The Sun.
London, England, 1846-04-20 00:00:00

LAW INTELLIGEN CE
COURT OF EXCHEQUER, April 18.
(Sittings in Banco.)
WHALLEY C. DAVISON'.
Mr. BAINES in this case moved, on the part of the plaintiff,
for a rule nisi, in order that the verdict which had been ob-
tained at the late assizes at York, before Mr. Justice Cole-
ridge, should be set aside, and entered for plaintiff, with such
damages as the Court might allow. The action was one for
the recovery of the amount of shares in the Leeds and Thirsk
Railway, which had been bargained for and sold by the
plaintiff to defendant. The only plea was non-assnmpsit.
The defence set up by the defendant at the trial was, that
he was only acting as an agent, that the shares were not
purchased on his own account, and that therefore he 7-as
not liable. On the 27th of September last the applica-
itnionthewaLsoemdeadeeedby ndThirsdekfeßaailnwtayfofrorontheehueonodorunedt
of
fatrhees
15th October following. On the 2d October following the
receipt of the note the plaintiff wrote a letter to defendant,
to know who the person was for whom the shares were.
The defendant, in reply to that, declined to give the name of
the party who had instructed him to give the order, but said
he would take the tisk upon himself, and gave the name of
his father as the purchaser, and engaged to pay the cost of
the transfer. Another letter was written by plaintiff on the
11th October, demanding the name of the purchaser. To
that letter no answer whatever was returned. The 15th of
October came, the day on which the purchase was to be
completed, but it was not till ten days after, on the 25th
October, that the actual purchaser was given, when the de-
fendant gave the name of Frederick Tuttall. On inquiring
of Mr. Tuttall, the plaintiff ascertained that the defendant
had sent a note to Mr. Tuttall very different from the sold
note to plaintiffs. The 15th of October was named as the
day for the account with plaintiff, but no time at all was
specified in the note by defendant to Mr. Tuttall. On the
11th of November a witness was called at the trial, wile
proved that he went along with plaintiff to defendant, when
the latter offered to pay for the shares of plaintiff. He then
left the shares with him, which the plaintiff did not think
proper to do. Under these circumstances the Learned
Counsel submitted that the defendant had made him•
self liable for the shares; first, because he refused
to give the name of the actual buyer, though repeatedly re-
quired to do so. In proof of which he quoted Justice Story
on agency, sections 267 and 288, where it is stated distinctly
that where the agent refuses to disclose the name of the
principal for whom he professes to act, he has a right to be
treated as the principal himself. The present case was
exactly analagous, as the defendant refused to give the name
ofthe principal, though repeatedly called upon to do so ; and
secondly, by his letter of the 2d of October he offered to
take the responsibility on himself, and did not give any
name till ten days afterwards, on the 15th of October, the
day on which the account was to be finally settled, and when
plaintiff could have no claim whatever on Tuttall. Under
these circumstances, he submitted that the Court could have
no objection to his motion.
Rule granted.
The remainder of the day was occupied in hearing motions.
(Sittings at Nisi Prius, before Mr. Baron ALDERSON
and Common Juries.)
WOODROFFE v. MARNHAM.
This was an action of trespass to recover compensation
in damages for false imprisonment. The defendant put
several pleas on the record.
Mr. Jarvis, with whom was Mr. Noggins, conducted
the case for the plaintiff, and Mr. Humfrey and Mr. Gray
appeared for the defendant.
Mr. JERVIS, in stating the case, said that this was an
action brought by the plaintiff, who carried on the busi-
ness of clothier and hatter, whilst the defendant, who
had been extensively engaged in the coal trade, was a
retired gentleman of fortune. It would appear that the
plaintiff had been a debtor of the defendant, and
that there was the small amount of about 11. 12s.
remaining unpaid two years since, when the latter
sued him in the County Court in Kingsgate-street,
Holborn, for debt and costs, together making
21. ls. 71d. Upon the plaintiff appearing at that
Court, an arrangement was made by which the demand
was to be liquidated by instalments , These payments
were duly made until the total had been reduced to 18s.
30, which ought strictly to have been paid off by the
10th May, 1844. That not having been done, on the
28th of May an execution was issued from the Court for
IL Is. 7,11-de including the cost of the warrant, 3s. 4d.
This warrant was obtained at about eleven o'clock on
the morning of the 29th of May, but it happened that
at twenty minutes before nine o'clock of that day the
plaintiff called and paid the 19s. aid. to the sister of the
collector or agent of the defendant. The debt and all
the costs had thus been paid, but in consequence of the
warrant on the execution having been obtained, there
was the cost of that proceeding, 3s. 4d., still unsatisfied.
Accordingly the plaintiff was taken in execution on the
29th, the following day, for that sum. He was arrested
at Paddington, and was in custody about two hours,
when, by the advice of his solicitor, he paid the 3s. 4d. to
the officer under protest, whereupon he was released.
The jury, no doubt, had heard much about cheap law,
and the outcry which had been constantly raised for
the general establishment of county courts, as the
means by which that cheap law was to be obtained.
Let him beseech the jury, should they have any peti-
tion brought to them for their signature, to bear in
mind this case. And if there were an illustration of
the system which would more clearly bear out what
cheap law was, it would be found in Mr. Dickens's
" Pickwick," as practised in the office of Dobson and
Fogg. It was there related that a then poor, but honest
person, ground down to the lowest grade of poverty. had
been sued by that celebrated firm for a paltry sum.
After having parted with every article of necessary or
comfort of life, the poor debtor had gone to Dobson and
Fogg's office with just sufficient money to cover the ex-
isting demand, inclusive of costs, but upon arriving
there and tendering the amount, he was, after a few
minutes of delay and consideration, informed that de-
claration had been filed, and that there was a further
charge for costs in consequence. The poor debtor was
arrecutl, ..“(1 uaerwaids the head Ot the orrice wid thp
clerk to go and file the declaration, observing that the
imprisonment would do the debtor good, for he hat; been
a wild and extravagant man in his early days. Such
was one of the benefits of cheap law, in which branch of
the profession few if any men practised who were under
the least responsibility. Following up this rule of cheap
law practice, the agent of the defendant, althongh the
money had been paid into the hands of his sister, took
out execution for the 3s. 4d., and it was for the arrest
for that amount that compensation was now sought.
- Brown, the clerk of the County Court, was then
examined, and proved that the warrant had been taken
out on the 28th of May, and given to the officer for
execution on the following day ; but that it was most
probable not until eleven o'clock on the day that it had
been taken out, because upon a reference to the books,
he found out there had been twenty-five others taken
out before it.
By Mr. Baron ALDERSON-He saw that there had
been fifty-four other executions entered as taken out on
that day, and eighty-four in that week. In the course
of the year there had been about 5,000 taken cut, and
all for small sums. Some time since there had been an
alteration in the law, and then the business of the court
had very considerably diminished, bet upon a subse-
quent alteration, which renewed the power of arrest to
the court, it had again increased.
Mr. JERVIS-Yes, my Lord, that is so ; when the
power of arrest was abolished all the officers and clerks
of these courts received a handsome compensation, and
since another Bill has been brought in restoring the
power of arrest, and the system is now being carried
out more extensively than ever.
Examination by the Coiner resumed-Before the
warrant was sent out of the office some ore, as the re•
presentative of the defendant, the then plaintiff, carne,
and by his instructions he struck out the whole of the
debt and costs for which the present plaintiff was to be
taken in execution; thus leaving the amount of the claim
against him the cost of the warrant-namely, 3s. 4d.,
for
which sum he was eventually taken.
Mr. Baron ALDERSON-Then the truth is, that if the
warrant had not been taken out, there would have been
no debt against the plaintiff ? Witness-Just so, my
Lord.
Mr. Baron ALDERSON-That is what has struck me
upon your evidence. Gentlemen of the Jury, it is a
most serious thing that every man in London should be
liable to such a course of' proceeding as this.
Examination resumed-When the application was
made for the warrant, the debt remaining due was 11.
12s. 11d. ; then to that was added ss. 4d. for costs, and
also the 3s. 4d. for the warrant, making together the
sum of 21. Is. 74-d. Then he had struck off 1/. as having
been paid, leaving a balance of IL 12. lid. The plain-
tiff, however, before the execution of the warrant, paid
18s. 313., leaving the cost of the warrant, 3e. 4d., and
for that he was arrested.
Mr. Boron ALDERSON-Then it would be to the ad-
vantage of the officers of the Court that the warrant
should be taken out? Witness-No doubt it would, for
in truth they have nothing else to live upon.
Other witnesses were then called, who proved the
payment of the money at least twenty minutes before
nine o'clock on the morning on which the execution of
the warrant was applied for at eleven o'clock. It was
adtlielsfeoeoppdaryaoomytee,denatingoeicnrttolsesw- cross-examination don that the collector, the
nantw thet-tin; time h-i-S' obtaining‘s
the execution.
Steely, the officer, who had executed the warrant,
hstatedthe
d tht
Courtoal tdt whhhei
mesnutmthhae defendantwtwould
tihde
b weowould
lobjecteddreturned
make to
toanh
him
mapy the
pirfihe
his
3s.
stion4tdo.
state-
ment were correct. The plaintiff, however, took him to
his solicitors, by whose advice he paid the sum under
protest.
Mr. ITITMFREY, on behalf of the defendant, submitted
that this proceeding had arisen out of an nnintentional
mistake on the part of a man who had long since died,
who had acted as the agent of the defendant. The latter
had had no cognizance of any part of the proceedings.
The question of the jury would be, whether, at the time
that the agent had quitted his home, he had done so with
the intention of issuing the warrant of execution.
Mr. Baron ALDERSON said that the evidence went to
prove that be had not. .
nremarksgout 0 his isthLee arnedFrtinr.dffhatrd3lFLEdYeaag.:L;oedthweitehivailllatrhi arising
prac-
tice of these email courts, but then be was inclined to
be of opinion that neither his Learned Friend nor him-
self should complain of them, seeing that through one
of their mel-practices the present case, although 33. 4d.
was the real origin of the proceeding, had come into
their hands.-(Laughter.) They could net practice in
the small court, and therefore these evils arose; where-
upon, in order to correct them, the parties were com-
pelle d to appeal to that Court, and the personal aid of
his Learned Friend and himself.-(Renewed laughter.)
It was a matter for regret, however, that this action
should have been brought, because its cost, in any way,
must be fifty or sixty times the 3s. 4d. He could not
help regarding the case as an attorney's action.
Only see what a fine bill of costs there would be. It
would open thus:-" To advising you whether or not
you should pay the 3s. 4d., under protest, 6s. Bd.
There was double the sum in dispute."-(Laughter.)
Then that would be thus followed up-" To giving
deeper and longer consideration to the matter, and ad-
vising you to pay the 3s. 4d., under protest 13s. 4d."
There went a pound at once-(Continued laughter)-
" Upon hearing that you would rcceive back the money
if you applied at the County Court in a week, and on ,