Court Of Chancery, Saturd...
The Times, 1824-01-26T00:00:00

LAW RRPORT. Atfidav,jts were ofelred by lIr.Uourlay, and the Duke's solicitors, respecting the plans which had been used on the trials at law, and which were now handed in for his l,ordship's use. The LoRD CHANCELLOR reftased to receive the affidavits, as the deponents conte5sed that they had not been in court at the time of the trial, and were, therefore, notcapable of swearing any thing posi. tively as to the proceedings. His L ordship expressed grave resent- ment on account of the conduct of the Duke's agent, in having ne. glected to verify the plans by the affidavits of persons who were in court, and had been called upon the trials. They had no right to deal thus with theCourt, and he would let them know that it should not be done with impunity. MIr. Gourlayaskedif he might expect judgment to be given on Alonday? The LORD CHA2NCELLOR said, that the conduct of the other party, in delaying to give him the information which he had called for, had made it difficult; but to the Lest of his ability he would cer- tainly give judgment on Alondav. EX-PARTE GRSIMSTEAD, IN RE HOWARD AND GIB51S, B.NE- RUPTS. Mfr. MowTAG UE resumned his trgument in suoport of the peti. tion. He applied himself to the argument of the improbability that Grimstead should have had so much confidence in Gibbs as to trust him to the degree described In the petition-which argument wag supported by a notable proposition that might he fairly stated thus: "' Ar. Grimstead could not have had so much confidence in llr. Gibbs as you describe, and therefore we may infer that he had a much greater confidence in him." In other words. Mr. Grimstead could not have trusted M2r. Gibbs to layout 32,0001. for him in an- nuities. without jealously watching the pass-book, and there- fore it is plain that he trusted him with that sum of money to be laid out at unlawful interest. Which was the more credible, that Alr. Grimstead, a simple couutry gentlentan, should have impli. citly trusted Mr. Gibbs with the laying oat of iis property, or thait Mlr. Grimstead, the usurer, being an experienced man of the world, should have trusted Air. Gibbs with his property upon a con- tract which he knew to he unlawful ? Digressiug from the matter of the petition, he observed, that whatever might be the fate of this question, it would be a solace to his mnind to the last hour of his life, that he bad spared no esertions to render this appeal effectual to the restitution of rights, of which he felt convinced that this unhappy gentleman had been most unjustlv deprived. Those who knewv him would readilyadmit that he cared not a farthing for money. He had laboured for months .n the mnatter of this petition, and he would not takea shilling of fee orremuneration from Mr. Grimstead, feel. ing that if he were to do so, it would be corroded with the tears of his suffering children. He stood there, not as counsel for Mr. Grimstead, but to represent the hanour of his profession, the interests of humanity, and the violated justice of his coun- try. He had been taught by early instruction, which strengthened into habit, not only to reverence the office of Judge, but to carry that reverence almost to an affection for the person possessing that dig. nity. He was confirmed in this by his reading and his experience, and by the aristocracy in which he was bred up. fie felt that " the place of justice is a lhallowed place ; and not only ought the benclh to be pure, but the foot-place and purprise thereof" ought to be free from suspicion or blemish. lVhen he spoke of the Vice-Chancellor's conduct in this case, therefore, be wished to refer to it merely as an error ofjudgment, and he wished to be understood as in nio degree abating the reverence he felt for the office, or the respect which he bore to the person of that Judge. He was a man of excellent quali- ties; no one was less capable ofbeing shaken by partial statements; and he liad one property which alwvays accompanied great minds-be was little tenacious of his own opinion when abetter one was profer. ed. This was a part of the character of great Judges. Lord Hale was conspicuous for it. Of Lord Bacon it was said that he lghted his torch at every nan's candle. All wise judges had availed them- selves of the experience of counsel. On the other h.1nd, there were mnany persons of high station who did their utmost to sink them into insignificance. Lord Bolingbroke declared that a barrister was not a whit more honourable than the meanest tradesman. and judges had been found to act -upon the same opinion. It was for the renovwn of the profession that these examples were taken from the very worst times. The amiable Judge Jefferies avowed it in the trial of Bax- ter. The Chief Justice who tried the seven bishops was honest enough to say, " If it were not for you gentlemcn of the long robe, we should have no difficulty in our way." But the verdict upon that very trial, after the jury rhad been out all night, produced an ef- fect upon the public mind at the instant, which was described in language that to this very hour made the hearts of Englishmen to thrill with pleasure; it was received in the lhall of Westminster with shouts " which cracked the roof." But, to return to the Vice.Chan- cellor's judgment. If there was one duty niore binding upon a judge than any other, it was that ofhearingtheplaintiffseate his whole case. WVas it ever heard of, that before the counsel of a petitioner for justice could fully make known the thing which he claimed, that the Court pronounced upon his case-that it condemned his condupt and character-that it doomed to ignoniiny and infamy-that it re- ferred him to some other tribunal with sentenceof condemnation about his neck ? Despatch was a flne ingredient in justice bt surely it was never understood to mean desmatch of the ives and for- tunes of the subjects upon a cause unheard, a question untried. First of all there must be cautious examination ; and upon all the trut'h being revealed, then caine in grave and dispassionate deli- beration. The labour and thraU of a judicial mmid was not in giving directions as to what should bedone-there despatch was vlrtue-but in first discovering what ought to be done; and in this process caution was a virtue. Freintsm te ought to he written over every judgment-seat in the kingdom. "Let us stay a litte," maid one of the greatest judges in England, "that we may make an end the sooner." "Nulri ne adimu.e" was as necessary a consciousness to good judges, as"nzutd differemus." When Caisar doomed Metelus toinstantdeath,he paused after the sentence,and then said " Durine. minilloc dicere,quamfacere," which showed the terribleagony of his mind beforeitarrivedat thatfatalconclusion, andby consequencemade the chance of. altering it so much the more hopeless. Voltaire heard that an innocent man had suffered death,andheinquired the reas;anof it. The answer was, that the judgesi had made a inistake. "D Do they often make such mistakes ?" saidhe. There wasmentionmadebySir Edward Coke, in his Fourth Institute, of a court which once existed in this country, and whch he calls the Court of Trail Baton. The judge was required to try the causc, and deliver his judgment, in the time that another took to draw a staffround the room. " But the Parliament of England was of opinion, that justice was not so well done in these courts, and abolished them." The trailing of the stick was regulated in all probability by the disposition in which the judge found himself at tSe moment. This was-the acme of judicial speed, and would meet the 'demands of the loudest among the modern advocates for deps;atcl. Speediness in determining, however, was not themeritby which Lord B.rson estiipate the qua- lities of ajudge. Thatillustriousmashaddratlmer an oppositeopinion: he corpareditto the disordered economy of thelhuman body. " One falsejudgment corrupteth more than uar.y bad examples ;"' and then he went on to compare crude and hasty decisions in judgment to that habit of the stomach which physicians call predigestion. And in another essay, speaking of the hasty conclusions of physicians, upon diseases whi'h they deem mortal, he compares them to the proscrip. tions of Sylla, which wereexecutions withouttheetroubleofaccusing. hearing, and trying. He would now show how this disease df predi: gestion had affected the body of this case-how it hlad filled it with ill-hutours, with conslipation, tumours, and *gout, to the introduc- tion of apoplexy and deatb.. On the petition going before the Vice- Chancellor, he would not hear any more than ine counsel, and -de. clated immediately that the ease must be tned at law. He (Mr. lontague) humbly suggested to Ihis Honour, that it would be advis- able for his Honour, before finally determining, to read over the evi- dence, includingtheecarnirations beforethe Commissiosters; towhiel bsoorpe,afe ttnefi h ffiatlvgalt snae any differente {si Te deeisioa, he would take the patrrst binm but forhis own part he fearedthtljittle alteration would l,eeffqetedin hisopinion bythatineans, asitappeared tohimthata civiLcourtmight not be the fittest place for the trial of the question. On coming into court the next morning his Honour talked of' the imprudent siUg. gestions of counsel, ana said that he now felt convined that the pe. 6titoner's papers ought to be laid before the Attorney-General for criminalprosecution; fora case of more undaunted perjury, some. wlhere or other, he had never met with. And with this denunciation not only of his right, but of hib character and credit, the petitioner was ordered to bring his action in the Court of Common Plea,-ethc assivnee being directed not to set up the bankrup.cy againshre claim. In this state of things both sides prepared for the triaL The assignees found that they had not a leg to stand on - and a few daps before the day they camebaCc to theCourt andobtained an order for excluding the exaninatioII before the Comnmissioners from the evi- dence. There was no other evidencc cxcept the pass-book. The exarninations, 42 in number, were the rMost strenuous and trying that ever he (as a commissioner in bankruptcy) had witnessed, and they were the very cvidence upon whichl he had submitted his casc to the Vice-Chancellor. There was nothing to try if this were left out. He had advised the petitioner instantly to appeal. But as great expense liad been incurred in preparations, the petitioner was unwilling to wave the trial, and still resolved to pro^eed. The as- signees had used unreasonable delay, because there was nothing further to discover, connected with the case; and they ought to have been rcady for trial almost as soon as the order issued. They not onlv diI delav, however, bat they got an order for withbolding the sublstantial evidence. This was not al. They discovered that with the title which they had given to Gibbs in the declaration, they would be instantly out of court. They withdrew the record on the evening before the day fixed, and carie back to the Court, from which they obtained an order to change the action into an issue. Upin tbis, having succeedgd in distorting the whole aspect and ap- pearance of the case, they compelled the petitioner, upon what was called in the Common Pleas " short notice," to go to trial. The pro- ceedings had undergone sufficient comment from his learned friends who preceded him. The case was forejudged, and went to the jury destined to defeat. and with condemnatior. passed upon it. In cobs. clusion, he prayed that the Lord (,hancellor would take nDon him. self the decision of this case, wbich had now been fullv stated for the firsttime; and whatever that dedision might be, the blessings of the petitioner and his family would attend upon him. Nr. HonNE rose for the asSignees. If he occupied mucl time he hoped to be ercased, from thic great importance of the case, the strange and peculiar nature of it, the volutminous papers, and the great length of the argument set up on the o,her side. AmRong the topics to wlich he declined offering any answer were the pathos and declamation advanced by Air. MIontague on behalf of the sufferings andrmiseryofAr.rinmstead. Ifhe had becn called to exercise his el- quence and patheticdeclamation on thepartofthe creditors,how profit.. ablvheiniigthave enlargedupon the hundreds reduccd to poverty and indigence.from astate of cof,tortableindependence to which their past exertions had elevated them, by this most disalstrous bankruptcy. A.nother topic which he would pass by,werc the extraordinary,the ex- travaant denunciations of the qse of trial by jury in civil cases; ant the particular inapplicability of that mode of trial to the pre- sent case. If there ever was a case fit for the decision of an enlight-. ened speieal jury of London merchants, this, which was merely a question of account, was it. Itt was matter of taste for MIr. hlon| tague to say so much about himself. But he liad vastlh overrated the: consequence of an accidental expression in one 6f Mlr. Xorter's etters-." Ilontage can do it by a side wind"-words whicn allud- ea to a proposed stratagem for postponing the meeting of creditors. lir. Mlontague, whose character was too higi to be afdected by cen- sure or suspicion, felt so sore at this, that he threatened at the close of his remark-s upon that expression that " they should have a Roland for an Oliver.'1 This might hbe propert buE then he visited the Roland, wlhich should have fallen on the head of lir. Porter, on Mr. Shaw, and passed a long, though indirect, ealogiuD; on the ofFender, Alr. Porter. Ho was proceeding to complain of the hard treatment which Mr. Shaw had experienced at the hands of Mlr. Mlontague, though his conduct as ani assignee was most ex- emplary for integrity, and was, in the judgment of the creditors, al- together unexcepitionable. TheLoRD CUA)caC.LLoR was willing to give some latitude where chlaTacter lad been reflected --In, h1-.. -.r ,...d,i. * trouble in this case. Lr. Shawv's conduct was notimpeached, nor, as far as lie (the Lord Chancellor) was councerned, was there aniy thiing before him uporw which it ctould beealletl in question. Therquestion for himn to decide was, wvhcther or not the debt of Alr. Grimstead was tainted witlh usury; and Air. Shaw's conduct could bear upon that uestion only as it might be shown that he had at one timc consi- 3cred Grii,astead's tlebt as a good debt. 31r. HoRn2E was thankful, and would save the time of the Court by passing over that and several other topics, and coming to the main question-tfe nature of the debt, and the proceedings had upon it before the Commissioners and in the other Courts. The debt bdig rejected by the Commissioners, an application wasnmade to the Vice- Clancellor, tor whom he did not stand up to offer himself as coun. sel; but, undoubtedlv, the proceedings there had not been very ac- curately stated. So far from no counsel being heard, he had the short-band writer's notes of their speeches to the amount of 90 pages. Tue objection set up against the debt was, that it had been founded in ustinous contract. Asto the character given of 1r. Grimstead on this argument, of his being a dnlt-a mere prev or tool to Howard and Gibbs-it was not the same wvhich was given him in the applica- tion before the Vice-Ckancellor; and it did not very well agree wvith the condition of an elderly gentleman of 60, who had been for many years acting as a magistrate of Surrey. The real facts to whiclh the Court had to refer were, that MIr. Grimstead possessed a patrimnon v of about 3,0001. a-yearas long as he could content himself with lawful interest upon his property. e was brought into acquaintance witlh AMr.Gibbs,and advanced 60.0001.,as it was said,for the purchase of an- ruities. It appeared that 32,000L had been laid out in annuities, and 30,0001. remained in the hands of Howard and Gibbs. So far bo-h sides were agreed; and what the assignees charged was this-that air. Grimstead had upon this balance received more than ff per cent. interest. The ambiguous title of produce accomnanied the entries of ad the items of this usurious interest. The entries of the produce of the real annuities were all perfectly regular, specific, and tradesman- like. 'The entries under tbe title of produce, for items of thii usurious interest,were equally regular and uniform throughout all the pages of the ass-book. Thte LORD CHAyCEtLOR asked if there was credit given in the boot for the several sums of money advanced to Gibbs. AMr. HonsE sai(d he waa not awarethat those sums were so stated. The Lo nD CHANCELLOR said that ought to be distinctly ascer- tained, considering the nature of the charge in this case. As he had said on a previous day, God Almigilty forbid that this country should ever lose the advantage of trial by jur,. Buit trial by jurv of an issue sent out of this court was a very different thing from trial by jury in the ordinary sense. For in this very case, supposing Howard and Gibbs had not become bankrupts, and, Mr. Grimstead had brought an action against them to recover 60,000L, all that he would have to dlo in the first instance, would he to prove the delivery of the several sums into their possession, and they would have to clear themselves as they could. Now a question arose iipon this, which might be very material in the case: if this Court directs a trial at law, ought it to lend its assistance to elucidate the evidlence, and if so, should it not equally assist both aides ? In other words, ouglht the direction to p.roduce the pass-book to have been the onlv direc- tion of that kind in the issue ? For, in the ordinary case of an action. Ur. Grimstead would have got a verdlict, and the defend- ants must have come here for the discovery of the usury, and all the evidence to be had must have come from lir. Grimstead. 'rheinference from all this was, that in charges of usury, parties were sure to be morehardly dealt with in bankruptcy, than they could be in any other case whatever. His Lordship on another occasion put the case which'he had more than once put before. Supposing that Howard and Gibbs had undertaken to effect annuities for iMr. Grimstead, and having failed so to do, placed annuitv interest to his eredit, could that be deemed usuryi? It could not, because Mr. Grinmstead would recover the value of annuit intercst in an action for deceit. He had read over the charge of the learne lChief Jus- tice, and he must say that there seemed to him to be a deficiency of instructions in the eha-ge as to the differeiit items in the book. Un- doubtedly they should have been directed to say, whether the whole orpartofthoseaccounts was tainted; and if only a part wvere so tainted, then they should have been further called on to say v/hat portion of the interest was real produce of. annuities-what portion wvas put in the place of the (amages whbich woilld have accrued upon an actioni-and wlhat portion arose from sipmle contract for usary. He especially noticed the negligence of she learned Judge, in not referring to that point to which Sergeant Lens most particularly called the attention of the Court anti Jury_na.mely, to defiae strictly the tine at which the usunous contract commenced. Further hearing on Mlonday. COURT OF CHANCERY. SATURDAY. JA\(. 24. GOUULAY V. TIHE DUKE OF SOMtERSETr.