The British Press; or, Morning Literary Advertiser.
London, England, 1825-11-22 00:00:00

COURT OF COMMON PLEAS.

MIDDLISEX CAVfEs TO IZTIIIEI3..T THE THIRD SITTING
IN MICHAELMAS TERM, TO-MORROW.
Young T. Curtis. I Doe v. West

COURT OF EXCHEQUER.
IN THE EXCHEQUER CHAMBER, THIS DAY.
For Judgment—Shrewsbury School v. /Haddock.
Postea—Wing v. Murrells.
Part heard—by order—Petre v. Well*.
Part heard—Miller v. Jackson.
On Sequestration—Hamilton v. Earl of Strathmore.
CAUSES.
Price v. Spencer I York v. Middle- Evans v. William*
Ilugo v. Job burgh Bamford Archer
Dean and Chapterof Atkinson v. Hutton Ilossingham v. Boar
Fielder v. !Hunan Gibson v. Butler.

LAW INTELLIGENCE.

COURT OF CHANCERY, MONDAY, Nov. 21.

PRACTICE OF THE COURT.
IN THE HATTER OF PAISELY.
Mr. HORNE stated that a petition ,in th:a cause had been struck
out of the paper, as appeared from the notes of Mr. Peneon, be-
cause Counsel were not in attendance when it was called on. The
okject of his present motion was to have the petition restored.
Mr. HEALD said that the entry alluded to was not as strong evi-
dence as an affidavit. The fact was, that Counsel did attend to
oppose the petition, and it was regularly dismissed. He having
occasion to leave town, gave his briet to Air. Rose, who was present
on the occasion. and made an effectual opposition.
The Loan CHANCELLOR uid, that in the other Court (the
Vice-Chancellor's) the practice had obtained of presenting a
petition to restore a former one which had been struck out. Now
in a case of this nature, if neither Counsel nor Solicitor attended, he
did not see why the solicitor alone should pay the costs. If, in-
deed, the counsel attended without the solicitor, then perhaps it was
fit that the solicitor should be called on to pay. But according to
his experience the client had to bear the expense whatever the form
of order was by which the petition had been struck out. He felt
great reluctance that if a petition were sought to be restored the
suitor should be put to the expense of presenting another to effect
such a restoration, anti thought it quite enough that an application
to that effect should come front the bar. His Lordship merely
dered the matter to come on upon a future day, counsel,then or.
stating why the petition was to be restored.
Mr. MONTAGU said that his Honour the Vice-Chancellor had
made an order that no petition struck out for want of attendance
shall be restored without another petition.

MAGDALEN COLLEGE V. SIBTHORPE.
The SOLICITOR-GENERAL alluded to this cause, which had
been before the Court on last Saturday.
The Lonn CHANCELLOR said that if the bequest to the Uni.
'frail were to be looked on as a gift to a corporation, then it must
necessarily be void under the statute of Mortntain, but it might be
good if the College were merely the appointees to a trust for cha-
ritable purposes. Another question then presented itself, which
was, whether, in ease the bequest were for charitable purposes,
the Attorney. General were not a necessary party ? I wish (said his
Lordship) you would consider and point out any case to me which
wouldjustify our going to work without the Attorney-General.

VICE-CIIANCELLOR'S COURT, IllowoAv, N0v.21.

SIMON V. lIIMIERT.

JUDGAI ENT.
His Honour the VICE-CHANCELLOR proceeded to pus Judg-
ment in this cause thin morning. This was a ease in which a bill
had been tiled by the plaintiff, a merchant hi New York, against
Mr. Hibbert, surviving trustee to the mute of the late Mr. Tharpe,
of Jamaica. It appeared, that in the year 1795, the dealings be-
tween the parties commenced which gave rise to the present pro-
ceedings. Mr. Tharpe, who was then a Jamaica merchant. entered
into an arrangement with the plaintiff's house, at New York, to
supply him with provisions and other commodities, in return for
which, Tharpe was to remit rum, the produce of the plantation,
to America. This course of trading was agreed on, and continued
without intermission till the year 1800, when Mr. Tharpe came
to England, leaving a person, of the name of Green, manager of
his estates in Jamaica. Green carried on dealings with the
American house as before. In 1803, Tharpe died, and, by will,
left his property in the hands of blesses. Green and Simon Taylor,
in Jamaica, and Messrs. ilibbert and Simon Clarke, in England, I
as trustees for his grandson, till the latter should have attained hie
2411 year. The English trustees proved the will and accepted
the trusteeship : Mr. Green remaining in Jamaica and transacting
all business relative to the plantation, as before. The connexion
between him and the plaintiff in New York still continued to sub-
sist down to the year 1811, when war was declared between
America and this country. About this period, it was ascertained
that the remittances of rum from the plantation did not equal
those of provisions sent by the plaintiff, and in consequence, a
balance accrued in his favour, for the payment of which the pre-
sent suit hat! been instituted. In 1812. Mr. Green died, and
Taylor undertook the management of the estate, which he at-
tended to till the time of lip, death, which occurred shortly after.
From 1812, down to 1815, the plaintiff had no opportunity of
enforcing his demand, in consequence of the hostilities then sub-
sisting between the two countries. In 1816, a suit was commenced
in Jamaica, in his behalf, but it failed, owing to its principles
not being rightly understood. On failure of the legal applica-
tion, plaintiff was advised to appeal to the Privy Council against
the decree given against him. But his law advisers perceiving
that proceeding not likely to be wore successful titan the other,
deemed it the more correct way to tile a bill in Chancery against
Mr. Hibbert, the trustee, resident in England, to compel him to
pay the balance due out of the produce of the estate.
On the other side, it had been contended that Mr. Green, who
conducted this transaction, was personally liable for the amount of
balance due upon the account between the parties.
The VieE-CHASecELLOII decided that the estate was liable, and
the trustees should meet the balance out of its produce, as far as
that would extend.

It was intimated that very little satisfaction was likely to be ob.
tained in that manner, as a sum of 70,0001. was due to the consignee,
and the estate was insolvent.

HILL V. REARDON AND OTHERS.
In this case, which was one arising out of the claims of British
subjects to compensation for losses in France during the revolution,
arguments of counsel were heard.
The claims of one of the defendants (Dcvereux) as legal repre-
sentative, under a will, of Mr. Fanning, a British emigrant, who
had acquired property afterwards confiscated in France, were ad-
misted by the Privy Council and the Commissioners appoinied
under the convention of 1814, between this country and France, for
satisfying the claims of British subjects whose property had been
put under sequestration. The plaintiff (Mrs. Ann Hill) filed a
bill, stating her claim on the property so adjudicated, on the ground
of relationship to the testator, and praying to have the decision of
the Commissioners and Privy Council set aside.
Mr. HART appeared for the defendant (Devereux), and argued
against the jurisdiction of the Court, denying its authority to re-
view the decision already made by his Majesty in Council.
Mr. St st eXixsoir followed on the same side.

Mr. FOXIMANQUE, for Mr. Reardon, contended, that the deci-
sion of the Privy Council was final, and could not be reversed by a
coon of equity.
Mr. RouPELL argued to the same effect.
The SOLICITOR-GENERAL, for the plaintiff, rose to reply,
when

- The COURT intimated, that as their presence was required in
another place, the arguments ma•t be resumed to-morrow.

COURT OF KING'S BENCH, WrarxixsTEß,
31uxuAr, N0v.21.

DOIC ON TUE DEMISE OF --- V. DYKES.
The ATTOUNEY-I;ENERAI. moved the Court to change the
venue in this action from Cumberland to Derbyshire. He moved first
on the general ground that thin ejectment involved the title to a large
property, in the result of which the Lord Lieutenant of the county
and other gentlemen of great influence were deeply interested. He
moved also on the :note special grounds disclosed in his affidavits.
It was stated in them that this cause was sent down for trial at the
last A s!,izem that on the commission day the High Sheriff, as
usual, 'gave a dinner to the gentlemen summoned to aerve on the
Grand and Special Juries ; that at this dinner were present many
of the special Jurors summoned for this trial, and also the defend-
ant Balfantyne Dykes himself, a gentleman of great property and
weight in the county. After several toasts had been drank, Mr.
Dykes retired from the festive hoard, when the following toast was
proposed and drank with great enthusiasm. many of the Special
Jurors in this GUM being still present.—•• Ballantyne Dykes, and
may he Sileeeed in the cause in which he is engaged." The lessor
of the plaintiff; upon being informed of these circumstances, jaunt.-
' diately withdrew the record, front the arprehension that he could
not have a fair trial.

The COURT iltettglit that this *is a sufficient ground for re.
twitting the venue to another county, but meld not see any reason
why it timid be removed to another circuit.

_ ~--~ . .

The ATTORNET.GENERAL Paid, that the motive for applpint;
to hive the venue removed to another cfreuit was this, that the niro-
petty of the partiep to this action was so scattered over ille adjoining
counties. He had no objection. however. re taking Yorkshire.
The Cover suggested Lancashire, and finally granted the rule
to change the remit- in the alterriative either to York oe Lancaster
as the parties lihntild agree.
THE KING P. JAMES STAMP SHTTON CHOIR.

Mr. CAMPICLL moved that judgment on the defendant shoot
be atresfett, or at least that it should be sutpended until aroths,
defendant. who was jointly indicted with him, should be brought
to trial. It would be recollected. he said, that the defendant Jame.;
Stamp Sutton Cooke, Richard Stafford Cooke, his brother, John
Russell Stills, Richaid Jenkinson, elan *mills &c. were in-
dicted for a conspiracy against Lord Stafford. Richard Stafflad
Cooke pleaded first in abatement, which plea was oveeruled, and he
then pleaded not guilty, but has never yet been trice. John Roe.
sell Mills has never yet appeared to theindictment. At the Assizes
for Gloucester, last spring a twelvemonth, the issue came on for
trial between our Sovereign Lord the King and the present defend-
ant, before Mr. Justice Park. The evidence Mitch was given im.
peached only James Stamp Sutton Cooke and his brother Richard
Stafford Cooke; and the Jury found, by their verdict. "Jame"
Stamp Sutton Cooke guilty of conspiring with his brother Richard
Staffithl Cooke; Richard Jenkinson not guilty."
Mr. Justice LITT LEDA L E here suggested to Mr: Campbet
whether lie had not mode a mistake in the words of the verdict.
Slr. CAMPBELL Mid, that he had no doubt at all about the
precise words of the verdict ; he could charge himself with giving
them correctly, but, if it was necessary, their accuracy could be after.
winds ascertained by a comparison with the report. If the Court
should be of opinion that his objection in arrest of judgment was
not well founded, then there would be no necessity for further hi.
quiry. He should therefore assume, for the sake of his arguments,
that he had given the verdict correctly. This case would then be
exactly the same as if the triad had been against Stamp Sutton
Cooke and Richard Stafford Cooke, and they had been jointly in-
dicted for the conspiracy, and no others with them. As, to conOti-
tote a riot there must be three persons, so there must be two to
constitute a conspiracy. Now, as the verdict found only the de.
fendant and his brother, Richard !Stafford Cooke, guilty of the con.
apiracy, and as his brother had not yet been tried, though he tray
be hereafter, if he should then be found not guilty. there would be
an end to the conspiracy. The cases, Mr.. Campbell admitted, did
appear at first blush to he against him, but on examination, he said.
they would all be found distinguishable front the present
Ile cited the Queen v. Herne, Strange, 195; the King:.
Kindersley„ Strange. 193 ; the King v. Nicholls, Strange, 1f27; and
the King v. Scott, 3 Burrows, 1262. This last was an indictment
for a riot ; two bad died before the trial ; two were acquitted ; and
two were found guilty. It was moved in arrest of iudgment that
two persons could not be convicted of a riot ; but the Court over-
ruled the objection, because, iron consist but that if the two wt.,
died had survived their trial. one, or both, of them might have
been found guilty ; so, that had all the parties been tried, threstiof
them might have been convicted, which would have supposted-the
indictment for a riot. This was clearly distinguishable from the
prevent case, where the Jury found only two persons concerned in
the conspiracy. The Conn, in granting hie application, could net
fall into any inconststency ; but if it should give judgment on the
defendant, and his brother Richard Stafford Cooke should after.
wards be tried and acquitted, then there would l'e a very great in.
consistency indettl, for the Court would, in that ease, hire given
judgment on the defendant for a conspiracy, which, in point of fact,
had never existed.

The Co t;RT (in the ahaenee of the Chief ingiee, who had/one
to London to alt at :VW Prins) granted Mr. Campbell a tale to
show cause.

--;:

MAGIIIA T. sracitatm.
The defendant in this ease is held to bin by the plaintiff' on an
affidavit sworn before the British Consul at Cadiz, that he owes
hid) 100.0001. .

Air. GunKEY, a few days ago, obtained a rule to show cause
why the defendant should not be duchargell on common bail. fie
moved for his rule on three grounds ; first that the British co il,/
at any foreign port wan not competent to administer an oath of this
kind ; that his office was purely commercial, And no way judicial of
ministerial ; secondly, that, if he was competen% he ought to have
certified that competency by an affidavit, the (hurt hate not being
able to take judicial notice of his competency ; Tiiirdly, that thi
amount for which the defendant hi held to hall is not described with
sufficient certainty, it being merely said to be 100,0001 sterling.
without saying sterling money of England. or Sterling money of
Spain, &c., and that, therefore, the affklavit tau void for tack*.
tainty.
Mr. SCARLETT and Mr. F. Pot.t.ocx showed cause on Satur-
day, but the Court being obliged to rise before the roinpletion of
the argument, it was again resumed this rooming. They princi-
pally relied upon a cue reported by Chitty, and the statute I
Geo. IV, ch. 87, sec. 20, empooering consuls to adtninister oaths
generally.
Mr. F. POLLOCK dimmer! the anteanlog of flatirtfertaterling at
considerable length. citing the 1, lostitute,Blackatonentommenth-
ries. Jacob's haw Dictionary, a liertetttn.tidd reedith Dictionary,
published some lime ago at Branswicki,aml miller lexicographic
authorities, to show that the wont " sterliog" never means "13ritiab
or any money but English money." Frbin all which they inferred
that the consul is entitled to administer In oath to hold a parson to
bail, and that the word sterling is a sufficient description of Englifii
money without any thing more.
Alr. GURNEY, in reply, referred to the commission of &consul,
as given in Beanie's Lex Nercatoria, to show that the duties of a
consul relate entirely to British subjects residing or trading in the
port to which he is appointed.
Mr. COIIYN followed on the same side at considerable length,
citing 3 31aule and Selwyn, 394 ; 3 Barn. and Ald. 301; to explain
the meaning of the word lording, and show its various applitattiohs
to the money of different countries; and he referred to, a.cue fu
Davis, 23, where it was very learnedly dischssed. Ifirittederfaiso,
that the Act of Gen. IV, empowering consuls to administer oath!.
must be taken with considerable limitation. and %h et it could not
be taken to comprehend a case like the present tiplaii hid been
distinctly enacted. -I
The Court, after consulting together for some time, said, that
they would consider of the cue, and give their judgment at L &tare
day.

COURT OF COMMON PLEAS. WEST*INSTri,
MONDAY, N0t.21.

TRIAL AT BAR-WRIT OF GRANT! ASSIZE.

TOOTE, PF.MANDANT--BACIrtLt, TENANT.
This is an action brought to try the 'right .of the parties to the
fee.simple of certain halide which have been in the usidistutbed
possession of the tenant (or, as he would be called in a personal
action, the defendant) for more than twenty years. Whereby the
demandant (or plaintiff) is barred of his remedy by ejectment, and
compelled to resort to the most solemn trial by jury that is knotrn
to the laws of England, founded upon the extraordinary writ
called magna atrisa eligenda. By this *Tit the sheriff is corn.
mantled to summon four lawful knights of the county, girt wilts
swords, to appear in Court to be sworn to elect and 'choose ttienty-
four other persons to be joined with them to make recognition of
the right of the parties; and of which twenty-four persons•twehe
must necessarily be present at the trial, who, with the tot.
knights, altogether form the (hand Assize or (heat Jury.
which must consist of sixteen jurors. In the propels ot:tier
action, the demandant must allege some seisin of the lands in q.ues.
tion in himself, or vise in some person under whom he elating, void
then derive the right from the person so seised to himself; to-which
the tenant may answer by denying the dernandant's right. am/
averring that he has more right to hold the lands than the demand-
ant has to demand them. And this right of the tenant being
shown, it then puts the dem:mdant upon the proof of his title. in
which, if he fails, or if the tenant bath shown a better, the demand-
ant and his heirs are perpetually barred of their claim ; bat if he
can make it appear that his right is superior to the tenant's, At
then will be entitled to recover the land against the tenant and his
heirs for ever. It is not necessary that this action should be fetid
at bar (that ts, before the four Judges in Term), nor is it the ooly
ease in which trials at bar may be had ; but the importance gird
solemnity of the proceeding, and the decision of the Jury being con-
clusive on the parties and without appeal, make such a course the
most prudent one.
This cause was appointed to be tried to-day, and the Court *al
crowded at an early hour to witness the novelty of the thing. there
not having been an instance of a trial of a similar kind for a gut:
number of years.
As soon as the Learned Judges had disposed of some prelimioary
business, the cause was ordered to be called on.

The Secondary proceeded to call ever the jury panel.
Sir Richard Millie, Knight, and Sir Peter Laurie, Knight
answered to their names; but on the name of Sir George Aldericni
being called, _ _ _

Allentleman stepped forward and stated, that he bed just lett
Sir George, who was confined by ill health to his room, and that •
would be very dangerous for him to attend the Court.
The Loan CHIEF JUSTICE desired that the gentleman night
be sworn to the truth of his statement.
The oath was accordingly administered and the excuse allowed.
When the name of Sir Janie, NVillisms, Knight, was called, no
person answered.
The officer who summoned the worthy Knight was then swore
his having done so at Sir James's house, Kentish-town, on which
occasion he was informed that Sir James was in Derbyshire, and
was not expected to return for three months.
'rite LORD CHIEF. JUSTICE said, that the Sheriff was lent
blameable in not informing the parties or the Court of that ciretrm
stance, as they might then have summoned some other kbigat to
serve. As it was, his Lordship was of opinion the cause could not be
proceeded with. there being only two knights present, end thefer
requiring that the jury should at least consist of four. - • •
11r. Sergeant ItosawnutT (with whom was Mr. Servant
TADDY), on the part of the demandant, submitted that it was no•
essential to the legal constitution of the Grand Assize, that then
should be four knights, provided that there were sixteen jwror:
altogether, who should have been chosen and elected *bW•Yout
knights. In support of this position the Learned Sergeant quoted
Glanville and Littleton, and entered into those authorities at cod
siderable length.
The Loan CHIEF JUSTICE was of opinion that the "whorl
ties referred to by no means sustained the point contended for.—
Avib, em R,il ;taloa, (who perhaps wan the best atathotity ea the
sebjezt) said—there must held jurors of necemity—isleet, twelve
esquires or gentlemen, together with ism knights. lila Lord
ship, however. would not prevent the tlernartdant from-proceeding
in ewe the Counsel nn the other side should not object, althougii
he did not like to give a judgment which he thought was ertine
owl, and which would necessarily appear upon record. rhating
therefore, to be his opinion. that, if the dernandant did go on. ti..
absence of the two knights would be grouhd for a wait of error,
and that it would be at has 04n peril to do so, his Lordship•iiicrild'