The Sun.
London, England, 1812-11-28 00:00:00

LAW REPORT.

COURT OF EXCHEQUER, Nov. 47.

COMMISSIONERS OF LINCOLNSHIRE SEIVELIS V.

DIMMOT

In this case a Rule bad been applied for and ob-
tained on the part of the plaintiffs, to show cause
why the verdict for the defendant should not be

•
aside.
Mr.COPLEY appeared to shOw cause against the
,and stated the circumstances of the case.
During -the nailiatnentary sittings of -1802. and
180'3, .a number of Gentlemen petitioned for and
obtained from Parliament a Bill to amend the na-
gatioa of'"the-river Bagne, in the county of Lin,.
coin. This bill was entitled the Horncastle Ca-
nal Bill, and empowered the Company to con--
struct such works, and make such alterations
along the river itself,, and on banks, as might
appear beneficial- to their undertaking. The power
of abandoning those works was likewise granted in
the Bill, but the estates upon which they had heen
constructed, were to be restored as nearly as pas-
sible to their original situation. During the exe-
cution of their plans-, it was- found necessary to
deepen and extend a large ditch along the lands
of the present defenclant,by which the loops of
the river were united, where it made a hold
sweep through a low tract of country. The
ditch was cut for the purpose of regulating the
height of the water in the canal, by carrying
away what was superfluous, and discharging
it again into the river at a considerable dis
tance. The Act of Parliament,. while it per-
mitted that canal to be constructed, took' the
jurisdiction of the river where the locks were
made, and the sluices and ditches which ap-
pertained to it from the Com Missioners of Sewers,
and gave it to the Company. Such being
the situation of the canal, and• the estate of
the defendant, the Commissioners of Sewers, some
time in the year 1807, ordered Mr. Dimmot
to clean the ditch from the mud which was choak-
ing it.. Ire refused, alleging that the ditch apper-
t lined to the Hornea,stle•Canal Cohipany, and was
not within their 'jurisdiction; They immediately
-levied the expenses of cleaning the ditch upon the
defendant, for width he entered an action against
them, and olAained' a verdict
_accordingly. Ile
had, therefore, in the present posture of affairs,r
to support the cause of his client against the ap-
plication of his Learned Friends, and, .be hoped
to do it effeetnally. He had obtained, far the pur-
pose ofshewing their Lordships that the ditch was
tiotiwithin the jurisdiction of the-Commissioners,
the deposition of the Engineer of the Horncastle
Canal. Company, which set forth; that the ditch
in,•question‘waS extremely,necessary for the
safety of the canal, for in the time of a' high flood,
it. carried away the superfluous waters, which
otherwise would have burst the lrcks, and inan-
claled-the country. , But the ditch itself, accord-
ing to the-description which he had received of
it,
.suffieiently testified that it still remained ac-
carding to the Act of Parliament, under the do 7
minion of the Ilorncastle Canal Company. In-,
stead of- restoring. it to its original • situation,
they had permitted it to remain at the width
and depth which they had:cut it,'thereby disobey-
ing the express stipulation of the Charter -of their
Company. On the whole, therefore, he main-
tained, that the Commissioners of the Sewers had
no jurisdiction over the ditch 'in question,
and prayed that this Rule might be discharged.
Mr. Serjeant V.tvaiAN followed' on the same
side, and.observed, that the question resolved it
self within very narrow limits—" Whether, when
the Commissioners of the Lincolnshire Sewers
gave. an order to clean out the ditch, it was under

their jurisdiction."' Now, the present appearance
of the ditch manifestly proved that it still apper-
tained to the Canal Company, because it was not
restored to its original state, according to the
stipulation of the Act of Parliament, and the de-

position of-the engineer put it entirely into their
bands.; therefore, he prayed, that the Bale might
be discharged.
On the part of the application, Mr. eLinkt
maintained, that the. Commissioners of Sewers-for
the county of Lincoln were a-number of,Gentle-
men, nominated by (government to superintend
the. ditches, the proper management of Which Was
of infinite advantage_ to the county. By means
of these ditches, the county was preserved from
;inundation, and the most scrupulous attention
throughput the whole department was necessary
to keep them in repair. In the present-case, the
Commissioners perceived that the ditch upoii the

defendant's estate wanted cleaning; and, on his
refusal to -clear away the mud, he was fined.—
They had applied to the Horneastle Navigation
Company, woo informed theni, that they had dis-
contintled to make use of it,
,for they had only
employed it dUring.the period when the canal was
*instructing,- to carry away the surplus waters
which impeded the progress-of the work. These
Gentlemen merely vindicated the rights of the
cNunty,' which they were commissioned to-pro-
tect ; and they abhorred to appear in a vindictive
prosecution against any individual.
The LORD CI-LIEF BARON said, the Proprietors
of the canal could not discontinued the employ-
ment of any of their erections or excavations, by
a mere assertion that they had discontinued. it.—
it became their duty to renounce the possession,
and to -restore it to its original appearance, nei-
ther of which have been done in the present case.
They cannot begin 'and disarrange the possessions
of individuals, and .then abandon them Without
either compensation or amendment. Here the
Company took a little ditch, excavated it wider
and deeper, and extended it through a narrow
headland, so that it became extremely beneficial
to their canal, and they must not:be permitted to
resign or disclaim it at pleasure. The ditch cer-
tainly was not under the Commissioners' jurisdic-
tion.---Rule, d ischarged .

COURT OF KING's BENCH, Nov.

THE KING V. JOHNSON.

The defendant, who was convicted of seducing
eoldiers to desert, in order to gain a bounty upon
entrance into the sea service, was brought up to
receive judgment.

HuLto6K).for the defendant, addreed the
Court in mitigation of punishment, and urged that
the case. admitted of some palliation, inasmuch as
the motive was not a seditious one ; and that the
men seduced still were in the service of their coun-
try, in the navy instead of the army.
SOLICITOR GEIOIIIAI,., in reply, contended,
that this was'an aggravated case, inasinuch as the
army were defrauded of their men, and the navy
of their boupty money.
The, Court sentenced the defendant to he im-
prisoned three months in -the Gaol of Newcastle,
andlo stand once on the pillory ; and for the.
second .offence, to pay a fine of TX.

Thursday, Nutember 2G.
"POINT .OF PRACTICE.

- V. NEWCOMBE'

Me. RICHARDSON shoved cause against a rule
'obtained' by Mr. tie Icier in this case, by which
the defendant's bail asked for farther time to ren-
der the defendant. The return clay of the writ
on which day the bail ought to have rendered the
person of the defendant was 17th June, being
the last day of last Trinity Term. On-diat day,'
the bail having previously procured a writ of Ha-
beas. Corpus, directed to the Sheriff of Notting-
ham, calling on him to bring into Court the body
of the defendant then in his custody, produced in
Court a-return to the writ, froM which it appear-
ed that Newcombe was in such 'a state of bodily
health that he could not be removed even to the
ili*tanee of one :mile from his then plaae of cus-
tody, without endangering his life. Upon the
faith of this return to the writ of Habeas
the Court, on the application Of the bail, enlarg-
edthe time for rendering the defendan ill the
fourth day of the present term ; when Wanafsi-
daVit stating a continuance of the same impossi-
bility on the part of the bail to renderthe body
.of the principal, a rUlelliSi was moved for, and
,obtained, extending the time for rendering the
ilefendant till the fourth day of next term. •
Mr. ILI c umussoN-Ain %hewing-cause. against this
rule, relied on tii6• case of Wynne and Petty,.
where it was held by the Court, " though there
was a positive affidavit of a 'surgeon, -stating;, that
the defendant could not be rentaved to the effect
of rendering bins in Court 'in ,discharge of his
bail, without almost a certainty of thereby losing
his life"—that the CoUrt could not on that ac-
, count relax from the policy-of their general rule.
Though the band of God might, in a I...rtjcular
instance, as in 'the case in' oisestion, impose a
hardship upon. an individual, the Court: could not,
to-reinedy that' individual hardship, throw open
their general rule. •"
Mr. 14aDER, on the other hand, relied'on*a va
riety Of cases, in which not only the time for
rendering principals by their bail had been, en-
larged, but even where, on grounds of no greater
urgency than the present, an exonerator on the
bail piece had been allowed to be'entzred. Among!
others, he instanced a case where a, defendant
having been turned out of the country under the •
Alien 'Act, an exonorator was allowed to be en-
tered on the hail bondithe bail having:been there
perfected. In .1-1 e case •of, Wood and Mitchell,
where the defendant. received sentence of 'trans-
pprtation, a shitilar relief was 'afforded to his
bail ; and the Court had also laid dOWn a simi-
lar doctrine in the more recent case of cock and
Bell.

Lord ELLENtORCHIGii said, agreeably to the
decision in the case of Wynneand Petty, the Court
were bound to act up to that strict role of point,
which they had chalked out for themselves, and
without an adherence to which they could not
protect.themselves against daily hnpostures: They
had neier, however, gone beyond the rule laid
down in that case, which in- his, opinion they
would do, by refusing the present rule, by which
they were not called on to go the same. length
they had alread gone, in cases no., more distin—
guishable from that of Wynne and Petty than the
present case was. In tilt present case, the ma- •
nu-caption. was not within the power of the bail;
which it confessedly was in the cpe of Wynne
and Petty. Ilere the power of rendering the per-
son. of the defendant was- not in. the party (the
bail), but in the,. law. In the case allUded to
there was only a sort of niorat impOssibility on the
part of the bail to render their, principal : here
thefe Was a legal invossibility ; and though the
Court could,uot with safety attend to a plea of
moral impossibility, they were. bound to attend
to a case of legal impossibility, as to which
they could not, in the nature of, things be de-
ceived. Rule 'made absolute.

Military dispatches.were'vesterday delivered at
the Horse-Guard,, from Major- General CLAY,
cominanding his Majesty's forces in the Island of
Antigua.
A letter from ati Officer on hoard the Blake,
dated off Tarragona, the .12th ult. after detailiiw,
the particulars of het attack on the enemy's vessel's
in the Male, states, that since that period, the
Baron ERoLEs; with- a few of his troops, fell in
with 520 Frenchmen ; they were in the act of
athering their contributions- at a -..place called
.onido, 20 miles from Tarragona.- Ile killed
271, took: prisoners 179, escaped 70--.--totals2o.
Stvindling.—Two genteelly dressed men took up
their ahode,.a few nays, since, at the Featherslnn,
near Cheshu..;, attended by a, servant in livery,
and bythe appendage of Selfmade titles, they got
acquainted with sonic persons of consequence in
the neighbourhood, purchased 'a. freehold estate,
&c. and astonished the. neighbourhood. Besides
getting upwards of 2001. in ready money, they
decamped with a valuable 'pair of horses, in a
good chaise, which they hired for a week, as well
as -with a hackney for their servant, no doubt an
accomplice, and have not since-beeb heard.of,—
They have been announced as answering the de-
scription of two Swindlers who committed frauds
to a great amount,. in the neighbourhood of Ox-
ford, a few months since, but, unfortunately, jus-
tice has not yet overtaken them.
FELONS EXtRAORDINARY.-There are at present
confined in Durham gaol, a prisoner for felony at
the age of-ten years; another nearly ninety ;- and
'a female possessed of one.linndred and fifty thou-
sand pounds; for stealing an article not" worth
more than eighteen-pence !

ItNitiS,

(Continued trom otir Paper of Yetterday.)

NoW; Sir, I should be glad to know by what
kind of reasoning it can be pioVed, that there is a
power vested. in the representation to destroy his
immmediate constituent ; from whence could he
-possibly derive it ? A courtier, I know, will he
ready enough to maintain the affirmative. The
doctrine suits him exactly, because it gives an un-
limited operation to the influence of the crown.—
But we, Mr. Wilkes, must hold a different lan-
guage. is no answer to me to say,- that the
1)41; ,when it passes the notise of Commons., is the
act of the majority; and not of the representatives
of the particular boroughs, concerned. If the
majority can disfranchise ten boroughs, why not
twenty ? Why should they not make their own
Seat.- in Parliament for life ? When the. Septennial
Act passed, the
.legislature did what apparently
and palpably they had no power to do ; but they
did more than people in geAeral were aware of
they disfranchised the ‘Vhole' kingdom for font.-
years. ~

- 'For argument's sake, I will now suppose, that
the expediency of the pleasure, and the power of
Parliament were Unquestionable. Still you will
find an insurmountable difficulty in 'the execution.
When all your instruments of amputation are pre -
paredwhen the unhappy patient lies hound at
your feet, without the possibility oT resistance,
by what infallible rule will you direct the opera-
tion i Are There any cutain limits, in fact or the-
ory, to inform you at what point you must stop—
at what point the mortification ends -1. , To a -man
so capable of 'obsenation and reflection as yfiii
are, it is 'unnecessary to say all that. might 6c said.
upon the subject. ,Besides that.l approve higi:ly
indeed of Lord Chatham's idea of " infusing'
a portion or new health into the constitu
tion to enable it to hear its infirmities," (a
brilliant expression, and full of intrinsic wisdom),
other reasons concur in persuading me to adopt'
it. I have no objection to paying him such com-
pliments as carry a Condition With them, and
ther bind him firmly to the cause, or become the
bitterest reproach to hint if he deserts it. Of this
last I have not the most distant suspicion. There
is another man,. indeed, with whose conduct I ain
not so completely satisfied. Yet eve:: he has not
I think, resolution enough to do any thing fla-
grantly impudent in the face of his country, At
the same time that I think it good policy to pay
those ;compliments to Lord' Chatham, which, in
truth, he hasnobly deserved, I. should be glad to
mortify' those contemptible cre::tures who call
themselves noblemen; whose worthless' importance
depends entirely upon their influence over boroughs
which cannot, safely be diminished, but by in-
creasing the powers of the: counties at large.
Among-these men I. cannot but distinguish the
meanest of the human species, the whole race of
the Conways.
I have but one word-to add,—l would not give
representatives to those great trading towns which
have none at present. If the merchant and the
manufacturer must be really represented, let them
become freeholders by their industry, and let the
representation of -that- town be increased. -Yon
will find- the intt.‘rruption of business in those
towns by the triennial riot and cabals of an elec-
tion, too dear a price for the nugatory privilege of
sending members to,Parliament.

The remaining articlys will not require a -long
discussion ;—of the fourth and fifth I have spoken
already.,

Article 6.—The same measures recommended in
the sixth are unexceptionable. My only doubt is,
how Can an act apparently done by the House of
CamniOns be fixed; by sufficient legal evidence,
upon the Duke of Grafton or Lbrd North, of whose
guilt lam nevertheless completely • satiitied. As
for Lord Weymouth and 'Lord Barrington, /heir
own letters are s n fii lent ground of impeach-,
ment.

Article 7.—The seventh article is alsci very
proper and necessary.. The impeachment of Lord
Mansfield, upon his own paper, is indispensable.
Yet suffer meta guard you against'the seducing
idea of concurring in any vote, or encouraging
any bill, which may pretend to ascertain, 'while in
reality it limits, the constitutional power of juries.
I would have their right to return a general- ver-
dict in all cases whatsoever, considered as a part
of the constitution; fundamental.,. sacred. and no
"more questionable by the legislature than whether
the government of the country shall he by 'King,
Lords, and Commons. Upon thispoint,an Enact-
ing Bill would be pernicious ; a Declaratory
Bill; to aay the best of it, useless.
Article think the eighth article would be
more properly expressed dans :—You shall grant
no money, unless for services known to, or 0-
prtived by Parliament. The Honse of Commons
are indeed too ready in granting large sums under
the head of Extraordinaries it-int-red, and not
provided for. Put the aceounts'lie before them ;
it is their own fault if they do not examine them.
The manner in which the late debt upon the civil
list‘vas pretended to be iiici'r,red, and really paid,
demands a particular' examination. Never was
there a more impudent outrage offered to a pa-
tient people.
Article 9.—The ninth is indispensable ; biit I
think the matter of it rather fit- for instruction,
than for the declaration you have in view. lam
very apprehenSive of clogging the declaration,
and tanking it too long."

(To be c ont inued .)

BUONA PARTE ordered his servile Bishops to ad-
dress thanks to the God of Armies for his victo-
ries in Rus'sia, but he 'will live more reason to
offer up thanks if he and his myi'midonS' should
ever escape from that country.
A. lady of good connections, and the Widow of
an Officer of first rank in the Army, was taken
into custody on Wednesday, charged with bigamy,.
in intermarrying with the said Officer, her fin--
.mer husband being still alive. The lady was taken
before a . Magistrate, and held to bail until a fu-.
ture day, when the case will be entered into, and
much legal discussion is expected to take place on
the authority of the first marriage, which took.
place in Scotland. Some heavy pecuniary affairs
are involved "in the question,