The Sun.
London, England, 1846-04-22 00:00:00

CLARKS V. HUGNES.

Mr, Mac),lmay moved for a rule to show cause why the
verdict in this case should nut be set aside and a new trial
granted, on the mend of the rejection of material evidence,
the misdirection of the Under-Sheriff, and a verdict being
returned contrary to evidence. This cause had been tried
before the Under-Sheriff of Nottingham. The plaintiff, Mr.
Clarke, was a surveyor, one of that ckss who were frequently
employed by persons superior to themselves in the profession.
The plaintiff was employed as a surveyor on the Sheffield,
Nottingham, and London Direct Railway, and the defendant
was a provisional director on that line. The work which had
formed the subject of dispute in this case had been performed
between the 22d and 30th of November. The case for the
plaintiff had been opened by his Learned Friend Mr. Miller,
and he had stated that the engineer of the company, a gen-
tleman named Breere, had been directed to make some sur-
veys within a given time, and had employed the plaintiff.
In consequence of some quarrel which had arisen between
Mr. Breere and the company he left, without having paid
Mr. Clarke. Mr. Cann, the agent of the company, had then
said to the plaintiff that he should continue to work, and
that he would not cnly see that he was paid for
the future, but that all his arrears should be
paid up. His Learned Friend then called two
witmesses, each of whom was about to bring an action
against Mr. Hughes. They both stated that they had been
employed by Mr. Breere, along with the plaintiff, but that
they afterwards worked under the direction of Mr. Cann, the
company's agent, Another witness had also deposed that
Mr. Cann had stated to the plaintiff, and to himself, that
Breere had received 1,9001., and yet had not done justice to
the company ; and had promised, on the part of the com-
pany, to see the witnesses. The rest of the case consisted of
an account given of some proceedings which had taken place
in February, at the board of directors, in Moorgife. It was
pprove plaintiff, with other surveyors, had gone to
seene Alderman H, Hughes, who, „„ beating
tho.
et
rtgdhaettyeh that thehadand
h not been paid, had said that it was a most
painful thing, but that the company were about to wind up
its affairs, for the deposits had not been paid. He would,
however, see them paid on the earliest opportunity.
The case, on the part of the defendant, was that it was an
ordinary case, in which the surveyor had been employed by
an engineer to take part in the fulfilment of a contract for
which he himself was liable, It was like the ordinary case,
where a man bad contracted to build a house, and had em-
ployed workmen and an agent. If the agent interfered with
the workmen to expedite them in their work, he was not
liable to be regarded as the person on whom the fulfilment of
the contract devolved. The first witness for the plaintiff
had stated that the plaintiff had been employed by Breere,
and that Mr. Cann was obliged to guarantee that the money
due by Breere should be paid up. On the part of the de-
fendants, Mr. Breere was asked whether he had contracted
with the company for a fixed sum? And that question was
objected to, and not allowed to be answered. Mr. Breerehad
stated in his evidence that he was engaged to perform the
surveys in a given time, that he had gone to London to
engage the plaintiff,
whom he had before employed in a si-
milar manner. He had received no instructions from the
company to employ him, and, in fact; employed him entirely
on hie own account.
Mr. Justice COLERIDGE said that the defendants had pro-
mised to pay the money due by Mr. Breere at the interview
which had taken place in Moorgate.
Mr. MACAULAY said that, with respect to that interview,
he had the strongest 'possible affidavits from the secretary to
the company, who was present at the time. After the ab-
sence of Mr. Breere, the works were carried on under Mr.
Bawsley, the engineer to the company. The Under-Sheriff
had not put the case to the jury in a proper manner.
Mr. Justice COLERIDGE said that if it was a contract from
Bawsley himself with the plaintiff, the Under-Sheriff might
. have been in error, but if it were a contract made by Mr.
Bawsley on the part of the company, it might be merely
the erdinary case of un agent acting without authority.
The proceedings had, however, subsequently been confirmed
by a promise to pay.
Dlr. MACAULAY said that Mr. Breere had employed the
plaintiff to do work for the company, but that expression
was merely used to describe the sort of work the plaintiff was
to be employed on, and so it might be with Mr. Bawsley.
With respect to the admission of Alderman Hughes, it might
be a ratification of the employment by Bawsley, but his Lord-
ship would see, on coming to the summing up of the Under-
Sheriff, that throughout the trial Bawsley had never been
treated as the agent of the company, and that the employ-
ment by him was regarded as a thing distinct from the em-
ployment of the company; and consequently the defendant
could not be liable, as a provisional director of the company.
Some discussion here arose as to the point of misdirection
on the Under-Sheriff summing up, and it appeared that the
summing up had not been verified on the affidavits.
Mr. Justice COLERIDGE was of opinion that the summing
up of the Under-She.riff ought not to be trusted to the memo-
ries of counsel.

Mr. MacauLicr said that he had always understood that,
where there had been counsel on both sides, the summing up
was not necesQarily to be in the affidavits.
Mr. Justice COLERIDGE said that it would not be necessary
if both parties agreed in their version of it, but in case of any
dissent by the opposite party, how were they to proceed? In
the superior courts the judge always noted the points, so that
there could be no dispute.
Mr. MACAULEY asked permission to be allowed to verify
the summing up of the affidavits. He had got a short-hand
note of the whole proceedings.
Mr. Justice CoutainciE intimated that such a course could
not be adopted. The Learned Counsel had better take a rule
to show cause. The case would very likely be brought for-
ward by a motion.
Rule nisi granted accordingly.

COURT OF EXCHEQUER, April 20.
(Sittings of Banco.)
FINLAYSON V. PILBROW.
Mr. CHAMBERS moved fora rule to show cause why the
verdict for the plaintiff should not be set aside and a new
trial be had on the ground of misdirection by the Learned
Judge, who, in fact, gave no direction at all to the jury.
The case was tried before Lord Chief Justice Denman, at
the late assizes at Maidstone, and was brought by plaintiff,
a railway surveyor, for the recovery of 44/. 17s. 6d„ for
services rendered by him to the defendant, Mr. Pilbrow, of
atmospheric railway celebrity, on the projected London and
Gravesend Atmospheric Railway, now defunct. According
to the statement of counsel the evidence in support of the
action consisted of the prospectus of the Company and two
witnesses who deposed to the fact of the engagement
having taken place and the reasonableness of the
and that as one of the witnesses was not a
charges. The Learned Counsel commented upon, the
evidence at great length, and contended that it. was
totally inadequate to connect defendant with the
but a mos-
seencgraegtaermyeonrt'clerk, as he had represented himself,
senger, in the employment of plaintiff, who
paid him occa-
sionally from 2s. to a guinea for the services he rendered, his
testimony was worth nothing.
The COURT was of opinion that the whole was a question
of fact, and as the Learned Judge and the jury who tried
the case were of opinion that defendant was liable, under
such circumstances the motion for a new trial could not be
granted.—Rule refused.
HUTCHINSON V. EAST LANCASHIRE RAILWAY COMPANY.
, before Mr. Justice
Mr. KNOWLES moved for a rule to show cause why the
brought to recover
verdict for defendants in this case should not be set aside and
a new trial bad, on the ground of misdirection. The case
certain penalties forfeited by defendants for a breach of cer-
tain provisions of the Actrpowering them to construct
their railway. The plaint' was the owner of certain land
iieda tanthdewl aatsea;ssiazce:ii
action
Liverpool, edrepbete:
which the Company required for the purposes of the rail-
wav; and the question of compensation was submitted
to a jury who assessed damages. The defendants paid that
amount into the Bank of England, and then proceeded to
Coleridge,w as t
take possession of the land. The plaintiff subsequently
brought his action for ejectment, and obtained a verdict.
Mr. Justice Cresswell, before whom the case was tried, ruling
it in favour of the plaintiff, on the ground that defendant
had not complied with the terms of the Act in not paying
the money over to plaintiff. A motion was afterwards made
in this Court for a rule to set aside that verdict, but it was
refused, as the Court agreed with Air, Justice Cresswell in

the view he had taken.. The action tried at the Liverpool
assizes was for the recovery of damages forfeited by the
Company for entering, without consent, into plaintiff's lands,
for doing which, according to the 159th section of their own
Act, they forfeited 251. a-day for. every day they kept pos-
session of the land after notice was served upon them to
give up possession. The verdict was then given for de-
proceeded at great
length to contend was at variance with the 159th section
osfneeen:itdiiroa:
ennic,tg,bsruoowt::::i-
of the Act for the construction of the railway.
The COURT was of opinion that no such construction as
that given by the Learned Counsel could be put on the
ttil lao
nt the Judgehv et r
verdictial iwhon t
beinge dhis t
case,h
againste
wc cause.
READ v. TAIT.
ich
was tried at the late assizes at Northumberland, before Mr.
Justice Patteson, when a verdict was given for the plaintiff,
evidence. This was an action to recover damages alleged
to have been sustained from negligence on the part- of
the servants of defendant in the management of his
vessel, by which plaintiff's vessel was run down.
The plea to the declaration was not guilty, and se-
condly, that the plaintiff was not possessed of any vessel
The circumstances out of which the case arose were these :
The plaintiff was the owner of a ship called the Providence,
ancl the defendant the owner of a vessel called the Virgil.
Lincolnshire coast, sailing in different directions. The Provi- •
dence from the south to the north, and the Virgilfrom the north ,
On the 414 thp collision the two vessels were off the ,
ch
d
to the south. The wind was westerly. According to rule In
ol
dfmt he
misdirection,
moved
dea Learned r
five°
cri Counsel
suph pap the defendant's vessel should pass on the larboard
side, and at the trial 4 wa9 sworn on behalf of the plaintiff
that defendant's vessel altered her course. The witneses for
defendant said th4t the pp:4),qt course 'had -been kept, but I
that the Providence had not come up in time, and did net
make the necessary tack till it was too late. The only wit-
nesses on both sides were the crews of both vessels.
The Learned Counsel read an affidavit from defendant's 1
attorney, In which he alleged that; an important witness, of
the name of Brown, was not at tip .41nd evidence
were heard the yerdict quid not stand. Under all the cir-
cumstandes,.ha th4itiht thaVouit Ohppld have wk 0110*
to grant him a rule,
The Ocgurr did not think that the Learned Counsel bad
alleged sufficient grounds for disturbing the verdict.—Rule
refused,

rI,ETCHER 17, sunsifs.u.,
Mr. WATSON moved for A rule to show cause why a non-
suit should not be entered, or why a new trial should not be
had, or why judgment should not be arrested in this case,
which was tried at Liverpool, at the late assizes, before
Mr. Justice Coleridge, when a verdict was given for
the plaintiff. The declaration stated that the plain-
tiff, who was a schoolmaster at Manchester, had given
directions to defendant's sharebrokers, also of Manches-
ter, to purchase for him fifty scrip shares in the projected.
Essex and Suffolk Railway. lhe defendant promised to do
so, on which plaintiff paid the money, but defendant did not
deliver the scrip. The plea was first non-assumpsit, and
secondly, that a sufficient time had not elapsed for
the delivery of the scrip before the suit Was Com-
menced. The Learned Counsel contended that from the
terms of the contract there waa no such promise made as the
delivery of the scrip within a certain time, that due care
and ditigence merely was promised to be used.—Rule granted.

MARSDEN V. NEWMARSII.
Mr. WATSON moved for a rule to show cause why a
verdict should not be entered for defendant, or a new
trial had in this case, which was tried before Mr.'
Justice Coleridge, at the late assizes at Liverpool, when a
verdict was given for part of the demand to plaintiff, and for
the other part to the defendants. This was another railway
transaction, where the defendants (sharebrokers) were al-
leged not to use due care and diligence in the sale and dis-
position of certain shares the plaintiff held in'the Leeds and
Thirsk Railway and the Shrewsbury and Hereford Railway.
The plea was, first, non-assumpsit ; and, secondly, that the
defendants had not possession of the scrip in question so as
to dispo,te of thel4.—Rule granted,