The Sun.
London, England, 1847-05-14 00:00:00

RIDAY MORNING, MAY 14, 1847.

COURT OF COMMON PLEAS, May 12.
Sittings at Nisi Prius, before Mr. Justice COLTMAN and
Common Juries.)
BARNES V. WARD.

Mr. M. Chambers, Q.C., Mr. H. Hill, and Mr. Farrer ap
peered for the plaintiff; and Mr. Sergeant Byles and Mr.
Ogle for the defendant.
This was an action brought under the recent statute, the
th and 10th Victoria, c. 93, for enabling compensation to
oe given to the families of persons killed by accident. It
appeared from the evidence of the witnesses called that the
plaintiff fills a very humble condition of life, and that his
wife, Jane Barnes, was a charwoman, going out to char and
wash, and able to earn from 2s. to 3s. a day by her labour.
The plaintiff and his wife had three children, the eldest a
boy of 14 years of age, who was in service and able to earn
a little towards his own support, and two girls of the respec-
tive ages of 10 and 7 years, who were at home under the care
of the plaintiff and his wife. One evening in October last
the plaintiff's wife, her sister, and the two children went to the
Paddington railway station to wait for a niece, whom they
expected, and whilst waiting had some refreshment in the
shape of a quartern of gin and a glass of ale, which was
shared amongst the four, the value of which was Bd. On
their way home from the station with the niece they went
along a newly-made street, called Victoria. grove-terrace,
communicating between Bayswater-road and Moscow road.
This street was unlit, and the houses in it unfinished, but
some evidence was given that the road had been used
as a publfc pathway for twenty-five years. When
near the house No. 9 in the terrace, according to
the evidence of the sister of the plaintiff's wife, the
❑iece dropped her cuff, and she turned round to assist her to
look for it, and on turning again the plaintiff's wife was
nowhere to be seen, and they eventually found that she had
fallen down an unguarded area before the house No. 9, be-
longing to the defendant. On being taken out, it was found
that she was dead. A post mortem examination did not lead
to the inference that she was intoxicated at the time. The
area had been boarded up a few weeks befbre, but was then
left wholly unguarded. The present action was brought
under the above. named statute for damages to the plaintiff
and his children, for the loss he had sustained by the death
of his wife, owing to the negligence of the defendant in leav-
ing open and unguarded this hole near a public footway.
On the part of the defendant, Mr. Sergeant BYLIN took
several technical objections to the form of the declaration,
which, after argument, were amended. He also contended
that the defendant had a right to dig holes in his own land.
and that he was not bound to fence them round to protect
the public, but that this duty fell upon the owners of the
public or private footway. He quored " Trawrer v. Chad-
wick," 6 Bing. N.C., p. I, in support of his argument, and
"Rapson v. Cubitt," 9 M. and W.
Mr. CHAMBERS, in reply, relied upon " Quarmur v. Bur-
nett," 6 M. and W., and "Burgess is. Gray," 1 C. 8., p.
578, and contended that it was the duty of a person digging
holes near a public footway to guard them.
Mr. Justice COLTMAN said he was under considerable
doubt as to the point, but should direct the jury that the
plaintiff was bound to erect a fence if the area was abutting
upon or reasonably near a public footway.
Mr. Sergeant BYLZS then addressed the jury for the de-
fendant. The defendant. he said, deplored the accident as
much as any one; but the jury must give the plaintiff justice,
and not vengeance. He then contended that the road was
a mere private or occupation road, up which the plaintiff's
wife had no business to go, and that the accident was there-
fore not the defendant's fault, and that the defendant would
not therefore be liable; that the woman had been drink-
ing, and her death was the result of her own state and neg-
ligence.

—His Lowasmr, in summing up, directed the jury to consi-
der whether or no there was a public footway near these
houses, or whether or no the road was a mere occupation
one. Also whether the area abutted upon the footway or
was so near to it as to make it dangerous, if unprotected, to
the public passing along the footway; and whether the
negligence of the plaintiff's wife led to the accident.
They would then consider what da:nages they would find if
they found for the plaintiff on these points, and what rea-
sonable compensation should be given to the plaintiff for
the loss of his wife, who contributed towards the support of
himself and family. They would also say what portion of
the damages should be awarded to the husband, and what to
the children.

The jury, after a short absence, found a verdict for the
plaintiff—Damages, 300/. They found that there was a
public footway abutting the area. The damages they di-
vided-1001. to be given to the plaintiff, 751. each to his two
daughters, and 501. to the boy. The jury also expressed a
wish that the money given to the children should be secured
to them.

His LORDSHIP—We will consider how that can be done.
The Act does not provide any means for that, in which it
was defective.

Leave was then given to Mr. Sergeant Byles to move for a
new trial on the objections he had taken, which were overruled
by the Court.

PALACE COURT, May 13.
(Before Mr. BRENT.)
This morning Mr. Best was sworn in as one of the four
counsel of the Palace Court, in the room of Mr. Beaden,
who has been appointed a magistrate at the Hammersmith
Police-court.

BLOOMSBURY COUNTY COURT, May 12.
(Before EDWARD Dunois, Esq.)
V. CLONE.
The plaintiff in this case, a general draper carrying on
business on " the
the
system, sought to recover the sum
of 12/. 19s. 11d_, e value of various articles of dress alleged
to have been sold to the wife of the defendant in the early
part of the year 1842.
The defendant denied all knowledge of the debt. Whe
he
ther
or not his wife might have contracted it in his absence
could not say, but he had no reason to believe that she had
ever received the articles alluded to.
Richard Adams, who attended for the plaintiff, stated that
he was a collector to Mr. Simpson. About five years ago a
person representing herself to be the wife of the defendant
called upon the plaintiff, and requested him to send various
shawls, gowns, &C., amounting to 12/. 9s. 111 The goods
were left at the residence of the defendant by the witness
and the wife agreed topay the sum in weekly instalments.
Mr. Dvesois—What, Sir I Do you mean to say that your
employer supplies goods to the value named without the
slightest security for payment ? Witness—No, Sir. We
put their names in a book, and then make inquiries as to
their character.
Mr. Dooois—And, it appears, leave the goods without
regarding the result of the investigation. is liiit
present ? Defendant—No, Sir. She has been dead Clone
of twelve months. upward,
caonutld proveanda
The plaintiff stated that if the case could be adjourned, he
would be enabled to bring forward a witness who
that the debt had been admitted by the defendant
time appointed for payment about three years since.
The proceedings were accordingly adjourned.

CENTRAL
OL C
DRIMINAL COURT.
COURT.
(Before Baron ALDERSON.)
•
PRACTISING AS AN APOTHECARY 'WITHOUT A LICENSE...—
, 3Tc/tad Sweetnam was placed at the bar, charged with
having practised the business of an apothecary, at No. 50,
John-street, Clerkenwell, without being duly licensed.
The prisoner pleaded guilty.
Mr. BALLANTYNE, who appeared for the prisoner, stated
that the present proceedings were instituted against the pri-
soner by the Apothecaries' Company, who had, no doubt, a
right to adopt that course, but there was no imputation on
the prisoner of having practised his business immorally.
Baron ALDERSON—And I hope not unskilfully.
Mr. BALLANTYNE—There is not the slightest imputation
of that kind.
Mr. CLARKSON, who attended for the Apothecaries' Com-
pany, stated that the present was the first prosecution in-
stituted by tho company, who felt bound to protect themselves.
Mr. BALLANTYNE stated that his client bad gone through
the routine of qualification to practise as an apothecary,
and would have obtained hie license but for pecuniary aim'

-Dundee and Arbroatb, 421-Ditto, New, No. 1, 301.-
Ditto, New, No. 2, 301.-Ditto, New, No. 8, 44 7s. 6d.
-Dundee and Northern Junction, 1/. 10s.-Dundee and
Perth, 301. 155.-Ditto, New, 12/. -Ditto, Quarters, 2/. 12s.
-East of Fife, 21.105.-East Lothian Central, 11. I9s. 6d.-
Edinburgh and Bathgate, 61. 17s. 6d.-Edinburgh and Glas-
gow, 701.-Ditto, Halves, 22/. 55.-Ditto, Quarters, 17/.
10s.-Edinburgh, Leith, and Granton, 18/.-Ditto, Prefer-
ence, 20/. 10s.-Ditto, New, 2/. 7s. 6d.-Ditto, Quarters,
115.-Edinburgh and Northern, 171. 55.-Ditto, New, 31.
-Ditto, Newport, 61. 17s. 6d.-Ditto, ditto, New, IL 17s.
6d.-Edinburgh and Perth (New Co.), 1/. 18s.-Ditto,
Halves 1 ls. 6d.-Glasgow and Ayrshire, 1181-Ditto, New
Stock, 351.10x.-Ditto, Halves, No. 1, 81. 155.-Ditto, Halves,
No. 2, 6135.-Glasgow, Dumfries, and Carlisle, 51. 2s. 6d.
-Glasgow and Garnkirk, 391.-Glasgow General Terminus,
12/. 58.-Glasgow and Greenock, 16/-Ditto, Halves, 8/. 15s.
-Ditto, Preference, 8/.--Glasgow, Kilmarnock, and Ardros-
san, 4/. 10s.-Great North of Scotland, 21.-Great Northern
(late Direct Northern), 21. 9s. 6d.-Ditto (late London and
York), 21-Newcastle and Berwick, 241.15 x-North Bri-
tish, 30/. 155.-Ditto, Halves, 141.-Ditto, Quarters, 4/. 2s.
-Ditto, New Quarters (scrip), 19s. 9d.-Ditto, Thirds, 21.
10s.-Ditto, Fifths, 6/. 155.-Scottish Central, 23/. 12s. 6d.
-Scottish Grand Junction, IN.-Scottish Midland, 19/ 10s. - Shrewsbury and Hereford, 10s.-Shrewsbury, Oswestry, and
Chester, 10/.-Ditto, New, 1/ Is. 6d.-Stirling and Dun-
fermline, 3/. 55.-Stirling and Midland, 2/. 155.-Wishaw
and Coltness, 49/. U.-York and Newcastle, 34110x.-Ditto,
New, 141. IN.-Ditto, Preference, 6/. 10s.-Direct Bombay
and Madras, 2s. 6d.-East Indian, 2s. 6d.-Great North of
.India, 35.--Great Southern of Madras, 25.-Madras, Nellore,
and Arcot, Is. 6d.

ales AY .
STOCK EXCHANGE.—ThSGare—Caledonian, New, :38s.
6d.— Dundee and Perth, Quarters, 505.—East Lothian Cen-
tral, 395. 6d.—Edinburgh and Glasgow, 701.—Edinburgh
and Perth (New Co.), 38s. 6d.—Glasgow, Dumfries, and
Carlisle, s%—Kilmarnock and Ayr Direct, 233.—Manches-
ter and Southampton, 95.6d.—North British, Thirds, 495. 9d.

LAW INTELLIGENCE.
COURT OF QUEEN'S BENCH, May 13.
(Sittings in London, before Mr. Justice ERLE and a Common
Jury.)
"THE SHIP ON FIRE 4—RUSSRLL I'. SMITH.
This was an action brought under the Copyright Act to
recover from the defendant certain penalties for infringement
of the music and melody of a song, of which the plaintiff was
the author and composer. The defendant pleaded the gene-
ral issue.

Mr. Cooke and another Learned Gentleman appeared for
the plaintiff; and Mr. Watson, Q.C., for the defendant.
From the statement of the Learned Counsel, and the evi-
dence of Mr. West, Sir H. Bishop, Mr. Purday, and others,
it appeared that Mr. Henry Russell, amongst other songs, &c.,
wrote and set to music the well-known song, entitled " The
Ship on Fire," which he sang with great applause at the
various concerts which he attended. In the month of De-
cember, 1845, the defendant, who also is in the habit of giv-
ing musical entertainments, had one at Crosby Hall,
a place which is licensed for musical entertain-
ments, and, amongst other melodies, sang " The
Ship on Fire." This coming to the knowledge of the
plaintiff, soma of his friends went to Crosby Hall, and they
there heard the defendant sing the above song, using the
same words and music, and so great was the imitation as to
render it impossible to discover the difference between the
singing of the plaintiff and defendant. As the composition
was original, an injunction had been obtained to stop the
defendant's singing the piece until a jury had decided whether
the composition was original or not. Had the defendant
applied for leave and license to sing the song, it would have
been granted ; but no such application had been made.
The several witnesses in their cross-examination declared
that the music was quite original, and was not a copy or
imitation of anything known in the musical world.
Mr. Warsox addressed the jury for the defence, and said
that unless he could satisfy them from the plaintiff's wit.
nesses that the music was original, he was afraid he must
fail to obtain a verdict. Certainly there was a song called
" Emelie," which had some bars of the same music, and
unless the bars in " The Ship on Fire" were copied from that,
he was afraid he must submit to the verdict.
Mr. Justice ERLE observed that the various composers
who had been called declared the music to be original, when
the jury found a verdict for the plaintiff.
By this verdict no person can sing the song without the
leave and license of the plaintiff.

/ilies in which he NI as involved, but that he would now
e so.
The prisoner was bound in security of 200/. himself, and
two securities of 50/. each, to appear and receive judgment,
should it be the intention of the Apothecaries' Company to
persevere in a course, which it was understood they would
not adopt if the prisoner took out his license, or discontinued
practising, if he did not obtain such qualification.
Nicholas Kerp, Alfred Wilbream, and Joseph Alexander,
who were severally convicted yesterday, the two former of
forgery, and the latter of larceny, arising out of the same
transaction, were brought up yesterday for judgment.
Baron ALDERSON—I have ordered you all to be brought
up together, because I am perfectly satisfied that you were
all engaged in the same occurrence. You, Kerp,' and yoge
Wilbream, were found guilty of committing forgery, but at
the same time I believe you are only instruments of more
artful persons than yourselves, a band who are too success-
fully pillaging London. My practice since the abolition of
the capital punishment for your offence has been to laid
the severest punishment that the law allows, to protect the
public. The sentence of the Court is that each of you be sen-
tenced to fifteen years' transportation. You, Alexander,
have been convicted of larceny only; your sentence cannot
exceed, but must extend to, transportation. You are sen-
tenced to seven years' transportation.

s