The Sun.
London, England, 1858-12-10 00:00:00

THIS DAY.)

COURT OF CHANCERY.
(Before the Lord Chancellor and Lords Justices.)
APPEAL.-IN RE THE ROYAL BRITISH BANK.-EX PARTE

NICOLL.

The Attorney-General (Sir Fitzroy Kelly, Q.C.) resumed
his argument in this part-heard appeal motion, this morn-
ing. At the conclusion of the argument, which lasted up-
wards of two hours their Lordships reserved judgment.
(Before Vice-Chancellor Sir William Page Wood.)
JUDGMENT.-TOPPIN V. TYKE.

Plaintiff claimed £2OO out of £5,000 paid by Government
into court as the price of a patent for the manufacture of
war rockets, upon condition that all parties interested :in
the patent would consent to tho sale and grant legal dis-
charges.
His Honour the Vice-Chancellor, after delivering a long
and elaborate judgment, which occupied upwards of two
hours, was of opinion that the plaintiff had assigned all his
Interest in the patent to Government for £5OO, and of £2OO
of a reserved interest in the patentee, Mr. Hales, for a sale of
licenser and for working the patent at .the rate of £4 per week
besides a percentage of £2O on the sale of rockets, and that
the plaintiff might be entitled to these sums out of the
money in court, but his Honour considered that there were
other parties, Mr. Skinner, Mr. Sturgeon, and others in-
terested in this patent ; and as they did not come forward
and join the plaintiff in granting discharges to Government,
he could not make any order of payment in behalf of the
plaintiff of the money in court. He therefore dismissed
the bill with costs, and ordered the £5,000 deposited in
court to be repaid to the proper officer appointed by Go-
vernment to receive it.

CLERKENWELL COUNTY COURT.
(Before Mr. Sergeant Jones and a Jury.)
SINGULAR HORSE CASE-DEALING EXTRAORDINARY.

CLARK V. WORTH.

Plaintiff is a commercial traveller, and was, represented
by Mr. Metcalfe (instructed by Mr. Beard), and defendant
is a draper, of 169, Upper-street, Islington, for whom Mr
Stammers, instructed by Mr. Seyton, appeared. This was
a new trial, a report having appeared in our columns of the

previous one.
The learned counsel for the plaintiff stated that, on the
31st July in the present year, plaintiff was induced to call
upon defendant to see a bay mare that had been
advertised for sale. He took an old man with him,

and defendant being absent they were shown into a
stable where the mare was stalled. Defendant's brother,

Mr. Worth, and the groom were present, and the
horse was walked about the yard. Plaintiff expressed a
desire to see it in the street, but this was refusel. He then

asked if defendant would warrant it, to which the groom
replied, " No, my master would not warrant a dog, much
less a horse,"
_Plaintiff then said he supposed it was all

right, and the groom said, " Oh, yes, it is as sound as a
bell." Upon this plaintiff said he would give the sum
asked, £25. The plaintiff was informed that the horse
would trot eighteen miles an hour, was very quiet, and the
reason for selling was that she was too big. (Laughter )
The horse was sent horn* and the money paid. A very
short time (three quarters of an hour) elapsed before plain-

tiff tried his mare, and upon putting her into a trot she
went lame, and he then discovered that she had a splint
under the left fore knee. Upon communicating with de-
fendant, he was informed that the animal must have
been pricked in shoeing, but plaintiff desired to have his
money back. He was then told to put the mare out to
grass, and it would be all right. He did so, and it con-
tinued all wrong ; and as he could get no satisfaction from
defendant, the horse was sold at auction and fetched 15,
and plaintiff now sought to recover the difference.
Plaintiff and the person who went with him to see the
horse were called, and swore to the above statement ; the
man, however, deposed that the groom said,
"as sound as
a brass bell." Plaintiff had not much experience in horses.
The horse did not walk lame; it was only seen when she
trotted. _ _

The man said he was feeling the mare's foot when the
groom said she was as sound as a brass bell.
A veterinary surgeon said the horse had a splint, and
was no doubt lame at least a month before she was sold to
plaintiff.
Other witnesses were called, who proved that the horse
was lame, and that it could be seen walking or trotting,
and Mrs. Clark said that defendant called upon her, and,
after some conversation, he recommended the mare being
sent out to grass, and if it did not recover its sale he would
be a share of the loss.
Mr. Stammers, for the defendant, then contended that
there had been no warranty given. Defendant did not dis-
pute the lameness of the horse, but plaintiff had bought it
with his eyes open. In fact, according to the testimony
of some witnesses called for plaintiff, this mare was a well-
known " bad 'un." The evidence adduced for the plaintiff
clearly showed, that:a warranty was asked for and refused,
and the words " sound as a brass bell" were nothing. He
would call the groom, who would tell the jury what really
transpired.
Corbett said he had left defen.dpt's service, but re-
membered plaintiff's calling about a bay mare. This wit•
ness materially confirmed the evidence of plaintiff. At all
events he would not swear that he did not say, "As sound
as a bell."

Cross-examined—" Witness knew the horse was lame
when plaintiff came to buy it. Did not tell plaintiff it was
lame. (Laughter.) That wasn't his business ; plaintiff
had eyes. (Laughter.) Might have said the horse was
sound as a bell, but knew it was lame.
Mr. Worth, jun., was called, and deposed that he did
not hear the words " sound as a bell" used. Was present

when the mare was bought, but never said she was lame.
Mr. Metcalfe said he would dispense with that witness,
as he had the former as the acknowledged agent of the
defendant.

The defendant was then called by Mr. Metcalfe (the
other side declining to put him in the box), and, in answer
to various questions, it was elicited that the mare was lame
when he (defendant) purchased it in May last ; that he
knew it was lame when he sold it to plaintiff—but he did
not sell it on account of lameness. It was not so very lame.
Never said in a public-house he was jolly well out of it.
He (defendant) only wished to do what was right.
(Laughter.)
Mr. Metcalfe—Have you handed back plaintiff his
I money ?

Mr. Metcalfe then summed up to the jury, and denounced
in strong terms defendant's conduct. He know the jury, as
men of common sense, would not attend to any legal quib-
bling, but would give plaintiff what he was entitled to—
the money that had been taken from his pocket for a lame
mare, which he had purchased upon a representation from
defendant's agent that it was sound.
The Judge then elaborately summed up against the
plaintiff, and told the jury that he was of opinion there was
no warranty, but it was for them to say. He then called
attention to the evidence and marked some discrepancies.
One person had sworn to a "bell," another to a " brass
bell." Witnesses had been called for plaintinif who had
sworn that the horse was notoriously lame, and this could
bo seen when the mare walked. Plaintiff had himself
sworn that the groom told him his master would not war-
rant a dog, and the mere words, " sound as a drum," were
only stable slang. He was aware a great deal of feeling
wits prominent on each side, but the jury must disabuse
their minds of all local associations connected with the affair,
and treat the matter as strangers.
A Juryman—ls your Honour of opinion that " sound as
a bell," does not constitute a warrantry ?
Judge—Coupled with the preceding remarks, I say cer-
tainly not.
Mr. Metcalfe—l shall note that, as it may be necessary
to appeal.
The jury then retired, and, after an absence of about ten
minutes, returned, and gave plaintiff a verdict for the full
amount.

SHERIFFS' COURT.
(Before Mr. Prendergast, Q.C.
A WITNESS IN A BREACH OF PROMISE OF MARRIAGE.

TIDMAS V. WELLS.

Mr. Forrester, from Mr. Beard's, appeared for the de-
fendant, from whom plaintiff sought to recover a sum of
£1 ls. for attendance upon a subpoena at the Guildhall in
the cause of Reed v. Wells, breach of promise of marriage.
Plaintiff stated that he was managing clerk in Messrs.
Pickford's shipping department. He was subpeened by
defendant, but was not called. His evidence would have
been in favour of plaintiff in the breach of promise case.
He knew plaintiff. She gained the cause. Had good
damages. (Laughter.) He attended two days.
Mr. Forrester contended that Tidmas could not recover,
as he had received one shilling with the subpcena. It was
laid down in Chitty that a witness could not recover for
loss of time, unless he were an attorney, surgeon, or the
like.

Plaintiff—I was obliged to employ a substitute, and was
not paid my salary during my absence.
His Honour was of opinion that plaintiff could recover
under the circumstances.
Mr. Forrester thought plaintiff should prove his expenses,
and in fact his claim was exorbitant.
His Honour—You must pay him what his evidence
was worth; you did not call him because his evidence was
not favourable.

Mr. Osgood thought the sum claimed was not too much.
The master would allow it.
His Honour—l think he can recover ;he ought to have
his guinea. He was called to a superior court, and upon
a superior trial.
Verdict for the plaintiff.

DEATH OF SIR ARTHUR DE CAFELL BROOKE.—
We have to record the death of Sir Arthur De Capell Brooke,
Baronet. The deceased was born in Bolton-street, May-fair,
in 1791, and married in 1851 the relict of J. J. Eyre, Esq.,
of Endcliffe, near Sheffield. He was educated at Magda-
len College, Oxford, where he took his degree of Bachelor
of Arts in 1810, but his name does not appear in the honour
list. In the same year he entered the army. In 1846 he
became a major. Tho first baronet, Sir Richard Brooke
Supple, assumed the name of Brooke, in accordance with
his uncle's will, and adopted the name of De Capell, in lieu
of Supple, by Royal license. The deceased baronet is suc-
ceeded in his titles and estates by his brother William,
who was born in 1801, and married in 1820 a daughtei ox
Lord Souders.