The British Press; or, Morning Literary Advertiser.
London, England, 1825-11-19 00:00:00

ANDERSON V. SHAW AND OTHERS.

This was an action for work and labour, in which the plaintiff
alleged his damages at 1001. The defendant pleaded a tender of
211. which he afterwards paid into Court, and the general issue as
to the residue. The plaintiff accepted the 211. and gave notice for
trial at the sittings at Guildhall, before the Lord Chief Joatice.
When the case was called on the plaintiff did not appear, and it
was submitted by Counsel, on behalf of the defendant, that a non.
suit ought to be entered ; but the plaintira Counsel contended
that, Inasmuch as the plaintiff had already received 211. as part of
the damages, the Court could not direct a nonsuit, because, by that
judgment, it would seem as if the plaintiff had obtained nothing
by his writ, which would be contrary to what appeared on the
record. The Learned Counsel quoted some cases in support of his
position. The Lord Chief Justice was of opinion that the plaintiff
ought to be nonauited ; but as the plaintiff's Counsel had referred
to some cases, the reports of which Isere not then In Court. he suf.
fered the postea to be entered up for the plaintiff, with leave for
the defendant to move to set it aside, and enter a nonsuit. Mr. Ser-
geant Onslow having, during the present term, obtained a rule
Nisi to set aside the verdict, and enter a nonsuit,
Mr. Sergeant TADDY this day showed cause against its being
made absolute, and rested his argument upon the cues of Gertrude
and Smith, 2 H. Black. s77,and also a case in Ist Campbell. 327,
in both which cases Mr. Justice Heath held, that where a tender
had been pleaded the plaintiff could not be noneuited.
The COURT refused hearing Mr. Sergeant Onslow in support of
the rule, being clearly of opinion that the verdict could not stand.
As to the cases referred to, they by no means sustained the argu-
ment of the Learned Sergeant who opposed the rule. It was merely
the opinion of Mr. Justice Heath in both instances, and which was
entirely opposed to that of the other Learned Judges who au with
him. Besides, it was clearly contrary to principle, as it was impos-
sible to be said that the plaintiff, who refused to appear in Court to
maintain his action, was nevertheless entitled to a verdict, from the
circumstance of the defendant having previously admitted that he
had originally a good ground of action, although before the trial he
had discharged it by paying the plaintiff what he allowed to be due,
and which the plaintiff, by his not appearing in Court at the trial,
had most clearly accepted in full discharge of his damages. The
plea of tender did not go to the action ; it only went to bar the
damages. It had been ruled a hundred times over that the payment
of money into Court did not prevent a nonsint ; and the Court
could not perceive any material distinction between the payment of
money into court and the plea of tender.
The rule was accordingly made absolute for entering a nonsuit
with costs.

The Court was occupied the other prat of the day in hearing ar-
guments on special demurrers.

COURT OF EXCHEQUER, —l,`to.tr, Nov. 18.

The Court was occupied to-day in hearing motions, none of which
were of the slightest interest.

PALACE COURT, FRIDAY, Nov. 18.

stswilAst V. EAST AND HOTHEROYD.
This was an action brought by the plaintiff, a Captain of a West
India trader, residing near the West India Docks, against the de.
fendants, for an assault and battery, arising out of a dispute re-
specting the sale of a very fine turtle. The damages were had at
fifty pounds.
Mr. ERLE and Mr. Rose were for the plaintiff; and Mr.
ADOLPHUS, Mr. FLANNAGAN, and Mr. THOMPSON were re-
tained for the defendants.

Eliza Mead, an interesting looking female, stated that she was in
the service of Captain Newham, who kept a stationer's shop near
the West India Docks, and also for the axle of nautical instruments.
She knew the defendants—East was by trade a tailor, and Rothe-
myd a hatter, and both lived in the same neighbourhood. On the
18th May she saw one captain Royl, a friend of the plaintiff 's, ih
her master's shop, and also the defendant East. East asked Capt.
Royl if he had • turtle to sell ? The lati.r replied, " I had one
just now, but I have sold it to Captain Newham at 2s. a pound."
East immediately said, " why, I'll give you half-a-crown a pound
for it." Captain Royl in reply said, " how can I sell it to
you, when I tell you 1 have sold it to Newham already."
The plaintiff rejoined, "If you (meaning East) were to
give five shillings a pound for it you should not have it, and be off
out of my shop immediately." East hesitated, whereupon Capt.
Newham went round the counter and closed the door upon him,
at which time be was standing upon the threshold. Last pushed
the door back, and struck :he plaintiff in the face with his fist, which
broke his spectacles, and so cut his temple that his face was co-
vered with blood. The defendant then went into the road, and
the plaintiff followed him; and blows were interchanged between
them, and East was struck down, and Capt. Newham fell upon
him. At this time the defendant Botheroyd was standing by. and
whilst Capt. Newham and East were on the ground be knocked
off the Captain's hat. East having got up. went on to the pave-
ment, turned round, and struck the plaintiff several times, as he
was making his way home. Two days alter they all appeared at
the police office in Lambeth-street, where Captain Newham pre-
fared his complaint, and East and Botheroyd were held to hail.
In her cross-examination by Mr. ADOLPHUS, she said, that she
had lived with the plaintiff rather more than a twelvemoth ; was no
relation to him; she had never said she was his niece. Captain
Royl was now on his way to St. Petersburgh. Lefore this action
was brought the defendant East indicted the plaintiff. Never heard
Captain Royl declare that the plaintiff struck East first. Never '
told • female, in reference to this affair. " that Mr. Newham was
her best and only friend, and what he said she would abide by."
James Furlong was passing at the time the assault took place,
he went into the plaintiff's shop and saw the blood running down
his cheeks, and in his hand were his broken spectacles. Captain
Royl was there also; but sailed in June for St. Petershurgh.
John Goldie was in a painter's shop near the plaintiff's residence
on the day in question, when East came running in followed by
Newham. The former was very violent and paced the shop in a
great passion. Newham said, " What, you have come here to tell
your story, have you ?" East replied, ` Never mind, you had
1,6001. with your wife, and I'll not be so hard ass lawyer, have
only 7001. of it." (Laughter.) Witness saw no blows struck.
This was the plaintiff's cue.
Mr. ADOLPHUS addressed the Jury on the part of the de-
fendants, and called the following witnesses r
John Cathy saw East go into the plaintiff's shop, and the next
moment he came out staggering, as if by a severe blow ; he went
into the mad, followed by Newham, without his hat, and struck
East a blow out the back of his head, which felled him to the
ground. Ile got up on his hands and knees, and then Newham
struck him several times, and kicked him. Witnus went tip, and
so did the defendant Botheroyd, the latter took hold of Captain
Newham by the collar till East got upon his legs. Botheroyd
never struck the plaintiff, he merely held him whilst East escaped
into an oil-shop. Botheroyd afterwards picked up East's hat, and
carried It to him. Witness saw East in about five minutes after in
the oil-shop ; he was then In the act of washing his face, which was
bloody, and his nose much awoollen, and his cheeks were much
bruised. Witness was quite certain the plaintiff had no hat on all
the time.

Mar/ Ann Ratcliffe saw the affray in the road, and was quite
sure Newham had no hat on all the time.
John Acton was passing at the time, and saw the affray, Bothe-
royd took no part in it, but merely assisted Cast to escape. The
plaintiff bad so hat on at the time.
Moses Fortune, a police-officer, of Lambeth-street, said that
when the parties were before the Magistrate, Captain Royl swore,
that Captain Newham gave the first blow.
Jane Smith spoke to a conversation that took place between her
and the witness Mead. Witness said to her. "how came you to
take a false oath against Tlothemyd ; you know he is innocent •"
to which she replied, -4 Capt. Newham is my best and only friend,
and what he says I must abide by."
This closed the defence, and Mr. ERLE replied.
The Learned Judge then summed up the evidence, and the
Jury, after a few minutes' consultation, fouad the defendant East
grilty of the assault, and Botheroyd sof gadfly, and awarded et.
damages.
The use excited great interest.
TILE ALDERNEY DAIRY COMPANY.
STANSFIILD AND ItOWELL In DOMSETT.
This was an action brought by the Northampton-square Alder-
ney Dairy Company against the defendant, to recover damages
under a breach of contract.