The Sun.
London, England, 1854-01-24 00:00:00

LAW INTELLIGENCE.

COURT OF COMMON PLEAS.-JAN. 23.
DAWSON V. WILLIA3IS-MOTION TO SET ASIDE A
SEQUESTRATION.

Sir Frederick Thesiger said he was instructed in this
case to move for a rule calling upon the Bishop of Lon- I
don and the plaintiff to show cause why the sequestra- '
tion made to the Insolvent Court, and the publication
thereof, and all proceedings thereon, should not be set
aside, and why the bishop should not give precedence to
the sequestration of Mr. Sturges, the provisionai assignee
of Theodore Williams. The 56th section of the Ist and
2d Viet., cap. 110, said that the order appointing an
assignee or assignees should be sufficient warrant for
granting sequestration, and such sequestration should be
issued thereupon. In the present case the vesting order
was made on the 14th March, 1853, and on the 30th
March the petition, accompanied by a copy -of the vest-
ing order,
.was delivered to the bishop, and it was re-
quested that sequestration might issue, but he returned
two other sequestrations. It appeared that one of these
was founded upon a proceeding in the court in which a
writ was issued as long ago as 1837 to levy 11,0001., but
an arrangement was made that it should not be put in
force, and it was kept on foot in order to protect the
property of Williams. A similar application to this had
been made to the Court of Queen's Bench, and there the
application had been granted.
Rule granted.

THE MANCHESTER, SHEFFIELD, AND LINCOLNSHIRE RAIL-
WAY COMPANY, APPELLANTS, V. WALLIS AND ANOTHER,

RESPONDENTS- RAILWAY ACCIDENT.
This was an appeal from a decision of the County
Court of Lincolnshire. The action was brought to re-
cover the value of two horses belonging to the respon-
dents, which, having strayed on to the appellants' rail-
way, bad been killed by a train under the following
circumstances :—The horses were in a field, from which
they strayed on to the public highway, and thence on to
the railway ; and it was said that they got on to the
railway in consequence of a gate having been impro-
perly left open by the company's servants. It was sub-
mitted to the judge of the court below that there was no
case to go to the jury ; but he was of a contrary opinion,
and the jury
gave a verdict for the plaintiffs. This deci-
sion of the judge was appealed against, and the appeal
was heard in November last, but the matter stood over
for judgment until to-day.
The Chief Justice Jervis now delivered the judgment,
and said that they must assume, after the finding of the
jury, that the cattle of the respondents, without any
fault on their part, strayed into the public road,
and subsequently upon the railway, where they were
killed. The question was whether, upon these facts,
the appellants were liable in this action, and the court
was of opinion that they were not. This was not
the case of a railway crossing a public road at a level,
but it was the case of a railway running alongside of
a public road ; and to that case the 68th section of
the Railway Clauses Act, the Bth and 9th Victoria,
cap. 20, supplied. It provided that the company
should, among other things, maintain sufficient posts,
rails, hedges, &c., to separate the land taken for the
railway from the land not taken, and to prevent the
cattle of the owners of the adjoining land not taken from
straying on to the railway. This section made but a
very inadequate protection for the public where a rail-
way ran alongside a public road, but the meaning of it
was clear. A highway must be considered as land not
taken, and the same construction must prevail whether
the land was a public way or a private close. The ob-
ligation on the railway company was to fence so as to
keep the cattle of the owners of the adjoining land not
taken, from straying on to the railway. The court had
lately determined that the obligation was the same as if
the company were bound at common law by prescription
to repair a fence, that was to keep up a fence against the
cattle of the owners of the adjoining land. These were
not cattle of the owner of the adjoining land, for that land
was a highway. Whilst cattle were lawfully passing
along a highway they were using it according to the
dedication of the owners of the soil, and they were in
the same position as if they belonged to the owners of
the land. Applying this case to the principles thus esta-
blished, the court was of opinion that the cattle of the
respondents, whilst straying along the road, were not
occupying the road within the meaning of the act of
Parliament, and therefore that there was no obligation
on the appellants to maintain the fence against them,
and they were guilty of no wrong in not doing so.
The Legislature, being fully aware of the danger, had
cast only this limited responsibility upon railway com-
panies, and the court could not enlarge it merely because
the public safety required it. The company had committed
no wrongful act, for the cattle being trespassers, they
were not bound to fence against them by the act of
Parliament.
Appeal allowed.

COURT OF EXCHEQUER.—JAN. 23.
(Sittings in Banco.)
JANSSENS V. GRO VE.-J lIDGMENT.

This morning Mr. Baron Parke gave judgvAnt this
case, in which the court had taken L'itrafax.4%.l
preliminary objection. This was an appea.--geom the
judgment of a judge of a county court, in a matter
wherein the sum claimed was above 501., but which ease,
had been submitted to him by mutual consent, under the
13th and 14th Vic., c. 61, which provision, although it
limited the jurisdiction of the county courts to 501., yet
at the same time gave the judges jurisdiction over cases,
by consent of the litigants, to any amount. The objec-
tion taken on behalf of the respondent was, that there
was no appeal from the judgment of the county court in
such a case as this, inasmuch as that the judge of that
court must be taken as an arbitrator, and elected by both
parties. The court had considered the matter, and had
taken time in the first instance for that consideration, in
order that the opinion of the judges of the other courts
on the point, as it was one of great importance, might
be obtained. But the other learned judges had ex-
pressed a desire not to give an formal opinion without
hearing the arguments. That court was unanimous in
opinion that no appeal under such circumstances could
be brought. The judgment, therefore, would be for the
respondent, but without costs.

(Sittings at Nisi Prius in Middlesex.—Before Mr. Baron
Platt and Common Juries.
SPILL V. MOSS,-SALE OF A HORSE.

Mr. Edwin James and Mr. G. M. Dawson were coun-
sel for the plaintiff ; Mr. Prentice conducted the defence.
This was an action on the warranty of a horse. It ap-
peared from the evidence of the plaintiff, who carries on
a waterproof manufactory at Stepney-green on a large
scale, employing as many as one thousand hands, that on
the 16th of September he bought a horse from the de-
fendant, who is a horse-dealer in Smithfield, having sta-
bles in the Kent•road, for which he paid down 101., and
was to pay another 51. if the horse suited, the defen-
dant having agreed to take in exchange a horse of the
plaintiff at 10/., thus making the whole value of the
animal, purchased by him 251. Prior to the payment
of the money the parties registered the sale with the
clerk of the market, the horse being warranted
sound. The defendant's man then took the horse to
the plaintiff's stables, and took away the other in
exchange. The plaintiff then put the newly purchased
animal into harness, and although it was only going
at the rate of eight miles an hour, his wind was so bad
that it was necessary to pull him up every hundred yards
in order to allow him to breathe. He was, in point of
fact, a roarer, and not worth his keep, and he therefore
sent it back to the defendant, but since then he had
never received another horse instead, or his own that he
had given in exchange, or the 101. he had paid down.
The plaintiff's groom and the assistant clerk of the
market having been called in support of the case,
The defendant, and other witnesses on his part, gave
a totally different version of the transaction, but
The jury, without hearing Mr. Dawson in reply, found
a verdict for the plaintiff—damages 251., the amount
claimed.

INSOLVENT DEBTORS COURT.—JAN. 23.
(Before Chief Commissioner Law.)
IN THE MATTER OF MATTHEW NOTTINGHAM.

This insolvent, agent for the Caledonian Tube Com-
pany, was further heard on his application for discharge.
Mr. Cooke opposed for a Mr. Cutler, who was stated to
be a shareholder in the company ; and Mr. Sargood
stipported.
On the present occasion a letter from the solicitor of
the company (Mr. Stoney) was read, and one from Mr.
Baker, the manager, repudiating the opposition. It was
admitted that Mr. Cuter could oppose, but not for the
company, as he was a shareholder.
Some further evidence was giveo, and it was com-
plained that the order of the court, made on the former
occasion had not been complied with. It appeared that
in the autumn of 1850 the insolvent was presented with a valuable diamond ring by the Emperor of Russia.
in Insteadout ba of the ring he bad the value in money, amount-
sto 1421., and he had accounted for it in his
books.

completeEventuthe ally
schedule.the case was adjourned to Wednesday, to
(Before Mr. Commissioner Phillips.)
There were several cases before the learned Commis-
missioner, but they presented no features to be reported.
In the case of George Frederick White (in
Mr. Macrae opposed and Mr. Duncan supported), a
balance sheet bad not been filed, and an application was
made for a long adjournment to settle.
His Honour would not grant it, and ultimately the
case stood over to Saturday to comply with the order of
the court.