20 NOVEMBER 1830, Page 8



MARQUIS OF BUTE v. COOPER. — Judgment was affirmed in this case on Wednesday. The late Marquis of Bute had made a proposal to Mr. Cooper, keeper of the Museum at Glasgow, to superintend the education of his son, and, as an inducement, offered to present him to the church- living at Rodney, when it became vacant, but Mr. Cooper, not being Sufficiently master of the Gaelic language to avail himself of that pre- ferment, the matter dropped. Afterwards the Marquis offered an an. runty of One hundred pounds,secured on his landed property in Scodand. This was accepted, and Mc. Cooper attended •thelainily, and was sub- sequently.pretented to one or two livings iaWales.; aridfor some reason .or other the bond was delivered over-to the Marquis severaryears before Mr. Cooper's death, and was destroyed.: . When *Mr. Cooper died, his relatives, being of opinion that the annuity had been granted to him for life, brought an action in the Court of Session against the present Lord Bute for the arrears and interest, alleging that Mr:-Cooper, -when he'de; livered up the bond, was or unsound mind. • It was so'. found by the Jury, and that the bond was destroyed, and that the annuity was for life. The Court decided that the annuity was due with interest, and from this decision the Marquis appealed. Lord Wynford, who delivered judgment, said there was nothing like simony in the case ; but that it was easily.conceivable that when--Mr. Cooper obtained preferments in the English church, he might think himself bound in honour to return the bond. The Jury had decided that the pond existed, and that it was destroyed when Mr. Cooper was of unsound mind. There was strong evidence that it was an annuity for life. The arrears would not have carried interest by the law of England, but bY the law of Scotland they did ; and he wished that in that respect the law of England were assimi- lated to the law of Scotland.


ALEXANDER AND OTHERS V. THE DUNE OF. WELLINGTON AND cernEas.—The Master of the Rolls gave judgment in this cause on Tuesday. The Plaintiffs, Messrs. Alexander, a house of great eminence in India, claimed, to be entitled to the share of the Marquis of Hastings in the prize-Money taken. in -the 'war between the Pindarees and the Mahratta States: The Marquishad executed several deeds of assign- ment, to Sectite his *share to the plaintiffs. For some of the defendants, it was.contended, that nothing passed by those deeds ; the property, from its condition at the period of their execution, not being assignable ; but Sir Thomas Hislop, another of the defendants, contended that the Mar- quis had no property at all in the subject of the deeds. His Honour was of Opinion, that as the statute of George the Third declared all prize. money to belong to the captor in such shares as the Kingshould direct by some general rule, or, in each particular case, by his sign-manual, • there could be no doubt that the subject of capture was assignable in a Court of Equity. If the subject of capture were not a vetted expeeta- tion,it would be assignable, unlets something connected with- it took it out of the-general rule. It was said, however, that prize-money • was in the nature of military pay, and therefore not assigoatile : but prize- money could not be regarded. in that 'light it was an extraordinary bounty. conferred y -the 'Crown-as a reward for past services, and not contin- gent upon future services ',Another objection had- been taken, that the „Marquis of Hastings hadbeen consulted on the distribution of the prize. money by the Governmen.the Court,however, overruled that objection,

• and felt no hesitatiominadeclaring that the share of the 'Marquis of Hastings in the prize-money-was assignable in a Court of Equity.- The

• Court declared that- Sir Thome& Hislop had no claim whatever, and pro- noanced its decree in favonii of -the plaintiffs, on the ground dual-the: ..principle of actual ciptairtratitild prevail;- and that, where it wouldaiot apply, the division of booty ought to be extended to all the,army employed in the operatintis bf the-war. This decision will establish the ; ,right of • Messrs: -Alexander to So Witch of the prize-money as-Will ay ! their demand upon the late Marquis Of Hastings. --------


DE MONTEITH v. SAUNDERS, BROTHERS, AND Co.—The Court re- fused a rule to show pause why the verdict in this case should not be set aside. • The application was made on the part of the defendants, on the ground- of the misdirection of the Judge. They contended that the. plaintiff -was bound to thew* that he had no reasonable grounds to be- lieve that the two defendants had no other partners," more particularly -as-the words "and Co." should have called his attention to that point. Lard Tenterden stated the terms in which' he had left thecase to the -Jury. There was no evidence whatever of knowledge Onthe part of the -plaintiff, unless the words "and Co." could support that supposition; and it was admitted that it was quite common to add the words "and Co." . although there were no partners except those named. Mr. Justice Park stated that it was quite clear, that when two nieri Contractedwith a third party, and he had no reason to believebut that they were the only contractors, and gave credit to then alone, they were liable to the third party,- whether thew had other partners-or not. Mr. Justice Pat- tison---" And the words "` and Co." made no difference. Mr. .Tustice

Taunton concurred: (Nov. 15.) .

Martzrr To v. WILLIAMS AND OTHERS.—This was an application for a new trial. The cause was tried in"December last, and a verdict found for the plaintiff.* It appeared from the evidence on that occasion, that the plaintiff on the evening of one day had a balance of 69/. 19t. Gd. in-the hands of the -defendants, his bankers, and about eleven o'clock .the nextmorning,40/. was paid in to the plaintiff's account, increasing the balance to 109/. 19r. 6d. In the course of that day, two of the plaintiff's checks, were presented,—one for 201.; which was paid; the other, for .871. 17s. 6d.,- was presented about ten minutes before three o'clock, when the clerk at the counter; after referring to a book, told' the bearer that there were not ' sufficient assets, and the check was dishonoured. The bearer communicated with the plaintiff, Who Wrote' to the defendant& It was then fmlnd that the mistake arose from the circumstance of there -being no-entry-in the bookto which the clerk referred on the payment of the 40/. on that day. The defendants wrote to the Plaintiff, explaining the mistake; and when the check was presented on the following day, it was paid. For the defendants it was urged that no proof had been offered of actual damage resulting from the dishonour of the check: but the Judge was of opinion that as the action was for breach of duty, it -was maintainable, notwithstanding no . actual damage had been sus- tained ; and he directed the Jury to find tverdict for norninal damages; if theywere of opinion that there was reasonable dine to have made an entry in their-ledger ofthe'40/. between eleven o'clock; when it Was paid in, and three o'clock in the -afternoon, when the check was presented.For the plaintiff itrtlitt M'ged, that by the usual castor's and .coilis.e of dealing Of bankers, thiPleititiff's plteck. ought to have been honoured at the time it stestPresenteThe refugia to honour it was an injury to the for though it did- not affect him in a pecuniary point of view, his commer- menial credit was damnified, and on that ground the action was brought. loPd Teisterden said, that the Plaintiff was entitled to a v'erdict. There linitlia*Eare= between an ezpreised and implied contract ;—an ex- 'press, contract was proved by sheiving an agreement between parties upon some particular tranSaction ; an implied contract was shown by the gene- ral course of dealing in trade or commerce, and was applicable to general dealings. A banker contracted with -his customers to pay their checks when required, provided be-had money of theirs in his. hands at the time. -That was an implied contract; according to the general eourse of dealing between bankers and their customert; and if it Was broken, the cus-- tomer might maintain an 'action for a breach • of contract; although no damage had resulted to him. His Lordship said he could not help ob- serving, that it was .a discredit to any person in trade -ti have his checks -refused even for a single day ; . and the defendants had shown their want of confidence in the plaintiff by their refusal to pay his check for so small atoivsm. 8

as . s871. The other Judges concurred, and the rule was discharged.


. • .

THE KING V. MALT AND OTHERS.—Mi. Erie (in the absence of the Attorney-General) moved for the judgment of the Court upon the defendants, :who had been convicted of a conspiracy to put into circula- tion a variety of colourable bills of exchange, to defraud the prosecutor, William Elliott. The prosecutor, asilVersmith -in Clerkenwell, in Fe- bruary, 1828, agreed to form a partnership With the defendant, Malt, in the business of a furrier. Mr. Elliott's object was to introduce his soil into the business, it being understood that Malt would afford him the necessary instruction. The business 'was tarried on for a short time, and Mr. 'Elliott-made advances of money from time to. time for partner- ship purposes, Malt having little or no capital. - In November, 1828, Mr. Elliott having become dissatisfied with Malt's conduct, obtained an injunc-. tion to restrain him from drawing, accepting; or negrniathig any bills in _the -partnership name. Shortly afterwards (Malt: having been arrested and surrendered to the Fleet Prison) a scheme was farmed betwein him and some of the other defendants, to draW and accept bills in the part- nership • name, and antedate them (so as to elude the injunction), in order to obtain Money from the prosecutor by ariestinghim upon the- bills, or. by-suing- out a commission of bankruptcy againit. him. The 'evidence- was conclusive as to the guilt of the parties ; and Malt had been -heard -to declare, that he would ruin Mr. Elliott: were he worth .100,0901.. The 'Court sentenced him to be imprisoned in Newgate for tWelve months, and Sharp, another defendant, for the mine period

(Nov:18.) • • • •


. • BARTow' v. HORNE AND OTHERS.—The-CouTt- refused to set aside- the verdict in this case. An application had been made for the purpose, on the ground that one of the witnesses had been discharged from -the service of the defendants for embezzlement,--and they-bad foregone pro- ceedings against him On the day succeeding the trial. of the cause. It appeared that the plaintiff had sent to-the coach-office of the defendants .a parcel, containing bank-notes and money to the amount of fifty pounds, but the parcel did not reach its destination: The action had been brought to recover damages for the lose, and' the -Jury -gave a verdict for the -de- Jandants ; evidence having been- adduced, to •sliow:that the -parcel was t marked "free"—which signified that it eantaingdpattern-rihbuns only, ,stihh•as are generally sent for 'orders into the Country, and a less charge 'was Made for it than for ordinary parcels. The Court was of opinion -that the evidence Of the witness did not vary the circumstances on which ,theverdiet was given. (Nov. 16) .

sirTincs AT Nisx Pants.

MANNING v. CLEMENT.—This was an action to recover damages for a libel, published in Bell's Life in London. Theplaintiff had carried on, for many years, the manufacture of " Sioniachic bitters," and " irn-- proved purl bitters," and had an extensive trade amangst the publicans. On the 13th of December' 1829, a letter' appeared in the above news- paper, stating- that the plaintiff had compromised a prosecution com- menced against him' by the Crown for 'vending the above articles, which, it was stated, were made for the' purpose of adulterating porter. On the following Sunday, the editor published C denial of the statements of that letter. A number of the plaintiff's customers, however, ceased to deal with-him ; and in consequence the present action was brought. It was proved, for the plaintiff, that several publicans had used the article for making Purl; and had constantly used it themselves, without expe- riencing any ill effects from it. They had' nevertheless discontinued dealing withthe plaintiff, as they were unwilling., to hive his cart seen at their 'door after the publication in question. For the defence, it was proved that the plaintiff had offered the ankle to a publican for sale, to adulterate his Porter, stating that it would make a difference of 20 gallons in a butt of 108, gallons: It was also proved that a ceinpromise • had been entered into with the Excise ; and from the analyzation of Mr. Faraday, of the Royal Institution, that the article contained the following ingredients :-109 parts burnt sugar, 15 parts extracts of roasted grain, 2 parts green vitriol, 2 parts alum, and 120 parts Water. Mr. Faraday would not say, however, whether the vitriol had been put in purposely, or was derived from iron vessels in which the mixture had been made ; nor whether the alum had been derived from water, or had been inserted intentionally. Upon the evi- dence of the illegal nature of the defendant's business being offered, an objection Was taken ; but Mr. Justice Park .(having taken the opinion of six of theother Judges) overruled it.. The learned Judge, in sum- ming up, put two questions to the Jury,—whether or not the plaintiff carried on his business lawfully and honestly; , and then, what amount of damages he was entitled to for the libel in question. ? :-The jury, without hesitation, returned a verdict for the defendant, (Nov.18.) :

PREaocATIvE Covar. • •

BRATHWATTE v. KENTISH.—This Was a suit to establish the Validity of 'certain testamentary instruments of a Mr. John Kentish, of St. Alban's, who died in 1829. It was opposed by the next of kin, on the ground that the testator was aperson of weak capacity .when the ins strurnents were executed, and that they were the result of the influence and importunity of his housekeeper and her daughter, Mrs. Brathwaite, in whose favour they were made. The personal property of the-deceased was 20,0001. Sir Jahn Nichol Said it .was impossiblearom the 'evidence, to doubt that the deceased; though. not a, person of strongmind, was Ca: liable of Making a *ill. There could be no- doubt 'of his volition, thatle could resist importunity, and that the disposition, though in faVour of a stranger in blood, was not improbable. The Court was, therefore, bound to pronounce for the will and codicil, and to direct the costs of the legatee (the promoter of the suit) to be paid out of the estate. (Nov. 16)