The British Press; or, Morning Literary Advertiser.
London, England, 1824-05-08 00:00:00

VICE-CHANCELLOWS COURT, 11*Y 7.

EX.
Mr. 31owc mit!, who appeued for the equitable mortgagee,
said that the only question for his Honour's notice in this rue was,
whether the coats of this application were to be paid by the equi-
table mortgagee or not
After ,onie fvti reinirks from Mr. IfonNe, on the part of the
assignees--
His llosor a observed, that had these costs arisen in conse-
quence of establishing a title, then, of course, the equitable mort-
gagee meat have paid them ; but, as they were incurred in the
furtherance of an object after the establishment, to give effect to
the purchase, he was of opinion that the costs should not fall upon
hint, hut that tiny must be deducted out of the surplus alter the
satiNfution of the utiginal lieu.

LAIXIII r. ALLEN.

This was an applicatiuugruuMce;iLis;Wa question of legitimacy.
110 xon it observed, that the question of legitimacy was
one for the consideration and deeiNion of a Jury, and as there were
four children, he was of opinion that one issue would not be suf-
ficient; but that there must be as issue to try the question as to
rah child.

In the cuttrae of the morning Mr. Joseph flume, 'M.P. appeared
In Court, accompanied by Ilk children, for the purpose of being
appointed h r guardian, to prosecute a suit in which they arc
intrusted.

COURT OF KING'S BENCH, FRIDAY, MAY 7•

Tlll CoIIPOHATION OF MONMOUTH.
T/1.11 ZINU V. NENJAMIIIf

This was a procusling by way of tlao Warrwate, calling upon
the defendant to 'how by what utle he sued as a burgess of
hlon-
nouth. The also was tried et the last thlOrKeillef Assizes before
Mr. Justice Park, and the defendant MU found guilty.
The Co II NI 0 N SERI] AN T this day moved for a rule to show
cause why the venhct should not be act aside and a new trial
granted. Ile stated, that the title upon which the defendant relied
was W charter of Edward VI., which it was alleged on his belialt
that the chance contained no form fur electing the burgesses, and
that his drake' had been in the ordinary manner. To those alle.
gations there were nine special replications, in which it was stated
that the custom was tor the common council lint to nominate, then
to aPproee, and thirdly to make an order fur the election of the
burgesses, and that tome of these foetus had been observed in his
ease. The defendant denied that any such customs cod bye-laws
existed; and the issues which the jury had to try were, therefore,
as to the existence of these customs and bye-laws, and secundly as
to the legality of the election, supposing they dld not exist. It was
proved in evidence, on the trial, that doe defendant had been elected
by public prochunntion, as had all the other burgesses. For that
purpcse a Court of Record was summated by the ringing of a bell.
Tuat was the ordinary mode of giving notice of the assembly of the
Court, which, according to the charter, should be held every Mon.
day throughout the year. The Court was empowered to try certain
Iscuons. and to elect burgesses. The form of election was, that the
candtilate should be nutuinated by one burgess and seconded by
another ; after which proclamation was made three times, the woe&
being each time suitably varied, and, if no cause was shown against
his clectien, lie was forthwith sworn in a beeves. On the e;ection
of the defendant, these formalities had been duly observed, and the
mayor had eves waited an hour after the proclamations, in order that
the fullest opportunity might be given fur opposition, but none was
veered. At the same time with the detentlant ten other burgesses
were elected. The Court of Record could be shown to have been
in existence as early as the reign of llenry V., and there were
entries of its proceedings preserved as far back as the reign
of Elisabeth. The course always followed seemed to have
been, that the candidate Was elected with the assent of all the
burgesses present at the Court of Record, which the defend-
ant contended was the common law mode of election. The
entries were of nomination and election precisely as in this
case. To negutive the immemorial claims of the common council, it
*its proved that in 1703 that body had Caine to a resolution that no
persons ought to be elected burgesses but residents, and that unless
the contrary practice was eorrecad for the fteure. they would apply
to the Duke of Beaufort for a new charter. This resolution clearly
admitted that the common council had no right to interfere with
the election of burgesses. The common council had twice claimed
to elect the mayor. The right had been tried once at Gloucester
and once at hlonmouth, and on each trial found not to exist. 'the
two points on which the defendant inaioly relied were, lint, that
some evidence ought to have been gives that such customs and by-
laws existed as were alleged in support of the proceedings against
him, and that MO important a part of th.t case ought not to be in.
dived from the cross-examination of his witnesses; and, secondly,
whether such customs and by-laws existed or not, that there had
been no fraud in the mode of assembling the court of record. It
WWI alleged dust there lead been a surprise on the opposite parties,
and therefore that the electnun. was not valid nor legal. The Jury
had found a verdict generally. The lammed Judge who tried the
case was requested to ask them on what issue they had found
spinal the ilidendsit, but his Lordship had refused to put the
question.
Mr. Taesrox, who was fur the prosoeutiou, interrupted the
Learned Counsel, to state, that after the Jury had found the yer.
diet, the leasied Judge, in reply to a request of the Common Ser.
grant, to know on what issue the Jury had found against she de-
feudant, had answered, that that might be settled out of Court be-
tween the partial, to which no objection was then made.
The Cosmos 14EIMEANT said, that his niemury of the trans-
action IVZJI quite incousistent with the statement of his Learned
Friend. lie had not evened the question to Mr. Justice Park,
but claimed a right to know on what issue the verdict was found,
and he Anal distinctly requested the learned Judge to 'pot that
qu.saion to the Jury ; but his Lereddlip answered that he would
L.', put it.
Mr. CA Ntruti.r.. who was with the Common Sergeant, assented
to the cotrectrees of this statement.

'1 he Cost non SERGEAVT then proceeded to detail the testi.
cloth). of the 16 ititesso, on whose cruss.examie.ation 11r. Taunton
had rslied In his address to the Jury. There were a great many
with:saes examines] for the defendant. Only a few were cross.es.
and from them answers eery lwatolieknt to warrant an up.
favourable tt)110.11bitill to the defendant were elicited. In their
evidence they were net =indicted, though there were persons in
court capable of disprov ow what they had stated, if it had not been
trots. The town clerk, alio was of the adverse party, was not called
to prove that the Comtiont Council had ever asserted a right to in.
terfere in the election se:Burgesses. If the Learned Judge had put
the question respecting the existence of the by. lass and customs,
he (the ('omuum Sergerzt) would then have applied fur a new trial
011 the ground that the verdict was contrary to evidence. There t
was an entire aluence of all posof that the defendant's election was
in e'ty respect inconsistent w itit the practice of the borough. As to
the Plea of fraud or autprise, no such motive could exist in the
sketion of the defendant. The borough was divided into two I
parties. Al-m• the defeat of the claim eel the Common l'ourteil to
appoint the Mayor, he was as before elected by the burgesses; and
it appeared on the poll, that the defendant's party had a majority of
3. which, considering that they had many votes in reserve, and that .
the opposite party were so completely exhausted that their candi.
date had vexed for himself. was as good as 3110. The superiority
of numbers was ascertained. and this had happened before the cle-
ftntlant's election as a burgess. It was clear, therefore, that the
object of his election could not be to strengthen his party. They
were already lollikThlT to their adversaries.
Mr. J uttice Bat some :f the burgesses were of

opinion that the defendant's friend was 6r so be mayor, they might
not think the defendant himself was tit to be a bursae. They
might exacbse an honest discretion in voting for the mayor and re-
jvitting the burgess.
Tie Cost momtiEm lir am .1* said, a vast majority of the burgesses
lived within the souod of the bell, and not one had come forward to
I state that he had not attended the court because he had not beard
Ithe helL The Learned Judge hail prevented the defendant from
proving directly that the arsenii,ly of the Court of Record was a
inciter of general notoriety and CMkTtilliol3. The Learned Judge
I had suited that he could nut listen to the gossip of a country town,
but it had transpired mpeutedly that the fact was well known, and
u subject of genensi conversation.
Mr. Justice II ci LIMY'S asked how lee; the bell had rung before
the Court 1,731, assembled ?

I The Costuow SEIHJEANT said he could not state. The bell
I was rung at ten in the morning, and there was sufficient opportu-
nity for oppming the proceedings and preventing surprise, as Mr.
Tyler, the utturney fur the prosecution. waa.present when the Court
was opened, and had made his protest against what was going to
t take place. Ile had afterwards remained there an hour, during
which, if he had pleased, be might have called together his friends.
I On the morning of the defendant's election, it happened that a
Court of Quarter Sessions was also held. This circumstance had
been made an imputation against the defendant; but on searching
the records it appeared that it was no unusual occurrence, and that
113 burgesses had been eleetel on similar occasions.
IThe Loan CHIEF JIJISTICE.—The Court of Record is holden,
it appears, whethet burgesses are to be elected ur nut. If you
mean to do something which may or may not be done, and which
I is distinct from the ordinary btodness of the Court, must you not
• give Nome notice of your intention ?
Tbe Con mos SemGE.ANT—There is no proof that such notice
was ever given at Monmouth respecting the election of burgesses.
The parties meet at the Court, and generally do such dory a* may
I be required from them.
.Me. Justice BAYLEY—But it is not unreasonable to expect that
such a course shall be followed as may prevent surprise. We
I ought to cousider what the general rule of law is. lithe coarse is
! not specially provided, it must be a reasonahle mode of proceeding.
Now the (locution is, whether it is reasonable that when it is ex-
pected that you are going to other business you should proceed to
• elect burgesses ?
The Commix See °EA it T said that that was a nuestion of great
importance and rsitude, affecting the rights of individuals in a
great many boron . It was dangerous, lie thought, to argue
that such an him ciency of notice, as in this case, independently
of all fraud or 'uprise, would invalidate the rights of the Surgeries.
i Lstterly, the Court of Record had been disused for pleas, and, per-
; hats, therefore was only called together for electing burgesses.
The Loan Cuter JUST ICE --ill the King against May, it was
laid down that miles, the usual notice was given, the elective as.
sem* could not be well constituted.
ne Co es No 51 SERGEANT—Here the usual notice was certainly
i given. The only doubt is whetlar it was not generally known that
I burgesses were to be elected, . . .

more 'ascertain was that expectation
the_grester the necessity of giving due notice.
Trse COMMON SIERGEAXT-1 should rather say the more ass
it the duty of the burgess's to attend.
The Loan Cams Jt; IT see—That would be casting a great
burden upon them.
After some further cooversation—
. . .

The Cot: arsaid ti;;;;ouldfook at the report of the trial.
The Loun l'ti ter Jr !IT ICE added, that if It should appear
that the Jury were right as to one issue, the verdict might be dis-
charged as to the rest.

PUBLIC SUBSCRIPTIONS.
BYIINZ r. PARKINS.

This was an action tried I;eita; the Lord ilhief Justice at the late
Sittings at Wrstniinster, to recover the balance of a public sub-
scription raised for the benefit of the plaintiff, a poor Irishman, who
was induced to come over to this country by the deteadaat, the well-
known Mr. Ex-Sheriff Parkins, and Mr. William Cubbett, equally
well known as the editor of the Political Register, and latterly as
the tenor of turtipikemen. The Ex-Sherif was, on the motion of
his quandons friend. the highway-man, appointed treasurer of the
subscription ; and it seen,, that he understood that the trust re-
posed in hint was to keep the cash, a duty which he performed so'
religiously that he would nut suffer it even to pass into the hands of ,
the wretched plaintiff, for whom it was subscribed. An action
was consequently brought against him, and a verdict gained by the
plaintiff. This den :11r. Parkins attended in ('curt, according to'
an intimation he had given to move for a new trial.
. . .

The Loa u Cu IE r:I ',arms haring gone through the bar, asked
31r. Parkins whether he had anything to move
31r. Parkins—To-morrow, my Lord, 1 shall more in a matter of
importance.
31r. Juitice BAYLEY—What is the name of the cause ?

Mr. Parkins—The cause, my Lord, is called " Byrne against
Parkins." It is a atuse of great importance to me—
The Lona Cuter' Jr sr ir E—We can't give you prc.audicnce
to-marrow morning ; we will hear now.
Mr. Parkins—l am not preparedto go into the question now.
Mr. Justice BATLEY-11,e can't break through the rule on
Lo:raccount ; we must go through the Bar before you can be
. _ _

—iiir. Parkins—l am so situated, tint I canc.ot attend to-mor-
row afternoon. _
_. . .

The Loan CHIEF JV ST I CE--VOU HMI take the consequences.
THE CORPORATION OF IPSWICH.
THE KING V. MACDONALD.

Mr. f'ateruct.t. then proceeded to show cause why a writ of
quo warranty should not issue against the defendant, calling upon
him to shew by what title he claimed to act as a burgess of Ipswich.
It was necessary to the election of a burgess of this borough, that
there should be !Resent 2 bailiffs 43 burgesses, and 2 portmen. it
was contended that the defendant's election was bad, because one
of the portmen was at that time also town-clerk. These situations,
Mr. (:anipbell argued, wcre not incompatible. The fact was, that
Ipswich was divided into two parties—the Blues and the Yellows.
CA laugh.) Latterly the conflicts of these parties had shaken
the corporation to its centre. Previous to the recent election, a
great number of burgesses had gone down on a Sunday to prepare
for hostilities. After some conferences, it was agreed that an equal
number, to wit, eight of each party, should be elected honorary
burgesses. The only difficulty was, as to which should be elected
first. It was finally settled, than a Blue and a Yellow should be put
in nomination together. They were elected by acclamation, and
he believed the election had given universal satisfaction (a
laugh). At the ensuing charter-day, two of these honorary bur-
gesses were chosen bailiffs. Everybody was satisfied, both Blue
and Yellow, but one person, who happened to be neither Blue nor
Yellow (a laugh), and he had interfered to disturb the general
harmony.
The Loan CHIEF JUSTICE—He was the fittest person to in-
terfere. The quo warrant° must issue.

COURT OF COMION PLEAS, FRIDAY, MAY 6.
WITNESSES' EXPENSES.

Mr. Sergeant lixws moved fur a rule to stiew cause why the
Attorney in a cause should not pay the fall expenses of a witness
lie brought front Jersey. The expenses were tit. lOs., of which
he only received 31. The witness believed that the Attorney had
received the whole amount, and retained the darn:atm.—Rule
grouted.

GIBBON t•. NI NETT AND SCRIBE.

111 r. Sergeant Yct.t. moved fur a rule to thew cause why the
verdict in this case should not be set aside, and a new trial granted.
The action anise out at an order from the plaintiff to the defendants,
who were his bankers, to set aside 40ffl. tmu his private account,
to be at the divvy.' of a Mr. John Minter. This order was after-
wards countermanded. and the money handed over to the plaintiff:
The question was, whether the bankers were authorises' to pay the
money to Any other than Minter, as it was entered by them on his
account.

The COUNT were of opinion, that as Minter had never used the
money, the bankers were entitled to be guided by the countermand
of the plaintiff.--Itule refused.

LAW [INS V. HOWARD AND GISH&

Mr. Sergeant BosAN ou ET ninved fur a rule to 'Mew cause why
the &testi/nu should tint account fur the improper disposal of two
sums of 3,000/. and 1,260/., which they lent to the Marquis of
Illandford, his estates being then, to their knowledge, untie.. judg.
menu to the amount of 296,0001.—1 t tde granted.