The National Register. — London, England, 1812-02-16 00:00:00

108 resided in the City of London. He hoped in such. a case as this, his ‘N . ould not let in the plaintiff. to prove this fact. 1.0r4 Et LE 30 !WV na said this Was certainly that desyription of case, in which he would he very unwilling to grant the plaintiff any indul gence, anti as it was now too late fur him to amend his ckse. The plaintiff was nonsuited. ••••••••• COURT OF EXCHEQUI.R CHAMBER, FEE. 14. Tim, KING r. BENJAMIN WALSH, ESQ. This case came on for further argument, before the Twelve Judges, in Serjeant's Inn Hall, at Six o'clock this evening. . Mr. Guritey, on the part of the p rosecution, in continuation of his ! fortner:argnment, after generally adverting to the cases he bad cited. on the former occasion , proceeded to quote the remaining cases from East's Pleas of the Crown, from all of which he contended, that the possession of the personal chattels followed the right to the property, and consequently that when the prosecutor (Sir T. Pioneer) delivered the check on his Bankers to the prisoner, he had not parted with his right of pos cession or control over the property ; and in furtherance of this position, he supposed the case of the consignor of goods sending 4 them by a common carrier to the consignee, in that case he con tended the consignor had a control over the property until its actual delivery into the hands of the consignee, and should the carrier convert them to any other purpose than that for which he was entrusted with, then he would he guilty of felony ; so in this case, as the prisoner had converted the check of Sir Thomas tp his own purposes, contrary to the implied contract, he was guilty equally of a felony. With respect to the vet) maim), or felonious intent in taking the property and converting it to his own use, he contended t h a t the evidence upon the trial of the prisoner's preparations for his journey was sufficient to warrant the Jury in the conclusion they had drawn, namely, that the prisoner had taken the check with a felonious intent to steal, and therefore that in the judgment of their Lordships the verdict should stand. Mr. Seariett, on behalf of the prisoner, and in reply to the argu ttente of the Learned Counsel on the part of the Crown, reverted to his former proposition, which he distinguished under three several head,: First, that the prisoner had not been guilty of a fraud in obtaining the possession of the Banker's check ; Secondly, that the property in the Bank-notes was never at any. period in the prosecutor, Sir Thomas . Plomer, and, Thirdly, if the property ever had been in Sir Thomas Pjomer, he had parted with it on a particular trust, and did not expect a specific return of such property. With respect t . •he first point, he contended, that the Banker's check being obtained previous to the pre parations for the .journey," there was no proof of any previous intent to defraud at that time. Upon the second point, he contended,the property in the Benk-notes never could at any time be in Sir Thos. Phonier, the mere delivery of, the Banker'e check to the prisoner could not constitute a felony,because that check was of no ..value until it came into the hands of a third person; had it been lost or destroyed, the prosecutor could not main: ein any action against hiss Banker for the value, nor against the prisoner, is icing still of no value until turned into cask, or converted into wine use, ny. pasting, out of the possession of the holder into the bands . of a third person for, value, whereby alone it became a chattel pre - petty iiethe lotod . e of .suds third person. Upon the.third point, lie comerided e eliateeven had the property in the Benk-notes ever been in Sir 'I honoti*. nuttier, he Lad patted will all control over that pro perry, inasmuch as he had parted with it on a particular trust, for a particular purpose, and did not expect a specific return of these identical notes, the contract between the parties being proved.to he expressly for the purpose of purchasing Exchequer Bills. With regard to the various cases cited by the Learned Counsel for the Prosecution, he did not trouble .their. Lordships with observations .upon each particular case, but thought it better to class them under their 'respective heads, and own to them generally ; and from all of which he contended, that in stead of advancing the arguments on the other side, they all supported the general principle ho had laid down. And as to the supposed case of .the consignor of goods, there he admitted the property was in the consignor mail the delivery was completed : that was the specific con tract, and could not he compete until the actual delivery. in such a case there was no variation or change of property, so as to take it out of the control of the consignor. Had the carrier, in that case, con verted the. whole of the property to his own use, in the identical state in which it was entrusted to him for delivery, he would be guilty of a misdemeanour, hut not of a felony ; or had he separated and divided the property, and delivered it to different persons, contrary to his con tract, this would completely change the character of the property, and take the control over it out of the consignor. So 'in the case of a man delivering a piece of cloth to a tailor, to makelinto a suit of clothes, and the tailor converted it into another purpose; by the delivery for a specific purpose, diverted the property into other hands , a n d he could have no further control over '1 he tailor might have a lien upon it, for the cutting out and making up ; but the original owner having once parted with it for a specific purpose, could have no longer any power over it. With regard to the case of the forgery of a will, that was a case be no means analagous to the present, than the forgery con stitute d the felony ; but, in the present case, the conversion of the pro perty constituted the f:lony ; and it was wholly inconsistent to say, that in a case where the property never had been in the prosecutor at any ewe period, that it cetdd he contended, that this was a felonious taking of TIM NATIONAL REGIS;TR. FEB. ie.- ! theprOperty of the prosecutor, with ,intent to defraud. Upon the who!e i ogifiiitthyisoteaase4taltuetNo;itile ii i i ie th c e ot i i i t i e j e i d i g , ()f th at the Statute, t!tr,iistuet:eirn obtaininghad nut been guilty possession of the check ; that the property in the Bank-notes (the taking of which was the offence charged in this indirtnient) never had been in the prosecutor ; and lastly, if it ever had, he had parted with all contr o l over such property, on a particular trust, the breach of which coma. tut ed the offence, it any, and amounted to a misdemeanour; hut tpon no construction whatever of the Statute upon which this indictment was brought, could constitutv. a felonious taking of the property of the pro secutor, with intent to teal. He submitted, that it such construction of the Statute was to be made by their Lordships, it would lead to the I: . most. incalculable mischiefs; and it constructive felony was to be ad- Imitted in this way, every breach of contract would he liable to such. construction. If such was the construction to be put upon the Statute, every man who made a contract, no matter under what circumstances • ' he broke it, would be equally liable to the charge of f. lony, which, he humbly submitted, would be a complete subversion of the mean ing of the .Statute; and, upon all these grounds, he confidently hoped. ' for the judgment of their Lordships in favour of the prisoner. The Court was then cleared, and their Lordships continued to deli berate for a short time. We understand, the usual. course in these cases is, to pronounce 'udgmeut, when tke .prisoner is brought up to receive sentence at the _.. \ ext ensuing Sessions. TRIALS FOR HIGH TREASON, AT THE SESSIONS DOUSE, lIORSEMONGER-LANE. —....... • Monday morning the Court met for the trial of the twelve men taken in the service of France, at the Isle of France. At ten o'clock Lord Chief Baron IVl'Donahl eine' Sir S. Le Blanc arrived, when Win. Cun. dell, alias Connell, one of the prisoners, was put te the bar. After the Jury were sworn, 'I he .Ae eUR N EY-.G ENER A L proceeded to address them. He oh. served, that the prisoner stood charged with high treason, in having adhered to the King's enemies . The statute by which this was treason, was on the 25th of Edward III.; hut by that Act, no person committing an act of treason out of the realm could be tried hert ; but by the statute of Henry VIII. it was provided, that prisoners in the situation of the 1 prisoner at the bar, might be tried by suck a Commission as the pre sent; that Act.also required, that the treason should be proved, by an overt act ; that was done in the pres ent case ; the . facts he should have to lay before the Jury were plain and simple ; he wou id prove them, and :there could be no doubt of the result. The prisoner was horn neat Dublin, a subject of the King, and was admitted into the King's service as a seaman on board the Laura, one of his: Mej, sty.'eesekips. J. Worth stated, that` he was a ship-mate with the prisoner when taken by the French, and--carried to the Isle of Bourban. The prisoner ' had informed him, that he was born at the Sheds of Cloetarf, near Dublin. He, with himself, 'and the rest of the crew, were put in con tinement at I'crt Louis, and in about three months afterwerds, though be did not see the prisoner liberated, he saw him at liberty, dressed in i a French eoldier's uniform, namely, white turned up with blue. The prisoner emit inued at large in this manner, doing duty as a le t tech set. titer, until the 'eland surrendered to the fhitish forces. Witnees hinnelf entered the French service as a soldier, and wore the uniform. On his cross-examination, he admitted that he was liberated at the wine, time with the prisoner.. The prison in which the crew had been confined was on the ground floor, and the crews of two ships were confines' in one room. 'they were very much annoyed with vermin. When he • deserted to the French service, he was in a state of intoxication. T. Mitchell, Captain Woulcombe, Commander of the Laurel, and Lieut. R. P. Brereton, of the Scaflower, also deposed to their seeing the prisoner many times at the Isle of France, clothed in the French tad form, in company with the rest of the French soldiers. 'the latter i h s t i a n t l e s t e l 1 f i7 w a n d e d n i t i h o e n N , vthat putt h i e n p c l r o iLo i c w o r n f l i i t a i e d m b e e n e t n , a c n e d n t h i a n d e I fr o e v q e u r e i vi ; t • iy t witness e 4 his gestures, endeavoured to makelim and the other British Officers as 1 contemptible. as passible in the eyes of -.he French Officers and soldiers. He had seen the prisoner salute the French Officers as they passed , a Ilmark of respect with which he never saw him treat tins Briti&h Officers when they also passed him. The case being closed on the part of the Crown, Mr. Brougham ad dressed the Jury in a very able speech, for the defendant.—After cepa.. dating on the many barriers which the law of treason had passed round the life and liberty of the subject, lie commented' on the evidence of Lieut. Brereton, and inferred, that as he had deposed that the prisoner was dressed in a red uniform turned up with green, while all the other witnesses described his uniform to be white faced with blue, .Lieutenant B. must he mistaken in the person] of the prisoner. This, he bald, did away the most serious part of the case. He drew a glowing picture of the miseries to which the unhappy prisoner :me his eompanlims had been exposed, confined in a dungeon sWarming. with vermin, and kept upon an allowance of provisions scarcely sufficient to sustain existence, together with a variety of other hardships too numerops fur detail.' From such wretchedness as this, it was not surprising tha t meta, not possessed of the most refined' feelings, should - attempt to escape ; and, as Ui titst step towards an end so desireable, to get without the I