The Sun.
London, England, 1842-11-05 00:00:00

17, XT C 14,1 .
AA.W 1.-NTEIALI" 11"/

• eIIANCERY,—(THIS DAY.)
COTTRELL V. SIMMONS—JUDGMENT.
The Loup CHANCELLOR, gjye judgment in this
esli se • The matter • came before the Court sometime
Bowe' upon motion for the re-sale of certain property
under the decree of the Court. The sale took
Psl,a,e_e as far back as August 1838, soon afterwardsthat
Was confirmed, and the purchase money halt been
1'a,.1(1, into Court. Under such circumstances, and after
case
a lapse of time, the Court would require a strong
4e to justify it in ordering a re-sale. The application
at, that purpose was made in the name of the heir-
4, taw, Henry Flecknoe, who was an infant at the
l'lterallS of the sale, but had since come of age. He had,
ewer, made no affidaiit in support of the motion,
and it
well be doubted from the state of the
inte-
rest ni the present ease,:whether he had any inte-
tat all in the matter. It was admitted that Man-
hi,3 I'lJs.., the purchaser; did not make the purchase on
h oawn account, Vut for some of the defendants.
rere, Was much eohflieting evidence on the points
wawnom the purchase was made; in one instance, it
s. it was made for Edward Simmons:done, while
Sujinthe other hand it" was said it was for Edward
davitiri"s and his wife. Manning: stated in his affi-
gat, that he made it .for'Sinimons and his wife, but
been
was not at all' settled by the affidavit that
a,„ 1.
filed. Then it was said that the transac-
t'ilwas altogether irregular, as the previous sanction
h‘it .e. court to the biddings had not been obtained ;
:_nthat, in his Lordship's opinion, was not a suffi-
mtwidt ground for setting aside a sale. It was then
tran the price was grossly inadequate, that the
re. action was fraudulent, and on that ground a
that was asked. It was further suggested
the
.at the sale a report was circulated that it was for
benefit of the widow and children, in order to
erudite ever ue and damp the sale. That objection, how-
th was sufficiently answered, it was contradicted
e auctioneer and by Mr. Manning, the latter of
a Zalstated that it was supposed he was bidding for
elation of his own, a wealthy grazier. As to the
had :a reY ef price, it was sworn that every step
it was
ween taken to make the sale public, that
nem; ll attended, and that the biddings were
the ot.ro-111, and that good prices were offered. On
ferme er hand, several persons, had made affidavits,
petty and others, in which they stated that the pro-
worth.w:s„,snid grossly under its value, that it was
Rated 0,7: an acre free of incumbranee ; and some
have been
if it had been put up again, more might
statemeen obtained for it ; but there was no direct
such a n„tj'y any of the parties that they would give
this w, price. It was also not to be forgotten that
iea, a " the sale of a reversion, the purchase of which
Was eies of lottery, and if the sale as stated
Lordship
attended, and there were many bidders, his
vim the could not help thinking the result of the sale
the
market
fairest test of the value of the property in
votAltrket and the probability vas that the propertyr,
ship:uapot sell for more if put up again. His Lord-
sup,, at
considering all the facts relied upon in
that
of the motion, had come to the conclusion
to jus,h. ° sufficient case had been made out
Pleat;illy the Court in setting aside the sale ; such a
ti2e would be unjust to the creditors, and the iip-
Nv0,,,,0n therefore must be refused. The plaintiffs
fri,..`"o.have their costs, but the parties who had in-
Td the rules of the Court must not have theirs.
ba:i_te Couar then proceeded with the hearing of
krupt petitions.
This EX PARTE SMITH V. HALLIN.
sn fts_ ease came before the Court upon a special case
e nature of an appeal from the decision of the
8,70 t
,of Review. The appeal was on behalf of Mr.
pet:,‘," a. solicitor, who had acted professionally for the
itam'uoning creditor, and also under the fiat' in the
the` of Hallin. A petition had been presented to
that Court, of Review against Mr. Smith, praying
tee
,ue, might be ordered to pay to the official assig-
fe' sum of 95/. which he had received in his cha-
eyr or solicitor, on the ground that he had wrong-
e"l detained it. The Court of Review was of
nn that Mr. Smith was not entitled to retain
eordinninney, 'and ordered him to pay it ac-
appeal*, and from that decision the present
' was brought. From the statement of the
elarsel on behalf of Mr: Smith ; it appeared that he
In tried to keep the money on the ground of his hav-
liAgfiven an indemnity to the Sheriff, and also as a
the
ior certain costs. The circumstances out of which
lowelaini to retain the money was made, were as fol-
,s :-.---Shortly after the bankruptcy of Heflin, a
wa,ut arisin as to the validity of the fiat, an execution
hp,;41311t into. the house. of the bankrupt. The Sheriff
sm, taking possession refused to allow the as-
o-e" under the bankruptcy to take the goods ;
as. this Mr. Smith, with the consent of the
wilsign,he,es, gave the Sheriff an indemnity, upon
the h ne released the goods, which were sold under
Th,aakruptcy, by an auctioneer in Chancery-lane.
value auctioneer, being Mr. Smith's landlord, the
inoti-,,"1,, the goods was. not given to Mr. Smith in
ac,ceou',',„'",t it was 'allowed him m the settlement of
'itlithliZetween him and his landlord, and Mr.
tatcliiez to—th: offi
zpre7,ed Ilia readiness to pay over the
cfal assignee, provided he had given
the a eounte •
rresvnt r-lademnity ; but this being refused,
Mr. And.-fteedings were taken.
and Mr. Jerann appeared in support of the appeal,
Whose focrtes
Russell was counsel for the parties in
The Lon-r the judgment below was.
Itianthe sec 7b `-'llAficm,Loa said, after the facts stated
see
t bagcase were properly set forth, the appel-
earefull 0 loe
h 13
eo nsid
US stands in the Court, but he would
no
unceder the special case before he pro-
judgment.
BENCH.—(THIS DAY)
(Sittings in Banco.)
iteeeo „
The
the
-• Tnu EAST INDIA COMPANY.
Called thealynitelffmn this case was the owner of a vessel
'defendant for Fleming', which had been taked up by the
country to Ina.
cover a re-
balance the conveyance of troops from this
la; and the action was brought to re-
Plaintiff, being ce 4281.; alleged to be due to the
Paid by the defrtfilitd.
ease was tried ilantspart of the sum agreed to be
for the hire of the vessel. The
stittings after T
tiff for
tthe full before Lord Denman at the last London
Term, and the Jury found for the plain-
amount claimed.
Tor a new
ois. nairoßny
on the
now moved for a rule
Was 'contra r the ground that the verdict
rneater PortTo'nll.not to the whole, certainly to the
h-velting of
the evidence. This was a question
healthmatters of great importance as regarded the
the peu_intllrort, and convenience of troops during
0 her of, their passage from one part
• the ease per
s dominions to another. The facts of
engan...._, were theae. The East India Company had
tiffwas a vessel, called the Fleming, of which plain-
sole owner and master and which was of 600
lronldsierstl,rt3heonf,fi for the conveyance to India of 103
rare that by officers, and 2 women. The Court was
wasiocuosmActslld of Parliament the East
filCourt
y
to in the East at least
20toOnniploy in their do-
, 00 troops belonging
47 the Crown ; and that. they were bound to 'convey
"'use troops from, and bring themt back to this coun-
- ti?.. The Government, in order
the troops on the passage, had
moad
it securea the
regulationh e al t health
that no troops should be'
Which had any dogs embarked
on board any ship
aWarge of the board. The plaintiff' was
,that the t regulation, and also of the fact,
had
been taken
for the conveyance of which his ship
.114(1 been inspeneutedwbere
,Queen's troops. The Fleming
tilkio reported that shey-wasaii
Major-General
state for thaerdrecwehpn
ex:,a,t her Majesty's troops. At the time of this-
troo;nation there were no dogs on board. On the
pereei embarking, however, the commanding. officer
foundl.e4d a most offensive smell, and on inquiry
were i!‘ proceeded from a pack of fox-hounds, which
netv,..leunelled under the long boat. The plaintiff,
fug hstanding the remonstrance of the officer, re-
th p"" land the dogs. The matter was reported to
e •I°r° G • 'ordered that
the tr `e Guards, and the authorities
•to °23Ps should te disembarked, and should proceed
a
ef,td n some other vessel. The agreement of the
13°Iti i
ante had been to pay the passage money in two
111,..0nZt----one-third when the ship had been at sea two
% and the balance on her arrival in India.
to defendants, under the circumstances, had refused
ahip Kt2tly portion of the money, and, as soon as the
hea 71 been at sea two months, the present action
Inecr'en brought. At this trial some of the highest
teal
th
woui„ authorities gave it as their opinion, that it
"'nave been e troo extremely prejudicial to the health of
Ps to have gone out in a vessel which had dogs
the-Tr& The vessel had since arrived in India, and
esi had brought another action to recover the
ie
Lord tue passage money.
kwait the suggested that it would be better to
ajoo ,_lrna issue of that trial before making an applica-
tion new trial in the present action.
of p e,,orroaNey-Gematai, adopted the suggestion
pres"eant,t. rdship, and withdrew his application for the
CpOR v.This THE AYLESBURY RAILWAY COMPANY.
lands an action
abutti brought by a farmer occupying
to reeeive
clam
on the line of the Aylesbury Railway,
out of 9,anlaUes for certain cows which hadstrayed
traio, field upon the line, had been run over by a
ford, hefo destroyed. The cause was tried at Bert-
returned re the
Lord Chief Baron, and the Jury had
Mr, sea. verdict for defendants.
trialigeant SHEA applied for a rule nisi for a
against the on the ground that the verdict was
ltailwa, A Weight of evidence. By the Aylesbury
which the Company were bound to erect gatt s
theline,a__Tut oPen-inwards on all lands abutting on
the taaintinf(ll.ittn keep those gates in repair. On the part of
was shown that the gates were intended to
string to,
struction
as shut of themselves, but that their con-
°". Thvas so bad that the wind would blow them
that the ere was evidence on the other side to show
Learned Jitlciates were properly constructed. The
dut
was the ge in summing up told the Jury that it
repair.
”..y of the Company to keep the gates in
The Jury. retired, and delivered their verdict

in the absence of fh-e-L-Ord Chief flaren.-----The verlict
was in the following ''terms—" Verdict for. the de-
fendant; at the same time the Jury consider the pre-
sent condition of the gates capable of. improvement;
the condition of which they specially recommend to
the Aylesbury Railway Company." If it had not been
for the language used in the verdict, and the summon-
ing up of the Learned Judge, the present application
would most probably not have been made; but hd
submitted that the language of the verdict proved that
the Jury were of opinion that the gates were not pro-
perly constructed, and that therefore their verdict for
the defendant was against evidence. -
Lord DENMAN—The question seems to me tole
whether the Lord Chief Baron was satisfied with the
verdict. The language appended to the verdict seems
to -meto be language without meaning. A Jury has
no right at all to interfere in such things. It only
tends to keep up litigation.
The COURT took time to consider its judgment.

COMMON PLEAS.-(THIS DAY.)

MORTIMER AND .ANOTIIER V. CRADOCIi.
The plantiffs in this case are the eminent jewellers,
Mortimer and Starr, New Bondstreet, and the de-
fendant is a coffee-house-keeper in King-street,
Covent-garden. The circumstances out of which the
action arose were, that in the spring of 1840 the
plaintiffs missed out of their stock a diamond neck-
lace, antique, and valued at 5001. About the same
time the defendant sold a large brilliant for 901., eight
diamonds of a peculiar cut for 301., and 14 small fcr
701. to certain dealers of respectability in the City of
London. The large brilliant and eight smaller were
sold to Messrs. Blogg and Martin, who, upon hearing
of the plaintiff's loss, and comparing these jewels with
the advertised description of those which composed
the missing necklace, were corgi/bleed of their
identity. .They accordingly took the stones which
they had purchased to Messrs;.Mortimer, who imrne-
diateli recognised them as component parts of the
necklace. Of the large stone , there was said to be no
doubt ; and althoughit had no fault or peculiar mark,
it was said by all the witnesses on the trial to be such •
a stone, that it could be recognised amongst any num-
ber of diamonds. _ The lesser brilliants were also
found to have been of the mine. cutting and quality as •
those that had formed part..of the necklace. They
`were not all of one size, but graduated, and set in'a
fashion which might he "from fifty to five hundred
years old:" •::The-riefendant was then applied to for tin
.explanation'7Zis 'Or* .manner in which he heel*,
possessed of them, :when lie. said that. lie
had been employed to dispose of them by
a person named Wilson, of whom, however, he knew
nothing, inure than that he travelled a good deal on
the Continent, and had some.dealings With the defen-
dant when he was in, the watch and jewellery busi-
ness, in the New-cut, Lambeth. The plaintiffs
brought this action for the value of the lost necklace,
on the ground that so many of the richest stones be-
longing to it were traced to the defendant, and that
ti-e latter. could not show. that he had purchased them
legally in open market. The Jury found for the
plaintiffs in the full amount-500/.
Mr. Sergeant COANNELL now moved for a nonsurt
or a new trial, on the ground that if the plaintiff's
case were true, and the diamonds traced to Cradock
were- really theirs, they could have detained them when
they were produced in Court, leaving those who had
purchased from the defendant to their remedy againit

him for the moneys paid to him. .
The COURT held that the plaintiffs could not have
detained the jewels, as they had been purchased ac-
cording to the usage of the trade, and in open mar-
ket ; nor could they (were it 'Otherwise) .take any
course to obtain repossession of the property without
separate actions against the several holders.
Mr. Sergeant CHANNELL, after the opinion from
the Court, would content himself with asking for a
rule to show cause why the verdict should not be re-
duced to 1901., being the fair value of so much of the
property as had been traced to the defendant.
The Count would grant such a rule on a Condition
only, that the defendant should pay into Court that
sum of 1901., together with the -taxed costs in the
cause up to the argument on the rule.
Mr. Sergeant CHANNELL took the rule on this condi-
tion, and then put in: affidavits (not, he said, for any
legal effect, but to justify his client's conduct), and
from these it appeared, that jewels of the same cha-
racter with those which formed the subject of this ac-
tion had been seen 'in the possession of Wilson, in
Paris, and afterwards in that of another dealer, named
Katz, in London, and dealings of a prior date were
shown to have passed between these persons and the
defendant.

BAIL COURT.-(THIS DAY.)

BAINBRIDGE V. BOOTH.
Mr. BYLES in this case moved for a rule to show
cause why the award made should not be set -aside,
on the ground ,of the improper refusal of the
arbitrator to hear evidence on the last plea in the
action. The defendant, it appeared, gave a cup, value
40 guineas, to be run for at the Bedford races on cer-
tain conditions, which it was alleged had been won by
the plaintiff, who had fulfilled the necessary con-
ditions, but the defendant refused to give up the cup.
A difference as to the right of the cup having thus
arisen, the parties agreed to refer the subject to
whatever arbitrator should be appointed by the
Duke of Bedford. Two gentlemen were ap-
pointed by his Grace, namely, Colonel An-
son and George Bayne, Esq., who decided against
the defendant. This was the subject of the last plea,
to which the plaintiff replied that the cause of action
was not referred to the arbitration of persons chosen
by the Duke:of Bedford, which became a material issue
in the cause. Before it came to be tried, it was a
second time referred—on the part of the
the plaintiff to Mr. Cromlyn, and to Lord Charles
Russell on the part of the defendant, who disagreed
on the subject. It was a third time referred to the
Hon. Capt. Rous, and three affidavits were sworn as
to the manner in which he acted as umpire. The first was
by Mr. Booth, who swore that when the action took
place the Duke of Bedford was in Devonshire, and
that he applied for an adjourned hearing of the case, to
have the benefit of his Grace's testimony, to
which Captain Rous replied, that though his respect
for the persons named by the Duke of Bedford was great
yet he would pay no attention to them ; that he had a
sort of compound of sea-faring and racing in his head,
and would cut the matter short.—(Laughter.) He
(Captain Rous) also stated that there would be no use
in hearing the case, if he was guided by other people.
There was also an affidavit made by Lord Charles
Russell, who stated that he was present on the 22d
of June at the place of hearing, and that Captain
Rous refused to hear evidence of the fact that the
question of dispute was before decided by per-
sons chosen by the Duke of Bedford, and
that in his (deponent's) opinion, the defendant
was thereby deprived of a ma erial part of his
defence. the decision of the umpire was adverse
to the defendant. He (Mr. Byles) submitted that
such a decision should not have been given when the
umpire refused to hear any evidence on the part of
the defendant.
Mr. Justice PATTESON—He does not appear to have
understood his duty at all. Take a rule.
BOSANQUET AND OTHERS V. GRAHAM.
Mr. TIIESIGER applied for a hearing in this case,
which is that' of the Westminster Bank against an
officer of the Southern Banking Company As the
case was one of a peculiar nature, and likely to occupy
a considerable portion of time, his Lordship said that
it would be better it should stand over till Monday.
Mr. TIIESIGER—The circumstances are pressing,
and perhaps your Lordship would hear it in chambers.
Mr. Justice PATTESON—That would be still worse,
for when I go there at three o'clock, there are gene-
rally 30 or 40 short cases to be, heard. If I cannot
hear it to-day, it must stand till ilonday.
(Sittings at Nisi Prius.)
BARBER V. LYNN.
This was an action for false imprisonment. The
defendant, who is an umbrella manufacturer, living
in Exmouth-street, Clerkenwell, ,put in a distress
for rent on the goods of a person named
North, residing at No. 12, Northampton-row, where
the plaintiff also was. The plaintiff was seen coining
out of the house about ten o'clock, after the distress
was made, with a bed in his possession, and was met by a
police constable named Taylor, who made him go back
with the bed, and went to inform Mr. Lynn of the fact.
Mr. Lynn came with the constable and gave Barber to
the policeman for a felony in stealing the bed, who
took him to the station-house, where he was confined
in a cell till next morning, when the charge of felony
was dismissed by Mr. Coombe, the Magistrate.
The Jury brought in a verdict for the plaintiff—.
Damages, 51.
BANKRUPTCY.—(THIS DAY.).

IN RE HENRY ELLIS.
The bankrupt was described as a horse-dealer: The
amount of debts in his schedule was 4,7501., and the
assets were comparatively nothing. It appeared that
he had had at one time several contracts for horsing
coaches upon the North-road, but one by one, as the
railways became the general mode of travelling, the
coaches were taken off the road, and in one instance,
where a Leeds coach was given up, he had to sell no
less than 37 horses by auction, whereby he lost a
large sum. The only property which it was consi-
dered would be made available to his estate was a re-
versionary annuity, to which his wife would become
entitled after the death of her mother, which consisted
of certain freeholds in Chelsea, amounting to about
3001. a year. There were also !lodged in Court some
bills of exchange, drawn by the bankrupt, and ac-
cepted by the well-known Goodered, the former pro-
prietor of the Eccadilly Saloon, but these were al-
most valueless, from the fact of Goodered himself being
a probationer in this Court.
The further examination was adjourned t ) the sth
of December.

The Grand Duchess Elizabeth, the daughter of the
Grand Duke Michael of Russia, is about to bestow
her hand on Duke Adolphus, of Nassau.—Du:seldorf
Gazette.