The British Press; or, Morning Literary Advertiser.
London, England, 1824-01-22 00:00:00

TX PANTE GIIIMSTrAD !N ilk HOWARD AND GINN%

Mr. HART, at the sitting of the ('ourt, resumed his argument
in this cause. He commenced by referring to various Famines in
the charge of the Chief Justice or the Common Picas, at the trial
hich took place, charging. XL% Grinstead with usury, and of
I which he was convicted, as he l3lr. Hart) contended, front the
misdirection of the Judge to the Jury, by a course of observations
In which he indulged, and which were not justified by the evi-
dence at the trial. The Learned f;entleman then passed to the
conaideration of the entries in the pass.'. which formed the
ground for charging the transactions with the taint of usury. It
appemred that in this book Itlr. Orlmstead got credit for various
sums at different times, under different denominations. That
which gave rise to most suspicion, was the word " produce,"
which the adversaries of 31r. Grirustead stated never could hate
been used in an account when the transactions referred to annuities.
There were various small sums set down us the produce of such
and such sums for short intervals, in some cases for a few days.
!The produce did not exceed what the legal investment of the
money in annuities would have yielded. If the word " produce"
were equivocal, it is not proper to look to the waning which was
' originally assigned to it in these transaction.. If it were contend-
ed that produce meant interest, be would refer to *dm entries
where it meant that which resulted from an annuity, all in the case
of the Hon. B. Paget, where it could not be regarded in at:y other
point of view. The paints of this case were certainly complicated
and unfit to he decided in Courts of Law. In those (burl nei-
ther the Judge nor the Jury could go through the difficult wind-
ings of a case of this nature with that circumspection and dili-
gence which a Judge in the Court of Equity was accustomed to
exercise.

The Le!tn Citaxcrston would here repeat an observation
which he believed would prove to be correct, although he were to
sit there for 3011 years, that when this ['outs directed an issue to
the Courts below, it was bound to explain itself in the fullest and
meat accurate manner. so as that the Judge might previously
Neely the points on which the Court required information. This
observation applied to the generality of cases sent from Equity
Courts to Prins Courts. Ile remembered one instance in
which a Learned Counsel, now raised to the office of cne of the
Patrons of the Exchequer, was engaged, and which was sent from
the Court of Chancery to the Court of Exchequer for decision, and
I he would say that neither the Judge, nor any one of the learned per
sons engaged, had a correct notion of the points upon which they
were called to decide.

Mr. HART said that this case was one of the many which fre-
quently came before courts of equity, and which Juries' were
not the best qualified persons to overcome : it presented those dif-
ficulties and peculiarities which could only be successfully en.
cour.tered by capacities fitted fur such exercises by early enlighten-1
ment and long intellectual practice. In reference tothe charge of the
Learned Judge who presided at the trial, his explanations were
founded on a surposition that Mr. Grimsteati was a man of busi-
ness. The case was presented to the Jury as one of presumption.
which supposed a variety of circumstances that were inconsistent
with the probable state of the case. But to support a charge of
usury. circumstantial evidence of 2,0 vague a nature as this was in•
sufficient; the contract between the parties should have been made
openly to appear.
The LORD ettaucrt.rot said it struck him that the point
which should hare been put to the Jury, and which it did not ap-
pear was put by the Learned J udge, WM, is lictheror not the frequency
with which the passed front one party to another should be
' taken as a proof of Grinisteasl's having entered into the contract
proposed by Gibbs.
31r. HORNE said that was the way in which the opposite side
put theircase. _

Mr. Hear contended that it was necessary to prove that Mr.
Grimstead had availed himself of the frequent opportunitii s af-
forded hint of inspecting the pass-book; he denied that Mr. Grim-
stead at all referred to it. lie begged to refer his Lordship to
folio 3 of the pasedsook, in which it appeared that the nature of
the dealing was this Gibbs nu to receive the annuities for
Mr. Grinstead as they became due, and pay over to 31r. Grim_
stead the balance, reserving to himself:.'; per cent. for the collec-
tion of the annuities. The Commission was resndarly charged at
the close of several accounts. If the money of Mr. Itnnistead was
at interest, could he allow Mr. Gibbs to deduct 2i per cent. from
such interest. Suppose Sir. Gibbs to say to Sir. Gnmstead, „I
could not lay out your money fur a long period, but I met A or B,
who wanted two or three hundred fir a fortnight, and who gave
five pounds for the accommodation of it." That, he contended,
would not constitute usury on the part of Grinistead. The very
term "commission" proved that this money did not mean interest,
for commission was paid only for the collection of money, or for
some act of agency or brokerage. Having established that point,
he hoped, to the satisfaction of his Lordship, he submitted that
the present case was one which Wag more suited for an
equity Judge to decide upon than to be discussed in a Court of law.
As the case, however, did go before a ream he (Mr. !tart), had
reason to expect that the Lamed Judge who presided would have
pointed out the period at which the character of the parties was
changed from that of principal and agent to that of borrower and
lender. The Learned Judge, in reference to that point, made this
preliminary observation, and a more extraordinary one he believed
was never made in a Court of Justice. " Although Grimstead be-
lieved that Gibbs disposed of the money entrusted to him in the
manner which it was contended he did dispose of it; yrt there
were elretimetances in this case which should have induced him not
to believe it." So then, his honest and conscientious belief that
Gibbs held the money as his agent, was insufficient; it was requi-
site that he should have so seen into circumstances u not to have
entertained such& belief. would such a doctrine lead to?
11-hy to ;his, that if Mr. Grimstead were convicted of users, and
visited with the civil consequences, the establishment of the fact
of usury in a civil suit, would warrant a criminal prosecution to
be instituted against him; and this because he could not resist the
conscientious conviction of his mind. If the doctrine of the ('hief
Justice of the Common Pleas were to pervade all transactions be-
tween principal and agent, it would be an easy matter to detect any
person in an usurious transaction. A gentleman may have a long
and extensive dealing with an agent ; on the winding up of the ac-
counts, 5} per cent., instead of' 3 per cent., might be paid by
the agent. The principal may naturally entertain the belief
that the additional quarter per cent. Was paid on the aggre-
gate of the interest long due; yet, according to the doc-
trine of the Chief Justice, he might he visited with a
charge of usury, through the unintentional, or perhaps artful
insertion, of surplus interest, by, the ngent. The Learned Judge
still further said, that this book *as characterized by great irregu-
larity. True it was, that it evinced great irregularity in the keeping
of the accounts, but the Learned Judge proceeded still further to
add, that it carried with it the proof of a nefarious contract. A
proposition of the Learned Judge front which lie (31r. Hart), beg-
ged respectfully to differ), was.—" This is a case in which we are
not toexpeet a day-light evidence." The owner of the money had
• right to such evidence. It was incumbent on thou who aimed to
defeat the ris of 3lr. Mr. Grimstead to his proerty to clearly
prove him disentitled to it--to 'hew intention on Ina hart to infringe
upon a legal contract, and to put out his money for the purpose of
reaping illegitimate profit.
The Loan (7DANCEL7OR wished to put this point to the con-
sideration of CounseL—Suppose he (the Lord Chancellor) had
money in r country bank ; that the hanker sent him six per cent.
for that money : if he were to send back the six per cent. and
desire him to return the capital, that would be perfectly 'fair ; but if
he were to receive that six per cent., would not his receipt of it be
an adoption of a contract to receive that exorbitant interest, and
amount to an act of usury ?
Sir. HART denied that any knowledge whatever had been con-
veyed to Mr. Grimstead of his having receives! exorbitant interest.
He had throughout been led to believe, that his claim was a bona
jitk claim, and he concluded by the expression of a hope that his
Lordship would permit him to prove before the commissioners of
bankrupts.
Mr. HEALS) followed on the tame side. As his Learned Friends
who preceded him had so fully opened the petition, it remained
for him, as junior Counsel to his Learned Friends who would
follow him, to direct his Lordship's attention to nuts of the evil-
dence, pointing out the unsatisfactory manner in which his client's
rights had been dealt with. Ile would premise that his client had
a right to appeal front the Vice-Chancellor's direction of an issue to
this Court, not only because there really existed no evidence to
warraot such a direcion, but besides, because the case itself had
not been discussed before the Vice-Chancellor directed an issue.
the immediate question now before his Lordship was, whether
Mr. Grinstead be or be not allowed to prove his debt before the
Commissioners, and he would select such parts of the evidence
only as immediately bore on that question. lie would rot con-
sider this question as if a new trial were now sought for ; he
would only presume, that the late trial vies not conclusive of the
case, and would discuss it upon the evidence existing at the period'
of the original application to the Vice-Chancellor. In reference to
the items an the pass-book he would admit that there were several,
which, taken separately, would seem to hear the construction of
usury, but which were explained in a subseyient part of the ac.
count, and cleared those items from such an imputation. The I
I usurious contract was inferred (*min the circumstance of the keeping I
of the book by Grinstead Bet if it appeared that the principal
did not examine it, then the charge of usury could not be sue-
tained. Suppose it were proposed to bhn by an agent, " Give me
1,8(101., for which you shall receive from me an nnnuitv. amid ton
shall consider me the grantee of the annuity until I shall purer ale
one for you." Might not such a contract have taken piece, and
might not these items be accounted for, on the supposition of
such a contract, and not on an usurious one. A contract
such as that he now suppoeM, was not inconsistent with sense,
and he had as much right to infer it as his learned friends
opposite had to infer an illegitimate contract in she absence I
of any evidence to sustain a charge of usury. Supposing the book
to be tight, and supposing it to warrant the infirrence of an
usurious contract, yet it warranted the inference of a different and
more probable contract. He would then refer to the evidence,
which all went to remove the character of usury from the contract,
and to sustain the one which he (Mr. II.) alleged it to possess.
The first part of the evidence to which he would call his Lo-dship's
attention, was the evidence of Mr. Gibbs, on the Pith of October,
Itel, before the commissioners. The account which he gave then
was, that the manner in which he satisfied 31r. Grimmest' its to the
disposal of his money was, that he set down the investments
which he had made in the book as they appeared in it. 31r.
Gibbs further said, at his examination, that Mr. Grinstead did not
inspect the books, and he (Gibbs) soon discovers, that (trimmed
knew nothing of accounts. The evidence of Gibbs went on to i
stew, that these entries were made with a view of inisleadieg
lirlinstead. He would next refer to the evidence of Grim:dear!,
which, us he was the comp?* nant, his evidence should be received
with great caution. His examinaticn tack place on the 24th of
October 1821 ; he was asked, if he believed if all the money
transferred by him to Howard and Gibbs wits vested in annuities;
to which he replied, he did: and added, that Mr. told

him, that he had so laid h out, alit he had the usennty-decdi ups
those annuities in his posarision, and that Mr. Gibbs furnished
him with the amount of the annuities, and of the peones who
were the grantors of them. This was strong evident*, if uncon-
tradiettd, of his belief of the nature of the terms an which Ho*ard
and Gibbs held his money, and there was no evidence at all at va-
riance with this declaration of his belief. The balante which Mr.
Orimatead there claimed to prove, was 311,0001. Mr. Grinstead
declared, that he never east up a page of the book in his life: and
that he abstained from doing so, from the unreserved confidence
which he reposed in tha bulb-rums. It was his belief, that Howard
and Gibbs had no money of his that was not laid out in annuities.
The Loan CHANCELLOR said it was important that this evi-
dence should have been givtn at the trial. It would seem from
this evidence that Howard and Gibbs held the money, which they
represented to lirionstead to have been laid out in annuities. Sup-
pose any of those persona whom thee represented to be tNIIIIMS
of annuities had died, Howard and O fhb* would have retained the
money, which they misrepresented as laid out in the purchase of
annuities, and Mr. Orimstead could not •have recovered it from
them.

-lie.. IfEarn resumed. lie proceeded to read other paauget
from Mr. Grimatead's evidence, with a view of Athewing that he
had not the slightest notion that he entered into a usurisus con-
tract with Gibbs; and that, if such a convect bad been Proposed
to him he would nbt have enteral into it. lie considered 10 per
rent. for annuities may entdvaleit to , per cent., on account of the
risk Which he encountered. The Learned Counsel next referred to
parts of Gibbs's teniusany, which corroborated the passages be had
previously read from Grimsteod's evidence.- in the subsequent
examinations of Mr. Grinistead, he repeated materially the evi-
dence already read ; he added, that the expectation of receiving
10 per cent. was not the reason that induced him to abstain Ikon
examining the books; he abstained so solely from his confidence in
the bankrupts. Not only was the evidence of .Mr. Grimstead un-
' contradicted by the testimony of others, but, king as it was, rut fee.
' quent as were the examinations to which he had been subjected, there
was no important variance in any part of his evidence. Gibbs even
admitted that he represented the securitim to be ready, and the
parties to be urgent for the money. The Learned Gentleman pro-
ceeded to read a large marts of documentary evidence of the clerks
of Howard and Gibbs, all of which tended to disprove the charge
of usury against Mr. Gtimstaid. As the whole evidence, then, sus..
minet the original proposition, he laid down that two inferences
' might be drawn from the book : one, that a usurious contract
had been formed between the parties • and the other, that no such
contract had at any time been entertained. As the latter inference
was sustained by the entire evidence, and the former unsupported
by any testimony, he (Mr. Heald) would conclude with the expres-
iron of an anticipated conviction thus hit Lordship would grant
permission to prove the debt , before the Conituiesionses ; and that
he would dad with it as when if came in the first instance berate
the Vice-Chancellor.

Mr. .MON TAG L'E followed on the same side. After the opener
of this petition by his Learned Friend, the Solichor_Oeneral, and
after the unanswerable arguments upon it by his Learned Friends
who followed him—after the hit vest which had been slimily
stored up, there remained but little for him to gleam. The Learned
Gentleman then complained of the hardship which had been done
his client, by sending this cue to a jury ; for jurors he entertained
the highest veneration—they were the best safeguards of the liber-
ties of this great nation—and looking at the armorial bearing of
his late friend and benefactor, who was the champion of as Trial by
Jury" (The Learned Gentleman here pointed to the armorial en-
sign of Lord Erskine, painted in Lincoltes-inn Hall,) he was filled
with respect and reverence towards it. But useful and salutary as
such an institution may be in cases Of criminal prosecution, in
cases whicl....garded the liberty of the subject, he was of opinion
that a jury was not always the most satisfactory tribunal to which
civil cues could be referred. After having pointed out many
cases in which equity ,jurisdiction was preferable to a reference to
a jury, and having shown instances of great injustice which had
occurred to various parties, titan not having their suits disposed of
at equity, he begged to call his Lordship's attention to the last
page in Me WO on which the whole of Grimstcad's case rested.
The whole of the sum now claimed, and the names of the moult-
I ants, were there stated. Every name and every sum there inserted
' was a false entry, and an imposition practised on Mr. Grinistead.
I After such an imposition, he would ask, was there a lawyer, or a
merchant, or any man in society, who did not think that Mr. Grim-
stead was entitled to recover the whole amount of the money which
had been represented to him to have been laid out in annuities, or
at least to the privilege of proving his debt ? The Learned Gesitk-
man here read most of the evidence which had been given before
the Commissioners, and agsin recurring to the principle which
I should regulate the conduct of a judge in detemdning causes, be
concluded by reading a passage from one of Lord Bacon's essays,
on the subject of an impartial judication.
The Loan CHANCELLOR, at the close of the passage which
the Learned Counsel read, said he would then retire to meditate on
what Mr. Montague had read. lie intimated that be would re-
sume the hearing of the cause to-morrow.