Court Of King's Bench, We...
LAW itEFURT. mis was an inaictment preterreft by AMrs. Palmcr, against Mr. MPinnbatn and Airs. Charlotte Cooper, for an assault and battery. ft appeared that the prosecetrix kept a clothes.shop in Long. alky, Shoreditch, and the defendant a butcher's shop in the same place. On the 31st of January last, according to the witneFses for 7tbe prosecution, the defendant and a woman of his acquaintance made a violent assault on llrs, Palmer, knocked her down, and committed other acts of violence. Mlr. AnOLPr US for thedefendant, strongly censured the trying these paltry cases o. assault in the Court of King's Bench, instead of taking them to the sesgions,which was the proper tribunal to hear themn; and called four witnesses, who stated that they were on or near the lirernises at the time, and saw -no assault conmmitted. .Ir. ARCwnoLD, in reply, urged that the evidence for the defen. dant, even if true, was no answer to the prosecutor's case. R ne jury found both the defendants Guilty. THE KINEG V. TI13OTStY POWELL. This was an indictment against the defendant, for wilful and cor. rupt 'perjury, committed in answer to a re-amcnded bil filed against 'hin and his partners, by Mlessrt. Jones, Wellington, and Park. of 3Uadbridge, in the county of Glocester. .Mlr. BioDEoRcEt stated the substance of the charge, as it ap- 'peared on the face of the record. Mlr. SCARLETT opened the case for the prosecution. The de. fendant was a member of the firm of Powell, Mitchell, and Co., vozlfactwrs, in the dry of Bristol. who had carried on a large trade for many year In the year 1807 negotiations took place between them and Mfessrs. Jones, Wellington, and Park, who were wool- ataplers of great respectability at Dudbridge, in Glocestershire, which termrinated in o. partnership for contracts in Spanish wool. The name of the firin under which the joint transactions were to be conducted, was Jones, Vellington, and Co.; and its object was, that Messrs. Powell and Co., who were factors, should not be re. cognized in ,'tie market as principals buying and selling on their -w intdividual risk. In the year 1808 or 1809, Mllessrs. PoweUs reiderem an account to the firm at Dudbridge, in which they gave thent crcdit for a small sma only as due to them, and wvhich they haa reason to suspect was untrue. For the purpose of detecting the falsehood which they saspected, they afterwards filed their bill in Chancery. to which the present defendant, with the other parties, put in their answer. The biU was afterwards arnded: on the state. ments in the answer to the amended bill, the assignments of per. jury were founLded. Tte material parts of the amentled bill land the answer were thean rezd. The parties originally made defendants wera Timothv Powell, the defendant, Hungerford Powell, Joshua Powell, and Robert Alitchell, the partners in the firm of Powell and Co.; but Robert MtcheU dying, his personal representative, Richard Alit. chell, was substituted in his stead. The answer to the amended bill was dated Nov. 6, 1822. It alleged that the 101 bags of N7ool referred to in the bill, were valued between the parties by Bbs. 'wortl,and tbatPoweU andCo. became the purchasers, that this was a bonazfle sale; that no sham or fictitious sale was made by anyone; and that Ebsworth rendered no account, under the direction of the firm, of a- fictitious sale as of a bona fde sale. In reference to the transaction with Mr. Osborn Yates, the answer denied that the de. fendants.inl8Q9, underthe firm of Jones, Wellington, and Co., or otherwise, entered into a contract with that gentleman for the sale to him of 178 bagsof wool; but that they had been informed, and be- Iiered, that Ebsworth did enter in his contract book a sale of several pa-celsofwool which had belonged to tbem, amounting to 285 bags, to Jones Wlellington and himself. under the firmn of Jrones, Wel. lington, and Co., and that Osborn Yates agreed to Purchase of them 178 baggs of this wool. The defendants absolutely denied that they wareinterested in the contract made with Osbom Yates, or that they tookback a part of thel78 bags on the terms set forth in the bill,i.e., a payment of the bonus of 6,3691. by way of coonpromise, or that Osborn ates paid them for the residue. On these allegations as. signments of perjury were founded. Some objections were taken to the formal parts of the indictment on the reading of these documents, bat they were overruj,ed by the learned Judrge. lr. William Ebsworth, the broker, was then called, and, after describing the partnership as stated by Mr. Searlett, gave an ac. count of the transaction relative to the 101 baga of wool, except that be callecl them only 94 bags, as opened by the learned coun. seL He stated that r. Mlitchel directed him to write the letter to Dir. Weington, anhouncing that this wool was sold, and positively denied that ne was ever authorized to value it, or ever did value it, or ever value any wool between the parties. He then proreeded, in) zeferenee to the second assignment, to state the sale to 51r. Osborn Yates of 18 bags of wDol,of which 54 were boughtof Vaughan and _o,for 21s. only a pound; but he would not swear thatAI.Timothv Powell, the defendant, was presgent when the contract was mad'e. Il'e ciftarwards told 1r. Timsrothey Powell the prices for which the ,wools sold, on which he said jestingly " that if the witness could iot obtain better prces for his wool, he must find another broker." (The invoiceto Mr In0born Yates w'as put in and read.) The amount Of the whole wool sold to Alr. Yates was 54,5121.7s. 9d., for which Mr. Ebsworth drewfour billson him which were returned accepted. In the month of Mlay, wools had fallen considerably in price, and the witness had cormmunications with Powell and Co., though ire did not particularly recoUect when Air. Powell was pre. aent. Mr. 5fitchell, at one of the interviews, said Yates was dissatisfied, and wished to know the proprietors of the wool. A negotiation was entered into with Yates, on wbich it was geed that he should retiu the 124 bags, on paying 5s. in the pound on the sum; but it was insisted that he should retain the 54 bags. because they wrere purchased by the sellers at a high pnrice. Thit arrangement was effiected by the witness and MIr. Wellinigtoi, al Woreley. and Mr. Yates accepted a bill, at eight months, foi 6,3691., Dy way of compromise. He handed over this bill to Powell and Co., at Bristol, but could not tell which of the partners were present. Tebill originally given for the price of the wool boughi Of Vaughan, wras afterwards broken into three for the convenience oi discount; all drwn by Ebsworth on Osborn Y-ates, and accepted by Tim, to the amount of more than 16,0001. Be thought he was ap. plied to by Mr. Timothy Powell, for the bill of 6,3691. 5s., bul could not swear it. Thebills rere discounted by Haythorn and Co., of Brstol. Beforetheybecamedue, Iite-helldirectedhim to ob. tain themi from the holders, as great part of the money was paid; ani he did so. The 6,3691. 5s. would be about half the loss on the wrools bought Mr.Osborn Yates, and which had been sold by Vaughan. a recollected nO application made to hinm respecting Isis books. He considered himself alarge creditor of Powell andCo. In 1811 he became a bankrup, and Air. MitchelL was his assipnee. lin books vere taken from him, and he afterwards saw them six or sevenyears ago, in po3session o- Mr. Isaac Cook, solicitor, of Bris. hey were then discoloured by damp, and one or two leaves appeared tram out; he did not recollect seeing the contract book at all. He bad' another assignee, but Mlitchell principally acted; though neither was very active. He ripplied several times to Mlr. M1litchell to ase his books and settle his accounts, but did not suc- ceed. Mlr. Timothy Powell gave him no advice about bankruptey before he becaome bankrupt. Uie had iso interest as a ProprietOr in any of the wools. Mr. Welington requested to have full particu. lars of the parties to whom the goods were Eold, and att account, -wich was produced, was furnished him. On cross-examination, the witness said his commission was sued cut in 1810 or 1811; he had not obtained his certificate. Before that eme henna in prison in Bristol and Lqndon. He was on terms of great intumacy with Mr. Mlitchell who lived in his house. He had heard th3t lMr. ltitchell destroyed hlmsef. He did not think lUr. HRungerThrd Powell or Mr. Timothy Powell ever interfered in the galeof w,ooL Mr. Timothy Powel had another coulfirn-.-house. flr. If. Powell was the ca%hier as to the wool, and the other part of the business was transacted by Mlr. -MitchelL The Powells were unacqaiunted with the wool.trade. No purchase of wool wvas to, be made without MIr. Mitchell's assent; and the houses were to be in- terested in moieties. Before the purehase of the 101 bags, he did not Itnow that Mlr. Alitchell had refused to advance more money, or that n aeccount hadbeen taken.The 101 barsof wool appeared to bein the j3;xan;'uhiph rms4lerrmdoprodac y by-Wellinogtou.A to the I78 bags, it was Mitcbell who came to the witness, and the witnegs was not nterestedin thepurchase. Thefirnmof "Jones, Vellington, and Co."' was made use of in one or two other transactions but they ere not ncludedinthe accoant. The, whole wool parchased of Vaughan was l09 bags, of which 54 were sold to Osborn, and the others by Mitchells directions to Mtessrs. Haythorn and Co. He did not pay the proceeds to Wellington. Be never spoke to Mitchell aflerhis commission. He went to Spain threeyears ago,butbefore that time was in London and in- Bristol. Re.examined.llr. Timothy Powell told him if he would do as thev wished him, they would sign his certificate ; ,but he could not tell what this was. IMlrs. Ebswortl said she recollected Mfr. Timothy Mitchellpress. ing her husbatnd to give up the bill for 6,369l., accepted by Yates. Mir. Jamles ~Vellington, spartner with Jones andt Park s.tated that the eng-gement between his house and Mlitchell -and Co. was, that aUl Spanish wools bought in the English mantleL shoald be on the Joint accouut of both houses. MAir. Mlitchell's house was to find all the capital, as he said they were vdry rich. He recollected receiving the letter frora Ebsworth about the 101 bags of wool. 'At that time he had received no notice of the dissolution of the. conuexion * he had appointed no one to value the wool&. Hereceived an account with no names of purchasers, and insisted on havingabetteraccount, uith names; be thought he gpplie4 both to Mr. Timothy Powell and IMIr. Ilitchell. The account to which be objected con- tained a statement of the 101 bags as sold. In the nmended account, the 101 bags were stated as sold to Powell, Mitchell, and Co., which was the first intimnation that they were the purehasert. They were then worth considerably more tlan the price credited. [A letter from Powell, Miitchell, and. Co., ac- companyvirg the second account, andjustifying-themselves was read.] In 1809, Mllr. Wellington met Mir. Mitchell at Bristol, aud was requested by him to go with Mr. Ebsworth to Alr. Osborn Yates, with a proposal far relinquishing a part of his bargain. He accordingly made the arrangement alseady stated as to the return of 54 bags on the payment of 8,3891. Hle knew nothirns of his interest in tktis sale till Ebsworth put the contract into -his hands.. After thi8 arrangement; 'aw rTimothy PoweD, and asked him why this sum 'was not introduced into tbe account he bad no doubt that Timothy Powell was/apprised of the arrangement which had been effected, Cross.examined.-He left the business very much to Mfr. bs. worth as his agent, and generally saw Mllr. Mitchell. MIr. Osborn Yates was then called. He described himself as having in 1808 been a woollen manufacturer, in partner'sbip -with his father. He received aletter from Powell and Co. dated Jaa. 30, 1809, inviting them to purchase vool at 21s. per pound.. To this an answer was griven declining the purchase. After this, he bowever went bimselfto Bristol, and was persuaded to purchase 178 bags of wool. He then described the negotiation represented himself as led into the purchase by the statements of Ar. Mitchell, and stated the compromise ultiMately agreed on, as already sworn to by Mr. Ebs. worth. He afterwards made a daim on the defendants to the bill, and afler Alitchell's death, and received back the money he paid for a compromise, with interest and costs. Cross-examined..He knew Ai. Timothy Powell intimately; he bore a very respecwable character. MKr. Samuel Yates, the father of the last winess corroborated the evidence of his son as to the proposals of Powell ana Co. for the sale to him and his son of the wool. He saw Mr. T. Powell at BristoL This was the case for the prosecution. The ATTORS?EY-GENERAL addressed the jury for the defend. ant. In so doing, he fdt the most painful anxiety; for the charac. ter, tle honour, all that was dear to a most respectable individtial, was committed to his hands. On this occasion he represented a gentleman far advanced in years, of considerable wealth, who had for a long time carried on business on an extensive scale with credit, and who was held in high esteem in that part of the country where he had passed his life. Appearing for such a man, he hadto entreat a candid attention to the evidence he shonld adduce, and which' would leave uniipeached the greater part of the testimoy adduced' in support of the charge. His case was, that Air. Timothy Powell had been imaposed on by Dlitchell, and that he put in his answer relying on the accuracy of the ctatements and the faimess of the conduct of his partner. He was himself engaged in another busi- ness; he was a banker and a drysalter; and left all the speculatiens 1 in wool to be managed by leitchell, who was conversant with the trade. This individual was a man of great address and of consi- 1 derable talents, and he sought to avail himself of the singular fluctuations in the price of wool at the period referred to, for the purpose of amassing a large and sudden fortune. The result was that, as one transaction was disclosed after another, 17itchell at- tempted to fly; he reached Falmnouth, and there he put a period to his existence. Inthe year 1812, this Chancerysuitwascomsnenced. Ir. Lowe, the attorney for Mr. Alitchell, was also the attorney for SIr. Powell; snd, therefore,the aRswerwas framedon the information which Mlitchell had given. Mr. Lowve, the attorney for the defendant, stated, that he pre- pared the original answer with great attention and care. In pre- parnng it, he had chiey reference to Sir. Powell's two clerks, to the two brothers, and to the briefs prepared in Mr. Osbom Yates's action. Mr. Robert Mitchel died in October, 1812. The witness also prepared the second answer on which the indictment was framed, and which was of a very complicated nature. The 6,3691. was repaid to Atr. Osborn Yates in 1813. Mr. Hungerford PoweU said, I anm brother to the defendant. We carried on business as dryfaltersaswell aswoolfactors. Mr. Mlitchell was only partner in the latter trade; my brother took no part in the wool concern, which was managed by Mlitchell. I only acted as cashkeeper. I remember the partnership entered into with WVel- lington and Co. We advanced all the capital. The ATT O1N2TEY-GEEMRAL here asked the witness if Miitchell made any representation to him respecting the sale of 101 bags of wool ? Mlr. SUARLETT objected to the reception of this evidence, as the statemenrt in the answer vere positive, and not dependent on the information of Mitchell. The ATTORNYgGEXERAL said he offered the evidence to show that the statements, though incorrect, vere made bona-fide on the faith of a party in whom the defendant had reason to confide. The acts of 3Iitchill had been made evidence against the defendant, asd surely the representations of Mlitchell ought to be received te show the i.pression under which he swore. The LoA C}iss- JUSTICE said the forn of the question must be changed, and the witness asked what litcbell said to hisbrother; and then, in such a case, he -tbought it safer to receive it. Slr SCAIRLETT withdrew his objection. The ATTOENETy.GENERAL then asked the withess whether Mitchell ever made any representation to the defendant respecting the 101 bags of wool ? The witness replied_I do not recollect that Alitchell made any representation to my brother, but he did to me. M1y brother did not interfere in the business at all. -I afterwards told mv brother what M itchell had told me whenVeHlington'caled atouraffice some timein 1810. MitcheU told me that he had got the broker to value the wool; on one part he had given Is. 4ud.. on the other Is. 6d. beyond the cost price. 1 communicated this to nmy brother. The wools were afterwards sold at a loss. When Mr. Park called at our counting house I olfbied to produce ihe accounts,but he said he had no doubt they were all correct. With respect to the 178 bags M1itchell made no representation to me or to my brother. I did not know the nature of that transaction till about the 8th March 1809 when I learned it from a letter of Osborn Yates. I then wisbed togeti the transaction settled, as I feared Osbom Yates would be ruined. I never heard Mditchell'make any representation to my brother, or which I communicated to him respecting tbe parties who were pur- chasers of the 124 bags. 'he sum received from Osbom Yates of 63691. wasreceived forrescinding the contractforthel24 bags between fellington and Co. aad our house. We received it to indemnify ourselves in case of a fall in the price of wool against the claims of the Spanish merchants; we paid a sum of money to them after. wards. The 6,369L was returned to lUr. Yates, who also claimed in respect of the 16,Q001. for the wool he retained. i did not pur- chase Vaughan's wools, nor did my house ever receive a shilling on account of them. I know nothing of the 16,0001. paid in bills to MIr. Ebsworth. He paid in one to our house en account of a .pro- missory note of Jones, Wellington, and Co., for 12 0001., and noton account of any interest we had in those wools. Mitchell has been connected with our house since 1803. Mfy brother is now 70 years of age. Cross-examined.-.We continue the business of wool mercharqts now; our young men conduct it; my brother takes no part in it. 'VeT control the purchases. I recollect seeing MSr. Yates and his son at Bristol when the purchase was made. They were at our cotuntinghouse, and, at one part of the time, I and my brother were present. When I heard of the serape Osborn Yates had got into I wished to rescind the bargain entirely and take the wool back. Air. llitchell determined he should pay 6,369L Mty brother, the de- feudant, always opposed it. NWe let Mitchell have his way; he said he would take back 124 bags on receiving Ss. per pound. Re-examined.-Osborn Yates wvas to pay the 5s. per pound, to rescind the contract- between Wellington and Co. and us. Mr. (George Gane,, who was clerk to Powell, Mitchell, and Co. from 1804 till the present time, and acted as warehousekeeper, said lMlitchell took the management of every thing but the cash accounts. Mlr.T.Powell carried on thebusinessofdrysalterunder the sameroof. Mlr. Mitchell made all the purchases and all the sales. Ie directed the entry as to the 10l1bags. After this, when Mr. Park came to the counting house, Mr. H. Powel offered to show him the accounts, but he declined. .Cross.examined..He became assignee to Ebsworth after Mit. cliell's aeath. In Mlitchel's lifetime, Ebsworth's" books were I brought to thecountmghouse and kept there till his death. HEe saw some leaves cut or torn out of one of the books,- and observed tbh circumstance to Mr. H. Powell. 'He did not recollect seeing his contract book for the latter part of 1808 and the beginning of 1809.. Mr. Lowe was recalled, and, looking at two books put into his handsi said he received them from Mlitchell to enable him to de?end an action. It appeared these were the contract books of Alr. Ebs- worth in tbe time referred to. Ilr. Pitt, M.?. for Cricklade, and Mr. Yates, sen., said, that Mr. Timothy Powell had always borne an excellent character, as a man of integrity and honour. Mr. SCARLETT replied. The LonD CH}IEF JUSTICE, after calling the attention of the jury to the serious nature of the charge, especially when preferred against a person of the age and station of the defendant pointed out te applicauon of the evidencetothe seyeral parts of tiie case; and left them to decide on the frst assignment, -whether Air. Timothy- Powell swore truly that the sale of the 101 baga was a bouarflde sale, and;not a- fictitious sale; an the second, whether le swore tlythat his house was 'not interested in the contract with Mr. Osborn Yates; and,on the whole case, whether, if he swore untruly, be svore wilfully and corruptly, or innocently and-in error. Thejury, after a few minutes' deliberation, found the defendant The trial wras not over till half-past 8 o'clock. COURT O> KING'S BENCH. WESTMXINSTER. Jnwv 10. _ r T1?E KiNG V. FIXNCRA AND MqOTEER.