The Sun.
London, England, 1860-09-22 00:00:00

or other, the prisoners seemed to have desired that I
she should appear to be in mourning.
Mr. Justice Byles inquired of the mother what
was the value of the clothes that were upon the
child when she was taken away ?
The mother replied, about 17s. Gd.
Clara Telson Smith, the child that was the sub-
ject of the inquiry, was examined, and although of
such tender age she answered the questions put to
her very readily, and exhibited a good deal of con-
fidence. She confirmed the statement of her mother
as to the circumstances under which she was taken
from her home by the woman Elliott, and said that
when she was taken to Southampton she wanted to
return home, and she was told that she should go
home at the end of the week, but when that period
had elapsed she was told that she should not go
home at all.

Mr. Justice Ryles asked the child whether she
performed anywhere while she was away with the
prisoner and Mrs. Elliott
The child said that she did not perform any-
where, and was not asked to do so. She also said
that they did not treat her in any way unkindly
while she was in their company.
The prisoner, when called upon for his defence,
declared that he was entirely ignorant of the cir-
cumstances under which Sarah Elliott obtained
possession of the child, and he believed from what
she stated that she had brought the child away
with the consent of her mother. So far as he was
concerned he said that the child was an incum-
brance more than anything else, and, with regard
to appropriating her clothes, the fact was that they
bought clothes for her while she was with them.
The learned Judge, in summing up, said that the
case was, undoubtedly, a very extraordinary one,
and although every possible endeavour had been
made to bring the charge within the terms of the
statute, it appeared to 'him very doubtful whether
any of the counts had been supported by the evi-
dence.

The jury, after a short deliberation, returned a
verdict of Not Guilty.
Upon an application subsequently made by Mr.
Sleigh on behalf of the bail of the woman Elliott
her recognisances were respited to the next session.

NEW COURT.
The Common Sergeant sat in this court during
the day, and disposed of several minor cases.

THIRD COURT.
(Before Mr. Commissioner Kerr.)
At the sitting of the Court this morning Mr.
Sleigh applied to the Commissioner to make abso-
lute a rule which had been obtained in the case of
a person named Hart, who bad been directed to
deliver up certain property, but which order he had
not obeyed.
It will be recoiled that at the last sitting of
this Court two men named Bliss and Wuillez were,
after a trial which occupied two days, convicted of
stealing a quantity of plush, the property of Mr.
Gilly, a merchant, the master of Wuillez. Upon
this plush a person named Hart, living in Bury-
street, St. Mary-axe, advanced £1,200, minus the
commisson, the property being worth about £l,BOO.
After the conviction an order was made by the
Court for the restitution of the property, which
order not having been obeyed, a rule was obtained
ou the first day of this session calling for the com-
mittal of Hart for contempt of court in not obey-
ing the order. A cross rule was obtained calling
upon the prosecutor to show cause why the order
should not be rescinded.
Mr. Metcalfe (with whom was Mr. Poland) ap
peared to support the rule, and after some discus
sion it was agreed that Mr. Metcalfe should be
heard in support of the cross-rule which his clients
had obtained, and which would raise the whole
question.
Mr. Metcalfe, after alluding to the great im-
portance of the question raised, as far as the com-
mercial world was concerned, briefly alluded to
the circumstances of the case, and, in opposing the
order of the Court calling upon Mr. Hart to give
up the property, urged that, if enforced, it would
be setting aside the decision of the Court above,
for upon the action of trover which had been
brought by Mr. Gilly the Lord Chief Justice of
the Common Pleas, before whom the action was
tried, directed the jury as to the law of the case
under the Factors Act, sth and 6th Victoria, cap.
39, sec. 1 and 3, and they, acting upon that, found
for Mr. Hart, the defendant, thus establishing his
title to the property by finding that he had acted
bone fide in the matter; and further, that his
client (Hart) knew the prisoner Wuillez as
Under these circumstances, he (the learned
counsel) contended that Mr. Hart was not to
blame.
The Commissioner—You gave only £1,200 for
property which the prosecutor valued at £2,000,
and which there is no reason to doubt was near its
worth. The Chief Justice at the trial, in summing
up, told the jury it was worth £1,600.
Mr. Metcalfe said it was only a loan upon the
goods.
The Commissioner—You had invoices with the
goods.
Mr. Metcalfe urged that it was only a loan,
and that by the section of the act which ho had
referred to the goods might be given up upon the
lien which there was upon them being paid. The
contract was, he contended, a legal and binding
one: The fact was, the prosecutor, Mr. Gilly, was
not satisfied with the prospect of a new trial, and
wished to overthrow the decision of the jury, who
found a verdict in favour of Mr. Hart.
The Commissioner—Yes, and the jury found
something else.
Mr. Sleigh—They also found that Mr. Hart's
mode of transacting business was prejudicial to the
interest of trade.
Mr. Metcalfe thought that it was not fair to Mr.
Hart that his actions should be judged by the re-
sult of the trial in this court, where, for aught that
was known, the prisoner Wuillez might, in the
hope of saving himself, have made the accusation
which he did against the other. Mr. Hart had
been attacked in this matter, and he felt that he
had not had a fair opportunity of clearing his cha-
racter, which, as a merchant of this city, was more
to him than the amount in dispute.
The Commissioner—l have the affidavits of Mr.

Hart and his clerk, Berryman, but I cannot try the
question of the bona fides of his intention upon them
or the explanation of counsel. What I have to de-
cide is the question of whether the power of issuing
the writ of restitution is discretional or ministerial
with me.

Mr. Metcalfe said that his client in not obeying
the directions of the court was in consequence of
his not clearly understanding them.
The Commissioner said that could not be the
case, as he had not only stated to Mr. Hart what
was required of him, and what had very properly
been agreed upon by his (Mr. Hart's) counsel (Mr.
Metcalfe) and Mr. Sleigh on the other side, but he
(the Commissioner) had written it down and read
it over to Mr. Hart, and he had refused to agree to
it.

Mr. Sleigh at some length addressed the Court in
support of the rule which had been obtained to en-
force the order of restitution, and rested his argu-
ments upon the wording of the Act of the 7th and
6th George IV., cap. 29, which made the restitution
of property imperative upon the conviction of the
person stealing or embezzling it. He contended
that the Act left the judge no discretionary power
in the matter. The construction which he put upon
the Act relied on by his learned friends was in-
tended to refer to the case of a man acting as an
agent having an independent possession of the pro-
perty dealt with, and not to pr9perty in the pos-
session of the master.

Mr. Metcalfe—Mr. Hart thought he was dealing
with the principal in the transaction.
Mr. Sleigh was sorry that the questiontf Mr.
Hart's character should have been introduced, as it
called upon him to state that he had only done
what he had under a notice from Mr. Gilly's attor-
ney, not to part with the property at his peril.
An offer was then made to the prosecutor, Mr.
Gilly, either to pay int!? court £1,200, to abide the
issue of the new trial, or to prty Mr. Hart that sum,
or to allow them under the provisions of the Fac-
tors Act to be sold and the balance paid over to
him.
This he would not assent to.

After some further discussion,
The Commissioner said that this was a most im-
portant question, and ought not to be got rid of by
a sidewind, and he was rather in favour of enlarg
ing the rule until after the new trial, but thought
he had not the power to do so. He was most
anxious that Mr. Gilly should not be kept out of
his property.
After some further conversation,
The learned Commissioner said he should give a
decision to-morrow.

The argument, which had been specially fixed
for this day, lasted some hours, and seemed to create
great interest, the court being very full.

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