The Sun.
London, England, 1839-11-16 00:00:00

EXCHEQUE-11 COUIiY:--THIS DAY

(Sittings in Banco.)
MARKS V. BENJAMIN.
This was an action for penalties under the statute the
26 Geo. 2, chap. 36, section 2, for keeping
a bonze for
public dancing and music without licence ; it was tried
before the Lord Chief Baron at the sittings in London,
after last term, when the Jury found for the defendant.
In the early part of the term, a rule nisi for a new
trial was obtained by Mr. Humfrey and it now came on
for discussion.
The Learned JUDGE read over his notes of the trial,
from which it appeared that the defendant was the pro-
prietor of Howard's Coffee House in St. Jaynes'-place,
Aldgate, in which there was a large room, which he jet
out to parties for balls and marriage feasts, at which
were both music and dancing. It was further proved
that at the balls, money was taken at the door, not by
the defendant, but by and for the benefit of the person
hiring the room. Liquors were served to the parties
by the defendant, but it was not shown that he was
--,re of money being demanded from strangers going in.
T--,vis now slowed cause against the rule.
of Clark v Series Ist Espinass,3

Mr. J,.
After citing the case..

25. Archer v. Willingford, and Ellis v. Peed, he con.
CO, Vit H 111.•! •HT
cases showed that the party sued for penalties must be
proved to have kept his house or room for the pur-
poses of public dancing and public music, which was
not proved in this case. He kept the room and let
it to parties, who had entertainments, either for their
own benefit or for entertaining their friends upon some
festive occasion. There was no keeping of the room
for the purposes of 'dancing ; it was sometimes let out
and so employed, and the party taking the room had
taken money for the admission of strangers, in order to
cover part of the expense they were put to. The roam
was used temporardy for the purposes of music
and dancing, merely in the same manner
as was done in the London Tavern, where one
of their friends might give a ball, not having a r).)in
large enough at their own house. The London Tavern
had no licence for music and dancing, yet would any one
say it was a disorderly house under such circumstances ?
He apprehended their Lordships would discharge the
rule.

Mr. HUMFREY, in support of the rule, contended
that the defendant being the keeper of the house in
which concerts, masquerades, and balls were held, and
to which any person decently dressed were admitted on
the payment of money, came clearly under the provi-
sions of the Act of Parliament, and was liable to the
penalties.
The LORD CHIEF BARON remembered being at a
benefit of Madame Mara's, in a very eminent house in
London. Could it be said that the lady who upon that
occasion lent her house for the purpose, kept it for the
purpose of public music ?
Mr. HUMFREY—If it could be shown to a Jury that
a nobleman or gentleman, being a wine merchant, and
giving up his house once or twice a week for the pur-
poses of a concert or dancing, getting the benefit of the
consumption of his wine, he apprehended the Jury would
have little difficulty in finding that he kept the house
for the purpose of music and dancing. That was the
state of facts in that case. The defendant was the
keeper of a public-house, for the management of which
he was liable—he must be supposed to know what goes
on in it, and it ought to have been left to the Jury to say
whether he did not keep the room for the purpose of
music and dancing.
The COURT were of opinion that there was some evi-
dence to go to the Jury, but suggested that it would be
as well, and all the ends of justice would be answered,
by letting the ease stop there.
Mr. HUMFREY had no authority to consent, in the
absence of his client.—Rule absolute.

EXCHEQUER CHAMBER.
(THIS DAY).

(Sittings at Nisi Prius, before Mr. Baron ANDERSON.)

HAMPTON V. CROSS.

Mr. Kelly and Mr. Carrington were for the plaintiff,
Mr. Thesiger and Mr. Butt for the defendant.
Mr. KELLY said the plaintiff in this case was the
proprietor of a balloon, and the defendant was the pro-
prietor of the Surrey Zoological Gardens. The action
was brought to recover damages for a breach of con-
tract, entered into under the circumstances detailed
in the following evidence :—The defendant pleaded that
there was an agreement in writing—that he was justified
in refusing to permit the ascent, because the balloon was
defective ; and that balloons were a mischievous and per-
nicious invention, because they could not go up without
danger to the person, nor come down without damage
to public property.
Mr. Baron ALDERSON—They say they cannot come
down without injuring property. Several persons have
come down in the sea.—( Laughter.)
Samuel Grenville Fletcher deposed—About the latter
end of March, 1838, I went to the Surrey Zoological
Gardens, and saw Mr. Cross, with whom I re-
quested an interview on behalf of Mr. Hampton,
respecting one or more ascents with his balloon. Mr.
Cross referred me to Mr. Tyler as the Manager of the
Gardens, with whom I might negotiate. I went to Mr.
Tyler, and told him I waited on him on behalf of Mr.
Hampton, who had constructed a new and magnificent
balloon, and was desirous of making his ascent from
public gardens for notoriety. Mr. Tyler said he was
anxious to encourage this sort of thing, for the Gardens
were noted for balloon ascents, but that he could not
entertain it for some time, and another interview was
appointed. In April I again saw Mr. Tyler, and
stated to him that the balloon was building at the Mel-
ton Arms, where he might inspect it, which he promised
to do. I said we had then better come to terms as to
one or more ascents, supposing, upon inspection, that
Mr. Tyler found everything according to his wishes, as
Mr. Hampton was desirous of ascending on Whit-
Monday, or Tuesday. Mr. Tyler said he'usually gave
Mr. Green 301., and Mrs. Graham 251., and in conse-
quence of this being a new balloon, and the novelty of
the occasion, he would pay 301. for each ascent
on Whit-Monday and Whit-Tuesday. I after wards
met Mr. Tyler at the Melton Arms, who expressed
himself perfectly satisfied with the construction of
the balloon, and the same terms were again men-
tioned by me, and agreed to by Mr. Tyler. It was
also arranged that Mr. Cross should supply the gas.
Mr. Tyler requested me to call at the gardens, in order
to satisfy Mr. Cross that the arrangement was finally
made, and said that he should require me to
give an undertaking on the part of Mr.
HaMpton to be responsible. This I agreed to do,
and called at the gardens, where I signed a
paper, merely as a matter of form, without reading it.
I heard nothing more as to • the balloon not going up
until the receipt of a letter, dated the 26th May, in
which Mr. Tyler stated, that after the unfortunate cir-
cumstance which had occurred on the preceding Thurs-
day, Mr. Cross was determined to have no more balloon
ascents from the gardens.
Several other witnesses were called to prove that the
balloon was in a proper state.
A witness named Chambers who proved the refusal
of Mr. Cross to admit the balloon into the gardens,
said that he had sent the balloon up since several times.
He had the management. of it on the ground.
Mr. Baron ALDERSON—He is the ground aero-
naut.—(Laughter.)
Mr. THESIGER then addressed the Jury for
the defendant. He said he should ho able to
prove that the plaintiff was not entitled to the
damages which he sought to recover, and that the
only agreement between the parties was, that which was
made in writing, at the Melton Arms, on the 16th May,
and not at the Gardens, as stated on the other side,
which at the time was read over clause by clause. It
was to the following effect :—" Memorandum cf agree-
ment between Edward Cross, of the Royal Surrey Zoo-
logical Gardens, and Grenville Fletcher, on behalf of
the gentleman connected with the balloon. Mr.
Fletcher engages that Mr. Hampton shall make
two ascents, on the 4th Wand the sth of June,
1838, with the new balloon constructed by him, from
the Royal Zoological Gardens, for which ascents he is
to receive the sum of 601., should the attraction be equal
to what may be expected ; if the reverse, 50/. ; all ex-
penses of filling the balloon to be defrayed by Mr.
Cross. And in the event of only one ascent being prac-
ticable from injury, to receive 30/. And should the
weather be so unfavourable on the days named
as to render the ascents impracticable, they
shall take place within ten days after the
date originally fixed. Mr. Fletcher hereby binds
himself on his own behalf, and the gentleman concerned
with him, to have the balloon on the ground in a fit and
proper state on the 3d of June, 1838, under the penalty
of 1001. for such failure, the said sum to be recoverable
in any of her Majesty's Courts of law." This agreement
was signed by Mr. Fletcher and Mr. Hampton. A few
days before the time fixed for the ascent of Mr.
Hampton, a failure took place in the ascent of the
Montgolfier balloon, and a riot ensued, in conse-
quence of which Mr. Cross determined at that time
not to allow any further ascents until the public feeling
should have subsided, and this was intimated to Mr.
Hampton, who could not have sustained any injury.
He should also prove that the balloon did not corre-
spond with the representations made as to its size, and
that it was not in a proper state at the time of the
intended ascent. In addition to this evidence, he would
submit that the plaintiff could not recover on such a
contract as this, because the experiment was a useless
and hazardous one, such as the law would not sanction,
and the Court therefore could not enforce.

After witnesses had been examined in support of the
statement of the Learned Gentleman, Mr. Kelly re-
plied, and his Lordship then summed up the case to the
Jury.

The Jury had not returned a verdict when we went
to press.

LLOYD'S SHIPPING.-(THIS DAY.

DEAL, Nov. 15.—Wind S. S. W.—Fresh.—Arrived
the Bromley's, Knox, from New York ; Aibion, Whitney,
Quebec ; Thetis, ditto ; and Cleopatra, Demerara.
LIVERPOOL, Nov. 15 —Wind S. S. E.—Arrived the
Hibernia, Cobb, from New York ; Susquehannah, Phila-
delphia ; and Mary, Morton, Quebec. Off port the
Mary, from Monte Video ; Harriet and Jessie. Charles-
ton ; Garrick, New York—sailed 25th ult. ; York, St.
John's, New Brunswick ; Ruby, ditto ; Glengarry, ditto;
Thesis, ditto ; Agnes, ditto; Wave, Samuel, Wolfscove ;
Phoebe ; Erin, Bradshaw • Marquis of Bute, Ward; Re-
solution and Ganges, Quebec ; Intrepid, Richibucto ;
Sultana, Prince Edwards Island ; Capricorn, Savanella ;
Maddison, Virginia ; and Majestic, Africa.
MARGATE, Nov. 15.—Off port the Pomona, Penny,
from Rio Grande.
CREEK, Nov. 15.—Arrived the Fanny a' Gamquez,
Frelk, from Cephalonia; Dextrous, Proom, Marsala;
Apollo, Barbiere, Alten ; Totnes, King, Malaga.
DOVER, Nov. 15.—Off port the Albert, Moon, Quebec.
BEECIIY HEAD, Nov. 14.—Off port the I'aulina,
Hoffman, from Batavia; Lagoda, Foster, Virginia.
PORTSMOUTH, Nov. 15.—Wind S. S. E.—Arrived the
Vittoria, Simpson, from Quebec.
COWES, Nov. 15.—Arrived the Orion, Mattheson,
from Rio Janeiro; Juan, Guosso, Havannc, leaky, and
with rudder damaged, &c. ; John and William, Howard,
Halifax.

Count Bathyany has left Mivart's Hotel for
Melton Mowbray, where the Count intends to pass the
hunting season.