The British Press; or, Morning Literary Advertiser.
London, England, 1826-01-26 00:00:00

NUNOZ V. DE TASTNT AND CO.

In this ease the plaintiff as representative, according to the laws
of Spam, of certain persons, had filed a bill to compel the dc.
terdants to pay a sum of six thousand pounds received from the
startles represented by the plaintiff. The defeodants demurred on
t!•e deficiency of the bill, whisk omitted to introduce a party that
ought to he before the Court.
:ill. Kot appeared to support the demurrer, and Mr. Bic !IL &-
STITH in oppraition.
The particulate of the transaction, as appeared by the bill, were
the ft-Coring :—ln the year 1813, four persons of the names of
Dares, Beaver, Roza, and Boson, formed a partnership at Barce-
lona, the former being the active, and the two latter. dormant
partners. Soon after the firm had been formed, a cargo of Salt
meat was shipped to. and disposed of, at Cadiz. The produce,
amounting to nor BOPOL. was secured by Darges, who awl:dent
the sale, and by him remitted to the defendants in Lootion, for
the, purpose of purchasing British manufactures, fur the bene-
fit of the Barcelona firm. Dames and Beaver were both
drowned before the money thus in the hands of the defendants had
been applied to the purchase of British goods. Roza and Boron
Ore renounced their rights as partnere in the firm, by virtue of a
low prevalent in tep tin to the following etTect :—that a dormant or
naorivirou. partner might retire from the firm to which he be-
longn.l. on forfeiture of his originally subscribed capital; that he is
thereby rendered imsponsible for any subsequent engagements of
the exicern : and that he is entitled to claim, .as a creditor,
whnteter stint he may have subscribed beyond his original share.
Roca died in the year 1116, and Boson did not long survive. The
dettas of all the parties having thus annulled the partnership, the
trate according to law became possessed of whatever interest might
:,sate therefrom. The plaintiff was appointed its agent, and in
rmtt of such commission preferred to this Court a claim against
tie tiatendants for the money which had been placed in their hands
el the part of the Barcelona firm in the year 1813. The bill then
Led did not state that the plaintiff was the representative of Roza,
one of the tircessed original partners. On this omission the de-
riurrer was founded. _
. . . .

The Counsel fur the plaintiff argued that the renunciation
rh‘cli had been executed by Rom, rendered the introduction of
him before this Court a matter of superfluity.
The Vlcr.Cuaxc ELL° a adverted to the principle of the Spa.
nish law which had been quoted by Counsel as bearing on the
Actientease. 13y the provisions of that law s dormant or anony-
mous partner wax permitted to resign, on condition of renouncing
the capital which he had originally subscribed to the firm in the
capacity of a partner ; but he still had a lien on the concern for
-whatever sum he might have advanced for the use of the frrn,
metre than the proportion prescribed to constitute him a partner.
A pdltibility, therefore, existed that kora might have made such
ad ear.co ; on this supposition be would necessarily be a claimant
un tta-estate, and ought therefore to come into Court as a person
i,lterested in the decision of a suit in which the firm wes a party.
Tie two active partners having died, and the two dornyint having
renctoneetl, the Barcelona firm was insolvent according to the laws
nit Spain. In this emergency the State managed the property for
tie beacfit of-the creditors. The plaintiff must be deemed the
',rent of the Spanish State, and having neglected the represenia-
tion of -frau (who, according to the view of the Spanish law,
w'gist be a creditor), his Honour confirmed the demurrer, with
tease to the plaintiff to amend.

O.:UHT OF KINO'S BENCH, WEDNESDAY, JAN. 25.

THE. NINO V. LISTEIL `

7.: r. (hIIINEY moved fora rule to show cause why a new trial
not be had in this case. He stated that the defendant was
the Inventor of so improved method of manufacturing wool, as
srsvof- the-machinery by which this process was effected. An in.
fo•atation had been filed against the defendant by his Majesty's
A ttorney-General, at the instance of a Mr. Haddon, a gentleman
I bad long carried on a similar rnanufacpre at Aberdeen,
upon what he (Mr. Haddon) was pleased to think the same pro-
...osic'erthat fire which Mr. Lister had obtained a patent. Mr.
selon's system was not introduced into England until about
NA months • since, when it was put in practice by a Mr. Ohlacre,
at licieester ; whereas the defendant had been in the possession
of Ms patent for three years, the particular object of which las'
tee suriglitening the fibre, combing by a particular iostrumens.
:Amen' from those generally used, and peeing it over heated
...Ousters, which tended to bring the wool tom a state of greater
aid finer texture than could be done by any other
means. At the trial. the Learned Judge (Mr. Justice Bayley)
Vought that Mr. Lister's patent had been anticipated by Mr.
1-!ttidort; and the cause was stopped. Ile (Mr. Gurney) had
ty contend that the two proceasse in question were essentially
different, inasmuch as the wool in Mr. Lister 's went through
ta.sle.srhkh was not to be found in that of Mr. Haddon's; and
the.ban teas supplied by the latter at a period later in the pre.
paration'than that of the defendant. which their Lordships would
:treys all go! ig on at one and the same time.
The Loan'entr.l Joanne said that he had paid some alien-
rico to the specifications, in the expectation that the cause would
tare come he!ore lino, and he was of opinion that the patent of
;dr. Haddon destroyed that of Mr. Lister. Frin'the evidence it
wet perfectly clear tiat he did not merely claim the application of
the heat, but of the general process and machinery used throughout ;
...tether it was dote at once, or whether the heat was supplied at
~6e, two, or three different times it did not matter; 'it could not be
cor.dileted a new invention. If the defendant considered that the
pa the wool through water entitled him to his psdent, be should
r.arsArtred it tin the, ground. He (the Lord Chief Justice) was
tt r...pision that. his Learned Droller had druid perfectly right.
fir. Justice lolropi and Mr. Justice Littledaie 'concurring in
Zhu+ opinion, the rale vas refused.
• SIZTT to. 'MLLE.

Me. MAI:RI-AT Was proof:tiding to state bis application to the
goon fee a rube to show cause why a new trial should not be had in
figjt oats who he was interrupted by
Tbls.LoaD CIUEr J u STILE. who said this was a cause rupeet.
isr the right of unarm carts in the town of Cambridge. Evidence
hat.bam. called to show that Cambridge_ had been an ancient
&maw, ondrtbat the eight of toll had originally belonged to the
finial% sod he (the Lord Chief Justice) was always anxious that
so MI& NW Ilse fullest investigation should be gone into. The
raird.ct fis this instanle was against the toll. Ills Lordship said he
was wartirsilarly.dusiroaatbat the whole of the case should be laid
Lefese his brother Judges for their opinion, and he wu the mare
adif34llls that this should-be the case from the circumstance that at
the load he laboored under considerable indisposition, which he
feared hs:l rendered hint unable to charge the. Jury with, that per-
apume y the cw-ti required.
Cone es-rerun uccopilingly to the opir.ion of the Judges.

TIER fitted 7. Iu raAIhu ATAPFOID COOKE AHD OTHERS.
Kr. PATIN*Tow appeared to show caulk egainat• rule obtained
last term by Ms. Campbell, fee a new trial in this case. He mated
tf.st she defendant had been found guilty of a conspiracy with his
throttler 11l 9..Jaines fitelopeintion Cooke, •
• The Loan 0114111, JUSTICE asked if Mr. Cooke was in Court, •
but tid not immediately appending, his Lordship said that be had
oP.cn hem these when' lie was nut ,wanted, but now that be was'
emagati ilk did not appear to be forthcoming. At this juncture,
however, Mr. Cooke walked on the door of the Court.
Mr. TAUNTON then went on to state his case. The defendant
Lad been Mein ded'ita en indictment with several others for a con.
Noirsey against Sir George Jernierghael (now Baron Stetted). Two
prsisi.w.ly appeared to sake their trials on that indictment at
Stafford, the desindsatellantea Stamp Sutton Cooke, and a person
of ctn. rame of RichadJakinons. The Jury found Jame*Stamp
F.u:tor. Cooke gailry of a conspiracy with his Worker Richard
Stafrogd:Cooka, the. object of the conspiracy being to delprive the
thee Rh (leave •Jarningham of certain lands and poseessioLs UT
Aicti4e was lawfully eatitle4, and Richard ilehicloton nut

guilty. Richard Stafford Cooke, who was Moe of the persona
named in the indictment, pleaded rropondeat ouster, that he was a
Peer of Parliament by the title of Baron Staffonl. This plea wait
over-ruled, anti he than plaided not goiltv. Ale. Taunton con-
tended, in opposition to Mr. Campbell, that in order to support a
verdict of guilty in a ease of conspiracy, it wan not necessary that
two persons should be convicted, though the law held that two
persons were neenatary to form a cm...piney. The !teemed
Counsel said thut the second count of the indictment charged that
the four defendants, Richard Stallion Cooke, James Stamp Sutton
Cooke, Richard Jeckinson, and Jame!) R. Miles, did break into
Stafford Castle. and that J. S. S. Cooln said he was agent to his
brother, Lord Stafford, to which situation he bad been appointed
by the House of Peers, anti committed serious ontragei is end
on the property of Sir Color Jerninghsm. Mr. Taunton
then cited eases to show that the punishment of ape ufrander
fora conspiracy might take place, although none otliege con-
I rented had been prosecuted to conviction, particularly that
of Kinnessley and Moore, in the le Strange, 1103. Kinnersley
and Moore were indicted fora it main offence; Kiniersley only ap-
peared, and pleaded to the indictment, anti was found guilty ; se-
vend exceptions were taken in arrest of judgment; the third was,
that in every conspiracy there must be two persons at least, and
that here there was only one, hut the objection was over-ruled. The
Learned Counsel said that if the second person should afterwards
surrender, and on his trial be acquitted, though that would go to
affect the first conviction, it would not be ground for the Court's
delaying punishment in cases, by the anticipation of such a result.
Learned Counsel then cited the rose of she Kind v. Isacbeills,
in which two persons were tried for a conspirecr, and theme died
before pleading; there also it was argued that it was necessary to
have the accomplice, but there also the Court determined against
the arrest of judgment on that account. '4r. Taunton then went
through several other eases to show that the low had never consent-
ell to suspend its mullahment on one offender for conspiracy, merely
because there wee another party in the indictment, who had not
been brought to Ifni, and whose trial, if it ever did take place, and
a verdict of nut- guilty recorded, would nullify the former pro-
ceeding. on the ground that in a charge of conspiracy the Jaw re-
quired it should be.brought to bear by the act of two pensom at
least.

Mr. CAMPBELL was heard in reply, and contended that he had
already cited the cows brought forward by Mr. Taunton, when he
(Mr. Campbell) opened the case, with one single exception. The
fact was, that Mr. Ric:lard Stafford Cooke had twice pleaded one
plea. which had been ocer.roled. butt the other still stood on record—
that Olen was not guilty, and that he might yet be put on his trial if
the prosecutor pleased so to do; if that was so, and if it took place,
and he were acquitted, as well as Miles, the other defendant, than
the conviction of the defendant, now on the hoar of the Court.
would be bad, and, he would he entitled to his discharge; and on
this paint it was that the present case differed from all those which
had been brought forward in the course of the argument.
The In, Cntar JI,STICE said that the question was,
whether the judgment in this case should be arrested. It was not
necessary to look at the finding of the Jury. mid therefore not ne-
for him tosay any thing upon that, but that they had found
rrhe7ict against both' hmthers. It had been said that Richard
Stailwd Ceoke had pleaded not guilty, but the net was he had
not so pleaded until after the verdict of guilty had been recorded
against the defendant. now on the Hon of the Court. It had been
said that Richard Stafford Cooke might- be acquitted; that might
he possible, though it was impossible to shut out the circumstance
that a jury had already found him guilty. though that li,ding was
irregular. The Lord Chief Justice was clearly of opinion that the
rule must be discharged.
Mr. Justice Ras Icy, Mr. Justice Hoiroyd. and Mr. Justice Lit.
tletiale delivered their opinions to the same effect, and the rule was
discharged.
Mr. TausyroN then prayed the judgment of the Court upon the
defendant, as he wa. Low present.
The Long emu t• it. sv re F Raked Mr. Campbell if he desired
to have the judgment suspended I As matter of favour, m upon rea-
sonable ground beirg shewn lie might apply—ouch a ground as
bringing Sir Richarit.Statibrd Cooke to trial ; btu at any rate he
had better take time to consider on this point. The defendant was
then amended to the custody of the Marshal.

WOOD AND WOOLKR.
Mr. Kelly applied to their Lordships for 3 new trial in this
ease. The trial had taken place before the Lord Chief Justice, and
the Jury found a verdict for the defendant, on the ground that there
was a partnership existing heoreen the plaintjand a person of the
name of Keene. He stated that he made thin application on the
ground that the Jury bad not been inkined what psrticular
description of partnership was allege.) in this case. There were
threeideseriptions of partnerships : one general, including all the
partners for all purpoaes whatsoever; the second, dormant part-
ner Ship ; and the third, partnership in particular works or publics.
tions ;—in either of the last two Keene might have stood. The
Learned Counsel cited several cases in support of his poshion,
when, _ . _

The I.OID CHIEF JUSTICE said that it watt dearly proved
that Keene was not a dormant partner; on the contrary, he was con-
ducting the business conjointly in every resptct, Wood signing
drafts, paying bills, and doing every set that a partner could do.
The fact was that there were reasons why the existence of this
partnership was kept back. If it was true as stated that the defend-
ant would not now pay any one for shot had been done by the
plaintiff; then they had brought, it upon themselves; they had placed
themselves in the situation in shiest they ulw stood; if they had
regulated' their affairs so as not to be able to recover at all, or pay
one, it was their own act, ar.d of which they had now no right to
complain.—Rule refused.

COURT OF COMMON PLEAS, WesrmixsTra„
WILDNESIMY, JAN. 2.5.

Sitiings in Baum

JENICIX, AND OTHEBs•v. VlDDot.rfi. ESQ., EIDTAIFF OF

HERFFORDSHINE.

This was an action brougiieagaiiisiitii.;heritrof Herefordshire,
for injury sustained and expenses incurred in conscvenee of an
alleged neglect on hie part, and false return to a writ which witb
giten hint to execute upon the plaistifli.. . .

o
It appeared that the party iuing out the wit gave instructions
to the SherU' not to execute it. and in consequence the return ton
es: inventor was made by the Sheriff', although one of the parties
was at the time in his custody in the county poi, and held the
situation of matron to that establishenent, and the other resided
within six miles of the place. A writ of outlawry was sued out
against the plaiutill; and it was for. the injury sustained the action
was brought.
The Jury found for the plaintiff; giting, according to the in.
structions of the Lord Chief Justice. such damages as covered the
expenses incurred in setting aside the outlawry.
Mr. Sergeant NVILDE now moved to set aside the verdict. and
contended that an action could net be sustained against the defend-
ant for neglect, and in the next plate he could not be charged wilt
a false return when it was a practice sanctioned by the Courts to
make such return, according to the. instructions which he had re-
ceived. Ile also submitted that the outlawry was woe the conse-
quence of the neglect or culpability of the Sheriff. hut of the plain-
tiff not answering when called, as usual, at the Gounty Court.
The CoonT thought the points worthy of cotaddendion.
little granted.