Star. — London, England, 1806-09-17 00:00:00

pnt ICE. NM. DANIEL& Houss.—Yefterday being the day ap- pointed for the examination of this Gentleman, the curi , ftry created in the City exceeded all eir.mple.— Long before nine o'dock in the tnntning numbers of Gentlemen afrembled before the Manton houfe, in anxious expettation for the hour to arrive when the gates fhould be opened. About half pall nine o'clock the crowd became Co great, that every perfon took his Ration as near as he poffibly could to the ontflde gate. Here, for the {pact of an hour, the preffure was intolerable, and fo vigoroufly did every man endeavour to retain his place, that it was abfolutely impnffible for the Officers or the Gentlemen immediately concerned in the buli mic to gain admiflion through this gate. They were therefore admitted through the fide doors, which, though alto belieged, were not crowded to fo great an extent as the great gate. About half paR ten o'clock the prifoner arrived in * hackney coach, and fhordy after, we underhand, the Lord Mayor took his feat in his office. The gates were then unlocked, and flew open with the prelfure. The crowd rutted in, and the outer hall of the Man fion houfe..was in a few moments filled with people— the Reps were alfo full of Gentlemen, who prellid ' forward with fo much violence, that many perfons were extremely happy to give over the contelt, and make their way out of the crowd with whole bones. —ln this fituation the greater part of the crowd re mained for upwards of halloo hour, being repeated ly informed that the door of the Jullice Room would mot benpened to the public until the bufinef. was over. This, however, had not the effeft of clearing the place; and about eleven o'clock, by order of the Lord Mayor, the door of his office was thrown open, and thole who were nearelt to it had the good fortune to gain admittance. At this time the examination of Mr. Montefinri had nearly doled. Mr. Marryatt, as Counfel for the Profecution, had, of courfe, conclud ed his flatement ; but, we underhand, it was a plain recital of the fens of the cafe : and with refpeet to the legal guilt of the prifoner, he mulled that it mull either be • felony, a fraud at Common Law, or a fraud according to the flame of the 3oth of the King. With terpeEt to the two former, the Learned Counfel teemed to admit, that the priloner never could be confidered guilty of either ; but with refped to the latter, namely, a fraud according to the (haute of the 3oth of the King, he entertained a different opinion, and fubmitted that, by virtue of this, the prifoner Mould be committed for trial. This (lattice makes it a fraud to obtain money, goods, wares, or merchan dizee, under falfe pretences ; and though this parti cular kind of Rock could not be confidered as either money, goods, or wares, yet he conceived that it fhould be confidered merchandize : and on this con firuflion he chiefly relied his cafe. Mr Montefiori, the Rock broker, was then fworn, and went over the circomliances of the cafe, fo far as they related to himfelf. He hated that he had, at the requell of the prifoner, purchafed 31,0001. OmAim for him, defendant having informed him, that Mr. Abraham Guldfmid and another friend would take large part of it off his hands. For this Omniuin the prifoner on the loth of Atignil gave Mr. Montefiori his cheque an his bankers, Meths. Payne, Smith, and Payne, for 16,8161. p. telling him at the fame time, that he believed he would be fhort of calls, and he could not therefore draw on his banker for ty,oool. which was the whole amount of the hock. This cheque Mr. Montefiori paid into his banker's. It was prelented to Smith, Payne, ar.i Smith for payment I but they refufed to pay it, alledlng that there was not more than 2, 5001 . f ti e de fendant's money in their hands. By this time the [lntoner had abfconded, and when Mr. Montefiori went in a day or two after to his lodgings, he found there, in a tin box, 30001. Omniam, of which he look poffeffion. On croft examination by Mr. G writer, as Counfel for the piifoner, Mr.Montefiori admitted, that he had made an affidavit of debt againft the prifoner for ret,St6l. p. Mr. Fuller was next examined by Mr. MAILItYATT. He Rated, that be had hailed twice from London in purfuit of the prifoner. The fecond time he went in company with Rivett. the Bow.flreet Officer, to the Ifle of Man, for the puroofe of identilying him.— When he fish taw Mr. Daniel., he did not mention that he had any warrant to apprehend hint ; but of ter Tome converfation with him, be went to the Go vernor of the ifland, and obtained his perm:llion to taste him into cuflody. On this authority, he ordered Rivett t fearch him, and he found on his perfon sisol. in Bank of England notes, all of which were adver. tifed numbers, except about thirteen pound. in (mall notes. He preffed the prifoner to difclofe to him where the remainder of the notes were, but lie pofi tively denied having any others ; and gave his keys to Rivett, that he might fearch his trunks and draw ers ; which he did, but found none. In the courfe of converfation. the prifoner laid it was his with to remain in the Inc of Man until he had fettled with his creditors. For this purpofe he commiffioned him, the witnefs, to enter into a negotiation with them, and tn adjuit all matters. He was awire, he laid, he could not he taken out of the iflatad, as he was limier the proteltion of the Governor, who had pledged binnelf.to that circa. Mr. Daniels had 111 his hands, at the time, the Manx Statutes, which be teemed to Rudy with attention, and they not being very volumi nous, the witnefs brought them over with him. The ' prifnner, at length.after much perfuafion, agreed to give up the ref! of the property in his poffeffion, pro. aided the witnefs promiled him that he fhnuld not be taken before the Lord Mayor, or be made a public fpeftacle of. This the witnefs promifed —and then Mr. Daniels conk him up (lairs to a bed-room, in wbich there was a Lady. When they went into the room, the Lady was about to retire into another room, but the prifnner Paid to her, " you will pkafe to walk down (Lairs, I wins to have the whole floor to myfelf." The Lady then went down, and Mr. Daniels, pointing to a corner cupboard, Paid, " the red of the pr operty is behind that." Witnefs looked behind it, and few fume paper there, but not being able to get at it, he called Rivett, and he pulled down the cupboard; they there found a parcel of Bank of England Noter, foaled up, in all, amounting to within a few hundred pounds of to,oool- the numbers of which correfpnnded with the numbers in the advertilement. Mr. Fuller laid, he had heard the prifoncr fay that he was often •ery • . (mealy at ha►ing thefe notes in his poffelnon, and oacc, on the (Ca {bore, he was debating with Nada, whether he fhould not 'hr.,* them into the water. —On crisis examination, Mr. Guar Iv produced a paper to the witnefs, which he acknowkdged was his hand writing. The paper was then read by Mr. Gurney, and purported to be an agreement entered into by Mr. Fuller, on the part of the Gentlemen of the Stock Exchange, not to take the prifiner before a Magifirate, or put him into confinement, provided he gave up the property in his poffeffion. Rivett was then alked, if he could add any thing to this fiatement ? and he anfwered in the negative. Mr. Handeock, from the houfe of Smith, Payne, and Smith, then depofed, that on die toth of Augud the prifoner had not more than abont Soot. in their hands. On theaoth, be paid in there about 70001. in divers drafts and bank notes. There are two clerks, as the witnefs Rated, in this hnufe, one for paying, and the other for receiving, who fit ()polite each other. When the prifoner had paid him drafts to the amount of 67631. he in nantly went over to the other fide of the room, and drew a ehecque, or pre fenced one which he had ready drawn, for 47101. payable to the EaR India Company. This was not a regular mode of doing Winery, as the drafts to the amount of this fum being only that moment paid in, he had no right to draw on the houfe until alter fix o'clock in the evening, when it would be known whe• ther they were paid or not. When the prifoner pre loved the cheque, Mr. Salmon, who was the paying clerk, firli inquired whether Mr. Daniels had money enough in the hook, and finding that he had juti paid it in drafts, he hefitated a little, as it was not liftial for any geatlemar. to aft in fuch a manner, without fird making application to one of the partners (Ache houfe, or to tome of the confidential clerks. At this moment,the prifoner fceing it was doubtful whether he fhould receive the money or not, anted fur the v. it nets, and went up (lairs, as if to cnnfult him on the fubjed ; in confequence ot which, when he next pre. fenced himfelf to Mr. Salmon, the money was hand ed over to him, and he took it away. Mr. Salmon corroborated this flatement, and Paid, that when the prifoner afked for Mr. Handcock, and went op flair., he was impreffed with a belief, that he went to fpeak to htm on the fobjea; and he there. fore gave him the cath. _ _ The cafc on the pert of the profecution being here doled, Mr. Cougar, as Conflict for Mr. Daniels, now produced a copy of an affidavit (worn by Mr. Mon tefiori, to a debt of feventeen thoufand pounds due to him by Mr. Darnels, being the amount of the de ficit by the latter, which affidavit Mr. M. acknow ledged. He al() produced a written agieemeut figned by Mr. Fuller, in which he engaged, in confi deration of Mr. Daniels delivering op all the property remaining in lit poffeffion, and coming tip to town to furrender himfelf to his creditors, that he fhould not be brought before the Lord Mayor, expofed as a public fpeftacle, nor committed to any prifon ; and this alto Mr. Fuller acknowledged. Mr. GUILNEY then addrelfed the Lord Mayor, and commented in ftrong terms upon the very fevere and unprecedented treatment to which Mr. Daniels had been fuhjelted—firlf, on the fide of Mr. Monte• fiuri, who, after having, by his own affidavit, proved the deficit on the part of Mr. Daniels to be a debt, nuw endeavoured to inffitute a criminal profecution on account of it as a fraud ; and, fecmdly, orr the fide of Mr. Fuller, by whom he was induced, under the fpecific fiipulation already Rated, to (*mender all the property in His hands for the benefit of his credi tors. Mr. Daniels was now fubjeeed to all the ag. gravated confequences of ao open breach of faith, brought before the Chief Magiftrate as a public cri• urinal, expofed thr , ugh the fireets and in the face of his fellow citizens as a public fpeetacle, and commit• ted to a c‘mmon pawl under a criminal charge, in dire& violation of every condition and principle he had flipulated with Mr. Fuller, and guaranteed upon the honour of that Gentleman as the profeffed reprefentative of Mr. Daniels' creditors. He untied, therefore, that Mr. Montefioti, refleeting upon there circumfiances, as well as that his client had (unto dered all the property in his priffeffion, would not perfevere in this profecutiun ; and that his cheat, who was amply punilhed for any error he had com mitted by what he had al,eady (offered. would. be al lowed to go at large and fairly meet his creditors, and fettle with them a. became an honeft man. But if the profecutr4 Itould be deaf to every moderate conlideration, and not content with the money he had recovered, and with the lubjelting of his client to an aCtual flare of bankruptcy, under which he was re. fponfible in another way, but was !till determined to proceed with a criminal profecution, he hoped to con vince that Gentleman and his Lordfhip, that the at. tempt would be in vain, and that it would be imp( table, under any known principle of either common or flatute law, to obtain a verdict of criminal ermvic• Lion upon this cafe. His Learned Friend had ad mitted that the charge could not come under the head of a felony at common law ; for under the legal definition of that crime, it was neceffary that a man fhOuld be deprived of goods or chattels, his property, forcibly, or agsiaft his will, which was by sio means the cafe in the prefent inflance—for Mr. Montefiori had bona Pe fold and delivered the Omnium to Mr. Daniels, received for it that which he conceived to be a valuable confederation, upon the faith and credit of Mr. Daniels, in whom the property, under every fenfe of legal pulreffion, immediately veiled. Had he fold it the neat moment to a third perfon, the Pale would have been valid—had his pocket been picked of it the next moment, he would have been entitled to profecute the thief for Dealing his property. But lure!, it never could be deemed a felony at common law, for a man to overdraw his banker ; a thing in the daily praCtice of every refpetlable trader in the city of London, and which might occur through rniftake, or in a reliance upon the indulgence of a ban. ktr, e witb whom the drawer was in the habit of keep ing cues. It was not a felony under the fiatute of Henry VIII. for the thing fold was not goods, chattels, or merchandise, under any definition known in the regular commerce of the country; nei• ' ther was it obtained by any falfe token, or ding one Imams for another, or producing any counterfeit I order, falfe pretence, or the like, but by a regular draft of Mr. Daniels on his banker, which Mr. Monte. fiori cunfidered a valid fecurity. It could not be a larceny, under any delctiption of that mime, nei. her could it be (hewn to come within the Statute of the 3oth of George 11. or Statute of Frauds, fuch at ob taming tire polfeffion of goods upon a falfe pretence, or that of giving a forged order, or a fulfs name, profeffion, or refidence to the feller ; or filch as Mr • lug a horfe, chaife, or the like, by the content of the owner, under the promife and expeClation of its be. ing returned, as in Semple's cafe, and then felling or otherwife difpofing thereof ; but by n poffihility could it be pretended in this cafe that Mr. Monte fiori ever expelled the Omnium transferred to Mr. Daniels was to be returned to him. And even if it could be proved that, at the moment Mr. Daniels was palling his draft for this money, he did not ra pe& or intend it could he paid, fiat it could not be legally confidered a fraud, nr'punitlied as loch, but as a regular purchafe, the payment of which he I could only be refponfible in a civil Init. I - his Learned j Friend, after having, in effeel, admitted that it did not come under even the Statute of Frauds in the defeription of chattels, goods, or wares, contended that it came within that Statote, under the definition of merchandize. 13 .it this alto he would deny; for whatever value the prorrty might derive in the efli. matiun of Gentlemen of the Stork Exchange, it came not within any defeription of merchandise in 'Lis commercial country. it was a Ipecies of prop:sty unknown in England before the palling of the Sta. tote of b rauds, and confequently could never have been contemplated thereby. It owed any effisnation it had to the exifience of a national debt. But to thew the ettimation in which the law held filch pro. perry (which, however, he denied to belong to any parl‘amentary fund) he cited Lara's cafe, from the Term Reports, in which the Defendant was prole carted fur a fraud in obtaining goods, chattels, and merchandises, namely lottery tickets, upon falfe pre. tences ; but it was decided by the Court, that lottery tickets were neither goods, chattels, wares, nor mer chandises (although faleable for money), and confe quently the indißment was invalid. He cited another cafe, before Lord MANSCIILD, of a brewer inclined for a fraud, in felling a veffel of beer containing fix-' teen gallons, and taking payment for the fame as eighteen gallons. Bur, though the fall was proved, it was there held by the Court that the brewer was not indiftable for a fraud, becaufe it was not thewn that he ufed falfe meafures in his ordinary Fortifier:: the thing was coat:feted as the effeß of mistake ra ther than fraud, and that, at worth, he was only lia ble to an anion of trnver for non-performance of contra& Exaftly fo did he confider the cafe of Mr. Daniels to (land ; for, if it were not in, there was no man at the bar who knew better than his Learned Friend, that according to the elablithed maxim of law, fraud could not legally veil any property in the perfnn fo obtaining it ; and if the Omnium rirchafed by Mr. Daniels from Mr. Montefiori was a fra •dtr lent acmifition, nothing could be clearer than that he had no legal right to fell or tranrfer it to utaers : And that his Learned Friend, Marad of adviting his client to purfue Mr. Daniels, to offer rewards for his apprelienfinn, or to carry on a criminal profecu tion againft him, fhoold have counfelled his client to take the readier and more certain cootie of an aeion again!! the perking who purchafesl this Omnium of Mr. Daniels, for the refloration of his property, il legally obtained from a fraudulent poffeffor, who had no right to fell it. Mr. Cuestas , concluded a very able and ingenious addrefs, by fubmitting to his Load Ship, that as no legal charge of criminality could be maintained againft his client (however ueprehenfsble his condo& might be in a moral point of view,) he was entitled to his difcharge. Not within?, howe• ter, to prefs his Lordfhip to any precipitate decifion, he would by all means with him to confult, if his own mind was not perfeCtly fatisfied, the opinions of the Recorder and Common &rjeant, two very compe tent authorities, and who he ventured to rely would coincide in his opinion. Mr. Corm- was about to addicts the Lord Mayor for the profecutinm when Mr. Guayas. interpofed ; and it appearing that Mr. Conti was retained againth Mr. D. OD a feparate charge Mr. MaaavaTT was allowed to addrefs his Lord S hip alfo in reply. Mr. MARRYATT replied in fupport of his original argument. He übferved, that his Learned Friend had certainly adduced many ingenious arguments in behalf of his Client. But molt of what his Learned Friend had faid, would have been much more pro perly referved, in order to be offered in anvil of judgment, upon the event of a cnnvihion, than pref fed now again!! the legality of a profecsution in which he had nu doubt of fucceeding. The defcription under which he originally cottfidered the crime of Mr. Daniels to come, was tbat of a fraud, tinder the Statute of the 3oth of George 11. ; and though he had not, in his origihal argument, welled on any Poch defcription of the property fraudulently obtained in the prefent cafe, as ;oar, chattel:, or wart ; yet he conficlered it as coming, to all intents and purpofes, and by the accepted, known, and ethablifhed ufages of modern commerce in the City of Landon, under the defcription of rairchanZse. It was a property bearing a form in which it might be bought, fold, and delivered, like any other commodity at mil ket, it was univerfally admitted to bear intrinfic value : and was purchafed, fold, and delivered( for money, or other valuable confideratians, in the known, daily and conthant prahice of the Merchants and Bankers of the City of London t and as well might his Learn. eJ Friend have argued, that any other Species of mer cliandize or commodity, not ufually imported into this country before the pairing of the dame of Frauds could not afterwards, though becoming an article of general importation and mercantile traffic, be con fidered within the view of that Statute, as that the property in this cafe was Tint In. With refpeCt to the complaint of his Learocsl Friend, that faith had been violated with his Client, upon the compael entered into with Mr. Fuller, he begged leave to fay, that whatever authority Mr. Fuller might have poffeffed or affirmed on behalf of Mr. Daniels lb other cr editors, or to whatever c0:14144ms he might have agreed as on their behalf, he had no (rich authority from Mr. Montefiori, who never was privy to, nor knew any thing of the compaB, and confequently, could not be bound to its obfervance, nor incur any juft charge of ditbonour or ill faith in refuting to abide by it. Mr. Montefiori was a very great toter, and moil (grimily injured by the fraudulent conduct of Mr. Daniels ; becaufe, altho' in the cafe of flock purchaled and not deltvered,he might not be anfwerable to his principal, yet in the cafe of aria fold and delivered, he became himfelfa principal in the tranfaßion, and relponfib'e to the perfons for whom he (old, and had :ability paid them. It did, therefore, by no means follow, that becaufe Mr. Montefiori, by the lieps he had taken, had recovered a part of the property of which be had _ been defrauded, he was theretprs not soder any obligs-1 , . • tion, direct or implied, to enopoo tta the fraud and forego a profecurlon, which, foe the fake of public , ~ju@ice and public example, he had a much limegcr obligation to fa llow epi and even If so,oool. oft e property had been recevered, convidion would math as Ilrongly and cs jufily upon the remainder of the fraud, as if Mr. Dar.iels had embezzled the whnle.—• Notivithltanding, therefore, the ingenoity of itie Learned Friend, his Lordfltip mug be ton concerto* with the deci turns of the Criminal,Coorta, to echoer Mr. Daniels, under loch circumfiances, or wakeless any doubt which could make it neceffar y for him'to call fr.r the opinion of the Recorder. The cafe was plain and obvious; and he tru'leJ Iris Lordfltip would cimmit Mr. 'Daniels, and leave the ifue to the Jury of the country. The Loan idsvos declared his unwillingnefs to al low fo impoortant a queflionh as the prefent andmilst• edly was to reft rn his judgment, with mt receiving the oily fs ei,fißory kgal faneim, that of the orkion of .one of the Judges. In addirion, however, to this i .n, which he very flrongly felt, he could nor forbear trom frying that lie was thoroughly fatisfied in his own mind that here the m-11 complete fraud was not only premeditated, boat carried on, and per fevered in, from the firil to the fall of the tranfailion. lithe Clime committed was any thing, he was of opi nion that it amounted to felony. He did not fee that it could be conttrued into an r ffence at Common Law, n +r yet could he gn into !he idea that Omnium was merchandize, and of courfe that it was a Re tutable fraud. He agreed, however, in the dodrine fo well and diflintly laid down by the Learned Judge who prefided at the trial of Major Semple. That Learned Jodge had given it as his opinion, that where fraud Was intended, and formed part of the traafac tion, no transfer of the property could take place I and that wherever fraud formed a conflituent part of a contraß, fuch contra& was gond for nothing. In both of thefe predicament. he viewed the prefent cafe to (land. The foppofed bargain by Daniels, for the Omnium in queftion from Mr. Wontefiori, had been commenced, carried on, and ended in fraud, of courfe as legal transfer of property from Mr. M. to Mr. D. had taken place, and the contra'st being alfo built on fraud, and of courfe unavailing, the fiabfequent failure of Mr. D. to implement what he had flipulated for. • as the pretence on which he had received the Om nium, could not be rednced to the mere breach of a cnntraft, where no contrail citified, but refolved into an aft of felony. Mr. Guam then, with the content of his Lord fhip, alked A Montefioti. whether th e p r if oner h a d not, a few y, before the soth, defired him to fell thin th - yck for him, if he could do it without a lofs ? And was anfwered in the affirmative. Mr. Guam sr then fubmitted, that from this, it was fufficiently evident, that Mr. Daniels did not mi. ginally intend to aft as lie afterward. clod. The Loa o Marna faid, he ffinuld rather confider it as a proof of a deep laid fcherne, for the purpofc of throwing Mr. Montefitori entirely off his guard. After fome pi ivate eonverfation between the Coun. fel, it was then agreed; that the prifoner fisould be remanded until to-morrow, at one o'clock, and then brought up for the purple of having the depolitions read over before him. Mr. Daniels was dreffedin black, and flood at the bar with his tight hand in the breall cf his coat. dining the whole of the examination; his eyes were fixed on the ground, and his v.rintenance WAS unal tered ; nor did he, that we could perceive, change his pofition, except once that he Itonped to (peak ro Mr. Gurney. When he retired, he bowed to the Court, and walked !lowly ; he , however, appeared its puled health. . . • So great was the anxiety to fee the partner, that the outfide of the windows (1 the Lord Mayor's Office, was crowded, fo as to darken the to , m, and numbers were waiting in the different flreets leading to Nzugate, in espedation of teeing him as he paffe4 The ben account that evrr appeared or South America, in the Englifh language, is to be found in Mr. Salm MIR'S elegant publication on the prefent Rate of Peru, a work which was written in conneCtion with Sir Hors POP HAM and General Mttawna, with a view to the recent ezpediti ,ns that have taken place. The Ezz gun brig has taken two valuable Spanith prizes into Port Roy al, Jamaica. Captain MACLAINE, of the .so .h Font, who was the only Officer killed in the late aelion with the French inCalabria, was a fon of GILLIAM MACLAIIII, of Scallaffle, in the Wand of Mull. He highly 'Min. guifhed himfclf in the campaign of mist in Holland, and was patticulaily noticed in one of the anions fought there by Lieut. General Moons. He after wards fervcd in the Egyptian Campaign, and re turned with his regiment to Malta. In the late glo rious battle, fought on the plains of Maida, Captain MACLAINF bring ran the advance with the Light Infantry, ha was the tirfl who charged the enemy with the bayonet, and after putting thofe who op pofed him to the rout, fell, much lamented by his Regiment. The Honourable Major Maar, fig warmly recom mended by Major General Bartssroao to the favour of his MAJOITT. is Ilse Honoorabl: Jour THOMAS FITIMAUSICI Damp. eldeft ton ofLord Mus - - - ----- DR UllY-LAN 2 —The Tragedy of Hawk was per formed at this Theatre, 101 l night. and attraaed an elegant and crowded audrerioM The whole went off with the greateit eclat. Several p:rfons of fifbion were preterit. The Farce of tbe Nutrrourift followed. Mr. Bawassrea, Mr. Wawitzta, and Mr. Puma, were equally comic in their &vela' parts, and excited continued burns of laughter. Weymouth continues full, and the amutements well attended. Among the many improvements in that charming place, are the Hot Salt Water Bathe, which are four in number, with every accommoda. tioa requifite to In great a luxury. The Theatre opened lalt night with !rives at they Were, and/be Merry Mearrterr, by delve of Mr.. C Burros. ' brimicar 2222 .3SP it MIMI IC.-...1111s day we had a great Trotting MAO for 203 guineas; Mr. Bell's eb. male againtt time. She was en trot 16 miles in an hnur ; the peat:limed it in ;9 minutes. There was s great real of bet; it g on the match. Sir of the unfortunate men, lately under teatimes of death, at Lanealter, were on Saturday left ere. cnted on the new drop, crated at the back of the c a gi c .—The other it:ironers in the Celle, under lenience of death, are relpitcd dating his Majears pleature. 1 . . i t 1 i 1