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ions be what they may, they shall not dare to prostitute them to so bad a purpose, as to attack wantonly, and without foundation, their neighbour's reputation."
On the examination of Mr. Woodfall, it appeared that the first letter, printed in No. 10,913, of the Public Advertiser, was the only one he was authorized by the defendant to acknowledge, and the only one, concerning which the plaintiff had inquired. The second appeared in another paper, and the printer had been induced to publish it, in consequence of a note written, as he believes, by Mr. Horne, which could not now be produced.
On this, Mr. serjeant Glynn objected to any verbal account being given of a written paper not produced in court, not destroyed by inevitable accident, or suppressed by the fraud of the defendant, the only two cases wherein a person is permitted to give parole evidence. He added, "that the witness rested upon the testimony he was then giving, and of the conviction he hoped to obtain, to screen himself from prosecution; and this was not surely a case, when the common, ordinary, established principle of law is to be departed from."
Mr. justice Blackstone declared his opinion," that evidence should not be given upon
memory of the hand-writing of a letter that is not produced, merely upon the comparison and similitude of hands; and, if it rested on that evidence, he could not permit the printed letter to be read as Mr. Horne's, without producing the written one."
Mr. Woodfall being again called, observed, that, in general, he never kept letters, as it would require a room as big as the largest barn in the county to hold them-that he had lately moved from one house to another, on which occasion, he supposes, the letter in question had been destroyed-and that he had searched for but could not find it.-On his cross-examination, he acknowledged, that even the first letter was not published according to Mr. Horne's directionand that there was a material variation, consisting of the addition of esq. in the first line.
Mr. Messing, who was also of counsel for Mr. Horne, remarked, that Mr. Onslow had undertaken to prove the tenor, and in this case, if there is any variation, however small, it would set aside this action; "There is a case*, where the word was nor, for not, the sense not being in the least altered, and the determination of the court was, that this variation was fatal. In the
*Queen and Drake, reported in Salkeld, 660.
present instance there was also a variation, for it is written Ash Court, 11 July' in the paper just read, whereas it is the 11th' in the record, which comes within the objection cited."
On an appeal to the court, it was decided, "that they ought to prove the alledged libel mentioned in the declaration literatim in the words, letters, and figures; if I admit the variation of a single letter,” adds the judge, “I do not know where to stop: if it is undertaken to prove the tenor of a libel, it must appear to be literally and numerically the same. Here, the party has not declared on the purport, which would have altered the matter. I cannot make a case of it, as desired, for then there must be a verdict for the plaintiff, which my brother Glynn will not consent to; but a motion may be made to set aside the nonsuit and obtain a new trial, upon the ground of my being mistaken in point
In consequence of this decision, Mr. Horne escaped with impunity for the present; but a new trial was soon after moved for in the court of King's Bench, on the ground of "misdirection on the part of the judge." After hearing counsel on both sides, this was granted; the usual preliminary steps were taken; and, issue being once more joined by the parties, the cause
was set down for hearing, at the ensuing Surrey assizes, before a special jury. On that occasion, a new count was added to the former declaration, for "defamatory words" spoken before the freeholders of the county against one of their representatives.
Although the defendant did not plead his own. cause, yet he interested himself greatly in all the proceedings; and, notwithstanding his high opinion of the abilities of his advocates, he differed with them about the mode of conducting the suit. It finally appeared, indeed, that he was right as to an essential point of practice, for they were overruled, as he had foreseen, by the chief justice.
The earl of Mansfield, who presided on this occasion, was accused by Mr. Horne of hurrying on the cause a considerable time before the hour at which the jury had been summoned to attend, and in consequence of this talesmen were recurred to, for the purpose of filling up the places of five special jurors, who had not yet arrived. Be this as it may, serjeant Glynn and Mr. Messing, both of whom had been again retained, insisted on the impropriety of prosecuting a constituent for making a charge openly, and in the face of his representative who had thereby an opportunity of clearing himself, if innocent,
They also contended, that no action for words will lie unless specific damages were proved; and, above all, it was strongly and repeatedly asserted by them, that the evidence respecting the letters was insufficient and directly in opposition to all the received maxims of law. Notwithstanding this, the chief justice, in his charge, strongly urged the great impropriety, scandal, &c., of the various accusations made, and the defamatory libel uttered by the defendant, after which the jury gave a verdict for the plaintiff, with four hundred pounds damages.
Undaunted at the result, and doubtless rejoicing at an opportunity of contending with, and perhaps foiling this learned and eloquent judge at his own weapons, Mr. Horne determined to appeal to a superior tribunal. Accordingly, on November 8, 1770, a rule was moved for in the court of Common Pleas, to show cause, why the second verdict should not be set aside, and the 26th of the same month was the day appointed for an argument on the question, before the twelve judges. Mr. serjeant Glynn, on this occasion, re-stated his former reasons with his usual ability, and insisted, that the last jury had acted not only under misdirection on the part of the judge, but that the latter had delivered a charge to them, in express violation