The Statesman. — London, England, 1809-11-10 00:00:00

744 , Major Dodd 'nai l fur he stadt i •liifsl• cirtemsto- te." Mr. nt BEST.—'' • 4ilkiesti ' - that is) SorjeaL._ astiate s the affidavit of Culotiel.Wardie 'alone, the IRMA would not gratit a now n /riaf,' he beittg 4 o=',) but I thought the Coup, would expect • Wardle to give an account of this tramaktilisity'JL, Lord Et.t.Eisaortotien..-:" I thinlinlialt.• tee that extent, you acted prudently %' for le ba.tery ' proper be should give. au'arceinit off"ftlehe is right* stating his own conviction' ofiffe facts, but be cannot he witness to them *a new trial, Should the Court be induced to grant one." Mr. Serjeant Bern—Certainly ho cannot, my' Lord; but Colonel Wardle and Major Dodd distinctly deny what was sworn by the Plaintiff's brother and Mrs.'Clarke,*at the trial. Colonel Wardle distinctly state's in his affidavit, 44 that he did not become, nor did fie ewer intend to be. come, liable for the payment of the demand made upnn him by the Plaintiff in this cause." The evideare given was a surprizo upon him; he was not in Court, and he had no opportunity of consulting with his Ceunael at the time ; and he lays that Major Dudd, Mr. James Gtvnnie, mad K. S. ['Hepworth, were attending as wit nesses fur him, who was auxivus that they should be examined ; but, for want of a proper com munication between him and• his Counsel, he was deprived of the lgenefit et the testimony o these witnesses ; and Major Dodd confirms Col net Wardle in that affidavit, stating, that they: were &sired by Mrs. Clarke to go to the house of the Plaintiff, Wright, not knowing for what pur.: pone, at the very time when she ordered the goods; sad that every syllable sworn to by Mrs: Clarke ' ) on th*t subject, is false. That they were going to Clifford's lan, for the purpose of making an lee spiry on meters connected with the investigation into the ennduct of the Duke of York; and that Col. Warble was never introduced, directly or in directly, by Mrs. Clarke to the Plaintiff or to his. brother, as falsely shorn by Mrs. Clarke and Si. fault W rtgbt, ? and this was confirtled by Major Dodd. Mr. JnFtiee BAT LEY asked if any particular was tad, under a Judge's order, of the Plaintiff's de mand. Mr. Serjeant Bear said there was, but it was a defective one. Mr. Bills was Attorney for Mr. Wardle now, but was not then. Mr. Justice 13.s.ti.ey said, that if the particular of the demand was defectiye, the Dcfeudant's At torney might take 04 a suareous to call oti thei Plaintiff to amend it. Mr. Serjeant Built-said, that Colonel Wardle) had "so little time to prepare to meet this case, that he. heard •f the demand that was mads on bile Duly ohe day before she action was brought. Mt. EMs's affidavit stated that he had taken a gloat deal of pains to find out facts in this case, and by which, the Learned Serjeant said, the Court would agree with hen in thinking that thfi ease of the Plaintiff in this action was founded hi s conspiracy, and was supported by gross per. jury. It appeared now, the Learned .Serjetust said, that so tar was Mr. Wiight from not gle.. hog credit to Mrs. Clarke, , as she and the Plain.' tiff's brother had stated, that in July, 1808, just preceding this trial, one of .the houses which Wright, the Plaintiff in this action, tuck for bin. Clarke, was taken in the name of Fer-1 quhar ; the house was taken of a person of the name of Bull, by Wright ? the Plaintiff, for Mrs.' Clarke in the name of Farquhar, whom he re.... presented to be a virtuotts woman ; bat un find. ing her otherwise, Mr. Bull remonstrated against the impropriety of introducing such a person into * house, and got rid of Mrs. Clarke as an inmate Ilh about A month. Wright, the plaintiff, had im. posed in like manner on a gentleman of the haunt of Kirk, of whom he took a house for 'Mrs. Clarke, in the name of Farquhar, to whim he gwe an excellent character, saying that if he' hid fifty houses she should be the first to hue her Choice of them. Mrs. Clarke's Mother's [tante *as Farquhar ; there was a lease taken of thii house for Mrs. Farquhar. When she entered this house, 1081.wss Laid for fixtures, by a checque of Mr.right. The first quarter's rent was sot' paid when due; it was distraint:4l for—Mr. Weight paid it. The second was not paid when due ; was ' distrained foe —paid by Mr. Wright. Mr. Justice BAILEY observed, that basing given Mfrs. Clarice a good character, Wright might think himself partly ound to pay the landlord, it she did not. Lard EL I. EN acmou•itt observed, that although he might not be bound to pay her rent, yet he might I have been liable in dismagey. for haring given to' /rs. Clarke a chiractevoshich she did out merit. Mr. Sorjeaat Best tailed, that it appeared by the affidavit of Sir R. Phillips, that Mrs. Clarke! ems to hhn, sayiu4 she wanted 20001. wawa. tetely. so-pay Wright,. withasst hiss* -thiat-0.4H Wardle was liable to pay any of it; that she said twas to nay Wright for the fat -niture, out of sale of her buo'4, and she held the same lan.l guar to Sir Richard Phillips, when she came to Wal t at the intercession of a 'bible Lord named hi' the affidavit, for' the purpose of negociating fel thosuppression of her book. Mr. 'Giennie's affidavit gave an account of the manner in which Mrs. Clarke came to him, sad asked him to become answerable himself, or procure for her a hill foe 5001. to pay Wright, sad of his undertaking to procure a bill for three months; and she gate him her own note, saying, .abe should be able to provide for it out of the sale of her book, and bait! nothing about looking to Colonel Wardle fur it. 'net Ale. Gleunie had a conversation afterwards with the Plaintiff, who never pretended there was any debt due to him from Colonel Wardle ; that be tweet became re sponsible for the payment of any money for his furniture; that Wright, the Plaintiff, repreSented to Mr. Giennie, that he had given Credit to Mrs. Clarke for the furniture sent into her hone, in the hope of her being able to pay the debt dee to him, which another person bad promised th pay, hat who had since refused; that Mr. Glenuie hint soother conversation with Mrs. Clarke, - when she appear,d displeased at his remark, saying, 44 What is it to Culotte' Wardle whet holm and furniture I have l.'s le eggi t o pay f or iv' This ~~ ~w ,- . • THY. 'STATESN;IAN. . eritneis was attending et the trial, but he was not called. • Lord ELLENIKIR2UOII—" Why wait he not Called by you . , • .Mr. Sim jeans Barrseg" .Ha was s itabpagated on the part o' the Plaito4s', my, Lord ; but be states' I now, ht his affidavie„ that Coloptl Wardle was estretnely anxioiseabse he .alsould be easinitied, and sent him, with Major Dodd, Into Caen for that purpose." Then there was tote affidavit of Mr.. lilingworth, a wine -merchant, of Pall-Mall, who contradicted, in direct terms, the evidence of Daniel Wright, and sheaved clearly, the learned Serjeant said, that the credit was given, in this case, to Mrs. Cleats and nut to Colonel Wardle. , • Lord Eetatneeaonetu wondered that Mr. Glen. nie was not examined, since Colonel Wardle must know what he could prove. Mr. Serjeant BEST said the mistake arose frota• not knotting what this woman would swear. Lord ELLEI4IIOROUGU—." But you knew that she was to be elamitied."‘ Mr. Serjeant Besv—" Yes, my Lord, but we rdid not expect that any body would believe her." The Learned Serjeant contended, that Mr. Illing. worth's affidavit contradicted Mrs. Clarke also on the subject of the Dill of Exchange fur 5001. for that it was neguciated by him, for her, and not for Mr. Wardle; Air that nothing passed between him and Mrs. Clarke, or Wright, that gave him, Mr. Illingworth, to undetstand, that Col.'Wer dla was indebted, or responsible to Wright in any part of this transaction. Another affidavit - which he had, was that of a Mr. Bennet, acabinet-maker l in Tottenham-court road, which stated, that he was acquainted with Wright, the Plaintiff in this cause, and with his brother Daniel Wright ; that a short time after the trial of this cause, he, Mr. Bennet, had a conver sation with Daniel Wright, who said they, that is, he and his brother, " had sent several articles of furniture, particularly lot the servants' room, to the house of Mrs. Clarke, ,while under the praise,- tion of the Duke of York, and charged them to his Royal Highness ; hod others they set duvets to the cl:arge of Gwyllim Lloyd Wardle, Esq. as be t Daniel Wright, and his brother, the Plaintiff, knew who would be the better paymaster of the two." Here Lord ELLENBOROUGII read the eel. deuce of Mrs. Clarke at the trial, on the subject of the bill of exchange given by Mr. Illingworth, and the manner in which it had been made appil. eagle to Colonel Wardle; from which his Lordship did not think the present contradiction of that part of the testimony very material ; hut, however, IC was not necessary to give a deciiLd opinion at present upon that point. The next affidavit 'was that of Mr. Becket, as Attorney, which gave an account of an action he had coetreenced against Mrs. Clarke, at the suit of a Mr. Allen, for clothes, on which Mrs. Clarke was arrested, and Mr. Francis Wright be came hail for her ; and it appeared that he had , bailed her in about 30 actions : this had been discovered by Mr. Ellis, Mr. Wardle's attorney. Mr. Justice BAILEY.—" He knew her: to 'be much lu debt, and he might think that bailie( her was the best chance he had of gcttiug his own debt paid, Brother Best." Mr. Serjeant Bes.r.—" Unquestionably he gave her great credit, and he did trust her with these goods with which he afterwards charged Colonel Wardle." The Learned Serjealit then expatiated on the whole of the case—on the atrochy of charging Colonel IVardle with the debts of Mrs. Clarke in this manner—of its being a recipe for inch a genius as Mrs. Clarke to get rid of the Statue of Frauds, which provides that one person shall not be bound to pay the debt of another, un. less the undertaking to do so be in writing,' &c. and of the barefaced audacity of charging, as Wright did, Colonel Wardle with the repairs and' the insurance of Mrs. Clarke's house, which the Jury didandeed strike out of the Bill, but still the damages were serious, being 10001. ; besides, the case waS of incalculable importance in other re. pests, and he trusted that he had laid a claim' upon the justice of the Court to grant a new trial in this cause. Lord Etaatmaortoveu, after a short conference ' with the other Judges, said—" I am very much afraid of violating thu rules by which the Court usually, indeed universally, governs a itself.. In cases of this sort, where the party has had' fall opportunity of proving at the trial, his eat, wherein he had. witnesses to pi ove what, upon motion for a new laid, be offers to prove before as, mid did not fail'fur want of that opportunity, hot might have taken it and did not, the rule is, .generally speaking, not to grant a new trial in such u ease. Hero the Defendant had no difficulty about producing his witnesses, they were actually present, ready to bo examined, et least two of -teem; and elsor•foro l .1 Awl great -difShelty granting this motion, thus applied for en behalf 'of the Defendant ; at the same time, • Mrs. Clarke is, now, mixt more, from the beginning to the end, with Wright the Plaintiff, than she appeared to be at the time of the trial. His ra t presentations respecting her, arc, in souse respect", important; and therls seem to be some .matters new disclosed, e hick present them both under other eircutustaticee, than those under which they were presented to the Jury at th.: time of trial. 1 think, therefore, it may be as %tell to grant a Rule to shew Cause, and hear this matter inure at large hereafter." Mr. Justice Gnose—" I am of the same opi nian—certainly." The rest of the Court concurring, the Rule to show Cause was granted. DOE (ON DCllllBg op a LIAIIAM) SCOTT.. Mr. Sirrjeant WILLIAMS applied fur a rule to skew cable why a nonsuit should not be entered in this case? The Defendant, the Rev. Mr. J.. Scott, had been inductdd into the Living of Brampton Brian, Herefordshire, in Febreary and March, 11101, on • presentation by the Earl of Oxford and in the year 1806, be was collated by the ;Shop to the augmented Curacy of Titley, same county. The sedum was brought on the ground, that by the Defendant's acceptance of the Curacy of Titley, augmented as it had been by Q.l.:ett Anue's bounty, the Living of Brampton Brian, which he had formerly bold, had become voidable ; and being so, that Mr. Graham had been ',restated to it on the joint and separate pre. scutations of the Earl of Oxford, and of T.Woud, Richard Wood ) and 11. Smith, the younger. To prove his cue, two things were necessary on the part of he Plaintiff...-lst, To chew that the Curacy of Tilley had been augmented by Queen Anne's bounty ; and 2d, That the Earl of Ox. ford ) and the other persons who bad granted the presentation to Mr. Graham, were seised of the legal estate at the time of granting the presenta tion. On the first point, after other grounds of objection bad been removed, the Learned Serjeant, as Counsel for the Defendalt,argued, that the evi dence of this being a Curacy augmented under Queen Annes bounty was not sufficient, inasmuch ss it was provided at common law that the pro. petty should be vested in land ; an►l by the Act of Ist George I. section 20, that the Deed containing such lauded estate should be inrollcd in the High Court of Chancery within six months after the purchase. In support of this argument, the Learned Serjeant adduced a decision by Lord Camden. . Lord ELLENsonouots asked, was not the aug. emulation effectual from the date of the order ? Mr. Scrjeant IVILLIAMS again referred to the Act of Parliament. The second point was, were the persons who granted the prestintation vested in the legal estate? He referred to two terms of 1000 years, rhich had been granted in 1709 and and 1727, which, he submitted, must, under a ' deud in the year 1757, be presumed to have been surrendered ; and in the year 1802, the present Earl of Oxford had granted a trust deed in favour of Mr. Wm. Scott. Lord ELLSNIOROUGII observed, the Earl might have an interest in keeping the old term afloat. Mr. Serjeant ‘ViLLIAtes said, this was a new case. lie had never seen an ejectment of the kind. The Learned Judge (Baron Thompson) who had tried the cue, had afterwards spoken to him concerning it, and had recommended to him to move the Court on both points. Lord ErAtttoottouun said, that the Court did not hesitate on either point ; but in deference to the doubt said to be entertained by the Learned Judge who tried the case, they should common'. cate with him on the subject, and if ho did seriously entertain the doubt mentioned by the Learned Counsel, he should have his rule. COURT OF COMMON PLEAS. ---- • IN THE CASE OP KARL LEICESTER V. WALTER' AND OTHERS, rttorairroas OF THE HORNING HE RALD. , Mr. Serjeant MA KLEY, on the part of the De fendants, moved for a Role to shew cause why the verdict iu this case should not be act aside, and a new trial granted. The Learned Serjeant obsed. ,ed, that the 'edict against his ei ts was for one thousand pounds—a verdict, wht an li, he believed, under all the circumstances of the •Que, and the evidence 'adduced,. was totally without precedent. blever was so strong* case of justification adduced any Defendant ; nor could he conceive how it was possible fur a Jury of rational men upon their oaths to fiod such a verdict for the Noble Plaiu. tiff ; for althutigh thee might consider themselves bound to find a vctdtct against his Client, one shilling w ;is the ntmost that could have been ex. pected at timir hands. From the evidence cf his Lordship's own Solicitor, and the testimony given by several persons nLo well knew the Noble Lord, it was impossible his character could have been injured by the paragraph on which the action was founded ; for the Solicitor acknowledged, upon repeated interrogation, that it was the ge. neral repurt of his Lordship's character which in. duced him to believe the paragraph in question at. luded to Lord Leicester. Sir JAMES MANSFIELD admitted the force of the arguments urged by the Learned Serjeant, and said, that from what he recollected of tee circuit,. Winces of the trial, no inconsiderable degree of surprise had been excited in the Court, at the high qeantuiii of damages awarded by the Jury. In his own opinion, it was scarcely possible any ease coul , l have been more palpauly rebutted; and if he might venture to suggest a line of conduct for the Noble Lord and his friends, he should think. the wiser course for them to take would be to avoid, if possible, ally further exposure of this [ case in a public Court, and to remit the damages ; •for he should regret the necessity imposed on him, list ease of a new trial, of recapitulating the evi -1 dence in the case. Mr. Serjeant MANLET urged a further ground for his motion, of which he was not aware at the time of trill, or he shOuld have then taken notice r of lt; namely, that one of the Jury was sworn by a wising n ame. Ile meant no imputation on either igiltiry wan, her 13111eir off lbi Ctiu rt ; the fact of itself was Sufficient ground for a new trial. Mr. Justice Ltwulact observed, that his Learned Brother was mistaken. Indeed, such objections were sometimes allowed hi criminal buses, but in none other. Mr. Serjeaut Bar said, if there was a new trial s he should entertairt no doubt of obtaining for his 'Noble Client a verdict for 20,0001. Sir JADISSMANPFIELD said he recollected the evidence fur the Plaintiff, and especially that of Mr. Mills, his Attorney, who had fenced a good deal; but ,at last admitted, that the prevalent re. ports of his Lordship's character induced him to' believe the pdragraph alluded to his Lordship. Under such, circumstances, he could not see what damages the character of. the Noble Lord could sustain. Ile should be extremely glad, however, to 'hear no more of the lnatter ; but lest his advice should.be rejected, he should grant the rule. Letters have been receivock Isom Sweden to the 3d inst, A report prevailed at Gotteuhurgh, on the authority of communications from Stock ham, that the four principal powers of the Mi lk,. Russia, Sweden, Denntaik and Prus.si.i, mold conic to a determination to close that sew•sgaittbt ithishipping or eitry other nation, with the ex ception of the Ffench. THE TYROL SSE. pghe following particulars of Laes.avan's Ex. ion against the Tyrol, in August last, have been transmitted to us by a Correspondent, to whom they were communicated byaSasou Major, who escaped from the destruction of those terrible days.] " We had penetrated to Insprvck without great resistance; and although much was every where talked of the Tyrolese stationed upon and round the Brenner, we gave little credit to it, thinking the rebels to have been dispersed by a short can. nonade, and already considering osirs , ,lres as con querors. • Our entrance into the passz:s of ti le Brenner was only opposed by small corps, whi t , ' confined falling back, after an obstinate, though short resistance. Among where, I perceived a man, full 80 years old, posted against (beside of a rock, and sending death amongst our ranks with every shot. Upon the Bavarians descendiug from behind to make him prisoner, ho shunted aloud, hurrah I struck the first man to the ground with l a ball, seized hold of the second, and with th e ejaculation, in God's name ! precipitated himself rwith.him into the abyss'below. ft Mucking onwards, wo heard resound treat the summit of a high rock : Steepen ! shall I chop it off yet t to which a loud nay! reverbe rated from the oplksite side. This was told t• the Duke ef • Dantzie, who, notwithstanding, or. !tiered us to advance; at the same time be prudently withdrew from the centre to the reer. The van, twisting of 4000 Bavarians, had just stormed a deep ravine, when we again heard halloo'd over L OUT head : Hans! for the most Holy Trinity ! Our terror was completed by the reply tnat immediately followed : In the name of Me Iloly Trinity!---Gst all loose above - 1. and, 'crc a lei_ flute had 'lapsed, were thoustods of my comrades Its arms crushed, buried, and overwhelmed, by an incredible heap of broken rocks, stones, and trees, hurled down upon us. All of us were petrified. Every one fled that could ; but a shower of balls from the. Tyrokse, s ho now rushed from the surrounding tnousitain., in ie.,- mom nunibers, - and among them boys and gi,ls of 10 and I'2 years of age, killed or weutitlmi a great • many of us. It was nut till we Had got these fatal mountains six leagues behind us, that we were re assembled by the Duke, and formed into sift eo. lumus. Soon after the Tyrolese appdaretl, headed by llofer r the inn-keeper. After a short add r e ss from him, they gave a general tiro, Hung their rifles aside, and rusliod upon our bavaileis %%Mt only their clenched fists. Nothing could withstand their impetuos.ty.. They darted at our feet, threw or pulled us down, strati4lcd us, wreucned the arms from our bands, awl, like ens aged killed all—!'reach, Bitvari:itis, and Salons, .hat did nut cry for quarter ! By doing so, I, with 400 men, was spared, and set at liberty. " When all lay deal around, and the victory was completed, the Tyrolese, as it .roved by one impolse, Ml upoiretheir knees, and poured forth the emotious,of their! hearts in prtyer, under the canopy of /Leaven; a scene so awfully solemn, that it srill'ever be present to my reniembrance. I joined in the devotion, earnestt in my fife did I pray more fervently." To the EDITOR of TUB S7'4TESIIA.V. - -.... 1 1.1Mi..- Sin—l s aw with some surprise, in your Papor for Monday last, an advertisement, signed by Mr. Yeake, 'lreisurer to the Proprietors of the late Theatre in Drury-lane. In this undress Pealce is pleased to inform us, " T;ia t the Kim for erecting, by subs'•riiition, a num Theittre its the metropolis, onquestiunahly origitomi4l Itt.l eeeds on a suppisition thsr therc exist incur. mousitablelmpedonents to the routtililiug of Drury. Lane Thatre." -- - That such a supposition did not iodine me, as an individnal, to become a stibverib-r, I most ,sitteeicly protest, and feel perfectly assured 'that all connected with the utidertskimig were actuated by very different motives. From every circuiu. stance which has transpired dimming the prosecu. tion of the design, it appears that two eery ea t;onal causes led In the eagerness with -*filch thu Public embraced the scheme. In time first place, the incr.... , emi size and iwilitlation 11 . t tnetropo. lii enforce the propriety Of addiimg to the ou.eb t r of re nisi. Theatres, since dramatic entertainments are allowed to be conducive to a refinement of ns. tional Immo ers. And, in the second, it appears a 'nest desirable object, considering time import ance of stage-representation!, to construct 3 The. atre, the management of which 1:4111,ba Wiled in the hands of such a Committee us is likely to pro. test the morals and encourage the geitins oT the age. If this latter must difficult okra bee any shape attainable, it must be so in the'resent in. stance, Maisie, .accer‘liast So -the peslaosals- seder which suliscriptimms were solieStia fug the purpose of petitioning Parliament titer i ttl Theatre in the metropolis, tlir&fo: i m irit • td bearded hy the body of Proprietuit; tbAdldthete situations only fur a limited period; • ) 1., In a scheme like the preheat, while sucksta. tives stimulate the ardor's of . the Proprietor', I eanuot perceive any thinc i buNertug vu " edit. conception." The charge de IN i ttitenitontil dela. slim" appears singular, wheih' ilkia , attnaaent that the Committee have undeviatingly rectonititoulatt the constructing of a new Theatre, unti s ertlthez. preial cotivictiost_of a third being necessary ep tko wishes of the !petrol/Ohs. One particular of Mr. Peake's address Wendy 'gratifying :—" Proper measures," au are in. formed, for relnideliog Old Drurv, on n per. In t ernal plan, It ace been perseverivly pat-sued, ever since its 'inf . ()) Innate destruction by fire ; that those measurer are nearly completed, avid the fwd') rebuilding of the 7'heatre certaia."— reque.st those who, like /myself, feel an tame. diate intarest heft* cone. env of Drury-Line Th:. atm, to bear in mind !be t•tretootstaiteu of Mr. Peaky having njictallyittinotinced that Me speedy rebuilding of that Mt** is certain. I am, Sit, Yonr heinhie Servant, A R ENTER OF OLD MILK And a Sob.cribur to the Project far erecting a third Theatre.