Court Of Chancery, Wednes...
The Times, 1824-01-22T00:00:00

LAW REPORT. iAtr. JlAKT restiume.U i15s argument or. yesterday upon the treat. ment of the evidence of Mr. Gibbs on the N20i P7iie triaL Though, thp past lit'e ad behaviour of this person were reprehensible, yet his evildence ought noit6s-havebeen sent to the jury pervadedwith suspicion and suggestions to the. disadvantage of his credi~ One advantage, however, would be derived fion. the -remarks ofthe learned Judge. It was admitted by him that Ar. Grimstead bad been brought into acquaintance with Gibbs with a view to employ- lag the latter as annuity-agent, and tbat all their transactions were founded in that agreement. Hle would only observe thus much fur- ther on the evidence of Gibbs, that he displayed ne prevarication,and that he did not mncur the reprehension esther of the Judge or the counsel, and that he came out of the box as fair'and unsus ted as he vent into it. He cam.e to the next piece of evidence wih de- cided the fate of the cause on the triaL If the pass-book had beet thrown into the fire, the case must have been governed by the evi. dence of iMr. Gibbs alone. This book, which, however, did goven the case, was ful of doubts and perplexities. Then who was the proper person to interpret those doubts and perplexities but Mlr. Gibbs himself? He did explain them, and his evidence perfectly agreeda with the state in which the hook was found; and the con- trivances to which he had recourse were so specious and systematic, that they would have imposed upon a snore astute and prudent man than DIr. Grimstead was known to be. The book owever was ield, upon the trial, to imly something to the disadvantage oq Mr. hrimstead. No one couid say rteeisely what that somietbing was, but for want of more certainty it was held to imply a contract for usury. WVas there ever such a principle of law as this broacied in anv coturt ? The LoRD CHAxCcELLOIL observed, that among the entries he only observed one insertion directly for interest: there were other entries for produce only; and th,e question vas, did that mean in- terest only, or produce of an annuity ? There were also entries for so many days of an annuity, the meaning of which the Court must endeavour to find oat: but the question now was, did the Court of Common Pleas put it to theijury to decide what the word producein those entries did mean ? and if that were done, would the jury come. to the decision that these entries implied an express loan for money ? and lastly, if,under all the circunmstances,the contract fell within the wording of the statute, " colour, device, or shift?" He believed that with the actual grantors of annuities,' the usual mode of'entry would be credit for the produce of annuities; where the parties were not the actual grantors, there the entry would be produce of the sum advanced. Here were several entries of produce, without names attached to them. If that meant proluce of annuities which GiI?bs had bought, or which were to haye been bou.ht, was that usury?. O6 the other hand, supposing Gibbs had sad, " I have deceived you; I saidt I could buy an annuityof Lo-.d Sefton, or any;other great person, but I did not buy any. .I will, hoivever, make the in- terest good to you the same as if I had bought thb annuity." Wilould that be usury ? No. Why ? Because you can compel me to make good the loss which myeonduct has occasioned to you. But he could not fi ad what the Judge had advanced to the jury upon this part of the point of law or fact upon which information waswanted; whereas he felt equaUy sure that in four issues Qut of fi'.e the Courts below were not informed, nor did they understa dwhat sias the pte- else question upon which this Court required theirdeciion, because the Court did not suficiently explain its purpose. Ar. HART said that the 'Judge told the jury to infer every thing against Alr.Grimstead,and nothm'gfor him. So far from the nature of the question being folly developed before ike Court and jury, there seemed to have been no explanation whatever of tie only point upon which the Court sought satisfaction. He pointed out items in the book for commission upon the annuities, which could never have been charged by Gibbs if the money had leen lent to himself. He particularly solected this passage fror the minutes of the Judge's charge:- " Now let us see under what asl ect of circumutatces the case presents itself. In the first place here was a pasa.book delivered from time to time by, Mr. Gibbs and sent often to Iiim, containing ap entry of all the different transactions, fromn the earliest time in IUll,l made up to the time of the bankruptcy., Nqw you will judge whether it be or be not a little extraoidinary-whether it be or be not enough to excite suspicion; for -it-is a true maxim in courts of equity and law, that.that which is sufficient to put a person on inuiry is in many cases equivalent to notice; because no man shall, by abstaining to inqoire, say that lie had not notice,- aor shal any man be so permitted to dupe the law as to shut his own eyes wifeully and say I did notse,- when, if he had kept them open, he could have seen;* andshut them merely that he. might not see; because if he had seen, he then would have known the Surely this was, to say the least, a harsh interpretation upon the unhappy negligence of MIr. Grimstead. and had little to do withi the question put in issue-if Mr. Grimstead's was or was not a bonasfide debt. He complained equally of the appeals made to the jury as enlightened men nmd men of the world, it they could have been capable of such weakness and neglect as that of not examining the pass-book. This miiglt be all very sound in questions of right betveen parties ; but what was it in a case where there was an al- legation of usurious contract introduced into the suit ? The learned Judge observed, that in cases of this ulature they were not to expect always day-light evidence. Beyond doubt Mtr. t3rimstead would have been entitled to demand day-light evidence in order to convcrt transactionis which the Judge allowed to have commenced in fairness into an illegalcontractforusury. The question arsinguponthewhole chargeof the Judgewould be this-_ouldnotidcof usurious contract be construed from books or papers so as tosuppl$' the placeofthe direct evidence which the law, expectet from any party accusing.another of entering into an usuriousi contract ? He was of opinion tiat no useful purpose would be answered by sending the case back to A isi Prifus. The evidence was complete-there was no probability of any addition being made to it. His Lordship's mind could decide upon it more satistactorily to the partits than any other tribunal. hr. HEALD followed on the sanse side: but as there were other counsel behind him who were more perfectly masters of -the case, having beeu engaged i11 it from fast to last, he would coongre his re- ato t ;tcDk plue in the petitioh before the Vke.ChLneellor.- Qft ,1 0e o-thit ?etiton was not at all gone 1into;- if it lhd it- S l ateen found to bc aUl on one side. The evidence of Mr.' Sb iwana,the respondents referred almost entirely to whar took' plc aminong the parties as to-the choice of assignees. N'one of thi witn,Wes -on that side touched the question of usurtios interet, leving t to theproofcf the pass-book, and the decdisin of the Court- upon t contents of that uook; whie the fiact and intention of u4ury were altogether denied by AMr. Grimstdad and his witnesses. Thi Vice.Chaucellordid determineupon thepass-book, withoiteithtr' hearing evidence or the arguments of counsel. Fhoep5ss-booe was sent to thejury, clnargea with the condiznnation ofon,eJudge. - Bit the difficulty of thle case lay in its having been sent to a vtrid4t.- The pass-book was evidence, and the-only ocumentAry evidence9f- thenature of the contract betweea theta;a nd if Hosard ind Gibbs: hid both died, the book would have been -the only'evidenceeof aY kind, of the fact. Hc had, therefore, never been able to See the 4Lle of any mitiaphysical and inferential arguments uponsthe use made5f the boolk, or of the fact-of its having gone through bte handsof ir.- nrinstedd so many times, more otlss. Thewholequestib6nfbmthe jury was, bad there been a-debt incurred- by Mir. OSM to fr. firimstead, or had there not5 Looking at the pase.bopk'witkoutany of those mrtapbysical comments' hich had' been put upon itAt Nisi Ps-za, there wrs no proof of any usuriOu4 eontr Thete were passages whicb suggested a-saspicion oftbat kdd ;Jbftt thbo were others which were devoid of any such appearance, nud the cot tentsofthe book tnust ehe take itogether. Therewereent es gepftdd*' 'a for anannuityfor2 daysorso; nndirwas contendedon teQtber t xde,- that saiLt was imp.;ssible to effect- an annmitv for ai ew day,tbis was clear evidence thattb ere was an usurious contract betwee tlhm- It was atleast aS clear-that the parties emight have some-btbcir cuctrct' which was not usurious. Why -not consider a~rii otee~ dence, that-Howard and bbs stood in the rcati o n inxty crqe-' ditors-to Mlr. Grims'tead ? Suppos a nn-were 'toray to a u66uqtry -Imsnker, th-ere ari 1,001. which I1 will Lnver crcl .n -yn m a re tQ it oUt in ananuity-buy it of whom you will-I hbla lQuiswer., able for the interest of an annuity from tfis idme. - That wt.s not usury, for theiBanke' fwas as capable of grantink an auitersini otbhrperson. bkhhsouldjllr.G rimstead, whoisIp sbidby dhe ether; side t6 be eonivkrantinathe htiws' - bh,e-recoauseto -usulriou contracts, when he -might' have done tLe business safely withbu't I' But above all1 howY should Gibbs - charge -his emplover commissiote for money-lent to himself? As to the easu'resin the m ook, the only possible use of them in' the way of fraud must have been to deceive Zr. Grimstead; the only evidence on -this point being thf ' of Gibbs, who acknowledges that 16 hsve bcen his iltentiOn ii- snaking the entnes-and erasures. HeeAhiuseqted upoi the evidebce' ofbfG sb which had nevcr been opendin any of the ourts. Mr Gibbs WdnittWd tbat on each occasion of sending? the-l;wok' to 31r. tnimstead, beAways took careto-exhatt the- balinces dito'3ir. Grimstead in fictitious annuities. -Now this cbsld nor sbavP beei done for the pyrpose of contriving matters' with: a view to a.bahk..- ruptay, f or oXseentrieswere as often emased.' e e- 'Qnl' not bave - made te entrie .and erasures top to deceive the Court.-Recurring to the,meritsof ih. petition it waaselear that in -a-que8tlfo- as 'to whether asAty'ahquldor 7ould not- bu-.ahowed "to I roye aOz - unde ab&nupt commission, the creditor mu5t hitpsEdi e md as as ness; and in case of-sending-an issuetted 'outof )F.. Court;Iie nevef heard of d6inggtbatwithwut-atleastfirstheamnk: whatwastheicomplait the petitioner had t7nmake. . " ' The Lo.tD CHAI;CELLOR aiked hor it ame -to'pit$ that Mr. Gibbs had not been examined before thc jury. as to -he-sg.eentat forannuities: -forif the money rweie-advaneede-to-Gibbis to -iffect annuities, anct the rcal grantors had died' before they could be g . feeted, then Howard'ana Giblbb vlO ii ve kept possessmiof thew money. - ------- -Mr. M02;TAGUE folowed on the- same side. - From tw~enty ~~s-ea knowledge ofhis L??idship's?charadtr' hekneve tht had-hxs-,ord_ shp fst heard the petition he would. have,ordered ihe-debt .1be proved. Therewas no issue to try. This wasau Court in which thebre was hO shrinkng-from the patient labour ofjristice. ItrAs an ' y and specious mode of dealing with the-difficuties of a caso-tosend-it to adury - but it was in many ihstancesa danotuw specioutn6ss. The peop'iv of this - country had a b(ndness -for the trial -by, jury.'. The achievern,entsofthi~ hil were fullsf hzofiry wltichiheld forth! trial by jury ags hting of he greaest ex uence. He saw ihscribtd,- upon tne arms of hi L-ate friend annd benefactor, " Trial by Jury'" This was as it 3hould be. 'The! people were preserved in t.'eirlove ofjustice by talknsgol&d,of any-twelve of theza1who firsta -roacbed,' andpuiting them Into a bom; to decide between-paitis'wvhere either life, orptoperty were-concerned. Butthe excellence of this mnodeof trial in- civil cascs -has more than ques4ionable. The rles of pro. ceedun--ha those courts, were not always slow enough.'.thev,seemed to be ftamed with a view to working a Inaxinium of justice ih a-min- tdlmumr of time. They were also frequently too'lax fortlie rigorous- spirit of truth.- Wouldte present Attorney-Genera, w'ith ah1u* nasculhie understanding, have venturedas a -awyref f61vCOd: dressed oDelialf of-the suggestions with wlvich he Rrovoqkeddhdjury- tegive,hima verdict, with endless ambiguities, such as " You under. stand me, gentlemen"" I Imentionthicto you as men ofbusihss-5'? nd nl this with wvinksl and smiles, 3nd looks whichi ininpsteub 4. the doubts ie learnwd pleader cold 'wislt to-infuseinto'thepminds, of the Jury. Howard and Gibbs! Why.the names at thatline te:ee objects ofunversal terror. TheAttorney.General neaily brolke't-h heartsof the simpile-minded jurymin with talesof distresst-the. causes of which he attibuted to those persons. Another defeet of that muode of trial for the decision of merely civil questions va;id that; muenlooked upon factsmostlyin relation to,their own habits. -Neg. ligence in examining apass-bs3ok! Why, it is the high treasoni of: trade. Ajury of comnwon men would aamost denounce the offender -without waitsigfor any othqrpr1ofofbisdelinqueucy vkereasthat very ciicamstaice coinstiuted a material part.of the equity- in-'this case. Beyond doubt, his Lordship'slimnd was the best constituted to determine this questibn, and' tbe 'petitioner at-any -rate, had no . other hope than in his Lordship's decision. hIereally thought. that either alternative of the argument proposed - by-the ooposite t!de wvas only fit to be entestained by a lunatic; The false entries anid erasures; -were they designed to deceive Gelinstead ? If so, bis -Jearned - frientTs ought to pack up their briefs and depart. No man- cuild pretend tnat Mfr. Grimsteadshould'not'have his moneyr. ,u8pose, on the other hand, that tibe book was prepared to deceieh the pourt. - Mlr. Gibbs acklnowledgesin the witness.box that tehibooi -sfall bf fase entries-to deceive the Court ? Wlrhat need- or-Ilse of this - suprerogationof fraud ? Furdler argument to-morrow. COURT OF CHANCERY. W9.NW9lAY. 2A\. 21. EX PARTE GRI'MSTEAD {1% RE HOWAMD ATD GIBBS.