Newspaper Page Text
from the Chariot on Cits Gazette.
Wc arc indebted to the politeness of His
Honor Judge J»nssox, in being able to
present our readers, with the following
Important Decision.
Shutiz, lirrithaupt (S al:
va. C
The State Hank of Georgia , ft al. J
[Os TUB KttUITT SIDE OP THE Cot llT.]
'I IIP; ma’erial circumstances of this Case,
as presented by the Bill, are the following :
In 1816, Shultz, one of the complainants ;
and John M’Kinne, one of the defendant! ;
were proprietor* of the Augusta Bridge.
Under the influence of the Banking Mania,
which at that time spread its infatuation far
and near, Shultzand M’Kinne opened a Bank,
called the Bridge Bank, and issued Bills to
a great amount, bottomed on the value of
the Bridge, chiefly ; (estimated at glOO.OOO)
and some other funda, of small value, con
sisting of Lands, connected with, or pur
chased near, the Bridge, in the Town ot Att
gns>a. At the time of commencing the
Banking business, M’Kinne and Shultz exe
cuted an agreement, by which they mutual
ly pledged the Bridge, the adjacent Land of
the Company, and such future purchases as
ahotiid be made from ttie proceeds of the
Bridge, or Bank, for the security of the
Hills issuing from the Bridge Bank—but al
though copies of this Contract, were inter
changed, it was never committed to record ;
nor was any third person interposed, to
whom a legal interest should be conveyed,
for the purposes ot the Trust, Soon after
Commencing business, the Bridge Bank Com
pany, drew, and applied a part of its Funds,
to the building of expensive Edifices, in the
Town of Augusta, in one Tenement of
which, the business of the Bank was carried
on -, and this, also, according to the Artic'es
ot Agreement, became a part of the Stock,
pledged for the redemption of their Bids,
Talued at SSO.OUU.
In 1818, Shultz retired from the Compa
ny, and sold out his interest to Barna M’Kin
ne, w ith the en ire concurrence of his co
partner John M’Kinne, the former giving his
Bond to Slmltz, with the atteras secur ty, in
the penal sum of JjJUiJJHW, to indemni
fy Htinltr. against all the liabilities of the
Company.
't his event w’as publicly announced in the
Gazettes, and John and Barna M’Kinne,
notice, that ihey thenceforward conduced
the business on their own account, and as
sunieil all previous engagements of the
Company, as their own.
In May 1819, the Bridge Hunk stopped
payment; and in two davs after, Shultz, with
the consent ot Barna M’Kinne, r sinned the
management ot it* interests, in conjunction
Willi John M’Kmne, and jointly will, the lat
ter. Bridge for sale, for the
redemption til the outstanding Bdls of the
Concern, fora great proportion of which ]
bhtlltz wa- personally liable, they having 1
been issued while he was a member ot the
C'unpairy. John M’Kinne, it appears, dur
ing all this period, was carrying on business
as ii general merchant, bothfn hi own name,
ami a-> the copartner of one Lam Vin, under
the firm of John M’Kinne h Company ;
And being largely indebted to the State
Bank of Georgia, within a fortnight after
Shultz rcsnmtd his situation in the Compa
ny i and secretly, as Shultz avers, ,h ho M’-
Kiime, jointly with Baum M’Kmne, ex. tut
e.l » Mortgage of the Bridge, to that Bank,
tin- the purpose, as expressed in (lie recital,
ot securing the payments of debts of John
M'Kinne, ind John M’Kmne & Company, to
the amount of Ninety 'thousand Uoilurs.
This Mortgage also include* a considerable
property, and personal, severally owned
by me M’Kinne'.':, in their individual right.
It appears, also, that during the same pe
riotl, Barna M’Kinne transferred Ills interest
in the B iddings erected by the Co mpany!
to John M’lamn* ; and the latter executed
a Mortg go thereof, to the Augusta Uattk,
for the purpose, as it is alledged, of secur
ing other debts, pime.ipally Ins own indivi
dual debts to that Bank; and thus, the whole
Fund pledged in the rren.tors of the Bridge
Hank, of toe Ci paiintiship of M Kiinie &.
Shultz, has pasted to the creditors of the
Bank ; or, to secure the individual debts of
Joint M’Kinne ; while Shul z t» left alone,
to redeem the Bridge Hills; ami the hoi
d< ra of those Hil s, stripped tithe Funds
on which they relied, are left to seek re.
dress ol individuals, all of whom are alledg
ed to be insolvent.
Bams M'Kinne, it is further staled, has
since re conveyed to Shull *, all Ins interests
in the Bridge Company, thereby vesting m
the latter, the eijutH of redemption, previ
ousy remaining in M’Ktniie; and, thus nr
cuiiisiaiieed, toe creditors of the Company,
a: d of the M'Kinne'*, are ei gaged in i lie
general scramble, tor the purpose of ap
propriatmg to themselves, each, such part
of tlie wreck as he can seize upon. These
suits being prosecuted m Hie State Courts
ot Georgia, judgments and foreclosure* have
been obtaim U, in suits at law; and the
Bridge. or.v least so much ot it as an OIK
cct ol that Slate can seize upon, is now ad
vertised tn- sale—-notlt at the smt ot the
State Bank, and tit individuals holding
stuns ot ..u' Bridge Bills. Shull/,, and cer
tain of the oieditors of the Company, now
preUr 'lns Bid, m c injunction, lor the pur
pose ol Itav. g the questions of right settled
ex none, and the property'so d sposed of,
m. not 111 he sacrificed ; and the Motion now
to he considered, is to obtain an injunction ,
~*N- sale of the Bridge, until the
q.u- . lit can he decided ; and such
•, as will make the mo-t of
tli«* rtrul, t«»r me uJiitiMU* benefit of those 1
Wh are. legally entitled to it.
A question in the outset is ma le, as to the l
power ot tit* Court, to grant, junction I
in the particular case Fite tx-cuuon* un
der wlm-h die property is advertised tor
sale, i,s„c from the State Courts ol fieor
gia . and it is contended, that under the sth
S. chon ol the Act of Coogres”, 2d March,
1793. die power is denied to the C tins of
tbt* L. iiitca Males* to istue an injunction io
[l*? ri *« w«uU of that Act, «re t
r shall a writ of injunction bo rranicU,
X ? Proceedings in any Court; us u State.”
And t«-t* contended, that this reatnetinu ex
tends to the use „t any process, emanating
Mom a Mate Court ; ami to suits proffered
i--
JtgTSiS-sri-jTji
execution, is no proceeding m , Cour“ *d
l* a matter par, ami although Court!
J 5“ mtertere, on application of parts"*
• * svw, to picvcouu ptactwi Hum being
abused ; yet, on application of a third per.
s'tq*, no case is recollected, in w hich such
futerterence can be claimed. Nor need the
defendant himself apply ic the Court for re
dress, since any iniquitous use which a
plaintiff'niakes ot Ins execution, may, at de
fendant’s option, be made the subject of a
»uit for damages.
Nor does tbe reason and policy of the
law, operate in' favor of the construction
contended for against this motion. It is all
important to observe, that tbe complainant*
were neither party, nor privy, to the suit
obtained in the State Court, by the Bank,
against the M'Kifine’s. There was no at
tempt to arrest the progress of that smt, bv
an injunction ; and no one contests the cor
rectness of any thing decided in that case.
It is admitted, that the M’Kiune’s were just
ly adjudged to owe the money sued for ;
and that, as against them, eveiy thing that
was done, was legally done—but the inter
ests ot third persons, comes now under dis
cussion ; and for aught that at present ap
pears to tins Court, this very judgment, ob
tained between these parties, may be tbe
machinery of a fraud, upon these complain
ants. Ot that, the State Court could know
nothing ; and if so, could feel nothing but
satisfaction at the failure of such a pro
ject. 1 would not be understood to prefer
the charge. lam only supposing a possible
case, to which it could never have been the
intention ot the Legislature of this Union,
to extend tins restriction.
The distinction is too obvious to be insist
ed on, between firosccuting an unconscienti
ous suit, and making an tmconscientious utte of
an execution already obtained. The policy
ol the law, was to prevent bickering and
collision, between the Courts of the res
pective jurisdictions ; a purpose too benign
ami grateful, not to meet with the hearty
support i.t every one capable of divesting
himself of judicial pride. But why, with a
view to this ei d, ought it to operate upon
the interest* ol third persons, no parties to j
the suit. And with reference tn acts so en
tirely individual ; acts, for which Courts of
Justice are so entirely free ftom respoftsibiii- j
iy, as those done by a plaintiff, under an ex- !
ecqtion l It is a well known rule of the
common law, that, on signing a judgment,
toe power of the attorney at law, ceases.
Suing' out an execution, was tiie act of the
plaintiff or of Ins agent, Oy virtue of . ...w
authority, and With regard to the authority '
exercised afterwards, by the Court, over its
officers, it goes no farther than to compel
him to stay it, or to levy the execution ; but
when, and on what, or whom, rests with him
in whose tavor it ssues.
1 here was much reason why this restric
tion, as to issuing injunctions, should hav*
been imposed, relative to the actual parties
to a suit ; for as 10 them, ample provision j
had been made by law, for giving them, in \
other modes, the full benefit of the judicial j
nowers of the United States, in cumtncn- i
ci gnr transferring their causes, to as to \
have their rights submitted to the Judiciary
j of the Union. Not so, as to third persons ; !
f ir no possible reason can be assigned, why
their interests, or rights, should be compro
mitted, because other- chose to sue, or could
not avoid suing, in the State Tribunal.
So also, with regard to suits pending; the
pride of opinion, mutual jealousies, or inure
probably misrepresentation or misconcep
tion, might lute been productive of heart
burnings; but what has a Judge to do with
the incidental questions which arise in So
cieiy, from the clashing of individual inter
ests—the jarring and collision of rights that
have never been brought under bis review.
It is true, as has been urged, that these par
ties have sought redress in the State Courts.
And 1 verily believe, drum my knowledge
j ot the characters who fill that Bench, that
j they would have found justice as faithfully
j administered there,;« it is any where. But
who can control them in their choice ? Call
it whim, caprice, prejudice, or what we will,
if the Constitution and Laws give the u the
option, they are accountable to no one for
tbe motives which govern their election.
Some adjudged Cases have been cited, as
serving to sustain or elucidate the argument
against this motion. In the Case of
v. Voorhus, (7 Crancli, 279) the Courts of
the Utt led Slate* compelled their Officers
to proceed to issue and execute a Writ of
Ilnbere facial I‘ossessionem, upon a Judg
ment recovered in tlm Circuit Court of Ken
tucky, in opposition to an injunction issuing
under State Authority, and served upon the
Officers of the Court of the United Stales.
And it is contended that the Stale Cou-ts
must possess the tame power, and will be
ready, under the precedent set bv the Uni
ted Stales Courts, to us-ert it. llow Courts
vt ill act towards their own Officers, must c
ver rest in their own discretion, tn the pre
sent c-a e, no process is prayed for agai st
the Ollicers of (lie Court ; and when serv
ed upon a Plaintill, he knows the responsi
bility under which he requires of the Offi
cers to proceed, the ease of M’Kiiji vs.
V itrlins, was one in which the Court could
not have acted otherwise than it did. Ibe
object there was, to elude M'Kim’s tight to
sue in the Courts ol the United Syncs, by
making tbe Clerk, who was a citizen of tbe
S.ate, a co-defendant, or to deprive tbe for
mer ot tiie benefit of bis Judgment, by this
mode of preventing the Writ ot Possession
trom issuing tor he land lie had recovered.
1 o have suffered the justice of the country
to be thus baiH d and defeated, would have
rendered any Court contemptible. Bui the
Constitution ot the United States, has wise
ly imposed au oath on tiie b ate Authorities
to i aintain it, that the obligation of this sa-
I cted appeal may reach its support to those
• cases tu v inch to other safeguard can be
i interposed. I l-el no apprehension that any
i collision will ai ise, winch may not be put a
j suit- by moderation and lenity, mutually ex
j erased. I lie Case of D.ggs and Keith vs.
M olcott (4 Cr. J 79) was one literativ within
tne provisions u s the Act. Jt was between
the same parties, and the Bill was fi.ed dur
ing the pendency of the suit in the S u e
ourt. But it ls t bvious upon the face ot
tiat Bepoil, liiat ihere is something uuac- )
coti nab - m tiie whole Case. It is how
ever. at most, only an Authority to support
•ue general rule having t.o relation to tiie
exception here contended tor. Upon the
wm.lc, tin genera: rue t.-, « that Citizens of
other Miles 'Hall luve the privilege of pro
secuting heir claims, in the Courts of the U.
Siau-s , .mu it dots not appear to me that the
Actol the 2d of March, 1793, .5 It section
w ten it piovidts'lial no writ of injunction
shall he granted to stay proceeding* in any
’ urt ot a State, ’ extends to the case.of a
suit bro’t by a third person, to obtain relief
against the ui. onsc.i,, ions use of *n execu
tion issuing frbpj a State Court. Iu con
sidering tne grounds upon which the Coin
plaiiiant m dtis Case rests his claim for re
net. it is übviou- hat they are all inconsidera
te m value to them, when compared with
that wlucU would give to the Copartnership
creditor, (the holders of the Bridge Bank
Bills) a general preference as to the pro
ceeds of the pledge Stock. And the ques
tion raised on this point, is certainly one ot
great nicety and difficulty. On the one
hand it is difficult to believe that the
Bank waa of the fact, that the
M'Kinne's were mortgaging, ami they were
receiving for a private dear, the funds that
were publicly and notoriously the pledged
security of ihe Copartnership Bills. Indeed as
they were purchasers under Burna \l‘Kinne,
it is a question worthy of much consideration,
whether they must not be legally affected
with notice, since, in examining Ins title, the}
must have looked into the Oced, origina.ly
executed between John M'Kmne and Stiuitz
—a Heed which operates against botl*
those parties as a convenant w stand seized
to the use of the Bridge Bank creditors;
nor could the State Bang have been ignor
ant of the insolvency of the Bri lge Compa
ny, at the time ot taking this mortgage,
since the Bridge Bank had notoriously si op
ped payment, above a fortnight belore ; and
John M-Kinne 8t Shultz, iiad poolicy adver
tised the Bridge for sale, tq satisfy the Bridge
Bank Bills. But, on the other hand, the
legal interest was in the M'Kitne’s, and ac
tually, whether conscientiously or not, trans
ferred to the Stale Bank.—Whether thev
shall be decreed to hold, as Trustees for the
original Cestui qui trusts, is therefore a ques
tion, which merits the matures’ cnhsidera
tion. But as it would be prejudging the fi
nal issue of this cause, and there appears to
me to be sufficient grounds, in the case, to
decide this motion upon, independently of
this, I will, for the present) hold myself un
committed on this point. *
There are four other points in the case; on
any one of which, or at least on all taken
together, this injunction cannot be refused.
In the first place, Shultz appears here as
the assignee of Barna M’Kiune’s equity ol
: redemption ; in wnich relation, lie has an
j unquestionable right to investigate the le
gality and amount of the sum, claimed of the
il’Kitine’s, under this mortgage. Hut his
equity is.sldl it appears, that
the property mortgage* by Barna MMv.n it,
was for the proper debt of John M'lynnt;
and that a large summit ’of John M’Kinne’s
property is included in the same tnorigage.
There is then, the strongest reason for insist*
ing, that the property of John M’limite,
i should he first applied to the extinguishment
! of I Ilia debt, ami that Shultz should be let in,
to redeem the Bridge, upon payment of the
balance. But Shultw also appears here, as
well a3 .he holders of the Bridge Bilis, in
the relation of cii-mortgnges : tho’ it be
assumed) that the State Bank must be pre
ferred in point of old. r, still, as to any resi
due of the mortgaged premises, the holders
of Bridge Bills certainly are entitled to the
, benefit of the contract, to giattd seized, exe
| cuted bet ween the original Members of the
j Company, and afterwards assumed by Barna
1 ll’Kmne, when substituted lor Slmitz And
j Shultz, as their trustee; and as being him
i sell, still liable to them, is entitled to all the
1 equity, winch they could Claim, fho’they
| may h ive, lost their precedence, the holders
ol Bridge Bills have not lost their equity: as
! between them and the Bridge Hank, the
; contract is still a subsisting woe ; and the
! only consequence ot losing precedence, is,
■ that they must stand, in Ihe relation of se
j cond, instead of fir-t mortgagees ; and as
j am h, have a ch ar ngnt, both to an accc*V-,
| and to compel tne first morig igees to apply
I the property of John M'Kimte, and eyen ot
j Barna Vl’Kinne, to the relief of the property,
in wliich (hey are joint mortgagees. Tins
j right is supported, both by the consideration,
I that the Copartnership fund, is equitably
applicable to the Copartnership debt ; and
the private funds to the private debts—in the
first place, and that, where a first mortgagee
has several securities, and a second hut one
of them, the first mortgagee should “ ceteris
paribus,'’ be held first to apply his peculiar
fund to his peculiar debt, to the relief of the
fund pledged to both debts. Nor is the pc
cu.iur nature, or state ot this property, an
immaterial considerati n—The object of a
mortgage, is the satisfaction of a debt ; arid
every thing’ that tends to defeat this end, is a
violation ot the spirit of the contract, and
contrary to equity. The wanton or unrea
sonable sacrifice ol the mortgaged premises,
wdl always be resisted in a Court ot Equity.
In the pivse.it case, who knows what is to
be sold ? All know wliat has been mortgag
ed—an entire property in a Bridge. But,
would the mortgagee be suffered to break
that Bridge up, and sell the fragments? In
what does that differ from the present at
tempt i A Sheriff, of one of .the Georgia
Di-tric.s, levies on this Bridge, under an
execution, issued by the mortgagee, anil
advertises it tor sale. It is indisputable, that
his levy can op rate no farther than the
jurisdiction ol the State extends; and that
jurisdiction certainly does not extend over
the whole Bridge, perhaps not over twenty
feet ol it. Tins is unquestionably selling it at
piece-meal, the bead of the horse at one tim •,
and the quarters at another. The wheels oi
the wagon to one, and Ihe body to another.
The question, how far the jurisdiction of
the respective States extend 'over the Au
gusta Bridge, is one of in'er-natio al law,
and one by no means of the least difficulty :
nor is it to be lightly decided ; for it may
one day, become decisive, of the lives or
liberties of our fellow-creatures. An offence,
committed on the Bridge, would lead to the
developoraent of all its difficulty.
The stale of the question stands briefly
thus :
The Grant to the Loyds Proprietors, em
braced the tine - Southern Stales. The
State of South-Carulina, comprising original
ly that ot Georgia, was for it divided off; and
subsequently, the State of Georgia separated
from Soutli-Garolina. Tire Savannah Itiver
was, unquestionably, originally subject to the
jurisdiction, and part of the territsry of
Souih-Carolina ; and when Georgia was
separated from it, it was described in these
words r “ All those Lands, Countries, and
i «• Territories, situate, lying and being in that
“ pact of Soutb-Carolina, in America, which
“ lies from the most Northern stream of a
“ River, then commonly called Savannah, all
“along the 6ea Coast,” fee. By which
word-, and according to the decision of the
Supren e Court, rela jve to tbs jurisdiction
of the Ohio Uiver, the bed of the river to
low water mark, remained in the State of
South Carolina. I’he question is, how far
this state of things has been altered by the
Treaty of Beauturt, by which the boundaries
of the two States were established and defin
ed, in the year 1783. This Treaty declares,
that “ the most northerly stream of the
“ Savannah River, extending from," fee.
“ shall forever hereafter, form the separa
tion limit, and boundary, between the
“ States of South-Carulina and Georgia.”
The navigation of that stream, is declared to
be iu common, free from all duties and im
posts ; end “ all the rest of the Savannah
River, southward of the foreguing descrip- i
tion, is acknowledged to be the exclusive
right of the State of Georgia.”
The two States, then, mutually, relinquish
to each other, as! jurisdiction, &c. ; the one
to tiic north and east, the other to the south
and west, “of tile boundary above establish
ed that is, of the must northwardiy stream
of the Savannah Hiver.
Thus the Treaty contains no express ces
sion of the jurisdiction ot 'he bed of the ri
ver, except only as to the right of naviga
tion ; which extends to a floating structure,
and secures jurisdiction to Geoigia, over
crimes committed in the boats owned in
Georgia; but certainly has no relation to
fixed structures, resting on the bottom ; yet,
I ain inclined to the opinion, that in adopt
ing the Savannah, as tiie dividing line be
tween the States. South Carolina executed
an implied relinquishment of all exclusive
dominion to the one half es the bed of the
river, and that the true boundary ot the
respective States, at present, is to be found
in the middle of the permanent river; that
is, at its lowest stale, til is, or the channels,
or the south edge of the water at its lowest
stage, must mark the jurisdiction of the two
States; and I think the first is recommended
by the most liberal, convenient, and definite
construction.- But “ quacunque via data,"
the contemp ated sale l.y the State Bank, is
a partial, injurious, indefinite and garbled
sate of an entire property. Nor can any
sale take place, in a Court of Law, in either 1
State, that will not be subject to the same
inconvenience.
!i has been urged, that a sale might, how
ever, take place under the Equity jurisdic
tion of the State of Georgia, with all the
advantages that it cou d under i Degree of
this Court. This may be so, but still it
proves nothing against the interference of
this Court. The party plaintiff, in the suit
under which this is advertised, has
not chosen to proceed in Equity, under the
State jurisdiction. We find him pressing
his suit in a Court of Law ; and if the com
plainants are entitled •<> relief in Equity, it
rests with them to choose between the two
jurisdictions. In Equity, both ends of the
Bridge may be sold together ; for, if the j
Marshal of neither D. strict can doit, the j
Court can nominate Commissioners, or com
pel the parties to carry its Decree into ef
fect. j
With regard to the questioned raised ;
with the Bank of Augusta, it is not now nc- i
cessary lo make any observation. There is j
nt. injunction moved lor against any nriea- j
sures which they are prosecuting. But the j
creditors of the Company, the holders of j
Bills, who have brought suit in the Mayor’s i
Court, merit more attention. They have j
been vigilant; have Obtained the first judg- ;
meats ; and why should they be enjoined ?
It is becj.tsc they are ca-c’SUI i qui trusts of j
the Fund, which they are thus endeavoring
to appropriate,exclusively to their own use.
Ai d it it w ere only on the known and ac
knowiedged ground of preventing a multi
plicity of su is, ttiere is sufficient ground
for.staying a sale of the Bridge, by them,
uutifthe whole can be sold to the nest ad
vantage ; and applied to pay debts, instead
of expences. But the reason against per
mit’ing a particular sale, by the State Bank,
applies strongly also against this class of de
fendants. They cannot seil exce|xt by piece
meal ; or, in other words, they have power
only to ruin themselves and others. But,
fortunately, these creditors lose nothing by
being enjoined, for thd legal estate in the
Bridge, is Clearly so situated at present, as
not to be tangible by executions against the
Br .dge Company.
1 am ot opinion, that the injunction ought
tube granted; but certainly, the case re
quires that the complainants' should belaid
under some rule. Tile Bridge is a produc
tive ami precarious property; and ether
a receiver should be appointed, or they
should be laid , under a rule, to consent
to a sale on reasonable terms : that the pro
ceeds may he deposited, to await the final
issue ol llie suit. Os this, the defendant’s
Counsel will advise with his client— arid my
order on that point, shall remain suspended.
from the Heston Uailu Advertiser .
Campaigns of the British Army.
Ihe author of the Narrative of the Cam
paigns of the Uriti-h army in America, gives
many interesting incidents in tne course of
the work. VVc select the follow ing :
Jljtev the baitle of New-Orleans.
“ As soon a, the whole army was re-unit
ed, and the broken regiments had recover
cd ttieir order, a flag of truce was despatch
ed with proposals for the burial of the dead,
l’o accomplish ibis end, a truce of two days
was agreed upon, and parties were immedi
ately sent out to collect and bury their fal
len comrades. Prompted by curiosity, I
mounted my horse and rode to the front;
but of all the sights lever witnessed, tha:
which met me there, was beyond compari
son the most shocking, and the most humili
ating. Within the small compass of a lew
hundred yards, were gathered together near
ly a thousand bodies, all of them arrayed in
British uniforms. Not a single American
was among them ; ail w ere English ; and
they were thrown by dozens into shallow
holes scare -ly deep enough to furnish the...
with a slight covering ot earth. Nor was
tins all.—An American officer stood by sinolt
ing a segar, and apparently counting the
slam with a look ot savage exudation ; anu
repeating over and over to each individual
tliat approached him, that their loss amount
ed only to.eight men killed and 14 wounded.
“ 1 confess, that when I beheld this scene
I hung down my head, half in sorrow, and
hall m anger. With my officious informant
1 had every inclination to pick a quarrel ;
but he was on duty, and an armistice existed,
both of which forbade the measure. 1
could not, .however, stand by and repress
mi cho.er, and since, to give it vent, woo id I
have subjected me to more serious incon
vemence than a mere duel, 1 turned my
horse 3 head, and galloped back to the
camp.
“ But the change of expression, visible
there in every countenance, no language
can pourtray. Only twenty hours ago, and ,
all tvas hie and animation; wherever you
went you were enlivened by the sound of ,
merriment and raillery ; while the expect
ed attack was mentioned in terms indicative :
not only of sanguine hope, but of the most
perfect confidence as to its result.—Now '
gloom and discontent every where prevailed.
Disappointment, grief, indignation and rage I ,
succeeded each other in all bosoms; nay, '
so Completely were the troops overwhelme’d i
by a sense o) disgrace, that for a while they
• retained their sorrow without so much as ,
hinting at its cause. Nor was this (Ejection
occasioned wholly by the consciousness of l
laurels tarmsbed—The loss of comrades ,
wa» to the full as afflicting; as the loss of hon
our ; for out of more than 7000 men bro ! s
on this side into the field, no fewer than
2000 had fallen.”
[The American account of the battle state*
that the British loss was about 3000 killed,
wounded and prisoners—the American f
killed and 6 wounded.]
Among the evils to which he attribute*
the loss of the battle, he particularly instan
ces desertion.
“ To our soldiers every inducement was
held out by the enemy to desert. Printed
papers offering lands andmuney as the price
of desertion were thrown into the piquets,
while individuals made a practice of ap,
preaching our posts, and endeavoring to
persuade the very centinels to quit their sta
tions. Nor could it be expected that bribe*
so tempting would always be refused.—hla,
ny desertions began daily to take place, and
became before long so’ frequent, that the
evil rose to be of a serious nature.
“ < here occurred however, one instance
of magnanimous fidelity on the part of 3
British soldier, which 1 cannot resist the in
clination of repeating. 4 private of the
95th, whose name 1 should have joylqlly
mentioned had I not forgotten it, chanced
one day to stand a centinel, when he wa*
addressed by an American officer. The A
meriern offered him a hundred dollars aad *
quantity of tand if he would come ovep j
representing at the same time the superiori
ty of a democralical government, and raifi
j ing, as these persons generally do, against
the title of king.—Though the Englishman
heard what was said distinctly enough ; he
nevertheless pretended to be deafi arid beg
ged his temper to conte a little nearer, that,
in his own words, “ he might tell him all a
bout it.” Jonathan exulting at the prospect
of drawing this tine fellow from his duty.
I approached within twenty paces of where
, he stood, and just as he opened his mouth
I to renew the offer, the centinel levelled hi*
piece and shot him through the aim. Nor
! was he contented with iulhctjng this pun
j ishment ; walking forward, lie seized his
, wounded enemy, and reproaching him with
| dishonorable dealings brought lpm in a prj-
I soner to the camp. But unhappily conduct 4
I such as this was rare ; in the course of a
j wet : k man > mcn Touted their colgrsand fled
1 to the enemy.
I The following incident related by the 311.
! thor, reminds us of a Story told by a travel
ler in Ohio, who, seeing a bat in a slough
j near him, reached out his cane for the pur
• pose of taking it, when on lifting it, he wjt»
I surprised to find a man Underneath, who in
i formed him rather calmly that be was fear
| lul of losing his horse, which was still tar
ther below. There is this distinction, bow
ever, that the following is no doqbt true.
, while the preceding 1 is not, • #
| On the Retreat from Nety-Qrteang.
“ some time, that is to say, while our
i route lay along the high road, and beside
the brink of the river, the march was agreed
i able enough, blit as sooti as we began to ea.
! '• er ll P nl ' the path through the marsh, a!J
j comfort was at an end. Being- constructed
i ot materials so light, and resting on 3 fouii-’
j datum so infirm, the treading of the first
1 corpse unavoidably beat it to pieces ; those
! wll ' cl ‘ f'dlowtd were therefore compelled
I to fl .under on ill Ihe best way they could i
ami by tlie time the rear of the column gain*
ed the morass, all trace of away had entire
ly disappeared.— But not oi.lv were the
reeds torn asunder and sunk by the pi™,
sure of those who had gone before, but the
bog, itself, which at first might have fur.
mshed a lew spots ot firm footing, was trod,
den into the consistency of mud Tip- cod
sequence was, that e*ery step sunk us to
-the knees, and frequently higher. Ne-J
the ditches, indeed, many occurred winch
we had the utmost d.fflcultyin crossing at
all ; and as the night was dark, there beiug
no moon, nor any light except what ti e
stars supplied, it was difficult to select our
steps, or even to follow those who called to
us that they were safe on the opposite side
At .one ol these places 1 myself beheld an
unfortunate wretch gradually sink till he
disappeared. I saw him flounder in, heard
nib cry for help, and ran forward with tht
intention of saving hint ; but before I had
taken a second siep, I myself sunk at once
as high as the breast, flow I connived to
keep my self from smothering, is more than
1 can tell, for I felt no solid bottom under
me, and continued to go deeper and deeper,
fill the mud reached my arms. Instead of
endeavoring to help the poor soldier, of wi
wiioi;i nothing now could be seen except tha * '
head and hand-, I was forced to beg assist,
ance lor myself, when a leather canteen
strap being thrown to me, 1 laid hold of it,
and was dragged out just as my fellow suf,
terer became invisible.”
riJOM A I.ONIIOS PAPE*.
V/aricicle Assizes.
By each of promise of Marriage.
Baylis vs. Bray. —At the assizes for .tha
couiiiv of Warwick, an action was brought
y the plaintiff in this cause to recover s
compensation in damages for a‘ breach of
promise of marriage.
The plaintiff, Elizabeth Cavils, is a young
woman in a respectable sphere of life-- the
defendant is a farmer, residing at Keni'»
worth Chase, in ibis county, and is in .gooG
eircu ; stances. ° v •
Plaintiff went to live with Mr. Bray, as
Ins servant, at Lady Day, 1819 ; j n a few
months after lie began to pay very 'particu
lar attention to her, and a! length promised
her marriage, and to sfttle LS OO a year up
on her. ’I lus promise was made at sever j
tunes, and in presence of several persons,
rlamt’.ii had acquainted her friends with the
proposals of defendant; and defendant had
also sent tor the woman’s father, and made
, fiV 1 ; 6 r prop ' mls t 0 llim - Plaintiff fixed
the 2od of October, and then the 00111 of
the same month, for the marriage. Defend
ant put ofl the marriage until the following
i lon clay, but in the interim sent plaintitF
word that his friends disapproved of the
match, and therefore he could not fulfil hi*
promise. Defendant seme lime after fixed
the sth of January for the marriage, ant!
again broke his promise. Tins disappoint
ment to plaintiff was attended with serious
circu nxtances. Defendant lias said that |ie
was worth upwards of Z. 4009. Plaintiff was
about 24 years of age ; defendant was 20
years ot age. The damages were laid at
/ 4000.
Witness were then called to prove the
plaintiff ’s case.
Mr. Denman made an eloquent appeal te
the Jury in alligation of damages.
Mr. Serjeant Vaughan spoke cm the part
of the plaintiff.
The judge ,-ummed up, and the .Jurv re
turned a verdict— Damages, Two Hundred
and Fifty Pounds-.