You are on page 1of 8

S. 4 11 it at .

I} St E (1 ni i t . . .

TH E L AW JOU R NA L
FOR
**

THE YEAR 1826,

COMPRising

REPORTS OF CAS ES

in the

Courtg of Cbaitterp, ting's 36tmri), and Common Itag,


FROM

MICHAELMAS TERM 1825, TO TRINITY TERM 1826,

BOTH INCLUSIVE.

VOL. IV.

LONDON :

Printed by James Holmes, 4, Took's Court, Chancery Lane,


FOR J. W. PAGET, 5, QUALITY COURT, CHANCERY LAN.E.

. . . MDCCCXXVI, s
THE LAW JOURNAL

IS A

MONTHLY PUBLICATION,

SOLD TO ANNUAL SUBSCRIBERS ONLY:

CONTAINING

. Reports of Cases in the Courts of Equity.


. Reports of Cases in the Court of King's Bench.
. Reports of Cases in the Court of Common Pleas.

. . A Digest of all the Reports in every Court of Justice in the Kingdom.


. An Annual Supplement to Burn's Justice.
. An Abridgment of every Act of Parliament immediately after it has passed.
. Law Tracts.

f 642:3
J U D G E S, &c.
1826.

IN THE COURTS OF EQUITY.


Earl Eldon, Lord High Chancellor.
The Right Hon. Lord Gifford, Master of the Rolls.
Sir John LeAch, Knt. Vice Chancellor.

IN THE COURT OF KING'S BENCH.

The Right Hon. Sir CHARLEs Abbott, Knt. Lord Chief Justice.
The Hon. Sir Jon N BAYLEY, Knt.
The Hon. Sir GeoRo;E Sowley Holroyd, Knt.
The Hon. Sir Joseph LITTLEDALE, Knt.

IN THE COURT OF COMMON PLEAS.

The Right Hon. Sir William DRAPER BEST, Knt. Lord Chief Justice.
The Hon. Sir JAMES ALLAN PARK, Knt.
The Hon. Sir JAMEs BURRough, Knt.
The Hon. Sir Stephen GASELEE, Knt.

IN THE COURT OF EXCHEQUER.

The light Hon. Sir WILLIAM Alexander, Knt.


The Hon. Sir Robert GRAHAM, Knt.
The Hon. Sir William GARRow, Knt.
The Hon. Sir JoiN HULLock, Knt.

IN THE ECCLESIASTICAL COURTS.

The Right Hon. Sir John Nicholt, Knt. Official Principal of the Arches Court of Can
bury, Judge of the Prerogative Court and the Court of Peculiars of Canterbury.
The Right Hon. Lord Stowell, Judge of the High Court of Admiralty of England,
The Right Hon. Sir CHRistoph ER lobinson, Knt. Chancellor of the Diocese of London.

Sir Jolis SINGLEton Corley, Knt. Attorney General.


Sir CHARLEs WE1 illRLL1, Knt. Solicitor General,
12S COURT OF COMMON PLEAS.

to lend a willing ear to objections of this suspected to have been guilty of the fraud,
nature, as they open a door to parties to offences, and misconduct hereinafter men
provide against the act of bankruptcy proved tioned to have been charged or imputed to
at the former trial, in case the Court should him, or of any such offences or misconduct;
allow the cause to go down again. This rule, by means of which said several premises, he
therefore, must be the plaintiff, before the committing the se
Discharged. veral grievances hereinafter mentioned, had
deservedly obtained the good opinion and
credit of all his neighbours, and other good
and worthy subjects of this realm, to whom
1826.
YRISARRi v. CLEMENT. he was in any wise known, to wit, at London
Feb. 11. aforesaid.
Where a party complains of a libel, which And whereas also, before the committing
is confined to an illegal transaction, in the grievances by the defendant in this and
which he himself is engaged, he cannot reco the four next following counts mentioned, the
ver in an action for such libel; but if fraud plaintiff had been, and was appointed by cer
ultra such transaction be imputed to him, the tain persons exercising the powers or autho
action may be maintained. rity of government, in a certain republic or
In a declaration for a libel, it was stated state in parts beyond the seas, to wit, in the
by way of indueement, that the plaintiff was republic or state of Chili, in South America,
appointed by the government of the state of to the office or station of Envoy Extraor
Chili, to the office of Envoy Extraordinary dinary and Minister Plenipotentiary from
from that state to this country; the defendant that republic or state to and at the courts of
having admitted in the libel, that Chili was a Europe; and amongst others to the court of
state, and it being proved that the plaintiff the United Kingdom, to wit, at London;
had been appointed such Envoy:Held to and whereas also before the time of commit
be sufficient proof of such allegation. ting the grievances by the defendant in this
Where a libel, in a letter addressed to the and the four next following counts men
editor of a newspaper, contained this passage tioned, the plaintiff had been and was autho
among others, viz. the plaintiff lost no rized, empowered, and directed by the said
time in transferring himself, together with persons exercising the powers or authority
200,000l. sterling of John Bull's money, to of government in the said republic or state
Paris, nhere he now outtops princes in his of Chili, in South America, to negotiate a
style of living, it does not impute to him the loan or loans for the service of the said re
commission of a fraud on the English nation; public or state of Chili, to wit, at London
and therefore innuendos imputing such fraud aforesaid: And whereas also, before the com
to him cannot be supported. mitting the grievances by the defendant, in
this and the four next following counts men
This was an action for a libel published in tioned, to wit, on the 1st January 1820, the
the Morning Chronicle newspaper. The first plaintiff had come to and arrived in this
count of the declaration stated, that the plain country, and had become and was resident
tiffnow is a good, true, honest, just and faith therein, to wit, at London aforesaid:And
ful subject of this realm, and as such hath whereas also, before the committing of the
always behaved and conducted himself; and grievances by the defendant, in this and the
until the committing of the grievances by four next following counts mentioned, to wit,
the defendant, as hereinafter mentioned, on the 1st July 1822, the plaintiff, by virtue,
was always reputed, esteemed and accepted and in exercise of the said power and au
by and amongst all his neighbours, and thority conferred on him by the said persons
other good and worthy subjects of this exercising the powers or authority of go
realm, to whom he was any wise known, to vernment in the said republic or state of
be a person of good name, fame and credit, Chili, in South America, had entered into,
to wit, at London; and whereas the plain made, and concluded for and on the part of
tiff hath not ever been guilty, or until the the said republic or state of Chili, a con
time of the committing of the grievances by tract with certain persons, to wit, John
the defendant, as hereinafter mentioned, Hullett and Charles Widder, carrying on
COURT OF COMMON PLEAS. 129

trade and commerce in the city of London did falsely,and maliciously print, and publish,
by and under the style and firm of Hullett and cause and procure to be printed and
Brothers & Co., for raising a certain loan published, of and concerning the plaintiff,
of money, to wit, a loan for 1,000,000l. and of and concerning the matters aforesaid,
sterling money of this kingdom, for the a certain false, scandalous, malicious, and de
service of the said republic or state of famatory libel, in a certain public newspaper,
Chili, by the sale of certain bonds or obli commonly called or known by the name of
gations, to wit, bonds or obligations of and the Morning Chronicle, in the form of a
on the part of the government of the said letter purporting to be written to the editor
republic or state of Chili; which said bonds thereof; containing therein, amongst other
or obligations had been and were signed things, the false, scandalous, malicious and
by the plaintiff, as Envoy Extraordinary and defamatory matter following, of and concern
Minister Plenipotentiary for the said repub ing the plaintiff, and of and concerning the
lic or state of Chili; and by virtue, and in matters aforesaid, that is to say, I (meaning
exercise of the said power and authority the person purporting to be the writer of the
conferred on him for that purpose as afore said letter,) would ask another question not
said, and had been and were issued by the irrelevant on the present occasionwhy did
plaintiff to the said Messrs. Hullett Bro the appointment of Consul-General (mean
thers & Co., and had been and were sold ing the said appointment of Consul-General
and disposed of by and through the agency for the said republic or state of Buenos
of them the said Messrs. Hullett Brothers Ayres, in South America) to England fall
& Co., to divers subjects of this kingdom, on the person alluded to ? (meaning the
as the buyers and purchasers thereof, to said John Hullett.) It would not, surely,
wit, at London aforesaid. be owing to any approbation of his (mean
And whereas also, before the time of the ing the said John Hullett's) conduct in
committing of the grievances by the defen meddling with the affairs of a neighbouring
dant in this and the four next following state, (meaning the said republic or state
counts mentioned, one John Hullett, being of Chili, in South America,) which state,
one of the partners in the said house or firm (meaning the said republic or state of Chili,)
of Messrs. Hullett Brothers & Co., had without being in want of money, or even
been and was appointed by certain persons asking for it, this London agent, (meaning
exercising the powers and authority of go the said John Hullett,) saddles with a debt
vernment, in a certain other republic or state, of one million of pounds, taken out of Eng
in parts beyond the seas, near or neighbour lish pockets, for the benefit, in reality, of
ing to the before-mentioned republic or state himself, (meaning the said John Hullett,)
of Chili, in South America, that is to say, and the Creole Spaniard, (meaning the plain
in the republic or state of Buenos Ayres, in tiff) who acted the part of plenipotentiary
South America, Consul-General for the said to the Stock Exchange in that drama, (mean
republic or state of Buenos Ayres, in and to ing and insinuating thereby, that the plain
wards the United Kingdom, to wit, at London tiff, colluding with the said John Hullett to
aforesaid: yet the defendant, well know obtain money fraudulently in the said loan
ing all and singular the premises aforesaid, for one million of pounds, for the service of
but contriving and maliciously intending the said republic or state of Chili, in South
wrongfully and unjustly to hurt, injure and America, had defrauded the English sub
prejudice, and damnify the plaintiff in his jects of this kingdom). The latter worthy,
said good name, fame, credit, and reputa (meaning the plaintiff,) lost no time in trans
tion, and to bring him into public scandal, ferring himself, together with two hundred
infamy, and disgrace with and amongst all thousand pounds sterling of John Bull's
his neighbours, and other good and worthy money, to Paris, (meaning and intending
subjects of this kingdom; and cause it to thereby, that the plaintiff had fraudulently
be suspected and believed by those neigh obtained two hundred thousand pounds ster
bours and subjects, that he had been and ling of the money of the English subjects of
was guilty of fraud, and otherwise to hurt, our sovereign lord the King, and had fled
injure, prejudice, and damnify him, hereto from this country with the same,) where he
fore, to wit, on &c. at London aforesaid, (meaning the plaintiff) now out-tops princes
Vol. IV. C.P. R
130 COURT OF COMMON PLEAS.

in his, (meaning the plaintiff's,) style of used a seal in all the different public offices;
living. This notorious transaction, that and that in 1818, the government was car
will occupy a prominent place in the annals ried on under the direction of Don Bernardo
of stock-jobbing fraud, (meaning and insi O'Higgins, under the title of Supreme Di
nuating thereby, that the plaintiff had col rector of the Court of Chili, and by whom
luded with the said John Hullett in the the plaintiff was appointed envoy. That
matter of the said loan raised for the said the country of Chili comprised three pro
republic or state of Chili, in South Ame vinces, two and a half of which were under
rica; and had defrauded certain English an independent or republican government, of
subjects of this kingdom,) ought to have which O'Higgins was the director; and the
warned official men of the South American remaining half province still remained in the
state, alluded to in Mr. Canning's speech, hands of the Old Spaniards, who refused to
against trusting the management of their acknowledge the new republic ; and that
affairs in England to the same hands; but other members of that republic, under the
they have determined otherwise; and here authority of O'Higgins, made and enforced
are the consequences of their acting in con laws, which the people obeyed.For the
tempt of public opinion. I, (meaning the defendant, it was objected, that the seal of
person purporting to be the writer of the the state of Chili could only be used by a
said letter,) write this not for English read government of competent authority; and
ers of the Chronicle, but for the South Ame that the plaintiff, in order to prove the alle
ricans; they will not be at a loss to supply gations in his declaration, must show that
the names here omitted."The four follow Chili was a state recognized by the govern
ing counts were controlled by the same in ment of this country; and if not, that his
ducement as in the first ; and there was appointment was a nullity.The plaintiff
another set consisting of four counts, con then offered evidence of the independence
taining no inducement whatever, and which of the state of Buenos Ayres; and that Mr.
were confined to the passage, the latter Hullett had been appointed consul under
worthy lost no time in transferring himself, the seal of that country, when it was insisted
together with 200,000l. sterling of John that it was incumbent on the plaintiff to show
Bull's money, to Paris, where he now out that it was, as alleged in the declaration, a
tops princes in his style of living."The neighbouring state to Chili, and that it was re
innuendo to these words, in the first of these cognized by the government of this country.
counts, being the 6th in the declaration, A bond was then given in evidence, which
was, (meaning thereby) that the plaintiff had appeared to have been executed in France,
fraudulently obtained 200,000l. sterling of when it was objected, for the defendants, that
the money of English subjects, and had fled it could not be admissible in evidence, as it
from this country with it. In the 7th, that must be considered to have issued in this
the plaintiff had left this country with country, and therefore required a stamp, in
200,000l. fraudulently obtained from Eng order to make it effectual ; but his Lord
lish subjects. In the 8th, that he had ship overruled that objection.It was lastly
defrauded English subjects of 200,000l.; objected, that as the plaintiff had been en
and in the last, that he had committed a gaged in an illegal transaction, by raising
fraud. loans for a state at war with another which
At the trial before the Lord Chief Justice, was in amity with the government of this
at Guildhall, at the Sittings after the last country, he could not be entitled to recover
term, the publication of the letter in the in a court ofjustice, for any thing written of
Morning Chronicle by the defendant was him with reference to such transaction. But
admitted; and the Under Secretary of State his Lordship overruled that objection, on the
at Chili, proved, that in 1818, the plaintiff ground that the plaintiff had been individu
was appointed Envoy Extraordinary from ally attacked, and in his private character;
that state to all the courts of Europe; and and the jury accordingly found a general
amongst others, to the United Kingdom ; verdict for him on the whole of the decla
and authorized to raise money for the pur ration, damages 400l. Leave, however, was
poses of the state of Chili. That then and given the defendant to move to set it aside,
since, the government or state of Chili had and that a nonsuit might be entered, in case
COURT OF COMMON PLEAS. 131

the Court should be of opinion that the moral character, independently of such trans
plaintiff had not shown or proved that there action. Besides, he is a foreigner, and im
were such states as Chili and Buenos Ayres, mense sums of money are now advanced by
as alleged in the declaration; and the plain this country to foreigngovernments; and our
tiff's and Mr. Hullett's appointments under government may advance money to another
the seals of those respective states. at war with an ally, if it be done bond fide,
Mr. Serjeant Taddy on a former day in and by way of loan.
this term, accordingly obtained a rule nisi, Mr. Serjeant Taddy in support of his rule
that a nonsuit might be entered on the argued at great length on each of the above
point reserved;or that a new trial might objections, and in support of the illega
be granted, on the ground, that the plaintiff lity of the transaction, relied on Hunt v.
could not be entitled to recover, as the trans Bell; (9) but as the Court confined them
action in which he had engaged was in itself selves to the point, that the innuendos adopt
illegal.He, on a subsequent day, moved ed in the declaration were not made out
in arrest on judgment, on the ground that or established, as the libel itself did not
the 8th count of the declaration could not be state that the plaintiff had been guilty of
supported, there being no inducement as in fraud on the people of this country, it is un
the first set of counts, and that the terms of necessary to state it, and more particularly
the innuendo, that the plaintiff had defrauded so, as the Court said that by granting a new
English subjects of 200,000l. were more trial they came to no ultimate conclusion,
extensive thanthewords ofthelibel, which did but merely that the cause might receive a
not impute any fraud on the English nation; further investigation.
and he relied on the case of Holt v. Schole
jield, (1) where some of the counts in a de By the Court.In this case, a motion has
claration of slander were good, and some been made for entering a nonsuit, or that a
bad, in law, and the jury gave general new trial might be granted; and also, in
damages, the Court ordered the judgment arrest of judgment. With respect to the non
to be arrested. suit, it has been contended, that the plain
Mr. Serj. Waughan and Mr. Serj. Spankie tiff's allegations in the declaration have not
afterwards showed cause, and as to the first been proved, viz. that there is such a state
objection, that neither Chili nor Buenos as Chili, and that the plaintiff has been ap
Ayres could be considered as states until re pointed minister plenipotentiary from that
cognized by the government of this country; state to this country ; or that there is
submitted that the allegations that there were such a state as Buenos Ayres, and that Mr.
such states, were merely introduced by way Hullett has been appointed consul-general
ofinducement; and they relied on Grotius,(2) for that state. On the evidence produced at
Wattel on the Lan of Nations, (3) Folliott v. the trial, the Lord Chief Justice decided,
Ogden, (4) Wright v. Nutt, (5) and Ogden that there were such states in existence;
v. Folliott (in error), (6) The City of Bernev. and to which we fully accede; and there is
the Bank of England, (7) and Dolder v. the consequently no foundation for the objection
same, (8) to show that Chili was a sovereign which has been taken on this point, as the
or self existing state, and consequently that statement in the declaration, as to the exis
it was not necessary for it either to be connect tence of those states, was merely by way of
ed with, or recognized by our government. inducement: and in an action for a libel, it is
With respect to the second objection, as to enough if the defendant admits that there
the illegality of the transaction, the libel at are such statesand this he has done on the
tacked the plaintiff in his individual and face of the libel itself; and it was found
that the plaintiff was appointed and employed
(1) 6 T. R. 691. as envoy or minister for Chili, and that Mr.
(2) Book 1. c. 1. s. 14. Hullett was appointed consul-general for
(3) Book 1. c.4.; Book 3. c. 18. s. 292, 3. Buenos Ayres. These allegations, therefore,
(4) 1 H. Bl. 123. were fully and substantially made out.
(5) Ib. 136, n.
(6) 7 T. R. 726. Another ground of defence taken at the trial,
(7) 9 Wes. 347.
(8) 10 id. 284 & 352. (9) 7 B. Moore, 212; s. c. 1 Bing. 1.
1 : ,'! COURT OF COMMON PLEAS.

was, that the plaintiff could not recover, as 1826. cLARKE v. JOHNSON AND
the raising the loan in this country was il Feb. 13. } Another.

legal, and as it was proved that he came


here to negotiate it, and was at the bottom Parish officers cannot require a sum of
of that transaction. The case of Hunt v. money, either from the mother or putative fa
Bell appears to be undistinguishable from ther, on the birth of a bastard child, for its
the present in that respect; for when a per future maintenance, or to indemnify the pa
son complains of a libel on him, which is rish against the charges of supporting it.
confined to an illegal transaction in which the They can only require a security for the pur
party himself is engaged, it is an answer to pose of such indemnity.
the complaint; but if a man be guilty of Where, therefore, the mother of a bastard
an illegal transaction, fraud, ultra such paid a sum to the overseers, to meet any
transaction, is not to be imputed to him. charges which might accrue in respect of the
And here the plaintiff has been attacked child:Held, that she was entitled to recover
individually, and in his moral character. it back, in an action for money had and re
Another objection was taken for the defen ceived.
dant at the trial, viz. that the libel did not
impute to the plaintiff the commission of This was an action of assumpsit for
a fraud on the English nation; and on look money had and received, and brought by the
ing at the innuendos in the first five counts of plaintiff, the mother of a bastard child, to
the declaration, there is no evidence to sup recover the sum of 60l. paid on her account
port such an imputation. The libel itself is to the defendants as overseers of the poor
the only thing to be looked at, the whole of of the township of Osgodby, near Scarbo
which must be taken together, in order to rough, in Yorkshire, on the birth of the child
collect its purport and meaning; and there in 1818, for the purpose of indemnifying the
is nothing in it charging the plaintiff with township from any charges or expenses
defrauding the people of England; he is which might be incurred in respect of the
merely charged with defrauding the people maintenance of such child.
of Chili, and if so, the innuendos were not At the trial, before Mr. Justice Bayley, at
made out, nor can they be supported. If the last assizes at York, it appeared that
that is the true construction, the defendant is the above sum of 60l. was lodged in a
entitled to a new trial. The libel was writ
bank at Scarborough in the names of the
ten in the form of a letter, and concluded plaintiff, (the mother of the child,) and the
by stating, that it was not written for the defendants, as overseers for the time being ;
English readers of the Chronicle, but for the that the bankers gave a receipt to both par
South Americans. It is therefore impos ties, and that the plaintiff received interest at
sible to say that the writer meant to insinu the rate of five per cent. until 1821, when
ate that the plaintiff had been guilty of a the bankers at Scarborough became bank
fraud on the people of this country, but rupts, and the defendant, Johnson, proved
that he had raised a loan which the people under their commission, and received the
of Chili did not want, and applied it to his sum of 15l. 14s. 8d. being a dividend
own purposes. If so, the insinuation, is at the rate of five shillings in the pound.
confined to a fraud committed on the It also appeared that the child was still
people of that country. The innuendos, alive, that the plaintiff, (its mother,) had
therefore, (meaning thereby, that the plain never been taken before a magistrate, and
tiff had cheated John Bull,) are not made out that the child had not become chargeable
or established; and as it is a most important to the township. But the learned Judge
part of the case, the rule for a new trial being of opinion that there was a continuing
must be made liability or risk on the township, the child
being still living;-he directed a monsuit,
Absolute. reserving the plaintiff leave to move to
set it aside, and that a new trial might be
granted, in case the Court should be of
opinion that she was entitled to recover.
Mr. Serjeant Vaughan having, on a for