The Sun.
London, England, 1838-11-13 00:00:00

COMMON PLEAS.-(THIS DAY.)

BOTTOMBY V. FORBES.
This was an action, on a charter-party for' the freight o
some cotton shipped for defendants at Bombay, to London,
and the question was whether the freight was to be calculated
by the measurement taken at Bombay, immediately after the
cotton had been pressed in powerful screws, or by the
measurement taken when the cotton arrived in the
port of London, after it had expanded considerably.
The difference between the two measurements in the
tonnage being to be calculated at fifty cubic feet per
ton, amounted to no less than 93 tons. The Jury found
for the defendant. Last week Sir W. Follett showed cause
against a rule nisi, obtained by Sergeant Wilde, for a new
trial. The point to be decided was, whether the defendant
should have been permitted at the trial to adduce evidence of
the custom in the trade, that custom being to abide by the
'Bombay admeasurement.
Serg. WILDE now continued his argument in support of the
rule, contending that evidence of custom was only to be ad-
mitted where the terms used in the contract wore ambiguous;
that in the present case there was no ambiguity in the expres-
sion ; and that in the absence of any stipulation to the con-
trary, the charter-party was to be construed according to what
he affirmed was the known rule of law in such cases—that
freight was to be calculated at the port of delivery.
Mr. GIRDLESTONE followed on the same side.
The COURT, at the conclusion of a very lengthened argu-
ment, said they had no doubt as to the first point, that the rule
ought to be discharged ; but, on the admissibility of the
evidence rejected, they took time to consider.

EXCHEQUER COURT.-(THIS DAY.)

TIOLKER V. WRAY.

Mr. KELLY moved to set aside the verdict for the plaintiff
in this case, and to enter a nonsuit pursuant to leave reserved
to him by Mr. Baron Alderson, before whom the trial was had
at Guildhall on Thursday last. The facts of the case were
these :—Ahoot the latter endof last year thopetitioners, who are

linen drapers at Worthing, were indebted to the defendant, a
wholesale silk-merchant, in London, in the sum of 71/. 6s.
They had had many transactions with the defendant, all of
which had been conducted through a person named Minstul,
who had frequently signed bills in the name of the plaintiffs.
Minshul was instructed to pay the defendant 71/. 6s. on the
part of the plaintiffs, but he onlypaid 50/. on account, leaving a
balance of 21/ 6s. owing on the part of the plaintiff. Minshul
had dealings on his own account with defendant, and
owed him the sum of 24/. 95., and he gave a bill for
the whole sum of 45/. Iss. When it became due Minshul
had absconded, and was made a bankrupt. The defendants
sent up their solicitor to town to make inquiries into the extent
of their liabilities, and, among others, he called upon the
defendant, who slid he held a bill from Minshul on the plain-
tiffs' account for the sum of 45/. 155., which was paid. The
plaintiffs afterwards found out the real state of the case, and
brought his action for the recovery of the 241. 93., which he
had overpaid on the misrepresention of the defendant. The
Learned Gentleman contended that the plaintiffs had no right
to bring the action unless they had given up the bill, or at
least made a tender of it, as it was a security belonging to the
defendant against the estate of Minshul. The case was similar
to that of a horse bought under a warranty, which turned out
unsound—the purchaser had no right of action until he had
either returned the horse, or had tendered it ; so, in this case,
the plaintiffs ought to have returned the bill, or have tendered
it, before bringing the action.
The COURT said—The money having been paid upon a mis-
representation made by the defendant, the plaintiffs' right of
action accrued the moment they had parted with it, and there-
fore there was no necessity for their giving up the bill, or ten
dering it. No doubt they would give it up when they were
paid their money ; if not, the defendant had his right to an
action of trover.—Rule granted.

BAIL COURT.-(THIS DAY.)

THE QUEEN V. ALDERSON.

Sir W. FOLLETT moved for a rule to show cause why a
quo warranto should not be filed against Christopher Alderson,
to show by what authority he exercised the office of Alderman
of Carnarvon. The proceedings in this borough had been
rather extraordinary. When the first election took place
under the Municipal Act, in the year 1836, Councillors were
elected according to the provisions of the Act. When they
assembled to elect the six Aldermen there appeared to be a
majority.in favour of two persons, but for the other four there
was en equany of votes, and they could not fill up the places
of Aldermen. The Council remained incomplete till the
year 1837, when they elected the remaining Aldermen, but
the Councillors did not declare, according to the provisions of
the 25th section, what Aldermen were to go out in 1838.
They assembled shortly before the 9th of November, and came
to a resolution that three persons whom they named should go
out of office; and having served them with notice, they pro-
ceeded to elect other Aldermen in their room. He appre-
hended the whole of these proceedings were irregular, and
they ought to have declared at the original meeting who were
to go out, and have elected some others to supply their place.
Mr. Justice LITTLEDALE.—Take a rule to show cause. We
have had something relative to this borough before.
Sir W. FOLLETT—Oh, yes; it has been constantly before
the Court. The Corporation was never properly formed.
Rule granted.

COURT OF COMMISSIONERS OF
EXCISE.-(THIS DAY.)

The sittings of the Commissioners were resumed this day
before the Hon. Berkley Paget, the Hon. Mr. Percey, and
Hart Davis, Esq.
SMUGGLlNG.—Catherine Bryan, Catherine Wilson, and
William Wilson, were charged, on an Excise information,
with haring illegally in their possession a quantity of illegal
spirit.
The Coma condemned the spirits seized, but remitted the
penAlty.