The Sun.
London, England, 1846-03-23 00:00:00

WOOLMER AND OTHERS V. TOBY.

Mr. GREENWOOD ored the pleadings, and
Mr. CR.OWDER, Q. , stated the case. He said this was
an action brought by the plaintiffs against the defendant, to
recover damages for the breach of an agreement which the
defendant had entered into. The amount of damages was
1051., that being the sum according to the agreement be-
tween the parties the defendant had undertaken to pay to
the plaintiffs. The jury were all aware that when a bargain
was entered into between two persons, or two sets of persons,
it was to be kept, and if one broke the bargain, the law
would come in and oblige him to fulfil his engagement.
This action arose out of an agreement entered into with re-
ference to a railway company, and very likely many of the
jury had heard, among other projects in the autumn of last
year, there was a company called " the Direct Exeter and
Plymouth Railway Company." It was a line of railway
that was considered to be very favourable in all its parts—
it was an economical line—a direct line—and one expected
to be exceedingly serviceable to the county. Of that opinion
it would appear there was a very great number of persona who
were anxious to be connected with this Company, and to
have shares. Among others, Mr. J. Toby, the younger, who
he believed was an attorney of this city, was an applicant to
belong to this Company, and did apply to have shares in it,
which shares were afterwards allotted to him by the mana-
ging directors of this Company ; and when the shares were
allotted, he refused to pay the deposits; and this action was
brought, and the jury would be called upon by their verdict
to give the plaintiff's the amount of damages asked. The Com-
pany was provisionally registered (as it was called), under
the provisions of a particular Act of Parliament, and it was
always necessary, in these matters, that a few should be
selected as a committee, for the purpose of managing the
affairs of the concern ; and it appeared that on the 7th of
October, the persons who had been appointed to carry on
this company, selected out of their body seven gentlemen,
who were a committee of management. These seven gen-
tlemen were the plaintiffs upon the record. and they were,
Edward Woolmer, Esq. (late Mayor of Exeter), Lieut.-
Colonel Ellis, Major D'Urban, John Eyre Kingdon, Esq.,
B. Salter, Esq., W. H. Tanner, Esq., and S. S. Bastard,
Esq.; all these gentlemen were living in and about Exeter,
and were very fit to conduct this undertaking. On the 7th
of October the affairs of management were first entrusted
to these gentlemen Shortly afterwards it was found that
a great many applications for shares were made, the appli-
cants numbering 721 persons. The capital required was a
million, to be supplied b y 40,000 shares of 25/. each, deposit
21. 12s. 6d. on each share. At this time Mr. Toby sent this
letter :

TO THZ PROVISIONAL COIIIIITTEE OF THZ DIRECT EXETER

♦ND PLYMOUTH RAILWAY.

" I request you will allot me fifty shares of 25/. each in
the above railway ; and I undertake to accept the same, or
such number as you may allot me, subject to the regulations
of the Company, and to sign the necessary documents, and
to par, when required, the deposit of 2/. 12s. 6d. per share.'
Nothing could be more clear than the teruis in which the
defendent wrote to have shares allotted to him, and to pay
the required deposit of V. 12s. 6d. per share. No shares
were immediately allotted, because it was necessary to see in
what condition the Company were likely to be, and how the
shares could be proportioned. All these were matters for
consideration. This letter was sent on the 13th of October.
1845. At that time it appeared there was a meeting ; sad
it seemed from the great number of applicants that it would
be a very thriving concern, and in all probability the matter
be generally taken up. It was necessary there should be a
survey of the line; and engineers were appointed by a reso •
Wien of the committee on the 13th or 14th of October—the
engineers being Mr. Redman and another person—for the
purpose
of surveying the line. On this occasion also it was
necessary to have lawyers—always a necessary evil in such
cases—who must prepare all the various Parliamentary
contracts and other matters, and advertisements, in order
that the public might be apprised of the undertaking.
These persons were appointed ; and he believed all these
gentlemen, and all the other officers of the Company,
were persons of the highest respectability, and he
defied his Learned Friends (Sergeant Kinglake and Mr.
Montague Smith) to bring any proof of this being a bubble,
or of being only established for individual gain. It was a
bona
.fide Company, supposed to have an exceedingly good
line, which would be beneficial to the country. The soli-
citors were Messrs. Woollcombe and Square of Plymouth,
and Mr. Mond of Exeter. Of course, expenses were in-
curred; and the jury would remark that before any
engineers were employed, and before any expenses were
incurred, the gentlemen who acted as the provisional com-
mittee of management took care to be perfectly sure, by the
number of persons who applied for shares, there would be
plenty of funds to meet their engagements, because the
jury would know, now that railways bad been carried out
to so great an extent, all these things were attended with an
enormous expense. Those expenses must be paid ; and it
was on the faith of the people subscribing on making appli-
cation for shares, that the committee were induced to incur
these expenses. There did come some panic. The parti-
cular period of the panic he did not know, but it took place
during the latter end of last autumn, and had operated
daring the winter. But subsequently to the proceedings he
had narrated, on the 15th of December, the allotment was
made, and the defendant received a letter, which allotted to
him not the whole of the 50 shares, but 40 shares. The
letter was sent in the ordinary form. and was signed by Mr.
Farrant, the secretary ; and it informed Mr. Toby that the
deposit of 2/. 12s. 6d. on each share, must be paid on or
before the 20th of December then current The letter also
stated that the plans and sections had been deposited in order
to go to Parliament in the ensuing session. This was quite
true. This letter being sent, the Learned Counsel contended
that there was a distinct agreement and a complete bargain
entered into ;-36,000 shares were allotted, and the de-
fendant became bound to pay the deposits allotted to him.
Out of the number of shares allotted, very few persons
indeed paid any deposits, leaving the provisional com-
mittee, who had incurred these considerable expenses,
without the means of paying for them ; for he should tell
them that the expenses incurred amounted to upwards
of 6,0001.; but if the parties had paid their deposits, there
would have been ample funds, but without these payments
there were no funds whatever. Mr. Toby, jun., seemed to
have set himself against the Company ; the Learned Counsel
did not know whether he was at the head of this opposition
or not, but he was informed that there was a club or union
of all those persons who had not paid their deposits, and
they defended this action, and were determined to defeat, by
every means in their power, the claims of the provisional
committee, because to all these persons it was most important
that this action should fail. Everything which had been
done had shown that the gentlemen who had consented to
conduct the affairs of this Company without remuneration,
had been only anxious to do their duty to the public. A
circular was sent round to the allottees ; and this was
done with the best possible motive, in order that if the
project should not proceed further, they should obtain in
demnity for the expenses incurred. This circular was sent
round on the 31st of December to the defendant ; in this
it was stated that the committee of management had
uadertaken to pay 3s. on 200 shares each, and the provi-
sional committee 3s. on 100 shares each, and the allottees
were applied to fl pr 3s. on the shares allotted to them. To this
no reply was received. The Learned Counsel, in conclusion,
said, the pleas of the defendant amounted only to a denial
that any agreement was entered into ; on one of these pleas,
that assuming that an agreement was entered into, but re-
presenting that the defendant had been induced to make it
on account of fraud on the part of the plaintitls, the Learned
Counsel commented with much severity.
The letter of Mr. Toby applying for shares having been
put in, Mr. Granby Farrant, secretary to the Direct Exeter
and Plymouth company was examined, and proved some

of the facts detailed by Mr. Crowder. This witness was
subjected to a long cross-examination by Sergeant Kinglake,
and it appeared that he had not produced some prospectuses
which he had been suhpcenaed to bring with him ; and the
Learned Judge said if this was so, he might be proceeded
against. Witness stated that no Parliamentary contract or
scrip was prepared, as it would have added considerably to
the expenses.
Sergeant KINGLIKE objected that the committee of
management was a committee of management for the Com-
pany, and that there was no contract entered into by Mr.
Toby with the* committee. If there had been a contract, the
committee of management were not the parties to sue.

The JUDGE said 'lie would reserve the point.
Sergeant KINGLAKE then contended that there had been a
change in the provisional directors after the application,
and before the allotment had been made ; and that, there-
fore, there could be no contract between the defendant and
them. It was a different scheme now to what it was before.
He contended that there was evidence that the committee
of management itself was changed; and if that were over-
ruled, it would be sufficient that the provisional directors
were changed; and the defendant was only bound to take
shares in the Company as it was when he applied. He also
argued that Mr. Toby had applied to take shares in a scheme
of 40,000 shares, which meant that 40,000 shares should be
allotted. Here 40,000 had not been allotted, and the con-
dition on the part of the Cempany had not been carried
out; and the defendant was not hound to ply his deposit,
except in a scheme in which 40,000 shares had been allotted.
If the defendant had paid his deposit, and the whole shares
had not been allotted, he would be entitled, as in the case of

Hodgson against SpOttiswoode, to receive the whole back
without any deduction for expenses. He also took a techni-
cal objection to the declaration, on the ground that it set
out that the defendant had agreed to pay the deposit on the
20th cf December, whereas his letter of application stated
his readiness to do so when required.
The JUDGE was of opinion that this was the proper form
of averment under the circumstances. _ _ _

Sergeant KINGLAKE, in continuation, contended there
had been no allotment of shares, as shares could only exist
after the Act of Parliament had been obtained, whereas this

must be treated as an abandoned scheme, in which the
projectors could not recover a sixpence. He contended
that if the jury should be of ooinion the allotment was
properly made to the defendant, the damages should be N.,
the proportion of 3s. per share for the expenses, and not
105/. _ .

The JUDGE said he would reserve the points, and give
Sergeant Kinglake leave to move for a nonsuit in the court
above. _ _ _

_ .
Mr. Farrant was recalled, and it appeared that ➢ir.
Berkeley and Mr. Tombs withdrew from the provisional
committee between the periods of the application and the
allOtment, but no public notification was made of their with-
drawal.

Sergeant KINGLAKE then addressed the jury, and con-
tended that the allotment was not made within a reasonable
time after the application. He denied that any club had been
formed for the purpose of defending the case. He said it
was not impossible that if the shares had risen in the market
during the interval which had elapsed, Mr. Toby would
never have heard of any shares being allotted to him, and
that the provisional committee would have taken them all
themselves, and the profits would hare gone into their
pockets. But as it happened that a panic took p'ace, the
shares were only allotted after the scheme had been virtually
abandoned, in order to get the money for the expenses from

the pockets of the allottees.
Mr. CROWDER, in reply, said that the remarks of his
Learned Friend might as well have been spared, as the evi-
dence which bad been produced by his Learned Friend in the
cross-examination of Mr. Farrant, clearly proved that if
there eier was a genuine, honourable, and bona fide railway
scheme, it was the Direct Exeter and Plymouth Railway
Company. Every circumstance which had been elicited by
his Learned Friend proved this fact, and he had failed to find
any one poiut in which he could show misrepresentation or
collusion.
The JUDGE said it was impossible to call the interval be-
fore the allotment an unreasonable time. There were 40,000
shares to be allotted, and applications were received from 721
people. It was true that 40,000 shares had not been allotted,
but 36,46 G shares had, and the Company had taken nine
weeks about it. It seemed to him impossible they could have
got through it in less time.
The jury immediately found a verdict for the plaintiffs.
[This, we believe, is the first case that has been decided
on this very important point, and establishes the fact that all
persons who have applied for shares in a railway company
are liable for their deposits, or a proportionate contribution
towards the expenses.]

NORTHERN CIRCUIT.—York, March 19.

The last of the criminal cases was tried last night, and to-
day both of the Learned Judges have been engaged in the
trying of causes, a large amount of which still remain undis.
posed of.

(Before Mr. Justice COLERIDGE.)
NAYLOR V. ELLERTON.--SEDUCTION.

The plaintiff in this action is John Naylor, a stonemason,
residing at Merrick ; the defendant, Richard Ellerton, is a
farmer and owner of landed property, living at the same
place. The action was brought to recover compensation in
damages for the seduction, by the defendant, of the plaintiff's
daughter, Ellen Naylor.
The defendant had pleaded not guilty; and also a second
plea, that of leave and license from the plaintiff.
Mr. Dundas and Mr. Addison appeared as counsel for the
plaintiff ; Mr. Sergeant Wilkins and Mr. Bliss for the de-
fendant.

Mr. Dusums stated that the defendant, who lived in the
same neighbourhood as the plaintiff in this action, was a far-
mer, supposed to be of considerable property, and had thoueht
proper to seek the acquaintance of the plaintiff's daughter.
were plaintiff was in a station more humble, but his family
The people of respectability in character and conduct ; and
it would be shown that the plaintiff, during his acquaintance
with the daughter, had always represented that his object
was to marry her. He had repeatedly promised so to do ;
but he had not only broken that promise, but betrayed, and
subsequently deserted her. Ellen Naylor, the daugh-
ter of plaintiff, was now eighteen, and was only about
fourteen at the time the acquaintance commenced.
She had become pregnant in the summer of 1844,
and early in last year had a still-born child. That
child, she said, was the child of defendant. The defendant
had denied that he had debauched the child of the plaintiff.
But he had farther pleaded that which was singularly shock-
ing, for it was this, that lie bad leave and license of the girl's
father to do that of which the father by this action now
complained, that he had effected the ruin of the daughter
with her own father's connivance! If even that were the
fact, he (Mr. Dundas) would ask what kind of man must
this be who could defend the action by a plea containing
such an admission against himself?' He challenged the de-
fendant to support that plea by evidence, and would only beg
of the jury to attend to the proof which should appear before
them, to judge of the defendant's conduct and of his defence
as it might appear, and then to give those damages which
they should consider just in such a case.
The plaintiff's daughter, Ellen Naylor, now eighteen years
of age, was the principal witness examined. She stated that
her father was only a Journeyman in the trade of stonemason ' •
that he had one other child, a daughter, older than herself,
who had been out at service, and that she herself was now
eighteen years of age. The witness was dressed in a style
more than neat, for it might be called genteel, so that she
would not have been taken for the daughter of a journeyman
stonemason. She stated that the residence of her father at
Merrick was about seven miles from Richmond. They had
dwelt there two years and a half. They before lived at
Downham, three miles off, and at the latter place they were
tenants of a cottage belonging to the defendant, or his
mother, in which there were but two rooms, one up stairs
and one down. The defendant, while they were at Down-
ham, lived about half a mile from then, with his mother
and sister. She first got acquainted with the defendant at
Downham, and then she was only about fourteen years of
age. She considered him a gentleman of rank. He held a
farm of his own. He was about thirty-four or thirty-five
years of age. Half a year after she had come to live at
Downham, defendant came to visit at their house. He used
to come frequently, as often as four or five times in a week.
He was ]per suitor, and her father and mother knew it. He
always said he would marry her. He said, however, that he
had an uncle, an elderly man, Dr. Ellerton, who was a
clergyman, who had a great deal of money, and that he
wished not to marry until after his uncle's death. Plaintiff
had no servant but witness herself. Had a child in February,
1845, and defendant was the father of that child.
Upon cross-examination, the witness said she first became
acquainted with the defendant when on her way to the mar-
ket at Marsk. Defendant then "threw himself in her way,"
in a lane, accompanied her to the market, and back again.
They were acquainted for two years and a half before any
thing improper took place between them. That first took
place in the month of June, 1845, when she was going on
the North Sides from Merrick. It was in a wood ; but cannot
say what time of day. Thinks it was after dinner. De-
fendant took her into that wood. Witness has gone with
her mother into the same wood to pick sticks, but
never left her mother when so engaged to walk
away with the defendant for an improper purpose.
The same intimacy had taken place between her
and defendant in plaintiff's house. Her father and mother
were from home on every one of those occasions ; and her
sister was always at service, except for a fortnight. The
sister, when at home, slept with witness, and they both slept
in the same room with plaintiff and his wife. The defend-
ant's mother did give plaintiff notice to quit the cottage in
1844. Mr. Lodge called to give the notice; but he did not
state that Mrs. Ellerton did that from her son being " har-
boured" in their house. Witness has worked for defendant.
Has worked at hay-making, stone-picking, and hoeing tur-
nips. The boa now worn by her was given to her by Miss
Lambert, the daughter of the clergyman. Her bonnet she
had had three weeks, and her scarf a week, and her gown
was a new one. Believes that her aunt, the plaintiff's sister,
once spoke to witness's mother on the impropriety of the de-
fendant's visits. There was a Mrs. Matilda Wilson, another
relative of the plaintiff; but does not know that she remon-
strated against them. The defendant once came to the house
on horseback, and her mother held his horse for five or ten
minutes while he was within ; but she did not lead the horse
up and down ; and the plaintiff was inside the house all the
while that defendant remained, and in his company. In the
hay season of 1844 Joseph Jackson was at her uncle Wil-
son's, and witness was there also, but she does not remember
Jackson throwing her down in the hay-field and kissing her.
Defendant never sent plaintiff any present, except once, and
that was of a hare. Never gave witness anything but once.
He gave her a half- crown as a new year's gift. He had
bought her a new muslin de laine gown once. Witness goes
out to work in the fields, but not in winter. She gets from
Is. to le. 3d. per day.
Re-examined—About a year and a half ago defendant told
witness that if he and his mother should quarrel, be would
break his father's will, which was bad, and then marry her.
She believed what he said. She was 15 or 16 years of age
when she lay on her back as above-mentioned. They were
all then "larking" and playing. The Joseph Jackson spoken
of as being in the hay-field is a relation, brother to her aunt,
Mrs. Wilson.
Mr. John Cawsey, surgeon, stated that he attended plain-
tiff's daughter at the time of her confinement. His charge
for that attendance was one guinea, which had never yet
been paid.
Mr. Walter Harland, Mr. Robert Hutchinson, sons of
farmers in the neighbourhood, the latter of whom paving
4001. a year for his farm, and Mr. George Whitelock, of Oeb-
den-hall, all gave evidence to show that the defendant was a
person of considerable property. He held some land himself,
and let one farm besides of 100 acres, at 21. per acre. He had
declared, in the presence of Mr. Hutchinson, at Mr. White-
lock's, that ho intended to act "honourably" towards the
girl; and the latter gentleman having told him by way of
joke that Mr. Whitelock had taken a fancy to her himself,
he replied "he had better not, for we will follow law to the
utmost if he molests her." Subsequently, in addressing Mr.
Whitelock on the same topic, he said, " You had better not,
or I'll make it cost you four or five hundred pounds." .
The Rev. Mr. Lambert, curate of Merrick spoke to the
respectability and good character for decency of behaviour of
the plaintiff and his family. He knew nothing against the
girl before this occurrence on the score of modesty and pro-
priety. 'Witness had six daughters, but he knew nothing
about the boa having been given to the plaintiff's daughter.
On cross-examination, Mr. Lambert said that there were
reports two years back respecting the visits of defendant to
plaintiff's daughter. Never heard them commented on as
very improper. Never was in the plaintiff's house. Lives
only 200 or 300 yards from the plaintiff's.