Star. — London, England, 1820-11-16 00:00:00

LAW INTELLIGENCE. • COURT OF RING'S BENCH, NOYBWSZR is. DOS ON THE DRMISI Or DIIDMAN O. DDDMAN. This was a motion by Mr. Serjeant TADDY for a Sew trial, on an action of ejectment, that had been tried at Guildford, before the Lord Chief Justice. The deceased had a natural child, in the year 1791, by a woman whom he afterwards said he had mar ried, and introduced into society as his wife. Soon after the birth of the natural child, the deceased and the mother had gone together to London ; and on their return, gave out that they had been married, and were received and visited as such. The question that came before the Jury was, whether the plaintiff was the legitimate son of the deceased; or, in other words, whether the parties had been really married. The Jury determined against the marriage, and the motion for a new trial was made on the ground of misdirection en the part of the Judge. The Learned Serjeant contended, that the publication of banns was not necessary to be proved, as repute would be sufficient, especially in die case of cohabitation foc seventeen years ; and the marriage might have been by licence. The LORD CHIEF JUSTICE read the evidence in the cause, and observed, thait he had stated to the Jury, that though the marriage might have been irregular, yet if they believed that it had really taken place, it was not to be questioned at that distance of time.' The plaintiff was not excluded by the result of that action ; and had the verdict been different, he (the Chief Justice) would have been equally loth to base disturbed it. Mr. Justice BAYLEY said, that the marriage was allowed to have taken place in London; but though Registers were kept in all the parishes, no proof had been, produced that any search had been made. The journey to London appeared to have for its object to enable the parties to give out that they had been married. Mr. Justice BEST observed, that there was no proof of the man iage ; and that all the presumptions lay on the other side, as the woman had nut pre vioubly led a virtuous life.—ltule'refused. LEWIS V. CLEMENT. Mr. ADOLPHUS in this cause moved fora Rule to shew cause why there should not be a new trial.— The action had been brought by the plaintiff, an At torney-, against the defendant, Proprietor of The Observer Newspaper, for an alleged libel inserted i.i the defendant's Paper. The alleged libel referred to conduct imputed to the plaintiff* when an Insolvent had been brought up to move for his discharge, and had been headed— `. Shameful Conduct of an Attorney." The cause came on for trial at Maidstone, in ISIS, and the de-, feadant had justified the statement from the truth of'' the facts. The Jury on that occasion had returned a verdict in favour of the defendant. A motion having been made in the Court of King's Bench for a new trial, the Court had been of opinion that the plea of justification could not apply to the heading of the article, and that a verdict should have been for the plaintiff. The cause was sent to the Sheriff's Court, for the purpose of assessing damages, and the Jury,- under the direction of Mr. Serjeant Huh lock, assessed the damages at £5OO. The Learned Counsel now moved for a Rule to shew cause why the verdict should not, -be set aside. First, on the ground of misdirection on the part of the Learned Seyjeant who tried the cause ; and, secondly, on the ground of excessive damages.—Rule granted. 11.A.WTHORS V. MILLS. ,The. plaintiff in this cause had been the Mayor of Bristol, and the defendant is not unknown to the Public. The defendant having summoned the plain tiff to London as witness in a cause, had tendered £lB as a remuneration for his travelling expenses,, which was refused, and the plaintiff recovered £2l. A .new ti ial having taken place at Bristol, the ver dict was confirmed. The defendant now in person moved for a new trial, on the ground of misdirec tion on the part of the Jude, and of partiality on the part of the Jury, six of whom he would have challenged, had he not been overruled, as Members of the. Corporation of Bristol. The Court granted tiv Rule, on the understanding that the other party should have leave to enter a State process. THE KING V. T. DAVIDSON. The defendant, wl:ose trial for a blasphemous and seditious publication at Gnildhall, was formerly re potted in the STAR, appeared this day in Court, and moved, by Mr. COOPER, his Counsel, for a new trial. The Learned Counsel began by reading the affidavit of the defendant, stating, that at the time of the trial lie had been intimidated by the Judge, who had im posed three successive fines upon him, to the amount, in the aggregate, of £lOO. That the deponent at 'the time had been told by the Judge, that whatever should be the result of the trial, the fines would be exacted ; and, fearing for the fate of his family, he had been unable to do justice to his cause, for fear of incurring the displeasure of the Jude; else he could have cited one hundred authorities in favour of the opinions he had advanced; and, as the Jury had shewn no impatience whatever at the line of defence he was pursuing, he might have been acquitted. The Coun sel was proceeding to read the affidavit, when Mr. Justice BEST obverted, that it was impossible eo know if the affidavit was true, as the defendant was a Deist, and did not believe in the book on which be had been sworn. Mr. COOPER said, that the defendant, though a Deist, might have a proper sense of the obligation of an oath. Mr. Justice BAYLEY observed, that the defendant :night have a just regard to an oath adapted to his peculiar belief and opinions ; but could not be sworn oil a book, the contents of which he disbelieved. The Counsel then proceeded to argue, that the fines imposed en the defendant, were not justifiable; as a Judge could only fine for contempt, and that of such a nature as.tended to obstruct the due adminis tration of justice. Mr. Justice BEST here remarked, that the facts had not been correctly stated in the affidavit. The Counsel resumed, observing, that for the pas sage for which the first fine bad been inflicted, though the language might sot have been altogether deco oes, it only went to state that the Deist was not a Christian ; and that certainly was no sufficient ground for the imposition of a fine. Neither eras the passage *au - dated to the Bar an adequate cause. The third . faie tigter or . dens as 8c des.. Justice Besr.—fte words were, The Nobility ;lee Blacklegs, and thi Bishops Infidels:" " But the same remarks said the Counsel) bad teen often niade ' • and much of the immorality of the times had been ascribed to the,bad example of the higher orders. The Learned Counsel thin contended that the Judge had no power to fine at Nisi Prim: ; nor could he - find any example of such a.course hav ing ever been adopted. There were great negative proofs to the contrary. At the trial of .D. I. Eaton,, before the late Lord Ellenborough, the Judge was obliged repeatedly to check the defendant ; but when the latter told him he could not do justice to his cause if he was interrupted in that manner, the Judge allowed him to go on, 'and had neither fined nor committed him. - The second negative proof that no such power existed, was - at the trial of Carlile, when no fine had been imposed by the present Cl s iefJustice of the Court of King's Bench ; and the other instance was in the case of the King v. Wedderburn. No more tremendous power could centre in a Judge, than the right of fining ; as a defendant, having a wife and family, must necessarily be intimidated by the consequences that must result to them from the exercise of such a power on the part of the Judge. The defendant had stated he had been so intimidated, and had been afraid to state anything that might offend the Court, lest his family should be turned into the streets to starve. The proper mode to check what might be improper on the part of defendants, was, not to fine, but to commit. In prison, a man might see that he had done wrong ; and when brought up again, would most probably conduct himself in a proper manner, and might eventually be acquitted. He would suppose, what was fortunately now but a supposition, that there should be a corrupt Court and a corrupt Government, and that to gratify the latter the former might impose a fine of 01000 upon a per son on his trial : in that case the defendant must be unable to make a bold defence, , as he had only a choice between his own ruin and that of his family. Should such a power be found to exist, from thence forward there would be no intrepid or manly defence. He (the Counsel) felt much respect for the judge who had imposed the fine, and he was sore the best way he could take to merit l:is (the Judge's) good opinion, was to state his own with manliness and freedom. He should therefore observe, that the Learned Judge himself appeared to have doubts as 'to the correctness of his procedure, from the circum stance that he afterwards remitted the fines. By such a mode of proceeding the defendant had not. been punished, nor had any example been held out" to others. He concluded by moving for a Rule to shew cause why a new trial should not be granted. Mr. Justice BEST said, he was the last man who should wish to prevent the defendant having the be nefit of a Rule; and had it not been for the con cluding part of the speech •of the Learned Counsel, he should have taken no part in the discussion, but have left the whole to his Learned Brothers. He had no doubt whatever as to the Judge having the power of fining; and should continue to think so till he should be infornied by the House of Lords that he was in error. He had chosen rather to take that course than to commit the defendant, which he (the defendant) wished to provoke him to do. Should the defendant have been committed, the consequence would not have been as the Learned Counsel sup posed, a suspension of the proceedings, but the de fendant must have been either acquitted or convicted, neither of which could have been satisfactory in the absence of the defendant, and when the cause would have been unheard. He had chosen rather to fine than to comniit the defendant, as by that course he would be enabled to complete his defence. If a Judge were capable of abusing that power, he would be unworthy to sit an hear longer on that Bench which he had contaminated and disgraced. ' When he had been told by the defendant that his (the Judge %) province only was to preserve order in the Court, he had overlooked the insult to himself, though he could not in the saw manner pass over the attack on the Bar, and felt himself bound to protect the law, in the seat of Justice. The defendant had made a gross attack on the Christian Religion;and for that the second fine had been imposed ; and then came the attack on the Nobility and the Bishops, for which he had been fined the third time. At the same time, he had told the defendant to state freely whatever he conceived to be material to his case; provided he did not attack the truths of Religion, or libel persons who were not before the Court, and could not be heard in their defence. If he had acted in error. by all means let the defendant have the benefit of it ; though, as to the power of fining, he could enter tain no doubt. In consequence of the imposition of the fine, the defendant had apologised for his con duct, and had at the same time stated, that the exac tion of it would be equivalent to a sentence o perpe tual imprisonment. As he had no wish thac.such a consequence should follow, and as the defence.had been subsequently conducted in a decorous .and pro per manner, the fines had been remitted. The Bench remained some time in consultation ; after which the LORD CHIEF JUSTICE said, that a Judge might fine at Nisi Prius, in the case of imprci per conduct; but as it had been stated, on the part of the defendant, that he had been intimidated by the fines, and prevented from defending himself in the manner he otherwise would, the Court would grant the Rule, to come on for argument in the pre scot Term. • Mr. Justice BATE= bad no doubt as to the'power of fining at Nisi ,Prius in a case of contempt, as a Court at Nisi Prins was a Court of Record ; but as the defendant mig ht have been intimidated, he con curred in the opin ion that a Rule should be granted to shew cause, and trusted the defendant would so conduct himself; as not to call forth the animadver sions of the Court. As to the propriety of imposing the fines on the occasion alluded to, it did not belong the Court to decide. Mr. Justice HOLROYD (who came into Court to wards the close of the argument) stated his opinion to be, that a Court of Record had the power to fine; and that the Court at Nisi Prius was a Court of Re cord. He also concurred in the opinion for grant ing the Rule. Mr. Justice BEET was happy that the Rule had been granted. He must, at the same time, beg leave to state, that be had, on the trial, told the defendant to make use of envy means in his power to establish 'his defence, codtpatible with a regard to Religion . . and the characters of others. • THE 10110,V. JANE CA EMIL Mr. HILL, in this case, moved for a Rule m ar rest of judgment, on The ground that thotigh there were three counts in the indictment, there were only two on the endorsement, and contended that such a variance was not a defect in form but in substance. The COURT granted the Rule, leaving it to the Counsel either to take it for the purpose of quashing the iadictinent, _or in atrest of judgment. EDWARD V. O'BRIEN. Mr. SCARLETT, in this case, moved for a Rule to skew' cause why a criminal information should not be filed against Mr. O'Brien, for endeavouring to provoke the plaintiff to fight' a duel. The parties had a quarrel, arising out of some commercial transac tions, when the defendant meeting the plaintiff, held' up a stick before his face, and afterwards posted him in a public room.—Rule granted. DOE, ON DEMISE OF HART V. CALDER. • This was an action of ejectment tried before the Lord Chief Justice at the last Assizes, and turned upon the construction to be put upon that clause of the Statute of . Frauds which requires three witnesses to instruments liar the transfer of real property. It appeared that the testator, under whom the plaintiff claimed the tenement in question, made his will, and not being aware of the necessity of having three witnesses, it , was, in the first instance, sub scribed by two only ; one of whom being appointed executor, it was suggested that he was an improper witness, on which he drew his pen through his sig nature, leaving his name; however, still legible ;.and the landlord of the house was called in, and sub scribed the will in his stead. - _ The Jury found for the legatees who claimed un der the will, and against theheir at law. Mr. WALFons now moved for _a Rule to chew cense why a verdict should not be entered for the plaintitE He contended that it was not a question if degree on which the Court were called upon to judge how many strokes of the pen obliterated the name of the subscribing witness, but ;that thet will never was a perfect instrument, subscribed by three credible witnesses, as required by the Statute. The LORD CHIEF JUSTICE asked if it had not bet ter be made into -a case, as the point was a new one? Mr. WALFORD said, the parties were extremely poor, and livirg in Ireland.—Rule granted. COURT OF COMMON PLEAS, NOVEMBER TR'JSCOTT V. CIiitISTIE. This was an action on a policy of insurance, brouglAt under the following circumstances :—ln the month of October, 1818, a correspondence took place between the plaintiff,, who was the owner of a vessel lying in the harbour of Madras, called the Cornwall, and the authorized officers of the East India Com pany, by which he agreed to let his ship to freight, and undertook to convey - to London any goods they might put on beard of her, together with such a number of invalids as the ship might be found ca. pable of conveying, on a survey being taken. The ship was afterwards surveyed by the proper officer, who reported that she bad convenience for fifty in valids. Shortly after this survey, the plaintiff wrote to the Secretary of the Board of Trade, informing him, that, with the addition of another deck, the ship could, in his estimation, safely convey the in creased number of 200, instead of 50 invalids. The officer who had made the survey, on being applied to for his opinion, stated his concurrence with the plaintiff in this respect ; on which ahe Secretary ad dressed the owner, informing him, that "the Gover nor, in Council, bad approved of his undertaking the projected alteration in the arrangements of the Corn. wall ;" and gave him " an assurance from the Go vernment, that invalids to the extent of 200, would be embarked eventually, if, on the usual military survey, the ship should be found capable of receiving them."', The servants of the East India Company began to load goods on board the ship a few days after the correspondence, and continued to do so until the 23d of October. On the 24th of that month a violent' gale arose, which completely disabled her from per ' forming her homeward voyage, and at this period about 140 tons of the Company's goods were on board. The owner had, besides, 'shipped water for 100 passengers, exclusive of the ship's company ; and, for the purpose of erecting an additional deck, a quantity of timber had been brought on board, and the work was commenced. The defendant subscribed the policy for 4:200; and on the trial of the cause, the Jury gave a verdict for the plaintiff to the amount of £4B, for the freight insured on goods, re specting which there now appeared to be no question, and £56 for the insurance on the passage-money, if the Court should be of opinion that defendant was liable. Mr. Serjeant BLOSSETT, for the plaintiff, having stated the-case, contended that the defendant was clearly liable. The two questions for the considera tion of the Court were, whether this correspondence was a sufficient contract under the circumstances of the case, and whether there had not been so far a per formance on the part of the plantiff as to entitle him to recover. Freight had been lost by one of the pe rils insured against ; it had been lost by the perils of the sea, and on that ground, therefore, he had a right to expect the judgment of the Court. Persons pro perly authorised by the East India Company corres ponded with and instructed the plaintiff, who, incon sequence of these instructions, had made alterations in his ship, and was thereby precluded from letting it to freight to any ether persons. This case differed from that of Forbes v. Aspinall, 15 East, 323; for there the freight was not lost by the perils of the sea. Mr. Serjeant TADDY, for the defendant, submitted that in this case t3iere was no contract, for that which was relied on as such was merely a correspondence .between the plaintiff and some of the officers of the East India Company, and not a valid and proper charter-party on which it could be said the plaintiff possessed any definite rights. The correspondence itself expressed nothing done, but everything to be performed; all was Infiguro, and it could not be contended that on this the plaintiff could declare as l on a good consideration. Though there was a con T , tract for the conveyance of goods, there was none for', the passage of the invalids ; as to th e l atter , i n d ee d:' the correspondence was nothing but a mass of con tingency, the words, "if, on the usual military sur vey, the ship shall lie found cap a bl e o f rece i v i ng , them," fully proved that on them the pl a i nt iff cou ld ! have maintained no action against the East India Cont i pony if they had refund to employ his ship for the f conveyance iof the lnvalids. The plaintiff had 2 0 ; performed anything by which his right 'to freig t had commenced; he had not built the .additioa `deck, nor were there any passenger's on board whei the loss occurred. As nothing had been perform.., and as all might be said to be in a state of mere ii,- ception, the Learned Serjeant contended that the fendant could not be considered liable to the loss. Mr. Serjeant lkosserr, in reply, strongly resisted the principle for which the defendant had errnte . According to that, no freighter could recover ni.:. the voyage had actually commenced, as his Lea:;- Brother on the other side designated everything tip. i occurred before actual 'sailing " mere ince,a•, • The case of Thompson v. Taylor, 6 Term Repo 478, was in point, for the ship was not ready to f t_; form her voyage when the loss hr.ppened. Lord Chief Justice DALLAs.—This case embrait: tlree points; first, Nvhether there was a legal and -4:: ficient contract? secondly, whether there was ant . thing to be done undei this contract, if it did exiit? and, thirdly, whether any act was pc: formed by tl e plaintiff in compliance with it? As to the first poi;;, I think there can be no doubt whatever; but if tht.e could be any case which my brother Richardson tk : ; mentioned would set it at rest, that case was argued under the following circumstances: —Some letters had passed between the owner of a vessel and anot;:er person, when it was agreed that the hip sh..uld be loaded by the latter with goods consigned to Loudon. The loading, as in this case, commenced ; but betere it could be finished, the ship having been previously insured, was lost. The assured were held emiilea to recover for the goods unshipped, as the risk v. as con sidered to have commenced by the loading of part of the cargo. The owner has perforMed as ;laugh as he was abre, by commencing what the perils of the :;et alone prevented him from completing. The incep tion oldie risk followed immediately on the inceprica of the performance by the owner, of that which was part of the contract entered into by him with the au tholfzed °dicers of the-East India Company. The case of Thompson v.-Taylor is like the present, and the judgment of the Court there went on the ground that something had been done, which, if matured, would have entii led the owner to hts freight. The rest of the Court concurring, judgment was given for the plaintiff. • Yesterday evening, soon after five o'clock, a Cm denian Was daringly attacked in Wych-street, iii: gang of three or four, ar,d robbed of his sentch. attack was made by One of the villains thwarting. t!!:: Gentleman in hi; passing,on, as if by accident, vAlun a sec, `A came up, aria suatedaerlat his watch : he resisted, a third came up and knocked him down, and they got off With v.ratch. Tuesday evening, between fi , :e and six o'clock, Mr. WutTe, surgeon, of Red-Lion -street, was knocked down by a gang of ruffians in Liquorpond-street, and robbed of a gold chain and seals. Mr. Wnryt saved his watch, by an arduous- struggle .with the villain's, from one at whom he wrenched a bludgeon, which is left at Illtton-garden Office. A desperate gang of robbers have for some time past infested Nottingham and.its neighbour hod, and committed numerous depredations. On Friday even ing Mr. SAXTON, traveller to a respectable house ill London, was robbed and dreadfully beaten by four .or five ruffians, on the highway, nearly opposite the white house on Lenton Sands. There were three other footpad robberies committed the same evening. Saturday se'nnight, at Kirkbride, in the.parish ' Straiton, about half a score of doies were observed hovering in the air, seemingly affected by something on the ground, and the attention of the observer being directed to the spot, a weasel was found in the act of cutting the throat of one of the :loves. The weasel was caught in the act, but the neck of the dove being nearly separated, it died, and the weasel received the punishment of a murderer. On the day preceding, a partridge, supposed to be pursued by a bird of prey, took refuge in a shop in the most fre quented street in Ayr. And within these few days, a hawk and a sparrow were caught, in one of the bed rooms of a house in the suburbs. From the unusual quantity of soot brought down the chimney, it ap peared the birds had made their entrance to the room in that way—the one in pursuit of the other. By the timely arrival of the Gentleman of the house, his poor sparrow was saved from destruction, . and the eairenous pursuer imprisoned. DRURY-LANE THEATRE.—The Tragedy of King Lear was last nikbt performed at this Theatre, when the characters of the unfortunate Mqnarch. of the generous Edgar, and the amiahe and dutiful Cor della, were assigned to Mr. Boon', Mr. COOPER, and Mrs. W. WEST. The merits of the first and last of these performers, in their different characters, have already undergone the ordeal of public criticism.— In the representation of last night they rather added to than diminished their former reputation. Mr. COOPER was new to the town in Edgar, and although what we had previously seen of this Gentleman s performance induced us to believe he would be re spectable, even in this arduous character, it is but justice to say ; that he exceeded our expectation.— The House was respectably: attended.. In the After piece was presented a rich musical treat in the ope ratic Burletta of Midas, Madame VisstatrOming out as Apollo. Mr. T. Coos; as../upiterl'Hastsy, as Pan; Murams,. as Midas = .with many etceteras, made up a formidable corps of vocalists. . BIRTH. Friday, in London, of a son, the Lady of Charles Wray, Esq. Recorder of littlL MARRIED. Oct. 21, at Naples, Frederick Dashwood Swann, Esg. Capurio (half-pay) of the Grenadier Guarth, to Charlotte Catheriso Brydges, third daughter of Sir Egerton Brydges, Bart. DIED. Saturday, in Portland-place, the Dowager Countess of Lincoln. Nov. 7, at Park House, near blackout, the widow of the late Major-General Calder, Bart. Price. 36s 0(1 to 44s 6cl 36s 6J to 45s (d oos od Ss Fa cos od to 274 oil COAL MARKET, Nov. 15. Ships at Market. Ships Sold. 161 Newcastle 33 24 Sunderland . 164 1 Halbeath 1 Cinders HIGII.V/ ATER at LONDON BRIDGK TO.MOIIItIIm Monaing - i. 6 minutes after 11 Afternoon - . 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