The Sun. — London, England, 1806-08-18 00:00:00

~:~.~ LA!!' _REPORT. COURT OF CHANCERY, Ace. Is. Ex , paric HEYw °ob. THE following case is very interesting, on account of the principle which it lays down respecting the liability of Solicitors to pay costs •in the event of their being charged with having issued .Commissions of Bankruptcy improperly; .which was ailedged to _ be the case in the present instance. .Mr. Heywood, the Petitioner, was a person against whom a Com,- mission of Bankruptcy.had been issued. He applied to have the.CoMmission superseded, on the ground that the Petitioning Creditor's debt was only 661.175. no debt less than tOol. being sufficient for this pur pose ; and the CHANCELLOR dire6ted an issue to try the fa& ; on the trial the fad was found to be as stated, that the Petitioning Creditor's debt was only 661. 173. and therefore the Commission was super seded of course, and the question -pf costs was re served.7--The present Petition prayed that these costs might be ordered to be paid by one or both of the parties concerned in issuing this Commission. Mr. JaCkson, the Petitioning Creditor, and Mr., Alexander, the Solicitor under the Commission, reside in Yorkshire. Mr, SOLICITOR GENERAL, Mr. PERCIVAL, and Mr. limo', contended, that, on all the affidavits in this case, it must be tal4en, that the Solicitor ac tually ktlew that only 661. t7s. were due, and that Lc slwv.-1,1 not ' , aye sued out such on ; dna* the Petitioning Creditor was an illiterate man, and therefore thought he had his case con dusted with propriety under the care of his Solici tor; had afterwards declined prosecuting she Corn-. mission, &c. That, Under all the circumstances, the Solicitor ought to pay these costs instead of the Pe titioning Creditor. They supported this proposition at some length, maintaining it was agreeable to the praaice-of the Court in cases of this nature ; and quoted a long extra& from a discourse delivered by Lord ELDON soon after he came into_ this Court, on the abuses of Commissions of Bankruptcy by •At tornies, and on the necessity of checking them, &c.. The Solicittx, hoWever, by his affidavit denied all the impropriety of conduct imputed to him in this case. The Lortn CHANCELLOR thought it unnecessary to hear the other side in this case. His Lordship delivered an elaborate and admirable, judgment, of which' we lament we can give only the heads. His Lordship said—" I feel as-much as any Judge pos.- Sibly can feel on the subje& of the correction of frauds, whiCh have, I am very sorry to say, been particularly Manifested in proceedings under Com missions of Bankruptcy ; and I am as little disposed - to differ from my Noble and Learned Predecessor, in the many observations he has made, and the reso Intim he formed to follow up the abuses)se has ex-, pressed to have existed, as any one can be; but I am confident that ray Noble and Learned Predeces- . . sor must have meant (a man of his learning .and in tegrity could not but have meant) to. confine .himself w;thin the limits of the law in this as well as all other matters. When question's come before me, con neeled - with the jurisdiction and pra&ice of this Court, I can only feel confidence in the administra tion of justice, from the learned assistance of the Bar,- and in a determination not to advance too has tily when the decision is to be on a question which is difficult, because the jurisdiction of this Court is large, and a mistake in its decision may not only be injurious to the parties, but alsO greatly dangerous on account of the high authority which such a mis take assumes; but I am not sittin g here in this casd as in a Court of Chancery, but in the administration of,Bank runt Statutes, a written,law,..as binding upon the Lord Chancellor, and the use , of the Great• Seal of England in his keeping, as upon any other Judge. Tinder these Statutes,• the process of a Commissinn of Bankrupt is issued against the subjeEt; and the manner of-suing out that CornmissiOn is set forth in these: Statutes ; and because these Commissions are issued by• Solicitors, they may be visited by the Court \ for miscondu&, but they must be visited' by this Court on the same principle as any English Judie visits a Minister or Otheer of the Court in which he presides, who has misdurneaned himself, and upon no other, and that must be by the rules of law, with a dUe regard to the principles of the British Constitution, which includes•a regard to the liberty-of the suhje& . That must be `therule which shall guide the cOnduCt of the Chancellor sitting here, in such a Case as this.—Power he has, but he has no right to put it forth against any man ip,the way ofipenalty, or in the nature of a crimi nal jurisdiCtion in this case, upon any other princt .ple than that which would_guide the condu6t of any other English Judge sitting in judgment on the con duct of any Off - Jeer of his. Court; and the question were, whether, in his discretion, be would order an attachment, or avy process against such Officer, • for miscopduCt. Therefore, as it appears to me, constituted as the LaW is, • and as it has been' admi nistered in all times by JudgeA, we cannot proceed against any man by way of punishment until he shall have had a-fair trial by his country, if lie does not admit the in:behaviour imputed to him. I agree in what has been . suited, that the Coudwill, in certain, cases, compel an Attorney to pay costs, where it appears, clearly, that he has miscondu6ted himself: I ordered it lately., where an Attorney had disobeyed the order of my Lord Folis:ELN - N, ; but then it Was clear that he had disobeyed it, and not denied . the fact. I will, go. farther, and order the ' party to answer to the Court for his miscondutt, even although the Party on the other side May have been satisfied, and a compromise 41 - lay, "hay.e taken place, as a Court of Law is in the Whit of ordering an Attorney to answer the matter of an alfidavit, and if he_ did not do. so, the Court would • strike him ofF the Roll, although his opponent may not urge . any- thing against , 4tm ; .for the Court would pre vent such a person from abusing its process in fu ture; and if the *costa' .have fallen (;ii his client in consequence of his injustice or gross negligence, and heaachuits it' ti an unequivocal manner a sot'hat no trial Of the EICt is necessary, the Courewill take care that ire shall . explain his conduCt to the Court, as well as snake satistaCtiun to the party he has injured 3 and the Court will, for that purpoSe, lay its strong hand on him, and take care thus his prison , doer Shall, not be opened until JustiCe is fitlly satisfied. But it allthese cases the Law proceeds with a due and tender regard to the liberty of the sqlliC6l; and tine rule is, that if any matter of a ciiminal kind, that is, any gross misconduct of the nature of a miideineanour, be im puted to tidy - man, and be cieLirs hiinSielt of the ha_ putation by his own ailidavii . , lie shall be taken to , be discharged from that imputation on , that atiida~ it., It is a constant rule in a Court Law, that you can not attach tr man who, upon his own affidavit, denies the misconduCt imputed to him : this applies, to all cases of mismanagement and gross negligence and abuse of the process of the Court ; and it he swcars that which is false, the only rernedy'iS to india him for perjury 3 and the reason is plain; for an Att , :riv2y is, like any othertnan, entitled to the benefit of the British Constitution ; if he is accused of gross ne gligence, or any other miscondut, in the concerns of his client, he is entitled to have his case adjiadged of, as any, other man may, by a Jury of his country ; where you will have damages commensurate to time Toss you have sustained by,mcans of his miscondita. His Lordship considered that such was the case here: miscondu& had been imputedto this Attorney, which •he had .denied upon ,his. oath, and there was no proof of the charge. It vas the regular 'course for Mr. Jackson to bring his action at laVv, if his buisiness had been miscou4u&esl by this Attorney., As to the case of the Petitioner, he would have his costs out of the bond Which the retitioning Creditor gave to the Court on the issuing of the Commission; on the or der for assigning that bond, which would be con clusive on that point : which his Lordship order!!d accordingly ; and ofdered the proceeding to be kpo sited in Court, to be fol - thcoming.ubai caned thr. His Lordship added, that the lower classes olsociet . would hardly have Attoruies to conduct -their causes if proceedings were to be held over their heads. in terroreirt, and they were not o have the same rule of Lftw administered to them as the rest.of the King's subjects; that is, of having an appeal to the Laws of their country, when they were accused of pais conduet, and denied it upon oath." SATURDAY, AUGUST 16 IN THE MATTER OF JOHN HATUA\VAY, A BANKRUPT. This was a petition by the Bankrupt, praying his Lordship to direct that the expellees and costs of op posing a. Petition to preVent the Bankrupt's leis Certificate, and the present application, should be paid by John Laurence Barrow, Samuel Davis, George Wintle, John Marryatt, and Sarah Grover. ' The SOLICITOR-GENERAL,- for the Petitioner, stated, that previous to the month of July, 1800, the Petitioner carried on thehusiness of a Coal-mer chant, but declining in his circumstances, he applied to Davis and'BarroW, who were money-lenders, and who advanced several sums to him, upon exorbitant interest ; and, in one instance, charted hitt at the rate of 101. for the loan of the same sum for the space of six weeks, and frequently advancing thee loans, part in goods, and part in cash, as was the general prat - lice of persons engaged in this sort of traffic. .When the Commission was sued out against the Petitioner, Davis frequently attended to prove his debt ;' but the Commissioners considering it an usurious transaction, refused to admit the proof, in consequence of which, Barrow did not Venture to prove -his debt. This disappointment, determined them on revenge against the Petitioner, and with this intent, when his Certificate was presented for confirmation to the then Lord Chancellor (Lough borough), they preferred 'a Petition against it, stating, that the Bankrupt had, .on the 22d of April, played at a game of chance, called Put, with cards, within the year, and at the same sifting,- first, for a supper, and then for tol. at the house of George Wintle. This Petition was preferred in the name of Barrow, but the other parties all joined in the af fidavits. The Petitioner filed an affidavit in com plete contradidion to this charge, denying that he had ever played at cards in his life, or known Win tle, or had ever been at his house. But the facts being sworn to in this manner, and the sum of 101. being sufficient to answer 'the provisions of the Statute, - Lord Loughborough refused to confirm the Certificate. The present. Petitioner being after wards furnished with sufficient evidence for that put ,Pose, indided all these parties, at the Quarter Ses sions for the County of Middlesex, for a Copspi rady, and all but Davis, who did not then appear, were convicted, to the great satisfaiition of the Bench and Jury, and sentenced to the Pillory, and-Impri sonment for two year's, except Sarah'Grover, to whom, being a woman, some lenity was shewn, and she was imprisoned for only six mouths. Davis af terwards took his trial, and was convidted, and sen tenced to the same punishment, of Pillory and lin prisoment, whiCh he hassince suffered. [Of these Prosecutions and Conyiaions we have given ample Reports in former Papers.] The Petitioner has ever since been deprived of the benefit of his Certificate ; and. under all these circumstances, the Learned Counsel hoped his Lordship would grant the prayer of the Petition. . - Mr. Serieant BEST, on behalf of Mr. Davis, said, he trusted he should convince his Lordship tha't his client was not so befOre the Court, as that he should be compelled to pay costs. The conviction tote place under very suspicious circumstances, ihere bein g but two witnesses for the prosecution, the one,M'Clat6hy, who had formerly been a party to the conspiracy, and who was a man of very doubtful charader ; the other, the Petitioner, Nxho acknowJ ledged he had just got out of a straight waisleoat.— Mr. Davis had already been severely punished for his otrence ; and it not being the custom of the Quarter Sessions to grant new trials in such cases, he was without redress by that mode. The Learned Counsel was further proceeding, when The LORD CHANCELLOR, upon looking at a copy of the couvidions, obServed, that Mr. Davis was not only charged, but convi&ed, as one of the con spirators. He could not say that these persons were not : he was bound by the record before him, from which it was evident they•all' combined to harass this poor man : it was the most scandal ous oppression he had ever met with. His Lord ship said, he knew nothing of Mr. Davis, but some of the other Gentlemen were well known to him in 'estminster Hall. Lord Loughborough certainly did right in the order' he had made ; but from the knowledge he himself had of those' parties, he cer tainly 'should not have aged upon their atfidarits. Mr. RICHARDS rose to make some observations On behalf of one of the parties, when his Lordship obsertel, that perhaps the teivned Counsel did not 1:now - Sir. John I,auren Barrow ;he was a verY bad, wan, and Ooniyrned in a multiplicity of nsltriou's and otbc.ri - infamou6trattsaclions. affidavit, al 7 to,-;other sruelled very much of fabrication. Kis LbrilOarp then granted the prayer of the Petition, - • and re , , - . ) , retted - he could not also give,the exp Onces the prosecution at the Qnarter'Sessioris. • 117ARIt7Et) Yesterday morning, at Bay-le Farm, ,near Kingston, Lge. :Foley, to Lady Cecelia. Fitzgerald. * - On the 14th int. at the Collegiate C4rch, Mancliester, Mr. George Scholes,. eldest sort or Thomas, Scholes, Esq. ok High I3ank,:to Miss . .Seddon, only daughter of Joseph Sc.& don, Esq. 01 that town. The's<ame day, .the Rev. C. itlakohn, of Trhiity Cambridge, ti)Nii:;s fie.lea Little, rat Sou:II-street, Fins bury-hquare.- liii•/U , • On •Thiirsclay last, at \Voodford, the infant son of Peter Free, Esq. esterday, at Cll4mpion Lodge, Catn!,erwell, the youngest child of Air. \ins. .. Oa 1 . 11,,,:aLty: tail', at his house in .Carpenter's-buildings,, Liniclon Willi, the Rev. Edmiston, many years Cu rate and Lecturer of St. Andrew Understrit. I'n ICE OF t.vrin4 3TPCKS n Ay! India Stock, • India Builds, IS. 2S. dis. E xc4eq., Bills, par, 25. dis. Oninium, 6 s 6i 5 I nwerial. 3 per Ccia. Diva Ann. Bank for -Bank Stock, Navy 5 pe. Ct. 91/ vi ,5 pc' C.:llt. (7 9 ., • Irish 5 4 pc; eat. ' Fs , a per Ct. Rcd. 62:4 3 p,!1:.2t, Con. 6z z 61 13,4&,k L: Ann. 17 s tS 17i it Ditto Short Ala,. 1 CUD 26th Aug. 62 fl LONDON ; Frinted by . I( I CHARD HARRIS, of No. 4,-Martlett.coprt, Bow-street t - and Published by WILLtoo ARmIcRR. ScR ti , es; tot South Molton-stre2A, (..;::,,,N.‘i,,,- 5ti11.,.: At the SI.TN• OFFICs, No. 13; 'lllid ; wilere ddrertisozents Orders for the • Paper, Letters for - the Editor, ',5. - .t.' ftost-paid), must bti ..1i.1,......!,...-..., YORK A SSIZES. ..Tulin Armitage charged with Miss Eliza Baynes, on the highway between- Embsay j and Skipron,• and taking from her .an timbrella, and' some articles of wearing; apparel. The most material witness in this , trial was Miss Baynes, a young Lady about 20 years of age, and of a very interesting appearance. She stated, that She lived with her father, who resides at Skipton; and that on the evening Of June 10, shj left her fa ther's house to visit her'brother, who resides at .some distance from Skipton, 'near Embsay, and perfealy remembered passing the. Prisoner on the road, a -lit tle distance from Skipton, who, after walking be hind her for some time, turned on the road leading toßolton Bridge, but in a-very short time she again observed him following her; that he soon - quickened his pace, and -Caine near her. ]Nliss Baynes‘ pro ceeded to state, that. after they had 'passed a field, , through which the foot-path lay ; into the highway, tire Prisoner advanced to her, and, without speaking, took an umbrella from her, tore off her hat and head dress, and threw her upon the ground, and that in the struggle she lost one of her shoes ;,,,she said she was 'dreadfully alarmed, and screamed loudly for assistance ; the Prisoner filch attempted to stop her mouth, but was prevented from attempting further violence by the approach of some person towards the spot : the Prisoner immediately ran off towards Skipton. The person. who thus came opportunely to her assistance was her brolher, who only remain •ed 'with her to obtain a description of the Prisoner's person, whom be immediately pursued. In an oker to a question by his Lordship, Miss Baynes said, she had no doubt but the Prisoner would have been rude to her, had not her brother: providentially.come to her rescue; she also added, thatthe Prisoner did not ask her for any money, or indeed speak to her at all. George Bayne, Esq. said, that being in his gar den On the evenhag, of the' 10th _of June, he - was alarmed by a cry of murder,: which. apparently pro ceededfrom a person in great distres, but he did not recognise the voice; he ran immediately to the place froM whence the cry proceeded, and found. his sister, in a shocking situation cher face .was di7ead-• fully scratched, and her. manner and 'appearance evinced the greatest terror and .distrss.77l:he mained with.. her only to obtain a,description of the villain who, had treated her With such outrageous violence, whom he immediately pnrsued, and over took him entering into Skipfon, and instantly- had him apprehended : the Prisonerlad an umbrella in. his hand. The Constable being examined, said, he . took - the Prisoner into custody, and took from him anuiti brella ; 7he aISO found- the next - morning in the cell' in which the Prisoner was confined, a head-diess,:-a _straw , hat, and-a lady's- shoe, concealed among-the straw. These articles being .. prodticed in Court,- were identified. by MisS Baynes to bethe same which the Prisoner had taken from her person; The Prisoner in his defence-said; he was so much intoxicated, that he had no recelleCtion whatever,of the transaction; and was surprised, • when he reco 7 . vered his senses, to find himself in prison. The Jun9E, in his address to the Jury, observed; That the'Prisoner was charged - with having cciin mitted an highway robbery, and therefore 'the Jury would-have to inquire, ,Whether it appeared to be the intention of the Prisoner to commit' a robbery ? conduct, in mating no demand for money, his violent snatching from the person of the Prosecutrix the articles of her- dress, evinced-that he meditated a crime of -a, different, and certainly. of an infinitely' : more atrocious nature, but which was not included in the indiettnent, on which, alone, he was to be tried. But if the Jury should suppose that the Pri soner, 'disappointed in his original intention, took away the articles found in hispossession, with cn in tent to.steal them,' in that case the Jury could have no difficulty in finding him guilty : but if his taking them was merely accidental, occasioned by the hurry and alarm of the moment, they would then acquit him of.the charge." The Jury, after retiring for some time, found a verdia of Not Guilty, His Lordship addressed the Prisoner- on the enor niity of his-ConduB, which, be said, deserved a very severe punirnent, and hoped the narrow escape he had experienced would have a salutary influence . on his future cormluet. • ' Thomas Richardson, late of Whitby, was charged with violently assaulting and beating MattheW Mel boat), of Stekesley,. in the fbot-way leading from Seamer to Stokesley, and taking from his person a wakh, several country bank -notes, and some silver. Mr. Melbourn, the Prosecutor, stated, that he Was a hatter, and resided at Stokesley, and that on Friday, the 28th of Mareh, he vent frbm•Stokesley --to Stockton, and, on his'return in the evening, called at a public-house at . Searner to get some refresh, ment. At this house he saw the Prisoner; this was near eight o'clock in the evening After some con versation, it was mentioned to the Witness, that the Prisoner was - goin g to Stokesley, and it' was agreed that they shouldgo together. The Prisoner proposed that they should go on the high road, but the Witness said he knew the. foot-path Very Well, and it was much nearer. - After remaining about a quarter of an hour, in which time he had two pints of beer, they left the public-house ; the landlord accompanying them to the door with a light, and looking after them.. - The Witness walked first, and the -Prisoner followed at a little distance. About 40 yards from the house the foot path left the road on the-left hand, and the Witness here observed to his companion, that it was a fine moonlight night ; the Pr,isoner gave no answer, but followed him a little nearer. • After passing through a field or two, they arrived at some marshy ground, in which were three deep drains ; when the Prisoner :advanced sharply towards his left- hand, and struck him a blow ;on the side of the head-wi:lalarg - e club-stick, and said " D n your eyes, if you do not im , mediately give tue your watch &Id money, will kill you ;" and, without, waiting for a reply, .struck him another • clesperate blOw. -The Witness then endeavoured to defend himself with a 'small ‘valking stick, but Without effea - ; the7Pri-soner repeated - his' blows, until hebrought lihn :0 the gr6und ) in a state of insensibility, which was not, however; so coml. plete, :as ,to prevent him from feeling the Prisoner jump upon his breast with his knees, and afterwards viiie his _pockets.. The Witne'ss said, he could not tell how long he remained on the ground, but, as soon as He came a little -to himself, he crawled, as Well as lie-could, ti, the Inh he had left. He also said ; that he had on his .persen, previous to the robbery, a black • leather pocket-book, 'containing. three fie guinea 11Qtes, ten small notes, of , one pound each, and a purse containing fifteen shillings in silver, and a silver watch, to . 3.vhich.was attached a string of • unbleached linen yarn, in three plaits, and , a black steel key, the-lkhole of which property was taketi from • . . The Prosecutor's evidence being corroborated b3i . several respeelable witnesses, the Jury, after retiring for a short time, returned into Court with a Verdid 111"At , tsioN-House.—On SaturdaylastMoses Joseph; a.notoyious pick-pocket, and two or three ()fliers of his companions, were brought before the LORD MAtoa by some of the City Officers, who appre hended them the day before, lurking about the Ex change. , The . Officer stated, that he had no particular charge against the Prisoners, but merely that they came under the description of rogues and vagabonds, being ,Continnagy idling about the streets, without having any visible means of livelihood. Shortly be fore they were apprehended, he observed in the hands of' one of them a quantity of Bank-notes, and he was ,very sure, from his general knowledge of the whole gang, they could not have cone by them honestly. • • Some of the Prisoners, it appeared, bad friends in a . reputable line of life, and the LORD MAYOR re mauded..them.,. on their, promise of giving security to leave the country entirely. A young Man named Rope, and an elderly man of the,name of Picklti, were charged with commit ting an , a;-: -, ault on a Mr. and Mrs. Clark, and also on the Constable of the night. Mr. Clark stated, ,that the night before, he was coining up the Minories with his wife andson, when he met the Prisoners in company with another man. The Prisoner Pickle waS extreniely, rude to his wife; ervhis' resenting Hope assaulted ciut in the most Violent Manner. The watch N.k;ere then called ; and . .the PriSoners, •afier r; .a. lung resistanCe, , were taken to - the Watdh-bou* * Here, alk, they cip du6teci 'themselves in .a 'very riotous matitiir ; and Hope, Who was an able yotingrnan, took the:Con= suable Oldie nighuby,:thc.'. and hung him oat of•tbe Vrratch-hotsesinto :the -in iddle 'of the street. This 'statement , , was :c=orroborated by other Wit nesse-s; anti the y L0.6-I).'Moii• botiAci the.Pris6flers - over to, take_their. trial „for . the . assault at the'-'.next London•Sessions:' • - An . Triiii..brick Atrayer,amed Dennis; was buried a .feW:CVeiliilgS ag - 0' in the Catholi.e-GroUnd,-Spah .tields,• - .The funeral , :was attended- by . aericourse bt his , .. countrymen') 'arat an thecorpse being com.:. initted- -to..the earth, Irisir -pulled wit 4 compass, to see that it lay otie . east and.vst ; which hot being the case, -he jumped into the•grave- to pub it to rights, when, .4- the pressure of the crowd.; th; earth gave way, and-tnany of the spectators fell They were all got- out alive, but the sailor and seve ral of the others were severely bruised. - - The prktice of defrauding persons, chiefly un fortunate women, by. 'pretending to have a writ against them, and' thereby - obtaining .a sum of money; has been revived during the last week, by a. gang of sharpers. 'This. trick was successfully played off at Vauxhall, on Friday evening, on a woman known by the -name of Miss Sims. She was accosted by. a man who represented himself as a Sheriff's Officer, and.produced a paper purportin „ g to be. a writ against - het' for a debt of 361. The wo man protested her ignorance of the suit ; but by . the-interference of the fellows to whom we have al luded, :she was permitted to remain in the compaby of a person whom she was with, on depositing four guineas in the hands of the Officer until the next day,.,when on surrenderiug herself the money would be returned. The imposter, of course, Was not to be found. A similar imposition was praelised on an un protefted female as she was returning from the Hay market Theatre last week. When men of ability ,devote their time to.public good, it is reasonable to hone that a remuneration, suited to the advantages reaped from their experience, will be the - result. This has li,en happily illustrated in the case of Dr:Solon - ion, of LiverpOol, in the ex tensive sale which the Cordial Balm of Gilead has experienced, and incontestibly proves that it is the best 'Medicine ever discovered f.n - these disorders which_are now prevalent in this kingdom, and which for a length ,of time have baffled the skill and etfOrts of the most eminent Physicians, , -we.tnean Nervous and Consumptive ,Complaints. This Medicine has stood . the; test and answered the expetlations not only of a long private praelice, but also of those who had recourse to it since it was made public for uni versal good. 1 I .! ~.