The Sun.
London, England, 1829-11-20 00:00:00

LONDON, FRIDAY EVENING, NOVEMBER 20, 1829.

LAW INTELLIGENCE.

COURT OF KING'S BENCH, Nov. 19.
THE KING V. HARIIER AND OTHERS.

The ATTORNEY-GENERAL prayed the judgment
of the Court upon the defendants, Reuben Harmer,
Thomas Dunk, arid Thomas Pettit, who were
convicted upon an information filed by his Majesty's
Solicitor-General, charging them with conspiring
with two. other persons, named Charles Harmer
arid William Stonestreet, to detain a man named
Henry Mercer, from attending a sitting of Magis-
trates at Battle, to give evidence against one William
Billingness, against whom an information had been
laid by the officers of excise, for retailing spirituous
liquors without a licence. The trial took place be-
fore Mr. Justice Gaselee at the last Assizes at
LeWes, when the three above-named defendants
were found guilty ; the defendant Stonestreet was
acquitted; and the other defendant, Chalks Har-
mer, was discharged on his own recognizance.
Mr. Justice BAYLEY addressed the defendants,
and after commenting on the serous nature of their
offence, sentenced them to be imprisoned in tha
House of Correction at Lewes for the -space of six
calendar months, and to find security for their good
behaviour for two years, themselves in 401. each,
with two sufficient sureties for each of them in .201.
each.

COURT OF COMMON PLEAS, Nov. 19.
GODEFROY V. DALTON, GENT.
This was an action against an attorney for al•
leged negligence in the conduct of a cause; it arose
under these circumstances :—An action having been
brought against Mr. Godefroy by a person of the
name of Dubois, for driving a horse and gig over
his son, Mr. Godefroy employed an attorney to de-
fend it. 'The attorney, however, suffered judgment
to go by default against his client, who thereupon
brought an action against him for negligence in so
doing, and employed the present defendant as his
attorney to conduct the cause. It came on for trial
before Mr. Justice Burrough, at Guildhall, but the
plaintiff's attorney being only prepared with the
prothonotary's book, as evidence of the signing of
the judgment by default against him in the cause of
" Dubois v. Godefroy," the Learned Judge re-
fused to admit such evidence, and nonsuited the
plaintiff. The latter then brought the present ac-
t►on against his attorney, Mr. Dalton, for negli-
gence. It was tried before the Lord Chief Justice
at the last Middlesex sittings, when it appeared
that the defendant, after he had delivered his briefs
for the previous trial, consulted his junior Counsel,
a gentleman of 30 years' standing at the bar, and of
great practical experience in such matters, on the
subject of the proofs, and was advised by him that
the entry in the prothonotary's book was sufficient
to prove the allegation that judgment by default had
been signed against his client. It was therefore
insisted, in defence, that under these circumstances
the defendant had not been guilty of negligence so
as to render him liable for the consequence of a
mere error. of judgment : secondly, that the declara-
tion could not be sustained, because it did not al-
lege that the defendant in the former action had
been guilty of negligence, but merely that the plain-
tiff had commenced an action against him for negli-
gence : and thirdly, that the declaration alleged the
trial to have taken place " in the Court of our Lord
the King, of his Justices of the Bench at West-
minster, from which it would appear that the trial
had taken place in this Court, whereas it was
proved to have taken place at Guildhall, London.
The Learned Judge reserved these three points for.
the opinion of this Court, and subject to that opi-
nion, the Jury found a verdict for the plaintiff.
Mr. Serjeant TADDY having on a former day ob-
tained a rule to show cause why the verdict should
not be set aside, and a nonsuit entered, or why the
judgment should not be arrested.

Mr. Serjeant WILDE and Mr. Serjeant BOMPAS
showed cause against the rule.
Mr. Serjeant TADDY and Mr. Serjeant CROSS re-
plied in support of the rule.
The LORD CHIEF JUSTICE said, that as this was
a case of importance, both to suitors and attornies,
the Court would take time to consider of it, and
look into the authorities on the subject.

COURT OF EXCHEQUER, Nov. 19.
PETO V. TILE ATTORNEY-GENERAL.
At ten o'clock the Court proceeded with this case.
Mr. KNIGHT, for the plaintiff, in reply, began by
adverting to the great importance of this case to his
client, whose character and property were at stake,
and not only expressed his great surprise at, but
protested against the extraordinary and unprece-
dented course pursued by the officers of the Crown.
In the first instance, the plaintiff, after an admitted
understanding on both sides, subsisting for two
years,—after having been invited, as it were, to try
the case in an equitable shape, as be had before
been invited to try it in a Court of Law,—after
this delay and this understanding, the Law Officers
when the plaintiff was ready to go into the merits
of his equity ease, turned round upon him and said,
" We will not go into the merits of your equity
case; but will demur to the jurisdiction of the
Court to hear your case at all." This conduct was,
he contended, wholly unprecedented. The objec-
tions against the motion of the plaintiff he took to
be these three t—First, that there could be no acr
count or set-off against the Crown ; this bill prayed
for relief as ancillary to a set-off ; but the right of
the principle failing, the right of the accident failed
with it : therefore there could be no injunction. The
second injunction was, that where there were no
merits confessed in the answer, no injunction could
be given ; and as the Attorney-G,eneral was not
bound to confess merits, hut put in a formal answer,
and that having done so here, that could be no in-
junction. The third was the Statute of Henry
VIII., which enabled a debtor to the Crown
sued at law to plead an equitable ground
of defence ; but that the plaintiff, having
neglected to set up such equitable claim
at the proper time, was now and for ever debarred
from it. To the first objection the Learned Gentle-
man answered by denying the argument that there
could be no eet-off against the Crown. He had
never heard, and did not expect to hear, a-4y one
reason why there should not be such a tiet-off. It
would be monstrous, and would let in the gresseSt
iujnztice, if it were otherwise. The Court would
net, if applied to, allow the officera of the Crown to
say to a debtor, " We will recover against you,
but you may get your claim against us how you
can," The Learned Gentleman contended: that be-
fore the statute of set-ott' (in Geo. II.), the law of set-
off %as well known and acted upon. By stat..s
Rich. 11., cap. 2, the subject had a right to a set-off
against the Crown. He had said thus much on the
admission for a ruoinent that this ,question was ancii:
lary to a set-off; but he begged now to deny that
it was any such thing. The plaintiff admitted that
judgment must pass against him on the bond, but
he claimed that what was due to him for the work
done, and admitted to he done by 'the Ciovernment
surveyor, should be paid. But this was resisted,
on grounds which, if attempted to be used between
man and man, would be scouted out of court. The
plaintiff sought for the present injunction, not as
ancillary to a set-off, or an account, but as a recog-
nition of his equitable demand against the Crown.
As to the second objection, be contended that in
cases where the Attorney-General did not confess
merits in his answer, the Court should deal with it
as eourtl of equity were in the constant habit of

do =hear the plaintiff on affidavits. With re-
spect to the objection arising out of the statute of
Henry VIII., the learned gentleman contended that
it was completely met by the case of Sir Thomas
Cecil, and by that of Sir William Herbert, who was
sued on a bond given by his father to Edward VI.,
and judgment was had against him by default,—the
judgment was now all he (Mr. Knight) had to do
with,—and after that judgment the defendant was
allowed to become a plaintiff, to file a bill of
equity in the same Court of Exchequer, and on
hearing the merits of his case, the Court made
a decree relieving him from the judgment
on the bond. In the course of his address the
Learned Gentleman dwelt with much force on the
great severity and hardship of Mr. Peso's case, and
the injustice done to him in first being called upon
to obey the instructions of Mr. Laing, and then
being turned round upon end sued on the bond for
acting in obedience to such instructions contrary to
the specifications in the contract; then being re-
fused to have his case in equity entered into, be-
cause he did not .put it upon the record when he
entered upon his legal defence. Surely there must
be something mysterious in all this.
Mr. Baron VarGnaN—But, Mr. Knight, you
must not think it strange that the officers of the
Crown should be strict where a contract was made
for a building to be completed for 160,0001., which
cost nearly 500,0001., including upwards of
150,0001. for repairs done to it since.
Mr. KNIGHT—My Lord, I fully concur with
your Lordship that there should be the most strict
inquiry into every part of this transaction. That is
what Mr. Peto has all along most anxiously desired.
It is true, my Lords, that the expence has very
greatly exceeded the sum specified in the contract;
but was it Mr. Peto's fault, that having contracted to
erect a barn, the officers of Government should
choose to build a 'palace ? Was it his fault that
statues should be placed at the top of it where none
had been mentioned in the contract ? Was it his
fault that Portland stone should be used where
only brick was mentioned ? Was it his fault that
the domes, the cupolas, and the other parts of the
building should be so changed and altered from the
original plan,tthat, as the surveyor has said, it
seemed one mass of extras ? Vas it his fault that
the housekeeper of that establishment did not
choose that her apartments should look into

Thames-street ? Why, my Lords, this objection
of the housekeeper to look from her drawing room
into Thames-street has cost the country thousands
—with the direct sanction of the Beard of Corn•
missioners. My Lords, we have here the memorial
of this very respectable personage, complaining to
the Board that her apartments are made to overlook
Thames-street, and expressing her earnest desire
that her drawing-room and sitting•room should look
towards the Thames. This subject gave rise to
as much negociation and grave detiberation, with all
the forms of the most important diplomatic ques-
tion, as can be imagined; and what was the result ?
I hare it here—an order of the Board to alter the
whole plan, to give the Comptroller's rooms to
the housekeeper, and to make other altera-
tions, involving an expence of thousands; and
all this, without once consulting Mr. Peto, the
contractor, any more than if he were the mere brick-
layer, or the man who ran up the ladder with a hod
on his shoulder! He is to take his instructions
from Laing for these alterations, and yet, after al!,
he is to be sued on the bond for a departure from
his contract ! My Lords, this very document has
come to our possession since the trial, and is, I con-
tend,., a -new matter of equity. There is also, my
Lords, a Treasury order, signed -" J. R. Lushing-
ton," in which it is stated to be the wish of Lord
Liverpool to have the ends faced with Portland
stone instead of brick, and not a word said about
Mr. Peto. There were, Mr. Knight continued,
fifty other cases of a similar kind for alterations and •
deviations from the original plan as specified in the
contract, which had only lately come to the posses-
session of the plaintiff, and of the existence of which
he was ignorant at the time of the trial; and these,
and it ►was probable some other items, might furnish
some clue to the great unwillingness expressed in
some quarters to have a rigid examination of all the
items entered into. They were, however, now mats
ters which would fully let in Mr. Peto's claim in
equity, at least to the amount due to him by the
Crown. lie would ask their Lordships what would
they think, in a case at nisi Arius, of a private indi-
vidual who bad contracted with a builder to have a
house of a specified description built for him, and,
living next door to the new building, should every
day look on what was going forward, should see de-
viations made from the original plan by order of his
own surveyor, and should advance money to the
builder to carry them on--would any of their Lord-
ships sanction the plea of such a man in resisting
the payment for works so done, that it was without
his express orders, and that a contract being an in•
strument under seal could be altered only by a o,4i;ar
instrument c Surely their Lordships ►could not
sanction such a defence; or if, under• a bond, the
-plaintiff should in, such case get a verdict at law,
would not a court of equity (in a case between man
and man) relieve him from the effect of such ver-
dict ? What, he would ask, was there in the case
now before the Court, which took it out of the r;:le
applicable to such a one l'"1 had supposed ? There
Was, he contended, no distinction in the equitable
principle applicable to both.

Mr. Baron VAUGHAN here asked why Mr. Peto
had not put Mr. Laing in the box at the trial, as he
• could have told by whom the orders were given.
Mr. KNIGHT replied, that one of the charges
against Mr. Peto Was that of fraudulent colltision
With Mr. Laing. He therefore did not choose to
call him. The Learned Counsel then went op to
point out the e;treme hardship to which Mr. Petohad been already subjected, and the still greater in-
justice which would be done to him if he were now
compelled to pay the sum of 33,0001. into Court,w ith-
out having the merit of his casein equity f.rst herd.
Such r. course would be his ruin. Ks property was
already, tied up by the judgment. He was prevented
from alienating any part of it. The Government
had had already a mortgage for 20,0001. advanced
to him to carry oa the works. That mortgage was
on Furnival's 'lnn, which was his own property, and
which produced him 7,0001. a year clear, on a lease
for 99 years.

The SOLICITOR-GENERAL here observed, that if
this was a bona fide statement, he would (as he was
unwilling to do any thing harsh towards Mr. Veto)
consent on the prt of the Crown to receive the
rents of Purnival's Inn until the sum of 33,0001.
was paid up, without prejudice to any case which
he might eventually establish, and would undertake
to return the sum so paid, ;110;44 tbo COUrt so de-
cidei withclut prejudice in the mean time to any
right of the Crown to resist such claim on Mr. Peto s
part.

After some consultation with Mr. Pete,
Mr. PEPI's and Mr. KiNi4iiT objected to this pro,
posal, after which

The LORD CHIEF BARO..N: said, that as it was q:,.
advanced hour, and one of the Judges must go to
chambers, they wo;:ld go no farther that day. He
would recommend to the law-officers of the Crown,
and to the Counsel for the plaintiff, to consider till
to-morrow of the offers made on each side, in order
to come, if possible, to 40.r.-:“c: understanding. The
questions which the Court would have finally to de-
cide (and which way his mind inclined ke would not
yet say) were, first--whether an injnnction aitould

be granted without any security ; and next, whether
upon payment of money into Court. All that was
sought by the payment of money into Court in such
cases between party and party, was security ; and
if that could be given without such payment, per•
haps it would be considered sufficient.
The Court rose at three o'clock, and the further
hearing of the case was put off till to-morrow.
There are two other Counsel to be yet heard for the
plaintiff.

ARCHES' COURT, Nov. 19.

In this case, which was a suit of separation pro-
moted by Major William Meadows Hamerton,
against Isabella Francis his wife, on the ground of
adultery committed by her with Mr. John Bushe,
Sir John Nichol yesterday gave sentence. This
case has been already heard, when the Court was of
opinion that the evidence did not amount to judicial
proof of adultery against the wife : but, on the other
hand, the suspicion against her was so strong, and
her conduct was so imprudent and culpable, that
the Court considered it was due to the husband to
rescind the conclusion of the cause in order to admit
further evidence of adultery. The allegation now
given in stated, that from January till June, 1828,
Mrs. Hamertorr lived in lodgings, at Paris, attended-
by one female servant; that Mr. Bushe was also is
Paris, and in the constant habit of visiting her,
dining and staying till ten and eleven at night; that
in the latter end of May, Mrs. Romer came to Paris
and lodged with her daughter, and Mr. Bushe then
discontinued his visits ; that they set off to Switzer-
land, returned to Pal is, and resided there still,though
their place of residence cannot be ascertained. The
question is,whether the former part of the case is proved
by the evidence under this allegation ; and coupling
the evidence of the meeting of Mrs. Hamerton with
Mr. Bushe, in Paris, with their former intercourse
at Cheltenhan, whether it established the adultery
sufficient to satisfy the judicial mind of the Court.
The Learned Judge then stated the material points
of the evidence now under consideration, and ex-
pressed his opinion that it was consistent, observing
that no explanatory account was offered by Mrs.
Hamerton. It was clear that every effort had been
made to obtain the evidence of Julie Meyer, and it
was not apparent that any other witness could be
procured by the husband. It was unlikely that the
owner of the house knew any thing of the matter;
the perteress was the most likely person to know of
Mr. 13ushe's visits ; and if her evidence was un-
impeached, it left no doubt in the mind of the
Court, coupled with the former evidence, that the
parties had been guilty of adultery. On the other
hand, evidence might have been produced on the
part of the wife to show where she had been all the
time, and to contradict the depositions of the wit-
nesses; but no contradiction whatever was offered.
Without imputing perjury to the witness, and su-
bornation of perjury to the husband and his agents,—
unless collusion were presumed on the part of the
wife, the Court was of opinion, taking the whole
evidence together, that the husband had sufficiently
established his case, and it pronounced for the sepa-
at ion prayed.