658. STEPHEN BACCI proceedingsdefend This name instance is in set 1405. This set is in the group(s): GarrowsClients . was indicted for wilful and corrupt perjury, in Trinity term last, in a certain action depending in the Court of King's Bench, wherein Chevalier Assereto was plaintiff, and Leopar Viscount de Patin, defendant .

Mr. Garrow opened the indictment, stating, That an issue having been joined, came to be tried before William Earl < no role > of Mansfield, and a special Jury, on the 12th of December 1783, when a verdict for 1000 l. was given, subject to the arbitrement of the gentleman to whom it was referred; and that on the 8th of January, the said Stephen Bacci < no role > This name instance is in set 1405. This set is in the group(s): GarrowsClients . appeared as a witness for the plaintiff before Sir William Henry < no role > Ashhurst, one of the Judges of the said Court, and was there sworn to give due evidence before the arbitrators as a witness in that cause; and he was afterwards examined, and deposed to the following purport, viz. that the laces, meaning a certain quantity of laces alledged by the Chevalier to have been on board a certain ship called the Counte Clerfait, were in a bank or seat of a window, called a locker, on the side of the said ship; that he saw the laces, and they were shewn to him by the Captain, that he heard something break, and he saw the said defendant Patin with a chissel forcing the locker, and that upon entering the room the said defendant asked with haughtiness what he had to do there; whereas in truth and in fact the plaintiff had not any laces in the window seat, and the said defendant Patin did not at any time whatever force open the said locker.

Mr. Sylvester opened the case as follows: May it please your Lordship, and you gentlemen of the Jury; this is an indictment, as it has been opened to you, against the prisoner, for wilful and corrupt perjury. In all the catalogue of offences, there is not one of a deeper die than that of perjury; it involves in it almost every other kind of offence; in this case it involves in it, not only a charge of robbery by certain persons, but a destroying of the character of the persons so accused, for it is no less than a charge made by the prisoner against a gentleman of the name of De Patin, that he had taken out of a vessel a large quantity of laced ruffles, to the value of between 300 l. and 400 l. The prisoner now before you, Gentlemen, to be tried for this crime of perjury, was a seaman on board a ship, called Counte Clerfait; the ship belonged to a lady in Flanders, the Countess Proli. In that country the ladies are somewhat more industrious than our's are here in England, for many of them carry on the business of merchants and banking houses, and the most considerable banking house now at Paris is carried on by a lady, Lady Allen. A ship was procured, and the command given to the Chevalier Assereto, she engaged him for the voyage, and it was not long before she had reason to repent of having given him the command; for instead of proceeding to the East Indies, as he should have done, he by unskilfulness got to the coast of England, the ship run aground on the Goodwin Sands, and being greatly injured, application was made here to Anthony Songu < no role > , Esq; the Imperial Consul, on this business, and a letter was wrote to Madame Proli, to inform her of the arrival of the ship, and the danger she had been in; she applied to the Viscount Patin, Lieutenant-Colonel Commandant < no role > of Bruges in Flanders, to come on her behalf to England; he came, and the Consul accompanied him to Ramsgate, and got possession of the ship and cargo, and another Captain was appointed to succeed Captain Assereto < no role > , of the name of Laurens. Captain Assereto < no role > being extremely hurt at having the command taken from him, he consulted my worthy friend here Mr. Morgan; he first told him a story, and my friend told him that will not do, the action will not lay upon that; then he, Captain Assereto < no role > , mended the story, and my learned friend said now the action will lay -

(Court. How came you, Mr. Morgan, to let your friend, Mr. Sylvester, into the secrets of your consultation?)

The cause, my Lord, was referred to Mr. Lowton, a man of known abilities; and amongst the rest of the articles there was one for lace, and the prisoner now before you was produced as a witness, and he then by way of inducing the arbitrator to allow this article, swore that the laces were in a bank or seat window on the left-hand side of the cabin, that he saw the laces, that they were shewn to him the last hour before the Captain went to Flanders, and that three or four days after, De Patin went into the cabbin, and the defendant saw De Patin with a chissel breaking the locker, and in three or four minutes after the said De Patin asked the prisoner now before you, with haughtiness, what he did there, and ordered him to go away; and swore that Mr. Laurens < no role > the mate was then present; this witness being produced, and swearing positively to this fact, the fact was as positively denied on the other side; the consequence of that was, that Mr. Lowton determined in favour of Viscount De Patin, and did not allow the account. Mr. Lowton by his award states thus,

"I do find, and adjudge, and determine, that there is not any sum of money whatever due and owing from the said defendant, Viscount Patin, to the plaintiff Assereto." Now if this man had been believed, there certainly would have been a loss of 335 l. and upwards, the value of these laces: you see therefore, Gentlemen, how material this point was before the arbitrator, because, if true, there must have been an award against the defendant in that action; it is therefore not only a foul perjury in this man the prisoner now before you, but a wicked imputation on Viscount Patin, a Gentleman of the first character, in order to deprive him of his honour, charging him with the taking these laces in a clandestine way. Viscount De Patin finds himself bound therefore in point of honour to bring this before the Court, in order that his character may be cleared, and that it may not go forth to the world, that he had gone on bord the ship and stole these laces. Gentlemen, you will hear the facts, and if they are true, there cannot be a doubt but the prisoner Stephen Bacci < no role > This name instance is in set 1405. This set is in the group(s): GarrowsClients . has been tampered with by Chevalier Assereto, to commit this bold and wilful perjury. The Chevalier himself has been also indicted, but he has withdrawn himself. The cause cannot be a long one; I shall call two witnesses to contradict those facts; if the facts are contradicted, and you credit that contradiction, you must find the defendant Bacci, now before you, guilty of wilful and corrupt perjury, imputed to him by the indictment.

Court. What award did Mr. Lowton make? - That there was not any thing due from Viscount Patin to the Chevalier Assereto.

EDWARD RICHARDS < no role > sworn.

I am clerk to Mr. Lewis, this is an office copy of the judgment, which I examined with the record of the Court of King's Bench.

(The Record read.)

Assereto against Leopard Viscount De Patin. Afterwards on Friday next, after eight days of St. Hilary, &c. shall first come on Monday the first day of December, at which day afterwards, that is to say, on the day and place within contained, came as well the within named plaintiff and defendant, &c.

Mr. Morgan, one of defendant's Council. My Lord, at the very last sessions but one a cause of this kind came on; the proceedings should have been continued down to the 18th, the day the cause was tried, I thought it was a fatal objection, and the Council on the other side gave it up, and the defendant was acquitted. I submit that the record may relate to another trial not contained in this indictment, and that they cannot call any parol evidence to support the record: this is stated to have been on Monday the first of December, and they cannot give any evidence to support this indictment, which states it to be on Friday.

Mr. Sylvester. We now go to prove that this was tried on the 12th.

Mr. Rose, another of the defendant's Council. My Lord, I do not know that I can state it more fully than Mr. Morgan has done, but I take it, whatever they state on the indictment they are bound to prove; if the record produced before this Court states one transaction or issue to be tried at a different time to the first stated in the indictment, they cannot be permitted to go into separate evidence, and they have stated a different day on the indictment: could they or not have stated it agreeable to the record? if they could, I beg leave to contend they are bound by law to state it so; therefore, I trust they cannot give any parol evidence on this matter whatever, and that the Court will be of opinion, that this is a fatal objection, and that there must be an end to it.

Mr. Garrow. My Lord, the learned gentleman says, you have produced a certain piece of evidence to prove this fact; I say no, it is not with a view to that, it is not a fact assumed in our indictment that the continuance was down to the 12th of December, if we had stated it we should have committed an error; the fact stated in our indictment is this, that at a sitting at Nisi Prius this cause came on to be tried, not that it was continued till that day, and then came on to be tried; I should contend that the sitting at Nisi Prius is a continuation, that it is all one day, but I am not at all driven to that by the evidence that I shall by and by produce, in affirmance of the fact stated in our indictment.

Court. If it is one continued day then it is not the first day.

Mr. Sylvester. We state thus, and which is according to the rule or order of Nisi Prius, made by the Judges before whom the cause was tried, viz.

"that afterwards, to wit, on Friday the 12th day of December, at the sitting at Nisi Prius, then holden &c. on the 12th of December, this cause came on to be tried;" if we had stated any other day it would have been a fatal objection: in the former case mentioned by Mr. Morgan, we stated it to be on the day stated in the record; says Mr. Morgan you must state the fact truly, you say on the 12th of December, you ought to state the 14th of December.

Court. That is reasoning on a case which was not an adjudged case, in which no peremptory opinion was given, even by the learned judge who tried it.

Mr. Garrow. I understand the objection to be this or nothing; that what we have produced not only does not make out our fact, but that it proves something contrary to the fact alledged in the indictment; now is there in the copy of the judgment one single tittle of the trial of the cause?

Court. I will read it to you,

"unless the King's right trusty and well beloved William Earl < no role > of Mansfield shall first come on Monday the 1st day of December, at which day before our said Lord the King at Westminster, the said parties came, &c. and afterwards, on the day and at the place, &c. came as well the within named, &c." then it recites the whole trial of the issue.

Mr. Garrow. It is not easy for me at all to recover the scattered ideas that have suggested themselves on the moment, before the learned gentleman objects, I shall be permitted perhaps to state for what purpose I call for the judgement; having stated that there was a cause upon the ground of which alone the arbitrator had the authority to examine the witness, I call for this instrument to prove this fact, that there was a plaintiff and defendant, and that there was a cause which was at issue; I should not then have entitled myself to produce any thing which the arbitrator has done in consequence of the issue so joined, because I must go one step further, and I must shew, that in point of fact this cause came on to be tried on the 12th of December; was there ever a record made up in this way, unless he shall come the first day of December, and then stating that the cause was tried on the 12th? they presume that which in point of practice used to be the case; namely, that the cause comes on to be heard on that day when the Chief Justice is expected to hold his sitting of Nisi Prius. I ask the Gentleman whether he will contend this, that if we had asserted in our indictment that the cause came on to be tried on the first day of December, which was the first day of the sitting of Nisi Prius, and I had called Mr. Richards, who would have told you the cause was not tried till the 12th, would they not have said this contradicts your indictment?

Court. Why could not you state it thus,

"and afterwards at a sitting of Nisi Prius, held on Monday the first of December, and afterwards continued till the 12th of December, came on to be tried, &c." it would surely have been conformable both to the fact and the record.

Mr. Morgan. I say in an indictment of this kind you are to prove every thing, and the record says the cause was tried on Monday the 1st, whereas in the indictment it is stated that it was not tried till Friday the 12th.

Court. The question, as it seems to me at present, is this, whether the day of the trial is or is not material to be stated: it is a general rule that that which comes in any process of law under a videlicet, is not considered as a direct allegation; the question will be, whether the indictment would have been good if it had stated,

"that afterwards, at a sitting of Nisi Prius held, the cause came on to be tried," I never saw an indictment in that form. If the indictment had stated it thus,

"on Friday the 12th of December, came on to be tried, &c." it would have been an averment: I have not a doubt but if the allegation is material the objection is fatal; you might have stated in the indictment, that that came on at a sitting of Nisi Prius, held on that day and continued by adjournments; but the objection for which you produce your record, is totally immaterial; you produce it to prove one fact, upon the face of that there is another fact clear; and shall I permit you to contradict it by parol evidence?

Mr. Garrow. My Lord, we beg leave to save the point.

Court. I do not see how you could possibly have stated this so as to be good, without stating the day, I have been trying to leave out the day, and make the averment compleat without it: how could you state this at all without stating the day? that is the only way in which you can make it good. I have not a doubt in my own mind.

Mr. Sylvester. I trust the Court will reserve the point.

Mr. Morgan. This is not a new point.

Mr. Sylvester. They do not shew us a case.

Court. There can be no case produced but by analogy, because the same variance may or may not occur: all the object that is of consequence to the prosecutor Viscount De Patin is obtained, by the defendant being acquitted on a point of variance; but we must not break through the rules of law, and I think it right publickly to say, that the prosecutor's character is as compleatly vindicated, as by the most solemn trial; for the evidence of the man at the bar has been fully investigated by a gentleman of character and great experience, who is unconnected with every party, and who has thought his evidence undeserving the smallest credit. If you state a case of consequence in a Court of law, the meaning is, that it is of consequence in point of precedent; now this certainly is not, because the objection, if a good one, which I think it is, is so easily guarded against, nothing to do but to state the adjournment; and as to the honour of the prosecutor Viscount De Patin, which was attacked by the defendapt's evidence, it is as fully vindicated as it could be by any trial. I, as a Judge, should decide according to my own opinion; supposing it to be a point of consequence, it does not therefore follow, that a Judge should reserve a case where he has no doubt, for that implies a doubt in the mind of the Judge. If my opinion is wrong, you may bring a writ of error upon that judgement, that will be given in the verdict of acquittal, and assign error in fact. The opinion of no Judge in this country can conclude in point of law; there must be always a way of resorting from the erroneous opinion of a Judge in any Court of law, except in those cases which are taken care of by act of Parliament. I am of opinion that the defendant ought to be acquitted.

NOT GUILTY .

Tried by the London Jury before Mr. RECORDER.