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![handle is hein.slavery/ssactsengr0240 and id is 1 raw text is: 3 BING. 431. YRISARRI V., CLEMENT 79
names of Sykes, Snaith, [431] and Co., who were proved to be Byers's bankers, was
in the possession of the petitioning creditor,'and produced by him at the trial, wit
a cross marked on it; which cross, however, was unexplained. The bankrupt's papers
had also, it appeared, fallen into his possession- at the time of the bankruptcy. A
clerk of Sykes and Co. proved, that 1001. was received from Pole and Co. on Byers's
account the day after the check was drawn ; and a clerk of Pole and Co. proved, that
that amount was that day paid by them on account of the petitioning creditor. These
clerks could only verify the entries to the above effect in the bankers' books, but
were unable to recollect the identical check,
Vaughan and Cross Serjts., who shewed cause against the rule, contended, that
here was sufficient evidence for the jury'to presume a loan of 1001. from the petitioning
creditor to Byers, especially as the check had come back to the hands of the lender.
BEST C. J. I am sorry that this objection must prevail against the justice of the
cause, but no evidence has been given which ,will justify the jury in presuming the
existence of the petitioning creditor's debt. All that distinctly appears towards
raising such a presumption is the delivery of a check by Smith to Byers; for the
mere circumstance.of its coming back to the hands of Smith is not evidence that it
has been paid, especially when there is no pioof that it was ever in the hands of
Byers's bankers; and when it is considered that Byers's lapers felf into the hands of
Smith, the clerk who paid the check ought to have been called.
The rest of the Court concurring, the rule was made
Absolute.
[432] YRISARRL V. CLEMENT. Feb. 13, 1826.
[S. C. 11 Moore, 308: at Nisi Prius, 2 Car. & P. 223.]
1. The Defendant having published imputations against the Plaintiff as envoy of the
state of Chili, and the Plaintiff in a declaration for libel having stated as matter of
inducement, that he was envoy of that state: Held, upon motion for a new trial,
that the admission of these two facts upon the face of the alleged libel was sufficient
proof of them to enable the Plaintiff to sustain his action.-2. An action of libel
does not lie for any thing written against a party touching his conduct in an illegal
transaction ; but for misconduct imputed to him in any matter independent of the
illegal transaction, though arising out of it, an action lies.-3. Held, that the
following passage, The Plaintiff lost no time in transferring himself, together with
200,0001. sterling of John Bull's money, to Paris, where he now outtops princes in
his style of living, did not impute, to the Plaintiff having committed a fraud on
the English nation.
This was an action for a libel. After the usual allegation of the Plaintiff's good
character, thb first count of the declaration proceeded,-
And whereas, also, before the time of the committing the grievances by said
Defendant in this count and the four next following counts mentioned, the said
'Plaintiff had been, and was appointed by certain persons exercising the powers or
authority of government in a certain republic or state in parts beyond the seas, to
wit, in the republic or state of Chili, in South America, to the office or station of
envoy extraordinary and minister plenipotentiary from'the said republic or state of
Chili, to and at the courts of Europe, and amongst others to the court of this United
Kingdom, to wit, &c.
And whereas before the time of the committing the grievances by said Defendant
in this count and the four next following counts mentioned, the said Plaintiff had
been and was authorized, empowered, and directed by said persons exercising the
powers or authority of government in the said republic or state of Chili, in South
America, to negotiate a loan or loans for the service of said republic or state of Chili,
to wit, at, &e.
And whereas, also, before the committing of the grievances by said Defendant
in this count and in the four next following counts mentioned, to wit, on the [433]
1st January A. D. 1820, the said Plaintiff had come to and arrived in this country,
and had become and was resident therein, to wit. at London aforesaid, in the parish
.and ward aforesaid :](ViewImageLocal?handle=hein.slavery/ssactsengr0240&div=1&collection=&method=preview&ext=.png&size=3)