The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1840-03-31 00:00:00

GRAYSO24 V. SHEPHERD

An undefended action, brought by Bevas Grayson, who
had been in the employ of the defendant, Edwin Sheppard,
a joiner and patent sawyer, to recover the sum of £B3 2s 6d,
the balance of wages due. The plaintiff was overseer, and
was to receive 5s per day. Verdict for the plaintiff.

HEYWOOD V. SCRIITON.
Undefended. The plaintiff, Mr. Benjamin Fenshaw Hey-
wood, a manufacturer in Manchester, sought to recover from
the defendant, William Scruton, a draper in Huddersfield,
the sum of £3O, the balance of an account stated. Verdict
for the plaintiff.

TOPLIS, THE YOUNGER, V. GELL.
The plaintiff, John Toplis, jun., is a tanner at Nottingham,
and the defendant, John Gell, a currier, at Manchester, The
action, which was undefended, was to recover a debt of
£lO3 is id, for goods sold and delivered.—Verdict for the
plaintiff.

HATTON V. WEBSTER AND OTHERS.
An action of debt, in which the plaintiff, Mr. James Hat-
ton, sought to recover from the defendants £23 9s 9d, the
account for iron and steel, together with interest thereon,
there having been a special agreement that interest should be
paid. Verdict for the plaintiff.

ASSAULT.—THE QUEEN V. SOWLER AND ANOTHER.
This was an action of assault, the particulars of which
have already been before the public. The plaintiff was Mr.
Jeremiah Garnett, the editor of the Manchester Guardian;
the defendants were Mr. Thomas Sowler, the editor of the
Manchester Courier, and Mr. Robert Scarr Sowler,
his son..
Mr. Cresswell and Mr. Brandt appeared for the plaintiff,
and Mr. Wilkins for the defendants.
Mr. CRESSWELL stated the case. He said that this was
an indictment which had originally been preferred by the
prosecutor, Mr. Garnett, against the two defendants, for an
assault. The defendants had thought fit to remove the case
into that court, and have it tried before a superior judge and
a jury, instead of the magistrates at sessions. He should
prove that the defendants had committed an assault of a very
extraordinary character, because he presumed that, if the
elder and younger Mr. Sowler were called upon, they would
consider themselves entitled to call themselves gentlemen ;
and yet they had acted in concert in this extraordinary as.
sault, one holding the arm of Mr. Garnett while the other
beat him. The occurrence happened on the 24th of July
last, at three o'clock in the afternoon. Mr. Garnett
was walking through St. Ann's-square, and when he had
come to the shop kept by Mr. Farmer, the younger Mr.
Sowler got to the front of him, with a horsewhip in his hand ;
the elder Mr. Sowler held the arm of Mr. Garnett, and the
other struck him on the head with the horsewhip. Mr. Gar-
nett struggled, broke away, and struck the younger Mi..
Sowler with his umbrella, as might have been expected. The
old man then again caught hold of the arm of the plaintiff,
who received another blow ; and he defended himself as well
as he could, till other persons came tip and separated them.
This was the ease which he (the learned counsel) should lay
before the jury, and leave it to them to decide whether the
defendants, one or both, ay or no, committed an assault upon
Mr. Garnett.
. .

Mr. Jeremiah Garnett was then called and examined. He
said—On the 24th of July last, at three o'clock in the after-
noon, I was passing through St. Anne's-square, which is a
very public part of Manchester. I saw Mr. Thomas Sowler,
and another person whom I did not then know, hut whom I
have since ascertained to be Mr. Robert Scarr Sowler. run-
ning across the square, apparently from the door of the shop
of Mr. Robert Sowler, which is on the opposite side to that
on which 1 was walking. I walked on without noticing
them. They came, up to me. Robert Scan Sowler had a
horsewhip in his hand. He spoke to me. and said, "lour
name is Jeremiah Garnett, or Mr. Garnett ?" 1 answered,
" Yes." At that moment Mr. Thomas Sowler came behind
me, seized hold of my right wrist, and said, " Now, Robert."
Upon that Robert struck me with the whip ; the blow lighted
on my hat. I broke loose from Mr. Sowler, and struck
Robert Scarr Sowler with my umbrella. He had just struck
me with the whip, and was raising his hand for another blow,
when I struck him with the umbrella. Mr. Thomas Sowler
interfered again, caught hold of my arm a second time, and
Robert Sowler struck me again with the whip ; the blow was
on the shoulder. It was my right arm that Mr. Thomas
Sowler caught hold of—the arm in wnich 1 had the umbrella.
I again broke away from him, and again used my umbrella.
I struck both of them two or three times. Robert struck at
me repeatedly with the whip, and Thomas came up to me,
sometimes as if he intended to seize my arms, and sometimes
as if he was going to strike me with his fists. This continued
until several individuals came up to us, and interfered. The
first person was Mr. Thomas Hopkins. The matter then
ended. . _ _

Cross-examined by Mr. Wii.iciN:; —Mr. Hopkins is my
brother-in-law.
The JUDGE.—CouId not this matter be amicably arranged ?
There seems to have been no great damage done.
Mr. WILKINS stated that he was willing to accede to any-
thing which his lordship proposed.
Mr. CKESSWELL said as this was a ease in which his client
had been insulted, his lordship would see that the offer of
accommodation could not be expected to come from him.
Mr. WILKINS said that he could not offer any apology on
the part of the elder Mr. Sowler, because he still denied the
charge brought against him.
The case then proceeded.
Witness.—Mr. Hopkins is my brother-in-law. He does
hot occassioually assist to write articles for the Guardian.
He has sometimes contributed one or two letters, but never
any leading articles. Recently, however, according to my
recollection, he has contributed nothing. He has not a share
in the Guaidian, nor is be in treaty to become a

t

shareholder. There has been a report to that effects but
there is no truth in if. I did not strike in a javelin fashion
with my umbrella. I never struck with the point downwards.
I used it like a stick. I had some reason to anticipate the
attack made upon me. No one accompanied me through the
square. I was not aware that Mr. Shuttleworth and Mr.
Hopkins were close behind. I have not admitted to you that
I was the writer of an article in the Manchester Guardian
calling the writer of an article in the Manchester Courier " a
crawling. cowardly liar."
Mr. WILKINS was proceeding to examine the witness on
this point, when
Mr. CRESSWELL objected to the witness answering with
respect to any writing, unless the writing itself was put in.
His LORDS fur decided that the objection was good.
Witness (in continuation) : The horsewhip employed by
Mr. Sowler was a very small one. I was not hurt. .
Richard Hall was then called, but he did not answer.
Mr. CRESSAVELL said to the attorney, " Call him on his
subpcena."
The attorney replied that he had not the subpoena with
him.

Mr. CRESSNVELL then intimated that the case was ended.
Mr. WILKE:vs addressed the jury on behalf of the defen-
dants. He said that they had heard the nature of the case
explained by his learned friend, and if, without uttering one '
word, he left them solely to draw their own judgment from
that statement, what, he asked, would be their opinion of
the case? The only person called in support of the case was
the person most interested, and whose testimony ought to
he received with the greatest possible suspicion. The trans-
action had taken place in the middle of the day, in one of
the most frequented parts of Manchester, and why had not
some person besides Mr. Garnett been called on to prove
the case? Had the jury remarked the extremely cautious
manner in which the witness had answered certain questions
put by him (the learned counsel)? His learned friend re-
marked at the time that the answer was a very proper one.
Of course it was, in a legal point of view ; it was just the
one which he (Mr. Creswell) wanted, because it would im-
pose on him (Mr. Wilkins) the necessity of calling witnesses
and putting in documents, which would give him (Mr. C.)
the right of reply. But he (Mr. Wilkins) should disappoint
him; he would neither call witnesses nor put in documents,
but confine himself to a very few additional remarks. Ac-.
tion was in all instances the result of motive, unless in the
case of idiots or madmen ; and did the jury believe that Mr.
Robert Sowler, for mere sport and pastime, ran through St.
Anne's-square, with the smallest horsewhip in his hand that
anybody had ever seen, for the purpose of tickling Mr. Jere-
miah Garnett, or did they not think that there must have
been some shameful outrage to induce the conduct which
had that thy been described? Some of the jury were no
doubt acquainted with the facts, and had doubtless antici-
pated, as Mr. Garnett himself had anticipated, that some-
thing similar to what had happened was very likely to take
place. The mode in which Mr. Garnett had been tutored to
answer the question relative to the article in the Manchester
Guardian might be the legal one ; but there were occasions
on which persons ought to be anxious to give the whole truth
to the warld, and not only do what was lawful, but what was
honourable. That Mr. Garnett had been horsewhipped was
well known, and there was no denying that the younger
Sowler was guilty, but that the elder was guilty he (the
learned counsel) denied. Mr. Wilkins then went on to
contend that the obvious reason why the elder Mr. Sowler
had caught hold of the right arm of Mr. Garnett was to
prevent him striking the younger Mr. Sowler with the
umbrella, and that the words " Now, Robert," instead
of meaning " Now, Robert, beat him," (the inference
attempted to be drawn from them,) meant, " Now, Robert,
escape while I have hold of his arm ;" and this con-
struction was supported by the admission of the plaintiff,
that he would again have struck the younger defendant, had
not his arm been held. To suppose that Mr. Thos. Sowler
had instructed his son to beat the plaintiff was absurd, be-
cause if Mr. Sowler had been desirous of having that done,
he himself was far more cap ible of doing it than his son, who
was a man of not more tl al half the dimensions of Mr. Gar-
nett. Mr. Wilkins mentioned, in conclusion, that the rea-
son why he did not call witnesses was, that he was afraid of
the extraordinary powers of Mr. Cresswell—his capability of
making "the worse appear the better reason," his sophistry,
his ability, and his power of working upon the minds of the
jury. He should, therefore, not give his learned friend the
right of reply. If any of the jury were acquainted with the
person of Mr. Hopkins, he begged that they would look round
the court, and then they would see at once whether the plain-
tiff was not afraid of calling even his brother-in-law in evi-
dence.

His LORDSHIP, in summing up, said that the plaintiff had
stated on oath the circumstances of the assault, and there had
been nothing in answer but the observations of an ingenious
counsel ; and the jury would say whether they would put
these observations, however ingenious, in opposition to the
oath of a man who, if he bad sworn false, might have been
contradicted by numerous witnesses ; for it ought to be borne
in mind that the fact of the transaction having taken place in
a public square afforded to the defendants the same opportu-
nity of calling witnesses as it. did to the plaintiff. The cir-
cumstance of publicity was therefore as much a reason for
believing as disbelieving the evidence of the prosecutor. The
ju►y had nothing to do with the occasion of the assault. If it
were true, as suggested, that Mr. Garnett had used the coars-
est possible expressions in a newspaper, or anything else, to-
wards one of the defendants, that formed no justification for
the assault. They were bound to give a verdict against the
defendants, whatever might have been the provocation given,
either by writing or speaking. The provocation was always
a subject of inquiry in settling the amount of punishment,
but had nothing to do with finding the verdict, unless the
provocation consisted of a previous blow. The answer on
which Mr. Wilkins had commented was a very proper one,
as they could not receive any evidence as to written or print-
ed papers, unless those papers were produced.
The jury immediately returned a verdict of guilty.
His LORDSHIP, having been requested to pronounce sen-
tence then, stated that he would consider, and pronounce the
sentence on the folloWing day. •

HAIGH AND ANOTHER D. BROOKES

This was an action brought by Messrs. Haigh and Fran- 1
ceys to recover from the defendant, under an undertaking al- .
leged to have been entered into by him, the value of three
bills, amounting in all to £9666 13s 7d, together with inte-
rest thereon. Mr. Alexander and Mr. Wightman for the
plaintiffs, and Mr. Cresswell for the defendant.
Mr. ALEXANDER stated the case, and after referring to its
unusual nature, said that this was an attempt to defeat the
just claim of the plaintiffs to more than £lO,OOO. In the
early part of 1837 the plaintiffs, who were cotton merchants
in Liverpool, were induced to sell cotton to a firm in Man-
chester, Messrs. John Leigh and Sons,,and the defendant,
who was in a large business, guaranteed the payment of three
bills. The guarantee was in these terms :—" In considera-
tion of your being in advance to Messrs. John Leigh and
Sons in the sum' of £lO,OOO, for the purchase of cotton, I
hereby give you my guarantee for that amount, say £10,000."
That guarantee was signed by the defendant. Not a long
time elapsed before the bills became due, and they were dis-
honoured. Previous to this, however, the defendant had
made an appliCation, for some reason or other, to have the
guarantee delivered up to him, saying that he did not like to
have his name attached to it. The plaintiffs said that they
had no objection to give up the guarantee, but they must be
protected against the outstanding bills. Mr. Brookes could
not deny that, and he said that he would take care of them,
provided the plaintiffs would give up the guarantee. This
was done, and then the defendant signed the following un-
dertaking •—" In consideration of giving up the guarantee
for £lO,OOO, I undertake to see paid, at maturity, the three
bills of Messrs. John Leigh and Sons." After the bills had
been dishonoured, of course an application was made to Mr.
Brookes on the subject. He, however, declined coming
forward, or making up the bills in any other way, and the
consequence was that an action was brought. That was in
June, 1837 ; but every difficulty had been thrown in the
way, and the cause, after having been in the Court of Queen's
Bench and in Chancery, had again come there, and he (the
learned counsel) hoped that it would now be terminated.
There was, however, one difficulty in the way. At the last
trial the original guarantee was asked for and produced, and
on production it appeared that there was no stamp on it. An
objection was then urged by his learned friend (Mr. Cress-
well) that the document was an illegal one ; but Baron Alder-
son was of a different opinion • and the plaintiffs got a
verdict. He'understood that the original document could
not now be produced—that it had been destroyed, and they
therefore had had a copy attested and stamped.
Richard Bosire was then called, and deposed that he was
a clerk in the office of Messrs. Haigh and Franceys. He
produced the undertaking, on the giving of which the ori-
ginal guarantee had been given up. He knew the hand-
writing of Mr. Brookes, and the signature was his. [The
undertaking was put in and read.] When that was signed
by Mr. Brookes, the guarantee was given up to him. He
(witness) had a copy of the guarantee.
Cross-examined by Mr. CILESSWELL.—He could not swear
whether the original document was stamped or not. He had
not the least recollection. He would not swear that it was
stamped.
To Mr. WIGHTMAN.—The copy produced is a true copy
of the original.
To Mr. CrtEsswELL.—Mr. Franceys read the original,
and he (witness) read the copy. All he knew was, that the
copy corresponded with the original, as read to him. The
copy was made on the morning of the day when the original
was given up.
The J U DG E.—And that copy is what you have had stamped ?
Mr. A L EXANDER.—Yes.
Mr. WIGHTMAN .—Put it in.
Mr. CRESSWELI..—No, sir; we have had no proof that it
is an examined copy.
The .1 UD GE.—The copy may by read, and then it will be
thrown on you to prove that the original was without a stamp.
Mr. CRESSW ELL then addressed the jury for the defence.
He said that his learned friend had been pleased to tell his
attemptedt ile, n
practised
( l taot
gross
rmoa
svp
sou
itde
fraud.
thet o Mr. Brookes
paymentro o ke
learned
0 f h s
at
justfr
ja t h
e n debt—that(ei hadl
stated
improperlyhe
that
a guarantee had been given by the defendant o.i the 4th of
contracted
tb
law.ruli
a} tbrlye
tlf
before
as;
q that,uNt ihtboeewe
eaert ew
thewa so given, Mr.
intended Mnor
liability Brookesof
considerationt wasile
geacuilfiaeirasraearonttnce: had
defendant was to be in respect of debts incurred after that
time, to secure future credit, and not to meet antecedent.
debts • because, if it was conceded that the
guarantee was for
antecedent debts, it was worth nothing. if the claim were
for goods furnished to Messrs. Leigh in furtherance of the
guarantee, Mr. Brookes would have raised no objection ; hut,
subsequent to the (late of that guarantee, another document
was presented to him, at the bottom of which some bills were
enumerated. Mr. Brookes signs that and goes away 'be , -
lieving, at the time, that the three bills were to become due
at a future period ; but on investigation it turned out that
one, for between £3OOO and .X4OOO had been due at a former
period, and the plaintiffs had thus sought to impose on the
defendant a liability to which, under the -first grant, he was
not liable. After remarking upon the evidence of Mr. Bosire,
who, though he was at the last trial, and was called upon to
the oint on which the case hinged,
give his evidence on. p
could not now 'recollect whether the original document was
stamped or not, Mr. Creswell said that he would not waste
another word on that subject, but at once call Mr. Hum-
phreys, who, he was certain, would give his evidence in the
straightforward manner becoming a gentleman.
Mr. John Humphreys, one of the attorneys.of the plain-
tiff, was then called, and examined by Mr. Tomlinson, who
acted with Mr. Creswell. The witness stated. that he at-
tended at the former trial of this case at the last Spring
Assizes, and remembered Mr. Cresswell having taken an
objection to the guarantee on account of its not being stamped,
but could not take upon himself to swear that it was not
stamped, as be did not recollect having seen it.
Mr. WIGHTM N here objected to the witness being exa-
mined touching a document not produced. The instrument,
he contended, ought to be
produced, in order that they might
know of what they were speaking.
Mr. CREsswELL said that his object was to prove that
the document produced at the last trial s the original gua-
rantee, and indentified as such,
not care a straw as to what was in thepaper.
The JUDGE observed that it would 'L
he necessary that Mr.
Cresswell should show that the document of which Mr. Hum-
phreys spoke was the document delivered up, or his evidence
went for nothing.
Mr. CHEsswELL thought he should do sufficient if he
proved that the paper identified at the last assizes by the
plaintiff's oWn witnesses as the original guarantee, was not
stamped.
Mr. WIGHTMAN submitted that that would not remove
the difficulty one jot. Mr. Cresswell was trying to connect
with this trial a paper, of the nature of which he had shown
nothing. What right bad he to say it was the sane paper
without producing it ? Let him produce it ; he had got it.
His LORDSHIP said that the difficulty ne felt was this.
The witness had stated that he had not seen the document
which was Produced, and therefore he did not prove that the
document of which he Spoke was the same as that which the
other witness had spoken of as having been delivered up. He
(the learned judge) did not think that Mr. Cresswell had