The Sun.
London, England, 1824-11-12 00:00:00

LAW INTELLIGENCE.

• COURT OP CHANCERY, Nov. 11.
CONSIT, IN RI: I.E. A BANICREPT.
This was a petition from an assignee, under a joint and seve-
ral commissions of bankrupt, to be releazed front one of his as-
Bigneeships, in consequence of some remarks made by the Lord
Chancellor in a recent cause impeaching the property of this
kind .of double trust.
The petition lies over till the hearing of some other matters
which are pending in the same bankruptcy.

WRITES %%AIMEE.
Mr. SmAnwELL obtained permission to have the service of
attachment for default of answer enlarged till Tuesday next,
as it appeared that the defendant had answered to the full-
ness of his ability—and that the defect complained of could
only be supplied by his wife, from whom no answer could be
obtained until the Court could select some method of guardian-
ship under which she might appear suitably
the Court. to the forms of

VICE CHANCELLOR'S COURT, Nov. 11.
Ilis ilosoo it heard cases, none of which were of public in.
terest.

COURT OF KING'S BENCH, Nov. 11.
CRIPPS V. SMITH AND OTHERS.
This was an action by an elderly lady against three defend.
ants, Smith, Taggart, and Bascomb, on a promissory note for
701., bearing date In the year 1016. The endorsements on the
note were in the handwriting of Smith ; and the .lur', believ-
ing the whole to be a contrivance of SMith to obtain money
from the other parties, returned a verdict for the defendants.
Mr. GURNEY now said he was requested by the plaintiff;
Who was a poorwoman, to mention the case to the court. Ile
was not himself at the trial, and therefore did not know exactly
what had been proved.
The LORD CIIIEF JUSTICE said, he believed some entries
were produced, to show the advance of money by Smith
to the others, which excited great surprise in Court, from the
manner in which they were interlined.. Was any gentleman
present who had been in the cause
Mr. CHITTY rose, and said that he had been present, and
recollected that Mr. Scarlett, who led the defence, discovered
that the water-mark of the paper on which the entries were
written was of a date subsequent to the time when they put.
ported to be made.
Mrs. Cripps herself rose, and whispered to Mr. Gurney.
Mr. GURNEY said, the plaintiff' was a very poor woman,
who complained that she had not had justice. •
The Loan Curt, .luirrnic.—Some people are disposed to
think they never have justice when they fail; I hope, and be-
lieve that full justice was done.
Mrs. Cripps then herself addressed the Court, and ascribed
the failure of her cause to the absence of Mr. Gurney.
Mr. Gt.III24EY said, the case was conducted by Mr. Mar-
ryatt, which was much to the benefit of the plaintiff.
Mrs. Cripps then addressed the Court with much volubillity,
declaring that the entries were produced not as orlinals, but
rttlitlnaittythoef
t wheritnaelsrucs
le,wtoergeivneotthehmearand ;opapon Cp'roouvritnoguigierht
cto grant as copies ; thatlz
The Loin) CittEr JUSTICE.—After what was proved in
this case, we can have little faith in what might have been
proved. We have really no authority to grant you a rule with.
out
her efforts to be heard, till though 31r. TAUNTON
out some good ground ;_
to s
and you have shown us none.
calffieldrs.o(nlritpopsucloonveti, andnuedco
silenced by the Usher, At last, finding no one would listen,
she withdrew.

SIMS v. COX.

This was an action of trover, brought by the executor of
John Sims deeense.d, to rea.vver the value of a promissory note
fur 1001.,
which had belonged to the testator.
Mr. Sims, the
deceased, was a man who died at an .advanced age, after ac-
quiring considerable property, in the City of Oxford, The
wife
et.
the
defendant was living with him as a servant, or at-
tendant, at the time of his death, and claimed the note as a
&math) mertir causa. On her part, three witnesses, members
of her family, were called, who all swore that the old man
asked for the box where hit securities were deposited, from
which he took the note and gave it to Mrs. Cox, saying, " If
I recover, yuu must return this to me; but if I die, you are to
keep ft." On the part of the plaintiff, it was proved that the
old man, being asked a little before his death by a friend if be
had given a note to Mrs. Cox, answered in the negative. The
Learned Judge, Mr. Justice Littledale, left the case to the
Jury, who found a verdict for the plaintiff
Mr. l'ausyrosr now moved for a new trial, on the ground
that the verdict was against evidence. If the witnesses for the
defendant were believed, the case was clear; and there was no
variation in their testimony, except that one represented the
gift as made before tea, and another after, Their testimony

It will be recollected, that this was an action by Colonel
Bradley against Colonel Arthur for false imprisonment, which
was tried at the last sittings in London before the Lord Chief
Justice.the imprisonment
Tl r e were a
by
yeat the numberinmilitary
of justify-
ingC
oloncArthur, on which isiates were taken ; and, after which; the
ry
plaintiff had further new assigned that the defendant- hail
imprisoned him for a longer period than the occasion, if
authorizing the. arrest at an, would justify. It appeared in
evidences that Colonel-Arthur' .was, qa..theltird Jttly,jit 4,
appointed by the Duke of MancliestfOhen Orseilhar etyle:e
maica, Superintendent of the Settlement of Honddas. On
the following day, being then Colonel of the York Chasseurs,
quartered at Quebec, he received a commission from General
Fuller, the commanding officer on the station, authorizing
him to command such of his Majesty's subjects as then were
armed, or as thereafter should arm themselves in defence of
the settlement. Under this commission he continued to act,
until the regiment of York Chasseurs was reduced to half-
pay. Upon this, Colonel Bradley conceiving that Colonel
Arthur had ceased ipso facto to be a soldier, and that conse-
quently his military authority ceased, claimed, as the superior
oflicer, to command the garrison, and refused to obey Colo-
nel Arthur. For this disobedience he was put under arrest,
and detained for 291 days; during 210 of which the arrest
was open, and for the residue close. Sir Henry Torrens anti
Sir Herbert Taylor were examined, and gave their opinion
that Colonel Arthur continued to be the superior officer on
the stations notwithstanding the reduction of his regiment.
The Lord Chief Justice gave his opinion, that in point of law
Colonel Arthur had authority to order the arrest of Colonel
Bradley, but left the Jury to determine, on the new assign-
ments, whether the imprisonment was excessive. Under this
direction, the Jury found a verdict for the defendant on the
special pleas, and for the plaintiff' on the new assignments,
with 1001. damages.
Mr. 131ton-turas' now, on the part of the plaintiff, moved
for a rule to show cause why there should not he a new trial,
on the ground that the direction of the Lord Chief Justice
as to the validity of the justification was wrong. He grounded
his motion on three distinct propositions—first, that the Crown
had no power to delegate the right of granting military com-
missions ; secondly, that if the Crown possessed that nen, it
had never actually delegated such power to General h uller ;
and, lastly, that if it possessed, and had delegated the power,
General Fuller had not exercised it by the commission granted
to the defendant. And first, he would contend, though it was
not necessary to his case, that the Crown itself possessed no
right of delegating to another the power of granting commis-
sions. He denied any power excepting that of the Crown to
make a man a soldier, and clearly no such power had been
exercised on the present occasion.
Mr. Justice Bay LEv.--Was the commission to • General
Fuller produced? •
Mr. Blum fiAM.—No, my Lord, it was not produced ; and
if it had been, the Court would have seen at once that it dole-
gated no such power. The idea that commanders of districts
may grant commissions, has excited very considerable alarm ;
and perhaps I have said enough in a case so important to entitle
me to a rule. If the Court think not, I ant prepared to go fur-
ther—to show that when Colonel Arthur was reduced to half-
pay, he ceased to be a military man, or amenable to military
discipline ; but probably I have said enough to induce the
Court to put this important question in a train for further in-
quiry. In the case of Captain Ross, it was decided by all the
twelve Judges that a half-pay officer is not liable to be tried by
a court-martial.

Mr. Justice BAYLE Y.-But he is not obliged to give up
his half-pay under the insolvent debtors' act : for it is not only
a reward for past, but a retainer for future services.
Mr. BRcitinnaNt.—lf a half-pay officer be summoned
to active service, and refuse, he cannot be tried by a court-
martial.

The Lonn Cuter .11,sirtcs:.—No ; but the King may
strike him off the half-pay list for his refusal.
Mr. BROUGHANI.—.And so he may whether he refuses or
not. The Learned Counsel then proceeded to remind the
Court, that it' necessary he would argue that the Crown itself
could not deligate, and had not delegated, to General Fuller
the right of granting a military command.
Mr. Justice BaYeEv.—.Chan, supposing in any colony
there should happen not to be a number of troops sufficient for
any emergency, and other persons are disposed voluntarily to
serve, the King must be deprived of their services, because no
one on the spot can grant a commission ?
The 14011 D CHIEF JUSTICE.—The question on the trial
was, whether the defendant was authorized to conduct himself'
as he did towards the plaintiff.
Mr. Ilitouottast—lf your Lordship is going to decide
against me, I must beg to he heard further. I thought it was
understood at the trial that I should move the Court, or tender
a hill of exceptions. I was invited by your Lordship to tender
a bill of exceptions.
The Loan CHIEF JUSTICE—Then I will state the nib.
stance of what passed at the trial, and my Learned Brothers will
judge whether you should take a rule, or proceed further. His
Lordship then stated the evidence given at the trial, and repeat-
ed his opinion that it proved an authority in Colonel Arthur to
arrest the plaintiff.
Mr. BROUGHAM proceecied. The evidence of the military
men—most respectable as they undoubtedly were—went only
to matters of opinion ; and that opinion involved matter of law,
not local or foreign law, but constitutional law, on which this
Court alone could decide. If required to argue that no mill-
tary commission could be granted by a subject, his only diffi-
culty would be the absence of precedent, fot the case had never
arisen ; no one had ever been wild enough to suppose that any
but the King could grant commissions. The recognition of
Colonel Arthur's authority could make no difference, if there
wax no power in the Crown to delegate it; they amounted to
nothing but the erroneous opinions of individuals, and did not
carry the case one step further. The evidence of the two an-
cent contained doctrines which contradicted each other; for they
admitted that a half-pay officer was not amenable to martial
law, and yet they asserted that he, by virtue of his military
character, continued to retain a military command.
Mr.
s
also rit at
Justicecentnilot BntohfAoeYl7fhto irc:coYelrsoeTg"iiiisn, he to
ni fba frith aaen
another military
qte ail ntor
taftenhri oii tepis
el)sogi commandtbtle asuperinppointed
by the
of which he is ignorant ?
Mr. Bnoutmast—And that evil is felt and provided for,
by immediately sending out another commission, when it hap-
pened. Of this there are numerous instances.
Mr. Justice BAY LEY.—But here the defendant rests not
merely on his commission from General Fuller, but on that from
the Duke of Manchester.
Mr. BROUGUAK.—Nnt so, my Lord:
the commission from
the Duke was only mentioned to be dismissed—it could do no-
thing—the whole case was bottomed on the commission from
General Fuller, which alone could give a military command.—
But what did that commission effect ? Nothing clearly, if it
did not proceed from n- delegated power, of which, if it could
exist by law, no proof was given. It was difficult to conceive
how officers could draw their pay, unless appointed by the
Crown. The officers in the North American Colony, and those
of the East India Company, though the latter hail commissions
from the King, were allowed to take rank only by virtue of
express provisions in the articles of war. Without those,pro-
visions, they would not be amoebic to military law, or entitled
to military powers.
Mr. Justice BaYLEv.—ls not a commandant, as such,
amenable to martial law ?
Mr. BROUGHAM.—Certainly, when he has a commission
from the Crown; but not when he is a mere civil officer, who,
having been a soldier, has ceased to be so by the reduction of
his regiment.
The LUSH CHIEF JUSTICE (Mr. Justice flolroyil having
left the Court) said, I am given to understand my brother Lit-
tledale will decline giving any opinion on this question, and my
brother liohoyd is gone. Would the Attorney-General object
to have the facts brought before us in a special case ?
The ATTOHNEY-UENERAL said be would consider of the
suggestion, and inform the Court.
The Lour) Clime JtrsTreE (to Mr. Broughani).—Vour
argument goes the length of maintaining that Colonel Arthur

To-day, the counsel for Mr. Palling addressed the Court, ob-
serving that he was not present on t'he last court-day, when a
statement had been made to the Court by a learned gentleman,
calculated very much to prejudice the interests of his
He was now instructed by Mr. Chas. Fenton, the proctor fur
Mr. Palling, to bring in an affidavit, signed by three persons
(the landlady, a friend, and the solicitor of the party), together
with several exhibits and certificates, as to the condition of Mr.
Palling's mind, signed by Dr. Burrows, M.D4 and by Mr.
Fletcher, the surgeon. This affidavit was read. The lady at
whose house the party had lodged for a considerable time, de-
posed that he had always, and in every respect, conducted him-
self as a person of sound mind and understanding. A gentle-
man who had been acquainted with him for the last three years
deposed to the same effect, adding, that one Mrallett, the keeper
of an establishment at Battersea for the reception of lunatics,
under whose care Mr. Palling had been onceplaced by his
father, had recently met deponent, and informed him that Mr.
Palling was as well as himself or deponent either. Mr. Law-
rence, of Doctors'-Commons, the gentleman's attorney, also de-
posed to several instructions which he had received from Mr.
Palling in respect to effecting what lie knew to have been his
father's intentions in favour of a particular individual, dec., and
to his (Mr. Lawrence's) belief of the perfect soundness of 111 r.
Palling's mind. Documents were then read ; the first being a
letter from Wallett, dated in the beginning of July last, and
addrasied to Mr. Palling, the deceased, requesting him to re.
move his son from his care, as he could not feel justified in re-
taining him any longer. The second was a letter from and to
the same, dated the 211th of July, 1024, preferring the like re-
quest, but in still more urgent and pressing terms. The third
was a certificate from Dr. Burrows, certifying his opinion of
Mr..l. 0. Palling's sanity of mind, and dated 9th of Novem-
ber, 1024. The fourth, a similar certificate from Mr. J.
b'letchcr, surgeon.
Sir Joitti N wator.t. was about to permit the letters prayed
to pass the seal, when
The adverse counsel stated, that the widow and aunt now
gave an appearance in the cause, and prayed the Court's grant
to be made to her for the use and benefit. of Mr. Palling. If
Mr. Palling had produced a certificate from Dr. Powell, under
whose sanction he had been first placed at Battersea, he (De.;
Lushington) would not for a moment object to the letters being
granted-to him, as the son of the deceased, in the usual way ;
but, on the contrary, the learned counsel continued, he now held
in his hand a certificate, signed but yesterday, by Dr. Powell,
which, with the Court's permission, he would read.
The counsel for Mr. Palling objected ; inasmuch as the sug-
gestion thrown out by the Court on the last Court day had
been already complied with. It was extremely prejudicial to
this gentleman's interests, and very cruel to his feelings, that.
most unfounded assertions respecting the state of his mind had
already found their way to the public. lie was in his Majesty's
service, mid on half-pity. Nothing could be more expresti than
the language of the certificates that had been brought in by
his proctor.

Sir Join( NICITOLL admitted that it was a cruel thing that
Mr. Palling's sanity should be questioned in this manner, par-
ticularly if, as the Court did not doubt, he had now quite re-
covered from any affection whatever of the mind. But it was
an equally cruel case with any individual, who, being of sound
mind, was nevertheless driven, as often occurred to establish
his sanity by legal evidence. The best thing Mr. Palling could
do would be to submit to an interview with Dr. Powell for,
as he had once been confined, it was prima fiteie a ground f
the present application ; and as the lady, who
,was his relation,
could have no personal interest in the success of her prayer—
which was only to administer for this gentleman's use' and
benefit—the Court would certainly feel reluctant to grant
letters to him under the present circumstances of the case. At
the same time, if the averments which had been made in respect
to Mr. Palling's mental incapacity should not be proved, the
Court would condemn the party snaking them in Nos : if they
should be proved, then it would decree the letters, limited " for
the use and benefit of Mr. Palling," to the party so applying
for them—namely, his aunt.
Counsel then stated that Mr. Palling was now in Court, and
would most readily consent to any examination: Dr. Powell
might think proper to make into the state of his mind.
The other side said, that in that case, undoubtedly, if Dr.
Powell would give a certificate of a nature to establish the gen_
tleman's sanity, he would pledge hinisennmediately to with.
draw all further opposition. Thus the matter stands over to
next Court-day.