Star. — London, England, 1807-11-28 00:00:00

LAW 7NTELLIGENCL COURT OF RING'S BENCH, NOII. 15. CRIMINAL INTORM•TION. Mr. GARRow moved for a criminal information again& Robert Holton, Efq. at the inftance of Mr. Champneys, a Gentleman of family and fortune.— The profecutor had a park and manor, arid was anxious to preferve his game. Mr. Holton had in truded himfelf on the premifes, with a difpofition rather to annoy the proprietor, than to deltroy his amufements as a fportfman. He had very fre quently tretpaffed, not only on the manor, but on the preferves, while he was on a vifit to a Clergy. `man in the neighbourhood ; when Mr. Champneys wrote him what the learned Counfel thought a very civil letter, informing him, that he had four diffe rent times fported on the manor, and even on the preferves, and the writer defired that he would dad from fuch encroachments in future. This letter ac cidentally fell into the hands of Mr. Hclton's father who himfelf returned an anfwer, reprobating, in pro per terms, the condua of his fon. It afterwards was delivered to the young man, who wrote to Mr. Champneys, that he had that indent received the let ter from his father. He faid he had paled over the firft impertinence of the writer unnoticed ; and fiat. ed, that he had been amnfing himfelf on Mr. Cham neys' manor, but not without fufficient authority, and he begged leave to inform that Gentleman, that he was at any time at his fervice. Legal advice was taken on the concluding ex, 'talons here employed ; and by a profeffor it was fuppofed that the concluding words were to be con limed into a challenge to fight. In confequence of this conliruaion, a bill of indiament was prepared, which, however, was not found by the Grand Jury. After the death of his father Mr. Holton returned, and fucceeded to the patrimonial property. Mr. Champneys had been for fome time abfent from his znanfion, and on his return was informed, that this Gentleman had been again trefpaffing on his grounds. The profecutor was acquainted with his brother, but had no recollelion of Mr. Robert Holton. He was lately riding over his dive, attended by three per lons, one of whom was Mr. Sainfbur y, a brother Ma giftrate (for Mr. Champneys was in the commillion); and another was Saunders, his gamekeeper. Thus accompanied, he met a man with a double barrelled gun, of whom he had no knowledge, and whole con duit occafioned the prefent application to the Court. This perfon was Mr. Robert Holton, who immedi ately pointed his gun, which was ready cocked, at the profecutor, and laid, 4 4 Stand out of the way, you fcoundrel !" He then again railed and pointed the muzzle of his gun, and even touched the brealt of Mr. Champneys with it. In this dangerous fitux. tion, Mr. Champneys :liked the gamekeeper who the man was? To which Saunders replied, that it was Mr. Holton. " Yes, (laid Mr. H.) I am Robert Holton, and have often wifhed to meet you." The (errant interpofing, defired Mr. H. to uncock his gun, with which requeft the latter complied.— Mr. Holton then returned- 44 You are a liar, a brute, a vagabond, a grovelling toad ; your name Rinks in the country ;" and this complimentary addrefs was retorted to without the fmallelt provocation. - Thus oircurnfianced, Mr. Champneys thought fit to ap. prife Mr. Holton, that he fhould apply to his Lord !kip (naming the Chief Juflice) and to the Court of King's Bench, for redrets. Mr. Holton replied, that be did not care for that ; that he had given Mr. Champneys a pretty good dote ; and then, with con fiderable volubility, he repeated the grofs and infult log expreffions. Thus coc.umdanced, Mr. Champ neys thought his life was in danger, and fought the .;:oteetion of their Lordfhips. Mr. Holton had let siefiance, not only all decency and decorum, but oen the high authority of the Court, and if it thould ins interfere with its powerful arm, fatal cffeas might enfue. Mr. Juflice LAWRENCE afked, why Mr. Sainfbury did not exercife his authority as a magilirate ? Mr. GAMOW replied, that a double barrelled gun Was cocked at the bread of his friend. The CHIEF JusricE reniarked, that Mr. Champ. treys might have exhibited articles of the peace againd Mr. Holton, and that the inter view had more the appearance of an aftault than a challenge. Mr. GARROW--.." The firtt letter it is impoffible to mifunderfland." Lord ELLENIOROUGH—" That is gone by." Mr. Gattßow" This much refennales a cafe, in .Lincrilnfhire, in which your Lordfhip fo lately inter poled." Lord ELLENsototrow faid, that that was for hot fewhipping a Gentleman beeaufe lie maintained his right to hi. own properly. Mr. Champneys might immediately obtain the protedion of the Cow tin the dual manner, and he might alto prefer an indiament. Mr. Nike Gauss—" He may likewife bring an *llion of trefpafs."—Rule refuted. JAMES HARRIS V. JOHN JAMES. This was a cafe refer ved after trial, and the tingle queftion was, whether the certificate of the Defen. dant, who was a bankrupt, obtained after the anion ' brought by the Plaintiff, and before judgment, ex onerated the Defendant from the debt and cods.— Judgment for the Defendant. THE ICING V. J. INWOOD. This man was brought up under a charge of hav ing killed William Goodman. It appeared by the affidavit of Mr. John Walker, a furgeon, that the deceafed had been fatally wounded by a cutlafs. On the fith of Oftober this medical gentleman was fent for, and obferved feveral deep gates in the arm of Goodman. The deceafed, teeing Mr. Walker's atten tion drawn to his arm, laid, that he wifhed him to examine his thigh. The furgeon did fo, and &co 'acted that the mufcles were dreadfully cur. In this Parts a mortification enfued, which was the caufe of Geedman's death. In the affidavits of Samuel Gurney and others, it was dated, that the prifoner, with two others, having learnt that depredations were committed on the Met y dependent on Moor Para, Bertfordaire, concealed themtelves to &tea tEe robbers. Goodman, while on the watch, entered the Mem, and was proceeding to plunder the property, when, after being called to, he attempted to elcape by fwimrning, and the Defendant putfued him tsith a cutlafs. A fciiffle enfued thf water, and (.:1 the bank, oa which Goodman received the wounds of which he died. , On the application of Mr. GURNRY, the prifoner was admitted to bail, himfelf in 4001. and four re fpeetable tunics in an equal •• • NOV/mint . 27.•-•-•Tilli kIIO wins raostevrox of LORD KINGSTON V. CAPTAIN PHILIP NAY. We mentioned this cafe in our Paper of Saturdky lalt, when the Criminal Information was applied for by the ATTnINEY GENERAL. Mr. Pau, this day, mewed caufe againfl making the rule abfolute. The charge made againii the Defendant was tbat of giving a challenge to the Profecutor. The affidavits upon which the applita tion was made, Elated, that, in the year 1798, Dud Kingflon was Colorel of the North Cork Militia, 1 and was proceeding to Wexford to oppofe the rebels, 1 when he was taken. He there law the Defendant, who appeared to him to ad as a commander of the ' infurgents, and in this opinion he was confirmed by the leader, General Keogh, who Paid, that he had deferted from his Majetty's fervice. When the commotion had lubfided, Captain Hay demanded of the Commiffioners compenfation as a fuffering Iny. alill. In cordequence of this requeft, Lord Kingflon wrote to the Earl of Hardwicke, reprefenting, that the Defendant could Support no Inch claim, fine he ___ _ . had co-operated with itie rebels. The refult was, the meeting between Lord Kingfton and the Defen dant, on the Bth of October laft, in Devonfhire place, where the challenge complained of was given. In re ply to the charge, the learned Counfel had the affidavit of the Defendant himfelf, who Rated that in the year 1790, when he was only 13 years old, he went abroad in his Majefty's fervice; and after his return, at the age of t 8, received a Lieutenancy, and accompanied General Abercromby to she Weft Indies. From that time, until the year 3798, he never returned to his Majefty's dominions, excepting for the (pace of eight days ; and on the 3oth of Api ft, in the fame year, he went to Ireland, to take p( freffion of his patrimo nial elate in the county of Wexford. Finding that the generality of the people were nearly ripe for in furteaion, he engaged himfelf in an employment gratifying to himfelf, and ufeful to his country, in recovering the affections of his tenantry to their King; and 250 perfons actually took the oath of al legiance, adminifiered to them by a Magittrate of the name of Richards, at his inftigation.—ln the month of May the rebellion broke out, and although the defendant at that time was an officer of rank in his Majefty's army, he, notwithdanding, engaged himfelf in a fubordinate capacity, in a Vo lunteer Corps, and exerted himfelf with the utmoft activity againd the infurgents. When the Loyalifts were under the necellity of abandoning the town of Wexford to the tebels, Captain Hay was endeavour ing to make his efcape with Gone companions, by means of a veffel in the harbour, but he was inter cepted by the infurgents, and brought back a prifo ner. When he was fecured, the rebels held a spit to his throat, and girding a (word to his fide, compelled him to place the fhamrock in his hat. During this period Lord Kingfton was alto taken, •and to him Captain Hay communicated the fituation in which he was placed; and the defendant intimated to his LordAtip his intention to make his efcape as loon as poffible. The profecutor then requefted, that he would reprefent his (:he profecutor's) confinement to his Majefty's army, that, if pollible, he might be releafed. Captain Hay, after much danger, did efcape, and was the firfl perfon who trantmitted to Government the intelligence refpeeing the rebels.— After the rebellion had ceafed, fufpicions were en tertained by many perfons in Dublin, that Captain Hay had been inttrumental in favour of the infur gents; and, at his own requeft, he was brought to a Court Martial. The decifion was, that the defen dant had borne arms again!! his Majelty; but it evi. dently appearing that his conduit proceeded from compulfion, the Court molt honourably acquitted him. After this public tettimony as to the rectitude of his motives, Lord Cornwallis appointed the defen dent to the command of a troop in the 23d Regi ment cf Light Dragoons, from which he was after wards removed to the 18th, tinder the command of Colonel Stewart, brother of Lord Cafttereagh. Not• withftanding this refult of the claim of Captain Hay for compensation, the High Sheriff and at Magi ittates of the County of Wexford, demanded that the defendant fhould appear before their Quarter Seffions, to anfwcr the charge of receiving money improperly, as a fuffering loyalil. Upon the rec'om• mendation of his Counfel, Captain Hay tefiaed this application, but contented that the matter &mild be examined in the Court of Exchequer in Ireland, where the Judges qnafhed the proceedings.-- Theta profecutions having failed, Lord Kingfton fern in a fiatement of the fa/as contained in his affidavit to-day, to his Royal Highnefs the Duke of York, in confequence of which, an enquiry was inflituted, the faith of which was, that the Commander in Chief expreffed the tune} conviction that the infinuations againft the Defendant were completely unfounded, and directed that this opinion (Mould be communica ted to Captain Hay. Since that period to the pre fent time, Lord Kinglion had traduced the character of the Defendant in every company he entered, and had declared to Colonel Stewart, and other &tin guifited perfons, upon feveral occafions, that a hang man was the only man fit to deal with Capt. Hay. So much the Defendant had thought it right to fay with relpeit to his previous condutt, and the charge made againd him by the profecutor of being a traitor to hi. country. The fad of giving a challenge, the LearnedCounfel did not mean to deny; but the Court , would fee that the circurnftances by which it was at tended, were not fuen as would warrant them in'; granting the extraordinary interference requelted The interview on the Bth of 06teber had been mif reprefented by the profecutor. What occurred was as follows : After recognizing each other, Captain Play laid, that he had been informed, that his Lord lhip had traduced his charatter, and he and his bro. ther officers with him, Mr. Carew and Mr. Hughes, witted to be informed if that were the truth. Lord Kingfton replied,.that upon hearing that Capt. Hay had been allowed his claim as a (offering loyalift, he had done every thing in his power to bring the De- I fenclant to trial for that fwinoling tranfattion. Capt. Hay anfweied, that he did not wifli to know what his Lordfhip had done ; but he requited an explanation of the language he had fo frequently tiled, and likewile an apoiogy for the expreffinn he had jolt employed. ' re: Kii glti n obtervcd, that he fhould make no apol ley ; that he had been to his Royal Highnefs the Duke of York, to date the Defendant's conduct, and that the only verlun fit to deal with him was the hangman. Captain flay was much irritated, and told Lord Ningflon, that he demanded that fatisfac- Lion from him which one gentleman expected from another. His Lordfhip inquired if the 'Defendant intended it as a challenge ? And being anfwered in the affirmative, he replied. that he would not meet Captain Hay ; that he did not confider him as a gentleman, when he refufed to appear before a Jury of his country, to anfwer for the fwindling tranfac non he had been guilty of in receiving compenfation its a. (dieting Captain Hay then told Lord Kingtion that he had done with him ; that he found him in infamy, and in infamy he left him. In this fiatement Captain Hay was confirmed by the affida vits of the Hon. Colonel Stewart, aad Lieutenants Carew and Cray; to the latter of whom Lord King- Ron had declared, that he would not meet Captain Hay, but would fight any perfon whom he might fend; and that if the Defendant fhould openly infult him, his Lordfhip thought that he was as ftrong, or a fironger man than the Defendant, and would be able to throw him over bridge, or otherwife difpofe of him. Under there circumtlances the Defendant ap pealed to their Lordfhips not merely as Judges, but as men, uniting that they would refpeL the feelings of an injured individual, and would not interfere in a cafe upon grounds like thole Hated on the pan of the profecution. The ATTORNfir GENIRAL replied, and contended that it was quite impoffible for the Court to confider the conduit of Captain Hay otherwife than as that of a man endeavouring to force the Noble Lord into a duel. The quefiion was, whether it was altogether fuch as called for the interference of their Lordihips? this, he believed would not be denied, and he there fore united that the rule would be made abfolute. Mr. GAIRROW, on the fame fide, merely Paid, that the language ufed by Captain Hay, could admit of no other interpretation, but that of provoking a chal lenge. Lord ELLEN sonovc H obferved, that the language ufed certainly could bear no other conflruelion, but that of provoking a challenge, at the fame time that the Court could not overlook thole provocations that gave rife to it. Here the Noble and Learned Lord recapitulated many of the remarks made upon the cafe by the Connie' for Captain Hay ; he particu- larly dwelt upon the forenefs that Captain Hay mull feel at being branded as a rebel, becaufe inevitable and irrefillible neceffity had happened to drive him as much in the power of the rebel forces as Lord Kingflon himfelf was. His Lordibip added, that in all cafes of applica- tions of this defcriptinn, the Court had a difcretion which he nulled would at all times be wifely applied. In the cafe of the King v. Hankey, where, like the prefent, there was all that could be called a dire& challenge, and, like the prefent, all that could be alto called wanton provocation, the Court exercifed that difcretion. They refuted the rule—fo they would here. The Complainant ought to have come into Court with clean hands himfelf; he did not ; his conduft has been that of uniform and reiterated calumny againft Capt. Hay, and he has no title here to the Rule in queftion. His Lordfhip Paid, that it malt not be doubted for a moment, that.the giving a challenge was an offence which the law would puttifh, but; under certain cir sumftances, the parties might not be entitled to the fpeedy and efpectal interference of the Court. Here there did not appear to be any intention on either fide of breaking the peace at this time. As for Lord K. his only objeftion was (as it appeared) to fighting a rebel. He refuted to meet Captain Hay, becaufe he deemed him a rebel, but he was ready to embrue his hands in the blood of any others of his Majefly's loyal fubjefts.—Role difcharged ; but, Paid his Lord {hip, cot with coils. BARON nirrzia. We noticed this caufe a few days fince, when the Court pollpoued the matter, that the defendant might produce fome additional evidence of his holding the office of Mellinger to the Auftrian Legation, in order that he might be proteEted from arreft. Mr. Naas, this day, produced an affidavit from the defendant's Attorney, Rating a converfation with Prince Atahremberg, by which it appeared, that this Amhaffador, at the requeft of Baron Hompetch, granted a temporary fecurity to Baron Filitzer, but refuted to procure it to be notified at the Secretary of State's Office. The Court, after cenfuring the conduft of Baron Filitzer, difcharged the rule, deciding that he was not entitled to the proteftion he fought. THE KING 9. FRANCIS This Gentleman, found guilty of publithing, in the Cartille journal, a libel upon Mr. Robt. Robertfon and others, the GuArdians of the Poor, at Appleby, was brought up and received the judgment of the Court ; which was, that he be imprifoned in the cullody of the Marfhal of the King's Bench for the (pace of fix weeks, and then difchavged. The KING v. PICTON hands over till next Term. COURT OF COMMON PLEAS, NOV. 27. THEODORt catrico. Mr. Serjeant Bssr Hated to the Court, that in the cafe of Clark v. Critico, the Gentleman who had fworn the affidavit refpefling the converfation with Mr. Rolletten at the Foreign Secretary's Office, had completely millaken his meaning. Mr. RoHelton had informed him, that he did not know whether Theodore Critico was Conful General or not, and that he did not know that the Turkifh Minilter or Charge d'Affaires had any power to change the Con. fel. Critico had been regularly appointed and re• ceived, and they knew no other Conful ;'but at the fame time they bad never under flood that a Conful was privileged from arreft. There was another circumflance in this cafe which was very remarkable. An advertifement had been inferted in a morning paper, ligned D. Duc, Secretary of the Ottoman EmbAffy, and dated Upper Berkeley-urea. Mr. Weatherall, the attorney, was ready to fwearohat he had made diligent enquiry in that fireet,andc ould not find that any fuch perfon ever lived there. Thefe faits he withed to be allowed to verify by affidavits. Sir JAMES MANSFIELD admitted, that it was pro per that thole things fhould be verified by affidavit but it appeared to him Itrange, that if a Conful was to be confidered privileged from arrelt, there Ihoulci be no adjudged cafes to be produced which would fopport that right. An Ambafrador and a Conful were in very different fituations. The former r epre. knit(' a crowned head ; while the latter tvai often fubjed of that Hate iu v.liich he c xacifed the tunflions of Ccnful. Mr. Se, jeant Br ST replied, that although he did not reprefent the date which employed him, yet as he employed to ftyci intend the intercas of its cora- Mem, it was impoffilsle that he could dircharge that duty, if immured in a pi lion. Mr. JulUce Heart' anted, What bnfiners had he to do ? Was a Tut kith (hip ever feat in the ports of this country ? Sir James MANSFIELD appeared to think, that even thole who had barn privileged could not claia• that privilege co long after hi:46ll6es commenced. Mr. Seijeant Belt had leave to file frelli affidavit , . CONTRACTS UPON SUNDAY,. DAVEY V. DFSIFONTAINES.—Thit was an adion for too guineas, as the price r.f a horfe, alledged to have been fold under the following circumflancea : The Plaintiff left the horfe at Hull's livery (tables : the Defendant called on Hull, on Sunday the 19(11 of April, and afked leave to try the horfe for an hour, which was permitted. He then Aced Hull, if he might take him to Major Mackenzie, of Tower-hill, who wanted fuch a horfe ? Hull permitted him to do fa, with this pofitive injunClion, 4 , You mita ei. ther bring me the honk, or tool. by two o'clock at Elmira." The honk was taken upon tilde terms, and not returned till cigar. Hull then refuted to take him, and confiJered the borie as fold. The cafe at the trial was borne out entirely by the pofitiv,. teilimony of Hull ; and the Jury believing that evi dence, found a vertlid fer the Plaintiff. Mr. Serjeant SHEPH Eta had obtained a conditional rule to fet afide this verdict on two grounds : a. That the evidence of Hullwas moll insprt)bable in it- Gil, and did not fuppor t the declaration as to the fate ; and idly, that if there was a fale, fuch Pale would be void by the ftatute of Charles 11. Mr. Serjeant Bier [hewed cattle ag,aintl this rule. As to the credit of Hull, that was a quellion for the Jury, and if they believed his evidence, acre was no doubt that there was a tale. The fecond objedion he conceived as more important ; but againft that objection he murk contend, that neither the common law, nor any Ratite, fet afide all (ales made on a Sunday. This at of Charles 11. ena&d, " That tradefmen, artificers, labourers, or other perfuns, fhould not exercife their ordinary avocations on the Lord's Day ; and that no perfons fhould publicly cry, Phew forth, or expofe to Pale, any wares or merchandize on Sunday, under penalty of forfeiting the fame." This Statute he conceived to apply merely to the public exercife of trades, but not to private tales. There was a cafe in tft Strange, 702, where a perfon had been indicted for felling meat on a Sunday, and it was ruled not to be an offence in dtdable at common law. The eccletiatlical law in deed requires thate very perfon fhould attend divine fervice on Sunday, and it was confequently expeded that they were to behave with decency and decorum at church, and it would evidently be a great breach of decency to make contrads about buying horfe; when in church, and when one's mind ought to be direded to other fubjeds. The Jewifh law indeed made void all contraas entered into on the day of their Sabbath, but the Jews obferved their Sabbath with a rigor* that had not been adopted in this coun try. Whether or not the plaintiff had been guilty of any offer.ce againfl the ecclefialiical law, in felling the horfe on a Sunday, Rill that would not annul the contra& Sir JAMES MausvisLis." Certainly, according to the eeclefiattical view of it, a man's mind could not be fappofed to be abfiraded from worldly affairs, and properly engaged to devotion, when he was thinking about felling his honk for too guineas.— The old cafes in Crook, Eliz. declat ing that aflions might be illegal, and yet not void, would not be confidered as law at prefent, as every day's experi ence proved, in the cafes of faits of fmuggled goods." Mr. Serjeant BEST Paid, he meant to contend that every thing was lawful, which was not prohibited exprefsly by fome law. The Al of Charles 11. could not be meant generally to embrace all profeffions ; for the Lord Chancellor may now exercife the im portant duty of putting the Great Seal to a Patent on a Sunday, and he did not conceive that the con ferring a new title could be laid to be an aet of much greater neceffity than felling a horfe. There was an acted paned in the reign of James I. to pre vent thoemakers from expofing their goods to tale on a Sunday, and imputing fecere penalties on them for fo doing. This All, however, as well as the Ad to prevent drovers from driving their cattle on that day, fhewed that it was not an offence at COM. mon law, or otherwife there would have been no oc cation for the Statute. Formerly fairs of cattle ufed to be held on a Sunday. The Learned Serjeant then argued at confiderable length, that what thole Sta tures meant to prevent, was the indecorum of the public curdle of trades on a Sunday, and the dif turbance that it might occation to thole who wi(hed to pals their day for thole purpofes to which it is peculiarly let apart; but that a private tale did not come within their meaning, and that the goods fo fold could not be raid to be expofed to tale, as men tioned in the Statute. Mr. Serjeant SHEPHEILD Paid, that that part of the Jewifh Law which was contained in the Ten Com mandments was completely al pted in the Chriflian Code, and that the Fourth Cimoundrnent would always be confidered obligatory in every Chrillian country. His Learned Friend had appeared to con fider, that, until the pafUng of chafe flames, no other offence exißed. The words of the flatute were, however, different, for it began by flating: ... " Whereas abominable offences are committed againft Almighty GOD ani the Saints, by the pro. (nation of the Lord's D. y, therefore, I e it enaaed," &c. Although the Atl enaded additional penalties and prohibitions, yet the practices which it meant to fupprefs, were illegal before th..t time. If the law was again& expofing to Cale, and, all other things .which were to bring about a fate, they mull be againft the fate itfelf. The Learned Serjeant then contended. that Hull, the horfe dealer, was, in the arielett fenfe of the word, a tradefman exercifing his trade upon the Lord's Day, and that the lending (he husk out for trial, and then felling him, was, to all intents and purpofes, expofing it for fate, and diteffly within the meaning of the words of the flange of Charles 11. On the other point of the cafe he alto contended, that the evidence of Hull did not prove a rate. Mr. Serjeant BAILEY followed on the fame fide. Sir Jambs MAtif FIELD laid, that as to the fale of the horfe, if Hull's cc:limit - 1y was to be believed (and the Jury had believed it) there ccuid be no doubt that there was a fale. As to the oti er point, about the fl.le being void, as having been made on a Sun day, that was a new point, and the Court would ) confider of it.