The Sun.
London, England, 1841-08-05 00:00:00

MUSLING V. KIRBY.

The arg,uments in this case, which were commenced
yesterday, were resumed this morning, and occupied the
whole day. The case came before the Court upon appeal
from the decision of the Vice-Chancellor refusing to
grant an injunction to restrain the defendant from in-
fringing a patent, obtained by the plaintiff for a machine
for the purpose of making pins with solid heads.

ROLLS' COURT, Aug. 4.
IN RE SMITH.

At the sitting of the Court this morning, the MASTER
of the ROLLS gave judgment upon the petition in the
above case. He said the petition was presented by Mr.
Husband, a solicitor, in practice in Devonport, and it
prayed.that the respondent be ordered to deliver all
deeds and papers belonging to the petitioner, or connect-
ed with causes in which the respondent had acted as
agent for the petitioner, to Messrs. Bourdillion and Son ;
that he might be ordered to deliver his further bill of
costs ; that an account might be taken of the cash ac-
count between the parties in the years 1830, 1831, 1832,
1833, and 1834; that it be referred to the Master tolax the
respondent's bill of costs from 1835 to the present time ;
and to take an account for the purpose of making up
the cash account during that period. It further prayed
that the Master should be directed to tax the bill, not
according to the usual mode, but that he should take
noiice ofa special agreement. between the parties, by which
it was alleged by the petitioner, the respondent had agreed
that in all causes in which the petitioner was personally
interested, and in causes wherein he <the petitioner)
failed, and did not obtain the costs, he should only pay
the costs actually out of pocket ; and he further prayed
that the taxation might be had without the payment of
the money into Court. With respect to the agreement,
it was distinctly sworn to by the petitioner, -and as dis-
tinctly denied by the respondent ; but he was of opinion
that the evidence did not show that it was so fully un-
derstood by both parties as set out by the petitioner—
even had it been fully proved, he did not think the Court
had jurisdiction upon a petition to compel its specific
performance ; all that he could do was to order the
taxation to proceed under the general rules of the Ccurt.
A special agreement could only be established under a
formal proceeding, instituted for the purpose. He could
not order an account to be taken in order to ascertain
the general cash account ; he could do no more than di-
rect the Master to ascertain what was due and
unpaid. Certain frauds were alleged against the re-
spondent by the petitioner, in having charged sums
as having been paid to Counsel which had not been dis-
bursed, and in some cases charging more than had ac-
tually been paid. He did not think it necessary to go
into details on that part of the case. However, he
thought the conduct -of the respondent had been such, as
shewn by admission and evidence, as to destroy that
confidence which ought to exist between a principal and
an agent ; he would therefore order, to prevent his
being an obstacle to the petitioner's carrying on the suits
and causes in which he was engaged, that he deliver over
to Messrs. Bourdillion and Son, if the petitioner wished
it, all papers belonging to Mr. Husband, they giving an
undertaking to re-deliver them to the respondent should
the Court so order. With respect to the payment of
money into Court previous to taxation, he was of opi-
nion that the petitioner must pay into Court the sum of
1,000/., and give an undertaking to pay such . further
sum as might be found due. Had the petition
been confined to the mere taxation and delivery
up of the papers, he would have given costs against the
respondent ; but as so much irrevelant matter had been
introduced, and as there would consequently be so much
difficulty in apportioning the costs, he would give none.
He could not allow such a case to go out of Court
without remarking upon a very loose practice which
seemed to have grown up in the dealings between coun-
sel and solicit Ors.. It appeared that now counsel were in
the habit of receiving a sum upon a general account.
He thought that a very bad practice, and as it gave faci-
lities for much fraud, he hoped in future the old one
would prevail, and that counsel would receive only spe-
cific sums for specific business ; there would then at all
times be the signature of the counsel for such specific
sums, which must tend to prevent any fraud.

COURT OF BANKRUPTCY, Aug. 4.
IN THE MATTER OF JOHN F. HARRISON.

This day being appointed for the audit under the fiat,
Mr. WATSON, Solicitor, informed the Learned Com-
missioner that there were certain law costs incurred on
behalf of the petitioning creditor, amounting to 20/., and
a further amount of 401., due for the Assignees, on
account of which he felt bound to apply to the Court for
its assistance.
Sir C. WILLIAMS said he should take care that this
claim should be first attended to, the more so as there
were now proceedings pending in Chancery concerning
certain documents of the bankrupt.
Mr. "Watson then applied to have a weekly allowance
of 3/. 10s. made to the bankrupt, as he considered that
the available assets of the estate would be c^n3iderable,
and he had a family of four children.
Sir C. WILLIAMS said the value of those assets had
not yet been proved, and until they were, the amount
allowed to the bankrupt would be rather a difficult point
to decide. Upon the whole he should take farther time
for consideration.

SHERIFF'S COURT, Aug. 3.
WELLER V. HURRAY.

Mr. Wakeling conducted the case for the plaintiff ;
Mr. Thomas appeared for the defence.
Mr. Wakeling said, this was the most extraordinary
case which had come under his knowledge during a prac-
tice of twenty years. The plaintiff (Mrs. Weller) was
formerly the proprietor of a highly respectable coffee-
shop in Soho, which she had been obliged to give up,
and had subsequently attended on the defendant, who
was an ironmonger in Holborn—he being separated from
his wife—for which she charged him at the rate of 2s.
ft-day. The action was brought to recover the sum of
61. 25., deducting 10s. paid, and leaving the balance
5/. 12s. The case was to have been tried last Thursday,
but it did not come on, and here was the extraordinary
part of it. The defendant pleaded that he was only in-
debted in the sum of 1/. 19s. I Id. which he paid into Court,
and that he had a set offof 2s. which was not denied. How-
ever,since Thursday he understood a sum of 2/.155. had been
paid to the plaintiff; and this was followed by an appli-
cation to one of the Learned Judges to stay all further
proceedings. That learned person, however, would not
interfere, and said it was an attempt to deprive the at-
torney of his costs. He might here mention that the
plaintiff, being unable to obtain her wages, had applied
to the Magistrate at Hatton-garden, who, of course,
could not interfere, and the consequexce was this suit
was brought.
Charlotte M'Adam said she lived in the same house
with the plaintiff, and well remembered her going to the
defendant's. Has seen her cooking.
Mr. Wakeling—Anything else ? Witness—Mending
his clothes.—(Loud laughter.) She went for about two
months ; 2s. would be a fair charge a day.
Mri•Thomas—llid an old gentleman, one Samuel Wel-
ler, live in yourlouse ? Witness—An old gentleman of
that name did.

Mr. Thomas—Was his name " Sam ?"—(Roars of
laughter.) Witness—l cannot say.
Mr. Thomas—Did Mrs. Weller wait upon him ? Wit-
ness—She used to came home to " clean herself," and
then she cooked his dinner.

Mr. Thomas--Did she make his bed ? Witness—No,
he made it himself.—(Roars of laughter.)
Mr. Thomas—How do you know that ? Witness—l
have seen him do it.—(Renewed laughter.)
Mr. Thomas—Was she not to " do for hira ?"—(Con-
tinned merriment.) Witness—l don't know what you
mean ; she cooked for him. The witness added, that the
defendant's son drove the plaintiff, who was going to
Brighton, as far as the Bricklayers' Arms and gave her
10s. but she heard nothing said about wages.
Thomas Murray, the son of the defendant, said, that
Mrs. Weller used to have her breakfasts and dinners with
his father.
Cross-examined—She went out to keep an old gentle-
man.—(Loud laughter.)
Mr. Thomas—What do you mean ? Witness-L-She
used to cook his dinner, and said he paid her 6s. a week.
Mr. Thomas—Now, when she came from Brighton,
what did she do ? Your father had then another char-
woman. Witness—Mrs. Weller said to her, " Why,
here I am back."—(Roars of laughter.)
Mr. Thomas—And turned her out ? Witness—Yes.
—(Loud laughter.)
Other evidence having been given,
The Learned Counsel was about referring to the re-
ceipt for the 2L 135., When
Mr. Wakeling objected, as it wasgiven after the action
had been brought.
The UNDER-SHERIFF having learned that the action
was brought on the 25th of June, and the document was
dated on the 27th of July, ruled that it could not be used.
Mr. Thomas went on to say, that inasmuch as the de-
fendant had paid for her washing, she could not be con-
sidered as a charwoman, and after commenting at length
on the evidence,
John Goodland was called, and deposed that he had
heard the plaintiff say Mr. Murray was a kind friend to
her, and that she had acted as a companion. He often dined
with them, and said to her, " How is it that you never
say, Yes, Sir,' No, Sir,' but Murray I shall get this,
I shall get that?' "---(Laughter, which continued for
some time.)
_ _

Other evidence having been given,
The UNDER SHERIFF, after an able reply from Mr.
Wakeling, summed up the case, and
The jury found for the full amount claimed, 3/. 10s. ld.

TUE SLIDING SCALE.---Would it be a good
cognomen for the Right lion. Sir Robert rep], part., to
call him " The Sliding Scale?"

ASSIZE INTELLIGENCE.

CHESTER AND NORTH WALES CIRCUIT.

Chester,- July 31.
MURDER OF A GAMEKEEPER.—The following case ex-
cited considerable interest, in consequence of its being
looked on as a double murder, and the atrocious cruelty
with which the crime had been perpetrated. The widow
of the murdered man has, within the last few weeks, died
of a broken heart, leaving seven young children totally
unprorided for,
The prisoner's name is Thomas Brooks, and he was in-
dicted for the wilful murder of Thomas Henshall, at
Moxley, in this county, on the night of Sept. 10 last.
The Attorney-General, Ml'. Trafford, and Mr. Towns-
end, were Counsel for the prosecution ; and Mr. Jervis
and Mr. Welsby defended the prisoner.
'The facts of the case were briefly these :—The de-
ceased, Thomas Henshall, was in the employ of Mr. Gar-
stang, of Chester, as watcher of game in the township of
Huxley. On the 10th September, 1840, he attended that
gentleman and a friend of his in Stapleford on a shouting
excursion. In the evening the deceased was paid by his
master 21. Ss., at Tarvin. after which he took his de-
parture towards home. He was seen by a person with
whom he was acquainted on the road leading towards
his own residence, and within about a mile and a half
from it, perfectly sober. Next morning his body was
found in a field near his house, quite dead and cold, and
the money taken from his pocket. He had been shot at
by some one, and the charge had perforated his heart,
and lodged in the pericardium. About nine o'clock the
same evening the report of a gun was heard in the neigh-
bourhood of place, which was supposed to be the
fatal shot. The evidence affecting the prisoner was
purely circumstantial. It appeared the prisoner left his
home on the evening of the murder with a gun in his
poSsession, and shortly before nine o'clock a person was
seen by a female who was milking, crossing a field near
the place. This person was in appearance like the
prisoner, but she would not swear that it was him.
'The next evening prisoner was taken into custody,
when he said that he had not heard of the deceased's
death. It was: proved that he had been told.
of Henshall being shot. In the prisoner's house two tuns
were found, one of which he said belonged .to a neigh-
bour. These guns were loaded with mixed shot of six
different numbers, and the shot extracted from the body
were also of the same numbers ; but in a gun said to
belong to prisoner's neighbour, the quantities more nearly
corresponded. It was also proved that the prisoner had
said, previous to the murder, that Henshall was a spite-
ful man ; he should not be surprised if he was shot.
There were a variety of other circumstances, but they
did not bear directly against the prisoner.
Mr. Rims delivered a most able address to the Jury
in his behalf, which occupied about two hours in the de-
..

livery;
The Learned JUDGE summed up, and the Jury, uric
retiring for a quarter of an hour, found a verdict of not

guilty.

The trial lasted eleven hours.

HOME CIRCUIT—Lewes, August 3.
The Commission was opened yesterday by Mr. Ser-
geant
Taddy, and this morning both Courts proceeded to
business. Lord Chief Justice Tindal presided in the
Crown Court, and Mr. Sergeant Taddy at Nisi Prins.
The Grand Jury having been sworn, and the Earl of
March appointed foreman, his Lordship proceeded to
address some. observations to them in reference to the
cases that would be brought before their notice. his
Lordship observed that although the number of
prisoners for trial at the present assizes was not so very
great, being thirty-six, yet the offences charged were
some of them of a most serious character, and would re-
quire their most attntive consideration. There were
some charges of violence upon females to which he
would not advert more particularly, but it might perhaps
be as well for him to remind the Grand Jury that the
Legislature, in its wisdom, had thought fit to abolish the
capital puniehment for offences of this description, and
to substitute transportation for life. Although, how-
ever, this was the case, offences of that description and
some others were taken from 'the cognizance of the
Quarter Sessions, and the Grand Jury would have, there-
fore, to look at all those points which experience had
suggested as necessary to be proved in support of cases of
this description, and to decide whether the evidence
was sufficient to warrant them in sending the cases be-
fore the Petty Jury. There was also a charge against
three persons of attempting to suffocate another. with
intent to murder him ; and although it did not appear
that there was any previous or grudge between
the parties, yet if the Grand Jury believed, from the
expressions made use of by the prisoners and their con-
duct at the time, that they really intended to murder
the prosecutor, it would be their duty to find the bill.
His Lordship observed that there was also a charge
against two individuals of having maliciously killed a
sheep, with intent to injure the owner, and the circum-
stances of the case were of a somewhat novel kind, for
it appeared that the moment the act was committed the
prisoners gave information to a policeman, and said that
their object in committing the act was that they might
get transported. It would be difficult in such a case to
suppose that they were actuated by any malice towards
the owner of the sheep, but it was his duty to tell the
Grand Jury that the law did not require any evidence
of the malicious intention, but the mere act was sufficient
to constitute the offence. His Lordship then alluded to
one or two other cases, and dismissed the Grand Jury to
their labours.

Henry Thompson, 19, a well-dressed young man, was
indicted for stealing a ring, value 41., the property of
Vincent Silrani.

Mr. CREESY conducted the prosecution.
It appeared from the evidence that the prisoner, who,
there is no doubt, is a member of that fraternity termed
the swell mob, went down to Brighton, accompanied by
a friend on a " professional" expedition. On the 20,h
July he went to the shop of the prosecutor, who is a
,jeweller, and asked to see some mourning rings, and a
number were shown him, but he did not like the " style"
of any of them, and left the shop without purcl►asing
anything, and very soon afterwards a black enamel dia-
mond ring was missed, and on the same day the ring
was pawned by his companion at a pawnbroker's at
Brighton. When the prisoner was taken into custody,
he was very indignant, and said that he was the son of
a gentleman on Brixton-hill, and that he was incapable
of doing such a paltry act. A letter addressed to the
prisoner was, however, found by Solomons, the chief
officer of Brighton, from a confederate in London, on
which he referred to a watch he had received from the
prisoner, which he described as having "very thin cases,"
and a " very inferior 'yrench movement," and assuring
his " dear friend," the prisoner, that he could only send
him 1/. 155., and praying him to send some better things
as soon as he could ; and it appeared very evident that
extensive arrangements had been made for plundering
the tradesmen of Brighton, but which were frustrated
by the timely apprehension of the prisoner.
The prisoner in his defence declared that he did not
steal the ring.
The Jury found him Guilty.
He was again indicted for stealing a ring, the property
of Robert Nineham Brinton. _

In this case it appeared that the moment the prisoner
left the shop of the last prosecutor lie proceeded to that
of Mr. Brinton, and he there also wished to purchase a
mourning ring, but having looked over all the cases that
were shown to him, he said tha; none would suit him,
and left the shop, and about two hours afterwards one of
the rings that had been shewn to the prisoner was missed
from the fray in which it had been placed. No one else
had been in the shop, and the prisoner must have taken
it, and as no trace of it could be found, there is no doubt
that it was duly despatched to the " dear friend" in
London.

Lord Chief Justice TINDAL, in his address to the Jury,
said that whatever their suspicions might. be in this case,
he did not think that the evidence was quite cogent
enough to warrant them in convicting the prisoner, and
he therefore directed an acquittal.
There was another indictment against the prisoner for
stealing a ring, but it was not procee.ded with. The pri-
soner was then ordered to be transported for seven years.

Henry Parker, 29, and Richard' Johnson, 22, were in-
dicted for unlawfully and maliciously killing a lamb, the
property of Thomas White.
Mr. Johnson appeared for the prosecution.

The priSonersileaded Guilty.
Mr. JOHNSON, addressing the Court, said that the
Learned Judge would see by the depositions that the
present case was one of a rather singular character, and
he was instructed to leave the matter entirely in the
hands of.his Lordship.
Chief Justice TINDAL 'said that he did not see any-
thing in the circumstances of the case to warrant him
in preventing the law from taking its course. The prisoners
had previously been policemen, and having forfeited their
character, they had committed this offence for the purpose,
as they said, of getting transported. The offence was
clearly made out, and the Court could not enter into
the motives of the parties, but must visit an offence of
so serious a character with the punishment it deserved.
The prisoners were subsequentlp called up for judg-
ment, and his Lordship, addressing them, said that they
had pleaded guilty to a very serious offence. The
Court had nothing to do with any alleged motive, er
objeot for its commission, but was bound to pass such
a sentence as would be likely to deter others from com-
mitting the same act,
The prisoners were then ordered to be transported for
ten years.