The Sun.
London, England, 1822-12-11 00:00:00

LAW INTELLIGENCE.

COURT OF CHANCERY, DEC. 10.
LORD PORTSMOUTH.
The ATTORNEY-GENERAL said, that as Mr. iforne was
now in Court, it was desirablethat his Lordship should hear his
opinion on the day which his Lordship had been pleased to fix
for the hearing—namely, Thursday. •
Mr. Hon's; E said, that he had read over the large mass of
affidavits which had been filed, and he wished to know, in the
event of Lady Portsmouth withdrawing her opposition to the
commission of lunacy, if the Counsel on the other side would
consent to put aside a particular part of the case, which heneed
not mention more particularly. If they refused it, he trusted
that the Court would undertake to prevent his client from suf-
fering that exposition which, without being allied to the case, it
was intended to produce at the bar.
Mr. W/ETHERELL submitted, that the Court had no such
power, as it lay with him to say whether he would produce
it Or not.
Mr. HoRNE said, that if Mr. Wetherell would say what he
meant to do, he should then hear the determination of the
Counsel for Lady Portsmouth.
Mr. WETHERELL refused to stipulate any conditions as to
'what he meant to do.
Mr. HORNE said that he would not say then whether the ap-
peal should be withdrawn or not.
The ATTORNEY-GENERALl'Objected to offering any con-
ditions on the event of Lady Portsmouth withdrawing the
appeal.
The Loan CnAwcELyon said, with deference-to them all,
he thought he had a right to know if the appeal were to be with-
drawn; and then from the other' side what course they meant
to pursue on the appeal being withdrawn.
Mr. HART said something upon the danger to the parties of
representations being made prematurely of the proceedings out
of doors.
The LORD CHANCELLOR upon this subject wished to say a
few words. He had been most unaccountably represented in
those oracles of truth—the newspapers—as having said that any
one was at liberty to publish any part of any proceedings in
Courts of Justice at any time, whether before or after the deci-
sion. He spoke in the hearing of a Bar-which had long known
him ; if any thing could be more opposed' to the opinions
which he had always held upon that subject ever since he had
first entered. Westminster Hall in the character of a Judge ; all
who had walked,up and down must have known the contrary
to be his opinion. If, however, the matter came before him in
a regular way, he would take care that his opinion should be
clearly known. The course he would take should be this—he
' would request the opinion of some of the Judges, and after due
consultation they might agree upon a decision which would
settle the question once for all. He could readily see the hard-
ship there would be in proceeding against persons who had
given reports under the supposition that they were fully war-
ranted by law' and he would take care that the Court should
not treat suchpersons as offenders, without first giving them
perfect notice that they would be so treated in future ; but the
least reflection would show that there could be no warrant for
such a right in law. At a late case in the Old Bailey, the pre-
siding Judge had thought It necessary to prohibit premature
publication, and had proceeded to punish a party offending
against his order. He remembered, as if it were hut yesterday,
a case where the Attorney-General gave notice to the clerks of
public offices, that if they published any information gathered
from their official callings respecting parties under trial, or
about to undergo trial, he would file informations against esery
one of them. Ile would now either deny or affirm the legality
of the practice; but he would give his opinion if ever the sub..
ject should come before him, and he would see whet redress
could be afforded to' parties suffering from it.
Mr. HonNE intimated his hope that they should have the
advantage of his Lordship's opinion to defend the character of
Lady Portsmouth on the present occasion.
The Loan CHANCELLOR informed Mr. Horne that he
had fixed Thursday for the hearing, and that when he should
come into Court on that morning he would require to know
whether or not the opposition were to be withdrawn, upon which
he should know what he ought to do.
Mr. WETHERELL began to address the Court, when
Mr. HORNE required him to say if he wished the caveat of
Lady Portsmouth to be withdrawn.
Mr. WETHERELL meant no such thing. The Counsel for
Lord Portsmouth would take their own sense of justice and pro-
priety.
Mr. HORNE.—" Are you Counsel for Lord Portsmouth ?"
Mr. HEALD wished the Court to allow him to explain the
impression which they had felt out of Court among themselves,
which, as the case now stood, the Court was not fully in pos-
session of. His Lordship was aware, that Mr. Treslove had on
a former occasion expressed his belief, adding the names of some
other Counsel to his own, that some of the affidavits first filed
were scandalous. He therefore made an application, impro-
perly as it was now admitted, that such affidavits should be re-
ferred to the Master. His Lordship was of opinion that in a
case of lunacy, the Master was not the tribunal for judging
what was scandalous or otherwise, and no one could doubt the
propriety of that judgment : because, if the Master were the
proper tribunal, no question of sanity or insanity could ever
come before his Lordship at-all. His Lordship decided, there-
fore, that he would read the affidavits, and say whether they
were scandalous or not. When the Counsel for Lady Ports-
mouth came to this stage of the cause, they thought that the
affidavits, whether scandalous or not, did not press upon them
at all. When he rose the other day to state that he did not ap-
pear for Lady, but for Lord Portsmouth, and that he hoped
to satisfy the Court that they were not hurt by the affidavits,
he was aware that his Lordship was not trying the question of
continence or incontinence, but of sanity or insanity. He was
equally aware that if Lady Portsmouth had forgotten her duty
to her husband, and had acted openly and publicly in so scandal-
ous and flagitious a manner as was insinuated, though not
proved, it would be a strong circumstance with his Lordship to
decide on the state of intellect which could witness it with un-
ruffled temper. He thought himself strong on the point of de-
fence, both in regard to former proceedings and her Ladyship's
conduct. But by the effect of 60 new affidavits, he perceived
that the question of sanity was converted into one of continence
or incontinence. As there was another tribunal to judge the
question of sanity or insanity, and his Lordships' doubts on the
subject were enough to send it there, her Ladyship's Counsel
could not consent to enter a question which was now almost
confined to her character. Such was the difficulty of coping
with the affidavits, because of the jurisdiction. Every one
would allow that this Court was not the place to try the ques-
tion if Lady Portsmouth had been guilty of adultery or not.—
He would not conceal the expressions which had been used, be-
cause the public papers had already given out nearly the whole
case piece-meal. But that was the real question contained in the
affidavits— the discussion of which they declined, because they
had no even chance. If his Lordship should be of opinion that
there was no adultery after their showing that the witnesses were
not to be believed, that was'not the fact to be tried. There
could be po verdict of acquittal; and after all, it might be de-
termined that Lord Portsmouth was a fit subject for a commis-
sion of lunacy, or that there was enough to send to a Jury.—
Either, in the public eye, would be received as a failure in the
defence of her Ladyship's character. Her Counsel had also
considered, that' in all cases of lunacy hitherto (he spoke it in
deference to his Lordship's perfect knowledge of the history in
matters of lunacy), the alleged lunatic appeared by Counsel
who took no part in it. The petitioner appeared to support the,
alleged insanity, and then the proper parties came forward to
resist the commission. Bat when a Noble Lord or any other
person was alleged to be insane, was it not anomalous that he
should be considered sane by some Solicitor or Counsel acting
for him, and yet no proof to be tendered of his insanity ? Were
they to take up the matter earnestly, and not in mockery of re-
presentation, and say he was not insane, and that Mr. Newton
Fellowes was mistaken, then justice would be done; and a
complete defence might be set up by parties who would not
have to risk the same peril and exposure as Lady Portsmouth ;
for his Lordship would recollect what had occurred before—
when the GentlOnen of Hants offered to come forward in num-
bers—hundreds of them—
The ATTORNEY-GENERAL.—Are you to go on with the
case now ?
Mr. HEALD said the same thing might happen again, and
Lady Portsmouth withdrawing from the contest because of the
irrelevant matter of the affidavits, which made it unfit for her
counsel to argue the case, it might be taken up by others who
had nothing of the same kind to fear. But he appealed to his
Lordship, if, after Lady Portsmouth's withdrawing from the
contest, there could be a fit case for a Jury, Lord Portsmouth
not being duly represented. In withdrawing Lady Portsmouth
from the case, lie begged leave to put it to his Lordship, if'
there should not be a substantial defence set up for the sanity

of Lord Portsmouth, without which he humbly conceived there
could not be full and equal justice.

Mr. HART observed that the Counsel for Lord Portsmouth
would fulfil their duty without attending to the instructions of-
fered from the other side.

Mr. TRESLOVE said that the imputations in the affidavits as
to Lady Portsmouth no more affacted Lord Portsmouth than
any other person in the Court. It was not alleged that Lord
Portsmouth was privy to any part of that conduct imputed to
her Ladyship. Be it true or false, it could be no evidence of
sanity or insanity,• which was the only question before the Court.
Her Counsel, therefore, declined going into such facts.
The LORD CIIANCELLOR:—Vou may jatide for yourselves
whether you will withdraw from this matter or not : but if you
state reasons for it, I must hear the answer. On Thursday I
shall know your determination. If you withdraw, you are no
longer Counsel authorized to apply to me on the subject: but
I respect you all so much, that what you have to offer will be
received by me with proper attention.: 'yet I shall tndeavour to
do my duty in this 'complicated and painful case.
Mr. Tit ESLOVE thought it right tnstate the reasons of the
Counsel for advising Lady Portstnoutk to. withdraw, as the
question of sanity might, withourliero bzfore a.Jury, and
the question as to the charges in the affidavits was not any
where connected with that of the sanity or insanity of Lord
Portsmouth.

The AT'isORVEY-GENERAL would not have spoken had
the subject rested with the remarks of Mr. Home : but as Mr.
Heald and Mr. Treslove had made speeches to throw the blame
on the other party and to exculpate 'their client, he was con-
strained to shew how futile their effiirts had been. What could
be weaker than the speech of Mr. Treslove ? Who was it that
tendered the issue in this case ? Lady Portsmouth had put in
an affidavit to justify her conduct, denying the adultery—was it
material or not, that her allegations were worthy of credit ? The
case of adultery being proved, what became of her affidavit as
to the sanity of Lord Portsmouth, and her treatment, during
five years ? On the part of Mr. Fellowes he had, been anxious,
as far as consisted with his duty., to withhold from his Lord-
ship any discussion not connected with the, case; but he could
not sit still and hear speeches from the other side, in attack on
the character of the petitioner and his father. It would be for
his Lordship to decide on Thursday, if he would allow Coutv•
sel for the defence,* the appeal being withdi awn.
Mr. HEALD said, that the object was to prevent the repeti-
tion of what had taken place, and they would not wait till Thurs-
day, but immediately withdraw their opposition.
Mr. SHADWELL.—" Do you withdraw the caveat or not ?"
Mr. HEALD knew. nothing about the caveat.
The ATTORNEY-GEN-nar,.—lt is your own caveat."
' Mr. HEALD said that would be for further consideration,—
He begged his Lordship to understand that, for reasons al-
ready expressed,, they did not wish the matter discussed, and
that they would say nothing on Thursday.
The AT felt himself compelled to reply
to what had been advanced. The number of affidavits com-
plained of was in part, evidence bf their truth ; and, being so,
lie could not wonder at the soreness of the other side. He ob.
jected to their anode of withdrawing from the case,which should
have been done without speeches, unless they wished to have
them answered on the part of Mr. Fellowes. On the behalf of
this Gentleman he refused all compromise or conditions. When
the Counsel on the other side had decided on their course, he
should know what to do. He relied on his Lordship's sense of
justice to settle between the parties, well knowing that he could
not be influenced by speeches to which there could be no fair
opportunity of replying.
Mr. HEALD had hoped to save some trouble by saying what
he had to offer now.

The LORD CHANtELLOR.-It is of no consequence whether
the caveat be withdrawn or not. There has been a great va-
riety of affidavits filed on the nature of it. lie could only con-
sider of the matter which had been laid before him on Thurs-
day, when he should learn whether or not they withdrew. from
the contest.

Mr. HEALD was anxious to be understood, in concurrence
with Mr. Treslove, the solicitor, and the other Comisel (Mr.
Horne exceptecLwith whohLhe had not yet coitsulted) as with—,
drawing from the question, for the reasons which he had stated.
He objected to letting it stand over till Thursday, and the con-
sequent repetition of most of what had passed to-day..
The Lotto CuAxcELLort.—Then it remains with me to
give judgment on Thursday.
Mr. WETHERELL wished to have an opportunity of defend-
ing Mr. Fellowes, the author of these proceedings. When the
case came to be heard, it was his intention to ask that the affi-
davits of Mr. Alder, Lady Portsmouth, and perhaps some
other parties, should be sent to the Attorney-General to undergo
that just visitation of the law which so scandalous and iniqui-
tous perjury justly demanded from the insulted dignity of the
judicature. If that. were not the proper course, the Attorney.
General having been Counsel in the case, he would ask that
the papers should be sent to the Solicitor-General • and if that
were.not the fit course, then that an information should be filed
against them : lastly, that his Lordship should consider if some
other animadversion should not be put on those who made the
affidavits. He considered that the defence against the commis.
sion had been a flagrant indignity to the purity ofjustice.—
He would not now enter into all the reasons he should urge :
but in answer to 111 r. Treslove, as to the importance of the
charge of adultery, he had in his opening expressly pointed
out, as an indication of the state of this unhappy Noble Man's
mind, that he was not conscious of the crime of adultery, that
his mind could not apprehend the illicit intercourse which was
going on, though it was impossible for a rational man not to
apprehend it. The fact was sworn to, that the adulterer, the
husband, and the wife, were found together in the very Same
bed. The affidavit answering this negatived the adultery.--
Did not they tender the issue ? Was not the fact of adultery
material, when one of the grounds of imputation was, that the
adultery was committed in the bed on which the husband was
sleeping ? What man would be bold enough, who recollected
. the legal relations of evidence, to say, that the credibility- of
Lady Portsmouth, on the question of her own adultery, was
not one of the many questions in th case; or 'that thz fact of
adultery was not one of the most material in trying the ques-
tion of sanity or insanity—,that adultery having been committed
in the bed whereon the patient was lying ?, To attempt to
answer him who would grapple with such a proposition, would
be folly. Mr. Alder had couched his affidavit in most studied
and guarded expr6sions, negativing adultery at all times and
in all places, and under all circumstances, in England, in Scot-
,
land—every where.
Mr. HORNE said that this was very wrong.
Mr. WE T ERE L L said that he would be heard.

The subject of interruption being referri:d to the Court, •
The LORD CHANCELLOR said, he thought Mr. Wetherell
would be entitled, on Thursday, to apply to the Court fora
hearing on any points he might deem to require an answer. lie
would preface the proceedings of that day by observing, that
should he then be of opinion that the commission ought to issue,
that would not of itself decide that the party should be treated
as a lunatic ; but the Court would send the , matter before a
Jury of the cotintry, to try whether or not it be a proper object
of such inquiry. If my opinion is, that the commission ought
to issue, I really shall feel no disposition to hear you. I agreed
before, that if you perceive my disposition is not to grant the
thing, he (Mr. Wetherell) would be entitled, after what had
passed, to submit that he (the Lord Chancellor) was about to
express a wrong opinion. He would suggest as to the other
requests of the Learned Counsel, if the Court could grant them
at all. The matter might go before a Jury : until the Jury had
determined on the worth of the affidavits, and the testimony
which would be offered to them besides, he could not prejudice
the inquiry by reflections on any party : on ..the other hand,
though he respected Mr. Treslove's former suggestion, not
to permit the question of adultery to be agitated unless he
could connect it with the question of sanity, he felt satisfied
that he could so connect it : and it was connected in such a
way that he could not, if he wished, shut it out.
Mr. IItALD justified the course hc.had taken by reference
to his former reasons : should Mr. Wetherell make his pro-
mised application, they would come forward again.

Mr. WETHERELL wished not to be interrupted.
The LORD CHANCELLOR asked if it was worth his while
to go on giving the Court notice of A motion ?
Mr. HORNE observed, that the caveat was withdrawn. 'lf
any thing like the threat made should be attempted, he hoped
his Lordship would give, them an opportunity of answering
whether the caveat were withdrawn or not.
The LORD CHANCELLOR observed, that he had always
taken as much care as he could that the characters of parties
should not suffer unnecessarily.
'Mr. WETHERELL wished distinctly to hear if the caveat
were withdrawn Or not.
Mr. HORNE could only hope-to satisfy the Couit—not his
Learned Friend. They would withdraw the caveat, and judg-
ment would be given on Thursday. If any new matter should

be offered, he trusted that his Lordship would hearthem in
answer, caveat or no caveat.

Mr. WETHERELL complained of the length and matter of
the speeches made in withdrawing the caveat, in reply to which
he would claim to be heard on Thursday. He,coultl not but
remind hiS Lordship of what had taken place in correction of
the statement of Mr. Heald and Mr.Vreslove. The affidavits
for the con-mission went to make out the fact of adultery. They
were declared to be scandalous, and an application was made to
take them off the file. His Lordship ruled that they could be
used as a medium. The proceedings on the part of Mr. New-
ton FelloWes Were described by the several Counsel as gross ca-
lumnies on Mr. Alder, Lady Portsmouth, and the other
members of that part of the family. They filed a great many
atlidavits'to refute,the imputation of adultery, most distinctly
and cautiously denying the fact. Leave. was given by the
Court to reply to them, and the answer was contained in affida-
vits between sixty and seventy in number. He believed theie
must have been a hundred in England and Scotland together ;
for they were sworn in Shropshire, in Hampshire, in almost
every county—in London, where houses were hired as species
of
,brpthels--
The LORD CHANCELLOR wished to know what was the ob-
ject of this to-day ?
M r.'WETHE REY. L said it was to answer the remarks of Mr.
Treslove as to the connexion of these facts with the case.

The LOUD CIIANCELLOR.—I have already said I think
they have connexion with the case.
Mr. WETHERELL thought he had a right to be heard either
now or on 'Thursday.
The LORD CIIANCi'LLOR, thought that the contingency
must depend upon what they heard from him.
r. 1 RESLOVE said, that Mr. Wetherell might as well go
into Lincoln's-inn-zgarden to say all this, as to have pronounced
it in the Court.

WE THERE L L did not object to the pleasantry, though
he would not let it baffle him from a sound argument. Two
nerions had sworn that there was no adultery, and a hundred
had sworn that there was. That was not quite so lfacetious,
but a little more difficult to get over than his Learned Friend's
pleasantry, and p stronger argument than any from the other
side.

. The LORD CHANCELLOR wished Mr. Wetherell to choose
between mow and Thursday.
• Mr. 'WETHERELL declined speaking now, as he hoped to
have the opportunity of defending his client, Mr. Newton Fel-
lowes, on Thursday, from the calumnies ar.d imputations which
had been heaped upon him by the Countess of Portsmouth and
Mr. Alder, and which had been refuted by one hundred and
thirty witness,:s.

SIR CHARLES LONG IN THE MATTER OF BROTHERS
AND HEATH, BANKRUPTS.
_. _

The Loan CHANCELLOR had looked into the circumstances
of this case, which appeared to resolve itself into two branches—
first,
whether in point of form the certificate ought to be stayed ;
and, secondly,:upon the true construction of the Act of Parlia-
ment, any person, and what person could prove the debt for the
purpose of signing the certificate ? With respect to the case it-
self, his Lordship was, under all the circumstances he found de-
tailed in the papers, greatly surprised that the Commissioners had
signed the certificate. The parties had surrendered in May, and,
as soon as the two months were out, the creditors took out a
commission of bankruptcy, which produced a statement on the
part of" the bankrupt, , that his debts amounted to 14,0001.,
10,0001. of which belonged to the Agents at Calcutta, who to
this day knew nothing of the. matter. This was to all in-
tents and purposes a white-washing commission. His opinion
was, that it was not necessary to sign the petition main; or
to give notice of the affidavits before they were filed. With
respect to whether any persons were entitled to prove for the
purpose of signing the certificate, this would depend, not upon
one. Act of Parliament, bat on several clauses of six or seven,
with the contents of which he was at present wholly unac-
quainted. If the Commissioners were of opinion that the bAnk-
rupt had conformed to the statute after 'the suing out of the
commission, they were not tb look at his previous conduct at all.
It was not their only duty to see that four-fifths had signed, but
that tlig.bankrupt had acted np...to the laws. In_the present in-
stancelis Lordship did not think he had. lie did not think lie
had made proper discovery ; and the question was, the Chan-
cellor' entertaining this opinion, whether lie was not bound to
grant it ? With respect to the papers which related to military
money, the hospital had a tight to inspect the book, and he did
not apprehend that the bankrupt could prevent the inspection.
If he were obliged to decide this case to-day, he certainly should
not be in a great hurry to grant the certificate, as it was evi-
dently a whip-hand-cut affair to get through the business;
but if they had conformed to the statute, the Court had no alter-
native but to grant it.. After consulting with the Viee-Chan:.
cellor, he would decide the matter on another day.

BEER Z. WARD.
Mr. llAnT's reply was continued during the rest of the sit-
ing; and was adjourned over at three o'clock.

VICE-CHANCELLOR'S COURT, DEc.lO.

This WAS the second seal after term ; no motion of import:
ce was Made during the day.

RULE FOR CONDUCTING BUSINESS.

The VlCE:Citax CEL Lon, immediately before the rising of
the Court, addressed the bar in nearly the following terms :--I
wish to lay down a general rule to be observed by the bari
with respect to the time for the making of ex-parte application
for injunction and writs of ne erect regiw. I am pressed by
applications of this nature at the rising of the Court. Nothing
is so nice as these cases frequently are ; and on account of their
being ex parte, they require the most serious deliberation of the
Court ; and yet lam frequently called upon to decide theni
when I. am' on.my legs. I think it would be establishing a
good rule, (without presuming to expect that it should be pdopt-
ed by auy lather Court) to give cx parte applications of the
nature which I have described precedence of ail other
motions, and to allow them to be made early. I shall
then have an opportunity of deliberately. considering them.
I am anxious to relieve the Lord. Chancellor from as
much business as I can, because he has a great deal to
perform, which is necessarily peculiar to him. I think that
the rule 1 have laid down must be as agreeable to the bar as it
is to my own feelings. I have frequently of late regretted the
hasty manner in which I have been compelled to decide upon
cx parte applications. An injunction when unnecessarily grant,
ed may effect the greatest injury to the defendant, and nothing
can be more injurious than a verdict of ne exeat reguo when
improperly granted.

COURT OF DING'S BENCH, DEC. 1.
THE KING ✓. LORD CADOGAN.

This was an indictment against the Earl of Cadogan, for suf-
fering a wall, which supports a terraced road in Chelsea, on the
banks of the Thames, to remain in a state of dangerous decay.
The first count of the indictment stated that a number of trees
belonging to the defendant were growing near the wall, and that
their roots pressing against' it caused it to fall down ' • and pro-
ceeded to set forth, that the defandant was bound to repair
the wall, by reason of his tenure of certain landt. The other
counts chafged generally, that the defendant was liable to re•
pair by reason of his tenure ; and that, being so liable, he per-
mitted the wall to be and remain in decay.
On the part of the prosecution it appeared that Lord Cado-
gan was Lord of the Manor of Chelsea, and that the manor was
co-extensive with the parish. Aged witnesses were called, who
proved that the predecessors of Lord Cadogan had, at different
times, for a period of more than fifty years, repaired different
portioni of the wall. The cage, at one end of the wall, which
was built upon it, was used by the parish for the confinement
of offenders, but they had paid an acknowledgement of half-a-
crown & year to his Lordship for its use. A claim had been
made on the part of Lord Cadogan for a quit rent for stairs
leading to the river, and on refusal to pay it they were stopped
up. ft appeared that the road was 30 feet wide; the trees were
close to the wall ; and on the other side was a row of houses
which did not belofo, to Lord Cadogan. The trees had been
claimed by Lord Cadogan, and were fenced off by railing
which he supported. ThiS road was described as au ancient
road in an Act of Parliament passed in the reign of George 1.,
where it was represented as leading from James-street, West-
minster, to Chelsea-ferry. Mr. Robinson, an eminent sur-
veyor, proved that the road was in a dangerous condition, and
thought its decay to be attributed in a great measure to the
roots of the tieespressing against it.
Mr. ScaftLETT, for the defendant, relied on two grounds of
answer to the prosecution;—first, that the road itsef was not
shewn to bean ancient road, being evidently.intended for the
comfort of the inhabitants of the houses which were built
long within the time of legal memory; and secondly, that if the
wall was originally built by the predecessor. of Lord Cadogan,
it was dedicated to the public; who alone, as they. enjoyed
the benefit, ought to repair it. To fortify his case, he called
a number of witnesses, who proved that several individuals

along the line of the wall had repaired such portions of it as
were before their own premises.
•
The LORD CHIEF JUSTICE observed, that supposing Lord
Cadogan had no liability to repair by reason of his tenure, he
did not think the Jury could convict him of a nuisance on the
first count of the 'declaration' for suffering his trees to injure the
wall, because that count, read altogether, charged a neglect to
perform a duty arising from tenure, and could only be inter-
preted with fairness as directed to this end. The first point for
the .Jury to consider was, whether this road existed as a raised
road before the time of legal memory ,
.because, if it was treated
since, a liability to repair from time immemorial could not be
supported, If they thought the road did so exist, they would
then weigh the evidence on each side as to the custom ; and so
decide for theniselves whether they were satisfied from that
evidence that LOrd Cadogan was hound to repair by reason of
his tenure.

The Jury retired for an hour, and then returned a verdict of
Guilty, deciding the liability of Lord Cadogan to repair the
wall,fdr the spaces set forth in the indictment as ruinous.

BULLOCK V. MALLARD.
This was an action against a gentleman of Essex, on the war,
rarity tg a horse sold by him to the plaintiff for sixty-guineas.
The warranty proved was, that the -horse was perfectly quiet
and would go quiet in harness ; and the witnesses for the plain-
tiff proved that,i on two occasions the horse, when driven in a
gig, kicked violently and became exceedingly restive. One of
these, the groom of Mr. Bullock, admitted that he expected to
receive a guinea from Mr. Mallard at the titne of the sale, and
had received only a -crown. lie had said "he would- take care
of the horse," by which he intended only to do his duty.
Mr. GURNEY., for the defendant, urged the probability that
the restiveness of the horse had been caused by the revenge of
the groom, who expected a larger fee • and called the defend-
ant's coachman, his son, and others, who stated that he had al,
ways been qUiet while they had known him. They had, how-
ever, seen him but little in single harness.' .
The Loan CILIEFJUSTICE left the Jury to decide between
the Positive evidence that the horse was not quiet, and the in-
ference that hemust haVe been so from his previous habits. As
the horse had been sold for 27 guineas, if they foufid for the
plaintiff, they would give the difference between that sum and
G 0 nmineas, and such additional sum for the horse's keep as they
might think proper.
The Jury returned a verdict for the plaintiff.—Damages 441.

COURT OP COMMON PLEAS, DEC. 10.

PLETCHER V. lIIIIGHTHAN.--.ASSAULT ON BOARD SHIP.

' This was an action to recover damages for an assault com-
mitted. by the plaintiff upon the defendant. .
Mr. Sergeant YELL stated the case to the Jury. The plain-
tiff was a surgeon on board a South Sea whale ship. The tle.
fendant was at the time of this transaction the captain of the
ship. It appeared from the evidence of two witnesses, who
were on hoard the ship at the time, that in 1821, while the ship
WAS at sea on her way back to England, some words arose be-
tween-the plaintiff and another person, on which the captain
interfered, and struck the plaintiff several blows with a thick
rope,. and knocked him down, and then struck him when lie
Was down. ' Plaintiff was confined to his hammock for seve-
ral days, in consequence of the ill-treatment received from the
defendant. _ _

These witnesses under Went each a long eras-examination ;
the object of which was to elicit an admission, that they had
heard the plaintiff use very provoking and disrespectful lan-
guage' to the captain ; but neither of them could recollect that
.the plaintiff had used such words. They were not nearenough
to have heard all that passed.
' Mr. Sergeant ViuGHAN, for the defendant, admitted that
a verdict must pass against his client, who did not enter a jus-
tification upon the record ; but he would adduce such evidence
its Would satisfy the. Jury, that the plaintiff was not entitled to
more than nominal damages. It would appear, that the de-
fendant had at first only intended to prevent the plaintiff from
fighting with another on board (as was his duty as captain), and
that when Imam/ done so, the plaintiff told him that he was not-
fit to be captain of a ship, and that he (plaintiff) would have a
rope for him when he got to England.
The two mates of th ship were called to prove these facts,
which they did. They added, that the plaintiff was not con-
fined to his bed so long as was asserted by his witnesses ; but
that he was well able to do his duty if he bad chosen.
On their cross-examination they admitted that the Captain
struck the plaintiff several severe blows, but not until after he
(plaintiff) had used the provoking language.
31r. Sergeant PELL replied, and
The Lord Chief Justice DALLAS summed up, leaving to the
JUry to say, under all the circumstances, to what damages the
plaintiff was entitled. In his Lordship's opinion, they ought
to be tempc;rate.
The Jury, after consulting together for a few minutes, re-
turned a vc. duct for the plaintiff—Damages 1001.

MAVOR V. CROOME.

Mr.. Sergeant T..l7Lll7s;ted,-ilithis was an action
of assumpsit brought ,by the assignee of Mr. Pyne, a
bankrupt, to recover a sum of money paid by him to
the defendant, in contemplation of an Act of Bankruptcy.—
In 1818, the bankrupt falling into difficulties, was put
into the Fleet Prison, and was subsequently made a
bankrupt. In 1819, the house which the defendant occupied,
and in respect of which he owed 871. to the defendant for rent,
was assigned to Mr. Thompson, and, from the money paid by
that gentleman for the assignment, the defendant received the
amount of rent due. The question for the Jury and his Lord-
ship would be first, whether the money had actually been paid
under the circumstances stated, and secondly, what would be
the effect of such payment. He should contend that a landlord,
under such circumstances, was not to be protected, as he had
his remedy either by distraining the goods on the premises, or
by ejectment against the tenant.
William H. Pyne, the bankrupt, let the house to Mr. Thomp-
son, for a premium of 2201., out of which he paid the 87/., due
to the defendant for rent.
Cross-examined—There was no property in the house on
which the defendant could have distrained.
Henry Borland proved there was no furniture in the house at
the time mentioned ; witness was a creditor of the bankrupt,
and held the lease, which he gave up on receiving the amount
of his debt from Mr. Thompson.

Mr. Sergeant LENS, for the defendant, contended that the
landlord stood in a different situation from other creditors. lie
had a power of re-entry on the premises, which he waived on
condition of receiving the rent due to him ; by this conduct the
estate of the bankrupt was benefited to the amount of the difference
between 871. and 2201. which would never have been added to the
funds of the bankrupt's estate, if the defendant had not assented
to and confirmed the assignment. No person would have taken the
house from the bankrupt or his assignees, unless the rent had
been paid, as he would have been liable to a distress for the
rent due to the landlord by the former tenant; he, therefore,
contended that the defendant, in his situation of landlord, was
entitled to the favour of the Court, having acted rather benefi-
cially than otherwise, for the bankrupt's estate, and there not
being the slightest ground for a charge of fraudulent preference.
The Jury found a verdict for the defendant, subject to a mo-
tion to set it aside and' enter a verdict for the plaintiff, if the
Court should think the case came within the exceptions of the
Bankrupt Law, and was to be considered as a protected
payment.

The immense fortunes of thefamily of Btrniaparie
(says a writer in a letter from Bologna) astonish
the beholders ; I occupy a palace that lately be-
longed to Lucien ; it was not grand enough for
him ; he has purchased the most magnificent
palace that could be obtained, but yet is out-
rivalled in mansion and displayof living by Prince
BaggiochilThey are suffered to enjoy, peaceably
and unmolested, the wealth they ransacked from
France, and pillaged from invaded nations. Vi-
cissitude of fortune has effected no change in
the Buonaparte pride; all the daughters of Lucien
call themselves Princesses, and will answer to no
other appellation ; they are short clumsy girls,
with no more appearance of personal elegance
than of mental dignity ; for whatever distinction
they arrogate, they have no endowment to dis-
criminate them from the lowest Bolognese females.