The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1838-03-27 00:00:00

SMITH V. WALSH

Mr. Cresswell and Mr. Wightman appeared for the plaintiff,
and the Attorney-General for the defence.
The declaration stated that the defendant was indebted to the
plaintiff fur money had and received for the use of the defendant,
which the defendant said he had nut received, on which issue
was joined.
Mr. CRESS WELL, in opening the case, said this was an action
arising out of a contract for the sale of shares—a description of
action very common in Liverpool within the last two or three
years, in consequence of the large speculations in shares. The
defendant was the manager of the Northern and Central Bank
Branch at Liverpool, and also the agent of Monk's Ferry Com-
pany. Mr. Walsh took upon him to sell some of those shares,
when the price was £6 lOs per share. The proceedings of the
Monks Ferry had been arrested in consequence of an action
pending to be settled at the present Chester Assizes, to ascer-
tain whether the company had a right to establish a ferry or
not. In consequence of this. shares greatly fell in price in the
market. In 1836 Mr. Walsh took upon him to sell ten shares
of the company allotted to Mr. John Fernley, of Manchester
Mr. Smith became the purchaser for £65 lOs, which sum found
its way into Mr. Walsh's pocket. Mr. Smith desired to have
tht, scrip. He was told that. Mr. Fernley had not executed the
deed,,and until he had done so, he could have no, property in
the scrip. This Mr. Smith thought very strange, and after
applying several times in vain, a notice was sent to him that
another call of £2 per share was made in March, 18.37, with in-
formation that unless the call was paid within a certain period
the shares would be forfeited. Mr. Smith, in order that they
might not be forfeited, paid that amount into the bank to Mr.
Walsh. Ultimately, it turned out that Mr. Walsh had no shares
to dispose of, and that Mr. Walsh had altogether repudiated
these shares. Mr. Smith then wrote to Mr. Walsh, saying he
could get nothing for his money, and therefore begged that he
would pay him back his money. He received fur answer, thir-
teen months after, when the shares had fallen in price to £2 lOs
per share, that Mr. Walsh was ready to transfer other shares to
Mr. Smith, the scrip of which he could get, and which he had
never refused to do. But this would not do. It would appear
that Mr. Walsh had no right even to transfer these shares.
Mr. John Middleton, assistant to Mr. Barber, of Liverpool,
sharebroker, on his examination stated that Mr:Barber, bv the
instructions of Mr. Walsh, sold ten shares in the Monks Ferry
Company to Mr. Smith. He produced the sale note—" Mr.
Thomas Smith bought of Thomas Barber, from John Fernley
originally, 10 Monks Ferry, £5 per share paid, at £6 lOs per
share, making altogether £65." .Mr. Smith applied to ham for
the scrip, but he toid hint he could only give hint the banker's
receipt for the call, in the name of Fernley, and that the scrip
'would not be issued by the company until the deed of settlement
had been executed by Fernley.
Cross-examined.—Smith told Mr. Bat ber to sell the shares
for him, but Mr. Barber told him his limits were too high; he
could not sell theist at that price. Mr. Smith did not himself
wish to take original shares, which he might have had instead,
as he did not wish to sign the deed of settlement, and be made
responsible for the expenses of the chancery suit.
lie-examined.—Mr. Walsh might have obtained other shares
on which be could have got the scrip if he had thought fit.
By His Lou DSHIP.-Mr. Walsh had offered to transfer Mr.
Smith other shares iu the place of these 10, but Mr. Smith, the
next time he came, demanded his money.
A tender of 10 other shares by the plaintiff's solicitor to the
plaintiff was put in and read, and the scrip purported to be exe-
cuted by Mr. Walsh and Ms. Curet.

Mr. CKESSWELL handed in a letter, stating that Mr. Curet
had not executed the above deed conjointly with Mr. Walsh.
The ATTORNEY-GENERAL then rose for the defence. He
designated the action as a most shabby attempt on the part of
the plaintiff. The plaintiff had bought the shales, and after en-
deavouring to sell them in the market for twelve months, on the
action against the company ripening, turned round, and said,
'Now I won't have the shares, I will have my money." He
wondered if the shares bad risen in the market, whose shares
the plaintiff would have said they were.
His LORDSHIP, in summing up, said the plaintiff himself had
shown the consideration ou which he was to have the shares,
to go to market with them the same as Walsh; and he must
say he thought the defendant was entitled to a verdict. The
plaintiff had adopted the shares as his own so long as there was
a chance of sale in the market. It was then too much for him
to turn round and say he would not have the shares.
.The jury returned a verdict for the defendant.
Mr. CaEsswELL gave notice of a new trial.

IH`CLURR /7. FRASER.
Mr. Alexander and Mr. Wightmau appeared for the plaintiff,
and Mr. CreSiwell for the defence.
`Fhis was an action brought for the recovery of £45, on a gua-
rantee furnished by the defendant, who is a respectable draper
in 111MIchester for goods furnished by the plaintiff on.the gua-
rantee of the defendant, to a Mr. Jardine, who, in 1836, made a
composition with his creditors, leaving the plaintiff a creditor
in the amount sought to be recovered, for which' the plaintiff
came on the guarantee.
It appeared that the plaintiff had accepted the dividend of
10s. in the pound, from Jardine, on £9O, and had given a dis-
charge in full.
His LORDSHIP said the obvious meaning of that was, that
there was an end'of the debt.
Plaintiff nonsuited.

SCUTT V. FOSTER.

This was an action for an assault. The parties reside in Man-
chester. It appeared that the plaintiff, Scott's father, who was
a schoolmaster, not being able to obtain a debt of £lOO, em-
ployed the defendant, who is an attorney in Manchester, to
recover the debt. The defendant obtained about £7O of this
money, but as Mr. Cresswell, the counsel for the plaintiff ob-
served, it sometimes happened when money got into the hands
of an attorney, unless of first-rate respectability, there was much
difficulty in getting it out again. The plaintiff agreed to receive
payment from the defendant for the money which he had received,
by instalments; and as one instalment the defendant gave a bill
for £l5, which was not paid away; and when this became due,
the defendant sent his clerk with a £lO note to the plaintiff, in
order to recover possession of the bill. The plaintiff refused to
give up possession On receipt of this, saying he must have £5
more. The clerk then endeavoured to obtain re possession of
the £lO note, but the plaintiff said "No, Mr. Foster owes my
fattier inure than this, and I will not give it up ;" whereupon
the clerk went away and laid a charge of felony against him at
the Police-office, for stealing tne £lO note, on which charge he
was next day taken into custody, and brought before the magis-
trates, who dismissed the case as one of disputed property,
and not of felony. It was for the assault of taking the plaintiff
into custody, and the imprisonment thereupon, that the action
was brought. Witnesses were called to prove the case, when
his Lordship interfered, and said he was clearly of opinion that
there was no pretence to a felony in the taking of the note,
which was endeavoured to be proved on the cross examination
of the witnesses.
His Lottosule said the defendant's plea of felony was not
made out, and the verdict must therefore go for the plaintiff.
was the question of damages. It really was a
pity that
othnalyt
thing
actions of this kind were brought, and respectable
attorneys, when applied to about such actions, ought to say.
" von, if you get a verdict will get very trifling damages, and
will be put to great expense, while I only shall gain by it." He
thought the damages ought to be very moderate.
Verdict for the plaintiff a farthing damages.
His Lordship refused to certify.
The court then adjourned at a quarter to five, to nine o'clock
next morning.

CROWN COURT.—SATURDAY.
Mr. Justice Patteson took his seat nine o'clock.

HIGHWAY ROI3BEHY,
James Turner, aged 21, was charged with having, in company
with others, at Great Bolton. feloniously assaulted and robbed
Thomas Taylor, on the 12th July last.
Mr. Cross conducted the case for the prosecution, and Dr.
Brown defended the prisoner.
Mr. Burrow, deputy constable of Bolton, on the Monday
after the robbery received a watch from Mr. Blundell. That
was in July last. He kept it about three months, and then
delivered it to Mr. Thomas Taylor, the owner, having previ-
ously marked it. He got it back in December last. In July
last, witness received information of a robbery frtim Mr. Taylor.
Since then had endeavoured to apprehend him. Apprehended
him in December last.

John Blundell stated, that he was a pawnbroker at Wigan.
In July last, he received a watch from his sister in law, Jane
Watson, who is his assistant. Witness gave it to Burrow, the
deputy constable of Bolton, having first marked it. [Witness
here examined the watch produced by Burrow, and declared
that to be the same.]
Jane Watson stated, that she was sister in law and assistant
with the last witness. On Thursday, 13th July, at half-past
eight o'clock in the morning, a person twilight a watch to her.
That person was William Hulme. •
. Dr. BROWN objected to the accounts of other person's for
which it might be assumed those persons had been made amena-
ble_,_being brought in as evidence against the present prisoner.
Mr. Citoss con.ended, that he had a tight to call such evi-
dence, if be proved .that the parties were together, and acting
iu concert.
His LORDSHIP decided that the evidence would be admissa-
ble when this had been shown. . _

Miss Watson went on to prove, that the watch was pledged
with her, and that the glass was broken.
William Redfarn stated, that on the 13th of July last, the pri-
soner, and those others, Hulme, Leach, and Sharpies, came to
his beer shop, in Wigan. They got seven quarts of beer, and
paid at first sixpence in copper. Afterwards two of the parties
got change of two sovereigns. As they were going out, the
prisoner at the bar offered him au old tashioned watch without
a glass, for twenty shillings. The watch produced was similar
to it. Witness followed them down to the Wellington Inn, a
bottle having been broken near the fire, which he wished them
to pay for.
Ann Green stated, that she lived in Bolton. She was in
Wigan in July last. On Thursday morning the 13th, about
eight o'clock, she saw the prisoner in company with three other
persons, Sharpies, Leach, and Hulme. She knew Turner.
Sharpies spoke to her. She asked him what. he was doing
there? and he said he had been coming from Bolton all night.
They went together to a public house, (the Shovel and Bloom)
Sharpies having said he would trust them. The prisoner ac-
companied them. Hulme said, he had a watch that wait without
a face, and he would go and get it repaired. He went and re-
turned. When he returned, he said he had been to three
watchmaker's shops, and he could not get it repaired. He went
out again, saying he would go again, and get it repaired.
Turner and Leach said he should not go unless he left security
that he would bring the watch back again. He left 7s. 6d. as
security with Turner. On his return, he said be had pawned
the watch for 10s. Turner then returned him the 7s. 6d. The
10s. was divided—each taking 2s. 6d. They tossed up for the
pawn ticket, and Hulme won it. They all then went away to
another public house. They then began to quarrel about their
money. Sharpies said he had not got his tights. Witness then
left them. She saw them agale in about ten minutes. They
were in a field quarrelling about their money. Witness was
merely passing. A man said the constables were coming, and
they all ran away. Witness was herself taken into custody,
but discharged. Mary Smith was with her.
Mary Smith corroborated the evidence of the last witness.
Thomas Taylor stated that he resided in Bolton. On the
12th of July last he was going to his house, which is about half
a mile out of the town, it was between eleven and twelve at
night, when he came to Bradford-square he was knocked down
by three or four persons; he felt a person's hand in his right
hand pocket, a purse containing two or more sovereigns, his
snuff box, and some silver were taken. Ilis hat and a silver
watch were also taken. On pulling off his boots when he got
home, the glass of the watch fell out of his boot. He had re-
ceived several injuries, a blow across his eye deprived hint of
the use of it fur several days. He was confined to the house
for five or six days in consequence of the injuries he had re-
ceived. The men ran away after they had robbed hint. Wit-
ness identified the watch produced by Burrow as his property.
He was certain there were two persons attacking him, but he
could not speak positively to more, he thought that there acre

more.
Cross-examined by Dr. BaowN.—lle was returning from a

Conservative dinner at Bolton, stud the wine hiffi
freely.
Dr. BROWN in defence of the prisoner, iniprAiif-it,pA.„
jury the uncertainty as whether the robbery wa !psit tc l 4 y
inure than two persons, the prosecutor not being able to
any person. nor to state exactly how many had robbed him: • ---
His Lordship said it was necessary for the jury to be eatisfier
that the prisoner was present when the robbery was committed
The Jury found the prisoner guilty.
Dr. BROWN called two witnesses, who stated that they had
known the prisoner for several years, and be had borne a g6od
character during the time.
'l'he learned J uoua said he should direct sentence of death tc
be recorded against the prisoner, hut he should recommend bier
to her Majesty's mercy, that his life might be spared. On wh-s
terms would depend upon the result of the inquiries that won't
be made as to what dependence couid be placed ou the evidencs
as to character.

HIGHWAY ROBBERY.
Richard Doran, aged 2U, and William Maguire, aged 21, were
charged with having, at Stratford, assaulted and robbed Jelin
Atkinson Simpson. and Ann Ransonie, of certain money :
further with having, at Manchester, stolen three brace of pis-
tols, and one cheese, the property of Daniel Rowden.
Sir GREGORY LEWIN conducted the prosecution ; Dr. BROWN
defended Maguire.
Mr. John Atkinson Simpson, (who did not wear the garb of
a quaker) was about to affirm, when Dr. Brown ablced him ii
he were one of the people called quakers ?. Mr. Similsou said
he was one of the society of Friends till about fifteen montru
ago, when, with others, iu consequence of some difference on
points of doctrine, he seceded; but he was still of the same
opinion with theist on the subject of oaths, and oil nu °the;
point. The secession arose out of some disputes iu which
Crowdon of Manchester was concerned. In point of fact' la,;,
was nut a Quaker.

Sir GREGORY LEWIN contended that under an Act 3d and
4th William IV., individuals of the persuasion called Quakers,
might make the affirmation. The 'words " Quakers and 1110-
ravians" occur►ed in a former Act of Geo. IV. and the wor is
"of the persuasion• called Quakers" constituted the difference
between the two Acts. It was clear therefore that all persons
who were of that persuasion, though nut, iu fact, belongin, to
the society. were entitled to affirm. •The information would lie
receivable if it were equally binding on his conscience as'au
oath.

Much loose discussion took place on the subject.
His LORDSHIP said he had great difficulty in construin4
those Arts; but be thought the 3d and 4th of William IV. was
intended to extend the liberty of affirmation to persons
eluded in the former acts. The thh of Geo. iyirk,owever.
precise in its terms, that every Quaker should *nuke the afli!...-
atiou. The form of the affirmation was also made part!clt-
far form. And be should put these questions to the witness:
" Will you make the affirmation in these words,—"l, jam/.
Atkinson Simpson, being one of the people called Quaker."--
Answer.--'• Nu."

- -
JunQE.--Will, you make the affirmation in those terms:—
" I, John Atkinson Simpson, being one of the persuasion of the
people called Quakers."

Answer. —" No."
The oath was then tendered to the witness in the usual form,
but he refused to take it.

His LORDSHIP then asked the witness if be bad any objec-
tion to to take the affirmation in general terms, as " I, John.
Atkinson Simpson, do solemnly and sincerely declare and
affirm," &c., and if lie should consider such an affirmation
binding on his conscience ?
The witness answered that he had no objection to such an
affirmation, and be should consider it binding on his conscience.
His LorinsitiP said that the only question would be, wherber
au individual would be indictable for perjury it he were fourd
to have spoken falsely after such an affirmation. He
was at present under an impression that be could not admii4er
the affirmation generally. He said he would, however, consulz.
Mr. Justice Colridge on the subject.
His LORDSHIP, on his return, said the other witnesses had
better be called, and Sir Gregory could see how far his case
would stand upon that evidence. Then, if he thought proper
to press the matter, he thought the best way would be to take
the affirmation generally, and afterwards refer it to the opinion
of the judges.
Cyrus Ancoek was then called. He stated that he was a
constable in the township of Hulme. In the beginning of
February, he received intorniation of a robbery, and in conse-
quence thereof he went with Mr. Boothby to the road between
Stretford and Hultue. They met those persons, ,Who, when
they saw theca, attempted to run away. They took the pri-
soner Doran, and found in his possession two pisto.s. He told
the prisoner, when he got to the lock-up, that he was accused of
having robbed a lady and gentleman. Ile said " I believe we
did." Witness then said " How much did you take froig,
them ?" He replied, " About 10s. in silver." He examine
the pistols and found them loaded with ball. The appearance
of one of the men who escaped corresponded with the desciip-
tion he had received.

William Boothbv stated that he was with the last witness
when he was out on the 2d of February. He saw that one of
the men was the prisoner Maguire.
John Smith, a constable of Manchester, stated that on
Monday, the sth of February, he went in search of Maguire.
He found trim in bed at his father's house. He told hint that
he wanted him for being on the Stretford new road on the 2,c10f
February. He was searched, and some keys and a fiat were,
found in his pocket. His box was examiued, cud a pistol, a
dagger, and a bag of powder were found. He said, "Those
things belong to Doran." This witness stated a conversation
that had taken place between Maguire and Mr. Thomas, the
deputy constable of Manchester, in which he (Maguire) said,
in reply to certain questions, that he and Doran had committed
the rubbery, and that they took two shillings from the gentleman
and that the lady gave them eight shillings.
Mr. Milne and 11Ir. Berwick, of Manchester, proved the de-
position of the witness and the statements of the prisoners ou.
examination before the magistrates
The statements of the prisoners were read us follows :
" Richard Duran says he has nothing to say further, tbau
that they took only ten shillings."
The other prisoner had nothing to say.
As the evidence was not sufficient to prove the case, his
LORDSHIP signified his intentiou of receiving the general
affirmation of Mr. Simpson.
Mr. Simpson was recalled, and affirmed.—He stated that l
was on the Stratford road on the 31st of January. Was will,.
Miss Ransoine. Two men came up to them. One of the men.
said " Stand and deliver !" and presented pistols. To the bcs'
of his belief Doran was the man who presented the pistols.
The other then took hold of him and felt in his pockets. Ila
had about 235. Some money was certainly taken as he had on
Is. left. They took keys and some other matters which thy"
returned. The lady gave them her money, requesting to be b 6•
lowed to keep the purse. They said they could nut starve, I
departed towards the turnpike.
Ann Ransome was called.—She expressed herself of the
same opinion as Mr. Simpson. She stated that she was in ca7.:.-
pany with Mr. Simpson on the 31st of January. She was
much alarmed. She saw the face of the man who presented tls'
pistol very distinctly. She believed Doran was the man, and
she believed Maguire was the man who took her purse.
Richard Vaughan stated, that he was a was a waiter at thi
sign of Pagauini, In Manchester, in January last. On the 31st
of January last the prisoners were drinking there together.
The jury found the prisoners guilty.
His LORDSHIP said he should respite the judgment tit he Lac!
taken the opinion of the Judges on the evidence of Ant..Simp•
son and Miss Ransoine. His own opinion was that the evidence
Would not stand good. The bid for the larceny had not come is
from the grand jury.