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NISI P R I U S.

PROMOTIONS.

1831.

IN Trinity Vacation, Philip Williams, Henry William
Tancred, Francis Ludlow Holt, and Charles Butler,
Esgrs., were appointed his Majesty's Counsel learned in
the law.

COURT OF KING'S BENCH.

Sittings at Westminster after Trinity Term, 1831.

BEFORE LORD TENTERDEN, C. J.

it is not essen

M`Kone v. WOOD.

June 14th. CASE for keeping a dog accustomed to bite mankind. In an action Plea-General issue.

against a party, for keeping a

dog accustomed On the part of the plaintiff, it was proved, that the dog to bite mankind, had bitten the plaintiff, and that it had bitten two other tial that the persons before; but one of the witnesses, who proved that if he harbours he had made a complaint to the defendant respecting the the dog, or al

lows it to be at, dog, stated, that the defendant had told him that the dog and resort to, belonged to a person who had been his servant, but who that is sufficient. had left him.

It was also proved, on the part of the plaintiff, that the dog was seen about the defendant's premises, both before and after the time when the plaintiff was bitten.

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1831.

M'KONE

Campbell, for the defendant, submitted that there was not sufficient evidence to shew that this was the defendant's dog; but, on the contrary, it was shewn that it was not. He therefore contended that the defendant was not liable in this action.

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Lord TENTERDEN, C. J.-It is not material whether the defendant was the owner of the dog or not; if he kept it, that is sufficient; and the harbouring a dog about one's premises, or allowing him to be or resort there, is a sufficient keeping of the dog to support this form of action. It was the defendant's duty, either to have destroyed the dog, or to have sent him away, as soon as he found that he was mischievous.

Verdict for the plaintiff.—Damages 5l.

Follett and S. Martin, for the plaintiff.

Campbell, for the defendant.

[Attornies--). Humphreys, and E. Young.)

June 14th.

HIGGINS V. BRETHERTON. If a person go to

CASE. The first and second counts of the declaration a coach-office,

stated, that the plaintiff had caused a portmanteau, conand direct that a place be book- taining deeds, writings, and wearing apparel, to be deed for him by a particular coach, livered to the defendant, to be safely and securely kept, and that be done, and he

and to be redelivered on request; but that the defendant, leave his port- contrary to his duty, would not redeliver when requestmanteau, the coach porprietor ed. These counts stated special damage. There was will have a lien on the portman- also a count in trover. Plea--General issue. teau for some

From the evidence on the part of the plaintiff, it apthing, but not for the full a mount of the coach fare ; but, if the party merely leave the portmanteau while he goes to inquire if there be an earlier coach, and no place be actually booked, the coach proprietor has no lien at all.

1831.

HIGGINS

BRETUERTON.

peared, that he went to the coach-office of the defendant, in Liverpool, and asked the fare to London by the Express coach; and that, being told 30s., he put down a 30s. Irish note on the counter, which the book-keeper declined taking; that the plaintiff took the note up, asking permission to leave his portmanteau, saying, that he would go by an earlier coach if he could find one, which he did. It was further proved, that the defendant refused to deliver up the portmanteau, unless a sum of 30s. was paid.

For the defendant, witnesses were called, who stated that, after taking up the 30s. note, the defendant said, "Book me an outside place on the Express, and I will leave my portmanteau;" and that an outside place was accordingly booked.

Lord Tenterden, C. J., (in summing up).- If you believe that the plaintiff said that which has been stated by the defendant's witnesses, I think that it gives him a lien on the plaintiff's portmanteau for something, certainly not for 30s., but for something; and, as the plaintiff has not tendered any thing at all, that would entitle the defendant to a verdict.

Verdict for the plaintiff.

Sir J. Scarlett and J. Jervis, for the plaintiff.

Campbell, for the defendant.

[Attornies-- Lucas 8; P., and Shearman & F.]

1831.

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B.

June 20th.

EAGAR 0. Dyott and HARMAN. In an action for MalICIOUS prosecution. The declaration stated that malicious prosecution against the defendants, without any reasonable or probable cause, A. and B., if it appear that both indicted the plaintiff. The indictment was set out verA. and B. enter- batim in the declaration (a); and it charged that the ed into a joint recognizance to plaintiff being an agent of Mrs. Dyott, she deposited in prostcute and give evidence,

his hands 2001., with a written direction, signed by her, but it it also apo pear that A. only

“ with a special purpose specified in the same for the dis-
torney, and that position" of the money; and that the plaintiff, contrary to
B. attended be- good faith, converted the money to his own use. The
fore the magis-
trate and the declaration then went on to state that the plaintiff was
Grand Jury at
the request of the acquitted, and had judgment in his favour.
attorney, the

It appeared that the defendant, Mr. Harman, was a
Judge will direct
the acquittal of trustee for the other defendant, Mrs. Dyott, and as such
If C. be en-

had to pay her 8001. a-year, which sometimes the plaintiff
trusted to re- received for her. To shew a want of probable cause the
ceive money for
A., with a writ- plaintiff put in a check for 341., dated after the alleged
ten direction for
its application, embezzlement, and before the time of the prosecution.
and C. write a

In this check this sum of 341. was stated to be the balance letter to A. stating that he has not due to Mrs. Dyott. Across this check Mrs. Dyott had received it, when in fact he has, written her name. The only evidence to shew that the this is sufficient evidence of pro- defendant Harman was a prosecutor of the indictment, bable cause to render a pro

was the joint recognizance of the two defendants, entered
secution of into before Sir Richard Birnie, who was the committing
C., under the
statute 7 & 8 magistrate; which was a recognizance by both the defen-
Geo. 4, c. 29, s. dants to prosecute, and give evidence against the plaintiff;"
cious.

but the magistrate's clerk stated that recognizances were
often filled up in a hurry. It was proved by the attorney
for the prosecution, that he was employed by Mrs. Dyott,
and not by the defendant Harman; and that Mr. Harman

(a) The indictment was on the statute 7 & 8 Geo. 4, c. 29, s. 49, which is set out, ante, Vol. 4, p.

49, n.

See the cases of Rex v.
Prince, ante, Vol. 2, p. 517, and
Rer v. White, ante, Vol. 4, p. 46.

only attended before the magistrate, and before the Grand Jury, at his request.

1831.

EAGAR

DYOTT.

Sir J. Scarlett, for the defendant Harman.--I submit that my client ought to be acquitted. He was only a witness, and was compelled to attend to give his evidence. He neither employed the attorney, nor had he any interest in the prosecution.

Lord TENTERDEN, C. J.-I think on this evidence that I ought to direct an acquittal of the defendant Harman. I know that these recognizances are often drawn up in a hurry.

To shew probable cause, Mr. Harman was called for the defence. He stated that he had paid a sum of money to the plaintiff on account of Mrs. Dyott; and a letter from the plaintiff to Mrs. Dyott, of a subsequent date, was put in, by which he informed her that he had not received this sum of money.

Lord TENTERDEN, C. J.-It being shewn that the plaintiff denied the receipt of money, which it is proved that he had received, I think I ought to nonsuit. That appears to me to be sufficient evidence of probable cause.

Nonsuit.

The plaintiff in person.

F. Pollock and Capron, for the defendant Mrs. Dyott.
Sir J. Scarlett and Follett, for the defendant Harman.

[Attornies—W. Archer, and Beetham, and J. W. Freshfield.]

In the ensuing term, the plaintiff moved to set aside the nonsuit, but the Court refused a rule.

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