Summer Assizes.
The Times, 1824-09-10T00:00:00

Befurc *Air. Baron 1MULLOCK. J lls was an iction brought3 by ttie plaihtiltt, to recover a sum of money which he hatl wrongfully paid to the (defendant. The de- fendant pleade!d that he was not liable; and upon that plea issuewas joined. Mr. Sc.ULETT stated the case to the jttrv. F'rom the evidence whiclihe called to support it, it appeared thai the plaintiff is a land- surveyor, andl the defendlant is A tar.Mer, residing in the neighbouT- hood of Lanctaster. The plaintiff is theagent. and the dlefendant is the tenant, of a Air. (,ock, who is at present a resident in one of the -islands in the West Indies. It was tne custom of the defendant to pay his rent into the banking-house of Messrs. Dilworth and Co., Lamcaster. They placed it to the credit of Msr. Cock, and from their handss it was drawn by the plaitntiff, and transmitted to M r. Cock in the WVest Indies, sam occasion required. On tile 23d1 or Fe- bntary, 1822, the defendant paid 301. into the htandis of efesars. Dilwo'rth and Co., without specifving distinctly to what account it was to be placed. They gave him' a receipt for that suns on his own account; and he immediately transterred the receipt so given to thce plaintiff, who shortly atterwards got cash for it at the bank. baut for- got to give the defendant credit ror it irl his account with .Mr. Cock for rent. At the clhse of last year, when settling his accounts with the p he deendant discovered this oversighL ini the accounts which theplaintiff, aR agent to Air. Cock, had drawn up against him. He immediately mrentioned to Alr. Dlillar the eircumttattces under which this 301. had been paid to hiim, but Air. Alillar had totally forgotten them. As they had some dispute upon the subject, they went to tile bank to see whtther it could not be settled by re- ference to their books. At the bank the defendant said, that he had paid to AMessrs. Dilworih anct Co. 301. on account of rent for Mir. Cock. Their books were its consequence examined, but no entry to that effect could be found in them. A clerk, hovwever, as- certained the real mannur in which the nioney had been paid irto thc hands of that banking ):ouse, h y findiner the recdipt which they had giren to the defendant for 301., endorsed with the plaintiff a naane utton it. The plaintiff being then convinced that lie had re. ceived the money, ant had omitted to appropriate it to the defend. ant's acconnt, credited the tlefendant with it, and left himn apparent. lv satislied. 'ithin a niontii or two afterwards the plaintiff and detendant went again togetsher to Mlessrs. Dilworth's banking house, and had some coiiversation ivithi Alr. Birkitt, one oftbie partners in the banking firm. At the close of it, the defendant presented to the cashier, Al r. L iwsoi, an order from the plaintiffto pay him 601. At the same time the plaintiffsaid, "This is a bad job for me, Mr. I?wvon." Air. I,awson asked him what he meantt; upon which the plaintiffanswered in the presence of the defentla:t, The mistake I made about Dobson's money has cost me 1001." 3r. Lawson again said, I don't urderstand you, what do you mean,?" The plaintiff replied, " They have made tne pay for it 401. in cash, andl I am-to give them my brother's bank receipt for 601. more." Alr. liawson said that he hadi never heard of such an $extor- tion, and by his advice an appeal was ittade to AIr. Bir- kitt. AIr. iBirkitt, on heariy.g the circuITIstances, refused to give the defendant any money on the bank receipt which he had got from the plaintift, utitil he was autherized to do so by tbe plaintiff's brother, telling him, anti also a person of the name of Mawson who accompanied him, that itv was a rascally business to extort nioney in that way frotn the plaintiff, who, it was clear, had never had any intention to defraud hint. The defendant, in reply, s.id to Mlr. Birkitt . You have nothing to do with that. I have been advisedl to act as I have done. I was going to advertise the plaintiff, and to manage him accortling to law: but he lhas given nie 401. in cash not to do so, and also one of your bank receipts for 601." iMr. Birkitt again repeated his determinajion not to pay any money on the receipt at that time, and requested the defendant. as an honest man. to give back the receipt to the plaintif and to reftnd to him the 401. which he had already received. ' he defendant refused to to so, stating that he was advsed that the chance which he had got against the plaintif was worth more than 1001., and threatening to bring an action against the bank forthwith if the money were not Daid immediately on the bank receipt which he hiad tendered to the caslier. The plaintiff, on consulting with his friencls, was advised not merely to atithorize Messrs. Dilwotth and Co. not to pay the 60i. for which he had' given the defendant an ordter, bat also to demand of the defendant the re-payment of the 401. which he had extorted from him,on the ground that it was paid either without con- sideration, or for an illegal consideration. The defendant had takeni nio notice of that demand, and the present action was brought to en. force it. Mlr. Sergeant CRioss, after stating that the accounts at the bank- ing house of Messrs. Dilworth and Co. did not appear to be kept with that accuracy which distinguished the money transactions of larger establishtnents, and after itisinuating that this was rather their action than that of the plaintiftf contended that his client ought not to be called on to refund this money, as it had been the volun- tary gift of the plaintiff to him, as a compensation for the wrong he had sustained from his negligetnce. His client had a legal right to seine compensation at the hands of the plaintiff, because he could have biought an action of trover against him for not giving him credit for this sum of 301. in his accounts with ilr. Cock. Mr. Baron l-lULLOCIC was of opinioti that under all the circum- stances of this case, the defendant could not have recovered of the plaintiff either in such an action, or in any other wlich he might ave deemed it expedient to institute. There was no evidence to show that be had-wilfully intended to appropriate it to his own use. Air. Sergeant Cstoss.-That was his Lordship's opinion, and, without vepturing to impugn it, he would observe, that the defendant in this action thought that he had a right to redress by an action of law, and that the plaintiff thought so too. He therefore determined to give the defendant 1001. to avoid all litigation and all needless ex. posure of the transactions between them ; and if the defendant gave that sum freely and voluntarilv, who had a right to gainsay it ? Not, surely, Mlr. Birkitti without whose impertinent officiousnese, for so le most call it, this cause would never have come into Court. XVhat right, lie would ask, had that gentlemtan to arrogate to him- self the powers of a Judge and a Jury, and tall an injured man that he was a rogue, and that his endeavour to obtain compensation for his injury was a barefaced swindling transactiol? He main- tained that it was no such thing; his Client hbd a right to receive a compelisation from the plaintiff for the injury which his neglect had inflicted upon him; and as he had sueh right, lie trusted tthat a verdict of a jury would not take -from bim that compensation which the plaintiff had already paid hiun, in the free and uncontrolled exercise of his own judgnment. Mr. Baron HULLOC9, in clarging the jury, told them that this was an action broaght by the plaintiff to recover 4U1. of the defen- dant,which he said that he had paid to Ihim eit-Aer without consider- tioi, or upon an iniproper and illegal consideration. After explain- ing to the j ury the manner in which the mistake about the 30'. had orginated which gare rise tothe action, and after declaring that in his opinion n imputation could be 'supposed to rest upon Aleesra. Dilworth tnd Co. for their conduct regarding it, lie said that he did not see what proceedings, eitherof a cvil or a criminal nature, could have-becn instituted ueon it bv-the defendant against the plaintiff with any chance of ultimate success. There was no proof that the defendant had ever threatened to bring a civil action against the plaintiff, but there was proof tbathe had threatenedt him with other measures-namely, advertisinig him in the public papers. Oie of the points, therefore, which tliey would haxe to decide, woiili bi, was this sum of 40L paid to make the defendant give up any acidog of a civil nature, or to put an end to any criminal prosecution, which he either had instituted, or intended to risitute. If they should be of oplaion that the monycy was obtained fromr the plaintiff bv the de. fetidant's threatening to brlng a criminal prosecution againit him, or to continue one already isrought against him, if it were not paid, and to stop a prosecution already commenced, or wave the commencement of it, if it were paid, then the consider- ation on which it was paid was. improper and illegal, the p,laitiff would be entitled to their verdict, and the defendant must refundthe money-. Theplai-ntiftwoitldAlso beentitlcd to their vertdiCt if they shouZt be of opinion that no consideration had been paid fbr the money at all; If an honest consideration had been eaid for it, it wzould be an answer so the prceent action i tio attempt, low- 'ever5 had be.n made to prove such a consideration, but they were left to infer tt front a loose convesatiot Which had taken place in the banhEtng-hzouse. In conclusion1 the leared Judge left it to the,uxy to detezrmine whether the plaintffwas entitled to recover this sum of i01., eitler in the whole or i a nypemt of'it. ' Air Se.-geant CatOSs said that he mulst except to his Loidahip's opinion that a verdict must pass for thec plaintiff if no consideration had been Riven for the mtsoh VIlt all.e urzsedr. Afr.BaonHULOCK_otiwifl ue or4s, &o Rithatpoint.. The Jury, after retiring from the hboxfor hialf %n ho6r, r,brtdjhe& verdict for ihe plaintiif...Darnsgbs 40L . ;. w.: . I MVr. Baron '. T LL CIX.-..On WhAt grounds,.gcutlen~n eyn fotnnd your verdict ? A Jluryman.-Otn the ground that etie mOne1(Y~ wiaken;to get-rid of a threatened prosecution. - I HIEWITT V. F5I(L0W A"OTHEitg. 'Mr. VEXAOt.Es opened thie pleadlings.' This wetva an action or trespass brought by the plaintiff against four indivittiuals of the rnames of Finlow Flemiing, l'redsham, and Spur, for breaking into the plaintiff'st house and illegally flei2ing. his'property. . The Terendtn.s Plcatled "rnot 914ilty;" and upon that point dIsse w'as 'o'Ined. MIr.SergeantCRtoss sta,ted the case to the jsAry. Teplaitntiff'in this action had been in embarrassed circus-Istanqes in thie year 1I2, and at the commencement of the year 19823.!had availed hiimaelf of' the benefit of the Insolvent Act. As he wa-s a man who was re- %pected by his neighbours,and who bore afaliichramcterantong them,' he was enabled), on getting hiis discharge, to obtain credit to sonie ex- tenit, and to set up again In business in idverpool with the expecta- tion not only of beinig able'to obtain a lixelihooa for himself and fAMily, but also of beirg able to pay in a rawi years the debts which hadl before pressed heavily upon hiim. His business was that of a horse-dealer, and by the exertions of his frendsi he had bean enabled to purchase tive or six horses, with whiich he went to difFerent fairs, buying anid selling there, in such manner as best suited his own in- terests. In the month of Noyember last he wras preparing to go to the horse-futr at Garstang, when the defendant Flem4ing, who was well acquainte-d with the fact of his havingc takeni the benlefit of' the Insolvent Act, desired his attorney, Air., Finlovw, another of the de.. fenidants, who was also acquainted with it, to sue ouit a writ of execu- tion against him, upon a judgment which he had obtained against the plaintiff"in the Borough Court of Liverpool 'Previous to his libera- tion under that act. The w,rit wtss sued out Hccordingly, and was' put into the hanids of two persons-called Spur and Frodahiam, whose names were also to he found as defcrndants on the record. Spur and his mlyrmnidons, under this writ of execution -which was only for25l., Seized not only all the hoiusehold property of~ theplalntiff,bitaiso six horses which lohehad in his stable, thius taking propertyworth 2001. or 3001. to secure a debt of not nmore than a tenth part of its amount. Of this property thtev kept possession for snaore than a week, wud thus' prevented the p1 iintiff' Irr ar n his horses to Garstang fair, and making the profit byth'eemrawhai~er bhad been accuetomed to expect. Now the InsolventAct ptovided that when a prisoner was discharged tinder it, no execution shotuldl isue against hi'm for debts centraet'se previous to his actual c-onfinement. ill r. Baron H- ULLocLi-That means againtst lIii perton, not his goods, su rely. Mlr. Sergeant CROSS Was of opinion that the act must be inter- preted as hie had stated it; hut eren suipposing that it wese not s8, if thec present Insolvent Act contained stimilar clauses to fotrmer is solvent acts, (and he was not suffcicintly acqssainted with it-to say whether it dlid or not), it was provided that where the itsolvent hiad effects acquired subsequtentlv to his discharge, an execuxtion should not issue against them witholit, an application made fir it by the as-- signeen to the Court, aind without its express adjudica-lonj that ielt execution should issue. For these reasons tile execution by wrhicl. the-defendants placed the property of the plaintiff under restraint was in every respect defective in lAw. At thte end of a week the defenidants found that matter out themselves, and in consequeiicecwithdrew their execution. The plaintiff now appealed to ajury ofbhiscountrymen to give himn a compensAtion in damages for thie Injury which be had sus'ained in conseqtuence of the illegal and violent conduct of the defendiants, in entering upon his Premises, and depriving him of the enjo mncrt of his property. T elearned counsel then put in evidence the adjudication of the Inisolvent Court, by which the plaintiff was declased entitled to hin dislitarge. On his putting in the insolveint's oclhedule,MIr.ScarIett, whio was counsel tor thie defendants,requsested thlat part of it might be read. The prothonotasry then read the amount of' the debts owaing by the plaintiff, which amounted to 3261. 13s., and of the debts owing to huin, which mrrounted to 2011. 5s. TIO each uof the debts due so the insolvent were addedi the words-"1 The only witnesns to prv t s myself." Amongst the prisoner's creditors the name of Mrlichaele F~leming appeared. lie wats schecluled foir the debt on which this writ of execuilon had issued. The a-ssigIment as- Sige to the schiedule bote the date of the 27th of Jan. 1823. MAir. Sergeant CROSS was proceeding to call witnesses to other parts of his case, when Mlr. SCARLExT'r reminded him that he must prove that a notice had been served on ttie defendant Fleming of the plaintiff'sintention to take the benlefit of the InsolvenE Act. By the 16th seetien of the act it was providled, chat to make a diischiarge valid, notice Of tite illsolvent's intention to apply to thte Court for It must be given to every creditor individual y, and to them all genierally in the Gazette. The learned counsel must show that such notice had been served upon Mir. Flaming, anti that was what he could not do, as Air. Flentiing had never received it. I lllr. Baron H U L~ocx.-.Wbat act is that, Air. Scarlett ? I aslk the question because there are sio many AMr. tiCA RLrETT.VYes, my Liord, there are a great toany, and thecy ar7e very diflicult, too, to understand. Air. BaTon H U LocY. on lookinK at theg clause in question, which provides that the Court sh.lall appoint persons to serve the different hlotiest, observed that hie could, not suppose that the. Legislatuere ever intended that ani individual should suiXer,frem the non-performance of the duty required from the Insolvent Court. Be3sdes, hie asru boundI to take it for granited that the Insolvent Court had performed its duty in this instance. Mir. SCARLETTr thouight it incumibent on thie plaintitif to prove th,st the notice had been served. The serving of it zmight be avoided by st-me fraud ; and If that were the case, the discharge itself would be void. There was a clause in the act which stated, that all dis- charges obtainied by fraud were ipso facto void. Alrl. Baron MLLutOCx again said that he was bownd to give the Insolvent Corirt credit for having done that whicih the act of Parliament requiredi it to do. I{e was therefore of opinion that it was niot necessary to prove the serving of this notice- on Mlr. Fleminig. M1r. SCARLSTT obiserved, that this; very point had been reServed ,-by fUr. Justice Littledale at Westminsmter. AUr. Baron HULLOCK.-Then perhaps I onght to reserve it too: mY oPinion, however, is as I have Stated it. I will reserve It, ifrwu like, Mr. Scarlett. Mlr. SCARLETrT would leave it to his Lordship. For his part hie must say that he had a strong opinion oflisis oiwn uipon the point. ftlr. Sergeanit CRoss.-And to toiy learned friend's opinion'I will gladly leav It JnLinney wats then pakt into thie writness-box. He proved the seizure of the Plaintiff's property, under the writ of execution, by Spor, and the detention of it from Thuirsday the 20th of November toi the 'Wednesday following.' Spur seized six horses; they were worth about 2001. or 2201. The furniture in plaintiff's lodgingst was worth 161. or 181. fie hadt also a quantity of bridles antl saddles: they were seized. Pliaiutiff had made preparationst to carry~ his hors,es to Garstang fair on the very day after the exeestion camie in.- On his cross -exansination lie sa~id that the plaintiff told Spur that he had contraceted no rnew debt sine's his libetationusndior the Insolvent Act. He said to Spur, when talking of Fleming, "1 Confound that fellow, I scheduled hima when- I was In Lansaster Castle,;" but he refused to show Spur his schedule, thiough Spur asked himr for it. Jfoseph Dodson gave teestlmoniy in many respects; similar to that given by the Preceding witness. In cros,4-examination, he said, that in November, 1r82, his mas- ter had six homges, and had always had that number during the time he had beets in his employment., At that time'he had been with his master full ten months. His master refused to show Spuxr his schedule. Other witnesses were called t., prove that notice had been served on the defendants on the 20th of November to withdraw their execu. tion, on the ground that the plaintiff had token the benefit of the In- solvent Act. This was the ease on the part of the praintiff. Mr. SCAaLETT observed, that there was no case made out against three def'endants, Fiplow Fleming, and Frodaiham ; and with re. gard to the fourth, Spur, he maintained that the plaintiff must be nonsuited. The goods were taken by Spur under a.wrIt 'of execu- tion. Now it was clear from the ease of '1Taunton,v. Fisher," re- ported in Dougls p64,taashrff's officer wgas not liable to A, for whiathedid by virtueofanexecution, directedagain8t the goods of A. AsheTiff'soffieer washouand toexecute the wrIt put into his handsi, 'without exarmining- whether it wras or was not legally issued This was all that Spur had done upon the pesent occaion, and thierefore, he maintained, the plaintift mustt be culled. Mlr. Baron H UILLOCit-There is no evidence as yet that what Spur had done was done under a'writof execution. Mr. SCAULrTi7 said that he would soon supply that deficiency. Ha then proceededto address the jury upon the facts of the case and contended that they establishedacaseofgrossfraud against the P'lain- tiff. In the latter end of January, 1823, the plaintI ff made-an as.. =inent of his property to his crditors, in order to obtain the beniefit ofteInsolvent Act. It wasproved by the witness Dodson,that at that time and ever since he had been the miaster of six. horses, and yet not one word about those horses was,to be fog4nd in his schldule, though he wtas sworn to include in it everv iota of property that he possessed. The defendant Fieosin$, who~ hid heard of thes horses being in the Possession of the plaintiff, but who had never heard of Iis having taken the benefit of the Insolvent Act, thought that the best mode of recovering the-aimount of the judgment he had ob- tane4 against him for 25L, in the Borough Court of Liverpool, would be by seizing tltese- horses under an execution. In conse- quence, lie desired his attorney, to sue _qut a writ for that purpose, and after it wias saed out, hie placed it int the hands of Spurt, for the purpose of bring executed, 'Spur, hav-ing once obtsioed it, had no discretion left him how to act. He was bound to execute it, lund its discharge of hid duty he did execute it. They would recollect that it. was already provedt, that Qn theptatntiff's saying that he had sche.. duled Flen-aing, Spur as,ked himn to show his schedule ; bait that the plaintiflfhsad treatedl the proposition with considerable iscomn and in. dignation. Not being able to obtain from the plailatlff the legal do- cuinent which would have p roved that he had taken the benefit of the Insolvent Act, and not being wilting tO take that,fact upoil the mere assertion of so tAmbiguous a character.as the plaintiff, Spur was oblied o wrte p toLonon t obainthe informationi which theplintl?refse toafordbis.As soon as he found ylaitif ha takn te bnefit of thea act, and hiad J~.tnug snae s hi sc,~.t.e,that mvirment lie with- drewhis xection andresoredto te paintiff the full poxs. session of his propert. It ought not, besdes, to bc forgctten that in the interval between the Thursday on which the ar- rest' was made, and the Friday on which it was removed, Spqy hald allowed the ialistiff to remove tvoo i'this horses; so that If an point of law a verdlet must pass against Spur, it could not be formuore than a arthin.g's damages. BLit he maintained, that no verdict could pass against Spur the-moment that he proved that what Spur did he did in virtueof a wiit of execation directedi to hins; because, whether that writ was properly orjmpro erly sued out, thi sheriiis duty was equa)ly clear; nothbngvas le for him to do but to obey it. Hewould pat in the erit of execution under which Snxr acted and would prove that the detention of the goods had ceassd from the ve-.t moment that Spur became formally acquainted with the ille- igahty of t4e instrument under wvhich he acted. The learned,counsel palled- witnessesswho substantisted all- the facts whlich fe had stated in hii'speech. Mr. Seigear.tCrioss -replied and -coAtended that the question whici the jury had- to try unier thea pleadings, was not-whether th lainttiff ad conducted himstlf-fairly and honesrtli to hfs erears, but whether his goods, had been leallOyseitedunder g writ of executiori. Hemaintaifiod that they. hlLd not, and insisted that upon 'the eyidetne as it tno* ap'Pceed, the coiducitoit? de- fendants was mnoat vexatious and oppressive.. uiliely:3t Wamsnne- cessary gnd unremonable to setis3ae l waoth-6ft oods' under an execution, when thedebt for vwhic they weievsI4 did not-exceed 251. Be estreated them to-dismiss from thtir'tainda the prejqdlce- which# lilt learned friond had endbavot4ed td e1 g g tqh client, ita toretsu, such a ierdict -xould prdtecLhi, and oiie- unfortunate sen in -alujsituaasomr- ia tpetSititoa ot,uhi:autoatm rageinfuture - .. -. I lr. Baron Hur.toox tol&tle jury- ttthayminuht a ymaircte find a verdici for -thie dfendanti, -uitow: 'FItsiig-endgi rolisbam, as nb cvldencu hadeen the elighest, degrce. With regard to Spur, if they were of opinion that he had withdrawn the execution .is soon as he had ascertained that it could not be maintained, then this action could iot be mnaintained in point of Ima*g avid their verdict must be a verdict of acquittal fbr alLthe defendants. If, howevcr, they were of opinion that Spat b ad remained in postession of the plaintiff's property longer than he ought to have done after diseavering the invalidity of the cexrction, then theyssvould find a verdict-for the plaintiff, antl against Spur, wj!h such moderate damages as tbhoccaslon appeared to therm to re. quire. Hegarethem these directions upon the principle that a -he- xiff's officer was not liable for what he did in virtue of a writ of exe- cution ditected to him; but as that opinion might be disouted else- where, he would be obliged to them tp estimatc the dnm;ages wvhich tiey conceived the plaintiff to havesustained by Spar's detention of bitt property, supposing that detention to be illegal. T he Jury immediately returned a verdict for all the defendants. M8lr. Baron IIU,LLOCK.-What damages do yoa think the plain. tiff ought to recover, suppeIng him to be ecntitled to a -verdict in point of lawv ? The Jury replied, one shilling. dir. Baron Hur.aOC1Z intimated to Mr. Sergeant Crass that he would give him leave to move to set aside the present verdict, and to move to enter up judgmeat for the plaintift for one ehilliag, but he gave him notice that iut that ease he shouldl certify. Mlr. 8ergeant Ctoss.-I dare say my client wiLI not thank of csrying this matter any further. CamrtSr.{. SoIDE._effOtC Ml: JtreSIkCe BAYLEY. Twelve freemen ef Prest4n were this day indicted for riotously asg sembling and pulling down certain buildings erected ia the neigh. bourhooa of thiat town by authority of the corporation. It appeared upun the triai, that the corporation of Preston had given leave to some individuals to make an erection on so-mc common land, on which all tite freemen-are entitded to iright of pasturage. The free men considering this to be an encroachment upon their righits, pro- ceeded to throw it down,-as they had previously thrown down similar erections on the race.groind and elsewhere, made by licence trom the corporation. The right of the freemeti to pasturage upon this common was proved upon the trial, but as they had not exercised it in the most peaceable manner, they were found guilty of a riot. The prisoners were dismissed upon their owvn recognizances, and it was understood that t.bey would not be brought up for judgment if thev abstained from simnilar conduct in fu:ure. AIr. Justice BAYLEY finished all the businebs on the criminal side about one o'clock this day, and was subsequently employed in trying civil causes. SUMIMER ASSIZES. LANCASTER. TUESDAY. SEPT. 7. .'ILLAR V. DOBSON.