The Sun.
London, England, 1841-02-01 00:00:00

' 11-1 F, SIT IC, LONDON. MONIIA_Y, rpm

it would seem t-hat the mere presentation of the order
would ba sufficient without any advices at all, it is parti.
milady hard that the public should be put to inconvenience
on account of a part of the system, which is of such small
utility, and which seems to hay no object beyond that of
increasing the Post-office reveLle.

LAW INTELLIGENCE.

ROLLS' COURT, J.l N. 30.

This was the general petition day. The unopposed,
which occupied a considerable portion of the morning,
were taken first.

BOULTER v. BOULTER.

The object of the petition in this case was to have an
account taken of what was due in respect of a mortgage,
and to charge the mortgagee, who had consented to a
sale, with what he had received, or without default
might have received, and with the expense incurred in
respect of dilapidations during the time he had been in
possession.

The petition was opposed, but after hearing Counsel
pro and con, the Court granted its pray er.

COURT OF QUEEN'S BENCH, sh.v. 30.
( Sittings in Banco.)
THE QUEEN V. DARES.
This was a rule calling upon the defendant to show
cause why an information in the nature of a quo warranto
should not be exhibited against him, to show by what au-
thority he exercised the office of town clerk of the borough
of Reigate.
The ATTORNEY. GENERAL (with Mr. ERLE ) now ap-
peered to show cause against the rule. The facts of the
case were these. The defendant was a councillor of the
borough, but resigned that situation. On the 28th of
September an election for the office of town clerk took
place, but three clear days' notice of the meeting had
not been given, and he (the Attorney-General),
therefore submitted that the proceedings under that
election were void. The numbers at that election
were—for Mr. Dawes, 7 ; for Mr. Jenner, 5. It was,
however, objected to Mr. Dawes that he bad not paid the
fine, and must still be held to be a Councillor. A second
election took place on the sth of October, of which due
notice had been given, and on that occasion the fine having
been previously paid, Mr. Dawes was elected by a majority.
The objection taken was, that Mr. Jenner had been duly
elected at the first election, Mr. Dawes not being then
eligible.
Sir F. POLLOCK was beard in support of the rule, and
the Court made the rule absolute.
THE QUEEN V. HETHERINOTON••—JUDGMEN T.
The ATTORNEY-GENERAL prayed the judgment of the
Court upon Henry Hetherington, who had been convicted
during the sittings t,f the last term of selling a blas-
phemous publication, entitled " Haslam's Letters to the
Clergy of all Denominations."
Lord DEN MAN having read the minutes of the trial,
and the passages which the Jury found to be blasphemous
libels,
Mr. THOMAS. on behalf of the defendant, was instructed
to move the Court in arrest of judgment, or for a rule to
show cause why there should not be a new trial. The
ground on which be moved was that the offence laid
in the indictment was not punishable at common law.
The indictment referred only to that part of the
Scriptures called the Old Testament, and there never
was a case of an indictment against a publication which
discussed matters relative to the Old Testament
only ; it was not an offence which was punishable at common
law. Although not exactly bearing ou the case, he would re-
mind the Court of the observation made by the defendant
at the trial, that the doctrine of Christianity being parcel
of the law of the land originated i❑ a mistranslation of a
case in the Year Book in the 3d and 4th Henry VI., and
that error had been copied into all the succeeding cases.
He would now refer the Court to the judgment of Chief
Justice Hale in the case of the four witches who had been
hanged in the reign of James the First, that Learned
Judge asserting that there was no doubt of their existence.
The Court was aware that during the reign of James the
First, when the law originated, there was no end of the
legal murders that took place under the charges of witch-
craft and blasphemy. The law certainly could not be
traced further back, and had its origin in religious or poli-
tical animosities, when Judges were found to carry into
offoct the wishes of persons in power or authority. In the
case of the King v. Woolstonc, who was tried for a libel
impugning the miracles of Jesus Christ, the objection was
taken that it was an offence not indictable at common law,
but the objection was overruled by the Court, on the ground
that the Christian religion was part of the law of the land.
The Learned Counsel then referred to the cases
of Jacob, Peter, Arnett,Wilks, and the King and Williams ;
in the latter case the Court held that the libel was
indictable at common law, because the libel denied the
authority of the Holy Scriptures, and that the Christian
religion was part and parcel of the law of the land. In
all these cases the divinity of Christ, and the authority of
the Scriptures generally, were questioned ; but he sub-
mitted that where the Old Testament only was called in
question, the rule laid down in these cases did not
apply, as it did not call in question the great truths
of the Christian religion. He would now refer the
Court to the able work of the Archbishop of Dublin on
the subject, in which he referred to the Old Testa-
ment as a great historical narrative, and, in a
great measure, distinct from the Christian re-
ligion. Bishop Taylor also said that there were so
many errors, mistakes, and miatranslations of the Old
Testament, that it was open to the discussion of any party.
The Court would see from these autboritiee that there was
a license given to persons to discuss ma.ters contained in
the Old Testament ; and to that portion of the Scriptures
only did the libel of the defendant refer. He believed
there was no case on record where a party had been tried
in that Court for a matter which had no reference to the
Christian religion. Anather objection was, that the Learned
Judge had put it to the Jury to say whether the publication
was a libel upon the Christian religion, although the libel
had no reference whatever to that matter. Now, inas-
much as the law proceeded on the ground that the obliga-
tions of civil society were injured and loosened by bringing
the Scriptures into contempt, Jurors and witnesses being
sworn upon the New Testament, any controversy upon
matters contained in the Old Testament which had no re-
ference whatever to Christ (the Christian religion being
altogether independent of the Old Testament), could not
be said to come within the rule laid down in these cases.
The COURT did not think there was any ground for the
rule. There was that connexion between the Old and the
New Testament that one part of it could not be assailed and
vilifisd without reflecting upon Christianity generally. It
was their duty to take the law as it was laid down in the
statute book, and there was nothing in these statutes to
take the case before them out of the ordinary rule. It
had always been considered an offsnee of the highest mag-
nitude to make attacks of that sea upon the Christian re-
ligion, and the Jury had found that the publication in
, question was a libel of that nature.
Affidavits in mitigation having been put in and read,
Mr. HETHERINGTON applied to the Court for leave to
address it in mitigation, which being assented to, he said
he could first rely upon the fact set forth in the affidavits,
namely, that it was a common practice in the trade
to insert on the title page the name of a
publisher like himself for the purpose of serving him, that
had been dune in the present case—his name bad been put
to the title-page without his knowledge or consent, and he
could safely assert that he had never read a line of it until
he had been informed that the book contained a libellous
passage. It was clear from that. that there could be no
criminal intent in selling the book, as he had merely done
so in the usual course of his business. When truth
was the object in discussions of this sort, he fully
agreed that decorum and respect fur the feelings of
others should be observed, and he avowed that he
did not stand there as the apologist of the
passages contained in that publication. Nay, the author
had given a candid admission of ilia error, in having with-
drawn these offensive passages in a recent edition. How,
then, could the Court punish him for the sale of a work of
the contents of which he was ignorant? Ho admitted that
legally he was the publisher of the work, but the statement
that his name was to the hook went to the Jury unaccom-
panied by the explanation that he was not the original pub-
lisher. Mr. Heywood had, at a trial in Manchester,
pleaded guilty to being the original publisher, and had been
discharged, after giving bail to appear when called upon.
All he asked was, that the same punishment might be im-
posed upon him, and he felt confident they would never
have to call upon him. He humbly trusted the Court
would not take him from his home and his family in a case
where there was an absence of all criminal intention, and
he left the case in their hands.
The ATTORNEY-GENERAL said it was for the Court to
say whether the prosecution was not one which ought to
have been instituted. It was only necessary for him to re-
fer to some of the passages in the libel to show their
mischievous and blasphemous tendency. Mr. Hether-
ington had not in his affidavit stated that when
he ascertained the libellous nature of the publication
he had withdrawn it from publication, and had ceased
to sell it. Whatever had been done in the case of Mr.
Heywood was no precedent for their Lordships; they
were to judge of the facts which came before them, and it
was for them to say what punishment ought to be inflicted
on the defendant for the publication which had been laid
before them.
The COURT having consulted for some time together,
Mr. Justice LITTL!DALE pronounced the judgment of
the Court, which was that the defendant be imprisoned in
the custody of the Marshal of the Marshalsea for the space
of four months.

COURT OF COMMON PLEAS, .14. V, 30.
CHEESEMAN AND OTHERS V. COUNT AND HAVLET.

This was an action brought by the creditors to a trust
estate against the trustee, for money due upon an account
stated. The defendants disputed some of the items, but
the Jury found for the plaintiffs. Mr. Sergeant Bompas
since obtained a rule nisi fora nonsuit on the ground that there
had been no account stated, that is,the document put in by the
plaintiffs wus nut legally sufficient for that description, in-
asmuch as the defendants had not recognised it as an ac-
count between them and the plaintiffs. Yesterday Mr.
Sergeant Channel) showed cause against the rule, and
the reply was then heard. The argument was of
great length, but purely technical, and the Court dis-
charged the rule, holding that the account set out in the
declaration was an account stated according to the legal
meaning., the defend ants having admitted the greater part
of the items, and so far recognised the account. The ver-
dict on the whole was according to the evidence, and there
was no reason to disturb it.

BAIL COURT, JAN. 30.

Mr. Justice Williams sat in this Court during the
early part of the morning, and disposed of several cases
of no public interest. His Lordship rose at eleven,
for the purpose of sitting at the Guildhall.
(Before Mr. Justice COLERIDGE.)
IN THE MATTER OF NV. GREEN.—HABRAS eORPU3.
In this case it appeared that Green was a prisoner
in the Fleet prison, having been committed by the Court
of Review. Application was this day made for a
rule calling upon the Warden of the Fleet to bring him
up by habeas corpus, and to have the cause of his

committal inquired into. It was submitted to the
Court that the committal was bad, inasmuch as it did
not appear from the warrant of committal that the
Court of Review had committed him for contempt of
the Caurt, further tha warrant ordered the Warden
of the Fleet to detain Burin; pleasure of the Court,
thus impriioninft' for an indefinite term.
Rule granted.

COURT OF BANKRUPTCY.
(Before Mr. Commissioner HOLROYD.)
IN THE BANKRUPTCY OF WRIGHT AND CO.
Friday being the day fixed for the final examination of the
Bankrupts, several additional claims were admitted, when
A Solicitor, who said he attended for several creditors, applied to
the Learned Commissioner to recover back in full four checks
for the sum of 1161 His. on different bankers, which had been
paid in after the determination by the bankrupts to stop pay.
went, but which, nevertheless, were paid is, being presented at
the different bankers on whom they were drawn on the morning
of the Monday on which they (the bankrupts) actually stopped
payment. These checks had been handed over to the assignees,
and the applicant now prayed that his clients might be declared en-
titled to receive the amount of those checks.
Mr. Commissioner HOLROYD assented.
°YUJI-DUE BANKERS' CIISCES.—A gentleman, at the last sitting
under this bankruptcy, made an application respecting over-due
bankers' checks, which was not finally disposed of, arid upon which
the Learned Commissioner now proceeded to deliver his judgment
as follows :—The question to which I allude was respecting the
right arid form of proofs against the estate of the bankrupts for a
sum of money which, at the time of the bankruptcy, formed part
of a larger sum than standing in the bankers' book to the credit of
a customer, and for which the customer had some days previously
to the bankruptcy, given a check to a flint's.' parry, in payment of a
debt due by the customer to such party ; the check not having been
presented for payment, thereby operated as a satisfaction and dis.
charge of the debt for which it was given in payment, provided
it was drawn in conformity with the provision in the Stamp
Act relating to drafts on bankers. J should here mention
that all unstamped checks, drafts, or orders for the payment
of money to the bearer on demand, drawn in Great Britain on a
banker residing within fifteen miles of the place where they are
issued—and the drafts or orders must specify the place where
they are issued, and bear date on or before the day on which
they are issued--no laches by the holder will make a check not
drawn in conformity with the above provision amount to payment
of a prior debt, even though the check, but for such laches, would
have been paid. In the present case there appears to be no objec-
tion to the form of the check. In order, then, to come to a right
conclusion upon the question before me, it will be proper to con.
rider the legal and equitable rights of the respective parties at the
time of the bankruptcy. First, then, what is the operation of
banking in regard to what are usually called deposits, or money
kept by customers at a banker's ? It is this : rums of money
which are paid to credit of the customers with a banker
are both, in fact and in contemplations of law, loans by the
eustomer to the banker, who becomes their debtor, and is bound to
repay the money on demand, or to pay checks drawn by the cus-
tomers for any portion of such money. See " Car v, Car,"
I Merivale Rep. 541 (note) ; " Leverage v. Noble," 1 Merivale,
368 ; " Sims v. Barrow," 5 Barnewall and Alderson, 393 ; arid
"Ex parte Swan," 1 Deacon, 755. A person receiving a check
drawn upon a banker must present it with due diligence, and,
by the law of merchant, the general rule is that checks re-
ceived in the course of one day may be presented at any time
during banking hours of the next day. See " Bickford v.
Ridge," 2 Campl., 537 ; " Robinson v. Bennet," 3 Taint., 388.
If the holder of a check fail to present it with reasonable
diligence, the debt in respect of which the check was
given is discharged by his laches,—it amounts to a satis-
faction of such debt. In the present case, a Mr. Corvan
having a large sum to Isis credit with Messrs. Wright,
on the 13th of November drew a check in favour of Mr.
Doxey for 251. This check might have been presented before the
bankruptcy, and had it been presented it would have been paid.
The holder, however, kept the check, and omitted to present it or
give notice to the bankers that he held it. The holder, therefore,
has no remedy at law against the bankers, who were the debtors of
the customer (Mr. Conan), and at law they would continue to be
so until they, by the desire of the customer, entered into some
binding engagement with a third party to pay the money to him.
See "Williams v. Everett," 14 East, 582 ; " Barrow v. Husband,"
4 Burn and Adol, 614; and " Fairlie v. Denton," 8 Barn. and
Cress., 400. What right then in equity has the holder of the check
in question ? I think that in equity, Vs against the person drawing
the check. The check itself would operate as an assignment of so
much of the debt owing by the bankers to the customer. The assign.
ment of a debt does not require for its validity in equity a contract
with the debtors. When an order is given by a person to pay part
of his money to another, for a foregone valuable consideration, in
equity the owner fixes the money the moment it is shown to the
party on whom it is drawn. " Yeatee v. Groves," 1 Ves.. jun.,
282 ; "Ex parte Alderson," Mad. 53 ; "Ex parte South," 3
Swanst., 393 ; " Lett v. Simmons" 4 Simons. It Is true that in
this case no notice was given to Wright and Co. (the Bankers) of
this check. Notice to the bankers is certainly necessary to perfect
the title--" to give a complete right in rem., and not merely a right
as against him who conveys his interest." Had the customer who
gave the check become bankrupt, the amount of that cheek would
have passed to his assignees; because, to make an effectual assign-
ment of a debt, in the event of the bankruptcy of the assignor, the
assignment of the debt must have everything equivalent to a de-
livery of chattels personal, as far as the case admits of—such as an
assignment and delivery of the securities (where any), and notice to
the debtor of the assignment. Nor is the principle confined to
cases in bankruptcy. In " Levesedge v. Cooper," 3 Russell's Rep.
58, Lord Eldon, speaking of the case of " Ryall v. Bowles," says,
" The grounds of judgment are of general application." Lord
Chief Baron Parker says, " That on the assignment of a bond
debt, the bond should be delivered, and notice given to the
debtor;" and he adds, "that with respect to simple contract
debts, for which no securities are holden—such as book debts
for instance—notice of the assignment should be given to the
debtor, in order to take away from the debtor the right of
making payment to the assignor, and to take away from the
assignor the power and disposition over the thing assigned."
But notice is not necessary in such cases to give effect to an equita-
ble assignment of a debt between the parties, though it is so for the
purpose of preventing the title of those persons attaching, in order
that they may not be deceived by apparent possession and owner-
ship remaining in a person, who, in fact, is not the owner. See
" Duke of Newcastle v. Hall," and " Levesedge v. Cooper," 3 Rus-
sell'; Rep. ; arid " Parke and Hunt, v. Mortimer," 10 Barn. and
Cress. 47. I think, therefore, for the reason which I have given,
that in this case the check will operate as an equitable assignment,
and that proofs should be made for the amount by Mr. Corvan and
Mr. Doxsley jointly, in the ordinary form, for the assignor and as.
signee of the debt.
Mr.lSTarFoen said that, after what now transpired relative to the
payment in of the checks after four o'clock on Noeember 21, he had to
state to the Court that the parties whom he represented were in a
similar situation, but had been led into error by proving for the
entire, upon depositions prepared for the choice of assignees under
he first fiat.
Mr. Commissioner Houtoeo—lf the facts be as they are stated,
then there can be no doubt of the right of the claimants to be paid
in full the amount of their checks.
Mr. HAMILTON said that several creditors sought to prove for
" Companies," which so stood in the bankrupts' books, but these
Companies had no charters, neither were they in co-operation by
At bf Parliament. He knew the parties, and had no objection to
the proof, if the Court was satisfied.
Mr. Commissioner Hoanovo did not think persons so situated
could prove, particularly under tae provisions of the nankin Act.
Mr. BACON (the Barrister) said that he attended to claim upon
the part of a gentleman named Burton, of the county of Salop,
against the separate estate of Mr. Geo. Anthony Wright Biddulph,
for the sum of 20,0001. Mr. Burton claimed as sole surviving ex-
ecutor (out of four) of a gentleman named Plowden. The father of
Slr. Biddulph was also one of the four, and the "executors' ac-
count" was kept under that head in the books of Wright and Co.,
and also in a separate ledger. When Mr. Wright Biddulph became a
partner in the bank, this sum, in which he had a life interest, was
transferred. An arrangement was made in March, 1820, that Mr.
Wright Biddulph should purchase those shares in the bank which
were then recently held by his deceased father Mr. Thomas
Wright, who was one of the co.executers of Mr. Plowden. The
consideration for the purchase of these shares was this 20,000/„
which was produced by the transfer of that sum from the trust ac-
count to that of Mr. Biddulph, and by him again to Thomas
Wright, the younger, and the vendor of these shares. That was
however, quite an unauthorised act so to deal with the capital of
the trust fund, and being fully acquainted with the nature of the
trusts, the parties so dealing with them became personally liable.
It is not meant to cast the slightest insinuation upon Mr. Biddulph,
or that he meant anything wrong in the transaction, as the money
was then supposed to be quite sate. To secure that suns Mr. Pad •
dulph executed a bond dated August 17, 1821, to Plowden and
Blount, and Mr. Burton, tine present claimant, now appeared before
the court as sole surviving executor of Plowden.
Mr. Hastruroar said he had not heard a word of this case until
yesterday evening.
Mr. BACON enntinued—Upon the grounds he had just stated, he
thought there would not be the slightest available objection offered
to the proof which he had tendered; the bond was still its exist-
ence; the account kept in the banker's book of this particular
trust-money he would now hand up to the Court; and from the en-
tries there made, it would abundantly appear that the money had
been most improperly advanced out of the trust fund.
Mr. Dixox (the barrister) was heard against the proof, at all
events until the assignees had had time to investigate it. As to
the bonds referred to, he thought they would be effectually barred
by the Statute of Limitations.
Mr. Bacoar—We seek to prove, because of the breach of trust,
which we have clearly established ; and, in such a case, that sta.
trite is no har to us.
A further discussion ensued, and
Mr. Commissioner Houton) directed the affidavit of proof to be
now made and entered, and if it should be found that any fur.
Iher investigation into the matter would be necessary, then such
an investigation should be at the expense of the estate.
Mr. BACON said he had three similar applications to make in be.
half of creditors, but he would be satisfied to let them abide the
issue of the joint proof.
Mr. HestuaroN said that the bankrupts were not ready with
their accounts, and he was requested to make application to the
Court to allow some funds for the payment of accounts to assist in
snaking them up. It would require at least a fortnight longer
to get them ready. Mr. Biddulph was unable from ill-health to
attend to them, and Mr. John Wright's private accounts were so
extensive, that assistance was absolutely necessary to get through
them.

The Learned CommtsstoNert was understood to concur.
Mr. France said he represented creditors whose stock had been
sold by Mr. Wright to the amount of 60,0001. ; but in the ac
count furnished to him he hart neither specific names, nor dates of
the sales, whether in the Three and-a-Half per Cents., or other
stocks. lie wished to know whether the assignees meant to
divide the stock into an average account, or to drive the unfertu.
nate creditors to file separate bills in the Court of Chancery.
Mr. HAMILTON said that upon this subject he would give the ap-
plicant every information in his power.
Mr. Commissioner HOLROYD said he thought the offer made by
Mr. Hamilton was a fair one, and he did not see how it could be
at all necessary for Mr. France to go to the Court of Chancery.
Mr. John Wright, Mr. Henry Robinson, and Mr. Edmund Wil-
liam Jerningham, surrendered to the fiat in the course of the day,
and received their protection, and the time for doing so was en-
larged for Mr. Biddulph, in consequence of the state of his health.
We could naascertain with any accuracy the aggregate of the
debts proved in the course of the day, but among the proofs ad-
mitted were the following :-Sir George Musgrave and other:, as
administrators of the goods and chattels of Mary Ann Musgrave,
439/. Os. 7d.; Sir E. Vavasour, in joint account with Mr. P. Mid.
dleton, 231. 13s. 7d. ; Sir E. M. Vavasour, for the Lady
Dowager Stourton, 1,6561. 14s. ; Sir P. Stourton, in joint account
with Sir E. Vavasour, 1,0001.; the Hon. Charles Langdale.
iu
joint account with others, 1,0001.; the Hon. G. Ferningham,
4521. Is. Bd.; the Maas Lygan Mine Company, 4,5741. 18s. ; the
Deep Level and lialking Mining Company, 651. Is. 10. ; the
Wicklow Mining Company, 1781. 16s. 6d. ; Mr. R. Gren
vine, 372/ ; the Earl of Surrey, with Mr. E Blount and others,
as trustees, 7,368/. 3s. 7d. ; the Southampton Dock Company,
11.61. 9s. 10d.; the Earl of Shrewsbury, as executor of Lord Dor-
mer, 141. 9s. Id. ; Sir George Duckett and Alexander Henderson,
as trustees for the present lesees of the Irish Fisheries, 1,258/.
19s. 1 Id. ; Mr. Peter M`Evoy, 610/. 4s. 9d. ; Henry Francis
Homes, 494/. Ss. 10.1.; the Right Itev. John Thomas Haynes, 391.
Os. I Id. ; Dame Augusta Fitzgerald, 3691. Os. Sd. ; Mr. J. Ever-
ington, 747/. 9s. ; Sir Robert J. Edin, 6301. ; Mrs. Ann Dalian,
459/. 3s. ; Mrs. Terese Josephine Eyre, 847/. 4s 9d. ; Mr. 'l'.
Clifton, 394!. 10s. 7d. ; the Hon. Anthony Richard Blake, 1581.
Bs. ; Sir W. Jerningham, 173/. 17s. 6d. ; the General Filtration
and Dye Extract Company, 46!. 85. 6cl. ; the Ref. (1. H. Brewer,
as executor of Mr. Pitt Cobbett, deceased, 2,7041. Is. 2d. ; Mrs.
Elizabeth Curtis, 6661. 17s. Id. ; the Hon. Philip Stourton,
111. 14s. ; the Earl of Suffolk, as 'executor to the will of the
Right lion. Lord Henry Thomas Howard, 360/. 6s. 7d. ; the Hon.
W. 11. Petre, 85/. 17s. ; Lord Petre, for his wife, 91. 15i.; Lord
Petre, 644!. Is. 4d. ; ills. Richard Avery, 97434 Os.