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not only for the causes of action in the said second and third pleas admitted and attempted to be justified, but also for that the defendants, on the other and different occasions and for other and different purposes in the second and third pleas mentioned, &c.
M. Chambers, Collier and Horace Lloyd for the plaintiff.
Shee, Serjt., Pigott, Serjt., and Field for the defendants.
The preliminary averments in the special pleas, as regarded the existence of the Society and the holding the inquiry, were not disputed.
On the other hand, it was not denied that the four principal defendants ordered the two other defendants to retake the papers from the plaintiff, and to use so much force and violence as might be necessary for that purpose, though it was denied that they gave him into custody.
The defendants' lawful possession of the papers was the main matter of controversy.
As to that the evidence was thus:—
One of the charges made against Mr. Seymour was, that he had misappropriated certain shares of a Captain Robertson, a co-director in a gold mining company (since wound up), called the " Waller Gold Mining Company." The defence was, that the shares had been deposited, with Robertson's assent, in order to meet liabilities arising out of certain transactions in the share market. To sustain this defence, Mr. Seymour, on the 8th June, 1861, when the inquiry was pending, called before the benchers, as his witness, Hudson, the now plaintiff, who, as it appeared from his evidence then, and now, had, in 1852 become acquainted with Mr. Seymour, and, in connection with him, had formed the company; he and Robertson afterwards being directors, and Mr. Seymour chairman of the company. It was while Mr. Seymour was chairman, and the plaintiff and Robertson directors, that the transaction in question took place.
Previously to the plaintiff's thus appearing before the
benchers to be examined, they had, unknown to him, got 1862.
a manifold letter-book, marked "private letter-book," „
which had been left at the office of the company, and »•
which they obtained from one Brown, who had been so- ana others. licitor of the company, and with whom, after its collapse, the book, &c. had been left. This book contained seventeen letters, of which one was marked "private," and, with one or two others, related to affairs of the plaintiff, or of the plaintiffand Mr. Seymour, of a nature entirely private. The bulk of the letters, however, related to the affairs of the company; and only six, out of the whole number, were letters of or from the plaintiff(a). The rest were letters to and from other persons, and neither written to or by the plaintiff. Most of them, indeed, were copies of letters by him or the secretary to agents or officers of the company at home or abroad—as, to the engineer, the resident manager, or the like; and the letters of the plaintiff had numerous allusions to Mr. Seymour. There was one letter —from the plaintiff to the manager of the mine in America (one Greg), dated November, 1854—which contained allusions to a dividend to be declared, and asking for reports and advices such as would justify it. It ran thus:—
"Let us know the exact results from the Waller vein, in which we are all deeply interested. The result, we hope, is, that we may be in a position, by the beginning of the year, to pay a 5 per cent, dividend. We shall be glad to be advised by you in time that we have obtained sufficient from the Waller, after paying the cost of production. It will require about 3,000/. to be shown as produced, to effect this. If you send the advices we can arrange the matter very easily. The immediate results of paying a dividend will be, that we shull get money enough to carry on our operations on a scale which would please you. ° • • We did not make nse of your report until we had secured S.'s shares from being thrown on •
the market At the end of the week we shall report the striking of the
(a) It bas been often held, at Burr. 2356), though he has, of law and equity, that private letters course, a lawful possession and pro-. are the property of the writer, so perty in the puper; Earle v. Hutthai they cannot be published by the dernest, 4 Bing. 462; The Bishop party receiving them (per Mans- of Exeter v. Shutte, in Chanc, E. ntiD, C. J., Miller v. Taylor, 4 T. 1863.
Waller rein, and keep up the excitement by gradual disclosures of our good fortune, reserving for our meeting something very first-rate as a climax."
There was a letter, of August, 1855, from the secretary of the company to the plaintiff, then in America, from which it appeared that the dividend had been declared, and that Greg, the manager, to whom the former letter had been written by the plaintiff, was then in England; and it contained these passages, referring (as was suggested) to the previous letter above set forth :—
"Greg has had repeated interviews with Mr. Seymour. ° ° • He (Greg) has a letter in his possession from you, which he says will damn you to all eternity. ° ° ° The shares are without the least movement. Since the payment of the dividend, there has not been a single transaction; which is a matter of some surprise to Mr. W. D. Seymour and myself." ° ° °
These were the principal passages, from which the benchers had cross-examined the now plaintiff, especially as to the transactions as to the share market and the declaration of the dividend referred to, with a view, as was suggested, to raise the price of the shares; and in particular with reference to the passage as to " gradual disclosures" and "keeping up the excitement," &c. The book was handed to him to read from, and he read from it. At the close of the sitting, the cross-examination of the plaintiff not having been closed, he was asked to attend again next day, and agreed to do so. He came accordingly, and asked to be allowed to look at the book, for the purpose of offering, as he said, some explanation. It was at once handed to him for that purpose, and, having got it, he folded it up(fl), put it into his coat pocket, and then declared that it was his private letter-book, and that he should retain it. The benchers remonstrated with him, and repeatedly requested him to return it (as did Mr. Seymour); but, on his refusal, directed their porters to retake it (a). They attempted to do so, and in that attempt committed the assault complained of; and which was admitted and avowed. The police were sent for, and when they came the plaintiff appealed to them against the violence of the benchers, and they appealed to them to enforce re-delivery of the book. The case for the plaintiff was, that they gave him into charge for stealing it (J). This they denied, and the charge, as entered, was for unlawful possession. The charge was not renewed at the police station, and the plaintiff was at once liberated. 1862.
(n) If at this moment, or during the course of the act of folding up and pocketing the book his hand had been arrested, or his arm seized, before the act of appropriation had
been completed, it could scarcely be contended that the assault would not have been justifiable, supposing the benchers had a lawful possession; vide ante, p. 395 (r).
The plaintiff swore that he had bought the book when in blank, and paid for it out of his own money, and that he had kept it in a private drawer at the office under his own lock and key. He was cross-examined as to the contents, and as to how, if that were so, other persons had access to it and copied their own letters in it, which he attempted to explain by stating that, during his absence in America, he had desired his friend, the secretary, to keep him informed, from London, of anything which happened at home; and thus (it was suggested) other persons might have got access to it, and it was used for letters to other persons. He stated that there was another letter-book for the company, of which, however, there was no other evidence; and this book certainly had in it letters of the company. It appeared that all the other books but this were lost, and this book had not been claimed by the plaintiff as his when first he saw it.
During the struggle, Mr. Seymour, who had been a
(«) As to whether this was justifiable, see Blades v. Higgs, 30 L. J., C. P. 347, and the note to Miller v. Chambers, ante, p. 205; vide ante, p. 395.
(6) See Regina v. Guernsey, 1 F. & F. 394, that there may be felony
VOL. III. F
in taking a paper of no pecuniary value animofurantli. That of course, however, involves two things; the absence of all property in the party taking it, and the absence of any bond fide belief on his part of such property.
co-director, desired the plaintiff to return the book to the benchers.
In the proof of the plaintiff's case the book was produced.
Upon these facts,
Shee, Serjt, contended that the property of the book was not in the plaintiff, as it was not really a private letter-book of his, but virtually the letter-book of the company; that the defendants had lawful possession of it for the purposes of the inquiry (having obtained it from the solicitor of the company for that purpose); and that as it had been unlawfully, and by a trick and false pretence, obtained from them, they had a right to retake it by force.
Chambers, for the plaintiff, insisted, on the contrary, that the book was the private book of the plaintiff, and was not the book of the company; and that, even if it were, it was still the book of the plaintiff as a shareholder and director of the company, and that he was entitled to it as against the defendants; so that, even assuming that if they were entitled to it they could retake it by force, they were not entitled to it as against the plaintiff. Further, he denied that the defendants could be justified in retaking the book by actual personal force and violence, even assuming it to be theirs (a); and he pressed for a verdict as to the imprisonment as well as the assault.
In the course of the case,
Cockbuhn, C. J., said he was of opinion that the allegation (J) in the plea that the plaintiff took the book in order to screen himself was immaterial; and thereupon, on the application of the counsel for the defendants, directed it to be struck out.
At the close of the evidence,
Cockburn, C. J., said, there is an allegation in the plea
(a) Vide notes to Chambers v. Miller, ante, p. 205.