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1862.

HAMBLIN v. SHELTON. ~*~^

Trinity Term.

ACTION on a guarantee given by the defendant for On a plea of

• the defendant's

goods supplied to another person. coverture, her

Plea: that at the time of the contract the defendant was TM^r^being and still is the wife of one Shelton. Issue. proved, evi

dence admitted

Murray for the plaintiff. "hVphmtiffof

cohabitation of

Bridge for the defendant. the alleged

"husband be

The guarantee was given by the defendant, in the name „age with anoof Shelton, for goods supplied to her father, an innkeeper. ,hert"jmaiJ; At that time she was neither living with him nor with her his wife, and alleged husband; but, as the plaintiff alleged, described been living, herself as a widow. In point of fact, she had been a widow JeJ,"atfg mar_ (of one Oram) when she married Shelton. After the supply riage.with him. of the goods, her name was set up, as Elizabeth Oram, over her father's door. On the plaintiff inquiring as to her name, she stated that she had been, indeed, married to Shelton, but had afterwards heard that he was already married at the time he married her, and so she hesitated to assume his name.

For the defendant, an office copy—from Somerset House registry—of a certificate of the marriage of one " Elizabeth Oram, widow," with one " Shelton, bachelor," was put in, dated in 1856, before the time of the contract.

Keating, J. (to the counsel for the defendant).—Do you not call the defendant, or any witness ? (a) No doubt the copy of the certificate is (under 14 & 15 Vict. c. 99) good evidence per se of a marriage (b); but do you go no further ?(c)

(a) To prove the identity of the name stated; but as to identity of

parties, and also to prove that Slid- parties, where it is disputed, there

ton was alive at the time of the must be some evidence,

contract. (c) Vide supra (a); el ride R. v.

(6) Between some parties of the Wilson, ante, p. 122.

[graphic]

1862. The defendant was called and proved that she was the

person mentioned in the certificate, and that Shelton was alive at the time of the contract, but she had not seen him for above two years.

Cross-examined, she admitted that she had heard that he had been married, to a woman still living, at the time of her own marriage to him, and had heard that a woman, since her own marriage, claimed to be and called herself his wife, but she denied that she had any knowledge of a prior marriage, nor any reason, except from hearsay of the woman's statement, that any such marriage had taken place, and she also denied that she knew of any one except the woman herself calling her Shelton's wife.

Evidence on the part of the plaintiff was offered, that before the defendant's marriage with Shelton he had lived with the woman referred to as with his wife.

Bridge objected to the evidence (a), but

Keating, J., admitted the evidence (J), and left it to the jury whether they were satisfied that Shelton had been married to the woman referred to, as, if so, then no doubt his marriage with the defendant was invalid, and her plea was disproved. If, however, they were not satisfied of such previous marriage, then they ought to find for the defendant.

Verdict for the defendant.

(a) Such evidence is admissible merit against her for bigamy. Vide

against the reputed husband in an R. v. Wilton, ante, p. 122. It is

action against him as such husband perhaps doubtful whether it is ad

(vide Ryan v. Sams, 12 Q. B. missible against the second wife, or

Rep. 460; Pawle v. Coding, Vol. against any third party, a stranger.

II., p. 585; fed vide Gomme v. (6) But had the verdict been the

Franklin, Vol. I., p. 465); and other way would have reserved the

it is also admissible in furour of point as to whether the evidence,

the second wife, as on an indict- even if admissible, was sufficient.

Coram Erie, C. J. v»»vO

BEHRENS And Othbrs v. ALLEN.

L Trinity Term.

IBEL. The action was by the plaintiffs, as traders, Even if a re

against the proprietor of the Manchester Guardian, for SroceedinmTn' two articles therein, imputing to them dishonest dealings, bankruptcy,

'° ° imputing to

The articles purported to be comments on reports of cer- third parties tain proceedings in bankruptcy, at which it transpired that goodsafrom°tlie the plaintiffs had for some time prior to and just before bankrupt

■ r J traders under

the bankruptcy purchased from the bankrupts, while they the market were insolvent, large quantities of goods under the market while he was price; and the first article, the subject of the first count, 1,TM°;w^!9 imputed to the plaintiffs (in effect) that they must have comments on

'r _ J such report,

known that the vendors were insolvent, and were dispos- imputing that

ing of the goods in fraud of their creditors, likening him to cr,tses were

the Jew Fagan, &c.: innuendo, that the plaintiff had been ?ade!ji87_

guilty of dishonest dealings. Held, notpri

■ „...-., vileged, and on

1 he second count was on an article on the 24th October, a plea that the

in answer to a letter from the plaintiffs, complaining of ,'u(*,TMc*'t"ue

the former one. In this article the defendant, in effect, **<<*. that the

defendant must

reiterated the original charges. They had, however, pub- prove the dislished the plaintiffs' letter, and offered to publish any on"y' other from them on the subject, but professed their belief in the truth of these charges, and challenged legal enquiry.

Pleas: 1. Not guilty.

2. That the alleged libels were true in substance and fact (<i). Issue.

Shee, Serjt., E. James and Pope for the plaintiffs.

Bovill, Hawkins and J. A. Russell for the defendant.

The evidence for the defence was, that the bankrupts, calico printers, had for some months, between December, 1861, and March, 1862, sold to the plaintiffs 20,000 pieces of grey cloth (materials used in the bankrupt's business as

(a) Held good on demurrer, the charges being specific.

1862.

Brhrf.ns

and Others

n,

Allen.

calico printers, and therefore not usually sold at all), worth about 12,000/., at prices greatly under the market price of the day, and at a loss of about 1,300/. The sales were on a promise by the plaintiffs not to re-sell them in the Manchester market, and were not in the usual way in the markets, but by private arrangements, and the last transaction being a few days before the bankruptcy; and all this appeared in the report, which it was contended was privileged. But there was no express evidence that the plaintiff knew of the circumstances of the bankrupts at the time or supposed them to be insolvent, nor did the evidence, as in the report of the ex parte proceedings on the examination of the bankrupts, impute that they had known it; and, on the contrary, people generally supposed them to be solvent. And the plaintiffs themselves had been examined.

Erle, C. J, held, that even if the report of the proceedings in bankruptcy were privileged, (which was doubtful,) the comments were not so, as they went far beyond it, and he left the case to the jury on the plea of justification; whether it was proved that the plaintiffs had bought the goods knowingly under such circumstances as that they were guilty of dishonest dealings, i. e., knowing that the sellers were insolvent or likely to be so (a).

Verdict for the plaintiff, damages 1,000/.

(«) Unless they were so, the mere selling under the market price would be no fraud in them, and the buying would be no fraud in the

plaintiffs; and the plea put defendant to prove the sting of the charge; Robertsv. Brown, 10Bing. 519.

PEARCE v. TUCKER. .cLCTION for fitting up a kitchen range in an improper

\Trinity Term.

A workman

being bound to

do his work in

a workmanlike

manner, it is no excuse for his doing it so as to be useless, that it was not possible to do it

otherwise, unless he told his employer so.

and unworkmanlike manner.

[graphic]

Plea: inter alia, that the range was not put up in an 1862. improper manner.

Murphy for the plaintiff.

JtfilU and Hance for the defendant.

The case for the plaintiff was, that he had employed the defendant, as a workman in his trade, to put up a new kitchen range with an old boiler behind, and that hot water could never be got from the boiler, as there were, in fact, no flues to carry the heat from the fire to and about the boiler.

The defendant called witnesses to prove that flues were made as large as the space allowed of, but that the space was not large enough to make them effective, and so he could not make a good job of it nor of the old boiler, which was badly constructed.

It was answered, that if the plaintiff had known that he would not have had the work done at all. And it did not appear that the defendant had told him.

Erle, C.J. (to the jury).—Was it not the duty of the defendant to tell the plaintiff that he could not do the work in a workmanlike manner, and that in fact it would be throwing away money to have it done at all, as it must have been obvious to any competent workman that it could not be properly done. If so, it is no excuse to the defendant that he could not do the work properly; primd facie, it must be taken that a workman undertakes to do his work in a workmanlike manner (a). If the plaintiff had been told that it was impossible to do it, he might not

(a) Per Parke, B.—If a work- defendant might show under the

man contract to supply labour, it general issue that the machine was

must be taken to mean that the manufactured by the plaintiff for

labour shall be of the quality which the defendant, and that it did not

would be bestowed by a workman work and was useless; Grounsell v.

of ordinary skill in his trade; Isimb, 1 M. & W. 352. As to nc

Cousent v. Paddon, 2 C, M. & R. lion for doing work in an improper

547. So in an action for a machine way, vide Mondel v. Steele, 8 M. &

sold and delivered: held, that the W. 858.

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