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liament why he had extended this particular privilege to this individual. It was certainly contrary to the general policy of the law, and he could not in justice to the King's subjects affix the great seal to it merely because it was a manufacture which other countries had in common with this.

Court of King's Bench, Monday, Dec. 9-Special Juries.-Philip Hill, v. Gray, Esq.-This was an action for a breach of contract, in the purchase of a picture which the defendant had agreed to buy from the plaintiff for the sum of 1,0501.

The Attorney-General observed, that his client, the plaintiff, was a person of the highest respectability, as he was warranted in saying, from the estimation in which he was held by persons of rank and character with whom he had had transactions similar to that now before the Court. The defendant was one of those wealthy merchants in which this kingdom abounded, who, having acquired a large fortune, devoted a portion to the encouragement of the arts. He had been a considerable buyer of paintings, and through the agency of a Mr. Butt, a common friend of the plaintiff and the defendant, he had entered into a contract for the purchase of a most beautiful and valuable picture, by Claude Loraine, which the eminent and venerable President of the Royal Academy had pronounced not only genuine, but one of the finest of the productions of that exquisite master. With such an authority in its favour, it was wholly un

necessary (as, indeed, he was incompetent) to dilate upon the merits of this picture: Mr. West himself (whose time the learned Counsel regretted he should occupy, while he was engaged upon a great work as an altar-piece to Marylebone-church) would be called as a witness, as well as Sir Thomas Lawrence, at whose house the Claude had been deposited, and other artists of the first rank in this or any other country, who would all depose to the genuineness and incomparable excellence of the piece. It was bought by the plaintiff at the sale of Mr. Hope's pictures: the price given by him was no more than 111., for the learned Counsel had no secrets to keep. Mr. Hill had drawn, as it were, a prize in the lottery: when he bought it, it might be a good or it might be a bad picture, and he took his chance; having employed his skill upon it, removed the dirt, and remedied the injuries of time, he found that it was of greater value, and on that account he had sold it to the defendant for 1000 guineas. This was no unusual circumstance; nobody supposed that the two Claudes belonging to Mr. Angerstein, now prized at 8,000 guineas, had not been frequently sold before they came to that gentleman's hands at an infinitely less sum. Mr. Butt, the mutual friend of the parties, had seen Mr. Hill's Claude, and, admiring it of course, he advised Mr. Gray to buy it, and after a short intercourse, in which it was warranted to be a Claude, Mr. Gray became the buyer at the sum stated, and an early day was fixed for the payment. In the U 2

mean

mean time, however, the defendant having informed some of his friends of his prize, one of them hinted, that after all it might not be a genuine picture by Claude, probably without having seen it, and Mr. Gray immediately took the alarm, and refused to complete his contract. The plaintiff was consequently under the necessity of bringing this action; and the principal question was, whether this picture were or were not a Claude? Upon this point the evidence was most decisive; for, excepting that the learned counsel could not prove by eye-witnesses that the pencil of Claude, who was born in 1600, had been seen employed upon it, he could adduce the most unequivocal testimony to its authenticity: the opinion of those competent to judge was all the law required.

Mr. James Butt deposed, that he had seen the picture in ques. tion for the first time at Mr. Hill's, and esteemed it a landscape by Claude Loraine. The witness very much admired the picture; and knowing that Mr. Gray had been purchasing pictures, not very wisely, the witness, from friendship to him, wished to recommend a fine one to him. He in consequence wrote to the defendant in the beginning of August last, stating that he had seen a very fine Claude that he thought would suit him, and if the defendant were disposed to inspect it, the witness would call the next day, but that he might take a week to deteruine on the propriety of purchasing. The letter also requested that the defendant would

consult his friends, and not act merely upon the opinion of the witness. The witness saw the defendant the next day, who agreed to look at the Claude, and asked the price, which the witness refused to name until the picture had been seen: he also declined mentioning to whom it belonged: but said that it might be had cheap, as the owner was much in want of money. The defendant still pressed to be informed, and the witness answered in joke, "If you think it stolen, you had better have nothing to do with it." The day following the witness understood that Mr. Gray had seen it, and he told him that the price was 1,200 guineas: the defendant said it was a great deal of money, and added, that Mr. Angerstein had given only 2000 guineas for his finest Claude: the witness knew that that was only a misrepresentation, for the sake of reducing the price demanded: at length, in about a week, the defendant offered 1000 guineas, which the witness, on his own discretion, considering the necessity of the seller, agreed to take for ready money only; but afterwards, he said that a week or a fortnight would not be of consequence.

The question being put to Mr. Scarlett, on the other side, he admitted that the defendant had had the picture home, and had returned it to Sir T. Lawrence, at whose house it had been placed.

Cross-examined.-The witness said, that he was what was commonly called a merchant, with very little to do: he was not a

dealer

dealer in pictures: he had not represented to the defendant that the picture belonged to Sir Felix Agar in the letter he wrote, nor had he ever so stated in conversation. Sir F. Agar had some pictures at the plaintiff's that he wished to sell for 4000 guineas, to raise money, but the witness had never said that this Claude was one of them. He had never stated to the defendant that Sir F. Agar was in a rage with him for taking 1000 guineas: something has passed between the witness and the defendant, which made an approach to it at Boydell's, where they saw an engraving of this picture in the Liber Veritatis, with the name of Mr. Agar at the bottom; and the defendant having fallen into the delusion, the witness did not think it incumbent on him to remove it.

Lord Ellenborough observed, that he could imagine no reason why the name of the owner should be withheld: in all fair dealing there was no concealment of the kind. It was the duty of the witness, seeing the delusion, to have endeavoured to do it away.

In the continuation of the cross-examination, this point was still pressed: a letter was produced to, and admitted by the witness, in which he had mentioned the name of Mr. Agar. After the sale, the witness never said that Mr. Gray, having bought the picture under the misrepresentation that it belonged to Sir F. Agar, was therefore at liberty to return it; but he had stated, that if Mr Gray could satisfy him that the picture was not a genuine Claude, he would never rest till

he was relieved from his bargain.

Lord Ellenborough observed, that the witness appeared to have mistaken both his duty and the law: knowing the existence of the delusion, he ought to have removed it; and unless he did so, the contract was founded upon circumstances of deception; if which circumstances had not existed, the defendant might not have offered so high a price as he proposed: not only the law, but every principle of common honesty required that the party should not be allowed to continue under any delusion when it could be prevented.

The Attorney-General hoped that it would not be imputed to him that he at all countenanced the practice, because he endeavoured to show that the delusion could have no operation under the circumstances; the suspicion that the picture came out of a particular cabinet might induce a party to give a higher price, but he submitted that here the contract had been completed before any thing passed which could be misinterpreted into a statement that the picture belonged to the collection of Sir F. Agar.

Lord Ellenborough added, that a third person making a contract like the present ought to take especial care that nothing was said or done by him to lead to mistake. It appeared clear, that though not directly, yet indirectly, Mr. Butt had told the defendant that Sir F. Agar was the owner of the picture.

The witness observed that he had had great difficulty in the business.

Lord Ellenborough.--There can

be

be no difficulty in plain sailing and common honesty, while all is entanglement and delusion when we get out of the straight road.

Mr. Scarlett.-I wish it to be understood that it is no part of my case to contend that this picture is not a Claude.

The Attorney-General.-And a very fine Claude; if that be not allowed, I must proceed to call my witnesses to show that it is; for the admission that it is merely a Claude is not satisfactory.

Mr. Scarlett. I will not say that it is not a fine Claude, but the value of the picture is no part of my case.

:

Lord Ellenborough. I will take it, Mr. Attorney-general, that your proof would go to the extent of showing that it is a genuine picture, as far as that point can be ascertained with regard to some pictures, it now and then happens that they can be traced from hand to hand, through various families, to the original painter in cases, however, where this cannot be done, the party asserting the authenticity is only bound to make out such a similitude as leads competent judges upon the subject to state that it is genuine.

The Attorney-general then proceeded to re-examine his witness, Mr. Butt, who said that the conversation last alluded to took place at the counting-house of the defendant: this was after the price had been agreed upon, and the defendant had had the picture sent home. A Mr. Wright had given the defendant a suspicion that it was not an original Claude, and that it was bought at Mr. Hope's sale at a low price:

the witness inquired, and found the last fact to be so: at another conversation the defendant said positively that the authenticity of the picture had been impeached, and that he would not take it, as it was not a Claude. This was his only reason for refusing to complete the purchase; and the witness then used the expression, that if it were no Claude he would never rest till the defendant was relieved from his bargain. This was a week after Mr. Gray had promised payment of a part of the purchase-money on an early day, and a further day had been named for the rest: no payment, however, had yet been made..

Lord Ellenborough.—I really thought, and think, that the cause had before arrived at its termination. It appears that the defendant entered into a contract under a deception, from which the agent, the witness, did not relieve him, though he was aware of it, and had it in his power: that delusion might be a material circumstance in governing his determination as to the price of the picture; and not being removed, it is in law a void contract.

The Attorney General.-That being your Lordship's opinion in point of law, the moment it is intimated I am satisfied. The plaintiff was non-suited.

LIBEL AND DEFAMATION.

Court of Common Pleas.-Wyatt v. Gore.-This was an action brought by Charles Perkin Wyatt, Esq. against Lieutenant-General Gore, governor of the province of Upper Canada, for the publication of a false and malicious

libel, and for having suspended the plaintiff from his office as Surveyor-general of the crown lands in that province, without any sufficient ground, whereby he sustained considerable damage. Mr. Sergeant Best conducted the prosecution. He said there were three grounds of complaint upon the record; first, that the plaintiff, being Surveyor-general of the crown lands in the province of Upper Canada, had been suspended by the defendant, who was Governor-general of the same province, from his office, without any just cause or reason: secondly, that, after having so suspended the plaintiff, he wrote letters to the Secretary of State for the Colonial Department containing such representations as prevented the plaintiff from being restored to his situation: and thirdly, that the defendant published against the plaintiff a most false, scandalous, and infamous libel. With regard to the second charge, he would candidly state that it must fail, as it was not in his power to support it by evidence. The letters which the Governor-general wrote home to the Secretary of State had been applied for, but the government refused to grant the use of them. They could not therefore be produced. He should, therefore, confine himself to the first and third charges, both of which he had no doubt of being able to prove to the satisfaction of the Court and the jury. It appeared that the defendant suspended the plaintiff from his office, and of course deprived him of its emoluments, without any just cause or pretence. In the pamphlet (the publication of

which constituted the libel complained of in the last charge), he assigned his reasons for suspending the plaintiff; and it would be proved, not only that all those reasons were false, but that Gen. Gore knew them to be so, at the time he assigned them. The learned Sergeant then read extracts from the pamphlet,. which purported to be a letter from General Gore to Lord Castlereagh, complaining of the conduct of certain factious and turbulent individuals, whose intentions were to disturb the peace and tranquillity of the province. Among those individuals the plaintiff was included by name, together with Judge Thorpe, Mr. Wilcox, and others. In another part of the pamphlet it set forth, that the plaintiff turned out of his office an old man, who had been many years in the service, merely because he voted for the government (an allegation completely false, for the individual in question had solicited permission to retire); and it further affirmed, that the plaintiff, having obtained a grant of 1200 acres of land, fixed his eye upon 200 acres near Niagara, which had been cleared and cultivated by a man of the name of Young, a disbanded sergeant belonging to Butler's Rang

ers.

The plaintiff, supposing Young's title to the land to be defective, had set to work, and in the most oppressive and unfair manner robbed the aged veteran of his hard-earned rewards, and turned him out to beggary. Young soon after died, and left a large family in great distress. The case was mentioned to Governor Gore, who ordered an investigation

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