The Sun. — London, England, 1801-11-24 00:00:00

r ri% ea, we" i 311117.7 Me s' engersi to se:! ns, vial LAW ALTUNI. COURT OF KING'S BENCH, Nov. sl •SMUGGLERS. AT the Sitting of the Court, the Keeper of New. Pte.brought in twelve or thirteen Prisoners, who been committed to, his care, and ordered to be brought up this day to receive the Judgment of the Court, for obstrutting Officers of the Revenue, &c. The case of each of them had been discussed at 'the time he was formerly called in, and the Court °ad remanded them all for the purpose of consider !ng what Judgment ought to be pronounced upon t hem ; previous to the passing of which; their names were called over, and then • Mr, Justice GROSE addressed them in an appro. Triat e Speech, of which we have, at present, room °flly for the substance. He said, they, and each .91 the m , were, and was to receive the sentence of that Court, for the several offences committed by t hem against those Laws which had been declared necessary by the Legislature for the protection of the Revenue, and for the benefit of the industrious Part of the Community. He'said, he was grieved to observe; that the greater number of those who "'ere now before him to receive Judgment, had no better mode of livelihood than that of an uniform Iktlation of the Law of the Land : in some instances tt was owing to accident alone that the life of the 1 4ficer, who was appointed to protect the Revenue, 4 1d who was himself entitled to the proteetion of the law; was not lost. One observation the Learned ~,judge said, was fit for him to make, and for the Defendants to bear in constant remembrance. He Meant, that if, in .the course of their illicit prac tices; Murder had been committed by any one of these Defendants, the life of every one of the others,. who were present, aiding and assisting, would have °ten forfeited to the law. Thomas Micklefield and Thomas Miller, two of those who now stood be fore the Court, the I l earned Judge said, should re- Lt , ett, that they were indebted to mere chance, and t he good constitution of the Officer, whom they had unmercifully beat, and not . to their own humanity, that they were not called upon to atone for what :they did by the loSs of their lives. The Court had therefore looked upon their cases as the most aggro 't'ated of all those who were before it. The Court ,had.eonsidered of their several cases, and the ap ,POrtionment of. theiy.respeetive punishments, and `inthat apportionment hadmade allowances for 411 could be urged. in mitigation. —Some, there were whose offencei were greatly agr gravatecl, not only from the circumstances •by 11 'hith their crimes became enormous, and from : 4 'hich society was ,in danger, but by the attempts they had Made to mislead the Juries who tried Ihem, by the evidence, of perjured Witnesses : this 4 stcrime was a great aggravation of the one -was attended to conceal, and could never fail to draw on 'tht perpetrator of it the severesentente oftheLaw; Wilful and corrupt Perjury in the defence Drevelibtl a . the Court from attending to circumstutes of mid. tation, which might otherwise have had some affect. These observations were particularly ap_ likable to tirl - aes of Micklefield arid Mil had acted with the utmost cruelty to. `tvards. the Officer of the Revenue. With regard to the charatter which persons of the descrip. •tion of the Defendants had received, little, he feared, could be said in favour of that, for little tould fairly he said in favour of those who earned th'eir livelihood, and who were in the constant 'abit of subsisting by pradices tfiat were an open v i jolation of the Law ; this observation applied to t_sitm all, but more forcibly to those of them who children ; it was a. great aggravation of . their k ) ifence, for they set a wicked example to those '•'hom it was their duty .to bring up in the paths of l )6 11qt industry. It was impossible not to shudder at the probable effect of setting such examples - to thos e; who for want of experience, might be led ‘vay to vice by the constant exhibition of it before . them ; by those from whom they naturally would t;lke example: The Court having considered the t sircutnstances of all the cases of the Defendants, (1. 4c1 order and adjudge, That Thomas Micklefield 1.°(1 Thomas Miller be imprisoned in the Common for the County of Essex, for Three years, at the expiration of that term, they enter into 7recognizance of tool. for their good behaviour for e years.—That Richard Purchase be imprisoned Newgate for Two years.—That John Robinson I A William Hart be confined in the Common Jail the County of Kent for two years. That :.jeliard Hook be imprisoned in Horsham Jail for years.—That Thomas Holmes be imprisoned i r s 'lxeter Jail for Two years.—That John Holden rimprisoned in Horsham Jail for Eighteen calen. months.—That John Ward be imprisoned in 'Maidstone Tail for TWelve calendar months.—That ' 4 .°Eeph Totherfield and Job Stokes he imprisoned in fiorchester Jail for Twelve calendar months.— th at Thomas Hughes and James Hughes be im .P]isoned in• Newgate Three months. There was ne other person, whose name we could not hear, 'rdered to be imprisoned for Nine months. The Court then, after hearing some Motions, Proceeded to dispose of those which were made for new trials. HAYCROFT CREASY. This is a case which has very deserved!) , at !ratled the notice of the Public, and' is extremely I t t .ttere st i ng to every man in this Country, who • I , lt her shall have occasion to ask of another, or j o " tive another a character ; it becomes still more an t testing on account of the turn it has now taken,. &`` therefore, as it may be said to be a case of the i t 6t impression in its kind, we have bestowed upon more labour than is usual in common cases, as wig our Readers, they will not be misled by .'at they see in this Paper, but that they may ‘ lv e it full credit for accuracy, as far as it goes. 1,,, e have no room for the observations of Counsel, i t We shall give the substance of what is more ' 4 l 3 ortant because of higher authority. Ord KENYON reported the trial as it took place 4 '°re him and a Jury of Merchants at Guildhall, the Sittings after the last Term. His Lordship that the declaration stated in - substance, that fi le Plaintiff being an Ironmonger, before the t:„Ndulent representations made by the Defendant, &NI c9ncegning nrle i'tatlecz Elizabeth Robertson, cuts apply LO W 3 llu 11U11S 111111 N ttC. titer he, the Plaintiff, was safe in giving credit to the said Miss Rlertsoti. That .when application • was so Made to the Defendant; he represented her situation and credit to be such, that he, the Plain tiff, might safely trust her. That the Plaintiff did trust the said Miss Robertson, on account of the charaEter which the Defendant gave of her. That she was insolvent at that time, and that the Plain tiff thereby lost his money. The evidence for the Plaintiff was that of his son and of his brother ; for the Plaintiff had no share in this transaaion himself, he being at Bath for the benefit of his health. The case is, that of Miss Robertson of Blackheath, whose name is familiar to a considerable part of the Public. The Plaintiff is a furnishing Ironmonger. The De fendant a Currier, both living in the neighbour hood of Blackheath. The substance of the evi dence of the son of the Plaintiff was this—" That he, the son, had a conversation with the Defendant, of and concerning Miss Robertson, when the De fendant said, " My father might credit her with perfett safety. That he knew, of his own know ledge, she had a large fortune from her mother, and was in expelation of still greater from her grandmother. 1 dealt with her entirely on the Defendant's recommendation. .1 asked him, if he was certain as to the recommendation he made? he answered, " I am." He stated that he knew the Lady was related to Mr. Secretary Dundas and to Lady Paget. I wrote to my father, and wanted his direaion. I called on the Defendant again, and asked him as to the.charader of Miss Robert son. ' The Defendant said, " I can positively, of my own knOwledge, assure you, you may credit Miss Robertson to any amount with perfect safety." He said, my father need be under no apprehension, for Miss Robertson had come to a large fortune a few months ago, and expetted a still greater. I executed the order entirely on the faith of the De fendant's charaeter; and to the amount of 4851. 9s. 4d., and all the charges are reasonable." . The substance of the evidence of the Plaintiff's brother, as read from his Lordship's notes, was this : " I suppose (said the Plaintiff's brother to the .Defendant, who called on • the Defendant by way of -further caution), I suppose you do not mean. to' inform me on hearsay ?" The Defendant said, " Friend Haycroft, I know your brother may trust Miss Robertson to any amount with per feet safety." This is the substance of the Case on the part of the Plaintiff. On the part of the DO: 7. 1 -iant it was contended then, and now, tha: the Defenclant did not give view of fraud-, this chiraClLe .any totem - 1:11Z. truth, as he supposed at the time, but that it appear afterwards, that he, as well as many other persons, became a dupe to the artifice 'of Miss Robertson, who had all the appearance of a person Of great , property. That no Case had yet gone the length of deciding that any man should be liable for the consequences in giving a charader of another, - unless he did it fraudulently, &c. That here there was no fraud intended by the Defendant, for that he himself had become, and was at the time when he gave her the character, a dupe to her arti fice.—That the essence of this sort of Adion was fraud in the person who gave the charatsler, a 4oftrine which was expressly laid down in- the Case ' of Paseley V. Freeman, which laid the foundation of this Action, and recognized in the Case of Eyre w. Dunford, &c. That the Defendant having here taken upon himself to say; " he knew this person might -be safely trustedi" was in common parlance between men, who do not consider the meaning of words like Lawyers, not to mean absolute know ledge,- but that degree of probability which is taken for certainty in the common affairs of life. That in this Case, the Defendant hal something.more than hearsay to guide his opinion, namely, the plans of the supposed _estate of this Lady. Hesr making out Powers of Attoruies to receive her rents—ordering mourning rings--Lhaving a carriage, servants, and all the appearance of a person of property—all taken together inducing the Defendant to believe that she was a woman of property, and therefore his saying so was the common language of men of inferior edu cation, who ctimmo - nly, in discourse, said they knew that which they indeed had only evidence to warrant belief. That this was the case of the De fendant in this Action,. and that, as the Jury might , have given their verdid on the supposition that the Defendant knew, at the time he gave it, the Cha ratter he gave was false, whereas it was the genuine representation of his mind, there ought, in this case, to be a new Trial, On the part of the Plaintiff it was contended, that although this case was different in its particulars, from - those which had gone , before it, yet, the principle by which it was to be governed was the same, namely, That when any - application is made to a man for the Character of another;` he shall either tell the truth or hold his tongue. Nor was there any hardship in this, since no man was bound to give another a character. Here the Defendant had said, he knew that the Plaintiff might trust this woman to any amount. He did not speak from hear-say, which might be matter of belief; but of knowledge, which was matter of certainty. Upon the faith of which the Plaintiff had 'given credit, and had sustained a loss;• the Jury had ordered the Defendant, whose conduct was the cause of that loss, to bear it, and therefore, upon the principle which guided this Action, the verdict was. right." We do not mean to say, that this was all that was said on the contrary, the Case was argued at great length, and with much learning, but we have en. deavoured to bring into one view, the substance of that which was in contest between the Parties. As allusion was made to the Charge of my Lord, KENYON at the trial, his Lordship read the words which constituted a material part of it, which he wrote out in his Book before he addressed the Jury, and scored them under by way of emphasis.—They are as follows : " Considering the manner in which the question was put to him [meaning the Defendant] and his an, swer, speaking to his knowledge, I thought the Action maintainable." The Arguthents at the Bar being ended, the Court proceeded to give its opinion. - spice nearly as follows " I wish, if there , be any real doubt upon this poiht; it could-be pelt in a way to receive deciSion in the dernier resort ; but not knowing how that can be done in the preSent case, and my mind being Made tip upon it; I shall proceed to deliver my . " A Tradesman, here, has sustained a loss, as the Jury have said, to the amount Of 4851.95. 4.4. : That Tradesman makes a charge upon that person, through whose misrepresentation that loss has proceeded; and he has incurred that loss, and calls upon him to make satisfaction for it. FroM the anxious manner in which the inquiry has been made, such as never took place in any inquiry before, I believe, we have the case most clearly before us upon the evidence. The son, who has the conduct of his father's business in his absence, is applied to by a person he does not know, to furnish goods to a large amount, and he is re ferred-to the Defendant. He goes to the Defen dant, and asks him, What is the state, condition and credit of this person who wants the goods The Defendant says, " You may trust her with perfed safety to any amount." The young man asks if he knew this, of his own knowledge, or whether he had heard it from others ? He tells him, « of his own knowledge." The inquiries thus made, by this young man, are repeated by his uncle, who being more mature in age, is supposed to be more prudent in conduft, and possessed of more knowledge of business. He asks the Defen dant, Whether this person night safely be trusted ? " I suppose, (says he) you to not give me infor mation from hearsay, .but knosvlssoge of fads." He says, " Friend Haycroft, I know your brother may trust Miss Robertson with perfed safety." Now the question is, Whether this representa tion, which the Defendant made, was ti ue or false ? To that question, so put, only one answer can be given ; and it is quite immaterial in what words the description of that answer is given.— Whether it be called " common parlance," or un common parlance, is not worth while to inquire, and appears to the to be no better than nonsense. The question is, whether this answer of the De fendant, and on which the Plaintiff's son ailed, was conformable to the fad or not ? That it was a gross falsehood, there is now no doubt upon earth. That a loss has been sustained in consequence, is equal ly clear, and the question is, who ought to bear that loss ? I came Into this Court, in the year 1788, and :ono .vsag I I ••• • it was in the Ta---- •' y - C as e, o f p-se jcuatlingeesb:re o fo nw ts h l ic . h (1 assistance the tn r hes eg . a .. t a a li n d c e f o f f ee t hree with great resivsatt, and feel with gratitude. Two c: them (Mr. justice .A.::::niußsT, anal lint ' • ER) were, from their peculiar study, eminently skill ed in points of practice and the nature of Ations. They were of opinion the Action would lie. The other learned Judge (Mr. Justice GROSE) ,of whose opinion I cannot speak higher than I feel, was of a different opinion. I was• not informed very criti cally of the nature of Actions ; but I had then ad vanced f:::ty years in a life, which was not a very idleone, in which I had endeavoured to store my mind somewhat, with knowledge of civil, moral, and religious duties. It is to very little purpose that I have so early learnt a lesson which was long ago inculcated, that the law of the land is never so well exercised as when it is subservient to the cause of morality, or social order and religious duty, if this species of Action is not maintainable in a Court. of Justice ; for I think we could not preserve social order, or good morals, nor per form our religious duties, if we determine that, when a person, by any misrepresentation, whether .wilfully, or from too scanty an inquiry him self, produces an effea which is injurious to another, he is, nevertheless, not to make to that sufferer, from his fault, any compensation. That the Plaintiff, in this case, has been damnified by the conduit of the Defendant, is beyond all question.— I suppose, if I were to put it as a qiiestion.•to the 'ATTORNEY GENERAL, who is of counsel fbr the Defendant in this Cause, Whether he was not very sorry that his Client's representation has rdined an honest man and his family, by causing almot. all his goods to be taken from him, I should receive from that Honourable and Learned Gentleman that which would be dilated by honourable feelings, an unfeigned assurance that he was very sorry. Those who can distinguish this case from other cases which have gone before it, and in which the Actions have been held to be maintainable, are fur nished with powers of intelled of which, God knows, lam not master. TIIC ATTORNEY-GENE RAL, at the close of his argument, has hinted that this case would be an incroachment on the Statute of Frauds, but he did not critically enter into that part of the case. I say this case has nothing to do with the Statute of Frauds ; if it has, I have for upwards of twelve years been deceiving the Coun try—l have been deceiving the Country if this spe cies of AEtion is not maintainable by the rules of Law. Ever since Hilary Term in .the year 1789, it was held by the authority of this Court, not de graded, I hope, by my concurrence, . that this Ac tion is maintainable, with the dissent at first, but afterwards the acquiescence of the Learned Judge upon my left hand (Mr. Justice GRosE). I have, uniformly, held that doarine since, and have had occasion to state it to juries several times— Where am I to go, or where shall I hide my head, if -this do6trine be not agreeable to the law of the land ? Perhaps in my case, as in many others, infir mity of judgment as well as body, accompanies the advance of years. If so, I should retire—otherwise, what shall I be able to say to the people of this country, if for twelve years I have misled them in the law of the land ? but I hope I have not mistaken the law.—lt is not a fit thing for Judges to use harsh words upon parties who come before them. I used no harsh epi thets upon the case of the Defendant in this affion. The ground I went upon was that which was stated by Mr. GIB Bs, which was, that the case rested upon this, " That the Defendant affirmed that to be true; of his own knowledge true ; which ,was not true. — Did he affirm it to be true ? He did. Did he know it to be true ? He could not, fot it was false. I will not here discuss the moral turpitude of such condu& as this of the Defendant, nor is it necessary that any such should appear, before the Plaintiff shall have a right of Altion in such a Case as this. There are a number of Cases in which there is a fraud in construction of Law, where there is no moral guilt. Many such there arc under the `oza vitt of Elizabeth; which Iwill not now delineate: Many cases there arc in Which a than, With the faireSt moral conduft, Is nevertheless considered as guilty- of a legal fraud, where he fails in the perforni atice of a (hay that is Undonneded with Morals, but which the Law exaas from tis condition. So liere withdut saying any thing of the intention of the party which decides the morality of the thing, lie has -volun tarily done that Which is detrithental to another, and therefore, I say he is answerable. Not for saying what he believed to be true, but for saying he knew that to be true, which he could not know to be true; but Which the Defendant's Counsel contend he had reason to believe to be true; becatise he had evidence of it from a thousand quarters, and almost all points of the compass, and then they ask; is he to have no compassion held towards him ? Surely; Surely, he is entitled to compassion, if he Was posed upon ; but his condu& has at all events been injurious to the Plaintiff, who by the way is treated, in some part of the argument, as if he had done something that was wrong. Why, one can hardly know where one is on such an occasion. " It is very true, as has been stated, there are debts of imperfed obligation ; as if I sec a man, to whoth I owe friendship, going to the altar with a woman who has lost her virtue, and is given up to vice, I ought to dissuade him from entering into such con. nation ; but that is an' imperfect obligation, for I am not bound to pull him by the sleeve, and insist . upon it that he ought to shun the danger of his de strudion. Or, if I see a friend about to give large credit to a man who is just going to be declared a bankrupt, I am bound, in good morality to inform him ot . it, but I am not bound by law ; and therefore the obligation, since the law will not inforce it, is an imperfed obligation.—But here is every specie's of obligation on this Defendant, perfea and imperfect. I say he is answerat-le - in a Court of Justice. God forbid I should speak profanely, but as far as,Di. vine law has been divulged to man, I think he is answerable by the Law of Heaven. Ia faro civil.; he .is answerable, and I think he is answerable in _Toro Cceii. He has transgressed the duty of man to man, I think therefore, that, by the ruleS of morality and social order, by the solemn duties or religion, and by the law of the land, this Defendant is liable to the Plaintiff for :he injury he has done him. I say this Adion, upon the principle that one man is civilly responsible for the injury which he.does to another, is maintain?.?;;. ,Th' is i s opinion, and, unti! I am c0rr,..,-1_ thority,l qh"" Dy superior au- „i continue to state it as my opinion occasion may require. I think am doing no violence to any good principle by this dOdrine, for I think that all social, moral, and religious feeling, go that way: This is the do.:: - trine which has .bcen uniformly held under the authority of this Court for the last thirteen years nearly, and by which I think we ought to abide.” • Mr. justije Gi,usE spoke very nearly as fol lows :—" I am not clear that I understand what the true question here is. I do not understand the question to be, Whether or not this a6tion will lie. If that had been the question, we should not have had a motion for a new trial, but a motion in ar rest of jtidgment. As to the case of Pasely Free man, I am bound by the decision of that case ; I heard it, I have read it since with great attention. I cannot say I understand the case perfealy, but still I am bound by it, for a majority of this Court, to whoni I pay, as 1 feel I ought to pay, perfea and entire submission, as the authority of those whose opinions were better than my own, have so decided: By that law I am bound, and shall continue to be bound, until there be a decision to the contrary, by .which decision s should it ever happen, I shall also hold myself . equally bound when it takes place. But here the question, as •I take it, is not whether he Anion will lie ?, but, whether the Evidence g! :yen in this case, proves that which is necessary to sustain the .Anion ? I will not now consider whether the Aaion will lie in this case, because upon that point I conceive myself bound by the case of Pasely v Freeman, which upon that subject I consider now' to be the Law of the Land. The : question first with me is, "What was the ground on which the Ataion of Paseley v. Freeman was held to be maintainable ?" When I heard that case .argued at the Bar, and the opinion of my Lord and my Brothers then upon the Bench, I did under". .stand (my understanding may be defective, but I certainly did understand), that the right of Anion ,was founded on fraud—it was expressly so said, in so many words,--and not only so, but all the other cases upon which the opinion of the Cc-srt went. in giving Judgment in Paseley and Freeman, are cases , in - which either Fraud or Deceit appear ; for that is also a word that is used,--so that Fraud is the very foundation of the Altion—sO did I understand from the Learned Judges - who differed from myself in • the case'of Paseley Freeman. I therefore then consi dered, and have ever.since considered, that as Fraud Was the foundation of the Aaion, without Fraud • this Anion would not lie: This makes it necessary for me to consider, whether there is such a Fraud proved by the evidence in this case, as will support this At ion ? Now, in looking out for Fraud in the condua of the Defendant in this case, I protest I do not see where I can find it ; for I consider him as asserting.nothing more • than a mere opinion. I obserVe the words are, " You may trust Miss Ro bertson, to any amount, with perfeftsafety."—But what Was the meaning of that ?—He meant to give his opinion, such as it was (a Weak One, perhaps), of the circumstances of a woman in the neighbour_ hood. I cannot treat what has been said , at the 'Bar upon this point as folly and nonsense. They say, it was nothing more than his -opinion that he gave to the Plaintiff—his mere opinion of the ere, dit of another. When he'says " I know you may trust her," let me consider what the question is which is put, and what the knowledge is that is to be predicated. I think that he uttered, and that he meant to utter, nothing. more than what he really and truly believedlr was a question of what credit was due to another. Credit is matter of opinion in its nature. When I say " I know a person to be a person of credit," I mean to say,. "I believe he is," for I have no doubt of it, from the intercourse and manner and habits Of the man ; I verily believe him to be a persOn of credit, .and I . say, without weighing my words, I know him to be 'a man of credit, I hope this ) estuoti ev ente ha viill the sb he shi e s hip` , His M any in INGTO ►?cntser' :11 Sep. the E4' ey ss e nge rt ni Pr o ; pf'y ing,. esslq o 4 ,w bell arnc isengeri° assagc• vicc R.aftel' Block, Lice' t° 'st Tyg t han, Ardel'" [essrs Geo' and .b Lie 4 Is, MI Lieut laLt.er the S ry at f 3„,, appoi °/ :le 0 oc r, an d s ring flu. the o°l it yoo to C 7( Prl a t ` w ri t SO ' )0 1 3 lilC b Y WWI bstr, or °,. :r wari v ‘, roogt OP i n erai4" A RCL•“ iPtp the le' afrer" Se s the 1 sol nti, 01. ; 4r. 14u: edy, /9 th 1 1 1 an ' i nateo), forrne',l .ningi si c Mr. P, 11 og t cc th e tics tell