The Sun.
London, England, 1842-02-22 00:00:00

VICE-CHANCELLORS' COURT, Feb. 21.

The Vice-Chancellor of England took motions to-day, it
being the second seal, but no case of any interest, except to the
parties concerned, came before his Honour during the morning.
(Before Vice-Chancellor BaucE.)
BURAIDGE V. HOW.

His Hoxotre said, I have read the petition in this case, and
I apprehend that it does not seek to affect the bond fund ; it is
the policy of insurance fund. The increase of the policy of in-
surance fund is payable to this lady for her life, and in the ori-
ginal settlement the trustees were to pay it in the same manner
as the other fund. The other fund was for the whole of her
life, but independently of the then husband only. Therefore
it may be a question at least whether that singular deed, the
second one, could have any operation in this particular.
Dlr. SIMPKINSON—In reading over the petition it struck
me that that singular deed was of no avail whatever—that rho
had no power at all during the coverture.
The Vice-CHANcer-Loa.—Otherwise the suit would be
wrongly framed from the beginning. This does not seek to
touch the bond fund. _

111 r. SimrriNsos.—Only the insurance fund.
His llosou it (after reading part of the petition) said—Then
upon this application the arrears of dividends upon this fund
will be paid or transferred to her, and the dividends for the
future paid upon her separate receipts until further order. The
decree Niii be dated as of to-day. You must totally discard
the language of the prayer of the petition in the language of
the order.

(Before Vice-Chancellor WIGRAM.)
SUTTON V. TORRE.

His lioNoust gave judgment in this case. The question to
be decided was the construction of the residuary clauso of the
will, so far as it related to that part of the testator's estate which
was given to his daughter, Lady Harriet Manners Sutton, now
Lady Harriet Everton. There was no dispute as to the parties
mentioned by initials. Now taking the bequest alone, it was a
bequest " To my daughter H. B. M. S., and her younger chil-
dren of the one part." 'What was the construction of those
words taken simply by themselves? If there were a be-
quest of personality to a number of persons, named
A, B, C, and D, and nothing more, there would be no doubt.
that those persons would take as joint tenants. So also, if there
were a class of persons described as children anti grandchildren,
or if, instead of being a simple bequest, a stranger were added,
no doubt they would take as joint tenants. The question was,
whether, if the person who was not of the class expressed to be
a parent, and there was nothing more in the will, the con-
struction would still be the same as regarded the joint tenancy.
The cases fully warranted him in holding that it would. It
had been stated at the bar that the Vice-Chancellor of England
had made an adverse decision, and if that were so, he should
scarcely have feif himself justified in departing from it ; for there
was no Judge whose opinion he respected more highly on such a
question. He had since had an opportunity, however, of con-
sulting him on the subject, and the Vice-Chancellor of England
said that, so from entertaining any doubt as to what in the ab-
stract the construction would be, in a case which was heard be-
fore him. he had held that a child not born at the time of the death
of the testator, but IN ho was living at the time of the death of a
tenant for life, took solely, all the other children having died
in the interim, thus affirming the principle of a joint tenancy to
the utmost extent that it could be followed. The question
was then, whether there was anything in this case to vary the
construction of the will. Now, in the case of Lady Louisa
Cator it appeared that the bequest was to her for life, with re-
mainder
to her children ; in the codicil it was given to Lady L.
C. and her children for their sole use and benefit ; and, in the
subsequent bequest of the share of the residue to Lady L. Cator
and berchi!dren, it was given to her, &c. Whereas in the case
of Lady Manners Harriett button, it was nut given in any way
to her sole me; it was given to her, and not to all her children,
as in the case of Lady Louisa Cator, but to her and her younger
children, and then he afterwards gave over the share which had
been given to his brothers and sisters ; it was given to
her and her younger children, repeating the same
words. In this case, therefore, he had nothing whatever to
justify him in departing from the literal construction of the
words, excepting the circumstance that in another case, where
the bequest materially differed from this, the Court had held
that the construction should be different. That was not the
case of the same legacy, but the case of its being given to an-
other child. The declaration which he must make was, that
they were entitled as joint tenants ; and, it being alleged that
some act had been done whereby the joint tenancy had been
severed, he referred it to the Master to inquire whether any such
act had been done.

COURT OF Q UEEN'S BENCH, Feb. 21.
(Sittings at Nisi Prius at Guildhall, before Mr. Justice
COLERIDGE and a London Common Jury.)
UNDERWOOD V. KING.
This was an action brought by the plaintiff, a livery stable•
keeper, to recover the value of a horse which had been hired
of plaintiff by the defendant, and which had been killed in
consequence of defendant's negligence.
It appeared from the evidence that the defendant had hired
a horse and gig of the plaintiff for the purpose of going to
Croydon. The plaintiff's foreman brought the horse and gig
to the Green Dragon in Bishopsgate-street, where the defendant
was residing, and defendant then told plaintiff's foreman that he
should return from Croydon the same evening. It appeared that he
arrived at Croydon the same day, accompanied by a lady.
They remained at Croydon that night, and the next day left at
twelve in the gig, and returned at seven o'clock, having in the
interval driven to East Grinstead and bark, a distance of forty
miles. On his return the ostler at the inn at. Croydon observed
that the horse went lame, arid on examination discovered that
he had lost a shoe, and his hoof on the fore part had been worn
clown to the quick. The ostler informed the defendant of the
state in which the horse was, and defendant ordered a shoe to
be put on. This was done the next morning, and defendant
set off to drive to London, the horse going very lame, on
three legs only. Instead of returning to London, how-
ever, defendant drove to Richmond, and on his arrival
there the appearance of the horse excited considerable
attention ; he was examined, and it appeared that his leg was
broken. '1 he defendant at first denied that this was the case,
but, on examination, it appeared that such was the fact, and
ultimately the horse was shot. Plaintiff offered to enter into
an arrangement with the defen;.ant, and to accept of IW. to
avoid litigation. 'lie defendant refused to enter into any
arrangement, and this action was brought to recover 231., the
value of the horse.
For the defence it was contended that the hiring was not as
stated for ono day, but for an indefinite period, and that the
value of the horse was considerably less than the sum sought to
be recovered.
The Jury returned a verdict for the plaintiff, damages 231.

COURT OF COMMON PLEAS, Feb. 21.
SAWASKIKSVICZ V. LAWSON.
This was an action on the case against the Times newspaper,
to recover remuneration arid compensation for the publication
of extracts in that journal from a pamphlet written by the
plaintiff, an exile, and late Captain in the Polish army, and en-
titled the " Eastern Question—Can it be satisfactorily settled?"
It appeared that the plaintiff, in October, 1840, procured a
friend to submit to Mr. Barnes, the late editor of the Times,
for his approbation, a manuscript bearing the above title, of
which Mr. Barnes expressed a most favourable opinion,
suggesting, however, that the most convenient way
to make toe of it in the Times, was in the shape of a review.
lie proposed, therefore, that the plaintiff should get a bookseller
' to publish it in the form of a pamphlet, and promised that if
that were done and a copy supplied to the Times, before any
other paper, he would write a favourable notice; and, at the
same time, he requested to know what remuneration the plain-
tiff would expect? To the latter inquiry, the defendant wrote
to say that he would accept any remuneration
which Mr. Barnes would consider adequate. The letter
of Mr. Barnes being shown to Mr. Ridgway, he
unhesitatingly undertook the publication, not so much
(as he had this day stetted in court) because he expeested
a favourable report in the Times, for he considered the sale of
a book as much promoted by an unfavourable as by a favoura-
ble notice, but because he relied on the judgment of Mr.
Barnes, and did not doubt that the pamphlet would prove
attractive. However, a notice of nearly three columns, con-
taining copious extracts, having appeared in the Times, before
the work was actually issued, no more than 25 or 30 copies
of the book were sold. The plaintiff alleged that the copious-
ness of the extracts were the cause of the failure of circulation,
stud therefore claimed from the defendant the expenses of the
publication, ore the ground that he would not have undertaken
et but for the purpose of accommodating the Editor, and with
the expectation of being compensated. The defendant referred
to the plaintiff's own letters, anti refused the claim. Upon this
the action was brought, and the defendant paid 10/. into Court.
Alter a few minutes consultation, the Foreman of the Jury
said that they considered the 10/. sufficies.t remuneration, and
therefore found for the defendant.

COURT OF EXCHEQUER, Feb. 21.
Prius sittings at Guildhall. Before Lord ABINGEn and

a Special Jury.)
SHARPE V. TIIE BRISTOL AND EXETER RAILWAY COMPANY.
Mr. Richards and Mr. Martin appeared fur the plaintiff ;
the Solicitor-General, with Mr. Wortley and Mr. Talbot,
were Counsel for the defendants.

This was an action brought for the recovery of a balance of
the price of five locomotive engines, stipulated to be finished
at 1,7651. each, by Messrs. Sharpe and Roberts, the celebrated
engine manufacturers of Manchester, for the defendants. The
sum for which the action was brought was 2,3751., and the
defence set up was that in the construction of the engines
the plaintiffs had departed from the agreement or specification
entered into between them and the defendants, by using iron
fastenings or rivets in making the fire boxes instead of copper
fastenings, which they were bound by contract to use; it ap-
peared that the plaintiffs had built ten engines for the Great
Western Railway Company, who subsequently became con-
nected with the defendants, and that they stipulated to build
the five engines in question, precisely on the same principles,
and in every respect the same, as the Great Western Railway
engines, the fire boxes of those engines were made with
copper rivets, but the plaintiffs substituted iron, because as
they alleged it was more durable, of more absolute strength,
and more capable than copper to withstand the power
of expansion. This variation from the original contract
was not discovered until some time after the delivery
of the engMes, and then the defendants objected to pay for the
engines on the ground that the substitution of iron for copper
was never acquiesced in by them, and that they considered
copper fastenings better and safer. It now appeared in evidence
that the substitution of iron for copper rivets was a substan-
tial and practical improvement, and that that, amongst other
deviations from the original specification, had been made for the
advantage of the defendants. and to render the engines more
durable. In enany instances the alterations ,cost the plaintiffs
more than the construction of the engines, according to the
original agreement, would have amounted to. The plaintiffs
had turned out '2OO engines within the last three years, anti
none of them had copper rivets. They were all very much
approved of.
Sir. Gregorie, an engir.ser employed on the Croydon line,
deposed that iron rivets were much better than copper. Iron
might be more safely heated to a greater degree than copper ;
besides, it was more powerful, and capable of drawing the
flanges, which form the copper joints of the fire-boxes, much
closer than iron. In saying that iron could be heated to a
greater degree than copper more safely, he meant that it
could be heated to a greater degree without deteriorating
the quality of the metal ; the tenacity and strength
of iron were greater than copper, and in contracting,
it exercised greater force. Iron contracted more rapidly that
copper could, it was better for rivets because it had the power
of drawing the joints together more tightly. There was no fear
of cot rosion. It was observed that the heads of copper bolts used
in fire-boxes were worn away whilst the heads of iron bolts
used for similar purposes were comparatively sound. There
were several engines supplied to the Croydon Railway Corn-
pang by Messrs. Sharpe and Roberts (the plaintiffs). All of
them were made with iron rivets—they had now been working
on that line for four years, and there was no reason whatever to
complain of them ; the iron fastenings were found to be much
better than copper.
Mr. Thomas Stethen, engineer of the Brighton and London
Railway Company, and Sir. Fife, engineer of the Northern
and Eastern Counties Railway Company, likewise deposed that
iron rivets were preferable to copper.
The SOLICITOR-GENERAL objected to the opinions of the
witnesses being received as evidence, and addressed the
Jury for the defendants. The simple question was whether the
plaintiffs had complied with the contract entered into between
them and the defendants or not, and if not, whether the de-
fendants had waived the .non-compliance by receiving
and using the engines in question prior to the discovery of
the defects in them ; that the plaintiffs should be strictly tied
down to the terms of the stipulation they had entered into; as
to the degree of latitude to be allowed in deviating from the
particular contract, he denied that the plaintiff had liberty
from the defendants to deviate from the terms of the specifica-
tion without the consent of Mr. 13runel or Mr. Gouche, the
engineers of the Company. A proposition, it is true, was
made to Mr. Brunel, to alter the contract by making some
of the stays or bolts from copper instead of iron, but Mr.
Brunel, on behalf of the defendants absolutely refused to ac-
quiesce in such an alteration, because it was found that the
copper bolts had worked well in the engines of the Great
Western Railway, and therefore no consent had been given to
alter or deviate from the specification in that respect. He
contended that the plaintiffs could not maintain their action, as
they had deviated from the terms of their written contracts.
Mr. Daniel Gouche, one of the engineers of the Great
Western Railway, proved that the fire-boxes of the 112 engines
on that line, with the exception of those supplied by Messrs.
Sharpe and Roberts, were made with supper rivets. Had
seen all the engines supplied by Sharpe and Roberts from time
to time, at.d did not discover that the rivets were iron until
long after they were delivered to the defendants. The whole
of the ten engines delivered to the Great Western Railway
were defective.

Lord ABINGER asked when these engines had been delivered?
The Witness stated that they were to the best of his recol-
lection delivered in 1840 ; they had all done considerable work.
The five engines delivered to the defendants had not done
touch work, the boiler of one of them (the Panther) failed
and burst; it failed near the door.
Lord ABINGER—CouId you form a judgment whether that
failur, in the Panther engine was owing to iron rivets being
uscd?

Nt'itness—l don't know. We have had no proof of that. I
have had conversations with Messrs. Sharpe and Roberts, but
I never on any occasion consented to the substitution of iron
rivets for copper rivets. It was never mentioned to me. lam
still in the employment of the defendants.
Mr. Brunel, the other engineer, deposed that he had never
authorised the plaintiffs to use iron instead of copper fastenings.
Mr. Ric luaus contended for the plaintiffs that the de-
fendants had acquiesced in the deviation that had been made
from the terms of the agreement, in using iron instead of
copper rivets, and in may event the departure, according to the
evidence, must have the effect of serving the defendants in
rendering the engines more efficient and durable, while it
could be of no advantage to the plaintiffs, the difference of cost
being only a few shillings in cash engine for copper fastenings.
Lord A BINGE R, in summing up said, that with regard to 625/.
being the balance of one of the engines delivered to the defend-
ant and not objected to, they were bound to find a verdict for
the plaintiff. The question then was, whether 1,7501., being
the price of another of the engines delivered to the defendants.
should not be added to that sum ; that engine had been ob-
jected to because it was not executed in the way specified in a
contract entered into between the parties ; it was true that if
a man ordered work, and if it was not done according to the
contract, and as it had been ordered, it could be rejected ; on
the same principle, if the engines in question were not made as
they were ordered, they could be rejected by the defendants ;
but then they Jury would have to determine whether the con-
tract had been substantially performed—whether the objection
taken long after the delivery of the engines, arose from some
collateral cause ; the contract was not to be inferred merely
from the specification—there were many engines delivered by
the plaintiffs to the defendants, and the
,jury should consider
whether there were not abundant opportunities for the defend-
ants to cons.der the deviation that had been made from the
contract ; it might have been easily ascertained but no inquiry
had been instituted, and no objection made. Several engines
made with iron rivets had been received and had not been ob-
jected to by the defendants. That seemed as if they had
approved of them, and if they wore, in point of
of fact, aware of the deviat ion in that respect, from the terms of
the agreement, that acquiesence on the part of the defendants,
gave rise to a new contract, by which they should now be
bound, if the jury thought that the alteration had not been
made with a fraudulent intention, but with a view to effect a
substantial improvement in the machinery, and that the de•
fendants having had sufficient time and opportunity to dis-
cover that the alteration was made, acquiesed in it, and per-
mitted it to be made, particularly when it was for their own
advantage, a verdict should be returned for the plaintiffs but
if the jury were of opinion that the deviation was not aequiesed
in by the defendants, and that it was detrimental to their in-
terests, they should find a verdict for the defendants.
The Jury immediately handed in their verdict for the plain-
tiff, for 2,3751. damages and interest.