The Sun.
London, England, 1841-12-18 00:00:00

FOSTER V. ROBINSON.

Mr. KINDERSLEY and Mr. BICKNER moved to dissolve
an injunction that had been obtained in this suit, on the
ground that an order of the Court had nut been com-
plied with by the plaintiff. _ _

The propt;rty inn question belonged to one Ralph
Foster, the father of the plaintiff; who had several other
children, and died intestate. It consisted of an estate which
had been supposed to be freehold, but which turned out
to be leasehold, held for a long term of years. On the
death of the intestate his Widow received his personal
estate, but did not take out letters of administration.
The defendant, who was one of his children, applied for
administration, and due. notice of the application was
given to the plaintiff, but he did not attend, and admi-
nistration was consequently given to defendant, who
then applied for the personal property of the deceased.
This being refused by the plaintiff; who was in posses-
sion of the estate in question, and the property
being mortgaged to one Daniel Crawford for 20d,
defendant obtained from him an assignment of the
mortgage, but to enable her to do so borrowed the
amount of Crawford, and gave him an equitable mortt
gage for the amount, by depositing with him the title
deeds, and they being in possession of the legal title,
brought an action to recover possession of the premises.
Plaint iff then filed a bill to restrain defendant from proceed-
ing with the action, and obtained an injunciion, and upon
the answer coining in, defendant moved to dissolve the
injunction, unless cause was shown to the contrary.
Plaintiff having appeared to show cause, the Court made
an order that upon the plaintiff's undertaking, on or be-
hire the Ist September last, to pay the amount due to
Crawford on the security of the deeds in his pos-
session, the injunction should be continued until the
hearing. The money was not paid in pursuance of this
undertaking, and it was therefore moved on the 22d
November last, that the injunction should be dissolved,
when it was proposed to . allow another person to pay
the money for the plaintiff, and take possession of the
title deeds. This was:objected to by the defendant, who
now again moved to dissolve the injunction.
The MASTER of the Rous, after hearing Mr. Pem-
berton and Mr. Dunn contra, said that he did not see
what advantage would result from the transfer of the
mortgages. He thought the best.thing he could do would
be to enlarge the time allowed for payment of the tnort-
gage money until the first day of Hilary Term next,
when, in default of payment, the injunction must be dis-
solved.

VICE-CHANCERY.—(THIS DAY.)
(Before Vice-Chancellor KNIGHT BaucE )
KELLY V. HOOPER.
In this cause an injunction had been granted on the
11th of December, 1839, to restrain the defendant, or
his agents, from publishing the " Post-office Alma-
nack. The ground on which the injunction was
granted, was that the publication in question
was a piracy on one published by the plaintiff,
under the title of " The Post-office London Directory."
A motion was made on the 27th of Dec. to dissolve the
injunction, but the motion was refused, and the plaintiff
was directed, to bring an action against the defendant, for
the purpose of ascertaining the legal right of the parties.
The action, though commenced, continued in conse-
quence of some correspondence between the parties, and
the answer was put in on the 7th of March, 1840.
Mr. Cooper and Mr. Tripp appeared for the plaintiff,
and Mr. Simpkinson and Mr. Bickner for the defendant.
The question submitted to the Court related solely to
costs. The cause was part heard yesterday.
At the conclusion of the arguments this morning, his
HONOUR continued the injunction, and decreed the defen-
dant to bear all the costs of the suit.
(Before Vice-Chancellor WicartAar.)
• FREWSTER V. TURNER.
His HoNoun gave judgment in this cause. The his-
tory of the dispute was this. The defendant had pro-
perty
consisting partly of the Acorn Inn, and partly
of other premises, and he had a pipe laid to
his house to supply him with water. The pro-
perty was advertised fur sale, with a direct
intimation to the purchaser that, if he did not purchase
the other lots, they would pass into the hands of other
persons, and would be dealt with by them as legal
owners. The plaintiff had notice, therefore, from the
vendor, that the other property would no longer remain
as it had been. Suppose it were a natural flow of water,
the vendor did not engage that the other
purchasers should not disturb the flow, and the
purchaser of this portion of the property must assert
his rights against the purchasers of the other lots. In
the present case the water was artificially conducted ;
and if the effect of the contract was to '(rive to him the
benefit of which be had been deprived, the other pur-
chasers had notice of the contract, and having purchased
their lots subject to all the equities in question, they
would be just as much liable to the purchaser as would the
vendor himself if he had remained the owner of the other
lots. In point of fact, they had all purchased upon the same
footing, and the plaintiff could not, therefore, be damni-
fied by a decision against him in that cause, whereas the
defendant might be seriously damnified, if, after selling
the property under such circumstances, he should be
called upon to restore to the plaintiff an advantage which
he had lost since the sale. On these grounds he thought
the plaintiff had entirely failed to establish the equity
which he claimed as against the defendant. The prayer
for spee,ific performance was not opposed.
The cause was ordered to stand over for a month, with
a view to idtermediate proceedings.
RANDALL V. BELL.
His HONOUR gave judgment in this cause. The cause
had been ordered to stand over in order that his Honour
might refer to former decisions. The question was
whether, there being no legal execution under the will of
a testator, and a suit pending, a receiver should be ap-
pointed. His Honour said, that where there was no repre-
sentation before the Court, the practice was not to appoint
a receiver ; but in cases where, like the present, there
was litigation going forward, a receiver for the property
must be appointed. It was a point clearly settled, that
litigation alone could justify the appointment of a receiver.
It was then referred to the Master to appoint a receiver,
with liberty to all the parties in the suit to propose
theinklves.

QUEEN'S BENCH.-(THIS DAY.)
,Sittings in Nisi Prius at Guildhall before Lord DEN-
MAN and a Special Jury.)
GREGSON AND OTHERS V. RUCK AND OTHERS.

Mr. CnEswELL stated the case. It was an action
brought by Messrs. Gregson and Co., East India mer-
chants, to recover a sum of 3031., the value of 45 hogs-
heads of Calcutta rum, which had been sold to
the defendant. It would appear that the de-
fendants, MesSrs. Ruck, Son, and Fenwick, had entered
into a contract with the Government for the supply of
rum, and in the month of November, 1840, they applied
to Messrs. Field, the brokers of Minchin-lane, and
purchased from them the ruin in question. The rum
had been imported by the plaintiffs, and Messrs. Field
had been instructed:to sell it on commission. It would
be shown from former transactions between the parties
that the usual mode in which the sale of Co-
lonial produce was conducted was that the buyer
should pay cash; prompt at two months' discount,
and in one or two instances bills at two months had been
given by the defendant and regularly paid. In the pre-
sent case the defendants not having paid cash, applicant)
was made to theniat the expiration of two months, a d
the answer returned was that they knew nothing of .ne
plaintiffs in the transaction. He would prove the sale
of the ruin by the brokers, and it would be for the Jury
to say whether they were not bound to pay for it.
Chapman Harrison—l have been clerk in Messrs.
Gregson and Co.'s offices since 1832. They have been
n the habit of importing rum from the East Indies.
They had some dealings with the defendants, who are
.vine-merchants. The transactions were carried on
through the Messrs. Field, the brokers. The earliest
date of the notes handed to me is the 2d January, 1840.
It was for 49 hogsheads of Calcutta rum, 33 over
proof at 4s. ld. per gallon, by bill at two months,
sold on account of Gregson and Co. The rum was paid
for by defendant accepting one draft. The bill was read
—it was for 4451. for 49 puncheons rum ex Eleanor, two
months after date. Another broker's note, dated 3d
April, 1840, to the same effect, was put in and read ;
and a third of the 23d May. In November, 1840, Messrs.
Gregson received a quantity of rum by the Shepherdess,
from Calcutta. The Messrs. Field were instructed to
sell it. They said they had had an offer from the de-
fendants. The delivery order was given to Messrs. Field.
Edward Devonshire—l am a clerk in the 'West India
Dock•office. I had, in November last, some ruin belong-
ing to Messrs. Gregson, ex Shepherdess. The delivery
order was brought by the Messrs. Field ; it was signed
by Messrs. Gregson aria Co. Warrants were taken out
by the Messrs. Field, and the rum delivered under them.
The warrants were endorsed by. Field to the defendant..
They were delivered out on Nov. 28.
Mr. Harrison was then cross-examined by Mr. KFI I.Y
—Their house had elle or two other transactions
vi.ll
the Messrs. Field. In the transaction of the 23d of May
the purchaser was not named, and the payment was made
m
to them by the Messrs. Field. In the colonial trade atil()
practice is for the broker to send the cash to our office.
In the transaction in question the broker said .he
had
no cash. When the prompt was expired on the trans-
action of the 23d of Noventbi;r, a letter was sent from
our house to the defendants for payment, and a verbal
answer was returned, that they knew nothing of us in
,he transaction. With regard to that transaction the
laintiffs said it was contrary to their usual practice in
selling produce. to draw bills, and would expect cash with
the usual prompt..

Mr. CRESWELL proposed to put in the broker's note of
the 23d of November, but that ►vas objected to by Mr.
Kelly, on the ground that it ►was not signed by the de-
fendants, that those names ►were not mentioned in it; and
therefore it could not be binding upon them. If the
broker ►was called he might prove t! at he ►vas acting by
and with the authority of the defendants, but in default of
that there was no contract binding upon the defendants,
it being an arrangement made behind their backs and
without their sanction.

Lord DEsmAN thought there was prima facie evidence
of authority..
Patrick Johnston—l am official assignee under Field's
fiat. I saw the Messrs. Mick, who were creditors. I
have not the account with me.

Mr. KELLY addressed the Jury for the defendants. He
said the course adopted by the defendants was the straight-
forward proceeding of ordinary mercantile transactions ;
they bought the goods and paid the Messrs. Field for
them on receipt, and it was only on the Messrs. Field
becoming bankrupt that they were surprised by
the application of the plaintiffs for the payment,
and the answer they gave, as had been already
stated was, that they did not know them in the
transaction. The usual mode of dui' g business was,
that m hen the principals were named in the bought and
sold notes, the transaction was settled between the buyer
and seller, but where all parties were not named, the
broker was the party responsible—he was in the posi-
tion of a principal, and the payment was invariably made
by him. The contract under which the defendants pur-
chased was between themselves and the Messrs. Field, and
that would be shown by the bought notes sent to them,
and it would be seen that in that note no principals
were named. As soon as the rum was delivered they
gave a bill to a broker at two months, which fell due on
the 23d January, 1841, and which was duly honoured
by them, and it was only a few days afterwards that the
application was made by the plaintiff for payment,
which they at once repudiated. They had honestly paid
for the goods, and it would be for the Jury to say by
their verdict whether they were to pay the money
over again. •

James Field—ln 1840 I carried on business in Minc-
ing-lane in partnership with my brother, as wine and
spirit brokers. In January, 1840, we were employed to
sell rum for the plaintiff. In the bought note the names
of the principals, the plaintiffs and defendants, are in-
scribed. In April we sold for them again. The bought
note is the same. In May we received orders again to
sell, but they declined to take bills as in the former in-
stances. They required cash, two months discount. We
sold to the defendant. The seller wal not named, and
we paid the plaintiffs by a cheque drawn upon
our own bankers. We received a cheque from Messrs.
luck for the rums. In November, 1840, we were again
authorised to sell by the plaintiffs. 'The instructions
were to sell, as on the former occasion, for cask two
months discount. I saw Mr. luck, who looked at the
samples, and he purchased on the 20th November. I
said I would take a certain price with a bill at two
months, but that I intended to pay in three weeks. The
bought note did not mention the name of the sellers, it
was to be paid for by bill at two months. The entry on
our books is the same, and was made the same day. We
sent in a bill of parcels and drew a bill at two months.
We negotiated the bill. We stopped, payment on the
20th' of January, and up to that • time no appli-
cation was made by the plaintiffs to us for payment
of these sums. The practice of the trade is
when it is stated to be a sale on commission, and, when
the principal is not named, the payment is made to the
broker who sells. That has been the custom fur 25
years that I have been in the trade.

Cross-examined—l discounted the bill through the
house of Stephens and Co. on the 27th Nov. It never
came into my hands again. The contract note sent to
Messrs. Gregson is dated the 19th Nov. If a broker was
authorised to sell only for cash, he ought not to sell for
bills. I don't consider I had any authority from the plain-
tiffs to sell for a bill. I have had dealings with the
Messrz. Ruck for 25 years, to a considerable extent.
It was admitted that the bill for 303/. had been paid by
the defendants on the day it became due.
(The case was proceeding when we went to press.)

BANKRUPTCY.-(THIS DAY.)

IN THE MATTER OF WM. WEBB OGBURN.

The bankrupt in this case was a commission agent in
Honey-lane, and his debts and liabilities amounted to
between 40,0001. and 50,0001., while the available assets
were comparatively trifling.
This day being appointed' for the last adjourned exa-
mination of the nkrupt, a number of creditors attended
to prove their debts, amongst which was one for 1,4581.,
by Mr. Stevens, a bill broker, who had large bill dis-
counting transactions, which was allowed to be esta-
blished, after a deduction of 138/.

On the proof on behalf of the Nottingham Bank
for between 8,000/. and 0,000/. coming under considera-
tion, a discussion arose relative to some bills which were,
through inadvertence, not produced into Court.
Mr. Commissioner lioLnovn said he should allow the
proof to be admitted conditionally, the parties whose
duty it was bringing the bills in Court. ;

Bonnopeinii, on behalf of the creditors in Not-
tingham, applied to have the examination further ad-
journed, us they had some doubts respecting the disposal
of certain pictures, furniture, and jewellery, which they
considered had not been properly accounted for.

Mr. Edwards, the solicitor to the fiat, said he could
see no further utility in adjourning the case. The official
assignee was perfectly satisfied with the accounts.
The COURT refused the application, and the bankrnpt
was passed.

MARLBOROUGH-STREET.
(Tills DAY.)

Eliza liallhard, a decently dressed young woman, was
charged with shop-lifting. It appeared that between
seven and eight o'clock last evening the prisoner
went into the shop of Mr. King, of No. 4, St.
Martin's-court, and w bile bargaining about the price
of some combs, she was observed to secrete a dozen
small tortoise-shell braid combs under her arms
She was taxed with the theft, and the combs
taken from her, and Mr. King not wishing to be troubled
with a prosecution turned her out of his shop, but
directed one of his shopmen to watch her. She pro-
ceeded straight to the shop of Mr. Nichols in St.-Mar-
tin's-street, and was observed to handle some goods that
were hanging within side the shop door. On being
arrested several articles belonging to Mr. Nichols were
found on her.—Demanded.