The Sun.
London, England, 1836-02-11 00:00:00

KING'S BENCH.-(THIS DAY.)

'FARR V. beGAHEY.
Sir W. FOLLETT (with whom were Mr. PLATT and Mr.
TOMLINSON') stated the case. It was an action brought by
an elector of the parish of St. Pancras, to recover a penalty of
500/. against one of the overseers of that parish, for having, in,
contravention and disobedience of the provisions of the Refortn
Act, wilfully and knowingly placed upon the list of voters for
the Borough of Marylebone, the names of three persons,
namely, Michael Gibbs,' Alexander Frazer, and John H.
Benham, who were not entitled to be so placed, or to vote in
the election of Members to serve in Parliament. The Act
placed a very great power in the hands of the overseers, and it
was of the utmost importance that thershould discharge that
duty fairly and impartially. They had the power of making
out the list of voters, and of objecting to any name that ap-
peared upon the list. If no objection was placed before the
name, then it was not in the power of the Revising Barrister,
or any other person, to remove it. Consequently, if the
Overseers exercised their power improperly, by placing
unqualified persons upon the list, unless persons took
the trouble of going before the Revising Barrister, these
unqualified persons would remain upon the list of voters.
They had very great opportunities of abusing their power, and
might, for party purposes, very much alter the list of voters for
the borough. The Legislature had, however, endeavoured to
counteract that power, and to prevent its being used for patty
purposes ; because in every case where there was any contra-
vention or disobedience of the Act, the overseer or other officer
guilty of it was liable to a penalty of 5001. The Jury had the
power of giving a less sum, according to the circumstances ;
and the object of the present action was not so much the re-
covery of the penalty awarded by the Act, as to compel over-
seers, for the future, not to use their power for party purposes.
The defendant M'Gahey filled the office of overseer of the
parish ; and the question for the Jury to consider would be,
whether, in that office of trust so confided to him, he had wil-
fully contravened and disobeyed the provisions of the Act, by
placing fictitious votes on the list. The question was, had he
wilfully done so ? It might have been done through igno-
rance or carelessness ; but if the Jury believed that to have
been the cause, then the defendant was not liable to the penalty
sued for. By the provisions of the Reform Act, all those who
have occupied their premises for twelve months previously, and
have been rated to the amount of 10/., are entitled to vote.
They must also have paid their rates and their assessed taxes ;
and it was important for the Jury to bear that in mind, for
any person deficient in these respects was not entitled to be
placed on the list. The Learned Counsel then referred to
the 44th section, which gave the overseers authority to
make out the lists. The Overseers were authorized to have
the collectors and assessors of rates and taxes examined before
them, and with all these precautions it must be obvious that if
any name was improperly put on, there must have been a cor-
rupt motive on the part of the overseer. There were three in-
stances laid in the declaration ; one was that of Michael Gibbs.
The collector was present, and the defendant being about to
put down his name, the collector said "that man is not entitled
to vote—he has not resided a sufficient length of time on these
premises, and has not paid his assessed taxes." The reply of
the defendant was—" It is no business of yours—l shall put
down his name as a voter." That name was objected to, and
was subsequently struck off by the Revising Barrister. The
actual offence of the overseer, was not the less that
his attempt to introduce that fraudulent vote had not
succeeded, and if they believed that he had put the
name of a bad voter wilfully on the list, he was
equally culpable. The next instance was that of John H.
Benham, of No. 16, Melton-street ; and the collector ap-
prized the defendant that that person also had not paid his
assessed taxes. The defendant, notwithstanding that caution,
said it made no difference, and put him down. That name
was objected to, and struck off. The third instance was that
of Alexander Frazer, of 6, Tottenham-court, New-road.
That person was well known to the defendant, and they had
acted on behalf of the same party together. The same
answer was given by the collector—that Frazer had not paid
his rates, and was not entitled to vote. In that case also the
Jury would see there was a distinct notice given to the de-
fendant, and the fact actually was that he was considerably in
arrear, and the amount was subsequently recovered by dis-
tress. NV hat, however, did the defendant do? He
,spelt the
name " Frazier ;" and when the opposite party sent in an ob-
jection to his name, knowing him to be a bad vote, the defend-
ant placed the objection opposite the name of another Alex.
Frazer, of Upper Seymour-street, who was in reality a good
vote, and to whom no objection was intended. When the
case came before the Revising Barrister, of course the ob-
jection was disallowed, and the bad vote of Alex. Frazer, of
Tottenham-court, to which no objection was made, was
allowed to stand, and it actually-still stands, upon the list as
a good vote. The Barrister had no right nor authority to
strike him off, and the overseer subsequently corrected the
misnomer which he had himself intentionally made, and had the
name altered by the Revising Barrister from " Frazier" to " Fra-
zer." The question then was,whether the defendant had exercised
the enormous power confided to him by the Act fairly or im-
properly, and for party purposes. No doubt there was some
check upon that power by the objections of the other party,
but many persons felt reluctant to come before the Revising
Barrister, and waste time and money in opposing these ficti-
tious votes. It was indifferent to what party the defendant
belonged, although in the present case he was of what was
called the Liberal party. All parties were interested in the
proper working of the Bill. They were to say whether it
had been done innocently or by mistake, or wilfully, in dis-
obedience of the provisions of the Act; and if the latter, he
was entitled to their verdict. One ground of defence was,
that the defendant was not the overseer ; but according to the
79th section of the Act, any person who discharged the duties
of the ofliee'Was to be considered as such. He would now
call his, witnesses, and if he proved the facts as stated to them,
he would be 'entitles to their verdict.
&Auer Straight; Pephly Returning Officer for the bo-
rough of Marylebone—l produce the list of voters as revised
by the Revising Barrister. It is signed by the overseers of
the poor, and by the defendant, " John M'Gahey, clerk to
the Directors of the Poor of the said parish."
John Stewart.—l am one of the Overseers of the parish of
St. Pancras. The defendant, I believe, is also one : there are
four others. The duties of the overseers are to relieve the
poor, under the directions of the directors of the poor. Ap-
peals relative to settlements are defended by the overseers.
The defendant has acted as overseer, and also as vestry clerk,
and clerk to the directors and guardians of the poor. He holds
several offices. I did not assist in making out the lists. I
signed it on the 31st of July, and appeared subsequently before
the Revising Barrister. There were questions put to the de-
fendant by the Revising Barrister. Mr. M'Gahey extended
the circumflex, so as to include the name in the list of over-
seers. He did that in consequence of objections made by the
other party that he was acting as overseer, although he signed
it merely as clerk to the directors.
Cross-examined by the ATTORNEY-GENERAL.—The parish
of St. Pancras is governed by a local Act of Parliament. The
41st section was referred to by the learned counsel, which gave
a power to the directors to appoint two nominal overseers.
And it also empowered the directors to exercise the authority
of overseers of the poor. There are forty directors, none of
whom signed the list. The defendant is one of seven nominal
overseers, but he is not a director or vestryman. He is vestry
clerk, and clerk to the directors also, with a salary of 3001.
a_year for both. He succeeded Mr. Scadding, the gentleman
who sits before, and is instructing Sir William Follett.—_
(Laughter.) The vestry discharged Mr. Scadding, who I
believe is attorney for the prosecution in this cause. I know
Mr. Farr, the prosecutor, but he never told me that he was
employed by the Loyal and Constitutional Association to bring
the present action. There are about 110,000 inhabitants and
10,000 rate-payers in the parish. There are about 6,000
electors for the borough of .Marylebone in the parish of St.
Pancras. There are four districts in the parish for the collec-
tion of poor-rates. I believe Michael Gibbs is a vestryman
and director, but I cannot state that positively. The qualifi-
cation for a vestryman is, that he must be rated at 401. a-year.
Mr. Scadding exercised office as one of the trustees of Church
property, and that is why he was discharged.
Thomas Coventry, Revising Barrister for the borough of
Marylebone—l revised the lists for the parish of St. Pancras.
Mr. M`Gahey produced the lists, and I called for the over-
seers. One gentleman, Mr. Stewart, I believe, said he was
an overseer; and Mr. M`Gahey then said he was one, that the
addition to his name was a mistake, and that the circumflex
should have included his name as one of the overseers. The
circumflex was then extended, but I cannot say by whom. Mr.

ic
M.gari'ey then acted as oVersier, during the revision off thelisf.i. 1 6:4' gre-r;arne of Michael Gibbs, 6, Belgrave-str tL,
his name is erased si-Ovii nly initials added, which satisfie me
that his name is objected fd 644 struck out. I took no notes.
The name of John IL Benham, iii Melton-street, is also
gilt out, but I do not know anything of de ground of ob-
j.boii-OTh f Ef'!C the name of Alexander Frazer, (1t), Upper
Seyrriour:o;434.ti t' ere an objection to it, but the objec
~ i, t ,
troti-Was dsallowa.tilre. lute was allowed to stand. There
J
A li\ i
11 el,coithie nane. of textmlA tyer, zrazer, 6, Tottenham Court,
New-road j that *as pot objected to. There was a list of ob-
jections handed }ii by the overseers, which we first went
through. The name fill.) &Penally " Frazier," but it was
U.1114...?e4 to " Frazer," but lA' ttliou> I cannot tell, as I did not
take any i;Mt,.t
..,
Cross-examine 6 itt the ATTORNEY- GOEUL—The revision
lasted four days. Mr. ca:' in was in atterZlgneu and sup-
ported the objections taken by hig 7.skrty, which vvero very nu-
merous I think all the objections were Given in the 116.M0 of
John )Farr, the present prosecutor. There WM several hun-
dred objections by him. I over-ruled about half of the objec-
tions. Mr. Farr was in the room, but took no active part—he
left it to Mr. Ernest and Mr. Scadding.
James Thompson, collector of assessed taxes in the parish
of St. Pancras—l collect in the west and ...outh divisions. I
attended on the 22c1 July last at the vestry room to assist in
preparing the list of voters. The defendant' called over
names from a list he held. I recollect his calling the name
of Frazer, 6, Tottenham Court, New-road. I said he had
fredn very remiss in paying his rates, that he was very much in
arreat, owing al. 7s. 6d. I have since recovered the amount,
having levied by distress. The defendant said, " Never mind,
go on." I pointed out some names he had omitted, but he
said " You are to answer my questions, not to put questions

to me."
Cross-examined by the ATTORNEY- GENERAL—I had no
iiispnte with Mr. M'Gahey, but that he told me " I seemed
very pt.'rpous r—( Laughter.) There are about 600 or 800
rate-payerS fn my division. I think all of them are rated to
101. a year on the Ihntr.TatCS, and I had to go over a list of
several hundreds.
Joint Chapman—l am a collector of assessed tales for
the parish. J attended the defendant when making out the
lists. I saw the 14:51 witness there. Metz he called out the
name of J. H. Benhatit, I objected on the gs:•ound that he
owed four auarter's arrears. Meter told me in rather a
sharp tone to gt. on.
William Boddy—l am a collector of asseSsca, taxes for thr
parish of St. Pancras. I recollect there was an objection to
a person named Frazer, to one named Benham, and csgther
to a Mr. Gibbs. I attended to support the objections. Th
two latter were struck out of the lists.
Cross-examined by Sir F. POLLOCK—I was not there on
the last day. I was there for three days.
0. Thisselton—l am a collector of assessed taxes for the
parish of St. Pancras. I was summoned to attend, in July
last the Court for the revising the list of voters. I remember
the name, Michael Gibbs, being called. I stated to the de-
fendant my belief that no such person resided where it was
stated in the list:. I was told to go on. I said I was convinced
the house was unfinished out of which it was sought to register.
He then called another name. I said, with reference to Gibbs,
that thd home was not in the assessment. The defendant
called the names as he pleased, irregularly. He was calling
from the poor-rate book ; that was the list of all the inhabi-
tants of the parish. I said he was not calling the names as
they had been always done before : he said he should do it as
he pleased. I recollect his calling the name J. C. Benham :
he was rated for the year at 31. ls. 9d. I said he had not paid
the assessed taxes due on the 6th of April previously. The
defendant hardly allowed me to look at what he marked in his
book. There were due, then, IL 10s. lOid., which was paid
on the 10th of October last.
Cross-examined by Sir J. CAMPBELL—The defendant had
one clerk assisting him ; but I think he did all the business
himself. I knoit Michael Gibbs. Yesterday heard he was
vestryman of St. Pancras. Ido not know that he lived in
Edttlend-street. There Was no assessment of the house in
Belgrave street. Benham' resided in Melton-street two years
and three quarters. I went over near three thousand five hun-
dred names.
The ATTORNEY-GENERAL (with whom was Sir F. POL-
LOCK) addressed the Jury for the defendant. This then was
the case which was to support a penal action against Mr.
‘M'Gahey, for putting fictitious votes upon the registry for the
parish of St. Pancras. The charge was that he wilfully put
fictitious votes upon the list ; and that charge having been
made, his Learned Friend closed his case by calling the collec-
tors of rates, who had to go over upwards of 6,000 voters
in a very limited time, and out of these 6,000 voters
there could be only three instances picked out in
which there was the smallest reason to apprehend that any
error was sommitted, either wilfully or by mere oversight. Ho
protested to the Jury that it struck him with astonishment that
considering the great industry employed—that when they had
Mr. Scadding and his two most industrious clerks watching the
whole of the proceedings, from first to last—employing
Mr. Farr, or acting in his name; and when they considered
that with all this, out of 0,000 names only three errors were in-
troduced—it seemed to him almost a miracle, that with all that
industry and zeal, so few mistakes were:discovered. Was the
present a case on which they, were to find that what bad been
done had been done wilfully and by premeditation., design, and
corruption ? He regretted that a Gentleman like Mr. Scadding,
who had maintained a respectable station in society, should de-
grade himself by lending his name and services for such an :in-
worthy office. He had been the clerk to the Directors of the
parish of St. Pancras—he had been also the vestry clerk, and had
been discharged, not on account of any want of honour or in-
tegrity, but they would recollect that the defendant bad been
appointed in his stead, and he (the Attorney-General) did
think that Mr. Scadding would have done better if lie hod ab-
stained from trying to ruin his successor by means of a
perversion of the penal enactments of the Reform
Act, which had never been enacted for such a purpose. Po-
litical zeal was laudable, but it ought to have bounds, and
never wander into a perversion of the criminal law, because
the present was a criminal charge, just as much as if it had
been an indictment subjecting the defendant to fine and impri-
sonment. The charge was, that Mr. M'Gahey had wilfully
put the names of fictitious voters upon the list, and by so doing,
that he had wilfully disobeyed the provisions of the Reform
Bill. By what evidence had that charge been sustained ?
Had it been proved that the defendant had any bad motive—
that he had taken any active part on either side—that he had
been a political partisan—or that he had an object in putting
votes upon one side rather than the other ? No. Nor had it
been proved how any of three persons whose names were
selected had voted. He would not agitate the question of law,
as to whether a case had been made out—whether the defendant
had acted in his capacity of clerk to the directors or overseer—
but he (the Attorney-General) would ground his defence
upon the fact that there was no proof whatever that the de-
fendant did not honestly, fairly, honourably, and diligently dis-
charge the duty imposed upon him. If the present was found
to be a case of wilful fraud, there was not an Overseer in Eng-
land and Wales who would not be liable to a similar action.
The duty of making out the entire lists for the borough and
county, was to be performed in ten days, and here was a parish
with 120,000 inhabitants, 10,000 or 12,000 rate-payers, and in
respect to each of them an investigation was to be instituted ;
if any were omitted wilfully or by neglect, the Overseer was
to be subjected to a penalty. Thus there were 12,000 cases to
be investigated in ten days, and in regard to every one of
these the Overseer was responsible. In such a number
there must be much hurry, confusion, and risk of error,
and in such circumstances, he (the Attorney-General) thought
there was some ground for forbearance, some inclination to at-
tribute any error to an innocent cause, but nothing of the kind
was observable in the present prosecution. Who was the pro-
secutor, Mr. Farr ? He was the tool of Scadding—his jackall,
who served all the notices of objection, one-half of which were
over-ruled by the Revising Barrister ; and he (the Attorney-
General) regretted, that as the law stood, no costs could be
awarded fur frivolous and vexatious objections. . Farr was a
person employed by he knew not what Society, but it was evi-
dent he was not acting at his own expense—there were
some persons behind the curtain moving that puppet.
He should like to know who they were, for whatever
high-sounding appellation they assumed, they had acted
most unworthily in bringing frivolous and vexatious
objections, and when they were overruled, wreaking their ven-
geance on those who had defeated them. The present action'
had been brought by Scadding in the name of Farr, and ha
(the Attorney- General) did not think such conduct reflected
much credit on Mr. Scadding. The learned Gentleman here
referred to the evidence in support of the prosecution. There
was no evidence to prove that M.Gahey had acted through a
corrupt motive ; there was no witness to say that he had done
anything through a feeling of partiality to either party. He
protested he never heard of a case so unsupported by
evidence, and it was was monstrous to suppose that the
correction of the spelling in Mr. Fraser's name, could be
set down to a disposition such as that attributed to the defend-
ant in the pleadings. With respect to Benham, and to the
testimony given by Thessilton of his being in arrear for the
assessed taxes, why was not Benham himself called ? Could
they expect M'Gahey to bear in mind, during this long inves-
tigation of such a number of voters' claims, the individual
case of each individual accurately? Might they not suppose
him to have a bad memory, and to have omitted, through
that, to strike out names which he intended should be struck
out? He asked them, were they prepared to say that
M'Gahey was influenced by corrupt motives, or rather,
would, they not by their verdict pronounce him to have
acted honestly, diligently, and honourably ? He was sure
they would think that it was wonderful how so few mistakes
had occurred in a list of 6,000 voters. He left his clients case
with confidence in the hands of the Jury, and he hoped that it
would have the effect on the one hand of making officers care-
ful in the discharge of their duty, and on the other of de-
terring persons situated as Mr. Scadding was from bringing
actions of this kind for the purpose of taking personal ven-
geance on an unoffending individual. He felt assured that the
Jury wauld not believe his client guilty of corruption, and if
not guilty of corruption, the charge could not be maintained.
Sir W. FOLLETT said they did not charge him with corrup-
tion. They charged him with having left in the names of un-
qualified voters wilfully.
The ATTORNEY-GENERAL thanked his Learned Friend for
the interruption—he was, it appeared, heartily ashamed of
his case ; but on reference to the declarations, he found
the charge of corruption distinctly set forth. The jury, he
had no doubt, would do justice to the parties by their verdict.
Lord DENMAN having summed up the case, and having
commented at considerale length on the evidence, the jury
deliberated for some time in the box, and at a quarter past
twelve retired to their room.
In about half an hour the jury returned with a verdict for
the plaintiff, penalty 501.

EXCHEQUER COURT.-(THIS DAY.)

FISHER V. WAINWRIGHT.
This was an action brought by an attorney, to recover S 7/.

- -
18s, 61; from the
_defendant, who is a woolen-draper. The
defendant, in the latter end of 1e35, was in. the possession of
a bill fqr 301., accepted by a person named Guy, which was
overdue. t-le employee. Mr. Fisher to sue for it, and received
from him the amount of the bill. Afte.- the action had gone
on to a certain length Guy became bat-::I-opt, and the plain-
tiff pressed the defendant for the return of the amount of
the bill and the costs be had incurred in suing Guy. On the
•24th of November, an attorney named BtLchanan had an inter-
view with the defendant, when 131. was pa id cowards the bill
of 301., and a bill, accepted by a person flamed Sabine, for
161. 65., was lodged as a security for 151. 14s. :until the money
was paid, and //. 16s. was paid in the following week.
Buchanan, who was the only witness for the plait ttiff, distinctly
swore that the bill was lodged as a mere security, and was not
discounted, though he could not say why the hill was not
taken at its full amount, or wby it was taken et.ls/. 14s. The
costs in the suit Fisher v. Guy amounted to 11:1. 14s. 6d.
Mr. KELLY addressed the Jury for the defeidant. He said
the story told was very improbable, and wc•uld not impose
1,t70n gentlemen who were well acquainted with business.
It w;;; evident from a paper he would put in, made out by
Mr. B,„._ttanan, from which they would sec that at that time
Sabine's was taken as a payment, and had been discounted
by him on the 24th of November. If that was so, then the
plaintiff had no right to recover, for he had commenced the
action before• the hill was due—a course he had no right to
pursue. As to the question of costs, it was for his Lordshii
more than the Jury. lie contended that the defendant
was not liable for .more than the costs actually paid out of
pocket, and not for any profit tee attorney was to make by
the action.
The Learned Gentlema.l eallecia; crvant of the defendant,
who went on the Ist Dec. .."'nd p.iid Mr. Buchanan 1/. 165.,
the balance stated in a paper he. took with him, which Mr. 13-
took, and put paid to.
An Attorney said the bill for 11/. i:4s. 6d. was a fair one•
The money actually paid out of pocket would be 31. Bs. 6d.

Mr. Seijeant 136mpas replied:
His Lordship summed up, and the July found a verdict for
the plaintiff, damages 7/. 10s. 6d., being of opinion that Sa-
bine's, bill had been discounted, and taken in ealisfaction of the
30/. bill.