THE QUEEN

V.

WALLACE.

H. T. 1853. have been quite accidental, and not noticed until the CHIEF JUSTICE Queen's Bench left the Court. I do not think that that ought of itself to vitiate the verdict, unless some valid objection could be urged thereto on account of the defendant having been prejudiced by the separation. I find that in several cases consent to the separation has been given, and in others consent has not been given, and yet the verdicts were upheld.

With respect to the question of malice, I hold that malice is an essential ingredient in a libel, and the late statute recognises this to be so. Malice consists in the intention to effect the injury and mischief imputed. What a man intends is to be inferred from what he does. If the terms of a document are calculated to injure, the intent may be inferred without the aid of extrinsic evidence. Such an inference the defendant may rebut, by adducing evidence to prove that the publication took place under circumstances which rebut the inference of malice; but, in the absence of such proof, the natural consequence of the words must ensue. We cannot dive into the heart of man. We must draw our conclusions as to his intentions from overt-acts, if such intention be apparent upon their face, and no evidence be adduced to rebut the inference. As to the case of The King v. Harvey, I shall simply repeat the judgment of Bayley, J., altering but one word. He says:-"A party must be "considered in point of law to intend that which is the necessary

or natural consequence of that which he does." I would rather say-"A party must be considered in point of common sense to "intend that which is the necessary or natural consequence of that "which he does." The same Judge continues :-" If I utter "defamatory language of a particular person, the presumption is "that I mean to do him a mischief." This appears to me to be a rule deducible from common sense. In the present case, looking at the terms of the present publication, which impute murder and cowardice, I feel no doubt that it is defamatory, and imports express malice. Therefore I see nothing to raise a question of the propriety of the verdict.

LEFROY, C. J.

I am glad that this motion has been made, as it has afforded an

Queen's Bench
THE QUEEN

v.

WALLACE.

opportunity of vindicating the law, and putting an end, I hope for H. T. 1853. ever, to the attempt to shake one of its main foundations by this species of question. If the test were to be what has been suggested, we should be involved in a metaphysical, impracticable, subtle inquiry-just as my Brother PERRIN has said in words that occurred to myself when the jury raised the question. That would be really calling upon a tribunal, utterly incompetent, to search the heart and mind, to ascertain that, whereby, according to the argument which has been urged upon us, it should decide. I do not know how the reputation of any man could be safe if such a construction of the law could be established as that which has

been urged upon us.

My Brother MOORE desires me to say, he concurs in the judgment of the Court.

Rule refused.

H. T. 1853.
Exch. Cham.

Jan. 22, 26.

Exchequer Chamber.

KIRWAN, in Error, v. JENNINGS and HARGREAVE.

(Error from the Court of Exchequer).

A and B, on AsSUMPSIT, for money had and received-Plea, the general issue.

the 30th of

May, issued a The case was tried before Pigot, C. B., at the Sittings after Hilfi. fa. against

the goods of ary Term 1849, when the jury found a special verdict, which stated

C, and there

was delivered that the plaintiffs below (the defendants in error) had obtained a

therewith a

letter from A judgment in Easter Term 1848 against one James Porteous, on and B to the which judgment a writ of fieri facias had issued, tested 26th of May

Sheriff, stating

that "they did

not wish to sell at present, unless he was forced by some other execution creditor, their object being to protect the property for the good of all the creditors of C, as the property would be forthcoming; they, placing reliance and confidence in C, did not wish any exposure at the present." On the 3rd of June they wrote a second letter, stating, "they supposed the Sheriff had taken possession under the execution ere that; if he had not, they directed him to do so, as they apprehended other executions would be sent in shortly, and directing the Sheriff to expose the defendant in execution as little as possible, as they had confidence in him; and that if a bailiff were sent, he should act as discreetly as possible." The Sheriff seized on the 5th of June, and on the following day an execution, at the suit of E and F, came in. The Sheriff sold on the 10th, and paid a portion of the proceeds to A and B, retaining the balance in his hands; and on the 15th of June, he made a return to the writs at the suit of E and F, stating, that he had no goods in his hands, save those seized under the prior execution. On the 6th of November, he made a return to the first writ, stating he had levied £211, out of which he paid £106 to A and B, and that he retained the balance in his hands in consequence of conflicting claims. On the 10th of November an application was made to the Court of Exchequer by A and B, requiring him to amend his return, and to pay over to them the balance in his hands. The Sheriff appeared on that motion, as also Counsel on behalf of E and F; and the Sheriff applied for an interpleader order. The Court refused to hear Counsel on behalf of E and F, and directed the Sheriff to pay over the balance to A and B.

An action having been brought by E and F against the Sheriff, for money had and received, a special verdict was found, setting forth the above facts.

Held, affirming the judgment of the Court of Exchequer, that under the circumstances the Sheriff was responsible to the plaintiffs for money had and received to their use.

Held also, that the order made by the Court of Exchequer was no answer to the plaintiffs' action, they not being parties to that order.

Held also, that the effect of the letters of 30th of May and 3rd of June was to suspend the execution of the writ by sale of the goods, until and unless another execution came in.

Held also, that the suspension order operated as a withdrawal of the execution; and the writ lodged subsequently in point of time acquired priority in point of law over the first writ.

*PERRIN, J., and RICHARDS, B., absentibus.

Exch. Cham.

KIRWAN

ບ. JENNINGS.

1848, directed to the defendant below (the plaintiff in error) as She- H. T. 1853. riff of Mayo. That the defendant got the writ on 6th June following, same having been delivered to his Returning-officer in Dublin, on the previous day. That, on the 29th May previous, a prior writ of fieri facias had been lodged with the Returning-officer against the goods of Porteous, at the suit of James Harshaw and Sophia Asken, as assignees of one Benjamin Wilson, which reached the Sheriff on the 30th; and on the 31st May the Sheriff received the following letter from the attorney of Harshaw and Asken :

"HARSHAW and ASKEN

v.

PORTEOUS.

SIR,

"I yesterday delivered an execution

"to Mr. Fitzgerald, your Returning-officer, at the suit of plaintiffs, against the defendant's goods and chattels, for the sum of £580. "The defendant resides at Ballina, and is a shopkeeper. The plain"tiffs do not wish at present to sell, unless you are forced by some "other execution creditor, the object being to protect the property "for the good of all the creditors of the defendant. The property, I "understand, will be forthcoming. The plaintiffs place both reliance "and confidence in the defendant; therefore they do not wish any expense at the present. I have written to them by this post for "the amount of your fees. I consider you have a right to be paid "them; but I am sure you will not, under the circumstances,

charge the full fees, and indeed Mr. F. mentioned you would act "liberally under the circumstances."

On the 3rd of June, Galvin wrote a second letter to the Sheriff, in the following terms:

"SIR-I suppose you have taken possession under the execution "in this cause ere this. If not, do so, as I am apprehensive others "may be sent shortly. This will ensure you your fees, and secure us "at the same time. I would not expose the defendant but as little as possible, as the plaintiff appears to have confidence in him. "Should you send a bailiff, then let him act as discreetly as possi"ble." "M. GALVIN."

66

(Signed)

On the 7th June 1848, a notice was received by the Sheriff, from the attorney for the plaintiffs (below), apprising the Sheriff of an 7 L

H. T. 1853. alleged error in the memorandum of the assignment of the judgment

Exch. Cham. by Wilson to Harshaw and Asken, which error was amended on the

KIRWAN v. JENNINGS.

9th June following.

The special verdict further found that the goods were, on the 5th June 1848, seized by the Sheriff under the writ so lodged on the 29th of May; that the seizure was made at Ballina before the writ at the suit of Jennings and Hargreave reached the hands of the Sheriff; and on the 10th of June following the goods were sold, the proceeds amounting to £211, out of which sum the Sheriff paid £106 to Galvin, as attorney for Harshaw and Asken, retaining the balance in his hands; and on the 15th June 1848, he made the following return to the writ of Jennings and Hargreave :-"I certify "that the within-named defendant had not any goods or chattels in "my bailiwick at the time of the delivery to me of the within writ, "or at any time since, whereout I could levy the within-mentioned "sum, or any part thereof, as I am commanded, save goods and chat"tels to the value of £211, which I seized and sold by virtue of a "certain former writ of fieri facias, tested 27th May last, issued at "the suit of J. Harshaw and W. Asken, against the defendant, "marked for the sum of £580, and which last-mentioned writ was "delivered to me on the 30th of May last, and prior to the delivery "of the within writ; and I further certify, that the defendant had "not and has not any other goods or chattels within my bailiwick, "whereout I could levy the within sum, or any part thereof."

It further found, that this action was commenced on the 2nd August 1848, and on the 6th November 1848 the following return was made by the Sheriff to the writ, at the suit of Harshaw and Asken:

"By virtue of the writ to me directed, I have seized and sold "goods and chattels of J. Porteous, to the value of £211, the pro"ceeds whereof, to the amount of £106, I handed over to the agent "of the plaintiffs, and the residue whereof I have in my hands, and "which I have retained in consequence of the conflicting claims "thereto of the plaintiffs."

It further found that a conditional order had been granted by the