The Sun.
London, England, 1866-02-15 00:00:00

THE SUN, LONDON, '.THURSDAY EVENING, FEBRUARY 15, 1866.

LAW INTELLIGENCE—This Day.

COURT OF QUEEN'S BENCH.

(Before the Lord Chief Justice Cockburn and a Special
Jury.)
WALKER V. MILNER AND OTHERS.

The hearing of this cause, the opening of which appeared
at length yesterday in The Sun, was resumed this morning
by the examination of witnesses on the part of the Messrs.
Milner.

Mr. Hopley, the manager of the establishment of Messrs.
Milner in Moorgate-street, NA as called, and submitted to a
long and minute examination to prove that it was not in
his power to warrant the safes. He stated positively that
when the Messrs. 'Walker came to their house to purchase
the safe he never gave them a *errantry that the article he
was selling was burglary proof. It was not the practice of
the house to do so ; in fact, he was strictly prhibited from
stating so. He would undertake to swear that when
the invoice was sent to Messrs. Walker they had not a
circular in use with a different sketch on it.
Mr. Seymour (counsel for Messrs. Walker)—When you
sold the safe to Mr. Walker did you believe the property
placed in it would be perfectly safe ?
Witness—l did. I never heard of any of our safes being
broken open up to that time. never insured the safety of
property placed in any of our safes.
The learned counsel here read an extract from one of
the circulars issued by the firm of Milner and Co., stating
that by property being placed in their strong holdfust safes
perfect safety would be insured from fire and thieves.
The Lord Chief Justice did not think that the term
"insured " in the prospectus bore the meaning the learned
counsel for the Messrs. Walker was putting upon it.
The circulars issued by the firm previous to the burglary
represented that " perfect safety was insured" by the use
of their safes, but in those issued afterwards it was only
stated to be " strongly secured."
The Lord Chief Justice thought that was saying too
much, after the fact that one of their safes had been
opened under the circumstances so well known.
Witness, in answer to further questions, said Mr.
Walker told him ho was going to place watches and
jewellery in the safe, but he never said anything about
its being left all night on the premises without any per-
son being there. He could not swear he did not go to
Mr. Walker's premises and see the safe fixed after it
was purchased, but he believed not. He recollected
Mr. Berdoe, an outfitter, in Cornhill, bought a
safe some years ago. He never said to him it was
burglar proof. He never told him that it would hold out
from Saturday to Monday, with perfect safety, against any
burglarious attempt. Ho was quite certain of that. He
was paid a salary by Messrs. Milner, and also a commission
of If per cent. He received that commission on the safe
sold to Mr. Walker.
Mr. Seymour--I perceive in one of your circulars safes
of this description, " lighter and cheaper than thief-proof
holdfasts," what is meant by the last three words ?
Witness—l suppose it refers to No. 3in the list.
A Juror—What do you say when you are asked by a cus-

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tomer what you mean by the term strong holdfast-safe.
Witness—l tell them they aro very strong safes. List
No. 2 is called " fire resisting," and list No. 3, " strong
holdfasts."

A juror—What appears on the small plate in the centre
of the safe now in court ?

46 74 62 6 7

The paint was removed from the plate and the inscrip-
tion was read. It contained the words " strong holdfast,
gunpowder proof, and picklock proof safes."
The evidence of the defendant, Mr. Milner, taken by
commission, was then read. It stated most distinctly that
Mr. Ilopley, their manager, was not authorised to give a
warranty for these safes against burglarious attempts.
Mr. James, the counsel for Messrs. Milner, said ho did
not wish to occupy the time of the Court with the exami-
nation of scientific witnesses; the question for the jury
was warrantry or no warrantry.

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The Lord Chief Justice—That is, in fact, the question in

17
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issue.

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Mr. Brown (counsel for Messrs. Walker), said he
should like to have it stated whether or no the warrantry
was, if one was given, of a continuous nature. It would
save time in a higher court.
The Lord Chief Justice said he should not alter the de-
claration in order to fix the defendants for a warrantry for
all time.

The evidence being closed

Mr. James proceeded to address the jury for the defen-
dant, to show there was no warranty, and had proceeded

'or a short time, when
Mr. Digby Seymour said, the case having terminated so
suddenly, he was taken a little by surprise. He should
like to put Mr. Burdoe into the box to speak to the circum-
stances attending the safe he had purchased of the Messrs.
95 Milner.

,ITI Es.

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The Lord Chief Justice thought it quite unnecessary to
burden the case with going into matters connected with
another safe.

1051 6

WI
Mr. James then proceeded with his address for the de-
fendants. He contended that it had abundantly been
proved that no warranty had been given, and that the
plaintiff had altogether failed to make out his case.
Mr. D. Seymour replied on the whole case.____Re_said
ho thought he -hair-dbUnaantly proved the case for the
plaintiff. He would ask the jury as men of common sense,
to ask themselves what the term " holdfast thief proof-
safe" meant. He thought there could be little doubt
but that they would come to the conclusion that tho
conversation implied a warranty, beyond all. question.
The circular also went to show—

The Lord Chief Justice—Mr. Seymour, if your going
to tell the jury that words used in the circular, issued by
Mr. Milner, amounts to a warranty, it will be my duty
to tell them it does no such thing.

Mr. Seymour said he was about to show that the circular
bore out the evidence of young Mr. Walker, who corro-
borated the evidence of his father, viz., that Mr. Hopley
was distinctly asked whether he could warrant the safe
when it was purchased, and he then distinctly stated that
he could. His client now sought to recoup himself for
the loss he had sustained by the reliance he had placed in
the representations of the defendants, and he hoped the
jury would think he had done but what he had a right to
do in taking this step.
The Lord Chief Justice, in summing up the case, said it
was now in a very small compass ; the question whether
Mr. Hopley had authority to warrant the article would re-
main for future consideration. What they had to consider
to-day was whether he did give the Messrs. Walker a war-
ranty when the safe was purchased. Mr. Walker said ho
did, and Mr. Hopley, the manager for the defendants, as
distinctly says he did not. The son of Mr. Walker says
an affirmative answer was given his father when he asked
Mr. Hopley if he could warrant the safe as thief proof, and
that Mr. Hopley further said his father would be perfectly
safe in leaving his property in the sate. It was clearly
proved that Mr. Hopley had no authority to warrant the
safes on the part of his principals ; on the contrary, it ap-
peared most distinctly that he was strictly prohibited from
doing so. The learned judge then carefully went through
the evidence, and dwelt particularly on the conversation
which took place when the safe was purchased. The de-
fendant's manager, it would be rocolle cted, taking Mr.
Walker's evidence into consideration, in reply to the question
whether he could warrant the safety of the property placed
in the safe, did not reply that he could warrant it, but that
Mr. Walker could rest perfectly secure that the safe he
had purchased was a good one, and that it could not be
opened without the key. It would be for the jury to de-
cide whether there was a warranty, and that was the only
question they would have to decide.

The jury then retired to consider their verdict, and after
an absence of twenty minutes returned into court with a
verdict for the defendant.

The Lord Chief Justice—You find there was no
warranty.

Foreman—We do, my lord.

VICE-CHANCELLOR'S COURT.
(Before Vice-Chancellor Sir J. P. Stuart.)

ARDEN V. PARRT.-EDWARDS V. PARRY.-TILE HOLBORN

THEATRE.

Mr. Bacon and Mr. Dickinson wore for the plaintiff
Arden ; Mr. Greene, Q.C., and Mr. C. Park for the plaintiff
Edwards ; and Mr. Mathis, Q.C.,and Mr. Angelo Lewis for
the defendant.

The plaintiff in both these cases moved for injunctions
to restrain Mr. Parry, the proprietor of the Holborn
Theatre, which is nearly completed, from erecting a wall
at the back portion of the theatre, which, it was alleged,
would obstruct the free admission of light and air to cer-
tain houses, of which E. Arden is the landowner, and the
other defendant the landlord.
• The hearing of these motions has already occupied two
days, and was resumed this morning. The evidence,
which consisted of affidavits of several architects on both
sides was voluminous and conflicting, and in support of the
plaintiffs' case there were also affidavits of the tenants of
the premises, which, it was contended, would be injuriously
affected by the rioposed wall.
The counsel for the plaintiffs having been heard in
behalf of their respective clients,

Mr. Malins this morning proceeded to argue the case on
behalf of the defendant. He contended that there was no
evidence to show that the intervention of the court, either
by interlocutory or injunction, was rendered necessary. Of
its nature a more important case had never been brought
before a court of law, and it was one which so deeply
affected the interests of his client that he was anxious that
it should receive the most careful consideration of the
court before it was to be finally adjudicated upon elsewhere.
The law bearing on the question in their motion had under-
gone considerable modification lately, and he trusted the
court would give his client the benefit of that modification.
The building was nearly finished, and, being 66 feet wide
by 100 long, it involved the defendant in considerable ex-
pense, amounting, as he was informrd, to £lO,OOO already.
The defendant was a gentleman who bad for a long time
been connected with theatres, and had been very success-
ful in some of the theatres which he had erected.
It was suggested to him in 1864 that a theatre
was required in the neighbourhood of Holborn,
and that it would be popular and profitable. The defen-
dant, who was a man of enterprise as well as success, im-
mediately availed himself of the suggestion, and, having
canvassed landowners and tenants in the neighbourhood,
he found there was a general feeling in favour of the pro-

posed theatre, which was manifested by the presentation
of petitions in favour of it to the Lord Chamberlain.
The site occupied by the building had become
a receptacle of decayed vegetables, stagnant
water, and other matter of an offensive description.
That nuisance had been abated by the erection of a
theatre, and it appeared strange that the plaintiffs should
object to what had been the mean' of doing a great ad-
vantage to their property. Vice-Chancellor Wood, as
trustee of the Doughty estate, gave his sanc-
tion to the erection of the theatre, which was to
be completed within a given time under a penalty of £l,OOO.
The defendant also became liable to the Court of Chancery
for a rent of £lOO a year for GO years. The excavation
commenced in November last, and considerable progress
was made before any exception was taken to the erection of
the building. The site had been enclosed, and a large board
posted outside describing it as the site of the Holborn Theatre,
while notices had been served on the different tenants in
the neighbourhood apprising them of the erection of the
intended building. In law a notice to a tenant was de facto
a notice to a landlord or a landowner. Nethwithstanding
that, it was not before July last that any objection was
made to the erection of the building. He contended that
the plaintiffs had acquiesced in the building of the theatre
by not opposing it before, and that they were not conse-
quently to call the court into action on their behalf.

His Honour doubted whether non-opposition up to a
certain period could be construed into acquiescence.
_ _

Mr. Malins said that if his Honour's views were correct
it would put an end to the construction of any large build-
ings in the metropolis. The learned counsel then pro-
eeeded to cite several cases bearing on the question at issue.
His Honour suggested that Mr. Parera, Mr. Nelson, and
other architects and surveyors engaged for the parties,
should lay their heads together and give the Court the re-
sult of their consultion to-morrow.
The motion accordingly stood over.

POLICE INTELLIGENCE.—This Day,

____.,•___

MARLBOROUGH-STREET.
THE POLICE AND THE PUBLIC—CHARGE OF RESISTING
AND ASSAULTING A CONSTABLE AT A EIRE.—Mr. Thomas
Walton, assistant to Mr. Squires, chemist, 227, Oxford-
street, was charged before Mr. Knox with resisting and
assaulting police-constable' Thomas Beal, 119 0, while in
the execution of his duty at a fire at Messrs. Laurie and
Marner's, the coachbuilders, in Oxford-street. ,
Beal said that on the previous night between nine and
ten o'clock he was on duty at a fire in Oxford-street, and
saw the defendant pushing his way through, stating that
he wanted to see an engine work, as he had never seen
one. He pushed the defendant back, when he resisted a
good deal, became very violent, and. struck him in the
mouth, and he was obliged to get assistance to take the
defendant to the station.
The defendant said that he had been looking at the fire,
and walked through between two police-constables, the
fire being then nearly out, and very few persons about
The constable (Beal) who was then standing on the pave-
ment made a rush at him, and pulled him back amongst
what crowd there was. Another constable then came up
and interfered in his (defendant's) behalf, and told him that
persons were not admitted through during the fire. He
told that constable that that was common sense, and the
way persons should be treated, and not roughly used. He
never struck the constable (Beal) at al], and the constable
never thought of taking him into custody till he went up
afterwards to hiin, acting upon the advice of a gentleman
who was in court, and an entire stranger to him, to take
his number.
Mr. Woolley, No. 1; UpporMontague-street, said that at
the time in question there were about 50 persons standing
in Union-street. Several persons pushed their way
through, and the constable (Beal) was very insulting to
some of them in the remarks he made, saying to a gentle-
man's footman in livery, "Don't you want to go to No. 7?''
not that he (witness) knew what that meant. The con-
stable was very excited, and he believed the worse for
drink.
Mr. Knox asked the witness whether he understood him
to charge the constable with being drunk ?
The witness said he did. In fact he saw him leave his
post and go to a publichouse with others. He observed the
defendant walk in the centre of the road, and the constable
then ran after him and handled him very roughly, tearing
his coat, and pushed him back amongst the people. The
police allowed some persons to go through, and there were
plenty of persons walking about the street besides the
police. He (witness) went up to the defendant and advised
him to take the constable's number for the rough way in
which he had treated him. Shortly after the defendant
went up to the constable to take his number, and the con-
stable then spoke to some other constables, and rushed
back and took the defendant into custody. On the way
down Bond-street a young man (not a constable) walked by
the side of the constable a short distance, and he walked
to the other side of the defendant and took hold of his hand
(not that he was wanted). About 300 persons followed,
and the constable turned round and said, "Now, you go
back. You have no occasion to follow me, I am good
enough for two any day." He (witness), however, did fol-
low, and, when near Bruton-strsiet, the constable spoke_to
-dou ana he also went to the station with the defendant.
The constable asked the witness whether he did not see
the defendant strike him in the mouth while he was taking
his number ?
The witness said the constable said nothing about de-
fendant taking his number at the station last night.
The constable asked whether the defendant's coat was
not torn through trying to got away.
The witness said the defendant did not attempt to get
away, and that the coat was, torn through the constable's
violence.

Mr. Knox asked whether the inspector who took the
charge was in attendance.
Sergeant Bason, 12 C (acting-inspector), said the de-
fendant was brought to the station last night, charged
with resisting a constable and assaulting him at a fire in
Oxford-street. The constable said that the defendant
tried to push his way through ; that he desired him to go
back, and that then the defendant struck him in the mouth.
The constable said nothing about the defendant taking his
number.
Mr. Knox discharged the defendant, and told the Ser-
geant to let the case bo a matter of report to the Commis-
sioners of Police, for an inquiry into the constable's
conduct.

111-1 D EDITION.

SUN OFFICE, 7 o'CLocK.

SPORTING INTELLIGENCE.—This Day.

HARROW RACES-THIS DAY.
[BY ELECTRIC TELEGRAPH.]

The Two-year-Old Race. Half a mile. Run at I.
Lady Pam, Bonny, Fortune, and Transformation are here.
Bedhunite and Pelcrine expected.
Handicap Plate. Three-quarters of a mile. Run at
1.45.—L0rd of 'the Manor, Peignoir, Llarrgolan,
Holker, British Tar, Oxygen, Queen Bee, and Leah aro
here. Several others expected.
Selling Stakes. Five furlongs. Run 2.3o.—Duchess o
St. Albans, Oxygen, Leah, Finale. The Gem, and Killar
ney, all to be sold for £3O

Harrow Steeplechase Plate. Two miles. Run
Polly Hopkins, Dune Drown, Sinite, and Arlascott are
here.

Maiden Steeplechase. Three and a half miles. Run at
4.ls.—Sacramento, Bolingbroke, Geraldine, Amazon, and
Knighton Belle are here.