The Sun.
London, England, 1838-02-07 00:00:00

BOOTH V. LSYCESTER.

The arguments in this appeal, which were partly heard yesterday,
were resumed to-day, but had not concluded when we left. The case ap_
pears likely to occupy the whole day. We gave a short statement of
the facts yesterday.
His Honour the Vicc.CitANcuLoa did not sit to-day.

QUEEN'S BENCH-(THIS DAY.)

THE QUEEN V. GARDNER AND OTHERS.

Mr. PLATT, Mr. HUMPHREYS, and Mr. LEE, appeared for the prose-
cution, and Mr. F. KELLY and Mr. C. PHILLIPS, for the defendants.
It was an indictment against the defendant and eleven others, for a
riot upon Hackney Down, on the 14th of August last. It appeared
that a right of common was claimed by the defendants and others, and
that for a long period of years, they were in the habit of turning in
their cattle to graze upon the Common on the 12th of August. The
prosecutor, Mr. Adamson, had at the time several acres of corn growing
upon the Common, and seven or eight acres of it remained upon the
ground on the 14th, when a large body of persons, among whom were
the defendants, broke in upon the ground and carried off the corn. It
appeared further, that there was some negligence on the part of the
prosecutor, Mr. Adamson, who had been admonished on the I I th, to
remove the corn, and that a place would be provided him for drying it,
which he did not avail himself of.

After a portion of the evidence for the prosecution had been read,
Lord DENMAN expressed his regret that the prosecutor had not made
sufficient exertion to prevent the destruction of property that had taken
place, as he must have been aware that such a right of common existed.
At the same time that was no justification of the conduct of the defen-
dants, who had committed a gross violation of the law.
Mr. KELLY, for the defendants, after what had fallen from his Lord-
ship, had no hesitation in expressing the great regret of the defendants
for what had occurred, and they would be glad to submit to any
arrangement suggested by the Court which would terminate the pro-
ceedings. _ . _

Lord DENMCN thought the best course would be for the defendants,
who had all been fixed as parties in the riot, to plead guilty, and enter
into their own recognizances to appear and receive the judgment of the
Court should any future breach of law take place. He thought such an
arrangement would be an act of mercy to the defendants.
Mr. KELLY said the defendants could not have the slightest objection
to such a course. He hoped, also, the prosecutor would not forget the
observations of his Lordship.
Lord DEN MAN said a little consideration would have, perhaps, pre.
vented the occurrence, where a right existed on the part of the public.
Mr. HUMPHREYS observed that all the prosecutors required was that
they should be protected from future violence, as property to the amount
of 1001. and upwards had been carried off.

The defendants then entered into their own recognizances, and were
discharged.

COMMON PLEAS.-(THIS DAY.):

(Sittings at Nisi Prius, before the Loan Cuiae JUSTICE'' and a Spe-

cial Jury.)
JONES V. HEATON.

This is an action brought to recover damages for the infringement
of a patent for making bricks. It occupied the Court the whole of yes-
terday, and is not likely to terminate until a late hour to-day.

EXCHEQUER COURT.-(THIS DAY.)

(Before Lord A BINGER and a Special Jury.)
NAPIER V. HARVEY, ESQ., M. P.

This action was brought by the celebrated engineer against the Hon.
Member for Southwark, to recover the sum of 7501, the balance of
1,000/., which was the contract price for a steam-engine furnished to the
Hon. Defendant, for the purpose of printing the True Sun.
Mr. KELLY stated the case for the plaintiff. He said there was no
dispute between the parties as to the delivery of the engine, and of its
perfect efficiency. He was in a condition to prove that Mr. Harvey had
repeatedly expressed his entire satisfaction with it, and that it was per.
feet in all its parts.
Lord ABINGER had no wish to induce any gentleman to take a course
which he was not inclined to; but looking at the pleadings in the case,
he felt bound to ask, whether it was not one which might be better set-
tled out of Court.
• "

Mr. KELLY said they had been before a Judge at chambers, who had,
by consent, made an order which made it nece.-sary fur him to go on.
He believed it would not be disputed that 7501. was due to the plaintiff
Among the pleas on the record was one which stated that the engine
was contracted for to be ready and delivered on the 26th January, or
that there should be a demurrage of 251. per day for every day
after that date, until the engine was in working order, and Mr.
Harvey claimed the 251. per day from the 28th January till the
28th May, when the engine was perfected. In the contract there
was a clause, saving the demurrage in case of a general strike amongst
the workmen of the plaintiff, which rendered the contract bad in law.
The declaration in Mr. Harvey's action was demurred to, and the
Judges' order to which he had before alluded was made, by which Mr.
Harvey was restricted to only such damage as he had actually sustained,
which was the only real question in the cause.

Lord AalNoea felt some difficulty with respect to the order; it
made him, a Judge sitting in Court, a mere arbitrator, and that was
made by a Judge at Chambers ; there was in reality no issue to try. It
was a mere enquiry into damages; could they not select some other
arbitrator ?

Mr. PLATT (who with Mr. Channel appeared for Mr. Harvey) said he
had not the slightest objection to follow the course pointed out by the
Court. Mr. Harvey's object was merely to obtain justice. He and Mr.
Napier were still very good friends, though they had that difference,
and had been together yesterday, in order to settle the matter if possible.
Lord ABINGER—I feel embarrassed by the order. I think it will
be much the better way to appoint a gentleman to settle all matters
in dispute.
Mr. PL&TY—I am ready to adopt the suggestion.
Mr. KELLY—AII we are afraid of is the delay which may take place.
Mr. PLATT—There can be no delay. This is not a case in which his
Lordship would grant speedy execution, and you can have your award,
if it is in your favour, by the first day of next Term.
The Counsel conferred for some time, and
Mr. KELLY sail they had agreed to refer all matters in dispute to Mr.
Mauls upon the usual terms.

PLLTT would have it most distinctly understood that he did not
admit one of Mr. Kelly's statements. He believed he was in a con-
dition to show that Mr. Harvey had sustained an actual damage to the
amount of 1,300/.

Lotd ABINGEIL—Nothing is admitted, and the cause is referred.

A man named John Pye, who lived with his bro-
ther, a bird-fancier, at No. 15, Little Shire-lane, Temple-bar,
was yesterday morning, at an early hour, discovered lying,
apparently asleep, on the pavement in the back yard. His bro-
ther attempted to arouse him, hut to his horror he found him a
stiffened corpse ! It ii supposed that the unfortunate man,
who was in a bad state of health, had got up in the middle of
the night and gone down stairs, on reaching the yard had
slipped dow,n„a.nd being too weak to rise, or even to call for
assistance, naa been frozen to death.
THE WRECK OF THE KILLARNEY.—Thurs-
day, in Cork, an inquest was held on the body of Mr. Maurice
Morrissy, one of the sufferers who perished in this lamentable
wreck. The Captain and others belonging to the steamer
were examined, but nothing additional to that already F `fated
in
the public papers was elicited from their testimony. Tho pro
ceedings were adjourned to next day.