The Sun.
London, England, 1846-03-09 00:00:00

ASSIZE IN TELLIGENCE.

HOME CIRCUIT, Chelmsford, March 6.
(Before Baron ALDERSON aad a Special Jury.)
FITCH V. CUTTS.
This was an action biought by the plaintir, who is an
autioneer at Steeple Bumpatead, to recover from the de-
fendant, a gentleman residing in the neighbourhood of
Witham, the sum of 1401., for a quantity of wine he had
purehtuted at a sale, but which he afterwards refused to

WG, M NCH 91 1840,

receive. There were several pleas put upon the record
by the defendant, but the principal one was that the sale
in question had been conducted in a fradulent manner,
and that the wine did not belong to the person whose
property it was represented to be.
Mr. Montagu Chambers and Mr. Petersdorff were for
the plaintiff ; and Sergeant Shee, Sergeant Jones, and

Mr. Rose for the defendant.
The trial commenced on Friday afternoon, and did not
conclude until late in the evening.
It appeared from the statement of the Learned Coun-
sel for the plaintiff, that in the beginning of last year a
gentleman named Stevens, who kept a large establish-
ment called Bower Hall, in this county, died, and on the
31st of March, there was a sale of his furniture and other
effects. at which the plaintiff officiated as auctioneer. It
would seem that at the time of his death, Mr. Stevens
had only a small quantity of wine, some twenty dozen or
so, in his cellar, and as it was necessary to pay 101. for a
wine licence, the auctioneer obtained the consent of the
executors to " introduce" some other wine, and accord-
ingly nearly two hundred dozen of port and sherry were
introduced into the catalogue. When the sale took
place, there was a large assemblage of buyers, and among
them the defendant and, as Mr. Stevens was supposed to
be a great connoisseur in wine, some considerable com-
petition took place to possess it. According, to the
evidence for the plaintiff, as soon as Mr. Stevens's
genuine wine was sold, the auctioneer publicly
stated the fact, and at the same time told
the company that the wine he was then about to sell
would be disposed of by sample, and that they would
form their judgment upon its value. It was represented
that, after this, the defendant tasted the different samples,
and eventually made purchases to the amount of 1401.,
but on his being afterwards applied to to take his wine
away, and pay the value, he refused to have anything to
do with it, and, after some negociation, the present
action was brought, to compel him to fulfil his contract.
Upon the cross-examination of the witnesses, it ap-
peared that in the catalogues and advertisements of the
sale, the whole of the wine was described as being the
property of Mr. Stevens, and a most glowing descrip-
tion was given of it, the port being mostly described as
fine rich old port, in bottle ; the sherry of first quality,
&c. &c. ; and it also appeared, that at the time the wine
so described was not actually even in the cellar of Mr.
Stevens, but was only brought down from London three
or four days before the sale.
An auctioneer named Surridge, residing at Cog-
geshall, who had been instrumental in getting up the
sale, admitted in cross-examination that shortly before
the sale he held a judgment for 1401. against a person at
Coggeshall, and that he went to a wine-merchant in
Rood lane and gave this judgmennt, and about 501. or
601. in money for a hundred and fifty dozen of port and
sherry wine, which was taken down very privately in
the night and placed in the cellars of Bower Hall, and
afterwards figured in the catalogue and at the sale as
" fine old wine" of Mr. Stevens. _ _

Sergeant SHEE, on behalf of the defendant, urged that
the proceeding was a disgraceful fraud on the part of the
auctioneer, and that he had no right to recover in this
action. It was all very well for him to tell the company
at the sale, after the genuine wine had been disposed of,
that the other wine did not belong to Mr. Stevens, but
this fraud consisted in publishing to the whole
country, that there were two hundred dozen of fine
wine, the property of a gentleman, who, it was well
known, would not have anything but a genuine article in
his cellar, when the plaintiff was perfectly well aware
that the greater portion of it was mere rubbish, pur-
chased for the occasion.
Witnesses were then called, who proved that they
went to the sale under the impression that the wine
was the property of Mr. Stevens, and purchased some
of it under that impression. They likewise stated that
they did not hear the plaintiff say a single word about
the wine not being the property of Mr. Stevens, but
they said they did hear him repeatedly declare that
"the wine had been in bottle ever since the devil was
an infant." Th( se witnesses admitted, on cross-exami-
nation by Mr. Chambers, that Mr. Cutts was present at
the commencement of the sale, and that he tasted nearly
all the samples before he bid for them.
Mr. CHAMBERS, in reply, argued, that without at-
tempting to justify the conduct of the auctioneer in
introducing the wine, it was quite clear that the defendant
had not been deceived. He had tasted the samples, and
bid for them according to his opinion, and it would be
monstrous under such circumstances to allow him to go
hack from his bargain.
Mr. Baron ALDERSON having summed up, tho jury,
after a short deliberation, returned a verdict for the
plaintiff for the full amount claimed ; at the same time,
expressing their opinion that it was a very improper
proceeding for an auctioneer to place property in a sale
under such circumstances.
CROWN SIDE —(Before Lord Chief Justice DENMAN.)
William Spence, a Trinity House pilot, surrendered to
answer an indictment, charging him with the man-
slaughter of William Ingram Emery.
Mr. Rodwell conducted the prosecution, and Mr.
Ryland appeared for the defendant.
From the evidence it appeared that on the 14th of
August, is last year, the defendant, in his capacity of
pilot, was conducting a Portuguese vessel, calied the
Duarte Quarto down the river, and when in the north
channel off the coast of Southend, where there were a
number of boats with fishermen in them pursuing their
avocation, the vessel ran down one of them, in which
were the deceased and another person, both of whom
were drowned. The defence was that the prisoner had
given the proper orders to the man at the helm to avoid
the boat, but in consequence of his not understanding
English, he put the helm in the wrong direction, and
thus caused the accident.
At the close of the case for the prosecution, Mr.
Ryland, on behalf of the prisoner, submitted that there
was no case to go to the jury, inasmuch as it had not
been shown that the death of the deceased was caused
by any act done by the prisoner, and that, on order to
constitute the crime of manslaughter, it had been held
by the Judges in recent cases that a mere omission to
perform some act which it was his duty to have per-
formed, and whereby death ensued, was not sufficient to
subject a party to a charge of felony.
Mr. Rod well argued that the present case came within
the meaning of the decision referred to, as an act had
been committed. The prisoner was acting by the man
at the helm, who had no will or direction of his own,
but was subject to the control of the pilot, who gave
the order which resulted in the death of the deceased.
If that order was given in so careless a manner as to
cause the man at the helm to steer in an improper
course, he was criminally responsible for the conse-
quences of such negligence, and in point of fact the act
of the man at the helm was the act of the prisoner.
The LORD CHIEF JUSTICI having consulted Mr. Baron
Alderson upon the point of law, said he should not stop
the case.

Mr. RYLAND then addressed the jury upon the facts,
and called several witnesses, who gave the prisoner an
excellent character for good conduct and skill in his pro-
fession.

The jury returned a ♦erdict of Not Guilty.
,Aiiiturday, March 7.
(Before Lord Chief Justice DENMAN and a Spe,
cial Jury.)
LEWSAY V. WILLIS.

This was an action to recover damages for an assault
committed by the defendant upon the plaintiff.
Mr. Ryland and Mr. Hawkins were for the plaintiff,
and Mr. Montague Chambers and Mr. Lush for the de-
fendant.
In this case it appeared that the plaintiff was the son
of a farmer residing at Stabbing, and the defendant, who
was the churchwarden of that parish, was charged with
committing an assault upon him in the gallery of the
church at that place. It appeared that on the Ist of June
the plaintiff, with some other young men, was in the gal-
lery in question, and in consequence of some proceedings
that had previously taken place, the defendant was re-
quested by the vicar to remove the plaintiff, as ho appre-
hended a disturbance to divine service if he was allowed
to remain. The defendant accordingly requested him to
retire from the gallery, and upon his refusing, he
laid hold of him and a scuffle took place,
which was the ground of the present action.
The defence set up was, that a party of young
men belonging to the village, companions of the plaintiff,
were in the habit of going into this gallery, and con-
ducting themselves in such a manner as to annoy and
interrupt the congregation, and shortly before the Ist of
June, the seat had been taken from the gallery in
questioa to prevent their going there. Notwithstand-
ing this the plaintiff, on the Sunday, proceeded to the
gallery, evidently, as was conjectured, for the purpose of
creating a disturbance ; and, with a view to prevent
scandal, the vicar directed that ho should be removed;
and it was contended, that the defendant, as church-
warden, was perfectly justified in the steps he took
to effect that object.
The LORD CHIEF JUSTICE having summed up, the
jury found for the plaintiff. Damages la.
(Before Baron ALDERSON and a Special Jury.)

PIGOoTT V. THE EASTERN COUNTIES RAILWAY COMPANY
This was an action brought by the plaintiff, who is a
farmer, in the neighbourhood of Kelvedon, to recover
the value of some sheds and other property which had
been destroyed by fire, owing, as was alleged, to the neg-
ligence of the defendants. On the part of the com-
pany, it was denied that there had been any negligence,
and they, therefore, pleaded that they were not liable.
Mr. Sergeant Channell, Mr. Deedes, and Mr. Bovill,
were for the plaintiff'. Mr. Sergeant Shee, Mr. Edwin
James and Mr. Alcock for the company.
From the evidence adduced for the plaintiff, it ap-
peared that his land and premises adjoined the
railway, and on the 27th of last August, im-
mediately after the down mail train had passed,
a spark, or piece of ignited coke, was thrown
from the engine, which set tire to the thatch of one of
the sheds, and eventually spread to the building, and
before the fire could he extinguished a great deal of
property was consumed. The onv evidence in support
of the plea of negligence was the evidence of Mr. Farey
and Mr. Hoinersham, engineers, who stated that when
engines threw out fire to any extent, it was a proof that
they were ovens orked, and were not sufficiently power-
ful for the load they had to convey, and that the throw.
ing out the fire might be prevented by turning a wire-
guard over the top of the chimney, or else a plate
perforated with holes in the smoke box, neither of which
contrivances, it would appear, were made use of by the
company in question.
Mr. Sergeant SIZES, at the close of the case for the
plaintiff, submitted that there was no evidence to go to
the jury in support of the plea of negligence.
Mr. Baron ALDERSON said he thought the case must
go to the jury upon the point whether ti e company had
taken the reasonable precaution to prevent such accident,
and whether their neglecting to employ the wire guard,
or the perforated plate amounted to negligence.
Mr. Sergeant STIER then adressed the jury, and said
he should contend with great confidence that the corn-
pany were not responsible for the injury that had been
done to the plaintiff's property in the present instance,
and he submitted that there was au entire absence of
proof of anything like negligence on their part. The
Legislature had sanctioned the formation of this line of
railvray, being well aware that the trains tould only be

propelled by engines set in motion by fire and steam, and
the company were merely carrying out the powers given.
them by the law; and if by accident the engine so made
use of did cause any damage, it would be monstrous to
charge the company with neglect. The real question
was, had the coy pany done any more than they were
entitled to do, or had they in any way shown a want of
due care and caution?. It was said that they ought to
have made use of a wire guard or a perforated plate, but
the witnesses who had been called upon that point had
admitted that some fire would stilt escape, and that
they could by no means certainly prevent it ; while, at
the same time, it was admitted that either of those con-
trivances would, to a certain extent, by reducing the
draught, diminish the power and speed of the engine,
and thereby deprive the public of the benefit of that in-
creased velocity of locomotion which had now become
such an important desideratum.
The driver of the engine on the day in question, and
some other witnesses, were then examived ; and from
their concurrent testimony it appeared that this engine
was one of the most powerful belonging to the coin •
pang, and that on the day in question, so far from
being overworked, it had a very light load, there
being only eleven carriages attached to it, and it had
frequently taken a much heavier load up the steep in-
cline at Brentwood, at the rate of twenty miles an hour.
It was likewise deposed to, that before the train arrived
near the plaintill's farm, the steam had been shut off,
and that it passed, there being an incline at that spot,
by its own momentum, and that no fire at all issued
from the funnel. It was also sated that wire guards
had been tried, and that owing to their wearing out so
rapidly, from the great heat and draught to which they
were subjected, they were found to be of very little use.
Mr. Sergeant CItANNELL replied.
Mr. Baron ALDERSON then summed up, and left the
the case to the jury, who, after deliberating about twenty
minutes, returned a verdict for the plaintiff.

JONES V. WATTS.

This was an acti;-brOUghtbY the plaintiff, who
had been engaged as a clerk upon a railway speculation
called the Irish West Coast Railway, to recover from
the defendant, as one of the provisional directors of the
company, compensation for his services in that capacity.
Mr. Sergeant Channell and Mr. Bramwell were for
the plaintiff, and Mr. Sergeant Shee and Mr. Bovill for
the defendant. _

The jury found a verdict for the plaintiff, at the rate
of seven shillings a day for seven weeks.

NORFOLK ClRCUlT.—Aylesbury, March 6.
CROWN COURT.—(Before Mr. Baron PARRY..)
MURDER. —Francis Fleet was charged with the wilful
murder of Ann Ray, at Dunton,:in this county, by adminis-
tering to her two drachms of corrosive sublimate on the 26th
of June last.
Mr. Sanders was counsel for the prosecution, and Mr.
Power defended the prisoner.
From the testimony of the various witnesses examined in
support of this most serious charge, it appeared that the
prisoner and the deceased were fellow-servants at Dunton,
the former being the shepherd and the latter the only
female attendant of a Mr. Duncombe, a farmer in that
village. For some time before the date of this transaction
it had become known to their fellow-servants that an illicit
connexion had sprung up between these parties, and it was
suspected that the deceased was in the family-way by
him. On the 26th of June the prisoner was work-
ing with some other men in the rickvard till one o'clock,
when lie went into the house, as he said, to get some
bread and cheese from " the gal." In a few minutes,
however, he returned, and calling one of the labourers to
him told him that " the gal" was taken ill, and asked him
to go in while he went for assistance. On going into the
kitchen, the poor creature was discovered in great agony,
vomiting dreadfully, and complaining of a burning sensa-
tien in her throat and stomach. For some days she con-
tinued to suffer much, ulcers having appeared in her mouth
and on her tongue,—and during all that time the prisoner
evinced great anxiety on her account, making frequent in-
quiries after her condition. On one of these occasions, he
was taxed with having given her " some stuff," when he
replied that "he had not compelled her to take it." On the
9th of July the deceased was removed to the Winslow Union
in a gig, and soon after that exertion she grew rapidly worse,
till one of the ulcers broke, and she died of exhaustion.
During her illness the prisoner was taken into custody, and
she made a deposition before a magistrate in his presence,
from which it appeared that on his coming into the kitchen
on the 26th of June, he had put some white powder into a
glass of water and told her to drink it off, declaring that he
would not leave the house till she did so. This she declined
to do at first, but being at last persuaded by him she swallowed
it, and on the instant was attacked with the sickness and
pains which had been deposed to by the other witnesses, and
were attributed by medical testimony to her having taken a
quantity of white mercury, or corrosive sublimate. The de-
ceased also swore that she was then two months advanced in
the family-way by the prisoner, who knew that fact, and had
on a previous occasion caused her to take something to do
away with the child, but without effect. In addition to this,
she stated that the prisoner had some more of the same stuff
by him, and on being searched, a rag was found in his
pocket, containing a small quantity of corrosive sublimate,
an article which appeared to have been kept on the farm for
the purpose of application to the sheep under prisoner's care.
Mr. POWER having addressed the jury,
liis LORDSHIP summed up the case to them with great
care and perspicuity, telling them that if they should be of
opinion that the prisoner had administered this noxious sub-
stance to the deceased with the wicked design of procuring
abortion, he was, in the eye of the law, guilty of murder,
even though there was, in fact, an absence of any malice
towards the unfortunate object of his practices. If, there-
fore, they thought that he had administered this poison
with that design, and that her death ensued from her having
so taken it, it was their duty, however painful it might be,
to return a verdict of wilful murder against the prisoner at
the bar.
The jury then retired to consider their verdict, and ulti-
mately found that the prisoner had administered the poison
to the deceased to procure abortion, and that she had died
in consequence thereof; on which a 'verdict of Guilty was
recorded.
Mr. Baron PAICKE then put on the black cap, and pro-
ceeded to pass the awful sentence of the law upon the pri-
soner; after which the jury begged to recommend him to
mercy, as in their opinion he had not contemplated any in-
jury to the deceased. Ilis Lordship then intimated to him
that he should take care that the recommendation of the
jury should be conveyed to the proper quarter, though he
could not take upon himself to hold out any prospect of
mercy in this world.

NORTHERN CIRCUIT.—Durham, March 8.
CROWN SlDE.—(Before Mr. Justice PATTESON.)
CHARGE OF MURDEll.—Margaret Stoker, a girl 23 years
of age, was indicted for having. on the 24th day of Novem-
ber last, at Pattington Hallgarth, wilfully killed and mur-
dered Hannah Stoker, her child, aged 13 months.
Mr. Monteath and Mr. A. D. Johnstone appeared to con-
duct the prosecution; and Mr. Sergeant Wilkins defended
the prisoner.
Isabella Davison—On Sunday, the 23d of November last,
Margaret Stoker came to our house, between six and seven
•'clock at night. The prisoner had not a child with her
then. I heard one of the people in the house ask how she
had wet her gown, and she said she had fallen down. Her
face was dirty. I saw her again between eight and nine
next morning. She said a woman had put her child into
the beck. She appeared distressed, and cried much. I went
to the burn side with her, and lifted the child out. It was
quite dead. It appeared to have been so for some time.
When I took the child out of the beck I placed it on the
grass. I then saw that one of the hands was eaten off. I
thought it might have been eaten <Any the water-rata. The
flesh was all jagged and torn. Prisoner said she was bet
with the child ;it was too much for her. The same after-
noon she told me she had tossed it into the beck herself.
Other witnesses were examined; after which
The jury retired for about ten minutes, and then pro-
nounced the following verdict—Guilty, but with the
strongest and most earnest recommendation to yuur Lord-
ship's mercy.
The Learned Junor then passed sentence of death upon
the prisoner.
The prisoner was much affected, and shrieked as she was
removed from the dock.