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1862.

SMITH v. DOWELL.

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Sitting. .DECLARATION, that the plaintiff was employed bv the

Hilary Term. ... , . , . .

Where work is defendant as a shipwright, to do certain work for him in being carried the erection of a bulkhead, or partition, for the purpose of

on, part of _ .

which is un- separating a certain space in a [vessel] (a) bunker, and so certain pre- forming therein, by means of the bulkhead, two bunkers. camions which And t|,e defendant, while the plaintiff was in one of the

the employer'

promises to bunkers, and was so employed in the bulkhead, and before

provide, and , , , . - , . , ,

he goes away, the same was completed or shored up (as the defendant dlrectio^to"*' knew>» negligently filled the other of the bunkers with get on with the coal, and so negligently heaped up a quantity of coal his absence against the bulkhead, which was thereby rendered dangerwork Is^arricd 0U8> ar,d liable to fall on persons working in the first-menon before the tioned bunker: which said premises the defendant then

precautions 'r

have been well knew, but of which the plaintiff was ignorant, and

taken, and an . , , ... , , . .

injury results was without the means of knowing, and by reason thereof

e^oT he sustained injury, &c.

another part of Pleas: Not guilty; and the usual traverses.

the work, while b J

knowing of the parry, Sent., for the plaintiff.

danger; the

latter cannot Huddleston for the defendant.

recover against

the employer. The plaintiff was a shipwright, and had been employed by the defendant, a coal merchant, in making the bulkhead between two " bunkers," which were to be filled with coal out of a collier. While so employed, the defendant came to see how the men were getting on, and they said they wanted two " struts" to support the bulkhead. He said he would send iron ones, and desired them to get on with the work. Before the struts were put up, the defendant not being present, the plaintiff being in one bunker at work and the men pouring in coal into the other, the weight of the coal thus poured in all at once broke down the bulkhead, and the plaintiff was injured.

When the plaintiff and his witnesses had been examined,

(«) Omitted by amendment at the trial, and the next word substituted.

Martin, B., said there was no case; on which, 1862.

Parry, Serjt., called the defendant, who said he had Smith

DOWELL.

given general orders to get on with the work, and to fill
the bunker when it was safe; but he was not present at
the time.
Thereupon,

Martin, B., held there was no evidence of any personal negligence on the part of the defendant, or of any personal direction by him to do the act which caused the injury, and that, therefore, the plaintiff could not recover against his employer for the result of negligence in his fellow servants.

Nonsuit («).

(u) In Easter Term Parry, tiff knew the coal was being poured Serjt., moved the Court, but took in, and it not appearing that the nothing; it appearing that the plain- defendant did know of or direct it.

GRAHAM AND ANOTHER V. WEBB. London Sittings.

Trinity Term.

ACTION by assignees of one Brook, a bankrupt, for the TM"e ? tra?er

^^ . nad assigned

conversion of goods of the bankrupt before the bankruptcy, his stock as se

, - i , , , curity for an

and tor money had and received. advance to be

Fleas: Not possessed, not guilty, and never indebted, J^em* '^jth Hawkins and Pearce for the plaintiff. SuUriw."^

Lush, Denman and G. Harrison for the defendant. ment ofany***

In December, 1856, the bankrupt entered into an agree- the assjgnee,

ment for a partnership with the defendant, a private gen- before bank

11 /id ruptcy, entered

tleman. on default;

In March, 1857, the defendant declined it Between quenceofthe that time and May he made no advances. roed'hy"0*

On the 15th May, 1857, the bankrupt executed to the another ere

. . . . . . ditor, and

defendant a deed, reciting that it was in consideration of afterwards and 1,000/. lent and advanced, the receipt of which the grantee, mp^y sold "— the defendant, acknowledged, and which was to be paid ^'ld<lliat

'o' i there was no

by instalments of 100/., provided that, if an instalment case to entitle

the assignees S 2 to recover.

1862. should remain unpaid fourteen days, then the whole should

**~"^"^ become due. The deed then assigned to the defendant all Graham °

and Another the trader's stock now or at any time during the conWebb. tinuance of the security to be acquired by the trader, and all debts then or at any time to become due to him in the course of his business. Proviso, that if default should be made in the payment of the 1,000/., or any instalment thereof, the defendant might enter into possession or receipt, and sell, &c.; but that, until notice from him in writing, that he intended to realize the security, the assignor might sell and deal with the stock. Proviso, that in case of sale the proceeds should be in trust to pay defendant his debt, and the residue in trust for the assignor.

By another deed of the same date the trader's freehold premises were assigned as security for 700/. By a third deed, of same date, the stock was further charged with the 1,000/.

Before then, the bankrupt (who was called for the plaintiff) had received advances from the defendant, which were applied for business purposes.

Afterwards, further advances were made to the amount of 1,125/.

On 25th November, 1859, a creditor sued the trader, and he went to the defendant about it. The defendant said he would take the property and allow the trader 21. a week to carry on the business, and so protect himself, the trader, and his creditors.

On the 28th November, the trader went away.

On the 29th November, 1859, the defendant took possession, the stock, &c, being then worth about 1,000/.; fixtures and furniture, 350/.

The trader took no further part in the business beyond collecting some debts for the defendant.

On the 17th January, 1861, the defendant sold the stock, &c, and realized less than his claim.

On the 2nd February, 1861, there was a petition of bankruptcy against the trader by Messrs. B., to whom he owed nearly 600/., the earliest item of which had accrued in 1859, long after the deed.

On the 6th February, 1861, there was an adjudication of bankruptcy.

On the 7th February, the assignees were appointed.

On the 11th June, the action was brought.

At the time of the bankruptcy the trader owed about 1,000/., including the defendant's claim.

Martin, B., thought there was no case. The Bill of Sales Act had no application. The defendant merely took possession of what was his own, and had a right to.

The plaintiff then called the defendant, who stated, that before the deed he had advanced 1,125/. He admitted that since the bankruptcy he had received debts to the amount of 81/.

Martin, B., thought there was no case, and said he should direct a verdict for the defendant, subject to leave to move to enter a verdict for the plaintiff for 81/.

Accordingly there was a

Nonsuit (a).

(«) Subject to the leave reseived.

1862.

Graham

and Another

o.

Webb.

JONES v. GREEN. sm„g, after

T Trinity Term.

XNTERPLEADER: the issue being between claimant, Where A. and as plaintiff, and execution creditor as defendant. together openly

as man and wife; but B. had been allowed by A. to deal with furniture as her own; and she had assigned them for valuable consideration, and a creditor of his bad afterwards taken them in execution :—Held, in an interpleader issue, that it was for the jury, first, whether the goods were his or hers (which would partly depend on whether they were married), and next, whether, if they were hii, he had allowed her to deal with them as hers, in which case be, and any creditor of his, would be estopped from setting up that they were his.

Collier for the plaintiff.

Brett and Needham for the defendant.

The plaintiff claimed under a bill of sale, dated in Oc

[graphic]

lober last, given by one Madame II., and there was some evidence on the part of the plaintiff that she was in possession at the time, though it came out that one G. was tenant of the house where the goods were at the time, and the fact was that she and he lived together there.

Madame H. was not called for the plaintiff.

It was admitted that her bill of sale was for good consideration.

The evidence for the defendant was that G. got him to discount a bill of exchange (on which the judgment had been recovered) which came due on the 28th October (after the bill of sale), and offered him the goods in question as security for so doing, representing himself as the owner of them. The bill not having been paid, judgment had been recovered on it, and this was the judgment under which the now defendant had put in the execution on the goods. And the evidence for the defendant was that G. and Madame H. lived together as husband and wife, and that she represented him as her husband, and was introduced to the plaintiff as his wife.

Collier said his client, the claimant, (whose security was before the judgment, and even before the debt,) claimed through the woman; and that G. was estopped from denying that the goods were hers.

Brett urged that, on the contrary, he was estopped from, denying that they were his.

Bramwell, B.—It must go to the jury. There will be two questions for the jury. First, whether the actual property was in him, or in her—which will depend on who was apparently in possession, and whether they were man and wife. Next, " assuming that the property was in him," still, if he so conducted himself as to allow her the apparent property, and the actual disposition of it, he, or any creditor of his, cannot be allowed to make away with it.

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