The Sun.
London, England, 1841-01-20 00:00:00

ROBERTSON V. DVESRVRT.

This case came before the Court upon appeal from the
decision of the Vice-Chancellor. The only question was
whether two sums, one of 6,1501. and another of 1,057/.
and certain messuages belonged to the residuary legatee
of a gentleman named Ebenezer Robertson or to a person
named Edward Boghurst, who was the personal repre-
sentative of the son of Mr. Robertson. The Vice-Chan-
cellor was of opinion that the property went to the resi-
iluary legatee, and from that decision the present appeal
was brought.
The arguments were not concluded when his Lordship
rose to attend a Cabinet Council.

ROLLS' COURT, Jev. 19.
OLDFIELD V. CORBETT.
The defendant in this case is the son of the late William
Cobbett, who was the Member for Oldham, and a bill
was filed by the plaintiff against him as the executor of
his late father. The defendant obtained the usual order
to defend the suit in forma pauperis ; on the petition of
the plaintiff that order was discharged. On the 11th of
June the defendant was committed to the Fleet for con-
ical tin not answering a bill filed by the present plaintiff
nth Exchequer, and immediately after such commitment
detainers were lodged against him for certain costs in
ill's trial.
The case now came before the Court, upon the petition
of the defendant, praying that the order of the 30th
of March, which dispaupered him, might be' discharged.
The MASTER of the Roues said, that according to his
off iderstanding of the practice of the Court a party could
no; either sue or defend in forma pauperis when he hap-
pe ;ed to he an executor. That he believed to have been
t .e rule 1 i i down by his immediate predecessor (the pre-
seat Lord Chancellor) after a careful examination of the
an hori i:s. Mr. Cobbett having obtained the order for
le Lye to defei d in forma pauperis, he defending in
tne character of executor, did that vih:ch was in-
consistent with the ordinary practice of the Court,
and the order was therefore necessarily discharged. It
was said, however, that the order to sue in forma pauperis
ou;lit to stand, because be had a personal interest as re
isiduary legatee and creditor, but in the very same breath
it had been admitted that that interest was now vested in
other persons, and that at the present time he was only a
party to the suit in his representative character. The pc-
titiun must, therefore, be dismissed with costs.
DE WALL V. LORD MELBOURNE.
Mr. PEMBERTON was about to make an application in
this case on behalf of the plaintiff, Armand Pa:rice Alfred
Count de Wall, and several other parties, who are the
children of the late Count de Wall, against the Lords of
the Treasury, for an injunction to restrain them from part-
ing with the fund In their possession for the payment of
French claims, when
The ATTORNEY- GENERAL, who appeared for the Lords
of the Treasury, said he would have been very willing to
have followed the precedent established in a similar case
that came before his Lordship last term, and have un-
dertaken, on the part of their „Lordships, to kesp
a sum that mould answer the demand: but that
could not be done in the present case, because
the demand considerably exceeded :he whole of the un-
appropriated sell plus. At the same time he thought it
possible that some arrangement might be made which
might ohs iate the necessity of his Lordship hearing ,the
application for an injunction. He understood the great
reject which the pla:ntiff had, was to appeal to a Judicial
Committee oitho Privy Council against the last award of
the Co nmissioni rs. It had been referred to the
Law Office s of the Crown by the Lords of
the '1 ry whether permission to appeal should
1).! given, but they had not had an opportunity of
forming an opinion. What he (the Attorney-General)
would prop se suits, to let the case stand over for a month
or two, with an understanding that there should be no
payment from the fund in the meantime, because instead
of tendering it necessary for the suit to proceed, the Lords
of the Treasury might be recommended to give to the
ckimant the permission he sough , namely, indefinitely to
appeal to the Judici:l C .mmittee of the Privy Council,
withot t confining the claim to what were called the Cham-
pagne estates.
Mr. PeMBERTON said it was not possible for his clients
bt oh; C to that arrangement, but there had been an actual
arr,,ra t, them for 3,0001.
The ATTORNEY GENERAL—That they can have any
day they like.
The MASTER of the Roees—That is very satisfactory.
It is just the course of proceeding one would desire to see
take place.
Mr. PEMBERTON—Nothing could be more proper than
the course my Learned Friend the Attorney-General pro_
pouf's to adopt.
The ca.e was then ordered to stand over till the first day
of Easter Term.

VICE CHANCELLOR'S COURT, JAN. 19.
BANNATYNE V. LEADER.
The arguments in this part-heard case were returned
this morning, and occupied the whole day. It is gene-
rally understood that the case will take at least four days
more in argument.

COURT OF QUEEN'S BENCH, JAN. 19.
The Grand Juries for Westminster and Middie,ex were
sworn in this morning before Mr. Justice Littiodate, who
briefly addressed them upon the nature of the duties they
had to discharge. He understood that their labours would
be very trifling, there being very few presentments to go
before them, and there was no case among these calling fur
any particular observation.

STEVENSON V. THE MAYOR ANE CORPORATION OF BERWICK

ON TWERD.
This was an action to recover a sum of 306/ 19s. 10d.,
being the amount of plaintiff's bill as a solicitor for work
done for the Corporation of Berwick; the case was tried
before Nfr. Justice Williams at the Westminster sittings,
and a verdict was had for the plaintiff, subject to the opi.
nion of the Court upon a special case. It appeared
that the plaintiff, who was a solicitor, had entered into
partnership with Mr. Jamieson, the town clerk of Berwick,
who was also a solicitor, but had not taken out his certificate.
The Corporation had directed the; Town Clerk to do the
work, and he being also Clerk of the Peace, and thereby
debarred from practising at the Sessions, handed it over to
his partner, the plaintiff, but without obtaining the sanc-
tion of the Corporation. The defendants had paid a sum
of 521. 10s. into Court, and 'denied their liability as to the
remainder. The question in the case was, whether the
plaintiff had received such a retainer from the Corporation
as would enable him to recover.

Mr. Watson appeared for the plaintiff, and Mr. Ingham
for the defendants.

The COURT, after hearing the arguments of Counsel,
were of opinion that tho payment of the sum of 521. 10s.
into Court by the defendants could not be taken to bind
them to more than that mm, and as there did not appear to
them any evidc----z of the ntiff being retained, their
judgment must be for the defendants.

COURT OF _EXCHEQUER, JAN. 19.
(Sittings in Banco.)
stoENs v. HAYWORTH AND OTHERS.

The defendants in this case carry on a very large bust
ness as general merchants in Liverpool, and are also
partners in a house in Rio Janeiro. The latter house
shipped on account of the house in Liverpool 2,500 bags
of coffee, stated to be of the first shipping quality. The
house in Liverpool rent up the invoice to 'Mr. Corric,
their agent in London, who sold the cargo to the plaintiff
in April 1836. It did not turn out of the described qua-
lity, and then the present action was brought, the plaintiffs
in their declarations imputing legal fraltd to the defendants
inasmuch as they said the invoice leas only from the de-
fendants to themselves.
The trial was had before Lord Abinger, when the Jury
found for the plaintiffs.
During last term t'ae Attorney- General moved for, and
obtained, a rule ni-jt for a nonsuit, cause against which was
shown by Sir W. Follett and Mr. Kelly on Friday last.
They contended that although they imputed no moral
fraud, yes: the invoice was clearly proved to have been made
by the defendant in Rio Janeiro to himself in Liverpool,
that 'the invoice was laid before art eminent London mer-
er.ntile Jury, who must be the best judges of such a case.
All the circumstances of the case were clearly matter for
the Jury, and not within the jurisdiction of the Court, the '
Jury having decided upon it. They trusted, therefore, the
verdict would not be disturbed.
The ATroersev-GENERAL, in support of the rule;denied
that there was anything unusual in the transaction ; it was
the usual one. The agent shows the invoice, he is asked
to warrant the coffee, but he said No, my principals will
not bind themselves, for they had not seen the goods, but
they showed the '."twice in order to prove that the goods
were so desr.ribed to them, and that fact was in-
sortedlt in 'fie contract of sale. Ho contended that
tere we.s noi. proof of fraud, for upon the face of the in_
voice 'it clearly appeared that the coffee'svas consigned by
Itr
yworth, Brothers, of Rio, to Hayworth, Phipps, and
"..;43., of Liverpool. Not one word was said by the broker
in order to lead the plaintiffs to suppose that the invoice
was made by an independent party.
The case was resumed this morning by Mr. Cresswell,
who was followed by Mr. Cowling. Both gentlemen
took the same line of argument as that taken by the Attor-
ney-General. Fraud was disclaimed ; it was not proved ;
and if so, then there was no question for the jury.
The COURT were of opinion that the jury were the proper
persons to say what interpretation should be put upon the
invoice. There was some although little evidence, there-
fore there was no ground fur the motion for a nonsuit. As
the sum was Lige, and as the Court had some doubt
upon the matter, as accordnig to the pleadings, in order
to support the verdict, it was necessary to prove moral
fraud, they ts ere of opinion that there ought to be a new
t lel on payment of cotta.

HOIST V. MOSS AND ANOTIIER.
This w;is an action for false imprisonment upon a charge
of forg,ry—it was tried before Lord Abinger, at the sit.
tings in London, when the jury found for the plaintiff
400/ damages. Last term Mr. Kelly obta tied ;
rule uisi fur reducing the verdict, or fora new trial.
PLATT appeared to show cause, when
The coma suggested that the damages were evidently
too large. Would it not be better to agree at once to a
new trial, on payment of costa.
Mr. PLATT did not know upon what grounds he should
agree to such a course. Here were two attorneys well
acquainted with the law, yet they trump up the charge of
forgery upon which the plaintiff, a surgeon, was locked up in
a felon's bar until discharged by the Lord illayor, in
criler that he may he rnmediately arrested upon a writ is-
suing ft om their office. Who was to be the judge of the
arnount:of damage? He had always understood that the law
of England said it was to be aJury, and the Court had
no jurisdiction, unless the damages were so excessive as
to be outrageous.

Mr. Baron PauxE—The Jury would not have given
4001, had tho defentlantt, not born attorneys.
Mr. PLATT—WaS 4001. too riluch to satiJfy a gentle-

man for being locked up as a felon ? What was the law
upon the subject—where was the rule ? \Vas it to be
fixed at 2001. for imprisoning► a surgeon en a charge of
felony? What then for as Alderman or a banker? Or was
it to be laid down that 50/. was enough for trumping up
such a charge against a shoemaker ? After reading the
affidavits, from which it appeared that the charge was made
by a person named Callum, a sort of clerk to the defen-
dants, whose acts were denied by them, the Learned
Gentleman said ho had affidavits which flatly contradicted
those made by the defendants ; he said the charge of for-
gery and his being taken into execution had been the ruin
of the plaintiff, and that therefore the verdict was not ex-
cessive, and ought to stand.
Mr. MOODY followed on the same side, and in the midst
of his speech some communication took place between Mr.
Kelly and Mr. Platt, and an arrangement come to. The
verdict to be reduced. The sum was not named.

COURT OF COMMON PLEAS, JA N. 19,

NORRIS V. STAMP.

This was an action brought by the assignees of a bank-
rupt against an eminent auctioneer at Hull, to recover
the value of a large quantity of the bankrupt's stock, sold
at auction by the defendant, under circumstances, it was
alleged, of a collusion with the bankrupt, for the purpose
of defrauding the creditors of the latter. It appeared
that the bankrupt, Mr. Nlurfin, carried on business at Man-
chester, in a very large way, as a wholesale linen, silk, and
woollen merchant. Shortly before his bankruptcy, when
his liabilities amounted to 90,0001., he sold to Mr. Stamp,
at several intervals, the goods in question, fur the greater
part of which the defendant remitted the payment, of
large amount, beforehand. The case of the assignees
was, that these patments were below the value of the
goods, as the defendant must have known, and that the
whole nature of the dealing was irregular, and bore
the suspicion of fraud. Evidence of great length
was given for the defence, to show the bona
fide character of the transaction on the part of
Stamp, and his honourable conduct throughout. The
Jury, however, found for the plaintiffs, and the Solicitor-
' General obtained a rule nisi to set aside the verdict. Mr.
Kelly yesterday showed cause against the rule, when the
reading of the Judge's notes, and the documentary evi-
dence put in at the trial, occupied the whole day. Mr.
Richards this morning followed in support of the verdict,
and the Solicitor-General replied at great length, ground-
ing his support of the rule chiefly upon the inadmissibility
of accounts and oral statements admitted in evidence,—
and upon the failure of proof that the defendant was cog-
nisant of fraud. The claim of the assignees to property
in tlae goods after they were sold to Stamp, in consequence
of the improper conduct of the bankrupt, and his insolvency
at the time of the sale, could not be entertained under the
declaration which alleged fraud against the defendant.
The state of the bankrupt's affairs had nothing to do with
the issue between the parties in this case, which was whe-
ther Stamp bought the goods honestly or not ? The
Learned Sergeant submitted that this question was satisfac-
torily answered by the defendant; but that the jury were
influenced altogether by the evidence given of Muffin's
insolvency, and irregular, if not fraudulent conduct—evi-
dence which had nothing to do with the case, and which
was, moreover, in itself unsatisfactory and inconclusive.
In fact no charge of fraud was made out even against
Murfin.

The LORD CHIEF JUSTICE observed that it was in evi-
dence that Murfin was indebted to the defendant, and that
the goods were sent in. satisfaction of the debt. One
of the issues tried was, that this was a fraudulent prefer-
ence, on which the jury found for the plaintift.
The SOLICITOR- GENERAL said it could not be called
fraudulent preference, inasmuch as it was not voluntary,
the delivery of the goods baying been compelled by the
repeated demands and menaces of Stamp. In the conduct
of Stamp there had been nothing in any degree suspicious,
and the verdict against him was unwarranted.

Mr. SergeantißostrAs followed on the same side, ob-
serving that this was an action to recover from the de-
fend..nt a sum of money, of which he had actually paid to
Murfin 2,6001. before the fiat of bankruptcy was issued.
Their Lordships took time to consider judgment.

BAIL COURT, JAN. 19.
(Before Mr. Justice WILLIAMS )
THE QUEEN V. THE DUKE OF WELLINGTON-EX PARTE

TAYLOR.
Sir F. Pou.ock said he was instructed by a gentleman
named Taylor, to apply for a writ of prohibition against
the Most Nuble Arthur Duke of Wallington, K. G., &c.,
Chancellor of the University of Oxford, commanding him
to suspend all proceedings in a suit now pending in the
Chancellor's Court of Oxford, against an attorney of this
Court. It appeared that Mr. Taylor received instructions
to commence an action for recoveiy of a debt against a
member of the University residing at Oxford. The writ
of summons was regularly served upon the defendant,
when he (defendant) had immediately taken a citation out
of the Chancellor's Court to suspend proceedings. The
Chancellor's Court could, no doubt take cognizance of
debts arising in the University, but it never could claim a
right to punish persons who issued process out of one of
the superior Courts of Wesminster. His Lordship would,
however, best understand the nature of this application by
the affidavits which he would read. Mr. Taylor's affida-
vit stated that he was an attorney of the Court of Queen's
Bench. In the beginning of last year he received instruc-
tions from a Mr. Barnes to commence an action of debt
against Mr. Thomas Bourke ; that on the 20th of Feb-
ruary he issued a writ of summons, which was duly served
on Mr. Bourke within the limits and jurisdiction of the
Chancellor's Court at Oxford.
Mr. Justice Wiwasts—Does Mr. Bourke hold any
office in the University, or is he an A. M. ?
Sir F. PoLLoca. was not aware, but it did not signify ;
he would give Mr. Bourke (who, he believed, was an under
graduate) all the benefit of being a member of the Univer-
sity, and therefore whether he was Vice- Chancellor, or
filled any other office, it was a matter of no consequence.
He (Sir F. Pollock) was not so well acquainted with the
rights and privileges of the University of Oxford as with
those of Cambridge, in the latter of which he had had the
honour of fill;ng some important offices, and from his ex-
perience he could take upon himself positively to state that
the Chancellor's Court never claimed the power of sus-
pending the operation of a writ duly issued out of one of
the superior Courts, neither did he recollect that duii .g
the time he was at Cambridge, that the functions of the
Vice-Chancellor, or of the Commissaries' Court, had ever
been called into operation to enforce a debt, that process
had always issued out of the ordinary legal Courts.
Mr, Justice WlLLiasts—The writ issued by Mr. Taylor
was an action of debt ?
Sir F. POLLOCK—Yes ; and when it was served on Mr.
Bourke, a citation was immediately issued out of the Chan-
cellor's Court to suspend further proceedings, and citing
John Taylor, the attorney, to appear before the Vice-Chan-
cellor or his assessor on the following Friday at the com-
mon place of jurisdiction, to answer certain interrogato-
ries touching his manners and excesses," and more particu-
larly for impugning the ancient statutes of the University,
by issuing a writ against Thomas Bourke out of the Court
of Queen's Bench. Now he (Sir F. Pollock) considered
this a proceeding never before heard of ; at all events, it
was new to him. The citation went on to state, 14 that if
Taylor, the attorney, and Barnes, the plaintiff, did not ap-
pear at the time and place stated, or if they did appear, and
did not answer the interrogatories to the satisfaction of the
Vice-Chancellor or his assessor, that then the Court would
proceed finally to dispose of the case, and pronounce sen-
tence of contumacy against them, the said John Taylor and
John Barnes."
Mr. Justice WILLIAMS—Did Mr. Taylor obey the ci-
tation ?

Sir FREDERICK POLLOCK—NO ; he considered it such
an extraordinary exercise of power, that he did net notice
the citation. Consequently, on the 28th of the same
month, he was served with a notice that judgment had
been signed against him, and he was required to stop all
proceedings in the suit of Barnes v. Bourke, and to pay
the expenses incurred in the Chancellor's Court within a
week, or in default, a warrant of execution against his per-
son or goods for the amount of 2/ 4s. 6d. would issue.
The same proceedings were also taken against the plaintiff
Barnes, and a warrant for his arrest did issue out of the
Chancellor's Court at the expiration of the time allowed ;
he was taken into custody by the yeoman bedel, and would
have been conveyed to prison had he not paid the money.
Mr. Taylor went on to swear that he believed that a simi.
lar warrant of execution was in the hands of the officer of
the University against him.
Mr. Justice WILLIAMS—It does not appear that any-
thing has been done since last February.
Sir F. POLLOCK—No, my Lord; but Mr. Taylor swears
that ho believes a warrant is now out against him, and
that if he was to appear in Oxford, he would be taken into
custody by the yeoman bedel. He ( Sir F. Pollock) had
advised him in the first instance not to pay the money, but
to make his appearance in Oxford, and if arrested, to ap.
ply for a writ of habeas corpus, in which the jurisdiction
claimed by the University might be argued, but it was af-
terwards thought better to take the opinion of the Court
on an application for a writ of prohibition. The question
now would arise had the Chancellor's Court power or au-
thority to prevent parties suing resident members of the
University for debt in any of the superior Courts in West-
minster Hall ; a claim to such a power was to him a per-
fect novelty. The Chancellor's C;)urts ut the Universi-
ties of Oxford and Cambridge no doubt had a right, if
they chose to exercise it, of entertaining actions for debt,
but they could not interfere with a process issued out of a
superior Court.
Mr. Justice Wicumas—Where does Mr. Taylor reside ?
Sir F. POLLOCK—Sometimes in London, and sometimes
at Oxford. Mr. Taylor at first considered the proceedings
in the Chancellor's Court as a mere joke, as he had
searched all the books of practice, and consulted the most
eminent legal authorities, and he could find so similar case.
He was, therefore, advised to take the present course, and
apply for a prohibition. His Lordship was aware that pro-
hibitions were often granted after judgment had been
signed, and it was only necessary to show that the Court
out of which the judgment had issued had exceeded its
jurisdiction, which ho contended had been done in the
present instance, and consequently Mr. Taylor was en-
titled to protection. He therefore humbly moved for a
rule to show cause why • writ of prohibition should not
issue against the Most Noble Arthur Duke of Wellington,
the Vice Chancellor, and other officers of the Chancellor's
Court.

Air. Justice WILLIn NIS —I have very great do ibts
her it is ever intended to execute the threatened warran

against Mr. Taylor. I am net satisfied that they intend
to take any further Froeeedings.
Sir F. l'ou.ocK —One party has been arrested and
otliged to pay the costs.
Mr. Justice WlLLiAms.—Suppose the
.Chancellor's
Court exceeds its jurisdiction, and Mr. Taylor is illegally
arrested, he has his remedy by an action of trespass.
Sir F. POLLOCK.—He has my Lord ; but in the mean-
time what becomes of his personal liberty ? The present
appliation answers the question of jurisdiction. He asked
the Court to grant a prohibition. Mr. Taylor stood upon
his right as an English subject, and therefore called upon
the Court to grant a rule.
Mr. Justice WILLIAMS!.— believe the proceedings in
the Chancellor's Court will not
go further.
Sir F. Pou.oex---A decree bas been obtained, and they
maintain that they have a right to go on ; he, therefore,
trusted his Lordship would grant a rule in the form asked.
Mr. Justice WiwAsts--As respects the Duke of Wel-

lington, he can know no more about the matter than I do.
Sir F. POLLOCK—Certainly not, my Lord, but
Grace being the head of the Court, it is necessary to in-
clude his name in the rule.

Mr. Justice Wiwasts—Really this is an application of
such a novel character, and it appears to me one attended
with so many difficulties, that I do not feel justified in en-
tertaining it. You must apply, Sir Frederick, to the
full Court.