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shall perform a stipulated task, which it cannot do. The responsibility certainly lies upon the contract."
Verdict—For the plaintiff, damages 501.
Chief Justice—" Gentlemen of the Jury, you will recollect that pounds are always guineas on the turf!"—The verdict was accordingly altered to guineas.
Ditchburn v. Goldsmith.—This was an action between inhabitants of Gravesend, upon a wager laid by the defendant, who was a preacher of the doctrines of the late Johanna Southcott, of 200<. to lOOi. that she would be deliTered of a male child on or before the 1st of November last. Before Mr. Serjeant Best could state the plaintiff's case, Mr. Serjeant Onslow, for the defendant, objected on the grounds of indecency and ludicrousness that this action ought not to be tried, and cited Da Costa v. Jones (Cowp. 739.) which was a wager upon the sex of Chevalier D'Eon, in which Lord Mansfield held such wagers void as would " affect the interest or the feelings of a third person; for instance, that such woman has •ommitted adultery, or that an unmarried woman has had a bastard." In that case the defendant's counsel objected at the trial, that the plaintiff ought not to recover, because it was a wager upon a question tending to introduce indecent evidence: to tins it was answered, that the objection was upon the record, and Lord Mansfield being of that opinion, overruled the objection; but afterwards, when the case came before the whole court in arrest of judgment, his Lordship Vol. LV11.
said he was sorry that the answer given to the objection made at the trial " that it appeared upon the record" had been so hastily given way to by him; for though the indecency of evidence is no objection to its being received where it is necessary to the decision of a civil or criminal right, yet the witnesses should have been told that they might refuse to give evidence in a case where two men, by laying a wager concerning a third person, would compel his physicians, relations, and servants, to disclose what they knew relative to the subject of the wager. The learned serjeant added, that the subject of the present wager, Joanna Southcott, was a single woman.
Mr. Serjeant Best answered, that Lord Mansfield, in the very case cited, said " a wager whether the next child shall be a boy or a girl hurts no one;" and he should be able to prove, that the defendant had, in one of his public lectures, declared that Johanna Southcott was to be married by proxy, that the child might not be born a bastard.
The Lord Chief Justice (Gibbs) said, his difficulty was not whether the present action was maintainable, but whether any Judge had on that account refused to try a cause.
Mr. Serjeant Onslow and Mr. Cornyn, for the defendant, instanced Lord Loughborough, who in an action upon a wager " whether there are more ways than 6 of nicking 7 on the dice, allowing 7 to be the main and 11a nick to 7," ordered the cause to be struck out of the paper; and the whole Court of Common Pleas afterwards refused leave to restore it U (2H.
('2 H. B. 43); and Lord Ellenborough, who refused 'to try an action on a wager on a point of law in which the parties have no interest, and the whole Court of King's Bench afterwards agreed in the propriety of such refusal (SCanipb. 40H).
The Lord C. J. Gibbs stopped further argument by saying that he would suffer the cause to proceed with a view of making an end of such cases, out of mercy to the parties.
Mr. Serjeant Best then stated his case, and proved by William Gordon that the bet was made at Gravesend on the 5th of September last, and by Dr. Reece, that Joanna Southcott was never afterwards delivered of any child. Upon cross-examination by Mr. Serjeant Onslow, the Doctor said that he had never heard of her having a husband, and that she passed for a single woman.
Lord C. J. Gibbs.—Now that the wager involves the question of a single woman having a child, I won't proceed with the cause.
Mr. Campbell (with Mr. Serj. Best) suggested, that the woman herself gave out that she was with Child, and prophesied that that child would be a male, born before the 1st of November. Were she alive, therefore, she would have no right to complain of her feelings being hurt.
Lord C. J. Gibbs.—So I am to trv the extent of a woman's chastity and delicacy in an action upon a wager. 1 chose to wait till the fact of her being a single woman came out. There is a wide difference between a wager, whether a married woman's next child
shall be a boy or a girl, and whether a woman shall have a chik at all. Call the next cause.
The King v. Sir N. Million: Wraxall, baronet.—The AttorneyGeneral obtained a rule to shew cause why a criminal information should not be fded against thi defendant for a libel upon Count Woronzoff, in a work lately published by the defendant, entitled— "Historical Memoirs of my own Time." The libel related to the death of the first wife of the Prince of Wurtemberg, who afterwards married the Princess Royal of England. The author commenced his book with saying, that he related the events that lie either witnessed, or of which he received the accounts from respectable testimony. The present prosecutor denied upon oath every word of this libel, of which the following were the principal passages :—"I have heard tins subject agitated between 1?89 and 1795, when great uncertainty prevailed respecting the point, though it seemed to be generally believed that she was dead, and that her end had been accelerated or produced by poison. Jt was natural to ask, who had caused the poison to be administered? Was the Empress herself the perpetrator of this crime? And even if that fact should be admitted, was not the Prince of Wurtemberg tacitlv a party to its commission? Though no positive solution of these questions could be given, yet when the fact of the Princess's death came to be universally understood, many persons doubted the innocence of her husband. The King
t>f Great Britain himself was strongly imbued with the opinion, of which he made no secret. In 1796, when the lirst overtures were begun, on the part of the Court of Wurtemberg, for the marriage of their Prince to the Princess Royal, George the Third was so prepossessed against hint, for having been supposed privy to the death of his wife, that he would not listen to the proposal. In order to remove an obstacle of such magnitude, the Prince sent over to London a private agent, instructed to ascertain from what quarter the accusation came, and furnished with documents for disproving it. That agent 1 personally knew, while he was here, employed on the above mission. He possessed talents, spirit, zeal, and activity, all which lie exerted in the cause. Having clearly traced the imputation up to Count Woronzoff, who long had been, and who then was the Russian Envoy at our Court: he induced the Count, by very strong personal remonstrances, accompanied, as we must suppose, by proofs, to declare his conviction of the Prince's innocence, and utter ignorance of the nature or manner of his wife's end. It followed of course, that Catherine, under whose exclusive care she remained, could alone be accused of having produced it. The agent finally satisfied his Majesty that the Empress, and she only, caused the Princess to be dispatched, without the participation, consent, or knowledge of her husband, if after all she did not die a natural death. In May, 1797, the Princess Royal of England was married to the Prince of Wurtemberg, who, before the
conclusion of that year, became duke, by the decease of Frederic Eugene his father. Early in the summer of 1798, a gentleman conversing with me on the subject of the first Princess of Wurtemberg's death, assured me that he had seen and perused all the papers relative to her imprisonment and decease; which, at the desire of the Prince, and by his authority, had been transmitted to George the Third; who, after a full in* spection of them, became perfectly convinced of his having had no part in that dark and melancholy transaction. Lastly, he gave it as his opinion, that Catherine had alone caused her to be poisoned \inless her decease resulted from natural causes. Her husband remained a widower near eight yenrs after that event, before he attempted to obtain the hand of the Princess Royal of Great Britain. During so long a period of time, he seems to have adopted no measures for repelling the calumnious report circulated all over Europe, of his participation in tiie death of his wife: reports which had made the most unfavourable impression even in England. It is true, that George the Third became convinced of his innocence before he consented to the union of the Prince with his eldest daughter: but though the King yielded to the proofs brought upon this point, yet it was well known that he did it with reluctance and hesitation, rather giving way to the Princess's avowed wishes on the subject, than himself desiring or approving the match. So far, indeed, was he from pushing forward the alliance, that 1 know, from good authority, he offered U 8 the the Princess, after all the preliminaries were adjusted, and the marriage was fixed, to break it off, if she chose to decline it, taking on himself personally the whole responsibility of its failure. There remains still another important fact, which merits consideration. We hare seen that Count Woronzoff originally maintained his Sovereign's innocence of the Princess's death, though he was afterwards induced to depart from that assertion: but when did he make such an admission? Much depends on the time; for Catherine died on the 6th of November, 1796; and after her death, a crime, more or less, might not appear to be of much consequence, where so many could be justly attributed to her. Certain it is that the negotiation advanced much more rapidly after the decease of the Empress; and, on the 18th of May, 1797#the nuptials were solemn! zed. Over the nature, as well as over the author, of the first Princess of Wurtembcrg's death, a deep or impenetrable veil is drawn. We must leave it to time to unfold, if it does not rather remain, as is more- probable, for ever problematical." Upon the publication of this libel, the prosecutor wrote to the defendant to ask him who this*. " private agent" was, whom the author "personally kncwj" and the answer which he received was, that it was so many years ago that he had forgotten; hut that he never meant to libel the prosecutor, and if he would assure the author he was in error, he would expunge the whole story in a second edition of the work which \yrvs about to appear; he further promised to assert the want of its
foundation in the front of that second edition.
The Attorney-General said that this would be no satisfaction to the character of Count Woronzoff. or atonement for the injury he had sustained in the minds of those who had read only the first edition, and the proposal constituted an aggravation of the libel.
The court being subsequently moved to make the rule absolute; after Mr. Scarlett had shewn cause against it on the ground that the defendant could not be supposed to have been actuated by malice, Lord Ellenborough said, the rule must be absolute. The ground upon which the Court is ealled upon to interpose is, that there was no motive of personal malice. If that was an excuse, it would excuse the greater part of the most pestilent libels. There is generally speaking no personal motive of malice in the libels brought before us; the object, in general, is to make that which is slander, and catches the itehing ears of the public, most profitable. Whether the publication gives pain or pleasure, the object looked at is a lucrative sale of that which, from itsmalignity, is likely to be bought. I do not know whether that is the motive of Sir N. Wraxall, but it is with reference to one of th» worst publications of the kind that we are desired to give way and not exert the arm of the law. Could the person libelled have forborne to make the complaint be has urged to onr justice? He i* a person representing once a great potentate, and he is libelled in respect of a ttrnirnunieation of facts most injurious to his honour and character. Could he do otherwise
than come before the Court, and coming1 for the reparation of his fame, will the Court deny him those means which ore necessary to him for the purposes of bringing the person who has assailed his character before the tribunal of justice? It was the duty of Count Woronzoff towards himself to apply to the Court for redress, and it is the duty of the Court to grant him the effect of his application. There are a great number of anecdotes in this work, which may be entitled to a greater or less degree of respect; but the representation 1 have pointed at is not of doubtful effect. It is a hardy and calumnious inference which the party chooses to draw. It states that Count YVorouzoff had the baseness while his sovereign lived (and it was material to him to have her favour) to as««rt her innocence, but that he departed from the assertion as soon us she was dead, and he could expect no further advantage from her; that he admitted her to be iriininal, considering that one crime more would not be much, where there were so many. It is an imputation of that sort of base* ness which, independent of the truth or improbability of the other passages, warrants Count Woronzoff in his application to the Court, and warrants the Court in saying, that his application ought not to be made in vain, The Court cannot discharge its duty to the pubhe without making this rule absolute.—The rule was made absolute accordingly.
Le Due de Sorentino v. Lord JHaney.—The defendant is the author of a work, entkuled, " Nar
rative of a forced Journey through Spain,1' &c. in which his Lordship introduces the name of the plaintiff in this action, stating, that on his arrival at a certain village, he (Lord Blaney) was surprised to see, among other persons, the Duke of Sorentino, (mentioning him by one of his inferior titles), whom he had formerly met at Lord Nelson's: at which time he was partner in a faro bank, and a collector of modern antique*; that he disposed of them to young travellers who wished to acquire the characters of cognoscenti, and as the Marquis always introduced them with a long harangue, he was represented as very successful; that he (Lord Blaney) had bought some of them, which, though at the time he wrote they were more ancient than when he bought them, he would willingly sell for less than prime cost; that the same Duke had been obliged, in haste, to quit Palermo, having been openly detected in cheating in his Lordship's presence at Sir W. Hamilton's, and that afterwards he (the Duke of Sorentino) had been turned out of the English fleet by Lord Keith, strongly suspected of being a French spy. The book, went on to state that Lord Blaney, in the course of his forced journey, meeting with the Duke of Sorentino again, knowing him to be an entertaining fellow, from whom he might derive information, his Lordship determined to overlook the slight blemish of the Duke's being a professed swindler, who, on this renewal of their acquaintance, had adverted to the affair at Palermo, and treated it as a mere bagatelle. His Lordship then pro* cceded in his work to notice the removal