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London, England, 1825-11-15 00:00:00

and grant a new trial, no the ground of misconstruction rif the can-
tract by the.ludge. The detendaa4, he wit, were merchants at
Hull, and keep warehouses at Odusaby, which •is $ Pun on the
other side of the !lumber. As far at tbe words of the contract
were material to the Court. they were these : Sold to Messrs.
Todd, on account of Mr. lidward Thomas Cog. 10,000 quarters of
barley. equal to the sample produced, to be delivered alongside a
sloop, or warehouse, at Grimsby or Hull, at the buyee.s.option,
•t• be delivered in all April, or sooner." Tile contract was mode 01.1
the 7th of the preceding March. A part of the cargo was deliviva
in March ; the residue, being 1,200 quarten. was brought in the
ship Freigheit to the port of Hull, on the 5/:h of April. On re-
owning her arrival to one of the Mr. TAIL, he said they had bet•er
apply to the Mr. Todd of Grimsby, for instructions. The vessel
arrived in the port of Grinialty on the last of April : the defend-
ants refused to receive the barley, because not delis end within the
time specified in the contract. At the trial it was contended that it
was a sufficient delivery if she vessel was brought alongside a sloop
or • warehouse of the defendants, within the month of April, and
Mr. Tyndtl now ;ague(' that such a dense'? was within tl.c words
of the contract, and that if their Lordships should decide otoerwise,
they would open a large door for the evasion of contacts by pur-
chasers who might be unwilling to complete them ; inasmuch as it
would always beseasy to throw little impetlimentsJo the way.
Mr. Justice 1.1•1••Ey, from his notes of the trial, reported to the
Court, that it was in evidence the barley could not be unloaded in
less than four days.
Mr. TrOnst. admitted that he was not prepared with any
I authority bearing directly on this case.
The LORD CHIC!' JUSTICE-.That is, you can Bind no case in
which " brought" means " enlivered." Suppose the vessel had
been lost on the night of the 20th ins storm, what would you have,
add of yon delivery then ?—Rule refused.

V. HALL.
This was an action tried at the sittings for Middlesex, after last
term. The plaituiff was not nonsuited.
The case was very short :_The plaintiff was a poor man, the
father of a child of t.ie age of two years, which had been uninten-
tionally ran against by the defendant's gig, whereby it was thrown
down, and considerably hurt. The defendant procured the admis-
sive of the chili_lnto a hospital, from which it was shortly alter
taken away by a father, who incurred, in consequence. some ex-
pense for its nursing and medical attendance. The plaintiff
brought this action to recover damages for his loss in being deprived
of the service of the child. The Lord Chief Justke nonsuited the
plaintiff on the ground that a child of such tender years could not
bevupposed eapab:e of rendering any service, and therefore the
allegation " per quod servitium arnisit, ' could not be supported.
Mr. E. Lawns this day moved to have this nAtr•ent set aside,
and a new trial granted. He contended that the child was capable
of rendering sonic service.
The LOSD Cuter JUSTICE—II is entirely incapable of ten.
dering any.
Mr. Laves admitted that he felt some difficulty in bringing
forward his suggestion of service, for it was so eery aoall ; bait vet,
said the Learned Counsel, the child might bring its father's slip.
pen : he was sure that he was frequently indebted for this service
to children of his own, who wore quite as young. The least quan-
tity of rervice would he sufficient. It was sufficient if the smallest
particle of service, a mere scintilla servitii, could be presumed. in
all actions of this kind, he said, the main amount of damages was
given for any thing rather than the real services perforated.
llr. Justice BAYLE r—l think the nonsuit in this case was right.
There are two grounds on which the action may be maintained :
one that this child is the servant of the father, and that in con-
sequence of this accident the father lost its service; the other, that
the father necessarily incurred some expense. Now, on the first
ground, it is the gist of the action, not that the child actually ren-
dered any service, but that it was in a capacity to perform a little
service. At the trial it wits assumed to be perfectly clear that it
WAS incapable of doing any service. The cases are all one wsy. In
those which have been cited, Lord Kenyon held that it was not ne-
cessary to prove actual service, hut only the capacity of service. In
Head v. Timbre!, which was for seduction, his Lordship said, that
it was like the case of an action by the father for the foss of the ser-
vice of his child. It is clear, he said, that no action can be main-
' tained, unless it can be proved that the daughter performed some
service fur the father. From these cases it appears that the gist of
the action is the lons of service • and in the present instance it is
manifest that there was no capability of service. 'filen, on the
other ground—did the father necessarily incur expense ? The
child was carried to a hospital ; there it might have had every
thing that it could require, and tile rather voluntarily took it away.
If he wu put to any expense, he had no one to tolame.but himself.
The LOUD CHILF JUSTICE—The principle of the common
law is, that if any one be entitled to the service of a certain indi-
vidual, and, by the act of a third person, is deprived of that service,
he may bring his action for damages. Whenever that can be
established the whole matter, all the circumstances, may be taken
into consideration, with a view to the estimation of dameges. You
want us to go a step farther, and to support this action where such
relation cannot exist, where the child, by reason of its tender years.
cannot he supposed to be capable of rendering such service. We
cannot du that.
Rule refused.

THE Ilya V. JENKINS, NIATON OF MONMOUTH.
Mr. TAUNTON moved for a criminal information in the nature
of a writ qao warranto, against James .lenkirm, tlayor of Mon.
mouth. The Mayor. according to the charter of the borough, is
annually elected in October. The burgesTes elect him out of their
body by a majority of votes, and he is then sworn into his office by
the old Mayor. Mr. Taunton made his application on two grounds.
First, that Alt. Hughes, the old Mayor, who swore in Mr. Jenkins,
was himself not cluly elected; secordly, that though Mr. Jenkins
heal a nominal majority. Hr. Bevan, his competitor, had a real ma-
jority, in consequence of the title of some of the burgesses who
voted with Mr. Jenkins being bad.
Rule granted. •