The Sun.
London, England, 1858-12-14 00:00:00

THE SUN, LONDON, TUESDAY EVENING, DECEMBER 14, 1858.

LAW INTELLIGENCE.—Dec. 13,

COURT OF COMMON PLEAS.
Sittings at Nisi Prius at Guildall.—(Before the
Lord Chief Justice and Special Juries.)
This was the first day of the trial of special jury
causes at this sitting.
An action for the recovery of commission, having
occupied the time of the Court for nearly three
hours, was eventually referred, and during the day
no point calling for notice arose in the course of the
trial of any of the cases disposed of.
SECOND COURT.
(Before Mr. Justice Willes.)
It was announced this morning that the Second
Court would be held in the Committee-room No. 1,
an apartment by no means appropriate or conve-
nient for the purpose, and to sitting in which it is
known on that account the learned judges have
always had very great objection.
The learned judge, who is usually extremely
punctual, did not appear to take his seat at the usual
hour, and it was understood that this was in con-
sequence of the objection just referred to. After
some short delay it was announced that the learned
Judge would sit in the Council-chamber, whither
accordingly► counsel, jurymen, and parties imme-
diately adjourned. It was found that the chamber,
unprepared and unwarmed for the purpose, was
cold and chilly, and great discomfort was thereby
occasioned.
The learned Judge having taken his seat, and
the first case on his list having been settled, the
second was called on.
Mr. J. Thompson applied to his lordship to allow
it to stand over on account of the illness of the
plaintiff's attorney, who was also a witne3s—of
course upon the terms of paying the costs of the
day, but
Mr. Justice Willes said he had no power to accede
to the application, unless it was consented to.
Mr. Hawkins, for the defendant, did not consent,
and the record was withdrawn.
On the next being called on, the defendant's
attorney, after the jury were sworn and the case
opened, applied to the learned Judge to permit a
short delay, on account of the absence of his counsel.
Mr. Justice Wiles said he should be happy to
take any other casein which the parties were ready,
but otherwise he could not postpone a case already
called on and commenced in due order. It was the
duty of the parties and their counsel to be in atten-
dance at the appointed time, as the jurors were.
The Second Court sat under the authority of an
Act of Parliament (the Common Law Procedure
Act, 1852), for the greater despatch of business and
the convenience of the public. Tho jury attended,
at some sacrifice of time and comfort, to sit either
in a small chamber, unsuited for a court of justice,
or in a large hall, unwarmed and unprepared for
such a purpose at this inclement season of the year.
That being so, surely the parties ought to be ready
when their cases were called on. The case must
proceed.
Defendant's counsel shortly afterwards arrived.
BROWNING V. REDMAN.

This was an action by a fellowship porter against
a fish salesman for giving him into custody on a
charge of stealing oysters. Pleas, "Not Guilty,"
and a justification under the Metropolitan Police
Act.

Mr. Hawkins, Mr. J. A. Russell, and Mr. Francis
appeared for the plaintiff; Mr. Knowles for the
defendant.
On the 27th July last the plaintiff, one of the
fellowship porters, in his " turn" went on board a
smack laden with oysters for the defendant, and
was carrying oysters therefrom to the shop of the
defendant, who ordered him to desist, and on his
persisting in removing the oysters gave him into
custody on a charge of, first, for stealing, and then
for unlawful possession of the oysters. The plaintiff
was let out on bail at the station-house, and ap-
peared next day before the Lord Mayor, when Mr.
Wontner for the defendant preferred the charge.
The Lord Mayor declared that he could not deter-
mine the matter, and, as the defendant complained
that the plaintiff annoyed him in his business, bound
the plaintiff over for three months to keep the peace
towards him, and dismissed him. It appeared that
the defendant claimed a right to employ, and had
employed, other fellowship porters to remove the
oysters, and that the plaintiff on his part claimed
to be employed in his turn, independent of the will
of the defendant.
Mr. Justice Willes, alluding to the late case of
" Green v. Alston," in which the right of the day
meters and the night meters had been litigated, in-
quired if it affected the question as to the porters,
Mr. Knowles did not know ; in that case he be-
lieved the meters had failed. His client had suffered
both from meters and porters, and it came to this—
that if he gave a bushel of oysters to his man to
carry, the plaintiff claimed to take them away and
carry them and be paid for it.
Mr. Justice Willes—No doubt there are such
rights to exclusive employment, but they can exist
only by statute or prescription, and certainly their
existence or non-existence cannot properly be tried
by giving a man into custody.
One of the jury observed that such rights did
exist in the city—the new City Reform Bill con-
tained some provisions as to their abolition.
It was elicited that the non-freemen were called
" foreigners" in the city. (Laughter.)
The plaintiff and his witnesses, fellowship porters,
gave evidence as to a usage for their exclusive em-
ployment as far back as their own memory ex-
tended, which was 30 years.
Mr. Hawkins referred to Acts of Common
Council as far back as 1762.
Mr. Locke, as amicus curice, referred to Mr.
Pulling's work on the " Laws and Customs of the
City,"
Mr. Justice Willes accordingly procured that
work and said it laid the law down on this subject
very well and clearly, and to the effect that the
validity of the prescription had been established in
an action before the late Lord Chief Justice Tindal.
At all events, the right could not be tried indirectly
under colour of a criminal charge. It should be
tried in an action raising properly the question of
right. It was proved that the plaintiff, when given
into charge, said, " Aye, lock me up ; it's just what
I wanted. I want to try the right."
Mr. Justice Willes—That is not the way to do it.
Mr. Knowles aderessed the jury for the defen-
dant, and disclaimed any intention of charging the
plaintiff with felony, for the real object of the pro-
ceedings was to try the right. His client had a
contest. with the meters, which was the origin of
this dispute with the porters. The meters claimed
for measuring, but transferred the duties of por-
terage to the fellowship porters. His client con•
tended that when the oysters were sold on board
the buyer was to employ the porters in their turn ;
when they were not sold on board the owner
might remove them by his own porters. The
porters had no right to assert their usage by seiz-
ing the oysters against the will of the owners.
They must bring an action, as the meters had done,
to try their right. The 2d and 3d of Viet., chap.
71, sec, 24, the City Police Act, gave a power of
taking into custody persons charged with having
in their possession or conveying goods reasonably
suspected to have been, stolen or unlawfully
obtained.
Mr. Justice Willes—That must be understood
ejusdem generis, and does not at all apply to a case
of disputed right.
Mr. Knowles—No doubt that is so.
Mr. Justice Willes—The late Lord Chief Justice
Tindal used often to lay it down that civil rights
should not be enforced by criminal procedure.
And there was no justification for giving the
plaintiff into custody. Still, it was not a case for
circumstantial damages. - -
Mr. Knowles submitted to nominal damages.
Verdict forihe plaintiff—Damages 40s.
MABEY V. TYSON.
This was an action of ejectment, to recover a set
of chambers in the city.
No one appeared for the defendant, and Mr. W.
Williams, for the plaintiff, claimed to be entitled to
a verdict at once without proof of title, under the
Common Law Procedure Act of 1852.

Mr. Justice Willes directed a verdict accordingly
and granted a speedy execution.

GOULD V. NEWMAN.
This was an action on the warranty of a
horse, and also to recover the price, £55, the war-

ranty being contained in the following receipt :
" Received, £55 for a bay gelding, warranted
sound and quiet in double and single harness, quiet
to ride and free from vice. If not approved of at
the expiration of one, two, or three months, I un-
dertake to return the price less £6 a month for the
time it may be retained." On trial the horse was

Found to be a "roarer," and was returned.

Mr. Power and Mr. Finlasou appeared for the
plaintiff; no one appeared for the defendant.—
Verdict for the plaintiff.
The list being finished just before 12 o'clock, the
jury was discharged for the day.