Mitchell, should be imprisoned in the same gaol for four calendar months.

Old Bailey, Saturday, Feb. 19. William Sturman was indicted for setting fire to a house he tenanted in Half-moon-street, Piccadilly, "with intent to defraud the Globe Insurance Company, with whom his furniture was insured, to the amount of 1500l.

Mary Wright, the first witness, deposed, that she lived servant with the prisoner at No. 9, Half-moonstreet, Piccadilly. He had a wife and child, and they were the only residents in the house. She had lived with him eight days. On the 11th of January, at nine o'clock in the morning, her mistress said to her, that they were going out to dinner, and she might go out for a few hours after she had shut up the house. Mrs. Sturman went away about half-past twelve. The prisoner told her to bring some seed for a canary bird. He then shewed her how to unlock a patent lock on the front door. He told her to be home at half-past eight o'clock, to leave all safe, to have a fire ready, and leave a lamp in the passage, which she did." When she went out at four o'clock, she barred the shutters, but did not draw the curtains. All the fastenings were secure when she went out. She returned at 20 minutes before eight o'clock, and found the house in flames. The door-posts of the back dining-room were in flames. There were some boards on fire lying against the door-posts, which had formerly been kept in the wine cellar, of which her master kept the key. On the other side of the

posts were papers and bundles of wood, with the strings cut. In the front parlour was a band-box, brought from Mrs. Sturman's room, full of wood and papers, close to the partition. There were also some wooden steps, and three clothes-horses, which had been usually kept down stairs, in the wash-house. There were stockings of her master's scattered about the stairs, and rags, which she had used in dusting the tables. These smelt very strong of turpentine, and she believed some of the stockings did also. A bundle of matches was lying on the wooden steps, and there was a great fire in the front parlour with two red-hot pokers in it. The lamp was removed to the back pantry. The curtains of the front parlour she found drawn. Her master's bedroom windows, and her own were opened, and his shutters closed.— The snow was deep on the ground at the time. She called for assistance, and a boy came first; Captain Kempster and his servant, who lived next door, came also, and soon extinguished the flames. The bookcase and drawers, in the front parlour, were all apparently fastened when she went out, but on her return she found them all thrown open, and stripped of their contents; the bird-cage was also gone. At half-past nine o'clock her master and mistress came back, and on his being told the house was robbed, he immediately cried out, "My writing-desk is gone, and 1 am a ruined man." Mr. Denham came a day or two afterwards, and her master told her to fetch two turpentine bottles from a cup-board in the back pantry, in which she

had

had never seen any bottles of turpentine before, and if they had been there, she thought she must have seen them. There was no fire in any part of the house except in the front parlour. People very often came for money, but got

none.

On being cross-examined, she said the jars of oil and turpentine might have been there, as she had been only eight days with them, and had no great opportunity of looking about the house.

John Levoy deposed, that he was passing along Half-Moonstreet, heard a cry of "fire," and went to No. 9, where he observed the same appearance as the last witness stated. When the prisoner returned, and was told that his writing-desk was broke open, he appeared much agitated. The fire appeared to have been recently lighted.

The firemen and the police officers who entered the house, produced the half-burnt rags and two bottles, one containing turpentine and the other oil.

Mr. Denham, Secretary to the Globe Insurance, said, that when he questoned the prisoner, he could not fix his suspicions on any particular person. He told his servant to bring him two stone bottles, one containing turpentine and the other oil; and in describing the place to her where she would find them, he had some difficulty in making her understand him. On the whole, the answers which the prisoner gave to the witness's interrogatories, were made with apparent hesitation.

Mrs. Martin, sister in law of the prisoner, proved, that on the day

in question his wife dined with her, and that he came for her about ten minutes past 8 in the evening,

Several witnesses were also called to shew that the prisoner was apparently short of money, and not likely to have 500l. in Bank of England notes, by him, as he said he had, and which he alleged were stolen out of his desk.

An auctioneer also proved that he had made an inventory of his furniture, which he valued at 718%. but which he was convinced might be bought for 600l.

His interest in the lease of his house had been insured for 500l. his furniture for 1500l and the lease itself for 1500l. which, by covenant, he was bound to insure for 1400/.

For the prisoner, a servant of his brother-in-law, at Hackney, proved, that he called there about four o'clock on the afternoon of the same day in question, but the family was from home. He waited about half an hour, and then went away.

A waiter at the Telegraph Chop House thought he had seen the prisoner before, but could not recollect his having dined at his master's house on the day in question.

A woman, who had lived servant with the prisoner about twelve months ago, swore that she had seen two stone bottles, one with turpentine, and one with oil, which supplied the lamp.

Several witnesses gave him a good character. Verdict-Guilty, Death.

He confessed the fact before execution.

COURT

COURT OF KING'S BENCH, MONDAY, APRIL 18.

London adjourned Sittings after

Hilary Term, 1814. Ackerley, Esq. v. Pemberton, D. D. and Mawdsley, Clerk.This was an action brought by a barrister, residing at Bath, against the vicar general of the diocese of Chester and his surrogate, for excommunicating the plaintiff. It appeared, that the plaintiff's father having died intestate at Chester, the plaintiff refused to take out administration of his estate and effects, and was sued by certain persons having an interest in the estate, as well in the Court of Chester as in the Court of Chancery, upon a bill filed against him for an alleged intermeddling with such estate. The plaintiff was cited in the Court of Chester for not appearing, and was pronounced contumacious; and on the 29th of December, 1807, sentenced to the pains of the greater excommunication. The lesser excommunication excludes a party only from the communion of the church; the greater incapacitates him from being a juryman, a witness, from suing at law or in equity, and upon a writ de excommunicato capiendo being awarded, to imprisonment in any of his Majesty's gaols till reconciled to the church. The plaintiff appealed against this sentence to the Consistorial Court of the archbishop of York, which confirmed the sentence of the Court of the bishopric of Chester; and thence to the High Court of Delegates, consisting of three of his Majesty's justices, and four or five doctors of civil law, who reversed the sentence of excommunication on the 7th of June, 1811; holding, as the law certainly is,

that there was no obligation upon any man to administer to an intestate's estate. Mr. Park stated, that the first question which would would be raised was, whether this action could be maintained at all, of which, after the late case of Beaurain v. Sir William Scott (3 Campbell, 388) which had been acquiesced in, there could be no doubt; and the second question would be, whether, if the action could ever be maintained, it could in this case, where the court had a clear jurisdiction, however they might have mistaken the law. As to this question, Mr. Park contended, that they had not a jurisdiction to compel a man to take upon himself the office of administrator. Upon the subject of damages, it was admitted that the plaintiff's expenses incurred before the appeal to the delegates was 841. 145. 11d., and in that appeal 1791. 198; in addition to which the jury would give the plaintiff such compensation for the anxiety and reproach of the excommunication as they should think just; the schedule of excommunication, though transmitted to the Bishop of Bath and Wells, in whose diocese the plaintiff resided, was never read in the plaintiff's parish church, on account of the immediate appeal to the court at York, and the plaintiff was absolved from excommunication on the 28th of July, 1808.

Lord Ellenborough said, there was no doubt but that the sentence was a nullity and void; for, supposing the Court had the power to excommunicate a man for not taking out letters of administration, (into which it was unnecessary to inquire, although he had no very doubtful opinion upon the subject), the plaintiff never was

required

required to take upon himself the administration before he was excommunicated for the refusal; he was only required to appear aud shew cause, so that he was never in contempt.

Mr. Abbott, for the defendants, said, he should not contend that the sentence of excommunication was right; but the latter part of the original citation cited the plaintiff to appear and take administra

tion.

Lord Ellenborough. The offence is expressly stated to be the not appearing in ordine ad., and the sentence is a nullity. His lordship then observed, that the declaration charged both the defendants to have committed the wrongs maliciously. Now a principal is not liable for the individual malice of his agent; the plaintiff must therefore either abandon the charge of malice against the agent, or against both the defendants.

vicar-general presided at the first

court.

Mr. Abbott submitted, that the words before the defendant Pemberton, &c. were merely the stile of the court, and did not necessarily import that he was present; and it was stated, that the surrogate vicar general decreed, &c.

Lord Ellenborough said, he should have listened to the learned counsel's objection, if there had been any person before named to which the word "surrogate" would apply; but the vicar general was before alone spoken of; and the requisition afterwards was to appear before the said Thomas Pemberton, or his surrogate.

Mr. Abbott then addressed the jury, and contended, that if the judge of the court had jurisdiction of the subject matter, though his sentence might be reversed as erroneous, no action at law against him would lie. The sentence was

Mr. Abbott then submitted, that upon the face of the proceedings it did not appear that the defendant, Dr. Pemberton, was answerable at all.

Lord Ellenborough observed, that the schedule of excommunication was charged to be transmitted by the defendants to the Bishop of Bath and Wells; it would be a point very fit for the consideration of the Court hereafter, whether the plaintiff, having joined the defendants, and stated them jointly to have committed certain wrongs, could afterwards prove against one only. He might have charged the Vicar-General with proceeding through the agency of his surrogate. It appeared that the

day was assigned on which the plaintiff was to take the administration, and probably because the court had no right to compel him to do so.

Lord Ellenborough said, he would give the defendants leave to argue these points on motion for a nonsuit; and would at present assume that the action was maintainable, the proceedings being certainly irregular. The ecclesiastical courts were armed with no other compulsory process than that of excommunication: this his lordship was aware was a great hardship, and they exercised it under a perilous responsibility.

Mr. Abbott then confined himself to the question of damages: the pains of excommunication

never hung over the plaintiff; for the schedule was never read in the parish church, forty days after which, upon a significavit to the Court of Chancery, a writ de excom. cap. may be obtained, the issuing of which it would have been competent to the plaintiff to have opposed there, or he might have moved to quash it in the Court of King's Bench, where it is returnable, upon the ground of the nullity of the sentence. It had been contended by Mr. Park, that the affirmation of the Court of Appeal at York revised the sentence. This Mr. Abbott denied; but if it did, that was the action of others, and not of the defendants. The plaintiff was all this while contumacious. The question of the nullity of the sentence was never brought before the mind of the court at York, where a common lawyer presided; and when it was before the delegates, the sentence was reversed, as well on account

not obtain an absolute discharge from the original citation and suit, which he ought to have obtained. If the court of York had put him in statu quo, had completely relieved him, he needed not have gone further: a suitor was not bound to tell the Court it was in error: it was rather his duty to receive the law from the court. The plaintiff was, therefore, entitled to recover his costs of appeal to the delegates. It was true, that if the writ de excom. cap. had been issued, the Court of King's Bench would have relieved the plaintiff in one second: but who was to sue the writ? Not the plaintiff against himself. Malice was not imputed; but the plaintiff was seven months under a sentence of excommunication published.

not

The jury gave the plaintiff 2641. 13s. 11d.

the respondents, as on the ground of the appellant's not being coinpellable to administer; and the Court did not give the appellant costs. The appeal to the delegates was on account of the error of the court of York, and were the defendants to answer for the errors of others?

Lord Ellenborough charged the jury, that the plaintiff, had by the void sentence of the defendants, been placed in a situation from which he could not be relieved without incurring all the expense for which he now sought reparation in damages. It was necessary for him to appeal to the court at York for absolution from the sentence of excommunication; but with such absolution he did

a

June 1.

Special Jury.

The King against Dixon. This was an indictment against baker residing in Copthall Court and Finch Lane, on behalf of whom a London Jury assessed the damages at one shilling of a trespass, against an incompetent inquest, for seizing bread, one of the loaves of which was twelve ounces deficient in weight; and the present indictment charged the defendant with the offence at common law of selling unwholesome bread. The indictment charged, that the defendant being intrusted to provide the Royal Military Asylum at Chelsea with good and wholesome bread under a contract, which he had en

tered