ANGLO CELT - July 21, 1853 - part two of three ASSIZES INTELLIGENCE CROWN COURT - TUESDAY, JULY 12. (Continued from our last.) CAUTION TO CORONERS EMPLOYING MEDICAL WITNESSES AT INQUESTS. Whilst Judge TORRENS was engaged in flating the presentments, an application having been made by Mr. J. BERRY, one of the coroners of the county, to allow certain fees to Doctor WADE of Belturbet for attending and giving evidence at a number of inquests which he had held since last assizes, and which the grand jury refused to make presentments for, his lordship inquired into the nature and merits of each case, some of which he disallowed, and when doing so remarked that it was the duty of coroners to put the ratepayers to the expense of the fees of medical gentlemen for attendance at inquests where there did not appear an obvious necessity for their doing so - for instance, where persons came by their death from natural causes - and that it was the opinion of the judges that such fees should not be allowed. His lordship added that he had known instances where coroners were in the habit of bringing medical gentlemen about the country with them to hold inquests; and he begged! leave to give public notice to all coroners who might be then within his hearing, that he would in future inquire into every case where a fee had been certified by a coroner for the attendance of a medical witness at an inquest, and disallowed same where he conceived there did not appear a necessity for such attendance. Mr. BERRY inquired of his lordship if the jury should require the attendance of a medical witness, would he be justified in complying with the request? His lordship, in reply, said that when such would occur he (the coroner) should exercise his own discretion. RECORD COURT - TUESDAY, JULY 12. (Before Chief Baron Pigott.) SPECIAL JURY CASE. Cosby Thomas Nesbitt v. John M'Manus. The following gentlemen were empanelled and sworn as a special jury to try the case, viz.: -- Richard FOX, Esq., J.P., foreman; Abraham BRUSH, Esq., J.P., James HAMILTON, Esq., J.P., Henry SARGEANT, Esq., J.P., John ELLIOT, Esq., John DAVIS, Esq., Alexander CLEMENGER, Esq., Isaiah GIBSON, Esq., Edward M'INTOSH, Esq., J.., Richard CLARKE, Esq., John GUMLEY, Esq., J.P., and Wm. FARIS, Esq. Mr. RICHARDSON opened the pleadings. He stated that it was an action in ejectment upon the title, brought at the suit of the plaintiff (a gentleman residing in the city of London, who is a large landed proprietor of this county) against the defendant, a respectable gentleman farmer residing at Cormeen, near Ballyjamesduff, for recovery of the townland of Aughalion, situate in the parish and barony of Castleraghan, in this county, containing by estimation about 120 acres Irish plantation measure, at the annual rent of 10s. per acre, held by the defendant from plaintiff, as tenant from year to year, which tenancy expired by reason of a notice to quit having been served upon him on the 28th October, 1852, requiring possession of the premises on the 1st May last. Mr. MAJOR, Q.C., stated the case to the jury on behalf of the plaintiff, which in substance was to the following effect: -- A lease of the premises was made by a person of the name of James TUITE, the original owner of the lands, from whom the ancestors of the plaintiff derived, to a person of the name of Samuel CHARLESTON, bearing date 30th September, 1782, for three lives and thirty-one years; the lives were Samuel DAVIDSON, Anna CHARLETON, and Wm. CHARLETON, two nephews, and a niece of the lessor, who, together with his niece and nephew, Samuel DAVIDSON, having died early in the present century, and Wm. CHARLETON, the surety(?) on succeeded to the property, and a Mr. Bernard M'MANUS, father of the defendant, having been agent to Mr. SAMUEL; was continued in the same capacity by William CHARLETON, the then owner and last surviving life or cestu qui vie in said lease ; the defendant, John M'MANUS, the son of said Bernard, as before stated, married the daughter of said Wm. C! HARLETON, and after his death succeeded to the property. This William CHARLETON, having left the country some time about the years 1813, 1814, or 1815, has never been heard of since, and is supposed to have died about that time, or shortly after ; but at all events he has not been in this country, nor has he been heard of ever since ; the 31 years consequently expired in the year 1845, or in that of 1846, and the tenure in the lease having commenced in September, 1782, consequently the seven years permitted by the statute, 7th Wm. III, to elapse after the last life in the lease had been heard of in the country, had expired on the 1st November 1851, or at farthest on the 1st November, 1852, and on the 28th October last (a few days previous) a notice to quit was served upon the defendant, he being then merely a tenant at will, or tenant from year to year, requiring him to quit and deliver up the promises in question on the 1st of May last ; it is true, that although the tenan! cy or tenure in the lease commenced in September, 1782 ; the first gale (i.e.) the first half year's rent by special agreement, was not to become due and payable until November, 1783, but the regular gale days for payment of the rent, were 1st May and 1st November, therefore the tenure commenced on 1st November, 1782. The first witness produced on behalf of the plaintiff was - Wm. TATLOW, Esq., agent for Mr. NESBITT, examined by Mr. Robert JOHNSTON - the substance of whose evidence was, that the defendant was tenant to the plaintiff, and as such, paid him rent, and on being cross-examined by Mr. John BROOKE, Q.C., on behalf of defendant, admitted that he had brought an ejectment in the superior court for non-payment of rent, and obtained judgment and a habere facies against defendant, which he had executed, and the usual six months lease given ; however, the amount of rent and cash having been subsequently paid to him on behalf of plaintiff, the defendant was restored to his original position ; did cause a distress to be made upon the tenants of the defendant at their request, for rent due up to the 1st of May, shortly or immediately after that period ; and if it was a harsh proceeding, it was done at their instance, and to protect them, as he was constantly a defaulter in the payment of the head rent ; does not conceive that that proceeding was a waver(sic) of the notice to quit served at his instance upon defendant ; made an affidavit as agent verifying the declaration in ejectment as to the amount of the rent due, but does not conceive, although an attorney, ! that his doing so, was an admission that the lease under which the defendant held, had not expired. Edward FITZSIMONS examined by Mr. RICHARDSON - Knew a Mr. William CHARLETON, he was landlord of the lands of Aughalion, the lands in question ; saw him in the year 1814 on the lands - the last time he was on the lands, and he then heard him say that he was the last and surviving life in the lease, as the other two lives in it were dead ; that Mr. CHARLETON's daughter was married to the defendant. Cross-examined by Mr. LOWRY - Slept in the gaol last night ; has been there for the last three weeks for having unregistered arms ; was in gaol before ; told the story that he now tells about what he heard Mr. CHARLETON saw with regard to the non-existence of the lives in the lease to Mr. Wm. TATLOW before and since he went to gaol. John FITZSIMONS examined by Mr. MAJOR - Is bailiff to Mr. TALLOW, or rather to Mr. NESBITT, the landlord, over the lands of Aughalion ; remembers seeing Mr. Wm. CHARLETON in the house of defendant's father ' knew Mr. Samuel CHARLETON ; it was he got the original lease ; the tenants paid Bernard M'MANUS, the father of the defendant ; defendant was married to the daughter of said Wm. CHARLETON ; remembers seeing the latter in defendant's father's house at Cormeen, drinking punch, with his (witness's) uncle, and him say that the tenants on the lands would be well enough during his life-time, and thirty-one years after, as he was the landlord, and the last life in the lease ; defendant has been receiving the rents of the lands since the year 1819 ; knows it because he got married to said Wm. CHARLETON's daughter ; I got the property by her ; the conversation occurred in 1813 of 1814 ; heard that Wm. CHARLETON was dead ; he has not been in the country, however, since. Cross-examined by Mr. BROOKE - Knows the year was 1814, because it was the year before the battle of Waterloo ; is quite certain of that, and count not have made a mistake about the year, because the year he quit schooling (going to school) and has his copy-book yet with the date and year in it. To the Judge - Has not the copy-book here, but has it at home ; admits he cut his crop at night, but it was not to evade paying his rent to Mr. M'MANUS (laughter) ; holds his farm under defendant ; does not wish to assist Mr. TATLOW, his employer, in turning out the defendant ; as if he be turned out he thinks he will not get his cheaper, but that he will have to pay higher for it. Patrick FITZSIMONS examined by Mr. JOHNSTON - Is sixty-three years of age ; saw Mr. CHARLETON on the lands in the year 1814 ; is brother to the last witness, the bailiff of Mr. TATLOW or Mr. NESBITT ; recollects the year, because he heard his uncle and father, who were joint tenants on the lands, and were talking about the matter. The plaintiff's case having closed, Mr. BROOKE addressed the court on behalf of the defendant, in an able and argumentative speech, and terminated by calling upon the court to non-suit the plaintiff as he had failed to prove that the lease of the premises in question had terminated, and that the notice to quit was premature. With the permission of the court counsel was permitted to prove the service of the notice to quit, buy a witness of the name of Thomas KELLY. The defendant offered no evidence. His lordship refused to non-suit the plaintiff, but said, he would accept of exceptions and points saved, and then charged the jury at very considerable length, stating that the defendant could have very materially assisted in the elucidation of the very intricate case, by submitting himself for examination in the witness's box, but not having done so they, the jury, just deal with it in the best manner they could. The jury, after some time spent in deliberation, returned a verdict for the plaintiff, and on Mr. John TATLOW, his attorney, handing up twelve guineas (the special jury's fee, as he conceived that it (the case) could have been very well tried by a common jury ; and, on the following morning he stated, that having considered the points of law argued by counsel for plaintiff and defendant pro et con., he had decided that the verdict might be turned by the court above into a nonsuit or verdict for the defendant ; provided it should consider that the notice to quit, upon the fact proved, was premature. Counsel for plaintiff - Mr. James MAJOR, Q.C.; Mr. Robert JOHNSTON, Mr. John RICHARDSON ; attorney, Mr. John TATLOW. Counsel for defendant - Mr. John BROOKE, Q.C., and Mr. James LOWRY ; attorney, Mr. Samuel SWANZY. NON-ATTENDANCE OF JURORS. Many of the jurors who had been called and fined in the sum of £20 each for non-attendance in the record court on the day previous (Wednesday) 13th July), having applied to his Lordship (Chief Baron Pigort(sic)) to have the fines imposed upon them remitted; his lordship was pleased to order their prayer to be complied with, but stated that he would not remit the fines upon those who did not think proper to then attend and solicit that boon, whereupon Mr. M. W. REDDY stated to his lordship that Messrs. John MARADEN of Tullyvin, Thomas FAY, and John SHERA, of Cootehill, resided at such a distance from Cavan, they conceived there would be a sufficient number of jurors from that town and neighborhood as would save them the necessity of attending, and that one of them MR. Thomas FAY, was 60 years of age and upwards. His lordship in reply to Mr. REDDY said, that the proper place for Mr. FAY to apply was at the jurors special sessions, when on proving that fact he would be struck off the list ; however, on his (Mr. REDDY's) further solicitation on behalf of his friends, his lordship ordered that the fines upon them should be reduced from £20 (the fine originally imposed) to 20s. each, and subsequently directed Mr. SCOTT his register, to reduce the other fines to 20s.each also. WEDNESDAY ASSAULT AND BATTERY. Nulty v. Ellis. The Chief Baron took his seat on the bench this morning at ten o'clock, and proceeded to hear the case of Nulty v. Ellis, which occupied the entire day up to eight o'clock in the evening. Damages were laid at 200£. The following jury were sworn: -- Wm. M. BLACK,, foreman ; John ELLIOT, D. FINLAY, Wm. CLEMENGER, A. KILROY, F. M'CABE, John DAVIS, A. KETTYLE, James BERRY, Patt FAY, Peter BRADY, Edward KENNEDY, and J. A. FARIS, Esqrs. Mr. LOWRY opened the pleadings, and said it was an action for an assault and battery. Damages were laid at 200£, to which the defendant pleaded the general issue and justification. Mr. MAJOR, Q.C., stated the case at considerable length to the jury, after which John NULTY (the defendant) was sworn and examined by Mr. BROOKE, Q.C., and gave his testimony as follows: -- Is plaintiff in this record ; lives in Bridge-street, Cavan ; has a wife and one child ; recollects the 31st of October last ; was in the employment of the defendant as foreman baker at that time ; the 31st of October was on Sunday ; the defendant is a publican and butter buyer, and also deals in pigs ; was also in the employment of the defendant from the 8th of April, 1852, till the 31st of October last ; the 31st of October was Hallow-Eve ; was in the defendant's bakehouse on that morning about seven o'clock ; was accompanied by Phil FITZPATRICK, the defendant's apprentice, and set a sponge ; it is necessary for it to remain so for 12 hours ; returned about nine o'clock at night to put it in dough, for the purpose of putting it into the oven, where it should remain for two or three hours ; had put it into dough, which occupied about half an hour ; when we had finish! ed we heard a strange dog ion the yard ; I ran out of the bakehouse ; then the dogs engaged us ; there do be pots with potatoes in the yard ; I went out to hunt them with our dog ; FITZPATRICK followed me ; I had on my short trowsers and slippers at the time ; we pursued the dogs ; they ran through the garden hedge into the garden, and then into Mrs. BROGAN's yard ; FITZPATRICK did not come up to him at the time ; the old quick is between Mr. ELLIS's and Mr. BROGAN's yard ; was in the habit of passing through Mrs. BROGAN's house on Sunday, as the defendant had no half-door on his house ; she got her bread from the defendant, and she used to oblige Mr. ELLIS's family to go through ; when we were following the dogs we heard some persons laughing in Mrs. BROGAN's ; we went in and found a young man of the name of Patt DOWLING, Mrs. BROGAN and her niece ; Mr. DOWLING had a jug of punch in his hand ; he asked me to take some of it ; I said I took no punch ; he said I should take s! omething ; I accepted of a glass of cordial ; FITZPATRICK took half a glass of punch ; before I had finished the cordial ELLIS, the defendant, came into Mrs. BROGAN's kitchen where we were, he asked the key of the bake-house from FITZPATRICK; he gave it to him ; he did not seem in too great a passion ; he told Mrs. BROGAN he would have her broken of her licence for allowing his boys to go into her house ; it was then, to the best of my opinion, about half-past ten o'clock ; it could not be more ; after FITZPATRICK gave the key I told the defendant that he might not be uneasy as they could not do anything for too(sic) hours and a half ; is sure we could do nothing for three hours after the defendant came in ; ELLIS said ye must not come back to my place again ; he went away then ; FITZPATRICK and I consulted together and thought it better to go back and not to allow the batch of bread to be destroyed or he (defendant) might charge him with the full amount of the loss ; we wen! t out of Mrs. BROGAN's by the back door - same was as we came in ; I found defendant's back door open, and heard him up stairs ; I called to him for the key until I would finish the work that I began, and that I would go in the morning ; he ordered us to begone or he would shoot us ; he afterwards called to his wife and said - Eliza, hand me that pistol. To the Court - I was standing at the foot of the stairs at the time. Examination resumed - Mrs. ELLIS called out from the lobby window and desired me to go away, that she did not care for the loss of the batch of bread ; I was standing at the foot of the stairs, near the back door, at the time ; I then went away for the purpose of going home through Mrs. BROGAN's ; I got as far as the bakehouse when I head a foot coming after me ; it was the defendant ; I saw the poker shine in his hands ; before I could go away he struck me over the ear ; I had a cap on me at the time ; the blow staggered me ; he made another blow at my head ; I lifted up my left arm to protect myself from the blow ; I received the blow on the arm, which knocked it quite powerless ; my arm fell down dead ; as soon as my arm fell he gave me a blow on the temple ; I then fell senseless on the ground ; in falling one of my teeth was broken ; I received a fourth blow which tore my shirt ; when I came to my senses a little I scrambled away ; in going FITZPATRICK came to my assist! ance and brought me to Mrs. BROGAN's ; I remained there while they were washing the blood off me ; I was them assisted by FITZPATRICK and a servant belonging to the captain of the 91st regiment to Dr. O'CONNER's ; the soldier used to be in my house ; he is now in Dublin ; we went late to Dr. O'CONNER's back yard, but could not get him up in consequence of it being Hallow-Eve, and persons being knocking at the doors. To the Court - I was so weak they had to hold me up. Examination resumed - I was brought back to my own house where I was held again ; I was then put to bed ; I was bleeding the most of the night ; my stomach also turned several times during the night ; Dr. O'CONNER saw me next morning at the break of day ; he dressed my wounds and ordered me to the infirmary ; I did not wish to expose myself in day light, so I did not go until evening, when I was brought to it on a car ; Mr. THOMPSON, the chief of the police, and Head Constable MOORE came to see me ; they did not consider me in a dangerous state at the time ; there were no depositions taken that day ; my wife went for Mr. VERNON next day ; he took my informations ; I was a month in the infirmary, and was external patient for three months after ; I have not been able to work at my trade ever since ; up to this I could not life a heavy load with stings in my arm and a dizziness in my ear ; my head was a little affected, not much ; I am getting something better now ; my head was! never effected before ; by the virtue of my oath it was the defendant that struck me first ; was on the best of terms with him previously ; defendant was not drunk when he assaulted me ; I was dressed with my shirt, trousers, cap, and slippers when he struck me ; on my oath I never left hand or foot to him ; my arms were across at the time he struck me ; I had no time to strike a blow as I was going away. Cross-examined by Mr. Robert JOHNSTON - Was in the employment of the defendant for eight months, and lived on the most amicable terms with him until that night ; has a wife and one child ; I was perfectly sober at the time ; there was not one drop on me ; I was promised for three months before ; the bake-house is a sort of a shed in the yard, the walls are about seven feet high ; the dogs were annoying me ; when there were dogs making a great noise Phill(sic) FITZPATRICK and I used to take great delight in hunting them ; there was only one dog and defendant's there at that time ; we often hunted them ; the door was locked by FITZPATRICK before we went to the dog hunt ; it was FITZPATRICK's business to lock the door ; he had the key ; defendant's dog caught the strange dog and beat him rightly ; the dough was not fit to go in the over for three hours after we left the bake-house ; would be astonished if I heard that the dough was in a state of being about the floor ; my arms! were folded at the time I was struck ; cannot say whether FITZPATRICK left the candle burning or not ; does not believe he did ; there was a fire in the oven ; never heard the defendant saw a word about preventing us going over the fence ; I never remember to go into Mrs. BROGAN's at night, but did often in day light ; Mrs. BROGAN allowed the family to go through her place ; did not believe the defendant intended to short me when he called for the pistol ; I did not hear Mrs. ELLIS inside at all ; never shouted FITZPATRICK, you cowardly rascal, come on ; I never heard of defendant being in the hands of a doctor ; I did not take hold of the shafts of the water barrel; on my oath I never did ; never heard of the defendant going for the police ; does not believe he did ; did prosecute the defendant at the quarter sessions ; the jury would not agree to convict him. Phil FITZPATRICK (the apprentice) examined by Mr. LOWRY - was in the defendant's employment in Oct. last ; was an apprentice to him three years, or nearly that time ; remembers the 31st of October last ; it was on Sunday ; remembers going into the defendant's bakehouse on that morning to set the sponge ; John NULTY, the last witness, was with me ; we returned about nine o]clock that night to make it into dough ; we had the dough finished when we heard dogs in the yard ;the plaintiff went out first ; I followed him ; we never left the bake-house open, if it was no more than to keep out the cold ; I put the candles out before I went ; I followed the dogs into Mrs. BROGAN's yard ; we heard people laughing in Mrs. BROGAN's kitchen ; the plaintiff and I went in ; a carpenter named Pat DOWLING was inside ; Mrs. BROGAN and her niece was there also ; they were drinking punch ; Mr. DOWLING had a jug of punch in his hand ; Mr. DOWLING asked us to take something ; NULTY said he could t! ake nothing ; DOWLING said he should drink something ; he then took a glass of cordial ; I took a half glass of punch ; we did not finish it when Mr. ELLIS came in ; ELLIS demanded the key ; when he got the key he told us hot to go back to his place again ; he also told Mrs. BROGAN he would have her licence broken, for allowing us into her house ; NULTY said he might not say anything as it would be two-hours-and-a-half before we could do anything ; we were not ten minutes out when ELLIS came in ; ELLIS went back the same way he came ; NULTY said to me he would go back and ask the defendant for the key, as the defendant might look after him for the loss of the bread ; NULTY did go back ; I went with him ; NULTY went to the kitchen door ; the kitchen door was open ; I saw him go down to the foot of the stairs ; I stood at the bakehouse door all the time ; I was near enough to him to know what passed between them ; I heard NULTY ask ELLIS for the key ; he told him to begone fro! m about his place, if not he would shoot him ; I heard NULTY say an easier turn would fit him better; NULTY also said if the defendant would give him the key until he would finish the batch he would leave in the morning ; the defendant swore by his G-d he would shoot the pair of blackguards if they did not leave that ; I heard Mrs. ELLIS say go home John NULTY out of that, no matter about the batch of bread ; she was at the lobby window at the time ; I cannot say whether the window was open or shut at the time ; I think the sash lifts ; is not sure. To a juror - I think the sash lifts, but will not swear to it ; I know I often looked out of the window myself and it open. Examination resumed - I never had my head out of the window ; when I heard Mrs. ELLIS speak, I told NULTY to come away out of that ; I then left the premises and went a few perch away ; NULTY had his trowsers, shirt, cap, and a pair of slippers on at the time ; is sure he had nothing in his hand ; I then heard a bustle ; I was at this time at the garden gate ; I saw NULTY fall ; ELLIS struck him with a bar or iron or some other weapon ; cannot saw where NULTY was struck ; ELLIS turned round to me and said, you cowardly dog you will get the same ; I an away ; I knew I was not able for him ; I did not know but he had a pistol with him ; I closed the garden-gate he said I will have one life anyway ; I returned again and heard Mrs. ELLIS say, "Arthur, Arthur, what is this you have done;" she was in her own yard at the time. I ran and told Mrs. BROGAN that NULTY was murdered ; on my return I met NULTY coming into Mrs. BROGAN's yard ; the gate was open at the time ; the door open! s into the yard ; I did not see NULTY give any provocation to ELLIS whatever ; when NULTY came in he was bleeding from the head in a shocking state ; Mrs. BROGAN put meal and butter-milk to the wounds to try to stop the blood, but it had no effect ; I went to Dr. O'CONNOR with him; two soldiers of the 91st came up with us also ; the soldiers were out on pass ; one of them was a servant to the captain ; they are in Dublin at present ; I helped NULTY by the arm ; when we got as far Dr. O'CONNOR's we went into the back yard ; NULTY rested on the window-stool ; we rapped at his back and front door, but got no answer ; I think the reason the Doctor did not get up was it being Hallow-Eve night, every house in the town was knocked at, as it is customary to do so ; we threw sand up against all the windows ; after waiting for some time we returned to NULTY's house and put him into bed. (to be continued on ANGLO-CELT - July 21, 1853, part three) -------------------------------------------------------------------------------------------------------------- County Cavan Newspaper Transcription Project