The Sun.
London, England, 1862-04-28 00:00:00

TEIELWALL V. YELVERTON.

The arguments of counsel on this motion, opened
on Wednesday last, to amend the bill of exceptions,
were resumed at the sitting of the court, at Dub-
lin, on Friday.
Mr. Sergeant Sullivan was heard against the mo-
tion on the part of the plaintiff. He said if the
motion were granted it would lead to the most dis-
astrous consequences, and that there was no pre-
cedent for any such application, which, he said,was,
substantially, for a mandamus, as it were, to the
judge who tried the case to alter his bill of excep-
tions. There was no precedent for any such appli-
cation on motion in all the books.

The Chief Justice—Supposing this motion were
complied with my charge should be altered.
Judge Keogh said he expected at first that there
would be a preliminary objection to the motion.
Sergeant Sullivan said he would have made a
preliminary objection, but that tae gave Dr. Ball
credit for making the motion upon some authority
which, he contended, he did not produce.
Judge Christian also observed that he thought a
preliminary objection would have been taken to the
motion. _ .

Dr. Ball contended that the case of the trustees
of the Evans Charity v. the Bank of Ireland was an
authority for the motion.
Judge Christian asked if Sergeant Sullivan's pro•
position was that, no matter what the judge who
tried the case chose to put upon the bill of excep-
tions—no matter how irrelevant and wide of the
case—the full court had no power to amend it ?
Sergeant Sullivan replied that he contended it
could not be done on motion.

Judge Christian—Suppose, for argument sake,
that the jury said " We find the defendant should
pay the costs of the case, and we find that he should
be sent to penal servitude for the ter in of his na-
tural life," and supposing that the judge put that
finding on the bill of exceptions; and refused on
motion to expunge it, would this court be bound to
set its own record right by expunging these find-
ings ?
Sergeant Sullivan said it was not a record in the
sense of a record, ordinarily speaking. He contended
that the court would have no jurisdiction to ex-
punge it upon motion.
Judge Christian said it looked a very large pro-
position to say that, no matter how irrelevant might
be what the judge might think proper to put upon
the record, the court in banco had no power on mo-
tion to interfere with it.

Sergeant Sullivan said he would go that length.
Judge Keogh said if the judge contumaciously
refused to take a bill of exceptions, was there to be
a motion to this court to compel him
Judge Christian said the act provided for that.
In such a case, however, there was nothing wrong
on the record ; but it was a different thing if he put
on the face of it what was irrelevant and absurd.

Sergeant Sullivan said the court should allow it
to remain on, but they could deal with it when the
bill of exceptions came on for argument.

The Chief Justice said when the matter was be-
fore him settling the bill of exceptions, it was ad-
mitted by the counsel for the defendant that, if the
case went to the House of Lords, and the Lords
were of opinion that these matters should not be on
it, they should get judgment, if they were entitled
to it the same as if it was not there. It occurred
to him that if he struck these matters out he would
prevent the parties arguing the point, and there
would be no appeal from what he did, but that by
leaving them there, both parties would have an op-
portunity of arguing the ease.
Judge Christian asked Sergeant Sullivan, sup-
posing there was no bill of exceptions, but the or-
dinary postsa, and that in it the judge put the
opinion of the jury on these o collateral ques•
lions, did he think the court would have no juris-
:lietha to amend the postea.
Sergeant Sullivan said he would go the length of
saying that the court had no right to interfere
with the postea, which was the judge's sole duty.
Judge Keogh said in an application of this kind,
there should be direct authority that such jurisdic-
tion had been exercised by the court upon motion.
Sergeant Sullivan said, if the exceptions settled
by the judge who tried the case could be afterwards
cut up by the court, it would lead to the greatest
hardship and injustice. It appeared to him that
this motion was made for the purpose of confusing
the record and of blinding any court before which
it came, and which was not cognisant of the facts
connected with the case. What was wanted was
to leave the judge's charge standing, to leave his
questions to the jury standing, and to strike their
answers to those questions out. What would the
House of Lords say to such a record as that ? It
w Paid be the greatest injustice to strike out these
answers. The question at the trial was, were the
goods sold to the defendant's wife; and, of course,
in that issue was involved the question, was she
his wife. There were two marriages—a Scotch
and an Irish one—the first being prior in point of
time. The judge asked two questions, and got
two answers, and then suppose the case went before
a tribunal which had no cognisance of the fact con-
nected with it at all, it might be said at the other
side, "We have an exception to the Irish marriage,
and we sustain it. How are we to know but that
the jury were divided—six for the Irish marriage
and six for the Scotch marriage ?"
Judge Christian said the extreme reasonableness
of what the Chief Justice did was shown by this
consideration. If the court should be of opinion,
on the argument of the exceptions, that the excep-
tions as to the Scotch marriage should be overruled,
but that those as to the Irish marriage should be
allowed, the plaintiff, if these answers were suffered
to remain on the record, could say there was still
enough to enable him to have judgment, but if they
were struck out, it would be impossible to say on
what they found that the lady was the wife of the
defendant. His lordship, however, said that the
ease of Davis v. Lownes was his difficulty in the
matter. When the jury found that the Scotch mar-
riage was a valid one, it became apparent that the
Isiah marriage was invalid, and yet the jury went.
on, and found that the Irish marriage was a valid
one.

Sergeant Sullivan said if this was a motion to
strike out all about the Irish marriage, he could
understand it.

Judge Keogh said the finding as to the Irish
marriage was, as to there being a good and valid
marriage in Ireland, without considering the pre-
vious circumstances of the parties.
Sergeant Sullivan, in conclusion, said the justice
of the case and the merits were with the
that if the motion were granted the judge and the
counsel in the case would be exposed to observations
of the greatest severity, and that the application
was made for the purpose of endeavouring to creep
out of the case.
Mr. "Whiteside followed on the same side. He
said he addressed the full court under protest, as
he submitted that be should only address the Chief
Justice. He had the highest respect for the three
other members of the Court, but he should protest
against them interfering on the present occasion
with the Chief Justice. (Laug‘ater.)
The Chief Justice said there was no application

to the court to send back the bill of exceptions to
him, but to order the officer to award the record.
Mr. Whiteside said that was worse. He con-
tended that the motion was unparalleled and illegal.
Counsel for the defendant did not like the record of
the exceptions or of the case, and when the books
were delivered and the briefs out to argue tho case,
this moti,ut was made at the end of ten months to
upset the exceptions. The attempt was to get up
a venire de novo, contrary to fact, and to the finding
of the jury. He contended that the answers of the
jury were not irrelevant matter, for the question
from the beginning to the end of the case was,
whether the lady was the wife of the defendant,
and he submitted that the case of Davies v. Lownes
was not applicable. After the defendant had got
an opportunity of raising serious questions on the
record, he came to the court and asked to have the
whole record altered for him, so that he might here-
after say that the jury might have been divided on
the marriages. Lf st term there was an application
to force the defendant to an argument of the excep-
tions, and then began an undertaking to do so, and
now, after the lapse of time, an application was
made, the record vague, indeterminate, and con-
fused. He submitted that the motion should be
refused with costs as untenable and unprecedented
—that the Chief Justice had signed the exceptions,
according to truth and justice, and that nothing
could be more unjust, under the peculiar circum-
stances of the case, than to alter these exceptions.
Mr. Jellett replied generally, on the part of the
defendant, in support of the motion, He stated, in
answer to an observation of Mr. Whiteside, that the
case which they considered bore on the question in-
volved had been mentioned to the Chief Justice at
the settlement of the bill of exceptions. He pro-
ceeded to argue that the motion was supported by
precedent, and that these findings of the jury were
on collateral matters, as they need not be unani-
mous upon both marriages.
The Chief Justice asked, if the jury said they had
found half and half as to the two marriages, whether
any court of justice would allow any such verdict
as that
Mr. Jellett said they would.
Judge Ball said that meant that half of the jury
were agreed that there was a valid marriage in
Scotland, and the other half that there was a valid
marriage in Ireland, and that a compound verdict
could be made out of both.
Judge Keogh said if he had the misfortune to try
the case, and if the jury gave him such a verdict as
that, he would not receive it.
At the conclusion of Mr. Jellett's argument,
The Chief Justice intimated that the court would
give judgment on the motion on Monday next.

2HE M&RDER NEAR BEDDITCH.

REDDITCH, SATURDAY.

The inquest on the body of the ill-fated young
woman, Sarah Kirby, who was shot by her fellow-
servant, George Gardener, on Wednesday last, was
held last night at the house where the murder was
committed, Outhill Farm, about five miles from this
town, before Mr. Poole, coroner for Warwickshire.
The accused, Geo. Gardener, was present at the in-
quiry, and appeared quite unconcerned at his posi-
tion. The first witness called was—
Miss Davis, Mr. Edge's aunt, who deposed to the
deceased handing the gun to the prisoner on the
day of the murder, and to his taking it into the
back kitchen. She asked him what he was going
to do with it, and he made some answer which she
did not hear. She then said to him, " Remember
it is loaded, George," and he replied, " Yes, ma'am,
I know it is." She hen came back into the kitchen,
thinking all was right. Almost immediately after-
wards she heard the report of a gun from the back
kitchen. Thinking there had been some accident
she went towards the back kitchen, and, at the door,
met Gardener coming towards her with a gun in
his hand. As soon as he saw her he pointed the
gun towards her. fie was about two yards' dis-
tance, not more. She desired him to go back with
the gun, and he made no reply. She turned to go
back into the kitchen, and he persisted in following
her, without saying anything. She went directly
into the parlour from the kitchen, and locked the
door between them. The witness then went on to
describe the attempts made by the prisoner to gain
access to the room in which she was end her escape.
She added that the prisoner had always appeared
in his right mind. She did not believe Gardener
had ever courted the deceased.
dames Dyer, a boy who was employed in weeding
Mr. Edge's garden on Wednesday morning, went
with his mistress to Mr. Savage's house when she
left Mr. Edge's, and on returning to his mas-
ter's found the deceased lying dead in the back
kitchen, and gave the alarm. Had seen Gardiner
walk round the house with the gun under his
arm just after he had heard the gun fired. Gardener
had thrashed witness on one ()melon when at
plough because he did not take his horses straight.
Martha Holloway, wife of a labourer living near
Mr. Edge's, deposed to Miss Davis coming to her
on the morning of the murder, and expressing her
fears about the deceased, and to her subsequently
proceeding to the house and finding her dead, her
head resting in a pool of blood. Had previous;y
seen Gardener making his way across the field:
towards Pool's Wood. _ _ _

Mark Savage, farmer, also a neighbour of Mr.
Edge, went to the house on the alarm being given,
and corroborated the evidence of the boy and Mrs.
Holloway as to the position in which the deceased
was found lying. The face of the deceased was
quite calm, and there was a smile upon it. Had
never heard words between the deceased and the
prisoner. Had seen the prisoner going in the di-
rection of Pool's Wood belore the alarm was given.
Mr. Edge deposed as follows :—About eight
months ago, deceased came to me and said that
George Gardener had made several attempts to kiss
her, and she refused, and ho struck her on account
of it. I spoke to him that evening about it, and
said that if he could not behave himself on my pre-
mises he must leave. Since that time there have
complaints made to me through Miss Davis that he
had been disagreable in different little ways to the
girl. lam not aware that the deceased had any
follower. I had seen both Gardener and the girl on
Wednesday morning. Gardener had been out all
night, Lot he was not intoxicated. He was locked
out that night, as he did not come home. I did
not speak to him about it, as I was thinking of
turning him away. The girl slept in the next room
to that of Gardener, with a passage between them.
No one slept in the same room with the girl. The
gun now produced is mine, and is generally kept in
my bedroom, but sometimes left in the kitchen, and
sometimes in the parlour. The last time I had
used the gun was about a fortnigt ego, and I
believe no one had used it since. The gun is al-
ways loaded. It was loaded with shot and powder
that morning. There were:no angrywords between
me and Gardener on the Wednesday morning. Gar-
dener had never complained to me about the girl.
Gardener had the gun occasionally to frighten the
rooks. I. think it safe to leave a gun with the caps
on when the hammers are down. Gardener has
always appeared to me to be perfectly sane.
Policeman Oliver next deposed to the apprehen-
sion of the prisoner about half-past six the same
evening at Honey borne station, which was 18 or 20
miles distant. He had 12s. 7-Id. in money on him.
When charged with the murder, he said, "Then I
suppose I must go." He was quite drunk. There
were no marks of blood on his clothes or his hands.

George Kendrick and George Beck, of the Strat-
ford borough police, produced Mr. Edge's gun, with
which the prisoner had shot the deceased, and
which he bad sold the same afternoon to Mr.
Cooper, gunsmith, of Stratford-on-Avon.
Miss Cooper proved that the prisoner offered the
gun to her father for a sovereign, and that he bought
it. Gardener said it was his own gun, and that it
was no use to him. Both barrels were loaded.

Edwin Podmore, parish constable for Studley,
was one of the first persons at Mr. Edge's house,
and in the kitchen saw the desk, with the lid
smashed, and with a coal hammer on the top of it.
There was a mark on the lid of the desk, as though
it had been struck with the hammer. All the littis
drawers in the desk were partly pulled out, and the
papers pulled about. It appeared as if it had been
ransacked and turned all over. There was no injury
done to anything else but the desk. Examined the
brewhouse, and found that two shots had gone
through a pane of glass in the window, opposite the
head of deceased. There were also one or two shots
in the uprights of the window.
Charles Russell, the boy who was ploughing with
the prisoner on Wednesday morning, proved the
threatening expressions made use of by him. He
said he would murder somebody. He sharpened
his knife and said he would kill witness. He did
not say anything about the girl. Gardener had
said such things before, but witness never saw
him sharpen his knife in that way before, and was
very much frightened.
Two or three other witnesses were examined, la-
bourers on the farm, who spoke to the behaviour of
the prisoner just before the murder, but their evi-
dence did not carry the case against the prisoner
any further, and the, inquiry terminated in a ver-
dict of wilful murder against George Gardener.

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SPORTING INTELLIG.ENCE.

THE IMO RACES-SA.TURDAY.

The Farmers' Plate of 40 sous; the second to receive 5 sous•

Once round (about a mile and a half.)
Mr. Bond's Precise, list 71b.. (Mr. James) I.
Mr. Ashby's Lucy, 4 yrs, list 71b (Mr. Boynton) 2.
Mr. Reid nd Lady Bird, 5 yrs, 12st ..
The following also ran :—liemnant, Otho, The Hack,
Charley Grey, Queen Bess, Dannyman, Tommy.
6 to 4 agst Otho, 3 to 1 agst .ThelHack, 5 to 1
agst Remnant, 6 to 1 agst Lucy, and 7 to 1 agst Danny-
man. Won by two lengths, a bad third. The Hack,
Charley Grey, anl'i tcmnant were fourth, fifth, and sixth .
The others tailed off.
10 sovs each, with 25 added, for
The Hunters' Stakes of
horses the property of n; embers of the Herts Hunt Club
which have been regularly hunted with Lord Deere's
hounds, &c, ; list 71b each ; winners extra. Once round.

(3 subs.)
Mr. Layton's Fanscombe, list 121 b (inc 5 ex)..(Owner) 1
Mr. Blake nd Salt Hill, list 71b
Mi. Prime's Wild Drake, 12st 121 b (inc slb ex) (Owner) 3
Betting-5 to 4on Wild Drake, 6to 4 agst Fausconibe-
Won by two lengths, a bad third.
The Claret Stakes of 15 soya each, 10 ft, with 25 added; 3
yr•olds, Ost 12th; four, list 61b; five and upwards, list
121 b ; six and aged, 12st ; the winner to be sold for 200
sow. Once round. (8 subs.)
Mr. Bevill's Jack-in-the-Box, 3 yrs, Oat 121 b (Mr. Bevill) 1
Mr. S, Jacobs's The Don, 5 yrs, list 12Ib (Mr. Wood) 2
Betting-4 to lon Jack-.Zu-the-Box. Won by half a
length. The winner was sold to Mr. E. Brayley for 205
guineas.
The Selling Stakes of 5 sows cacti with 25 added ; for S-
yr-olds and upwards. Hall a mile. (8 subs.)
Mr. Cherry's Enfield, 6 yrs, lOst 711 y WO) •• .. (Owner)
Mr. Nightingall's Liberality, 3 yrs, 85t 51b (£5O)
(Mr. Erskine) 2
M.. Thomas's Bacchus, 3 yrs, Bst 51b (car bst 101 b) (£5O)
(Mr. Wood) 3
Mr. Mellon's Erica, 4 yrs, Oat Illb (£5O) (Mr. W.BeviU) 4
Mr. Fisher's Maid of the Morn f, 3 yrs, Bst2lb (car 9st)
Betting-5 to 4 agst Liberality, 2(4t5o01)
agstPl r.
tto 1 each agst Enfield and Bacchus. Won by a longth anond)
and
.Broicyan,t
a half; a length between the second and third; the fourth
well up. The winner was bought in for 54 guineas, and.
Bacchus was claimed by Mr. Nightingall, and afterwards
sold to Mr. E. Brayley.
The Beaten Horses' Stakes, a purse of 10 soya for the be..-de7l

horses in the Farmers' Plato. Half a mile.
Mr. Archer's Remnant, 6 yrs, 12st 71b .. (Mr. Edwards) I-
111r. Hempson's Charley Grey, 108 t 101 b.... (Mr. Wood) 2.
Mr. Reid nd Lady Bird, 5 yrs, 12st 51b .... (Mr. Baker) a
The Hack and Tommy also rau.
Betting-2 to lon Remnant, who won by two lengths;
a bad third. Tommy ran against a post, and his shoulder
was dislocated.
The Scurry Stakes of 5 soya each, 11st 71b each; the winner
to be sold for 40 soya. Half a mile. 7 subs.
Mr. Nightingall's Griffin, 6 yrs, list 71b (Mr. Lington)
2
Mr. Mellon's Erica, 4 yrs, list 71b.... (Mr. W. Bevill)
Mr. Fisher's Maid of the Morn f, list 71b (Mr. Erskine) 3
Mr. Reid nd Queen Bess, aged, list 71b (Mr. Dixon) 4
Betting-2 to lon Griffin, and 3to 1 egg Erica- won
by three quarters of a length; a bad third. The winner
was not sold.

BETTING AT MANCHESTER, SATURDAY•
To-day, there was very little business done. For Chester
Cup, Agag and Wild Rose appear to have got their quietus•
Zodiac was very firm, and 100 to 7 would have been taken
about Fairwater. 25 to 1 was taken freely about Sappho,'
and 20 to 1, but not very freely, was taken about Simla.
For the Two Thousand Guineas, any advance upon 5 to 1
would have been taken against either Old Calabar or The
Marquis. Tho Clarissa colt, although nothing less than 20
to 1 was taken, was the only one in force for this event,
For the Derby, 25 to 1 was freely taken about St. Aloxi6'
Closing prices :

CHESTER CUP.
Bto 1 agst Zodiac (taken)
100 to 8 agst Fairwater (offered)
100 to 7 agst Hadji Stavros (offered)
20 to 1 agst Simla (taken)
25 to 1 agst Sappho (wanted)
25 to 1 agst Dalesman (offered)
25 to 1 agst Stampedo (offered)
30 to 1 agst Victrix (offered)
33 to 1 agst Caller Ou (offered)
50 to 1 agst Agag (offered)
50 to 1 agst Butterfly (taken)
50 to 1 agst Rubicon (offered)
50 to 1 agst Chere Arnie (offered)
66 to 1 agst Wild Rose (taken)
TWO TIIOUSAND GUINEAS.
stolon the field (offered)
7to 1 agst Caterer (taken)
10 to 1 agst Nottingham (taken)
16 to 1 agst Wingrave (taken)
20 to 1 agst Clarissa colt (taken)
25 to 1 agst Buckenham (offered)
40 to 1 agst Balder (offered)
40 to 1 agst Hubert (taken)
THE DERBY.
11 to 2 agst Buckstone (offered)
16 to 1 agst Ensign (taken)
20 to 1 agst Old Calabar (taken)
25 to 1 agst St. Alexis (taken)
25 to 1 agst Zetland (offered)
30 to 1 agst Duke Rollo (taken)
40 to 1 neat N opt unng (taken)
50 to 1 agst Clarissa colt (taken)
100 to 1 agst Hubert (taken)

COUNTRY 11.1.A1&KL1

4,-

NOTTINGHAM—APRIL 26. 4
At this Corn Exchange to-day there was a fair show of
wheat on offer for the time of the year, the condition of
which was tolerable. The demand quiet, at former rates-
-White, from 61s to 665; red, 42s to 635. Barley was
in small show, with a fair trade, and prices rather higher
—malting, 37s to 41s •,
g, 29s to 31s. Oats were
steady at 30s to 355, old ; 23s to 27s new. Beans were sold
at 38s to 50s per qr. Flour, 38s to 435.

GRANTHAM—APRIL 26.
The trade to-day was rather dull, but prices were full
equal to last week's quotations. A limited supply of wheat-
Old, 50s to 5Ss, and 60s to 63s for superior lots. A good
demand for barley, supply short—malting sorts 36s to 400,
grinding 30s to 32s per qr. Oats quoted at 23s to 34s
per 24 stone. Beans, old, 42s to 465; peas, 36s to 40s.

NORWICH—APRIL 26.
Wheat to-day was in rather better supply, and sold 0
the turn in buyers' favour. The quantity of barley show%
was seanty, and is to 2s over the prices of last week. Oats'
beans, and peas unaltered. Four easier to purchase.
White wheat 60s to 63s I Red wheat 58s to 621
qn;
Malting barley....39s to 40s I Chevalier barley 35e to -,,,,,,-
New do.. .... .... —s to —s I Oats.. 25, to 3uo
Flour, 40s 6d to 41s Od per sack from the miller.

YORK—APRIL 26.
We had again but a limited supply of wheat to-cl!O
the demand for which ruled inactive, and late prices mair
tained. Barley an improved business, and scarce; former
prices were exceeded by is. Oats slow. Beans had a ter
dency to advance.
Wheat, red 56s to 60s I Oats....
White do .60s to 64s Beans
Barley .30s to 38s I Peas
Malt, 66s to 68s per qr. ; rye, 34s per qr...;"
flour, 2
to 45s per sack. —4 02
ttt
000
_24)3

LEICESTER—APRIL 26.
The supply of wheat to-day at market rather limitoeat
at late currences. White, 62s to 665; red, 60s to 6°B:
old red, 52s to 57s per 36 stone. Barley was in short stiP.
ply—grinding, 30s to 325; malting, 34s to 38s per
oats, 24s to 28s per 24 stone. Beans were a ready sale'
new, 36s to 38s ; old, 42s to 45s per 38 stone.
Fine flour, 44s I Seconds, 42s I Thirds, 40s per sack.

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BIRTHS.
DENDY.— On the 25th inst., the wife of Edward S. Dendrt
Esq., Chester Herald, of a son.
HANKEY.—On the 25th inst., at Lowndes• square, S.W.,
the wife of H. B. Hankey, Commander R.N., of `ll

daughter.
MAuDE.—On the 24th inst., at St. George's-square, th°
Hon. Mrs. H. Haude, of a son.
WINGFIELD.—On the 22d inst., at the:Rectory, Glatt()11!
Hunts; the wife of the Rev. G. Wingfia, of twins, son
and daughter,