The Sun.
London, England, 1859-05-05 00:00:00

LA TV INTELLIGENCE—May 4.

COURT OP QUEEN'S BENCH.
BIRCHAM AND OTHERS V. WALKER.
The facts of this case were placed on the judge's
notes at the trial, and the learned judge, Mr. Baron
Martin suggested that the judges of this Court
should lay down the law, and also draw any infe-
rences which were to be drawn•from the facts. It
appeared the plaintiffs, three in number, were
members of the firm of Birchams and Parmiter,
brewers, at Reepham, in the county of Norfolk.
The defendant had petitioned the Insolvent Court,
and the question was whether he had give!'
sufficient notice to the plaintiffs, so as to bar
their right to recover their debt against him
in this action. The notice had been directed io
" Messrs. Birchring and Parmiter, brewers, Run-
ham ;" it thus contained two errors, one in de-
scribing the " Birchams" as " Birchring," and the
other in describing their place of business as at the
small village of " Runham," instead of the town of
" Reepham," which was thirty or forty miles dis-
tant. It was admitted that the notice never reached
the plaintiffs, who knew nothing about the defen-
dant's insolvency till twelve months afterwards.
Mr. Honyman was heard for the plaintiff's. Mr.
Pearce was heard for the defendant, and cited a
Nisi Prius decision by Mr. Justice Cresswell (5,
Bing. N.C., 68), in which it was held that such a
notice was sufficient, if there was a reasonable pro-
bability that it would reach the party.
Lord Campbell said that, as the fact was referred
to the Court, it might be a question whether the
Court should be unanimous. 'His lordship then
proceeded to say that the proper question of
law was put by Mr. Justice Cresswell—viz.,
whether there was reasonable expectation that the
notice would reach the creditors. That was the
question which he (Lord Campbell) asked himself;
and, answering it as a juryman, he should say that
the notice might reasonably be expected to reach
the plaintiffs. The plaintiffs were eminent brewers
at Reepham, and probably known by every post-
master in the county; but there was no brewery at
Runham, and the probability was that when the
letter reached there it would be sent on to Reepham.
His lordship thought the mistake in the name,
"Birchring" for " Bircham," was immaterial. His
lordship added that this was a mere question of
fact, and could not be a precedent for any other
case; and that he was much influenced in his
opinion by the fact that the plaintiffs were emi-
nent brewers. There was no reason to suppose that
the defendant had attempted any fraud, but he had
done his best, and what was likely to gain the
object the Legislature had in view.
Mr. Justice Erle said that on the question of law
the members of the court were all agreed. But
they had also to answer the question in the capa-
city of jurymen. The foreman of the jury (Lord
Campbell) was of opinion that the plaintiffs were
" eminent brewers ; but he (Mr. Justice Erle) could
not see that they were such brewers that the letter
was likely to reach them. He was glad, however,
that the defendant was on other grounds entitled
to the judgment of the court.
Mr. Justice Crompton said die onus of proving
that a right description had been given lay on the
defendant; and that if a wrong description had
been given, so as not to be likely to get to the
plaintiffs, it would be insufficient, though there was
no fraud. As to the facts, his lordship said he was
not without doubt, but still he did not dissent from
what had been said by the Lord Chief Justice.
Mr. Justice Hill said he thought there was a
reasonable probability that the notice would reach
the plaintiffs, and that the rule should be made
absolute, to enter the verdict for the defendant.
Rule absolute accordingly.

In the Insolvent Court Mr. Commissioner
Murphy, this day, alluded to the above important
decision, and informed the gentlemen of the bar
that he would henceforward act in accordance there-
with, The learned Commissioner has always
evinced a strong objection to mere technical objec-
tions, and yesterday overruled three raised by a
very eminent barrister.