*681] *It was proved by a witness named Susan North, that a pickage containing a bed and other articles was left by the *plaintiff at *682] her husband's house at Fulham, to be carried to London by one

of the carts of the defendant, who was a carrier from Fulham to London. She said, "We are in the habit of receiving goods for Mr. North to carry. My husband drives one of Mr. North's carts, and ours is a receiving-house for parcels to be carried by his carts from Fulham to London. There is no payment made to us."

ERLE, J.-That is not material. If the defendant allow these persons to receive parcels to be conveyed by him as a carrier, that is quite enough.

W. H. Watson, for the defendant, proposed to ask this witness what direction was on the parcel.

Horrie, for the plaintiff.—The parcel is traced to the defendant, and if he wishes to give evidence of the direction, he must produce it. ERLE, J.-I think that this evidence of the direction of the parcel is receivable.

The evidence was received.

Evidence was afterwards given in support of the fourth plea.

Verdict for the plaintiff on the first three issues, and for the defendant on the fourth issue.

Horrie, for the plaintiff.

W. H. Watson, for the defendant.

[Attorneys-Hall, and Melson.]

to wit, on the day and year in that behalf therein mentioned, the plaintiff removed and took the goods and chattels in the declaration mentioned, then being the property and in the possession of the plaintiff, from and out of the said messuage and premises, with the appurtenances, so held by him of the said Daniel Alsop as aforesaid, and delivered the same goods and chattels to the defendant, with the intent on his, the plaintiff's part, wrongfully to defraud the said Daniel Alsop of the said rent, and to prevent the said Daniel Alsop from distraining the said goods and chattels for the said rent, wrongfully and fraudulently, and against the form of the statute in such case made and provided; and the defendant avers, that, save as last aforesaid, there never was any delivery of the goods and chattels in the declaration mentioned, or any of them, by the plain.iff to him, the defendant. And the defendant further saith, that after the said delivery to him as last aforesaid, and as in the declaration mentioned, and while the said goods and chattels were in his the defendant's possession, and within thirty days next after the said fraudulent removal of the said goods and chattels by the plaintiff, and before the commencement of this suit, to wit, on the day and year last aforesaid, the said Daniel Alsop took and seized the said goods and chattels, and all and every of them, as a distress for the said rent so due and owing to him from the plaintiff as aforesaid, and removed the same out of his the defendant's possession. And this the defendant is ready to verify, &c."

(Signed) "G. L. BROWNE."

"Replication.—And the plaintiff, as to the plea of the defendant by him lastly above pleaded, says, that he the plaintiff did not fraudulently, or against the form of the statute in such case made and provided, remove or take the said goods and chattels in the said declaration mentioned, or any or either of them, or any part thereof, from or out of the said messuage and premises in the said last plea mentioned, nor did he deliver the said goods and chattels, or any or either of them, or any part thereof, to the defendant, with the intent on his, the plaintiff's part, to defraud the said Daniel Alsop of the said rent in the said last plea mentioned, or any part thereof, or to prevent the said Daniel Alsop from distraining the said goods and chattels, or any or either of them, or any part thereof, for the said rent, or any part thereof, in manner and form as in the said last plea is in that behalf alleged, and this the plaintiff prays may be inquired of by the country, &c."

*Sittings at Westminster after Hilary Term, 1848.

BEFORE MR. JUSTICE ERLE.

[*683

THE DUKE OF BRUNSWICK v. PEPPER. Feb. 8.

In an action for a libel, the defendant at first pleaded Not guilty, but afterwards pleaded to the further maintenance of the action, that the plaintiff had recovered damages against another person for the same grievances. New assignment, that the present action was brought for other and different grievances. Plea to the new assignment, Not guilty :-Held, that this did not admit the innuendoes, and that, by pleading Not guilty to the new assignment, the defendant had raised precisely the same issue as if the libel new assigned had been set out in the declaration, and the defendant had pleaded Not guilty to it.

LIBEL. The declaration stated, that the defendant published two libels of and concerning the plaintiff, and in the declaration there was a prefatory allegation and innuendoes respecting a person named Hocker. Pleas (as originally pleaded on the 9th of July, 1846), first, not guilty: and second, a denial of the prefatory allegation as to Hocker.

On the 25th of June, 1846, the defendant pleaded to the further maintenance of the action a plea, that the grievances in the declaration mentioned were committed jointly by the defendant and M. F. Pearson, and that the plaintiff had, within eight days before the pleading of this plea, recovered judgment against M. F. Pearson for the same grievances.(a) *To this plea the plaintiff new assigned that he issued his writ and declared thereon for other and different grievances

(a) This plea and the new assignment were in the following form :

Plea." The 25th day of June, A. D., 1846.

[*684

"And now at this day, to wit, on the 25th day of June, A. D. 1846, comes the defendant by his aforesaid attorney, and says that the plaintiff ought not further to maintain his aforesaid action against the defendant, because the defendant says that the said supposed grievances in the said declaration above mentioned were, and each and every one of them, and every part thereof, was committed jointly and at the same time by the now defendant and one Matthew Flinders Pearson, and that the said grievances were not, nor was any of them, or any part thereof, committed by the defendant alone, without the said Matthew Flinders Pearson. And the defendant further says, that the plaintiff heretofore, and after the accruing of the said several causes of action in the declaration mentioned, to wit, on the 13th day of March, A. D. 1845, in the Court of our Lady the Queen, before the Queen herself at Westminster, in the county of Middlesex, impleaded the said Matthew Flinders Pearson in an action on the case for the committing by the said Matthew Flinders Pearson of the very identical same grievances, and each and every of them above in the said declaration in this action mentioned, and for in and respect of the same identical causes of action in the said declaration in this action mentioned, and such proceedings were thereupon had in the said Court in the said action against the said Matthew Flinders Pearson, that, afterwards, and within eight days before this day, to wit, on the 19th day of June, A. D. 1846, the plaintiff, by the consideration and judgment of the said Court, recovered in the said action, against the said Matthew Flinders Pearson, one farthing for the damages which the plaintiff had sustained on occasion of the same identical grievances in the said declaration mentioned, whereof the said Matthew Flinders Pearson was convicted, as by the record and proceedings thereof still remaining in the said Court of our said Lady the Queen, before the queen herself, here more fully appears, which said judgment still remains in full force and effect, not in anywise annulled, reversed, made void, or satisfied. And the defendant further says, that the said grievances and causes of action in the declaration in the said action mentionea, and for and in respect whereof the plaintiff so recovered in the said action against the said Matthew Flinders Pearson as aforesaid, and whereof the said Matthew Flinders Pearson was so convicted as aforeVOL. II.-56

*685]

*than those in the plea mentioned. To this new assignment the defendant pleaded not guilty.

The Duke of Brunswick having opened his case, and tendered evidence to show that Hocker had been supposed to have been guilty of unnatural practices, a question arose whether, upon these pleadings, the innuendoes contained in the declaration was admitted. It was suggested on the one side, that the only matter in issue was, whether the defendant. had published a different copy of the libels set out in the declaration from that which had been given in evidence against Pearson, the defendant in the former action, and that the plea admitted the innuendoes, so that they were not in issue. But, on the other side, it was insisted that the plea of not guilty to the new assignment raised the very same issue as the plea of not guilty would have done if the libel new assigned had been set out in the declaration, and not guilty pleaded thereto.

ERLE, J.-I think the latter is the correct view. The new assignment in substance alleges that the defendant has mistaken the cause of action in respect of which the plaintiff has complained. And the defendant by pleading not guilty thereto has raised the same issue precisely as if the libel new assigned had been set out in the declaration, and the defendant had pleaded not guilty only.

The evidence was then admitted, and evidence was given to show a publication of the libels by the defendant, different from that on which the plaintiff had recovered in the action against M. F. Pearson. Verdict for the plaintiff-Damages, 1,000l. *The plaintiff in person.

*686]

Cockburn and Hugh Hill, for the defendant.

[Attorneys-R. Warneford and Crocker.]

said, were and are, and each and every of them, and every part thereof, was and is the same identical grievances and causes of action in the declaration in this action mentioned, and for and in respect whereof this action has been brought, and not other or different. And this the defendant is ready to verify; wherefore he prays judgment, if the plaintiff ought further to maintain his aforesaid action thereof against him."

"New Assignment.-The 10th day of August, a. D. 1846.

(Signed) "HUGH HILL."

"The plaintiff says, that he ought not to be precluded from further maintaining his aforesaid action, because he says that he issued his writ and declared thereon, not for the grievances in respect whereof the said judgment was so recovered as in the plea of the defendant is mentioned, but for other and different grievances than those in the said plea mentioned, to wit, for that the defendant heretofore, and at another and different time, to wit, on the day in the declaration mentioned, and in another and different newspaper, to wit, The Satirist, or Censor of the Times,' and at other and different places than the time, newspaper, and places in respect whereof the said judgment was recovered, committed the grievances in the declaration mentioned, in manner and form as is therein alleged; and this the plaintiff is ready to verify; where fore, inasmuch as the defendant has not answered the last-mentioned premises, he prays judg ment, &c." (Signed) "ROBERT LUSH."

Sittings in London after Michaelmas Term 1847.

BEFORE LORD CHIEF JUSTICE DENMAN.

CLEMENTS v. OHRLY. Dec. 16.

In an action for malicious prosecution, a person is liable who gives evidence in support of the charge, and who represents himself as preferring it, although it is preferred at some other per. sons' expense, and such other persons have told him that he shall be a witness only, and they employ the counsel and solicitor; and if it be shown that, during the examination on the charge, such person is in his hearing repeatedly alluded to as prosecutor, and does not deny that character, this is evidence from which a jury may infer that he represented himself as the person preferring the charge.

Similarity of handwriting is not, per se, and without other circumstances, "probable cause" for preferring a charge of forgery against a person whose handwriting is like that of a forged instrument.

CASE for malicious prosecution.-The declaration stated, that the defendant, on the 23d of January, 1847, went before Michael Gibbs, Esq., a magistrate, and "falsely and maliciously, and without any reasonable or probable cause whatsoever, charged the plaintiff with having feloniously forged a certain acceptance to a certain bill of exchange, for the payment of 500l., with intent to defraud Richard Fuller and Another," against the statute, and caused the said M. Gibbs to issue his warrant to apprehend the plaintiff for the said supposed offence, and that the plaintiff was so apprehended and taken before the said M. Gibbs, and obliged to enter into a recognisance for his appearance; and that he did afterwards appear before Sir George Carroll, Lord Mayor of London, a justice, &c., when the defendant falsely and maliciously, and without probable cause, persisted in the said false charges against the plaintiff, "but which said last-named justice, having heard and considered all that the defendant and his witnesses could say or allege against the plaintiff, touching and concerning the said *supposed offences, [*687 or either of them, then, to wit, on, &c., adjudged and determined that the plaintiff was not guilty of the said supposed offences, and then caused the plaintiff to be discharged out of custody, fully acquitted and discharged of the said supposed offences, and the defendant hath not further prosecuted his said complaint, but hath abandoned the same, and the said complaint and prosecution is wholly ended and determined." By reason of which, &c., the plaintiff hath been and is greatly injured, &c.

Plea-Not guilty.

It appeared, that, on the 23d of January, 1847, the defendant, accompanied by a clerk of Messrs. Fuller, the bankers, procured a warrant from Alderman Gibbs to apprehend the plaintiff, 66 to answer to all such matters and things as on her Majesty's behalf shall be objected against him by Henry Gerard Ohrly, for feloniously forging in this city a certain

acceptance to a certain bill of exchange for the payment of £500, with intent to defraud R. Fuller and another, against the form of the statute." On this warrant, which was drawn by Mr. Goodman, the chief clerk at the Mansion House, the plaintiff was apprehended and taken before Alderman Gibbs, on the 12th of February, 1847, when the present defendant deposed that he believed that the direction in the corner of the bill was in the plaintiff's handwriting, from its similarity to the plaintiff's handwriting. (a) The plaintiff then entered into a recognisance to appear again on the 26th of February, 1847. On that day Mr. Clarkson, who had, on the 12th of February, attended as counsel for the prosecution, attended again, as did the present plaintiff and defendant; Mr. Edwin James and Mr. Kearsey appearing as counsel and solicitor for the present plaintiff. On that examination, several witnesses disproved the handwriting of the present plaintiff, to every part of the bill and acceptance; and it *688] was proved by Mr. *Kearsey, that, at the end of that examination, Mr. Edwin James said, "Mr. Clarkson, I call on you as counsel for Mr. Ohrly to withdraw the charge," and that Mr. Clarkson did so. On the examination on the 26th of February, 1847, a short-hand writer attended, and his notes were, by consent, read in evidence on the present trial, and from them it appeared that on four occasions during that examination the present defendant was alluded to as being the prosecutor, in the following manner :

Mr. James." I ask my friend, whether, as counsel for Mr. Ohrly, he presses the charge?" Mr. Clarkson.-"I shall take the liberty of respectfully withdrawing the case from your lordship's notice. At the same time I beg to state, that, although I adopt that course, I do so without bating one jot of my respect for the testimony given by Mr. Ohrly. I have no doubt, from that statement, as to the propriety of the steps he has taken."

Mr. Clements." I cannot think of allowing so foul an aspersion of my character to rest where it is."

Mr. Clarkson.—“I have no doubt Mr. Ohrly will be ready to meet anything before another tribunal."

Mr. James." The question now is for a jury to decide, whether there were reasonable or probable grounds for supposing that Mr. Clements had been a party in the forgery of this bill, and whether Mr. Ohrly was justified in bringing such a charge against him.”

It was opened by Sir F. Thesiger, for the defendant, that the present defendant had not made any charge whatever against the present plaintiff; but that Messrs. Fuller the bankers had paid the forged bill, and that they were the prosecutors of the charge against the plaintiff; and that the present defendant was a witness only; and that the Messrs. Fuller, before making the charge, had taken the opinion of Mr. Clarkson, he being their counsel at both the examinations. He cited the case of Eagar v. Dyott & Harman, 5 C. & P. 4.

*689] *It was proved by Mr. James Taylor, that he was employed by Messrs. Fuller as their solicitor to prefer the charge against the present plaintiff, and that he did so, and retained and consulted Mr. Clarkson on their behalf and at their expense; and that the defendant

(a) The bill purported to be a bill for £500, drawn by B. Taylor on and addressed to Mr. H. G. Ohrly, Hackney, and accepted by him.