Star. — London, England, 1813-07-29 00:00:00

LdiP INTELLIGISCA COURT by CHANCERY, ATCY sc. Ault/ *maims. -6.• MORO v. BROOM& VICE-CIiANCELLOR this day gave an elaborate judgment in this cause. The importance of whit.. be stated to be so great, in a commercial point of view, that it became necessary to animadvert on the. many cases decided upon the ability or disability of alien enemies to sue in Courts of. Law and Equity in England, not only on the law as fotmerly construed, but as understood since the introdction of trade licences, upon the policy of which he should not ground his decision, but upon the change of the law+ that took place of late years, commencing in the time of Lord Alvanly, in the case of M'Connel Hector, reported in Bosanque and Butler, and sinc e followed by many decisions. The cause came on upon a Plea in Bar, filed against the Bill of the Plaintiff by the Defendants, who are factors and consignees in London for the commercial corporation, called Chico Mieu Meyores, composed of five distinct commercial corporations and companies, united into one great and extensive and public body aggregate, residing at Madrid, with consuls, agents, and factors, in all trading na tions in Europe and other countries, pursuant to a Royal Charter of incorporation, granted to them by King Henry V. of Spain. The Plaintiffs are two of the company, residing in this country, as managers of the commerce in this kingdom, and prayed by their bill for an order -upon the defendants, the English factors, requir;ng them to sell a cargo of fine Spanish wool, exported by the company into London, of great value, and to hand over the prize to the plaintiffs, their employers, for the use of selves and the company at large. The Defendant's plea in Bar was grounded on the fact, that the wool was the property of alien enemies, or neutrals, now resident in a country under the do minion, or liable to fall under the jurisdiction of France, a power at war with this country, and the Plaint:Es not qualified to sue in our Courts, upon the authority of various decided cases, in which it was ruled, that the funds should not be transmitted even to the neutrals, or even to. British subjects re siding in a country at war with us, lest they should fall into thg hands of the enemy, to increase his re sources. Much discussion, said his Honour, had taken place on the distinction between aliens and na tural born subjects, who become commorant in, and adhered, by choice or necessity,, to the rulers of a country at war with us, as also on the distinction be tween adhering to the King's enemies in arms, or by aiding and can ying on commerce with them, when possessing the power and means of quitting such re sidence and commerce. Formerly the King seized all such property as for. feited, and of course the parties could not be permit. ted to sue. How far it was competent for , his Majesty to grant licences to sue in such cases, was difficult to determine, as the decisions on that head were variant and contradictory, but there were cases wherein the King himself could not grant the licence to any sub ject, to sue for the propery in this country, while he was under the dominion of a foreign power at war with us ; as, for instance, supposing a subject to b found in arms with the enemy. Having promised that he should not in any degree .ground his present judgment upon the decisions made in the several important cases lately decided in the courts of law, under die present or late system of the Trade Licences, but minutely discussing each and every of them ; He was of opinion, that the case put upon the re cord by the plea in bar, was not sufficiently extensive nor duly circumstantial, so as to bring such plea, if otherwise valid, to bear upon the peculiar circum stances of this case. In the first place, it appeared that the Company' suing were the Plaintiffs, resident in Spain, a country in amity with us, and it was drubtful whether Madrid be now, or was at the time of filing the plea, in the power, or likely to fall un der the power- of the F r ench Government ? This/ state of affairs relieved his mind completely from any difficulty as to the danger of clashing with any former decisions, since the plea was, in his mature judgment, insufficient, both in form and substance, to attain its object, namely, that of meeting the relief prayed for by the bill, independent of the law and justice that must govern this case. Of late years the 'King had not seized such property as a, forfeiture, and it was quite clear that the Plaintiffs here resid ing had his Majesty's permission for such residence, by which they were legally competent to sue the Defendants in the manner resorted tp. His Honour concluded with asking, since the King would not in this case stize the property, what was to become of it ? or what colour of claim could the Defendants, as mere factors under the Plaintiffs, pretend to set up for keeping it in their own possession ? Such an idea could not be endured, consistently with either law or equity.— The Plea was over-ruled.—Judg ment fur the Plaintiffs. PICTURE DEALING.--TURNER BASILEY..-..DEMURRER. Sir Gregory Page Turner had contracted with the defendant for the purchase of some pictures, for a sum of 813,000. He now filed his Bill to be relieved from this contract, on the ground that tiw pictures had been represented , as original works of the great masters; whereas, in fact, they were not so ; and that the whole was an imposition. The Bill also prayed a discovery from whom, and for what price, &c. the pictures had been purchased by the De fendant. The Defendant answered, that the pictures really were original world of the great masters as had been rep►esented ; but demurred to that part of the bill which sought a discovery of the persons from whom, and the prices at which, the pictures had been pur chased, on the ground that this was no concern of the Plaintiff, and had nothing to do with the con tract. The VICE-CHANCELLOR said, that this objection might in many cases be very proper, as a discovery might sometimes be sought to gratify an impertinent curiosity, or to pry into circumstances which the Plaintiff might have no business to know ; but in the present case, the discovery might be very material. Suppose the case of a representation that certain articles had been dug out of the ruins of Hercula sieum ; and suppose that the articles had been sold at a large price on this ground, and that it atter. wards mined out that this representation was false, and that the articles were of modern manufacture, and trifling iraltie—wcntid - not the discovery in that case be material # So in the present instance the dis covery might be material, and the demurrer must therefore be over-ruled. COURT OF WINO'S DEMCN o JUL, 28. THE RING, ON THE PROSECUTION OF ELIZABETH AMELIA VERELST b. HARRY VERELST, ESQ. Mr. HOLLAND stated, that this indictment was pre ferred against the Defendant for perjury committed by him in answers to a certain allegation, exhibited in the C.onsistorial and Episcopal Court of London, before the Worshipful SAMUEL PEARCE PARSON, Doc telt. of Laws, and Surrogate of the Right Hon. Sir WILLIAM SCOTT, Knight, &c. by and on the part and behalf of E. A. Verelst, wife of Harry Verelst,- in a certain cause then depending in the said Court, by the said Harry Verelst, for the purpose of procuring a divorce from his said wife, by reason of adultery ; in which allegation E. A. Verelst alleged, that about March last, H. Verelst several times went to the house of R. Kirkham, and there conversed with E. George, who had been servant to the said H.Verelst, when he visited one E. Gray ; and that he also, about the said month of March, sent R. Tucker, wife of Peter Tucker, of Duke-street, Piccadilly, to such house, to desire the said E. George to come and speak to him in a hackney-coach, which the said E. George did, and that the said H. Verelst acknowledged to the said E. George, that although he had gone by the name of Gordon, at the house of Kirkham, yet his name was Verelst, and that he was a married man ; that his wife had been detected in a criminal intercourse, and that he himself was sleeping in the next room to his wife at that time, and then, and *so did all his servants know, that his wife and Major B. Staple were in bed together in the next room ; and alluding to his said adulterous intercourse with the said E. Gray, he said it was a bad job ; and that as his wife had denied him the marriage -bed, he was forced to be with E. Gray. He further promised he would settle something handsome on the said E. George, if she would not appear against him to prove any criminal intercourse between him and E. Gray ; and that if she would be of his side, she should come and live in the house of the said R. Tucker. And the said H. Verelst, before the said S. P. PARSONS, swore, that his answer should contain the truth, and then and there, upon his oath aforesaid, exhibited as true his answer in writing to the matters contained in the said allegation ; but that he did wilfully, falsely, knowingly, and corruptly, in his said answer swear, that he denied, that about the month of March he went to the house of R. Kirkham and then conversed with Elizabeth George; but he confessed that he did send Rebecca Tucker to the house of Kirkham, but denied that he sent her to desire E. George to come and speak to him in a hackney-coach, or that the said E. George did come ; and he denied that on such or any other occits on he acknowledged to E. George, that although he had gone by the name of Gordon at Kirkham's house,• yet his name was Verelst, or that he was a married man, or that he had declared to her that his wife had been detected in a criminal intercourse—or that he was sleeping in the next room to his wife at that time, and then knew, as did all his servants, that his wife and Major Staple were to -be together in the next room—or that he had any such conversation with the said E. George—or that he had made any promise of settling any thing on the said E. George, if she would not appear against him—or that he made any offers if she would be on his side—or that he proposed that she should secrete herself* in the house of R. Tucker. The indictment then went on to state, that all the answers of the De fendant were false. • Mr. SCARLETT said, the Jury would have learned, from the opening of his Learned Friend, that the charge brought against the defendant was of a ngost sarious nature ; a charge which brought 11;s honour and character to a crisis, that might be fatal. ' He knew this statement was sufficient to obtain from the Jury the most patient investigation. As to himself, he wished nil to have been the instrument of bringing the charge—a charge, considering the person against wilom, and the person by whom it was brought, of a nature most novel and extraordinary. He wished that the conduct of this most important cause had been committed to a person of higher authotity, and lof greater talents. He could only say, that he thought it his duty to exercise more patience, and employ more investigation upon it than he was ordinarily in the habit of doing. If there could be any cause in which an advocate could be justified in refusing his assistance, this was a case of that kind; and if he supposed that in this instance it was intended to make him the instrument of malice, he should have refused his assistance, if he could have so done with propriety. Bu; as, in his opinion, the piesent prose cution was not founded in falsehood, but was bot tomed in public justice, the due administration of jtetice required that it should be prosecuted, and he should not shrink from bringing forward the charge. The defendant was married to his lady in the year 1803 ; she-was the daughter of a gentleman of high charatter and large fortune, in the kingdom of Ire land, and who, in the last Parliament, was Member I for the county of Kerry. She was greatly connected, and highly accomplished. It was impossible to see and converse with her, without perceiving that she had all the advantages of education that this age and country could afford. Her fortune was consi derable, and the jointure settled on the estates of the defendant was also large. The defendant was only tenant for life ; for by the marriage settlement, his property was settled on himself for life, with re mainder to the children of the marriage. It was probably very unfortunate that there had been no is sue of the marriage. In the year 1808 or 1809, the defendant had attached himself to a person of the name of Elizabeth Gray. This connection had, he believed, originated in her having been a servant in the family of the defendant. She. became pregnant, and lodgings were taken for her in the year 181 U; afterwards, in the same year, lodgings were taken for her at the house of R. Kirkham, China-walk, and she was then 'visited by Mr. Verelst, by the name of Gordon. After some time, her pregnancy was so tar advanced that it was necessary to remove her, and other lodgings were taken for her, when a fe male child was born, and christened at Stepney as the child of Mr. and Mrs. Gordon. In the year 1511 the defendant brought an action for criminal conversation w►th Mrs. Verelst, against Major Sta ple, and he had a verdict. From delicacy, the learnt-4 Counsel said, he should Rot name the circumstances under which that verdict/ had been obtained, it might I* stetessaty to state those circumstances dtfring the nit be perjury the mind Most go along with the progress of the present cause: On this action for cri- fact of false-swearing. But when the defendant swore mtnal •conversation being instituted, it became ian• that the facts stated were false, were they of so dis portant that all the evidence with respect to E. dray cant a date, so unimportant in their nature, as that should be suppressed. E. Gray had been attended he could forget them ? The object of the inquiry by E. George during her illness, and }. George of was connected with his honour and character. The course was best acquainted with the defend a nt's illicit Learned Counsel said, it was far from his Wish that connection with E. Gray. That such a verdict was the defendant should be convicted, he wished hint obtained, his Lordship and the Jury would not he to . have the full benefit of all those considerations. It surprised, when tifey were made acquainted with the was not an essential part of the defence of the a ife, manner in which it had been procured. It was after that the husband should suffer in the public opinion, all but a nominal verdict, for neither costs nor de- and his acquittal could have no effect on the oder mages had been since asked or expected. The object prosecutions. If the Jury thought die facts should, of the defendeni was to o b ta i n a di vorce , and he not be proved against the defendant, they would ac. therefore sued in the Consistoriel Court—a n d this was quit; but if they thought the facts were proved, they the first opportunity that Mrs. Verelst • with the as- would, although it was a pain'ul task, execute their sistance of her friends, had of defending her h•niour. duty with firmness, and find the defendant guilty. They had made every exartian to procure evidence, If the facts were swore falsely, his conviction would and had procured such as would completely prove afford a salutary lesson to the public at large, by that the verdict had been bottomed in the most cor- shewit, that no person could aelth Safety, from any rupt and wilful perjury. It was necessary, in the private interest, destroy the character of any indi• prosecution of her purpose, to displ ty to the world vidual. her conduct an d t h at o f h er h us b an d— an d s h e h a d M r. Thompson, Clerk to t h e Register O ff i ce, put in no reason to spare the character of her Intsleuid, who • the original libel by H. Verelst, against Elizabeth had done all in his power to destroy her honour and I his wife, and also the allegation by the wife, signed character. In her allegation in the Spiritual Court, Eliza Verelst. she had stated the circumstances already stated by Ms. Palm objected, that in the indictment it was his Learned Friend, and also ethers, setting forth Elizabeth Amelia Verelst, and that this WAS a va his connection with Elizabeth Gray. The defendant, ' riance. ' as to all those questions which related immediately to Lord Eeegsagoaouctr said, that had thee been an his connection with Elizabeth Gray, declined to an- allegation that she had signed it by the name E. A. swer, and submitted he was not bound so to do, and Verelst, it would have been fatal • but that they what he did answer w as f a l se , an d f a l se w i t hi n hi s m i g h t now prove, that she did in tact file the alle• own knowledge. To prevent any fact appearing that genial. would injure his cause, he refused to speak as to his Mr. J. Clark proved that the signature to the alle coenection with E. Gray, and denied circumstances gation was the hand-writing of Mrs. Verelst. so connected with that fact, as, if verified, would Mr. PARK then objected that the cause in the Con prove the existence of such connection. Defendant, sistorial Court was misnamed. in the action against Major Staple, thought it his in- His Lordship over-ruled the objection, as the name terest to remove all proof of his connection with E. had not been averred. Gray ; and having heard that most particular en- The allegation and answers were then read, • quiry had been made as to such connection, he em- Mr. Usherwood, Deputy Registrar to the Bishop ployed a person of the name of Rebecca Tucker, of London, deposed, that he was present when a per (not a very fit companion for a gentleman of his son, who called himself H. Verelst, swore the an rank) to remove E. George from all enquiry. He swers. It was sworn before Dr. Parson, in his sent R. Tucker to Richard Kirkham, and went him. Chambers in Doctors Commons, which are in the city self, and before them held such a conversation as has of London. been alleged in the indictment. E. George said she Mr. Townsend, Proctor to the defendant, probed had a son that she wished to consult. Defendant af- that the answers were in his hand-writing. terwards accompanied Tucker in a hackney-coach, Doctor Parson swore that he was Surrogate of and sent her to E. George. It was for him to :Lc- the Court. count for being in the coach with such a person, Mr. PARK objected; that it could not be prateil bt who, as the Learned Counsel was instructed, was the parole. evidence. ' keeper of a common brothel. It would be proved, Mr. SCA RLETT contended, it was not necessary: it by letters under his own hand, that he was in .a was sufficient to ptove that he had acted as such, as hackney coach with Tucker, and that George was in /he case of a Justice of the Peace, until the eons • offered to be removed out of the way. R. Tucker , teary was prayed. . went to R. Kirkham s, and saw both him and his His Lordship thought it trim facie evidence. wife, and with their approbation E. George went to Mr. PAW( then said Dr. Parson's appointment was the coach, and got into it, and she there found Mr. imperfect. Verelst. He gave her £2, and she promised to give Dr. Parson said he had acted from the ye ar 1793. an answer to It. Tucker, with wh om s h e was to live Mr. PARK then put in as evidence for the defen- in case of an agreement. He should shew that de- : dant the Registrar's book in which . the appointment fendant had denied all those facts, and it was impos- , waieentered. Bible that he could h a v e f orgotten w h at h a d ta k en i Mr. Thompson said, the entry was in th e hand place on such an , important subj e ct, in t h e y ear 181 I, writing of a person of the name of Groger, *ha was, the year in which the action against Staples - had been .he believed, at that time Clerk to the Deputy Regis= tried—the year in which the action in the Consisto.. ter Holman : but he did not know it of his own rail Court had been commenced. Could the &fen- 1 knowledge. He Wen read the appointment, w hi c h dant have fo r g ot te n t h a t he was i n a hackney-coach was dated in 179, but a blank had been left fo r a with such a woman as R. T uc k er ? cou ld a gentle- !Notary Public's name. man forget that he himself was employed in removing hlr. PARK contended that this appointment was• witnesses ? Under his ow n h an d i t wou ld appear t h at void b the 123 d Canon, which says, that no Chan- R. Tucker was ao t rans i ent acqua i ntance , an d t h at+ teller, y Commissary,' Archdeacon,. &c. or any ether he had been in • a hackney-coach with her. The c • Person using ecclesiastical jurisdiction, shad speed Learned Counsel read two no t es to t h e f o ll ow i n g e f- p feet, they we r e w i t h out d ates . Th e fi rst was , b . 1 any judicial act, either of conte n ti on or vo l untary ' o D ear M a d am — lnstead of ten o ' clock, meet.me : I jurisdiction, unless he have the ordinary R eg i ster o f at the same place at twelve o'clock to-morrow. uke-street." that Court, or his lawful Deputy, or e l s e two ghee" Mrs. R. Tucker, credible persons : and the credi t w hi c h t he Canon D Law gives to a Notary Public is, that his testimony The second was— a Monday morning." I shall be equal to that of two witnesses. But in this 44 Pray, be good enough to be in Lincoln's Inn case none of those formalities were observed. Fields at halt-past eleven, and wait till 1 come.-- MT. SCARLETT contended, that the defendant You recollect wh e re I got out b e f ore : l et t h e coac h.' bar man stop at the same place, at the East end of the ing professed to produce the book, and that book square." coming from the proper office, it must be taken, that The defendant could i not have forgotten su c h c i r - the entry was written by the proper officer ; and it cumstances; and whether the notes referred to the lay upon the defendant to prove, that it was clone same occasion, was not material. If they did not, it without authority. was incumbent on the defendant to sh e w t h a t it 1 Mr. Pane contended, that it ought to have been aas at another time, consistent either with his inte- made out by the Register. • rest or pleasure, to have been in the same coach with i Lord EL‘ENBOROUGH said, he had considerable dif. It. `fucker; and he ought to explain for what pur. -fieulty intheiquestioe ; that if it had been signed by pose he entered into a hackney coach with such a the Register, or Deputy Register, he would have person. He shotild shew, that Mrs. Tucker was his presumed that it was ; but he could not help thinking agent in the business; and although lie could not the appointment was void. He was extremely sorry give her correspondence in evidence, and should not for it, but it was his duty t o d ec l are t h e l aw . therefore descant on i t , h e s h ou ld prove t h at s h e was ' Mr. SCARLETT then asked his Lordship, whether he 'his most important instrument. The Learned Coon- thought the Canon referred to such an act as the pre sel thought he should neglect his duty, were he not ' sent, it being rather an act of contentious or vokine to call E. Gray—indeed there was no necessity—but tart' jurisdiction ? it was necessary to speak of Mrs. Gray, as it shewed ' Mr. PARE contended, it was an act of voluntary that it was defendant's interest to keep back a great jurisdiction. I deal of testimony with regard to her. He should ba . Lord ELLENBOROL'GH thought, as the act was p . m. wrong to forget a name deeply mixed Up in the fessed to be done as a voluntary act, it ought to Have whole of these transactions, that of Sarah Umber, ' complied with- the canon, and he should not say that who was also employed to keep evidence out of the the appointment was valid. His Lord s hip t h en to ld way. He would not say w h et h er d e f en d ant had' thi Jury, there was an allegation in the indictment, taken any part in procuring a body of suborned evi.' that the snub had been tendered by a person of com dence in the case of Verelst si. Staple, but Mrs. Um- petent authority, which allegation not having been Iber had been the agent, nay the principal, in procu- proved, the defendant must be acquitted. ring a mass of as corrupt perjury as had ever been The defendant was accordingly acquitted. known. He suppo we l M rs . U m b er wou ld b e called THE KING V. PRESTON. that day—he should wish to see her. Mrs. Verelst I Mr. &ahem. stated, that this was an indictment i l and her friends, who were convinced of h er i nno - aga i nst a servant of Mr. Verelst I and as the same cence, had made every exertion to procure evidence, () ej ec tion was applicable to this which had been to land they were able to shew the conspicuous pan Mrs. the former, he should not trouble the Jury with any Umber had taken in the cause , an d t h at s h e esteeme d ev i dence, bu: that was the only re ason h e did not it as much her own cause as t h e cause o f h er master. proceed. He was awere that, in every prosecution for perjury, it must be proved to have been taken in the adminis tration of justice, and in a matter material to the cause. He had gone, perhaps, too much at length into an argument to prove that the defendant had a strong interest in keeping hack all evidence as to his connection with E. Gray; and he should contend before his Lordship, that every question was impor tant and material which tended to reflect light on the subject of that connection—to shew that he was in the habit of visiting E. Gray—ta shew that he visi ted the house of Kirkham, alter she had left it, was material, and important. Although the facts might be false, yet in order to support an indictmentfor perjury, it was necessary that the defendant should wilfully and i corruptly swear falsely. if he swore falsely through mistake or delusion of mind, that undoubtedly weeld Mr. PARK said, that had not hif Learned Friend made some remarks, he should not have troubled them ; but he thought it his duty (particularly on account of the laughter which had taken place when he had made his objection in the last cause) to state, that he thought it his duty, in a cause where such serious consequences hung over his client, to take every legal advantage. He should have done it par ticularly in this case, as the defendant was indicted for what he had sworn in the Consistorial Court, and not for what he had sworn in the action for criminal conversation. The Jury, under his Lordship's directions, acquit ted the Defendant. Two other causes on the same subject were toes disposed of in the same manner. perjury the mind Must go along with the false-swearing. But when the defendant swore t facts stated were false, were they of so dic- tate, so unimportant in their nature, as that d forget them ? The object of the inquiry wetted with his honour and character. The 1 Counsel said, it was far from his wish that !ndant should be convicted ; he wished hint the full benefit of all those considerations. It an esteatial part of the defence of the wife, husband should suffer in the public opinion, acquittal could have no effect on the °chit lions. If the Juty thought the facts should proved against the defendant, they would ac. at if they thought the facts were proved, they although it was a pain'ul task, ezecute their ith firmness, and find the defendant guilty. acts were swore falsely, his conviction would a salutary lesson to the public at large, by that no person could avlth safety, from any interest, destroy the character of any indi• Thompson, Clerk to the Register Office, put in final libel by H. Verelst, against Elizabeth , and also the allegation by the wife, signed rerelst. PARK objected, that in the indictment it was th Amelia Verelst, and that this was a va- Eumatoaciocu said, that had there been an on that she had signed it by the name E. A. , it would have been fatal • but that they now prove, that she did in tact file the alle. f. Clark proved that the signature to the alle- was the handwriting of Mrs. Verelst. PARK then objected that the cause in the Con. Court was misnamed. Lordship over-ruled the objection, as the name been averred. allegation and answers were then read. Lisherwood, Deputy Registrar to the Bishop ion, deposed, that he was present when a per- m called himself H. Verelst, swore the an- It was sworn before Dr. Parson, in his Ts in Doctors Commons, which are in the city ion. • Townsend, Proctor to the defendant, proved answers were in his hand-writing. or Parson swore that he was Surrogate of rt. PARK objected; that it could not be prateiil bt !vidence. iCARLETT contended, it was not necessary: it Relent* to prove that he had acted as such, as ase of a Justice of the Peace, until the con. . as proved. ordship thought it prima facie evidence. ?Aux then said Dr. Parson's appointment was 'arson said he had acted from the year 1793. PARK then put in as evidence for the defers- Registrar's book in which the appointment :red. Thompson said, the entry was in the hand- of a person of the name of Ginger, stile" was, ved, at that time Clerk to the Deputy Regis , lman : but he did not knew it of his own ewe. Ike Wen read the appointment, which r :ed in 1793, but a blank had been left for a Public's name. PARK contended that this appointment •was the 123 d Canon, which says, that no Chao- r. Commissary,' Archdeacon,. &c. or an v Other j using ecclesiastical jurisdiction, shall speed licial act, either of contention or voluntary tion, unitss he have the ordinary Register of iurt, or his lawful Deputy, or else two °thee t persons : and the credit which the Canon Ives to a Notary Public is, that his testimony equal to that of two witnesses. But in this me of those formalities were observed. SCARLETT contended, that the defendant hay. afessed to produce the book, and that book from the proper office, it must be taken, that ry was written by the proper officer ; and it