Star.
London, England, 1823-12-20 00:00:00

'hit portion of the undertaking. The receipt of it by
Mr. Rothschild must be- equally deemed his under-
taking to make good his part of the contract. [The
Learned Serjeant then proceeded to read the Scrip re-
ceipts in luestionl The neat matter which he felt it
necessary to state.to the Court and the Jury, was an
Advertisement of the defendant, Mr. Rothschild, which
had appeared in all the Newspapers of the 14th of Ja-
nuary last, which was as follows:-
4 NRAPOLSTAN LOAN FOR 1524.—Mr. N. M. Rothschild begs to

notify to the huklers at tie Deyeeit Receipts of this Loan,'that the
parties may 'either pay them In full on the Ist February next, ac-
cording to agreement, or that this period may be extruded at their
option, on condition of a further payment of to per Cent. on the
Stock being made, on the Ist February next, with the lonefeat du(
on the Receipts up to that day.
10 per Cent. on do. on Ist March next With-interest at the rate.
20 per Cent. on do. on 13th April next of • four per Cent. from
10 per Cent. on do. on 15th May next let Feb.-payable as these
And the remainder on 15th July next amounts become due.
" At the time the foregoing payment* are ntadc, the p trties will
be allowed to receive Bonds equivalent tt the amount mad.', or a.
nearly so as the case will admit. 'Foos c persons who intend aruit-
ling themselves of the extension bere gl.u:ted, az.: desired to leave
' their Receipts at Mr. Ileth.child's Counting-hou.:, any day between
the t2oth and esth in.t. in order that the same may b: duly marked,
end oilier Receipts prepared for delivery on the Ist February.
" New-court, Lunden, 11th January, iii;;;; "
The plaintiff -being, as he had already stated, the
possessor of some of those securities, and weing that•
advertisement in the newspapers, ati.bessed a letter to
\lr. Rothschild on the 21st January, 1523, inclosing to
him the six Scrip receipts before-mentioned, ansi stating
his iievis* to avail iiinaself of the terms offered by the
defendant in the advertisement, and requesting that
the necess iry certificates should be prepared. Thai
letter, with the certincates inclosed, was left at the house
of Mr.. Rothschild by a person who would be prod •iced,
and who marked them. Oa the Ilth March, the plain-
tiff, Mr. Hennings, received a letter from Mr. Roths-
child's attorney, upon which almost the whole ,if the
case turned; It bore the signature cf Mr. Greene, the
then attorney'of the defendant, and who being also his
attorney in the present actin; it must therefore be re-
ceived as the letter; cf the defendaiLt, Mri Rothschild,
himself. Ile mentioned that matter thus early, having
heard that an attempt would be made on the pat t of the
defendant to prevent the reception of that letter as evi-
dence, on the ground that the writer of it ought to be
produced; but such an objection could not be maintained.
—The Learned Serjeant then read the letter, which was
conceived in these teams: •
" SIR—I am desired by Mr. N. M. Rothschild to express to
you his surprise that you bare not yet maile the further payments
on the Neapolitan Scrip Receipts, specified in your letter of the
Ist of February last."
The letter went onto state, that however Mr. Roths-
child might regret that 'any unpleasant consequence to
the plaintiff, should resolt, yet his instructions to him
(Mr. Greene) were to commence proceedings at law
against the plaintiff if the payments were not made.
forthwith. That letter was signed by Mr. Greene, and
was dated 11th March, 1825; and.on the 14th of May
following the plaintiff tendered the balance on the Scrip
Receipts; but the defendant refused to receive it ; nor
would he refund the sum which bad been already paid
him. That Money was kept 'by .the defendant, Mr.
Rothschild ; and the plaintiff now sought to recover that
only which Mr. Rothschild Could not justly retain. l'f
this question should resolie 'itself into Mere matter of
law, the Jury Would receiie the opinion of the Learned
Julgerespectingthe nature of the verdict Which they
ought to return ; but here was a fact—a •man had re-
ceived money to fulfil an engageMent, which he has
not fulfilled. lie must fulfil theengagement, therefore,
or abandon the contract, and refund the money. Should
he satisfy the Jury of these facts by the witnesses he
,should proceed to call, he felt no doqbt that their ver-
dict would be for his client. . ..
George William Roberti exarninetl-.--I am clerk of the
plaintiff, Mr.laennings; and have been in his employ-
ment ten yearv. The six papers now handed to no are
subscribed by the defendant, Mr. N. M. Rothschild, who
-I_ have seen write. They are Neapolitan scrip certifi7
cates—EThey were then put in and read by the Regis•
trar3.—The amonntof the deposit paid on these certifi-
cates was 1,?351. Is. 9J. I saw the-advertisement in the
'Papers of the 14th January last. '
' [Here witness produced the adirerthietnent of the 14th Jan. which
we have already given In the; ststethern of -Mr. Scrje.int.PELL].
. The examination then proceeded=l left those six cer-
tificates at Mr. Rothschild's en a subsequent day in the
Lame month of January, together with a memorandum
describing them.- .The figures and words " 4,500 cht-
aats" were written on them by some-of Mr. Rothschild's
Clerks. The Words H P. C.F. kennings" were put on
by myself, at that clerk's request. I left it there for the
purpose of being duly marked, according to the purport
of this advertisement; and when I -had it back it had
been mat ke.d. I know of a letter being received by Mr.
Hemmings, dated the Ilth of plarch ; this-is that letter.
I do not know tha handwriting annexed to it.
Some discussion here arose about the admissibility of
proof, that tHe letter was written by Mr. Greene, de-
tendant's attorney, which terminated in the examina-
tion of - Bigby.—l am clerk to Mr. Greene; I have
been in his employment two or three months; but never
saw him write; Mr. Greene has'been prevented by ill-
ness from attending to the business of his office. I told
Mr. Druce, the plaintiff's attorney, that %%Greene was
ill, and that I would consent to po-tpone the cause.
John Druce examined—ls the son of plaintiff's soli-
citor; I took this letter to Mr. Gieene; I saw him,
'skewed it to him, and told him that I had come to sub-
piano him in this cause; when I shewed him the letter 1
' asked him did he recollect that letter? he said, " Mr.
A,shhurst can prove my hand-Writing." He law the
letter, but did not take it out of my hand: Mr. Ash-
hurst, I belieSe, is the partner of Mr. Greene; -I asked
him did he admit the letter ? he replied, " He had not
attended to the cause."
Mr. Serjeant Woomera rose, and opposed the receiv-
ing of the letter in evidence; and Mr. Serjeant Bohatet-
Guar, for the defendant, contended that this letter ought
not to go to the Jury.
Mr. Ponce t, for plaintiff, supported the objections.'
A long discussiOn ensued, when Mr. Justice Ilea-
ROUGH said he felt obliged to let the letter go to the
Jury; a.nd Mr. Serjeant V AuGlitAW said, he would enter

•
are .00 late;. you must go to my lawyer." Mr. Hem•
mings then said-14 Why, Mr. Rothschild, your lawyer
wrote me a letter." Mr. Rothschild beckoned with his

hand for Mr. Hennings to leave the room. On the
Sd of June I went again to the counting-house of Mr.
Rothschild to deliver a letter of Mr. Hemmings' to
Mr. Rothschild, and saw hint. (The letter was then
read, in which the plaintiff again tendered the balance
of -his-stock, requiting the pe.formance of the contract,
or the immediate tenon of the deposit paid on account
of it, and that if Mr. Rothschild did not comply in one
way. or other, the plaintiff would bring his action.) Oil
going into zhe ciounting-house of Mr. Rothschild, I said
to him 4' I have a letter for you from Mr. Hennings."
Mr. Rothschild opened the letter, read one dr two lines,
looked at the signature, and said. " I Dave rodiing to
do with you; I dun% know you who ate you ?" I said,
Mr. Hemmings' clerk."
Cr OSS -ex:t iiiiised by MT. Serjeant VA UGUAN•Mr.
H.enntligs bought the certificates in question from Mr.
Low. Mr. Ileituings was the creditor of Mr. Low ;
The debt was tiir4;iy' settled last December. Hem-
mings was not an otiginal holder of the Scrip, but got
:hem, as I alteady stated, from Low. Mr. Hemmings
w:ii epared to pay up the balance on la February,
and saw the advertkernent already alluded to. He had
money with which he could have Made a iayment, but
he made none. lam aware that about the Ist of Fe-

binary the Neapolitan Scrip began to fall, and conti-
nued to fall to the end of April or the beginning of
May. The entry of the French into Madi id caused the
Scrip to get up about eight per cent. since its lenmest
price. The certificates kept declining throughout the
months of February and March. Mr. Hennings never
sent me to pay up the balance upon those certificates
dining that period. I took the certificates on account
of Mr. Hennings from Low, at 77k, he being then out
of town ; they niay have fallen since to O. They were
[gradually rising at the time when Mr. Ilennings
'waited opon•Mr. Rothschild. • '
Re-examined.-‘Mr. Hemmings' bad advanced upon
the credit of those securities, before December last,
I
r 1,6001. namely, on the 16th November, 1822,
Mr. Justice Bunnoucn.—Do you mean to contend
that the deposit is forfeited ?
• Mr. Serjeant VAUGUAN—I do, my Lord, intend to
make it a part of my case, but I have other matter
upon which to reply for my client. I shall, in the first
instance, tender a bill of exceptions against the produc-
tion of Mr. Greene's letter.
Mr. Serjeant VAUGHAN proceeded to addresi the
Court and the Jury fur the defendant. He approached
the cause with considerable anxiety, not only on ac-
count of the large sum involved, and the rank of his
clienti but of the magnitude of the question to be. de-
cided. Ile was sure that Lis Le'arned Brother (Pell)
would agree with him that if the royal 'Merchant (as be
had described Mr. Rothschild) would consent to take
apon himself the evidences which Mr. Hennings and
others might similarly attempt to throw •upcon him, the
royal merchant would vet), soon sink under their pres-
sure. Mi. Rothschild was not present, being now, in
France ; he could not therefore' be influenced by any
delicacy towards that gentleman, to suppress the expres-
sion of his (Serjeant Vaughan's) opinion of him. (The
Learned Serjeant here pronounced an eloquent eulogium
on'the defendant, Mr. Rothschild, contending that his
credit, like the public credit, ought not to be attacked.)
—To the duce gents produced (the Scrip certificates)
the plaintiff was not a contracting party ; that was
however a point of law on which the Jury would have
the benefit of his Lordship's directions. That there
was not evidence to go to .the Jury, it was not for him
to say, whatever his opinion might be; he would there-
fore treat the evidence as if it reaily.we re entitled to that
notice. There was no privity of cotatact between the
plaintiff and the defendant. The plaintiff said, I want
to-recover the amount of my deposit. Did he say, I
want to recover the deposit paid by Mr. Low ? Mr.
Rothschild knew nothing of the plaintiff ; lie could
'only know his own contracting party. lie had no clnim
upon any one else; for those certificates being traus-
ferable, might, if the matter looked gloomy, be trans-
ferred to it beggar, as. was of every-day occurrence with
respect to leasehold property ; aad .hotild the terms of
the contract not be enforced, Mr. Rothschild night be
left without ally remedy, and be c-mpelled ep.4ear the
whole loss Limself. The Learned *rjeant nest refereed
to the conduct of the plaintiff, in omittipg for.
ward to pay up his instalments to thedefendant,while
the,Stock.in question was depressed, and his claiming the
performance of the contract on its taking a favoucabla
turn. The commencement of the late campaign in Spin,
by the French caused all Continental Stocks to fella and
eisnongst these the Loan in question ; the entry
,of. the
French into Madrid produced.tha re-action. It had
fallen from 77i to 67, and wbile\so depiessed the plaintiff
said nothing about the matter ; but the moment tare
market looked up, lie made the demand of the defen-
Ant which was the cause of the present action: The
-Plaintiff had omitted to :lay up his instalments—the de-
posit consequently became forfeited, according to the
terms of. the original contract; for unless so protected,
what man would be mad enouglito undertake engage-
ments of the magnitude v-hich the defendant,Nr,Roths-
chird, frequently was a party to ?
Mr.-Justice Butraouoir-'-Was there any deposit or
instalnient paid by the plaintiff?
Mr. Serjeant VAticriAsNone, my Lord.
Mr. Justice BURHOUGH—Why did you not cosine to
that point long since ?.
- Seijeant VAUGIIAN—I was coming to it, my tord.
A Juror—But Low paid a deposit, my. Lord.
Mr. Justice Bunnouon—Very true; but that is a
,point of conscience, not a point of laW. I fear, Mr. SETT
jeant Pell, I must nonsuit you-; for it appears there has
cot been a single shilling advanced by Henaingse and
your action is for money had and received. I cOnfeirise
that in point of equity you would have bete milled to
some remedy, but not by the present action?'
Mr. Serjeant Pad. said, he was prepared to pros* the
payment of 1,6001. by the plaintiff to the defendant, for
most certainly the paymebt made by Low of that so
must be taken as that of the plaintiff. ;• ••

..
nom a formal objection to its beinoxeceived. After a very long- discussion betivitelat* Litviiteri
is a ' nigby/re4zantined by the •Couter.--Messrs. Gcntlemen on hoth,sides, . . .
Na. Greene and Ashhorst were the ktioi ales of the defend- Mr. Justice Boa ROUGH recomMended thittsisli Id
eIL
• 4
th it ant, Mr. Rothicbild, when L first *lariat upon their consent to 1 special verdict. The question p .
it he services they are's* still.
.. . • . '
..1:: ther the plaintiff, who had not con_sifte4fwijli!.t.W. . gis
: lie Examination a q.,:rat,:,•lor reitlino4-94. the 14th of the Advertisement of thal.taiskluit. my he Andeffil.
y al- May, went witlititeplatali .tq bli'..ltotkrci:ild, whom mined to do, was entitle4to rect44lt WI iilegilitiire49l.llo
will WA saw. Mr. 14enaiagi :said he came to pay up or Mr, Serjeant PEA. ggiinntid?ttut 'dick .. ~
• , . . • ...• . • • . •
The receive bis Neapolitan certificate, and,on saying so, tea. VA i:b flap, reserV in§ his "rtifou
Neat. detect to Mr. Ittithschilcithe amount in Bankotes; ave. tiuns tbthe receptio of 014* ' er:s P
s ac. sum wits lt,s7file. and, a few shilliogs; that sum in- A .I:pc-cliff' vtviffel Vas din, gly& fcii ihe. is ,r '. • -
been. . . . . ..... ...
elnded the, iirincipt and ietrrest. of the whole sum. up. eluulages,*l93o. I ii. (d.. . ,• ,• .. '.... . :.:., i:,
... .. .. ... 11.-:.r2
posit to that d.{ j, for Alr, tielp..unig*, said sq w gr..Rot4rl . : . ~ • - a=alaMil • • ,..i. iiiiii
/ on. child, wbo-did not deity it: Mr AnifisthAdsiid--"Tit Uttl WOomooss,fias artiyed at IA baton—lli. * '
good hate nothing to do with yuu ; I dou't kuow iou i you brook street, from Nutislir. .
s .
.. .