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factory: there seemed abundant evidence in that case to go to the jury, and upon which the Court might even have decided, of the payment of the old debts by Inglis, Ellice, & Co. to the plaintiff, and a new loan to the new firm; which might have been as well effected by a transfer of account by mutual consent, as by actual payment of money. After referring to Evans v. Drummond, and Reed v. White, his lordship concluded: " If therefore the plaintiffs did expressly agree to take, and did take, the separate bill of James P. in satisfaction of the joint debt, we are of opinion that their so doing amounted to a discharge of Charles." And the case was sent down to a new trial in order that that question might be submitted to the jury.
This judgment plainly strikes away the main ground of determination on which the Court acted in Lodge v. Dicas and David v. Ellice, and brings us back to the law propounded by Lord Kenyon and Lord Ellenborough, except only that it ascribes some degree of independent effect to the receipt of a new negotiable security in place of the simple contract liability which before existed. But from the generality of the expressions used by the court, we can hardly doubt that when a case analogous to that of Lodge v. Dicas shall arise, it will receive a determination corresponding with that in Reed v. White, as that of Thompson v. Percival is co-extensive with Evans v. Drummond. It is clear, at all events, that the general arrangement by which, on the dissolution of almost every partnership, the continuing partner, having the funds of the partnership left in his hands, is authorized to pay the debts, will be deemed sufficient to show the assent of the retired partner to the separate settlement of the continuing partner with the creditor.1 W.
1 Since these remarks were written, the case of Kirwan v. Kirwan, in the Exchequer, has been reported, (4 Tyrwhitt, 491,) in which the same question was again mooted: but the Court decided on the ground that the statements of the special case did not show, in sufficiently distinct terms, any agreement of the creditor to accept the substituted security of the continuing partners.
ART. VI.—CASE OF D. W. HARVEY, ESQ. M.P.
Second -Report from Select Committee on the Inns of Court, with Minutes of Evidence and Appendix. Ordered by the House of Commons to be printed, 4th Aug. 1834.
Notwithstanding the length of our former article on this subject, we make no apology for returning to it; for by a strange concurrence of circumstances, the case of an unworthy individual has at length become almost inextricably mixed up with the fortunes of an influential profession, which (as we shall show before concluding) it is the undoubted interest of the public to support. At the same time we should conceive ourselves fully justified in treating the Report before us (as we have no doubt the Benchers will treat it) with contempt; for a document less entitled to consideration, whether as regards the source from which it emanates, the mode of concocting it, or the terms in which it is expressed, we never remember to have seen. The committee was named by Mr. O'Connell, a man notoriously unscrupulous as to the means by which any given end is to be attained: a large majority consisted of persons who had already, either from sinister motives or sheer folly, declared in Mr. Harvey's favour,—some of them, indeed, being men whom no human being would have dreamed of selecting for a committee of character, unless from a knowledge of their perfect fitness to act, or be acted upon, as tools: the inquiry was conducted with a degree of partiality so gross and palpable as occasionally to amount to the ludicrous; and the report was drawn up and voted in the absence of almost all the really honest and intelligent members, by a quorum got together with difficulty after an eager and unscrupulous canvass.1 Internal evidence is equally strong against the document, viewed relatively to Mr. Harvey's peculiar position
1 Five constitute a quorum, and the majority of quorum (three) may vote a report. For aught that appears to the contrary, therefore, the report may be the report of Messrs. O'Connell and Hume, and Colonel Evans, who, we understand, only attended the meeting at which the final resolutions were passed.
at the time. His character was impeached by five verdicts,1 four or five solemn reproofs (they might well be termed condemnations) from the Bench of justice, two decisions of two sets of Benchers of the Inner Temple, and one decision of the twelve judges after hearing the present Lord Chancellor and the present Lord Chief Justice of the King's Bench as his counsel; to say nothing of imputations without number, generally current and as generally credited in society. It is obvious that no Report could entirely remove an impression based upon such foundations as these: even had the committee been entirely composed of Sir Henry Hardinges,2 and an acquittal, honestly voted, been candidly openly and un
1 The following list appeared in the Morning Post:
1. "Harvey v. Andrew was tried at the Lent Assizes, 1810. It was an action brought to recover damages from Mr. Andrew for having said that Mr. Harvey was excluded from the offices of respectable attorneys, and that Mr. Harvey had purloined two papers from Mr. Andrew. The jury by their verdict decided that Mr. Harvey was excluded from the offices, and had purloined the papers.
2. "May v. Harvey was tried at the Summer Assizes, 1810. It was an action brought to recover from Mr. Harvey, sen., a lease, which he, with the aid of his son, Daniel Whittle, had fraudulently procured to be assigned to him. The jury by their verdict decided that the lease had been thus fraudulently assigned. The judge who presided said that the two Harveys, father and son, were ' the greatest knaves he ever met with in a court of justice.'
3. " Austin v. Scott was also tried at the Summer Assizes, 1810. It was an action brought to recover from Mr. Scott certain money which he had paid; and the manner in which the action had been conducted was highly discreditable to those who conducted it. The jury decided by their verdict that Mr. Scott had paid the money. Mr. Scott had given strong evidence against Mr. Harvey in Harvey t'. Andrew. Mr. Harvey conducted, professionally, this action, Austin v. Scott. The counsel for the defendant said that Mr. Harvey was ' a knavish attorney,' and the judge who presided complimented Mr. Scott.
4. " Frost v. Harvey was tried at the Lent Assizes, 1814. It was an action brought to recover from Mr. Harvey, together with some other sums, 500/. alleged to have been clandestinely retained by Mr. Harvey out of the purchase-money of an estate sold by him for Mr. Frost to Mr. Skingley. The jury decided by their verdict that the 500/. had been thus clandestinely retained. The judge who piesided said, ' This is a most scandalous transaction!'
5. " Morgan v. Harvey was tried at the sittings in Guildhall in April, 1814. It was an action brought to recover from Mr. Harvey penalties to the amount of 4,500(. for the exaction of usurious interest upon a sum lent by him to a person who had helped him in his canvass for Colchester. The jury by their verdict decided that Mr. Harvey had subjected himself to the penalties.
* Sir Henry Hardinge and Sir Robert Peel were both put upon the original list, it being notorious at the time that neither of them could attend; but they evaded the ruse by striking out their names immediately.
equivocally expressed, many persons would still be unaccommodating and illnatured enough to think, that judges and juries decidirig in the lifetime of all parties upon the sworn oral testimony of living witnesses, were more likely to be right than a committee of gentlemen unaccustomed to legal investigation, deciding upon unsworn hearsay testimony when all the parties but one, and all the material witnesses were dead; and that it would be strange, passing strange, that a man of Mr. Harvey's talents should have been so uniformly unfortunate, should have been through life "the noblest work of God," and yet in so many varying and trying instances be denounced, despised, rejected and degraded as a rogue. But at all events we submit that an impression based upon such foundations ought not to be and cannot be shaken or affected in the slightest degree by a Report, which, in addition to the suspicious nature of its origin, is the very opposite of direct and candid—is dishonest, evasive, quirking, quibbling and falsifying throughout. It does not any where assert the innocence of Mr. Harvey; it does not any where assert that the Benchers did wrong in rejecting him; it only takes issue modo et forma, after the manner of special pleaders, as to the justness of one set of inferences, and passes parenthetically the grand question: whether by any hypothesis, in any alternative, on any view of the circumstances, he must not have been acting dishonestly, he must not have been guilty of some sort of deception, imposition or fraud. It also in some material points grossly mistates the purport of the evidence. Before offering any commentary on the Report, we think it best to copy it entire:
"The Select Committee appointed to inquire into all the circumstances attending the rejection of the claim by Daniel Whittle Harvey, Esq., to be called to the Bar, and to report their Opinion thereupon to the House, and who were empowered to report from time to time, have, pursuant to the orders of the House, examined the matters to them referred, and have agreed to the following Report:—
"Your committee, in pursuance of the terms of their appointment, and of the power given to them to send for persons, papers, and records, conceived they should best fulfil their duty by requiring the attendance of the Treasurer of the Society of the Inner Temple, and calling for such evidence as the Benchers could furnish relative to the admission of Mr. Harvey as a member of that inn of court, on his application to be called to the bar, and the subsequent rejection of his claim.
"Your committee were consequently attended twice by Mr. Martin, 'the under-treasurer, who, on the first occasion, produced before them the only two documents in the nature of evidence, which the treasurer had been able to find relating to the subject, which purported to be 'Short-hand Writers' Reports' of the trials of the two causes ' Harvey v. Andrew,' and 1 Frost v. Harvey.'
"On inquiry as to whether the Benchers have preserved any record of the proofs given by Mr. Harvey, or of the testimony of his witnesses, it appears that the office of the society has been searched for the purpose of finding any, but that none whatever can be found; and it is to be observed, that the document entitled ' Frost v. Harvey' is not complete, a part of it being torn off, and some pages are deficient.
"On his second attendance the under-treasurer handed in a book containing a copy of the certificate transmitted by the Benchers to the Judges, and also the documents which will be found printed in 'Papers laid before the Committee.'
"As connected with the course of procedure adopted by your committee, they have to report that at the commencement of their inquiry they deemed it right to make a communication to the Benchers, inviting some person on their behalf to attend the investigation, but which was declined, in a letter from the treasurer addressed to the chairman, referring the attention of the committee to the ' statement' which had been prepared by them to be submitted to the judges, in case Mr. Harvey had thought fit to appeal against their last decision.
"Upon this subject your committee have also to report, that at an early stage of the inquiry an application was made to the committee by Mr. Wilson, an attorney of the Temple, stating himself to be the son-in-law of Mr. Thomas Andrew, the defendant in the above cause, and the attorney for Mr. Frost in the other beforementioned action, expressing a desire to be present to attend the inquiry to defend the character of his relative; and he attended accordingly throughout the whole investigation, was furnished with the papers in the like manner as the committee,and cross-examined Mr. Harvey's witnesses, called several witnesses himself, produced several papers which have been printed, and at the close of the inquiry addressed the committee several hours upon the whole case, having before him all the papers, documents, and evidence to be