Court Of King's Bench, We...
The Times, 1824-02-26T00:00:00

'LAW REPORT. This was an action on thc casc against the late sheriffs of' London, for miaking a false return to a writ of *fcti fiacias, for 4081., sued out by the plaintiff, against the goods of a person named Goding, that there4were no effects within their bailiwick on which thev could levv. M r. WYLDE stated the case on behalf of the plaintiff. He shouid show that Alr. Goding, against whom the execution issued, was the landlord of the pubiic-house called the Pied Horsc, in Chiswell- street, and had, at the time of'the execution, goods to a large value. He understood the defence to be set up was a commllission of bank- rupt, founded on an act of bankruptcy prior to the execution, and which would overreach it if'valid. If such defence should be offered, he should he believed, be able to show tst the comnmis3sion was [rraunuient, and concerted wtit a view to defraud Goding's creditors. The learned counsel said he regretted his inequality in experience and power to Mlr. Searlett, who r:as opposed to him, but he was as- sured the jury would not allow ingenuity or eloquence to prevent thern 1roni doing justice. Mr. SCA aLETT said, that as his friend seemed to think the odds were so much against him-which was a mere way of speaking-he was willing to leave the case to any gentleman at the bar, who might investigate and determine the whole c-onmnission. Mr, WVYLDE declined this offer, as the case involved a question of fraud, which he thought the jury were best fitted to decide. 'Ur. SCARLETT observed, it was now clear on which side his friend thought the odds were. (A laugh.) For the pIaintiff it was proved that the goods in the house were valued at 3701. to Goding; that others were afterwards sent in that the plaintiff's execution was put in on the 13th of June last; that. before this time, goods were removed principailv to the house of Kirsham, the petitioning creditor under the commission; and the goods whicis remained fetched 2;01. when sold by order of the as- signees to an imcoming tenanit. .3ir. SCARu,.EIr adElressed thc iury for the defendants, and set up the commission anticipated by .3r. Wylde, as an answver to the action, whlicl lie Cxpected to support by proving a trading, a peti- tioning creditor's debt, and an ac; of bankruptcy, which his learned friend would be unable to impeach. In order to prove the trading, two persons named Kcrr and Smith were called, who severally stated that M.r. Goding had sold to them wine and spirits, to be consumed out of his premises, (which isiie- cessary to make a victualler a trader under the bankrupt laws), sonie rime in the month of AMay, 1823; neither was able to fiN the pre- cise period, but Smith thought his purchase was early in the month. To show an act of bankruptcy, prior to the execution, and stibse- quent to the tratding, Sir. Simiith was called. Hc stated, that early in Alay, lie was sitting in the bar of tl:e Pied Horse, whets Goding saw a gentleman named Odell approaching the door. (ioding retired, and directed his wife to sav he was not at homie. Odell then caomie to the bar, and asked Alrs. Goding for the differ- ence of a bill of 25. ; she said her husband was not at home, anA that she could iiot pay it, on which Air. Odell became angry, said he had called uiany timUes for his monev, and threatend to arrest her husband. The chief question, however, are4e on the petitioning creditor's debt. To prove this, a niote. dated the Ist of' May, 1823, whereby Goding promised to pay Kirnihain 10/11. oii deland, with 51. percent. interest, was proved by Mr. Heatheote. the subscribing witness. Mr. Heathcote stated, that he was the broiher of Mr. Kirsham's wife, and that having received the balance of a legacy which was not payable till lie attained his 25th vear. he came to London to establish himlself in trade. On his arrivil he resided with his brother-in-laIv, and lent him 3001., which he paid by a Bank-note, and for which nio secrity was taken. Is support of his testimony, a Bank-note for 3001. was produced, endorsed by Kirsham, and whici had beeii changed at the Batik of LEnglanzd. It appeare(d that Kirsham paid just at this time 193L for the purchase of'a business in time oil line. Heathcote, who witnessetd the note, was not present at the advance of the iiinney. For the purpose of reducing the daw,ages, Sir. Thompson, thc sheriff's-officer who was in possession, wvas called, and stated that AMr. Clarke, the plaintiff, requested hirn to keep himsself as private as possible, as le hoped to arrange tic affair. It was also shown that 1201. was paid for rent and taxes out m' the proceeds of the goods i for whlich deduction was claimed by the slierifft This wVas the case for the defendant. Mr. WyI.I)E, in reply, adduced evidence to show the iiuprobabi lity of Kirsham having lent to Goding the 1001. enc.v-tioned in thie note. It was shown that Kirsham was, in October, 1822, discharged under the Iosolvent Debtor's Act-that shortly after thc alleged loan, lic was obliged to pay his rent by instalmeents-and that he was now.1 in custody for debt ini the Kinl's Bench prison. Mlr. SCARLETT observed on this evidlence as aiPplCdlO to the whole case, and contended that the testimonn n' 1 Fh .A firmed as it was by the Bank-note, sufficiendy accountcod tor Kir- sham's possession of the money, notwithstanding his previous dis- charge, and that the loan, arxl neglect of Goding to pay, was a suf- ficient cause for his present distress. Alr. MrYLA; replied on the whole case, chiefly directing the force of his observations to the debt set up on behalf of the petitioning creditor. Ile dwelt on the circumstances that Heatheote, though called in to witness the note, was not called in to witness the adlvan'ce of money; that the note was exactly tor the sum necessary to sup- port the commission; and that Kirslham, thugh the ;gods were raudulentlv removed to his house, never received au; plart of the sum. Was it credible that Kirsham, having borrowed 3001. to begin business, and having paid 193l., would lend 1001. of tihe residue, and so leave himself with only 61. in the world ? It was clear that the debt was a fabrication, and consequently that the commission could not be supported. The lIOnD CIrrFF JUSTICE sunMned up the evidence, and left the jury to say whether all the three ingrediennts necessary to support the commission were proved. If eitler WdS not proved, the plaindif wa,s entitled to recover. If thley fountI a verdict for the plaintiff, they would consider, in estimating the dama*ges, the rrcomn4nenda- tion of the plaintiff to the officer not to appear, because if the goods were subrracted in consequence of' this request, the shieriffs ought not to be charged wirth their value. 'rhe Jusy retired for a quarter of nn hour, and tlten returned a verdict for the plaintiff-Damages 2301. nOWLInG V-. HICKS. Mr. SCAILETT heggel to mention this case (which is an action by Alr. Dowling, the short-hand writer, for a maliciotts charge of stealing a GlE SgOW paper1 containing a report of the dinner giver. to Aessrs. Brougham and benman, the property of the proprictors of The T7mes), and to request that it might he appointed Yor a pardi- sular day in the adjourned sittings. He wvas counsel for the die- fentlant, and as many witnesses were in town froni a great distance, who mustattend agidn, he wished that the precise day should be fixed wbets their attendance would he requisite. He did not wish, however, to displace other common jury catuses standing beforAit in *be paper, antd teteatbe proposed that it should be taken oli the last say of the. sittings. The Loxu~ OX EP. J.TtTacE said, that it would be bettePto get a special appomntment from tlie-ofice, te day for wliicir fiiiglht be ?seed on by the opios to attorne-s, Az. SCARLUTT ain2tia, and H .SU m p-eA . The sittings were adjottrno&to thr ApriL COURT OF KING'S BENCH, WESTMINISTER, FEB. 25. CLARKE V. L.UCAS AND ANOTHER.