Kennedy v Hilliard (1859)

• Jurisdiction: Ireland
• Judgment Date: 11 June 1859
• Date: 11 June 1859
• Court: Unspecified Court

Exchequer.

KENNEDY

and

HILLIARD.

Damport v. SympsonENR Cro. Eliz. 520; also reported in Owen, 158.

Twogood v. SpyringENRUNK 1 C., M. & R. 181; S. C., 4 Tyrw. 582.

Harrison v. Bush 5 Ell. & Bl. 344.

Case of Sir William WilliamsST1 13 State Trials, 1384; Com. Dig. (F. 22).

Westover v. Daubinet 1 Roll. Abr. 33, pl. 1.

Weston v. DobnietENR Cro. Jac. 432.

Eyres v. Sedgewicke 1 Roll. Abr. 33, pl. 2.

Hunter v. AllenENR Palmer, 188.

Cutler v. Dixon 4 Coke's Rep. 14 b.

Anfield v. FeverhillENRENR 2 Bulst. 269; S. C., 1 Roll. Rep. 61.

Moulton v. Clapham Sir W. Jones, 431, March 10.

Hodgson v. ScarlettENR 1 B. & Ald. 264.

Lake v. KingENR 1 Saund. 131.

Revis v. Smith 18 Com. B. 138.

Astley v. Young 2 Bur. 807.

Hodgson v. ScarlettENR 1 B. & Ald. 232.

Gibbs v. PikeENR 1 Dowl. P. C., N. S., 414; S. C., 9 M. & W. 358.

Fairman v. IvesENR 5 B. & Ald. 645.

Revis v. Smith 18 Com. B. 141.

Lord Beauchamp v. CroftsENR 3 Dy. 285 b.

Weston v. Bobniet 1 Roll. Abr. 33.

Aier v. Redgwit 1 Roll. Abr. 33.

Cutler v. DixonENR 4 Co. Rep. 14 b.

Hunter v. AllenENR Palmer 188.

Aire v. SedgwickENR 2 Roll. Rep. 198.

Ram v. LamleyENR Hut. 113.

Aire v. SedgwickENR 2 Roll. Rep. 197.

Maloney v. BartleyENR 3 Campb. 210.

Trotman v. DunnENR 3 Campb. 211.

Astley v. YoungENR 2 Burr. 807.

Lake v. KingENR 1 Saund. 136.

Buckley v. WoodENRENR 4 Coke, 14; S. C., 4 Cro. Eliz. 230, 248.

Gwinne v. PooleENR 2 Lutw. 1571.

Lake v. KingENR 2 Keble, 832.

Buckley v. Wood Moore, 705.

Regina v. LaveyENR 3 C. & K. 26.

Lessee of Lord Trimlestown v. Kemmis 1 Jebb & Sym. 587.

Rex v. Skinner Lloft, 55.

Astley v. Young 2 Bur. 811.

Harding v. BodmanENR Hutt. 11.

Weston v. DobnietENR Cro. Jac. 432.

Ayres v. SedgwickENR Palm. 142.

Cutler v. DixonUNK 4 Rep. 14 b.

Beauchamps v. CroftENR 3 Dyer, 285 a.

Arundell v. TregonoENR Yelv. 116.

Anfield v. FeverhillENR 2 Bulst. 269.

Maloney v. BartleyENR 3 Camp. 210.

Trotman v. DunnENR 4 Camp. 211.

Ayres v. SedgwickENR Palm. 145.

Revis v. SmithENR 18 C. B. 126.

Brook v. MontagueENR Cro. Jac. 90.

Hodgson v. ScarlettENR 1 B. & Ald. 232.

Anonymous caseUNK 4 Mad. 252.

Williams v. DouglasENR 5 beav. 82.

Hodgson v. ScarlettENR 1 B. & Ald. 247.

Flint v. PikeENR 1 B. & C. 473.

COMMON LAW REPORTS. 195 evidence, tending, however (differing in that respect from the inforÂmation before us), in a considerable _degree (if it had been legal proof), to inculpate the plaintiff. But although Lord Chief Justice Tindal, in delivering judgment, observed, " That the information "does not disclose any legal evidence of the guilt of the prisoner is " undoubtedly true ; it states nothing beyond mere hearsay, upon " which neither Judges nor juries could act," he added, "But, at "the utmost, this amounts to no more than an error in judgment on "the part of the Magistrate ; and no case can be found in which a "Magistrate, acting within his jurisdiction, has been held liable, in "an action of trespass, for a mere error in judgment." And the Court accordingly held, that the plaintiff could not sustain an action of trespass for an imprisonment under the warrant. In the present case the defendant can have no benefit from the principle on which Cave v. Mountain was decided ; because here the information conÂtained nothing which, by any possible intendment, could be conÂstrued to convey a criminal charge. The parol evidence of Fullam being excluded, it was the simple case of a proceeding which, upon the summons, the information and the warrant was, in substance and in form, the unlawful exercise of magisterial power to enforce, withÂout jurisdiction, a civil claim. _KENNEDY v. HILLIARD. E. T. 1859. "lira 16. June 11. LIBEL.-The plaintiff, in the third paragraph of the summons and No action lies against a par- plaint, complained that defendant falsely and maliciously composed and ty, for - a state ment in an affi- published of the plaintiff, and caused and procured to be published davit, made by him as a of him, a certain false, scandalous, malicious and defamatory libel, witness, in the course of in a certain document, entitled, Charles Kennedy, Esq., adminis- cause, a although such statement was irrelevant, and was expunged from the affidavit as prolix, impertinent and scandalous, by an order of the competent Court. Gildea v. Brien (H. T. 1821, C. P.) followed. COMMON LAW REPORTS. E. T. 1849. 'trator of John Kennedy, deceased, petitioner ; Edward Connor, EttehiltNer• respondent ; Charles Kennedy, petitioner ; Edward Kennedy and litNNRDY others respondents : in one part of which libel there was and is HILLIARD. contained the following false, scandalous, malicious and defamatory matter, that is to say :-" And the administration granted by the " Prerogative Court (meaning thereby administration of the goods "and chattels of one John Kennedy, brother of the plaintiff), to "the petitioner (meaning the plaintiff), being obtained by him " upon a palpable mis-statement, and suppression of facts, as deÂ" ponent (meaning the defendant) believes (meaning thereby that " the plaintiff suppressed facts, and swore what was palpably " false, in order to obtain administration), the petitioner (meaning "the plaintiff), having induced the Court to believe that he had "actually made personal searches and inquiry in the Sandwich "Islands for the purpose of discovering his brother (meaning the "said John Kennedy), when, in point of fact, he (meaning the " plaintiff) had never laid foot there, as deponent (meaning the " defendant) believes, but, as appeared from the facts, had cautiously avoided that quarter " (meaning thereby that the plaintiff falsely swore that he had made searches and inquiries after his brother, which he did not make, to induce the Court to believe that his brother was dead, in order that he might obtain administration, and that it was by such false swearing and suppression that plainÂtiff had induced the Prerogative Court to grant to plaintiff the administration to his brother, which had been granted to plaintiff ). Plea.-That the publication therein complained of was in and by the said affidavit in the first defence to the first count menÂtioned, and that the document in said third count mentioned was and is said affidavit; and defendant, to avoid prolixity, refers to said first defence, and relies thereon, and prays that said first defence shall be incorporated into and deemed part of this defence, and claims his privilege as therein claimed and relied on ; and the said first defence referred to is as follows :-That the plaintiff was the petitioner in the several cause petition matters pending in the High Court of Chancery in Ireland, in one of which Edward Con nor was respondent, and in the other Edward Kennedy and others COMMON LAW REPORTS. 197 were respondents, being the matters of Kennedy petitioner, and E. T. 1859. xeequer. Connor respondent, and Kennedy petitioner, and Kennedy and Ek others respondents, and William Cullen, one of the solicitors, was RENNED'r v. the solicitor, and the defendant, being a barrister-at-law, was of HILLIARD. Counsel for the plaintiff as such petitioner therein ; and the plainÂtiff, as such petitioner in said matters, incurred certain costs to the said William Cullen, comprising charges for attendance, given to the plaintiff as such petitioner, and for a fee paid to the defendant as such Counsel by the said William Cullen, in reference to the said cause petition wherein Edward Connor was respondent ; and the said William Cullen afterwards died, having duly made his last will and testament, and thereby nominated this defendant the sole executor thereof, and probate of the said will was afterwards duly granted forth of the proper Court to this defendant, who thereupon became, and still is, such executor and legal personal representative of the said William Cullen; and being such executor, and said costs being due and unpaid, the defendant, as his duty was, caused to be furnished to the plaintiff bills of costs in that behalf, and the plaintiff had furnished a requisition to tax said costs, pursuant to the course of said High Court of Chancery, and same were duly referred to Edward Tandy, Esq., one of the Taxing-masters of said Court, having lawful and competent authority in that behalf, to tax and ascertain the same ; which said costs, being in process of taxation before said Master, were objected to in divers particuÂlars by the plaintiff; and the said Edward Tandy, as his duty was, in the execution of his said office, proceeded to inquire and adjudiÂcate thereon ; and the defendant says that, whilst said bills of costs were so under taxation and adjudication, the plaintiff, on the 6th of May 1858, in order to sustain his said objections before said Taxing-master, filed an affidavit, duly sworn by him before the proper officer of said Court of Chancery, entitled in said cause petition matters, and afterwards caused notice to be given to the defendant that he had filed same, and that same would be used before said Master on said taxation ; and thereby, amongst other imputations on the said William Cullen, and on the defendant, stated and sug gested, in reference to said attendances and fee, that said attendances 198 COMMON LAW REPORTS. had not been given by said William Cullen, and that said fee had not been bona fide earned by this defendant, inasmuch as he thereby stated to the effect that certain services theretofore rendered to him by another Counsel had rendered the preparation of said cause petition by the said William Cullen a light and easy task, and that this defendant appeared to him to be acting more in the capacity of an assistant to the said William Cullen, in the conduct of his business as a solicitor, than as a barrister ; in answer to which said affidavit of the plaintiff, this defendant, being party to said taxation, as aforesaid, swore and used for the...