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1862.

Collier

v.

Brown

the Younger.

near her child, where she was to receive \2l. a year as wages; but as only two payments were made, and on being applied to the Messrs. Bullen and Davison gave no answer, she left her situation, and took her child to Witney, and applied to Mr. Dale for lodgings, but he declined to take her in. She then went to Mr. Bliss, her former master, who became responsible to Mr. Cripps, of the Cross Keys, for her board and lodging, where she had remained ever since. Having become quite destitute of clothing, she applied, in July, 1860, to the plaintiff, who supplied her with the articles for which he now sued the defendant.

In September, 1860, and on several subsequent occasions, Cripps had sued the defendant in the County Court for her board and lodging, and recovered at the rate of 1/. a week.

The bill contained the usual items for the materials of a woman's clothes and also for the baby, the most considerable items, and those which the defendant's counsel most disputed, being "25 yards of Gro' de Nap, 4s. 9d.= 5/. 18s. 9d.;" "black silk mantle, 3/. 10s.;" "a. parasol, 14s. 6rf.;" and the " child's trimmed hat, 13s. 6d." These, however, it was not said were unsuited to the position of the defendant, the son of a respectable farmer.

At the close of the plaintiff's case,

Huddleston submitted there was no evidence to go to the jury to show that the wife had authority to pledge her husband's credit.

Channell, B., decided otherwise, but gave the defendant leave to move, if the Court should be of opinion that there was no evidence to go to the jury.

No witnesses were called by the defendant, and the defence relied upon was, that the goods supplied, particularly the silk dress, mantle, parasol, and child's hat, were not necessaries, having regard to the facts that the wife had admitted by her agreement that 15s. a week was a sufficient allowance, and that 1/. a week had been paid 1862.

for her board and lodging.

s ° Collier

Channell, B., in summing up the evidence to the jury, B"" told them it was for the plaintiff, under the circumstances, the Younger, to make out that the defendant's wife had authority to pledge his credit. His Lordship particularly called the attention of the jury to the fact that the 15s. a week, which the father had undertaken to pay monthly in advance, was only paid on two occasions, viz. May and June, so that in the month of July, when the plaintiff began to supply the defendant's wife with goods, she was not in the receipt of any allowance whatever. The question, then, for the jury would be, first, whether the plaintiff supplied the defendant's wife with the goods on the defendant's credit; and, secondly, whether, under the circumstances, the goods in question were necessaries suitable for the wife of the defendant to have, considering his position in life. His Lordship advised the jury to look the bill over, and to find their verdict accordingly.

The jury found a verdict for the plaintiff' for the full amount claimed.

The learned Judge, at the request of the defendant's counsel, reserved leave to move to enter a nonsuit, if the Court should be of opinion that there was no evidence to go to the jury, and the written arrangement entered into put an end to the wife's authority to pledge her husband's credit (a).

(«) In Easter Term Huddleston having been paid, and the money

moved the Court of Common Pleas, recovered having been for board

but the Court refused a rule, the only, money under the agreement not

1802.

^v-^ Gloucester, coram Crompton, J.

°*foJr<t. POOL v. WHITCOMBE.

Spring Assizes.

Although the J_HIS was an action brought by a domestic servant

jury may be ° *

told the law as against her late master, to recover damages for assaulting

to what amount , . .

of damages ner> causing her boxes to be searched, and for turning her Twa^Kn v0"" out °^ tne nouse> at,d causing her to be placed in a cart Aforruyo\.ll., and removed some distance.

p. 26), yet

they are bound The defendant pleaded the general issue, and, as to the influence them assault and removing her from the house, he pleaded a to give more justification, alleging that she was making a noise in the

damages than J o o o

they properly house, and he removed her, doing it with no unneces

ought to do; . . . . . . _ _ .

and even in a sary violence. As to the carting, the defendant alleged it

iUs clearly not was done w'tn tne plaintiff's leave and licence.

dicthe da-1"1 J> J- Powell and J. O. Griffits for the plaintiff.

substantial da- Huddltston, Q.C, and //. James for the defendant. mages, they jt appeare(j t|,e plaintiff had been housekeeper to the

ought not, at rr r r

the suggestion defendant. On the 23rd of November last the plaintiff

of plaintiff's

counsel, to give complained of being insulted by one of the men employed carry"coftiV0 by tne defendant in a barn, and gave a month's notice to leave.

The plaintiff remained till the 16th December, when some further difference arose between the plaintiff and defendant, and the latter told her to leave at once, which she refused to do. He then told her she must go the next day, and offered her her wages; she declined to go, and would not have her wages. The defendant said she must go the next day, and sent for a policeman to attend the next day. A policeman came, and upon his voice being heard the plaintiff went upstairs, to her bedroom, and lay on the bed.

According to the defendant's case the plaintiff was shamming and had been drinking brandy, and the doctor recommended her boxes to be searched; the keys were accordingly taken from her pocket,as she was lying on the

Poole

v.

Whitcombe.

bed, and in one of them a medicine bottle was found, 1862.

which, it was said, had contained brandy. The policeman

then removed the plaintiff from the bed, and in forcing her

down stairs, she fell to the bottom, some four or five steps.

The defendant insisted on her leaving, and as she refused,

the policeman forced her out. The defendant ordered his

pony carriage to be got ready, but the doctor suggested it

would be unsafe to remove the plaintiff in a vehicle so low.

A cart with some straw in the bottom was then brought

round, and the plaintiff was forced into it, and taken away,

she struggling all the while. When she had got a short

distance along the road she asked to get out, and was

allowed to do so. She then went to the house of a farmer

who lived near the defendant, and upon explaining the

matter, she was allowed to remain there during the

night. On the same evening she asked to be allowed

to return, and the next day she received her wages and

her clothes from the defendant, and on leaving they shook

hands.

During the progress of the case

Crompton, J., intimated that there was no justification for taking the keys and searching the boxes, or for taking the plaintiff away in the cart.

Hxiddleston contended, that at the most it was a case only for nominal damages.

Powell contended for substantial damages, and suggested that the defendant would be perfectly content if the jury gave a verdict for less than five guineas, to deprive the plaintiff of costs.

Crompton, J., interposed, and said counsel had no right to make such a suggestion, and it would be ground for a new trial if the jury acted upon it.

The learned Judge, in summing up said, there was no defence as to the searching of the boxes and the taking away of the plaintiff in a cart; but as to the other matters, he left it to the jury to say whether the defendant was guilty of any excess. His Lordship told the jury that they must give their verdict without reference to its effect upon the costs, that they must not make the damages to any amount in order to carry costs, but must give their verdict according to the evidence, and not look to the result of the verdict as it might affect the question of costs.

[graphic]

The jury found that there was no excess, but found, as to the other matters, a verdict for the plaintiff, with five guineas damages.

Crompton, J., said that, of course, a motion would be made for a new trial.

Powell said, some Judges were of opinion that a jury might be told what would carry costs (a).

Crompton, J.:—But the jury ought not to be influenced by the question of costs to give more damages than they otherwise would (ft).

(a) Wakelin v. Morris, Vol. II., p. 26.

(4) The Court of Common Pleas granted a rule for a new trial, on the ground that the jury had not really exercised a judgment as to the amount of damages, but, in the opinion of the learned Judge, had merely given the amount they did in order to carry costs, and the rule was granted (the learned Judge being dissatisfied with the amount of the damages) as for excessive damages. The rule was argued in T. T., and it was now contended that there was no rule of law prohibiting counsel from telling the jury in his address to them what sum would carry costs, and that in principle the costs formed part of the damages; Wakelin v. Morris, Vol. II., p. 26. The Court, without calling on the defendant's

counsel to support the rule, made it absolute for a new trial, and snid that, looking to the opinion of the Judge who tried the case, the damages were excessive, and from the facts it was apparent that the jury found their verdict for the amount of fire guineas for the purpose of giving the plaintiff her costs. It was the duty of the Judge to determine whether the plaintiff should have costs in certain cases, and the jury have no right to interfere with it. If a jury could give costs, there would be a transfer of jurisdiction, and uncertainty in the administration of justice. It is to be observed, that the jury themselves were clearly of opinion that it was not only not a case for vindictive damages, but not for substantial damages, for they expressly found that there was no excess, and if

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