Court Of King's Bench, We...
The Times, 1824-11-12T00:00:00

'Inls wa-s an action tor breach of promise of marriage, tried at the last sitting for Middlesex, before the Lord Chief Justice. The plaistiff had been barmaid at the Castle, at Salt-hill, and was relat- ed to Mr. and Mlrs. Cecil, who keen that inn. The defendant, a young man of same fortune, in a very ill xtate of health, repeatedly madie protracted visits to the inn, and there proposed to marry the plaintiff, and was accepted. He used to write letters to her while re. rident at the inn, which were transmitted from his sitting-room to the bar, and severai of these letters were read in Court, and after- wards printed in the rnewspapers at the time. At length the tde- fendant decltied to coilmplete his engagement, first urging ill health, and then the opposition of his friends. The jury found a verdivt for the plaintiff, with 6001. damages. The ATTORNEY-GENERAL now moved for a rule to show cause why there should not be a new trial, on the ground that the damages were palpably exceasive. There was too much dieparity in situation and in fortune, and too much differcnce in religious opi. nion, to leave room for hope that a marriage could be otherwise than unhappy. It was obvious from the letters of the young man (from one of which the Attorney-General read extracts) that he wa infirm in mind as well as body, and had been gradually induced to make promises whicll his friends could not allow him to fulfil. The amnunt of the verdict, therefore, would unjustly deprive him of mneans which he wanted for his own support under the ill health with which he was afflicted. Mr. Justice BAYi.EY.-Ttie verdict was only for one year's in. come. The ATTORSN'EY.GxNERAL.-For three or four years' income, my Lord, Air. JuAtice BAYLEY.-Yes, at the rate of I1OI. a-year, which he represented as Iis income when he declined to fulfil his promises. The ATToR?IEY-GENERAL.-And he has no more, except -what he receives from his friends. How has the plaintiff sustained Injury? Mt. Justicc BAYr.EPY.-Has she not lost her situation at the inn? Thc ATToREY_GE.ERAL.-I believe not; the landlady is her aunt. The Loan CHrEF JUSTICE.....Mrs'Cecil stated that she had ntot returned to her situation in consequence of the state of her health, whichl had been injured by the diSappointment she suffered. 'The ATTOLXxY-GENERAL.-I leave the case in your Lord- shtps' hands. Thc LORD CntrEF JL'STICE, after consulting with the other Judzes, said-Perhaps I should not have estimated-the lady's loss so hignly as the jury have doe; but we cannot say that the da- mages are so excessive as tojustify us in disturbing the verdiet. The rule was accordingly refused. CRIPPS V. SMITH AND OTSIERS. This was an action by an eldetly lady against three defendants, Smith, T'aggart, anld Bascomb, on a promissory note for 701., bear. ingidate in the yearI8516. The endorsements OR the note were in the hand-vrriting of Smith; and the jury, believing the whole to be a contrivancc of Smnith to obtain money from the other parties, re- turned a verdict for tbe defendants Mr. G}uursn' now said he was requested by the plaintiff, who -was a poor woman, to mentiorn the case to the Court. Ie was not himself at the trial, and therefore did not know exactly what had been proved. The LORD CIIIEF JIISTICE said he believed some entries were produced, to show ihe advance of money by Smitlh to the others, which cited gcrFat surprise in Court, troin thc manner in which they weretinterHined- as any gentleman present who had been in mhe catuse :? MIr. CH1TTY rose, and said that he had beens present, and recol. lected that Mir. Scarlett, who led the defence, discovervd that the , wse.mark of the paper on which the entries were written was of a date subsequemt to the tirne when they purported to be made. 51Mrs. Crippo lerself here rose, and whispered to Mr. Gurney, MIr. GURNEY said, the plaintiff was a very poor womnan,'who complained that she had not had justice. The LORI CHIEF JUST icE.-Sorne lieople are disposed to think fs they never havejustice when they fail; I hope, and belieye, thatfull JUStice was done. l Mrs. Cripps then herself addressed the Court and ascribedt the failure of her cause to the absence of lir. Gterney. dtir. G-ULtN Y said, the case was conducted by AIr. Marryatt, which was much to the benefit of the plaintiff. 1tlrs. Cripps then addressed the Court with much volubility, de- cl-,-ng that the entriesi were produced Rot as originals, but as copies, th ;pwhe<t>trlesse were not heard; and that the Court ought to grant i;stogive them an opportunity of proving her tcog. ^lse Li ED tEF JUSTICE. -After what was proved in this cz3e, cYrs have little faith in what might have been proved. We have nr.ly no autlority to grant you a rule without some good grosrd; and youl lave shown us none. r. Cripps continued to speak, though Mir. TAUsNTO-O was call- ed an to iove, and continued her efforts to be heard, till silenced by the Usher. At last, finding no one would listen, she withdrew. RSItS V. cox. This was an action of trover, brought by the executor of John Sims deceased, to recover the value of a promissory note for 1001., which had belontged to the t4?stator. Mr. Sims, the deceased was a rnan who died at an advanced a,ge, after acquiring considerable pro- perty in the city of Oxford. the wife of the defendant was living 'Kith him as a servant, or attendant, at the time of his death, and claimed the note as a dona.'tio mlortis conta. On her part, three wit- nessea, members of her family, were called, who all swore that thc old man asked for the box where his securities were deposited, from which he took the note and gave it to Mf rs. Cox, saying, " If I re- cover, you must return this to me; but if I dlic, you are to keep it." OR the part of tihe plaintiff, it was proved that the ol. man, being asked a litle before his death by a friend if he had giiven a note to lmrs. Cox, answered in the negative. Thie learned Judge, Milr. Jus- tice Littledale, left the case to thie jury, who found a verdiet for thL plaintifF. Alr. TAlITNTON now moved for a new trial, on the grounm that the verdict wnras against evihlence. If the witnesses for the defendant were believed, the case wns clear; and there was no variatiorsin theirtes- timony, cxcept that oue represented the gift as made before tea, and another after. 'heir testimony was supported by oneofthewitnesses for tieplaintiff who heard the testator say, that if Sirs. CoX wouldt ay with him till he died, lie would do somethliag hardsome for her in return fbr her gpodne8s. It was also corroborated by an endorsement on the back of the note, whtich if it were not the hiand-writing of Alr. Sims, added to the guilt or the patties the crinme of forgery. Sir. JuMtiCc LITTLEDALE said, that if the witnews8e for the de- fendatt vere crediteJ, they undoubtedly made out a ease of donatio vlortis cas; hut their credit was mlatter for the jury, and he saw no reason for disturbing their verdict. Thi COURT accordingly refused the rule. B RADLEY V. AnTEtUR. It will be recollected, that this was an action by Colonel Bradley against Colonel Arthur for false imprisorment, which was tsied at tie last sittings in London before the liord Chief Jus3tcs. There were a great number of' special pleas jistit'ying the imprison- ment by the military authority of Colonel Arthur, on wihicih issues were taken ; and, af'ter which, the plaintiff had further new assign- ed that the defendant had imprisoned hifni for a longer period than the occasion, if authorizing the arrest at all, would justify. It appeared In evidenc, that Colonel Arthur was, on the 7th of July, 1814, appointed by the Duke of Manchester, then Governor of Ja- maica, Superintendent of the Settlemlent of Honduras. On the fol- lowing day, being theln Colonel of the York Chasseurs, quartereti at Quebec, he received a commission from General Fuller, the com- manding officer on the station, authorizing himl to comimand such of' His Majesty's subjects as thien were arnieti, or as thercafier shotld arni themnselves it defence of the settlement. Unler this commission he continued to act, until the regimcnt of York Clmhserirs was re- duced to half pay. Upon tlils, Colonel Bradley conceiving tire Colonel Arthlur had ceased ij)gofiato to be a soldtier, anzid that con- sequently his military authiority ceasEld, claimed, as the superior officer, to command the garrison, andl refuset te obey Colonel Ar- thur. For this dlisobedience lhe was pult under armest, and detained for291 davs; during 218 of whichl thearrcst was olsen, and for the residue. close. Sir Henry Torrens ail Sir Herbert Taylor ,vere examined, and gave their opiniioni ttiat Colonul Arthur continued to be the suserlor oflicer on tire station, notwith.4talding the reduiction of his regiment. TVhe Lor(d Chief Justice gave his. opinion, that in point of law Colonel Arthiur had authority to order thc arrest of Colonel Bradley, but left the jury to deternmine, on the new assignments, whlether tthe imprisonment was excessive. Under this irection, the jury fouad e verdict for -dhe defendant on the special pleiis, and for the blaintiff ots the new assignment, withl 1001. damages. Mfr. BROIYOTIAM now, en the pArt of fhe plaintiff, moved for a rule to show causc why there stiouldl not be a new trial, on thie ground that the direction of the Lord ChIief Justice as ta tlle validity of the justification was wrong. He groumnded liS motion on tlree distinct propositions-firit, that the 'town liali no power to delegate the rightot' grantinig militartycomnlissions; secondly, that if tbe Crown possessed that right, it had never actuaily delegated such power to General Fuller and, lastly, that if it possessetl, and had delegated the power, Greneral uller had not exercised it by the commnnission granted to tite defendant. And first, he would contend, thouigi it wsas not necessary to his case, tilat the Crown itself possessed no right of delegating to another the power of' granting com:irissions. He tlenied any power excepting that of the Crown to make a man a soldier, and clearly no such power hact been exercised on the pre- sent occasion. Alr. .Jatstice BAYLrY.,- Vras rhe cemnuissioti to General Fuller prodiecl ? Mr. BRouciTAae.-No, nmy Lord, it was not produced; and if it bad been, the Court would have seen at once that hi delegated no suc;t power. The idlen tihat the commanders of districts niay grant commissions, hais excite(d very considerable alarm ; and per- haps I have said enough in a case so imiportant to entitle me to a rule. If the Court think not, I an prepare(l to go further-to show tihat when Colonel Artitur was reduced to half pay,he ceased to be a tailitary lian, or amenable to military discipline* but probably I have said enough to induce the Court to put this iiitportant question in a train for furthier Inquiry. In the case of Captain Ross, it was decided by tll the twelve Judges that a halt-pay officer is not liable to be tried by a court-martial. Air. .Justice BAYLrY._But lie is not obliged to give up his halt'. pa) ttnder tthe insolvent debtors' act: for it is not only a reward for past, but a retainer ior futnire services. Alr. BROUG1Amr.-Ita half-pay officer be summroned to active service, and reftise, lie cantot be tried by a court-martial. The LORD CIIIEr JUSTICE.-No; but the King may strike him off the half-pay-list for his refusal. PMr. BxtoustIf ar.-And so he may whether lie reiftses or not. The learnetl counsel then proceeded to reniind the (tourt, that if ne- cessary, hewould argTue that the Crown itself could not delegate, and had not delegated, to GTeneral Fuller the right of granting a military comitnand. Alr. Justice BaYLxY.-Then, supposing in any colony there should happen not to be a number of troops sufficicnt for any emer- gency, and other persons are disposed voluntarily to serve, the -King must be cieprived of their services, because no one on the spet can grrant a commission ? The LORD CIrErF JusTrIcE.-The question on the trial was, whether the def'endant was authorized to conduct himself as he did towards the plaintiff- AMr. BROUG}sMA.-lIf your Lordship is going to decide against mie, I must beg to be heArd further. I thiought it was understood at tite trial that shotuld move the Court, or tender a bill of exceptions. I was invited by your Lordship to tender a bill ot'exceptions. The Loan CILIEF JUSTIcE._ Then I will state the stibstance of what passed at the trial, and my learned brothers will judge whether you should take a rule or proceed further. His Lordship then stated the evidetice given at tnie trial. and repeateli his opinion that it proved an authority in Colonel Arthtir to arrest the plaintiff. illr. BRoSSGHA)S proceeded. The evidence of the tmilitary men- most respectable as they undoubtedly were-went only to matters of opinion; and that opinion involved matter of law, not local law or foreign law, but constitutional 1tm, on which this Court alone could tiecide. If required to argue that no military commission could be granted by a subject, his only difficulty would be the absence of pre- cedent, for the case had never arisen; no one hiad ever been wild enough to suippose that any bttt the King could grant commissions. The recognition of Col. Arthur's authoritycould make no dillbrence, if there was no power in the Crown to delegate it; they amounted to nothing bitt the erroneous oninions of individuals, and did not carry the cse one step further. ?he evidence of the two officers contained doctrtnes which contradicted each other; for they admittqd that a half-pay officer was not armenable to martial law, and yet they as- serted that lie, by virtue of his military character, continued to re- tain a tnilitary contmand. ilr. Justice BAYI.EYs.-Then, if a military man is appointel su- perintendent of a colony, with an intention that lie should also eonm- mland the forces, is he to be deprived of his command by the redlue- tion of his regiment in another quarter of the globe, of which he is ignornt ? Mlr. B3RotIGHAm.-And ttat evil is felt and provided for, by immediately sending out another conmission, olen it happens. Of this there are numerous instances. Mlr. Justice B3AVLEY.-But here the dlefendant ress riot mereLy on his commission from General Fuller, but on that from the Duke of Manchester. MIr. BatOUGIIhAM._Not so, mv Lord: tire commissien from tire Duke was only mentione(d to be dismissed-it could rio nothing-the whsle case was bottomed on the commission from General Fuller which alone couldi give a military command. But what did that commission effect? ?Nothing cleaily, if it did not proceed from a delegated power, of which, if it could exist by law, no proof was given. It was difficult to conceive how officers could i4raw their pay, unless appointed by the Crown. The officers in the North Ame- rican Colony, and those of the Last lntlia Company, though the latter hail commissions from the King, were allowed to take rank only by virtue of ex press provisions in the articles of war. Without those provisions, they would not be amenable to military law, or entitled to military powers. MIr. J ustice BAYLEY._IS not a commandant, as suci, amenable to martial law ? ar. BROUGETAar.-Certainly, when ire has a commission from the Crown; but not when he is amere civil officer, vho, having been a soldier, has coesed to be so by the reduction of his regiment. Tire LoRD CUtIEP JUSTICEc (lr. Justice Holroyd having letl the Gourt) slid, I am given to understand my b;other Littledale wvill decline giving any opinion on this question, and my brother HIelroyd is goRe. Wlould the Atterney-General object to hp.ve the facts brought before us in a special case'? The-ATToRIwxEYGENTEItAL said, he would conisitder of the sug- gestiuon and infbrm the Court. The LORD CHeEF JUSTICE (to lr. Brougham).-Your argo- ment goes the length ot' main-aining that Colonel Artliur was never rightlyplaced in the military command of the colony. Ilfr. 3ROUGHoA;f.-Not before his regiment wasreduced; because be would comnuand as senior officer. ir. Jlustice BAYLEY..-.And after the reduction, he would be su- perintendent, with a military eommarnder over him. J1lr. BRomGHACI was about to reply, but The Lostn Cser EF J UsTST CE said,-The case will stand over, and if the AttomevdUeneral declines to agree to a special case, lIr. Brougharn wiLI proceed in his argitment to-morrow. buUUK1 OF KING'S BENCH. Wrq-rAi-,- NV- it NtCnOLSow V. YAQ.TT