The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1840-09-08 00:00:00

HARRISON V. KNIGHT

The plaintiff in this action (which was in trover), Mr.
Henry II arison, was a shipping merchant at Manchester;
and the-defendant, Mr. Nathan Knight, was also a merchant
here. In 1838, the plaintiff bought from the defendant some
" drills," to the amount of £470 55., for which he gave him,
on account, a bill for £440, leaving a balance of £3O ss. ;
for which balance security was given, by the plaintiff en-
dorsing tb the defendant a bill of £lOO, at twelve months,
which he had in his possession at the time. This £lOO bill
being dishonoured, the plaintiff next gave the defendant an
order on London for £3l 10s., and he also paid £1 elpenses.
That order being also dishonoured at maturity, legal pro-
ceedings were commenced against the plaintiff in August,
1838, to recover the £3O ss. principal debt. The plaintiff
was arrested, and he then paid £33 18s. 6d. the debt and
costs (but without interest); but have never received from
the defendant the £lOO bill and the £3O ss. order, given as
security for the payment. For the plaintiff it was contended,
that, the debt and costs being paid in full, there was no pre-
text for keeping these instruments from the plaintiff. It
appeared that the defendant's solicitor, Mr. T. T. Marriot,
said to Mr. Mariner, the party -sent by Knight in April last,
to demand the bill, that he or anybody else might have it on
payment of 12s. law charges. Mr. Knight subsequently
went to Mr. Harrison, and said he was exceedingly sorry
that this should have happened ; he thought all had been
settled, and he knew of no claim against him. Mr. Harrison
said, " I have no feeling against you, Mr. Knight ; I only
wish to recover my bills ; and to show you that I have not
any feeling against you, I will leave it to any respectable
merchant or man of business in Manchester." Mr. Knight
appeared exceedingly deajrous that it should be so ; but Mr.
Marriott, he said, was out of town, and he did not know
what steps he had taken, but he would see him on the subject
when he returned. Mr. Harrison said he was going to
London that night and some party must be named that day.
Mr. Knight said he could not act without Mr. Marriott ;
and, at the recommendation of Mr. Knight, Mr. Harrison gave
Mr. Mariner a letter, authorizing him to act for him. Mr.
Mariner was subsequently told by the defendant's son-in-law
that the defendant had seen Mr. Marriott, who was certain that
he was right in holding the In cross-examination, the
witness, Mr. Mariner) stated, that in 1837 the plaintiff was
insolvent, and this year he had made some arrangement with
his creditors. When a written demand was presented to
Mr. Marriott, he said—" Very well." This was the case
for the plaintiff,—For the defendant, Mr. Cresswell sub-
mitted that there was no evidence of conversion, as there was
no refusal, and there was both demand and refusal to make
out a conversion ; and all that Mr. Marriott had said was,
" Very well."—His Lordship said, he thought there was no
evidence as against the defendant.—Mr. Dundas, for the
plaintiff, said, the bill was retained by the defendant's attor-
ney.—The Judge : Yes ; but it was held by him against the
will of the defendant. A letter was then put in from Mr.
Hodgson, then a clerk of Mr. Marriott's, stating that part
of the costs and interest remained unpaid, and that the bills
would be handed over to the plaintiff, on:payment of costs.
—His Lordship thought this was sufficient to establish prima'
facie conversion.—Mr. Cresswell, for the defendant, said,
that the pleadings only referred to the £lOO bill, and did not
include the «30 order. The plaintiff was arrested for £3oss,
but could not be arrested for interest, and therefore the de-
fendant still had a on the bills, and was entitled to hold
the bills until the interest and costs were paid. The £lO3
bill was endorsed to the plaintiff " without recourse," and
therefore it was not worth one farthing to him. The plaintiff
had issued two writs for the bill; and, he submitted, that, in
point of law, there was a balance still due, and therefore a
lien on the bills ; and, however small that balance, the de-
fendant had a right to retain the bills till that sum was paid.
No witness was called for the defence.—The learned Baron
said, that the £lOO bill, being endorsed to the plaintiff "with-
out resource," was no inure in effect than a promissory note,
and was no more than Mr. Harrjson's personal security. The
draft for £3l lOs was next given as collateral security. The
question was, whether or no there washny interest or any
costs due to Mr. Knight at the time of the demand for the
restitution of the bills. There was an amount of £1 10s added
to the £3O 5s in the order for £3l 10s. If there was a right
to add that £1 lOs there was no proof of that amount having
been paid, and that remaining unpaid would give the defend-
►nt a lien on the bills. The jury found for the plaintiff, da-
lages ls, costs 40s.

SATURDAY.
JOULE V. JACKSON

Mr. Joule, an extensive brj;eiinSalford, brought this

action against the defendant, who is a hailiffof Sir Oswald
Mosley, baronet, lord of the manor of Manchester, to re-
cover possession of certain casks of his which the defendant
had seized under a distress for rent,. against William Brier-
ley, a publican, in Manchester, a tenant of Sir 0. Mosley.
Mr., Cresswell was for the plaintiff, and Mr. Wightman for
the defendant.

The question in this action was, whether the casks of brew-
;rs, in Manchester, and, indeed, in all the district, were Ha-
ile to be distrained by the landlord of a publican. The cus-
tom, it was proved, was, for brewers not to sell their casks,
and that Mr. Joule had upon his invoices the words, "the
barrels to be
.returned.when empty, being never sold." In
June last he supplied four casks or half barrels to Brierley,
who, being in arrears of rent, his furniture and stock were
seized by the defendant for the landlord. At that time two
of the casks were empty, and the others contained porter'.
All of these casks were seized and sold under the execution.
The only question was, whether the barrels in question were
distrainable.
A verdict for 40s. damages was taken for the plaintiff,
leave being given to the defendant to move to enter a non-
suit, when the question of law will be fully argued.
WHITEHEAD V. CHADWICK AND OTHERS.
The plaintiff, in this case, is an attorney, and the defen-
dants are surveyors of the highways for the parish of Middle-
ton. The action was brought to recover a sum of money due
for work and labour done, but the proceedings did not pos-
sess the slightest interest. The Jury found a verdict for the
plaintiff, damages, £l7l 2s. 3d.
NALL V WILSON.
The plaintiff in this case was John Nall, a butcher and
cattle-dealer, at Manchester. The action was brought
against the defendant, who is also a butcher, to recover the
sum of £240 56. being the balance of an account due from
him for cattle. 'There had been dealings between the parties
for cattle, for several years, to the amount of £7,000, and the
sum sought to be recovered was the balance alleged to be due
to the plaintiff. Verdict for the plaintiff, damages £240 ss.
HOLPORD V. DUNNETT.
This was an action brought by Mr. John Holford, the
owner of a house at Rusholme, about two miles from Man-
chester, to recover compensation for damages done tothe
house, grounds, trees, shrubs, &c., by the defendant, Mr.

William Dunnett, accountant, Manchester, who was tenant
of the house, which was called Heald House, and about two
acres of land for four years, at a yearly rent of £5O. The
term was from Lady-day, 1836, and the defendant left the
house in April last. Several offers were made by the plain-
tiff's counsel to refer the matter, but they were refused. It
appeared, that the defendant had removed a conservatory, a
gate, and other articles,. which he had before put down, on
finding that the plaintiff refused to renew his lease. A con-
siderable body of evidence was laid before the jury, but it
was totally uninteresting. The Jury returned a verdict for
the plaintiff, damages £3O.

POTTER V. GREGOR

This was an action to recover damages for false imprison-
ment. The plaintiff is a fishmonger, in Salford, and was in
the habit of procuring his fish from a company, described as
the Dublin Fish Company. In the course of his business he
received a number of salmon-boxes, in which that fish is
conveyed from one place to another. In the beginning of the
present year he took two houses in Smithfield Market, Man-
chester, which wanted repair, and one of the salmon-boxes
which he had by him was sent there to be used. Whilst it
was lying there, some person connected with the company
saw it, and gave information to the defendant, who was an
agent of the company, and, by his directions, the plaintiff was
taken into, custody. He was lodged in the Shudehill lockup
the whole night : the next morning he was examined before
Sir Thomas Potter, and discharged. For this imprisonment
the present action was brought. • It was proved that the
plaintiff suffered considerably from the effects of the night's
imprisonment. On the part of the defendant it was con-
tended, and witnesses were called to prove that the police-

,fficer who apprehended the plaintiff ha'd acted upon his own
.uthority, The Jury found a verdict for the plaintiff, da-

rages £lO

The Court adjourned at seven o'clock

MONDAY.
SHEFFIELD AND MANCHESTER RAILWAY COMPANY V.

MACAULEY.
Mr. Cresswell and Mr. Wightman appeared for the plain-
iffs ; Mr. Dundas, Mr. Crompton, and Mr. Cowling for the
efendant. .

The declaration stated that the defendant, who is a sur-
;eon at Leicester, was the proprietor of twenlohares in the
-Sheffield and Manchester Railway Company, and that he
'as indebted to the company in the sum of £450, for four
mils upon his shares. To this the defendant pleaded that he
yas not indebted in the manner and form described, and,
secondly, that he was not .a shareholder in the company in
:he manner and form alleged. . .

Mr. CRESSWELL said, 7cl; was an action brought to reco-
ver from the defendant the amount of four separate calls made
upon him in respect of his proprietorship of twenty shares in
the company, which was established in 1837, for making a
railway from Sheffield, in the West riding of the county of
York, to Manchester, in the county of Lancaster. The pro-
ceedings in this action would, be regulated according to the
directions of the different clauses in the act of parliament.
The jury would be well aware 'that when a concern of this
sort was in progress, it was absolutely necessary that from
time to time calls should be nude upon the shareholders, and
recovered without any great degree of difficulty, otherwise it
would be im
Accordingly

„ in this act of parliament there were provisions
:0 recover calls, and the nature of the evidence which should
re given was specified. Ile should, therefore, direct their
retention to the various clauses in the act by which the di-
...

7ectors were empowered to make calls, and describing the
manner in which they were to proceed, if they found occasion,
in courts of justice to recover those calls. The act of parlia-
ment was passed in May, 1837. After that had been done,

L__ •
and before they were to make any calls, of course it was ne-
cessary the directors should comply with one requisition of
the act, namely, that all the capital of the company should
be subscribed for, and until all of it had been so subscribed
for, the directors were not authorised to take any steps to-
wards carrying the act into execution. The legislature, the
jury would find, provided for evidence to be given that all
the capital had been subscribed for; for, in section 107, it
was enacted, that a certificate, under the hand and seal of a
justice of the peace, should be given, that the whole £700,000
had been subscribed, and which certificate the justice was
authorised and required to give, upon due, proof being given
before him. He (the learned counsel) should show that this
preliminary matter had been complied with, by the produc-
tion of the magistrate's certificate. That having been done,
the statute required the company to make a register of the
shareholders, by section 110, and he should show that this
had been made. The 115th section enabled the directors, from
time to time, as they should find it necessary, to carry the act
into execution to ,make calls, no such call to exceed £lO
.

on each— share, and 21 days' notice to be giien in one
or more of the newspapers circulating in the counties of

York, Lancaster, Derby, and . Chester. The proprietors
were next required to pay the calls at such a time and in
such a place as the directors appoint. The next clause to
which he would direct attention was the 116th, which pre-
scribed the mode of proceeding in case the calls which were
imile were not paid. The learned counsel read this clause.
It provided, that in case any proprietor neglected or refused
to pay the instalment due upon his shares at the time and
place and in the manner appointed by the directors, together
with the interest, for two months after the day for paying the
same, then it should be lawful for the company to sue the
proprietor in any court of record ; the clause next provided,
that the company might, if they pleased, forfeit the shares,
but that no forfeiture should be acted upon, unless confirmed,
not merely by the directors, but by a general meeting of the
shareholders. In the 118th section, the legislature pointed
out the mode in which the parties should proceed when an
action was brought—the form of declaration and the nature
of the evidence. His lordship would, of course, see whether
the record was drawn in conformity with the act, and that
upon the trial it would only be necessary to prove that the de-
fendant was a proprietor at the time of making such calls,
that such notices of calls were given, without proving the ap-

_
pointment of directors who made such call
prove that the defendant was a:proprietor at the time of such
calls being made, the production of the register of share-
holders was prima facie evidence of the defendant being a
proprietor, provided that the name of the defendant on the
record agreed with that in the book. He (the learned coun-
sel) should shew by the register he should produce, of August,
1838, that the defendant was then a proprietor of twenty
shares in this concern. He should complete this portion of
the evidence by producing two newspapers which circulated
in the four counties he had mentioned, and when he had done
that, he should have proved the formal part of the evidence.
He should next prove that on the 13th March, a call of
£2 10s. was made, payable on the Ist May ; that on the 10th
July, 1839, a call of £5 wa.5...1144e, payable on the 6th of
August; that on the 20th November, 1839, another call was
made, payable on the Ist of January, I 840; and on the 11th
of March, 1840, a call of £lO, payable on the Ist of May,
1840. This would make, on the whole, £22 10s. per share.
When he had given this evidence, he apprehended he should
be entitled to the verdict of the jury, unless his learned
friend could shew that the defendant was not a proprietor, or
that he had paid his quota according to act of parliament.
William Rhodes
,0 clerk in the office of the company, pro-
duced the register a shareholders, dated 29th August, 1838.
The name of the defendant, Thomas Macauley, of Leicester,
in the county of Leicester, surgeon, was therein registered as
the proprietor of twenty shares.' The witness next produced
several books of proceedings of the directors, and referred to
an order of the 13th March, 1839, for a call of £2 lOs per
share, to be paid on or before the Ist May. The proceedings
of this meeting were signed by Mr. William Sidebottom, the
chairman. Another call was made on the 10th of July, for
£5 per cent., (the shares being £lOO each,) payable on or
before the 6th August. This was also signed by Mr. William
Sidebottom. On the 20th November, 1839, another call was
made of £5 per share, payable on the Ist January, 1840.
Another call of £lO was made on the 11th March, 1840, pay-
able on the Ist May. This was also signed by Mr. Sidebot-
tom. Witness could only say Mr. Sidebottom signed these
calls from knowing his handwriting.
Cross-examined by Mr. DUNDAS.—The entry of Mr.
Macaulev's shares in the registry was in the handwriting of
Mr. G. 13. Johnson. Witness was not present at the general
meeting. Witness himself, wrote the order for the call of
£2 10s. Mr. Thomson wrote the order for the call of the
10th July, 1839, for £5. He wrote that which was in pale
ink, and the signature which was in dark ink. Witness went
into the service of the company in October, 1838. Lord
Wharncliffe was then the chairman, and Mr. William Side-
bottom was the deputy-chairman. There were sixteen direc-
tors. Mr. Sykes, Mr. Dalton, and Mr. Bennett were then
directors. Mr. Rawdall was not, but he became one at the
general meeting of February, 1840. Mr. Thomson was secre-
tary when witness entered the service of the company. Mr.
Ward was secretary before him. Mr. Thomson was appointed
July 13th, 1838,, and witness read the terms of his appoint-
ment. The first general meeting after the act was passed was
held on the 23d October, 1837. At that meeting a resolution
was passed for appointing John Bennett, of Manchester,
Mr. Sykes, and Mr. Dalton directors, in .the place of three
others, who had retired. At that !meeting another resolution
was passed, for adjourning the meeting to the first Wednes-
day in February, 1838, and stating also, that in the meantime
no call for money be made for carrying on the work. At the
meeting on the 7th February, 1838, a resolution was passed,
" that the chairman of the meeting. affix the company's seal
to the share register." In this register the name of Mr.
Macauley appeared for the same number of shares as in the
former register. Witness here referred to the entry of the
18th April, and among other things found, it was ordered
that the subscription deeds and one copy of the magistrate's
certificate should be sealed up, and deposited in the Man-
chester and Salford District Bank by the deputy-chairman;
and then it was resolved that Mr. Vignoles be appointed en-
gineer for completing the work, upon the terms specified in
his engagement ; that Hadfield and Grave, of Manchester, and
Mr. Parker, of Sheffield, be appointed solicitors to the com-
pany. Then there was set out Mr. Vignoles' letter to " G. B.
Johnson, Esq.," secretary to the company, detailing what he
engaged to perform to the company. Mr. Johnson was a per-
son who kept the books. Witness does not know whether there
was any treasurer appointed. On the 9th October 1839, Lord
Wharncliffe in the chair, a meeting was held, at which it
was moved by Mr. Ellison, seconded by Mr. Bennett, and
carried unanimously, that a special general meeting be called
on the 25th October, to determine the expediency of enforc-
ing the payment of arrears on calls already made by the di-
rectors, and whether any and, what remuneration the engi-

shire,fo v

our ca

neer was entitled to receive in consideration of his services
in surveying and setting out the line. On the 25th October,
the special general meeting was held in the Cutters' Hall,
Sheffield. Lord Wharncliffe was in the chair ; and his lord-
ship stated, that the meeting was saved the necessity of con-
sidering the second subject, as a letter had been received
from the engineer, withdrawing all claim for remuneration
beyond his contract. Then there was an enumeration of
the arrears of calls ; and after a full explanation from the
chairman of causes why they had not been enforced, a
resolution was passed, by which the meeting expressed a full
reliance that the directors would carry into proper effect the
powers of the act for enforcing the payment of calls in
arrears, and for forfeiting shares on which there were calls
in arrears ; and that they deemed it most desirable to leave
the matter to the discretion of the directors, and not to lay
down any fixed rule for their government. (Mr. Cresswell
said there was a duplicate book of the same meeting in which
the entry was made rather better sense. In this book the
words or forfeiting were substituted for and forfeiting.) Wit-
ness believed that there was another book containing an
entry of this meeting at Sheffield. A rough draft book was
kept by the secretary of what was to be done at the meetings.
On the.4th December, 1839, there was a hoard meeting held,
Mr. Sidebottom in the chair. There was an entry in the
proceedings of that meeting, of Mr. Vignoles having ten-
dered his resignation as engineer, which was accepted, and a
resolution passed stating, that there was no blame to be
attached to his professional character. A subsequent reso-
lution related to his giving information to his successor, and
to the appointment of a sub-committee, to receive from him
a correct schedule of the shares held for him by parties to
whom he had given indemnity, preparatory to the board de-
termining upon the course to be pursued with reference to
those shares. The Manchester and Liverpool District Bank,
at Manchester, and Messrs. Parker, Shaw and Co. were the
bankers for the company, at Sheffield. Witness had paid
money into and received from the District Bank on account
of the company. Witness could not refer to the appoint-
ment of the bankers. The secretary paid money. On the
31st August, 1840, Mr. John Parker, M.P., signed, as
chairman, the proceedings of the meeting, thanking Lord
Wharncliffe on the occasion of his retirement from the office
of chairman of the company. Mr. Parker was solicitor to
the company, but witness did not know that he was clerk
before he was solicitor.
Re-examined.—The second call of the 6th April, 1839, for
£2 10s. per share, was advertised in the Leeds Mercury and
the Manchester Courier, of April 6th. These advertise-
ments were signed " Charles Thomson' clerk and secretary."
The third call was advertised in the Sheffield Independent
and Sheffield Mercury.
Mr. DUNDA.S said he would admit that the calls were duly
advertised.
Mr. DUNDAS.—Do you know whether any notices about

the calls were sent out to Mr. Vignoles' friends before Jun
Mr. CRESSWRLL objected to this question.
Mr. DUNDAS repeati—' J quest; min anothe-
The witness no rccr ection
sent to M' of the call

. said he had no recollection of any not
. • Macaulfm•-` Circulars v
.ound to all the sh
Mr. CRES''

WELL put in a proxy to vote at a general meet-
signed by Mr. Macauley: It was signed 16th Dec. 1837,
and appointed Mr. J. S. Sidebottom, of Waterside, Derby-

This was the plaintiff's case.
Mr. DUNDAS said he had an objection to take under the
115th section of the act. By that section the several pro-
prietors of shares in the capital stock of the company were
required to pay the calls made upon them " to such person,
at such time, in such place, and in such manner, as the di-
rectors of the said company shall from time to time direct
for the use of the said undertaking." Now in the resolution
of the directors for the call on the 13th March, 1838, there
was no direction of any place, where, or any person, to
whom the call should be paid, nor of the way in which' it
should be paid.
Mr. CRESSWELL said he should not answer this objection,
as his lordship had disposed of it already at Durham.
Mr. COWLING begged his learned friend's pardon. The
learned judge had reserved the point for him (Mr. Cowling).
The learned JUDGE said the calls were intended to be paid
in such a manner, in such times and places, as the directors
should from time to time appoint. In his judgment the re-
solution was what the directors had done among themselves ;
but if the objection extended to that,
_it was certainly not

hen and w

tice by which the public should be informed w
and to whom the calls should be paid, and that appeared in
the advertisement. If, however, there was any thing in the
objection, it was fatal ; but he should overrule it, giving the

defendant leave to move for a nonsuit upon that ground

Mr. CRESSWELL said he did not think there were any di-
rections as to the places of payment in any of the calls ; and
if this objection were to be fatal there would be an end to the
case. _ _

Mr. COWLING said the objection just started related_ to all
- - - -

here was

his lordship's attention. In the resolution 01 the 13th March,
for the first call, it was not for a call from the date of that
resolution, but for a call on a future day. This he appre-
.

March a resolution was passed, ordering a call to be made
on the 30th March, payable on the 30th May.
The JUDGE said it might be a blundering way of transact-
ing business, but he should overrule the objection with leave
to move. _ _ .

Mr. COWLING then objected that the book and entries of
the directors' proceedings were not evidence against the de-
fendant. By the 109th section they must be proved to be
signed by the gentleman who acted as chairman of the meet-

but the I,;itness could not prove the signatures to t

proceedings to be in the handwriting of Mr. gidehottom.
Mr. CRESSWL thought his learned. friend Mr. Dundas
had exercised a sound discretion in not making this objection
and in leaving it to his learned friend Mr. Cowling. The pro-
ceedings were signed by Mr. Sidebottorn, as chairman there
was evidence that be acted as chairman ; and therefore no

Mr. WIGHT➢IAN quoted the 'latter part of the clause to
show that the book of proceedings was to be read without
proof of the meeting being called, or of the signature of the

chairman. All of these were to be presumed. - •
The Jr, DOE overruled the objection, but reserved the point