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1833.

FREEMAN

v. BAKER.

cannot, then, was there any fraud used to conceal the fact from the plaintiff. And upon the question of whether she was copper-fastened or not, I own I think that the plaintiff's card is not to be altogether disregarded. If it had appeared that the plaintiff the next day, with a perfect knowledge of the fact, offered her for sale as a copper-fastened vessel, I should have thought it almost a bar to the action, and no doubt it would have been very strong evidence for your consideration. But I confess I do not think that is quite the effect of the card, as the vessel was not unsafe at the time for passengers. Yet it makes it a little difficult for the plaintiff to say, she is not, in the popular sense at least, a copper-fastened vessel, when, a year after she was bought, he described her as such. His Lordship then read the evidence to the jury, on the point of shifting without ballast, and left the question of damages entirely to their consideration.

The foreman of the jury inquired whether it would make any difference as to the verdict, if the jury should think that the ship was not copper-fastened, but that the plaintiff ought to have made his objection sooner.

Denman, C. J.-I do not think that it will make any difference; it would have been much better if notice had been immediately given. But, I think, that the plaintiff was not bound to give it. I think a man may complete the contract, and then recover from the seller any difference in the value, if he has been deceived. I think so for this reason, viz. that a man may want a vessel for his immediate purposes, and it may be inconvenient to him to give it up at the time.

The jury were of opinion that the vessel did shift without ballast, and was not copper-fastened; but that there was no evidence that the defendants were aware of the

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1833.

fact, and consequently they did not use any means to conceal it. They found a-

FREEMAN

BAKER.

Verdict for the plaintiff-Damages 1201. (a).

Campbell, S. G., and Comyn, for the plaintiff.

Sir J. Scarlett, Maule, and Tomlinson, for the defendants.

[Attornies-Collins, and Gale.)

(a) The legal effect of this verdict will be considered by the Court on the discussion of a rule which has been obtained, to shew cause why a nonsuit should not be entered.-See, in addition to the

cases cited, Baglehole v. Walters, 3 Camp. 155; Dobell v. Slevens, 3 B. & C. 623; Budd v. Fairmaner, ante, p. 78; and Paley's Law of Principal and Agent, pp. 161 to 165.

COURT OF COMMON PLEAS.

Adjourned Sittings at Westminster, after Hilary

Term, 1833.

BEFORE LORD CHIEF JUSTICE TINDAL.

HEAD v. BRISCOE, Bart., and Wife. Feb. 11th.

ACTION for a libel published by the female defendant, A man is answerable to a

Dame Sarah Briscoe. Plea—that she was not guilty. third person for what is done by It appeared that the plaintiff, who was a house agent, his wife, so long as the relation

had let a house to a Mrs. Toleson, with whom the female of husband and

defendant lived for some time, when, they having quarrelled wife continues, though they and separated, the female defendant caused a placard to be may be permanently living printed and stuck about in the street, which commenced as apart; at least, follows:-“ Felony. Ten guineas reward. Whereas Mary shewn that the Toleson, of &c., late of &c., was left in charge of a house, wife at the time was living in &c." It then went on to charge Mrs. Toleson with having adultery.

1833.

HEAD

stolen some furniture belonging to the female defendant, and added these words—" It is supposed that Mary Toleson was assisted by George Head, house agent, of No. 7, Upper Baker Street, New Road, in conveying the same to his house for the purpose of secreting it.” Information was requested, at the bottom of the bill, to be given to Messrs. Pasmore & Taylor, Basinghall Street.

BRISCOE.

Wilde, Serjt., for the plaintiff.—A person suspecting a felony may reasonably do what is necessary to apprehend the felon, but this mention of the plaintiff could not be necessary. I admit that Sir W. Briscoe had nothing to do with the libel, and only require such damages as may relieve the character of the plaintiff from any suspicion. The defendant, Sir W. Briscoe, is living separate from his wife; yet he is answerable for her acts, until he obtains a dissolution of the marriage. And if he has been correct in his own conduct, and his wife has not, he may relieve himself from any liability by application to the proper Courts.

Adams, Serjt., for the defendant Sir W. Briscoe. This is a case of first impression. I have searched all the law books from the earliest time, and cannot find the principle even agitated. The defendant, Sir W. Briscoe, cannot be acquainted with the circumstances of the case. The ground of damages in an action of libel, when no special damage is averred, is the existence of malice; and then in this case there is no malice on the part of

my

client. But if he is by law to be charged, the most temperate damages should be given. The plaintiff should have indicted the female defendant instead of bringing an action for damages against her husband.

Tindal, C. J.—There is no doubt, in point of law, that a husband, so long as the relation of husband and wife continues, is answerable to a third person for what is done

1833.

HEAD

v. BRISCOE.

by the wife. And whether their separation be permanent or temporary it does not affect the question, unless it operates so upon the marriage as to make that civil relation cease; for, by the law of England, you cannot bring an action against the wife without joining the husband; and a man would be without remedy if he could not sue the husband. Upon this ground I have no doubt, as at present advised, that the action is maintainable. If I am wrong in my opinion the learned counsel for the defendant will have an opportunity of moving the Court.

His Lordship left the question of damages to the jury, who found a verdict for the plaintiff

Damages 40s.

Wilde, Serjt., and Hutchinson, for the plaintiff.

Adams and Bompas, Serjts., for the defendant Sir W. Briscoe.

[Attornies-Curlon, and Springhall & H.]

In the ensuing term, Adams, Serjt., moved pursuant to the leave given; but the Court, after observing that there was no evidence that the wife was living in adultery (a)

Refused a rule.

(a) See, upon this point, the case of Rex v. Flintan, 1 B. & Ad. 227, which decides, that a man is not liable to the penalty of the stat. 5 Geo.4, c. 83, s. 3, for neg

lecting and refusing to maintain his wife, who has left him, and committed adultery, although he himself has been guilty of adultery since her departure.

Feb. 11th.

Walker v. Rawson. ASSUMPSIT for work and labour as an engineer, Payment of money into Court against the defendant, as chairman of the Directors of the in assumpsit on the common counts for work and labour, is an admission that the contract was with the party suing, where it appears that there was in fact only one contract.

1833.

WALKER

v. RAWSON.

Leeds and Manchester Railway Company. A sum of money had been paid into Court.

It appeared in the course of the cause that a bill had been delivered in the names of Walker & Burgess, and it appeared that those gentlemen were in partnership as engineers, but Mr. Walker had received the communication from the parties on the business.

On the part of the plaintiff, the payment of money into Court was relied on as an admission that the contract was with Mr. Walker, the plaintiff.

Jones, Serjt., for the defendant, contended, that payment of money into Court was no admission on the common counts of anything more than that such sum was due. He referred to the case reported under the name of Seaton v. Benedict (a).

TINDAL, C. J.-The only question here is, with whom was the contract made? I think the payment of money into Court gets rid of the difficulty. There can be but one contract. It is not like the case of the goods furnished for the wife, which has been referred to; for in that case there might have been authority for one part and not for another.

Wilde and Talfourd, Serjts., and Hoggins, for the plaintiff.

Jones, Serjt., and Baines, for the defendant.

[Attornies-Chisholme & Co., and Walmsley.]

(a) 2 Moore & Payne, 66, the amount of the sum paid in, and decision in that case was, that pay- applies only to a legal demand, ment of money into Court in as- and not to all the items contained sumpsit for goods sold and de- in a bill of particulars, in which livered, only amounts to an ad- the goods are stated to have been mission by the defendant of the supplied at different times. plaintiff's right of action to the

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