The Sun.
London, England, 1838-11-05 00:00:00

TWYFORD V. TRAILE,

This case came before the Court upon appeal from the de-
cision of his Honour the Vice-Chancellor, allowing the ex-
coptions taken to the Master's Report, and referring back that
Report to the Master to review. The question in the case,
which was brought before the Court below upon two petitions,
was how far the estates of two gentlemen, named Wm. Hall
and James Archibald Simpson, who were many years ago the
trustees of a large fund in India for the benefit of the children
of George Augustus Simpson, which fund had been lost by
the failure of the house of Palmer and Co., in Cllcutta, in
1830, were liable to that loss. The facts of the case appeared
to be shortly these :—Mr. George Augustus Simpson, who was
a partner in the house of Palmer and Co., died in the year
1811, and by his will, after giving a certain annuity to bit
widow, and several legacies, he left the residue of his property in
trust to William Hall and James Arch. Simpson, whom he ap-
pointed his executors, for the benefit of his children. At
the time of Mr. Simpson's death there was due to his estate
from the firm upwards of 280,000 rupees. The executors,
instead of calling for that money, allowed it to remain in
the firm till their bankruptcy in 1830, and the consequence
was that it had been entirely lost. Mr. Hall, one of the
executors, did in India in January, 1818. and appointed
Mr. Traill, one of the defendants, his executor in this coun-
try, and Mr. Francis Hall, his brother, his executor in
India. James Archibald Simpson, the other executor, died
in 1821, and appointed the same parties his executors
as Mr. William Hall had done. After this period the fund
was still allowed to remain in the hands of Palmer and Co.,
and upon their failure in 1830 there was upwards of 220,000
rupees in their hands. Shortly after the failure of Palmer
and Co. the present bill was filed by George Augustus Simp-
son against Mr. Trail as the representative of the two execu-
tors, and also against some of the partners in the house of
Palmer and Co., with a view of making their ass.'ts answer-
able for the loss. Upon the case coming before his Honour
ere Vice-Chancellor, he was of opinion that Mr. Trail was not
individually liable, as he could not consider him as the personal
representativeof Geo. Augustus Simpson. His Honour, however,
declared the two first executors, W. Hall, and J. A. Simpson
were guilty of a breach of trust in allowing the funds to re-
main in the hands of Palmer and Co. ; and that they were
liable for the loss ; for the purpose of ascertaining which, the
Court directed a reference to the Master. The Master re-
ported the amount of the loss to be 13,0001. ; and to this re-
port the personal representatives of George Augustus Simp.
son excepted, upon the ground that the Master had proceeded
erroneously in ascertaining the loss; and upon those excep-
tions coming on before the Vice Chancellor, his Honour made
the order that was now appealed from.
Mr. JACOB was opening the case on behalf of the appel-
lants when we left.

VICE-CHANCERY.-(THIS DAY.)

BRANCH V, PRIMROSE.-CONTEMPT.

Mr. WOOD said he was instructed in this case to apply to
the Court for the committal of Mr. Primrose. the defendant,
to the Fleet, for a contempt, in not putting in his answer. The
Learned Counsel trusted, however, that it would not be ne-
cessary for him to persevere in the application, as he was in
hopes Mr. Primrose would be induced, by the representations
of the Court, immediately to put in his answer. It was a mere
mat ter of form, and might be done in the course of the day.
The VICE - CHANCELLOR (addressing Mr. Primrose) enquired
what was the reason that had influced him not to put in his
answer ?

Mr. Primrose, a gentlemanly-looking man, said he could
assure the Court that he was most anxious to put in his an-
swer, but his mind had been in such a state of agitation lately,
as to render it impossible for him to do so. He hoped the
Court would give him a month.
The VICE-CHANCELLOR—It's a mere matter of form; and
such being the case; you might easily put it in to-day.
Mr. Primrose—lndeed, your Honour, I cannot, my mind
being in such an agitated state; but if you will give me a
month, I will then put in my answer.
The VICE-CHANCELLOR—You are injuring yourself by act
ing in this way ; your answer might be put in to-day, and by
that means you would avoid going to prison.
Mr. Primrose—l cannot put it in under a month.
The VICE-CHANCELLOR—Very well; then the month must
take its course. If you will be so obstinate, I cannot help it.
Mr. Primrose was then committed into the custody of
Mr. Allen, the Tipstaff of the Court.

ROLLS' COURT.-(THIS DAY.)

TOWNE V. BORNE-TOWNE V. CARTER.

This case came before the Court upon a petition, praying
that the causes might be adjourned till certain proceedings in
the Queen's 13Jnch had terminated, and that the answer of
Dr. Simonds, the heir of John Simonds, the testator, might
be taken off the file, in order that the derivative heir might
put in a supplemental answer.
Mr. COOPER and Mr. ELDERTON appeared in support of the
petition, but as the affidavits contained some very serious
charges against one of the parties, we refrain from publishing
a statement of the facts until the Master of the Rolls shall
have given judgment.

COMMON PLEAS.-(THIS DAY.)

COLLINS V. EVANS.

Mr. Serjeant WILDE moved that in this case, tried before
his Lordship in June last, a verdict being found for the plain-
tiff, a nonsuit be entered, or a new trial granted. He moved
on the ground that there was not only no evidence for the
plaintiff's case, but a distinct negative was established for the
defendant. The action was brought to recover damattes for
injury done to plaintiffs cart and horse through the alleged mis-
management of defendant's carriage. The defendant was
a surgeon residing at Grove House, Hampstead. At six
o'clock, in the evening of the day on which the occurrence
took place, the plaintiff was driving from Lond,jn to Northend,
while the defendant was returning to his own residence, after
visiting his patients ; and the evidence for the plaintiff went to
show that while defendant's carriage was on the proper side of
the road, and as near the edge of the road as was safe, consi-
dering that there was a pond in that direction, the plaintiff
was out of his track, towards Northend. The defendant's
coachman, on the other hand, proved that it was a very dark
and foggy night ; that hearing the plaintiff's cart and horse
coming, he hailed him and received an answer, but not being
able to see him, he drew up, and was standing at rest when:the
collision took place.
Rule to show cause granted.
As a curious instance of the extent to which the rage for
litigation may be carried, it may deserve notice that an appli-
cation was actually made in this Court to-day, respecting the
interest, for two months, on a bill of exchange for 13/. !—the
expense of the proceeding on which application, should it have
been granted, would have amounted to 5/. ! !

QUEEN'S BENCH.-(THIS DAY.)

CONNEL V. SAWYER AND OTHERS.

JOINT STOCK COMPANIES—LIABTLITY OP PARTNERS.
Sir WM. FOLLETT, in this case, which was tried before
Mr. Justice Williams, at the last Liverpool Assizes, with a
verdict for the plaintiff, moved for a rule to show cause why a
new trial should not be had. The plaintiff was an officer of
the Northern and Central Bank, and the action was brought
against Sawyer, and five other defendants, on several promis-
sory notes.
Lord DENMAN—Signed by all the defendants ?
Sir WM. FOLTETT—No, my Lord, and that is the question
for the consideration of the Court. The question was whether
the defendants were responsible, the notes being signed by
otherparties. All the makers of these notes were Directors
of a Joint Stock Company, called the Birmingham Drapery
Company. The notes were not made in their .rapacity of Di-
rectors, but merely signed by the Christian and sirname, and
the action was brought against the defendants as indorsers
of the notes, although their names were not upon them.
Lord DENMAN—The defendants were members of the
Birmingham Drapery Company.
Sir \V. FOLLETT—Yes, my Lord ; but not Directors. The
only evidence relative to the Company was given by one wit-
ness, who stated that the Company was formed in 1834, and
dissolved in 1836. The parties having refused to pay their
calls, the Directors, for the purpose of compelling the share-
holders to contribute to the debts of the Company, made the
notes in question, indorted them, and then employed an attor-
ney to bring the action against the defendants It was brought
in the name of the Northern and Central Bank, but it was
proved on the trial to be the action of the Directors against

the shireholders. Sir W. Follett then proceeded to contend
tln't under these ci cumstanees the defendants could not be
held responsible ; it was proved on the trial that a deed existed
but no deed for the formation of the Company was produced;
there could be no excuse for that omission, as the action had
been brought by the Directors. No evidence bad been given
to show that the Directors had any authority to make
notes which should be binding on the shareholders,
nor was there any evidence to show that they had ever done
so with the knowledge of the shareholders. The Learned
Council then referred to the recent decisions in that Court
and the Court of Common Pleas, and concluded by submitting
that he was entitled to the rule played for.
Lord DENMAN said as the question was of some importance,
his Learned Brother (Mr. Justice Williams) would look care-
fully through his notes, and if it was found that the evidence
was as the Learned Council had stated, he should have the
rule.

COOPER V. LAWSON-LIBEL.

The ATTORNEY- GENERAL in this case, whicn was tried be•
fore Lord Denman at the last Guildhall sittings, moved for
a rule to show cause why the verdict for the plaintiff with
1001. damages, should not be set aside and a new trial had,
on the ground of misdirection on the part of the Learned
Judge, and also on the ground of the damages being exces-
sive. In reference to the latter point he would observe
that the present was only one of four actions brought
by the plaintiff, not against a paper in which the libel
had appeared, but against another into which it had
been copied. The alleged libel had been published in the
Times Newspaper, copied " from the Berwick Warder," and
was headed " Berwick Election Petitions—more exposures "
The Learned Counsel then proceeded to read the libel com-
plained of, which stated that the defendant, a tailor, bad be-
come one of the sureties in the Berwick election petition in
the sum of 5001.; that he was unfit to be such surety by
reason of insolvency ; and that he must have been hired to
swear hard fot• that purpose. The defendant had pleaded a
justification, and he (the Attorney-General) contended that
they had fully established their plea. The misdirection of
which he complained was in the question left to the jury
by his Lordship, of whether, in their opinion, the commen-
tary was or was not a fair one ? The Learned Gentleman
cited several cases, for the purpose of establishing the fact,
that when the jus ification was proved, the comments were
not to be taken into consideration.

The COURT, after conferring together, decided that the
direction was right, and that the rule for a new trial must
be refused.

BAIL COURT.-(THIS DAY.)

ABBOTT AND ANOTHER V. GREENWOOD AND ANOTHER.

Mr. WATSON applied for a rule to show cause why a writ
of fieri facias and levy should not b.; set aside, upon the
ground of execution having issued, cantrary to the terms of
the warrant of attorney upon which the judgment was entered.
Rule granted.

EXCHEQUER COURT.-(THIS DAY.)

The Court was engaged the whole of the morning with
cases in the Peremptory Paper, the only points in which were
of a purely technical nature.

BOW-STREET.-(T IS DAY.)

George Edwards, a game-keeper, was brought up by
Rutliven the otEcer, charged on suspicion with stealing a horse
and chaise from the livery stables of Mr. Henry Pritchard in
Percy-street, Rathbone- place.
It appeared that on the sth of August last the prisoner hired
the horse and chaise, together with a valuable brass mounted
set of harness, for the purpose of going to Hatfield, Herts, but
he never returned, and no tidings was heard of the property
until he was apprehended. He was remanied until Friday next.