The Sun.
London, England, 1841-11-27 00:00:00

COURT OF QUEEN'S BENCH, Non 26.

The Court sat to-day in Banco, under the provisions
of Lord Denman's Act, and took cases from the new trial
paper.

CHAPMAN V. BECKINGTON.

This was an action for a breach of a covenant, tried
before Mr. Baron Rolfe, and in which a verdict was had
for the defendant upon all the breaches save one, and
that referred to monies received after the death of one
of the partners, and with leave to enter a nonsuit if that
Court should think fit.
Mr. WATSON now appeared to show cause against the
rule. It appeared that William and Edward Chapman
and Washington Potts entered into partnership as rope-
makers at Willington, in Northumberland, in the year
1832, and the partnership was to continue for a term of
11 years. By the terms of the copartnership deed it
was agreed that Washington Potts should be the acting
partner, and the defendant Beckington entered into a
bond, the conditions of which were, that Potts should,
during the time he acted as manager of the concern,
observe and keep all the covenants, provisos, clauses, and
agreements in such indenture or deed of copartnership.
He was also required to make and deliver at stated
periods a return of all the monies, &c., received by him,
on account of the copartnership. One of the partners,
William Chapman, having died, and the present action
being brought against the surety for alleged breaches of
the covenant in the deed, it was contended that one of
the partners having died, the defendant could not be
held responsible, the original partnership being at an
end. The Learned Judge having given the defendant
leave to enter a nonsuit, the question now for the consi-
deration of the Court was, whether the defendant was
liable for anything that occurred in regard to the
copartenership after the death of William, and
whether or not the deed or bond entered into by
the defondant was a continuing surety or not. He now
submitted to the Court that there was an objection to
the decision given by the Learned Baron upon the face
of the record, because the breaches having been proved,
the Learned Judge could not give the defendant leave to
enter a nonsuit.
Mr. CRESSWELL, for the defendant, submitted that his
Learned Friend having appeared at the trial for the
plaintiff; was a consenting party to the rule for a non-
suit, and could not now object to it. Indeed it appeared
to him a contempt of Court to do so.
Mr. WATSON said it was not for the plaintiff to point
out to the other party the proper course to pursue.
Lord DENMAN-But it was not for you to agree to
that decision unless you meant to abide by it.
Mr. CREsswELL—When the application was made to
the Judge to enter a nonsuit the other party was present.
Lord DENMAN thought they must take the question
upon the rule for a nonsuit as it had been submitted to
them.

Mr. WATSON said it was perfectly new to him that he
should be called upon to argue a question so brought be-
fore the Court, or that he should be responsible.
Lord DENMAN—But the Court have decided, Mr.
Watson, and it cannot be perfectly new to you now.
You were at the time for the plaintiff, and must be taken
to be a consenting party.
Mr. WATSON would contend, then, that the breaches
having been proved at the trial, the rule for a nonsuit
must be discharged. The bond was evidently a continu-
ing security, because it referred entirely to the copart-
nership deed, and that deed provided for the continuance
of the partnership for the full term of eleven years, even
in the event of the death of one or more of the partners.
The Learned Counsel referred to the case of the Globe
Insurance Company, and that of the bond entered into
by Baldwin, Cradock, and Joy, the publishers, to print
and publish the books of the University, and to pay all
moneys received on account thereof to the University. He
submitted that the decision in these cases was quite in
accordance with the proposition for which he was con-
tending, and that the rule ought to be discharged.
Mr. WARREN followed OR the same side.

Mr. CRESSWELL, for the defendant, would direct the
attention of the Court to the language of the deed and
the language of the bond, and submitted that the only
inference they could draw from it was, that the condi-
tions therein specified had been fulfilled, and that the
plaintiff must be nonsuited. The copartnership referred
to throughout the deed was clearly the copartnership
existing between the three individuals named therein ;
the moment one of these parties died, or assigned his
shares to another, the covenants and obligations in the
bond were at an end, and the defendant could no longer
be held responsible. Indeed, that was distinctly sti-
pulated, for, in the proviso, which set forth that, in the
event of the death of any one of the partners named
therein, the whole of the accounts of the partnership
should be made up, and the value of the property equally
divided among them. The other provisions evidently
referred to any subsequent co-partnership that might be
entered into, but for which the defendant could not be
in any way held liable. The deed certainly stipulated
that any of the partners might assign his shares on
giving notice, or to his son without notice ; but if that
condition were to apply to the defendant's bond, Potts
himself might go out, or the parties coming in might
agree that Potts should be no longer managing partner,
and in such case Potts could have no remedy against
the new partners, although it was attempted to be al-
leged, that in such a state of things, Mr. Becking-
ton's bond would still exist in full force against him.
The scope of the deed appeared to him, on a fair review
of its conditions, to extend to as long as the three part-
ners should continue together—till the expiration of
eleven years, if no other contingency put an end to it,
or till the death of •one of the partners, and no longer.
He submitted, therefore, that the rule for the nonsuit
must be made absolute.

The COURT said it would be necessary to look into the
pleadings before they pronounced their decision.

DOE DEN.--WYATT P. THE ST. HELEN'S RAILWAY
COMPANY.

This was an action upon a mortgage deed for the
sum of 40,0001, brought by the lessor of the plaintiff
against the St. Helen's and Runcorn Gap Railway Com-
pany, tried before Mr. Justice Wightman, at the last
Lancashire Assizes, and on which a verdict was had for
the plaintiff, with liberty to enter a nonsuit or to arrest
judgment if the Court should be of opinion that the action
was not maintainable.

Mr. BUSBY now appeared on behalf of the lessor of
the plaintiff to show cause why the rule should not be
set aside. The rule had been obtained on the ground
that the mortgagee was not entitled to recover possession
of the land of the Railway Company, and was not en-
titled under the mortgagee to maintain the action. The
case was one of very great importance, for although the
sum of money secured by the mortgage was only
70,000/.—(A laugh)—the form of that mortgage
was the one adopted by all the Railway Com-
panies, and in deciding the present case their
Lordships would decide whether the mortgagees
of all the railways in the country, comprehend..
ing a vast amount of property, could maintain actions
for ejectment, or whether they were to recover the pos-
session of the land of the railway in some other way.
The Act under which the Company was incorporated
was entitled the 11th Geo. IV., chap. 61, and by it they
were empowered to raise a sum of 120,0001., and to bor-
row a further sum of 30,0001. By another Act, the 4th
William IV., chap. 3, they were authorized to raise a
further sum of 40,0001. upon loan, with power to mort-
gage the land of the Company, for which purpose the two
questions which would arise would be, first, whether
under the terms of the Act of Parliament they were au-
thorized to demise the lands they possessed, and if the
Court should be of opinion that they had the power to
demise them, then the second question would be, whether,
by the form of deed, they had so demised it. By the
Act the Company were empowered, for the purpose of
raising the money on loan, to pledge the credit of the
Company, and to assign and charge all the property of
the Company, and the rates and tolls arising therefrom,
or any part thereof, as a security for the money so ad-
vanced, and by another, sect., the 59th, they were au-
thorized to sell any land which was not required for the
Purposes of the railway. Now, he submitted, that on
the construction of these two clauses the Company were
empowered by the Legislature to demise any portion of
the land or real estate of which they were possessed. The
form of deed to be used in these cases was set out in the
taking, and all the estate,
Act, and was as follows We assign the said under-
same ;" and it was clear that that included the legal
estate of the right, title, and interest, in the
jseecl t ac vo innegi
erde
eCfedorrmbeypdany in the land. The Learned Coun-
a toad theauthoritiesverdict
entered
nt e r e bearing e
submitting that the ruleuftgohreoaup must be set aside,
plaintiff.
the
ne
anon-suit
COURT, without hearing forai
the other side, were una-
nimously of opinion that
the
the deed were not sufficient to warrant given in the form of
given them by the Learned C arrant the construction
find that the Act of Parliamentougnsa el.
They could not
Company to demise their land, an-dvteh any power to the
by the words of the Act in determinineythmeust be guided
rights of par-
ties. The parties, however, advancing lone
these Companies were bound to take care irhuaPt upon loan to
good security for the money. Now the words of thye Actad
were " We demise the said undertaking ;" but if it was
intended to include land, that might have been very easily
done. What was meant by the word " undertaking" he
really could not understand. He could not find in them
any thing which did so improbable and so exceedingly
inconvenient a thing to the public, and to the known inte-
rests confided to the proprietors of railways as to deprive
them of the means of carrying on these undertakings by
totally parting with their property in the land, by which
they were enabled to carry them on for the convenience of
the public. were of
On these grounds theyopinion
that the rule for the nonsuit must be made absolute.

WATERS V. THE EARL OF THANET.
This was an action upon two bills of exchange, one for
6581. and the other for 4651., with interest, amounting in
the whole to 3,1301. The bills were drawn by the de-
fendant in the year 1802, accepted by one Richard Wil-
son, and endorsed to the plaintiff. On the trial before
Lord Denman an agreement was put in, drawn up in
February, 1803, to the effect, that " on condition
of Edward Waters (the plaintiff) having agreed
not to proceed against me for the recovery of
the amount of two bills of exchange (specifying them),
I do hereby ,debar myself from the future plea
of the Statute of Limitations • and I hereby promise to
pay them separately and conjointly, with the full amount
of legal interest, whenever my circumstances enable me
to do so." That agreement was signed by the defendant.

There was a plea denying the letter being in the de-
fendant's handwriting, and setting up the Statute of Li-
mitations. The Jury found a verdict for the plaintiff for
the amount claimed, and a rule for a nonsuit was subse-
quently obtained by the late Attorney-General.
The SOLICITOR-GENERAL now appeared to show cause
against the rule. It had been urged very strongly at the
trial that the agreement was not in the handwriting of
the noble defendant, but it was clear that the noble de-
fendant must have forgotten that he had entered into
such an agreement, because the handwriting was clearly
proved. It was shown that in 1832 the defendant
succeeded to the title of the Earl of Thatet, and was
then of ability to pay, but Mr. Waters, who
was out of the country, was not aware of it
till 1837, the defendant having sent no notice to him.
The actionfras brought in Nov. 1838, and then it was
said that the Statute of Limitatations had begun to run
from the time the defendant had succeeded to the title,
and that the plaintiff could not recover. Now he sub-
mitted that the agreement entered into between the par-
ties was a special one promising to pay the bills " when-
ever he was of ability to do so." The plaintiff proved
that he had applied to the defendant, and that he was of
ability to pay, and under these circumstances he could
not see how the plaintiff was not entitled to recover.
Mr. TRESIGER followed on the same side.
_ _

Mr. ERLE, on behalf of the defendant, submitted that
even if the agreement was a special one, the cause of
action arose at the time of ability, and the Statute of
Limitations then began to run, and six years haring
elapsed before the bringing of the action, it could not
now be maintained. He submitted further, that the
agreement was one upon which the plaintiff might have
proceeded at any time, without waiting for Lord
Thanet to be of ability. The moment the defendant
became of ability, then it was a regular agreement to
pay upon demand, but it did not entail upon him the
condition of apprising the plaintiff of the period when
he became of ability. The danger of the ground taken
by his Learned Friends in contending that the plaintiff
had a right of notice it was unnecessary for him to point
out. It was important, however, that such a notice
should have been stipulated for, if it was meant to rely
upon it. He thought it was extremely inconvenient to give
the other party the power of lying by for nearly half a
century, allowing interest to be heaped upon interest
upon a very large sum, and then, when the evidence as
to handwriting and other matters was extremely doubt-
ful, to come forward with the present claim. The
Learned Counsel, after a lengthened argument, con-
cluded by submitting that the verdict could not be main-
tained, and the rule for a nonsuit made absolute.

The COURT took time to consider its judgment.

BAIL COURT, Nov 26.
(Sittings after Term, before a Common Jury.)
HARLEY AND WIFE V. FftITCHLEY.

This was an action brought by the wife of a Mr. Har-
ley against the defendant to recover damages for false
imprisonment.
It appeared that late on the evening of the 16th April
last the plaintiff and her husband had gone into the Vic-
tory public-house in Oxford-street, kept by a Mr. Wil-
liams, for the purpose of getting something to drink, for
which she paid. That afterwards another person came in,
and had something to drink, in payment for which some
coin was given to the barman, who placed the change
by mistake near to Mrs. Harley. This change (four-
pence halfpenny) suddenly disappeared ; and the barman
accused the plaintiff with taking it. She denied it, a
row ensued, a policeman was sent for, and the barman
went to the Rose and Crown, a public house also be-
longing to Mr. Williams, in the neighbour-
hood, from whence he returned to the Victory,
and was shortly afterwards followed by the defendant,
who, according to the testimony of one of the witnesses,
gave the plaintiff in charge, while another of the plain-
tiff's witnesses thought that she had previously been given
in charge by the barman. She was taken to the station-
house, locked up for the night, and discharged the next
morning by the Magistrate. It was agreed on all hands,
however, that the defendant did not accompany her to
the station-house, and the plaintiff's counsel did not
produce the charge-sheet. When searched at the
station-house, a large sum of money was found on her.
For the defence it was contended that it was not Fritchley,
but Jenner, the barman, who had given the plaintiff into
custody. Jenner himself stated that such was the fact,
and the charge sheet was produced, which was signed by
Jenner, who swore that he had seen the plaintiff take
the 4id.
_ _

Mr. Justice PATTESON having gummed up the Jury re-
turned a verdict for the plaintiff—Damages, 101.
Mr. Platt and Mr. Thomas conducted the case for
the plaintiff, and Mr. Thesiger, Mr. Barstow, and Mr.
Chambers for the defendant.

COURT OF EXCHEQUE R, Nov. 26.
Lord ABINGER, with a Common Jury, took several
cases in the Court of Exchequer, but as they were unde-
fended, no point of interest was presented.
The other Barons sat in the Exchequer Chamber, and
proceeded with the cases in the special paper. The
arguments were purely technical.

COURT OF COMMON PLEAS, Nov. 26.
PERKYDIAN V. WENSLEY.
The plaintiff and defendants are both omnibus drivers,
and this action was brought to recover damages for in-
juries received from a fall occasioned by the defendant
having maliciously driven his carriage against the one
driven by the plaintiff. It appeared that for some time
before the collision took place there had been a violent
opposition between the two parties, which led to the course
of animosity and mutual annoyance usual amongst the
craft, in such states of their relations. On the two
vehicles being on the road from Fulham to town, the
plaintiff's omnibus had the lead so far as Brompton-
square ; when, having pulled up to take in a passen-
ger, he was passed by the defendant. The plaintiff's
witnesses stated that the defendant " kept dodging"
before the other to prevent him from getting on. He
crossed from time to time from one side of the road
to the other, effectually keeping the plaintiff behind, un-
til at length the latter was on the point of outmanceuvring
and had just succeeded in getting side by side, and was
on the point of gaining his former rank in advance, when
the defendant purposely drove his omnibus against that
of the plaintiff, and the latter was thrown off the box by
the concussion. It was shown that he was so much in-
jured, that it was necessary to take him immediately to
St. George's Hospital, where he lay in a bad state for a
considerable time. Some of the plaintiff's 'witnesses
stated that defendant behaved with great levity and coarse-
ness after the accident.

For the defendant, on the other hand, it was sworn,
by some of his passengers, that the conduct of the
plaintiff in furious driving, to pass before the defendant
after each stoppage, caused him to fall behind, occa-
sioned them considerable anxiety, and they ascribed
the accident altogether to the rashness of Perryman
himself. These persons said that to the best of their
belief, Wensley made no sharp turns, or dodges across
the road—that he kept in a straight line, and always
on the left-hand side of the road. They denied that
Wensley showed any levity or laughed. In answer
to Mr. Sergeant Bompas, one of them said, that " if
Wensley laughed on the left-hand side he could not
see him, for he sat on the right."—(Laughter.)
One witness (in direct contradiction of all the plain-
tiff's evidence) said that she saw Perryman " fall off the
box because he was drunk." She did not see any colli-
sion at all. The other witnesses for the defendant, sonic
of them passengers, and others passers by, stated that
he drove steadily, and kept his own side of the road ;
the accident, in their view, being altogether attributable
to the plaintiff's own conduct.

A somewhat expensive and handsome model of tho
Brompton-road, with the omnibuses running on it, was
produced in Court, and the carriages were moved about
upon it to show the various positions in which the colli-
sion was represented by the several witnesses to have
taken place. _

The Jury, after a short consultation, found a verdict for
he plaintiff, damages 151.

ADMIRALTY COURT, Nov. 25.

THE PRLNCE OF WALES AND THE HARMONY.-SALVAGE.
The two vessels proceeded against in this case were col-
liers, which an their voyage from the north to the south,
with cargoes of coals, owing to some thickness of the
weather, got upon the Whitby roack, early in a morn-
ing during the last summer. The wind was from the
N.E. (which would blow them, if it had been strong, fur-
ther upon the rock) • there was a swell at the time, and
the tide was at half-ebb. Some pilots came to their as-
sistance in boats, boarded the vessels, carried out anchors,
and by heaving thereon got the vessels off the rock and
into deep water. The value of She Prince of Wales was
1,2281., and the tender made to the eight men wko salved
her was 461. The value of the Harmony was 1,8001., and
the tender to eleven men was 601.
Dr. Addams and Dr. Robinson were for the salvors ;
the Queen's Advocate and Dr. Curteis for the owners.
Dr. Lusiamarox, under all the circumstances—the
value of the property, the situation of the vessels had
the weather become worse, and the skill and prompti-
tude of the salvors—increased the remuneration, by
awarding 1001. for the Harmony, and 751. for the Prince
of Wales.

SECONDARIES' COURT, Nov. 26.
THACKTRWAITE V. WESTERDALE.
This was an undefended action to recover the sum of
141. 75., for damage done to a gig, the property of the
plaintiff.
It appeared that the plaintiff was driving in his gig
on the 6th of August last, in Holborn, when the de-
fendant came up in his cart and drove against the plain-
tiff's gig, whereby the shaft was broken, and the gig
otherwise damaged.
The Jury returned a verdict of 111. 45., deducting, on
the direction of the Learned Secondary, the sum of 31.35.,
which was charged for the hire of a gig during the re-
pairs. This was not stated in the declaration, conse-
quently the plaintiff could not recover.

NOBLE V. .
This was an action to recoverDODSON
the sum of 2/. 6s. Bd. for
work done and performed, and goods sold and delivered.
The defendant pleaded first, that he was not indebted;
and secondly, that the debt was under 21., and the action
should therefore have been brought in the Court of Re-
quests. The plaintiff had supplied the defendant with a
number of castings of ornamental rails by contract. The
defendant conducted his case in person, and called wit-
nesses to prove that the rails were of very inferior mate-
rials. The Jury, however, returned a verdict for the
plaintiff for the full amount.
The case lasted till half-past three o'clock.
CRIM. CON.-MIEVELLE V. POLAI.
This was a writ of inquiry to assess the damages for
an alleged adulterous intercourse with the plaintiff's wife.
The damages were laid at 10,0001. The defendant was
a person in a high sphere of life, being Secretary to the
Prussian Embassy to this Court, and the defendant a
native of Switzerland, who resided in Wimpole-street,
Cavendish-square, and was well known on 'Change.
Mr.
Mr. Fitzroy Kelly, Q.C., with Mr. Austin and
Martin, appeared for the 1 in
-a
13—tiff, and Mr. Lee for the
defendant.
Miss Amelia Mievelle said she was sister to the plain-
tiff's wife. Remembered their marriage in 1830, when