The Sun.
London, England, 1806-08-18 00:00:00

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LA!!' _REPORT.

COURT OF CHANCERY, Ace. Is.
Ex,paric HEYw °ob.
THE following case is very interesting, on account
of the principle which it lays down respecting the
liability of Solicitors to pay costs •in the event of
their being charged with having issued .Commissions
of Bankruptcy improperly; .which was ailedged to
_ be the case in the present instance. .Mr. Heywood,
the Petitioner, was a person against whom a Com,-
mission of Bankruptcy.had been issued. He applied
to have the.CoMmission superseded, on the ground
that the Petitioning Creditor's debt was only 661.175.
no debt less than tOol. being sufficient for this pur-
pose ; and the CHANCELLOR dire6ted an issue to try
the fa& ; on the trial the fad was found to be as
stated, that the Petitioning Creditor's debt was only
661. 173. and therefore the Commission was super-
seded of course, and the question -pf costs was re-
served.7--The present Petition prayed that these
costs might be ordered to be paid by one or both of
the parties concerned in issuing this Commission.
Mr. JaCkson, the Petitioning Creditor, and Mr.,
Alexander, the Solicitor under the Commission,
reside in Yorkshire.
Mr, SOLICITOR GENERAL, Mr. PERCIVAL, and
Mr. limo', contended, that, on all the affidavits in
this case, it must be tal4en, that the Solicitor ac-
tually ktlew that only 661. t7s. were due, and that
Lc slwv.-1,1 not ',aye sued out such on
; dna* the Petitioning Creditor was an illiterate
man, and therefore thought he had his case con-
dusted with propriety under the care of his Solici-
tor; had afterwards declined prosecuting she Corn-.
mission, &c. That, Under all the circumstances, the
Solicitor ought to pay these costs instead of the Pe-
titioning Creditor. They supported this proposition
at some length, maintaining it was agreeable to the
praaice-of the Court in cases of this nature ; and
quoted a long extra& from a discourse delivered by
Lord ELDON soon after he came into_ this Court,
on the abuses of Commissions of Bankruptcy by •At-
tornies, and on the necessity of checking them, &c..
The Solicittx, hoWever, by his affidavit denied all
the impropriety of conduct imputed to him in this
case.

The Lortn CHANCELLOR thought it unnecessary
to hear the other side in this case. His Lordship
delivered an elaborate and admirable, judgment, of
which' we lament we can give only the heads. His
Lordship said—" I feel as-much as any Judge pos.-
Sibly can feel on the subje& of the correction of
frauds, whiCh have, I am very sorry to say, been
particularly Manifested in proceedings under Com-
missions of Bankruptcy ; and I am as little disposed
-to differ from my Noble and Learned Predecessor, in
the many observations he has made, and the reso
Intim he formed to follow up the abuses)se has ex-,
pressed to have existed, as any one can be; but I
am confident that ray Noble and Learned Predeces-..
sor must have meant (a man of his learning
.and in-
tegrity could not but have meant) to. confine .himself
w;thin the limits of the law in this as well as all
other matters. When question's come before me, con-
neeled -with the jurisdiction and pra&ice of this
Court, I can only feel confidence in the administra-
tion of justice, from the learned assistance of the
Bar,- and in a determination not to advance too has-
tily when the decision is to be on a question which
is difficult, because the jurisdiction of this Court is
large, and a mistake in its decision may not only be
injurious to the parties, but alsO greatly dangerous
on account of the high authority which such a mis-
take assumes; but I am not sitting here in this casd
as in a Court of Chancery, but in the administration
of,Bank runt Statutes, a written,law,..as binding upon
the Lord Chancellor, and the use, of the Great• Seal
of England in his keeping, as upon any other Judge.
Tinder these Statutes,• the process of a Commissinn
of Bankrupt is issued against the subjeEt; and the
manner of-suing out that CornmissiOn is set forth
in these: Statutes ; and because these Commissions
are issued by• Solicitors, they may be visited
by the Court \ for miscondu&, but they must be
visited' by this Court on the same principle as any
English Judie visits a Minister or Otheer of the
Court in which he presides, who has misdurneaned
himself, and upon no other, and that must be by
the rules of law, with a dUe regard to the principles
of the British Constitution, which includes•a regard
to the liberty-of the suhje&. That must be `therule
which shall guide the cOnduCt of the Chancellor
sitting here, in such a Case as this.—Power he has,
but he has no right to put it forth against any man
ip,the way ofipenalty, or in the nature of a crimi-
nal jurisdiCtion in this case, upon any other princt-
.ple than that which would_guide the condu6t of any
other English Judge sitting in judgment on the con-
duct of any Off-Jeer of his. Court; and the question
were, whether, in his discretion, be would order
an attachment, or avy process against such Officer, •
for miscopduCt. Therefore, as it appears to me,
constituted as the LaW is, • and as it has been' admi-
nistered in all times by JudgeA, we cannot proceed
against any man by way of punishment until he
shall have had a-fair trial by his country, if lie does
not admit the in:behaviour imputed to him. I
agree in what has been .suited, that the Coudwill,
in certain, cases, compel an Attorney to pay costs,
where it appears, clearly, that he has miscondu6ted
himself: I ordered it lately., where an Attorney had
disobeyed the order of my Lord Folis:ELN-N, ; but
then it Was clear that he had disobeyed it, and not
denied. the fact. I will, go. farther, and order the '
party to answer to the Court for his miscondutt,
even although the Party on the other side May have
been satisfied, and a compromise 41-lay, "hay.e taken
place, as a Court of Law is in the Whit of ordering
an Attorney to answer the matter of an alfidavit,
and if he_ did not do. so, the Court would • strike him
ofF the Roll, although his opponent may not urge.
any- thing against, 4tm ; .for the Court would pre-
vent such a person from abusing its process in fu-
ture; and if the *costa' .have fallen (;ii his client in
consequence of his injustice or gross negligence, and
heaachuits it' ti an unequivocal mannerasot'hat no trial
Of the EICt is necessary, the Courewill take care that
ire shall
.explain his conduCt to the Court, as well as
snake satistaCtiun to the party he has injured 3 and the
Court will, for that purpoSe, lay its strong hand on
him, and take care thus his prison ,doer Shall, not be
opened until JustiCe is fitlly satisfied. But it allthese
cases the Law proceeds with a due and tender regard

to the liberty of the sqlliC6l; and tine rule is, that
if any matter of a ciiminal kind, that is, any gross
misconduct of the nature of a miideineanour, be im-
puted to tidy- man, and be cieLirs hiinSielt of the ha_
putation by his own ailidavii., lie shall be taken to,
be discharged from that imputation on,that atiida~ it.,
It is a constant rule in a Court Law, that you can-
not attach tr man who, upon his own affidavit, denies
the misconduCt imputed to him : this applies, to all
cases of mismanagement and gross negligence and
abuse of the process of the Court ; and it he swcars
that which is false, the only rernedy'iS to india him
for perjury 3 and the reason is plain; for an Att,:riv2y
is, like any othertnan, entitled to the benefit of the
British Constitution ; if he is accused of gross ne-
gligence, or any other miscondut, in the concerns of
his client, he is entitled to have his case adjiadged of,
as any, other man may, by a Jury of his country ;
where you will have damages commensurate to time
Toss you have sustained by,mcans of his miscondita.
His Lordship considered that such was the case here:
miscondu& had been imputedto this Attorney, which
•he had .denied upon ,his. oath, and there was no proof
of the charge. It vas the regular 'course for Mr.
Jackson to bring his action at laVv, if his buisiness
had been miscou4u&esl by this Attorney., As to the
case of the Petitioner, he would have his costs out of
the bond Which the retitioning Creditor gave to the
Court on the issuing of the Commission; on the or-
der for assigning that bond, which would be con-
clusive on that point : which his Lordship order!!d
accordingly ; and ofdered the proceeding to be kpo-
sited in Court, to be fol-thcoming.ubai caned thr.
His Lordship added, that the lower classes olsociet.
would hardly have Attoruies to conduct -their causes
if proceedings were to be held over their heads. in
terroreirt, and they were not o have the same rule
of Lftw administered to them as the rest.of the King's
subjects; that is, of having an appeal to the Laws
of their country, when they were accused of pais-
conduet, and denied it upon oath."

SATURDAY, AUGUST 16

IN THE MATTER OF JOHN HATUA\VAY, A BANKRUPT.

This was a petition by the Bankrupt, praying his
Lordship to direct that the expellees and costs of op-
posing a. Petition to preVent the Bankrupt's
leis Certificate, and the present application,
should be paid by John Laurence Barrow, Samuel
Davis, George Wintle, John Marryatt, and Sarah
Grover.

' The SOLICITOR-GENERAL,- for the Petitioner,
stated, that previous to the month of July, 1800,
the Petitioner carried on thehusiness of a Coal-mer-
chant, but declining in his circumstances, he applied
to Davis and'BarroW, who were money-lenders, and
who advanced several sums to him, upon exorbitant
interest ; and, in one instance, charted hitt at the
rate of 101. for the loan of the same sum for the
space of six weeks, and frequently advancing thee
loans, part in goods, and part in cash, as was the
general prat-lice of persons engaged in this sort of
traffic. .When the Commission was sued out against
the Petitioner, Davis frequently attended to prove
his debt ;' but the Commissioners considering it an
usurious transaction, refused to admit the proof, in
consequence of which, Barrow did not Venture to
prove -his debt. This disappointment, determined
them on revenge against the Petitioner, and with
this intent, when his Certificate was presented for
confirmation to the then Lord Chancellor (Lough-
borough), they preferred 'a Petition against it, stating,
that the Bankrupt had, .on the 22d of April, played
at a game of chance, called Put, with cards,
within the year, and at the same sifting,- first, for a
supper, and then for tol. at the house of George
Wintle. This Petition was preferred in the name
of Barrow, but the other parties all joined in the af-
fidavits. The Petitioner filed an affidavit in com-
plete contradidion to this charge, denying that he
had ever played at cards in his life, or known Win-
tle, or had ever been at his house. But the facts
being sworn to in this manner, and the sum of 101.
being sufficient to answer 'the provisions of the
Statute, -Lord Loughborough refused to confirm the
Certificate. The present. Petitioner being after-
wards furnished with sufficient evidence for that put-
,Pose, indided all these parties, at the Quarter Ses-
sions for the County of Middlesex, for a Copspi-
rady, and all but Davis, who did not then appear,
were convicted, to the great satisfaiition of the Bench
and Jury, and sentenced to the Pillory, and-Impri
sonment for two year's, except Sarah'Grover, to
whom, being a woman, some lenity was shewn, and
she was imprisoned for only six mouths. Davis af-
terwards took his trial, and was convidted, and sen-
tenced to the same punishment, of Pillory and lin-
prisoment, whiCh he hassince suffered. [Of these
Prosecutions and Conyiaions we have given ample
Reports in former Papers.] The Petitioner has ever
since been deprived of the benefit of his Certificate ;
and. under all these circumstances, the Learned
Counsel hoped his Lordship would grant the prayer
of the Petition.

. -
Mr. Serieant BEST, on behalf of Mr. Davis, said,
he trusted he should convince his Lordship tha't his
client was not so befOre the Court, as that he should
be compelled to pay costs. The conviction tote
place under very suspicious circumstances, ihere
being but two witnesses for the prosecution, the
one,M'Clat6hy, who had formerly been a party to
the conspiracy, and who was a man of very doubtful
charader ; the other, the Petitioner, Nxho acknowJ
ledged he had just got out of a straight waisleoat.—
Mr. Davis had already been severely punished for
his otrence ; and it not being the custom of the
Quarter Sessions to grant new trials in such cases,
he was without redress by that mode. The Learned
Counsel was further proceeding, when
The LORD CHANCELLOR, upon looking at a copy
of the couvidions, obServed, that Mr. Davis was
not only charged, but convi&ed, as one of the con-
spirators. He could not say that these persons were
not : he was bound by the record before
him, from which it was evident they•all' combined
to harass this poor man : it was the most scandal-
ous oppression he had ever met with. His Lord-
ship said, he knew nothing of Mr. Davis, but some
of the other Gentlemen were well known to him in
'estminster Hall. Lord Loughborough certainly
did right in the order' he had made ; but from the
knowledge he himself had of those' parties, he cer-
tainly 'should not have aged upon their atfidarits.

Mr. RICHARDS rose to make some observations
On behalf of one of the parties, when his Lordship

obsertel, that perhaps the teivned Counsel did not
1:now- Sir. John I,auren Barrow ;he was a verY
bad, wan, and Ooniyrned in a multiplicity of nsltriou's
and otbc.ri- infamou6trattsaclions. affidavit, al7
to,-;other sruelled very much of fabrication. Kis
LbrilOarp then granted the prayer of the Petition,-•
and re,,-.),retted-he could not also give,the exp Onces
the prosecution at the Qnarter'Sessioris. •