Court Of King's Bench, We...
Reforc thc LoRD CHIEF JUSTICE and Special JuriCJ. LiIr. UHITTY opened the pleadings. The declaration atated that Ibis was an action for a libel ulon the plaintiff, which had appeared e n thc 22dt of February last in a newspaper entitled thc BDrtish and Jnuiia,a Observer, of wvhich the defendant waas the printer. The (le. f endant plended "not guilty," and on that point issue was lained. ,Mr. Gunr.zY opened the case to the jury. The plaintifftxas the xnptain of the Wiliam Fairlie, a vessel In the service of the East I ndia Company, and the defendant was the proprietor of the British eind Indiazn Obserser newapaper, in which a libel had appeared that wa8 ralculated not only to aflect the pecuniary interests of the plaintiff, ltum also to lower his gencraleatimation in society. He would readit to tuem in this early stage of the cause, in order that they knight judge ef its blackness and malignity. et was as follow :- On Wcdnes. hya -Court of Directors was held at the lndia-Houtse, when the followring commnandera took leave previous to their departure for their ztespective deatinatione :-Captafn Richard Cliffrord, of the Lady Mfel- tille; Captain Kinnaird Smith, of the WilliWam Fairli', for Aladras said China. We wisli the passengers and crew of the William Fairlie a safe and pleasant voyage; the former they may have, as the ship is vell found, and appears to have some officers competent to assume the command in case Captain Smith should happen to have a relapse cf the malady which affectec! him during his last voyage. We can- rot but express our surprise that the Non. Compan of AMerchants ia Leaden hall-street should commit a valuable ship, her cargo, and the lives of hundreds of their fellow-creatures, to the custody of a man wh o, for ccrtain acts commnitted in his last voyage, pleaded in justification ti temporary insanity. The pub- lic will easily determine which of the two is maddcest. WVe *u;St tlhat die proprietors of the ship have taken the necessary precautions to sensd strait waistcoats on boardl, and we hope that the ship's officers will not be delicate upon its" (qurry, tieir l) "application the moment any symptoms of a relapse ap. pmrs" That such a libel must have a most injurious effect UpoII the pecuniary interestz of thc plaintiff would be apparent to any per. sim who reflectedl that the principal enmoluments attached to liis si. tuation were derived from the number of Iiis passengers; and that atry lady or gentleman, wbo had seen this aragraph, was not likely t!i take a passage in the IFilliam Fairlic. h.'e linew not how a greater libel than that whichi was before the Couart could be publshed npoon a private individual; but there were circumstances cor iiected witb it w-hich gave it peculLar aggravation, and those circumstances were, that the plaintif'ss ship would carry out to lndia several copies of the r'per which contained it. As soon as it carne to t'e knowledge of the plaintiff, he gave instructions to his attorney to comimence pro. ceedingti against the defendant, well knowing that there was not the slightest foundation for the calumny,and directed that, instead of an indicdtment,which would preclude the defendant from calling witnesses to prove the trutl; of it, a civil action should be instituted, which wvould entitlc hini, if he couild, to justify his slander. The defend. ait hal not availed hiimself ot' the opportunity thus afforded him ; hu t, on the contrary,bad acmnitted by his plea that the libol was false. Hie therefore trusted that the jury, by their verdict, would give the piaintiff full compensation for the injury which he had sustainel, and would. by so doing,teach the proprietoTs of new spapers to refrain fiom interfering with the private concerns of individuals, vith which they had no earthly concern whatever. The learned counsel tlk,n ealled the following witnesses:- Charlea Barrett produced the necessary docun-ents frosm the Sa,,mV.ofce t9 prove that the defendant was the printer antd pub- lithe._,9f the Is:dia; and Rritish Objcrzcr. r4jV,g.examincd by.lMr.TAJ.FOtRD.- I have heard that the British aalL aOJstrver lhaRs been discontinued, but I do not know it aJy?atsa fact. Jacob.-J arr a clerk In the East India House. I know 61aat thc WUhzrn Fairlie, the shiip which the plaintiff commanded, anilzd at thelatter end of March lat. CrDSa=.z=rnlnz by ;r. CARRINGToN.-I cannot say whether the ship sailed with fts full complement of me n or not. I only sawc tbe captain for a very short time before he sailed. P1r;.nTLrouRD condtucted the defence. In the observations wlialsh he intended to address to the jurv, he should saay iothing whiich wourd inflict pain on the feelings of Captain Smith, or would gi';e increased celebrity to the obnoxious paragraph of which he complained. There was noitiAtification of it entered upon tbe re- cord; and he should scorn to insinuiatc that which he was nteither enabled nor entitled to prove. Ile therefore admnitted most fully, tht, the imputation contatined in this newspaper had no foundation whatever in truth ; but at the same time he contended that it was an Imputation which mrust have originated in sotiie misconception or mistake, and which could not have originated from deliberate kna. lignityand ill-nature. Indeed, the manner in which it was worded wtas calculated not to excite odium, but sympathy, for a man who was reprcsented, though falsely, to have been smitten in a most awful manner by the hand of Providence. Tlhejury would perceive that it had appeared in the defendant's paper betore the departure of the plaintiff for India; and as it was circulated not in places wihich were as obscure as the paptr which contained it, nor in situations where it would ba difficult to procare evidenice to refute or explain it, but in the very place wlhere it must fall under the eye of every person who was going to or coiiing from india, and where its truth or falselhood must bn notorious to all who real it, there were obundant grounds for thcir concluding that it owed its birth, not to atiy ill-natured or ittalignant feeling, but either to miscoAception, or tome of those eccentricities of hmknan fcel,itig which marked the variety of humats character. Frotn the seanty evidctice whichi had been produtced by liis learned friend it wa, cdear that tbe calumnious imputationi which it contained ?iad batn refuted almost as soon ss it appeared, and that, too, in the very tju.tcri-lse nMeant the Last India Company-wherc, I it had been unansweted, it vould have been most injurious. Indeed, the plaintif? didl or pretend in his declaration to have sustained any pecuniary damage; and that wats a topic which, he trusted, thejury would not loio sight of in estimuting the compensation to w'hch the plaintiff' w7an entitled. TPhe paper which dhe defendant hlai prSnted was con. tined hn its crculaton; and if they knew that it had once been gift. ed with cxistence, they must also knov that at present it had depaa t. ed from it. Mr. GuaRsEw.-I shall Insist on my right to reply. You arc now stating facts of whieh there is no evidenec before the jury. Mr. TALr'OURD thought that the learzed counssl was rather hard upon him, conaidering the disparity that there was between them. He admitted the general topriety of the rule on which his leamed friend hail announced his intention of insisting, but he thougbt that he was a pplying the letter of it too strictly in the pre. sent instavaca. If he had not a right to state that his paper bad de. paxtedextstenee,he.had aright to state what was almost tantamount to it-that there was no evidence that it had exlstenee,and also thatoneof thewitnesseshad declared his belief that it had given uplth ghostsame time ago.. As such were the facts of the case, he trusted that the jUJy wou'd not think that they were called upon to give a severe verdict bgalnst his client. The object of the plaintiff in brinFing his actiidn was not to obtain heavy pecuniary damagea, but to vindicate his ctaracter fromn the imputations wZhich had been cast upon it. That object had been obtained before his - departure for India. by the declarations of the officers of his ship, and by the re.appointnment to it which he had obtained from the Conrt of Directors of the East India Company, and was now, if possible, still more fully satisfied by the distinct avowal whicla he had alreadv snade on the part of htis client, that he hadS no grunds hatever for the aragraph in question. Under these circumstances, he was certain that the jury would give no more than those moderate and temperate damages which were rcq?atret by Captain Smith, and which would satisfy the peculiar nature and justice of the case. The LOtnD CHIrEF Jwsvxca summned up the evidence, and the jury immediately rgturned a ferdict for the plaintiff-Damages 2501. STORY V. ROOKE. This was an issue directed by the Court of King's Bench to try whetber the plaintiff or defendant was entitled to hold the office of the Clerk of the Pence for the county of Hertford. The plaintiff, lUr. Story, claimed by virtue of an appointment. mnade by the uresent Lord lieutenant of the county, Lord Verulam, on the Uth of November, 1823. The defendant claimed under an appointment of the iate Lord Salisbary thelast Lord Lieutenant, in the year 1818. The father of the de?eadant became Clerk of the Peace in 1780, having previously acted for many vears as the deputy. In the year 1813, his health was infirm, and laordS8a'lsbaty. proposed that he should resign in favour of his son. The son was accordingly by deed appointed and sworn in; but the father, having recovered from his illness, continued to appear at sessions as b'efore, and to per- form many duties attached to the situation of Clerk of the Peace until he grew infirm, and the duties were performed by the son. In 1S23 he died; when Lord Verulam, tenceiviaig that the office had now become vacant, appointed the plaintiff, but the defendant re. fused to give up the papers, relylng on the appointnaent of Lord Saisbury.. ^ the part of the plaintiff, Mr. MXARRYAT contended, that there never was a bnaaJiereslgnation of MIr. Rooke, sen.; and that at all eventa there wzas-no resignation by deed wthichl, in point of law, was essential to divert a freehold office, if, then, in 1813, the office was not vacated, Lord Salisbury could not appoint, because he had no power to grant the office in reversion. 'Po sustain this case, evidence was given that Mr, Cooke sen. discharged the duties of the clerk of the peace, that he signed war. rants, ijsued subpcanas, signed orders on the Treasurer, and made returns to the Exchequer and the Secretary of State, af'ter the appointment of his eon. AMlr. George Edwards, the clerk of the plaintiff; ated, that wben he delivered Lord Verulam's letter to the deferndant requiring him to give up the papers, Air. Story siaid he was verbally appointed. There wvas an entry >of Mr. Rooke..jun. being sworn in; and Mr. Calvert, the naember for Hertford, on cross-examination stated, that he always considered Alr. Rooke, jun. as clerk dejure, though his father acted. There was no deputa- ton to the father from the son returned to the Court of Excheqner. Adr. SCARLETT, for the defendant, declined to argue at visiprius the question of law, whether the resignation of the office of clerk of the peace was by deed. But supposing it miust be so, he thought he should be able to raise a fair presumption that isuch deed ac- tuaUy existed. It was clear that the Alarquis of Salisbury, who deemed AIr. Rooke, sen., too ol.l and infirm for the office, intended to appoint the son; and there could be little doubt that, if a' deed were necessary to make the resignation perfect, his Lordship, acting on sound lcgal adviec, vwould have ruch deed executed. But, after the death of the MIaruuin, a great number of papers were burnt pur- sUant to his will, anid it was highly probable that the deed, which would be considered as of no value, was among them. As to the signaturcs of the father, they proved nothing, as whoever executed the office signed the name of the principal; andhis names were the same with theGe of his son. It would be clearly shown that some of the'nost distinguished Magistrates in the county vere, like iMir. Calvert, fully aware that Air. Rooke, jun. was clerk dc jure, though the fataer usually performed the duties. In support of that case, the steward of the late Marquis of Salis- bury wae called, who ststed that a large quantity of papers, illing two sacks, were burnt shortly after his decease. The present MTrquis lonfirmed this statement, bUt said he had taken out the parch. ments for examination, and could not say that ameng these a deed ot resignation might rsot yet be found. Thedeed of 1815 was put in, and on the back was an endorsement'by BMr. Rooke, sen. ,ord Dacre, thc AIarquia of Salisbury, and Alr. Cooper, severally stated they were awvare that the r,on had 'e'en.appointed, though the fathler continued to act. A clerk of the late Air. Rowke was called to prove that the faither and eon were patners ; and who said bc had paid fees to each. Alr. Nicholson, thie&Under-Sheriff' proved that hoth father and soon used to sit at the bottom of the table at the ses- sions dinner. Some instances of signatures by the son toreceipts to thc county treasurer wrt e given; and it was proved that he. was accustomed to assist his father at the quarter sessions, and sometimes attentled the adjourned sessions alone. INr. AIAnRYAT, in reply, contended that the evidence showed that the appointments were designed to be-concurrent, amid that if time son had died during the father's life-time, the father could not be remnovedl from the office. The LORD CHIEF acUlefttha t Ah two q~ucrtions: first, diill.. Rooke, sen., in any manner resign his of- bce; second, if he did so, did he resign by deed or any paper in Thc Jury found a verdict for the p laimitiW,establishing his right to the office under the awointmnt of Lord Verulam. Thae trial lasted till nearly half-past seven. COURT OF KING'S 'RF.N('.H W7iv'rTvn. fnlt 9f S31MTM V. WlITE.