Court Of King's Bench, We...
L'he CUOURT, pursuant to notice, entered on the consideration fbr rules for new trials. J.eIleLORD W,UIEF JJt?STICE sa.d, this was a question v'hetbler a person having hired horses for the day, and a coachman who is r,ervant to thc owner, is liable for any damagc wvhich may arise from negligent driving. As the case is likcly to occur very often, we think it shonldbe argued before sitl the Judges ; and our learned brothers having been so good as to accedc to our wishes, let the case be argued on the 2d of Febrifary. BYRNE V. PARKINS. This, it will be recollected, was an actioU by Byrne, the roor man whose caue excited so maxch public cotniniscration, against'Al r. Parkins, who hadl acted as bis treasurcr, for the anount of subscrip- tions alleged to rermain in his hands. The action, in point of forM, was for money bad and received, to which the defondant pleaded the geneval issue, and gave notice of set-off: At the trial, which took place befoze the Lor4 Chief Justice, at Wcatminster, two principal questions were raiaed: first, as to the amount received by M 3r. Par- kins; and, second, as to the deductions which he was entitled to claim. Upon the tirat, the plaintiff'put in an accouuit delivore*l by Mlr. Parkins to Catherine Byrne, in which the particulars of the aubscription were given, amounting to 1511. 8s.; but the counsel fur Byrne insisted that he had rereived c.msiiderably moze, and relied for this purpose on the testimony of Scott, who had been a clerk is the defendant's employ, and who swore that Air. Parkins told him the iubscription aumounted to 3001. before the re- ceipt of 51. from Sir Francis Burdett ; on the evidence of M1 r. Cob. bett, that Mr. Parkins at an early period said hc had received 1001. or 1501.; and of a sinilar declaration eworn to by Air. Bell, thc editor of the Wcekly Despatch To rebut the inference arising from *.his case, Mtr. Parkins produced a book k;ept by his clerks, as an original book in which sub?criptions and dlisbursements were entered, on the appearance of which some observatiens were made. Upon the question of deductions, Mr. Parking elaimed to be allowed rent for a house mnd stablesvhlch ie had pcrnnttel Byrfte to occupy; and also for the labonr of lhis clerks, and for -advertisements, paper, scaling-wax, and other nrticles used to promote the subscription. About 871. was estsblished as paid or expended, but the alleged rent and also the allowance for aclerk, were strongly contested on behalfof Byrne. The juryfound a verdict for the plaintiff, damnages 1941. 14s. 4d., thereby taking Parkiua's statement to Cobbett to be literally true, in opposition to hig detail and his book, and ditallowing the clahn for rent and for the services of his clerk. i I r. Parkins, in person, obtained a mile, in the alternative for a new trial or for the reduction of damages, on the ground that the verdict was contrary to the weight of evidence, and also on affidavita tending to affect the credit of thc witness Scott. At the tinie when the rule was granted, a suggestion was thrown out that an arrangement night-be nmade between the parties which might prevent the necessity of further contest. The IORD CsliEF JUSTICE now asked whether any compro. mise hLad been effected ? Mr. C. PISILLTPS, for the plaintifh, replied that a letter had been written to Di r. Parkins, or his attorney, requesting to know what thev would consent to par, but that it had remained without answer. i'he l,oan CHIEL JfISTICE then read his report of the trial, and added, that on the tollowing day. a case between the sanme par. ties for libel and slanderous words was cilled on, when the coun- tsel for the plaintiffcntnsented to take a verdict for 40s., on a declara- tion by Al r. Parkins that the imputation was groundless. Air. PIILLers then proceeded to show causeeagainst the rule. Pie considered the affidavits entitled to but little aotice,as one was made by the defendant bimnself, who could not be examnined on a second( trial; others by witnesses who were exanmined in court; anid others were imniaterial to the question in issue. The ctse was pccu- liarly for the consideration of the jury; it depended entirely on the crelit due to witnesses, and the meaning to be given to their testi- mony ; and on thege matteTs the jury, who saw and heard then, were the most competent judges. 'rhe amount of subscriptions was proved by Scott, as explicitly ststed by Air. Parkins himself, and his evidence iwas corroborated in no small degree by Air. Cobbett and Il r. Bell. To disprove this case, a book was produced, which if it ha-A been a fair and honcst register of the subscriptions, would have been conclusive in the defcndtant's favour ; but it was so full of in- terhtneations and crasurcs as to exCtc a strong presumption of fraud in the mind of the most casnal observer. There was, besides, one item of set-offclain,ed by this account so glarin%ly urnjust as to cast discredit on (he whole-a claim of rent by Parkins fromn this poor man, who was ass oljest of public charity, anti who was literall] vwitbout a hshoe to his foot, of rent at the rate of more than 1801. per annuir, though Parkins rcsisted the offer of Nir. Cobbeit to place Byrnc at a ottage in the crantry upon the very plea that his present residence cost notding. In attemn t was mla(le in the affidavits to explain the strange appearance of t c book by r person namied Swift, who wasexantitied at the trial, and neycrasked to explain it; but who now swore that he altered the book in orier to couipress the statemer,t of subscriptions foT a newspaper ; as if a comrg,Ision would be made in the original book which remained in the e1rD,ainstead of the copy which was to be delivere(d to lte printer. ThMA9.te3mpt wast only paralleled by the attempt made at thc trial to discredit Scott by the mcans of a witness nsmed Taylor, who swore lie could not believe him on his oath, whio described himself as ': a philosopher," and whose g&mcnts certainly bore the appearanice of antiquitv. (A laug5h.) This person representel himself as writing ori the sciences-the whole circle of the scienmcs; but to look at ldm was entough-he was obviously fresh from the office for redresaitig grievances. 'there vyas one pasage in the affidavit of tir. Parkitis which was quite e:tra9rdi,. nary; in whiic he stated, that he had astually firgotten to chlrge a great number of items-that lie had written inumierable ledtera, that lie had bcstowed incalculable labour (rather a tuetapioriesi expres- sion for an affidavit), for tile benefit of tba ungrateful Byrnie 6 and thlis from a marn who charged in his set.off4s. 2d. for sealing,wax for the jtkets of admissioni to the dinner at tic "llorns," and 2jd. ad. vancedi to'the Plaintiffat the " Shades." (illuchi laughter.) In his charge, the LsrdClsief Justice left the case most futly to the jurv, telling them, that if they tfook tic subscription at the lowe't, and the set-off at tlei hbihest, ther' would find *for ithe de. cendant, as a few shilliDgs would be aue'to him; that there wats about 87L which clearly ought to be deducted ; that the clams for rent was for thcir cornsideration ; and that if they believed the plain- tiff's witnesses, and thought the expressions used were hot mere idle boasting, they mighit find for the Jarger tum, making sfich deduc- tions as they thought reasonable ittmd just. Thejury did believe the plaintiff's witnesses; they allowed about 1011. by way of deduction, and no ground was shown for disturbing their verdict. It was bar ily necussary to cite cases. to show the extreme cautioti which Courts hal always maliifested in setting aside verdicts upon ques- tions proper tbr the consideration of jiries ; those cases were nume- rous; and in one, "Swain v. fall," 3 Vilson, 63, the Court refused to set aside a verdict, even where the Lord Chief Justice thought it altogether wrong, and not merely excessive. In this inEtmce be (Sir. Phillips) felt a great personal anxietv, be- caun !Ih La after the veudict, recormnmynded his client to ta4e no. nlinl,, dlamages, in ait action for slander against the saiute defendant, and because topics of a very unpleasiant nature weve connected with the cause, which hie hiad treated ag delicately as possible, but whichi might be revived painfully on a sqeond triaL fe thierefore truisted that the Court would feel that the plaintlif', whoe bad alreaay endlured much, ought not toeuffer the anxiety and delay attendant on settfing.aside the verdict, which a jury, after a trial of nine hours, arnd a meat impartial charge, had given'in hii favour. Air. PATTESON followed on the samne side and in a abort ad- dress urged that the jury had obviouilly considered the ubje'ct a t- tentively, as their verdict wa;ti ven by taking thiesum collectedlin No. vemrber atl5flCO,Ileducting 2li. paid, as admiitted, and then adding the IAII. set forth in the paper mninus the 871. whichi the Lord Chief Justice thought should be deducted. If there were any questions peculiarly for the consideration of juries, the credit of witnesses, and the inmport of their testimony were amnong them, and on these the ver- dict confesedly rested. Air. FRENCH adidressed the Court for AUr. Parkins, in a speechl which occupied more than ani hour and a half, and of which, there- fore, we can give little mere thani an outline. I-le began by expresR- ing his great anxietv foix the result, as he was saisfied thlat if a new trial wvere denied to hlis client, the peace and happiness of his life would be entirely destroyed. Thie individual for whom he was pleading was a man deeply injured; whio, though hiS heart was gene- rous and his fortune splendid, hiad been accused of such base- nessi as must have driven him, unless sustained by a con- sciousness of his owni integrity, and honour, to take refuge in the arms of suicide. This retan, wyho had been hield up to detestation and scorn as the very essence of avarice an fraud, could look back with pleasure andI pride on a Iong succes- sion of acts of benevolence, oni famnilies rescued from thie hiorrid alternative of starvation or voluintary drath, andI on innocent men snatcedi( froim aisgrace and the grove. When he filled theoffice ofs,ie. riff.heba-i deprived perjury of its bloody prey; he had with unceasing toil made manifest the innocence of two Irishmen, who had been sentenced to capital punishesient; and hiowever Alr. Phillips might feel tlii3 action, he (Mr. French) must coinfes that the tear of grati- tude towards AMr. Park ins hiad started into his eye before he had the honcour of knowing him. 0Of this recollection, the enemies of M1r. Parkins could never Aespoil himn, though they should try their malice to their utmiost, and affix as manly ex's as they pleasedl to his name. Yet Air. Pandals, who occupied a commanding stationi in the intellectual worldl, was represented by the counsel for the plain- tiff asa man addicted to gluttony-whiocould not make! a good speedsi till hie had giatified his appetite to excess-in order to procure that unjust and iniquiltous verdict which had been giveni against him. 'the LoRD UsurEr JUSTicE.-ls not that a little ioo strong an expression ? Would it inot be better to confine ouirselves to the ar- gument ? Alr. FRENCHe adnmitted that the expression wvas perhaps too strong ; but it was hard that MIT. Parkins shouilA have been sD as- sailed with ridicule and invective, wlhen fie had a taste as far aboye the gratification of the palate AB lifs heart was surerior to the fraud of which be was Accuse?; and this he was capable of expressing for himself in extempore language, as correct and pure as any gentleman in Court, hiowever much he might pride hiimself on his diction. i-lc came now to the witniesses Scott andI Mr. C-ob. bett, on whom the cage principally rested. What credlit could be givn t Sctt,thevinictve ler, ho had been) discarded for drunennes, ad wh outageoslyssalte Mr. Parkins at the verydoorof te Curt?Was is eidece to be set against thebook whic Mr.Parkng kpt, hichwasalvay open to the insqpection of Brnehimelf,andwhih waehekedby the dlecks of the de- fenant Cold t b beievd tat ir.Parkins, a man who by his industry and creativegenius in a foreign land, had realized an ample fortuine, would stoop to falsify this book fora paltry sum? And at what time was lie supposedI to commiit this extrAOrdinary, fraud ?--at a mo- ment whien the eyes of allEnxgland were fixed upon him; when the ad. miration of his friends was excited by the noble efrort lie wasmiaking to excite public symnpathiy for an oppressed indlividual, and when the venal press of avenal country' was anxiously looking for mnatter to renew its slanders. As to thiese stables with whichi thle jury had been stunnied, where was the imiprobability that Byrne should take themeas a tenant ? True, lie was poor: but it was generally expect. eel that he wouldl anon become rich, in 'consequence of those urgent cla'ims wyhich he possessed to the public sympathy. llis frientds had a righit to expect that one wealthy class-thle Bishops of this countrv-would eagerly step forwar(I with munificent sub- scriptionis, to wipe awvay thec broatl stain fixed on thecm by tue delinquency of one of thieir body. Ha.d they, not declined- hiad not the charity of the people beeni unexpectedily frozen, Byrnie m-ust speedily have beeni placed in affluence. It was easy to perceive sonic causesfor thiecomnparative failure of the subscription ; buttstill it was hiard to suppose, that if' there lhad not been a reason in the conduct of tho man Ihimself, the success should have been so incom- metisurate with the occaision. But .Air. Parkins had been vilified, because he had charged for hiis clerk-because he had not chained hiiuiseif like a sla-ve to the desk-and for this he v-as to be abused like a mnaleflactor, by a couinsel who now avowed and gloried in Iiis personial anmieI3ity' towardls him. TIhe LORD CIIsEF JlUSTICE.-I dlid nlot uanderstand Ailr. Phil. lips to avow anyv personal inialignity towardis the defendant; I under- stoodl him to say, that lie felt a personal interest in the result on accoutnt of the ativie hie hadl given in aaiother cauise ; that was all. Alr. PHILLIPS'.-It is not necessary, but I mnost solemnly disa- vow any personal hiostility- to Al r. Parkins. Altr. k RtENCH thieti adlverted to the evidence of Scott in very warmi language. He next caine to Mlr. Cobbett, of wtomn no wored of censure 8honitl( pass liis lips.. 51r. Cobbett was a mian of' genius, but hia mintd was too miuch burdenedl withi great affairs; he wvas too active in destroying the Hfoly Alliances of despotisin, to remiember acciirar.ely a loose conversiation ; and miighit rely too mnuch ois his memiorv. Alr. Phillips had bern 'very facetiouis oni the appearance of Alr.'Taylor, and hiis love of the sciences ; but Air. Taylor little nierited thtis ridicule l ic had written an elegant essay, which, if it had any relevancy to thRe proceedings, could he produiced at the present moment. The learned counsel liad also bern severe on Air. Parkins for using the epithet " incalculable:" lic. tuarrelled withi it as a1 inetafiiorical expression, forgetting that Mir. Phillipsi, as well as h inselt, camle fromi a country where meta- p)hors sprung up as spontaneously as dulnes8s did in othiers. The lerned counisel then reciirred to the witness Scott, whlo was sworn by Williane Jacksoil to hiave attenspted to pirocure other testimony, and who had been imprisoned for an assault on his old miaster. The LORD CHIEF JUSTICE begged the learned coutisel to state partictularly the affidavit which made this charge on Scott. Alr. FRFNcte read the affidavit, in wvhich Jackson, a waiter at Walker's liotel, whiere Air. Parking at one timne resided, made oatls that Scott appliedl to himi to prove that 201. hiad beeni taken in copper. The learned counsel proceeded to observe, that Scott had sworn he knew noehiingof ithe accoulnt, and yet thic last item was in hiis hand- writinig; and conceluded his ad4ress by entreueting the Court to grant a new trial, in which Mr. P'arking might vindicate isis chiaracter from the foull pimptation cast on it by the verdict. Air. LANDsLow, followed shortly on the sanse side, and particut- larly pressed the situation of his client, a8to chiaracter-, on the atten. tion of the Court. The LustD CItiEr JUSTICE asked whiethier Scott had mnade any affitiavit in Answer to Jackson. Air. Pirti.irps replied in the negative. The Ju-dges consulted for nearly a quarter of an hiour; af'ter which The LonoD CHIEF JctSTsCE said-As the parties hare niot agreed on a reduiction of damiages all we can dto is to grantL a new triali on p-aynment. of costs. Thei defendant miust paty the costs, because certainly.there is evidence to stistain thie vetdict, and from which anothier jury will be at liberty, if' they please, to draw the same conclusion. Beit the present verdict undloubtedly casts a mnoat heavy imiputation oni the clefendant-that be falsified accouenta to serve a frauduilent purpose-which it wouldI be hard to refuse him-i tite opportunity of'refuting.The real question waa,whethcr the e pressions to Scott aniti Mlr. Cobbett were to be considered as miere vapour anti boast, or as the truthi; and on thItl question we think it is fit that another jury should exercise their judginent. There are other parts of the case on which I might remiark but as it is to undergo an- other investigation, the less I say the better, and I abstain. Let thiere be a new t-rial on payment of costs. Tit. PHIrLLt.PS suggested that the defendant should bring some money inito Court, and that tIme verdlict should stanid as a security for any f'utuire riamages and costs. Tbic LoLD CltiIErF JUSTICE thiought t'he suggestion reasonable, and added, that 601. shiould be brought into court, and the verdict shiould standl as a security to thec plantiff. Mr. arkng, ho iadsoodup i cort (inting the principal part oh tedcisi,anocsinlyb Okout into exclamiations, now dEclardh ol a n hn fh ight but have a new trial. air PeLe'prpsdtateoher ease sliould be ope-nedi The LORn Uil tEN JUsTIC E said thiis coulil niot be done, and be- sides Ai r. Pairkins at the time declaredI lie would miove for a new trial. Air. PaTUits.-I did, my Lordl; but I will try bothi cases over agatin. The [,Onn CusxE' JUSTICE.-No, no:- the Court take better care of souse people titan they do of themselves. Alr. IParkins thien retired. 'risE KiNiS V. THE BfAGISTRATES OF' EAST ItRIXTON. Air. SCARt.ETTe renewed his motion of'Saturday for a manideoius, conmnanding the Jastices of the East lIilfllfundred of Brixton to re- heran applicationsfor alicencee, which warsobjected Coon the ground tha th nsgitraescouldi grant no licence except at the sessions in Septmbe, orwitin 20 dlavs after. The tearmed coiunsel urgeil that the d Or. IV cotrolled the 26th Gro. Ii., antI empowered Jus6- tie ogranta licence at any period. TheCoicRT, however, thought otherwise, and refused the writ. TtIE KING V. FALKNER AND OTHERIS. Air. TAUNT ON miovedi for a rule, callingL on several inhabitaitis of hie-ster toshioiw cause why a crimninal informimiation should not bie exhibited against thens for riotous cotidtuct at the late election of slheriffs for iliaC city. The prinicipmal ddefedtant. F1alkuier, was nt a freeman ; but lils coniduct and( tlha of his assoziates was'very out rageous, and tendled to imipede the electors in dthetdischlarge of tlicir tltcy.-Thte CO URiTgranted a rule to sliow cause. COURT OF lING'S BENCH. WErSTMIMnTVr. Ntjv. 1 LAfUGHER V. POYNTER.