The Sun.
London, England, 1867-02-20 00:00:00

'THE SUN, LONDON, WEDNESDAY EVENING, FEBRUAta 20, 1807.

LAW INTELLIGENCE.—This Day.

COURT OP CHANCERY.
(Before the Lord Chancellor.)

KNOX T. GTE.-THE ROYAL ITALIAN OPERA.-JUDGMENT.

This morning his Lordship delivered his judgment in
this case, which was an appeal from the decision of Vice-
Chancellor Wood. The plaintiff, Col. Brownlow Knox,
sought by his bill to obtain a dissolution of partnership al-
leged by him to exist as to the affairs of the Royal Italian
Opera, Covent-garden, between himself and Mr.. Gye, and
consequent relief upon the footing of such partnership, and
also ss to the share in the adventure of the late Mr. Thistle-
thwayte, who died in the Crimea. The defendant denied
the existence of the allt,ged partnership, and stated in
effect that the money contributed by the plaintiff some
years previously to assist him in carrying on the opera
was advanced upon the expres.i footing that if the money
was lost the loss should fall upon the plaintiff; who would
only look to'repayrnea iu the event of proli's.being made,
and in no case to a share of the profits. As to Mr. Thistle-
thwayte's share and the disposition in favour of the plain-
tiff and defendant made by that gentlemen before leaving
England, the answer of 111 r. Gye set forth that a deed was
prepared but not executed, owing to the opposition of the
plaintiff to be therein named as a partner, and the arrange-
ment for giving Mr. Thistlethwayte's share, in case of his
death, to the plaintiff and defendant equally, was effected
by a will. Notwithstanding this statement in the answer,
the plaintiff had not, up to the hearing, amended his bill
by setting out the will in question, probate of which had
been only obtained on the 6th November, a few day
before the hearing in the court below. The Vice-Chan-
cellor hold that Colonel Knox had wholly failed to
establish his claim to bo a partner, but inti-
mated that some relief might be obtained as
to Mr. Thistlethwayte's share, and also as to the
£5,000 advanced by him, in case profits should be found
upon inquiry to have been made in carrying on the
theatre since the advance of that sum. The plaintiff
subsequently moved for leave to amend his bill by setting
forth the will of :Ir. Thistlethwayte, &,c„ and the appli-
cation was supported by an affidavit for the parpose of
explaining his not having amended the bill before the
hearing. The motion was directed to stand over for judg-
ment, together with the point left undisposed of at the
hearing, until Dec. 4, when the Vice-Chancellor refused
leave to amend, on the ground that the plaintiff had given
no satisfactory explanation of his delay in amending his
bill and obtaining probate, and decreed that ho mina be
left to raise by supplemental bill any case he might be
advised• to assert as to Mr. Thistlethwayte's will, so
as to afford the defendant full opportunity for meeting
the same. • The case having subsequently come before
the Lords Justices, leave to amend was refused,
from which decision the plaintiff appealed. His lordship
reversed the decision of the Vice-Chancellor, who dealt
with Thistlethwayte's interest in the undertaking, and
varied that portion of it which dealt with Colonel Knox's
interests. The Vice-Chancellor directed that an account
should bo taken betweenthe parties down to the year 1857,
when the Italian opera performances closed at the Lyceum.
Theatre. His lordship, however, this morning directs that
an account be taken down to the year 1855, when Covent
Garden Theatre was destroyed by fire.

APPEALS.-HOUSE OF LORDS, FEB. 19.
O'MALLEY IRWIN V. SIR GEORGE GREY, BART.

. This was an appeal from the Court of Exchequer Cham-
ber, affirming a judgment of the Court of Common Pleas
in the defendant's favour.

The plaintiff in error appeared in person ; and tho Soli,
citor-General and Mr. Thomas Jones represented the de.
fendant in error.

The action was brought by the plaintiff for a mandamus
commanding the defendant to submit his petition of right
to her Majesty, pursuant to the Petition of Right Act, 1860,
and " when her Majesty's fiat being obtained to the said peti-
tion to return the same to the plaintiff." This application was
made under the provisions of the Common Law Procedure
Act, 1854, sec. 68, to a jury for a mandamus, and not to the
discretion of tho Judges. The plaintiff submitted that
acts of Parliament were not passed to remain dead letters,
and he trusted that his having been the first to avail him-
self of the remedial provisions of the Act against an
executive Minister of the Crown would not be deemed in
the remotest degree to derogate from his confidence in her
Majesty's Judges; to whom only, previous to the passing
of the Act, an application for a mandamus could be made.
Besides, Lord Lyndhurst and all other learned statesmen
were of opinion that no matter in dispute between the
Crown and the subject should over be tried otherwise
than by a jury. The plaintiff, by his petition
of right, claimed £lOO,OOO, pursuant to an award
dated 12th March, 1858, of Lord Westbury (then Sir
Richard Bethel') in his favour. The first section of the
Petitions of Rights Act, 1860 (23d and 24th Vic., c. 34),
gave the subject a right to select any one of the superior
courts at Westminster for the trial of such petition. He
selected her Majesty's superior Court of Queen's Bench at
Westminster for the trial of his claim, as set forth in his
petition of right, dated 24th April, 1861; therefore, no
other court, power, or authority, except his chosen court,
could investigate, try, and decide his claim to £lOO,OOO,
pursuant to said award ; and ho submitted that it was not
competent or consistent with the duty of the defendant to
advise the Queen to withhold her fiat to the petition of right
That the jury in this case not having been constituted ac-
cording to law (the 6th c. 50,'s: 25, 30, and O 7),
their verdict was a nullity; therefore the judgment of the
Court having been founded on such a verdict— in fact,
having been founded on a nullity—is erroneous and alto-
gether illegal. That it is admitted on the record that only
ten of the ppecial jury struck were summoned, also that
eight of them were not summoned; consequently the green-
grocer and corn-chandler from the immediate neigh-
bourhood of defendant's residence in Pimlico were
illegally and in controversion of the jury laws
placed on the jury, in place of the special jurors
who were struck, and mutually fixed on to try the cause,
but not summoned. That if this maladministration of law
could not have occurred if defendant had not had the venue
changed from Surrey to Middlesex, his own county, con-
trary to the plaintiff's strongest remonstrance. That it is
admitted on the record that the special jurors names were
not called over in Court at or after ton o'clock, the hour
named in the summonses for their attendance, and for
the Court to sit. The record, therefore, proved that
the defendant's allegation of the plaintiff's ground for
the bringing error was that the special jury panel
was called over before 10 o'clock is manifestly fallacious;
and a suggestio falsi, which is set forth in his printed case.
Plaintiff referred to The Law and Practice of Writs of
Error," pages 5 and 77, and to various authorities from
"the Year Books, 17 Edward 111., p. 50," to decisions of all
the courts down to the present time, both "in Error" and
"on motion," to sustain the law that the special jury
struck must try the case, and that there can be no tales
jurors unless the special jurors are summoned ; when by
the section of the Common Law Procedure Act there may
be a tales. Also, that a bad verdict cannot help itself has
often been determined, and that hero the defeat was in the
verdict itself. On those grounds the present appeal was
brought.

Mr. O'Malley Irwin had not concluded his case when the
court adjourned.

POLICE INTELLIGEACE.—This Day.

--+--

MARLBOROUGH-STREET.

ATTEMPTING TO ROB A LAUNDRESS'S CART.—Thomas
Tyslin and Thomas Wilson, two young men, were brought
before Mr. Tyrwhitt, by Gordon, 33 0, charged with
attempting to steal a basket of linen from a laundress's
cart.

Police-constable Gordon said he saw thoprisoners loiter-
ing about Olarges-street, and go up to a laundress's cart
and try to remove a basket of linen, but they could not do
it, and after following them through several streets, he
took them into custody.
Iu answer to the charge, the prisoners said they were
hard-working fellows.

Mr. Tyrwhitt said ho had no doubt they were, but with-
out they could call any witnesses to chiradter, he would
have to commit them for threo months each with hard
labour.

The prisoners baying no one to speak to their character
wore committed for three months each.

THAMES.

ROBBERY AY A SERVANT.—A youth named Mark William
Brown was brought before Mr. Paget charged with steal-
ing three sovereigns from a desk in the shop of Mr. Edwin
Bonner, a butcher, of No. 47, Charlotte-street, New-road,
Whiteehapel.
A boy named Smith, in the service of Bonner, was con-
victed at the last Middlesex sessions for stealing three
sovereigns from a desk in his master's shop. The prosecu-
tor interceded with the Court in his favour, and he was
allowed to go at largo on entering into recognisances to
appear and receive judgment when called upon. Mr. Bon-
ner now repeated that he missed three sovereigns from a
desk in his shop on Monday, the 4th of the present month,
There was 411 in the desk including a cheque, and .£2 in
silver, in the morning. On the following day ho marked
three florins, two half-crowns, and a shilling. A portion of
the marked money (9s. 6d.) was found in the possession of
Smith. Yesterday ho found a marked half-crown in a rat's
hole in the slaughter-house. That made up the whole
of the marked money. The prisoner was formerly an
errand boy.

In cross-examination by the prisoner, Mr Bonner said—
You have been in my service four years. Smith was in
my service five mouths. I never had any suspicion until
within the last four months. I have been rubbed to an
enormous extent. You were searched on the day Smith
was arrested, and only 4d. was found upon you.
Alfred Schriebor, potman at the Queen's public-house,
in Charlotte-street, Whitechapel, kept by Mr. Bonner,
sen., said the prisoner called upon him yesterday morning,
and said, " I want to speak to you." If you go down to
master's slaughter-house, move the dirt barrow, there
is a note, and you will find a sovereign and five shillings;
give me the sovereign, and you may have the silver. He
told Mr. Bonner what the prisoner said ; the hole was ex-
plored, and in addition to the half-crown a sovereign and
two sixpences were found. In the evening hemet the pri-

soner by appointment, and was about to hand him a sove-
reign, when a police-constable, by a pre-concerted signal,
made his appearance and took the prisoner into custody.
Mr. Paget said the witness Schrieber had acted very
honestly and properly.
The prisoner, in defence, said ho did not tell the potman
there was a sovereign and ss. in the hole. Ile did not know
how much silver there was in the hole.
Mr. Paget committed the prisoner for trial.

SPORTING INTELLIGENCE—This Day.

LINCOLN RACES.—(Tms DAT.)
B ELECTRIC TELEGRAPH.
BROCKLESBY STAKES.
The Brocklesby Stak.s of 10 sous each, with 80 added
• for two-yr-olds; colts, Bst 101 b; fillies and geldings,
Bst lib; winners 3:b extra ; the second to save his stake ;
~straight run in (about half a mile). 41 subs.

Ninny ,
Veda
Suffolk

Seventeen ran.
SCURRY HAN DIC AP.

The Scurry Handicap of 5 sovs each, with 25 added, for
ull ages; winners after the weights are published 71b
extra; Brocklesby Stakes Course.
Volunteer

2
Six ran.

VICTORIA CLUB—Tills DAT.

Tho members present showed no disposition to bet on
future events, and the success of Vandervelde for the
Lincolnshire Handicap was the leading theme for gossip
by those few "loungers" who put in an appearance. A
few transactions on the events at Lincoln this day were
registered, but these were of an insignificant nature, and
not worthy of remark. Plaudit was inquired after for the
2,000 Guineas; and at 100 to 30 would have been kindly
supported, had such a price been obtainable.

NOTES

FRoX
TRAINING QUARTERS