He also proved that he had not fled the country after the murder, but remained at home as usual; and produced his parish priest, who gave him a good character, and the witness, John Maginnis, a bad one.

After a full recapitulation of the evidence by the learned Judge (Baron McClelland), the Jury retired, and in a short time brought in their verdict, Guilty.

ESSEX

ASSIZES, CHELMSFORD,

MARCH 13. Extents in Aid. Philpot v. Mortlock and another. This was the most important case that was tried at these assizes. It was an action against the defendants, who are bankers at Cambridge, for maliciously suing out an extent in aid against the plaintiff, by which the whole of his property was seized, and business thereby entirely ruined.

Mr. Gurney, as counsel for the plaintiff, stated, that this case was entitled to their most serious consideration, not only as it was of vital importance to the plaintiff, who was entirely ruined by the misconduct of the defendants, but as it was of equal importance to the public at large, to protect from the wantonly suing out that most formidable process, an extent in aid. The defendants were eminent bankers at Cambridge, the receivers of the excise-duties, and very wealthy men. The plaintiff was a respectable farmer and maltster at Thaxted, in this county, where he had lived for many years in the greatest credit, without the least imputation upon his solvency. He had for many years kept account with the defendants as his bankers, and it

happened that in the year 1815 the balance due to them was something above 600l. For this they asked security, for which, the learned counsel said, he did not quarrel with them, for they had a right so to do. The plaintiff, although he had abundant property, had not at that time ready money to discharge the balance, and therefore, it was agreed that he should give them a mortgage on his freehold property, and his bond, and in the mean time until those securities were prepared, a joint note of hand of himself and his father for 6601. The meeting at which this agreement took place was in the month of March, 1815, and the agreement was prepared by a Mr. Bush, an attorney, by which a mortgage was to be executed for payment of the money on the 1st of May, 1816. It appeared, however, that the time of payment was enlarged by the deeds executed, until the last day of July, 1816. The joint note was accordingly as a temporary security. In pursuance of this agreement the bond and mortgage, and warrant of attorney, were prepared by Mr. Howard, another attorney, for the defendants, and duly executed, by which securities the balance due to the defendants was to be paid in Aug. 1816, and the note of hand-ought then to have been given up, as it was only a temporary security, until the higher securities were prepared; and accordingly, the plaintiff having executed the mortgage deeds, asked for his note. Mr. Howard, the defendants' attorney, said he had not the note with him, but he would get it and deliver it up in the course of a week or

ten

ten days. These defendants now had got the security for their money for which they stipulated -They had got a mortgage amply sufficient to cover their demand -they had got a bond, and warrant of attorney, all securing payment of the money in the month of August, 1816, and before that time they could not legally demand it. It, however, so happened, for what reason he could not tell, that in the month of March, four months before the money became due, they had the hardihood to go into the Court of Exchequer, to take out an extent in aid against the plaintiff's property, and to enable them to do it, they swore that the plaintiff was indebted to them in the sum of 660l., by virtue of this very note of hand which was merged in the higher securities, and which they had promised by their agent, and ought to have delivered up to the plaintiff. An extent in aid is soon procured. It issued of course upon this affidavit, and the whole property of the plaintiff was seized into the hands of the Crown, and a total stop put to the whole of his business. He, however, contested their right to issue it, and the cause was tried in the Exchequer, and the Jury found there was no debt due. The cause was tried early in July, but the plaintiff could not get his judgment until November 1816; and therefore, though the verdict went against them, they persisted in holding possession of the property, although any security was offered them to let the poor man into possession of his property, which they must then know they wrongfully withheld. But mark what their trick was

by keeping possession under the extent, they prevented his raising money to pay them in August, when their debt really became due; and on the 6th of August they entered up their judgment on the warrant of attorney; they then on that day abandoned the extent, and the very next, came in with their common law execution, and in four days after sold all his effects, and literally turned his wife and children without a bed into the streets, and they were received and protected in the house of the Vicar of the parish, to whom the honesty and good conduct of the plaintiff was well known. This was the injury for which the plaintiff that day sought a recompense, and he was sure the jury would give a liberal one.

The proceedings in the Court of Exchequer were then put in, by which it appeared, that, by the finding of the jury, the extent was set aside, on the ground that no debt was due from the plaintiff to defendants, at the time of suing out the extent.

The several securities 'were next called for, which the defendant's Counsel objected to produce, until evidence was given of their execution. The subscribing witness was called, who proved the execution of the deeds, at Dunmow, when they were produced by Mr. Howard, as defendants attorney. Being asked whether Mr. Howard did promise to give up the note, it was objected by Mr. Sergeant Onslow, that Howard himself ought to be called, and that no evidence could be given of his declarations. Messrs. Gurney and Curwood, on the other side,

argued,

argued, that Howard being proved to be the agent for taking the conveyances, all his acts and declarations at the time were part of the ex-parte and admissible evidence; the learned Judge being of the same opinion. Two persons stated, that Mr. Howard said he had not the note with him, but it should be delivered up as soon as he could get it from Cambridge.

The extent executed was next proved, and that it was attended with the total ruin of the plaintiff's business.

Several respectable witnesses proved, that at the time the extent came in, he was considered as a man in good circumstances, and not in the least suspected of insolvency.

The Rev. Mr. Jees, Vicar of Hoxted, said, he had for many years appointed him churchwarden of the parish of Hoxted, which was a place of considerable trust, as in that character he received charity monies amounting to 700l. or 800l. per annum. So far from thinking the plaintiff an insolvent man, he would himself, at the time the banker's money became due, have lent the plaintiff the money to have paid them, if he himself could have spared it. But when the extent came in, and seized all his property, nobody would advance money to him.

The defendants grounded their defence, that the extent was not maliciously sued, but that they acted under an apprehension of the plaintiff's insolvency, and that the mortgage was not adequate security; and they attempted to prove this by witnesses, but the only fact they proved was, that he borrowed of a neighbour

60., being, as he said, short of money, for which he gave up the key of his barn, containing more than the value in corn, and once the supervisor summoned him for neglecting to pay his malt duties, which were paid before the day of hearing came.

The learned Judge, in summing up, was clearly of opinion, that the writ was sued out without probable cause, and stated that, in point of law was, the note of hand merged in the higher securities for the same debt.

The Jury, after deliberating for some time, by Mr. Manby, their foreman, returned the verdict as follows-" My Lord, we have deliberated upon our verdict, and we find for the plaintiff damages 1,2007." The verdict was received with acclamations by the audience.

ADMIRALTY-COURT, MARCH 11.

Reward, Selkeig, Master, on appeal from the Vice-AdmiraltyCourt at Jamaica.-This vessel sailed from the port of Kingston, in Jamaica, with 12 tons of Jamaica and 10 tons of St. Domingo logwood, which were shipped for ballast _to_Annatto Bay, in the island of St. Domingo, where the master proceeded, agreeably to his instructions, to land the logwood; but the weather being bad, he was enabled to send only one large boat-load on shore, and the remainder was used for dunnage and stowage of a large quantity of sugar and rum, with which the vessel returned to Kingston. There the cargo was landed, but the market proving unfavourable, almost the whole was re-shipped for the pur

pose

pose of sending it to Norfolk, in Virginia. On leaving the harbour she was seized by his Majesty's ship Emulous, for a breach of the navigation laws, in exporting Jamaica logwood to America,

and confiscated.

Sir Wm. Scott.-This is an appeal from a sentence of confiscation, which has been pronounced against this vessel, for exporting an article forming a very small part of the cargo, contrary to the provisions of the navigation laws, which prohibits the exportation of fustic and other dyeing woods, from the British West India Islands to America. Much has been said as to the policy of the prohibitions in this particular, but it is no part of my duty to controvert that policy; for, if by change of circumstances it has become inconvenient, an application to the Legislature is the only remedy for that inconvenience. My office is purely ministerial. It is argued, that the quantity is so small, that it would be a great hardship if the question was pressed to its greatest extent against the claimant. If the maxim, de minimis non curat lex, could be applied to the present question, the Court would, perhaps, be justified in mitigating the severity of the law; but the quantity of the prohibited article seems not to be exactly ascertained; and although it has been 'stated on the part of the owners to be only 3 tons, yet from the evidence it appears to have been much greater, and therefore cannot be considered to come under the beneficial scope of the maxim to which I have alluded. If a practice so abusive prevails as

that every ship is in the habit of carrying out several tons of this prohibited article, it is high time that this Court should lend its assistance to put a stop to such illegal proceedings. It has been said that owners are obliged to import wood for dunnage; if the fact be so, it may be a proper subject for the consideration of the Legislature; but when it becomes a practice to put a quantity of an article on board with no other authority than their own, and to baptize it dunnage, it is high time for this Court to interfere in conduct so contrary to the prohibitory laws of this country. Much has been said with respect to the absence of fraudulent intention, but it is sufficient if there exists a contravention of the law, from whatever cause it arises. There is sufficient to justify the seizure, if that has been exported which the law has prohibited. Something also arises from the evidence which has the appearance of intentional concealment, not very favourable to the case of the owners. It is not then protected by its own insignificance. Neither has it any analogy with the licence cases that have been cited. During the time of war, the prohibition to trade with the enemy is general. Licences were granted for the purposes of relaxing that, without any regard to the nature of the articles. They were specified in the licence according to the application which was made. A licence for the importation of one article would have been as readily granted as that for another; but, in this instance, the law says, you shall not carry such and such articles to Ame

rica. Here is a quantity of saleable goods, and you may call them dunnage if you please, but the presumption must be, that they were to be converted into profit on their arrival, which is a direct contravention of the navigation laws of Great Britain. On these considerations I shall affirm the sentence of the Court below.

BOARD OF

EXCISE.-JUDICIAL ROOM, MAY 28.

Rex v. Fox.-Mr. Edward Fox, grocer and dealer in tea and coffee, Gray's-inn-lane, was charged with having a large quantity of sham coffee in his possession, and with selling the same for genuine coffee.

Commissioner.-Do you plead guilty or not guilty?

Defendant. I plead guilty, my Lord.

Another Commissioner.-This is a case in which the defendant chooses to plead guilty, for the purpose of inducing us to mitigate the penalty; but I think proper to have the case heard, as it is one of the worst description that has come before us.

Henry Spencer, an officer of Excise, stated, that on the 21st of February, he and Lord, another officer, went to the defendant's shop, and purchased an ounce of coffee, for which he paid three half-pence, They examined it, and he was satisfied it was not genuine coffee; they purchased another ounce (which he produced to the Commissioners, who examined it), and were convinced it consisted part of coffee, and beans and peas. He (Spencer) asked the defendant if he had VOL. LX.

any vegetable powder in his possession, and he declared that he had not.

Defendant.-I deny that I ever said so.

Witness. He looked into a mill, and found it contained a small quantity of vegetable powder and coffee. The defendant came up to the mill and ground it all out upon the floor before he could prevent him. The defendant asked his shopman if they had found any vegetable powder in the mill? The shopman replied in the negative, and defendant said, "Then I do not care for them." Upon searching the shop, he found 64 pounds of coffee mixed with vegetable powder, which he then produced.

The Commissioners and the examining officer viewed the sham coffee seized, and it was declared to be part genuine coffee, and part beans and peas burnt and ground.

The defendant in his defence said, that poor people wanted a low-priced article, and by mixing the vegetable powder and coffee together, he was able to sell it at three halfpence an ounce; he had sold it for years, but never had so large a quantity as 64 lb. in his premises before, at one time; he did not think he was committing a fraud; he did it as a matter of accommodation to the poor, who could not give a higher price; he did not sell it for genuine coffee.

Commissioner. Then have been defrauding the public for many years, and injuring the revenue by your illicit practices: the poor have an equal right to be supplied with a genuine article