Star. — London, England, 1821-11-14 00:00:00

LAW INTELLIGENCE. COURT OF CHANCERY, NOVEMBER 13. ODDIE V. THE BISHOP OF NORWICH. , . Mr. SHADWELL this day called the attention of the Lord Chancellor to this case, and observe 3, that, pursuant to the advice of his Lordship, it was the in- tention of his client to appeal to the Home of Lords. He had also to move the Court that the costs for em ploying Counsel might be defrayed out of the estate. Tha LORD CHANCELLOR declined allowing costs, but at the same time expressed his sati4action at the course about to be pursued, as the parties would, in the course of the appeal, be placed in such a situa tion that questions might be put to them by their Lordships, which he could not, sitting there as Lord Chancellor, himself call on them to answer. COURT OF KING'S WENCH, NOVEMBER 13. SWANTUN O. TARPLRY. This was an action for a libel,. tried before Mr. Baron GAM ROW, at Oxford, when a verdict wa.rtaken for the plaintiff for £5O. Vr. CROSS now applied to have that verdict set aside, and a new trial granted, or a nonsuit entered. The plaintiff in this case, Susan Swanton, had, it ap peared, lived nursery-maid with the defendant, who is a Magistrate, but had quitted his service; and the libel complained of was contained in the following letter, written by the defendant, in answer to art ap plication made to him by a Lady for the character of the plaintiff: " Moire, Daventry, September 26,1820. " Susan Swanton lived with WI as nursery-maid for more than three years, and we have reason to believe, was, for some time, attentive to her duty; but now she is neither honest, sober, nor steady, and would have been turned away if she had not given warning. Under the semblance of modesty and good conduct, she is, in fact, a most vicious and profligate woman. It is im possible fot me tallescribe the gross insolence she is capable of, and has frequently shown to Mrs. Tarpley. Wekavenndonbted proof of her going as the man-servant's bed-room most nights, for months before she left. No servant would or could live wish her, and numbers left us on her account: as a proof of this, we hart- two returning to us at Michaelmas, whom she drove oat. lam glad of an opportunity of exposing her character, for a more vile wretch does not exist. I know her to be u base liar, a great thief, an inseent hussey, and to have lost her cha racter. The man-servant's name is David Scary, and you may have many opportunities of inquiring about them in Oxford.— I wish you to read this letter to her, should you see her again; but I warn you upon no account to take her into your service. " Your hamble servant, " K. M. R. TARPLEY." —Upon the evidence at the trial, the Jury found a verdict for the plaintiff for £5O. The verdict, the Learned Counsel now contended, ought not to stand, as at the trial no malice had been proved to have in fluenced the deamdant at the time of writing the let-' ter in question; and that in writing as he had done, Mr. Tarpley bad only discharged what he considered a duty towards society, in prevehting an innocent in dividual from being deceived, as he had been, by the veining good conduct of the plaintiff; and further, that at the trial witnesses had been called to prove the truth of the facts stated in the letter; and upon these grounds, Mr. Cross contended, the verdict ought to have been the other way. The Cover, after hearing the arguments of the Learned Counsel in support of his present applica tion, said, they were clearly of opinion that there ought to be no new trial. • More had been stated in this letter than was necessary as a fair answer to the application made to him-as to the character of the plaintiff. It would have been sufficient for him to have said, in answer to the questions—" Is she sober?—ls she honest?—ls she trustworthy?"— " I do not consider her sober, honest, or trust worthy." He was not justified in going into other matters, and expatiating upon them. The letter was couched in very strong terms, and on the face of it discovered that the defendant wrote at least under the influence of a strong prejudice, if not under a feeling of malice. As to the justification at the time of the trial, the question of credit due to the witnesses had been very properly left to the Jury, and they had thought fit to find a verdict for the plaintiff, which verdict the Court would be careful not to disturb, especially as the Learned Judge who tried the case had expressed no dissatisfaction at the decision of the Juty. As to the preponderance of evidence at the trial, that was a fair question for the Jury ; and it was not at all extravagant to suppose li that the Jury did not give full credit to the testi mony of the fellow-servants of the plaintiff against her; nor was that surprising, for if they,could for a length of time concur in concealing the conduct of the plaintiff. supposing it to be such as they stated at the trial, from their master, who ought not to have been suffered to remain in ignorance for a moment, they must not be surprised if the Jury did not give full credit to them for the purity of their late full and ample communication. The defendant had clearly gone beyond the lavr, and under all the circumstances, the Court was clearly of opinion there ought to be no new trial.—Rule refused. RHODES V. GENT. In this case the question was, whether a bill of ex change, especially accepted, must be presented on the day it becomes due at the place of payment, there being no proof that the acceptor has any funds, at the place at which the bill is made payable? The COURT held, that such presentment was not necessary, and was not required, by the decision in the House of Lords of Rowe v. Young, and therefore refused an application for a new trial. THE KING V. MARY ANN CARLILE. The defendant, it will be recollected, was prose cuted at the instance of the Bridge street Society, for the publication of some of Paine's Theological Works, tried before Mr. Justice BEST, at Guildhall, and found guilty. Mr. COOPER now, on behalf of the defendant, who appeared on the floor of the Court, applied for a rule to shew cause why that verdict of Guilty should not be set aside, and a new trial granted. The Learned Counsel said, he made this application on the affi davit of the defendant herself, who stated, that she had been stopt by the Judge in making her defence, upon the grounds that she used improper expressions. The particular passage in which the Learned Judge interposed was to the following effect :—Had the prosecutors of this indictment proceeded against me under the Statute for reviling the Holy Scriptures, the penalty would have been disqualification for office; but this would not have satisfied their vindic tive motives, and therefore they have prosecuted rue at common law, which is a common nuisance. The Cater Jostica.--And supposing the Learned Judge to have stopt the defendant on this passage, is. it a passage which can be defended ? Mr. COOPER.—If your Lordship puts it to me per / sonally, I should say it is .—PerSOIIS not defensible. 1 Mr. Justice BAYLEVe standing in your honourable situation, Mr. Cooper, Cannot defend such expressions. Mr. Cooeett —My Lord, I am only stating the affi davit, of which I have yet read only a very sMall portion; the affidavit goes on to state, that the Learned Judge stops the defence altogether. Mr. Justice Basr.—You were in Court, Mr. Cooper, and katiw better. . Mr. Coopers.—l beg your pardon, my Lord,.l was not in Court. Mr. Justice Besr.—l beg your pardon ! • Mr. COOPER.—I beg your pardon, my Lord, I was not in Court! I was at breakfast in the coffee-room. The affidavit went on to state, that the Learned Judge did say, " Go on ; but if your defence contain any thing of a similar nature, I shall stop you again." Mr. Justice BEST.—NOW, Mr. Cooper, as you were not in Court, and profess not to know what passed, I will state to the Court and you what really did take place. The cause was called on, and the defendant appeared to defend herself. She objected to any . person who was a Member of the Society serving en the Jury. I said I believed there was nothing in the objection ; but, for her satisfaction, I asked every Gentleman as he entered the box, whether he was a Member of the Society ? and received an answer iii the negative. The cause proceeded, and the case for the prosecution having concluded, the defendant handed a written defence to the Officer, who, at her desire, commenced reading. Some part of it I ob jected to, as going to question the truth of the Chris tian Religion, but allowed the Officer to prcceed reading till additional offensive matter was stated, and at the passage which you have stated I again in terfered, and observed, " Madam I cannot allow you to go on with such a defence as this." She said, " I can make no other ;" to which I replied, " I hope you can advise with your friends." She observed, she had no friend to advise with. I told her there was not a Gentleman at the Bar who would not advise her what to expunge as objectionable matter, if she consulted them, but she still said she had no other defence, Some of the Jury then interposed, and ad vised her to adopt the course I recommended, observ ing, she was hurting her own cause by refusing to do so. She at length retired, and a friend with her, and after being out of Court a short time, she re turned and handed this paper to me—" My Lord, I have only to say this is my defence, and if the Court say that an Englishwoman has no right to declare, that which she considers as essential to her defence, I must abide the consequences." I observed, I could not suffer this mode of defence to be adopted, and could not but consider, as the defendant was de fended in the next cause by a Gentleman at the Bar, that she adopted the course of defending herself in this cause, as affording her the means of uttering, in this very Sanctuary of Justice, sedition and blasphemy, which she could not utter or publish in any other place; and under a persuasion that it was my duty to prevent her doing so, and that I should be un worthy of holding the situation I now do if I acted otherwise, I stopt her proceeding. Mr. Cooraa said, he was not in Court at this time, and if he had he should not have advised the defend ant, although he was instructed to defend her in the next case, and he trusted that, whenever the interests' of another were submitted to his keeping, he should, as a barrister, never shrink from the duty of defending them; and presuming every one, whatever the offence he might be charged with, innocent until found ' , guilty, when he ceased to discharge that duty fear lessly, he should consider himself no longer worthy to wear the gown. Should any one, when looking at his conduct or his actions in profession, like a child going to a Play, confound the actor with the part be had to sustain, he could only say he should always hold such persons and their opinions in the most sovereign contempt, be they who they might. Ile had no doubt the Learned Judge now stated facts as he believed they passed, and to the best of his re collection, but still he must contend that the defence had been improperly stopped. The CHIEF JUSTICE asked if the affidavit of the defendant now went so far as to state that there was any part of what defendant had been prevented read ing which was unobjectionable? Mr. COOPER said it•did not, but it was fair to pre sume that there was some part not objectionable; and, as in the King v. Davison, the defendant ought to hare been allowed to proceed, she would have done so at her peril, and, if found again offending, the Judge could have punished her by fine and imprisonment. Mr. Justice 13.m.zy.—That would not have the desired effect ; the evil was the utterance of improper matter, which, having insinuated itself into the minds of the by-stanclers, no fine could cure. Mr. Corona submitted that, to adopt this doctrine, would be to go a dangerous length ; it would be to declare that no written defence—that no speech of a Barrister, even, could be delivered until it had been submitted to a Judge, to ascertain if it could properly be uttered. The Coma all uttered a dissentient to the opinion i thus laid down. Mr. COOPER repeated his opinion, that such would be the effect of adopting such a doctrine. The Court, if such was not the extent of the doctrine, should have, suffered the defendant to go on, and not have presumed that all which remained was objection ::able. Mr. Justice BAYLEY said, a written defence was different from a speech at once composed and deli vered, as the idea rose to the mind. Suppose a Bar rister to write his speech in his closet, the Court would presume it was draon up with due care and consideration ; and if, in the course of reading it to the Court, a passage highly offensive was to occur, and to call for the animadversion of the Court, and the Barrister when called on to give an assurance that what was to follow was not equally objectionable, should decline to give such assurance, would it not be reasonable for the Court to infer that he declined to give the assurance because he felt that what re mained was objectionable ? and would it not be the the duty of the Court to stop him from proceeding ? Mr. COOPER submitted, that the Counsel would have a right to proceed, thciugh he would do it at his own peril of incur ring the displeasure of the Court. As in the case of the King v. Davison, so in this case, the Learned Judge should have said, go OD I bit you • do it at your own risk. I have.the power to puni.h you if you again offend, and shall enforce it. The COURT asked whether the defendant ventured to say in her affidavit that there was nothing objec tionable in the remainder of her defence? Mr. COOPER said she did not say so. The CHIEF JUSTICE held that she was bound to say so much ; there might be the most offensive blas phemy behind. Mr. COOPER said, the defendant could only have spoken as to her own judgment. The CIIIEF Joricit said, the Court could not give up its common understanding even to the arguments of Gentlemen at the Bar; the defendant could tell whether there was anything remaining similar to that which she had already been told .vas improper and inadmissible. Mr. COOPER assured his Lordship he was far from desiring the Court to surrender their understanding to him; he had a very high opinion of their Lord ships' understanding; he considered them as not only having common but very uncommon understanding! The CHIEF-JUSTICE—WeII, Sir, go on, go on ! Mr. COOPER resumed.—He wits confident that the Learned Judge had stated everything as correctly as. his memory enabled him; but he assured his Lord ship the defendant had no adviser. He (Mr. Cooper) did not go out of Court to advise her. Mr. Justice Besr.—l did not state that you did, Mr. Cooper! I said there was a friend, or some person, with the defendant, who went out with her ; and I told the defendant any Gentleman at the Bar wculd give her advice. Mr. COOPER.-1 believe, my Lord, she would not have found any Gentleman at the Bar to assist her. Mr. Justice BEST,-1 believe, Mr. Cooper, you do the Bar injustice. Mr. COOPER.—My Lord, in this case, I believe nat. Mr. Justice BEST.— ram certain you do. Mr. 'ILA TT.—My Lord, it may not be improper for me to state, that I was near the defendant and offered her my humble advice and assistance; but she declined to accept it. Mr. COOPER.—My Lord, I am sorry I did my Learned Friend injustice, but was entirely ignorant of the fact. The Learned Counsel then proceeded to re-urge his arguments, that before the Learned Judge interposed to stop the defence, he should have suf . - fered the defendant to proceed, and have stopped the objectionable parts as she proceeded, and therefore that she was entitled to a new trial. _ -...—.- The CHIEF JUSTSCE observed, .this was manifestly a struggle, as in a former case, to try whether a pe!. son charged with publishing blasphemy and sedition might not, in au open Court of Justice, under the pretence of making his defence, give utterance and publicity to as much more aggravated blasphemous and seditious matter as he should think fit. In the present case, it appealed that the defendant had her written defence prepared, and delivered it to the Of ficer to read. On the objectionable passages being read, the Learned Judge who presided acted with the greatest kindness towards her. So far from stop ping her defence, he advised her to withdraw, con sult her friends, and expunge that part of hcr defence which was objectionable, and could only tend to in jure her. She did accordingly retire, and after a time returned. She had not, however, altered her defence, nor did she condescend to say that what re mained was not of the same objectionable kind. But instead of doing so, handed up to the Court the writ ten declaration which the Learned Judge had read, declaring that was her defence, and that she had no other ; and if she was not allowed to proceed with it as it was, she must abide the consequence. That paper claimed a right to utter whatever she thought fit in her defence, whether legal or illegal, seditious or blasphemous. He could only say he knew of no such law. If any such existed, it could only.exist as a disgrace to our Legislators, to those who proposed it, to our Courts of Law, and to those who would con sent to preside there under such a provision. In the present case, the defendant was pursuing this course. The interference of the Judge was only the discharge of his duty ; and there were not the slightest grounds for the present application. Mr. Justice BAYLEY hoped the time would never arrive when a defendant should be prevented from stating everything necessary to his defence ; and wal sure the time would never arrive when there could not be found Gentlemen at the Bar ready fearlessly to discharge their duty in defence of their clients. At the same time, it was indispensably necessary that such defences should be confined within proper bounds—the bounds of decency and decorum. The Learned Judge proceeded to comment on the course adopted by the defendant in this case, as being en tirely illegal and unjustifiable; and declared his opi nion, that the Learned Judge had properly interposed to stop her, and that there were no grounds for a new trial. Mr. Justice Houtorn considered there were no grounds for a new trial. It was the duty of the Judge presiding to prevent the utterance of sedition and blasphemy, or any noxious matter introduced by a defendant into his defence for sinister motives and purposes. The Learned Judge in this case 'had dime no more than his duty. Mr. Justice Bes T.—l have confined myself to stating the facts of the case, and have taken no other part in this discussion.—Rule for a new trial refused. • COURT OF COMMON PLEAS, NOVEMBER. 15. GILMAN V. ELTON. This was an action of trover, tried at the Sittings I at Guildhall, to recover the value of certain goods seized by the defendant in a distress for rent, in which a verdict was taken for the plaintiff, subject to the decision of the Court on a case, which was afterwards turned into a special case for argument, and now came nn to be heard before their Lordships. Before the case was gone into, Mr. Serjeant LAW - ES, for the defendant, said, that possibly there might be no occasion for going through with it, as the plaintiff had died since the commencement of the action. Mr. Serjeant MAusitALL, for the plaintiff, said, it ' was quite common in every day's practice to have the opinion of the Court on a case where either of the patties died between the verdict and the judgment. • The circumstances of the present case were these : In 1819, Mr. Gilman, the plaintiff, who was a bum basin manufacturer at Norwich, sent a quantity of goods to a persOn named Milne, who was his factor in London. He forwarded with the good s a r e g ul ar I invoice, and drew upon Milne a bill for £2OO on ac . count, which was regularly accepted, and sent hack Ito him in the country. The plaintiff got the bill tbs. counted at his Banker's, at. Norwich, but hefore it h t . came due Milne died ; and, on becoming due, it val presented at his late warelicwe by the halikert enk in London for payment, but was s...nt bad( di s h ch a rrta and protested. The plaintiff then dentatidtd that his goods, which he had placed in the hands of NI,16„"11 his factor, should be T milled to him, w hi c h , h ot , was refused by the plaintiff, who had distrained ti vez po; them for the rent of the premises where they w e* deposited, which had been let by him to Mi lne. question, therefore, for their Lordships to decide it ak, whether goods belonging to a third party, the hands of a factor, were subject to distress for Mr. Serjeant MARSHALL, for the plaintiff, laid d Ewtt a position, that goods delivered to a third exercising publicly a trade or business, to b e b y carried, wrought, rought, or managed in the way of ills were not liable to distress for rent. Mr. Scrjeant LANES, for the defend ant, said, 14 Learned Brother looked to the inconvenience to uain : he, on the other hand, would have thei r Lo t ai nt to look to the inconvenience to . the landlord, vh t had a not less important interest in this abridgment of his rights. The CHIEF JUSTICE said, the right of the Indira to distrain for rent was clear in point of i a ,,,, andtit rule was to take all that was fou:ld on the premix es prima facie, as belonging to the landlord. flux thin, like every other general rule, had its exceptims, an d the question wac,whether the present case came within the scope of the Tule, or fell under the exceptions' The pi inciple of the ruic was not that of a right to di r train the property of one man found on another main premise., that would be contrary to natural justice. The fenndation of the rule w:ts the principle of re l, lic -convenience in the prevention of fraud. The ptio. eiple of the exceptions was very clearly laid &T N and ail the exceptions were in favour of publit: con. venience in trade, and seemed to him to apply ma% more strongly in the case of a factor than of any other exception. Deciding upon this case by analogy hors the general principle, it appeared to him not to be distinguishable from the case of goods sent to aware. louse, or an inn, or a wharf, all of which were ad. muted exceptions ; and without applying himself's) any biller but simply t(, that which was befit/ the Court, he should say, that the goods of a third party in the hands of a factor, are not liable to din. • tress for rent. The other .Judges expressed their concurrence is his Lordship's opinion.—Verdict for plaintiff affirmed. COURT OF COMMON PLEAS, DUBLIN, NOV. s. CUTHBEItT V. BRoWNE. Yesterday, the Court gave judgment on the demur. rer set up in this case by the defendant's Counsel. It will be recollected that this was a special actin for deceit. The allegation contained eleven counts, and the defendant had demurred to the first five. The remaining six, which were for slander, he justified_ In pronouncing judgment yesterday, Lord Nokia spoke at considerable lengtl., dwelling much en the cases which had been cited by the different Counsel, at the hearing of the argument on the ciemurrendining the Sittings of last Term. " I was quite captivated,' said his Lordship, " by the eloquence ef Mr. Seijeart Joy, who dressed up this sin so re:igiously, that the author of sin could hardly recognize it for his own. The Learned Serjeant argued most poetically on the subject. One would have thought that the Ladl's griefs and virtues had made a tholida7in thAvEE; however, I am not prepared to argue against poetry. She sat like Patience on a monument, smilingd— the griff of her husband; and the defendant, it seem, thought he hI.J nothing to do but laugh at them both` His Lordship then gave it as his judgment, thattbe demurrer could not be admitted. Judge FLETCHER fully concurred in the opisks pronounced by Lord Norman - . Judge :Moore followed; his Lordship coionki with Lord NORBURY and Judge FLETcHER. The demurrer was then over-ruled, and the nil will proceed of course. ASSIZE COURT, PARIS. M. PIERRE BA RTHELEMY, a man of letters, sal M. GALLI(); a bookseller, were on Thursday charge) before the Assize Court of Paris with a formal attack upon the constitutional authority of the KING, ad exciting sedition—the one by writing, and the other by publishing a work, entitled " Demand for trans• letting the mortal Remains of the Emperor Nap► loon, by the Author of The Shade of Napoleosita the Council of Ministers." The Counsel for the cia tendants contended that the expressions in favouraf NAPOLEON did not amount to sedition,_ or an attack upon the constitution of the KING. On the other side great stress was laid on the cover of the WA which presented the letter " N." surmounted with& crown.—The defendants were acquit ted. _ liIRTII. Nov. 4, in York-place, the Lady of William Wrixon Brag, rsq. M.P. (formerly Nisi O'Neil), of a daughter. 0ct..30, at Ifarlow, Lieutenant-Colonel Johrsoa, of the 86t Region nt, to Emma Julia, second daughter of Sims, Est of Ilubert's-hall. Nov. d, at Glasgow, Major William Steuart, of Olt 91030- giment, to Ann, only daughter of the late Captaic Jot.% licofa4s of SpringhalL Oct. 2.1, at Edinburgh, Wm. Ikrries Ker, Esq. to Vfailitt. daughter of the late Colonel Riecart liepbur ofd DIED. Thursday, at Edinburgh, Charles Murray, Esq. fonill l q the Theatre Royal Coven:-Garden. Last wet k, at Tunbridge Wells, the infant son of Sir. Langham, Bart. Uu thC 31st ult. Louisa, daughter, and on the sth lost- Ml' , son of Mr. John Wright, merchant, k.dinbargh._______— CO Amsterdam 1 11 11 1t 1 S 4 n C. ° F. F 11: CHANG i D to it t t t o tr a d t ain sigh .. t . ..... 2 1 ll2 121 2U. Antwerp, ex-mo 12 7 Hambisrgh... 37 9 211. T. Altona 37 10 2iU. Eu - is,3day's sight 25 60 U. Ditto 23 90 2U. Madrid, effective 36 Cadiz effect 36 Seville ...... 35h Gibraltar 3Ol Lesborn 47 Genoa 451 Venice Ital. Liv 27 22 highs Naples Palermo ph* Lisbon SO Rlo Jar.eire... 46 Barceloaa ... ...... 33k Bilboa, effective 331 Dublin ..... .....- 8 1 Cork .. ..... .... .. 9 MAILS 4ii IS DAY.--.A It a. Dv& Dublin I 0 Wat riord 2 0 Guerr-ey :411 Jersey 0 I Holland 0 0 nun.irrs 0 0 3lalta 1 0 • sr- ote lation - France 0 liamDu .t 6 I Gottentmrgt 0 I Leeward Islands 0 0 •' Jamaica _ • - • oi I G i-I-W ATER at LONDON I; Itl 1/r,l! 7 0-:SOW 1 . 1 \Jrrtrmg 27 :r.atteet :itc: 6 A rta 11!0 , 01 • 6 53 LONDON s -„ rintea tn.! publishr,i by ! MEI Kiln. I ?Las, Ttniplt- Bac. 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