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![handle is hein.slavery/ssactsengr0341 and id is 1 raw text is: DU BOULAY V. DU BOULAY [1869]
The Judge in this case seems never in the slightest degree to have considered
these important questions, upon which the case entirely turned, but, taking upon
himself the duty of the jury, and determining that which the jury alone could
determine, he told them that in his opinion the libel was proved.
The Judge having thus assumed functions which did not belong to him, went
entirely wrong in his conclusion upon the fact. The only evidence (because the
Letter written to the official Visitors by the Colonial Secretary was not evidence
in the case)-the only evidence, supposing it could be admitted in consequence of
the Judge being of opinion, that the Defendant's letter was not an official com-
munica-[30]-tion, was that of Mr. Pennell, who said, Colonel Stace informed me
by that Letter, that Captain Kelly had reported you drunk on the 17th of October.
Now, this evidence would have supported the declaration as it originally stood, but
it certainly did not prove the alleged words in the amended declaration, that the
Defendant falsely and maliciously wrote and published of the Plaintiff, that he was
drunk and disorderly at the Theatre. For it is a very different thing to write of a
person that the Writer had been told he had been drunk and disorderly, and that
he actually was drunk and disorderly upon a particular occasion.
There has, therefore, been a complete failure of justice in this case-a complete
misunderstanding on the part of the Judge of what his duty was, and an entire mis-
leading of the jury. Their verdict is one which ought never to have been given,
and of which it is to be regretted that the Judge should have expressed his approval.
Under these circumstances, their Lordships can only come to the conclusion,
that tiis judgment ought not to stand, The proper course to have pursued would
probably have been to quash the whole proceedings, and to fix the Respondent with
the costs (as least of the appeal); but as Colonel Stace is dead, and the Counsel for
his Widow have stated that they do not wish to press for costs, with their consent
we have agreed to recommend to Her Majesty that the judgment of the Supreme
Court of St. Helena should be arrested, the parties paying their own costs of this
appeal.
By the Order in Council made on the appeal, it [31] was ordered that the judg-
ment of the Supreme Court of St. Helena be arrested on each party paying their costs
of the appeal.
[Mews Dig. tit. COLONY, III. APPEALS TO PRIVY COUNCIL, 3. Leave to Appeal, 6.
Practice, h. What points may be rased, k. Stay of Proceedings; tit. DEFAMA-
TION, C. PRACTICE AND PROCEDURE, 7. Trial, b. Functions of Judlge and Jwry.
S.C. L.R. 2 P.C. 420; 20 L.T. 197. On point (i.) as to official documents see
Home v. Bentjuck, 1820, 2 Brod. and B. 130; Daw/ins v. Lord Rokeby, 1873,
L.R. 8 Q.B. 255; Henessy v. Wright, 1888, 2 Q.B.D. 509; (ii.) As to leave to
appeal in civil cases, see note, Reteameyer v. Obermnler, 1837, 2 Moo. P.C. 125.]
ON APPEAL FROM THE COURT OF APPEALS FOR THE
WINDWARD ISLANDS.
BELISLE DU BOULAY, and Others,-Appellants; JULES RENE HERMENE-
GILDE DU BOULAY,-Respondent * March 11, 1869].
According to the Law in force in Saint Lucia at the time of the conquest and
capitulation of that Island in 1803, a family has no such property in their
patronymic name as to entitle them to bring a civil action in the Island for a
declaration that the name exclusively belongs to them, and to prohibit a
stranger, who had assumed their name, from bearing or using it [6 Moo.
P.C. (N.S.) 53].
Present :-Lord Chelmsford, Sir James William Colvile, Sir Robert Phillimore
(Judge of the High Court of Admiralty), the Lord Justice Selwyn, and the Lord
Justice Giffard.
V MOO RE N.S., 30](ViewImageLocal?handle=hein.slavery/ssactsengr0341&div=1&collection=&method=preview&ext=.png&size=3)