The Express.
London, England, 1849-05-30 00:00:00

THE EXPRESS, WEDNESDAY EVENING, MAY 30, 1849.

LAW INTELLIGENCE.

EQUITY COURTS.-YESTZRDAY.
Biro= ria Mimi o► nu Itoua.

810011111 IP. 01,11171ILL.—I)ZUNCTIOX TO RZIMIATII
Mr. Blanton moved, ea behalf of the plaintiff in this
case, to restrain Mesas. P. R. Gratin and others from
'tellies a certain property celled the But Cowie-park Be-
tate, is the Isle of Wight, haleaglag to the *Sniff, sad
of which the defendants were assigner he 14,0001. and
upwards, and the sale of which was advertised fee the 110th
last. (this day). By the envie., deed the
were set to sell or give sedge of sale, =den enjill=l;
had first gives six calendar gust& notice in writing to the
mortgages requiring payment of their means, and default
had hem melte is payment thereof ; or Wen and Rad! a
half year's interest should be two calendar months in sneer.
It appeared that there was an amount of interest two amen.
dar eseatiss W anear, sad that in Jan. last the defendants
pa nodes lathe pisiatif of theirintenties to sell. la support
et the =Okada it was contended that it would be died-
vantageoes to sell the property in London, sad in one lot,
which was the intention of the cleft ndents, and also that tole
was not a good time of the year to sell. It was also argued
that the defendants were bound to give Su months' nodoe of
their intention to sail, notwithstanding the ensue of interest.
Mum. Turner and Campbell opposed the applation.
The Mister of the Rolls remarked oa the plaintiff's delay
is mak;ng the application, and apremed his opinion that
on the coastructioa of the clauses in the moripie deed the
mortgagees had power to sell without snits in case of there
being an arrear of interest, and he refused the application
with ens=

COURT OF RICREQUER.—YargaDAT.
&Truces is &um.

After going thronerti;ecor,the court took the new trial
paper, and dispooed of two nil.. wtich poisoned no twine
in any Waren except to the immediate puttee.
- -- - -

MD Pans •T OVILDINALL--817011 111. Berm PM= awn a
LONDON COSMO), AMP.
HUMPY O. SWAYNR.—ALLIOID BREACH or CON-
nuct.—DzAuPos Ii Tlii mote Taans.—Cusroms or
TRAM
This was an action on a breach of " open contract." made
to deliver 300 tons of har iron. The defendants pleaded that
they did not make the contract. Mr. Whirelsuret and Mr.
Hugh Hill appeared fur the plaintiff', and Mr. Bramwell
for the defendants.
The plaintiffs are Messrs. Romp( sad Eckensteio, gene-
ral merchante in Mark:lane; the defendants, Messrs.
Sweyne and Bevil!, are extensive iron Illtrelanta, earning
on business in Abchureh-lane, and the contract was made
under the folowicg circumstances. It appears that it is
the custom of the trade for dealers to employ brokers
to go into the market and purchase iron on
an open—or as they style it in the trade—
on a ' firm contract," that is to say, an agreement lamed*
for the purchase of a certain quantity of iron at a stipulated
price, but it is left open a certaln number of days and in
the option of the purchaser to say whether he will take the
iron or not ; the reason being that the general dealer may
have time to communi:ste with his correspondents. On the
6th Feb. the plaintiffs were desirous of purchasing a quan.
tity of bar iron, and they empl ,yed M. Von Dadebsen, a
' broker, in Mincing-lane (the broker of both parties), to go
and negotiate • " arm contract " fur from 100 to 300 tons of
bar iron. The broker sent Mr. Bateman, his chief clerk, to
the defendants' cJunting-hciane, and he there saw Mr.
and they entered into negotiation. The price of
iron in the market was at that time 61. 2s. 6d.
per ton, but it was usual, in the ease of an
ern contract, to charge a little more than the
market price; gene ally 2s. 6d. per ton additional. Mr.
Bova! asked the clerk how long he wished the contract to
remain (pen. The clerk replied, " For a fortnight ;"
namely, till the 19th inst. It was, after some conversation,
arranged that the price should be 61.75. 6d. per ton.
Bovilt thereupon gave the clerk the following memorandum
of the transaction :

HO to 300 tone, at buyer's option, good merchantable Welsh bar
ken. Free.= toeni in Wales. 11. 7s. bd (meaning per ton). Three
piaat. cash (discount for cash). Open till llltth instant. and B ,
, 1549.—Y0u may sell as above. 0.11.V.D.
About half-past six the same *venial; the clerk oommuni.
elated the transaction to the plaintiff., and Mr. Kumpf cent-
plaised that as it was then past post hours they should lose
• day. The els k said he had ao doubt that they should
get another day ; and on the following day, having seen Mr.
Bovill on the subject, be replied, " Very well, I have no oh-
intim to it." Boon after the contract was made, the price
of iron began to rise in the market. Mr. Batman, the
clerk, hsvmg met Mr. Bovill, mentioned the subject of the
contract, and expressed a hope that he had cleared himself
from loss on the iron there stipulated for. Bovill ?eland,
"Oh yes, it is all tight ; I have covered myself." After that
Bit.man met Sways', the other defendant, who aid,
" How could my partner have given a fortnight—it will be a
loss to us of 2001." Oa the 17th of February, two days be-
fore the date for giving in the final acceptance, or
otherwise, by the purchaser of the contract, the
plaintiff., having sold the iron to their correspond-
ents at Cologne and Lis-la-Chapelle, intimated
to the broker their it tention to swept the contract. That
was on a Saturday, end lineman, the clerk, said, as it was
late in the day he should give notice on Monday. The
plaintiffs knowing the respec'able character of the parties
therefore left the matter in the bands of Mr. Bateman. Oa
the morning of Monday, the 19th, the plaintiff, seat a letter
to the defendants intimating that as they had sold the iron
to their foreign correspondents, and as the connect wee bind-
ing till that day, they requested the defendaats to deliver
the 300 tons of iron, asking to ba informed what aim of iron
they made, end that they (the plaintiffs) would then for-
ward a specification of what they required. That was de-
livered between ten and eleven o'clock in the forenoon.
Mr. Bauman afterwards saw Mr. Swayne at his counting-
house, and the contract became the subject of en-
v.r.ation. Swarm then made no objection es to
the acceptance not being. in time, but he remarked
what an unfortunate yang that contract was for
them, as iron was then 61. per ton. He main added,
" How could Mr. Bovill Dave made so foolish • contract as
to let it remain over tpr a fortnight T " Mr. Bateman said
that Mr. Bovi 1 bad told him that they had " covered them-
selves." Bateman then met Bovill, and, tenon referred to
the conversation at the counting-house, Bovill said, " I have
not covered myself, but I expect now to ass • man who can
do it (that was, one from whom he could buy the iron with-
out incurring a loos) ; and mind yon let me have the sped-
antics to-night" In the course of the day they again met
ea 'Outage. Bovill said, " Let me see the authority I gave
yen" Batsman showed it to him, and Bovill said, I
de sot know that I am bound by it." About
Ave or six o'clock of that afternoon (the 19th),
the defendants wrote to the plaintiff. stating that their
11" i of the open ntract was too late, and they there-
111.etgls co
gredto decline the offer. The plaintiffs then wrote
sinter to the defendants, with a specification of the iron
=l:i, which was delivered by Bateman. The defendants
nferring to the letter which they had sent that
tanning. In the evening of that day the contract was duly
Whored in the broker's book, and a Rote thereof was sent by
him next morning to the parties. Upon that the defendants
wens intimating that the bought sad sold note bad been
seat too lets ; that it should have been sent on the previous
day, the 19th. A correspondence ensued and the defendants
dismally refused to complete the eostreet. The plaintiffs se
they alleged having sold the iron to their foreign cor-
respondents were obliged to complete their contract at
61. per ton instead of M. 7s. 61. Tit present action wee
therefore brought to r- cover the difference together with some
exp-n.es incurred through the breech of contract.
Hvidence having been sieve as to the feet, several
wit-
aesres were examined sa to the ettstom of USED with reopen
to the point whether in the case of en open se den 111111.
tract the last day named for the asespeaose of the no.
treat by the purchaser was iaclasin or exelesive.-.415.
Bateman said it wee customer, to give the answer on the
day mentioned. He never heard of on intense to the en.
teary. Oa aoss-naminatioa he said that bend An bed
Acontrasts for several days after retire el pen
Lewis, the cleric to an extensive metal looker, ex-
=ma limiter opinion. Mr. Van Dadebsen also gave
yto the same effect. A point having arisen as to
stet of the bought and sold notes, having been delivered on
the seereirg after the 19th, instead of on that day,
Mt. Baron Parke said it was a question of law what wee
the sweet of the bought and sold notes. The delivery
then notes wee now the usual mode of completing stab
connects. It was a question whether the entry in the
broker's book was binding as the parties till the notes were
delivered up.
Mr. Bramwell contended that the entry In the br.beet
bosh, in the pram we, could not be otaaleknd brailistis

-
Mr. Bum Parke said the entry might be coesidered ea a
Mirlos to dare, sot the notes. The entree! most
tea a
sae Ina ea the 19111. The garottes tar sew

sideratioa war, was there a binding contract made—slas
notes not bovine been delivered till the kilning day ? It
was a custom of trade to take the delivery of agi ate" as
the completion of the contract. This was 6/0/1661110 a
acts' matter tili the cecinas of the Coate tf Queen's
Beath is Me ease of " Hawes v. Poster," about 18 years
age. The question M law was, whether the pertly" were
booed by the entry in the broker's book. His opinion wee,
that they were aOl bond by the mere entry, bits he should
norm lame to novo the toad on the pant.
Mr. Whiting/et saki he had other *Odeon to prove that
it was the cestom of trade to deliver the notes frequentlLea
the owning after the maple. iso of the emattact.
loused sand lino mind several triteness.
Mr. Van Cadet+ ass, Mr. Laurie, Mr. Bramwell, simmer
to Thompsoa and Foreman, iron =emboss', of Dowpte. bill
wharf; Mr. Bens of the firm of Bird and Co., in the iron
trade ; Mr. Willa" May, a general iserehaat; were then
examined. As to the last day mistimed, they swan to
be of opinion that the 19th was iseissive ; but it was stated
that the word " till " such • day was tomcat, the common
form la use being on or before." The witnesses generally
°escorted is stating that the delivery of the bought end slid
notes wee frequently made by the Woken on the morn-
ing after the templets= of the contracts, so that the parties
Amid receive them on goieg to their conatiag• houses ; but
it was to be interred from their evidence that this was rather
an exteeption than a Me.
Mr. Bramwell submitted that there was no evidence in
support or the allegation that the contract had been com-
pleted.
Mr. Baron Parke was of opinion that them was evidence
eons* to go to the jury es to the quake of the custom of
trod*.
Mr. Bramwell had other objection. His first point was
that there was no authority to all on the 19th, and give an
option to the boyer on the 19;la to say whether he would
take the goods. Be next contented that no word " till,"
according to grammatical oinanuctica, excluded the 19th.
There was no evidesos on that point.
Mr. Baron Parke.—There has been evidence as to the
meaninil, bat the weight has been that it was an unusual

not aka.
Mr. Bramwell lady contended that there had been no
arooptsoo• of the sontraet, even on the 19th of February.
Mr. Bares Barks Intimated his opinion that there wee a

ease for the jury. -
Mr. Bramwell then addressed the jury for the defendants.
He said the sole object of these " ins entracte " was only
to allow lea time enough for merchants to obtain an answer
from their foreign serrespondests by the return of post. He
submitted that the iron was rt quired, not to WU any con-
tract made at Cologne or Aix-ea-Chapelle, bat was wanted
to be shipped to America, and therefore that the present
claim for es amount of the Ices said ta hays been
at Wood in the alleged foreign ecatract, could not
be eastraned.
Mr. Baron Parke summed up. Irrespective of arty usage
of trade, Al. *aka was that this 19th was inclusive. TOMO
were various poises on whisk L would, perhaps, be neess-
oaf to have tip SPLelom of the sun above, bat he should
now take *lir spades les=m quailosee of feet. EL
lordship op the evidoler, said It
I was the dull.:; 331= Ile .4. the Unfree* alnieloto,
Iby the delivery of Ike Mee i bet it .use for them to say 1
whether they thought there was sedlideat evidence to show
that it we. a lIMINIOII MVO of tosisio deliver Ilis wee the
day after the reempktioe of the ireetrue. His *Wein then
asked the jury whether they believed, on the *euce of
Mr. Bateman, that fourteen days were given to Oa plaintiffs
by the defendants T—Thu Jury: Yes.—The learned Baron
thea proposed the other points of the eau in the shape of
separate questions for the opinion of the jury. The jury
bovine expressed their inability to agree on the points sub-
mitted to them, they retired for the purpose of farther con-
sultation.
Mr. Bares Parke, daring the emus of the jury, re-
nuked that he could sot see how thus " Inn contracts"
could be made binding on the parties. They could only be
called firm on the luaus non locoed° principle. He could not
see bow they c, told be made binding to law ; they were only
binding on honour.
It was suggested that the jury might deliver their verdict
at Westminster on the following morning.
Mr. Barou Puke said he was afraid he most direct a non-
suit, whatever the verdict of the jury might be.
Mr. Whitehunt suggested that the letter from the foreign
agent of the plaintiffs might clear up some of the legal diffi-
culties of the cue.
A German translator wu then procured, and two letters
from Cologne and Aix la-Chapelle were read. By these
letters the plaintiffs were authorised to take the iron at
51 7s. 13d. per to., " but only for a speculation" and they
were further authorised to realise, if possible, on idea advance
of 101.
Baron Parke—There is nothing to show that the "bastilts
were bound. Ido sot think at present that you saU out a
cue of irrevocable authority.
After considers, le delay, it was ascertained that the pary
It
could not agree on a verdict. It was then arranged the
parties that the learned baron should take the opinion
majority as a verdict, and the jury were palled into sou
The majority
said a majority of ten thought that the
had been proved.
Mr. Baron Parke then directed a son-suit, with levee to
meve for a verdict for the plaintiffs for 1851. 10a.
As his lordship was leaving the court the learned COOn-
eel for the parties suggested that the matter might be
extra judicially decided by his lordship. This having been
agreed to,
Mr. Boon Parke said, I think the defendants are right in
law ; bat as honourable men they shoull pay half.
The patties concurred in this arrangement, and it was
ultimately agreed that a juror should be withdrawn.