The British Press; or, Morning Literary Advertiser.
London, England, 1819-07-06 00:00:00

MIDDLESEX SESSIONS.

The shove Sections comm-Deed yesterday it
Hicks's flail. before F. Coss; Eq. Chanson.
•ad • Bench of Magistrates.
No case of interest to the 'public octorretl.

IfiELAAD.

COURT OP ICING'SBENCH, DUBLIN,
TIIVILSDAT, Just 17, 1.19.

pct. CALDWILL ROGAN V. JANIS STAIMITOV.
This was an action for money had and received.
Mr. GOOLD briefly stated the ease :—The
plain-
tiff. Ha gan. had two judgments against Frederick
Edward Jones' the patentee of the Theatre-Royal.
for 2061. 12s. being the amount of one year and
half, and half • year's annuity, chargeable upon the
Theatre. and costs. Mr. Mamie, Fitzgerald was
mortgagee and trustee, by deed. of Mr. Jones's
property p he had been frequently applied to by
Hogan to pay the amount of the judgments. and to
continue to pay the annuity, as being an encum-
brance upon the Theatre. This Mr. Fitzgerald
constantly refused to do; hut. en the 4th of April.
1817, having at length considered he was bound
to do so, he drew a check on Ball's bank for
2061. Its. in favour of the defendant, Jame% SUM
pleton, who is the Treasurer of the Theatre. with
instructions for him to pay the amount to Hogan.
It will appear that Stapleton received this money at
the Intik, but did not pay it over to Hogan, as
directed. On receiving the cash, he wrote his
name on the beck of the check—and there is also
a memorandum on it, in his own hand-writing.
stating that the money was intended to pay Hogau's
rent. It was then evident that Defendant had re-
ceived the money for the use of Plaintiff, to which
purpose it had never been applied. Mr. Goold
then said, that Stapleton having diverted the money
into a channel different to that intended by Mr.
Fitzgerald. lie was clearly responsible to Hogan for
the amount.
Mr. Galbraith examined.-14 a clerk in the bank
of Messrs. Ball and Co. ; knows Fitzgerald's
hand-writing; the signature to the check is his; he
paid the amount of- it ; knows Simpleton's hand-
writing, and the name en the back of* ho believes
to be written by him ; he likewise believes the me-
morandum endorsed on it to be also Stapleton's
writing.
Cross•eztunissed.--Does not know whether the
emisesemetet was written after coming out of Ball's
bask; does not know who got the check out of the
bank.
Mr. Serjeant Joe, fur Defendant. said, that this
was an attempt to charge this young man with a
sum of money he ought not to be liable to. Ile
was Treasurer to the Theatre. and all the monies
received were daily placed in bank, to the credit of
Maurice Fitzgerald. who. in 1814, was appointed
Trustee. under a mortgage and deed of time. ez-
ecuted between him and Frederick Edward Jones,
subject to all disbursements and outgoings of the
Theatre—these disbneseinetite were made by Fitz-
gerald's check., in favour of Stapleton. who appro-
priated the sums so received accordingly. as he was
directed by trusteeentering all penknives in the
books of the Theatre, which were kept in his office.
open to the inspection of all the Proprietors. From
time to time the Trustee called fur and received
acknowledgments from Mr. Jones amid the other
Proprietors for the mosey so disbursed. Among
these disbar /cinema was an annuity to the late Mr.
Daly, of 801. per annum. which was a charge upon
the Theatre. and which Fitzgerald should have paid
regularly. but he refused Melo so..whereopon Mr.
Hogan, who bad purchased the annuity. instituted
proceedings eeriest Mr. Jones. and obtained two
Judgments. in Easter aunt Michaelmas", 1816.
Afterward; Mr. Fitzgerald. upon consideration.
*might he was bound to pay the annuity, sod ac-
cordingly, on the 4th of April. 1817, he drew a
check in favour of Stapleton. for QOM Ils. to pay
Hogan for one and a half, and half a year's rent, and
the costa. This check was given to Stapleton after
book hours, and therefore he was not able to get
it cashed • but on the neat del. the sth, be applied
at the back, and received the amount, sod wrote his
name on the back of check ; he had hardly gut it,
when he was sent for by Fitzgerald. who asked him
had he filyed Hogan; he replied he had not, but
that he had the money then in his pocket fur that
purpose. I am glad you dial not, returned Fitzge-
rald. as, on consideration. I find it is money I am
not bound to pay, therefore you most not pay it to
Hogan, but give it back to me. Stapleton accord-
ingly, acting as his agent 40 II the occasion, without
any hesitation repaid him the mosey ; and having
given him credit for the amount in hes books. he
went immediately and debited him for the same
sum. Stapleton afterwards furnished him with the
account of the disbursements. in which this sum
was not. of course, included, although the parti-
culars were stated as they occurred. and Fitzgerald
called on Mr. Jones and the other Proprietor., on
the 4th of May following, for the settlement of
these diabursements, which, after deducting the
406114+. amounted to the sum of 1.2,963/. 18s. 41d.
for which he received a receipt. In 1819 Mr.
Hogan threatened Fitzgerald with proceeding", and
Fitzgerald asked him,withseemingsorprise..• What !
did you not get the money ? Why.) gave Stapleton
a check for it." Hogan then applied to Stapleton,
who said that Fitzgerald had certainly given him a
check for that purpose; but that he afterwards
changed his mind, and got the money beck !ruin
hint. Hogan. seeing that the check was made limy-
able to Stapleton, saw that he could not maintsita

his action milers Fitzgerald could contsiukto get
Stapleton to "Dow for !what purpose the e*Weic was
Waned. Stapleton had been confined ,mitt a broken
kg, and es armor as he could go nut, alat'nt Otte be-
gi .. hag of March last. he wall Stilt trf by Fitzgerald,
who mid, t• God forbid I should wrong yon or any
man. you may have given me the money bad', bat
I don't recollect it. At sill event., I inn sure
wrote this check foe that purpose, and for my satis-
faction you can have no objr;ction to wine on the
hark of it that it was drawn fir the 'impose of
paying Hogwe's rent. Stapleton cottiplied with his
desire, sod Fitzgerald then finding he had esidence
enough to saddle this unfortunate young man with
the debt. he goes to Hogan and tells hini you have
only now to get a witness to prove Stopletun's baud.
writing, soil you have him in for the mone‘y.
Mr. Maurice Fitzgerald. examined by Mr.
BI.ACORURNZ, but not swarn.—Do you recollect
ever having seen this balance in this book ? Noy 1
have no recollection of it at all. Have you got a
receipt to the amount ? 1 don't know ; show
you all the receipts I ever got..—[l.lre some con-
versation. took place betaern ttssiotel on both
sides, whether they had a right to qtte.tian Mr.
Fitzgerald without swearing him?—lie ',was then
sworii.].—Does not recollect at whet tine he drew
check to pay Hogan'. rent ; it was a great many
years ago; it was two years ago; is trustee of a coo-
siderable part of the theatre ; was at that time in
receipt of the monies. Stapleton was treasurer, and
lodged the money in hank to his credit ; has no
so collection of having paid Mr. Hogan any money
afterwards ; but sure if he did Mr. Hagan can tell ;
he does not recollect it ; believes he amen, though
he does not treollect it. Stapleton kept all the
entries in the books; he confided every thing in
him; does not keep books himself; has a sort of
• memorandutn-book its which lie used to get Sta-
pleton to make entries; dors not know whether
they were taken from the books. Do you know any
other way Stapleton could make those tone. ?
I do not know any other way ; but this I know to
• certainty, and I swear it, that Stapleton has
made the most fraudulent entries against me.
and afterwards made me pay for them. When did
Stapleton write thel memorandum endorsed on
that check ? About two smiths ago; 1 asked
him to set out on the hack of it what he gut it
to (ray, as it appeared from my honk that it was
for the purpose of paying Ilogon ; lie said lie had
no objection to do so. Did lie say lie paid the
money back to yon ? No, not at that time. (Mr
Bleckborue then said, if that entheseinent was ex-
punged as it ought, which had been thus obtained.
it would stand as money had and received for Fitz-
gerald and not fur Hogan. The Court said that was
a question for the Jury.) Does not recollect speak-
ing to hint on the subject, hut he might; never
weut to his lodgicgs in all his life; got s receipt
from Messrs. Jones and Dalton. in May. to 1817. to
the amount of 14,962/. 18e. 41iI. How was that
sum stated ? It was taken from Stapleton'. vouchers..
When you took that receipt was there an account in
writing ? I don't recollect, it is a great while ago;
it is two years ago ; I only took a receipt that year ;
there are thousands due to me by the theatre, one
penny of which, am informed, I will riot receive
these seven years; and I have now three snits in
Chancery for the recovery of my money. Are the
balmier and receipt of the same amount ? They
are. Did you ever see this book before ? I don't
recollect, but I might have seen it. Did you ever
make any payment to Mr. I iii the protester
of Mr. Partly P—No, I don't recollect thin I did;
but sure if I did Mr. Hugau can tell you.--
laugh.)
Cruss•examitsed by Mr. Goot.o.—Were you paid
the amount of that check by Staple. twat day ?
Upon my oath I was not !
George Partly, Erg. examined by Mr. MART L EY.
—I. a proprietor of the theatre ; was so at the
time Fitzgerald became trustee ; was present with
Mr. Crampton at Fitzgeralirr house, to meet Mr.
Hogan and to settle aecou ins in or about September.
1817; Mr. Hogan was there ; there was a !tree
setts of the annuity due to him over 280/. ; his
claim was frequently eneutioned : they could not
pay bint the entire. as they wanted to make soon
sort of a dividend of the profits ; it was suggested
by Fitzgerald and agreed to, that Al r. llogan should
get 801. the amount of the current year to quiet him.
Mr. Hogan lamented that nut of so Loge a sum
due lie was only to be paid one )ever suavity;,
Fitzgerald diets said, you have execution against
Mr. Jour.** person for 11w resnaiiider, as you have
judgments for one year and half, and half a year's
minuity ; Hogan took the mousy, and gave a stamp
receipt for tint He got the current year to quiet
him, and the arrear was left against Alr. Jones's
prison. Are there books kept lir the Theatre?—
Yes. in the Treasury. they are open to the iuspec-
lieu of the Proprietors. Were they subject to the
inspection of Fitzgerald ? Yes, and they were cote
stoutly inspected by him. •
Mr. BLACILOURNIt contended that as these books
were between the treasurer Nod the 'proprietors of
the theatre. and the trustee, ati:l as the entries iu
them could be. corroborated by oral testimuoy, that
they should be received as evnleure in this case be-
tween Stapeltoti and Hogan, as he ii "" l""ty la
them ; they only discharging and charging is between
Stapleton said the proprietor mid trustee; Fitz-
gerald had furnished several accounts and received
receipts frequently since the time of this transacti tttt
11 i ell was Soot mentioned by hint in J. ry, 15119;
lie hail received a receipt fur 12.962 f. 185. 41d-
which might to have beets 13,1691. Kn. 41<I. if this
2061. tie. lord not been deducted. mid nits would
appear by the books from whence the stotetsient of
these very disborsements were extracted. Accord-
ing to Air. Pardy's testimony Fitzgerald paid Mr.
Hogan eel. which he had not the slightest recollec•
Lion of. and that, in order to quiet him, saying he
might proceed against Jones for the judgments.
Now, if he had previously, through Stapleton. paid
Hogaisilo6/.125. there would only have been ea the
amount of one year disc, said there would be no our
casiou of requtatiog hies to take that on account,
when he was taut entitled to receive inure; there-
fore, it appeared from Mr. Partly** evidence, that
Mr. Fitzgerald had acknowledged that the judg.
merits were due to ilogau lung after the trairsac-
tion of the check.
The Con Kr ass of opinion. that the hooks were
not ligal evidence, but took a note at Alr.
Black-
burese'r desist.. that he had tendered thesis.
The Contit then directed the Jury to find fur the
Plaintiff 206/. which they did.