Exch. Cham. V. MANSFIELD. we should consider each part of the libel by itself. It consists of two E. T. 1846. distinct charges; the first is, in substance, that the plaintiff and Dr. C. Rooney engaged in a plot to make a false and malicious O'CONNELL charge of felony against a Mr. Stack. To this the plea says, that it is true that the plaintiff falsely and maliciously made that charge, and procured Dr. Rooney to appear on its investigation, in aid and support of it. This, in my opinion, is a very full and substantial assertion of the truth of so much of the libel. The second part of the libel charges, that the plaintiff and C. Rooney had employed means to win the confidence of Stack, their intended victim, in the hope of getting him to themselves, and destroying his prospects, by by some foul charge, which he could have no means to contradict; this, it is to be observed, is introductory to the main charge of the malicious prosecution in the police-office, which the libel says was prematurely opened, by reason of Stack's refusal to accept the invitation to the Continent. In answer to this portion of the libel, the defendant, by his plea, alleges, that the plaintiff did every act, and with the motives and objects, stated in the libel. The plaintiff then objects that the plea is silent as to Rooney's participation in these acts, and as to his motives and acts. This objection is plainly well founded in fact; and then arises the question, was Rooney's participation of the substance of the charge made by the libel against the plaintiff-admitting, as we must do, the truth of the matters of the libel, and plea, as far as the plaintiff is regarded? I am not able to see any substantial difference between the assertion of the plaintiff alone, and the assertion of the plaintiff and another. The moral turpitude of the plaintiff is the same (if the charge be true), whether he acted by himself, or acted in conjunction with Rooney. The guilty participation of Rooney could not aggravate the malignity of the libel if false, nor Rooney's innocence mitigate the degree of the plaintiff's criminality, if the charges against him were true. I, therefore, cannot bring myself to think that, in answer to the present action, it was essential for the defendant to criminate Dr. Rooney-his guilt or innocence being equally immaterial-and am, therefore, of opinion that the substance of the libel is justified in substance, as it affects the plaintiff; and that the plea was sufficient. The objection, however, assumes another and a more technical shape; which is, that the declaration and libel import the specific charge of conspiracy in which the plea does not justify. I admit, they state facts which would be evidence to support such a charge; but when the plaintiff does not, as he might, ascribe to them this meaning, I think that the Court cannot be required to do so; the more especially, because if he had done so, that meaning would have been reasonable, V. MANSFIELD. E. T. 1846. and might possibly have been negatived. In this point of view, it is Exch. Cham. material to remark the plain distinction between the case of a libel O'CONNELL which is only defamatory, because it imputes the crime of a conspiracy, and that before us, in which the libel, whether it imputes conspiracy or not, is per se highly defamatory. In the one case, the calumny would consist solely in the charge of conspiracy; but in the other the libel being defamatory, whether it imputed conspiracy or not, the fair way to treat the declaration is, that it complains of the libel as generally defamatory of the plaintiff; and that the guilt of the action is not the specific crime of conspiracy, though it complains of joint acts and joint designs, which are but evidence of a conspiracy. The counterplea to the challenge is in confession and avoidance of it; it seeks to cast the defendant off his right to rely on the disqualification of the juror, because that was decided on, or might have been decided on, by another tribunal. The plea, therefore, cannot be sufficient in law, if it does not aver all that is requisite, to show that the objection that existed when the juror was struck, is the very same that the challenge relies on in favour of the counterplea-there can be no intendment or presumption. The objection to it is, that it may be true, in point of fact, that the juror was a Town-councillor, both when struck by the officer, and when called on the jury; and yet, from the temporary duration of the office, he might have held it at those respective periods, and been a member of a different body, by virtue of several and distinct elections; and if he did so, the matter of the challenge could not have been the same as that under the cognizance of the officer. This objection could only be removed, by intending that the juror continued to hold the same office, by the same title from the time he was struck on the jury, and the time he was called. Such an intendment, I think, it is not possible to make; and I, therefore, hold the counterplea to be bad. Judgment affirmed. of the bank relation to a TROVER, tried before CRAMPTON, J., at the After-sittings of Hilary The policy. Term 1845. The case came before the Court on bill of exceptions. rupt code is to The action was brought by Valentine O'Connor, as assignee of prevent the Christopher Wilson and George Beere, bankrupts, against John secret act of bankruptcy Harris and two other defendants, to recover certain articles of furniture and some wines alleged to be the property of the bankrupts. The declaration contained three counts. The first count was for goods of the bankrupts before they had become bankrupts, taken and converted by the defendants; the second count was for goods of the bankrupts taken by the defendants, and converted since the bankruptcy; and the third count was for goods of the assignee, taken and converted. Plea the general issue. It appeared that the bankrupts had traded and carried on the business of hotel-keepers in a house called Gresham's Hotel in the city of Dublin, before and in the year 1841. In January 1836, Gresham, the then proprietor of the hotel, had agreed to sell his interest in the hotel, and the furniture and wines therein, to Wilson, for a sum of £30,000–£10,000 to be paid in cash, and the remaining £20,000 to be a lien on the premises, and to be secured by Wilson's bond, and a re-assignment by way of mortgage of the hotel and furniture. For these considerations Gresham conveyed the hotel and furniture, by deed dated the 2nd of June 1836, to Wilson, who, by deed of the same date, assigned over to Gresham the house and furniture by way of mortgage, with a clause of redemption on the payment of the £20,000, and interest half-yearly; and in case of default made for twenty-one days in the payment of interest, Gresham was to enter and sell the house and furniture, Wilson to remain in possession until default. Wilson entered into partnership with Beere more than two months old from the commission, so as to avoid all in termediate bona fide deal- fault in payinterest by B at a certain ment of the the time after it became due; B made default in payment of the interest at the time specified, and subsequently mitted an act of bankruptcy, had no notice; Held, that this thereto com of which A was a convey ance, contract, dealing and transaction by and with the bankrupt, and having been entered into more than two months before the issuing of the commission, was protected by the 95th section of the Bankrupt Act. H. T. 1846. and continued in possession. Gresham had been paid off all but V. HARRIS. bankrupts. It also appeared that the bankrupts were indebted to the plaintiff (the firm of O'Connor and Co.) in various sums (the shares of the profits of this Company were entered in their books to the credit of plaintiff's nephews, who were infants), for wines from June 1841, until September following, and on plaintiff's own draft on the bankrupts for £161 for value received in wines, payable to his own order at two months after date, drawn 15th July 1841, endorsed by the plaintiff, and accepted by the defendants, and also on bills unpaid, one of which was for £161. 10s., dated 20th September 1841. It further appeared that the bankrupts committed an act of bankruptcy on the 4th of September 1841, and that they were at that time in possession and occupation of the hotel and furniture as apparent owners thereof; that on the 27th September one-half year's interest on the mortgage, due on 16th June, being in arrear, the defendants on that day took possession of the hotel and property therein, and on the 28th had an inventory made of the property and furniture, and had all placed in the hands of an auctioneer for sale.. That on the 27th September an officer of the Borough Court seized the goods in the hotel (then in possession of an agent of the defendants) under an attachment at the suit of one Henry Anderson. That a commission of bankruptcy had issued on the 1st of April 1842, upon a supposed act of bankruptcy, in March 1842, on petition of the plaintiff, on which Wilson and Beere were adjudged bankrupts on the 4th of April, and plaintiff was certified the assignee on the 20th of April. In the deed of 2nd June 1836, executed by Gresham to Wilson, amid other articles recited as agreed to be sold, were, "the stock or cellar of wines, liqueures and spirits," &c.; and in the testatum part thereof they were again referred to as "wines, liqueures, spirits, and "other articles, all which are particularly specified in a schedule to "the said indented deed of mortgage annexed," &c. The wines were not specified in this schedule. By a deed of the 16th June 1840, between Gresham of the first part, Wilson of the second part, Beere of the third part, and the defendants of the fourth part, reciting the dealing between Gresham and Wilson, the partnership between Wilson and Beere, that £10,000 remained due to Gresham, which the defendants agreed to advance at the request of Wilson and Beere, and that thereby Gresham a assigned to the defendants, as did Wilson and Beere, the hotel, also the stock, furniture and effects therein, in schedule annexed, subject to redemption by Wilson and Beere on payment of £10,000, with interest at £6 per cent., on the 16th day of June 1845, it was provided that, so long as said interest on £10,000 should be regularly paid within thirty days from the 16th day of December and 16th day of June half-yearly, defendants would not require payment of the principal without giving six months' notice; but if interest was in default for forty days after either day of payment, the defendants might sell and dispose by auction of the hotel and of the furniture and effects, to defray expenses and satisfy the £10,000 and arrears, and pay the surplus to Wilson and Beere, and till default in payment of principal or interest, Wilson and Beere might remain in possession of the hotel, furniture and effects. The wines were not specified in the schedule to this deed either. The defendants, having closed their case, called on the learned Judge to give certain directions to the jury. First, that there was no sufficient evidence of a petitioning creditor's debt to support the commission; second, that at the time of the alleged bankruptcy the debt claimed to be due from the bankrupts to the plaintiff, was due to him and other persons as his partners; third, that on the 27th of September 1841, the defendants were entitled to take possession of all the goods and chattels, of which they did take possession; and that the commission of bankruptcy not having issued within two calendar months after the 27th September 1841, the plaintiff was not entitled to recover; fourth, that, supposing the defendants were not entitled to all the goods, yet they were entitled to such as were assigned by the deed of 2nd June 1836; fifth, that if not entitled to all, they were entitled to those that passed by the mortgage of 2nd June 1836; sixth, that they were entitled to those specified in the schedule of that mortgage; seventh, that if not entitled to all, they were entitled to the wines, spirits, &c., which were in Gresham's hotel on the 27th of September 1841; eighth, that they were entitled to them by the deed of 16th June 1840; ninth, that they were entitled to those mentioned in the schedule to that deed; tenth, that they were entitled to the wines, spirits, &c., in the hotel on the 16th June 1840; eleventh, that they were entitled to such furniture as was brought into the hotel by the bankrupts between the 16th June 1840, and 27th September 1841. The learned Judge refused to give such directions, and told the jury to find for plaintiff for the value of all goods, &c., as well those comprised in the several indentures and the schedules thereto, as those which were not so comprised; and the H. T. 1846. บ HARRIS. |