The Sun.
London, England, 1836-11-08 00:00:00

VICE-CHANCERY.-(THIS DAY.)

His HONOUR heard pleas and demurrers to-day, none of
which possessed any point of interest except to the parties
concerned.

KING'S BENCH.-(THIS DAY.)

GILBERT AND ANOTHER V. DALE.—IMPORTANT TO BOOK
ING-OFFICE KEEPERS.
MR. PLATT moved in this case for a rule to shew cause
why the nonsuit should not be set aside and a new trial
had. It was an action of assunzpsit, tried before Lord Den-
man, at the last Westminster sittings. The action was
brought by Gilbert and another, tailors, against the defend-
ant, who was the keeper of a booking-office at the Glou-
cester coffee-house, for the loss of a box, containing a
quantity of clothes, directed to a Mr. Jeffreys of Cotmore,
near Pembridge, in South Wales, alleged to have been
lost by the negligence of the defendant. The contract
laid in the declaration was, that the defendant was law-
fully possessed of a certain booking-office, and that the
plaintiff delivered to him a certain box to be taken care of,
and forwarded to a certain person to whom it was directed.
To this the defendant pleaded first, the general issue, se-
condly, that he did take care of the box, and that it was
not lost by negligence. It was proved on the trial that the
box was delivered by the plaintiff, and also that it never
reached Mr. Jeffreys. Counsel for the defendant submitted
that the plaintiffs ought to be nonsuited, because, first there
was no evidence to shew that the property was the
plaintiffs, inasmuch as the clothes being made for Mr.
Jeffrey's, and being sent on their journey to him, the property
passed to him ; and secondly, it was objected that no evi-
dence had been given of the negligence of the defendant.
Now, with regard to the first question, he (Mr. Platt)
maintained that the pleadings did not raise the question of
property, because, according to the new rules, the plea of
non-assumpsit merely denies the contract, without putting
in issue the property which is the subject of the contract,
and therefore it appeared to him that the Learned Judge was
mistaken, and that the question of property did not arise.
Mr. Justice COLERIDGE—Was there anything stated in
the declaration as to whose property the box was?
Mr. PLATT—It states " a certain box of the plaintiff's."
Mr. Justice COLERIDGE—Is not that one of the facts in
issue ?

Lord DENMAN—The contract is laid to be with the
plaintiff.
Mr. Justice PATTESON—Is the ground of nonsuit that
the contract was with the consignee, Jeffreys, and not with
the plaintiff?
Mr. PLATT—Yes, my Lord ; but I contend that the
delivery does not begin until the box has left the booking-
office. So long as it remains in the booking-office it is the
property of the tailor, and until the goods are delivered to
the carrier the delivery to the consignee does not com-
mence. The Learned Counsel having cited some autho-
rities, submitted, first, that the question of property did
not arise ; and, secondly, if it d:d, that the property had
not passed from the plaintiff, and that the evidence with
regard to the breach was sufficient for a Jury to infer that
the defendant had not performed his part of the contract. •
Mr. Justice PATTESON would give no opinion upon the
first point, because he thought the nonsuit was right on
the second, that there was no evidence to prove negligence
on the part of the defendant. It must be borne in mind
that the defendant was not a carrier, but a booking-office
keeper, and his contract was to take care of the box, in
order to be forwarded by some carrier ; and in order to
prove a breach of contract it was necessary to show that
the box had been lost or taken away while in the booking-
ing-office, and before its delivery to a carrier. The only
evidence was, that it had not been delivered to the con-
signee, and that was very good evidence of a breach of con-
tract on the part of the carrier, but not as against the book-
ing-office keeper. There should have been some evidence
of non-delivery to the carrier by the defendant, and that
not having been done, it appeared to him that the nonsuit
❑pon the second point was quite right.
The other Judges expressed themselves of the same opi-
nion.—Rule refused.
KEMPENEEES V. HOLDING.
Mr. PLATT moved in this case for a rule to show cause
why the verdict for the plaintiff should not be set aside and
a new trial had, on the ground of misdirection by the
Learned Judge. It was a❑ action on a bill of exchange..l
tried before Lord Denman, at the sittings after last term.
Ti.e hill was drawn for a sum of 200/, by Messrs Deliance,
Clarke, and Co., of Brussels, accepted by the defendant,
and endorsed by Deliance and Co. to the plaintiff. The
defendant pleaded first, that he had not accepted the bill,
and secondly that Deliance and Co. had not endorsed the
bill. It appeared on the trial that the defendant lived,
somewhere in the Edgware-road, and the bill which was
dated the 30th July, 1835, being on plain paper without
a stamp. He, (Mr. Platt) had objected that it ought to
have been proved to have been drawn in foreign parts, or
to have existed in its unaccepted state in foreign parts to
entitle the plaintiff to recover. When that objection was
made, it was attempted to supply that defect, and a wit-
ness was called who proved that he saw Clarke, one of the
firm, at Antwerp on the 31st July, the day after the bill
was dated—that he also saw the bill, but whether it was
then accepted or not he could not say. Now if the bill
was seen accepted at Antwerp on the 31st January, the
drawer then residing in London, it appeared to him quite
clear that the bill must have been drawn in England. The
Learned Judge thought that the bill bearing the accep-
tance of the defendant, stating that it was drawn at Brus-
sels, bore on the face of it verity, unless that could be
impugned by evidence on the part of the defendant.
He (Mr. Platt) would submit that all the circumstances
of the case shelved that some evidence ought to have been
given to prove that the bill had been made abroad, or
had existed abroad in an unaccepted state.
Lord DENMAN—There was a letter of the defendant's
to Mr. Clarke read as follows :—" I will accept the 2001.
bill on its arrival, knowing you are out of England."
Mr. Justice PATTESON could see no difficulty in the pre-
sent case, the bill having been seen abroad in the hands of
the drawer at Brussels the day :Stec it bore date. It would
be a very dangerous thing indeed if all foreign bills were
questioned in that manner, and that it was required to be
proved that they existed in an unaccepted state abroad, for
instance in India or any other distant place. He saw no
ground for disturbing the verdict.—Rule refused.