. lHornby was a young man just entLering itbe profession, and I wished what I said respectingf himn to be taken rather as mnatter of adALce than of re- proof. But as a genes-al rule, I thought that tlse adverse attornev ought not to take o)n himself to inform a party that the law Was against him, hoit leave him to lea-rn that from others. MVr. C'tsaaa...r. Hrb ttd that othier opinions were taken, but they were not received till after the action was brought. The Loan CHIEF JUSTICcE..-Those I lay entirely oat of the The ATOI E-GE~IRAI..~Then, my -Lord, granting that- the otie Ws toprourethe laitif's sanction to the debentures, I sumittha wasnotsuc a mtiv asthe law could regard as mali- ciou-it as mrelyto otainsecuityfor a debt. The Lan CtIEs Jusvcx.- ottmaY recollect that you were urged at thetilt rdc one of these debentures ; and that it was strongl sgetdthif one of tiem were produced, it ivouia showr that alpre eet be dischargetd from being persolnallyi liable. Alr. Justice BAYLEY.-Have you not premsatusrely assumed that Mr. Revenga is a member of the Colombian, Government ? The ATT O5tEY..GENERAL..-Surely, my Lord, a Secretary of State is a member ofbhis Government ? Mir. Justice BAYrLEY.-Net in all countries. Suppose the Go- vernment to be an absolute (Government. is the Secretary of State a mnember? Is the Secretary of State of France a member of the Government? The ALTTtRNEY.GEXERAL-M._Y Lord, the Colombian Go- verament is a Republic. Mlr. Justiee BAYLEr.-WaS the Secretary for the Seven Pro- vinces of Holland a member of the Goverament ? Or, when France was governed by three Consuls, was her Secretary a member? The ATTORNEY_GENERAL once more urged, that although there might be a good defence to the action, yet there was, in the mind of the defendant, reasonable ground to commence it; and that the attempt to obtain security for the debt was not improper. The LORD CHIElF JUSTICE.-I thought at the tnal, that I left the ease to the jury in the manner most favourable to the defendant, and X think so still. M Ir. Jstice BAYLEY.-I th-ink there was ino probable cause for the arrest and that the question was fairly left tethe jury, whether the defenaant acted boaafide on the opinion of Ar. Espinasse. We know sometimes a man may obtnin three opinions on one side, and three on the other; and he may choose to acton one set of opihions to thc exclusion of others. Mr. Justice HoLnoyD and Mr. Justice LITTLEDALE con- cuired, and The COURT refused to disturb the verdict. BOLTON V. CROWTHER. This was an action oin the case by Air. Bolton, of Birmingham, against the Clerk to the Commismioners of the turnpike-roads near that place, for injury done to his prolierty. The cape was tried be- fore Vr. Justice Pa&rk, at the last aseizes for Stafbord, when the plaintiffshowed that by levelling a hill vhich patted his grounds, he had sustained coRsiderable incenyenience, and had obtained no compensation, none - being provided for bythezact. The learned Judge expressed a strong opinion that the Conmisioners Were bbund by lawr todo what they had done; but dit6pet he jUjry, if. they thought he bad acted carelessly opprea4v ir -vexatiouslyu to find a verdict for the plaintiff. bet esis hirclxir jhe jury found a verdict for the defendant. - ; IAl . .TJRvxs now moved for a new trial on theground that the leamed. Judge was mistaken in point of law. It was not to be believSd that the cominissioners of a turnpike-.road had a right, by levelling hills or filling up valies, to make a man's house a cellar or a watch-tower at their pleasure, without making him a recom- pense; and ic was no defence to sav, that they had done him only as much mischief as was necessairy to the accomplishment of their purpose. The COURT were dearly of opinion that the direction of the learned Judge was right. The commissioners of a turnpike-road were not liable for the inevitable results of acts fairly done by them in the discharge of the duty cast on them. In some cases they were enabled to make compensation ; and where they had no such power, the maxim saluS populi smprenza lex must prevail. They, therefore, refused the rule. 31R. PARKItIS. Air. ex-SheriffiParkins, after the Court had gone through the bar, rose and said he wished to move in the case of " Byrne v. Parkins."1 The LoaD CHIEF JUSTICE.-A cause in which you were a party, Sir ? Mllr, Parkins.-Yes, my Lord , but I wish your Lordship would allow me to move to.morrow morning. The LoRD CHIIEF JusTIcE.-Certainly, Sir; but I cannot give you pre-audience. Mlr. Parkins.-I shoRld be much obliged to your Lordship if you will; for otherwise I shall be put to great inconvenience. MAr. Justice BArLEY.-We cannot break through a general rule for an individual. le will hear you now, Ilr. Parkins declined to go on now, as his affidavits were not I ready, but he would attend to-morrow. He then retired from the Court. COURT OF KING'S BENCH. WESrMINSTER. AxfAV 7. trEVPENr- 17. fL-Nor