The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1853-09-13 00:00:00

prosecutor cert

tutor in the sum of £B5 4s. 2d. for loans, for which the
latter held delivery notes for wines, either in the hands of

merchants or in bond. The circumstances of the transac-
tions were as follow. At this time the prosecutor held
certain securities on wines for money lent to Mr. Thomas,

and Mr. Thomas, desiring a further advance of £64 from
Mr. Hughes, security for this advance was given by Mr.
Thomas, that gentleman giving Mr. Hughes a delivery
note for 21 quarter casks of wine in wood, and 20 dozen of
wine in bottle, which, at the time, were in the hands of
Messrs. Yearsley, of this town, merchants. On the 14th
of January, 1851, the advance of £64 was made by Mr.

Hughes on this security, and Messrs. Yearsley accepted
the delivery note for the goods, which Mr. Thomas
had signed in favour of Mr. Hughes. In order to show
the fraudulent way in which Mr. Thomas had been acting
towards Mr. Hughes, he might remark that, although Mr.
Thomas deposited, as security for the £64, the twenty-cue

quarter-casks of wine on the 14th of January, they found
that, so early as the .20th of January, six days after the
deposit was made, Mr. Thomas was dealing with this
wine, and that he obtained from Messrs. Yearsley one
cask of the twenty-one quarter-casks, and on the 23d,
three days subsequently, he received four or five more of
the casks • and, in April and May, no part of the £64
having been repaid, he got a still further lot of the twenty-
one quarter-casks out of the hands of Messrs. Yearsley,
so that, within a few days after he obtained the loan, he

had deposited as security for it. But the particular charge
which he made against Mr.- Thomas was previous to this
date. At the end of 1851, Mr. Thomas required a further
advance of £2OO, and that being a large amount, a calcu-
lation was eutored into of the securities on wines which
Mr. Hughes held, and in this calculation Mr. Thomas
set down the twenty-one quarter - casks of
according to his calculation, at £147, and

added to the other securities, he stated amounted
to £337 2s. However, he came now to the particular
charge against Mr. Thomas, and that was, that after
he gave Mr. Hughes the security on the twenty-one
Quarter casks of wine, he obtained from him back wain a

document connected with a previous transaction, securing
two quarter casks of port and four quarter casks of sherry,
on a previous advance, which wines were in the possession
of Mr. Middleton, and which Mr. Middleton had accepted
to deliver to -Mr. Hughes, on the delivery note being
handed to him In Mr. Hughes's favour signed by Mr.

Thomas. This security Mi. Hughes retained
Thomas, and allowed him to take the wines from
Middleton's, on his representation that the security for

the twenty-one quarter casks at Messrs. Yearsley's,• with
other securities, covered the amount of his advance,
whereas it now appeared that at the very time that he

obtained re-possession of the security given for the wine'
at Mr. Middleton's.'he had already been dealing with the
wine at Mr. Yeargley's. After some further remarks, Mr.
Aspinall said that although there were two summonses
against Mr. Thomas, on two distinct charges, he intended
at present to confine himself to the charge of fraudulently
_ -
b'

obtaining possession•of the two quarter casks of port and
four quarter casks of sherry from Mr. Middleton's.

Mr: Mansfield said the question which seemed 4wo him
to arise was this, in whose possession the wine legally was
when taken from Mr. 'Middleton's.

Mr. Sratox said he was taken 13y surprise at the course
which had been adopted" by his.learned friend Mr. Aspinall.
It was quite clear that, if he did not intend to carry the
case any further than was indicated in his address to the
court, the court could not commit Us (Mr. Simon's) client
for trial. There was no proof that the wine referred to
bad ever been in the name of any .one else besides Mr.
Thomas, and, therefore, if there was no transfer in the
books, the wine legally belonged to Mr Thomas, and would
go -to his general account with Mr. Middleton. There
must first be a false pretence, in point of law, proved
against Mr. Thomas, and this must 'be a fraud, because
this 'court could take cognizance of nothing but fraud.
Admitting that the transaction might involve a breach of
trusters between the parties, the law couldot take cogni-
zance ,of tb- cb- Iferred - Mr.

aarge .now prei against
Thomas. In order to substantiate the criminal charge,
it must be distinctly proved that Mr. 'Hughes had been
cheated,of his property ; and he (Mr. Simon) contended
that, according to law, it never was his .property. The
learned .counsel went nn

against Mr. Thomas was one which came peculiarly under
the act of Queen Elizabeth, referring to secret transfers.
According to that act there must be actual possession
proved in. addition to the documentary transfer from one
party to another, authorising the holder of goods to de-
liver the same. Mr. Hughes, in this ease, had never had
actual possession of the goods, and therefore there had
been no fraud. The learned counsel, in continua-
tion, argued to prove that nothing had been done
legally to make -the wine Mr. Hughes's property and if
he never had legally a property in it, Mr•. Hughes now
-could complain of nothing more than a breach of trust.
Supposing Mr. Hughes had purchased the wines, and had
attained an order to have them delivered to him, the
warehouse owner was not bound to obey that order, but

ver them or not according to circumstances. Mr. Simon,
after arguing the case at ,gre,at length, contended that the
criminal charge could not legally be sustained, and called
11J111.-§KPI.4KisAvAVA t(3 acceptea oy
Middleton, amounted to legal possession, and the wines
then became Mr. Hughes property, at least he had a
lien upon them, and Mr. Thomas had no power over them.
Here was the order slimed by Mr. Thomas to Mr. Mid-
dleton, ordering him to transfer the wines to Mr. Hughes.
Mr. Sniox contended that Mr. Aspinall had not an-
swered his argument at all. The statute of Elizabeth had
especial reference to transactions of this kind, and pro-
vided, that unless actual possession was taken under a
secret transfer like this, no fraud was committed by the
party so transferring afterwards taking possession.
Mr. MANSFIELD thought it was necessary for Mr. As-
pinall to show that Mr. Hughes was in possession of the
wine. He said that without prejudice to his right. What
he wanted was the fact of legal possession.
Mr. ASPINALL said that was clearly established by the
transfer, and by the fact of Mr. Thomas having afterwards
obtained the transfer back again, on the representation to
Mr. Hughes that the other securities covered the amount
of loan, which securities he had, however, in the mean-
time, been dealing with.
Mr. SIMON again contended that there was no legal
proof that the wine in question belonged to Mr. Hughes,
and confidently called upon the magistrates to dismiss
the criminal charge.
Mr. AsPINALL (addressing Mr. Mansfield) said, if he
had any doubt as to the legal possession which Mr. Hughes
had of the wine, he would hand him up the papers to prove
it, and adjourn the consideration of the main question to
a future day, in order to give him time to consider the
point.
Mr. Simox did not think his learned friend should con-
sider that his worship had any doubt about it. He (Mr.
Simon) did not think he could have any.
Mr. MANSFIELD remarked that he had great doubts
about it. There were several questions mixed up in it.
Mr. Simoiv.—lt is just because my learned friend leaves
you in doubt that I call upon you to decide at once against
proceeding.
After considerable discussion amongst the parties,
raised
MANSFIELD decided to consider the legal question
by Mr. Simon, and adjourn the hearing of the case until
to-day (Tuesday).
Mr. Simox, in that case, must press for the case at once
to go on, reserving the point.
Mr. ASPINALL opposed this application; and the fur-
ther hearing of the case was adjourned to this morning at
fen o'clock.
'There was a great number of witnesses in attendance,
on both ado, ;Deluding several attorniss and other
gentlemen.