nd who, in disappointment at their want of success, had taken every line, except the proper line, of conduct to effect the object that they had in view. The Guardian Society, he would venture to state, was an illegal society, one which ought to be visited by law, which ought to be put down, and which had become, in the town of Liverpool, instead of a promoter of trade, one of its greatest impediments and strongest barriers. On this ground-the illegality of the society-he might ask his lordship to pay no attention to a body of men who, with an attorney at their head, were forming themselves into an illegal combination, having, for its object, illegal purposes. With this commencernent, the learned serjeant passed on to criticise and condemn the articles and reports which had appeared in the Journal and Mercury, "the only two papers in Liverpool which had assisted in this unjust and iniquitous persecution." That they were opposed to Mr. Ramshay, ab initio, he showed from articles depreciating him, and casting a slur on the motive of his appointment, which appeared in those papers before he took possession of his office; and he vehemently urged that the reports subsequently inserted in their columns, under such titles as a "Breeze in the County Court," and "County Court Curiosities," were partial, and misrepresentations, garbled, to aid in the establishment of a long foregone conclusion. These newspapers he strove to identify with the Guardian Society, and then contrasted their tone, with regard to his lordship, with that of the memorial, to show how Mr. Ramshay's adversaries would be found, "as it suited their purposes, at one time insolent and bullying, at another grovelling and servile." To an alleged "abuse of patronage," to a nonconsultation of "local influence," the opposition to Mr. Ramshay was to be attributed, and this very want of local connections was, next to his undoubted legal acquirements, a judge's greatest recommendation. That Mr. Ramshay was not deficient as to his knowledge of the law, Mr. Serjt. Wilkins proved from the evidence of his opponents, from the words of Mr. Whateley, who conducted the case against him, and from the testimony of Mr. Grocott, who was brought there to condemn him. That there was no ground for Mr. Evans's supposition that, in Liverpool, nobody but Mr. Stone would support him, was also a statement which experience enabled the learned serjeant to contradict, for, within the last week, he had received numberless communications from Liverpool in favour of Mr. Ramshay. What, then, was the fault found with him by his accusers? They wanted, as one of his correspondents from Liverpool had happily said, "they wanted a judge of their own nomination-one who should always have the fear of his makers before his eyes," and Mr. Ramshay was independent. They collected debts, and, of course, would wish to have a judge who would be likely to assist them towards getting their commission, There was not a judge in any County Court in England who had produced higher testimonials than Mr. Ramshay; there had never been an appeal against any one of his decisions. His summing up, Mr. Grocott had said, was astonishing. Then, what person could Lord Carlisle have more properly selected; and why was he now to be removed? Because his manner was brusque. Again, the opposing evidence told for him. Mr. Evans, and Mr. Grocott, respectable solicitors, attested his uniform courtesy to them; they were what Mr. Ramshay -who rather piqued himself on his plain English-termed "hedgelawyers," who found fault with his want of politeness. men, whose motto was "no cure, no pay," who got no commission if they got no verdict, were surely to be looked upon with some suspicion. In Mr. Lowndes's time they swarmed in his court. Mr. Ramshay's object was to sweep them out of his. Over and over again had he told them he was determined to make them prove their cases by the strictest evidence, for it was easy to assert admissions, and their interest to establish all they could. The learned serjeant next reviewed the accusations brought by the various witnesses against his client, justifying Mr. Ramshay's decisions, asking why principals were not produced instead of agents, and why the corporation of Liverpool had not moved in the matter. Taking the memorial clause by clause, he combatted its statements and denied its deductions, instancing the case of the poet Pope as a reply to the assertion," that his mental powers cannot fail to partake, to some extent, of the infirmities of his body." The argument then gradually reduced itself to this-that, on all sides, it was admitted that Mr. Ramshay was an admirable lawyer; but that, on the other hand, it was contended his legal qualifications were overborne by his defects of disposition and temperament; whilst, on the other, it was replied that some of his strong expressions might be explained away, others justified by the character of the persons to whom they were addressed, and the remainder excused on the score of ill health. Il health, it was admitted, was the cause; its removal, which two medical men had attested, would then be the removal of the effect; and


surely the judge, who imperilled his life rather than desert his duties, and whose crime was a protection of the poor from the extortions of such pests to the society as the collectors, would not be thought unworthy of his office for want of courtesy to quibblers, or disgraced because he had not sought so to dispense justice as to win popularity. The learned Serjeant at length, completely exhausted, concluded by begging an adjournment, which was immediately granted.

June 18.

Wilkins, Serjt., resumed his argument, commencing with a review of that part of the hostile evidence which he had not previously gone over. He was not there to defend any peculiar phraseology of Mr. Ramshay's but at the same time he might say, that to decide upon the comparative propriety of that gentleman's language, persons must remember that he was called upon to assimilate himself as far as possible to the views of those before him, and to adapt his remarks to their powers of comprehension. As regarded the alleged diminution of business, it really redounded to Mr. Ramshay's credit. Mr. Lowndes, the previous judge, had been for several years judge of a Court of Requests, where on his discretion alone depended the admissibility or non-admissibility of evidence. Then came Mr. Ramshay, and it was not his manner that was displeasing, but his conviction that he had no discretion in the matter, and his consequent requirement of strict legal evidence in all cases. This might occasion a diminution of business, but it did not cause a failure of justice. Mr. Grocott, the next witness, admitted Mr. Ramshay to be a first-rate lawyer, and acknowledged the sacrifices at which he had discharged his duties; but still he and the Guardian Society were dissatisfied. They looked for perfection. Why did they not ask the great Disposer of events to put out the sun because they saw some spots in it? This witness's evidence, like all the rest, went to show that it was the object of the judge to get rid of those nuisances-the "hedge-lawyers; " whilst to him (Mr. Grocott), and others of respectability, Mr. Ramshay never exhibited any conduct which would justify a complaint. When a poor suitor came on his own behalf, the judge displayed extraordinary diligence to see justice done him; but when collectors came into court, and not content with being witnesses, undertook also to discharge the duties of lawyers, though not acquainted with the first principles of law, then, perhaps, he was not so courteous as to others. He disapproved of the extortions and oppressions of these men, and repeatedly announced, that where parties employed a solicitor, whoever was right should have his costs allowed him. The witnesses against Mr. Ramshay knew that their own chance was in his expulsion. The Guardian Society, with all the expense to which it must have gone, could collect none but these agents-two of whom were tainted with suspicion, the one convicted of extortion -to testify against him. Their hope was in destroying him, for if he remained their calling was gone. There was another witness, the carter committed. His committal had appeared in the two papers, the organs of the Guardian Society, to which, therefore, his grievance must have been known, and gladly that society would have taken it up if there had been anything in the complaint. Contrasting a memorial against Mr. Lowndes with that against Mr. Ramshay, the learned serjeant next observed that the one negatived the other; that what was vice in Mr. Lowndes was virtue in Mr. Ramshay; what vice in Mr. Ramshay, virtue in Mr. Lowndes; that the very qualities which they asked for in the case of Mr. Lowndes, they disparaged when they got them in Mr. Ramshay, and remarked that even the former of these gentlemen, who was now so much to his advantage compared with the latter, gave them "universal dissatisfaction." The learned sergeant, having gone through the whole of the evidence, concluded by asking whether a man, who, though suffering the most excruciating torture, was only shown to have now and then let slip some rough expressions, was to be be ruined upon such evidence and on such a request as this. He said ruined, for his removal would be rain to a man of honour; and that he was such, and a gentleman, he was there that day to show. He asked his lordship, then, to let Mr. Ramshay hear from his lips that these accusations were fictitious and ill-founded, to let him go again among his friends erect and happy in the consciousness of honour, and in so doing to do a great public good. He implored him, for the law's sake, for the nation's, on all accounts, not to yield to clamour what should be given to justice.

Mr. Sergeant Murphy, examined by Mr. Dykes, said, I have been a member of the Northern Circuit nearly seventeen years. I have known Mr. Ramshay sixteen. I was with him eight years as a practitioner in Liverpool, and had very good opportunities of form ing an opinion of him as a counsel, for he was very much in business while I was there. I also saw him at assizes, especially at Carlisle, and in Westmoreland, where he had a very large business. His

business was so extensive as almost to out-top the leaders. I recollect one occasion when he had all the business, and Mr. Justice Cresswell none. He was sometimes a little tenacious of his own opinions, and perhaps now and then an expression would fall from him which might have been better avoided. I never had an altercation at all with him. I considered him a very fit person to preside at the County Court when he was appointed.

Mr. Joseph Addison.-I have been twenty years on the Northern Circuit. I have known Mr. Ramshay since the year 1834; and I think, for the last ten or fifteen years, I have been on very intimate terms with him. My opinion has always been that he is an exceedingly good lawyer. Indeed, I have often courted discussion with him upon legal questions I had before me, and have alway been benefitted by those discussions. I have a very high opinion of his honour and integrity, his just and gentlemanly conduct.

Mr. James.-I have on four occasions sat as judge of the County Court, instead of Mr. Ramshay, whom I have known ever since he has been at the bar. I have formed the very highest opinion of his legal ability and attainments. We have often been professionally engaged in the same case, and I have always found he comported himself as a gentleman ought to do. In October last I appeared before him in an important case for the corporation. He treated me and everyone else in court with perfect courtesy, notwithstanding some very irritating expressions from persons in the court. He was then in a very infirm state indeed; and though the question was as to the construction of a very difficult act of Parliament, and the opposing counsel raised some fifteen or twenty points, Mr. Ramshay disposed of them all with the greatest ability.

Mr. Walker.-I am judge of the County Court at Sheffield, and have known Mr. Ramshay twenty-seven years-at school, college, and the bar. I think him decidedly a gentleman, a man of honour, and a person of very considerable ability. A very large number of cases come before me, and I find it extremely difficult to maintain order in court. From the very constitution of the Courts of Request, of which before the time of the County Court there were two, there was in thein a certain degree of laxity in the administration of justice. The present business in Sheffield is very large. There are 9,000 plaints entered in a year, and I believe the business has diminished to an extent of very nearly half. There were about 15,000 entered in the Courts of Request. I attribute that partly to the greater strictness of proof which I feel it my duty to require. I have done my utmost to check accountants practising in the Court. I have felt bound to do so. From what I have heard of the case, I have gone about the same lengths as Mr. Ramshay.

testimony to Mr. Rainshay's legal ability and general capacity to fill the office of County Court judge.

Mr. Baines, M.P.--I have had opportunities of forming an opinion of the legal acquirements of Mr. Ramshay. In point of legal ability my opinion is that he is fully competent to discharge the duties of a County Court judge, and that as regards personal character he is an honourable and independent man.

Mr. George Stone, attorney, and high bailiff of the County Court, Liverpool, was examined on a variety of points referring to the evidence of previous witnessses. Mr. Ramshay's general demeanor to parties coming before with anything like a tittle of evidence was forbearing, courteous, and exceedingly attentive. To those who, after continued intimations of what would be required of them, still persevered in their old course, and especially to collectors, whom he had repeatedly cautioned and advised how to get up their cases; to parties who used anything like insolence or flippancy in the court, and to parties who were intoxicated, Mr. Ramshay spoke severely and reprimanded them, but this was always in cases were rebuke was well merited and was not without beneficial results. I am quite satisfied, however, that a different kind of bearing is required in a County Court to what would be wanted elsewhere. I remember two memorials against Mr. Lowndes. I believe there were three.

Mr. William Midgley, the manager of a tailoring establishment in Liverpool, had had about twenty cases before Mr. Ramshay without the slightest cause of complaint as to the manner of the judge towards him. Mr. Ramshay had been to him always extremely courteous and polite. The court would try the temper of most men. I never noticed any cases reported which would at all redound to the credit of the judge.

Mr. Bird, accountant, corroborated the evidence of the previous witness.

Mr. Richard Formby.-I am a law student. I was in Liverpool at the close of last year and went to Mr. Ramshay's court in order to satisfy myself as to his demeanour. I went, I think, three times, and from what I saw and heard on those occasions I formed a very favourable opinion of Mr. Ramshay as a judge. He appeared most upright, and entirely in the possession of his mental faculties. I thought the taxes on his forbearance very considerable. They were principally the noise in the court, the stupidity of the witnesses, the very poor cases, the bad character of the people, and the great difficulty he had in cross-examining these people, and showing the gross falsehoods they told.

Wilkins, Serjt., having put in a certificate of Mr. Ramshay's health, the court was adjourned.


Dr. M Donnel, of Liverpool, attended Mr. Ramshay all June, and two or three days of July last. I found him labouring under a disease called "bloodlessness," a deficiency of blood arising from derangement of the digestive organs. He suffered a good deal of pain, excruciating pain in the lower part of the abdomen. He persisted in attending his court, notwithstanding my recommendations to the contrary, saying that he must carry on, must do his duty. I have been in the court when the conduct of some parties seemed to me most provoking. I constantly told Mr. Ramshay he was risking RAWSON . THE LONDON AND NORTH-WESTERN RAILWAY his life, and that was the principal reason why I ceased attending him. He would not obey my instructions. His mental faculties were strong; indeed, he was expending on mental exertions the nervous energy which ought not to have been so employed.

Mr. Charles Pemberton.-I am a solicitor in extensive practice in Liverpool. I have been at every court since Mr. Ramshay's appointment. I have no private acquaintance with him. I have only spoken to him when giving him briefs, which I gave in consequence of my belief in his legal capacity. I remember the court under Mr. Lowndes, who was not so strict in his admission of evidence as Mr. Rainshay. During the whole of the time I have attended the court, I never saw or heard Mr. Ramshay exhibit any want of courtesy to a suitor who conducted himself with propriety. It was generally occasioned by the irritability of the parties themselves, or by the want of evidence. I have attended there frequently as advocate, and have never had occasion to complain of the conduct of Mr. Rashay. He always treated me with courtesy. When he spoke to parties in a brusque manner, it has, I think, been deserved. I cannot, as a legal man, call to mind one decision not warranted by the evidence. I have endeavoured to refresh my memory in that respect. I should say his legal capabilities are of the highest order. I have heard many of his summings up in complicated cases, and never knew him miss a point. He took great pains in cases where the poor-appeared.

Mr. Charles E. Hughes, attorney, of Liverpool, generally corroborated the statements of the previous witness.

Mr. Charles Crompton, who presides over the Passage Court, Liverpool, and Mr. Cowling, of the Northern Circuit, bore strong


COMPANY. Negligence-Contract.

The plaintiff, a lady of property in Yorkshire, sought to recover 501. for damages sustained through the negligence of the defendants, to a tile-making machine, and for losses sustained through not being able to work the machine. Roberts appeared for plaintiff.

Grant, barrister, for defendants.

Miss Rawson deposed to purchasing the machine of Clayton, the patentee; and to having written to the company, inquiring if it would be safe to forward it per rail, without extra packing it. Had received a letter from the company's manager, stating that it was not absolutely necessary. When the machine arrived in Yorkshire, it was found to be broken. The company then sent it to Leeds to be repaired. Upon its coming from thence, it was still found defective; when the company sent it to London. Upon its return the third time, her bailiff could not work it; and she could not make bricks or tiles with it. The machine cost 341. 9s.; and the balance sued for was for the loss she had sustained.

Roberts put in a number of letters irrelevant to plaintiff's claim; and then called Mr. Umpleby, the plaintiff's bailiff, who deposed to the same statement as his mistress, and added, he could have made at least 600,000 bricks had the machine been in working order.

Mr. Clayton, patentee, said a Mr. Roberts had written to

him, offering 17. for him to go into Yorkshire and examine the machine; this liberal offer he declined. The company had sent the machine to him to be repaired. He did so, and subsequently went down to plaintiff's mansion to examine it. The bailiff and others would not allow him to do so. He firmly believed the machine was in working order; and that it was the ignorance of plaintiff's servants that alone prevented it working well and properly.

Grant observed, that the company were subject to most preposterous claims, and this was one of the many. Who could have advised the plaintiff to proceed against the defendants, he was at a loss to conceive. If the company were liable for the value of the machine, 341. 9s., they surely were not liable for tiles never made.

His HONOUR.-Were it not that the defendants had admitted some negligence, by the extraordinary pains they had bestowed upon the plaintiff's machine, I should have thought it a case which ought not to have been brought here at all. As it is, I don't see any case for damages. The plaintiff appears to have tried to get all she could from the company; and her servants refuse leave to the patentee to examine the machine. I have no hesitation in giving a verdict for defendants, with full costs.


Liabilities of railway company as carriers. Where the clerk at the railway station stated to plaintiff that goods sent to the office on that day would be delivered at Liverpool on the following morning, and they were not so delivered, whereby the plaintiff was seriously damaged in an engagement he had made, relying upon the due receipt of the goods, as promised.

Held, that the company was liable in damages.

This was an action brought by the plaintiff, M. Alexander Vleis, a Frenchman, proprietor and manager of a theatrical exhibition, principally displayed by automaton figures, to recover from the above company the sum of 351. as compensation for damages sustained by their delay in not having, according to engagement, delivered certain goods at Liverpool within a specified time.

Field attended in behalf of the plaintiff.

Smithers for the company.

The plaintiff stated that, in the latter end of last year, he was at the Lyceum Theatre, where the last night of his exhibition was on the 4th of December, and on the following day he entered into an agreement with Mr. Copeland, lessee of the Theatre Royal, Liverpool, to exhibit thereat, for thirteen nights, to commence on the 9th, the following Monday. In consequence of that, the next morning being Friday, he went to Pickford's office, in Wood-street, Cheapside, and asked the clerk he saw, whether, if goods were ready to be taken away from the Lyceum, at noon, they would be delivered at Liverpool, without fail, on the following day, at the Theatre Royal there, at the same time saying who he was and the urgency of his business, as the erecting of the machinery of his exhibition would require at least thirty-six hours. The clerk replied that, excepting through unforeseen and accidental circumstances, the things would be delivered to where directed before six o'clock on Saturday evening, at the same time writing down witness's name and

address at the Liverpool Theatre, and then on a piece of paper, which he gave to a boy who accompanied him to the waggon office, saying that the parcels were quite ready for removal; they were fetched away from the Lyceum Theatre between one and two o'clock the same day. They consisted of twenty-nine packages, and altogether exceeded two tons in weight. On the Saturday morning he, with Mr. Copeland, again went to Wood-street, and seeing the same clerk, was informed that the goods were being forwarded to their destination, and, to expedite their delivery at Liverpool, he had posted a letter giving the requisite directions. He left town the same evening by an express train, and, on going to the Theatre Royal at eight o'clock on Sunday morning, found that the things had not been delivered. He then went with Mr. Shuttleworth, the box-keeper, to the railway station, but all the offices were shut. On Monday morning he heard the goods were at the station, from whence they were sent to the theatre about eleven o'clock, with a charge (including 6s. for cartage thereto) of 6l. 18s. 2d., which amount Mr. Shuttleworth, at his request, paid. Of course

it was quite impossible to get ready by night, and barely even for Tuesday. On afterwards going to the company's office for an explanation of the delay, a clerk said he could give no reason for it, that the company were not bound to convey goods about the town, and although the things had arrived at half past two o'clock on Saturday afternoon, they had not been delivered because there was not a conveyance proper for so doing. At the termination of the thirteen nights, instead of 1307. he was to have received from Mr. Copeland, that gentleman deducted 301. for the loss he had suffered by the theatre not opening on the night of the 9th, as had been announced.

Cross-examined-The clerk in London, at Messrs. Pickford's, distinctly told him that the goods would be delivered as addressed, at the Theatre Royal. Mr. Copeland did not then say that he should be at Liverpool and would send to the railway office for them.

Mr. W. R. Copeland said that the 307. he had deducted from plaintiff was money he had actually paid in having announcements of the postponement of the performance printed, paying for advertisements of the same kind, his own actors and orchestra, and the machinery men, carpenter, &c., for their loss of time on the Saturday, and other expenses.

Smithers endeavoured to show that the clerk had no authority to pledge the company in the manner stated by

complainant, and called

Mr. Faulkner, clerk in Messrs. Pickford's office, who said that on being spoken to by the plaintiff about the delivery of the goods at Liverpool, he told him he could enter into Saturday, and said that he would write to the Camden-town no agreement, but it was probable they would be due on Station for them to be forwarded as speedily as possible, which he did do.

Cross-examined-He generally undertook to deliver goods at Liverpool, if so directed. Mr. Vleis did say that he wanted the things to get to the theatre, but witness said his opinion was they would not get there on Saturday.

Thomas Bibby, clerk to the company at Liverpool, said at that place packages like those belonging to plaintiff were not delivered by Pickford and Co. as the company's agents, but only small parcels.

There being no other witness examined, Field contended that there had been no answer made to his case, and felt confident of a verdict for his client.

His HONOUR having carefully gone through and commented on all the evidence produced, left it to the jury to say whether the company had fairly performed what they undertook to do, or, in their ordinary course of business as carriers, had been guilty of negligence in not delivering the goods within a reasonable time, and if so, to what amount of damages the plaintiff was entitled.

Verdict for plaintiff—15l. and costs.

May 16, 1851.

(Before A. Aмos and R. LOGSDON, Esqrs.)

Notice of action-Practice.

Notice of action, when necessary before proceeding under local acts in the County Courts.

In this case, the plaintiff had been nonsuited on a former occasion upon an objection being made that the action (trespass in taking the plaintiff's goods for highway and improvement rates, due from a previous occupier of certain premises at Chelsea) had been brought without a month's previous notice, pursuant to the act 8 & 9 Vict. c. 143, having been given. The plaintiff then conducted his own case.

Colombine now applied on the behalf of the plaintiff to the learned judge for a new trial, on the ground that the rates in question were collected under the Chelsea Local Act, and were vested in commissioners appointed according to its provisions, by whose collector, the defendant, the trespass had been committed. The application involved a question of great importance to the parochial authorities on the one hand, and the parishioners on the other, as to their respective rights and liabilities. The act in question contained no clause requiring any such notice, and it was contended, the


Metropolitan Police Act, 10 Geo. 4, c. 44, under which the objection had been taken, did not apply to cases like the present.

On defendant's side, it was contended that the application for a new trial, after nonsuit, could not be entertained; that the plaintiff should, at least, have taken out a fresh plaint. Colombine urged, in reply to this objection, that the court had clearly the power, if it thought fit, to order a new trial, if the justice of the case required it. His Honour acceded to this view, and heard the application on the merits. Defendant's attorney then contended that, as distress for rates could only be enforced through the warrant of a magistrate, a notice was necessary before an action could be sustained.

Colombine, in reply, pointed out the hardship of a party on whom a trespass had been committed being turned round on a point which, even with legal assistance, might have escaped most practitioners, and which the plaintiff could not have discovered, there being nothing in the one act to lead to a reference in the other.

His HONOUR held, that notice of action was necessary, by reason that the distress could not be enforced without a magistrate's authority, under the 189th clause of the local act referred to: ("and be it enacted, that if any person rated under the authority of this act, shall not pay any of the said rates due from him for the space of fourteen days after demand thereof in writing by the commissioners or their collector, in shall be lawful for the commissioners to recover the same by action of debt in any of Her Majesty's Superior Courts, or in any court whatever; or any magistrate shall, on the application of the commissioners or their collector, summon any such person to appear before him at a time to be mentioned in the summons, to show cause why the rate due from him should not be paid; and in case no sufficient cause for the nonpayment of such rate shall be shown accordingly, the same shall be levied by distress, and such magistrate shall issue his warrant accordingly.") Consequently, the collector was acting subordinate to, and under the protection of, the magistrate, and entitled to notice.

Application for a new trial refused.

[The construction of the Brompton County Court reflects a disgrace upon the country. The numerous witnesses are huddled together in an apology of a waiting-room, like sheep in a pen. It is far from rare to see highly respectable females sitting or standing next to a dirty fellow, reeking with the fumes of tobacco and gin. The court itself is but a passage, and not the slightest evidence is exhibited of its being a court of justice. Its site is on the verge of the district, and the populous neighbourhoods of Fulham, Kensington, and Hammersmith have to trudge miles for justice. To these evils is added the not holding the court oftener than monthly. Tradesmen murmur loud and deep at this lapse of time, arguing that swindlers can and do laugh at them in consequence of its not being held weekly, or, at least, bi-weekly. His Honour, upon an average, sits but eight days a month for the whole of his circuit, whilst Mr. Bayley, the judge of the Westminster Court, sits twice that time. The chief clerk, who is also clerk of the Marylebone and Brentford Courts, and enjoys a lucrative practice besides, as solicitor, has evidently too much upon his hands to do anything like justice to the public, or to his own faculties.—REPORTER.]

Wirksworth, June 11, 1851.
(Before J. T. CANTRELL, Esq.)
Practice-Form of action.

An action for damages and dilapidations to a farmhouse occupied by the defendants is wrongly brought in “tort.”

The plaintiff sought to recover 231., and the action, as set forth in the summons, was on "tort," for defendant's having committed waste, damage and dilapidations to a farmhouse and land, late in the occupation of defendant's testator. Hodgkinson objected to the form of action, and contended it should have been an action on contract or assumpsit, and not of tort, alleging that defendants, being sued as executors, were not liable to plaintiff for waste committed years before

the testator's death, and that, if the action had been on "contract," defendants might have pleaded a set-off, or paid money into court, which, under the present form, they were precluded from doing.

His HONOUR said that the 3 & 4 Will. 4, precluded plaintiff from suing for damage or waste committed more than six months previous to a testator's death.

Ingle, for the plaintiff, contended that the particulars attached to the summons did not state the action to be on "tort," and the particulars must be considered the cause of action; but, on being asked by His Honour for the authorities from Woodfall's Landlord and Tenant, or any decisions of the Superior Courts to support his form of action in tort, and no case being cited as a direct authority,

His HONOUR decided that the objection made was fatal, as the defendants, in the present form of action, might be damnified by inability to plead their set-off, and the action, though not founded on an express contract, yet, on an implied contract, should have been brought on contract, and

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Gunton, for plaintiff, submitted that the above charges were illegal, and not authorized to be made under the stat. 57 Geo. 3, c. 93, which limits the costs of distresses not exceeding 201., and that defendant was not entitled to more than nine days' possession, the possession having been withdrawn on the third day, again taken on the 24th, and the goods sold on the 28th of October, and called the man who produced a paper, signed by plaintiff, agreeing that, if dewas placed in possession, who proved this; but defendant fendant would withdraw, he should hold possession of the goods from thence up to the time of sale. Defendant accordingly withdrew, but his men occasionally went into the house to see that the goods were secure.

His HONOUR, under these circumstances, allowed the whole twenty-two days as charged.

With respect to the charges for printing and advertising 21. 7s., Gunton contended that 10s. was all defendant could legally charge, as the sum, 10s., allowed in the schedule to the statute for advertising, must be taken to include all expenses for advertising and printing whatsoever, which the broker may incur in publishing and making known the sale.

His HONOUR said there was no doubt on that point, and allowed 10s. only; and, as to the charges-clerk 5s., and porter 3s. 6d.-they were clearly not authorized by the act, and he, therefore, disallowed both those items.

Defendant said he did not sell the goods under the distress, but as an auctioneer.

His Honour, however, held the contrary, and told the defendant that he had made charges unauthorized by law; and, after allowing defendant the debt due from plaintiff to him, a sum paid for taxes, and the additional thirteen days' possession, as above stated, gave judgment for the plaintiff for the balance, 6s. 11d.

Winchcombe, January 15, 1851.

Jurisdiction-Debt above 501., reduced by set-off-Credit in particulars-Payments on account."

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Gunton, for defendant, objected to the jurisdiction of the court. He said it appeared by the particulars that the plaintiff's demand exceeded 50l., reduced by set-off and payments, &c., to the amount now sued for as a "balance of account." He cited the case of Woodhams v. Newman (C. C. Chron, 147, C.P.) which decided that the reduction of a claim by set-off, was not within the 58th section of the act; also Beswick v. Capper (Ibid.), confirming the same, and deciding that a claim could not be reduced by set-off payments as above, to give jurisdiction. He submitted that defendant was not bound by the set-off plaintiff had thought proper to give him credit for, because he did not assent to it; and that, as plaintiff could not, according to the above cases, which had been followed in the County Courts, reduce his claim as he had sought to do, in order to give this court jurisdiction, he must therefore be nonsuited, His Honour having no power to try the action.

Chesshyre, for plaintiff, said he was afraid the objection was good, but should hope that defendant would waive it, and have the case heard on its merits.

Gunton insisted on the objection.

His HONOUR said the objection seemed good, for, on the face of the plaint it appeared he had no jurisdiction. But there were payments on account; he would see what those payments amounted to, perhaps sufficient to reduce the demand so as to give him jurisdiction to try the action.

The payments on account were then calculated, and amounted to 687. 3s., thus reducing the claim to 497. Os. 94d. His HONOUR held he had jurisdiction, and proceeded to hear the case. Judgment for plaintiff.


May 17, 1851.


Medical fees paid by assurance offices.

This was an action brought by a medical gentleman to recover a fee of one guinea as compensation for professional opinion and services, consisting of answers to certain inquiries, as to the state of health of a proposed assurer.

The plaintiff put in evidence a letter which he had received from the secretary to the society, to the following effect:Proposer's Medical Referee." "To Mr. Hooper, Queen's-road, Dalston.


Sir, Mr. Jacob Davies, who has been proposed to this office for an assurance on his life, has given a reference to you for private and confidential answers to the following queries." Then follow certain printed questions; and a note is appended to the effect that the directors would be obliged by the plaintiff answering each of the questions separately.

Answers were returned to the society; and for which the plaintiff, some time afterwards, claimed a fee of one guinea; but which the society refused to pay, on the ground that it

was not customary to allow any remuneration for such information.

Devonshire, solicitor to the society, submitted that as this was a case which was considered to be of a somewhat speculative character on the part of the plaintiff, he ought to adduce strictly legal evidence in support of it; and, as a condition precedent, he must prove, in the usual way, that he was qualified to practise as a surgeon or apothecary; this being required by the statute.

The plaintiff said he was a member of the College of Surgeons, and a licentiate of Apothecaries' Hall; but had not thought the production of his diploma would be required to establish that fact.

Devonshire submitted that, in the absence of such proof, there should be a nonsuit.

His HONOUR.-The question is, in what capacity he acted? The real objection here is, that he acted as an An ordinary apothecary; and I am of opinion he did. medical attendant does not mean a pure surgeon, nor would the plaintiff be entitled to recover as a surgeon. His Honour, having referred to the 55 Geo. 3, c. 194, s. 31, and 6 Geo. 4, said, he though the objection fatal, and that he was bound to nonsuit the plaintiff' if it was insisted upon, although he could not say that he was without doubt in the matter. The only doubt with him was, that the plaintiff did not seek to recover a fee for medical skill given. The object of the statute was to secure to the public skill and science, and to disable those who had not passed the ordeal of an examination from recovering any claims for medicine and advice. This was not a case where the party had been

administered to.

Devonshire.-The claim is made for professional skill and services, and I apprehend that it is necessary for the plaintiff to prove that the services rendered were incident to his profession. We have no evidence of skill. But even if the plaintiff's case had been perfect in these particulars, could he charge a third party for such opinion and services?

His HONOUR.-If entitled at all, it would be upon the ground of quantum meruit. This is a claim by a medical man for a confidential communication, and does not, in my opinion, come within the meaning of the statute, the object of which was to enforce a demand for skill bestowed. All the cases show that the claim turns upon the administration of medicines compounded with skill; but still the party must have passed an examination, or have been in practice previous to August, 1815. I am inclined to think that the plaintiff's case is not within the statute, but have so much doubt, that I shall not nonsuit him.

Devonshire having requested His Honour to make a note of the objection, urged as a ground of nonsuit, proceeded to say that the society for which he had the honour to appear, resisted the claim entirely on principle; and although he had considered it his duty as an advocate to raise an objec tion as to the insufficiency of evidence on the part of the plaintiff, he had not the remotest desire to impede the due administration of justice, and was anxious that the case should be decided upon its merits; for, small as the claim was the action involved a question of considerable importance, not only to this society, but to a vast number of institutions similarly constituted. He would further submit, that it was no part of an apothecary's duty or calling to give information of the state of health of a patient. But even if it were the province of a medical man to give such information, the plaintiff had not only failed to satisfy the court of his professional capacity, but that the services rendered were incident to his profession, which, according to the tenor of the summons, he was bound to do. Had there been no objection, however, on this ground, could he charge the society for such opinion and services, there being no retainer, nor any contract, either expressed or implied? The legal contract, if any, was with the assured, without whose previous consent the plaintiff could not, with propriety, have answered the questions at all. The plaintiff should have declined to answer the questions, or have made a special contract for remuneration. There might be some few offices who held out inducements to medical men, but this society, in common with the majority of offices, did not; nor was it bound by the arrangements of others who do. In this case there was nothing which had the slightest approach to a contract on the part of the society. A contract must either be express or implied. If implied, then

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