The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1841-04-16 00:00:00

SMITH LANCASHIRE SPRING ASSIZE 6

CROWN COURT.-TUESDAY.
EARNED. AND OTHERS V. HAMILTON

The plaintiffs in this action, which was tried before a spe-
cial jury, were Mr. Israel Earned, Mr. Lewin Mozley, Mr.
Elias Joseph Mozley, and Mr. Charles Mozley, bankers, of
this town ; the defendant Mr. John J. Hamilton, merchant,
also of this town.

Mr. Knowles and Mr. Crompton appeared for the plain-
tiffs, and Mr. Cresswell and Mr. Martin for the defence.
The action was brought to recover from the defendant the
sum of £1,337, the loss sustained on the resale of 200 quarter
shares in the Grand Junction Railway, which had been con-
tracted for by him. The defendant pleaded that he had not
promised as alleged ; that the company - did not make and
create the new shares in manner alleged ; that the plaintiffs
did not offer to sell and deliver and cause the shares to be
transferred ; and that he (the defendant) was induced to en-
ter into the agreement by fraud.

Mr. KNOWIIES detailed the features of the case to the jury
with much precision and perspicuity. On behalf of the
plaintiffs it was alleged, that though the Grand Junction
Railway was formed at what was considered a cheap rate,
yet, in consequence of the expence of the formation hav-
ing exceeded the original estimate, a debt had been incur-
red, to liquidate which, an act of parliament was obtained
for the purpose of raising funds, by the creation of addi-
tional shares. On the 20th May, 1840, a resolution was
passed confirming a report of the chairman, and ordering a
summary to be prepared for the creation of such shares, it
being notified, that the dividend on the new shares would be
the same as on the old. The directors lost no time in giving
notice to the stock exchange in this town of the intention.
The measure only wanted the confirmation of the proprietors,
and were immediately to bear the same rate of interest as
the others. The new shares, which were quarter, or £25
shares, immediately became the subject of traffic in the share
market. Mr. Hamilton, it was believed, thought it would
be a good time to speculate. He was a holder of some of
the old shares, and would, therefore, become entitled to an
allotment. On the 25th May, he called upon Mr. Read, a
sharebroker, of this town, and asked him if there were any of
the new Grand Junction quarter shares in the market. Mr.
Read told him that there had been fifty of them offered that
day at £35 per share. Mr. Hamilton was anxious that the
purchase should be made at that rate, but was informed that
the stock exchange was closed. Mr. Read went over, how-
ever, to the office of Messrs. King and Son, sharebrokers,
and purchased the lift) shares which had been mentioned at
£35 per share. Mr. Hamilton expressed very great anxiety
that one hundred more shares should be purchased at the
earliest opportunity ; and accordingly one hundred more
shares were purchased first thing next morning at the same
Ste. On the 26th or 27th May, Mr. Hamilton again called
and ordered Mr. Read to purchase for him 350 more shares
the same price. Mr. Read thought it his duty to remonstrate
with Mr. Hamilton ; and he told him that he thought
he was going rather deep. Mr. Hamilton replied that he
should stand to lose £2,000 to £3,000; but if the shares
got up, as he anticipated, he should get a considerable
profit, perhaps twice as much as he had mentioned. Mr. R.
said, as the order was so large, he would be obliged to Mr.
Hamilton, if he would give him a written direction to pur-
chase. Mr. Hamilton was greatly offended at this request,
and he asked Mr. Read if he could not trust him. Mr. Read
thought, as the order was so large, it should be given in writ-
ing; and, after some demur, this was complied with. Mr.
Hamilton gave an order, signed with his name, to purchase
3.50 shares ; the order to remain in force till countermanded.
Mr. Read went to Messrs. Reynolds and Son's office, and
found that they had some shares to dispose of. Messrs.
Reynolds and Son were the brokers for Messrs. Barned and
Mozley. Mr. Reynolds had deemed it his duty, when the
new shares were about to come into the market, to call upon
Messrs. Barned and Mozley, and to ask them if they would
be buyers or sellers. They told him that they would be pur-
chasers at £3O, and sellers at £35. Mr. Read at once pur-
chased from Messrs. Reynolds 100 shares at £35. He then
offered to purchase another 100 shares if Messrs. Reynolds
would take a lower price. The latter said they did not think
a lower price would be taken, but they would consult with
the holders. Mr. Read said, " I will take another 100 shares
at £34 155." Mr. Reynolds consulted with Messrs. Barned
and Mozley, and they agreed to accept the offer. Bought
and sold notes were exchanged between Mr. Read and Mr.
Reynolds in the usual manner. About the middle of July
the market began to change, and Mr. Hatnilton, it was pre-
sumed, became alarmed. He went to Mr. Read, and asked
him if he could get rid of some of the shares for him. Mr.
Read said it was a large number to bring into the market,
and there would be some difficulty, as there were no buyers.
Mr. Hamilton requested him to try if he could induce the
parties front whom the purchase was made to take them back,
or to rescind the bargain. This, of course, could not be ef-
fected. Mr. Hamilton at that time made no pretence of
fraud, but attributed his desire to annul the bargain to the
falling state of the market, and to the prospect of ultimate
loss. On the sth of August Mr. Read received a letter from
Mr. Hamilton, saying that he had just heard the intention in
creating the new shares was expressly to lower the dividend :
if that proved correct, he should consider all the contracts for
the shares which he had bought void. Mr. Read wrote back
to Mr. Hamilton expressing his surprise, as at the time the
shares were purchased nothing whatever had been said touch-
ing the dividend : it was a matter of uncertainty what the
dividend would be, and it could not be ascertained whether
it would be less than seven per cent. at the end of the then
next half-year ; nor could the contract be cancelled without
the consent of the parties from whom the purchase had been
made. On the 24th of August Mr. Hamilton again wrote to
Mr. Read, referring to his former letter, and stating that a
misrepresentation had been made respecting the dividend at
the time when the shares were sold, which was the reason
why he considered the contract null and void. On the 20th
of October, at the office of Mr. Mallaby, the defendant's
solicitor, a personal tender was made of the shares, and a
declaration made that the Plaintiffs were ready to transfer.
The defendant said he would not take the shares, and that he
had been imposed upon at the time of the sale. The present
action only related to the 200 shares belonging to Messrs.
Mozley, which were purchased for £6975.
Mr. Read was called, and he detailed the circumstances
leading to and arising upon the transaction, in substance as
above stated.

Mr. William Reynolds, jun., sharebroker, proved that Mr.
Lewin Mozley told him that he was at liberty either to buy
at £3O or sell their shares at £35, that he sold Mr. Read
100 shares at £35, and submitted to Mr. Mozley the offer to
purchase 100 more for £34 10s., which was agreed to. The
shares were purchased for Mr. Hamilton, say 100 at 41.5,
and 100 at £3l 10s., amounting to-ASSion.. ,raervrere, after
the tender, sold at an average of £2B 13s. per share, amount-
ing on the whole to £5,637 55., exhibiting a difference of
£1,337 15s.

On cross-examination by Mr. CRESS WELL, Mr. Reynolds
stated that the prices of shares, as indicated by actual trans-
actions, ranged, on the 21st of August, from £3O to £3O 55.,
on the 22d from £3O ss. to £3O 10s. Mr. Cresswell cross-
examined Mr. Reynolds. with the view of showing that the
shares were not a joint property, but nothing to that effect
was elicited, Mr. Reynolds stating that he communicated
with Mr. Lewin Mozley on behalf of the firm.

Mr. Thomas Goalan, a clerk in the Grand Junction Rail-
way-office, produced a book of the minutes of the meeting of
proprietors, and turned to that of a general special meeting
of the 10th of August. The minutes of this meeting were
read, from which, it appeared, that a dividend of 4:7 per cent.
had been declared, and a further bonus of 15s. per share out
of the clear profits of the undertaking, and that 17,627 new
shares of £25 each were created, all of which were to be re-
gularly numbered, &c., and be apportioned amongst the pro-
prietors. The bonus was made out of the surplus, which was
not carried forward to the next half year, in order that the
new propri should not participate in that accumulated fund.
Ou cross-examination by Mr. CRESSWELL, Mr. Goalan
said, Mr. Lewin Mozley was one of the directors of the com-
pany. lie could not say that he was present at that meet-
ing. A certain sum was always carried forward, which would
form a part of the dividend of the next half year. On this
occasion there was a deviation from the usual practice. This
was the only occasion on which a bonus had been declared.
The dividend at the end of the next half year, was £1 12s. 6d.
per quarter share, or 63 per cent. If the money distributed
by the bonus had been reserved •, if the bonus had not been
declared, the dividend would have been about one per cent.
more.

By Mr. KNOWLES.—The dividend was the same on all the
shares : it was declared in February, 1841.

Mr. John Swift, clerk to the GWaiidYunction Company,
said, Mr. Hamilton had some shares, and consequently had
some of the new shares allotted to him.

By Mr. CRESSWELL.-Mr. Lewin Mozley had thirty-nine
.E:00 shares, sixty £5O shares, and eighty £25 shares. Mr.
Barned had three £5O shares, Mr. Elias Joseph Mosley had
nine £lOO shares, eight £5O shares, and forty-eight £25
shares. Mr. Charles Mosley had ten £lOO shares, thirty
£5O shares, and eighty-eight £25 shares.

A note was put in from Mr. Mallaby, expressing regret
that after all the trouble that he had taken, the affair should
have to come to a law-suit, ar d expressing a desire that the
tender should not be made.

Mr. CRESSWELL addressed the jury for the defence. His
remarks were first directed to the bonus which had been
made, which had the effect, he said, of depriving the purcha-
sers of new shares of a share of the profits of the concern
which they had a right to expect. Messrs. Barnard and Co.
he said, had acted a little on the sly, for the public knew no-
thing of the resolution passed by the directors, the object of
which was to bring down the shares from 4;35 to-X3O. Mr.
Hamilton, he thought, had been hardly used in the transac-
tion. As he, (the learned counsel,) however, did not get the
broker, Mr. Read, to give the evidence which he expected,
he was therefore driven to say, as a lawyer, that he had no
answer to the case, and, therefore, the question would be one
of damages merely. In justice, he thought Mr. Hamilton
ought not to pay any damages. The jury, however, would
fix the damages according to the circumstances of the trans-
action. There was a repudiation of the bargain on the Ist of

August, and another more distinctly expressed on the 24th.
In the first letter written, Mr. Hamilton said, be had heard
for the first time that the real intention in creating the new
shares was expressly to lower the dividend. If this proved
correct, he would consider the bargain as null and void.
Now this did prove correct, so that the repudiation ought to
be considered to have taken place at the time. On the 24th,
the directors having divided the bonus which would have
kept up the value of the shares, Mr. Hamilton declared that
he considered the contract null and void. On the 24th the
shares were at £3O 10s. to £3l 10s., and on the 24th and
26th they were at £31155. to £32 10s. He thought, as•they
would not probably be sold at once on the 24th, with a rising
market, but would probably be kept a day or two, they
might therefore take them at £32, as sold on the 26th.
His LORDSHIP said he thought the lowest price on any
one day ought to be chosen, as such a large parcel of shares
would probably not be easily sold at the highest price.
Mr. CRESSWELL would take them at £3l 155., which
would make them £6,350, a difference under the amount
claimed of £7OO, reducing the loss to £625. That, he
thought, would be the true measure of the damages.
His LoßnstuP put the case briefly to the jury, remarking
slightly on the amount of damages that would probably meet
the case according to the period when the jury thought the
repudiation occurred.

The jury retired, and, after an absence of about half an
hour, returned into court, and delivered in a verdict for the
plaintiff—damages, £1,337 15s.

FOULDS 27.. IV.ILLOUGHBY

The plaintiff in this case is Mr. Alderman Foulds, residing
in Ray-street, in this town, and the defendant, Mr. Wil-
loughby, the proprietor of the Birkenhead Hotel and ferry.
The action was brought to recover the sum of £42, the value
of two horses which were alleged to have been illegally sold
by the defendant.
Mr. Watson and Mr. Atherton appeared for the plaintiff,
and Mr. Cresswell and Mr. Martin for the defendant.
On behalf of the plaintiff it was set forth, that Mr. Foulds
was over two horses from the fair at Birkenhead,
in )
and that when he had got them on board the
p
last,we were forcibly taken from, him, driven on shore,
enadc(kb
ecttheytoer bringingretained by Mr. Willoughby, and ultimately sold.
In defence it was alleged that the plaintiff was intoxicated,
and that he behaved very indecorously on board the packet.
The jury retired at a quarter-past five o'clock. They re-
turned in ten minutes, and delivered a verdict for the plain-
tiff—damages, £3B for the horses, and £2 for the saddle and
bridle—total, £4O.

OCCLESITAW V. MAGRATII.
In this case the plaintiff, a shopkeeper at Standish, near
Wigan, sought to recover a sum of £26 and odd, being a ba-
lance of amount for board, lodging, and attendance given and
supplied to the defendant, who was represented as formerly
having been an officer in the army fhe having lost an arm in
the service of his country), but at the time he occupied the
lodgings in question, reduced to comparatively humble cir-
cumstances, and he accepted a small clerkship at a colliery.
The defendant had paid the sum of Xl7 int° court, as being
sufficient to cover all the value he had received, but the
plaintiff not content with this amount, prosecuted the pre-