The Express.
London, England, 1853-12-09 00:00:00

81wLttluN THIS or !MORD YOU, TUE soltut:G

11111011310111111.
In the matter of the petition of the Counra of the
Bo
rough of Birmingham, relating to the Court of lt.cord tor '
cha Buroaah of Birmingham.
The petitioners in this case, the Mayor. aldermen, and
burgesses of Birmingham, deserit• the Borough Court of
Record for Birmingham in ins o on.titutein suil Authority
at come length, and then prim, ed to ',IV ttitt °I,• proceed-
ing, of the said I.:•rough (loan are dilatory, complicated,
and expensive; the powers fur enforcing its ludarnents end
ordete are in ninny instanc.• incffactive, and nu summary
31104116 are provided to remedy abuses in the conduct of the
officers and pructittanen of tae court that the proceedings
of the County Court an prompt, simple, inexpensive, and
effective; thou the C iuuty Court is amply sufficient to
transact, in addition to its present business, the whole of
the busincse which is now transacted so the Borough Court ;
that the said Borough Court hastheref,re la:some unarms-
nary, and its continuance is nut conducive to the due admi-
nistration of justice is this husough ; and the petition
concluded by praying her Majesty, by an order in council,
to declare that the jurisdiction of the said court, ritablWied
by the mid charts r, shall from the data of such order he
eaclailed in all cases in mulch the County Court bath cog-

isaanee.
A e.nutter petition .rta presented calling in que.tien some
of the data of the petitioner,. mad allotting that the remedy
for the nil. of the Dirough Court of kteJrd wee not aboli-

Lon, het reform,
Mr. Mellor and Mr. Feld appeared as counsel fur the
Town Council. and in support of their petition ; Mr. Phip-
son and Mr. George Browne supported the counter petition.
Mr. Mellor stated the case for the Town Council, which
was supported by the following evidence.
S toe formal proofs, such as the charter and the publics.
lion of the notice of the petition, having been put in,
Mr. Ilawkes was called. lie said-1 am an attorney in
Birmingham, and an Alderman of the Town Council. I
was Mayor last fear. The practice in the Borough Court
of Record is similar to that in force in the superior courts
before toe passing of the Common Law Procedure Act.
The machinery is applicable to all debts of any amount.
There are three scales of costs—the lowest in actions to
recover debts up to .;/., the next in actions between that
sum and 20/ , and the third in actions of nnliguidated
damages. In .ICtOOll fur debt- not exceeding 51., the plain-
tiffs costs if it go to trial, amount to 5/. 10s., and in actions
where adebt is above 51., the coats are 81. 10s. The de-
readout's costs would be 51. In an action of unliquidated
damages the average cod to the plaintiff would be 20/. ;
and to a defendant 7i. 10s., whatever sum might be in
dispute. By the rules of the court there was no Provision
for paying into court, except in a case of debt. I remem-
ber the case of " Bartlett v. Parkes." It was an action to
rec wer the value of a domestic fowl (a hen), and was tried
in the Boreugh Court. The jury awarded damages to the
plaintiff of'is. The plaintiff's bill of costs amounted to
TN. 18.., and as taxed by me at 21/. 2s. ; the charges of
the defendant's attorney was 91. 1 recollect the cause of
" Gram and 11111 "—an action to recover 2s. Bd., the value
of some porter bottles which had not been returned—in
which the costs of the plaintiff were 191. The lowest charge
by an attorney for a Borough-court writ is Ts. 6d. The
Borough Court sits only once in three months; the
County Court sits eight times in a (Weight. There is a
Practice of persons calling themselves agents, issuing writs
eke Borough Court. .t person named Hatch issues
writs in the name of different attornies, all deted from the
)amon's. Ile issues writs in the name of Mr. Hill, the
attorney for the counter petition, in which he does nut
give his address at the Minories but from Furnivall's-inn,
where he res,dee.
The Loyd Chief Justice of the Common Pleas—Dues he
then issue writs in the name of London attorneys?
Witness—He does. in cases of judgment by default in
the Borough Coutt, in the lowest class of action the costs
are 21., and in actions for sums between Of. and 201. the
etas are 31. IN. In the County Court you can proceed to
trial in cues under 01. for Ifs. 9,1., and in cases up to 101.
for 11. Lis. iii., with the addition of a fee allowed to any
attorney by the judge, who has a discretion in this matter.
Cross•ezamined—The ammo of the coats given by me
in t'.e Borough Court have been founded on data previous
to Pst9, I consider " flatfeet and Parkes" not as an ex-
eeptioeal ease, but as a fair illustration of that clue of
action. The fee ape a writ issued from the Borough
Court where no attorney was employed was 2s. 6d. if in
an mei, n under it,, and Is. GI if above 10/. It is my im-
pression that the went council, which represent the inha-
bitants of Birmingham, are unanimous in favour of this

Petition.
Mr. Ilsdates. an attorney, gave woiewhat similar evidence
m re the practice of the Barusgh Court.
Mr. James Baldwin, mayor of Birmingham, proved that
be hrd attended the tossing of the town council, the result
M which was the petition now presented.
Mr. Thomaa (larding, a solicitor, was next called, and
tiled a case is which the costs in an action to recover GI.
had amounted to about 301.
Mr. Jobs Marrow Wright, chairman of the meeting
which had adopted the memorial to the town council, was
examined to prove that the general feeling was opposed ori
the Borough Court.
The cam for the petitioners having closed,
Mr. Phloem addressed their lordships in support of the
coaster p. airs, contending that if the course of practice
} the lice nil Court we: e assimulated to that of the supe-
ri.,r canna 'lilts the introduction of the Consume Law Pro-
cedure Act, it would be a great advastage to Birmingham.
Ile submitted the petitiomn had totally failed in making
oat their case.
Mr. Samuel Cloodbehere was then examined. He said—
I have experience in the Borough and in the County Courts,
and I consider the process in the former more speedy.
The witness then put in a scale to show that in the Borough
Court 151 actin's bad been disposed of at a total expense of
51/. 9s.
Mr. Douglas, the registrar of the court, was then exa
mined. Ile said the average expenses in an undefended
muse under 51. was 30s. to the attoraey, and Ss. Gd. court
fees. In an action of ualiquidated damages the plaintiff's
costs would be about ?V.—that is, if the case was a tom
plicated one. There had been six of these cases last year,
and iu each the costs were nearly as much as in " Bartlett
v. Parkes." The whole bundles of such cases are scanda-
lous. (Laughter.) In such cases my tees are extravagantly
high, and so are the lawyers' fees. 1 don't think that more
than two of these caws were tried this year out of 2,000.
Mr.Spooser, the judos of the court is determined if it should
not he abolished, to assimiiate its practice to that of the
superior courts.
The witness was eresteramiaed chiefly on the subject of
the mode of practice adopted by Mr. Hatch, in taking out
writs in the names of different 'tunnies.
The case for the counter petitioners having closed, the
room was cleared, as the council did not require to hear the

reply.
On the re•admipsion of the parties.
The Lind Chief Justice of the Common Pleas said—it is
the opinion of the Council that we should adv6e her Ma-
jesty to exclude from the Borough Court all causes of which
the County Court has jurisdiction.
This decision is tantamount to one for the abolition of the
court; for only two kinds of causes which could be there
tried would not come within the jurisdiction of the County
Court—namely, actions of ejectment and actions of breach
of promise, where the rent in the former instance and the
damages in the latter did not exceed 201.

EQUITY COURTB.-YESTERDAT.
11t/DILL TICI-CRAIICILLLOIL 1,11 PAN t RT.

IN LE INT INIPTILIAL SALT AND ALNALI CO,ItANT, AND

DE THE WINDING VT ACTS.
A company was formed in 1836, for the purpose of :
manufacturing soap and alkali from salt. By the consti-
tution of the company, it was provided that its capital
should consist of 30,0001. divided into shares of 121. 10s.
each ; that there should be sic directors with power to add
to their number, and that the directors should have power
to borrow money, and to manufacture and trade, and to
have power to enter into all contracts and engagements
for those purposes en behalf of the said company. It
was al-o agreed that the company should purchase an es-
tate in Worcestursbire for the purpose of carrying on
therein the works of the company from a Mr. Richard
Parker, at • price of 45,000f.' of which 20,00 W. was to
paid down in money, and the residue in shares of
the company. It appeared that Mr. Parker bad pre-
viously contracted to purchase the property for
• sum of 13,0001., and had paid 1001. deposit on
the purchase. It appeared also that about 1,6801. had
been subscribed by the shareholders, of which 15,0001.
was paid to Mr. Parker on account. The directors bor-
rowed from Messrs. 'Morrell, hankers, at Wawa, • sum of
Dudley which is 1837 had amounted to about 20,0001. A
memorandum was given to Messrs. Morrell, charging the
amount advanced by them on the property purchased. This
memorandum was dated the 23th of February, 1837, and
was signed by five directors, who were the only acting di-
rectors at the time, the Messrs. Morrell being two. Mr.
Garrett was the sixth director, but he was at the time
abroad, and his name was added to the memorandum by
one of the five directors slimming to act for hint. The pur-
chase money was paid, end the purchase completed in
April, 1437. The property was conveyed to the Messrs.
Morrell and Mr. Rainsford, three of the directors, in trust
for the company, and the whole legal estate had become by
survivorship vested in Mr. Morrell. Messrs. Morrell ad.-
'need altogether about 90,0001. to the company. Mr.
Morrell, as the survivor, was solely entitled to this amount.
Under these circumstances Mr. Morrel went in before the
Mister Mr. Tinner (to whom the winding up of the stein
of the company had been referred) and Bought to be ad-
mitted as a creditor of the company for the amount whieb
he and his deceased partner had advanced to enable the
company to make the above purchase and otherwise, sad a
declaration that he was entitled to a lien upon the property
purchased for the amount advanced to enable the purzhase
to be made by virtue of the above memorandum of the
25th of February, 1837. Master Tinney, however, by a
special report, dated the llth of July, 1t53, found that
Mr. Morrell took no lien on the estate so purchased.
This was a motion to discharge that report.
The t3olicitor•General, Mr. Macon, and Mr. Beaten ap-
peared in support of the motion.
Mr. Molina, Mr. Daniel, and Mr. Hetherington appeared
for the official manager.
The cue was argued at great length during yesterday
and to-day.
The Vice-Chancellor took a very elaborate review of the
oircooselisees of the ease. lie 04 he Jolt !dwelt obliged

to differ from the Master. It appeared to his Honour that
at the time edit it the 11420111 a wo• h ,crowed there were unly
five acting director•, one being ahraad. In that respect
the direction WAS imperftet ; tut the purchase of the pro-
p. rty had been weed on as out of the faramein:.:.: on
which t►e company had been established, and it we. elesrly
necessary that the property should b.: purehaved, Ind the
doing so was within the scope of the partnership authority,
otherwise the company could not have proceeded the aged,
10l the partnership having been otherwise expended the
loan became necessary. In the present case he could not
perceive how the company could at one and the tame time
repudiate the contract and yet claim to retain the money
which they had otraineil under it. Now here Messrs.
Morrell had advanced the money, by means of which the
partnership had obtained the estate, and the shareholders
had adopted, or at Init they had not questioned, the trans.
action. Under these circumstances it eeemtd to him that
Misers. Morrell had acquired a lien on the estate which
they claimed, and he thought the memorandum valid. A
declaration to that effect was made.

THE ATTOHNEY-GENEEAL T. EASTLAKE. AND OTHERS. I
In phis case an injunction was granted, on the 29:h of
April last, to restrain the defendants from applying any
pert of the funds raised under the power of as act of par-
liament passed'• for the better paving, lighting, cleansing,
watching, anal improving the borough of Plytuouth, and
for regulating the police thereof, and for retuovirg and
preventing nuisances and annotances therein," towards
paymeat of the expeneea of promoting or prosecuting a bill
in parliament to 1. called the Plymouth Improvement
' A^t, 1643." and from drawing, indorsing, or signing any
cheques far the payment thereof. The relators in the in.
formation were ratepayers of the borough, and the de-
fendants the commissioners under the act and their secre-
tary appointed to sue and be sued. The case now came
again before the court upon a motion for decree.
Mr. Follett and Mr. S. Mode Palmer, fur the relators,
c intended that the injunction should be made perpetual,
and that an account should betaken of all sums paid oy the
commissioners for the purposes of the application te par-
liament, and that they should be ordered to restore that
amount to the treasurer of the commission, and that they
should pay the costs of the suit.
Mr. Holt and Kinglike appeared for the commissioners;
Mr. James and Mr. H. W. Hodgson for Eastlake, the

tleCtetary.
The Vice-Chancellor said the case was one of considerable
hardship. These defendants were appointed commissioners,
and the object they had in view WOO to accuse a better
system of draining of the town, a subject upon
which much anxiety has been felt lately. tip to a
certain time all parties seemed to take an equal
interest in the matter. Afterwards some of the ratepayers
objected to the proposed bill. The commissioners consider
the application to parliament to he desirable, anal in that view
they are to some extent confirmed by the town council, and
by the sub.eonamittee of ratepayers appointed to tunsider the
subject. ,But when that cub-committee reported to the
general committee that body take a different view, and
coincide with the majority of the ratepayers. A meeting of
the commissioners was then held in November and a small
number, three out of eighteen, assert that the application
of the money to obtaining the proposed act of parliament
would not be legal, and their solicitor confirms that opinion.
That might have made the commissioners pause. But inde-
pendently of that warning, I must have made them refund
the money, because when once it was decided that the ap-
plication was illegal, I cannot see how I could act other-
wire. The Exeter Corporation case stood upon a different
footing. There, it is true, the court refused to direct the
funds to be replaced; but then the misapplication had
continued for more than a century with the concurrence of
all parties. But, as a primary rule, if trustees misapply
funds, taking on themselves to decide whether the appli-
cation they propose is right or wrong, it is the positive duty
of the court, if it decides that the application is wrong, to
reclaim those funds. But whew we come to look at the no-
tice given to these commissions in November, if they could
have bad any doubt before, they are then clearly put upon
their guard. They are then told by the ratepayers, what
you propose to do we consider to be illegal ; we may be
right or wrong in that view, but we hold it illegal, and we
shall hold you responsible if we should tura out to be right.
The question about which I have had some doubts is as to
the wets of this suit. I have felt great difficulty ia coming
to the conclusion that I could excuse these defendants
from the paymeut of costs, after :he warning they had ;
hut, on the other hand, it does appear to me
that there are circumstances which, will justify me its
that course. On the one hand. it is true they were warned,
but on the other, it is clear there was no improper motive.
Their wish is to improve the town, and they are backed up
in their course by the corporation, who are eleved by the
town. If the injunction bad been moved for at an early
date in these proceedings, the ease would have stood very
differently. It now turns out that 1,2001. has been im-
properly expended. There was no concealment—the
utmost publicity was given to all their proceedings. On
the Nth of February tin first payment was made. Then, at
all events, the application for the injunction might hate
been made, and ought in fairness to have been then made.
The parties who are putting the Attorney-General in modes
were as well scare then as they are now of their rights.
Since that time 1,1001. more has been actually paid, and
greater liabilities incurred, all which sight have been sated
by an earlier application. The relators must, of Wino,
base their costs, but the question is, whether they on sew
to call on these commissioners to pay those costs pees
If the bill had been filed at the earliest time, I
should certainly have fixed them with those costs. II
trustees in any ordinary ease say we conceive we are
Justified in incurring a particular expense—building, for
instance—and tell their cestuelue tenets that they hove in-
curred some expense, and afterwards the antication of the
fund is decided to be improper, although the cestuique trusts
sight get hack the trust tents after a considerable time,
yet I think there would be great question whether, if they
did not file their bill till a considerable expense had been
hmurred, the court would fix the trustees with costs. I
think, under the circumstances of this ease, I am justified
in excusing the commissioners from payment of these costa.
Some discussion then took place as to the costs of the de-
fendant Eastlake, bat the Vice-Chancellor released to make
any order on the subject.

COURT OF QUEEN'S BENCH.-YESTEHDAT.

ILITTIMOS AT XIII

LOW CANTIELL Lib COMMON

auaute.

SLAVA V.

cox.

This was ma notion brought to recover damages for crimi-
nal convened's which was alleged to have taken place
between the defendant sod the plaintiff's wife. The de-
fendant pleaded not guilty.
Mr. Serjeant Thomas, with Mr. Cooke Evan, appeared
for the plaintiff ; Mr. Crowder, with Mr. Petersdorff, re-
presented the defendant.
Mr. Setjeant Thomas, in opening the case, stated that the
plaintiff was a tailor, carrying on business at Salisbury-ter-
meg, Islingtne, and the defendant was a medical practi-
tioner, residing at 22, Brunswick-square. The learned
dendoel then proceeded to detail the facts of the case, as
they are afterwards proved by the following evidence.
The first witness called was
Samuel Beare—l am brother of the plaintiff. I produce
a certificate of the marriage between my brother sod his
wife, which took place in 1840, in Devonshire. The plain-
tiff, after his marriage, resided in Devonshire, where I
also resided. He lived there about three years with his
wife. They lived happily and comfortably together. They
same to London aterwarde.
Cross-examined by Mr. Crowder—l know nothing of
them after they came to London. They lived in Bruns-
wick-square with the defendant for two or three years ;
that was tour years ego last June. I visited my brother
there. lie carried on his business of • tailor, and was
also employed by defendant to make boxes. He slept at
defendant's, and carried on his business at another place.
The last time I knew them there was in June, 1642. 1
don't know that my brother came home late at well. I
can't say whether he and his wife lived happy in London.
I heard my brother talk to her an a contrary manner.
I don't know that his wife accused him of living with an-
other woman named Robinson. I don't know the prison.
I have heard my brother speak of her through her going to
Brunswick-square to be galvanised. (Laughter.) I don't
know that my brother is • socialist.
Lord Campbell—Do; socialist., believe there ought to be a
community in women ?
Witness—l never heard of it.
Examination eontinued—l never heard him say that men
and women ought to live promiscuously together. I have
not heard that Mr. Halse forbad him to sleep at Brunswick'
square because of his late hours. lie left on account of his
wife's conduct. I work as a journeyman in Regent-street.
John Beare—l am brother to the plaintiff, and now live
with him at 2, Salisbury-terrace, where he has lived for the
last year. In January or February, IBil, I went to Bruns-
wick-square. My brother was ill. I saw my brother's wife
and the defendant in the lobby as I was going up-stairs to
my brother. I saw del e adaht kiss her and place his hand
on her. I told this to my brother seven or eight months
afterwards. lie left the house in February, 18.52, and went
to Sal shury-terrace. His wife came bat k to him there.
She lett him altogether In October, 18.52, and went to
Brunswick-square. Susan and Mary Cohen were the de-
lendant's servant., and used to come to Salisbury-terrace
nearly every night, asking my brother's wife to come to
Brunswick-square. She ultimately left with Sarah Lee, her
sister, who had been is the defendant's service. Her
brother has been in defendant's service for three or four
years. On the 27th June, 1 went to the defendant's country
residence at River Cottage, Hornsey,with the plaintiff, early
in the morning. Charles Thomas was with us. He is now
out of the way. I went and kid myself by the hedge facing
the door of River Cottage. I saw plaintiff's wife come out
at the door and look rout.il es though she was suspicious.
She returned to the house, and she and defendant then came
out together, and remained in the garden for an hour and
a half. Ile picked a flower and gave it her, and kissed
her hands. He also played with her dress, she resting on
his shoulder. I saw no one else. At about half. nest
nine the defendant took the train up to town, and
the plaintiff's wile went into tee house. In the evening,
about half-past five, I watched the defer dart return to
River Cottage. Thomas rang the bell, which was answered
by plaintiff's wife. He inquired for Mr. Raise, who
came out. Thomas said—" I saw you two this morning
dressing in the room together, and saw you undressing
there last evening. 'You slept together last night." She
said, " Yes, I did sleep with him in that room." The de-
fendant said "yes, he nail slept there with her, and my bro-
ther might get his remedy where he thought proper:.
Thomas wastheniworking for me. I have made every effort to
find him. While we were standing together three gentle-
men passed, two of whom are here to-day. I have fre-
quently been there since, and have seen the plaintiff's wife
then. I have also seen Susan and Mary Cohen, the eer-
vista, sal Joh' Lee, the pleintil's will's brethu.