The Express.
London, England, 1851-06-14 00:00:00

THE EXPRESS, SATURDAY EVENING, JUNE

advised him that he could not be tried is this country for a 1 ARIAL b. DAI.R.-31;00141ENT.
duel fought in a foreign country not under the British I The principal question in this case, which was an sedan
crown—he came to England, where ho was instantly for false imprisonment, was whether a county court judge
arrested under the statute 9 Cleo. IV. c. 31, s. 7, which had could imprison a man upon a judgment from which he
been passed two or three years previously, vie., in 1.828, had been discharged by the Insolvent Debtors Court.
and mu tatitogether have escaped the notice of the counsel I The Lord Chief Justice new delivered the judgment of
in question. 'I hat act mamma the trial in England of the meet, and said that a rule had been obtained for • non-
any British subject charged with having committed any
murder or manslaughter abroad, whether within or without ' tart or new trial, upon the ground that the verdict was
the British dominions,. against the evidence. Upon that point the court were of
SS
if such crimes luid been corn- 10 opinion that no rule should be granted. With respect to
mitred in England. Captain Ildsham was admitted to hail ,eL
to meet the thane, and having Italy surrendered, point as to whether a discharge by the Insolvent
plane at the bar of the Old Baa tourer his I Debtors Court prevented a judge of the County Court
at nine "'clad' on a ! from committing a person, the question tamest upon the
Saturday morning. He was a middle-aged man of gentle' I words" unsatisfied judgment " in the act of parliament.
manly appearance, bie features indicating ateat deterutina- . The court thought that the plain words of the statute ought I
tion of character ; but they wore RD expression of to be followed, and that those words did not take I
manifest anxiety and apprehentian as he entered away the power of the County Court judge to corn- I
the deck, and, looking clews), beheld immediately mit a person who had been disehamd by the
beneath him the brother off' the man whom he had shot, and lnsolvent Debtors Court. By construing the words
, through whose cearelees activity he has then placed on the of the statute strictly, it might possibly lead to
trial for his life as a murderer. And he was to be tried by' an absurdity; but it was not the banner of the court to
an tmeamPtamis'aeg judge—stern and exact in administering I &bourne the functions of the legislature. The legislature
the law, and animated by pure religious spirit, but withal ' might have thought that county court judges were permits
thoroughly humane. Throughout the whole of the ag:i- who could exercise this power of committing a person even
toting day the prisoner stood firm as a rock—sometimes his I after be had obtained his discharge by another court, in a
arms fokled, at others his hands resting on the bar, while I beneficial manner. The court were of opinion that the
his eyes were fixed intently on the judge, the witnesses, or judgment of the County Court could not be set aside by the
counsel, every now and then glancin r with gloomy inquisi- Insolvent Debtors Court, and therefore the rule for a new
dunces at the jury and the judge. His lips were from first trial must be made absolute on the payment of costs.
to last firmly compressed. It was understood that the Rule absolute.
counsel for the prosecution were in possession of a damning THOMPSON V. HAWORTH (exam:marl).
piece of evidence, vie., that the prisoner hail spent the I This' was action brought against the executrix of the
whole of the night immediately preceding the duel in pear- I late George Haworth, the actuary of the Rochdale Savings
tieing pistol firing. However the fact might be, it defalcations excited never-
tholes' was not elicited at the trial ; and probably the Bank whose so much public attention a
short time ago, and now came in the form of a special case
prisoner, who had been prepared fur such evidence being for the opinion of the court, whether the private creditors of
produced, began, on finding that it was not eo, to take a the deceased were entitled to payment before the claims of
more favourable view of his chances. As the cam stood, the depositors in the bank were satisfied.
however, it Looked black enough to those who knew I 31r.Cowling appeared fur the plaintiff, and Mr. Crompton
the law, and the character of the judge who for the defendant.
at to administer it That venerable person began his sum- The action was in aseumpsit, on three bills of exchange
ming up to the jury about 7 o'clock in the evening, and fur 6911. Is. 61., 8171. lac, and 5001. respectively, drawn
the scene can never be effaced from our memory. The by the plaintiff upon end accepted by the deceased, and
court was extremely crowded, the lights burned brightly, for goods sold and delivered, amounting to 2,0001. The de-
exhibiting anxious facia in every direction ; but what a &natant pleaded that in 1819 a savings bank for the receipt of
striking figure was the central one—that of the prisoner! deposits was established in Lancashire, and that the rules and
Immediately over his head was a mirror, so placed as to re- regulations were duly filed and deposited in accordance with
fleet his face and figure vividly, especially as to the jury. A the provisions of the statute 9 Geo. IV., e. 14 ; 3 and 4 Win.
few moments after the judge had commenced his charge we IV. c. 14 ; and 7 and 8 Viet., c. 83. In 1829 the deceased,
observed the ordinary of judge
glide into court, the late
Rev. Dr. Curtest, in lull manatee's, and with flowing white George Haworth, was appointed actuary, and held the office
until his death in 1819. At the time of his death George '
hair, having a picturesquely venerable ;end ominous appear- Haworth hail in his possession, as actuary, moneys of the de-
meta and take his seat near to, but a little behind, the positors amounting to 100,0001., and there was due from kin
judge. It was then usual for the Ordinary to be present at to the savings bank another sum of 100,000 a, which he bed
the close of capital cams in order to add a solemit '.amen' alsoreceived by virtue or kis office. The defendant then alleged !
to the prayer with which the sentence of death concluded— Mat she had fully administered all the goods cued chattels of '
that ' God would have merry on the anti ' of the cons George hlaworth, which w, re of small value, to wit, of the !
demand. ' Gentlemen of tha jury,' commenced Mr. Boron value of 501., and that he hail not other goods and chattels
Bayley, amidst profound silence, we have heard several
times during the course of this trial of the last of honour, to admiuister. To this the plaintiff replied, setting out the 1
rules and regulations of the bank, whereby it appeared that I
but I will now tell you what is the law of the land, which it was the duty of the treasurer, trustees, and manager, to
is all that you and I have to do with. It is this, that if two
persons go out with deadly weapons, intendirg to use them, manage the bank and receive the money, and the duty of
the actuary to act under their superintendence, and keep tax
against each other, and do use them, and death nave, that acconeta but that iu fact the trustees and managers nearer
is murder—wilful murder." Ile paused for a moment, as if attended at the bank, and the business was transacted at, the
to give the jury time to appreciate the dread significance of
decease
the opening. Aswan as he had uttered the la two words, deceased's offices in Rochdale, where lie carried on Mrines,
a
as a land agent and collector of rents ; carrying on els ewhere
Captain Ilelsktun's cheek was instantaucouely blaiteheil. the business of a cotton spinner. The replicataon then
We were eyeing him intently at the moment, and shall alleged that the deceased rendered false aceouats, which
never forget it. lie stood, however, with rigid erectnese, were annually examined by the managers, but not checked
gating with mingled anger and tear at the jnilge, whom he by the depositors' books, tend that the frauds he com-
telt to he uttering his death-warrant; and, after a while, matted were not discovered until after his death. 'fire
bent hie eyes on de: jury, from whom they wandered team debts due by hint to the bank hail nut been paid, but
a moment during that momentous summing up—one which the monies he died possessed of had been handed over
with every word stirs letting fall around lam, as he must to a person appointed by the parties to receive the same,
have felt, the curtain of death. " The law of honour," said Upon thosepleadinge a special case was framed for the
the judge towards the close of his charge, "is an imposture °pillion of the court, whether under Ant William IV., e. 14,
—a wicked imposture—when set regain 4 the law of the e. 28, the. claim of the trustees of the savings lank for any
land, and the law of God Almighty, claiming the right to of (be monies ee received by the said George ilea...rat had
take away human lif.. I tall you, who sit there to ills- priority in the administration of his assets over the debt
charge a sworn duty, that a fatal duel is malicious homicide,
and that is wilful murder." The jury retired to coneider sough*. to lac recovered by the plaintiff in the present action.
it' to, judgment was to be called for the defendant; if not,
'their verdict, and the judge, at the same time, quitted the for the plaintiff. The following is the provision in the
court till his presence should be required again. statute .
Captain Ilelshurn, however, cantinued standing at aif any person appointed to any office in a savings bank,
the bar almost neotionlesa as a statue. Atter a entrusted with keeping the accounts, or having in his pew
molonged absence of an hour end forty minutes, the jury session by virtue of his office any moneys or effects belong.
returned into court. The prisoner eyed them as oueby one erg to such savings bank, shall die or become bankrupt or
they re-entered their box, with a solicitude dievel to be-, insolvent, his executors or administrators, or other persons
hold and the irrepreeible quivering of his upper lipmums having legal right, chill, within forty days after demand
cate.& mortal agitation. The verdict, however, was not made fry two of the trustees, deliver and pay over all monies
guilty ; on which the prisoner honed a heavy sigh, passed and other things belonging to such savings hank to such
his hand slowly over Iris damp totalled, bowed slightly, persoos as the trastees shall appoint, and shall pay out of
but rather sternly to the jury, and was then removed from the estate, assets, and effects of such person all sums of
the berried releaeed from custisde . When the yeedict was a few 1 money remaining due which such person received by virtue
minutes afterwards communicsted to Baron Bayley, who"' ' of his said office afore any other of hies debts are paid or
remained in attendance in an adjoining room, he remarked satisfied..
gravely, " I did my duty ;it is well for Captain Heldman Mr. Cowling, for plaintiff, continued that the moneys
that the verdict is as it is; had it Isere the other way, I which hail been received by the deceased were not received
should certainly hate left him for execution." In that by him by " eirtue of his employment," within the meaning
case the duelist would have died on the gallows on the ' of the statute. lie was actuary only. and entrusted with the
ensuing Monday morning. keeping of the accounts; but although he did, in point of
As an answer to thi* action, the defendants pleaded that fact, receive money, yet to do so was not part of his duty
the plaintiff, Captain Ilelsham, " did frloniouely, wilfully, under his appointment. " Actuary," according to a John.
and maliciously shoot the said Lieut. Crowther, and gave sou's Dictionary," was "a person who was to register the'
hint a mortal wound, of which he died:" las this there was
ought
a replication, by way of estoppel, that the defendants nutmeats of the court." The deceased was also to manage
the business of the bank, but it was the duty of the trustees
not to be admitted io user that the plaintiff hail *hot Lieu- to be there and receive the money, the only duty of the at:-
tenant Crowther maliciously foe he Led been acquitted by tuary being to keep the accounts,
the jury who tried him. Ihe case mane before the court Mr. Justice ladfouril.—l perceive that under the sixth
upon demurrer to Use plaintiff's replication, and the ques- rule he is to hand over any moneys he may receive ; to do
tion was whether the plaudit!' could bring forward the fact
of his basing been acquitted at the Old Bailey in an action this he must that receive moneys.
Mr. Justice Maule.—Supposo the trustees had called him
for libel. The other question was whether the plea of the a prothonotary instead of an actuary, it would have had
defendants answered the whole cause of action, et disclosed much the tisane meaning. The phrase cannot be construed
by the plaintiff% declaration. very strictly.
Mr. Peacock now urged that the elaintiffse having bees Mr. Cowling.—By the rules the manager was to superin-
acquitted at the Old Bailey could nut be set up as 411 eetop- tend the butanes" of the bank ; the demised, therefore, was
pel to the action. If a person were tried for anon and ac- mot to do so.
Tatted, could he, ii, answer to an insurance office, say that Mr. Justice Maule.—Who was to be superintended ;
at was not competent for them to prove that he was guilty, Mr. Cowling—The actuary.
but that they must pay the policy because he had already Mr. Justice Mauls—Then the actuary was to do the
been tried and aeauitted ? With reenact to the plea, the baeincee of the bank ?
plaintiff said that it did not attempt to justify that portion Mr. Cowling—The manager ought to have received the
of the libel, which said that he had passed the sight before deposits, and to have accounted for them to the actuary.
I the duel in practising with a pistol. It was, however, stated'
1 The east proved the managers had neglected their duty, but
that the plaintiff was guilty, and the practising was only a that did not alter deccuesda position in point of law.
Piece of evidence leading to that result Mr. Crompton, who appeared fur the defendant, was not
Mr. Justice Maule—Could it be said in a civil suit that called upon
there are no degree" in crime? The court were of opinion that the word "actuary,"
Mr. Peacock—No; but what he cora:tended was that this although in its original sense " a person who collected and
was only a piece of evidence. recorded =counts," hail been adopted by persons acting as
The Lord Chief Justice said it would muse a very difc- calculators and doing the work of insurance offices, and this
rent effect in the public mind whether a mau fought a fair being so, whatever the deceased was called, he was em-
or an unfair duel. ployed to transact the business of the bank, and had re-
Mr. l'eacuck submitted that if the plaintiff had said he ceived the moneys in question by virtue of such employ-
murdered his antagonist in an honourable and fair manner, meat within the meaning of the statute. The thane of the
the court could not decide whether it was so or not. He i
, delimiters in the bank were therefore entitled to precedence
submitted that as the plaintiff had been guilty by law of a I aver that of the plaintiff.
murder, the court would not inquire whether it was a fair
Judgment for the defendiun.
or gentlemanlike duel,
The Chief Justice—lt was not the murder or no murder
that was now to be tried, but Wad or so libel.
Mr. Justiee Made—lf Amid be said dot it was no im-
putation on a man that he was pisses-firing before fighting
a duel, then there was no libel.
The Lord Chief J ustice,— The %cry laudable object of the
writer of this article was to discourage duelling, and what
a serious thing it would be if you pen isd the court
to hold that it was no aggravation of is duel to say that a
man practised pistol firing nearly all the night before ha
fought it. It would quite defeat the object of the work.
Die Peacock continued to urge upon the court that the
important question was the killing, and the court could sot
inquire into the mode in which it was done : therefore the
plea pas a good one.
Mr. Keane did net address the court.
The Lord Chia! Justice said it was not necessary to eater
into the question respecting the replication. He was of
epanim that the plea was bad, because it professed to juetity
the whole declaration, and only juatdied a part. The libel
said that the murder we. 00HURiTOPil seder eireanwteases el
aggravation, and ia sabetinee that the was a mur-
derer in a certain maser; bat the merely ap-
plied to the circumstances whisk ceastitated the legal
der, and and not to the circumstances of aggravation. it could
not be said that in an action for libel it did not affect the
question whether the murder were committted under one
set of circumstances or another. He thought that the court
would be doing a serious injury to public morals if they
held that it made no difference whether a duel were fair or
unfair. On the trial the question was murder or no mur-
der, but the question now was libel or no libel. As long as
the circumstances alluded to were an aggravation of the
offence in the minds of the public so long it must be libel-
lous, or this result must follow—that when a man had
been tried for murder you might UM any term you
,in respect of that murder and it would be no libel. IgeanhLe
opinion the court could not act upon such a rule, and the
plaintiff was therefore entitled to ,iment.
The rest of their lordships capres a similar opinion.
I Mr. Peacock then applied to be allowed to amend the
plea. The libel was not a malicious one and the publica-
tion was in fact to aid a moral purpose.
Mr. Keane said he would have agreed to the plea being
amended, but his client bad not been fairly dealt by in
having, after the lapse of 20 years, been called upon to un-
dergo as it were • second trial for murder. If t.he defend-
! ants would take issue upon the question as to the pistol
firing, Captain Helsham would be quite willing to try it,.
'His client was not yet 60 years old, and this book contain-
.
h • charge agams. t him was actuaut into his
Ittaltdssucby his own-children. Under such circumlly put into his
bands by his own ehiläreu, Undcr such circumstances, he
was compelled to bring the action.
Mr. Peacock teal that an apology had been made.
Mr. Keane.—Such an apology !
The Lord Chief Justice suggested that this would be a
satisfactory mode of settling the question.
Kr. Justice Mattle.—lt was a thing which ruust of comae
gin very great paiu, bat probably the writer of the artiste
did isot know when be erste it that Capt. Helsham was la
existence.
The Lord Chief Jestise.--Capt. Wish= of course bet
brought the laise• Ems of honour, and if all hie sense
were paid as betimes etkomey and client, and an apology
made, he raid we doubt be satisfied.
Mr. Mesas Nil whet their lordships would be satisfied
with as an au/legy that his client would take.
The Lord ChisfJustice—No ; the court could not under-
take that del;The Ratter had better stand over till Mee-
qtrat ft SoMsl by mationd wan, so that the parties
have tins to esesider it.
Keane—Would their lordships name any gentles=
at the bar to say what was a fit apology,
Mr. Janice CreesweU said that the wart amid not de
that, and indeed it would be ller NON satisistoey MM.
apology was made from the peeper feeling of Ow 4alasts.
than if any one dictated it.
The matter was then postponed until Monday nest.

COURT OF

-YMTERDAY.

&nuns DI ROM.

HAILNEY C. TOWER/I.—BILL OP EXCHANGE.
This was a rule to enter a verdict fur the defe=;,
pursuant to leave reserved. It was an action on • bill of
exchange by the endorsee against the acceptor. The
defendant pleaded fraud sad eosin, and that the defendant
was the holder without consideration. At the trial before
Mr. Baron Martin, at Guildhall, the jury thought the fraud
established, upon which the question arose whether the
plaintiff was bound to show considerstion for the bill or that
the defendant should show the absence of consideration.
The learned judge thought that it Ives the duty of the
defendant to make out the plea in both branches, and so
ruled. A verdict was then taken for the plaintiff subject
to the present motion.
Mr. E. James, Q.C., and Mr. Maynard were beard in
opposition to the defendant's rule.
The court, without calling on Mr. Serjeant 'Wilkins and
Mr. Crompton to support the rule, made it absidute to enter
a sunsuit.
Rule absolute accordingly.

COURT OF BANKRUPTCY.—YEBII3DAY.
Hums Its. Ocanarunata Das.
IN as Roux MewinALL.

The benktupt was aa emigration agent and coal merchant
at liosslimmgalm This was the last examination meeting.
TM asssmis, wpeo~ by Mr. Maynard, showed that the
bankrupt le ugessurned Neatens 12,8311., and 9,800/.
on scram of omigreB;on chips chartered. The wets were
rehussi at about ; trade expenses, 13,7371. ; domes-
tic expanse, for about 8 ).care, 3,8.571.
It woo owed by the ban krupt that u project to the Cape
of Good Imo osa Canada, .1n a large scale, was las mutably
received bylme Majesty.s go comment. A company was in
ovum of lbsadoa. The company was not completed
orbs. odor parties connected With it had withdrawn and
be bad bid to bow the whole of its responsibilities. Not-
withstanding his being so situated, be had en conveyed the
emigrants is Mel: destination as to r..Neive the thanks of the
government.
His Honour, thinking there was nothing to prevent the
bankru=kig his last examination,
Mr. inmental to withdraw his opposition till the
certificate misgAsianesaseving to himself the right of then
going into all
The bankrupt pound.

INSOLVENT DEBTORS' COL:RT.—Yewmama-.

Banes Ma. 00Jortaaarea Palmas.

IN it CHAILIM BTPOLITUS MANREZ/f, VICOMTE Di
SEcuritruas —A Paawca Wtscorxr.

This insolvent, who applied to be discharged under the
Protection Act, in the find instance was opposed by Mr.
Cooke for a Captain Briscoe, the detaining creditor. The
Insolvent said his fatherimassaeArcncral in the French array
and a marquis. He had as a vicomte, and resided
in France until the revolution in 1830. He had, since he
had been in England, engaged in railway and mining
speculations, and had sold Captain Briscoe some shares in
a company which he had promoted. The insolvent said
he was the principal promoter of the Paris and Lyons Rail-
way Company.
Mr. Cooks opposed the application for disclia=dd
went an into examination of the schedule. He In
that the application was in the discretion of the court.
The insolvent asked the court, as he was a foreigner, to
be
Gil Phillips told him he bad conducted the
case with a good deal of ability, and should have the hill
benefit of the law.
The case was adjourned for further evidence.