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1827.

CADDY

Barlow.

of any thing which can fall in evi- prosecuting for the king upon just dence against the King, or in his occasions.” It has, however, been disadvantage (a), May it please decided, in a case argued long (you) to ordain by slatute, that subsequent to that of Jordan v. search and exemplification be Lewis, 2 Stra. 1122, namely, in made for all persons (fait as touts Legatt y. Tollervey, 14 East, 302, gentz) of whatever record touches that the formalities specified in them in any manner, as well as that order, are not absolutely nethat which falls against the King cessary for the reception in evias other persons. Le Roy le voet.” dence of a copy of an indictAnd see 3 Inst. 71.

ment. There, the plaintiff, in In Brangan's case, 1 Leach, an action for a malicious proC. C. 32, Willes, C. J., is re- secution, produced, by means of ported to have said, “ that by the clerk of the court of quarter the laws of this realm, every sessions, before which the indictprisoner, upon his acquittal, has ment had been tried, a copy, an undoubted right and title to a which was rejected for want of copy of the record, for any use an order, and the plaintiff nonwhich he may think fit to make of suited. The Court of K. B. were it; and, that, after demand, the of opinion that the evidence ought proper officer may be punished for to have been received, and set refusing to make out a copy.” aside the nonsuit ; and Lord The first restriction of this ge- Ellenborough, C, J., said " It is neral right appears to have been very clear that it is the duty of the imposed by an order made by officer charged with the custody of some of the Judges, (the first the records of the Court, not to who are recorded to have refused produce a record but upon comto seal a bill of exceptions in cri- petent authority, which at the Old minal cases,) for the regulation of Bailey is obtained upon applicathe Old Bailey Sessions, (Direc- tion to the court, pursuant to the tions for Justices at the Old order that has long prevailed Bailey, prefixed to Kelyng's Rep. there ; and with respect to the p. 3, order. 3), in the reign of general records of the realm, upon Car. 2, by which it was ordered, application to the Attorney-Ge“ that no copies of any indictment neral. But if the officer, even for felony be given without special without authority, shall have given order, upon motion made in open a copy of a record, or produce Court, at the general gaol deli- the original, and that is properly very; for the late frequency of proved in evidence, I cannot say actions against prosecutors, which that such evidence shall not be cannot be without copies of the received. He may incur the indictment, deterreth people from penalty of his contempt of the

(a) The words of Lord Coke are, Et ja de novell refusent en la court nostre dit seign' de serche ou evidence encountr'le Koy ou disadvantuge de ly." But this is manifestly a mistake of the printer or transcriber. In the Parliament Rolls it stands thus :--.

Et ja de novel refusent en la court nostre dit seign' de serche ou exemplification faire des nulles riens que purra chier en evidence encontr' le Roi ou des. avantage de ly." 2 Rot. Parl. (46 Edw. 3), fo. 314. See also 10 Runnington's Statutes, Appendix, 45.

1827.

CADDY

BARLOW.

court, and may be warned, at the the rule laid down by Lord Chief
time, of his peril in so doing; and Justice Lee, in the case of Jordan
a discreet officer placed in such a v. Lewis, 2 Stra. 1122, is the cor-
situation would, before he pro- rect rule. The order made at
duced the record, or gave a copy the Old Bailey was there read
of it, apply to the Court, and state by way of objection to the evi-
the circumstances; and it cannot dence offered, but the Chief Jus-
be doubted, that he would be tice in that case said, that he
saved harmless in doing what, could not refuse to let the plaintiff
after such disclosure, the court read the copy of the indictment,
should order him to do.. But though obtained without any order
still I cannot help thinking, that of the Court for that purpose.”

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CLEMENT ». Fisher, in Error.
THE first count of the declaration stated, that Fisher, A declara-

tion stating, the plaintiff below, was a married man, the father of eight that defendant children; that one John Joseph Stockdale had printed published a

false, scandaand published of and concerning plaintiff, a certain false, lous, mali&c., libel, containing amongst other things, the false, cious, and de

famatory libel &c., matter following, of and concerning the said plain- of and contiff. The declaration then went on to set out a libel cerning the

plaintiff, conupon the plaintiff, purporting to be written by one Har- iaining riette Wilson, in which the plaintiff is charged with things, the

amongst other "making love to several women at the same time, although false, scandahe is a married man,” and is called “a dirty Devonshire cious, defamalawyer,” and “ a wretch.” The declaration then stated, tory, and

libellous that Fisher impleaded Stockdale, for the printing and pub- matter, follishing of such libel; that Stockdale pleaded not guilty, to say,' - is

lowing, that is and that a verdict was found for the plaintiff Fisher, bad, for not damages 7001; that Clement contriving to injure, &c. such libellous Fisher, and to cause it to be believed that he had been matter was“ of guilty of the misconduct thereby imputed to him, and that ing the plainhe, being such husband and father, was an abandoned

tiff ;" unless

the words set and profligate man, and had been, and was frequently out distinctly engaged in intrigues and immoral connections with point to the

plaintiff, or

that application is given to them by an innuendo.

and concern

1827.

CLEMENT

FISHER.

females, did print and publish, &c. The first count then proceeded to set out a libel published by defendant below, upon which nothing turned upon the argument of the writ of error. The second count stated, that the de fendant contriving, &c., did print and publish of and concerning the said plaintiff, and of and concerning the said first mentioned libel, and of and concerning the said verdict, a certain other false, &c., libel, containing therein, amongst other things, the false, scandalous, malicious, defamatory, and libellous matter, following (a), that is to say. The declaration then proceeded to set out some doggrel lines, entitled “ Stớckdle and Harriette W-Is-n, a London Eclogue." These lines represented a conversation between Stockdale and Harriette Wilson, designated throughout by the above imperfect words, respecting the publications of the latter. The parts which were supposed to relate to the plaintiff Fisher, were these—“With recent verdicts out of tune. To Fisher (thereby meaning the said plaintiff), Blore, large sums were given, to one three hundred, t'other seven. Much St-ckdle feared lest such a sample, make others follow the example. Stockdale. 'Twould be too hard to pay for truth.-Harriette. But truth has a far keener tooth than falsehood, for we may despise what we all know a pack of lies. I wrote what was not only new, but also in its substance,-(thereby meaning in its substance, true)."

To this declaration Clement pleaded not guilty, and upon the trial before Best, C. J., at the sittings at Guildhall, after last Michaelmas term (6), a general verdict was found for the plaintiff, damages, 301. Judgment was given for these damages, and also for 771. 10s. costs.

The errors assigned were. 1st. The insufficiency

(a) The words “ of and concerning the plaintiff," which had stood in the special pleader's draft, were here accidentally omitted.

(6) Counsel for the plaintiff, Wilde, Serjt., and Manning ; for the defendant, Taddy, Serjt., and Platt.

1827.

CLEMENT

FISHER.

of the declaration.

declaration. 2d. That the alleged false, &c., matters set forth in the first and second counts of the declaration, and for the said Clement's, printing and publishing of which, Fisher has in those counts respectively complained against Clement, are not described in those counts or either of them, as scandalous, defamatory, and libellous, of and concerning Fisher. 3d. That the alleged false, &c., matters in the several counts of the said declaration set forth, and described as having been contained in the alleged libels, with the printing and publication whereof said Fisher had in those counts charged the said Clement, do not appear in or by those counts, or any or either of then, to be scandalous, defamatory, or libellous, of and concerning the said Fisher. 4th. That it does not appear, in or by the said declaration, that the said Clement did, at any time, print or publish any specific matter which by the law of the land could be deemed scandalous, defamatory, or libellous, of or concerning the said Fisher. 5th. That it does not appear in or by the said record, that the said Clement was guilty of any wrongful act towards, against, or as regards the said Fisher, the commission of which by the said Clement could have entitled the said Fisher, by the law of the land, to maintain an action for recovery of damages against the said Clement. 6th. That judgment ought to have been given for the defendant below. -Joinder in error.

Platt, for the plaintiff in error. It is sufficient to shew that one of the counts of this declaration is bad. In the second count, the libellous matter is not alleged to have been published of and concerning the plaintiff. In Rer v. Marsden(a), judgment was arrested for want of an averment, that the libel was published of and concerning the plaintiff. [Lord Tenterden, C. J. That was the case of an indictment]. In Wright v. Clements (6), a declaration stating that the defendant published of and concerning the

(a) 4 M. & S. 164, post, 287. (6) 3 B. & A. 503.

1827.

v.

plaintiff, a libel containing amongst other things, certain CLEMENT false, scandalous, malicious, and defamatory words, of and

concerning the said plaintiff, in substance as follows, that FISHER.

is to say, was held bad in arrest of judgment. [Bayley, J. Here the first libel is stated at length). What is called the first libel conveys no imputation against the plaintiff. He is called a provincial Adonis, a six feet high, black eyed, Devonshire attorney. The doggrel lines which the defendant published were meant as an attack upon Stockdale and Harriette Wilson, but do not affect the plaintiff.

Manning, contrà. The libel published by Stockdale, contained a gross attack upon the plaintiff's moral character, and the second publication by the defendant, averring the truth of the former libel, is equally defamatory of the plaintiff. In Rex v. Marsden, it was not averred that the libel was so published, and the omission to repeat these words in setting out the libellous matter is cured by the verdict. Here the matter published by the defendant, and forming part of a libel, of and concerning the plaintiff, either contained a charge against the plaintiff, or against some other person, or was nò libel at all. Upon the two latter suppositions, it cannot be intended that any damages were given by the jury in respect of this count. But the principle upon which judgment is arrested after a general verdict, where there is a bad count, is, that the jury must be taken to have given something in respect of the bad count. Supposing this rule to apply to a case where the objection to the count, is, not that the count discloses an insufficient ground of complaint subsisting in the plaintiff, but that the plaintiff is not sufficiently connected with the injury, the jury cannot be presumed to have given damages in respect of this connt, without its being proved to the satisfaction of the learned Judge who tried the cause, that the libellous matter was published of and concerning the plaintiff. The rule is, that the omission of any cir

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