Court Of King's Bench, We...
LAW REPORT. The LORD) CIrEegF JIJSTICE (lid not come into court until some time later than his usual hour. As soon as he took, his seat, this cause! was caUled on, and a comimon jary was sworn. 3Ir. AnitAUAM. stated the substancee of' the pleadings. The de- claration alleged that thec defendant nazliciously and wiithout any reasonatble or Probable cause, on the 4th of October in last year, caused Rowland Fawvcett, Esq., one of the justices of the peace for the counItY of Cumberland, to issuie his warrant for the apprehen- sion of V incent George Dowling, on a charge of feloniously stealing ui parcel directed to thle '1 Edlitor of Thte Times;" that he pro-cured this w~arnart to be backedI ii 15I ididlesex, andi afterwards in War- 'wickshire ; that he caused the plaintiff to be arrested, and on the Wn11rarazt so backed taken to Carlisle, and there held to bail; andl that heufterwards preferred a bill of indictment, which was, ignored by- thie grand jury. The defendant had pleaded the general issue. Th'e ATTORNEY..GENTRAi adldressed the jury for the plaintiff. dir, ficks, the defenidant in this case, was a gentlerman connected withl 7te Times newspaper, and he believed one of the proprietors of that journal. Mir. Vincent George Dowling, the plaintiff, was a Personl Of great respectabilityv, and of considerable literary attain- ment.5, and had been for a long time an active maniager of the Ob- s`rv er, which chiefly owed to his talents the wide circulation to which 't hvi ttaied.It woulcL seemi that this journal or its editors had, ir Oeway, become obnoxious to thte proprietors of The Times. It 'was wvell known that the conductors of that paper prided themselves especially on the carly and exclusive information whiceh they afford- ed to the Public; and it would appear that M'.r. Dowling hadl cross4ed theirpath,and had anticipatcd the intelligence which theyvhadprepared tO give. On onermemorable occardon,when Lhe country was greatlyari. tated. and strong fleclings of curiosity and interest were excited, Mr. flowlirp anid a gentleman) connected with The Times were at Calatis,for the purpose Of rransmittinF an account of the important transactions then in progress to their respective jouTnals. At that time Mlr. Dolwlin,g preferring the interests of his employers to his own per- soa sfty, sailed in the mniddle of a tempettiouis night to give in. tehligence of a most ci-itical nature, which accordingly appeared for the first time' in thle Observrrr. He mentioned these circumstances be- Cause they might affonl a clue to the line of conduct subsequiently adopted towards the plaintiff, and for -which a motive mighit othler- Wlise aPppar to be wan-ano. On the death of Mr. Perri-, who hiad for a lonig time coniducted the ilornin,g Chronih'le, Mr. Clement, tile Plroprietor of the Observer. became the purTchaser of the interel;t in that Paper which he had held during his life. This arrangement did not seem to be very, agreeable to the proprietors of Thze Times, who naturallv antiripated that the samei ability and zeal which had dis. tinrti.;shecl the contluct of the Obser-ver, would he exerted in tite Chroweie, and that they would~ meet withi a formidable rival, in a 'walk the- hnd been acc~istonmed to regardI as pecuiliarlYthseir own). It happened4 in thle au timn of last vear, that two of his (the Alttonsey- General's8) honouirable. leatned, anid hiighly giftedl friendis, refreihing themselves after the fatiguies of Patrliamcnt and the circuit, induilged in a tour in Scotland. One of those gentlemen was Mir. Brougham, and the other M~r. t)entniar. the Common Sergeant nf the citv ol IE'or.e. Wihile these distinguishled persona were at Edinburgh, a dration waited on them from Glasgow, requtesting that they wvt.lIl honouir that city witli a visit, and promii-sing a reception so fl ittering anti so appiropriate, that it cotild not be refiused. The in. vitation was, accepted ; agrand dinncr was arranged and mitch ex- Pectation was naturally excited by thiechiaracter and talentsoftte prin. cipal guests,.and it was4ex-pected that much aniimated discuission wottild aof, on topis conn?ctedl with the politics of Europe. The condluctors oth on,l- rhrr-ricze felIt that this was a lit opportunity for theit exertion, a .nd accordingly they tdeFpatched three reporters to (Glas. gow..-Mlr. Dlowling, Ilr. Keaie,utndl Mr. Power-in order to obtain a full and accurate report of the proceedinigs. They arrived at Glasgow; thee Were of course invited ri, the dinner; buit before they wont they had anl interview .~ith M11r. Douglass. thie proprietor of the Ghiasgow .Jnurrtaj. They were quite aware that, howvever able the provincial ed!itor might b;-. lie csuild not hope to compete in accuracy and ful- niess w,ith that report which they, long experienced in detialing pro- certdinLes in Parliament ard in courts ofjustice, would send to th is editors in London. The dinner took niace: after "T'he King" 'Ind ether customnary tonsts hanl been given, " the healthi of Henry Brougham, Esq.- it-as drank with three times three, and great ap- Plan1es; when that 'earned Gentleman rose, and in a speech of abou t arn hour (a slight lauizih)-yes, it was mnore than an hour--ad- vertedl largely to the old and new world, anid descan ted especially on toe state and prospect, of Southi America. He (thieAttornev..Gene- ral) wvished lie couild read the speech now ; for it was full of the glowinK eloquence swhich mighzt be expected from the speaker, and whiich would he fuilly recognizetd in the genuine report. No soonier hadl Mr. Bnmr,iuamtaketiihis seat, than the hiealth of " Thomias Denman, Esq." was proposed with similar honoirsr, and was ac- knowlediged in a brilliant speech, whichi, if it did not treat so excur- sivelv of foriein affairs, wa:s closely applied to the internal policy of England. Other sneakers succeed'ed ; the reporters took down what they heard withl great accuracy; and afterwards comipared notes 'with each other. They now in~quired for a conveyaice to Lo3ndon, whlere it was very irnp~rtant that they should arrive as soon as pos- sible. They t~sund that the -twail was changed at 'Carlisle, aLnd that unless they hastened to that place, they miighit be deprived of' the best opportuniry of reaching home wvith speed thev therefore Proceeded to Carlisle, in order to secuire their plasces; Al-. Dowling having first requested that two copies of' the Ghlasow Jouirnal, containing the editor's report. should beforwarde-d to lhin at tile office. When they reac4ed Carlisle, instead of'retir- inlg to rest, they sat up the=hoenight preparing thiicr.ep..t, and were mtill enaed-i -lcrlbrosocpation whien they heard the horn of the G,h'Lscow mail. 31r. D)owling rose3 up, and placing his own report in a piece ot whity-brown paper, ha-stened like the others fo the office to obtain hiis parcel, received It, and brought it away. The thiree reporters in an hiocr or two- left Carii.ile by thie mail fi'ir London ; and on the day af'ter, the report appeared in the jlorning~ Chronicle. The proprietors of no otlier newspaper had sent reporters to G lasgoiv. and no account of the dininer appeared in any other London Paper, except the lYcroald, whichi wa- lamne, spiritless, and imperfect while thiat furnished by the plaintiff and his coadjutors was full, spirited, and -omplete. Fur sonic dys Air. Dowling heard nothing more of the afliir, and apprehending nothing, went to Bir- mninghan, to attend a gLrand musical festival, and trnansniit an ac- count of it to the Chironicle. Whiile thiere, at a distance of more than hMI miles fromn home, he was accosted bvya police-.officer named Ruthveni, whio produced a warrant, and told him that he was his prisner. [le expressed his~ astonishment at this demand ; nor was Eis astonishiment les~sened when lie was told thlat the Warrant was granted on the application of Mr. Hicks, of Thte Timner. It is atnange,indeed." said he, " thatAMr. Hicks, who knowx me well,who is, atware orfthe purpose for which I amn here, and the timec whenl s hall ireturn-who is acquainted wvithi the members of'rmy family, and who know.s that I am a married man and the father ofl seven chiildren, andl who has partaketi of the hospitality of my table, should not wait till tny arrival in town, if he has any chac t refer against me." His surprise increased. when hie was told lhtie was chiarged with stealing a par-cel from the Carlisle mail, cotiing an account of the Gliaszow dinncr. Wihat miotive could hehv for so extraordinary a proceeding. I f he were interes-ted initthe success of the paper with witich lie was connected, he must anxioul wsh that the report of the Glu,_ow Jour,tai should be inserted i h Times as a foil to his own. It'hat suggestion of probability was there ? None : on the coniary, tt was s-iid, that the parcel was delivered to MVr. Dowling widhoui any charge being made for it, which was too absurd to be -believed for a moment. dIr. Dowling expostulated with Ruthven; but the officer had no ovpfion, as his orders score peremptory to bring his prisoner to Carlisle. Knowi%gthe respectability of Mir. Dow- lingz's character and ci)nnexions, Ruth en treated himn with great personal courtesy, but took him, as he was bound to do, across the country to CarUlje, whiere Mr. Ilicics was waiting for him. There the casewmn investigated before the magistrates, and so little did they find to affect him, that they suffred himn to go at large on his owil r-ecognizance anid that of his attorney. The depositions had all the app earance of being prep_ared, becatuse several deponenits were placed in one paper, as in a, t.ai framed by an attorney, and not seva- rately-, as in a statemt'ent fairly made before a magistrate. ffowe~'er this ittiteht be, es,ety thing elsewvas ready for action. Mr. fl icks was thzere with MVr. Henrson, an attorney ; an indictment, containing 12 counts, was prepared, although th'e charge was for stealingz a parcel rifvaiue. certainly.in onesense,butofscarcely anv in another. Could a~ny one doubt that this proceeding had its origifi in malice ? One sirc-umsatrnce would sufliriently prove it, if it were not apparent in the whole course of the transaction. Llr. Dowlving courted the fullest inquiry;- but he wished that the exaisiination s;hould in the first in- stance bz private. feeling how deeply suchi a circumstance would aff'ect his disc nt fr-lends, Mr. [ticks, however, refused to accede to his wisJhes, and t-he anticipated result occurretl: Almrs Dowlinig, who then iva-speegrnant, was so moueli alarmed at the situation of her husband, that she tell into Premature labour. Repeated messengers were sent to his hou.se respectinig him, and though iniformation was given that he was at Birmingham. the course was not altered. Why- told not Mr. Hicks, if he suspected any thing, request of Mlr. Dow- ling, who had run the amne career with himnself, to ex~plain that wl,ich apoeared doubtful ? Wlhv, at least, dlid he not wait till his retur-n to London ? Did he fear that AMr. Dowling, a man of charac- ter and of consitderable income, would fly from- his hiome and desert Iris faniilv, to avoid such a charge ? That charge would be shown so be groundles by the evidenice of dr. Keane atid Mlr. Power, the gentlemen who -ent down with dir. Dowling, if, indeed, it required little more t.han to be stated to be refuted. Thie plaintiffdlid not seek to put money itito his pocket by this action ; he was too nsuch of a gen- tlemusn to entertain such a thought: but lie did seek to expose the ma- lice by which lie had been assailed,and to miake his innocence appa- rent to the world. He trusted they would give suchi a verdict as woulid prevent any s-tain from attachinlig to his character, and would mr. he s ense of thie conduct of the defendant.; and wit this as- ur'-he left the case with perfect confidence in theirhan~ds dr. Villiam Hodglson, clerk of the peace for Cumberlan d, pro- duced a depos,ition taken hefore Mlr. Rowlatid Fawcett, a magistrate for that county ; a warrant by that gentleman; and a bill of indict- minen returnetd "not found." -Cross-examined by dlr. SeARLgTT.,-The sessions were beld at tte time. I have anotner bill preferred b7 the plaintiff at the same sessions- I do not know that he went before the Grand Jury, and was examined before any of the witnesses- The original examina. tions were Laken in the presence of my nephew, not of me. I was present aterwards wlen all the witnesse.s were again examined in the presenc of r. Dowling. I do not knowwhen the indictment against i\1r. owling was prepared ; it was producetd at my offlce ready drawvn. hlr. M tounsey was attomney for the prosecution ; he is-gentleman of great respectability at Carlisle; his son attended tie examination. By theATToRNEY-GENERALt.-Ir. Hensonattended as well as Mr. 31ounsey. By Jlr. ScARLETT.-_I remember AMr. Dowling's applica- tion for a priv:te' hearing. T wo or three magistrates *vere present. There was a consultation of the magistrates on his re. quest: they did not think proper to grant it. Mr. Dowling said he was a stranger in Carlisle,and did not know where he could obtain bail. I suggested t*at Mr. Saul, bis attorney, might bal him without risk; and his bail was taken in 301., with which MIr. Hen. son exprcssed himself perfectly satisfied, dNir. Dowling being bound in 501. I have been many years derk of the peace; the magis- tmtvs are in the habit of consulting me in case of difficulty: they icted on the depositions before them. Re-examined by the ATTOR.VEY-GE:TERAL..I do not know 3at an application vras made to ;ir. Hicks and dr. Henson for a ;Xiateex3rainatic s Mir. Dowling appealed to Mr. Hicks as having Oan him well, and dined at his father's table. The indictment dcs not appear to be it the handwriting of any one in M1r. IUoun- azy's ofice, nor do I know the handwriting of the depositions. I Wve the recognizance of baiL Examined again by Mlr. SoAnx.ETr.-It iS ungomusnon for tlse attorney for the prosecution to take down the depositions. T'he LoRD CHIEFr JUSTICE.-I am glAd to hear it, for it is ces-- tainly improper. B'y the LoanD CareEr' JUSTicE.-Mr. Mounsey, Mkr. Henson, and Mir. flicks were present when Mr. Dowlin aIpie Ior a pri- vate examination. I think M1r. Hlenson opposed t; I ani sure he did not express his consent to it. Mr. H odgson, jun., niephiew of the last witness, said-I was pre- senit when M1r. flicks miade his deposition before the magistrte", as the Justices' clerk. It is not in mny hand-writing, I do .ot kniow whose writing it is. It was produced ready drawn before themagis,- trates ; 1 thiink by Mlr. iVlounsey. Other depositions were also pro- duceei ready drawn-of John Alurray, William M'Ad&m, and George Thompson-and the parties were severally sworn to them. I believe they are net in the same hiand-writing. Crnss-examined.-Alr. Mounsey or Mlr. Hienson produced the de- positions. I either Tead themi to thie witnesses, or asked them whie- ther they hadl read them. I have not the least doubt that the wit- nesses kniew to what thiey were swearing, aind that the maigistrates were conviniced of it. On those depositions, the msagisitrates granted a warrant. I was present at the second examination), when Mr. Dow- ling appearedI; the depositions were read;- and I made some addi- tional minutes This was the day before the sessions: I believe Mlr. Dowling the next day got beforehand wvith the jury. Mr. Do.wling Iand Mlr. Saul brought instructions at 11 or 12 the next morniing to our office for an indictment. They hardly knew attlirst what the in- dictineit was to specify. They said thievwanted one with great de- spatchi I dlo not thlink they told me tha~t they wished to forestal hIr. Hlicks; they wished to havea cross-hill, that Mr. Dowlingcmight state hiis case before the goandl jury. Mlr. Saul said it shoLild be an indictment for acons,pi1racy; I cannot.-say if he sid it most beagainst all the witnesses.Ise by the bill that Mlr. Dowling went before the grand jury. The examination of 3Tr. George Hicks was then read as fol. "1Cuniberland, to wit.-.The information and complaintof George Hicks, of Printing-iouise-square, in the city of LondAon, gentleman, ta'ken and m-ade on oath before me. Rowland Fawcett, Esq., one of his Mlajesty's juistices of'thepec ainad for the said county, on the i4th day of October, 1823 ; ewhoauCponn his oath saith. th at lie is nart Iowner and proprietor of The Timnes' daily newspaper printed and publishedI in the city of Lontdon aforesaid, and that Mr. David Prentice, of thie city of Glasgow, had directions from the proprietors Iof the said newspaper to transmit to the editor thereof, by the Glas- gowv mail-coach, upon Friday, the 12th day of September now last past, a parcel directed to the Etlitor of The Ttintes, London, contain- ing, the report of whatlbad transpired at a dinner given by the citizens of Glasgow to Henryv Broughiam anid Thomas Denaman, Esqrs., for pub- lication in their said paper ,and this complainant furthersaitth, that thne said parcel containing suchi report as aforesaid wouldl, by the course of the said mail-coach, have arrived at its destination on the evening of the Sunday followingi, but that it did not so arrive by reason that it wtis on Sauruday., the 13th day of the said month of September, in thie parish of b3t. Cuthbert, in the city of Carlisle, within the said cut,as examinant is informed anti very believes, feloniously stolen, taken, andl carried away fromi the mail-coach-office thnere si- tuate; anid this examinant further saith, that he has just cause to suspect, and doth suspect, and verily believes, that Vincent Dowling Ithe young r, late of Londlon, reporter, did then and there feloni- Ouislv steal, take, and carry away thie same, against ithe peace; and Ithereupon this informant prayethl me, the said justice, to give my Iwarrant to apprehend the said offender, in ordler that he may be diai 'With accordin-g to law, and justice done in the premiseqs. "Taen nd wor th da an yer " GEORGE HICKS. Tale ani swrn he ay a(I earftisat above- written before tne, " ROWLAND FAWCE'rTT." The examination of William M'Adamn was as follows.-- " Cumberland, to wit.~--The informnationi at,d complaint of lVil- ham M'Adam the yotinger, of the city of Glaszow, printer, takten uiponi oath before mie, Rowland Fawcett, Esq., one of his Ma1-jesty's justices of the p ace in ttnd for the said cointya; wvho upon his oath saith., that on ithe l2th day of September now last, he, this informianit, saw Mr. David Prentice, of the said city, printer, enclose a report (which hail been taken for tbepron`ietnrs of Tle Times London news. paper) of the speeches made at t'he dinner given oni the 11Ith ofSep- Dothr b the citizens of Glasgow to Hlenry Brougla ad hoa Dna.Esqr.s., in a patcel sealed up andI direci6d I To the Editor of The Ti!nes, London," with thec following notice thereon-' If no person be in waiting, for this parcel, 4s. adlditional porterage will be paid if dlelivered immediately.' Andi this informant further saithl, that lie immedfiately afterwards tookc sticli parcel to the Glasi,ow mnail-coach.office, within tke said city of Glasg-w, and booked the same, anid saw it put into the mail-coach-box, to be coni- veyedI to London by the tnail.coacbi, whiich would leav-e Glasgow the same eveninitr, and by whichi this inform-ant verily believes it left Glasgow. And this informant further saithi, that he kniows Vincent Dowlitng the younger, of London, a reporter, who came to Glas- gow to report the speechies mnade at the dinner so given as before stated, for some of the London newspapers, anti who left Glasgow on the evening of the 1lthi, orc the niorning of the 12th of Septetn- her, as inforniiant believes, on Ihis way to Liondon. And this' infor- mnant furthier says, that previous to s, id Dowling's leaving Glasgow, lie requestedI that informant would send him by the Glas4gowv mail- coachi, two olf the Glasgow journals, published on Fridlay, the 12th day of September, to be enclosted in a parcel, directe,l to him at thec mail-coach office, Carlisle, whiere he would call for it on the morning of Saturulav, thie 13tih of Septemnber which informant didl accordingly send in ihe way he lhad requestedi him to do. "WILLIAM M'ADAM1. "Taken and sworn the day and year first ahoy.- written, btefore me, - RoWVLAND FAWCETrT." The examination of John Murray and George Thiomps.a was as follows:- "Cumberland, to wit.-The several informations and complaints of John M urray anti Geotme Thompton, both of the city of Carlisle, in the said county, clerks or assistants in the mail-coach-office, within the said city; and first, the saidI John Murray, on his oath, saith, lit eat ., the Glasgo- mail-manc, - I~ltlpn s '-heAt lisle on the morniug of Saturday, the 13th day ot September now last, he unlocked the box contatining the parcels, when a per-son saighis name to be D)owling inquired for a parcel directed to him a,,itt Car-lisle, and which informi-ant found and gave to hiun ; and infonriant further saithi, that at ttte time when he so gave to said D)owling the parcel directed for itim as aforesaid, he tile said Dow- ling rook upatiother parcel, stating that it belonged to him also, and which he took and carrieti ascay withi Iim witliout permitting this informant to perceive the directions thereomi. And this informant, George Thompson, on hiis oath saith, that the parcels for conveyance by the Glasgow mail-coaclt for London, and which left Glasgo-w on the evening of FTidlay thie 12th day of September last, were irtscribed or written on a way-bill, accompanying the said mnail-coachi, and were sixteen in numbler 4 one of which was to stop at Carlisle,cbeing directed there for Mlr. Dowlitig, and the others so proceed onwards and beyonid Carlisle, andI this inf'ormant futher sith, it is the customn of the proprietoirs o1fthe said mail-coach to make our at Glassgow a-way bill, containing the pas-sengers and parcels to Carlisle, whiere tat way-bill is detatined, and then to mnake out another way-bill at Carlisle, contiaining rite parcels and passengers to be conveyed so any places byondl Carlisle. Attd this informant furthier saith, that on ex- a~minin t,he wayt-bill of the Glasgow mail-coach of the 12thi of Sept,ember last, withi the parcels thereby, and whicih he did at Carlisle on tue morning of the 13thi of September, be found that two parcels goir.g by the said coach beyond Carlisle wyere mriss- ill -the one directed t6 Holden, Copley, and Co., York, and the othe, to the Editor of The Tinzet; and that all the parcels from Gla.sgoiv upwards, with the exception of such twe parcels, and a parcel directed to Mr. Dowling at Carlisle, were sent forward fromn Carlisle. And this informant further saitit, that the parcel so directeit to Hlolden, Copley, and Co., at York, was omitted to be sent by the Glasgow mail on the 12th of September, and was not sent tuntil Suiidav the 14th of Septemiber, and arrived at Carlisle on the 15thi, froml w~hence it was forwarded to its place of destination so that all the parcels were then accounted for with the exception of~ the parcel to the Editor of The Tirnes, and whiceh pareel the person calling himself Dowling (having taken two parcels away, as stated by thve other informant AMurrav) must hiave taken, as only one par- cel caime by the saidl mail-coac'h dlirected to him. And this inform- ant fLirther saith, that the said person so calling himself Dowling. left Carlis'le almost immediately afterwards for London by the mail- coach." The wgarrant datedl the 4th of October, 182-3, and the recognizance of hail, and the bill of indictment, were read. The warrant was as follows.- Cumberland, to wit.-To the constable of the county aforesaid, and to each and every of themn. u" Whereas, information and complaint bath been this day niade, uon oath betore me (Rowland Fawcertt Es~q.,) one of his Majesty's jstices of the peace for the said county of Cumberland, by George 'Hicks, of Printinghouse.square, in tlie city- of London, gentleman, that he liath cause to suospect and dotls suspect that Vincent Dow- ling ithe younger, late of London, reporter, did, on or about the 13thl day of Septetnber last, feloniously steal, take, and carry away a paper parcel directed to the Editor of The Tim,es, London, containl- ing areport of what had ltranspired at a dinner giventby the citizens of Gilasgow to Henry Brotightam anti Thomas Denman, Esqrs., the Iproperty of thie proprietors of The Times' newspaper, at the parish of Sr. Cuthbert, Carlisle, in the said county. These are, thierefore, Iin his Majesty's namne, to require aiid command y-ou and eachi and every of you, immediately upon sight hereof, to apprehend Vince-nt Dowling the younger, and bring hliin befo!re mne, to answer unto the said complaint, mind be further dealt with according to law. At the samne tuzne, you or one of you, are to give notice to the said Vincent Dowling, the younger, to bring with him sufficient suretieg for Iiis per-sonal apPearance at the next general quarter sessions of the iteace to be holden in antI for the said counity. Given under my hiand and seal, the 4th dlay of October, 1823. Thewiteses n tte " ROWL'IANID FAWiCETT." (L.S.) Thewitesss o'i heback of the biLl were George [licks, Williamn M'Adam, .John Allen, John Mlurray, and George Thompson.1 Mlr. SCARtLETTr submitted that the declaration was nmot support- ed by tdie evid nee. It allegedI that the defendant caused the plain. tiffto be impr isoned and to find bail ; which implied that he was the actual and not the remote cause of the imprisonnient; whereas the magistratesi, acting on all the evidence before themi, and not on the suggestions of Mlr. Hicks, issued their warrant. Mr. [licks did not pretend to know any thing mnaterial of his own knowledge: he mere. ly' submitted i.nc testimotty of others to the justices, and they dre The LORD CHIEF JusTrCE.-Tlme remark applies to another topic. I am of opinion that when a man prevails on a magistrate to grant a warrant, hiinself places that warrant in an officer's hands, and directs him to arrest a party, that he may properly be said to cause him to be arrested. Mlr. ScA ILETT.-6till I submit that the proof does notsufhicient- ly sustain the allezation. The l,ORD C1IsesF JUSTIC.E.-Do not treat it as a question of variance. But it is a (listitict point, whether if a man, professing to know nothing of liis own knowledge, takes his witnesses before a magstrate, and lie, on their evidence, grants a warrant, the man so ad dcing the evidetice is liable to an action. At present I think the case shoultd proceed; there is one count, at least, which is good. George Tliomas Joseph Ruthven, the officer, said-I received at Bow-street a warrant an the 7th of October, for the purpose of ap- prehending Mlr. Dowling. A ir. Duncan came with the party who applied to have the warrant baIlted, and I believe him to be lr. Henson's partner. It was backed by Mr. Diin.hull. Mr. Duncan desired me to find out where Air. Dowling was. I ascertained that he was at Birmingham attending a musical festival. I informed Mlr. Duncan; and he desired me to apprehend Air. Dowling there. I had previouslv sent to his house, 37, Queen-square, Bloomsbury. I went to irmingham ; there the warrant was backed by ir. Itam- per ; and I apprehended Mr. Dowling and took him to Carlisle. I was present before the magistrates, and there found Air. Picks. MUr. towling was in Ray custody from Friday to Monday morning. Cross-examined by Dr. BRouAs._Birmingham is not much out of the direct road to Carlisle, and about 112 aisles from London. I remained there till Monday, when lr. Dowling had finished his business, and then I took him to Carlisle, This was bysmyindul. gence Mr. DAvxn) Powi: , one of the reprtee who accomnpaniea the plaintiff to (*Aasgow, was called, but did not appear. He was then called three times on his subpaera in opn couirt. Air-EENJA.mI K-EAaE,aisotherof thereporters who accompanied the plaintiff to Gl3agow, was then also called three times, but did not appear. Thte ATTosnYFv-GEWERkL.-That, thien, is the case on the part of the plaintiff: Mlr. SCARLETT.-Then I submit that the plaintiffimust be non- suited. There is no proof that Mlr. Fawcett acted on the dqiosition of Mlr. Hfciks. The LORD CHIEr JUSTicE.-Certainilv not on that alone. AMr. SCAtL'ETrT.-Not at all; for M~r. ESick-s does not pretend to know any thing, of his own knowledge; he merely believes the wit- nesses, andI so do the justices. The LoRD CHIEF JUJSTIC E.-Tt ig an objection not of form, but of substance. The point is thisi-Can you bring an action agrainst a man for producing witnesses before a mnagistrate, on whose testi- mony the magistate acts, unless you go farther, and show that he knew or hadl reason to believe that the testimony which he so ad- dluced was false? Can I say that there is not probable cause when the witne-sses have Sworn to -the fart, andl there is no proof of subork-. nation or of knowledge of falsehood ? Mlr. SCAnLETT here said that the witnesses for the defendant were in coturt, and that he (the Attorney-General) might examine them. The ATToitxEY-GEarERAL.-3fY Lord, I refer to the manner in whiceh this case was conducted as evidence of maslice. The LoRD CnaxF JUsTIcE.-But that is not ensugh. If there be reasonable and probable cause for a prosecution, the party prose. cuted cannot sustain an action because he may see reason to be dis- satisfied with the mannier in which it was conducted. The ATTo0R.NEY-GE2;ERAL.-Mr. Hicks mnade no application to Mr. Dowling to enable him to explaini. The LORD CsIErx .UTusics.-Nor does it appear that he could hiave done so : one of the witnesses, I think, states that he did not mention the circumstance fora week. The ATT'RoarY-Gg,EsTARt~...Perhaps he dlid not nmention it till it was put into his mouth. The LORn CHIEF JUSTICE.-If there be any proof that thel prosecution was withioat reasonable cause, the case must proceed, and we must hear the whole matter. 'rhe ATTORNEY-GEINERAL...Yes; there is the rejection of the bill. The LoanD CHiEr JUSTicE.-Oh, r,o indeed, there is nothing of the kind. 'Whio would ever take a case before a grand jury if they were liable to a prosecution whenever that jury, threw ouit the bill ? Alr. SCARLETT.-And especially where the defendant has pre- ferred a bill which has also been throwni out. The LORD CssrlEr JtTSTICE.-'NO, iotaepentdently of that. I take the law to be this-that where a man'does not assent or pretend that he has any personal knoveledgeDsf the, cespis delicti, but pro- duces witnesses on wbose testimony a magistrate acts, you c-annot sustain an action against such man without showing chat he had some reason to believe the testimony of the witnesses mitrue. The ATToRNEY-GENERAT.-The result of the prosecution at least show-, that it was not well founded. Ilam then to understand that the reason why Mir. Hicks is not liable, is, beca-ise we cannot show that he knew the witnesses swore untruly. I wish this, for Alr. Dowling's sake, to be very distinctly understood. M1r. 9CA&I.ETT.-AJt the cause has stopped here, I will say no- thingC of thec plaintiff. The LoIRD CHrEF JO STCE.-.No, the plainitiff must be called. The plaintiff was accordingly nonstuited. Before a Special Jufry. GREATiSANI V. WHITEHIEAD. This Was an action brought by a person of thie name of Greatham, residinig in Hertforti-streetI Fitzroy..square, against a convevancer and annuitv-broker of the name of 'Whitehead, residing in Boyle- street, Burhingtoti-gardens, to recover a suma of money which he had intrusted to thie defendlant's care to be laid ourt in the purshase of annuities, of which the interest was to be regularly paid andl pro- perl'y secured to himi. The action arose out of the two following transactions :-On the 17th of A pril, 1818, thle plaintiff, acting upon the recommendatio-n of the defendant, whlo r-ccived a commission for completing the batrgain, ortdered the defendant to pay over700l.to a clergy'man of the name of Locke, who, in retuxrn, secured to the plaintiff an annuity of 961. a-year, which the defendant informedl hlim wa, amply secured upon the living of Hilgay, in the coutnty of Norfolk, which was estimated at the yearly value of 1,5001. About the samne time the plaintiff; upon the same recommendation asbefore, ordered 7001.tobe paid. intothe hands ofagentleman called Hamerwlho, in retu -ni,grantcdto the plaintiff.m similar annuityvto thatgrantedhimbv Dr. Locke.Ofthese two annuities one or two hall'-ycarl vpayments took ptaee: after which,nothing was received on account olthern.The plain- tif ot receiving: his aninuities, began to inquire into tihe resources of thle persons who had to pay tdiemi. He found them botlh over- burdened withi annuities, and fin a state of the most notorioust pecu- niary embarrassment, lie now came into a Couirt of justice to com- pel his azent to miake good to him the losa whiels lielhad sustained in consequence of his neglizence. Mr. SCARILETT, who conducted the' case of the plaintiff, was proceeding to state the siotoriety of Mr. Hamer's embarrass. ments, whien, in consequence of an alinuncaition made tohlim hy the Attorney-General, who conducted the defence, thiat Air. Hamer hiad recently had an accession of fortune, and was now able to pay his annuity, lie said that he should give up that part of his case; and shoulia proceed to prove, that at the time when Mr. Wihite.- head advised hiis client to purchase an annuity of Dr. Locke, he either knew, or ought to have known, that that gentle. mnan's afaisir were in a state of the utmost embarrassinent. He slhould call witnesses to prove, that on examining the- judgment roll of the Court of KZing's Bench, they found judgments dockptted against Dr. Locke, in April. 1818, to the amount of 39,64.51. andI oii examining the Register..ofiice, they found he had eranted annuiities to the amount of 1,2851. ; that on eximrining the Filazer's Office, they found that in the year and a half previous to that date there had been writs, of which many were writs of alias and pinerics, issuied against himi for sums amounting to 3,44.01. ; that in the in- ,-1 1. - 0-. -. IOI? tntt M13,47-vrtisaa igats"Itiivsls been placed in the office of the Sheriff 6f Surrey, and 88 in those of the other siheriff's of Englisli counties; that an officer at Gruidford had in the same periodI arrested him 60 or 70 times ; that his credit at Farnham was so notoriously bad, that nobody would intrust him with the slightest article; that he was committed to the Fleet on the 1511 of May, 1819, upon fout different actions, and discharged fromn it, in consequence of superseding some of them and settling others, on the 8th of July, 1819 ; that he was commnitted on the llthl of July, 1819, to the King'ts Bench, on three actions, and disciwrgedi f'rom it on the 26th of September, 1819 ; that a commission of bankruptcy had been issued against him on the 30thi of September in the saisse year ; that he had since gained hig certificate, hut that no dividend had been paid -nor was likely to he paid tinder his consAinission. The learned counsel contendedl that many of these facts must have been k-nown to Afr. Wlhitehead. He had himself enrolled several of Dr. Ljocke's anniuities ; but even supposing that he had not, lie was bouind, as agent for the plaintiff, to take every mneans which the law allowed him, to ascertain that gentleman's solvency. He might have gone to the Annuity office, to the jutdgmenit roll and to the Filazer's office. He eithner hadadone so, or hie hiad not. Yif he had done so, he had erred with his eyes open in not warning the plaintiff', who hiad intrutsted his money to his are aginstleningit t Dr Loke.If he had not dlone so, he hadbee gultyof he rosestnegigece in allowing his client to pay wayhis one to ma so ncubered; aLnd in either case was houd t mae god o te painifftheloss which he had sustained. lie,theefoe, onfdenlvshngtte, tat a verdict must pass in this This case was fxulyproved onthie partof the platintiff. It appear- ed, however, that some of the docketted judgmoents related to the same transactions as the annuities, and that the annuities were secured, not on the living of Hilgay, but on the hivisig of Clutton. There was a covenant in all of them, that in case Dr. Loocke obtain. ed a new living, and vacated hist old one, the annuities should be transferred from the new to the old living. The ATToRi5Ey.GENFRAL said, that when the plaintiff deter. minedI to exact 14 per cent, for his mnonev, it was evident that he did not expect to gt it upon security that ;vas altogether unexception- able inasuchas no person that was not embarrassed would con- -sent to allow such exorbitant interest. It could not, therefure, be fairly charged against his client thaLt he had misled time plaintiff, even If h had not fully informed him of the embarrassed Circumstances of Dr. Locke. It was true that he could not controvert various iudK- ments and memorials which had been produced on the other aidei. His case, however, had nothing to do with themn. He would prove to them th4at his client had done nothing mnore in this transaction than introduce Dr. Loecke to the plaintiff; and that it was Mr. Lambe, Mr. Greatham's attorney, and not his client, who had ex- amined into the securities, and drawn tip the conveyance. Besides this,lhe had,another defence. At thietime thisaniyws granted, there was no other incumbrance than it.uo tiij liig fHig which was estimated at 2,0001. All the oter nute r rne on Dr. Locke's othier property, which consisted of farms in various places, the living of Farnham, worth 3001. a ear, and the perpetual curacv of Seale, worth about 1001. a ye-ar. H is case rested uipon this fact, that the living of Hilgay was a specific pledge, on which there was no specific incunkbrance. That properity hail since been for- feitetd, not in) consequence of any thing that was known to his client at thie time of granting the annuity, but in consteqluence of somne proccedings whiich had sinice taken p Iae between Dr-. Locke and a clergyman of the name of Craddocik. Dr. Locke, who was in pos.. se%sion of the advowson of Hilgay, had sold it to Mlr. Cr.ddock for 6,01,to be paidI in a certain fixeti and definite manner. Dr.Locke, so consequence, resiumed the living in 1816 to M4r. Cradldock, but accepted it again in 181710n consequence of Mlr. Craddock's not be- ing able to fulfil the termns of his agreement. He was again, thiere- -oe in Possession of it at the time when he granted This annuity. Subsequently he endeavoured to void it in favour of aL clergy. man of the name of Lens, The Bishop of Norwich, however, suspected thatsome simoniacalpractices were carried on between them, and the consequence was that a writ of quare irntpdil was; issued. The proceedingrs on it were protracted for somne time, and it was not till the year 18292 that they were concluded by a decision which took awaythelivng romDr.Loce. f tat living had not been for- feied,he ontnde tat he laitif woldstiU havegood security; antias t ha no ben fofeied n&cnequence of any tiling which had een one y D. Loke pevioslyto April, 1818, he mnaintain. ed hatthee ws nta hadw o grundupon which the plaintiff tr. W,V. L. Davis deposed, that he had introduced the plaintiff to .1r. Whitehead for the Durpose of letting that gentleman lay out the plaintiff's money in the purebase of annuities. Feeling, how- ever, a gloat respect for the plaintiff, he advised him to employ a lawyer to examnine into the security of any title that might be oftser- ed to him. The plaintiff ccordingly did so. iHe employed a MUr. Lambe, who lived in Surreg, and who had examsined and approved The Rev. Charles Locke, son of Dr. Locke, deposed to the extentof his father's property. After describing the farmns which he had at Greenhill, Kingsdown.hill,Whitmore, Farnliam, Headley, and Bil- toni, but wbich unon cross-examination were proved to be for the most part only small fields and not farms, he proceeded to state that in 1817 hiis father was rector of ulilgay; that in 1616 he had disposed of the living to a Mr. Craddock; that he hadt re-taken it in 1817, and that he had voided it in tie latter part of 1818. Il was a valuableliving, extending over 8,000 acres. He knew that his father had property in the lVest Indies, and also in lead-mines; but he never resollect- ed his father's receiving any remittances, though he received many letters from the agents who managed that propert for him. He knew that his father was indebted to Dr. Sorrel 16,0001. for the liv- ing of Hilgav. Hse never saw any of the tithes of that parish comne into his father's hands, nor did he receive any rent for, the estates which he had mentioned-it all went to pay off the interest of the mortgages upon them. He admitted, after many attempts to avoid it, the extreme embzrrassment of his falthet fronm the year 1812 to 1818. Dr. flewlett, the present rector of Hilgay, sa4i that the eetinated value of that living was 1,6711. The admission and induction.of Dr. Locke to the living of Ril. gay were then put in ant proved. Mr. SCARLE TT, in reply, called upont the jurq to remnark that there was no proof that any abstrata had ever beea sent to .lr. Lambe to insr-et, or evern that Mr. Lambe was an attornev. If the defendant ad called lfr. Lambe,as he was perfectly at liberty to do, thejury would have known whether he was the attornev pspos- ing him to be an attorney, of lAr. Greetham or of Mr. Wilitehead. The first part of his learned friend's defence was perfectly antenable. His learned friend had called evidence from whom he extracted the fact, that Dr. Locke was indebted at the time when he granted this ann,dty to Dr. Sorrell in no less a sum than 16,0001., independently of the sum of 39,0001. for which he had issued annuities and given judgments. Now his learned friend had told them that this living was free from any prior incumbrance. His own witness had proved that statement to be untrue, by stating that there was an incum- brance of li,0001. upon it. But even if that had not been the case, his learned friend well knew that the judgments then docketted took precedence of all subsequent securities, and bomnd every kind of property which Dr. Locke possessed. Under these circumstances, as the defendant's evidence, instead of contradicting, corroborated the laintifrfs evidence, he left thle case with perfect confidence in the snods of the jury. The LoRD CHItEF JUSTICE summed up the evidence to tllejurY, and told them that the first question which they would have to decide was, whether the piaintiffhad relied on Lambe oron Whitehead forthe examination of his security. If they thought that he had depended upon the former, then there was an end of the plaintiff's case ; but if they thought that he had depended upon the latter, then it would be their duty to consider another question also. It wvas undoubtedly the duty of an annuity broker to examine into the circumin stances of the party to whom the money was to be advanced. It was only charitible in this case to suppose that no inquiry had been made inte the circumstances of Dr. Locke; for if any in- quiy. however slight, had been made in the neighbourhood in which he lived, it would !iave beenL impossible for the party making itnot to have discovered the desperate situattion of his for- tunes. After it was discovered, it would have been sufaicient to put any man of business on his guard, and to prevent him from lending his money to an individual who was so certain to give him no remunera- tion. He should therefore again press it upon them to consider- first, had the plaintiff intrusted his monev to the care of the de- fendant to lay out on goad security ? and secondly, if he had. had the tefendant used sufficie&t caution ? If they should find a verliet in favour of the olaintiff, he thought that they would have but l tt1e difficultyin coming to a similar conclusion on the secoad; and in that case, it would be their duty to give him a verdict lor such a sum as they calculated wvould equal the annuity which he had lost. The Jurg deliberated for a few minutes, and then returned a ver- dict for the plaintifFZDamages 1,8921. 10s. COURT OF KING'S BENCH, WVESTMINSTER, APRIL 30. DOWLING V. 1ICKS.