Star. — London, England, 1813-08-20 00:00:00

LAW NtZLLMPNCfft COURT Oir tHANCERV, AUGUST S. FX PARTE LADY VANE TZMPIEST. Mr. Hater moved, that a manager Might be ap pointed to superintend the extensive collieries belottg ing to the infant daughter of the late Sir H. Vane Tempest. This was a motion of the utmost import ance to the infant, as upon his Lordship's immediate compliance with it, depended the very exigence of those extensive works. The Registrar had started a doubt on the subject of this application, alleging that it was nut.usual to make such an order till after ap pearance. Mr. Hart submitted, however, that there could be no objection to a person's asking that a ma nager might be appointed to take care of his or her own estate; and that the rule alluded to by the Re gistrar could not -apply to an application in behalf of an infant, which only went the length of requesting that her property might not be suffered to go to ruin. Mr. MONTAGU said he was instructed to consent to the present traction. The Lotto CHANCELLOR observed, that the rule alluded to by the Registrar applied only to cases where there were adverse interests, in which case there could be nu appointment of the kind till appearance had been entered. But where this was asked on the part of an in fant who had just succeeded to estates in which there was property of this description, there could be no question as to the right and propriety of making such an order. His Lordship was perfectly well acquain ted with the works in q uestion, and was thoroughly convinced that to interpose a single week's delay in carrying them on, might cause their eternal ruin.— His Lordship therefore granted the order. EY•PARTE WATSON, IN THE MATTER OF WATSON AND NELSON. Mr. SHADWELL stated this to be an application on the part of Elizabeth Watson, on behalf of her chil dren, to be allowed to prove against the estate of the mother, and her partners, a debt of E 17,000, due by the partnership of Watson and Nelson, to the children of Mrs. Watson. It appeared that the deceased hus band of the petitioner had carried on business, first': in partnership with his father, and afterwards on his own account, to a very great extent ; and that, at his death he left a large personal property to his widow and children. After the death of her husband, the petitioner entered into partnership with the other bank rupts, the Nelsons, when the stock in trade belonging to the petitioner's late husband was valued, and found to amount to upwards of E 30,000. Five-ninth parts of this sum was brought into the new firm of Watson arld Nelsons, by the petitioner, Mrs. Watson, as her share of the partnership stock ; and the remaining 4.9ths, amounting to upwards of al 3,000,was entered in the books of the concern, as the property of the peti tioner's children, being part of „the provision made for them under the will of their deceased father. This debt, with interest, amounting to the sum of £17,000, the petitioner, Eliz. Watson, had offered to prore, in behalf of her children, under the commission which had since issued against her and her partners in trade; but the Commissioners having been pleased to reject the proof of such debt,the present petition to his Lord sbip for liberty to go in ac.d prove the debt became ne cessary. It was impossible, the Learned Counsel con tended, not to see ;hat this was a debt specifically set aide, and designated as due to these children, from the very day of the formation of this new► partnership. It was entered in the partnership books as such, and had been uniformly considered as a debt due by the • Partnership concern to the eight children of the pe titioner, Elizabeth Watson, andher deceased husband. The Loan CHANCELLOR asked, was there any per son on the other side ? Being answered in the negative, tits Lordship said he thought the present debt was proveable. It was to be regarded as a loan of so much money by these children to a partnership in which their mother was concerned. It.appeared, from the moment of commencing that partnership, to have been separated and divided in the exact pro portion of /cur to five from what, till then, had con stituted one common mass, in which the mother and children were jointly interested, and while the s.9ths were by the mother thrown into the partnership fund as her share of the capital or stock in trade, the remaining 4-9ths Were entered in the books of the partnership as a debt, due and owing by them to the children of their partner, Mrs. Watson, and ber de ceased husband. The interests of the children had not been ant nded to so effectually as they might have been. This, however, was no reason why they should not be allowed to prove at all. It ap peared that some of the children were now major. Let the proof be made by the eldest son, for himself and the other children. His Lordship hoped the mo ther would beware of again entering into trade. =PARTE CARROLL, IN THE MATTER OF LATHAM. Mr. LEACH said it would be in the recollection of the Court, that a considerable dispute had existed as to whether Mr. De Tastet was entitled to a large quantity of rum, geneva, wine, and bills of exchange, for which orders had been delivered to Mr. De Tastet . by Parry (the partner of Latham ), after he had corn-. inittea a felony, and the day betore he absconded. Mr. Carroll the present petitioner, had been ap pointed assignee, in order to contest this question with Mr. De Tastet. Mr. Carroll had a conversa— tion with Mr. De Tastet .as to those goods, and it was agreed that the rum, which was the principal article, should be sold, and that the net. proceeds should be paid into a bank in the joint names of Mr. Carroll and Mr. De Tastet, and Mr. Gorst was agreed upon as a proper person to sell the rums. but Mr. Carroll understanding that, notwithstanding that agreement, Mr. De Tastet did intend to sell the property, and to make use of the proceeds for his own private purposes, thought it right to present this pe tition, pra) log, that for the protection of the credi tors, the goods might be sold, and the proceeds paid into Court. Since the petition, an action of trover had been brought, and a verdict had been given for Mr. De Tastet as to the rum; but against him as to the geneva, brandy, wine, and bills of exchange. The affidavit of Mr. Dawes, the solicitor, stated, that Mr. Carroll was dissatisfied wills the verdict, and thought, that it ought to have been against Mr. De Tastet for the rum, as well as the other property, and had directed the deponent, and the deponent intended . to move for a ne w tr i a l, w i t hi n t h e fi rst four days ot the next tot m. This being the ease, Mr. Leach said, the necessity of protecting the property still continued. It Mr. De Tastet was satisfied with the verdict, he toold have no objection to hand over, for the benefit of the creditott at large, the goods fur which the ver dict was against him t and if he were dissatisfied, and intended to more for a riew trial, it was for the interest of all parties that the goods should be in the mean time sold, and the money paid into Court. His client was very well satisfied that Mr. Gorst, who had been named by Mr. De Taster, should have the sale. Sir SAMUEL Rositu.y and Mr. Brit. said, Mr. De Tastet had no objection to the sale, but did not wish the goods to be sold as by an officer of the Court, who must sell them for what they would bring. They also said it was rather strange to ask Mr. De Tastet to give up those goods for which he had a verdict. The Loan CHANCELLOR asked, if Mr. De Tastet was satisfied with the verdict, and allowed himself to be bound by it? Mr. BELL said, he was much dissatisfied with the verdict. The Loan CHANCELLOR then declared,,that as the trial satisfied neither party, it was the same as if no trial had taken place. It was finally agreed that Mr. Gorst should be au thorised to dispose of the goods as he should think prudent, and to pay the proceeds into Court. AUGUST 19. EX PARTE CARRUTHERS, IN THE MATTER OP PANTON. This was a petitiot praying for leave to prove a debt of upwards of £l7OO, the proof of which had been resisted, on the ground of its being an usurious transaction. It appeared, that Mr. Carruthers was a bill-broker, and some time ago he received from a Mr. Bromar, a partner of the bankrupt, but since dead, two bills, in order to get them discounted for him. He in dorsed them, and received the money for them at the Bank of England, which money he paid to Mr. l3ro mar, charging him 5 per cent. interest, and f per cent. commission. It was contended for Mr. Carruthers, that he was acting, in this case, in his acknowledged character of a bill-broker; and that he had only charged the usual commission. On the other side it was said, that the Bank of England never would discount bills for bill-brokers ; and that it was therefore most pro bable, that in this transaction Mr. C. was acting en tirely by himself. The LORD CHANCELLOR would not say in which capacity Mr. Carruthers was acting during the course of this transaction, but he left it for a Jury to say whether the matter was usurious or not. EXPARTE NICKSON, IN THE MATTER OP GOUGH. This was a petition on the part of Mr. Nickson, the lessor, praying that the Assignees of the lessee, a bankrupt, should be restrained from appropriating, as representatives of Mr. Gough, the bankrupt, I,r the benefit of the creditors, certain quantities of hay, straw, and manure of various denominations, the lease having determined according to the provisions of the Act, by the refusal of the Assignees to accept it. Sir S. ROMILLY and Mr.HEALD contended, for the lessor, that he was entitled, under covenants express ed in the lease, to those several articles in question at the expiration of the term. Here the case had de termined by the bankruptcy of the lessor, and the refusal of his Assignees to accept it ;—the lessor, therefore, was entitled to the benefit of the covenant. If- the Assignees were allowed to dispose of those articles which were necessary to the due cultivation of the premises, the lessor would thus be unfairly placed in a worse situation, in respect to any future tenant, than he had been in respect to the bankrupt. Mr. LEACH, on the other side, doubted, in the first instance, whether the Court could interfere in the case, but admitted, at the same time, that if the Lord Chancellor would decide the question on this petition, it would be better for the parties. The peculiar de termination of the lease, he contended, was not con. templated in the covenant, which prohibited the lessee from removing those articles from the premises. Its determination was viewed as proceeding from the due effiuxion of time, or the consent of the parties; in either of which cases the lessee would be prepared for the event, and have the articles consumed on the pre mises, this being the benefit reserved by covenant for the lessor. If any articles of hay, straw, manure, &c. still remained, they should not, he admitted, be re moved; but it would become a question whether they were not to be paid for ? But the determination of - the lease by bankruptcy did not give the Assignees any of the advantages under the covenant which the lessee would have had in either of the two former cases. A case of such hardship peculiarly called for the interference of a Court of Equity. The LORD CHANCELLOR said, lie was unwilling to decide the question on petition, and accordingly suggested a case to be submitted to his Lordship, co vering all the points involved in the petition, restrain ing the Assignees in the mean time from removing any part of the articles in question, and directing a valuation to be made of them. EX PARTE OLIVER, IN THE MATTER OF OLIVER. The Bankrupt in this case, who bad been commit. ted by the Commissioners to the jail of Newgtte, for giving an account in his examination as to an item in his accounts, to the amount of £4OO, which the Commissioners did not believe, and who had been ordered to be brought up by Habra: Corpus, for the judgment of the Lord Chancellor, on the propriety of the commitment, was brought into Court last night at six o'clock, in the custody of Mr. Newman, Keeper of Newgata. The warrant of commitment being read— Sir S. ROMILLY, for the bankrupt r eontended, that he had in every case conformed to the Act of Parlia ment of the 15th of his present Majesty, which says, that if a bankrupt gives a full and complete answer to the questions of the Commissioners, whether they believed it or no, he shall not be commitfEd to pri son. In this case, when asked what had become of £4OO which was unaccounted for, the bankrupt said directly that be had given it to a man who followed him, and told him he would divulge to the world his criminal ccnduct with a married woman, unless he gave him £5OO. He admitted that it was strange this man should give thesumof se4oo, without any security, that the secret should be still kept ; but Courts of Jus tice every day shewed cases of a similar nature, where persons paid very considerable sums of money to avoid threatened exposures, for crimes of which they evep knew themselves to be entirely innocent. It would be, therefore, a most cruel thing to ,condemn a man to imprisonment for life on the bare disbelilt of the Commissioners, in a story vhick he had, 9• •rofrttltlately for hithseif, prevented the passibility his strer being able to prove the truth of. Hr. LEACH and Mr. MONTAGUE, for the'Assignees, argued, that the story was most improbable, and that, in the case of Ex Marto NOLAN, it had been de cided that the Commissioners were, in the first in stance, the judger of the probability or improbability of a bankrupt's tale. In the case above cited, the bankrupt was asked what had become of £3000? His answer was, that he had it.in Bank -notes, in his pocket-book, and that, while travelling in the mail, the coach was overturned, and he lost it. Now, the present story was quite as incredible. The bankrupt had said that the husband of the woman was a matt in an inferior situation in life ; and it was, therefore, very probable that a fourth part of the sum would have bought his own secrecy, even if this person had divulged it. Sir SAMUEL Rosnwr, in reply, said that the story appeared to him now perfectly probable ; for it was no wonder a man should give £4OO to suppress a tale, which, if disclosed, would have destroyed the peace and happiness of his own family ; and on this ground also, it was no wonder that he should destroy the notes which had been sent to him by his accuser, for fear of their falling into the hands of those nearest to him. Mr. Leach had certainly formed a most unjust idea of men in inferior life; why should not their honour and happiness, and those of their fami lies, be as justly dear to them as those of persons in the highest rank of life? The LORD CHANCELLOR CORCUITECI with Sir S. Ro milly, that the story was by no means so improbable as it had been represented. But, however delicate the question, when once the bankrupt had stated how he had disp osed of the MOO, the Commissioners, he thought, should have made him disclose what the woman was, with a view, if possible, to arrive at the truth of the story, for the benefit of the creditors. He was therefore of opinion, that the Commissioners should certainly proceed to a farther examination on this point. With respect to discharging the bank. rupt from confinement, he found the cases on that head so conflicting, that he would take till to-mor row to consider them. In the mean time, the bank rupt was remanded, and ordered to be brought up morrow (this day). SUPREME COURT OF JUDICATURE, CALCUTTA, JAN. 28, 1813. BRODIE "J. TWEEDY. This was an action to recover damages for a tres pass, assault, and false imprisonment : the damages ware laid at 5000 rupees. The case, as contained in the evidence for the pro secution, was as follows :— / The plaintiff, Mr. Brodie, was Chief Officer of the ship Woodbridge; on her outward voyage from London to Bengal, she left England on the 4th of June last, and arrived in the river on the 16th of December. The defendant was the commander. On the 10th of August, 1812, while the ship was between the Cape of Good Hope and the Mauritius, a short time after dinner, Mr. Brodie, the plaintiff, addressed Captaiu Tweedy, g , Now that the lady passenger has retired, I must request, that when you have any thing scant at your table, you will inform me of it in a propel. manner; and not when I ask you for rice, say, laying down your spoon, Let every one have their share." Captain Tweedy denied having used these words, and referred to all the persons present whether any one had bean these expressions ? they all replied in the negative; on which Captain Tweedy addressed Mr. Brodie, 4 , Now, Sir, what do you think of yourself ?" Mr. Brodie replied, it was no consequence to him whether other people heard it or not ; he was confident that he had heard it. Some conversation here ensued, which terminated in Captain Tweedy's saying to the plaintiff, 441 have heard your character in England, Sir, to he that of a d—d scoundrel." He then added, 46 D—n you, Sir;" on which Mr. Brodie i etorted in the same terms, and much scurrilous language passed. It appeared, however, quite clear, that the opprobrious terms were first used by Captain Tweedy. After this abuse had continued some time, Captain Tweedy seized a quart decaliter of port wine, and threw• it with considerable ' force at the plaintiff ; it struck him below the left shoulder, broke, and fell on the table. Mr. Brodie said, 4 , Very good, Sir ; very good, Sir," and shook his head. Shortly after this affray, the boatswain came in, and reported, that the fore-top-mast stay was gone ; the plaintiff then asked the defendant if he should go to his duty or to his cabin ? The defen dant replied, “ Although you are a scoundrel, you shall do your duty." To this Mr. Brodie said, " will do my duty whilst I am supported or respected as an officer ought to be." • He rose up and went on deck, it being then his watch. In the evening, the second Officer, Mr. Mitchell, delivered a message from Captain Tweedy to Mr. Brodie, importing, that he would not permit Mr. Brodie to come to his table, but that Mr. Brodie must continue to do his duty. Mr. Brodie to this replied, that he could not expect to be respected by the ship's company, if he did not frequent the cuddy-table, and he could not do his duty on such terms. This reply being delivered to the Captain, the message was re peated, and Mr. Brodie replied, " If not allowed to come to the table, I will not do my duty." On the following day, Mr. Mitchell was poblicly appointed Chief Officer, and Mr. Brodie's furniture and other property removed from the cabin he occupied on deck, to the one below which Mr. Mitchell had for merly inhabited. Mr. Mitchell informed Mr. Brodie he was to remain closely confined to Ms own cabin. -The Officers of the ship were not convened or con sulted. Two or three days after, Mr. Mitchell, at the .request of the Plaintiff, inquired of Captain Tweedy what was to be the extent of his confinement? Cap tain T. returned for answer, that Mr. B. was to have the use of the quarter gallery, but tot other indul gence. This confinement lasted till the' ship arrived at the Mauritius. _ _ On the 19th . of September, the plaintiff wrote to the defendant, desiring to know the extent of the re. strictions on his liberty, how far he was to consider himself a prisoner, informing him, that from the noxious air prevalent between decks, his health had suffered considerably. To this letter he received the following reply : 46 I have to acquaint you, that your confinement is not in any measure adequate to the nature of your offence. I therefore di rect, that you win nut presume to infringe on the liberty you nave have. With regard to your health being endangered, a re presentation on that head should come through the Doctor of the ship. and the same communicated to me, with an attestation 1 upon his word of honour." On this, the Surgeon of the ship, Mr. Clapperton, Was stit to Captain l'Atetcl7, and tal.l h;ni that Mt. Brodie was sickly, And suffering for want of air and exercise, Captain tweedy replied, •lrat he mad oat cake off the restrict:o9s, unless Mr. Claitpertoo repre- tented him tote in immediate danger. - - The surgeon described the nature of the cabin in which Mt. Brodie was confined : it was small, and lighted only from above by a bull's-eye, adjoining the gun -room,' in which there were many stores in a highly putrid state, and through which, in bad wea ther, water was constantly running from a leak in the after part of the ship. The air was generally 1. , 51, both from the noxious effluvia arising from the putrid provisions and stores, and there being no ports or scuttles opened in the stern or sides of the ship ; and frequently, during Mr. Brodie's confinement, the hatchways were closed on account of the rain. In respect to the cat in, it was not worse than all the others Eelow the upper deck. The Woodbridge is a ship of 480 tons burthen ; there were six cabins on that deck, and Mr. Brodie's was one of the most comfortable. After the departure of the ship from the Mauritius, Mr. Brodie's health having been greatly reduced by the continued effects of exposure to bad air and want of exercise, Mr. Clapperton, on the Bth of November, addressed the following letter to Captain Tweedy " St a—Mr. Brodie has had occasion for some time past to apply to me on account of the 11l state of his health ; and portico. lady two nights ago I was called to see him a little past mid. ni,,ht, and found him affected with fainting,, vom:tiegs, head ache, and other dinning symptoms. His complaints, which hare continued with only a little abatement, appear to be area. tions of the lungs and stomach; and, in my opinion, have ptin. dpally been occasioned by want of exercise and ose conflae• ment in a hot and foul atmosphere, which prevails bowels decks, particularly when, on account of the weather, the hatches are laid on." This obtained for the plaintiff the liberty of walk ing on the forecastle of the ship for the space of five hours each day. The other privations and injuries the plaintiff cape rienced at the hands of the defendant were, that on arriving at Port Louis, he made tso applications to the Captain, to be permitted to go on shore to dispose of his investment : to the first he received for reply. that by his conduct he had merited both the loss of his wages, and the forfeiture of his property. To the second application he received the following letter : " That although his high!y reprehensible conduct subjected him to *hat he had already communicated, he had to Inform him, that his wish through lire had alway• been to assis., and not to distress; he was therefore at liberty t•i dispose of his property on board: but as every thing there wai done through an agent, there was not any occasion for his b/ing on .More. Neither will I on any pretence whatever allow you to quit the ship, until al opportunity offers of bringing you to public justice." The plaintiff having business on shore at Port Louis, which required his personal attendill.ce before the Commissary of Police, the defendant would not allow hint to leave the ship until accompanied by a police guard. During the first few days atter arriving at the Mauritius, whilst the Captain was cm shore. Mr. Brodie came on deck and dined in the cedd with 'the other of fi cers. Mr. Brodie contributed with them towards the expenses of this table ; on learning this, the defendant wrote to Mr. Mitchell to forbid his dining there, and Mr. Mitchell acted on this order. Mr. Brodie had an investment can board to die value of two or £3OOO ; and it appeared by the deposition of one of the witnesses, that he had sustained loss by. not being permitted an superintend his own affairs.— It was deposed by two witnesses that the parties had been on bad terms, having had a disagreement in the early part of the voyage. Mr. Mitchell, on being cross-examined by their Lordships, said, that lie con sidered it a great disgrace to an officer to be com pelled to walk on the forecastle; during nine years he had served in the Honourable Company's ships and on boird other vessels, he had never heard of such an instance of severity. That the other usages on board the Woodbridge were such as are establish ed in the Company's service. It was expected and understood, that the officers on board theWoodbridge should dine with the Commander ; but if that he had been denied this privilege in consequence of any dis pute or quarrel, he should still have continued to do his duty properly. Such were the facts substantiated before the Court during a long and scrupulous examination of the witnesses produced. Mr. FEROUSSON, in stating the plaintiff's case, said, it had been justly observed, that in many instances, Counsellors were mach in the habit offieurirhirty, on opening a cause. In the present instance, no flowers of rhetoric were required from him: it was necessary only to detail the facts which would be substantiated in evidence: the case was so strong, it required not any external aid. He urged, that the damages prayed for were less than the case merited ; and bad the de fendant been criminally indicted, the Learned Coun sel was certain his punishment, by imprisonment, would have equalled in duration the period of Mr. Brodie's confinement. Mr. STRETTEL, the Advocate. General, on the part of the defendant, acknowledged the general tenour of his conduct to have been unjustifiable, indecorous, and cruel. He spoke merely in mitigation of da mages, distinguishing between such parts of the plain. tiff's treatment as were wholly imputable to his own conduct, and such as were justly the ground of action. In the former view he considered the whole of the confinement (the general severity of which he did not defend) to have arisen from the plaintiff's unjus tifiable refusal to continue to do duty if not admitted to the Captain's table,—conduct deserving of the . most exemplary punishment, as involving the liven and interests of all concerned. _ _ _ Their Lordships concurred in opinion with Mr. Strettel, that the greater part of the sufferings of the plaintiff were to be imputed to his obstinate refusal to continue to do duty ; a proceeding in which he had neither reason nor precedent to urge for excuse. Sir WILLIAM BURROUGHS perfectly coincided with Mr. Fergusson, that had the defendant been crimi- nally indicted before a Jury, his punishment must have been most exemplary and severe ; yet as their Lord ships sat there not to punish but to adjudge the fair quantum of damage sustained by the plaintiff, they must be guided in their decision by the real extent of the injury he had sustained from the defendant, care fully separating it from that which he bad cleaily, by his perverse conduct, drawn upon himself. Sir Joins ROYDS, reprehending in the most severe terms the conduct of the defendant as tyrannical, un relenting, and cruel in the zxtreme, pronounced for the plaintiff—Damages 2500 rupees, (46500) with full costs of suit. I 4