The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1841-08-24 00:00:00

WEBER V. COURT

This was an action in which the plaintiff, a commission-
agent, in Liverpool, sought to recover from the defendant, a
salt proprietor, at Winsford, near Northwich, the sum of
£62 and a fraction, which he alleged to be due to him for
commission.

Mr. Cresswell and Mr. Crompton appeared for the plaintif
Mr. Dundas for the defendant.

From the evidence and the statement of counsel, it ap-
peared, that, in October, 1839, the defendant gave the
plaintiff authority to sell for him 4000 tons of common
salt, at 10s. 6d. per ton, and at 6d. per ton less, if cash
were paid within ten days after the delivery, and 1000
tons of the best stoved salt at 15s. 6d. per ton; but at
lbs., if cash were paid within ten days after the delivery.
For this he was to receive a commission of 21 per cent. The
plaintiff, in consequence, sought out for a customer, and on
the 30th October he acquainted the defendant that Messrs.
Holford, Bald and Co.. merchants, would take the salt on
these terms. From time to time there were shipments of
salt, till the end of April fol'owing, when, Messrs. Holford,
Bald and Co. becoming embarrassed, the defendant, during
the plaintiff's absence from Liverpool, and without his inter-
vention, induced them to abandon the contract. They had
then received about 800 tons, and it was stated that salt bad,
in the meantime, advanced. The defendant had cleared £250
by abandoning the contract. When the plaintiff heard of
this, he claimed from the defendant the sum of £62 as his
commission. In reply, the defendant expressed his surprise
at the demand, as only 750 tons had been shipped to Messrs.
Holford, Bald and Co., and that he was entitled only to the
commission upon that quantity, namely, £9, which had been
paid into court. The plaintiff, on the other hand, claimed
commission on the entire contract; and this was the only

question in the case.
A number of witnesses were examined on both sides as to
the custom of the trade, whose testimony inclined towards
the view taken by the defendant.

The jury, after a few minutes' consideration, returned a
verdict for the defendant.

HARRIS V. BIRCH, BART

The declaration in this action was in trover for an alleged
conversion of certain wines. The plaintiff is Mr. Rice Harris,
glass-manufacturer, of Birmingham, and the nominal defen-
dant on the record is Sir Thomas Birch, Bart., high-sheriff
of the county.

Mr. Baines and Mr. Martin appeared for the plaintiff;
Mr. Creswell and Mr. Crompton for the defendant.
Mr. BANES, in stating the case to the jury, said the real
question in it was whether a certain execution levied upon
some property, alleged to belong to Messrs. Jones and Win-
dle, was a valid execution. The plaintiffs claim arose out
of a security given to him by Messrs. Jones and- Windle
upon some wines, which formed the subject of the present
action, for the valuable consideration of his discounting a
bill for £3OO, in the month of January, 1843. Messrs.
Jones and Windle were general merchants in Liverpool.
In the character of general merchants they were in the
habit of shipping goods for the plaintiff, and the plain-
tiff was accustomed to draw upon them in respect of the
shipments. After some transactions of this kind in January,
180, an application was made by Jones and Windle to the
plaintiff for his acceptance of a bill of exchange, for which
they proposed that certain wines, which they were about to
land, should be his security. The learned counsel then read
the correspondence which had taken place between the par-
ties, from which it appeared, that the plaintiff consented to
accommodate the applicants with his acceptance. After.-
wards, however, it was not agreeable to him to lend his name
to an accommodation bill, but he proposed to accomplish the
same object in a different way, namely, by discounting one
of their bills for £5OO. To this mode Jones and Windle as-
sented, and they, by way of security, deposited with him the
bills of lading of the wine, and the entry of it in the Custom-
house books in his name. Of that money so advanced the
plaintiff had never received one farthing, and he complained,
that, after having had passed to him the property which was
to be his security, it had been made available to the debt of
another person which had accrued long subsequent to his
claim. When at maturity the bill was not taken up, but it
was renewed till April following, it being understood that the
same security should continue. In April the bill was re-
newed till September, and again in September till January in
the present year, and it was shortly afterwards that the
seizure, which formed the subject of this action, took place.
The wines remained in the vaults of Jones and Windle, ex-
cept a small portion which they disposed of for their own
purposes, by which they conducted themselves fraudently to-
wards one of two parties, either towards the plaintiff or to-
wards the execution creditor. By their conduct it was, then,
that loss was sustained by one of two innocent persons. In
February, Jones and Windle removed the remainder of the
wine from their vaults to the vaults of Messrs. Bushell and
Co., who had also advanced some money upon it. It was
when the wine was in Messrs. Bushell's vaults that the exe-
cution was put in, at the suit of Richard Page Tucker, for
the sum of about £l,OOO. Messrs. Bushell sold the wine by
public auction, but realized only £250, or half of what the
plaintiff had advanced. It was, therefore, to recover this
£250, if not the fall amount of his claim, that the plaintiff
appealed to the Jury.

Several
witnesses- were then examined, who proved the
facts as stated by the learned counsel. All the correspon-
dence was read, and the witness was Mr. Bushell, who
proved that the wine sold for £290 Os. Bd. -
Mr. CRESSWELI„ in his address to the jury on the part of
the defendant said, the transactions as to this bill between
the plaintiff and Jones and Windle would not be recognised
by the bankrupt laws. The very act of the seizure of the
wine by the sheriff made them bankrupts, and, from that
moment, the property in it passed into the hands of their
assignees and not into the hands of any individual creditor.
The only question, then, was, whether these goods were in
the order and disposition of the bankrupts at the time of the
seizure. True, the plaintiff had advanced £5OO upon them,
but, on the other hand, he had never had them in his posses-
sion, which was necessary in order to give him a valid claim
upon them.

The learned counsel then called several witnesses, and
produced the proceedings in the Bankruptcy Court, with
the view of proving the petitioning creditor's debt, in order
to set up the title of the assignees to the property. In this,
however, he failed, owing, as he said, to a document having
been sent from London, instead of a person attending with
it, and the petitioning creditor having left Leeds, where he
resided, for a journey.

The learned JUDGE asked Mr. Cresswell whether, under
these circumstances, he could carry his defence any further.
Mr. CRESSWELL confessed, candidly, that he could not.
The jury immediately found a verdict for the plaintiff, da-
mages £290.

--.411141.-

CROWN COURT Y
. - ESTERDAY
(Before Justice WIGHTMAN.)
RIOT AT WIGAN.

Robert Topping, Thos. Sedgwick, gwieT,i'hos.Unstrorth, Thos.
Topping, and Matthew Chadwick, were charged with having
created a riot on the 25th June last, at Wigan.
Mr. Wilkins defended the two Toppings, and Mr. Murphy
appeared for Sedgwick, Unsworth, and Chadwick.
On the 25th June last, just previously to the late election,
a man named Leathom, a voter, was detained by the parti-
sans of one of the candidates ; and it being supposed that
he was detained against his will—in short, that he was
" bottled," as it is termed—the opposite party surrounded
the house where he was (a tavern kept by a person named
Kaye), violently attacked it, broke one of the windows, two
panels of the door, and the lock, forced an entrance, and
released the man. The prisoners were amongst those who
were most actively employed in the transaction. It appeared
that the roan Leathom bad been previously detained at St.
Helens.
The examination of the witnesses was continued for an
hour and a half, when the case was stopped and the prison-
ers pleaded guilty. _ _ _

- His LORD-SHIP- cautioned the prisoners against any repe-
tition of such conduct, which was undoubtedly most unjus-
tifiable. He thought the ends of justice would be answered
by binding the prisoners in their own recognisances to appear
and receive judgment in case of any future misbehaviour.
The prisoners, having been bound in recognisances of £5O
each, were discharged.

MANSLAUGHTER

William Kelly was charged with having, at Wigan, felo-
nioniously slain John VVinstanley ; Richard Maguire, James
Royle, and John Whittle were charged with having aided
and abetted him.

Mr. Hulton and Mr. Trafford conducted the prosecution,
Mr. Brandt appeared for Whittle, and Mr. Murphy defended
the other three.

It appeared that on the morning of the 26th June last, just
before the election at Wigan, a man named Morgan Heaton
went to the Market-place, in which several persons were as-
sembled, and endeavoured to incite them to go to the Com-
mercial Inn, for the purpose of securing a person who, he
said, was there detained. Some demonstrations having been
previously made against the Commercial Inn, Maguire,
Kelly, and Royle were stationed, by Whittle, to protect it.
The streets were filled with people armed with bludgeons,
and the populace were in a state of great commotion. Hea-
ton declared that he would go and rescue the man himself.
The witnesses saw the mob go up the yard of the Commer-
cial Inn, whence they presently retreated. Winstanley was
in the crowd. He was pursued by Kelly, who, with a large
billet of wood, struck him and knocked him down. He was
afterwards struck by Maguire and Royle. It was shown, on
cross-examination, that the crowd expressed a determination
to force their way into the house ; or, if the men were not
turned out, to pull it down. The blow which Winstanley
received fractured his skull, and caused his death.
Highly-respectable witnesses gave Whittle an excellent
character, as a peaceable and well-conducted man.
The jury found Kelly Guilty, recommending him to mercy ;
they acquitted the other three prisoners.
His LORDSHIP alluded to the violence of the mob as an
extenuating circumstance, while he commented on the mis-
chief of the prisoner's conduct. He sentenced him to a
week's imprisonment.

PERJURY•
John Ellis, 23, was charged with having, at the Kirkdlle
Sessions, in July last, unlawfully, corruptly, and wilfully
committed an act of perjury.
Mr. TRAFFORD, on behalf of the crown, said he was
ready to take a verdict of acquittal, as the two witnesses who
could have proved the case were absent, and he had them
called upon their recognizances.
MANSLAUGHTER.

John Casement was indicted for having feloniously killed
and slain Ellen Boyle, at Liverpool, by shooting her with a
pistol.
Mr. Murphy conducted the prosecution ; Mr. Wilkins the
defence.
Eliza Hill, sworn—l knew the deceased Ellen Boyle by
sight. On the night of the 30th June the day of the Liver-
pool election, I recollect going down Park-lane between nine
and ten o'clock. I saw a number of persons armed with
sticks, behaving in a riotous manner and throwing stones.
They moved towards the Salthouse Dock. I saw Ellen
Boyle in the crowd running. The crowd stopped opposite to
Casement's house. I saw them throw several stones at the

house which broke the windows. The door of the house was
shut. While the mob were throwing the stones, I saw the
front room window of the house lifted. I saw a man stand-
ing at the window. I heard the report of two pistols and
saw a flash, which came from the window where the man
was standing. I saw Ellen Boyle fall. She cried out for
her mother, exclaiming that she was shot. I assisted to carry
her to a cellar in Atherton-street. When she was undressed,
I saw a wound in her side from which blood was flowing.
Next day I saw her in another house. I think the people
made no demonstration of an intention to break into the
house, but only to break the windows.

By the JUDGE
thing.

—I did not see Ellen Boyle doing any

By Mr. WILKINs.—I saw them attack three houses. I
did not see them fill any of the women's aprons with bricks
or stones. I saw stones in men's hands. There was a great
noise of hurrahing. I did not hear any threats used against
Casement.

William Magee.—l knew Ellen Boyle. About six o'clock
on the day of election, I heard hurrahing in Park-lane. I
saw a large number of men and women. They broke the
windows of three public-houses in Park-lane, and then went
to the Globe, where they broke the windows and then went
away. They then went to Casement's, where they also be-
gan to break the windows. They broke the upper windows.
I saw the frame of the window on the first floor lifted out, I
think by the master of the house, who fired a pistol. I say
Ellen Boyle in the crowd shortly before the pistol was
I saw her shortly after, and she was crying.
Mary Divett sworn. I saw a crowd in Park-lane on the
nisht of the election. I followed it in company with Ellen
Boyle. I saw the crowd break the middle-room win-
dows of Mr. Casement's house. I got frightened, and
was going home, when I called at Mrs. Moran's, where I
found Ellen Boyle. She had been shot. I saw her several
times after. She died in a fortnight.
Mar) O'Donnell, with whom the deceased lodged, showed
that she had a wound in the ancle as well as that in the right
side, which was the principal wound, and which had injured
her liver.

Samuel Cooper proved that the mob was very violent, that
a man opened the window of Mr. Casement's house and fired.
and that he (witness) received a shot in each arm.
_ _

Mr. Superintendent Riding proved that, when he and Mr.
Whitty went to Casement's house they found all the windows
of the upper rooms broken, and the rooms covered with half
bricks, stones, and mortar. The prisoner having been cau-
tioned by Mr. Whitty, said, he had fired a pistol loaded with
swan shot amongst the crowd, but he three times warned
them to disperse before he did so.
Mr. WILKINS submitted that there was no case to go to
the jury, as this was a justifiable homicide in defence of the
prisoner's property as well as his life, as bad already been
found by a coroner's jury. Mr. Wilkins cited several cases,
and put it to his lordship that the prisoner had acted in de-
fence of his life and property.
Mr. WILKINS called several witnesses to prove the violence
of the mob, and that they went forward with the determina-
tion of pulling down Casement's house. Mrs. Casement and
her daughter were struck by the stones.
His LORDSHIP said it was lamentable that an important
national franchise should be interfered with by such pro-
ceedings as those which they had heard of in this and the
preceding case. If they believed in this instance that the
prisoner had a well grounded hope that his life and property
were in danger, they would find him not guilty, but if on the
contrary they thought such danger did not exist, and that he
had acted roughly, they would find him guilty.
The foreman of the jury interrupted his lordship, saying
the jury had made up their minds. The jury acquitted the
prisoner.

FALSE REGISTRATION OF A lIIRTIT

Ann , 35, was charged with having, in this town,
made a false statement, touching the particulars required to
be known and registered respecting the birth of a female
child, in registering the birth thereof.
The prisoner pleaded guilty.
Mr. CROMPTON said the indictment was under G and 7
William IV., cap. 86, which said, if a person committed this
offence, he should suffer the same punishment as if guilty of
perjury. A doubt had been raised whether, under this clause,
a female could be punished, but though he (Mr. Crompton)
thought this doubt went for nothing, they had framed. their
indictment to meet the objection. The prisoner went to the
registrar, and represented the child as the daughter of Robert
and Ann Jones, signing her own name, " Ann Jones," as
the mother. The child was in truth a bastard, and not the
child of the persons represented. His Lordship would see
that, as the registry was taken as an evidence of birth, such
fraud might lead to very serious consequences.
The JUDGE ordered the prisoner to be put down, saying
he would confer with the Lord Chief Justice on the subject.
The court adjourned at twenty minutes past five to nine
this morning.

NISI PRIUS COURT.—YESTERDAY.
(Before Lord Chief Justice DENMAN and a special jury.)

BRANCKER, SURVIVING ASSIGNEE, V. MOLTNEUX.
This was an action in trover, for the recovery of 304 bales
of cotton, by the assignees of Messrs. Humberston and
Frodsham, bankrupts, upon their possession as assignees.
The defendant pleaded first, not guilty, second, that the
plaintiffs were not the assignees of the bankrupts, third,
that the plaintiffs were not possessed of the goods in the
manner stated in their declaration, fourth, that as to 304
bales of cotton, Humberston and Frodsham employed Tho-
mas Blades Molyneux, of Charleston, nephew of the de-
fendant, to buy the cotton, and see it put on board a ship to
bring it to Liverpool, and that before it arrived there Messrs.
Humberston and Frodsham had become bankrupt, and the
cotton was taken possession of by the defendant on behalf
of Thomas Blades Molyneux, of Charleston, in transitu.
In reply to this a new assignment was pleaded, and upon
the whole counts issue was joined.
Mr. Wortley, Mr. Cowling, and Mr. Martin appeared for
the- plaintiffs; Mr. Cresswell, Mr. Armstrong, and Mr.
Crompton for the defendant.

Mr. WORTLEY stated the circumstances. The case which
it became his duty to lay before the jury, was one which,
from the considerable amount of property in dispute, from
the nice questions of mercantile law which arose from it, and
the difficulties hitherto felt in adjusting its merits, seemed of
some degree of interest and importance. Unfortunately, it
was not new to the courts of law, nor was it new to the court
in which he was at that moment speaking. Time had been
in this action already two trials, and two attempts to adjudi-
cate the rights of the parties ; but upon both occasions
the trials had gone off on technical grounds, and those
grounds had been found unsatisfactory when discussed in
the courts above. It was underthese circumstances that the
case again came before a jury. The only novelty in it was
the change of counsel, caused by the elevation of Mr. Justice
Wightman to the bench, and the temporary illness of Mr.
Alexander. The facts were few and extremely simple ;
and although the enquiry might be somewhat lengthened
and tedious, the task of the jury would be an easy one.
The plaintiffs, who were the assignees of Messrs. Humber-
ston and Frodsham, claimed property to the amount of £4OOO,
as part of the bankrupts' estate for distribution among the
creditors. He need not remind the jury how important it
was on the one hand that bankrupts' estates should be equally
divided among their creditors; and on the other hand, he
would say undoubtedly, that if it so happened that a creditor,
like the defendant standing alone, should have been so cir-
cumstanced as to have better rights than other persons, he
was entitled to assert those rights ; but, he said, judges and
juries, and all connected with the administration of the
law, would be anxious to assist the equal distribution of the
property of the bankrupts, and if any creditor asserted his in-
dividual right, it was expected he would clearly and distinctly
prove that right. Unless he did so, they would be unwilling
to give him the advantage he sought. The action was an
action of trover for 304 bales of cotton, by the assignees of
the bankrupts, upon their possession as assignees. The de-
fendant had pleaded first not guilty. Upon that plea he ap-
prehended there would be little question, as he should pro-
duce evidence. Next, lie pleaded that the plaintiffs were not
the assignees of the plaintiff; third, he alleged that the
plaintiffs were not possessed of the goods in the manner
stated in the declaration. Upon this issue it was proba-
ble the principal question would arise. Fourth, the defen-
dant pleaded that the bales of cotton were purchased by
Thomas Blades Molyneux, nephew of the defendant, upon
his own credit, at Charleston, as the agent of the bankrupts,
that he shipped them on board a vessel bound to Liverpool,
that they were paid for by Humberston and Frodsham
accepting his drafts, that while the vessel was in 'muslin
Humberston and Frodsham became insolvent, and that then
he had the right, and exercised that right of stopping the
cotton. To this plea there was a new assignment. The new
assignment was, that the bales were other raid different than
the said bales of cotton, and also that they were converted
upon another and different occasion, at another and a different
period, and in another and a different manner. Upon the
first trial of this case it was held that the effect of that new
assignment was to make it necessary for the plaintiffs to show
other than one parcel of 304 bales of cotton, and that there
ought to appear to be two parcels, to one of which the new
assignment applied. That argument unfortunately prevailed,
and the learned judge felt that was a technical difficulty, which
the plaintiffs could not get over. Subsequently, however,
an application was made to the Court of Common Pleas, the
report of which, by Messrs. Manning and Grainger, he had
in his hand. The case was there discussed, and the result of
the discussion was, that the view taken by the learned judge
was incorrect, inasmuch as besides the words " other and
different bales" in the new assisgnment, there were also the
words " and converted other and different bales, ,on another
and different occasion, and in another and different manner."
The court said the effect of that was, that the conversion of
which the plaintiffs complained was not that asserted in their
plea, but that they were converted under different circum-
stances, for another purpose, and upon a different occasion.
The effect of that decision was, that it was not necessary to
show there were more than one lot of cotton, and that if the
plaintiffs proved the conversion of more than one they were
entitled to their verdict.

The CHIEF JUSTICE observed that the form of the new
assignment was rather unusual.
Mr. WORTLEY believed it was, but added that it was
framed upon the principle in the new case of Bolton v. Sher-
man.

Mr. CRESSWELL intimated that there would be no diffi-
culty as to the new assignment.
Mr. WORTLEY said, that being so, the plea of stoppage
in transitu was out of discussion to-day; and the only
matter in dispute therefore would be upon the plea of not
possessed, whether this cotton was in the possession of the
assignees. In order to defeat that possession, his learned
friends, he apprehended, would rely upon that which they
relied upon at the second trial, namely, upon some claim of
the defendant as mortgagee of the ship, that the property
of the cargo followed the legal ownership of the ship, and
that upon that ground the assignees were not entitled to pos-
session. That plea would fail them also, inasmuch as the
decision of a court of justice had passed against them. The
only other ground of defence that he (Mr. Wortley) could
suppose was this, that under the plea of not possessed, his
learned friends were entitled to show they had a right of
stoppage in transila, and that they exercised that right
before the conversion of which the plaintiffs complained.
When he had related the circumstances of the case,
he apprehended the court and jury would be of opi-
nion that this defence could not apply. The bankrupts,
of whom the plaintiff, Thomas Brancker, jun. was the
surviving assignee (the other assignee being dead), were
Messrs. Humberston and Frodsham, who, for fifteen years
previous to the year 1839, were commission merchants, re-
siding and carrying on business in Liverpool. They were
also shipbuilders in the Isle of Man, in partnership with Mr.
Taggart, but that partnership was dissolved before the present
matter arose. The defendant, Mr. Edmund Molyneux, was
a member of the highly respectable firm of Molyneux, Tay-
lor, and Co., brokers, of this town. The bankrupts, Messrs.
Humberston and Frodsham, had in their possession a vessel
called the Diamond, which had been built for them by Mr.
Taggart, and they took altogether the management of
ttim
the
ship. Several voyages had been made by the vessp l,
and
commander appointed by Messrs. Humberston and Diamond
Frods-
ham was Captain Toole. In November, 183, Toolet;, the
to New
again sailed under the command of Captain
York. After discharging at New York,
Caput:in Toole, acting
his employers.
h
according to instructions he had received
n from
applied to Mr. T. B. Molyneux, . was residing there.gome '
That gentleman, having previously recent
communi-
cations from Messrs. Humberston d Frodsham to that
of and Upland cotton, which,
put T
effect, made a purchase of 304 the Diamond, on behalf
of Humberston and Co. bales
among other goods, heP
n boardina amount of cotton he placed on
to
board the ship belonging
Messrs. Humberston and Frod-
sham, on their account, a_
rid to their risk. The bill of
lading
was signedthe captain in the ordinary manner, and en-
dossed by Mr. by_
B..slolyneux. Together with the bill
ladingof
there ;as an invoice of all goods shipped at the same
time, and with it, all on one paper, a letter from Mr. T. B.
• s
Molyneux, stating what he done con.equence of
in-
structions
• from Messrs. Humberston and Frodsham. The
learned counsel then read the bill of lading, the invoice, 213 d
the letter, and contended that they clearly proved Mr. T. B.
Mulyneux had acted solely as the agent of .the bank runts.

IVonsuit

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