May, Gent, One, Company, against Brown
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1824 |
| Date | 01 January 1824 |
| Court | Court of the King's Bench |
English Reports Citation: 107 E.R. 676
IN THE COURT OF KING'S BENCH.
S. C. 4 D. & R. 670; 2 L. J K. B. O. S. 212.
[113] may, GENT., one, &c., against brown. 1824. In an action for a libel, the defendant cannot, either in bar of the action or in mitigation of damages, give in evidence other libels published of him by the plaintiff not distinctly relating to the same subject. Declaration stated that plaintiff was an attorney, and had been employed as vestry clerk in the parish of A., and that whilst he was such vestry clerk, certain prosecutions were carried on against B. for certain misdemeanors, and in furtherance of such proceedings, and to bring the same to a successful issue, certain sums of money belonging to the parishioners were appropriated and applied to the discharge of the expences incurred on account of the said proceedings, yet defendant intending, &c. to injure the plaintiff in his profession of an attorney, and to cause him to be esteemed a fraudulent practiser in his said profession and in his office as vestry clerk, and to cause it to be suspected that the plaintiff had fraudulently applied money belonging to the parishioners, on, &c., at, &c., falsely and maliciously published of and concerning the plaintiff, and of and concerning his conduct in his office as vestry clerk, and of and concerning the matters aforesaid, the libel, &c. It appeared on the production of the libel at the trial, that the imputation was, that the plaintiff had applied the parish money in payment of the expences of the prosecution after it had terminated : Held, that this was no variance, because it did not alter the character of the libel, the fraud imputed to the plaintiff being the same, whether the money was misapplied before or after the proceedings had terminated; and that the allegation, that the libel was published of and concerning the matters aforesaid, did not 3B.&C.114. MAY V. BROWN 677 make it necessary to prove precisely that the libel did relate to every part of the matter previously stated. [S. C. 4 D. & E. 670; 2 L. J. K. B. 0. S. 212.] Declaration stated that the plaintiff, before the publication of the libel thereinafter mentioned, had long been an attorney, and in that profession had been employed by the parishioners as vestry clerk in the parish of St. Matthew, Bethnal Green, and that, whilst the plaintiff was such vestry clerk as aforesaid, certain prosecutions were preferred and carried on against one Joseph Merceron, for certain misdemeanors before then alleged to have been committed by him; and in furtherance of such proceedings, and to bring the same to a successful issue, certain sums of money belonging to the parishioners of the parish of St. Matthew, Bethnal Green, were appropriated and applied to the discharge of the said expences and law charges incurred on account oif the said proceedings, to wit at, &c.; yet the defendant, well knowing, &c., but contriving, &c. to injure plaintiff in his said business and profession of an attorney, and to cause him to be esteemed and taken to be a dishonest, corrupt, and fraudulent practiser in his said profession, and in his office and situation as vestry clerk as [114] aforesaid, and to be a person not fit to be trusted therein, and to deprive him of the same, and to cause it to be suspected and believed, that the plaintiff had fraudulently and clandestinely appropriated and applied certain sums of money, of and belonging to the said parishioners, theretofore, to wit, on, &c., at, &c., falsely, wickedly, and maliciously did compose, write, and publish in a newspaper called the Sunday Monitor, of and concerning the plaintiff, and of and concerning his conduct in his office as vestry clerk as aforesaid, and of and concerning the matters aforesaid, a certain malicious and defamatory libel, containing, amongst other things, the defamatory matters following, of and concerning the plaintiff, and of and concerning his conduct as such vestry clerk as aforesaid, and of and concerning the matters aforesaid, that is to say: " St. Matthew, Bethnal Green. At a vestry meeting held in the parish of St. Matthew, Bethnal Green, on Wednesday, the 29th of March last, the following resolutions were confirmed, and ordered to be printed in the Sunday Monitor. It is worthy of remark, that the circumstances to which the resolutions here inserted relate, took place shortly after the trial of Mr. Merceron (meaning the aforesaid Joseph Merceron), though only very recently discovered; and the present Lord Chief Justice on that occasion, in his charge to the jury, expressly declared, that although notice had been given in the church, and although the vestry voted the payment of Mr. Merceron's law expences, yet, if the jury thought that he had not given all the publicity to the transaction which it was in his power to give, then the charge of clandestinity was established. Mr. May, (meaning the plaintiff,) the vestry clerk, and Mr. Wrightson, were then present as principal witnesses against Mr. Mereeron, as [115] were also Mr. Bumford and Mr. Talbot, two of the committee of his prosecutors." And in a certain other part of which libel were contained the false, scandalous, malicious, and defamatory matters following of and concerning the plaintiff, and of and Concerning his said duty and office of vestry clerk, and of and concerning other his legal and professional duties, and of and concerning the matters aforesaid, that is to say : " Eesolved, that a committee having been appointed on the 29th day of April 1818, to proceed with certain prosecutions against Mr. Merceron, (meaning the said Joseph Mereeron,) and to raise by subscription a fund to defray the future law expences consequent thereupon, the said committee did, on the 20th day of August following, make a report in writing to the vestry, which stated that they had not raised any money by subscription to defray the future law expenees which they had nevertheless incurred; and that the said law charges consisted of two bills of Messrs. Knight and Freeman, viz. one amounting to 3131. 19s. 7d., and the other to 3141. 3s., making together 6281. 2s. 7d. In consequence of such report several persons (specified by name in the declaration) and May the vestry clerk (meaning the plaintiff) were appointed to examine into the identity and accuracy of the said bills ; and the aforesaid persons (thereby meaning the said persons so appointed as aforesaid, including the plaintiff,) did pass the amount of the said bills in three specific sums for payment, notwithstanding they well knew at the time that the real and true amount of the law and other expences which the committee had altogether incurred amounted to no more than 5031. 2s. 7d., instead of 6281. 2s. 7d., of which only 2431. 2s. 8d. ought to have been taken out of the poor-rate fund, whereas 6281. 2s. 7d. was actually [116] taken. 678 MAY V. BROWN 3 B. & C. 117. This vestry, therefore, deem the conduct of the aforesaid persons highly censurable, and they, in the most unqualified terms, censure them accordingly ; but as respects the conduct of Mr. James May, the vestry clerk (meaning the plaintiff) and legal adviser of this parish, who not only concurred in this transaction, but actually furnished a bill, paid before the vestry knew of the prosecutions, and incorporated it in his own hand writing with the unpaid law expences of the committee; he also signed his name, as testifying to the truth of the printed receipts and disbursements of the parish in which were inserted the two fictitious bills under the denomination of Messrs. Knight and Freeman's bills; as also a charge of upwards of 6301. for weekly payments to out-door poor, when they never received a farthing of it, and of which 1131. 9s. 3d. was expended by himself (meaning the plaintiff) and other persons, called constituted authorities, in eating and drinking; this vestry, therefore, consider Mr. James May, meaning the plaintiff, as most unworthy of their future confidence and support" (meaning thereby, that the plaintiff, in the examination and allowance of, and in his conduct and proceeding with respect to the said bills and accounts, supposed to have been incurred for and on behalf of the said parishioners of the said parish of St. Matthew, Bethnal Green, acted corruptly and fraudulently as a vestry clerk of the said parish). Plea, first, not guilty ; secondly, that the matters contained in the libel were true. At the trial before Abbott C.J., at the sittings after Easter term, 1823, the libel set out in the declaration was produced in evidence, and it was objected, on the part of the defendant, that there was a variance between the libel proved and that described in the declaration, inasmuch as it was averred [117] in the declaration, that the prosecutions were preferred against Merceron, and that in furtherance of such proceedings, and to bring the same to a successful issue, certain sums of money belonging to the parishioners were appropriated and applied to the discharge of the expences, and that it appeared by the proof, that the libel charged this money to have been applied to discharge the expenees, after the proceedings had terminated. The Lord Chief Justice overruled the objection, but reserved liberty to the defendant to move to enter a nonsuit. In the course of the trial the defendant offered in evidence other libels published of him by the plaintiff, but not relating to the same subject as that on which this action was brought. The Lord Chief Justice refused to receive this evidence of particular libels, but he did receive general evidence, that before the publication of the libel in question, the plaintiff had published other...
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