The Sun.
London, England, 1838-01-15 00:00:00

QUEEN'S BENCH. (THIS DAY.)

(Sittings in Banco).
TRDEMAN AND ♦aocsica e. tome.
This was an action for breath of contract, tried at the sittings after
last term before Lord Denman, when a verdict was had for the
plaintiff% for 6,021/.
Sir FaityLetex PeLL•c now moved, in pursuance of leave reserved,
for a rule to show cause why the verdict should not be entered for the
defendant. He had further to move, that upon the construction of the
contract (the plaintiff not being entitled to maintain an action against
the defendant) a nonsuit should be entered ; and he had also to move
for a rule for a new trial, on the ground of certain evidence having been
rejected at the trial. The circumstance,: of the case were as follow
:--
The plaintiffs, Trueman and Cooke, were tallow-brokers, carrying an
business frequently on their own account, and the defendant, Mr. Giles
Lodor, was a merchant of St. Petersburgh ; and the declaration was for
the non.delivery of certain quantities of tallow, in pursuance of two
contracts made in the months of April and May, 1835, and he (Sir P.
Pollock) thought a very grave question would an;. upon these contracts,
how far the plaintiff's were entitled to maintain an action against the
defendant, who was not named in them at all, nor alluded to in the
remotest degree,
Lord DENISAN—Another person named Higginbotham acted as the
defendant's agent in London.

Sir F. Potiocc—Where a contract was raade with an existing per.
son trading in that country, and carrying on business in his own name,
it was a well.established rule that evidence could not be received to
prove that that name meant none other name or Company. That prin.
ciple had been expressly laid down by Lord Ellenborough in the case of
Siften v. Walker, Campbell, which was an action on a promissory
note. It was there stated that " the import of a written agreement
must be gathered from the terms in which it is expressed."
_ _ .

Lord D AN—I don't recollect your pointing that out at the trial.
Sir F. POLLOck had alluded to it, but he felt the odium which at.
tached to a defendant having recourse to a technical legal objection, and
had not pressed it. It was clear, however, that no man, with a full
knowledge of all the circumstances of the contract, had a right to sue
both the principal and the agent.
Lord DENMLN—The Jury found that Higginbotham intended to mak
the sale on his own account, but that the plaintiff,: supposed It was as
the agent of the defendant.
Sir F. POLLOCK would now proceed to the question which arose ttpon
the finding of the Jury. They found in point of fact that the agent did
not make the contract for the benefit of his principal, but that the pur.
chaser supposed such was the case. Now, he would submit that the
result of that was that the parties were not ad idem, and that in point
of fact there was no contract at all. That was the principle laid down
in all cases of misunderstanding: no stronger case of misunderstanding
could possibly arise, and he apprehended that their Lordships would
think the point of sufficient importance to entitle the defendant to a
verdict. The third point 1911 which he relied was that material evi-
dence had been rejected by the Learned Judge, and he would now call

the attention of the Ciiiirt td the contracts; they were to the following
effeet BO♦ught Merits, Trueman end Cuoke 1,000 eaOke new first
sdrt St. Petersbilrgh V. C. tailoVi, to be detiveftd between Octlib€r
silo
DeCeiriber, at '3Bs. pet cwt. Slittlild anY dispute atise
the quality the difference to be settled by arbitiation, but the ionsfect
i+o► to by titild On that adconnt." In that Contract there was no !lathe
Of any seller Whatever, neither Higgingbethain nor Lodor *etc named,
and npott thi,t pohit.he would Call the attention of the Court to the ob.
!ervation of Sir ;feint& Mansfield hi the case of Champion C. Plureither-=
" tlow can that be ealied it contract which does riot state who are the
contracting parties." He (Sir F. P011oCk) had been prepared with
evidenee to Shdii that *hete the etiritradt was In shift tenni it Was the
6uiEdm Ht Illidaitarldieg of the trade that when the prititiptil Wits
actually disclosed, if the party did not like it he might reject the con.
tract. Upon these grounds he submitted that he was entitled to the
rule prayed for in the alternative.
The Court took time to consider the argument.
HUMPIIRET V. TESTILIS.
This was an aetlon upon a promissory note for 300/ brought by the
p:aintiff, a solicitor, against Madame Vestris, proprietrix of the Olympic
Theatre. The case was tried at the sittings of the last term before
Lord Denman, and a verdict had for the plaintiff.
The ArroaNev.6a:sertat. now moved for a rule to show cause why
the verdict should not be set aside and a new trial had.

Lord DENNIAN—On what grounds ?
The Arroaarav-Gs:Nailat..—Oti affidavits. The bill was dated the
30th December, 1838, drawn by Joshua Rose Anderson, the brother.
in-law of the defendant, and accepted by Madame Vestris. , The pleas
were that she had received no consideration for the bill—that it had
been endorsed to the plaintiff without consideration—and that it had
been endorsed to the plaintiff by Anderson after it had become due.
That the lady had been most grossly defrauded, admitted, he thought, of
not the smallest d ,übt, and he trusted she would obtain the relief she
prayed for. At the trial the Jury had found for the plaintiff, because
they could not do otherwise. A prima facie case had been made out,
although the plaintiff had not shown any consideration or when the
bill lind been endorsed, because he was not bound to do so. He now
held in his hand the affidavit of Madame Vestris, which set forth that
she had never received one farthing consideration for the bill in ques-
tion. He had also the affidavit of the defendant's attorney, who stated
that a bill-broker, named Knight, had informed him that the bill had
remained with him for discount all January, 1837, and the greater
pact of the month of February. That after the trial he had been in-
formed that a person, named Charles Rickarby, of litridge House.place,
Newineton.causeway, auctioneer, could give evidence of the fraud
that had been practised upon Madame Vestris ; and that, subsequently,
Rickarby stated to him that he was present in the month of June, three
months after the bill had become due, at an interview between the
plaintiff and Mr. Anderson, at the Jerrard Coffee-house, when the bill in
question was given by Anderson to Humphrey, and 3001. paid by the
latter to the former, who afterwards returned 2501. to Humphrey under
the table, and that one of them then observed, that they would chew Ma-
dame Vestris, that she would not rob gentlemen, without being robbed
in turn. Now the defendant's solicitor had not been able to force Ric-
karby to swear to the affidavit, although it had been drawn up and ap.
proved by him, but if there was a particle of truth in the statements
there made, it would dilly establish the pleas, and expose what he be-
lieved to be a moat scandalous conspiracy to defraud that lady. He
would submit that these statements required some answer on the part of
the plaintiff, and it they could not be saticactorily met, then, that he was
entitled to a TICW trial.

The Comer after conftivring for a short time, observed that the case
was certainly a very suspielous one, and if these facts were deposed to,
it might influence their decision. But nothing had been proved. It
was not sufficient for an attorney to state that he had been told so and
so, by another person, and therefore the rule must be retbsed.—Rule
refusal.

COMMON PLEAS.-(THIS DAY.)