The Sun.
London, England, 1842-07-04 00:00:00

A STREET FIGHT IN MIS-
SISSIPPI.

(From the Correspondence of the New York Herald)
Since my last, a duel has taken place opposite
Vicksburg, between Mr. Fall, pro. tem. Editor of the
Sentinel, and the " jintleman" whose big whiskers so
alarmed the sensibilities of Mrs. Foley. Mistress F.
knew that he was a " jeweller"—atid she was
right, as the ladies always are. I was not present,
but am"told it was a very interesting affair • but to
make amends for-my-loss on that occasion,_ had the
pleasure to witness• a- very pretty street fight here on
Tuesday last,. between General H. Stuart Foot
(Henry S. Foote) and a Mr. Fitzpatrick. You
know General Foote ; you must know him, at least
you ought to know him, all the world ought to know
him, for if they do not it is a great pity, and he has
lost a world of labour in striving to make himself
known. He is a great lawyer, a great politician, a
great biographer. and a great historian. - He com-
menced here as a great Jackson man. When Jackson
and Calhoun qUarrelled he took the turn of the tide,
and was a great Calhoun man. But this tide did not
turn ; so he turned back again, and becaine a greater
Jackson man than ever. Then the Anti-SUbtreasury
tide began to flow, and he made another great mistake.
Bui there is no mistake in him as a fighting man. He
has fought, let me see—one duel in Alabama before
he came here, when he was wounded in the shoul-
der ;.- two duels with Prentiss, wounded each tifne—
that is three; one -with on Pearl River, makes
four, one with Claiborne makes five, and the present
street fight makes his sixth affair pretty well for a
young man of thirty-five or thereabouts. This last
quarrel originated in some severe remarks which
General Foote made last summer, in a criminal
cause, where he 'was defending the prisoner, and
Fitzpatrick was the prosecutor. It is not true, as
is generally supposed, that old women, over the
tea table, are legally .privileged to slander and
calumniate their neighbours. None have a legal
right to do so, but lawyers—and they only in the
face of the Court and Jury. And here they generally
take the full benefit of the privilege—but most espe-
cially •sivhen their cause is weak—when little
.is to be
said for their own clients, they make up for it by
abuse of their opponents. Foote abused Fitzpatrick,
it is • said, and Fitzpatrick, knowing that he had no
legal. redress, determined to take a little illegally ; so
arming himself with a cane, a bowie knife, and a
pistol, he took post at the door of a tavern where Gen.
Foote was, and as the latter came out, struck him a
heavy blow with his cane. Foote, though taken by
surprise, rushed forward, and a scuffle ensued, and
both. fell, Fitzpatrick coming off second best. They
were separated by the bystanders, and Fitzpatrick
being told that Foote was unarmed, demanded a fair
fight over the river. Foote refused to acknowledge
him as a gentleman, but declared his intention to be

prepared for any further attack. This, in common
parlance, signifies " I will give you a street fight."
Now, I doubt whether you unenlightened savages
of the north understand what is technically . called a
street fight. 'You may think, for instance, that they
had already a street fight. No such thing. That
was only a rencontre entirely unexpected, at least,
by one of the parties. But in a street fight, as in a
duel, both parties are pi:epared; they go to seek each
other, generally in the :most public place ; but, unlike
a duel, each party arms himself according to hiS own
fancy, and they skirmish, as they please, dodge be-
hind posts, advance, reel ide, videlicet, run—in short, a
street fight has neither h tw nor gospel.
Well, after the separation, each went to prepare
himself according to his r own notion, and, in about
two hours,- General Foote made his appearance in
Capitol-street, ostensibly going about his own busi-
ness to the Court House. just as he was passing a
little shanty, known as an " Eating and Oyster
House, by Samuel Watts," -whiz came a bullet, - not
very well aimed, it seems, t:qr it missed its object,
and lodged in Sammy's sign-boa.rd. Thereupon, Gen.
Foote' stopped, deliberately dres:v a pistol, and pre-
sented it at his opponent. A b ystander called out
to him to take a rest. He did so; on his left arm,
but the cap snapped. Fitzpatrick, who had been
standing rather suspiciously near a pillow, now ad-
vanced and threw his pistol at Fc ote's head. This
was better aimed than the bullet, for it took effect,
but not so effectively as to prevent Fi tit,e from drawing
and firing another pistol, the bullet ti om which struck
the sheath of Fitzpatrick's bowie knife, glanced,
entered the iliac region, a little belco the umbilicus,
to the left of the linea alba, perforate( 1 the abdominal
muscles and fascia transversalis, enter ed the abdomi-
nal cavity grazing the sigmoid fl exur e of the colon,
and emerged at a point corresponding to the superior
spinal process of the ilium. In the ex,litement of the
moment Fitzpatrick seemed unaware that he was
wounded, and attempted to draw his bowie knife,
which, in consequence of the ind'vntation by
the ball, he. was unable to do, he struck
TFoote several times with his heavy cane:. and fell.
he blows on General Foote's cranium • were nu-
merous and severe, and produced laceratin, Z of the
scalp, with excessive sub-cutaneous effusion, symp-
toms of compression of the brain were superia .duced,
and the profeSsional attendants were for a time 'doubt-
ful whether these symptoms were the result of a. frac-
ture of the left parietal bone, bordering on the sogit--
tal suture, with consequent depression of the bone,
or the effects of cerebral sanguineous effusion pro-
duced by simple concussion; doubts were also en, Ler-
tained whether the severe blows on the poster; or
portion of the cranium had not complicated the in'-
jury by a separation of the lambdoidal suture. The
more favourable opinion expressed at the time has
been verified, namely, that the Symptoms, at the time
so very .alarming, were merely
.the effeel.; of simple
concussion of the brain, uncomplicated Edith fracture.
General F. has now recovered,: and a'Aends to his
business as usual. His coolness and. bravery have
acquired for him general sympathy and respect, and
even his enemies have resolved to forcet his political
mistakes.

LAW INTELLIGENCE.

PRIVY COUNCIL, July'2.

ESCOTT V. 7kIA STIN.

Their Lordships gave judgment in this case, which was ar-
gued last week, and which has excited to much
interest in the Church, and among the Dissenting
bodies. It was an appeal from the Ecclesiastical
Court, in a suit against the Rev. Mr. Escott, Vicar of Gedney,
in Lincolnshire, for refusing to read the Burial Service over the
body of a ehild, the daughter of Thomas and Sarah
Cliff, on the 16th and 17th December, 1839, on the
ground that she was unbaptised—i. e. had been bap-
tised by a Wesleyan Minister, which, according to the ap-
pellant's construction of the canons and rubrics of the Church,
amounted to no baptism at all. The foundation of the suit
was the Canon of 1603, entitled " Ministers not to refuse to
Christen or Bury," by which it was ordained that " No minister
shall refuse or delay to christen any child according to the form
of the Book of Common Prayer, that is brought to the Church
to him upon Sundays or holidays, to be christened ; or to bury
any corpse that is brought to the Church or Church-yard, con-
venient warning being given him thereof before, in such
manner and form as is prescribed in the said Book
of Common Prayer; and if he shall refuse to christen
the one or bury the other, (except the party deceased
were denounced, excommunicated, nt.yori excommunicatione, for
some grievous and notorious crime, and no man able
to testify of his repentance), he shall be suspended by
the Bishop of the diocesefrom his ministry by the space of
three months." The sentence of the Judge below was, " T hat
the Rev. Thomas Sweet Escott, Clerk, be accordingly suspended
for the space of three months from all discharge and functions
of h s clerical offices."

Lord BROUGHAM, of er disposing of a preliminary objection
to the incompetency of some of the witnesses, on the ground
that they had done acts subjecting them to excommunication,
went at great length into the arguments on the part of the ap-
pellant, on which it was contended that baptism by a person
who had not received episcopal ordination, was of no more
effect than baptism by a layman, and that laymen were forbid-
den, by the canons and rubrics, from performing this rite ; that
consequently the rite so performed was invalid, and
the person receiving it unbaptised, and if so„ the
ministers of the Church were not only justified in refusing
to read the burial service in such a case but were bound to
do so under severe penalties. Their Lordships were of opinion
that taking Wesleyan and other ministers, not episcopally or-
dained, to have no more authority to baptize than laymen
there was nothing in the Canon of 1603, or the Rubrics of
Edward the Sixth and Elizabeth, to show that lay baptism was
invalid. There were passages in each which showed that cases
were contemplated, in which the attendance of a cler-
gyman could not be procured from want of time,
or distance of place, and although lay persons were subject to
ecclesiastical censures if they obtruded themselves unneces-
sarily into this or any other office of the Church, it was plain
that the rite was valid by whomsoever administered, if
done in the prescribed form, viz., by the sprinkling of water,
and in the name of the Trinity. This had been declared
expressly and repeatedly by competent authorities, and amongst
others by Bishop Hooker, in his " Ecclesiastical Polity." It
hail been contended that the Act of Uniformity (13th
and 14th of Charles the Second) and the changes in
the Rubric which then took place, had had the effect
of making lay baptism altogether invalid, but no such inten-
tion was expressed; and as the old and the new regulations
might very well stand together, their Lordships were of
opinion that the old ecclesiastical law upon this
subject remained unaltered. That this was not re-
pugnant to the principles and usages of the Church
was clear from the case of marriage, which was a
Sacrament in the Romish Church, and yet that rite might be
performed by laymen both in Protestant and Catholic
countries. In England it had been so until the Marriage
Act of the 26th of George 11., and was so in Scotland to
this day. After going very ably and elaborately into the other
points, his Lordship concluded by expressing their Lordships'
strong disapprobation of the language in which a judg-
ment of Sir John Nichol in a former case (in which he
had come to the same conclusion) had been spoken of by
the appellant, and "other reverend persons," and which
he could only ascribe to " that heat of temper which is
unfortunately too commonly found in theological controver-
sies;" and stated that the sentence of the Court below must by
affirmed with costs.

ROLLS' COURT, July 2.
No caw involving any point of general interest came before
the Court during the day.

VICE-CHANCELLOR'S COURT, July 1.
(Before Vice-Chancellor Wra RA ) •

IN RE SUISSE.
His HONOUR gave judgment in this motion, which was a mo-
tion to dissolve an injunction obtained, on the application of the
Marquis of Hertford, restraining the Bank of England from
permitting the transfer of 4,0001. New Three-and-a-Half per
Cents.; standing in the name of Nicholas Suisse, the valet of
the' late Marquis, who is now a prisoner, awaiting his trial at
Newgate, on a charge of embezzlement. His Honour said that,
except in a few cases which were expressly provided for by
Statute, the Court had no jurisdiction to interfere, unless upon
a bill filed. The Statute sth Victoria, c. 5, on which the in-
junction wal granted, was not intended to confer a
new jurisdiction, enabling the Court to adjudicate on the
rights of parties in cases where no regular suit had been
instituted. The injunction which the Court was
enabled to grant under the 4th section was only for the pur-
pose of temporary restraint, with a view of affordinc, time to
file a bill. In this case the restraining order was issued on the
28th of May, after the distringas was removed, since which no step
had been taken to perfect the proceedings by filing a bill. It
would have been more satisfactory to him if he had felt him-
self justified in continuing the injunction, there being too much
reason to fear that the order which he was about to make would
have the effect of disposing of whatever rights the Marquis of
Hertford might have to the stock in question. Upon the facts
as they stood before the Court, and according to the principles
upon which the Court exercised its jurisdiction, the restraining
order must be dissolved with costs.

Sir C. WETHERELL requested that the order might not be
issued till opportunity had been given for an appeal to the Lard
Chancellor.

His Howoun. said he would certify to the Lord Chancellor
that the ease was one of emergency.

JULY 2.

His Honour Vice-Chancellor WIG RAM was engaged during
the morning in hearing unopposed petitions and short causes.

COURT of ZXCHEQUER, July 2.
(Sitting at Nisi Prins at Guildhall, before Lord ABINGER and

_
a Special Jura .)
THORNTON V. BYNG-THE GURNEY AFFAIR.
This was an action for libel, arising out of the well-
known Gurney affair. The case appeared to excite consider-
able interest in sporting circles. The Duke of Bedford, the
Duke of Portland, the Duke of Richmond, Lord G. Bentinek,
and several other noblemen and gentlemen occupied seats on
the bench near the Chief Baron.

The main facts of the case are so well-known to most of our
readers that we shall only refer, to them very briefly. Mr.
Gurney, who had nominally lost and won large sums on the
Epsom races of 1841, was unable to meet his losses in conse-
quence of various parties not having paid his, claims upon
them. A number of gentlemen afterwards undertook to pay
his creditors, and to thGio gentlemen it was directed,
by a resolution of the Jockey Club, that the sums won by Mr.
Gurney should be handed over. Among the debtors of Mr. Gur-
ney was Mr. Thornton, thepresent plaintiff, for a sum of 1,350/.
For this amount Mr. Thornton delivered to the assignees of
Mr. Gurney bills of exchange, with the condition that they
should be returned if the creditors of Mr. Gurney were not
paid in full by a certain date. It appeared that the
condition had not been complied with to the letter ;
and Mr. Thornton recovered back in consequence the
amount of the bills he had given, by a decision
of the Court of Exchequer. The. Stewards of the
Jockey Club, however, namely, Colonel 'Vag, the Duke of
Bedford, and Colonel Anson, who are the defendants in the
presentease, were dissatisfied with the conduct of Mr. Thorn-
ton, to whom they sent, through their Secretary, the follow-
ing letter, which was also published in the London newspapers :
" 7, Oxendon-street, Feb. 25, 1842.
"SIR.—As you failed to appear when summoned on the 9th
instant, and have not paid the sum of 1001., which you
owe to Mr. Gurney on his Epsom account, I am directed
by the Stewards of the Jockey Club, to give you notice that you
will not be permitted to come into the Coffee-room Yard at
Newmarket, nor upon the race-course there, until the bets due
from you to Mr. Gurney, in respect of which you have been
declared a defaulter, shall be certified to have been paid ; and
that if you disregard this notice it will be enforced against you
by legal process. I am directed to add, that information of
this notice having been served uron you has been sent to
Messrs. Tattersall.

" The stewards at the same time expressly desire to have it
understood, that they do not take into their consideration
any contract or agreement involving legal liabilities be-
tween you and any other parties, nor any of the
consequences thereof; still less do they presume to impugn or
question any derision of a Court of Law thereupon. It is
sufficient for them that you 'have made bets upon a race,
and that having lost those bets you have refused
to pay them ; and when it has been decided by the
Jockey Club, that you are bound to pay what you have lost,
you set that decision at defiance. You are, therefore,
according to the practice of ' the Turf, a defaulter,
and as such the Stewards 'deem it their duty,
not only in vindication of their authority, but as
an example as well as a protection to others, to exclude you
from all places in the occupation or under the jurisdiction of
the Jockey Club. I am, Sir, &c.
" Richard Thornton, Esq. "C. WEATHERBY."
This letter, as published in the Times and other journals,
formed the ground of the present action for libel, brought by
the plaintiffs.

Mr. Weatherby, the Secretary to the Jockey Club was called
by the Counsel fur the plaintiff, and admitted in his evidence
that Mr. Thornton had not been summoned to attend
certain meetings of the Club at which his case was inquired
into ; and this appeared to be contradictory to the general un-
derstanding on such a subject. The witness, in the course
of a long examination, also submitted that some rules
of the Club were improperly worded, or that they had not, at
least, been followed out in practice.
The Duke of Richmond. Lord George Bentinck, and
other witnesses, stated that it was not the prac-
tice on the turf to pay betting-men who did not meet
their own debts. They had never known an instance until
the case of Mr. Gurney, in which assignees had
been appointed to settle the accounts of a defaulter.
Mr. Thornton was the first person, to their knowledge. who
had ever been published in the newspapers as a defaulter on
the turf.

Sir Tllomas WILDE addressed the Jury at great length on
the part of the defendants, and called witness for the purpose, of
proving that, in all disputes respecting bets, &c., between
members of the Turf, the matter was referred to the Jockey
Club, whose decision was held to be final, and contended that
the plaintiff, in the present case, ought to have abided by their
decision.

Sir W. FOLLETT having replied on the part of the plaintiff,
Lord JIBING/1E summed up the evidence, and the Jury re-
turned a verdict for the plaintiff—Damages, 2001.

INSOLVENT DEBTORS' COURT, July 2.

IN RE DANIEL BRITTEN.

The insolvent's petition had been heard on the 15th ult.,
when the hearing was adjourned for the purpose of producing
the lease of certain premises in Basinghall-street, and rendering
an account of some furniture and other property. It may be
recollected from the report in The Sun of that date, that he
had carried on a very extensive business as a calanderer and
packer, in Tenter-street, under the firm of Perrott and Co.,
and had become bankrupt for the sum of 25,000/. Assignees
having been appointed under the fiat, the insolvent instituted
several actions against them in forma pauperis, by which they
were put to an expense of upwards of 2,5001.
Mr. COOKE, who appeared in support of the insolvent's peti-
tion, read an order made by Mr. Justice Vaughan, by which
the insolvent was released from the claims of certain parties
who represented the mortgagees of the property in Basinghall-
street, upon his paying the sum of 2001., and then contended
that, with such an order produced in Court, it was idle to offer
Ourther opposition to his discharge, unless the whole case, from
the date of the issuing of the fiat in bankruptcy, was opened up
anew:. ••

Mr. Bourdelai, who was required on the former day to appear
in Cou.-t with the lease and other documents connected with
the haol'•.ruptcy, not being in attendance, the further hearing of
the case was ordered to stand over to Monday.
In a short time, however, Mr, Cooke announced that melt