The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1839-04-05 00:00:00

EMBEZZLEMENT.

Jamey Fowler, 18, was indicted for having embezzled the
sum of £lOO, the property of Henry Evans, of Oldham. A
second count in the indictment, charged the prisoner with
having committed a larceny. •
Mr. BBANDT stated the case to the jury. The prisoner
was chargea with having robbed his master. It was a case of
some difficulty with respect to any specific act of embezzle-
ment, but he might state generally, that the prisoner had
been in the service of Mr. Evans, at Oldham, and had left
his service a short time ago. During the time the prisoner
was in his service, Mr. Evans found that his receipts were
less than they were before : indeed Mr. Evans had reason to
suspect his honesty. A dispute arose respecting a sovereign,
and the prisoner left Mr. Evans's service. On the 31st of
January, a young man, named Worsley, a relative of the pri-
soner, was taken into custody, on a warrant of assault, and
in his posssession £202 was found. This he stated to the
police-officer—he had taken from a box belonging to the pri-
soner. He had opened a new shop in the Hillgate, and upon
being asked by Mr. Sadler, the constable, about the money,
stated that Worsley had broken open his box and bad stolen
it. When asked by Mr. Sadler why he had not given in-
formation to the police, he said he did not want any bother
about it, for he expected his brother would get him the money
back again. Mr. Sadler, after putting several questions to
the prisoner, hinted a suspicion, that he had robbed his late
master, Mr. Evans.

Mr. BRANDT called, as a witness, an old man, named John
Marshall, who stated that on the 20th of December he was
in the prosecutor's shop, when a person came into the shop
and asked for change for a sovereign. The prisoner gave the
change, and taking the sovereign from the counter, and put-
ting his hand into the drawer, the witness believed, from
the circumstance of not hearing the sovereign drop to the
bottom of the drawer, that the prisoner had taken the sover-
eign, inasmuch as he walked a step or two from the drawer,
and put his hand into his pocket.
Mr. Evans was next examined, and he stated that his
receipts during the time prisoner was in his service were
considerably less than they were before the prisoner came
into his service.

Worsley next was examined, and after stating that he had
taken the money from the private box, having first broken
the box open,
_ _

Mr. Sadler deposed to the statements made by the pri-
soner when he went to his shop. He stated that he had got
£3OO from his father. •

A person from a coach-office at Oldham stated, that on
the 14th January, the evening before the prisoner left Mr.
Evans's shop, he brought a carpet bag (which had evidently
been in the dirt) to the coach-office. Witness took the bag
into the kitchen and dried it. The prisoner took it away the
next day. The jury found the prisoner guilty.
His LORDSHIP said, in passing sentence, that from October
to January, it appeared the prisoner had robbed his master of
£3OO. A worse case he had never known, and the sentence
of the court WV, that he be transported for fourteen years,
and to be plaakd in the second class of offenders._

Job Shottin was indicted for having embezzled the sum of
£lO, the property of Thomas Gaskill of Manchester.
Mr. BRANDT stated the case to the jury; and two wit-
nesses were called, but the case not being proved, the jury
returned a verdict of not guilty. .
William Waterhouse, 41, and Roberl Taylor, 21, were
indicted for having, at Worsley, entered upon a certain
enclosed land in the night time, armed with guns and
bludgeons, for the purpose Of taking and destroying game.
The prisoners pleaded not guilty; but after the case for the
prosecution had been opened, the prisoners retracted their
plea and pleaded guilty.
They were sentenced to six months' imprisonment.
ALLEGED PERJURY.

William Lambert was indicted for wilful and corrupt per-
jury.
M. BRANDT stated the case to the jury. The charge alleged
against the prisoner was one of wilful and corrupt perjury—a
charge of a most serious nature against any individual. At
the spring assizes for 1838 an action was tried before Mr.
Justice Coleridge—the Assignees of Dutton a. Harding—
when the present defendant was called and swore that he saw
£127 paid on a particular occasion. The defendant was called
as a witness in that action, and he swore over and over again
that he had seen the money paid. The Learned Gentleman
then called

Mr. Cyril Turner Prescott, of Manchester, solicitor, who
stated that the defendant had sworn that he had seen £127
paid by the defendant in that action.
The JUDGE asked if the defendant had sworn that he had
seen £127 paid in one sum ?
The witness said, that he had sworn that he had seen the
sum paid by sums of £2O at once, when the real fact was,
that it was the same sum that had been handed backwards
and forwards until the amount ostensibly reached £127.
Mr. Thomas Dutton was next called, and he corroborated
the evidence of Mr. Prescott, as to the facts deposed to by
that gentleman. He also stated that it was the same £2O
which had been handed backwards and forwards between the
parties until the amount was ostensibly paid.
The Learned JUDGE having again asked whether the de-
fendant had sworn that he had seen £127 paid in one sum,
and the answer being in the negative, stopped the case, with-
out calling upon Mr. Wilkins to address the jury for the de-
fendant, and directed the jury to acquit the defendant. The
jury accordingly acquitted the defendant.
The Court broke up at a quarter before six.

NISI PRIUS COURT.-THURSDAY.
DEM:WEN V. EVANS.

This was an action of trover, brought by the plaintiff, to
decide the ownership of the stones and timber on the manor
of Rochdale, a quantity of which had been removed by the
defendant, and converted to his use. The defendant denied
the conversion of the property, and also that the property was
the plaintiff.
Mr. CRESWELL said, this was an action brought by the
plaintiff, as lord of the manor of Rochdale, to recover the
value of stones, which had been taken off the manor, and
converted to his own use by the defendant, who claims to be
the owner of the stones, materials, and timber, under a copy:
hold tenant. The defendant has cut down some timber, but
it is not the object of the present action to try the title as to
the timber, the sole object is to decide the right as to the
stones. The defendant does not dispute the question as to
the timber, although he is liable to an action for cutting some
trees down and which might be used to affirm the right of
the lord Of the mannor in this action. As, therefore, he
does not dispute the right of the lord to the timber, and as
the plaintiff brings his action merely to decide the question as
to the title to the stones, we will consent, on the defendant
paying a trifle into court for the timber, and to save the de-
fendant costs, that the sole question for_ the decision of the
court will'be as to the right to the stones of the manor. The
property in question, belonged to the late Lord Byron, and
subsequently came 'into the possession of Mr. Dearden, the
father of the present plaintiff, who is now the owner of the
property of the manor of Rochdale. The defendant, Evans,
commenced working stone in a copyhold tenement on the
property, called Steaner Bottom, which is now in the pos-
session of one Joshua Feilding, who was admitted a copyhold
tenant in the year 1826. There is no doubt but that the
property is a copyhold of the manor of Rochdale. Evans,
the defendant, is a contractor for public works, being
employed in the formation of the Manchester and Leeds
Railroad. He applied to a Mr. Lomax, who is agent to Mr.
Dearden, for liberty to use the stones in question, on pay-
ment of what he conceived to be a fair equivalent, thereby
acknowledging the title of the lord of the manor. The
steward and Evans did not agree upon the terms, and the
latter, without any communication whatever with any party,
began to work the stones, probably prefering the costs of an
action to the payment of the price of the stones. It is pro-
bable, that Mr. Fielding has assisted the defendant, Evans,
in thus disputing the lord's title, for the claim here set
up, is not set up on the part of Evans, but of Feilding,
the copyhold tenant. He (Mr. C.). wou d discuss the ques-
tion as between the lord of the manor and the copyhold te-
nant ; and in doing so, he would have to trouble the jury
with a statement of the law as applicable to such cases. Ori-
ginally a copyhold tenure was the lowest that could be :—the
tenant held at the will of the lord of the manor—the soil all
belonged to the lord—and on him alone it depended to grant
a title to the possessor to make any use of the soil or timber
on the property. The copyhold tenant held the land at the
will of the lord, who could discharge him when he thought
proper. Yet, in progress of time, though the will of the lord
was paramount, that will began to be regulated and governed
by the cusiom of the manor ; and if the lord allowed any
other custom to be introduced but his own will, the tenant
had a right to avail himself of that custom. So there arcs
copyholders in fee and copyholders at will, regulated by the
custom of the manor. There were instances of the tenure of
copyhold, in which the soil belonged to the lord ; and where
they found a copyhold tenement by court-roll, there was the
right to the use of the surface ; and by a custom of the manor
that prevailed beyond the memory of living man, some had
the right to cut trees, to work mines and quarries, and to
carry away part of the soil composing the inheritance of the
estate. Unless this custom was established by the .defen-
dants, they had no right to carry away any part of the realty.
If, then, he (Mr. C.) proved that this copyhold was held
from Dearden, and that the copyhold tenant had no right but
to the use of the surface of the land, the present defence
must fall to the ground. But he understood that the stones
were on the surface ; that they were not quarried, and that
there was no superincumbent strata, concealing the rock be-
neath, but that they were masses of stones, and cobs of a ton
weight, partly in the earth and partly exposed to view. These
stones Evans had cut up, and used for buildings, for sleepers
for the railroad, and for walls, &c. The question then was,
could Evans, or the copyholder he represented, carry away
masses of stones such as he (Mr. C.) had described ? Whe-
ther the stones were originally in the land, were thrown on
it at the time of the flood, or were in it at the first
formation of the island, is no matter of consequence, for
they cannot be considered in any other wsy than as forming
a portion of the soil. Suppose the copy-hold tenant were de-
sirous of making a garden, in another property, could he re-
move the soil upon which these stones were for such a
purpose ? Mr. C. here described the different description of
stones on the property, and proceeded to say, that in 1674,
a place called Reddishand, pasture was a waste of the manor
—the lord of the manor in granting it out, reserved all the
mines, quarries, stone, timber, &c. If then it happened that
these stones were carried to stenar bottom_ by any means, it
could not be qUestioned that they became the Lord's property,
as constituting a part of the realty. Although it was not his
duty at present, he would anticipate what the defence would
be, by stating what evidence of the right to the stones he
would produce on the part of the plaintiff- He could esta-
blish a prima facie case, by proving the right, and then he
would leave it to the defendant to show that an opposite cus-
tom pevailed; bat he thought he would show from the ear-
liest period of living memory, down to the present time, that
no custom prevailed in the manor authorizing the carrying
away of stones for the purpose of selling them. He would
admit, that the copyholders on the property had a right to
take stones for the purpose of farm-buildings, making fences,
for drainage and other similar purposes. One can under-
stand that the Lord of the manor would.give such permission,
and to those purposes, alone, did all existing rights extend.
None of the stewards who would be produced would say that
any stones were used for sale, except on one occasion by a
tenant, who was immediately interrupted. During the time
that Lord Byrom was on the continent—when his property
was in the hands of a law agent in London, who, perhaps,
seldom or never visited the property, stones may have secret-
ly been taken away for sale, but that would not establish the
customs, and warrant an interference with the rights and
claims of the Lord of the manor. The first evidence he
would give would affect one Fielding, who is the ancestor of
the present copyholder, and who supports the claim of the
defendant, Evans. In 1783, Jeffrey Lamas steward to Lord
Byrom made himself thus indebted to his Lordship as Lord
of the manor :

John Fielding Dr. to Lord Byron.
To a Year's' Rent of the Steaner Bottom Stone

Quary £1 1 0
Cr.
1784, Received one Year's Rent of said Quary,
from Fielding £1 1 0

He (Mr. C.) would also produce leases so far back as 1790,
renting not only the quarries, but the cobs on the property.
He would call witnesses who had worked on the property,
who would prove that they paid for the stones and cobs on
the copyholds. He would produce the tenant of a copyhold
tenement called Light Hazles, who had leased the stones as
well on as below the surface, and that he paid delf rent for
both. This practice, he would prove, had been carried on
down to the present time, by witnesses who recollected the
custom had prevailed for the last fifty years. Others would
prove the custom of the manor, as to the right of copy-
holders to use the stones for building, and for the purpose of
the farm, but that they were bound to pay the lord when they
carried away stones off the property. If proof of these facts
were given, he trusted, the jury would find a verdict for the
plaintiff.
Mr. Farrant, steward of the lord of the manor, was the
first witness called. He stated that the copyhold tenants had
no right, at any period, within Ins memory, to use the stones

on the property for any other purpose than for building and
farm purposes. The mines of coal, minerals, stone quarries,
and timber, of the property, were reserved to the lord of the
manor. The learned counsel was proceeding to question the
witness on other points, when
His LORDSHIP observed that, as the only question to be
tried was, as to the custom that prevailed in the manor as to,.
the removal of stones, the inquiry should be confined to that
alone.

Mr. WIGHTMAN for the defendant, stated, the question
was whether the stones, from their situation and position in the
soil, were a part of the soil, and, as he contended they were
not, whether they were not removeable by the copyholder.
A number of witnesses were then examined, who fully sur
ported Mr. Cresswell's statement. A lease granted by to
mother of Lord Byron, in 1803, to one Michael Hatley, of
Little Hazles, was then produced in evidence. It set forth
that all the mines, minerals, quarries, delphs of stones, or
slates, lying, and being therein, or thereupon, belong,
ing to the custom of the manor, to Lord Byron, as lord of
the manor. Then Hutley takes a lease of all the quarries
for fourteen years but in 1808, he and two others, who were,
employed with him, surrendered their interest in the saidlease. accord-_

Mr. WIGHTMAN, for the defence, stated that the question
resolved itself into one of law. The real defendant in this
case, Fielding, did not dispute the law of the case as ex"
pounded by his learned friend, who had correctly stated the
nature of copyhold tenure. There can be no question, that
the general presumption of right as to mines, minerals, &C.,
is in the lord of the manor. There were some manors, in
which the custom was for copyholders to take the stones on
and in the property for building and farming purposes ; and
there may also be some where the tenants may take them for
the purpose of selling them. Fielding, in this case, admits
that Dearden, the lord of the manor, has a general right t°
the mines, minerals, and quarry-stones ; but the question that,
here arose was, as to the peculiar character and position of
the stones called cobs. Mr. Fielding does not deny, he,
admits, that the solid rocks, which he (Mr. W.) would call
the very foundation of the earth, that composed this pro-
perty, belonged exclusively to the lord of the manor; and that
no tenant has a right to open a quarry, but for the repair ofi
tenements and buildings on the property. But they had
heard there was a certain description of loose stones, WI
came down from higher grounds, as it were, in showers, and
penetrate the soil; these, he contended, were not a part of the
soil, although they lay on it. The question is, has the copy
holder a right to remove these stones for the improvement?!
his holding; and if so, has he not an incidental right—a right
to dispose of them? He submitted they were of the Cl'
racter of personal property, rather than attached to the pro'
perty. They were loose chattels, and did not belong to the
soil, having*cidentally fallen from higher rocks.
His Lonhlginp.—lf a stone fell from the moon on the soil,
would it be larceny to steal it?—if a shower of meteoric stones
came down upon it, would a person be indicted for felony
who picked them up ? Possibly; the person who did so might
burn his fingers in more senses than one.. (Laughter.) HO
could he or the jury say whether the stones that had beell
used fell from the rocks, or were originally a part of the son'
No evidence of this nature had been offered. They could not
sever the soil.
Mr. CRESSWELL.—A case had been decided in the Court
of Queen's Bench, which was analogous to the present case.
Sand had been blown from one farm upon another, and the
person on whose farm it originally was went to take it back
an action was brought, and the court decided that as the WIC'
came there by natural causes, it became part of the soil.
His LORDSHIP said, that the stones which fell on the son,
became part of the soil, and subject to all the rights of the
soil. If the jury were of that opinion, then they should for
the plaintiff. •
The jury accordingly returned a verdict for the plaintiff"
Damages, Is. and costs.
scow v. CLOSE.
This was an action brought by the plaintiff, to recover the
sum of £1217 Bs. Bd., being the amount of a bill of exchange,
for £1095 3s. 4d., and the interest thereon (X 122 ss. 4d.)
which became due on the 20th January, 1837, and was then
dishonourec. The bill was endorsed by Messrs. Copeland
and Duncan, formerly Ship Agents in Liverpool.
Mr. CRESWELL, as counsel for the plaintiff, detailed to
the jury the circumstances out of which the transaction arose.
They were, as the learned gentleman premised, of a very
complicated nature, but, as a commercial question, it pre'
sented no features of novelty or interest.
While the examination of witnesses was in progress
His LORDSHIP suggested, that as the accounts were yell '
intricate, it would be advisable for both parties to determine
what facts were to be submitted to the decision of the court,
and then it would be competent for the superior tribunal tt;
determine the law as applicable to those facts. The presell ,
investigation would have anything but a satisfactory result,
and he therefore suggested the propriety of adopting this
course.
After some consultation of counsel with the clients, it is&S
mutually agreed to refer the case, and after having ascertain'
ed the principal facts in controversy, to submit them to the
Court of Exchequer next term.
Under the direction of his Lordship, the jury found a ver'
diet for the plaintiff, £2OOO damages, subject to an award to
be made by Mr. Kirkwood.
The Court adjourned at six, after hearing one more cases
which possessed no interest.