[List-Cumbria] Carlisle Patriot, 07 Sep 1816 - Cumberland Assizes (35)

Wed Nov 16 12:53:51 UTC 2022

Saturday 07 Sep 1816   (p. 3, col. 4 – p. 4, col. 6)

Cumberland Assizes. 

========== 

[continued] 

ARREST ON GOOD FRIDAY. 

MOORE v. STEVENSON.—This action was brought by the plaintiff against the defendant as Sheriff or Baillie of Berwick-upon-Tweed, to
recover damages in consequence of negligence in not executing a writ on a Mr. PORTER, an ensign of a regiment stationed at Berwick.
Mr. PORTER had accepted a Bill of Exchange for £40, which was made payable in London; but the agent not having received notice,
refused to pay it. The bill was sent back, and a writ issued to the Sheriff for the arrest of Mr. PORTER, but the Bailiff would not
do his duty because it was Good Friday. The Bailiff, however, went afterwards to execute the writ, but Mr. PORTER had information of
his intention, and escaped after a long pursuit. 

Samuel BUGBY sworn.—Is clerk to Mr. M'CARTHY, the plaintiff's attorney. [He put in a writ addressed to the Mayor and Baillies of
Berwick-upon-Tweed. The original affidavit was also put in and proved.] Witness went down to Berwick on Tuesday last to get the
warrant, and applied for it at the office of Mr. JAMESON, the Town Clerk, where he was told that Mr. J. was at Carlisle Assizes.
Witness requested the clerk to give him liberty to search for the warrant on which the arrest was ordered to be made; was permitted
to do so, but could not find it. 

Mr. DOUGLAS sworn.—Has lived at Berwick, and knows that Mr. JAMESON acts as Town Clerk, having transacted business with him as
Undersheriff. 

Cross-Examined.—Does not know that he was appointed Undersheriff, but always understood so. 

Mr. JAMESON sworn—Has lived at Berwick all his life, and is Town Clerk. Acts as agents for the Mayor and Baillies of Berwick, who
are Sheriffs for certain purposes. John LANDLES is a clerk in his office. 

Mr. BUGBY again.—Was at the office and saw Mr. LANDLES, to whom he applied for an office copy of the warrant. Mr. L. said, that Mr.
JAMESON was gone to Carlisle Assizes and had taken the warrant with him. Witness has seen Mr. JAMESON since he came to Carlisle, and
asked him for a copy of the warrant. Mr. J. replied, that he would first consult counsel, and if he was advised to do so he would
give him a copy. In consequence of this answer, he gave Mr. J. notice to produce the writ personally. (The notice was put in.) 

Mr. JAMESON re-examined by Plaintiff's Counsel.—Is not quite certain that he brought the warrant from Berwick; is not certain upon
his oath. Is inclined to think that he put the warrant among his papers when he came away. The impression upon his mind, certainly,
is that he brought it with him. Is inclined to think that he has seen it since he came to Carlisle, but has not looked for it. 

Examined by Defendant's Counsel.—Brought a great many documents with him, all of which he has not been able to examine; that is the
reason why he is so uncertain; he looked for the warrant this morning. 

Re-examined by Plaintiff's Counsel.—It was a lapsus linguæ that he had not looked for the warrant at all. Did not take care that he
excluded the warrant from the papers which he had with him in Court. If it is any where, it is at the Bush Inn. The Town Serjeants
of Berwick are the persons who execute processes. The warrant in question was issued a few days before Good Friday 1815. MORRISON, a
Town Serjeant, came to witness on Good Friday about the arrest. He was then going to church, and MORRISON asked witness if he could
execute a writ on that day, being Good Friday. Witness replied,—"I am not certain; I am going to church; I issue no process out of
our own court, nor do I remember an instance of any process having been issued on Good Friday; I am inclined to think that you
cannot legally execute it. I conceive Good Friday to be a dies non juridicus. I then added, come to my office after service and I
will look into it and advise you." He came to the office, and I looked for the act of Parliament on the subject but could not find
it at the time. I then advised MORRISON to go to the plaintiff's agent to tell him that he, MORRISON, had doubts on the point, and
if it was to be executed it must be at his own risk and peril. 

Mr. DOUGLAS again.—Remembers that the Bailiff had a warrant to execute, and witness was sent to shew Mr. PORTER to him at the
Barracks; it was about ten or eleven in the forenoon. Witness went to the barracks where he saw Mr. PORTER sitting at the window
reading; he was an officer, and the front door of the barrack was wide open. MORRISON and another bailiff were waiting outside the
barrack-gate, and witness went and told them where Mr. PORTER was; they had been consulting together, and refused to execute the
writ on account of the day. They went into the barrack-yard, nevertheless, but returned again, saying the Town Clerk had doubts.
Witness urged them to make the arrest, but they refused and went away. In the afternoon witness saw them again, being sent to them
by Mr. BURN the attorney. They went to the barracks again to make the arrest. When they arrived there Mr. PORTER was walking in
front of his dwelling, but having intimation, on seeing the officers he ran off; they all pursued, but without avail, as he finally
escaped and has not been seen since. 

Cross-Examined.—Witness saw Mr. PORTER sitting at the window, and remarked his auburn hair, a serjeant on being asked, pointed him
out. There is a common stair-case to the officers' barrack, and each has a room to himself. 

Mr. John M'DOUGALL sworn.—Is an army agent in London, and private agent to Mr. PORTER, whom he has seen write; he believes the bill
shewn him to be Mr. PORTER's hand-writing. Knows that Mr. PORTER had property in February last, and was able to pay the bill, but
witness has not seen him since that time. Mr. PORTER, about that time received £350, the price of his commission which he sold, and
he does not now belong to the army. In barracks there is generally a common stair-case, and each officer has a door to his
apartment; this is the case in the barracks at Berwick, which witness knows very well. 

Some conversation here arose between the Bench and the Bar relative to the legality of arrest on Good Friday. Mr. SCARLETT thought
there could he no doubt of its legality, however improper it might be. His Lordship did not think it legal in time of divine
service. He knew, by the law, both of God and man, that Good Friday was appointed to be kept holy as well as the Sabbath; and his
Lordship thought the duty which an officer owes to God, greater than that which he owes to man, and therefore his Lordship Nonsuited
the Plaintiff, because he did not think the arrest was attempted at a proper season. 

[to be continued] 

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