Star. — London, England, 1818-08-19 00:00:00

d LAW INTELLIGENCE. C G:: CIIANCVAIT, AUGUST Is. orxnA HOUSE. T..en DCHANC Er. LOR" I perceive Mr. Mills Tarrant are both here in this Opera case, Ili we had a paper submitted to me which I T..trrant has not probably seen. I should o . ; , re think that you, Mr. Tarrant, had as well this paper hoar, which has been just handed to le Li; re,:enthr, by the other side, and let me „ :t hyna can by itay mcans this evening, then I teil :nu by some way or another to-morrow What I think you ought to do in this case." THE BEDFORD CRARITT. - . Cri4NCFLLOR, observing some of the it this c.ve, which, ht had formerly de very imprtart, I see szver.d' n this case of the Bedford Charity. which cl is one of the greatest moment. On r. I stated to Sir Samuel Roa.illy, what wad to repeat, that I am decidedly of it Jcw Boys cannot be received into the rheol. But I must say, withrespee't to the if the Charity, that I desire further time ,f them. You may depend on my giving 1: and earliest idormation which [can. ntg.r.s COURT.. • _ Actra stated, that in looking over his and a motion which ought to have been : the Vice Chancellor. The fault was his seeing an order tired up in Court by the 41or, he had ordered his Clerk to deliver of hii briefs (2po wit believe), and this happened to be overlooked by his Clerk. tD CHANCELLOR said, there was an Order reparing, by himself, which, as belied la to hope, would place this branch of the in equality with the other. He had now tour of sitting in this Chair upwards af rs, and he believed he could firmly appeal :lemen at the Bar, and ask them whether ter, on one single occasion, found him to least degree, not courteous to them ? Cer must, as a Judge, feel himself bound to Order; but when he did so, he was confi rould acknowledge that he never presum the practice of the Court, without giving the fullest notice of what he was going Just say, that he thought the same mode lways adopted.—Here the case ended. COUNTANT-GILNERACB CHANCELLOR said, he bad been very, ailed on to give orders for the payment mt of the Accountant-Generai's Office; .dry he found, that out of fifty orders tad made to oblige . parties, there were • not yet called for. LTCINIA V. LYCINIA. In application (special leave having yes -Ibtained) to dissolve an Injunction which ibtained by the plaintiff 'for himself and rs, against their mother, who had. ad the effects of their father. The Injunc s obtained on an ex-pane hearing of the ted by an affidavit, which stated that the tad embezzled and appropriated to her ' the household goods, and particularly ,r with secreting vi certain dr.curnent by ( ci s lembeld peeperty was held . Tim; aa ,K.ort of the present application, stated tbe, t ere hu,band at the time of his death tri Inlvent ; that he was a vi_tualler and i' ileum the time of his decease, the land pet sameetstion into h=r place. When the rue in possession, she was asked for a paper, • slid was useless to her, and she gave it up. W:eto read, she declared herstlf wholly Imo. its contents, and that the ak. , ,lication sisce made to the landlord, and it appeared It* for five }ears had been granted to the ' of some small tenemeats which wanted rderable repairs, therefore the giving up uocument was benefit :al to his family rather than , to them. The whole amount of the pro. declared to have been £6 in money, 'and half butts of beer, while the plaintiii ly sold a :muse which he had taken for £lO. Eventually, th e l an dl or d rta7 m to the plaintiff, on account of her dili propriety of conduct, and in this manner in possession of the property. As respec tements, she alleged the landlord had taken of tia:m, and they were wholly out of her se also alleged that she had paid the whole teral expenses, and therefore had no assets is. to CHANCELLOR.—I - lave you an affidavit we el notice on the parties ? iicitor answered in the affirmative. ,a CtIANCELLOR.—Then-Let this Injanction :ately dissolved. ROLLS COURT. .trrIONOI: RESCINDING A CONTRACT. laiLrf O. DDIVER AND TANNCODIDN. e saßill filed by the Plaintiff, John Bailey, the Dilendant, Samuel Driver, for the pure residing a contr act entered into in the year 'the purch ase or t h e l ease of a Coal W ha rf River Lea, at Stamford .11111, Stoke Newmg qer with the stocks and utensils, and also will of the business. th... defendant, had advertised the &c. of the Coal Business at Sum for Sale. Tl.c account given of the busi-, `Atm.:, at the first view to be satisfactory, Bailey availed himself of the assistance )rot Mr.. Francis Bail y, and of Mr. Mar two gentle:mn had two interviews I.h4er rcliminar y to a settlement, in which :al was decided upon ; but at the third the °Lxered into the particula; 5, upon the faith of nC ccutract was subsequently made. Mr. +tit rtpiesented his business to be worth the • rif uneen hundred pounds a-year. Mr. ...11 Mr. F. Bailey were anxious t o i ns p ect cf account ; to this Mr. Driver was not but told them, however, that as he kept his a,raY peculiar to himself, and that not by :r), they would afford no infuimation what ty.e real state of the trade. But to give an do: rnAle of conducting the business, of azd or its profits, Mr. Driver drew out att of aper, an account on the one side of ex , eases, a n d on t h e other side the incom '. I.:c clear ar,nual profit appeared to 'he 01,470 per annutn, fixing. at thesitime time, the criterion from which thsparties were to judge. of the amount of his profits, by stating that' he made his profits by charging 12% per chardron upon tb, Pool price of the coals sold, and then going through the rest of their items on each side of this account.-. Driver, however, it seems, as collected from his an swer, did not rest upon this statement, for he says in his answer, he produced to the parties negociating with him, another paper, which he called a balance sheet taken of his debts, effects, and stock, at parti • cular periods, with the design of shewing that his profits for fifteen months previous to the 4th of April, 1813, were £1752. 6s. However, the result of both documents corriiiponded, £17.52. Gs. being after the rate' of upwards of £1,400 a year, and the first mentioned document guaranteeing a profit of £1 179 per annum. For the lease of the premises and good-will of the business, Mr. Driver asked the sum of Four Thou sand Pounds, but the purchase money was ultimately agreed at £3850, to which was to be added the stock and utensils, which were valued at £2.850, amount ing in the whole to £6700. Of this the £2850 for the stock, &c. and £lOOO, part. of the purchase-money, was paid down on the signing of the contract, on the 31st of July, 1813 ; the further sum of iC3SO was given in a promissory-note, payable at six months after that time, and the remaining £2OOO in the same manner at twelve months, Mr. Driver en • ' gaging to remain upon the premises tilt the month of October, with the view of instructing Mr. Bailey in conducting the business, and introducing Mr. B. to,the customers as his successor in the•trade. Mr. Bailey entered into the management at the stipulated time, and soon found reason to believe, that in the account which Mr. Driver had given, the profits were greatly exaggerated. This led him to make a minute enquiry, and, in the end, he found the statement so erroneous, that in the way Mr. Dri ver stated his profits and outgoings, the trade so far from being in the least beneficial, must actually be a losing concern. Mr. Bailey then gave notice of his intentions to file his'Bill, for the purpose of rescinding the contract, calling upon Mr. Driver to pay back the sums al ready paid, return back the Promissory Note for 0,1,600, which had about six weeks to run, and take back the business. This Mr. Driver not only de clined doing, but proceeded to negociate the Pro missory Note to the Defendant Mr. Farncombe, but fortunately for the Plaintiff, with notice that there was a dispute about the Bill, and the money was sub sequently impounded, to al ide the event of this suit. Mr. Bailey, amongst other evidence adduced in support of his case, proceeded on a strict examina tion of Driver's books, and en the the authority of these and the evidence of the workmen employed by Driver himself, he maintains that almost all the items in the account which was the basis of the contract were erroneous, that the expenses of the trade of every kind had bee.: underrated, and that outgoings, to the amou"t of between 7001. and 8001. a-year had been altogether omi: ted. Mr. WZTIIERZLL, who with Mr. BLAKE, was Counsel for the Plaintiff, opened the case in an able manner, and commented in very severe terms ,uponlbe conduct of the Defendant Driver, the quilt- Wing sophistry of whose answer proved that he had no solid or sabstautial defence to make. A repreten tatiou of pewits, amounting to a warranty, was most assuredly snade—that representation proving to be fallacious in every respect. It was very true that the books were laid upon the table before Mr. F. Bai ley and Mr. Martineau ; and, in the language of Mr. Driver,' that they might have looked at them " as long as they thought ht :" but of what use could the books be, coupled with the declaration, that it was impossible to understand them ? He was aware of the grounds upon which the Counsel for the Defen dant stood. They built their hopes upon his Ho nour's granting an issue to try the fact of misrepre sentation, and thus by heaping expense upon expense upon the Plaintiff, induce him to abandon his well founded claim for redress. But the representation, and the depositions produced pn the present occa sion, were evidentia rei so conclusive in favour of the 'Plaintiff, that he was satisfied his Honour would see that the iustice of the case required that the prayer of the Plaintiff's Bill should be instantly granted. Mr. HART, Mr. BELL, and Mr. itouPELL, the Counsel for the defendant Driver, founded their op position to the bill chiefly upon the idea, that the de fendant having a thing to dispose of, had a right to do so to the hest advantage; and that it was for the plaintiff, or his friends, to see that the bargain was a fair one. It was a strong case of crassa nedirientia, in which the Court could not itszerfera. In tact it was a case which had nothing to do with equity ; if n.i: representation had been made, a Court of Law wt,„ld have afforded ample redress, and to a. Court -of Law ought the plaintiff to have applied. As to tine account said to be warranty it was no such . thing; and the paper on which Mr. Driver could alone have intended dependence to be placed, was tlse debtor and cred;tor account, which being taken • from the books, must necessarily be a correct represeatation. They confidently hoped that his Honour would dis miss the bill ; but if he was inclined to think that some Misrepresentation had actually taken place, that he would 'bract an issue to try what that misrepre sentation was. _ _ SIT ARTHUR PIGGOTT and Mr. LOVATT shortly spoke on the part of the•defendant Parricombe, and contended that he had nothing whatever to do with the transaction, beyond that of fairly giving full and fair value for the note in question. Mr. Wrrnsam.t., in an able reply of upwards of two hours, maintained that the case of the plaintiff had been fully made out ; and that upon the defen dant': own view of the case his client was entitled to the remedy prayed for by the bill. THE NIASTER of THE ItoLLs.—" There are two questions which arise in the present case:-Ist. Was these misrepresentation on the part of the defendant, Driver?-2d, What is the effect of that misrepresen tation? With respect to the fact of misrepresenta tion, the witnesses of the plaintiff, Bailey, speak posi 'Lively as to one paper of particulars , as being the only one produced on the part of the defendant to shew the value of the concern then about to be sold; and all the evidence of dui plaintiff is directed to that one paper, in oilier falsify it. The defendant, Driver, on the other hand, affirms, that the paper, on the faith of which the purchase was made, was not that which is relied on by the plaintiff, but t.nother, which is aprended to his•anstver. The parties are at direct variance as to this important matter of fact. The plaintiff does not attempt by anp`evielence adduced to falsify the paper referred to by the dealt— dstnt; neither does the defendant offer any evidence; in support of it. In regard to the document, hitioy ever, relied on by the plaintiff, the evidence on his part goes distinctly to prove that all the items in that' ' paper are false ; and, ass a general result, that tire' concern yielled no profit The first question here is, how the Court are to get at the facts? The Ceastis by no means satisfied with Driver's account, as de tailed in his answer; and, taking both documents to gether, there does appear to have been great mist e resentation. Driver seems to rely on the assump tion, that the plaintiff must have known that there were several items of disbursement not included in the paper relied on by the plaintiff; and •he makes reference in support of this to the hooks of the coo cern, and to the paper annexed to his answer, as the paper of particulars. Now, it is very possible that parties conversant with the trade might have known (,f such articles of disbursement; but there is no rea son to presume that a patty who, like the plaintiff,' was ignorant of the trade, should know any :hing of the matter. Still, there can' be no doabt that the plaintiff was guilty of 'aches in not making the ne cessary inquiries; particularly, considering that so alarming a fact was stated, as that the books Could, not give a correct view of the concern. But then, again, the value of the trade for the past must have been, and certainly was, in the knowledge of Driven, and when a party has a knowledge of, and misre presents a fact, he is guilty of a breach of faith. It appears, upon the whole, essential that an issue should be granted, to ascertain how the fact, as to the repre- 1 , sentations made by the defendant, really stands.—' Next, as to the second branch of the question, the consequence of any misrepresentation on the part of defendant, if duly established—the plaintiff does not propose to restore the good-will,, but offers to give up the premises, and to do all acts on his part to restore the business to the defendant. A difficulty arises here from the impracticability of replacing the defendant in the situation he was in. Bailey is in pos session, Driver is dispossessed. Suppose Driver is restored, there is nothing to prevent Bailey from setting up trade next door to him.—ln the case of the sale of an estate, the thing can be restored in solido ; here it cannot. The good will does not necessarily pass with the premises. The difficulty has, it is true, been increased by the con duct of Bailey himself, in delaying, for a length of time, to bring his bill ; whereas it was his duty to have complained immediately. He must have dis cerned several errors immediately, such as those re lating to coal, duty, sacks, &c. It is alledged in the bill, and admitted by the defendant, that he might have said the profits would not be ascertained for a twelvemonth ; and this does in some degree relieve the plaintiff from the blame of not having brought his complaint sooner, though not entirely. When a party purchases on a warranty, and keeps what he purchases for a considerable time, as in-the case of a horse, or goods, &c. it is doubtful whether he ought to be relieved. It is held in law, that thourth perhaps he may recover damages , he cannot Corifioel the seller to receive back. the Court, however, cannot upon the whole go the length of dismissing the Bill, in the present case,, because of such delay. Tr would he too much to say-that the plaintiff can-, have no relief;' it would not be equity to dismiss the Bili. Let an issue therefine be taken to ascertain whether the contract was entered into upon the faith of any false representation : and whether the defen dant has sustained any, and what injury ?" 7 atag, tono Petaiane...s its e1..0 to be, .in r..y l a m n o. ben that t;lantnar St! ,•thtt ats of of you ±C Mr:gyn.. Tar^ he . tot i ro dh c ,sre awn. iv on har,cel op rambet aad h The LOAD jag now pre ear TeliOn COUL at at Lid the Lon( sateen year ti the Gelid h.td eve be, in the 1 tartly he mu make this Or dent they wo el to alter th retv person to do. kle mt i,, A 1,1 be aim ACC le LORD rp:A:N.S CA] a money ou ba to inquir si•sh he hai Muthirtyn Itis US an artily been of Ind been obta 'rig vv.. .T 5 itikettii to t tion ton wp-, , orte edam bad walla all ctuged 'at Aka email vat, in mil amine et late )seen't weaver, as krdjad p persoas sse vshelh ahey Not ureoaniem had been sin that a lease iffitStd, PI very amid eiocumes all "kiwi to ry they d es and a bad mull) !Mon. (4 . f it dm house lace anJ p ' she put led the tr u e Maim o Pet She inner later h o d, Tie Liao cite suvic he 1 414,1 idu,:ta • tV:Estr Luisa, asainst role of re 'Sj3, fur t.Pontho I. trte , will f j 9 Ded )4, o i n , ihi s 4 v i 7 . 4. T 1 I :'a Mr, 1 ent, 1 , 1 k 4 the IleT the In tturr sun: tieeau s , books 'tso, h a , la a • • en: . l 'Ot ar. u. t . .•., rl a'., GUILDFORD AS,OZES. The whole of the capit.:l convict thirty-two in number, have arrived from Guildford at the C.itinty Gaol, llorxemonger lane : all of whom are repri.ved, except Weil, fill' forging and uttering of various count,' fdt 'kink Notes; C ,ak, for a burglary ; and Mllions Park for a like offence, who are left for execution. The prisoners for minor °fences have each been conveyed to the different prisons' to • undergo their various punishments. CORK ASSIZES, AITC. CST 7. WHITF: V O'DMISCOLL. This trial came oa before Baron Ssturft and a re spectable Jury. It was an action brought by the plaintiff, Wm. Preston White, against the Proprietor of The Cork Southern Reporter, for an alleged libel, contained in an advertisement, set forth in the name of Wm. Thompson, and published in that paper on the 3d of February last. The dam tges were laid at 1 £l,OOO, and the defendant pleaded the general issue. In his address to the Jury, Baron SMITH said, that the action was founded on an advertisement, not an anonymous advertisement, but one that ascertained at once the author, beginning with his name and end ing with his address, inverted in the common course and routine in a public paper, which had uniformly, for a number of years, been conducted by the Editor with great correctness, and which had frequently contained paragraphs complimentary to the plaintiff; a circumstance which negatived the idea of malice or personal The presumption was too, that the contents were unknown to the defendant, who would be likely to read the paragraphs but not advertise ments, to which his paper gave admission. The action arose out of a publication, which, though libellous, wa s b are l y so , and barely trans gressed the limits set by law. It was brought against the publisher, and not against the author. And this was not a matter of necessity, but of choice. For the Editor had at once offered to give up the author and the manuscript ; thus not only directing the plaintiff to the right quarter, but furnishing him with evidence to support bis action, namely, the band-writing of the author. It is said, that to vindicate his character is the object of the plaintiff. Surely this would be best vindic4ted in an action against one who would have the means of justifying, if truth and law enabled him :o do so ; and who, in failing to do so, would shew that he was a calumniator. But here the plain tiff rejected this surrender, and the reason which he assigned was, that the author was no mark for da mages or costs. This might be true; but what be came of those generous effusions which his Counsel were instructed to indulge in? The plaintiff here seem ed to recollect his pocket and forget his reputation. On the whole, the Learned Judge said he felt him self obliged to direct the'Jury to find for the plain : tiff ; but they would probably be disposed to console themselves, under the necessity of following those di , rections, by awarding damages of very small amount. The Jury found a vet.lict fez tlx damages, and Gd: cost>. itinETING OF MAJOR CARTWRIGHT'S FRIEND* Yesterday a Meeting was held at the Horns Ta-' vern, Kennington,. of " the Friends of radical Re forra, and its advocate 3lajer Cartwright." .. *At five o'clock about 400 persons sat down to din ner, thelion. llouoLAa KIN N A tnn in the Chair. After dinnerthe first toasts were— " Prorle, •the only source of legitimate power." " and Canititlltioo, and a speedy recovery to bosh." " A real ltemertniation of the Pe:ple in Parliammte by which both the King and Nation may be :reed from the usurp-. Lion of a llarmigb-mongering oligarchy." Mr. KINNAIRD rose to propose as a toast, &name which was intimately connected with Reform. The company would anticipate that he alluded to him who had so long and so ably advocated that cause. It was scarcely necessary to name him, because there was no other Englishman to whose lot it had fallen, to manifest so long and so consistent a support riche public cause. it was, however, his misfortune to state, that that life which had been spent ie the sef vice of the country, was now attacked by indisposi• Lion. The worthy Major had sent a letter, contain ing a.statement of his sentiments, which he was only able to sign, and this letter was accompanied by a note from the physician.—(Here Mr. Kianaird read a letter from Major Cartatight. It expressed his re ret at not being able to attend the Meeting, and re "guested that Mr. Cleary might be permitted to read , l a paper containing what he wished to address to the Meeting. He a.so read a note from Sir Christopher Pegge, which stated that the Major's indisrosition proceeded from obstructed persp:ration, but intima ted that his recovery might he expected in a few days.) Mr. Kinnaird then proceeded to remark, that the title of the Major to the approbation of the friends of Re form, was enhanced by his having been made the object of malignant' abuse and misrepresentation.— Among his calumniators, a professional Gentleman, not unknown to those who composed that Meeting, had charged him with making big blunders, and pro posing little nostrums. In both Houses of Parlia ment it was asserted that Annual Parliaments were Unknown to our history ; and yet, in the recently published manifesto of the party that made this as sertion, it was admitted that Parliaments had been Sessional, and that there had often been several Par liaments even in the course of one year. But it was singular, that he who proposed radical Reform should be the person accused of applying little nos trums to the Constitution. The quack doctors who wish to patch up the health of a patient, might justly , be charged with dealing in nostrums, but such inef ficient applications never were proposed by the wise physician who was desirous of producing a radical cure. After an eulogy on Major Cartwright, 11-. 'Kinnairl concluded with proposing the following toast—" The venerable Major Cartwright, the father of Reform, and may he live to see a death-blow givers to corruption. Mr. CLEARY stated, that he had seen Major Cart wright in the morning, who then stated his most an xious wish to attend the Meeting; but as drat was impossible, he had sent an address in manuscript, Which he (Mr. Cleary) hoped the compel; would r permit him, to read. The manuscript, which was of 'considerable length, was now read by Mr. Cleary. h insisted on the necessity of radical Reform, and recommended the introduction of a Bill for that ob ject into Parliament by Sir Francis Burdett. Some thing tangible, on which the public Mind could be find was wanting. When t' xsar was killed, the apeereir of Mark Antony over his.body had little ef fect, till he spoke to the people of the will of Crear. In the like manner, if air Francis Burdett should bring forward a Bill, an object would •be distinctly presented to the consideration of the public, and there would soon be a general cry of—" 'the Bill— the Bill—Burdett's Bill. We will hare Burdett's The address concluded with proposing the following sentiment to be drank by the company as a Yeast—" Take your choice, a Civil Government or a military despotism ; in other words, Burdett's Bill or eastlereiorlis ba;onet." _ This beiug .- drank, the next toast was—" Sir Fran cis Burdett and the Reformers of, England." Sir FnaNets Buni.Err believed that, after the able speech which had berm delivered Boni the Chair,_in every word of which, and in particular in the ap probation bestowed on the Major, he concurred, and after the discourse which had just been read to them by Me. Cleary, it would not be necessary for him tat' say much on the object of the Meeting. At the . same time he thought he should fail in shewing that respect which he considered due to Gentlemen who . had drank the toast just given from the Chair with so much kind approbation, if he did not take thii op= portunity of saying a few words. With respect . te the purpose for which they had that day assembled, he should only observe, that it combined, both on public and private grounds, every thing most grati fying to his feelings. Ile never felt more interest in any public meeting than in the present; and for Ma jor Cartwright,. his character had been too long and too intimately known to all present, to render it ne cessary for him to descant on his merits. On that occasion, however, it could not be superfluous to. notice the unfounded aspersions which had been cast on that venerable character, and in that respect the' worthy Chairman had relieved him from much of the task which he should otherwise have regarded as imposed upon him. But there was one topic which had been left untouched, which he thdught ought not to be omitted. Since it was found that Maio:- Cartwright's lite was spotless, that his honour and in tegrity could not be questioned, and that he was dis tinguished for all those virtues which render a rnaa estimable in the eyes of others, it had been given cut by his adversaries, v.ho were also the adversaries . of Reform, that his mental and bodily powers had failed . him, and that he was in fait become an old wocnan. How far this was from the truth the paper which had just been read would suffice to spew. That able exposition of his opinions was not the production of a man who could be regarded in his dotage, or who deserved the epithets which had been applied to him. The author of that paper was now fast advancinkio SO years of age, and he wrote with a force and spirit which might induce those who heard it rather suppose that it carma from the pen of cne who not yet reached twenty. Ile should be had , young men manifest an equal degree of energy the cause of liberty. Unfortunately but too m; young men of the pre,cat day w ere impres.,A old wonhiniah ..%•Indl to' i , 1 ' I t„ ; 1 ~ . ' I \ I i II . . 'i . . : • ‘liit . , fl i Ir , 1 ( 1 • 1' 1, 04 . . I. :. , I k i i 1. i 1 . f . 4 /0 , • i I '' .. ' . i • I: it I 4 1 . ) i . t 1 1 . g t t ; 1 1 t, I i ' 1 I spirit 7.. :her to. to had to Kr ITT la d m* with them=