Court Of King's Bench, We...
The Times, 1824-11-29T00:00:00

s lS was an action to re.ver the sum of W8M1. ti. Iid. paid by the plaintiffs'l bankers In London, to the uscofthe defendants. who were tucrchnnts at Liverpool. Abouit eleven o'clock on the morning of I gt November, a notary employed by Mfessrs. Smith, Payne, and Smith, the bankers of the defendants, called at the house of the plaintifts with threebills of exchange, amounting to the sum now in dispute, which purported to bear the endorsement of Arthur Hare. wend and Son, customers of the plaintif' ; and, after stating that the bill had been dlishonoured, requested Wilkinson anid Co. to pay them for the honour of their customers. Believing the bills to be genuine, Wilkinson anl Co. paid the aMount to the notarv, who de- livered it to Smith, Payne, and Smith, on account of the defendants. In the course of two bours afterwards, the plaintiffs, who had struck out all the endorsenents subsequent to the names of Havewood and Co., discovered that the apparent endorsements of that firm, as well as the names pturporting to be siginatures of the drawer and acceptor of the bills, were forireries. They immediately informned Smith, Payne, and Smith, of the discoverv ; and it was agreed that, withiout prejudice, notice should be given to the other Iendorsers, whicli tras done by the post of the same evening. The en- dorsers, however, refused to pay, on the ground thiat the bill had been already satisfied, and that their own endorsementshad been ob. literated by theplaintiffi. Upon this the defendants declined to re- ttrrn the money, annd the plaintiffs brought their action to obtain it. The ease was argued before the Judges at the sittings under the 9King's warrant; when it was argued for the plaintiff, that the money being paid under a mistaken view of facts, and the error being dis- covermd before any remedy was lost, might be recovered back ; and, for the defendants, that the case awas an exception to this general vrle_first, because the plain tifls, as bankers, were bound to know the ,andwvriting of their customers; and second, because they had de- faced the biU bvstriking out the endorsements. The LORD n CtIsEF JUSTICE now dellvered the judgment of the Court, which they hal taken time to consider, in fiavour of the plaintiffs. On the first question raised, they helt that the circum- stance of thenotary bringing the billsin an extraordinary way for pay- ment, seemed to guarantee thetn as genuine, and excusedl, in some measure, the neglect of that examninatioi wlhich it would otherwise have been the duty of the plaintiff; to institute. On the second point, they were of opinion thiat as the striking out an endorsement by mistake would not dischacce the endorrer, it could not render the warty making the erasure liable to pav the bill in his stead ; -thotgh it might ubject him to an action on 'the case, if the erasuredshould cast on the holder the necessitv of extraordinary proof on the trial of an action against the endorser. Thev, thereore, held this case within the general rule, that money paid under a mistake as to facts may be recovcred back, and the plrintiffs entitled to recover. POLICE REPORTS._DUNCAN V. THIWAITES. The LORD CIIIEF JUSTiCE, after reading the judginents of the Court in two other cases of nio general interest, adverted to the notice given on Friday, that he shoild also deliver judgment in this case an4 another; and observed, that it would be inconvenient to do so, as proposed, to-day; and the case therefore stands over. T}iet Xicto V. LEARING. Mr. Sergeant PEI.L prayed the judgment of the Court on the defendant, who, at the last Devon Assizes, submitted to a verdict of guilty on an indictment for a riot. The case now came before thc Court on affidavits: from which it appeared that the riot consisted in tumultuously stopping the Defiance coach at Honiton, and exciting alarm in the passeRgers. On the part of the defendant, it was sug- gested, that he and his father had been up.handsomelv dismissed from a partnership in the concern, andI had suffered grerat losses, which upfortunately excited the defeAdant to take the measures for which he lhad been convicted. Mlr. Justice BAYLEY. after admonishing the ulefendant that, ,whatever might be the merits of the caqe as between the proprietors and himself, hiis conduct was unjustifiable, passed on him the sen- tence of the Court, that he should be imlprisoned for two months in Exeter Gaol, and gire securitv for his good behaviour for 3 years. IN THE SSATTER OF RrCHARD JOHN ELSAd, GENT. It riill be recollected. that Dlr. Elsam, an attorney of tbe Court, attensed on Thursday to answer fora contempt, in causing a 8pecial case to be argued as in a cause of " Fox v. Dodd," it order to ob- tain the opinion of tie Court on the constructioui of a will by whic-h certain estates. were devised to himself. It was theu referred to the aItster to ascertain and report what 8teps were actually taken in the cause, prior to the suing out of the writ of *Viri Prius, and which of the proceedings stated in the ease were fictitious. The Master nowv attended to make his report,'And Sir. Elsam to kubmit hinself to the judgment of their Lordships. The case 8tated a contract for the sale ofcertain freehold and copyhold prenwises be- tween John Fox, the plaintiff, and Jafmes Dodd, the defendant, which contract Dodd had refused to execute, on the ground of a de. fect in the plaintiff's title. The plaintiff'ilerived title from Nir. Elsarn; and the question for the opinion of. the Court was, whether Air. Elsam had a merchantable title to the estate, which the sup- posed defendant was bound to accept. To raise this question It was stated that Mr. Elsam had suffered recoveries, which, in case he took an estate tail, would convert it into an estate in fee, of which he -would have the absolute-disposal. The truth, as admitted by li7r. Elsain to the Matter, was, that the whole was a mere fiction to ob- tain the opinion of the Court on the legal construction of the vrill- that there was no colltract for sale-tbat no recoveries vecre suffered -and that the plaintitfand defendant were fictitious persons; but hint the will itself was truly stated in the case, and thequestion fairly submitted to the consideration of theJudges. Al r. Elsam now put in an affidavit of the circumstances which in. duced him to take this irregular mecans of ascertaining the extent of his legalrights. By the will, severallegacies wereleft chargeable only to the personal estate, which he was induced, from honourable motives, to sati4fy shortly after the testator's death. Whdn he had tiIus disposed of all the peTsonal property, he discovered a large debt due froth the deceased, to which, having paid the legacies, he was pelsODaly liable, and which he was unable to pay without rai8. ing moneysby inortgaging the real estate. Preparatory to this niea- isue, he obtainedl the opinion of an eminent conveyancer on hia title which wpS' that he had taken an cstate tail under the will, which he -I ght0iWertinto an absolute estate by suffering common recoreries, Xit 'fisc"ais aCccompanied by a suggestion thiat it might be con- tended thn-t-lhe Tis, k an estate in fee, subject to executory devises which the recoI eles would not bar, and which, consequently, he could not mortgage or gell except under restrictions. He could not mortgage while this doubt existed; to suffer recoveries would have been attended with great expense, which might bale been fruitless; and tlierefore le adopted the objectionable mueasure conmplained of, without any fraudulent or disionest Inten- -ion. Hfe instracted counsel to argue the case, without anv intima- tion that-the proceedings were fictitious, and therefoie it was brought before -the Court with fairtess to the parties interested In remainder. In concluslon, Air. Elsam stated that he was uncon- scinus at thetiine of acting improperly; that he had expended 401. in the attempt to obtain the opinion of -the Judges and that during eight years, which only had elapsed since his admission, no com- plaint hadbeet madeagainsthim. dIr. TAu:jTog addresd.the Court on behalf of Mr. Elsam urging that, in no other way.could he possibly obtain an opinion on his title; that, tbough mistaken, he had been actuated by no Ain- proper motive; and that, in the Court of Chancery, judgments 'were sometimes obtained on fictibots suggestions, though by consent of parties interested in the decision. The Judges consulted for a short time; after which, The LouD Cli Es'JOSTICE said, that it was clearaserious contempt liad been committed against the Court, which It wasim- pssible for them to pass over without reprehension. In this case It Mid notappear that njury had been done to any patty; probably none was Intenaed, nor had lr. Elsam acted from any fraudulent or corruptidesigm. He had also forborne to aggravate his offence by any attempt to conceal it when once tbe suspicion of the Court was excited, buthIadPromptycoOfessed theerrorf ito which he hadfallen. 'onsidlering tiese circumstances, and wishing rather to deter others from stimilar attempts, than to press with peculiar severity upon this individual', *hlto was the dirst for many years brought before the Ciourt on such a charge, they would make only an order that iMir. ICliain, for the contempt of ich he had been guilty, should pay to the King a fine of SOL and be isoprisoned in the ctustody of the lar- thal tDIl tfiat fine should be paid. ir. Elsas paid the fine, and w/as discharged. TIH KaNG V. CJIRISTOPPUEnSON. Ilr. Gd Y prayed for j.udgment against the defendant, the ca;itaiw - amerch,t Yewli, who was covicted On A; lBfouation' iled b,v the Attorney-General, of leaving four Eegmen on shore at a bay in the river St. lawrence. BMr. BROUGHAZSI iroposed to movo for a new trial, on affidavits contradicting the evl ence given before the jpry. ' ' ' The Coust' tefused to illow thbis 'course, as contrary to practice, ani ighly dalgerous. In passing sentence the LORD0C11tEP J1S. TICE intimated, that It was by ho means certain thatinn offence might not be committed .tgainst tihe act bv leaving men who:.vere villin toremain, lie then 'gavethe ai dgmetit prescribed by the act, tnat the defendant should be impdinoned for three monthsin Catlisle faol. IN THE HATTEt O1 CT .AnF AND. OTHF119. 31r. CAAs1PB9Le. and .Ur. Cm1tvTTY showed cause against the rule obtained by Mr. Stokks, calling on Air. Clarke, an attorney of the Court, to show cause why he should not be stiaek oir the rdlls For permitting two persons, named Plimtner, to conduci a suitin his name; and on the Flimmaners to illow cause why they should nat be committed for so prhalising. 'The affidavits, which were very volumi. anus, were disiiased at gteatlength. - The COuRtT proposed thatt MN?r. Clarke skhould refund to the patty who h.td becn defendalnt the sum of 7U1, paid for the defence, and enter a cef proce.s,se to another action brotught aginst him. M?r. ,AMfPHET r.L said he woul1d consult wvith his client, nnd men- tioa the Cnse agaim on Mtonday. THXE XING, our T1IE PBOSiUTIO;N OF TtlE 3fARQUIS OF ITASTI'JtGS, V. TI1E SUNDAY TIMES. The Cor N SoN+ SRRG-A'rT shiowedI cause against the riuleobtained last Alonday by M1r. Scarlett, calling on the proprietor anti publisther of the Sundad Ti,nem to show cause why a eriminal infernation should not be exhibited against him for a 'iibellous paragraph which appeared in hls jburnal in February last. insi:;uating thktt the Court of Directors contemplated an impeachment of the Marquis of est-_ ings for a deficit of 300,0001. in hig accounts. The learned Coni mon Sergeant did not meat, to deny that the paragraph refcrred to Lord Hastings; nor that it contained a verv serious imputatiOn - bat he thought, under all the circumstances of the ctse,the prosecutor would scarcely require that the rule should be mnade absolute. As soon as the editor of the newspaper discovered that he had been mis- led, he made a full and ample apology, and referred to a debate which the charge had occasioned at the India IHouse as completely exonerating the noble Alarquis from the impputation made against him. That apology, the editor liad reason to believe, was satisfactory to the frietds of theAlarquis of llastingis,and probablv would have been accepted by thatnobleperton himselfhad he seeni it ;-but it was not un- likely that, at a distance from home, the attack met hig eye while the retractation escaped it.. He had Pow obtained the opportunity of fullv clearing him from the imputation byhis affidavit ; and probably zs his character was entirely vindicated from this charge, he wouhlt not think it nec:ssary to proceed further. Air. SCARI.ETT.-If it be thought that Lord Hstinas hirmself. wuuld be satisfied with the apology of i'ie publisher, hiis friertdt would regret acting in anv waV which can be deeined harsh: but I thitsk my learned friend, if he asks for ;hdulgence, should now repeat theapology in Court. '. 'he Coraror.oSERGEANT.-I.. am instructed( to do so -in the most unqualified terms. I intended distincly to express thp sincere regret of the defcndant that he should have been led to publish this article, and hisconviction that there is no ground for tile imputation it conveys. If I did not de so before, I do so now. Mlr. bCARLETT.-The object of lIord Hastings was to vindicate his character, net to press severely against others. On his behalf I am ready now to do whatever the Court think right. There is one fact'stated in the affildavit which has not been referred to, but of which I will give the defendant the benefit-that he has searched for the manuscript with a view to dicover the autlhor, but hals been un- able to find it. Mlad not this been stated on oath, the noble Marquis whom I represent would have proceeded till the author was given up, as he determined, if possible, to trace the calumny to Its source. After what has been said, however, I leave his character and honour in the hands of the Court; aad will take any course your Lordships may deem proper. The COMMON SEIGEANT.-Tiic defendant states he is not the author, nor does he know the author. The LOaD CITEP JUSTICE.-Perhaps, after the apology which has been made and repeated tn.day in Court, there may be lno ob- jection to allow this rule to be discharged on payment of costs. Ml r. S,ARLETT.-Ifyour Lordship pleases. I leave it entirely with thu,. Court. The LonD ClllEF JUSTICE..YOu have no objection to that course, Alr. Common Sergeant ? The CoarMmo2 SERGEANT..OI1, certainly not, my Lord. The rule was accordingly dircharged, on payment of costs. THE KING V. BAIRD. This rule, calling on a physician of I pswich to show cause why a criminal informnation should not be exhibited against hiim for at- tempting to incite Dr. Beck, another physician of the same place, to commit a breach of the peace, was enlarged till next term on the motion of Mlr. CLARKE, jun., who suggested that the defendafit had not time to answer the affidavit of the prosecutor in the present tenn. T}ir. XKNG V. J. LOCKWOOD, ESQ. Mr. BROUGHAM moved fbr a rule cdlilg on J. Lockwood, Esq., the late Alayorof Doncaster, to show cause wlya criminal informa- tion should not be exhibited against him for corrupt anti illegal con- duct in that office. A vacancy having occurred in the situation of Recorder of the borough, two gentlemen named Fisher and Mason became candidates to fill it. Mlr. Lockwood wag accordingly re- quired to hold a meeting of the corporate body, in vhom the power of choice lay, for the purpose of the election. This he evaded doing for several weeks, although, on former occasions, during a great length of time, not inore than five days were allowed to elapse between a vacanevin the affice and the appointment of successor. At length on the 16th of September. the election was held, when Air. Fisher 'was choten hv 1 to II votes. By thepractice of the corporation,it was necessarytlhat theelection ofthe successful candidate shoulil be cer- tified by the Mlayor to the Secretary of State, bv whom the appoint. ment was to be sanctioned. On this occasion, tierefore, Mr. lAock. wood was required to certify that Mr. Fisher was elected; but he excused himself from doing so, on the ground that his hand shook so much he could not write; referred to a surs-eon in confirmation of his plea; and, on repeated applications refused to certify. At the ensuing sessions for the borough, Mlr. tFisher attended to sit as Recordler; but his appointment being incomplete for want of the certificate, an adjournment was proposed and carried bv three of five aldermeti who were present against two. Upon this decision, Air. F'isher, two of the aldermen, and several Jurori, withdrew from court, thinking the sessions were adjourned; but the Miayor retained his seat, and called to a barrister sittiig in court, which it was not usual for counsel to attend unless specially retained, to act as his assessor. With this assistance, and canc- tioned by the opinion of the learned gentleman, that the Alayor and Aldermen were competent to proceed, the Court proceeded to busi- ness, and actually tried a prisoner, and on lis conviction, sentenced him to a month's imprisonment ani hard labour. But this was not all. On inquiry, it was discovered that Mr. Lockwood, whose banud shook so much that lie could notcertify it favourofthesuccess- fiul candidate, Mir. Fisher, had transmitted to the Secretary of State a certificate in favour of the defeated candidate, Mlr. MIason ; sealed, not with the common seal of the borough, btit with the recognizance seal which he possessed by virtue of his office. On these grounds, therefore,-..the^improper delay in holding the election-the illegal hlolding of the se.ssion-and the transmission of the erroneous certi- hfalcte,-the Court would probably think the case deserving of inquiry. Thle (loun t granted a rule to show cause. TIUE KXIG V. B. StOROAN, ESQ. AMr. VIOeTMfAN moved for a rule to show cause why a criminal information should not be exhibited against Mr. Mlorgan, a magin. trate for the county of Somerset, for corruptly refusing a publican's licence to a person named Lockster. It w:s alleged that disputes had formerly existed between the partieS; but that when Lock-- ster became the purchaser of a house at Shepton-l\allet, Air. ilorgan engaged to use his influence to procure the renewal of the licence, if le would vote at a vestry meeting on a question in which lie took an interest. Lockster attended ; but his vote was rejected Irom some defect in his qualification. As he was about to attend a fair for the purpose of selling ate on the 10th of September, which bv law lie was entitled to do,illr.Alorgan sent word to him not to go ; but baiyng been at considerable expense in sending provisions, lie was obliged to di.sobey the injunction. On the licensing day his licence was refused, ltr. MIIorgan assigning as a reason his attendance at the fair. The COURtT inquired whether due notice of t'ae motion had been given to the m;gistrates, and on receiving an answer In the negative, said they could niot, according to practice, grant the rule. THIE KING V. TIVISDEN. - MiIr. SCARLETT tnoved for a rule to show cause why a criminal information should not be filed against a gentleman nameti Twis- den, for attempting to provoke the Earl of Stair to fight a duel. lIr. Twisden demanded a bet of 2,0001. which he alleged he had won and which the noble earl denied having made. Upon this, aatis. faction was demanded, in terms which could not be mnistaken. The noble earl declined settling such a demand in such a manner, atd s-tated to MJr. Twiaden's friend, that if he persisted in thus endeet. vourihig to compel him te pay a bet he had never laid, -he must up pyto the Court for protection. After this, in Septemern", lr-. m'wiaden posted the noble earl in several public places at Bnghton, in thiese terms8:-1" Twice having applied to Earl Stair for theset- tlemnt o a et, nd wicehavng gvenhim the ofihir of a reference, I1 was under the nSecesqsityofdetmandXi3ng the satisfaction of a gen. cleman, which lie refused. I hereby declare, that Earl-Stair is a man who does not pay his debts of honour, and a coward." TheConT t gkranted a rule to show cause.,Tke COURT s3t till I COURT OF KINfl'S BENCHS. WESTMNTVER. Nov. 27. _'ILKINfSO AND OTHIERS V. JOHNSON AND OTHERS.