The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1840-04-03 00:00:00

WATERHOUSE V. TOLLER.

This was an action for the recovery of £3B from the de-
fendant, for the loss alleged to have been sustained on a
quantity of tea sold by the plaintiff' to him, and afterwards
returned upon his hands.
Mr. CRESSWELL (with whom was Mr. COWLING), in
opening the case, said the plaintiff in this case was 'a respec-
table tea-merchant in. Liverpool, and the defendant, Mr.
Toiler, was a tea-broker, also living in Liverpool. The
action was (as stated by Mr. Cowling in opening the plead-
ings) for the recovery of money lost upon teas sold to the
defendant, and which had been afterwards returned upon the
plaintiff's hands. The amount sought tb be recovered was
the sum lost upon the resale of the teas, in consequence of
an alteration in the market. At first it was anticipated that
the loss upon the resale of the tea would be considerable,
but it turned out, after au investigation of the whole of the
matter, that the loss was but small, and. Mr; Waterhouse
would have let the matter sleep, but it sometimes happened
that defendants did not know when they were well off, and
the moment a plaintiff seemed disposed to act leniently, they
said, " Oh, no ; you wish to withdraw because you see that
it is a bad case ;" and accordingly the plaintiff was forced
into court, as in the present case. The tea which formed
the subject of this action was brought from China by the
ship Juliet; and was afterwards sent over to Ireland in a
vessel called the Amity, where it was purchased and sent
back in two steamships called the Liffey and Britannia. On
the Bth June, 1838, the tea was sold to the defendant, and
on the 9th news arrived from London that an immense sale
of teas had taken place there, and this caused a fall in the
prices of the article, whereupon the defendant, probably fear-
ing that he would be a loser by his bargain, returned the teas,
alleging that they were not of the quality ordered. Subse-
quently,.however, the defendant went to look again at the
teas, and after having a number of the chests opened, said he
was quite satisfied with them, would not have the remainder
opened, and requested to have the invoice back. After this
he again sent the goods hack, but the plaintiff said this was
rather too bad, and refused to let him rescind the order. He
refused to have the teas however, and the result was that
there had been a loss upon them, upon resale, of £3B. What
sort of defence would be set up remained to be seen. It ap-
peared that his first plea was there had never been a bargain ;
secondly, that there had been no delivery ; thirdly, that the
sale was by sample, and that the quality of the teas was in-
ferior to the sample; fourthly, that the tea was to have been
tea out of the Liffey and Britannia ; and lastly, that the con-
tract was obtained by fraud. After commenting on these
pleas, the learned counsel proceeded to call witnesses to prove
the case, and put in the contract note, which was for 52
chests of Congou teas to be paid for on the Bth Sept. 1838.
Mr. WIGHTMAN (with whom was Mr. Charles Crompton)
raised two objections to the contract. The first was that the
contract was not good, because the vendor's name was not
upon it ; and the second was, that it was not signed by the
defendant or his agent, the party whose name was signed
(Cooke) not having been shown to be the agent of the de-
fendant.

His LORDSHIP said the first point was one now under dis-
cussion in the Courts of Westminster, and he should reserve
his opinion upon it till their decision was known. On the
second point he observed, that in his opinion the agency was
sufficiently made out.

Mr. WIGHTMAN then addressed the jury, contending that
a sample having been produced to defendant of the teas, it
must be considered to have been a contract of sale by sample,
and he called witnesses to show that the bulk of the teas was
not equal to the sample, and that the contract was obtained
by fraudulent misrepresentations. ' The other pleas were not
gone upon.
Mr. CRESSWELL replied, quoting authorities to show that
no account of samples-being mentioned in the contract, it
was not a contract by sample, and consequently that the evi-
dence for the defendant was of no value.

His Loitusnir summed np, and the jury almost immedi
ately found for the plaintiff. Damages X3B.

LEATHOM AND ANOTHER V. HOPKIZ;SON.

The plaintiffs in thii action were the assigneeS of a bank-
rupt, named Beckett, who wds_formerly a partner in business
with Mr. Leathom, as an ironfounder, in Liverpool, and the
action was brought to recover the sum of £26 from the de-
fendant, Mr. Hopkinson, a coachbuilder, for work done by
the bankrupt previous to his bankruptcy.
Mr. ALEXANDER and Mr. VENADLES were for the plain-
tiffs, and Mr. CRESSWELL appeared for the defendant.
The work fur which the sum claimed was charged consisted
of a large plate, weighing upwards of 30 cwt., and of peculiar
formation, placed up in the yard' of the defendant, for the
purpose of being used in coach wheels., The work was coin-
pleted in March, 1839. At the time it was put up in defen
• dant's yard the plate had a crack in it, which afterwards ex.:
tende„and,itlie. plaintiffs seat; workmeg for the purpose of
rivetting the parts together. The plate was kept in work till
Septeinbery nneomplaint of it ; but then they, sent
word that the crack. had extended across the plate, and Work-.
men were sent to put a hoop, upon it, When the workmen
got there, objections were made to its being done, and ano-
ther time was appointed. The workmen went at the time
appointed, but were again sent back,, and the defendant now
paid into court ten guineas, and said that this sum was a suf-
ficient discharge
.of the debt. The counsel fur the plaintiffs
called a great .number of witnesses, to, prove that, until a
subsequent quarrel bet Ween the plaintiffs -and defendant, no.:•
fault was found with the plate, but that, on the contrary, it
was received in a
,very,satisfactory way ; that the crack was
the necessary consetruenceOf a contraction of the metal, aris-
ing from the peculiar construction of the plate, and that the
cracks across the plate, when properly repaired with wrought
iron, were not detriinental to it, but, in fact, rendered it
stronger, and better fitted for the purpose than before. One
of the witnesses called by the plaintiffs had been subpoenaed
by the defendant, and was a workman who was employed by
the defendant, and has used the plate in question. This wit-
ness, however, though he proved the use of the plate, contra-
dicted the former evidence, as to the plate being as useful as
it would have been if not cracked, and said for several pur-
poses it could not be used.. A good deal of amusement was
caused by this witness; on being called, demanding, in a loud
tone, that his expenses should be paid. His Lordship held
that the witness was justified in the demand, when Mr. Alex-
ander at once observed, that there would not be the slightest
objection to it. " Then tip l exclaimed the witness, holding
forth his hands towards the learned counsel with character-
istic gesticulation. The court was convulsed with laughter.
The witness, of course, got his expenses (245.) without de-
lay,
.and his warmth gradually subsiding, he proceeded to give
his evidence with tolerable coolness.
Mr. CRESSWELL addressed the july for the defence, con-
tending that the plaintiffs, by their own witnesses, had not
shown that the plate was ever fit for use, and said that he
should be able to show that the defendant made an objection
to it from the first, but that he was persuaded to keep it on
a warranty from the makers that the crack in it would not
extend, that the crack did extend, and that, then, it was Sent
back. The plate in fact had been repudiated from the first,
but that the plaintiffs having put up the plate in defendant's
yard, the latter could not get it 'removed. He should call
witnesses to prove that the only value of the plate was its
value as old iron, and its value as old iron had already been
paid into court.—Witnesses were then called.
Mr. ALEXANDER replied, and Mr. Justice EnsiciNE hav-
ing gone over the evidence,
The Jury found' a verdict for the plaintiffs.—Damages
£l5 14s. 41d.

CROWN COURT.—THURSDAY.
STABBING AND WOUNDING.
John Smith, aged 42, stood indicted on a charge of having,
at Heaton Norris, maliciously stabbed and wounded one
William Derbyshire, with intent to murder him.
Mr. PRANDT stated the case for the prosecution.
William Derbyshire said he was a stonemason. On Satur-
day, the 28th of September, he went to a beer-house, in
Heaton Norris, where the prisoner and his wife were. Wit-
ness asked prisoner's wife to drink, and prisoner was vexed
at this. Witness said something, but did not remember
what. He was put out, and while in the passage prisoner
struck him twice. He was much. hurt, but made his way
home. When getting into bed he found that he was wounded
in the side. The blood was flowing from him. He was
drunk at the time, so that he could not remember what was
said by himself or the prisoner.
Abel Stansfield, keeper of the beer •house, said the prose-
"cutor asked the prisoner's wife to drink with him, which she
did. The prisoner then asked her (his wife) to drink with
him, and she refused, saying, she would drink with no such
a black looking fellow. The prosecutor then said to pri-
soner, " You see she will drink with me, and not with you ;
and she'll go with me. I can go with her when I like." Some
other words passed, and witness turned the prosecutor out.
He returned, and a- scuffle took place, in which the wife
again showed her preference to the prosecutor. Witness's
wife soon afterwards came in, and said, " Smith, yon've
stabbed Derbyshire." There had been a good deal of talk
about Smith's wife and Derbyshire.
Another witness saw Smith strike Derbyshire twice. Wit-
ness saw a knife in prisoners's hand, and endeavoured to
take it from him. Prisoner said he'd stab either his wife or
Derbyshire—whichever came up first. He said the law would
justify him in it.
Mary Stansfield, wife of the beerhouse-keeper, was sent
for to Derbyshire, and brought word back of his being stab-
bed. Prisoner said, " if he had not done it, he would
do it:"
Richard Greenfield saw Derbyshire when he came home,
and lie was wounded. His worsted belt was pierced through.
Brammil, a constable, apprehended the prisoner, and
found upon him a knife, now produced. Witness had never
heard anything against the prisoner.
Mr. Rayner, surgeon, attended the prosecutor. He found
a wound about the centre of the 6th rib. There was another
small wound on the hip. Such a knife would make the
wound. The knife had struck the rib. Had it gone between
the ribs, the wound, if given with force, would have been
dangerous. As it was it was not dangerous, but the patient
behaved ill ; he drank hard, and ran away on the Tuesday.
The prisoner said in his behalf, that he always lived in
peace with his fellow man, and in the fear of God. But if
a worm were trodden upon it would turn. He was malici-
ously treated, and in his excitement attacked the prosecutor.
His wife was every thing to him in this world, and now
his peace of mind was destroyed for ever on this side of the
grave, and he felt regardless of what might be. his destiny.
His lordship said the case was a most painful one. An
improper intimacy had undoubtedly taken place between the
prosecutor and the prisoner's wife, 'and language had been
used calculated to provoke a man to an act of violence. No
provocation, however, could justify the use of a deadly wea-
pon. His lordship explained the law with regard to cases of
adultery, where the party injured killed the adulterer. If a
man came in by accident, and found his wife in criminal
intercourse with another man, and he, in the moment of
aggravation, killed the adulterer, the law reduced the offence
to manslaughter. But if a roan previously know that an
improper intimacy existed between his wife and another
,man, and he prepared himself with a deadly instrument, and
knowing they were together, went and killed the man, the.
act constituted murder. The jury would have to decide with
what intent the prisoner stabbed the prosecutor.
The Jury, after a short consultation, found the prisoner

" Guilty of stabbing, with intent to do grievous bodily
harm."

Sentence was deferred until this day, and his LORDSHIP
called up the prosecutor, and said to him :—" Derbyshire,
you are a much more guilty man in the eyes of God than the
prisoner. If Ido what it is almost necessary for we to do, I
ought to send him abroad for fifteen years. But you are a
much more guilty man than he.' The whole guilt, indeed,
of the offence is to be attributed to you—a drunken man
and an adulterer. After injuring the man in the most tender
point, you, unworthy as he was, appeared here as his prose-
cutor. Go down, sir!"

John Allen, 24, was charged with having, at Todmorden
and Walsden, feloniously and maliciously stabbed James
Crowther, with intent to murder him, or do him some
grievous bodily harm. It appeared that on Sunday night,
the Bth of September, as the prosecutor was going home, he
saw the prisoner knocking at the door of a house, which
turned out to be that in which he lodged, and said to him
" What are you knocking there at on Sunday night ?" Pri-
soner replied—" I'll let you know what I am knocking for:"
The door of the house was soon after opened, and the pri-
soner entered, and took a knife from a table, with which he
hastened out, crossed the street, and struck the prosecutor
twice, wounding him on the first false rib on the left side.
The wound, but for the knife hitting the rib, might have
been fatal. As it was, it was not of a dangerous character.
The pocket knife with which it was inflicted was produced.
When found there was blood upon the blade. Another knife,
(a butcher's) was also found. The prisoner had taken it up,
and there was blood upon it from his hands. He had in-
tended to use it also, but was prevented. It appeared that
the prisoner was in liquor when he committed the offence.

The JUDGE, in summing up, stated, that being in a state
of intoxication brought about by the party himself was no
excuse in law, for a criminal act committed while under the
influence of such intoxication.

The jury found the prisoner Guilty, with intent to do
grievous bodily harm.
The prisoner said it was his first offence, and besought the
mercy of the court.

His Lounsrup said to the prisoner :—The jury have very
properly found you guilty of stabbing with intent to do the
prosecutor some grievous bodily harm. Considering the
whole of your conduct, I cannot help thinking that the jury
has treated you mercifully, as a verdict for a higher offence
would have been justifiable. You were, it appears, at the
time under the influence of liquor ; but this was no excuse
for crime. I cannot take it as a ground of mitigation of pu-
nishment. On the contary, I would rather be inclined in
such cases to administer some additional punishment. No-
thing so greatly aggravates offences as intoxication, which I
regret is so prevalent. I feel convinced, indeed, that if the
people of this country were a sober people, they would be
more moral, and there would be fewer depredations, and the
crimes of grievous assault and murder would be much less
frequent. I have no difficulty in determining the amount of
punishment which you must undergo. It has become neces-
sary to visit this offence with severity. The use of the knife
has of late been lamentably on the increase. In this instance
you were not contented to use the pocket knife only. Ido
not think you would have acted as you did if you had not
been intoxicated. In the excitement of liquor you deliberately
inflicted a wound upon your antagonist with a pocket-knife.
Not contented with this, you then went into the house for
another weapon ; and there is every reason to believe that
you would also have used the butcher's knife, the handle of
which was stained with blood from your hand, and perhaps
have, in the darkness of the night,' hurried the prosecutor
into eternity. The sentence of the court is that you be trans-
ported beyond the seas for the term" of fifteen years.
John Weaves, 24, and William Bottomly, 24, were in-
dicted
on a charge of hating, at Prestwich-cum-Oldham,
feloniously killed and slain one Ralph Jackson. The prisoner
Greaves had been repeatedly challenged to an up-and-down
fight (as it is called in this county), in which kicking as well
as blows is frequently resorted to. After fighting some time
" for love," the deceased was repeatedly " punched" or
kicked on the head and breast. After the last kick, the de-
ceased died almost instantly. The prisoner was intoxicated
at the time, and the deceased, who had provoked him to
fight, still more so. The prisoner Bottomly so slightly in-
terfered with the fight, that the case was not pressed against
him, and he- was acquitted by direction of the judge. The
fight was, in the part of the country where it took place, con-
sidered a fair fight.
The jury found Greaves guilty. His Lordship said :—.
John Greaves, you have been found guilty of manslaughter,—
that is, taking away the life of a fallow creature. The pu-
nishment for this offence very properly varied according to
the greater or less aggravation of the case. It might be
transportation for life, or imprisonment for a term, or the
party might simply be required to pay a small fine, and he
dismissed the court. The present is a serious case, and here
• again the offence arose from the baneful influence of liquor.
You and your antagonist were both drunk, but Jackson was
drunker than you ; and it was deplorable to reflect that a
man in a state of intoxication should be hurried into the pre-
sence of his Maker. The offence was committed, too, early
on Sunday morning. The parties had doubtless been drinking
till late on Saturday night, or, perhaps, had scarcely been in
bed, and were infuriated with liquor. It was shocking to
think that men in that state should be seen stripped stark
naked and fighting in a field. After you had " punched," or
kicked, your antagonist for a few minutes, he died almost
immediately. To the latest day of your life, such an act
must hang upon your mind. The manner of the fight was
according to the barbarous practice of this county, which it
behoved all parties to endeavour to put down. There is
something, indeed, in the system of kicking which is almost
worse than stabbing itself. I take into consideration, how-
ever, that you were much provoked, and that the deceased
had been principally accessory to his own death. The sen-
tence of the court is, that you be imprisoned in the county
House of Correction for eighteen months, and that during
that time you be kept to hard labour.

POSTPONEMENT OF THE TRIAL OF MR. FEARGUS
O'CONNOR. _ _

Mr. WATSON made application to his lordship, in'behalf
of Mr. Feargus O'Connor, for the postponement of the trial
of this individual for sedition, &c. from the present to
the summer assizes. He stated that the ground for this
appliCation was, the unavoidable absence of a witness whom
the defendant and his attorney conceived to he most material
to his defence. He read affidavits from Mr. O'Connor, and
from Mr. Clarkson, solicitor, to the effect that a material
witness, named John Taylor, a physician of Carlisle, was in
so dangerous a state of health that he could not attend at
these assizes ; that all due diligence had been tised to pro,.
cure his attendance ; but thatthe result of a correspondence
with an attorney in Carlisle, showed that Mr. Taylor was not
tbbe fonnd; and ihat he had- either' left the country for
Prance, or was about to do so. They' had every reason to
helieve, however; he would be forthcoming at the summer
assizes, if he recovered, and they. therefore, prayed that his
lordship would postpone the trial to the next assizes. Mr.
Taylor was very feeble when recently at the York Assizes as
a witness.

Mr. WIGHTMAN, who was for the prosecution, said he did
not wish to stand in the way of the application. He had seen
the affidavits,. and.did not object on the ground of 4 want of
diligence in procuring the witness.
His.LO.APAkimacceded.to the.requestof the-applicant, and
`le trial accordingly stands postponed.
.

. •
z 131.T1W1LARY.
Thomas Butterworth, 32, and Samuel Lord, stood indicted
on a charge of having, at Oldham, burglariously broken and
entered the dwelling-house of William Eastwood and stolen
a silver cup, sixteen silver spoons, a silver cream jug, and
various other articles, the property of the said William East.
wood ;—and Margaret Clayton and William Pollitt, stood
indicted for having received the articles, knowing them to
be stolen. The trial was protracted and tedious, and had no
peculiar feature of interest. There did not appear to be suffi-
cient evidence to prove the burglary ; but the property was
carried off by the two first prisoners] and was pledged or sold
by the other two.

The jury returned a verdict of guilty of larceny against
Butterworth and Loid ; and guilty of feloniously receiving
the goods, knowing thew: to have been stolen, against Clay-
ton and Pollitt.
Sentence was deferred.
TRIALS OF THE CHARTISTS.
_ _

Mr. Bronterre O'Brien applied to his lordship to be in-
formed as nearly as possible at what time the trials of the
chartists would come on, as there were about 50 of them,
and many of the witnesses would be greatly inconvenienced
if they were required to remain long from their homes.
His lordship stated that so far as he could foresee those
trials would commence on Monday.

CONCEALMENT OF BIRTH.

Hannah Blackburn, a factory girl, aged 18, was indicted
on a charge of having wilfully murdered a male child ; also
with having concealed the birth of the child. She, in the
first instance, pleaded not guilty to both charges ; but after-
wards withdrew her plea on the latter charge and pleaded
guilty to it. The prosecution on the first charge was not
pressed against her by the crown. '
Mr. PEEL, for the prosecution, said that he did not wish
to state anything in aggravation. In answer to questions
from the judge, the prisoner said she was married when 16
years of age ; that her husband deserted her four days after
their marriage, and was now a soldier in, she believed, the
East Indies, and that she now worked in a factory.
The Learned JUDGE very feelingly addressed the prisoner.
He stated that the bill against the prisoner charging Ivr with
wilful murder had properly been thrown out by the Grand
jury, as he did not think the indictment could have been
sustained. There were so many probabilities that the child
came to its death through no act of her's, that he was willing
to believe that she was not guilty of the major offence ; and
the prosecutor, under the same feeling, had abstained from
urging anything in aggravation. She had, however, pleaded
guilty to the offence of concealing the birth, by disposing of
the body in a secret manner. This was a serious offence,
which frequently led to crime. He did not find that she had
made any preparation for her offspring. (The prisoner said
that she had.) The child was full grown, and was probably
born alive. It was her duty to have done everything for it
in her power. He, however, took into consideration her
being deserted by her husband, that she worked in a factory,
and that she had already suffered imprisonment for some
time. The sentence was that she be imprisoned in Kirkdale
House of Correction for nine months, and be kept to hard
labour.

Elizabeth Green, aged 20, was indicted upon a charge pre-
cisely similar to the last, and also pleaded guilty to the con-
cealment of the birth of her child. The prisoner, who is a
neat little person, was still in feeble health, and was allowed
a chair. It was stated by Dr. Brown on her behalf, that it
was not now assumed that she caused the death of-the child ;
but that it died from want of proper attendance at the time
of its birth. He added that the prisoner was married ; her
husband had gone to sea, and remained away two years, and
she had learned that he was dead. He had, however, re-
turned some months ago, and had again joined his ship.
Mr. Thepphilus Harvey being called, said—l am a sur-
geon. The prisoner applied to me in January to attend to
her during her confinement, and arrangements were made by
her for the birth.

Mrs. Higgs, awitness for the prosecution said—The pri-
soner lodged with me. I searched the prisoner's box after
the child was born, and found in it a small chemise, some
new flannel, and other articles of child-bed apparel.
The learned JUDGE then proceeded to pass sentence. The
offence of the prisoner was similar to that of the last female
brought before him. A stop must be put to the practice of
concealing births. He had no reason to suppose that the
prisoner had intended to destroy the child ; but she had
thought to conceal the birth, by putting it into a box. She
had, however, made some little preparation, and had spoken
to a surgeon to attend her. The sentence of the Court was
that she be imprisoned in Kirkdale House of Correction, for
eight calendar months, and to be kept to hard labour.
Dr. BROWN suggested to his Lordship that the prisoner's
health was not such as would enable her to endure hard la-
bour without danger.
His LORDSHIP intimated that it was understood that in
such cases the labour should be only such as was suited to
the capability of the party.