Court Of King's Bench, We...
The Times, 1824-07-05T00:00:00

TheI 101 Con I (Isr'F JUST ICE deil VCrcd ie h t, jdgnent of the Court oni this case at considerable lenigtlh. It was a rule for a prohibition to restrain the Ordinary froil procreding oni a niotiitioni of the Bishoip of Pe-erborougi', directed to M1T. WVetherell, a clergytana within hiis tliocess, abtl commandling Iiipn to pfiv to hiis curate, Air. Paris, thie arrears of hiis salary. Ilir. Wethierell resitded on hiis cure, but beinig dlesiroutsof somie assistance In tite discharge of his clerical ditities, and also in thte inattageincit of a school, agreed with Alr. Parts to becomTe his citrate at a salary of 1001. at year. Tite Bishop, hiowever, took- oni htimself' to fix the salary of Mlr. Plaris at 1201., whiichi he afterwartis claitiued, and witiich the incumnbent refuised to psi'. Tite Court, adverting to all thec statute% passedl for the regu. latlon of curates, were of'opittion tile Bishop was niot invested wviti powverto cotitrol the salary of a curate engaged bya clerg-yman wvlto hitisielf residled on hiis benefice, andl theretore miade tile rule for a prohiibition absoluite. TJIE KtING V. CIJUSIE. This, was a yule cailling, on Alr. James Cur-rie, the stewardl of the manor of Pletersfieldl, to sltow cause why a criminal informatioti shudnot be exhibitedi against hiun for corrapItand partial conduct in his offle. Tue application, arose out of the state of parties Itt the borough of Peterstield, wit icht has already given risc to several pro- ceinlgsi in tl is Cotitrt. It app1)eared thiat thelicIit Iitabi tanits4 of th)e to wtt a re d?ivided nto tw,%o part Ies oneh1)eadedhby IIr. Hyl ton JollIiff'e,thte pirsgenit tlterttiber, wvhose famiily ~ tave 1m,ng retainIIed an ascend(ancey ia th e plate, so lo is Lordof the mannr;thcother bvfllr. NathanielAtcte.son, a geitltniean of tlitlegal profession. The'officer returning thiemenl. h)ers to serve in Parliament is the mayor of the towtl,at)tdthe mnayor is eltete by the jury of the court of the mnanor. From this circum- stance the nomiinatioli of the jury itas become thie subject of con. sidcrable jralousy and suspicion ott the part of' Mlr Atchesion's supporters, as tIle steward of tlte court by whomi they are sum- moned is, of course, appoiiitedl by the lordl. Informations Itt tile nature of quio wcirrraroto have been three times (hirected against in- dividuals clitosen as mayor, on two of whiclt the parties disclaimed, as the election was inforinal, but on the third Mlr. Jollillfe stit- eeededl. The chief objection TaIsed by Air, Atchteson was, that the steward nominated the jury as lie pleased, and was presenit during their delib'rations; bout, on the last quzo warranto, it was drecided that there was a good custom for tite steward so to nominate, and so to be pres4ent. Btefore tltis decisiion, a rutle wvas obtained for a cri- minal inform-ation agaittst Mr. Hlector, the titen steward, for cor- ruptly, selecting the jtiry, on the ground thtatite took them all, or ttearoly all, frorn thie tenants and partisans, of' Mlr. JollifTe, and had uIformly omitted to sttm-mon anyvof tlitinhiabitants who hadlvotedI on tite other side. WVhile thils rule was pending, Mri. Hector resig5ned, atsd Mlr. Currie, a youing gentleman connected wtitlt the firm of Messrs. Htenrott avid Al etcal, the town solicitors of Mr. JTolliffe, was appointedl steward in hi rodm. The p resent rule was obtained against hira oni affidais lleging that he litad pursued the line of cotiduct adott byhspeeesr nd htad, hy selecting te jry almost ecuieyfo n ie given evidence of a partial motive, whc ouh o oifune an officer in the dis- charge or a paulic uy MVr. SCAstLn'rT, Mr. ADAst, attd Mfr. MlEnEWETHERt now showed cause againist tite rutle on the affidavits of Air, Cpirrie atid several gentlemen residing at Petersfleld. MVr. Cunrie, wfio was a youttg toan of iuost lionourable chfaracter, positivciy, swore tltat he was actuated by tto criminal or corrupt motive in sumimoning the jury ;that the m-en whomi lie had selected wvere all' of theta compe- tenit annt fit for the office-, anti that he verily believed they had faithfully and honestly dIschiarged thcir duities. Five of those wito acull erv -ed e castually tatken fromi thte by-standers to complete tile tiiumber; and as a proof that tltey were not-swayed by any. in- proper bias-, theyr electedi one of Mr. Atcl,eson's party cottstaible- an office of considerable importance, especially at timies of ciectioti. F-low was Mlr. Currie to select thiejuirv? He candinillv admiyitted that lite tlitd not feel htimself bouind to reject Alr. Jolliff'e's tenants and supporters, who, indteed, formeni a very considerable mnajority of those who were competent. to serve. if he took half thie jurors froml one pas"y attd half fronti the other, they would never agree in titeir choke;5 and so htigit wias the spirit of party itt the borough, that hie coldscrcel fichl a dozen men wh'o were neuttral, andi they wecre infirinor unfit for the duties of jurors. At thle time of thec election of Afr. Blunt, the present mnayor, he entertained no expec- tation that thiere wouiil( be an election witlini the year, antI there- fore could he actuated by no insmediate view to that event. It hail becen urged agaiitst hiint, 'that he appointed Mr. Mears, an active friendl of Air. Jolliffe, to be forentan of' the jury; but he dlid so becaluse lie was peculiarcly fit for the offce, andl be- catise it was usual to appotint a gentleman ivho had fililed the situationl of' Mayor. The two parties of this boroighi mighit fightt for the ascendancy fairly witit civil weapons; bitt it was too tttuclt for one of thent to 'a,,' the Court to) lend its high nowers of inteiposi- tion in a cdiniinal forRi to) old tliemn, wlhen all cr'iminal mnotive wams deniedl, andi when the questions agitated were peculiarly fit for the decision of tAte ordinary tribunals. Air. GSAEI.Er, Mr. COe.,rieAN, and Mir. CAUTEIt arguied in suipport of' the rule. Titey alitnitted tite getieral respectabilitv of ttite defetstlattt's clitaracter end the mnanliness wvith wbicit he htad neit thle charge, bitt strgeu? ithat lie had at least aeced with canisl. dlerable boldness. t.Vltilc titese gsestiotta twere yet beforetite court, he pursuied ttite very line uvhticlt Mr. H4ector had followed, And whilch was really a systernatic violation. of the dtuties of his office. Tite Jury hiad public functions, to di%ebarge. and -an) feel'ing of party Ought. to inlimience the officer by whiom they were chloseti. Wrhy did not Mlr. Currie, retort to thle ballot, or to some niodle of itotaination to Iwhich no suspiciott couild apply ? Wihen the Court saw that a jury Iwere taken all froml one par-ty....whien tbey found that these men were alistost all under the lInfluence of a particuilar fansilY---Would thley not inifer that soine feeling itteonsistenit with public duity in- fluencedi tle sitewardI? It was sworn that he took five Itersons from the bhvstattders; and no dloubt they wvere taken fromi those present; but if chiatte brouglit titem to the liall, fortuttli was very propitious to Mr. Jolliffe, for thecy were all more or less connected withi his cause. As tile Court had sanctiotted tlitenominRation oftite jury bythe steward, a custom Peculiarly liable to certain abuses, they were bound to puro. tect Llie inhabitants fromi these abuses when distinctly brouguit be. fore tbemr, :ntd thmerefore oueltt to make tite rule absolute. The CoUnrT observed, that as the case was o-f considerable im-' portance, ant(i the affillavits were long, thiey would take tiine to look into thieta before they gave judgm6rnt, In tite course of the aroumettt, an allusion was tnadiid ffithe prac- tice of putting oni tie record, of quzo warraafio informations, every posible objection to tite officer against whom they were directed, andi whio was often ousatedl on some slight grouttd searcely mentionedl whien the rule was moved for: on which thte L.oRDn CatIEF Jus- TICE. intimated a disposition of the Court to repress this practice by confining thle p leadlings to the points on which the informations were geanteti, for the futuire. THE kING V. TUIMOTHY POWEiL, 'kSQ. This was an indietimetit against Mr. Poivell, a merchant of Bris- tol, for perjury, in an answer to a re.ataended bill in Chancery, of wvhich Ito uvas4 convicted at tite last sitittiigs for Middlesex. ThebIili wais filed by Jones, A1rellington, and Co aainst Powell and Co., for an accoiint of certain transa~ctions in whic the houstes were con- cernled aS partners, relattive to the purchase anti sale of Spantishb wool. At tite periori to whicla tlte bill referred, so long ago as 1808, Ro- bert Mlitchell condudttd the wool business, witht which the brotliters, Messrs. Powells, were unacquain ted, and afterw/ards put an endI to wiserisenpttote dteFalmonts In tite re-amended bll certain questions whichu t the alegendat respecting the saile of' 101 bags of wool, wicthplaintiffsaled were taken by Poivell and Co. to their own tuse, alter a shrim or fictitious; sale ; and also respecting 178 bag of wool sold to Mir. Osborne Yates, atid on whichi tie plaintift claiiyied a share of profit. In the answer, on ivbich perjuiry was asl- signed, M r. Powell and his brothers swore that as to tite 101l bags there was no shamn or fictitious sale, and that tltev never authorized a broker to write a letter in furtherance of suc'h deceit ; and as-to the 178 bags, that these were not sold by their authoerity, but that part were first transferred from their account, without their concurrence, by WVellington and the broker Ellsworth. On thecse assignments, the jury returned a verdict of guilty. Mlr. SCARLETT now pirayed tor the juidgment of the Court. The dlefenidant, an elderly gentlemian, apparentlY in infirm health, wvas accom modated whit t a scat ait time side of tlhe floor. Thec li RD ClHI E F J U SwTICE read hf s no tes of the tri al, w hichi Oc- cupiedl an hour and a half in the reading. Tuie ATTORN-EY GENEUMAL ttiten pat io an affidavit, on which he proposed to move for a new trial. Mlr.SCARtLETTr objected to the reception of this affidavit, asit was o~nly tnade to-day, -whereas it should have.been made within the four first dlays of ternts. Althottgb, in criminal cases, tise Court allowed the motion to be actua'sl5 n,ade oni hearing tise rep ort, yet still it was coitsi(tereAd as if madle ina the first four dayvs, and( the afHidai'its on %sbich it was grounded should be swvorn w-ithin that period. The ATTORNEY-GENYERAL replicd,th'atas it was not the prac- tice to coitailtmnicitte the affidaivits to-thie dun,~el for tlte prosecution, thiere was. reallyno inconvettience producedl by allowving uhetti to he sworn at aniy time before the case was heard. .The LostnD CHrtrs' JUSTICE said, that as thte defendant in. ttis particular instance might he misled by the,laxitv allowed in criminal cases, amisd therefore might, have dteferred niaking liis affidlavit itnder an erroneous. impressiomt, tlie uh.rt wvould not exclutde me; but a rule nmust lie drawn up, 'renAdeinig it necetssary iln future tliatatl affidavits to bie tsed on a motion for a new trial in a cr-imiali case, must, as in cvil causes, be swori within the four first days of term.. TIte afridavit was thaen read. It was sworn by thfe defendant, his brother, andl two of lisa clcrkp, qnd was direcied. to show that 91tchei exclusively ctifducta tli speiculations Ins wool, and that the cvidene of EbsWorth, the broker, was inconsistent witb l is own entries in the books of the partnership. The ATTORNEYxGEaERAL proceeded to cor,tend dhtt, on this affidavit, the charge respecting the tirst assignment wvas destroyed, but that as to the second it was-unsupported by proof. As to the 101 -bags. of wool, the bill soi,rs to )btamn a share of the profits re- sulting from them, or the pro6its wiich minht have accrued had they been sold to fair adyantage. Nowv Miite cli himself, by letter, in November, 1811, v hich was set forth in the bill, and proved at. th- trial, tepresented that htetook thist wool bva valuationl made by El's- worth, to ciose thc account between the fitrms; an4j, as he then did not assert that sucih valuation received the concullrence of Jones, Wellington, and Co., whl were jointly interested in the wool, he then admitted all that they could desire; for, on thiY representation, the transfer was wholiv invalid. True, Ebsworth swore that he made no valuation, but it appeared from the-books that be did; and whether he did or not was, as to the result, wholly immnaterial. Tr-ue, lie swore tha,t by Mtitchel1s direction he wrote a letter to the plain- titis, ststing that the wonl was sold; but he did not pretend to afiect thle lresent defendant wvith any knowledge of that letter. The Co'.R' intinsated, that as Di r. Justice Littledale was obliged to retire, in order to sit at Chwambers, the furEter hearing of this case must be postponed till a future day. TlfE liNG V. THtE COtPORATION OF PORTSSIOUTH. This was a rule obtained bv Sir. Alerewether, calling on the Alayor and Corporation of Portsmouth to show cause why they should not hold a mneting. to cnnsider of the propriety of removing tive aldermen of that borouoh for not residing within its limits. Mlr.SCARLETT, MIr. A;As%, and Mlr. EitsXIXEr now showed cause agahist the rale, on the grontid that the charter of Portsmouth did not require residence, and thlat the case on which the rmle was granted, " the King v. Truro," did not apply. The ATTonNEy.GrMcEtAL, lUr. GASELEE, and Mr. AlMERE WETnERE, in support of the rule, contended that the very nature of the fiuctions of aldermen required that they.should reside, and that in a place like Portsmouth the residence of all the local magis- trates wa.q necessary, especially in time of war, to the preservation of the public peace. The (dUorT thotoght there was not suueicient ground for making the role absolute. lt was not shown that any evil had resulted front the non-residence of these gentlemen, nor was any complaint madle by the other aldermen on whom the burdeni was cast bY their ab. selice. They tiherefore discharged the rule, but witlout Costs. COURT OFKING'S BENCH1. M TgTrn1 .T-rT ! TlfE KTNC. V. TIF!1 RTlT1nP AV p1FTll;A,r