The Sun.
London, England, 1823-11-21 00:00:00

COVE. :VT-GARDEN- TTIRATIIE.—CONST v. ICARUS.
Mr. HART moved the Court to set aside the deed of part.,
nership which allies the panics in the above-named property;
and for the appointment of a receiver to the estate. The
grounds of the motion were laid in mienianagementeand in the
imperfecepowerifleft in the deed to the plaintiff for the correc-
tion of abuses. It appeared that the deed reatreined the plain-
tiff' front interfering in the management. of the defendants un.
der sundry covenants- contained. in, it, and'elso bound the de-
fendants separately not to admit or consent to. anysuchintere
position on the part of the pleintiff. The direct gnevances al.
ledged referred to the receipt and outlay of money, and the
abuse of the free admiteion Itstof the theatre.
The LORD-C/INCELLOR questioned whether a party acting
in trust for others (the plaint was made in the character of exc.
cutor to the late Mrs. Martindale), whether as administrator or
otherwise, could surrender his power of interference, and whe-
ther that surrender would not be a breach, of his covenant in
trust. His Lordship was deddolly of opinion, that had appli.
cation been made to thetionit it at after the execution
of the deed, the Court wouldhave set it aside.
Mr. HEALD, Mr. SHADWELL, and Mr..TASIES were heard
on the part of several of the proprietors against the motion,
for granting which, as they contended, there were no proofs
given of abuse or mismanagement; and this being the case,
however irregular the structure of the deed, as the other parties
hand embarked the value of the shares in faith of its validity,
it would be injustice in them to set it aside. It was also shown
that Mr. Const'a right of calling for an account, or to apply for
the correction of abuses, existed in full force, independently of
the deed.
Mr. H. Twtss was heard at sense length on behalf of Mr.
H. Barrie against the motion. He described the various acci-
dents and misfortunes which had attended the affairs of the
theatre front the time of the fire, particularizing the debts and
payments incurred and made, in all of which he exculpated
the conduct of the defendant and those concerned in the ma:
nagetnent, pledging himself that no act of legal and proper
interference of Mr. Const had yet been, or would be, resisted
by the defeudasts in the management. The only seeming
grounds for charging them withmisthanagement arose front the
peculiarity of the situation in which they were placed by the
condition of the lease last signed. In the execution of their
duty as managers, they were compelled to attend to implied
conditions left by the died of the former deed of 181;i, as to the
granting of free admissions, and also to the customs of the
theatre, which in some degree limited their discretion.
The LORD CHANCELLOR said, that formerly there was suf.
ficient discretion in the owners of places of public amusement
to convince them of the impOlicy of bringing their affairs before
the jurisdictions of the country. But, unfortunately, in Lord
Thurlow's time, some of them had been rash enough to bring
the Royal Circus into this Court; and since then almost every
theatre had become-the subject of their proceedings in turn.
They had the. Haymarket, Drury-Lane, the Olympic, and,
above all, that most expensive and troublesome, and never.
to-be-settled business of the Opera-house. So that it would
really form a very curious document if any gentleman would
take, the pains to calculate how many hours of the time of'
the Court, and how much etpence, het) been wasted upon
theatrical investigation,' from that unfortunate introduction
of the Royal Circus down to the present time, He had, on
every occasion of this kind which had come before him, given
the best advice he could to the parties, which was, either
not to come within these walls, or, having got theta already,
to make the greatest sensible haste in getting out again. If
there were any person met pre-eminently ill qualified to man.
age a theatre, it mist- be the Lord Chancellor of' k,:ngland. It
was in this view of the present case that he now advise.d the
parties to settle the business out of court. If, however, he was
to be compelled to pronounce upon it, which could not be until
the second seal after Tenn, he must in the mean time read aver,
not only this deed of partnership of 1822;ebut also the deed of
1813, and all the affidavits. Perhaps that would not be suffi-
cient. If the representatiot of Mr. Harris's council Were CO?.
rect, not only must he inquire how tar the management was
controlled by the deed of 1813, but also what were the customs
of the theatre in regard to some of the particulars. By the law
of partnerships, at all times-iliffictilt to expound, the partners
might he bound in different degrees of responsibility, according
to the interest they. held, and the
.contents of the partnership
deed. In this ease it appeared that 11r. Conn was not only
Executor as represented In `the plaint of the bill, but that he
had a life estate in the property which was the subject of it.
AS it appeared to him at present, if.the Court had to pronounce
generally upon the deed of partnership, he should be ready to
say, that the Court could never acknowledge such a deed to he •
applicable. He hoped, however, :the the parties would cone
tnve to settle it without his internoeition.
Mr. HART offered to sell the eighth which Mr. Conn held,
to the defendants, on the proportion of the rental of 10.6001.,
according to: the offer which had been made to him, as the de.•
fendants averred.
Mr. 'Twits said; that they could not now give hint that.
Brice, because the property had considerably deteriorated in
.vaivasince the offer was made. They were ready, to buy it,
hoivever, at a valuation.

The Loan 'ettAxcnt.r.ott zsp:,ain recommended that this
offer should be considered' by Cr before the 6th of December
next.

VICE•CHANPEIaLOWA COURT, Nay.

. DELPONT TAsTi:T.
This cue, came on upon excepions to the Master's report ;
the proceeding hod no. interest, except from the furor for lttiga.
tion which it displayed. , plaintiff's bill laud been referred
to the Illaster for impertinence. ; and the Master had reported
that it was impertinent, limo:Poch es—that it spoke of a certain
-letter ai having been written " in ;the words and figures, anti
M the effect following," the expression i` in the wads and
figures" being slit-plunge upon tide proceedings.
The VICE:CITAXCELLOR said, that 11c!).- trivial and futile
objections would pot be entertained- future. In tonseluence
of a communication winch bad taken place with the Lord Chan'.
eel/or,lllaXters were now instructed to take notice th4t "imper;
tinence" was only to be allowed where it was material.'
Mr. Puri.raminix said, that this alleged impertinence had
delayed the cause of_ this client ever since the middle of the
year 1822.

COURT O} KING'S BENCII, Nov. 20.
111 r. Cni•rTy moved for a rule to 'how cause why the clerk
of an attorney should not be assigned, tinder eirmitnetances of
a most distressing moire. The master took the young man at
the low premium of 100 guineas, hoping to find hint of service
in his office; but lie (the clerk) formed an improper connexion
with one of hie daughters of little more than 14 years of 'nee!,
and made an attempt to seduce a female servant of the family.
The attorney then, in great ditress, applied to the lad's father
to take hint away; hut, to his surprise, the father retlised,
less the whole premium were returned, and grossly insulted
him.—Mr. Justice lia Vt.X le granted a rule to show cause.
LIBEL ON THE KING.
THOU XING v. D. W. HARVEY AND JOHN cIIAPHAN.
The interest excited by this case occasioned the Court to be
crowded before the Judges took their seats. A few pereons
who had taken their places on the back benches were
directed
to withdraw, as the seats were appropriated to the Gentlemen
of the Bar, and the whole space was shortly after occupied by
Barristers. As soon as the boon Cum? JusTiott and Mr.
Justice BEST had taken teir seats, with mr. Justice BAYLEY,
The Avrou,sry r-GEreratar. rose, and moved for the jutig.
meat of the Court against the defendants.
Mr. Harvey and Mr. Chapman being called, immediately
appeared on the floor of the Court; but
The Loan CHIEF JUTICE said, it would be better to wait
till Mr. Justice Ilolroyd should come in front the liail-court%
and in the mean time to take cases of less importance.
After some motions of no public interest, Mr. Justice Ito t..
UOYI3 took his seat, and the Alrotts n 1.-GENERAL re.
newed his motion.
The Loon CHIEF' JUSTICE stated the substance of the in.
formation, and the passage alleged to be libellous, with which
our readers are already acquainted, and read his note of' the
trial. After stating the evidence of publication, his Lordship
observed that the Jury returned into Court, and asked a pies-
tion, the answer to which had bean already the subject of di..
cession, and that they ultimately found the defendants guilty,
but recommended them to mercy.
The affidavit of Mr. Chapman was then read. It set forth,
that till 1816 he had farmed 50 or 6(1 acres of land in Essex,
and comfortably supported his wife and family. Driven from
thence by the pressure of the times, after a painful struggle to
hear up-against taxes and tithes, he was supported' for a year
by the charity of friends, and then went into the
servie' of
11.1 r. Hall, at the Custom-house, and his wife also went into
service. At this time Mr. Harvey, who had known him in
better days, took his son, then 13 years of age, and paid for
his education, with a view of engaging him as his clerk when
he should be called to the bar, fbr which he was preparing.
The deponent's wife, being unequal to the labours of her Si.
tuation, was obliged to retire; anti Mr. Harvey: disappointixi
in his expectations of the bar, and engaging in the Sunday
Time:, offered to employ his son as a printer, if the father
would enter his name at the Stamp-office instead of the son,
who was still a minor. The name was accordingly so en..
tered, but Mr. Chapman never interfered in the business or
went to the office, his son acting as printer.
The affidavit of Mr. Hall, of the Custom-house, alleged that
while Mr. Chapman was in his service, he conducted himself
as an honest, sober, and industrious man.
The affidavit of Luke Elcot met forth, that he was the Me,
ringing printer of theSunriag Time., ; that the article in question
was not in the hand-writing of Mr, flarvey, with which he wait
well acquainted ; that the article arrived so late on the Nana.
day night, that he was forced to distribute it to several Compo-
sitors; and that it was customary to insert articles which ar.
rived at that hour, under the head " Latest Intelligence,"
without regard to its subject. This deponent also confirmed
the statement of Mr. Chapman, that he had no share whatever
in the printing or publication of the Paper.
• An affidavit of Mr. Inn. Stock, of Southamptonsatreet„
Strand, the reader for the Sunday Mies, stated that the str.
tide was not written by Mr. Harvey, and that he had searched
for the manuscripts, but without success, as it wale not usual to
,preserve original articles.
The affideyit of Mr. Harvey wee then read. Ile stated, that
in January last he becetne the proprietor of the .Sunday
Times, partly because he had no other means of obtaining pay.
merit of a debt duo to him from its farther owner, and partly
because the political principles fin, which it was founded. were
similar to those which he conscientiously held, and he hoped
to gain by it a fair and honourable means of support, in lieu
of that to which' his exertions• had been directed. He hat!
been disappointed in the hope of reachihg the bar, to which
he considered himself justly entitled, and in order to which
he bad entered as a member at the Inner Temple, and had
been, at his own instance; struck-tiff the roll of Atiornies and
relinquished a professional income of two thousand flve'hun.
Bred ptniuds per annum. In consequence of this check, he had
experienced great diflicultiee; his dpmeatic comforts had been
abridged, and, deitione of hereditary fortune, he had been
forced to look out for some other means of honourable subsist.
Price. In availing himself of the opportunity which the Sun.
rimy Mimi appeared to ofl'er, he wait animated by the hope that,
by active. intellectual exertion, he Might sustain those principles
of government which he considered . cis founded in reason and • jtistice, oriel as most conducive to the happiness of the people.
He knew the delicacy of an editor's office; theelanger to which
lie was exposed from an uncertain and wavering law of libel the difficulty of ascertaining the truth"of those statements gas
thered to him from time to tittle from various sources; and
when the rumours respecting the nature of the King's Hines'
prevailed every where—when the daily press teemed with intl.,
Mations respecting it—he applied himself with anxiety to inves;
agate' their truth,' in quarters where character was a guarantee
fur veracity. At this time the reports gained strength from the
ambiguous manner in which those whose duty it Was to disclose
the truth chose to express thernselVes on the etibject—from the
mysterious tone of the Ministerial Papers themseives—enti he
requested information of the Editor of a Daily Paper, Whose
means of obtaining accurate intelligence lie knew to be great,
and who confirmed the popular eutpscions. lie had made ar.
rangernents for keeping the press open to a late hour, in the
hope that the publication would he rendered unnecessary ; and
though lie knew that Some such intelligence was to be publish.
ed Kt his paper, be never saw the article till he read it on Sun.
day. He had now no lucrative pursuit, but the conduct of the
paper, which he had raised into a considerable circuletien, sod
which required his own personal superintendence and care.--
Such had been the influence of diseppointmenot and persecu.
tions on a constitution naturally delicate; that he had been long
enabled to ward off diseatte, only by the use of constant horse
exercise, and the strictest regimen ; and he was subject to vie. /ent pains in the head and nervous affections, Which sometimes
itimost bereft him of his reason, and which required the
promptest medical aid.
An affidavit of Mr. Sewell, Mr. Harvey's Attorney, was
read, setting forth a sass ;.:citlrested to hint by Mr. Maule'ne tilext
Solicitor for the Treasury, which made known to him that 111 r.:
Hervey was not theauthor of the paragraph, And offered to dis.i
close the author's name if the proxecution should be d iscon Untied t And the answer of Mr. Mauls, that he had laid the communi.
cation before the Attorney-General, and that lie saw noreason for staying proceedings.
The affidavits of Mr. Addington, of
,Silittib.square, and Dr.
Southwood Smith, of Trinity-square, were read, stating that
those gentlemen had attended Mr. Harvey for several years ; that tie was int-hid state of health, and subject to great nervous
irritation, which mental anxiety would increase; and that he
could not sustain'm
protracted imprisoneat without danger to
his life. • - ' - • •
The officer then began to read the effidevit of Thome*
Smallwood and two other of the Jurors who tried the cause.
The LORD Chit JUSTICE. interposed, and asked whether
the Connell for Mr. Harvey had seen this- affidavit ?
Mr. anon!, /I,llkl replied that neither he nor the Common
Serjeant was instructeoi oh the present .occasion ; nor had they
seen the affidevit which Mr. Harvey proposed to read.
'lnc LottD. CHEEP Jit sTwx.--If this affidavit is • framed
to dieclose the reasons of the Jury for. their verdict, or any
thing which passed while they were deliberating, we cannot
hear it ; if it is directed to any other point let it be read.
Mr. Harvey said the affidavit undoubtedly referred to the

dreatejeorteist‘oto.ifil.'ilte,ircotenyji,.. jury rEsyituittriiitierittarn4fvueLiii;itec,r;t:lpelarilet 'I totror tiltai e ler reeepticonotriin:crt-,:. :i;
in aftidavite Ire liffgr4,
vents. An.atlidiwit of,Mr. Otri.:e Beecher was readeataiiite
that he had searched The 7171,f1, the Ilbraing Chem* th....
Oferning Post; • the !Mondale llyridd,',the British •Preen
Courier, and the Glo/,e (tad 7'reveller for several weeks ewe-
ceeding the 9th of February, and had found no imputation or
assertion that the Kingeras insane. A nailidavit of Mr. Henry,
;Heine wam aloo fliittl, making the mune sett:mint as to the &at,
the Morning Advertiser, and the British Traveikr.
A souther of the Kent (led Essex Nercary.wes then' pro-
duced, and on affidavit front the. Stamp office, showing that Mr.
Iry of
Harvey was entertel as proprietor, and 31r. Chapman as wittier
tat pr.
Mr. Harvey objected to the reading of that ape r, on te.e
ground diet it was published subeequently' to the plibel;
The Lotus Cozier .1 Ulll' lex replied that . hi: did 'bet ' know
for what purpose it was offered, but it might be.. t,,,i,show A re:
publication of the libel.
Mr. Harvey admitted. that the paper did . contain each rt.
pphlication, but contended that the prosecutor could nut now
give evidenee of a subsequent act for the purpose of aggravating
the case against him.
, .
The Judge% conferred together for a short time, After which
The Louie CHIEF` Ju LT tcr uaiti, this affidavit . must he
received. If the defendant could have shown that, in his payee
he contradicted his assertion, he could have produced sucli tam-
tradietion in mitigation of punishment: the fact or a rekti-
ti'hn of the offence must . therefore be received on the other
side. If it is agreed that this paper contains the same para.
graph 1111iCit appeared In the Sunday Time:, it will be unfit:era-,
awry to read it.
Mr. Harvey assented; but submitted diet as he was taken
entirely by surprise on this pert of the ease, he ought to have'
time to answer it.
The 140111) CHIEF ittATICE.—Do you desire time to ant!
Essex the circumstance of the rupublicution in the Kent and
Essex paper ?
Mr. Harvey.—I certainly wish it, because I know 1 could,
destroy the impression which that circumstance may make
against me. But. lam extremely anxious not to cause anyde-
lay ; and perhaps when I.produce my affidavits the Attorney-,
General May ask time to answer them.
The Loon CHIEF Jusrect:.—We cannot anticipate that
now; the Court can make no bargain with you.
Mr. Ilarvey.—l assure your Lordship I tun proposing no
contract; I wish to correct the miottike concerning the News-
papers • but I would not on any account delay the principal
proceeding.
The Lon,- Clittsze JutoricE.—lire must dispose of the
whole case at once. You can only have time to reply to those
affidavits which you could not anticipate, and ' therefore could.
not be prepared to answer.
Mr. Justice IlEsee—l ant apprehensive there is some minute
derstanding here. Mr. Harvey, I think, wishes to produce
affidavits to show the existence of the rumours to which the
affidavits of Mr. Percher and Mr. Itaine refer.
Mr. Harvey.--I certainly wish to produce papers to show the
mistake; but if such a course will produce further delay, /
would rather stiffer something hem' the want of the explanation
than endure any anxiety and, suspense, in additiott to what I
have sustained already.
The Lon!) CH rEr Jose-line—Are there any more affidae
vita on the part of the Crown ?
The A 'I"F011 NE Y-GE N E ILA 1. replied in the negative.
The LORD CHIEF JUSTICE.—Then, Mr. Harvey, we are
ready to hear you.
Mr. Harvey proceeded .to address the Court. —lf .his object
were to postpone the judgment prayed against him, he could
adduce a reason much more powerful than the affidavits on• the
part of the Crown.-...a reason to which the Court never failedto
attend—the state of his health which had been injured by the
i • disappointments with which ds life bad been clouded. In
addressing.the Court for himself, he was anxiout to deprecate
the imputation of vanity; it would even he vain if he were to
disclaim at any length the suppoeirio» that he cod(' say any
, thing comparable to those learned Counsel whose powerful
assistance he had already enjoyed; and not to them alone, but
to any, (lentlernan of the liar, even of the least experience ht
the pmfession. Ile was induced to make his personal appeal
to the Court solely by the feeling that there were some facts
which lie could most properly mate, essential to that correct and
full knotelidge of the case on which the Court would desire to
found it judgment which they might review with pleasure, not
theat gba
nt): llldsi Yacurfriefreraanecettlduri ianelnigirig elen'sititaruilin(l:eterct:liescsj.-el:ouiftrrldiol g3alreiencei tiis:l7ettirabe:lrreal :Iv: !lb?ksehtielvi tyPtilLtiwti:wilsl2l:ceerli ctiliniinir:l
me 1 ttteal theeibitBl
x.
it:Y*l gsrl:rui' S:ti'llna)livitiatedriec rilnitnlti_i lisitcntiall(:llllle.tiesvahei
Juryteili l
retired for nearly three hours, and on their return into the
Court, asked an important question, which sliewed that at
that moment they. did not believe the defendants •to be ac-
tuated by malice. An • answer was given to that queetion, of
which he would sat nothing, for he did aot hear it; and admit-
ting us lie did the minim of the Learned Judge's charge which
been(' hear, he would not venture to impugn that which tic slid
not hear. When he considered the unprecedented nature of the
verdict, and of the circumstances by which it was attended,' lie
felt that thet he ought not to urge thein in mitigation of punish.
spent, but to rely on them as grounds of It new trial. And
this suggestion ought to he seconded by the •Attorn7-Uerteritl,
with the view which he entertained of the article winch ha' had
chosen to prosecute, If, as he said, that .article was en plainly
a libel that no one could mistake. it—if int tendency was such
as to rouse indignation in every mind, he omit he desiroue of
having a verdict beyond suspicion, and unclogged with 4 re.
commendation destroying its force; neat of such a verdict he Must feel assured. Little, indeed, did he (Mr. Hervey) x-
pect that the King's A norney.Cieneral . would appear here,.e in
the King's own Court, pressing Mr judgment, after 4 verdict
like that pronounced at fluildhall, when all the purpoees of
justice were 'answered, and the faliebood of the report once
current was ascertained beyond question. ' Why did he exhibit
his Royal Master in the inVidione and odious light of a pro-
secutor? Why, when he knew that the parties whom he liad
prosecuted- were not the autlims of the paragraph, (lid he net'Ax
en the real offender?, But this promeoution never originaterliin-
the Illustrious Individual. whose name was introduced oil the
record; it was impossible to suppose that lie reed the jag%
newspaper which contained the paragraph, and whose politics.
were not of a nature to wing its wayento palaces ; but the pm-
seeution was ,at personal prosecution aimed at an obieseiote, pl.
dividual. When he wits he Parliament, he hail aimetleeblew
at the emoluments of the office of Attotner-lieneralett dike'
never sought but for its emoluments—(l litueli)-e-etnit for 'title.
he had not liven forgiven. At the trial, the 'AttorneyeGeneitil,
in reply to the searching sarcasm of Mr. Broughron-'...that
be hoped no recollections of the pest hail inflamed his keel
—repeatedly asserted that he did not know who the propriee
for of the paper WAS till he had determined on prosecuting ;
this assertion he would: not say was felse, but it was at least Open
to very great suepicion.. It would be recollected that the At-
torney-General in iiii reply,' when-no answer could be given to
his declamations, thOught fit Sc) say, that in spite of the dertiel
ofthe delendant'n Comnsel, he hail reason to Wlitive Mr. Har-
vey the author of the libel ; though her kneW that Mr. Harvey
was not the author *one the letter of the attorney witiele Mr.
Mettle had laid before him, and though lie might have had
name of the author if he had ehosetil TWA prosecution Ives
.emphatically hit prosecution-.-not technically merely, but per-
ennally—a prosecution anxiously sought after, and 'pereevered
in with desperate eagerness to the last. Why did he proceed
by ex-officio information-ea course ftdmitted by the Attorneer-
General of Ireland to he appliatible only to great oeceolonse if
his real object was.to prevent: the diffusion of a false report 're-
specting the health of his Royal Masterly Ho knew that'll%
such course a long time mutt elapse,- the whole molter,' true
or false, must be notorious before the issue could have Mot
tried : but hail he preferred an indittMent, Utast] the prOtet l(-
Ings were removed by the defendant, who then would be ii
paved of.the argument, the case would have beett disposed of
in a few weeks, and a aurnmary remedy Applied to the evil.
The delay had been most prejudicial to the defendants; for, it'
one of the jurymen hadolaterred, in February or Mardi all
men knew the existence cif lemon*, and most, menbelievid
them. -Had a countryman tome' to London and asked if' they
were true, he would have received answer from almost any one,
that it was 'feared they were; but'now these ruinours •were
almost forgotten. It had, indeed, been said by a Leaned
Judge, that on no authority was the editor of a newspaper jus-
'titled in alluding to the King's tiCIAIIIVIIIOnt,, , even it - true till
it was announced by the roperp officem ' • i •.1
Mr. juitire Beeler—There was nettling of the sort 'Said IV
me ; the Editors of the Newspapere have not IttAted COITACtIy
'Whitt I Stud e and I wish to set it right. i• °interred, that it
appeared to me that the inatier we were called on to decide
WAS, whether Allay to assert the King was- insane was an ofes
fence; I stated that in rny opinion itwaa ; and I further statede