Court Of Common Pleas, Gu...
JfbOr tAae Lotrd Chief Justice BksTr md a Special JJuru. iujr. rLA'TTopened the pleadingrL Tine plaintiff in this case wa's a-SignCet-to the-estate of AlaryandiHenrv Phillips, under a conmmis. sion of bankruptdY issued against themjonlny; and the defendant 'was-tile assignee 'to the estateof -Henry phillps dun a cortmis- sion-of bankruptcY issued against -hint singly. 1,his was a feigned issie-fronithe Vice.iChancel oed Court, to try wh,ther, at the. tim the jointconiarsJon was issued -agailst -illeryaid alenry Pheips, there was a partner3hip between them, suchl as woaldl sa,pport that r.Sergeanit VAUGRA,Igptold tile 'iurY that thy' had.heardth nature of this action from his learnedifr7iend,rn1r. Platt; end all- hiaet- wasleft for hfiml to-s~Io was to state the circumnstauceK Out of which it lbad ariseh. Sonie years ago a person of the 'lIme Of Phil1is car. ried on titef-busines-; ofde furrier ud hatter in Petticoat.lan,- On, his deadi hi{s wife continued it but findingjeJrself incompeten t'? enrry1it-on-alone., took her son into. pattners'bip iwith her about four years ago. They then took; a second -shop in Devonshire,st1 t, where they carried on the sanTe busine'sg1:n@Issued cards,nnounn- ing thLiaipaitnemihip. UTnder this firm they obtafned- %ithij ithe]ast three or four months previously to tlhei issudng ott'of:the eonimis_ sion of -bankriitcy against them, credit to the atMnbut of lo,oool Bils-otf exehalige wvere-drawn upon ard accepted- by them in the nau,ueof-itary Phillipsand Son- ;Ipvoicesof-goods furinished to and.!hk thdrn wvere. madobilt in the same 'style; and on the mes-; senger 6iider tlecommission tking. possession- of their preperty.nul the hzdiaNif- a.pattrietship between' themn werel discovered. He shoulip'ore tl,at this-pat~tnership had continued down to the 9th of October, lil239-kcn the -aet. of-biunkrxpt6: :waF. conmmitEdl on whliC ch the dsmnishinof the l6tlvtif--Otober was Thuialed; and that <he .petidloning itefs4elbt'as- coptractedl in theApril pre.' cedingit -Ibdid,.ot aknoe ~what kleffeeedt- ;wassintended toTset8u4 I I ugniosm thii3 &ase ; -hev e {tha vif heJhad,nado ouSnin, evi4encewbat he had mentioned to thern, they would findI by thir verdict that hie had establislied the affimativb sidle of the issue wyhich theowere empailelled to deecide.;r 1,- . e et~ie wb*fi4l1y ubtintted tlhi statieniiii. ~reat many blls of~llhange4' . rawn , upoii- andt accepted'.lt~ " Mdr~ r hilips nd Sn, wre.pit'in ',.but it appeared, upon cros.exanlu tionof omeof he itheti,:that Z*rs. P2hillips could ntitbcre d nor write, arid that thfe ai4 ices i~e~rlwritten by I UIi ItwaProved that thle name'oPPllis n Snwa N'bi Ishop antht erwniho sold hatSf on lit( rctve tem from the mnotlher. An admisSion ofMr.hii that slche ll-Ctake-etLler. son_ifto.'paUers1lip was poc~btu affidasvit of debt,wasproduced, in 'dciyPtfts d~Wr to thu samne fact. - Under thiese:ci ut~esi Air. SesgeanttW*,DE saidt that hq,was,.hot .prepafed to answer this ~Casei and&theic itry, after ty1iadiho '1y cliargtia by..thb .Lon ClUS' USTIE, etured verrct.litdm~the issue'.in thie affirmative.., . . (Bejore a Com?zofl Ju ry.) GREtG V. LtFBe ~Mr. J USTICE- oIXened the pleadingiIf Thsedeclarations stated tIiit the defendant wasindlebtedtotnhe.pla.intiffin thiesumi of 1001. on a certOiin bill of exchange~. The dfeTenrant pleaded the general issup, atI11 also two apecial plcan,,.of.-~ebjiti the firbt.was, thlat hiehad deli- vereel over-to :h1e plws,tiJV cettain.bookq and papers Iin s;ttisfatIo6n of'. thisclaini.of 10.at,h second, that. be badl.delivered themn' 'ovter to the. plaiintiff ' attorney, for the same purpose., The&truch of these pleas,was denied in the plaiitlt&'s replicationi, and that was thp, issae the jury had totry. - AMr. Sergeant WILDE,sae the case to the jury. Thilfwas an action beduglittoryecover the sumnof 1001.,.due to Ar. Greig, of' Isi- lington,.-upon a bill of exchanige accepted b~y thie defendant, uild p aid overby is sn-i-law Mr Yong, to the plaintllE Thick had hard he peas hichhad een plehdled in this ac;ion' to hi.pro o h defendant's-hand-wrtn;bthsoudclte defend ~ agter ns-a witniess, andsod khefitwehr it washrfte' hand-wvriting, and then if She deie it,wether hter fatlher hiad niot given, her brother-in-law Younig lev tsign'and accept it for him. LIe ould also pr-ove t themu, t'ht he thWIl becamie due, thie Jefendant bad sent a person to request thiat the symiient of it mighit not -be pressed, as he bad been prevented fromi ?lonourinig it by sonmc personi withholding certain goodts that ought to hia,e been forwarded to hiim. Most undoubtedly, somne pipers lhad been delivered upto'the plainitiffby thiedefendlant's soninzlaw, YounF. but they hiadl nothing whatever to do with this cause. 'I'lie plainitift' was in patnrship with a young man at %Vithani, in Essex, and was the oint proprietor with himi of' an work on'thuc population of that county Part at' this work liad been sold to Young, who had bec tejndbted fornt to the plaintiff. Young fell into difficulties, anld thle papers were re-tlelivered toi the pliintifl', undcer circtum- stances inito whilch he shoulti not entier, unless the dlef'entlant's case renidered it necessary. lie shiouldi now call hiis witnesses, and prove hIs case. MnAlr. George Scower, a solicitor, proved that thie bill of ex&bange qiii uetion was tdrawvn by Mr. Youing. Ilie also proved two en- dorseinients oni it to be in the hand-writing of' the partiest whio hiad prore,ssed to sign. fle kniev nothinig of' the considferatiotn given for thle bill. Aliss Mlary Anni Lif'e was thlen puit into the witness-box. Sluede- plised as follows :-." The defenidanit is miy tatlter. Alr. Young is, thle dtrawer of this bill. I never called on Alr. Alliston, thec attorney of' thie tplaintiff, in April last. I havea a sister ; hier iname is Sarahl Anni. I enceu wenit vithi iiy siister MVrs. Yottng, wheni shec calledi at Mr. Alllstoii's. 'I'his (looking at a letter) is not nmy hand-wiriting. (tdo niot kniow whose hiaadwriiing it is. I niever saw it before. I thinik that it %vas, abotit Alpril las,t I called with miy sister ont Mr. Al. lItton. I hadt( seeni miy father thait niorning before I caine up) froml the- counftry. I had tio conversation with miy flather about this bill. II . Vtig i r tlnhe i boksandpitures. This is a bill tdrawn by Mr.Young n my htlicr I hae hcard mny hittlier andi Mr. Youn tal ofbill, bt ni otthisbil. Mly fazttier gave AIlr. Young leav toaccpt snicbils us hi. Iknowv, troin my father, that Al r Yong as cceped omebumforhinli,and that the have been paid I o nt kow hatnihof hemhave been paid. It is inure thani thiree or four mionths since Itha any contversation about these bills with mny fathier. I lhave seen Younig write. Looking at thie niote slie said, I This does niot took like Ykoung's hand-writing. I believe it is niot hisi hand.writing. Tueli drawing I dlo tiot believe to be Al r. Young's, though it looks like it.' " Cross-examiinedt by Mlr. Sergeanit VAUGH5AN.-Bills were accept. edl in my father's name by 't oung. Mr. Scowver was re-called.-He provetl the acceptance to the bill in ques;tion to be in thie liand-tvriting of Air. Young. fie thecn stated that lie was assignee to tite estate of Young, wvho was a bank. rupt. Being axsketiwhiether lielhad broughitthe exam-inations befoelre the comomiiissioners, he stated that he haid received a subpeena to bring thiem, andt that he had in consequence donie so. The LORDs CuiEF JUSrTICE thought it right to iniform the wit- ness, that he was not comnpcllable to put themii in evidlence. Hemiighit dlo so if lie thought lit ; but it wvas for Iiim to decidea whethier he wouldl or not. M r. Sergeant WILDn, with submission to his Lordship, contenided that lie hiad a right to call for the production of these Pap ers, if theCy did net contain any thing that was likely to prejuidice the ~bankruipt,'s estate. ft hiadl been so held in a case whiich had been dlecided iii thie King's Benich, but of wkich he didI not recollect tCie name at thie in. slant. The Loani CiraEF JUrSTICE: maintained hiis formner opinion, that the wittness coti( not be conipelitti to produce the excaminations be. fore the comminssioners. Mr. Srgeat VAGIIAyaske thewitness whiethier the produe. lionof he apes wuld ii hi opnio, _injure the bankrupt's estatt. The itnes rplie in he egatve.lie adided, in answer to othei quetios,tha te bnlrup Yutt hd beeti examined on Montda3 last an tht tere ad eet a eetng of' the creditors yesterd"~ to cnsidr wht souldhe dne wthregard to thiree actions which Mliss Life had instituted against the messeniger under the commiission and against two lpawnbrokers twho had given up some of the bank Fapers, thtought he would tier pre34 them to be received as cvideartei Ilis LordshipI'thought they ought noL to be admitted. - The Lotni ClitES' JUSTICE said the question appearedl eo bjin to be simplv this-..ouight the witness to produce papers which he heIr as ithe soitlctor of-the assignees to a banfIrupt estate? Had anygp r son a right to call upon an attorney to give up the papers of at thi party, which lie only held as that, thirdI party's attorney ? HI th)ought not. Still lie would allow thle examinations to be patit-r evidence, liable to all objections, if the assignees thought thiat tin production of dliem would not injure the bankrupt's estate, aiidl ivoult take upois themselves personally the responisibility of proditcinjg theotl Mr. Scower said that he wits placeth in a situation of some ileli. eascy. [Hc lad the papers with hiim ; but he did not produce thezm Tite platintiff in this case was one of the assiines Co the- bankrn ii Young's estate, and teas theretore his client. T'he produiction ofti cerainy tntinjre hebanikrupL'S estate. p~s~ Ia~iI Mr.Grei, whowas n Couirt, interrupted. the wit. ness an sai tht, aatiassinee hewas wiillng to take uiponi hint. self te respnsibiity atacliet to te prouction of these papers. The xamnatonsbefoe Cte ommssiners were Its consequenec llls Life it as recalled. Site stateil thtat site hadl niever bieardV heit father authorize Young to accept bills getnerally f'or him. Young was, only authorized td accept particular bills. Stie could not say, what particular IsIiis thlese were. She also identifl&l her fathier's mlark to hit depositions before the Commnissioners of Bankrupt in ithe tsattcr'6i Voting. Thie depositioniof Mlr.Thomas Life, ihe defendant, before th& eoml. imissioners of~ bankrupts was then read, It appeared frotnl ntis de. liosition thjat lie had g-iven Youog heave to accept bills for hini. Tnis was thte Iase f'or thie plaintiff. Air. Sergeant VAUGIIAN complainetd of the manner hi whichi Chit case hiad been condlucted by the plaintiff', who, ltc contended, htad unfairly turned time power whichi lie hiad acquiired tinder the baink- rupt lawa. for the benefit of the creditor-s into ani instruinent f6r his ewn private advantage. By that rncans he hiadl wrung from tIme the- fendant an admiission that he liad given the bankrtupt-Yoang leave to acce?t bills on lits behalf ; but Surely fromn that ad- maission the jury, would not infecr Phat hie .tlgiven Youhigai general liower to accept in lsis iname whatever bills, lie mig ht thin'k proper to draw. That waa nit itiiferene whiizh was not .onl ab slitie in itself, but krhich was positively contradicted byv the testimony of the defendlanres daugliter, whiom his 1dit5ned'friin'd hind pt.it into tile box ns a witness worthiy. of cre'dit ; and whio had sworn tliat hbar fa- titer never gaye Young a general Power to accept bills on fiits behalf, but onily a special and particular one. Of the bill oni whiich this tic- tioti wsva brought, Alliss Life saitt that she knew nothing; anid there. fore rtie special authority, whlich she heard her fathier give to YounTg regardling the acceptand& of' bills, could not by any m-eanst apply to it. As to the endorsement, lie wortld allow thiat it liadben proved Cd have beeti m-ade by Youing; bb-,tis to thec acceptAbdes, it was onlyin'sinuaied by One w~itness, anid Positively dtettied byarl Other, to have been: written by that pterson.- UJnder- these c rpto tstances, he conten'ded tlint there was not sufficient evilden-ce to fix the defendant as accepior of this bill. But 6veft Supposing that thiere was, hebehAdagoocldefencetro this action. `Thetwo pleasi,whiels his. learnedl friend lhad ivatily offered iso evidence to contrudict;,stafedt, Clint certain books And engravings'ltad been deliA'ered'into..the lihands- Of' the plaiistiff,ror hIg'attorniey-, for itrwas timesamue thiiil'On poifit bt law, as a satisfabtiorl ftdr the amount of this bill. L' hA6f;utqrneent -hc wOuld prove to thtein by niost, ntitisfactory evidence.- liet should also prove, that partof. the bIl htadlbeen Paid. itt niottey; and if he tlid this, he tlhought tlint his client *Ould-cerndnlrl be enildt thecir verdict. . uildt Two papers signed by ths6pia-intiff'were fhenlint In. The first was datedl the 22d of Mlarchi, 1824, anti acknowvledged the - ice~ from AiNr. Chorley, on belhalf of Young, of 1,171 liumnars-of aworteal1etl. the Excuersioi, andl1,120 large paperp.rints tarit. Thelgecond was dated the 25til of A 'arclh, and acknowli~dged the receipt Of" bundry maps &e The cotaied n dinfih of the account upon whteb Mr. ohitChorey eposd, tat hie al delivered up these 'en, graing toch~plastit~ Ai he unehe dlid so, thiere was no. spe. aciconunti, maeo hsbil.H a paid eight guineas 6ffit:on The LOan CnsJUTZ.CE observedi, th-at tliis'evidence by no mnenis siubstni dttpea.- rl 'ergeant VAUOHAN said, he could carry liist se no furtheir. The receipts liad been inoit incaiiiously- worded. The LouD CxriEF Juet crc.-_CautIoasly, I should say,' brd- Vtbr Vaughan. . AMr. SdrgenntW'VILDE adibitted the rtceptof 81. 8s. lie h3adex.' peeted that the def'endait wyould Jihve called a witness to:jsrose it, whoiihe wished to crbss-examige.' lic had-therefoie said iinthirng about it.i1 his bpehing.speecl4 though l hewas now very ivillin -to admiti t. ThelieEoid CirEr Jusgr'riey 'then Iltlree tmi' jury f ll:in formnei theni, thalt.as itlhad bcen pioved that the deIentrhidejgiveij a spetial authority to Yourg to accept bilbitil fis name and ts hi hadl not Abotirf that there iWere hIy oRhei,biSs to Which 1iis 's'ecal- authirity had iseen linuiiad it-nlist.bepsedthgt tht 4ifii,t relafed tp this parLICular. lib. it- thei2 they wete of opiou tiat i' acceptan:e 'was in '? uhg s hland.+vrittiigiley~ woultu find '51:i&ti'r foti tile phainfiWfor' ilelOl'y ,. titius the '81 s, wipef, hid4 e offt It onmcount, and IiiC the plinti.fft counsel had deglysd cepdiiiess5.to admtft 'if, hiowitevdr1.thei.jffr%e<ff bpin'mrc t rat ;it:i~;'l not YIoirtg.lband weumig, then hipey .oti ffn-d, a verdS0,iqthe , fenihanst. rmteaely'urn.e$ a 'vri ,tr; hl .Id3 -letl yLs, ..v *rnn;elhintel *j A , ;....* ' - 5VF:VnsEt; :hild by his firstcousin, Miss Parker a lady who afterwards married ?,lr.Cauieton, theiplaintiff in tlis action. Sme titne aftertke marMiange 3f M Vssarker--with ffi r. Camieron, a demand was 'made on- Mr. Balri of pay'ment for thle supoort :o'fhisebild. - This dmand -Mi. A Bike resisted, an) si'zhe year B20-anaction vvas broughttse'ifdrce i,$4 ? ftes tb'e _epdio hail proceeded somie stages, an'agreeuiiitI was, m;l.t c;bedebt4he parteeigthat the defentdant should pay 2201. in lieu of isaiages and xcostsof tt,, thbt ionm that sunm 851. sho'uld be de- ducted o0n account of advances fo- the chld'an maintenance already made by 21Mr. -Baker . that 501. of It should be invested for-the be- nefit of fthchiId` ;:and thar the remaining1o:shdiuld'b-e'piid to Mlr. and Irl; Cameron. Tiat"agreement *as sign-ed by lr.-Field,'thfe attorney fMr Alir.Ird ltrs. Caqteron, and by Mr. Mlartin, the attor- neyI for Alir. BaVdr. lt' was foQr_aJca1of that igieehient that tlie present acti,n was broudtt ; and the sum sought to be recovered was 601.' He understood that it was tbeintention oftb ,defendant to dis- pate this agreement, on the ground that lhe had never meade it. Ile should, howevers'pr6duce evidence-to show that itlbad been made by the attorney, wthorl he had.authoerized to act for ! him. it the suit- that he had bince recognized it K, and, that 5e.had even paid a con- siderable 'um of moncy in eatisiaction of it If-he I ns4e these points out in evidence, he should be entitled to a verdict for l ia client. ,An officer from tbe BIil of Middlesex Office produced the writ and bail-piece intheaction of I- Cameron v. Baker," instituted in 1820. iMr. ield,. theattorney employed by Alr. Cameron in that action, WMas then exsixrned. He proved the. delivery-of. tle declaration in that action, and stated that before .he had issued any process in it, he had called uron Mr. Baker to see whether hie would not settle it amicably.-,. Alt.aker saidl he would not consent tO any compromise. desired thathe might not be troiubled any more about,;4 and referred htim Fo Mir. d3artin as-his attorney. Alr. Baker said " whatever he does, I sball.be satisfied." An agreement being h!anded up to himn, he stated that it vas an agreement made betweeri himself and MIr. Martin as attornies to respective parties,in the catse of " Carneron v. Baiter." -Mr. Sergeant VAu.GuA. proposed to put in thui agreement. 2,r. Sergeant PELL objected tlat his Idarned irient had not proved enought o en itle hiim to put in this agreenment. There was no evidence that Mlir. Baker had ever seen or hear4 of it; and he. could not. be bound -by an instrument of wtich it-was possible that he koew notling. The LORD CHiEF JUSTICE said thlat he should atlniit it as evi- dence, first of aU, because Alr. Alartin was the attorney on the re- cord in that actiot; and secondly, because it was in evidence that the defenda:nt had stated thitt whatever Alr. dlartin did be.should be satisfied. The case for the. plaintiftf beinig closed, Alr. Sergeant PELL ad- dressed the jury for the defendant. He laput it to. teiri to consider whethler his client ought to be bound by an agreement formed under the circumstaices which lad just been detailei to tiem. Hle id not mean to impute to MIr. Field that he had wilfully4 stated any thing false; but he thouglt that ttat gentleman must have beets under somen istake as to the words which had fallen from ilr. Baker, wheln he first ipentioned this action to ihim. Was it likely that a gentlenma, who hadsaid, " L will not enter into any compromise of this action," would iiuniedi-tely turn round upoRn his ownl declara- tion, and state " whatev'r agrcenient M\1r. IlaH-in muy propose thatt agrgement 'l will itnm(iiatelv ratity ?" If it was contrary to all probability thiat such a declaration should be made, he should leave them to infer that it never-hsad been made. Thei piair matter of tiact was, that tile action in 1820 had been stopped by desire Pf Mlr.. Ba- ker's tather, wlho did niot wisli the transaction between Alrs. Came- ron at;d his son to obtain publicity. He would show by the evid6nce of Al r. Isiartin, that Mlr. Baker knew nothisng of the agreemeiit at the time it was maile, and that he liad, froni first to Iast, expressecd his disapprobation of it. Under these circumstairces- he coriteRded that his client was entitled to the protection of thejury,agiinst a contract into whiclh he hail himselt peisonally never entered. Al r. Alastin, thle solicitor for the present defeniliit in the former actioni, was then put into the wituiess-box. T'ie Nremenwrt having been put into his hands, he deposcl as follows:- I signed that agreement. I considered mysell justifed in enteing inito it on two accounts-first, to prevent the publicity which the frial ivould give to a tranisaction o1 this natort; and secondly, because I liad been shlown by thie plaintiff sattorney a certain letter of the defendant lhimself. I think that the defendant must of necessity have knmi'vn of thbs agreeiaieilt from hiis father, because he was at that time in his countiny-house. I never had any conversation on the subject wiLh tie defendant brfore the agreement was signed. I hail the sanction of Air. Baker's father to that agreement. The soln, I think, gave it his sanction by pertbrmiing a lpart ot it. I cannot say, however, thiat lie cver ratiHie(d it with nie. All that I did was done thiough lhis father's ilirectioi. 'i'he father gitve mie tle 5L. 1 paid to Mr. Field in performncec of the agreemeiit. I received all the inoney I paid upon it from the fltaher, and not from tse son. The defentant il the present action invariably grumbled about this agreement. He always spoke of it in the language of disapprobation. He claimed certain deductions wlien part of the money was paid in consequence uf the agreement. lie grumbled at paying it, because, lie said, that he had alreadv paid enough on account of the transaction betwecn bim and AMrs. Cameron. Alr. Sergeant VAUGHAN, in reply to this evidence, put in a let- ter of the defendant's to M1r. Mlartin, for the purpose of proving tbat it acknowledged this agreement. It was, however, written in a very equivocal style, alluded to somse compromise, without stating what, and contained an assertion that he had already paid considerable sums of money to" that woman." Ilr. Sergeant P-a LI. thought it unnecessary to reply upon this let- ter, as it did not carry the plaintiff's casc an incl further. DI r. Sergeant VAU o HAN, in reply, commented in strong language upon the conduct of the defendant. Ile described it as base and unmnanly in the extreme for any man, first to violate the chastity of his own cousin, ishose character was untainted till he had destroyedi it, and then to put her to the expense of law-suit after law-suit to ob- tain a niggartdly maintenance for the offspring of his own crimc. lie was proceeding to repel the insinuationls of txc defendant's coutrisel, when he was interrulpted by The bunD CHIIIAF JUSTICE, who a'ked whether the best way of settling this action would not be to invest the 601. in dispute for the benefit of the child in the hands of two trustees, one to be tiamed by each party. The learned coansel for the defence would see, that in case the plaintiff should obtain a verdict he had at present apY ^^rh^ t,h^el th^ rnvn^vs v^ild not bh covert ea to otlier purpose, .rl treyedy e evue y otaining a trustee to be namned, it would be attende with sonie delay, inconvenience,- and expense. Mlr. Sergeant VAUGIiASt, on the part of the plaintiff, declared his willingness to accede to the terms mentioned by hlis Lordship. L r. Scrgc.^nt PEL. said, that as his Lordship had appealed per su,nally to him, lie must say that lie should recommnend to his client lto accept the tenhls proposed. After a short consultation hetwveen the parties, a verdict of 501. was recordel for the plaintiff; exectition, however, to be stayed till the 10th day of next term, before which thne it was agreed that the 501. shoulid be vested in thc.hands of two trustees, for the use and benefit of the child. COUR'T OF COMM%ION PTAIAR T 01 NEWBERItY V. PETIT.