The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1842-08-12 00:00:00

PANNELL V. WHITING

This was an action for the recovery of a sum of money,
alleged by the plaintiff to be due to him by the defendant.
The plaintiff had formerly been surveyor of highways for
West Derby, but had retired from that situation, and lived
independently. It appeared that he had been in the practice
of advancing money to landing waiters and other custom-
house officers, on the security of their receipts for their ap-
proaching quarter's salaries, and that he had so advanced
£26 ss. to the defendant, in July, 1840, and £7 on the
22nd of September of the same year. In the course of
the evidence, it came out that the plaintiff had an
intimate acquaintance with a person named Rednap, the
then messenger for the landing-waiters at the Custom-house ;
that they had transactions conjointly in the way of lending
money to the landing-waiters on the security stated ; and
that at one time the plaintiff on being applied to for an ad-
vance, by one or more of the officers, had said that he had
given Rednap a sum of £7OO, for the accommodation of
those gentlemen who then wanted it—and for which a con-
siderable interest was charged. It further appeared, that the
system pursued in paying the landing-waiter's salaries was,
so far as the book-keeping went, of a most lax and extraor-
dinary nature,—inasmuch as a salary-book was kept, in which
they might or might not put their signatures on receiving their
quarters salary ; and they might sign it either before or after
it was received by themselves, or any other parties, the receipt
produced for the salary by themselves or others being the only
voucher reouired, and the writing of the date of payment
opposite the sum by the clerk the only datum by which the
payment was recorded. Rednap, who was a sort of authorised
agent of the plaintiff's, had advanced money on the receipts
of several of the officers from time to time, and having paid
within a few pounds of the amount stated in them, drawn
the whole when it was due, including an ample balance due
to the parties to whom the loans were due, to secure the per-
centage for the accommodation. At length, having received a
large sum from the plaintiff, and being also in arrears to many
of the officers on their receipts, he decamped from the town.
A subscription was immediately raised amongst the officers,
and one of them was appointed to accompany Pannell in
pursuit of him. They traced him to Southampton, on his
way to the Continent, to which he escaped, and Pannell in-
stituted the action to recover the amount advanced to the
defendant. It was shewn, however, that he had drawn a
large sum on the eve of his departure on the receipts of the
officers, who, it appeared, were needy ; that none of them
had received back their receipts, so that they might draw it
themselves ; and that it might be inferred, though the plain-
tiff had been particularly kind to the defendant, he was a sort
of agent of his, and that he could not therefore recover from
them, however much he might have been aggrieved himself.
t was also shewn that Rednap had sent back £6O of the
money (out of some hundreds) to the plaintiff.
The jury, immediately after his lordship had summed up,
returned a verdict for the defendant.
His LORDSHIP made some strong remarks on the bad
system of keeping the Custom-house salary books.

In the case of 2114 Bane v. Boyer, the record was with-
drawn.

MARRIOTT V. MACAULEY—(SPECIAL JURY CASE.)
This was an action in trover, brought to recover a sum al-
leged to be due to the plaintiff by the defendant, for services
done and rendered in respect to certain railways.
Mr. Dundas and Mr. Watson appeared for the plaintiff;
Mr. Wortley and Mr. Cowling for the defendant.
The plaintiff (Marriott) was a solicitor of Manchester, and
busied in carrying out the views of the Manchester and
Derby Railway Company, or, in other words, " The
Charnet Valley Line," against the project of the Bir-
mingham and Manchester " Extension Line," which last
a number of railway companies were at the time deeply
interested in putting down, and (it appeared in this case) by
any possible means. Amongst the companies so interested,
was the Midland Counties, the Manchester and Derby ,the
Grand Junction, and others; and they appeared to have made a
sort of conjoint effort for that purpose. The defendant, also
a solicitor, was solicitor for, and an active party in carrying
out the views stated.

The case was one of great length and complexity, and it
appeared to puzzle both judge, jury, and counsel. We shall
not attempt more than an outline, particularly as. after
enormous expenses incurred in prosecuting the action, it yet
remains not wholly decided, having to be referred to the
decision of the judges, on a case being submitted to them.
It appeared that in February, 1839, a correspondence
commenced between the plaintiff and a Mr. Swift,
secretary to the Churnet Valley line, and finally
between him and the defendant. No regular agreement was
made as to what the plaintiff should receive for his services
but it appeared that these were considered acceptable ; that
he was in frequent correspondence with Swift and the de-
fendant, and that he was permitted to use his best efforts to
attain the object in view—the putting down of the " Exten-
sion Line"—by letters (anonymously signed) advertisements,
&c. in many of the newspapers, and the calling of public
meetings in various towns in the locality of the " suggested"
line and elsewhere. He incurred considerable expenditure
in so doing and in April 1839, after inserting numerous
advertisements,&c. issuing prospectuses of the i,roposed line,
for the cost of which he had rendered himself re-
sponsible, he wrote to Swift for a remittance. Swift
shewed his letter to the defendant, who, without paying
the money, gave him encouragement to proceed, which
he did, until May, when he again wrote for money.
The defendant replied to him, that he was not aware
that he was employed so as to proceed upon a carte
blanche as to expenditure, but that, in effect, he would make
such endeavours as would secure him from loss, while lie
(the plaintiff) secured himself in the favour of the several
directors by his exertions in their behalf. The plaintiff
afterwards wrote again, stating that he had incurred
considerable expense, and requiring £6OO to defray it, and
to meet his own charge. He stated subsequently that he
was out of pocket £360, and being pressed for money, finally
proposed to receive £4OO, on the understanding that he
should be relieved by the defendant and Swift from all the
responsibilities incurred by him to that date, the 20th May.
The defendant wrote him that he might consider that as
settled, and that he should, to put the matter at rest,
speedily remit him the £4OO, which he did, with some men-
tion as to his future services. The sum was remitted by a
bank check, and the plaintiff sent a number of accounts then
against him. He afterwards sent to the defendant's ad-
dress (at 'l5, Bridge-street,) London, a number of other
accounts due; but as the defendant had left town for his house
in Leicester, at the close of parliament, they never reached
him, and the parcel was returned to the Manchester station,
of the London Railway, where it remained without being
claimed all the present year, when it was found by Mr.
Marriott, and brought into court unopened. In September
of the same year, however, the plaintiff being pestered with
duns for payment of these accounts, sent a list of them, with
a copy of the letter accompanying them to defendant, who,
as the accounts of the company had in the interim been
settled, refused to pay them. The plaintiff had since been
obliged to pay them, and hence the present action. It ap-
peared that defendant had not left his address when he left
London, otherwise the accounts would have reached him,
and would probably have been paid, thus preventing all liti-
gation. The plaintiff had since been obliged to pay most of
them ; and for that sum, and the remaining responsibilities,
in all amounting to £195, he now sued, uponithe alleged
agreement in two letters to him, dated May, 1839.
The correspondence between the parties constituted the
main evidence. They were very numerous, and occupied
the counsel for the plaintiff some hours in the reading. The
payment of many sums by the plaintiff, for advertising,
printing, prospectuses, &c., by newspaper proprietors was
proved, there being in court a whole host of the " gentle-
man of the press," brought from all parts of England at a
great expense. _ _ _

The learned JUDGE was of opinion that the whole matter
resolved itself chiefly into a question of law, and could not
be decided in that court, from its complicated nature. Mr.
Wortley, however, spoke for the defendant at some
length, and established some points for his client, with
reference to the record and the issue involved. After
a long and uninteresting discussion, he, however, sub-
mitted, on the advice of his lordship, to a verdict for the
plaintiff, for a sort of guess balance due of £165, subject to
a case to be made out for the consideration of the judges.
The jury, as directed, returned a verdict accordingly; and
his lordship certified to the case being before a special jury.
Enormous expenses must already have been incurred in
this case, and the probability is that the verdict stated will
be submitted to, without further litigation.

NISI PRIUS COURT.—YESTERDAY.
(Before Mr. Justice MAIJLE and a Special Jury,)
JENTRIN v. PEACE AND OTHERS.—The plaintiff in this
case was William Jentrins, and the defendants were William
Peace, John Heyes, and others. The declaration was in
trespass, by digging certain pits and getting therefrom coal,
cannel, and minerals. The defendents pleaded that Sir
William Gerard, Bart., Richard Gerard, and Thomas Ge-
rard, were seized in fee of the manor of Aspul, in the parish
of Wigan, and by deed, dated in 1678. They conveyed the
tenements mentioned in the declaration to one John Ander-
ton, from whom they had descended to the plaintiff. In
his replication, the plaintiff admitted that Sir Wm. Gerard,
Richard Guard, and Thomas Gerard, were so seized, but
alleged they did not lease the lands mentioned ; on which
issue was joined. _ _ _

Mr. Wortley, Mr. , and Mr. Watson, appeared
for the plaintiff; Sir William Follett, (the Solicitor General),
Mr. Starkie, and Mr. Addison for the defendant.
The SOLICITOR-GENERAL stated the case. He had the
honour of appearing before the jury as counsel for the de-
fendants in this case ; and as the burden of proof in the first
instance lay upon the defendants, it became his duty to state
the nature of the evidence on which he relied. The action
arose from an alleged trespass committed to lands in the
occupation of the plaintiff within the manor of Aspul, in this
county. The parties upon the record were not the parties
substantially interested in the result of the trial. The plain-
tiff was the occupier of a farm under the devisees of a Mr.
Walker, who purchased the estate from a family named
familyntitleids top dre,oieeseo,-
Grundy• The first defendant upon record was the colliery
agent of Lord Balcarras ; and the real question which the
jury would have to try was whether Lord Balcarras was
entitledte to enter these lands for the purpose of digging
whic of the not
tree for cannel. The landlord of the plaintiff said lie was
predecessor
Balcarras purchased from the
ottheftaGhweirlayrdh'aadthteomtahneorenoaflAs,speualnl,nweli,thall the rights
mines. in the del
by him. He considerel:la
throughout and minerals
time the
made to h'
he
parts s
hadol 8t
ff:artetnnior of As. pull. That
had
dnvbeyeance was
eaetnnttiemr worked
l the
le; s andontl
ab
manor
nsriringleat
the estate which ttoh
directed his servantsbelonged to the devisees of Walker, and he
to do
} so in the latter part of 1839 or the
beginning of 1839. No
work went on ; but su.o ,jection was made at first, and the
bsequently Mr. Leigh, who acted as
agent for the parties interested in the cause, raised some

rinegion as to the right of Lora Balcarras—stating that'
though Lord Balearrae bad the right under ono of the clocee
of land which was called Penington, he had no right under
the doge in question, which was called Browne's. The ac-
tion was brought in 1839, but it was not proceeded with ; after
that time Lord Balcarras worked the mine to a certain extent ;
compensation was wade to the tenant for the trespass upon the
surface, but notwithstanding that the action was not pro-
ceeded with till the present time. He (the learned counsel)
should now proceed to state the title of Lord Balcarres. The
declaration stated that the defendants broke and entered a
certain close, the plaintiffs property. The pleas were long,
but in substance they amounted to this, that in the year 1678
Sir Wm. Gerard and Thos. Gerard were seized in fee of the
close in question, and being so seized they conveyed to Ander-
ton the property upon the surface, but they reserved the
right of the coal, cannel, and minerals, but it denied that in
the conveyance to Anderton they reserved the coal, cannel,
and minerals. That was the only issue raised upon the
record. The plaintiff denied the execution of any deed by
which the land was conveyed to Anderton making this '
reservation, the defendants said such a deed was executed
and that it contained such a reservation. They had traced
the title from the Gerads, who had made the conveyance to
Anderton, down to the conveyance to Lord Balcarras, in the
year 1812,—the family of the Gerads having continued in
possession of the property till 1812, when they conveyed it
to Lord Balcarras. The title of Lord Balcarras was not
denied. 'There was no dispute upon that part of the case;
therefore, whatever right there was reserved by the deed of
1678, it was in Lord Balcarrass ; and the simple question
was whether the defendants could prove the execution of
that deed. It appeared that the family of Gerads were i❑
the habit of from time to time making conveyances of por-
tions of the manor of Aspol, but reserving to themselves
the right of entering and getting the minerals, so that in
point of fact the minerals and the surface of the land became
vested in different people. In Cornwall and Derbyshire
this was the usual custom. The question then would be
whether the defendants would be able to shew that this right
had been reserved. Having stated thus generally the nature
of this right, be would direct attention to the details, and to
the steps by which he should trace the title from 1678 down
to the time when the parties under whom the plaintiff
claimed entered into possession. The learned counsel then
Proceeded to refer to, and describe, the several deeds and
conveyance, to Anderton, in 1678 ; and from him, through
various parties, down to Grunday and Walker, and subse-
quent subdivisions of the land, in all of which there was the
same reservation made in favour of the Gerard's as in the
deed of 1678. If the deed of 1678 were read in evidence, the
reservation would be shown, which was the only question
raised; therefore, the only question was, whether the de-
fendants were able to give evidence of the deed of 1678. For
the purpose of giving evidence of this deed, he should prove
that on the 4th of August, 1724, Arthur Altcar conveyed Pen-
nington's and Brown's tenement (the subject of this action),
to Hodkinson, and that Hodkinson received at that time the
deed of 1678. The deed of 1678 was then in Hodkinson's
possession in 1721. From him the land descended to the
plaintiff. He (the learned counsel) was not able to say
whether the deed was in the custody of the present plain-
tiffs ; they had the land ; they had had notice to produce the
deed, and if they did not produce it, it would then be for him
to give the best secondary evidence which he could to prove
its contents. This secondary evidence would be the inter-
mediate deeds, conveyances, and mortgages, which the
learned counsel minutely described ; and he contended, on
the authority of several cases cited in Phillips on evi- •
dence, that such secondary evidence was strictly admis-
sible. He concluded by expressing a confident opinion
that after the case had been gone through, the jury
would return a verdict which would fully establish the
title of Lord Balcarras to enter the plaintiff's land for the
purpose stated in the declaration.
_ _

great mass of deeds were then read and put in, to many
of which Mr. Wortley objected, but in every case the objec-
tion was overruled, the Judge taking a note of the points.
The deed of 1678 was not produced, although it appeared that
proper search had been made for it.
The plaintiff's case being closed,
Mr. WORTLEY then objected that the close in question
had not been identified with the original deed.
The JUDGE overruled the objection. _ _

Mr. WORTLEY then intimated that he could not carry the
case on the part of the plaintiff, and said he would consent
to a verdict for the defendant, with leave to move for a new
trial if the court above should be of opinion that the evidence
objected to had been improperly admitted.
A verdict for the defendant was accordingly entered.
ACTION AGAINST A SHERIFF'S OFFICER.

WYLIE v. BIRCH.—This was an action to recover a judg-
ment debt, recovered by the plaintiff, against Thomas Peake
Pearson, of £276, which the sheriff had been ordered to
levy, under a fieri facias, and pay into court. The defendant
executed the writ, and instead of paying the money into
court, he made a return that he had seized the goods, but
they remained in his hands for want of purchasers.
Mr. MARTIN and Mr. MoNTEirtt appeared for the plain-
tiff; Mr. BAINES and Mr. CROMPTON for the defendant.

Mr. MARTIN said, the plaintiff, Mr. John Wylie, lived at
Newcastle ; and the defendant was Sir Thomas Bernard
Birch, Bart., who was Sheriff of Lancashire last year, but, as
the jury were aware, he had very little to do with the actual
business. The real defendant was Mr. John Ogle, a sheriff's
officer, residing in this town •, and he believed it would turn
out that Mr. Ogle was indemnified by some people who
were behind him, although he was aware the plaintiff was
entitled to the proceeds of the goods he had taken in ex-
ecution ; and, if the defence which lie understood would be
set up were successful, it would be impossible to recover a
debt in Liverpool. The circumstances were these. Pear-
son carried on business in Liverpool, and he was anxious to
obtain crcdit from a Mr. Parrot. The plaintiff had married
the niece of Pearson, and Pearson applied to him to become
security for him with Parrott, for the sum of £250. The

plaintiff hesitated for some time, but ultimately, on the 2d of
November he consented to give a guarantee to Parrott, on
condition that Pearson would give him a warrant of attor-
ney, so as to protect him from liability. The goods, upon
the faith of which the guarantee was given, were supplied in
a short time afterwards. The warrant of attorney was pre-
pared by the plaintiff's attorney, Mr. Jones, who gave it to
Pearson. Pearson went with it to Messrs. Christian and
Jones to have it attested. It was then sent to Mr. Wylie ;
who ascertained immediately afterwards, that so far from the
representations made to him by Pearson, as to his circum-
stances, being correct, there were then proceedings about to be
taken against him by his creditors. He sent the warrant
of attorney to London, entered up judgment, and execution
was delivered to the sheriff on the 25th November. The
warrant was given to Ogle, who levied, and then the parties
had notice that he was receiving that which he was bound to
pay to Parrott. Immediately a scheme was set up to defeat
the execution ; and on the 29th of November Pearson exe-
cuted a deed of assignment of all his property. The
object of that was to get the pi operty vested in assignees,
because by a late act of parliament there were certain rights

given to assignees against an execution creditor upon a War-
rant of attorney. On the sth and 6th December the officer
sold Pearson's goods. On the 9th the fiat was issued and
assignees were appointed i and one of the questions of law to
be raised in this case would be the effect of a sale of goods
after the commission of an act of bankruptcy and before the
flat. Now he contended that the assignees were not entitled
to them against the execution creditor though the sale
might take place subsequent to the fiat. This being
so, Mr. Wylie thought he had nothing more to do than to
receive the money. He wrote several letters to Ogle about
the money, but they were all unavailing; and on the 21st
December he came to Liverpool to obtain the money. He
then saw Ogle, who stated that he could not pay the money
till he had seen Mr. Bardswell, attorney to the assignees.
Ogle went to Mr. Bardswell, and he returned with a sove-
reign, and called upon Wylie to appear before the commis-
sioners of bankrupts. He could not get a single farthing ;
and the present action had been brought to recover the
amount which had been realised by the sale. The learned
counsel proceeded to contend that the officer's return to the
writ was false, that it was his duty to pay the money over
immediately that he received it, and in default thereof the
present action had been brought.
The writ, the return, and the other instruments, were
then put in and read; and Mr. Hodgkins, auctioneer, proved
that the furniture and stock were sold by auction, on the 6th
and 7th of December, for £2OO odd ; and the fixtures on
the 4th of January, for £195.
Mr. BAINES said he had the honour to appear as counsel
for Mr. John Ogle, the officer of the sheriff, who was the
substantial 'defendant upon the record, and who, he should
contend, was perfectly free from blame, and that the plaintiff
had only himself to thank for what had happened and no one
else. The real question in issue was, whether Mr. Wylie
was to be allowed to sweep away all the property of the
bankrupt Pearson, or whether it was to go into the hands of
the assignees for the benefit of the general body of creditors.
Pearson had for some time carried on business as a grocer
and provision dealer in Liverpool. Among other persons
with whom he did businesss Mr. Parrott, a provision dealer
on an extensive scale. It was necessary however there should
be some security given to Mr. Parrott, and the plaintiff accord-
ingly gave his guarantee for the sum of £240 which was to be
paid upon the contingency of the bankrupt not be able
to pay himself. This was ou the 2d of November. Be-
tween the 2d and the 22d of November Pearson found his
affairs extremely involved, and this was a circumstance
which could not but be known to the plaintiff. On the 22d
the warrant of attorney was: given, but it was given
under circumstances concerning which his learned
friend had been grossly misinstructed. The learned coun-
sel proceeded to contend that the circumstances clearly
proved collusion to have existed between the plaintiff
and the bankrupt, and that the warrant of attorney was but
a scheme to prevent the property going to the benefit of the
general creditors. It had not been proved that the plaintiff
had been called upon to pay one farthing of the guarantees,
which he had given to Parrott. He (the learned counsel)
should be able to prove that Pearson had committed distinct
acts of bankruptcy before the warrant of attorney was given.
Having described the circumstances of the alleged acts of
bankruptcy, the learned counsel closed by stating that when
they had heard the evidence he thought the jury would be
satisfied that the warrant of attorney to the plaintiff bad
been given by way of fraudulent preface, and was therefore
void.

Witnesses were then called, whose testimony extended to
considerable length. The Jury, after a few minutes' consi-
deration, returned a verdict for the plaintiff ; damages—
£l9s ss. 4d.
The Court adjourned at ten minutes to seven o'clock.

The Great Western is expected to arrive in the Mersey
about the 24th instant, and will sail from this port for New
York on the 3d of September.
THE LEVIATHAN OF THE MISSOURI.—This extraordinary
skeleton the remainder of by gone times, now exhibiting at
the Lyceum is exciting great attention. No one can look
upon these gigantic bones without find food for deep reflection
and thought. Man prides hlmsef upon his strength, but as
compared to the Missouran he must have been but as a mere
pigmy. It is remarkable circumstance that under the
skeleton of the Missouran was found an Indian Arrow-head,
similar to those now in use exhibiting by Mr, Cutlin. If an
arrow-head was found beneath the remains of the Leviathan
how can it be called Anti-Adamite, and how can zeologists
maintain that these creatures were so ? and how comes it
that the discovery took place through a tradition of the
Indians, that a battle of Theristrocaulodon had ever taken
place on the spot where they were found ?

ALARMING FIRE IN CHESHIRE.—On Monday night,
about twelve o'clock, a fire was discovered to be raging in the
workshop of Mr. Hughes, joiner and builder, situate in
Claughton-road, North Birkenhead. So sudden was the
conflagration, owing to the buildings being of wood, and their
contents (the joiners' work and fittings of three new houses,
now erecting), that they were in a complete blaze before any
discovery was made. The light was so intense as to cause
serious apprehension in Liverpool, and attracted many spec-
tators to George's Pierhead. We hear that Mr. Whitehouse,
the respected agent of the West of England Fire-office, im-
mediately turned out that company's engine, with fourteen
steady firemen, and arrived with them at the pierhead just as
the last steamer was leaving for Woodside, about five minutes
after twelve o'clock. The captain, however, would not come
to the slip to take on board the engine, which is much to be
regretted, as the only engine in Birkenhead was found on this
occasion, as oil many others, to be almost wholly useless,
and not in accordance with the spirit of the times. The
small supply of water within reach of the engine was that
only used for making mortar, and was soon exhausted ; there
was, however, a plentiful supply about fifty yards off, and
easily available to a modern engine. The police, under their
superintendent, Mr. Boughey, were early on he spot, and
rendered such assistance as lay in their power. The captain
of one of the Woodside packets, who lives near the spot, was
very active, and received an injury of the hand in his praise-
worthy endeavour to save some of the property. We regret
to hear that Mr. Hughes's lose is considerable, the property
being entirely destroyed,
and that be is not protected by
insurance.

LIVER THEATRE, ETURCH•STREET.

FLYING RAILWAY!
THIS EVENING,
(Friday,) AND DURING THE

SINCE the Proprietors carried out the Centrifugal Rail-
way on so large a scale, it has been visited by upwards
of FIFTY OF THE NOBILITY.
The Railway consists of two inclined planes, and a circle
of between 40 and 50 feet in circumference, rising 14 feet
perpendicularly from the floor, making the whole line 200
feet in length. The Carriage travels at the rate of
ONE HUNDRED MILES PER HOUR!
Carrying large Iron Weights and Buckets of Water, without
displacing the one or spilling any of the contents of the
other. There is added to the Exhibition an
HYDRAULIC TELEGRAPH,
of curious scientific construction, by which any circumstance
transpiring in Liverpool may be given in London the same
instant of time.

In the Evening, Experiments with the GALVANIC BAT-
TERY ; the OXY-HYDROGEN LIGHT ; also, the OXY-
HYDROGEN BLOWPIPE.

Open from One to Five o'clock in the Afternoon ; and
from Six until Ten in the Evening. There will be Two
Performances in the Evening; the First commencing at
Seven o'clock, the Second at Nine o'clock.
Admission—Boxes, ls. ; Pit, 6d. ; Gallery, 3d.
Gentlemen allowed to make the Tour of the Circle One
Shilling each ; Ladies free.