The Sun.
London, England, 1835-11-06 00:00:00

VICE-CHANCERY.-(THIS DAY.)

His HONOUR proceeded with the hearing of cause peti-
ions to-day.

MALCOM V. O'CALLAGHAN.

Mr. KNIGHT stated that this was the petition of the
Receiver on the cause, Mr Charles Burton Wyatt, praying
that he might be allowed the expenses of certain journies he
had taken to Paris. The facts of the case were these, sometime
since the testator, Colonel Stopford employed aperson named
Daniel Parker to invest a considerable sum of money in
French Rentes. Parker immediately after investing the
money, left the country, and proceeded with receipts to
Paris where he sold them, and left the Colonel, to
use a vulgar phrase, to whistle for his money. Af-
ter Colonel Stopford's death, it was ascertained that
Parker was living in great style in Paris, and it was
determined by the relatives %f the deceased Colonel
to send some person to Paris, to endeavour, if pos.
sible, to obtain the money from Parker. The present pe-
titioner, whose brother had married a daughter of Colonel
Stopford, was fixed upon by the whole family, but parti-
cularly by Mr. Carr, who opposed the petition, to under-
4ake that task In consequence of the intricacy and
unexampled course of the proceedings in the Courts of
France, the petitioner had had to make no less than
nine journies from France to this country and back,
the expenses of which he now sought to be reimbursed.
After a litigation such as the Learned Counsel had never
heard of in his life, going backwards and forwards from one
Court to another, Mr. Wyatt, the petitioner, was succcess-
ful ; but it was then found that Mr. Parker had made away
with all his property, in such a manner as to render the
judgment obtained in the French Courts perfectly unavail-
able. Although Mr. Wyatt had been put to the greatest
inconvenience by having to stay so long in Paris, the Mas-
ter, upon the case coming on before him, allowed only the
expenses of five out of the nine journies, and the object,
therefore, of the present petition was, that the Court would
order him to allow the whole.

The case appears one of some length, and was proceed-
mg when our reporter left. •

KING'S BENCH.-(THIS DAY.)

Lord Viscount NIINTO, at the sitting of the Court, took
the usual oaths on his appointment of First Commissioner
for executing the office of Lord High Admiral.

MAYALL AND OTHERS V. MITFORD.

This was an action on a policy of insurance tried before
Lord Abinger, at the last Liverpool assizes. The policy
had been effected with the Guardian Insurance Company
upon the Union Company's Mills near Oldham, in Lanca-
shire, for the sum of 3,0001. Verdict for the plaintiff—Da-
mages 3,000/. ; costs 40s.

Mr. BLACKBURNE now moved for a rule to enter judg-
ment for the plaintiffs, notwithstanding the special finding
of the Jury ; or if the verdict was imperfect, then a rule
for a new trial. There were eight pleas by the defendants,
charging the plaintiffs with having broken every one of the
warrantys in the policy ; but ultimately there was only
one of these relied upon at the trial. The warranty was
that the mills should be worked only during the day, and
the plea was that a certain steam-engine, and certain up-
right and horizontal shafts, parts of said mills, were worked
on several occasions, after the making of the policy, by
night, and not by day only. The facts were that a person
named Wharton had an engineer's shop at one end ofthe mills,
and being engaged in making the piston of a steam-engine,
was allowed by the owners of the mills to use their steam-
engine to turn the machinery in his workshop for one night
only, but no part of the mills was worked on that occa-
sion. The Jury found that the upright shaft had been
worked, as in the plea mentioned ; and a verdict was had
for the plaintiffs, subject to the decision of the Court upon
that finding. He (Mr. Blackburne) would contend that
the warrantry was that "the mills" should not be worked,
and that the working of the steam-engine for another pur-
pose, on one occasion, did not constitute a breach of the
warrantry ; and therefore be was entitled to have a rule to
enter judgment for the plaintiffs, or the alternative of a
new trial. Court—Take your rule.

THE KING V. O'GORMAN MAHON.
This was an indictment for an assault committed by the
defendant upon an attorney of this Court, named Wigney,
tried before Lord Chief Justice Denman, at the sittings
after last term. The Jury found the defendant guilty.
The facts have been already fully before the public.
Mr. THEssiasa now moved for a rule for a new trial
upon several affidavits. He would not trouble their Lord-
ships with the facts.
Lord DENMAN-4 remember all about it. There was
no defence, and there could be none.

Mr. THESSIGER—As I am instructed, my Lord, there
are several witnesses who can prove that the first assault
was committed upon the defendant.
Lord DENMlN—Suppose that was the fact, it could be
no defence to the dreadful blows inflicted by the defendant.
He could only be entitled to defend himself.

Mr. THESSICER—I apprehend, my Lord, that the first
assault having been committed by the prosecutor, would
be some justification of the defendant's conduct.

Lord bENMAN—That depends upon the circumstance of
whether it was in self-defence. Is the defendant in Court ?

Mr. THESSIGER replied in the negative, but said he would
be in attendance in a short time.
Lord DENMAN—Then we had better wait till he is here.

Shortly afterwards Mr. THESSIGIR rose and said the
defendant was now in Court, and he felt pressed by the
observation of the Chief Justice, that even if the first as-
sault had been committed upon Mr. O'Gorman Mahon, it
would be no defence ; because if that was the opinion of
the Court, it would be quite unnecessary to apply for a
new trial, if evidence of a previous assault would constitute
no defence to the indictment.

Lord DENMAN-It is a common opinion, that if a person
receives a blow, he is entitled to return it in any way he
pleases. It is looked upon as a debt incurred which he is
bound to repay. Nothing can justify a man in committing
an assault unless it be in self-defence, and you know that
this was infinitely more than self-defence, and was an as-
sault, in fact, that could not be justified.
Mr. THESSIGER thought the practice of the Courts had
been to allow something to human infirmity, where a man
was smarting under the provocation and irritation of a
blow, and could not measure the force used by him in
selkefence.

Lord DENMAN—Provocation will not be a sufficient
justification. Nothing can be a good justification but self-
defence.

Mr. THESSIGER—The defendant had several witnesses
subpcened, and did not expect his case to have come on
'until late in the evening ; but the special case that preceded
it terminated suddenly, and his witnesses were not in at-
tendance. Mr. O'Gorman Mahon was himself here, hav-
ing twice travelled four hundred miles to attend the trial,
and it having been originally before the sessions, but removed
into this Court by certiorari.

Lord DENMAN observed that two witnesses had sworn
that very severe and repeated blows had been given.
Mr. THESSIGER—In the scuffle in a dark passage some
mistake might have arisen.
After some further discussion, the Court conferred for a
few moments, and

Lord DENMAN said the Court did not think that suffi-
cient grounds had been laid before it for a new trial. From
all the circumstances it was very improbable that any other
jury'would come to a different decision. At the same time
there was nothing to prevent these affidavits being used
when the defendant was brought up for judgment.—Rule
refused.

EXCHEQUER COURT.-(THIS DAY.)

BRACHELL V. ROUGHSEDGE.

This was an action for false imprisonment tried at York
at the late Assizes before Chief Justice Tindall, when a
verdict was found for the plaintiff, with 5/. damages.
The ATTORNEY-GXNERAL now moved for a rule to
show cause why that verdict should not be set aside and a
new trial had. The defendant was a most respectable
Magistrate in the county of York, who was most anxious
for a new trial, as he considered that his character had been
damaged from the course which the former trial had taken.
From the affidavit of the defendant it appeared that
on the 4th of July, 1834, between six and seven o'clock in
the evening, he was riding out on his proper side of the
road with his daughter, a girl of fourteen years of age. He
was leading her pony with a string attached to the bridle,
while a man servant attended on the other side. While
they were going on they heard a great noise behind them,
and presently the plaintiff came up, riding at the rate of
from ten to twelve miles an hour, and ran between the de-
fendant and his daughter, he having no more time than to
slip the strinc, from his hand. He called to the plaintiff,
who stopped,' and on the defendant finding fault with him,
he was very abusive, and said he had done no
more than he had a right to do, and he would
do it again. Defendant asked him his name, when
he spelled it in a very loud and insulting manner, and
said he did not care a farthing for the defendant, or any
other magistrate. He was very drunk. He then rode on,
and defendant thought he had got rid of him ; but when
they had got about half a mile farther upon the road, they
found that the plaintiff had put up his horse at the first
public-house, and had come back and posted himself upon
a bridge, which he knew the defendant must pass. He
was there again very abusive to the defendant, and told him
he defied him, for he could do no more than fine him ss.