The Sun.
London, England, 1823-12-25 00:00:00

LAW INT ELLIGENCE.

COURT OF KINGt BENCH, DEc. 24.
WEST V. STOREY.
This action mut brought to recover compensation for the in.
jury done to two boats of the plaintiff and their cargo, by the
negligent conduct of the servant of the defendant in navigating
a collier, his property.
It appeared in evidence, that on the night of the 15th Feb.
two boats of the plaintiff, laden with potatoes, were moored to a
buoy, in Galleon's Reach, in the river Thames, near Barking ;
no one was left in charge of them ; but a man named Charles
Rogers, who was working in a barge about a quarter of a mile
distant, was directed to keep an eye on the vessels. In the
morning, according to the testimony of this man and three
others, a collier, bearing down the river, was seen to strike
against the boats, and afterwards was itself driven on shore.—
Three of these witnesses went on board the vessel lying on the
shore, and then found her to be the Swift, of Newcastle, be.
longing to the plaintiff. They demanded the Captain's name,
winch he refused to give, asserting that he had done no wrong.
On examining the boats, the side of one was found to be stove
in ; and the cargo was greatly deteriorated in value.
In the part of the defendant, two grounds of defence were
relied on by Mr. SCARLETT—first, that the accident arose from
the misconduct of the plaintiff himself, who ought not to have
moored his boats in the middle of the river, without leaving
some one to direct them ; second, that the damage was not oc-
casioned by the defendant's collier; but either by stress of
weather during the night, or by the contact by some other
vessel. To sustain this case, the Master of the Swift, the
mate, and two of the apprentices were called, who represented
that a great deal of rain had fallen during the night, that there
was a heavy surf, and that the boats were nearly full of water ;
and who all swore positively that the Swift passed the boats
ten feet off, and, of course, never touched them. They ad-
mitted, however, that the collier was carrying her anchor a
cockbill, contrary to the laws of the river.
• The LOUD CHIEF JUSTICE, with reference to the first
ground of defence, observed that the plaintiff had certainly
acted improvidently in leaving his boats in the middle of the
river, without any one to protect them ; and if in the middle
of the night a vessel had come on them, without warning, the
owners of such vessel would have been answerable for no
damage which they might occasion. But if in broad day.
light, the defendant's servants drove his vessel against these
boats, when they might have avoided them, he would be liable,
notwithstanding the negligence of the plaintiff: If, therefore,
the Jury thought that the Swift struck the boats, they would
find a verdict for the plaintiff; if they thought otherwise, for
the defendant.

The Jury almost immediately found a verdict for the plain-
tiff, damages 19/.

WILKINSON V. LAHR AND HANN.
This was an action against the defendants, for negligence in
their character as attormes for plaintiff; and the declaration, in
addition to the special counts, contained a count for mousy had
and received to the plaintiff's use.
It appeared that Mr. Wilkinson authorized Messrs. Lamb
and Mann to see a person, named Raine, on a bill of exchange
for 1,6551. payable sixty ays after sight. An affidavit of debt
was sworn in the King's Bench, and Mr. Rainc arrested • but
a rule was afterwards obtained to show cause why he should
not be discharged out of custody, on filing common bail, which
was eventually made absolute, on the ground that the affidavit
was defective. The error was, that though the deponent stated
that the defendant was indebted to the plaintiff on the bill, he
did not proceed to allege that the bill was due; which has been
holden a fatal objection in the King's Bench, though treated as
immaterial in the Common Pleas. The action was afterwards
discontinued, but it appeared that before it could have been
brought to trial, Mr. Maine became a bankrupt.
The LORD CHIEF-JUSTICE intimated an opinion, that the
action could not be supported, as it did not appear that the
plaintiff had sustained any damage. Had the action proceeded
to trial, he would only have increased his costs, and could
never recover his debt. _ _ _

Mr. SCARLETT, for the plaintiff, then confined his claim to
the count for money had and received, under which he contend.
ed that he was entitled to recover the sum of 21. lils. Gd., ac-
tually paid to the defendants for this very business, which had,
by their negligence, bean rendered useless.
111 r. MannYAT, for the defendants, contended that they
were not liable to refund this sum, because they had been guilty
of no negligence whatever. If they had erred, they erred with
the whole Common Pleas ; but, in truth, the error was not
theirs, for the omission arose, in consequence of Mr. Grant,
who was sent by Mr, Wilkinson to make the affidavit, object-
ing to swear that the bill was due, because, being payable after
sight, ho could not tell when it became to run. The Learned
Counsel adduced proof in support of this defence as he had
stated it.

Mr. SCATIUTT, in reply, contended that the defendants'
clerks, who it now appeared knew the_proper form, ought to
have allowed Mr. Grant to make the affidavit, but should have
applied to Mr. Wilkinson for farther instructions; especially as
a man who could not swear that the bill was due could not
swear that the defendant was indebted.

The LOAD Czar JUSTICE left the case to the Jury on
this question—whether it was gross negligence for an attorney
to allow a man to swear an affidavit in the incorrect form, on
his objecting to swear it in any other?
The Jury found a verdict for the plaintiff—Damages, 21.
16s. 6d.

'ROBINSON V. TATTERSALL.
Mr. F. POI.LOCIL stated that this action was brought for
money had and received by the defendant to the plaintiff's use,
to which the general issue was pleaded.
Mr. SCARLET'V stated the case on behalf of the plaintiff; a
gentleman of fortune, who sought to recover back a sum of be-
tween 701. and 801., which he had paid to Meisrs. Tattersall, the'
well-known horse-dealers, as the price of a horse. The horse in
question was sold on a warranty of soundness, and proved
nnsound; but the plaintiff sought to recover the money which
he had paid, not only on the failure of a warranty, but on the
ground of fraud. Some time before the sale, an advertisement
appeared in one of the newspapers, announcing that on a cer-
tam day, four horses, " the property of a nobleman," and " in
excellent condition, and fit for immediate use," would be sold
at Messrs. Tattersall's, by auction. The advertisement then
proceeded—" Lot 1, Lofty, a bay gelding"—the horse of which
Mr. Robinson was so unfortunate as to become the purchaser.—
" Lot 2, Highfiyer ; these horses have bees accustomed to go
together in curricles, and have been much admired for their
brilliant action." Mr. Robinson, wishing to purchase a pair
of horses to drive in a carriage, was attracted by this descrip-
tion, and determined to attend the sale. On inquiry at the
stables, he was referred to the coachman of Prince Esterhazy,
who represented the horses as the property of his master, and
confirmed the description given in the newspaper. Mr. Ro-
binson attended the sale, acid bade for the first horse Lofty,
which was • knocked down to him for 71 guineas. Highflyer
was next put up ; but here he found to his suprise, bid-
dings advance upon him, and .anxious to possess this horse,
without which the other was of little use to him, he actually
bade 175 guineas, but soon discovered the horse would not be
sold at all, for it was bought in for 200 guineas, He would
never have bought Lofty, had he not expected to have a fair
opportunity of purchasing. Highfiyer ; and found to his sur-
prise, that there was no intention of selling the pair, and that
the advertisement of Highfiyer was a mere trick to facilitate the
sale of Lofty. This horse had been described as " in excel-
lent condition, and fit for immediate use ;" and he might be
as fit for use at this time as at any other, just as a lawyer with-
out a voice might be puffed otFas in as good condition as ever
lie was in his life.—(A laugh.)—Mr. Robinson, then, had been
induced to part with his money under false expectations, and
had a right to recover it back in form of action.
John Bligh, servant of Mr. Robinson, said in consequence
of directions from his master, he went to. Tattersall's on Tues..
day, the 12th of August. There he saw Prince Esterhazy's
coachman, and inquired for the horses which were to be sold as
the horses of a nobleman. Ile saw four or five, among which
were two likely to suit his master, which were adverused as
being used to run together in harness. They were very well
matched ; he asked their age, and if they were, sound. The
coachman said they were sound ; one was six years old ;
the other nine. Nothing more passed then, but he returned
and informed his master. On the ftillowing.day the sale took
place. Mr. Robinson attended it, accompanied by Mr. Hart,
and arrived more than two hours before it began.
The Times newspaper, of Aug. 23, 1823, was then put in,
and an advertisement read, describing the two horses, Lofty
and Highflyer, as " the property of a nobleman," accustomed
to be driven together in curricles, remarkable for their brilliant
action, and fit for immediate use.
The witness, proceeded to state that " Lofty, lot 1," was
knocked down to Mr. Robinson for 71 guineas. Lot 2 was put
up, and he bade as high as 175 guineas; it was knocked down
at 200. The witness fetched away Lofty on the next day, and
found him lame in his foot as soon as he came on the stones.—
He took the animal first to the veterinary college., and again to
Tattersall's, and tendered him back. He never saw lot 2
afterwards. - There were no stones on. the ground where the
horse was exhibited to the public.- Mr. Robinson was then in
want of a pair of carriage-horses.
Oh cross-examination, the witness said, on the Monday be-
fore the sale, Prince Esterhazy's coachman said. to Mr. Robin-
son, that the horses could not be warranted. This .horse had
been visibly fired. Mr. Tattersall did not warrant him.
Mr. Montague Hut said, he accompanied Mr. Robinson to
Tattersall's on the morning of the sale. The horses were
shown by a stout person, since stated to be Prince Esterhazy's
coachman ; Mr. Robinton observed, that the horse had been
fired ; the 'Coachman replied, " It was very true, and he had
been fired before he came into the Prince's service ; that lie
had never been lame while in that service; that he had never

lost an hour's work, and the Prince was one of those who did
not spare his horses." The witness did not see the other holler
or wait for the sale.
Joseph Hetherington, clerk to the defendants, proved the
handwriting of Mr. Edmond Tattersall to a receipt forlat for
the price of a bay gelding and keep. Lot 2 was bought in fct,
the owner. It was not entered in the books as warranted souk'
~
The horses were sent to Tattersall's for sale, and they accoak ,tea
to Prince Esterhazy for the money. They were indeninthea
in this action by the Prince. The witness knew nothing about
the price at which Lot 2 was to be bought in for the owner,
Mr. Gu R V XY submitted that there wasno case to go to the:lMP
There was not only no warranty, but warranty was expresslYel:
eluded. On the other part of the case, the alleged repressaw
tion respecting the horses, the defendants were not bound by the
statements of Prince Esterhasy's coachman, supposing
to be false, of which there was not a tittle of evidence. Au
even if the action could be supported at all, its form was mia"
conceived ; for as the contract had never been repudiated, as
the horse had not been taken back, a special action should ISM
been brought, and not an action for money had and received to
the plaintiff's use.
SCARLETT and Mr. P. POLLOCK admitted that there
was no warranty, but contended that the plaintiff was end?ed
to recover on the ground of misrepresentation, and that the lb
of action was right. If the defendants allowed the coachinaute,, to come to their premises and exhibit the horses, theLwerltb
sponsible for the correctness of all his assertions. SuPlw", Nr.,
sale of this horse to be effected by deceit—and it was deg.!
Robinson would not have bought one horse,'without a resseit
able expectation of purchasing the other—then the contnietr.
fraudulent, and the money having been paid without consider'
whereandr.iso.t
ation, might be recovered back. Messrs. Tattersall hail
paid over the money before the demand was made, and tnew
tore, as stakeholders, they were bound to repay it. , toy-
This witness, Hetherington, being recalled with "e"
this last point, said, it was the practice of Messrs. Tatteres_.,
to keep money in their hands for three days after a sale; au"
then, if no objection was made, to pay it over. tospllt
The LORD CHIEF,JUSTICE held that Messrs. Tat „
Afe.erTeen:
hazy or his servants, and for the advertisement, Psi
,iligto
eeshpoadnsbieblene fmoraialle: tthheousgthatethmeeyn.ts made by ce k,;11..70,
authorized its insertion. The question for the Jury would
_7l
whether the sale of the horse Lofty was effected by trick
deceit.fendnn ts,lfwtihmeystitlbloruegtahitnietdwiatsin, ththeenirthe plaintiff would beg-
titled to recover the money which he had paid the
Mr. GunsrEY then addressed the Jury for the `4,-- which
Ile observed, that one part of the case, the walvlaxj, and
had been relied on in the opening, had altogeurerwiest have
that those who instructed Counsel to advsnee_m"
even of unsoundnessthe veterinary surgeon
known it was without foundation. There was r"-aa not been
called, and the lameneas might have arisen from some 'on ,or
accident; and there was even less ground for the al,,lsintla
fraud. By making Messrs. Tattersalls defendants, the r, were
prevented all explanation of the terms on which the Pw.-I,oftY
to be sold, and which he was assured were bona fide that 2101.
should not go under 70 guineas, nor Highflyer onaererict.
Under these circumstances, lie confidently expected their!, d
The LORD CHIEF JUSTICE directed the Jury, "„r,/eeti,
thought that the representations of Prince Esterhazi,s,c",:tbe
man were untrue, or that there was no intention of selling
horse for which 17.5 guineas were offered---if, in short, tLa
thought the sale was a transaction of trick or deceit, to
for the plaintiff: if they thought the sale bona fide, to find """
the defendant.
The Jury immediately found a verdict for the plaintiff.'
Damages, 741. Ils. nie sudden,