The Sun.
London, England, 1812-07-18 00:00:00

LAW REPORT.

COURT OF CHANCERY, JULY 17.

POWER,AND MOORE V. WALKER.

Sir SAMUEL ROMILLY, followed by Mr. LEACH
and Mr. SHADWELL, on the behalf of the plain-
tiffs, moved for an Injunction irvthis caute,
restrain the defendantfrom _selling two Batia4,-
called " fly not yc,t," and " Eveleeifs,Boicer,"
being in their titles, rhyme, and tune, the same
as two Ballads in the valuable Work of Mr.
Moore, who transferred the copy-right to his pre.
sent co-plaintiff, whom he now joins in the Bill
with an affidavit, grounding the motion for an
Injunction.
The defendant is a music-seller, and has select-
ed the above Ballads front the " Irish Melodies"
of Mr. Moore, which are-injured in their celebr!—
ty, by the inferiority of this imitation ,of them,
the words being different by design, to evade the
penalties againstliterary,piracy.
The Learned Counsel .observed, that be feared
he could .not retain sufficient gravity on :this oc-
casion, lest. -his followers, Mr. Leach and Mr. '1
Sli:adwell, should, become, the former the melody; 1
and the latter the symphony of these compositions.
Mr. LEACH assimilated this case to one from
Bri ;tot, wherein such an Injunction was granted
so restrain a man from' ...using the sign of the
Three Pigeons upon his house, whic'h would tend
to withdraw the .customers of another, .who had
the-same sign previously ; and Mr. SHADWELL
cited a case from Popham, recited by Lord Hard-
wicke, in 2d Atkins, as lair, where an_ action will
lie against a man for impressing upoii cloth for.
sale the same Mark that was previously used by
another:

The LORD 61±ANCELLOR observed, that was
like the case of the man selling the- Wonderful
Magetzile, after the first publisher of such a work
had sold fire or six numbers thereof. His Lord-
ship added, that be thought the ,words of an in-
junction could he framed to meet the circum-
stances of this case, and on further consideration,
granted a general injunction. —Motion granted.

Tnom.A.s and others, Legatees and Annuitants of the
Duke, of Queensberry, agarinst MONTGOMERY,
Bart. and others, his Grace's Executers, and
others.

Mr. RICHARDS stated to the LORD CHANCELLOR
that the Masfer had made his separate report of
the debts due from the late Duke, and of the le-
gacies given by his will and codicils, which there
was a very large fund in Court to discharge ' but
there were mast serious difficulties for the Exe-
cutors to encounter, arising from the claims made
by the Marquis of Queensberry., Lord Wemys,
and Others, in Scotland, in consequence .of the
Duke having granted various leases for terms far
. exceeding his legal powers, and received fines or
grassums !or the same. The Learned Counsel
observed, that these claims were ascertained in
-01.ne- degree by the Master's report, which speci-
fied them to be upwards of 350,0001. and as there
was property in the Court greatly beyond that
amount, he trusted his Lordship would consider
the extreme hardship ou the Creditors, Annui,
tants, and Legatees, (many. of whom were in
great distreSs), that their claims "should be post-;,
paned until the suits in Scotland were concluded,
which must occupy a long period, and he hoped
that an order would be made for the discharge of
the debts,' and payment of part of the legacies
at least, reser\ ing a sum adequate to the amount
of the claims specified in the Master's report.
The LORD CHANCELLOR observed, that he
could not make such an orz!er with notice of the
claims in Scotland, as their amount appeared enor-
1130US, and to his knowledge proceedings were
going on in the Court of Session, to vacate the
long leases which the Duke had granted, and it
Was impossible to foresee the consequences.
Sir Sii:vse RomILLY, on the part of the Ex-
ecutors, expressed their anxiety to promote the
wishes of the Petitioners, for whom they felt
• much, and they were most desirous of facilitating
the payment of theirclaims by any meesnre which
could be adopted consistent with their duty.
The LORD CHANCELLOR replied, that he could
flat venture.to do more, than refer it to the Mas-
ter to ascertain from the proceedings the full
amount of the Scotch demands ; after which, the
parties must again apply to the Court. His Lord-
ship remarked, that he was fully "convinced that
the Executors and all parties had done every thing
possible to assist the Petitioners ; hut he could not
at present relieve them by an order for payment
of any thing.
Mr. Hoatmappeared for Mr. Fuller, one of his
Grace's creditors, 'who had obtained a judgment
against the executors, and pressed the immediate
payment of his debt, and interest ftom fhe time
of judgment being signed. His Lordship said, he
would order the-debts to he paid, but certainly
would not allow interest on that in question, as
the creditor could only go ftecording to the rules
of the Court ; for had he attempted to prosecute
his judgment, the Courtwould have stopped his
proceedings. •
The cause is therefore sent back to the Master,
awl foriethe present the immense property of his
'Grace, after payment of the debts, which are 4m-
-der. 90001. will remain in. Court to accumulate un-
til-it can be apprepeiated.

GOLDSMID V. GOLDSMID.

• This was an application, by petition and mo-
tion; to the .Court, for permission to-sell the house
and concerns of the late Mr. Goldsmid, at' Roe-
hampton, in Siirrey, pursumit to an arrangement
made between his widow and her children; by
which she was to take an annuity, amounting in
value to one moiety, or half of the mansion-
house, &c. •to which. they were subject; the an-
-imity to be duly. secured on the premises, or on
equally solid security, mid the remainder of the pur-
chase Money to be distributed in equal proportions
between the children. • _ _

This motion was for leave to sell, notwith-
indsing the lien of the annuity.—The motion
was granted.

pee - tacked before 'sun-set ; she would not have
neared the two strange ships, and would have
'gone farther from the enemy I•,do not think the
enemy
,could have reached us at midnight, under
the circumstances. of the wind, and tide ; I saw
one ship to windward on our larbOard quarter fire.

Hon. Coulmissioner GREY sworn

He corroborated the statement of Sir J. A.
Wood, respecting.the Pompee .de'.l3 in the
water, previous to her sailing' from Portsmouth.
Lieut. ROGE'RS,-of the'Pofnpee, sworn.

I dined with Sir James Wood on the 10th Mar.eh,
when Lieutenant White came down, and report-
ed the Diana, had• made her number, and that the
_
enemy's Squadron Was in sight; SirJemeS then 'said
we must not take much' WjlIC to-day, and we left
the cabin, and I went to my qww ; ers Sir James
said lie,ws.s deterniined to get to windward of the
enemy, and thought they were come out to inter-
cept•the East In4Lit convoy ; the ship was. kept as
close to the wind as possible, and every eNertion
madeto near the enemy ; had we been on the
starboard tack in tbe.evening we must have got
Very near the enemy before we Could have seen

FOtYRT}r DAY.

. .
Lieutenant WILORD, senior Lieutenant- of. the
Pompee,

The people
,remained at their quarters about
ten minutes before the Pornpee tacked. I ex-
pressed my astonishment at our remaining on that
tack to Lieutenant Gammage, who -said we had
bettei go in a body; and speak to tile Captain on
deck.. I said that Was not proper, but I would
speak to Lieutenant Herbert, who had'greater in-
fluence with the Captain. I then went myself.. 7--
We were then standing South. East, from the
enemy : we did
,not see
,the enemy after the
Pompee tacked to the South East. About one
o'ciock the hands were piped to quarters, and'l
found Sir James in the act of wearing ship, .and a.
report that several vessels werein sight. We altered
our course frequehtly, to avoid them. I went on
the poop, and saw a vessel astern, who fired a shot.
'thought I saw a second, but was not sure. At day-
light we could..see nothing—it was then- hazy,---.
I. do not know what occasioned the Pompee to
tack after six o'clock in the evening. If the.Pom-
pee had continued on the starboard tack, and the
enemy on the course they then were; we should
have got to windward of the enemy, as the Diana
woldd have given us timely notice, had they have
hauled towards us. • The vessel that fired on the.
Pompße at midnight appeared small, but I cannot
say if she. were a line of battle ship or not. I did not
consider this,vesselas compos.ing part a the enemy's
squadron, from the course they were steering, and
the 'distance they were from us--she was about,
four ship's length froin us—when the ship, fired,
no private signal was made either by her or the
Pompee. saw six ships of , the enemy before
dark. -There were various opinions reSpecting the
ships seen at midnight by the officers of the-
Pompte. I have differed from Sir J. "Wood since
the loth of March, on Some-points of duty, and
have .asked his permission to write for another
ship. I suppose we could have joined the stranger
about 12 Or one o'clock the next clay. •
Mr. J. DickenSon, Mr. D. Roberts, Master's-.
mate, Lieut. R.. Blake, and several' other witnes-
ses were examined, hut their evidence produced
nothing material. •
Mr. "'resident, and Gentlemen.of this Honour-
able. .
Court,--I have now closed the whole of the
evidence to' substantiate the facts mentioned in
my defence; and although I have summoned. se-
veral others here, for the same purpose, yet not
-wishing to detain the, Court • any longer, or to
trespass upon your'time unnecessarily, by examin-
ing several witnesses to• the same points, I do not
mean to call any more, -.unless the Court should
think proper to do do so: and I return my most
grateful acknowledgments to . this Hon. Court,
for the patient indulgence and unwearied atten-
tion manifested during the whole of/this investiga-
tion; and relying upon your impartiality and
jiidgment, I, with confidence, submit my cause
into your, hands. •
Capt. Campbell's defence read by the, Judge
Advocate, was as follow:.-;-- .

Mr. President,—l thank you Sir, and the Mem-
bers of this Honourable Court, for the minute
attention you have paid throughout this investiga-
tion: I have also to express my satisfaction; that
11.[a whole of my ,conduct and 'proceedings on the
10th and I lth March last,. are 'now-under your
consideration, feeling thoroughly , conscious I
was influenced .by every zealous and honovable
Motive, for. :the goo 1 of his Majesty's service,
and that .0,7.
,proceedings; on that 'occasion,
were such as-will eventually meet your approba-
tion. I cannot,, however, forbear expressing my
astonishment at having., been brought to ' *a
Court Martial fo. my conduct on the two days
alluded to, :as I bail every reason to believe, it
had met their Lordships approbation, as well'as
that of ' the Right Hon.-'Lord Keith, my Coiri
Jnander in Chief, more_ especially so, having had
no intimation to the contrary, or even that-any
investigation of this. kind would take place, until
Friday last, ou iny arrivalat Spithead. I shall not,
however, -take up the time of the Court with any
further prehminary observations of this nature,
but proceed to state the reasons which governed
my conduct on those two days, and of the mea-
sures I pursued, and I trust I shall be able to
spew, that any other could not have accomplished
the Object I had in view, viz ; of forming a
junction with the strangers to lee Ward, who: I
was satisied Were friends, and, at the same
time, running the leat possible Tisk oflosing sight
of the,enemy's squadron. The Court is already
in possession of a sketch of the relative situations
of the different ships, at the-most important .pe-
riods of those two days ; and as these are laid
down agreeable to the bearings anew distances of
the Tremendous's log-book : I shall endeavour to
prove, by the evidence of her offictrs, that every
measure taken, and courses ahaped, wero the best
calculated for accomplishing these 'objects,
without forfeiting all possible chsnee of ever
bringing them to action. , Having from partial
winds and thick hazy weather, unavoidably lost
sight of- the
.enemy on the forenoon of the 11th,

And given up all hopes of meeting any .reinforce-
Inca, I considered it no longer advisable to
chace further to the westward, being- confident
that the enemy's object was Brest; and as the
probability ,of falling in with them there, was
much greater than by following them into the
ocean, I felt it my duty to return to that station ;
in this exercising that personal discretion %If hich
is incumbent on me and every other officer to do
in • the discharge of hi 3 duty. It will be in
the recollection of the Court, that Capt.: Jackson
has declared, zealous as he was for continuing the
pursuit across the Atlantic, that he thought
rently, when I spewed him the.papers in my pos-1
session, relative to this squadron of tile enemy).
and the reasons-I had for entertaining a belief
so strong as I did that its destination was Brest ;,
the event has fully proved the correctness of
theSe opinions. I shall, Sir, only occupy yalit
time with, two or three observations more, merely
to state, that 1 trust that the Whole of my pro-'
fessional conduct,
,has been such as to preserve
me from the-moa distant imputation of not being
Actuated by a proper and manly zeal for the ho-:
Hour of the service to which -I belong, and that
duty which') owe to my 'King and country. Dia
1 apprehend that the, present investigatien,-etri-
braced even the smallest portion of such a question:
I could confidently appeal to the personal know-
ledge of several Of the Members of this Court, and
to
,some of the best officers of our navy, for a coo-
trary testhnony; this, my own feelings tell me, i 3
unnecessary, and 1 shall no longer dwell on the
sukject. If, however, Sir, in the best exercise .
of my judgment, and animated with the strong-
. est desire of joining the two ships to lee-ward.
(with the intention of bringing the enemy's squa-
dron to battle as soon afterwards as possible,
were either of the strangers of the line), it
be my -m4;fortune to find that the measures I
adopted for accomplishing this double purpose
were not precisely those Which subsequently al!"
peared to, Lord Keith, my Commander-in-Chief,
the best calculated for. attaining such a deirable
end,. •would not have it imagined that
_either
I assume too much to myself in the _face of
• such high authority 'as his, or in the re'7
mntest degree, mean to reflect on his Lordship's
judgment, when I express mv firm belief that had
he been on the spat, and yielivine, With the expe-
rienced eye of an accoulplished seaman and officer"
the measures which were pursued, and the move"
ments of the Tremendous and Poictiers, that those
proceedings would have met his unqualified
probation,; as it is iny' anxious hope they la-1y
with that of the President and the Members of the
Court, whom I have at present the honour of ad
dressin. RoaERT CAmPDF-I,L.
The sentence was given in a former Paper. -

Miss DLINC‘AN is not performing in Dublin, as,
stated. She was announced there by the ALIO'
ger in expectation of her going there; but soole
difference arose, and she did not quit London.

A Bill has received the Royal Assent for Per"
mittl'ag the use of brown sugar in public breweries
for a time limited (private brewing from S'agar h
always been permitted). It has been found-
experience that Bibs. of sugar are equal to otl,
bushel of malt ; and for making three barrels "1'
ale, four bushels of malt; 6411/s. of sugar, ,"1411
o'.
two pounds of good hops, have been used site'
cessfully. The sugar should be
,dissolved in the
ivort,.and well boiled, and the yeast added at 6'e,
to 62 degrees of heat.'

BIRTHS. •
On the 15th inst. at Great Marlow, the Lady of the o°'
Alexander Hope, M. P. of a Son. 01
Yeterday, the Lady of Captain Sir Peter. Parker, BID"'
his Majesty's ship Menelaus, of a Son.

MARRIED.
9tIT I. at ID

39 01
29.99

• II