Court Of King's Bench, We...
The Times, 1824-07-19T00:00:00

Jns SOOD ag tUSC ZjORt CUSEa JUSTICE: bad taken his seat oti !th MA krose, and begged to make an application to the (fourL ffev4as inlstrilcteid tO miove that the trial of tvwe causes of" M1Acsau. lay v. -Shisekell"1 each betw'een the same parties, and. standinig ihnhis Loyldship's Napqr, should( be ostppnedl for as few days. These were actOOhsby-3 r. Zachesdah llIacati1ay, against the proprietors of a Suntbity newspalier called t7l1e.o7hu ?ud1 for libels on the plaintiff's chhtracter. To these actions wttce severalI voluminous pleas, justify- ing the iiatters of the alleged libels as truxe. On the Ist of June, a bill 'W.Ufilea itt Chanceiry on the part of' the defendants for a dis- covery, and also for a commission to examine witnesses abroad in suPport of thte pleas. A denmurrer-Awas flied to this bill oni the grouind that it was mnultifarious, and that a siingle bill coulid !%O;,be made applicable to two actions. This demurrer came oni for argu. ment'before the Vice-Chancellor on thle ~3Oth of June, whenl stir. AMacaulayIs objection was holdezi valia, and the bill disnmissed for want offelrmn. The deffetteants hastened to teetify their error ; and on the f6llowing day, the lst of Juelr, tIled two bills4 for the same npoe.The plaintiff' %ated till thie timne was jutst expiring when heulon detuuri, aia~ thien, on the 14th of Julty, put in his detnurrers to the boverta bills. An ekpplicasion was on the next morning Made to the LordI Chancellor to he~ar the dlemurrers, which involved the question wvhethier a defcndant pleading a justi. fication to an action for libel, could, have a bill for the dliscovery of the facts In the alleged libiel, and also a commission to examine witnesSes. The Lord Chancellor said hie could not then hear the case, but flxedi Saturday, this very dlay, for the hiearing, when the i~ause3 stood for trial. At the saine time, the Lord Chanrcellor recommendedI an applicatioin to the Lord Chief Justice to postpone the trial of the causes for a week, ini order to give opportuniity for hiis decision. The language of his Lordshiip wasimmediately taken dlowa by, Mr. Sughten, the counsel, anid was signed by him andI dir. WIalker, the Officer otf the Court, in testimony that it was accurate. On, this, ground the present application was irade; and, indeed, it was quite in the ordlinary course for the Court to grant suchl a delay', when1 thle party was proceeding with all reasonable despatch to obtain a commission. Ilere it was quite obvious that the defendants had used all the expedition of whlich the case admnitted, and therefore they were entitledI to the short indlulgence which th-ey sought. Mlr. SCARLETT dlesired that the affidavit should be readi. The affidavit was accordingly readi by the officer. It stated thle proeedngsit decried y r. ark, nd represented the Lord Chanello assayig, "sk he Lrd CiefJustice, at MV request, to pstpne tesecauss fr a ew ay,n Ivwill hear the demnurrers The LoD Clus' JUSICE.- presme there is a simnilar affi- dr. Pnhca answered in the affirmative. Mr. Scarlett then handed ink thie affidla-it of Ml-r. John Fres- too, of the firm of Mlessrs. Tilson and Preston, attorniesi for clie plaintiff Itset forth thattlhese actions wNere brouighitfor gross libels whichl appeared in the newsptper called the Joins Bull, of whiich the defendants were proprietors. T.Lhe;e causes being in thie usual course appointedI for tria,, lie delivered briefs to counisel, and obtained siub- pcnas for the attendance of witnesses. Some of these witnesses had alreadly arrived in Londlon, anti others were now on their j'our- no' The application to the Chaincellor was ex-part-e, and lie verily believed was madle for delay. Mtr. SCAatt.TT..-If the -plainitiff' in this case, Mlr. Alacaulay, or those Who advise Iimr, couild ptrrsuade themselves that the dlefend. antshad inthes prceeings an deire for time full investigation of te tuth mos unuesionaly heywould not cast the least ob- stace i thir ay:butas t i thir firm conviction that the soleobjct s deay,anda legthnedopportunity of pouring faih hos lbel wnchthse efndatsseem to think them- selYes privileged to issuie, they are bouind to oppose the mnotion. Tue LordI Chiancellor operates in'n causes in this Court by inun- tioni ; buit thiiS is thie first time that any inohrsdre o aeuse i;f words whiich iiaturallv dIrop from himii in thie course of' argu- men', as a formial request, Which if regularly made, it would be very h4ardi for ani advocate to resist or a juidge to refus8e. Thie courts of common law hiave never yet lent tliemselses to assist the delays of the Court of' Chiancery, and I trust they never will. On the con- trary, dloubts 'vere formierly entertained whethier thev wouild niot ex- Pedite thle trial of causes to prevent thice delay which muust result from an expected injunction. An applicationi Was made to Sir Jamies .Mansfield, whier Chief' Justice of the Colmmion Pleas, to take two causes out of their order, to prevent the trial froni being stayed by the Court of Exchequer. Hiis LnrEdshlp though inclinect 'o- do so. doubtedi wliethier hie could change the ordelr of causes for such a purl pose, but lie deputvt. Air. Camnpbell to go to Lord ElleniboTouh1, then presidinig in this Court, and ask his Opinion on the practice. Mir. Cainpbell upon his r-eturm certified tha,t Lord fi Vansfielti hadl laid it dlown as a rule, that thtough 7ie wouild ntot wait for procerdings int equity, hie wouldl not take a cause out of its order for the sake of' defecating, themn ; and that the same rule liad been observed by hiis successors. [I Camnp,elt'.s Reports, 562.1 Now hiere yotir Lordship is askced to " iwait for pro- ceeding~s in equiity," on thie extraordinary suippositiorn that the Lord Chlancellor wvishes it l Mly unfortunate client has been des- tined to prove thiefatal effectsof this importation of delay from Courts of Chancery into this Court: he brought an action some years ago against other P4eisons for a libel-they resorted to this very means of defeating hihn; and the cause remains untried to this hour. Is it to be endured, dieat a party shall publishi time grossest catlumnies on an- othier and when, time object of his slanider brings an action to vindi- cate his chaTacter, shall plead a justification ; anti on a suggestion that it may be necessary to examine the Emperor of China, or the Pope of Rome, go to the Court of Chancery, and from that grsat re- poitory, of'the weapons of delay, clitoose such mneans as shiall deprive the party o' hls vindication as long as he shall live? As to one of thoe libel,%, it is clear that the application is a mere protestl, for it nusut be -proved, if at all, in England. It consists, indeeth, for the chief part, not in the allegation of facts, but of most impertinent abuse, -with whichl sonic privlegedt writers think, themselves entitled to ussail any one whomn they select for their attaclits; ringing changes on his name-"; Alr. Z-chau'iah, the mer- chant," andI "MAr. Zucharith, the saint," and lmYu dng generally hypnornsyatid fraud in eacli of those characters. Ti substance, the libel charges that Air. Macanlay procuiredI an order to prevent the exportation of gunpowder to Sierra Leone, and sent out thie order in a ship freighted with powder, which he was thus ettabled to dispoe of to great adlvantage. Now the order, the freighting, the whOle schieme, are all to be proved, if at all, by gentlemeni residing in EngIland. dir. PAIL(E....Go on, anid read- Mlr. SCAULET,r.... wviil, Sir. Thbe Jelin Buttl shall have the be- nefitof atll itsi libels. The article goes on to charge, that dir. Mfacaur~ lay obtained a profit of 5110 per cent, on the sale; hut thiat is not the material point ; anid I Will agree to adroit it if the rest is proved. Ini this very libel the author rcfers to English witnesses for its truth; and( we have thiose witnesses to ishow its falsehood; and the defendants know we hiave, and thierefore they apply. Pliere thiey say, '" In our pext paper we shall proceed in plucktnig tie daw," intimating their intention of carry-ing on their trade in libel-the onily tradle, so far as I know, they havc...ad in which they nowv intend to proceed, if they slhall oltttin thteir object, and thlrow over these causes to Mlichael- nias Term. But none of your Laordship'is predecessors have encou- raged these delays for which die Court of Chancery is famous, and Your Lordship, arenssure, will not set the example! Mlr. PAitiE, in reply, sQrged that his motion wvas really ofta very ordinary nature, and which it was almost of course to gratit. ln toie cae eerred t of Mfr. Macaulay's action nagnt Mlr. Thiorp, the Vice-Chancellor lheld the tiefentdant entitled"1 to a discovery and cOmmissioii , and whethier this was right or not, the Chancellor would now decide. If MAr. Mlacaulay had been anxious to meet this general question at once, why did he demutr to the first bill for want of formi, instead of meeting the case on principle? Here it was quite obvious the defendlant had proceeded bonafide, and hail useild as miuch expedition ais possible; and therefore they confidently hioped thlat his; Lordship would not tey their causes 'at a time when it was impossible tDhe1~ siioulti have justice. Th DUlfitar .JUSTICE:.-In deciding on this application, 1 shall take for grainted, what every moan in the kingdom will do who is not a party initerested, Sliat when this case comes before the Lord Chancellor he will deal with it as justice requires. WVlien the case comnes before himn, he. will determine the general question whether a defetndant Justifying a libel is entitled to a discovery and a eons- miission, or ei,hier ~ and alsohe will determnine whiether, in this par- ticular case, lookinig to what the libels are and so all the circum. stances, such proceedings ought to issue. The simple question for me is, whethier I shall do so inidecorous a thing as to try these cauises on the very dav which he has fixed to hear the demurrer, in- stead of waiting two or three days for his decision. I think I amn not bouind to do so, and that I etiglit not to do so : bat I do not say I will thrtow the causes over till Michaelmas Term : on the contrary, if the demurrer shall be allowed, I Wil take the causes at aisy time, or will take care to adjour-n here to soime day in the London sittings, wlhicl shall give mne the opportunity of tryjing themi. All T Say is, that I will not trY themn to tlay; probably not on Mlonday; anid that I do niot think one Court ought with indecent speed to try to get be- fore another. The cases, then, must stand over."1 11o1s)(r7 V. TStE PRORpItETrOLs 0' " TIKF. TrIbSt." Dur-Ing the discussioni in the last case Mlr. Justice Littleulale came into Court, and sat bestide the Lord Chief Justice. As soon as it was concluded the Lord Chief Jus.tice left the bench and Mr. Justice Littledale took his place. Thie appearance of die learned Judge who tried the cause of Friday, excitedI ani expectation that the jury were about to deliver their verdict, and thie utmnost anxiety pervae4'ed the Court. At 18 mninutes atter 10, the iury entered ithe Court. Their cojin. tenances exhibited all the marks of extremne fatigue. Thtey answer- ed to their namies, however, in very firm voices. Mlr. Ju-stice LITT5.1EDALF then asked if they were agreed on their verdict ? Th e Foreman.-WeV are not agreed ; and we are quito as far from agreeing as we were at fi rst. Several of thie jury are very ill, and will sink under futrther exertion). Mir. Justice LITTLEDALE...I have received a letter from Air. Godsall ; has he any observation to make?P MrI. Godsalh.-.4ly Lord, I am extremelv ill. I have bieen confinied liere from 11 o'clockt yesterday mnorning v'eitliout refreshment, and r really think my lito is its danger. I do not thiink we cito ever agree; and I trustyour Lordship will relieve ur from our sufferings. AMr. Justice LITTLvEDSALE reada it gerhe lied received from this gentleman,butin a tone of voice whicll oreach us. W understood it to be to the samne effect with the statement just mnade. His Lord. ship then asked if a-ny other Of tile julry ha~d any observatiomi to maN 5? mr. Robinson said, he was near 10 years of age, and extremely ill. He had tasted nothing but a little wine and water since the morninig of yesterdav. He had been so ill thNt lie did not think lie could have held out during the night. Mlr. Justice LITTL.EDALE.-i thiink it was for you I ordered a sanidwich and wine and water ? Mr. Robinson.;I had a very little. I am sure I do not know what is to become of us. Mlr. IfHorton._Ij am in the same state. I was 80 years of age last April, anid I cannot stand this much longer. Al r. Horn.-I am very ill too: my body and mind are both ex- hiausted. Mr. Justice LITTLEDALE, after a few moments' pause, said_ Gentlemen, I can do nothing for you; you must agree on yeur verdict." r1d Mlr. Sawyer, the jurysnan who put the questions on the precedi evetiing, respecting the eXfiect of a verdict tbr the plaintiff, as imrput- ing Inalice to the lefendants, now said, "' M'y Lord, we are agreed on tie verdict; we only differ as to the amount of da- eshc ATTO GiNEYXGERAtL-..4Y Lord, I will tafke nominal Mr. CAILET.....I adea popoitio inpriateto y learned friend, and he declined it; hec ouh os kwt ae a propositioii in A J'uryroaan.._lIy Lsotd, we AtC willing to- give nominal damages Mr.'Pain.- Lord,'we have been c the subjeto dmgs At first we disagredatovritbtfr ihe grae pr fthtime we liave bendfeIT bu h 1. mlageg. I hope-*tt*r3*ilie&1f4f iistdih6iagf taXt say, the degradiug 's4ttiots .ii w ji-;ebist.been "laced during1 1hsisbnighI. "Wehave la ( edagain and.ag al ttfle nvates' a WId a tsoel to wash out factsbut this aMdavey otneviacconiodstion teas icfuseq. Sstilt, if jtstice equires, 1 amrrwillng togo through 'l'he Foreman, sftecon4.ultiDg with thejurynmen about bim, said he believed the 3mry would fiee tlhirty shi ings. Tlie ATToaRNE gvGwsNstAL.-GentIemcn salbqlea tisficd with thinty s~illex su e is, I abaB be quito sa- Dir. SCAItLETT ro5tl, anld sgemted about to speak; but The ATTPRNE1Y-GENEtAL -continued. Thirty shilling s, or one chilling, gentlemen; it is just the samne. Really It i absolutely due th the Jury that I should say *o. Di r. AsssoT T.-entlemen, are ou al agreed in your verdict ? Several of the juroraseemedtodissent. Dit. SCARLPi:'T.-Thbi Is really Very irregular; the jury must agree. Air. Justice IrTr LEDAb.rE.-Gentlemen, the veidict must be the result of your own minds. You must say-what damages the plaintifF is entitled to recover. A Juryman.-.What damages will carry costs? The question gf costs is really the onlv questios on which we have been longdividedt. The A TToTniE r-5rGeEEtAL-Then, gentlemen, I amn extreme- ly sorry you should bave had all this labour; for any damages will carry costs I am very sorry yoa should have suffered all this,when a vord fronm any of us would lhave relieved you. Dir. Justice LITTLEDALp.-Gentleren, yoa are to find such damages as you think the riaintiffis entitled to recover, withoat re- ference to the costs. The law determines the question of costs, and not the jury. They ought not to be told what sum wouxld carry costs, or to be in luencedby it in giving their verdict. Mr. A11BOTT agaln asked the foremnan if the jury were agreed in their verdict? The Foreman, after turning to hisfeDlows, 4aid " Ve are." DLr. AnBoTT._Po you find fog' the plaiutif or the defendant? The Foreman..For the pl-intif. Mr. As nOTT..Whtt damages g The Foreman.-Thirty shillings. This verdict was then recorded. Mir. ScAFILETT.-Perhaps your Lordship will inform the gentle- men that persons above 70 years of age are exempt from serving on juries. If they had refrained from serving, these inconveniences might have been avoide(l. One of these gentlemen is 80, and an- other 78 years of age: surely they are not fit to serve. olr. Justice I,tTTLEDALx.-Undoubtedly, no gentlemnan who is above 70 can be comnpelled to serve; and it is for these gentlemen to say whetlier they will again place themselves in a situation where they are liable to such inconvenfeuce. The ATTORNEY..GENEIRAL.-Will your Lordship certify that this' was a fit case for a special jury ? Air. Justice LITTr.EDALE.-Certainly.' The Jury then left the Cotert at half-pact ten, after having served exaictly 25 hours, antI having been shut tip 19 hours and a half. "* Some curious facts have transpired respecting what occurred in the jury-room durinis the time they were ehut in to consider of their verdict. About 12 o'clock, several gentleuen sent out for their great coats, witli a view of fomforting their inwdrd rather than their outward man. Their coats were dlelivered to them ; but not until | they hiad undergome as strict an examination from the officer of the coutrt us a smuggler undergoes fiom an officer of excise. Nor wIs I this precaution unnecessary, as upon examination, it was found that more than one of theM had thus attempted to smuggle in provisions for the starving garrison. A little after one o'clock some of the jury, who couldt not sleep, sent out to Alr. Bellamy for a pack or cards anl a'cribbage-board, but, as our readers know, received no answer to their application. About six o'clock, an attempt was mate by several of the jury to obtain some milk from a milk-girl, who happened to be passing with a psir of pails. A treaty was made fbr a supply; and the supply had actually commenced before the Argus of tl;e court interfcred to cut it off' A tumbler, which had been sent into the roOn with1 the half-pint of sherrv which was sent mo Mmr. Robertson. was the instroment by which the supply was to be forwarded: and it had been once filled anti emptied Isefore it was seized and carried away by the strong arm of power. The hour of breakfast shortly afterwatrds arrived, and brought along wilh it in- creased feelings of hunger, exhaustion, and dissatisfaction. We have heard that at this period one of the jurors had a bite at his shoe to satisfy his appetite. The remaining Interval, between 8 o'clock and the hour when the jury entered into coart, and fotind that they had been disputing for some hours on a point on which, if they had been properly informed, they would have ceased to dispute the eveis- ing before, was at last consuaied, though not much to their satisfac- tion. They entered the court at half.past ten o'clock, and exhibited in their persons stch marks of indisposition and exhaustion, as will, we thinke, lessen the nuniber of candidates in future for serving the office of special jurors. CAPPEt V. VEITC1t. This was an action for the ntaliciout prosecution of a charge of per- jury against the plaintiff. Italose out of the trial of a cause of " Leach v. Veitch," which took place before the Lord Chief Jus- tice on the 7th of May in last year. That action was brought in the name of William Elford lIeach,, a gentleman of considerable literary attainments, who had held a situation in the British D1ia- scum, and who became unfortunately the subject of insanity against the present defenda:it, for improper treatmtient while under his care. When it was ascertained that ;lIr. Leach was afflicted with mental derangement, a cottage called Rosslyn Cottage was taken for him at Irlompton, and lie was pllacedl there under the superintendence of Dr. reitch, who had acquired considerable reputation for his manner of treatment in cases of derasngement of mind. While he was thus situated he escaped from his Iteepers, and was brought back by a inan named Richards, who was the principal sdperintendent of his Ilerson. At'er his removal, it was suggested that on occasion of tlhis attempt, he had been treated with needless violence and severity by Richards, and also that his mnedical treatment had been improper and danget- ous. For these alleged grievances, an action was brought and a ver- dict recovered against Dr. Veitch with 501. damages. On this trial, Mr. Capper, who had been at the bar, and who had filled an office in one of the colonies, was called am. a witness, to speak as to the conduct of Richards wvhen ,lMr. Leach was retaken; He then swore that he saw lr. Leach running along the road, that he gave information at the cottage of his escape ; that the pa- tient tvas found in a ditch, wien Richards struck him; that Richards said, with an oath, " Doctor, you shall catch it for this ," and pinioned his arms while he seemed in great bodily ex- haustion. At the ilfidsummer sessions in June, Pr. Veitch prefer. red a bill of indictment against Mfr. Capper for the evidence which he then gave, but it was ignored bv the Grand Jury. At the Dii. chaeSlmas sessions he preferred another' bill, on the back of which were Richards and hinsetf, who had not aptleartd an the former oc. casion, and this bill was found. Mr. Capper remdved Uie indiltwent into the King's Bench, where it was tried on the 13th of January last, and Mr. Capper was acquitted on a variance between the evi. dence as laid in the indietnient and as proved by the witness, before ally investigation of the merits. He now sought by this action to recover damages against Dr. Veitch for a malicious and groundless Icharge. Mr. SCARLETT opened the case on behalf of the plaintiff. On comparing the indictment witS. the declaration, in whlich itwas recited, it was found that in each of the two first counts were some variations between thenm. In the first, the words " to the cottage," were chnanged to " into the cottage ;" and, in the second, the autho- rirv of the Lord ChiefJustice was described as to hold -sleas " at I'eastinister2" instead of "1 wheresoever our Lord the Kiing should be in England." The ottly remainiNg count, merely alleged that thedefendant wrongfullychargedthe crimeofperjuryon the plaintiff. Mr. Gu Ri-t E. for the defendant, submitted that the two first counts cotild not be sustained, and that the third was bad in law. Tihe LoRD CHIEF JUISTICE said he wouldl consult the other Judges, sitting in the adjining roomn, on the points; but stggested the propnmetv of withdrawoing a jutror. MIr. SCAurT.ETT, on this tntimation, sentfor his client, and after conversing with him said, that Mr. Capper placed himself entirely in his hands. He would therefore take on hhnself to accede to his Lsordship's proposal. Ir. G tnEY assente3, and accordingly a juror was withdrawn. DUNCAV V. T5IWAITES. This case, whicl involves the right of publishing police-reports, was called on before the three Judges. Mmr. PATTIsox began to state the pleadings tbut .Ir. Justice BAYLEV suggested, that it was of sb mdcli icripartance, that it ought to be taken before the full Court. It accordingly stood over; COURT OF RlNG'S BENCH, IVESTfINgT'.M, JUnY 17. ^. i ;I 3 ACAUT.AY V. ATXAC)rvLL.