Star.
London, England, 1806-09-17 00:00:00

profeffion, or refidence to the feller ; or filch as Mr •
lug a horfe, chaife, or the like, by the content of the
owner, under the promife and expeClation of its be.
ing returned, as in Semple's cafe, and then felling
or otherwife difpofing thereof ; but by n poffihility
could it be pretended in this cafe that Mr. Monte-
fiori ever expelled the Omnium transferred to Mr.
Daniels was to be returned to him. And even if it
could be proved that, at the moment Mr. Daniels
was palling his draft for this money, he did not ra-
pe& or intend it could he paid, fiat it could not be
legally confidered a fraud, nr'punitlied as loch, but
as a regular purchafe, the payment of which he I
could only be refponfible in a civil Init. I-his Learned j
Friend, after having, in effeel, admitted that it did
not come under even the Statute of Frauds in the
defeription of chattels, goods, or wares, contended
that it came within that Statote, under the definition
of merchandize. 13 .it this alto he would deny; for
whatever value the prorrty might derive in the efli.
matiun of Gentlemen of the Stork Exchange, it came
not within any defeription of merchandise in 'Lis
commercial country. it was a Ipecies of prop:sty
unknown in England before the palling of the Sta.
tote of b rauds, and confequently could never have
been contemplated thereby. It owed any effisnation
it had to the exifience of a national debt. But to
thew the ettimation in which the law held filch pro.
perry (which, however, he denied to belong to any
parl‘amentary fund) he cited Lara's cafe, from the
Term Reports, in which the Defendant was prole
carted fur a fraud in obtaining goods, chattels, and
merchandises, namely lottery tickets, upon falfe pre.
tences ; but it was decided by the Court, that lottery
tickets were neither goods, chattels, wares, nor mer-
chandises (although faleable for money), and confe-
quently the indißment was invalid. He cited another
cafe, before Lord MANSCIILD, of a brewer inclined
for a fraud, in felling a veffel of beer containing fix-'
teen gallons, and taking payment for the fame as
eighteen gallons. Bur, though the fall was proved,
it was there held by the Court that the brewer was
not indiftable for a fraud, becaufe it was not thewn
that he ufed falfe meafures in his ordinary Fortifier::
the thing was coat:feted as the effeß of mistake ra-
ther than fraud, and that, at worth, he was only lia-
ble to an anion of trnver for non-performance of
contra& Exaftly fo did he confider the cafe of Mr.
Daniels to (land ; for, if it were not in, there was
no man at the bar who knew better than his Learned
Friend, that according to the elablithed maxim of
law, fraud could not legally veil any property in the
perfnn fo obtaining it ; and if the Omnium rirchafed
by Mr. Daniels from Mr. Montefiori was a fra •dtr-
lent acmifition, nothing could be clearer than that
he had no legal right to fell or tranrfer it to utaers :
And that his Learned Friend, Marad of adviting
his client to purfue Mr. Daniels, to offer rewards for
his apprelienfinn, or to carry on a criminal profecu-
tion againft him, fhoold have counfelled his client to
take the readier and more certain cootie of an aeion
again!! the perking who purchafesl this Omnium of
Mr. Daniels, for the refloration of his property, il-
legally obtained from a fraudulent poffeffor, who had
no right to fell it. Mr. Cuestas, concluded a very
able and ingenious addrefs, by fubmitting to his Load
Ship, that as no legal charge of criminality could be
maintained againft his client (however ueprehenfsble
his condo& might be in a moral point of view,) he
was entitled to his difcharge. Not within?, howe•
ter, to prefs his Lordfhip to any precipitate decifion,
he would by all means with him to confult, if his own
mind was not perfeCtly fatisfied, the opinions of the
Recorder and Common &rjeant, two very compe-
tent authorities, and who he ventured to rely would
coincide in his opinion.
Mr. Corm- was about to addicts the Lord Mayor
for the profecutinm when Mr. Guayas. interpofed ;
and it appearing that Mr. Conti was retained againth
Mr. D. OD a feparate charge Mr. MaaavaTT was
allowed to addrefs his Lord Ship alfo in reply.
Mr. MARRYATT replied in fupport of his original
argument. He übferved, that his Learned Friend
had certainly adduced many ingenious arguments in
behalf of his Client. But molt of what his Learned
Friend had faid, would have been much more pro-
perly referved, in order to be offered in anvil of
judgment, upon the event of a cnnvihion, than pref-
fed now again!! the legality of a profecsution in which
he had nu doubt of fucceeding. The defcription
under which he originally cottfidered the crime of
Mr. Daniels to come, was tbat of a fraud, tinder
the Statute of the 3oth of George 11. ; and though he
had not, in his origihal argument, welled on any Poch
defcription of the property fraudulently obtained in
the prefent cafe, as ;oar, chattel:, or wart ; yet he
conficlered it as coming, to all intents and purpofes,
and by the accepted, known, and ethablifhed ufages
of modern commerce in the City of Landon, under
the defcription of rairchanZse. It was a property
bearing a form in which it might be bought, fold,
and delivered, like any other commodity at mil ket,
it was univerfally admitted to bear intrinfic value :
and was purchafed, fold, and delivered( for money,
or other valuable confideratians, in the known, daily
and conthant prahice of the Merchants and Bankers
of the City of London t and as well might his Learn.
eJ Friend have argued, that any other Species of mer-
cliandize or commodity, not ufually imported into
this country before the pairing of the dame of Frauds
could not afterwards, though becoming an article of
general importation and mercantile traffic, be con-
fidered within the view of that Statute, as that the
property in this cafe was Tint In. With refpeCt to the
complaint of his Learocsl Friend, that faith had been
violated with his Client, upon the compael entered
into with Mr. Fuller, he begged leave to fay, that
whatever authority Mr. Fuller might have poffeffed
or affirmed on behalf of Mr. Daniels lb other creditors,
or to whatever c0:14144ms he might have agreed as
on their behalf, he had no (rich authority from Mr.
Montefiori, who never was privy to, nor knew any
thing of the compaB, and confequently, could not be
bound to its obfervance, nor incur any juft charge of
ditbonour or ill faith in refuting to abide by it. Mr.
Montefiori was a very great toter, and moil (grimily
injured by the fraudulent conduct of Mr. Daniels ;
becaufe, altho' in the cafe of flock purchaled and not
deltvered,he might not be anfwerable to his principal,
yet in the cafe of aria fold and delivered, he became
himfelfa principal in the tranfaßion, and relponfib'e
to the perfons for whom he (old, and had :ability paid
them. It did, therefore, by no means follow, that
becaufe Mr. Montefiori, by the lieps he had taken, had
recovered a part of the property of which be had
_ been defrauded, he was theretprs not soder any obligs-1

, . •
tion, direct or implied, to enopoo tta the fraud and
forego a profecurlon, which, foe the fake of public ,
~ju@ice and public example, he had a much limegcr
obligation to fallow epi and even If so,oool. oft e
property had been recevered, convidion would math
as Ilrongly and cs jufily upon the remainder of the
fraud, as if Mr. Dar.iels had embezzled the whnle.—•
Notivithltanding, therefore, the ingenoity of itie
Learned Friend, his Lordfltip mug be ton concerto*
with the deci turns of the Criminal,Coorta, to echoer
Mr. Daniels, under loch circumfiances, or wakeless
any doubt which could make it neceffar y for him'to
call fr.r the opinion of the Recorder. The cafe was
plain and obvious; and he tru'leJ Iris Lordfltip would
cimmit Mr. 'Daniels, and leave the ifue to the Jury
of the country.

The Loan idsvos declared his unwillingnefs to al-
low fo impoortant a queflionh as the prefent andmilst•
edly was to reft rn his judgment, with mt receiving
the oily fsei,fißory kgal faneim, that of the orkion
of .one of the Judges. In addirion, however, to this
i .n, which he very flrongly felt, he could nor
forbear trom frying that lie was thoroughly fatisfied
in his own mind that here the m-11 complete fraud
was not only premeditated, boat carried on, and per-
fevered in, from the firil to the fall of the tranfailion.
lithe Clime committed was any thing, he was of opi-
nion that it amounted to felony. He did not fee that
it could be conttrued into an r ffence at Common
Law, n +r yet could he gn into !he idea that Omnium
was merchandize, and of courfe that it was a Re-
tutable fraud. He agreed, however, in the dodrine
fo well and diflintly laid down by the Learned Judge
who prefided at the trial of Major Semple. That
Learned Jodge had given it as his opinion, that where
fraud Was intended, and formed part of the traafac-
tion, no transfer of the property could take place I
and that wherever fraud formed a conflituent part of
a contraß, fuch contra& was gond for nothing. In
both of thefe predicament. he viewed the prefent cafe
to (land. The foppofed bargain by Daniels, for the
Omnium in queftion from Mr. Wontefiori, had been
commenced, carried on, and ended in fraud, of courfe
as legal transfer of property from Mr. M. to Mr. D.
had taken place, and the contra'st being alfo built on
fraud, and of courfe unavailing, the fiabfequent failure
of Mr. D. to implement what he had flipulated for. •
as the pretence on which he had received the Om-
nium, could not be rednced to the mere breach of a
cnntraft, where no contrail citified, but refolved into
an aft of felony.
Mr. Guam then, with the content of his Lord-
fhip, alked
A Montefioti. whether the prifoner had
not, a few y, before the soth, defired him to fell
thin th-yck for him, if he could do it without a lofs ?
And was anfwered in the affirmative.
Mr. Guam sr then fubmitted, that from this, it
was fufficiently evident, that Mr. Daniels did not mi.
ginally intend to aft as lie afterward. clod.
The Loa o Marna faid, he ffinuld rather confider
it as a proof of a deep laid fcherne, for the purpofc of
throwing Mr. Montefitori entirely off his guard.
After fome pi ivate eonverfation between the Coun.
fel, it was then agreed; that the prifoner fisould be
remanded until to-morrow, at one o'clock, and then
brought up for the purple of having the depolitions
read over before him.

Mr. Daniels was dreffedin black, and flood at the
bar with his tight hand in the breall cf his coat.
dining the whole of the examination; his eyes were
fixed on the ground, and his v.rintenance WAS unal-
tered ; nor did he, that we could perceive, change
his pofition, except once that he Itonped to (peak ro
Mr. Gurney. When he retired, he bowed to the
Court, and walked !lowly ; he, however, appeared its
puled health.
. .

• So great was the anxiety to fee the partner, that
the outfide of the windows (1 the Lord Mayor's
Office, was crowded, fo as to darken the to ,m, and
numbers were waiting in the different flreets leading
to Nzugate, in espedation of teeing him as he paffe4

The ben account that evrr appeared or South
America, in the Englifh language, is to be found in
Mr. Salm MIR'S elegant publication on the prefent Rate
of Peru, a work which was written in conneCtion with
Sir Hors POP HAM and General Mttawna, with a
view to the recent ezpediti ,ns that have taken place.
The Ezz gun brig has taken two valuable Spanith
prizes into Port Roy al, Jamaica.

Captain MACLAINE, of the .so .h Font, who was
the only Officer killed in the late aelion with the
French inCalabria, was a fon of GILLIAM MACLAIIII,
of Scallaffle, in the Wand of Mull. He highly 'Min.
guifhed himfclf in the campaign of mist in Holland,
and was patticulaily noticed in one of the anions
fought there by Lieut. General Moons. He after-
wards fervcd in the Egyptian Campaign, and re-
turned with his regiment to Malta. In the late glo-
rious battle, fought on the plains of Maida, Captain
MACLAINF bring ran the advance with the Light
Infantry, ha was the tirfl who charged the enemy
with the bayonet, and after putting thofe who op-
pofed him to the rout, fell, much lamented by his
Regiment.

The Honourable Major Maar, fig warmly recom-
mended by Major General Bartssroao to the favour
of his MAJOITT. is Ilse Honoorabl: Jour THOMAS
FITIMAUSICI Damp. eldeft ton ofLord Mus

- - - -----
DR UllY-LAN 2 —The Tragedy of Hawk was per-
formed at this Theatre, 101 l night. and attraaed an
elegant and crowded audrerioM The whole went off
with the greateit eclat. Several p:rfons of fifbion
were preterit. The Farce of tbe Nutrrourift followed.
Mr. Bawassrea, Mr. Wawitzta, and Mr. Puma,
were equally comic in their &vela' parts, and excited
continued burns of laughter.
Weymouth continues full, and the amutements
well attended. Among the many improvements in
that charming place, are the Hot Salt Water Bathe,
which are four in number, with every accommoda.
tioa requifite to In great a luxury. The Theatre
opened lalt night with !rives at they Were, and/be
Merry Mearrterr, by delve of Mr.. C Burros.
' brimicar 2222 .3SP it MIMI IC.-...1111s day we had a
great Trotting MAO for 203 guineas; Mr. Bell's eb.
male againtt time. She was en trot 16 miles in an
hnur ; the peat:limed it in ;9 minutes. There was s
great real of bet; it g on the match.
Sir of the unfortunate men, lately under teatimes
of death, at Lanealter, were on Saturday left ere.
cnted on the new drop, crated at the back of the
cagic.—The other it:ironers in the Celle, under
lenience of death, are relpitcd dating his Majears
pleature.