ogous to the ordinary power which the Court has of enabling a party to inspect the books of Quarter Sessions, for which there is an authority in Wilson's Reports. (a) [ABBOTT C. J. We grant mandamuses to inspect corporation books, as a matter of right, to burgesses who have an interest in the corporation; but I know of no right that this Court has to authorize a person to inspect the books of Quarter Sessions.] The books of Quarter Sessions are public property, and every one has a legal right to inspect them. [ABBOTT C. J. That is a proposition to which I can by no means accede; it is too general. I am not aware that every man has a right to inspect the books of all the Quarter Sessions in England, and say to the clerks of the peace," let me see your books."] Such he had always understood to be the practice. ABBOTT C. J. This is an application to which it appears to me this Court has no power to give effect. It is said that the application to the Court of Great Session would be of no avail, because it would be too late for the purpose of this action. The plaintiff, in effect, calls upon us to compel the defendant to find evidence against himself. That would be contrary to every principle of justice, and therefore the motion cannot be complied with. BAYLEY J. The only mode of relief is to apply to the Court of Great Session for a rule, calling upon the sheriff to return the writ. If this will not answer the purpose we cannot call upon him to furnish evidence against himself. HOLROYD J. The plaintiff has been guilty of a default in not calling upon the sheriff before the proper tribunal to return the writ, and finding that he has not. (a) See Herbert v. Ashburner, 1 Wils. 297. 1819 THE KING against THE SHERIFF OF CHESTER. 1819. THE KING against evidence to support the charge against the sheriff for neglect of duty, he now applies to this Court to make the sheriff find evidence against himself. This is conOF CHESTER. trary to all rule. THE SHERIFF BEST J. concurred Rule refused. Wednesday, LORD CHARLES SPENCER CHURCHILL against HUNT. Where a declaration stated, that before the publishing of of the libels by the defendant of and concerning the the libel a carriage driven by plaintiff had run against another without plaintiff's negligence or default, and a person had been thrown out and killed, and that defendant published the libel of and concerning the said accident, Held that although it was proved that the accident did happen through the negligence of plaintiff, yet there was no variance, the accident and the cause of it being divisible. (a) An action lies for a libel, stating that although plaintiff was aware of the death of a person occasioned by his improper driving a carriage against that in which the person was driving, he attended a public ball in the evening of the same day. (b) ACTION on the case for a libel. The declaration stated in the first count, that before the publishing (a) So in Figgins v. Cogswell, 3 M. & S. 369. where the declaration stated that the plaintiff at the time of speaking the words was of two trades, and that the defendant intending to injure him in his several trades as aforesaid, and to prevent persons from employing him in the way of his said several trades, in a certain discourse which he had of and concerning the plaintiff in one of his trades, spoke the words; it was held, that though the plaintiff failed to prove that he was of both trades, he might nevertheless recover, upon proof that he was of that trade concerning which the defendant was charged to have spoken the words. See also, Hall v. Smith, 1 M. & S. 287. In an action against the proprietor of the Oracle newspaper, for a libel on the True Briton, where the declaration averred that the plaintiff was the proprietor, editor, and publisher of the True Briton, and the plaintiff proved that he was proprietor and publisher but failed in proving tha the was editor, Lord Kenyon nonsuited the plaintiff, and on motion by Wood for a new trial, his Lordship, and Ashburn, and Grose Js.were of their opinion, that the whole allegation ought to have been proved; but Lawrence J. intimating some doubt, a rule was granted, but afterwards a stet processus was entered by consent. Heriot v. Stuart, 1 Esp.R. 437,8. An introductory averment in an information for a libel, that outrages had been committed in and in the neighbourhood of Nottingham, is divisable, so that it need not be proved that they were committed in both places. The King v. Sutton, 4 M. & S. 532. An allegation, in an action against the sheriff for falsely returning nulla bona to a fieri facias against two defendants, that both the defendants had seizable effects, is satisfied by proving that there said plaintiff hereinafter set forth, to wit, on, &c. a certain carriage, in which one Eliz. Shewin was riding, passing, and travelling on a certain public highway, called the King's Road, in the parish of St. Luke's, Chelsea; and the plaintiff was also then and there, to wit, on the same day and on the same road, driving a certain other carriage, to wit, a carriage called a Dennett, and thereupon it then and there happened, without any negligence, default, or furious driving on the part of the said plaintiff, that the said two carriages came in contact together and accidentally ran against each other, by means whereof the carriage in which the said E. S. was then and there riding, was unavoidably and accidentally overturned, and the said E. S. was then and there cast and thrown out of the said carriage upon the ground, and then and there was so grievously bruised, cut, and injured, that she then and was property of one of the defendants. Jones v. Clayton, 4 M. & S. 649. In Rex v. Shaw, 2 Bla. Rep. 789. the judges inclined to think, that a prisoner might be convicted on a count in an indictment charging him as sorter and charger of letters in the post office, by a finding that he was a sorter only. If one count of a declaration contain several actionable words, the plaintiff will be entitled to a verdict, on proof of some of them. Compagnon and wife v. Martin, 2 Bla. Rep. 790. On a charge of petit-treason, if the killing with malice is proved, but no circumstances of aggravation are proved to make the offence treasonable, the prisoner may be found guilty of the murder. Case of Swan and another, Foster, 104. So on an indictment for burglary and stealing goods, if it appear that no burglary was committed, as where the breaking and entering were not in the night; or on a charge of robbery, where the property was not taken from the person by violence, or by putting him in fear, the prisoner may be found guilty only of the simple larceny, 2 East. P. C. 513; Phil. Ev. 164. On the trial of an indictment for murder, the jury may find the prisoner guilty of manslaughter only; for the principal matter is the killing, and the malice is only a circumstance in aggravation. Co. Lit. 281 b. 282 c.; and cases in margin, Phil. Ev. 164. It is, in short, a general rule in the criminal law, that it is sufficient to prove so much of the indictment as shows the defendant to have been guilty of a substantive crime therein stated, though not to the full extent charged against him. Rex v. Hunt, 2 Campb. 583; Chitty, Crim. L. 1 vol. 558. There seems therefore to be a great uniformity in the cases respecting partible allegations. (6) Written slander is in general actionable, when it imputes defects in moral virtue. Haley v. Lord Kerry, 4 Taunt. 355; 3 Campb. 214; 2 East, 430, 1; 1 Price Rep. 11. 1819. LORD CHARLES SPENCER CHURCHILL against HUNT. 1819. LORD CHARLES SPENCER (HURCHILL against HUNT. there died of the said cuts, bruises, and injuries, to wit, on, &c. aforesaid, at the parish aforesaid; yet the said defendant, well knowing the premises, but contriving to injure plaintiff in his fair name and reputation, and to bring him into public scandal, &c. with his neighbours and other subjects of the realm, and to cause it to be believed that the said accident and that the death of the said E. S. was occasioned by the carelessness, negligence, and furious driving of the said plaintiff; and also to cause it to be believed that it was proved in evidence before the coroner's inquest which sat on the body of the said E. S. that her death was occasioned by the misconduct of the said plaintiff; and further intending to vex, harass, and oppress the plaintiff, he retofore, towit, on the 31st of May 1818, at the parish of St. Mary le Strand, in the city of Westminster, in the county of Middlesex aforesaid, falsely, wickedly, and maliciously did compose and publish, and cause and procure to be published of and concerning the said plaintiff, and of and concerning the said accident, and of and concerning the evidence given before the coroner's inquest which sat on the body of the said E. S. a certain false scandalous, malicious, and defamatory libel, containing amongst other things the false, scandalous, malicious, defamatory, and libellous matter following, of and concerning the said plaintiff, and of and concerning the said accident, and of and concerning the said evidence, that is to say-" Furious driving.-A reader of the Examiner trusts that the editor of that paper will not fail to notice in his next publication the very melancholy accident which occurred in the King's Road, on Wednesday in the last week, occasioned by the furious and careless driving of a certain young nobleman, Lord Charles S. Churchill, &c." [The first count proceeded in this manner to set out the libel, which charged that the accident had been occasioned by the furious and careless driving of the plaintiff, and that the evidence before the coroner proved that it was so occasioned.] Second count: And the said plaintiff further saith, that the said defendant further intending and devising as aforesaid heretofore, to wit, on, &c. (a) falsely did publish a certain other false, scandalous, and malicious libel of and concerning the said plaintiff, and of and concerning the said accident, containing amongst other things the libellous matter following of and concerning the said plaintiff, and of and concerning the said accident, that is to say, [The libel set out in this count, charged that the accident was owing to the plaintiff's hard driving; and also the following words: "We are informed, but can hardly believe the relation, that though this young nobleman was fully aware of the shocking death of the lady, he on the very evening of the catastrophe attended a public ball."] Another count charged that the defendant had publisbed a libel of and concerning the said plaintiff, and of and concerning the said accident, containing amongst other things certain other libellous matters of and concerning the said plaintiff, that is to say, &c. &c. (b) The defendant pleaded the general issue to the whole declaration: and a justification to the whole of the libel set out in the first count, and to such parts of the libels set forth in (a) Venue omitted by mistake in this count. (b) The libel set out in the third count was in part as follows: "Lord C. has thought proper to commence actions against the newspapers, for having in their account attributed the accident to his hard driving. This is their offence, and this is his mode of clearing himself. His renowned ancestor (meaning John Duke of Marlborough), as our readers well know, took a different method to distinguish himself: he did indeed commence many actions, but then they were public and glorious ones, which we venture to predict will not be this gentleman's fate. Our King's Bench hero (meaning plaintiff) differs from the conqueror in this, that he does not like to come to close quarters," for some of the processes served cannot be noticed for these five months, &c. The whole business, as it strikes us, is of a very disgusting description, and one which we cannot but believe, when his Lordship arrives at years of discretion, he will look back upon with mortification and sorrow." 1819. LORD CHARLES SPENCER CHURCHILL against HUNT. |