The Express.
London, England, 1846-11-09 00:00:00

BAIL COURT.

- - - -
IN THE MATTES OF THE TOWN COUNCIL OP THE BOROUOH
OP WARWICIL.--CIRTIORAILL—Mr. Mellor moved for a
certiorari to bring up an order of the Town Council
of the borough of Warkwick, which had arisen out
of certain proceedings which had been taken before the
full court. A discussion had occurred in Easter term as to
an order of the Town Council for the payment of 1001. to Mr.
Tibbitts, the costa in a suit in Chancery, by which it was
sought to restore the council to the management of certain
charity trusts, of which they had bean deprived by the
Municipal Corporation Act. The Court, however, was of
opinion that the funds of the borough would sot be applied
to such a payment The Borough appeared to be somewhat
contumacious with regard to the ruling of the court. In the rule
as then moved costs were asked which had been incurred
by the town council, and also the costa of an irregularity,
whkh arose in the following manner: It was necessary that
in the course of the proceedings the fiat of the Attorney-
General should be obtained ; the matter had gone on with-
out this consent being asked, but on application to the Lord
Chancellor time had been given to apply to the Attorney-
General. He bad, however, refused his " Sat," and the
matter came before the Court of Chancery on an amended
petition, that portion which related to the objec-
tion of the Attorney-General being struck out. In
this matter Messrs. Morris and Newsam acted as
solicitors, but without the authority of the town council.
The coats of the irregularity amounted to 2151., which had
been paid by Morns and Newsam, who made an appli-
cation to the town council for repayment. It was resolved
by the town council, that as they had ne money themselves
that Morris and Newsom should get it in the best way they
could, and they should receive a bond as security. Morris
and News= obtained the money on the bond from a client
of theirs, Mr. Wrighten, on the 7th of April, 1846.
On the 7th of May, the Court decided the question on the
other case, and on the 31st of August Morris applied to the
town council for payment on behalf of Wrighten, where-
upon the money was paid and the bond discharged by a
resolution of the council' and the usual order was made ;
notice was then given by Mr. Heath, a burgess of the
borough, that the order would be questioned and brought
before the court, with the view of quashing it. The pay-
ment of these costa to Morris and Newsom was even a
stronger case than the payment of those which had been
incurred by the authority of the town council, and which
the court refused to sanction ; and, therefore, it was con-
tended there should be a rule.—A rule nisi was granted.

COURT OF COMMON PLEAS.
(Sittings In Woes.)
OSBORNE,. PRITCHAISD.—CLAin PT A RAILWAY SUR-
TIMOR AGAINST MS PRINCIPAL.— This Cage was tried be-
fore Mr. Justice Erle, at the last sittings at Guildhall, when
• verdict was entered for the defendant.
Mr. Serjeant Byles now moved upon affidavits for a rule
to show cause why there should not be' a new trial, on the
ground that the plaintiff had been taken by surPrise in the
production of certain evidence. It was an &lion of asrump-
sit brought by the plaintiff, a surveyor, against the defen-
dant, who had employed him on the London anti Birmingham
Extension Railway from Warwick to NorthamOon, to re-
cover the balance of an account alleged to be due to him for
services, and also for expenses incurred by him io the dis-
charge of his duty. The defendant, who was the p:incipal
surveyor to the company in question, promised to p.,.T the
1 plaintiff at the rate of 31. 3s, a day, and expenses, if he
should turn out a " good surveyor." The pleas were urns
assumprit, and that the plaintiff was not a good sur-
veyor. It appeared that on the 22nd of October, 1845,
a contract was entered into between the plaintiff
and defendant, by which the latter agreed to employ
the former until the 30th November. The plaintiff was, as
he alleged, discharged on the 15th of November, and the de-
fendant contended that he was not employed by him after
the Bth, from which period he ceased to pay him. There

30th,
eclaimeimu/increipeprn.a...stlao),nbetoortheene amountth Bth
h anofd3Ottefolr6thhis
ofservices
The defer.;* was, that the plaintiff was discharged on the
Bth of November, and that he had received his salary up to
that period. The questions left to the jury at the trial were.
whether the plaintiff was discharged on the Bth or the 16th
of November, and whether he had proved himself a " good
earveyor." If he was dismissed on the 15th, and not on the
ML, he would be entitled to one week's payment at all
and if he had exhibited such skill as would misti-
me " good surveyor," he could clam payment until
the SO* November, according to the contract. On
Ile pert of the plaintiff a witness was called to prove that
lb (plaintiff's) services were retained up to the
Mk of November, and that hie work had given
satisfaction. On the other hand evidence was adduced to
wove that he was discharged on the Bth, and that the maps,
he., executed by the plaintiff, were destroyed as unfit for use.
He (Mr. Serjt. Bytes) urged that the plaintiff could have
given corroborative evidence as to his being retained until
the 15th, but as his legal advisers were not aware of the
defence about to be set up, they forbore to call more than
one witness as to the date of his discharge. He submitted,
therefore, that this was ample reason for a sew trial on the
ground of surprise, and he trusted the Court would grant
him a rule nisi.—The Court was of opinion that the plaintiff
had no ground for a new trial. When he commenced his
action against the defendant, he must have known that the
date of his dismissal would be a disputed point, and there-
fore he should have been prepared with evidence to meet it.
If his legal advisers in the exercise of their discretion, had
abstained from calling witnesses who might have proved his
case, the learned counsel could not now come forward and
say that the defence had taken him by surprise. The plain-
tiff must have known that the date of his discharge was
material to make out his case.—Rule refused.
WINDSOR IL HILL AND OTHERS.--ACTION FOR
DAMAGES SUSTAINED BY • PASSENGER ON BOARD A
STEAM-BOAT THROUGH • COLLISION WITH ANOTHER
VESSEL.— The plaintiff sought to recover 251. for injury
sustained by Aim on board the Emerald, Gravesend steam-
boat, through an accident, which he attributed to the negli-
gence of tne crew of that vessel. The defendants, Hill,
Dawson, and Warren, were sued as the owners, and the
question was whether they really filled that capacity, and if
so, whether the accident complained of was attributable to
the negligence of their servants. The cue was tried before
Mr. Baron Parke, at Maidstone, when a verdict was entered
for the plaintiff, amsges 251. Mr. Serjeant Shee now moved
for a rule to show cause why there should not he anew trialoa
the ground that evidence had been improperly received, that
the verdict was against evidence, and that there was •
variance between the issue and the record, which the
plaintiff's attorney had corrected without the authority al
the learned judge. The facts of the ease were briefly thee
On the 13th December last, the plaintiff was a passenger IR
board the Emerald steamer, which left Gravesend at three
o'clock in the afternoon, and immediately after the vessel
had rounded Broadness Point, the John Bull, Hamburg
steamboat, was descried. The captain of the Emerald gave
orders to put the helm a-port, and at that moment a collision
took place. The plaintiff's leg was broken by the concussion,
and thinking that the accident was attributable to the care-
lessness of those who had the conduct of the Emerald, he
brought his action against the proprietors to recover compen-
sation. The question therefore was, whether the accident
had been caused by the Emerald or the John Bull. On the
part of the plaintiff it was contended that the John Bull was
going against the tide, and that, according to the rules of
the Trinity Baud, the captain had a right to starboard the
helm, in order to go towards the Essex shore. On the other
aide witnesses were called to prove that there were no
lights on the John Bull, although it was dark at the
time, and that there was a total absence of all
those circumstances from which it could be inferred

according to rifirraens. vu

that the captain and crew were careful in the management
of their vessel ; whereas, there was a good look-out kept on
board the Emerald, the captain was on the paddle-box, and
the vessel was well protected by a light at the mast head ;
the helm was put a-port, which course, it was urged, ought
also to have been taken by the John Bull, according to the
Trinity rule. With regard to the evidence adduced to iden-
tify the defendants as the owners of the Emerald, he (Mr.
Serjeant Shea) submitted that it was insufficient, inasmuch
as it consisted solely of statements to the edict that Hill and
Dawson bad been seen at the office of the steam-hoat com-
pony. There was no direct proof of the ownership, and as
to Warren there was no evidence at all to go to the jury.
Upon the question as to the variance between the issue and
the record, the learned serjeant contecded that it afforded
ground for a new trial, inasmuch as the attorney for the
plaintiff had supplied an omission without the authority of
the court. It appeared that the date of the writ was omitted
in the issue, and the attorney seeing the same omission in
the record, bad corrected it upon his own responsibility. It
bad been decided in two cases in this court, '• Worthington
v. Wigley," 5 Dowling's Practice Cases. page 209; and
" Blissett v. Tennant," 6 Dowling, page 436—that when an
attorney attempts to correct an irregularity in the record
without applying to the court, the opposite party has good
ground for a new trial.—The court expressed some doubt
upon this last question, but granted the rule upon all the
points.—Rule nisi accordingly.

COURT OF EXCHEQUER.
Sitting. In %Mo.
BEADBL V. MURRAY, BART.- —THE RURAL POLICB AND
THE MAGISTRACY.—This was an action for assault and
falsiimprisonment, and was tried by a special jury, before
Mr. Baron Parke, at the last assizes for Hertfordshire, when
a verdict was returned for the defendant. It appeared that
some time before Christmas last, Sir Robert Murray, the
defendant, who is a magistrate for the county of Hertford,
lost some fowl, and gave directions to two policemen, one
named Goode, an inspector and the other named Hawke',
to look after them. They Proceeded, in obedience to their
orders in search of the lost fowl, and not having succeeded
discoveringin them, they saw, on passing the house of the
plaintiff, who is a poulterer, residing at Stephenedge, in
Hertfordshire, some birds exactly corresponding with the
description of those lost by Sir Robert Murray. The plain-
tiff, on being told this, stated to the policemen that he pur-
chased the fowl some time before, and mentioned the names
of the persons of whom he had bought them. They. however,
suggested to him the propriety of allowing Sir Robert
Murray to see them, as they so very much resembled
those he had lost, and the plaintiff consented to do so. He
brought the fowl in a cart to Sir Robert Murray's residence,
where the two policemen had arrived first, as the route by
which they went was shorter than that, round the road, by
which the plaintiff was obliged to go. They took the fowl
into Sir Robert Murray, and after a shout time returned to
the plaintiff, who, addressing the policemen, said: " Well,
I hope Sir Robert is now satisfied that the fowl arc not his."
" He is so satisfied," replied the policemen, " that he or& red
us to take you into custody, and handcuff you." The
plaintiff was accordingly detained that night, and next morn-
ing was brought before the magistrates, to whom he repeated
the statement as to having purchased the fowl some time
before ; the matter was investigated, inquiries were made as
to the truth of the plaintiff's assertions, and the result was
that he was at once discharged. Be then brought
. this
action against the defendant, who pleaded first a justifi-
cation, and, secondly, " Not Guilty." The plea of justification
not having been sustained, the question was, whether the
defendant had given authority to the policemen to handcuff
the plaintiff and keep him in custody. The two policemen,
who were produced upon behalf of the defendant, swore that
they had not acted upon his authority, but solely upon their
own; whereupon the learned judge told the jury, if they
believed that evidence they should find a verdict for the
defendant. Having accordingly done so,
Mr. Montagu Chambers now moved to set aside that ver-
dict, and for a new trial. The affidavits upon which he
moved stated that the policemen bad been examined by the
plaintiff's attorney and his clerk, before the trial, and that
they both then stated distinctly that they had been directed
by the defendant to handcuff the plaintiff and take him into
custody. That Goode, on the morning of the trial, was
closetted with the defendant's attorney, and that there was so
much doubt of his veracity, that the plaintiff would not call
or examine him; also, that this policeman was told by an-
other
influential magistrate of Hertfordshire that no action
could he then brought by the plaintiff against either of the
policemen, as the time limited by act of parliament for in
stituting legal proceedings against police-officers on such
grounds as these had expired, and that the particular clause
in the statute was shown, before the trial, to Goode by the
magistrate alluded to, in order to convince him and Hawkes
that they could not be made responsible to the plaintiff. The
affidavits further stated that Goode, after the trial, asserted
it was a hard case for him that he should perjure himself in
order to save the defendant. The learned counsel observed,
that the country polite were entirely under the control of
the magistrates, who had the power to appoint, to dismiss or
reward them, and from the facts stated in the affidavits,
upon which he moved, it was not at all unlikely that the
policeman in question had given untrue evidence from the
apprehension of dismissal.
The court intimated that it was desirable to afford an oppor-
tunity to explain or contradict the extraordinary statement
of one of the principal witnesses that he had perjured him-
self to save the defendant, and upon that ground they
granted a rule to show souse.
Mr. Baron Alderson—Most probably the answering affi-
davits will explain away all the statements now made.
Mr. Chambers—lt is possible, my lord.
A rule Pali was then granted.