The Express.
London, England, 1846-11-06 00:00:00

BAIL COURT.

OREYTLLE v. STIZTZ7-itiVilthAL op OUTLAWRY.—
The plaintiff in this case was the Hon. It. Fulke Oreville,
and the defendants Messrs. Stoltz the well.known tailors in
Clifford-street. The present proceeding was what is techni-
cally termed a " writ of error, for the purpose of reversing
an outlawry which had been obtained against Mr. Greville
at the suit of the present defendants.
Mr. Martin and Mr. Beavan appeared for the plaintiff in
error, and Mr. Barstow for the defendants. The case was
one of an unusual description, and the question for the jury
to decide was, whether at the time of the commencement of
the proceedings to outlawry by the issue of a writ of exigi
facia:, Mr. Greville was abroad or not. A commission had
been bitted for the examination of two foreign servants of
Mr. Greville in Paris, who were to prove that he was in that
place on sth June, 1845, the date of Coe writ of criflifacins.
On the order of the Lord Chief Baron fur the issuing of this
commission being read,
Mr. Barstow objected that the order had only directed a
commission to issue generally, and that in conformity with
the statute 1 Will. IV., c. 22, s. 4, by which the judges were
authorised to issue such commissions, a suheequent order was
necessary, as this order did not show to whom the commission
was directed, or where the examination of the witnesses was
to be, as had been stated in the commission itself ; and all
these things had been put into it by the attorney who drew
it when they were not on the judge's order.
Mr. Martin argued that the order was in the usual form,
and that the proper course would have been to move to set
it aside ; but an order under the seal of the court would not
be treated as a nullity.
Mr. Justice Patteson said that he did not think the
order was consistent with the directions of the act of parlia•
ment, but he would not stop the case, but give leave to move
for a new trial. The commission and interrogatories were
then read.

Mr. Barstow then obje:ted to the examination of the wit-
nesses being read, on three grounds.—First, that it was not
any where stated that the witnesses had been examined
apart from each other as directed by the terms of the com-
mission ; secondly, that although it was stated that an in-
terpreter was sworn, his name was not given, which was
essential ; and, thirdly, that it was not stated, at the head of
the evidence of each witness, whether the interpreter had
been used or not. On the other side it was contended that
the court would assume that their officers did their duty cor-
rectly, and that it was not necessary to state these matters in
the returns.

Mr. Justice Patteson said that he thought the evidence, as
it stood, dangerous, but on the whole he thought he wai
hound to receive it. In the late case of the " Queen r.
Douglas," much discussion had arisen as to the manner and
form of the return of depositions taken under a commission,
and the court thought tkut they should not be astute to find
objections in them, but ought to give credit to them and pre-
sume they were right unless the contrary appeared. Here
he presumed the witnesses had been examined apart, as
directed by the commission. With regard to the interpreter,
he did not see how it was powible for him to say whether the
witnesses were examined by an interpreter •t all. If he
presumed that one witness was so examined, how
could he say which ? He thought the question,
whether the interpreter's name ought to have been
mentioned did, not arise. He was not prepared to re-
ject the evidence, although he admitted it with reluctance,
and he would give leave for a motion to the court above.—
The evidence token by the Commissioners was then read and
proved, that Mr. Greville was in France on the sth of June,
1845.

Mr. Rose, one of the officers of the Queen's Bench, proved
that the writ of e.rigi facia. issued on the 511 of June, 1845.
Mr. John Bevan stated that he was in Paris at that time,
and saw Mr. Greville there, and Mr. W. Beare'', Mr. Gre-
Tulle's attorney, proved the receipt of _a letter iu course of
post from him, with the Paris post-mark, dated on the sth
of June. 184.5.
Mr. Barstow said, with regard to the issue, that Mr.
Greville was out of the kingdom on sth June. He should
not go to the jury, but he contended that the verdict should
be for the defendant, inasmuch as the proceedings in out-
lawry did not terminate until October, and the plaintiff,
stating, in his assignment of error, not only that ho was out
of England on sth June, 184.5, but until the completion of
the outlawry had adopted the whole issue.
The learned judge, however, decided that the issue was
simply whether he was abroad or not, and the jury returned
a verdict for the plaintiff, in error.

COURT OF COMMON PLEAS.
(Sittings In Burn.)
LAMBERT AND ANOTHER V. A BILITT OP PRO-
VISIONAL Commiraz-HEN.—This was an action brought by
the plaintiffs, who were lithographers at Newcastle, to re-
cover from the defendant, as a member of the provisional
committee of the Oxford, Witney, Cheltenham, and Glou-
cester Railway, the sum of 10391. 13s. 6d., for work and
labour done by them on behalf of the said company. The
ease was tried before Mr. Justice Vt-ightman, at the last as-
sizes at Newcastle, when a verdict was entered for the de-
fendant by direction of the learned judge.—Mr. Martin now
moved for a rule to show cause why that verdict should mot
be entered for the plaintiffs for the full amount claimed, or
why there should not be a new trial on the ground of mis-
direction on the part of the learned judge. It appeared that
the plaintiffs had received orders for plans, drawings, tic.,
from Mr. Potter, the acting engineer to the company, and
that he had employed the plaintiffs under the direction of
the company. Evidence was given to prove that in the
prospectuses and advertisements issued by the com-
pany, long ante•ior to the employment of the plain-
tiffs, the defendant became a member of the pro-
visional committee • and it was also proved that
the defendant frequented the office of the company, and that
ho had written his name as a provisional committee-man on
several of the letters which were referred to him by appli-
cants for shares. It was contended that this was sufficient
to establish his liability, and in support of the argument the
learned counsel sited the 7th and Bth Fie., cap. 110, sec. 4,
which enacted that ail persons who shall take part in a com-
pany professing to be a joint-stock company shall be deemed
to be promoters of that company. The act also required
that such companies should be provisionally registered—the
proposed name of the company, its objects, and the names

elite promoters; and the 23rd section enacted that it shall
be lawful for the promoters of the company, after receiving
• certificate of provisional registration, to do certain pre-
scribed thing+. -The question, therefore, was, whether or
not the defendant bad not, by his connexion with this rail-
way, brought himself within the provisions of the statute.
The learne.l judge, in summing up the case, left the follow-
ing questions to the jury :—lst. Whether the defen-
dant was a member of the provi-ional committee, and
suffered his name to be held out to the world in that
capacity.—Answer: Yes. 2nd. Whether the defendant
authorised the committee of management to order such work
to be done as might be necessary for the purposes of the
members of the proposed company in its then state on his
(the defendant's) credit ?—Answer : No. [The 3rei was a
question which did not invoice the liability of the defend-
tint.] 4th. Whether the work was necessary for the objects
of the then members of the proposed company in its then
state?—Answer: Yes. sth. 'Whether the work was dune
by the plaintiffs on the credit and in the name of the de-
fendant, as one of the provis:onal committee ?—Answer :
Yes. Gth. Whether the employment of the plaintiffs was
approved by the committee of management? Upon this
special finding, the learned judge directed the verdict to be
entered for the defendant. He (Mr. Martin) contended
that, upon the answers to the hit, 4th, and sth qiestions,
the verdict ought to be entered for the plaintiffs. fhe jury
had found that the defendant was a member of the
erovisional committee, and had offered his name to
be held cut to the world as such : that the work
was necessary for the objects of the members cf the
proposed company in their then state; and that the
work was done by the plaintiffs on the credit of the
defendant as one of the members of the provisional commit-
tee. Such being the opinion expressed by the jury, the liabi-
lity of the defendant was clearly established ; and he submit-
ted, moreover, that the learned judge ought to hare put an-
other question to the jury in addition to the is he had men-
tioned; viz., whether the conduct of the defendant in per-
mitting his name to be entered as a member of the provisional
committee was not such as would naturally induce persons to
trust the company on his credit ? It was contended on the
other side that the defendant was not liable, inasmuch as he
was not a member of the " provisional committee of manage-
ment." There was a clause in the prospectus, stating that
until an Act of Parliament shall be obtained, the affairs of
the company shall be under the control of the committee of
management; and it was therefore urged that the members
of the provisional committee alone were not liable. lie (Mr.
Martin) contended that this argument was fallacious, inas-
much as the committee of management merely acted as agents
for the general body. In the case of Barnett v. Lambert,"
tried in the Court of Exchequer, it was argued that the mere
fact of • man being • provisional committee-n.an did not
render him liable, but the court held the contrary opinion.
He submitted that upon all these grounds the plaintiffs
were entitled to a new trial, or to have the verdict entered
for them. Rule nisi granted.
PAWS O. BELCHER. REFUSAL OF A RETURNING
OFFICER TO ENTEIt THE VOTE Or AN ELECTolt.—This case
was tried before Mr. Justice Mauls, a: the last assizes at
Abingdon, when a verdict paced for the defendant, by direc-
tion of the learned judge, with leave for the plaintiff to
move for the verdictto beentered for him, with 40s. damages.
Mr. Whateley now moved pursuant to that leave. It was
an action on the case against the returning officer fir the
borough of Abingdon, for refusing the plaintitfe vote at an
election which took place in July, 1845, when Sir Frederick
Thesigcr and Gen. Caulfield were the rival candidates. The
declaration contained three counts : Ist. That the plaintiff had
lawfully tendered his vote, and the defendant had refused
to receive it. 2nd. That the defendant wrongfully and
maliciously declined to receive the vote, or to cause the same
to be entered for whom tendered. 3rd. That the defendant
did wrongfully order and allow a scrutiny to be held re-
specting the plaintiff's vote, and did, after such scrutiny,
adjudge that the plaintiff was not entitled to vote. It was
contended for the defendant that the action would not lie,
inasmuch as the returning officer had dune no more than his
duty, and that his conduct in reference to the plaintiff's
vote was not the result of lattice. He (Mr. Whatecy) sub-
mitted that the plaintiff had a per:ect right of action,
although there might not have been any malice in fact. The
act of tee defendant was wilful, and the plaintiff had sus-
tained an injury therefrom. The jury had negatived the
malice in fact, but the defendant had been guilty of malice
in law, which was inferred from the wilfulness of the act
itself; according to the doctrine laid down by Lord Tenter-
den. The defendant was told at the election in question,
that, if he refused the plaintiff's vote, proceedings
world be commenced against him, and that he must take
the responsibility upon himself; but nevertheless he com-
mitted the alleged act of injustice, and thereby rendered
himself liable to an action. The question to be decided by
the Court turned upon the construction of sections 79, 81,
82, 86, and 98 of the Gth Viet., e. 13, which regulated the
duties of returning officers at parliamentary elections.—The
Court granted a rule to show cause.
PHILLIPS AND ANOTHEIt O. NAIRNE.—In this case,
which was an action brought by the owners of the barque
Broxbournbury against the underwriters, to recover the
amount of a policy of insurance, the Attorney-General
applied for a new trial, on the ground of misdirection, and
upon the further ground that the verdict was against evi-
dence. The case related to the seaworthiness of the vessel,
and the question depended in some measure upon the con-
struction of the policy. The trial toot( place before Mr.
Justice Erie at the last bitting. at Guildhall, when a verdict
passed for the plaintiff, damages 3,0001., the full amount
claimed.—Rule /girl granted.