West Briton and Cornwall Advertiser. 14th November 1851. Part Two STANNARIES' COURT - Thursday, November 6. CLAIM BY MINERS. ALLEN and OTHERS v. CLYMA. Mr. CHILCOTT for the plaintiffs, and Mr. STOKES for the defendant. The claim was by Allen and three others against the Captain of Wheal Tremayne, in the parish of St. Ervan. The mount of the claim was GBP30. 2s. for work done during the months of April, May and June last. Mr. Chilcott called the plaintiff, JOEL ALLEN, who stated that he and three others were employed by defendant, and worked during the three months mentioned, at certain fixed wages, and that the sum they claimed was due. THOMAS RAWLINGS, a miller having a mill within one hundred yards of the mine, said he saw the plaintiffs working there during those three months. NOEL CLYMA, the captain of the mine, and defendant in the action, was subpoened by Mr. Chilcott, under the recent act of parliament, to give evidence on the part of plaintiffs. He said he was captain of the mine, that he employed the men, and the money was due to them. On Cross-Examination he said he was employed in this mine four years ago under a Mr. DYMOND, and was paid by him. That the mine was then idle for two years; but two years ago he was employed by a Mr. WILLIAMS, and worked under him for six months, and was paid by him. The mine had been again idle for sixteen months; but on recommencing in April last, he was directed by this same Mr. Dymond to employ these men, the plaintiffs, and he was himself employed as captain. Mr. Stokes asked him whether he did not know there were other adventurers who claimed the materials, and that these others had nothing to do with Dymond? He denied that was so as far as he knew. Mr. Stokes then addressed the court for the defence. He said he appeared for the real owners of the mining materials, who were exceedingly surprised at finding that people had been sent on the mine without their knowledge, and were exceedingly angry that anybody was claiming a lien upon their materials. He said he knew nothing of Dymond, who had in reality nothing to do with the mine, and was unconnected with the real owners of the materials. He submitted that Mr. Chilcott had not done enough in proving that the men were employed by a resident captain; he ought to have shown that the captain had been duly employed by the real owners of the materials. It was monstrous that anybody might go and set a mine to work, and the owners of the materials find themselves called on to pay for that work. Mr. Chilcott replied that the custom had always been for the working miner to look only to the resident agent for payment; that the working men never could know who the real adventurers were, and to call on them to make the real owners of the materials defendants, would be to deny them justice, because they can only know who employed them. He said the petition had been served three months ago, and it was very extraordinary, if there were any bona fide adventurers, that they had not been called in court to say so. There was nothing to prove that fact, and as far as real adventurers went, they might exist only in the advocate's imagination. The Vice-Warden delivered judgment in the case on Saturday. TONKIN v. MANLEY - Mr. CHILCOTT for plaintiff, and Mr. BENNALLACK for defendant. This was a claim against the Captain of St. Michael Penkivel mine for wages. Mr. Chilcott said he was obliged to sue on the equity side of the court, instead of as a small debt, because there were no adventurers in this mine in the county, and no solvent adventurers anywhere; the only way therefore of getting anything was to sue as against the materials. The claim was for GBP5. 7s. 11d., but there being some set offs put in, the Vice-Warden ultimately gave a decree for plaintiff for GBP4. 8s. 3d. Friday, November 7. - LYLE v. SIMMONS - Mr. HOCKIN, for plaintiff, moved to confirm the Registrar's report, from which there appeared a balance due of GBP269. 11s. 8d. He stated that terms had been made with regard to the time of payment. Mr. G. N. SIMMONS consented, and the report was confirmed. Saturday, November 8. - ALLEN and OTHERS v. CLYMA - In this case the Vice-Warden delivered judgment. He said the question raised by the defence was one of some importance; it was whether the owners of the machinery of Wheal Tremayne, for whom Mr. Stokes appeared, ought to be bound by the acts of the defendant, who is not shown to be connected with any one but a Mr. Dymond, now in London. It was urged in opposition to the claim, that Dymond being a trespasser on the mine, it is hard that the adventurers' machinery which they have left for some time standing, should not only be used by trespassers unknown to the adventurers, but be sold to pay the wages for the trespass. The answer is that it would be harder if miners, working on a hiring well known in this district, and knowing only their hirer, should fail to have their remedy if they do not know persons at a distance, beyond the jurisdiction of the Court, and who have not appeared. This hardship, arising from the ignorance of labourers and mining creditors, is one reason of this remedy being given on this side of the court. Secondly, it does appear that Dymond, who employed the defendant, was acting in this mine four years ago, and the mine having been stopped during great part of the interval, the Court, in the entire absence of all evidence, may assume that the manager four years back may continue to act as he did before; and that one Williams being employed some months, is not decisive that Dymond's connexion with the mine had ceased. Mr. Stokes seems to appear for persons not in Court, the alleged adventurers and owners of the machinery. The process of this court in proceeding to sale is so cautious and so public, that it seems impossible that any adventurers can unjustly be deprived of their property, or even deprived of their opportunity of making a defence in behalf of that property. The process is well known, and if there are any adventurers in this mine, they might have added themselves to the defence, and the process of adding themselves would have shown who they were, and whether they were connected with Dymond or not. They have not appeared, and plaintiffs, under the circumstances, may be allowed to assert that Mr. Stokes's clients do not legally, or perhaps at all exist, except as represented by Dymond. The decree would be, that the sum proved, GBP32. 2s., with costs, be paid on or before the 9th of December next. SHARE TRANSACTION - CLIFT v. PRYOR - This was a case tried on the previous Wednesday, when a verdict was given for defendant. Mr. CHILCOTT, on behalf of plaintiff, now moved for a new trial, on the ground that the verdict was against the weight of evidence. He said the contract on which the action was brought, was made by a person called ROACH; and on the action was brought against the defendant Pryor, on the ground that Roach was his agent, and that he was responsible for Roach's conduct. Besides some cases of agency which perhaps were not very strong, and which took place subsequent to the contract in question, there was also one important case of agency proved at the trial, in respect of a share in this same mine, South Wheal Basset. It was proved, and not attempted to be contradicted, that some time before the 24th of May, the plaintiff bought a share in this same mine, from the same person, Roach, defendant's clerk; and that plaintiff received the transfer of that share with Pryor's signature. The transfer itself was put in and proved, and the purser proved that in consequence of that transfer, he, in the cost-book, transferred that share from Pryor to the plaintiff. It appeared to him (Mr. Chilcott) that that one case, without referring to any of the others, was sufficient to establish the fact of the agency of Roach. It took place only a week or ten days before the contract in question; the plaintiff agreed with the same person, Roach, for a share in the same mine, for nearly the same amount (GBP367. 10s. instead of GBP370 or GBP371), and in that case, as in the case in question, Mr. Pryor was absent from Redruth, being in London. The two cases were therefore precisely alike, and the position he (Mr. Chilcott) took was, that as the defendant ratified the contract of the 24th of May, and as in a subsequent conversation with plaintiff respecting it, Defendant made no allusion to the contract, as he said nothing whatever to induce plaintiff to believe that he (defendant) was displeased at his clerk's contracting for him, - it raises a very strong presumption that the defendant did not disapprove of it, and that the plaintiff was authorised in treating with the defendant again through the same agent. Surely if the defendant disapproved of his agent making the contract, it was his duty, as an honest man, to have said to the plaintiff "you have dealt with my clerk in this contract; I will ratify this, but I disapprove of his habit of doing this, and I give you warning not to deal with him in this manner again." In the absence of anything of that kind, he submitted that plaintiff was justified in making another contract in the same way. The case was like that of a master sending his servant to buy food at a shop. If a man sends his servant to a shop, and the servant gets goods without paying for them, and the master subsequently pays for them, that is a complete justification for that shopkeeper again supplying the same servant, and looking to the master again for payment. The principle on which such cases rest was so well known, that he need not trouble the court with citing cases. On that principle it appeared to him that the one case of agency proved by the plaintiff, justified him in supposing that defendant approved of his clerk contracting for him, and that therefore defendant must, in the present case, be bound by Roach's contract. Having laid the strong foundation of that one case, there were several others brought out on the trial, not so strong, but still corroborative, and they appeared to him of such weight that the jury ought to have given the verdict in the plaintiff's favour. On these grounds he asked for a rule calling on defendant to show cause why there should not be a new trial. The Vice-Warden - I must say that I think the case was most studiously left by me to the jury; perhaps there was more labour given than there need to have been, in order that they might see the different bearings of the case, and the different facts proved; and I think that the jury seemed, as far as I could perceive, to pay attention, not only to what I said, but also to the evidence; and that the time they were absent gives a presumption that they paid attention and thought of the different points themselves. And I do not remember a case where the question was more for the opinion of the jury, because everything was fact. The law was exceedingly simple, - that the principal is answerable for the acts of his agent; do the facts show that Roach was the agent, or do they show that the plaintiff might reasonably have believed that he was, and did he believe it? There was doubtless evidence for the plaintiff, and if the jury had found that the plaintiff reasonably did believe that Roach was acting for the defendant as agent, and had found a verdict for the plaintiff, and there had been a similar application to this made on behalf of the defendant, as far as I can venture to speculate, I should have refused the rule for the same reasons as now, namely that it was a case most decidedly for the jury, I think it was sufficiently explained to the jury, and I think the jury discreetly and advisedly weighed the evidence; and the evidence for the plaintiff, though it was evidence, was so slight, and there were so many considerations on the other side to be made, that though, if they had inclined to that evidence and found a verdict for the plaintiff, I should not have said they had given a wrong verdict; yet as they do not incline to it, but find for the defendant, - on the same grounds, the conflict and almost equilibrium of evidence fully justifies them, so that I cannot say the trial has been improvidently brought to a conclusion. Nor can I at all say that the weight of evidence is so preponderating as to enable the sending the case to another jury. It is also to be considered that this business is a very narrow one; though they seem to change about shares a great deal in Redruth, it is not like a great brokerage business in Liverpool or London; in this case the business, in a small country town, is confined to five or six persons. He thought therefore, the case was one which was properly tried, and he could not say that he was discontented with the verdict, there having been evidence for both sides to be considered, and the case so completely for the jury. If he were to grant a new trial, he should be expressing doubt where he had none, and in effect be saying that in every case attracting attention or of importance to the parties, there should be a new trial. He therefore refused the rule, because he thought the verdict was not against the preponderating weight of evidence. After this decision, the Vice-Warden again referring to it, mentioned the case of a servant obtaining provisions on behalf of his master, which case he had stated in his summing up to the jury. From the abstract of that case which he had perused, it appeared there was only one instance in which the servant had procured provisions for the consumption of the house, on credit, which his master ratified, and then the second instance with the same tradesman was held to be binding on the master for payment. Still, although one instance might be enough, if the jury considered it so, yet there may be great differences between the case of a broker and mine agent, and that of a servant obtaining provisions for a family. RICHARDS v. CLEAVE and OTHERS - In this case there had been an account taken between the parties, before the Registrar, and on the motion of Mr. G. N. SIMMONS, the Registrar's report was confirmed. An application by Mr. Simmons was also granted, that those parties in the suit who were found by the Registrar to have paid less than their proportion, should pay what is due from them; and that those who have paid more, should receive what is due to them. Mr. Simmons also moved for the costs in the case, which the Vice-Warden reserved for consideration. Tuesday, November 11. MINERS IMPRISONED - Mr. BENNALLACK moved the court to discharge ALLEN and TRELEASE, two tributers who were then in Bodmin gaol under an attachment for non-payment of costs in a suit they brought against Captain MORCOM, the agent of Wheal Golden. Mr. CHILCOTT, on behalf of the adventurers, consented to their being discharged. The adventurers had not received payment of the costs, nor had they expected to get any thing, as they did not suppose the men could pay the amount. Their object had been, for the sake of the public, to make an example of these men, who had behaved very ill, and deserved punishment. The men had been in prison a month, and the adventurers thinking they had had punishment enough, were now willing to consent to their discharge. The Vice-Warden said the defence against the suit brought by these two men was that their conduct had been such as to disentitle them to anything they might otherwise have a claim to. There was a decree against them, and they were attached for non-payment of the costs of the suit. He recollected at the time cause was shown against the attachment, saying that in such a case he could not suggest to the adventurers that they should have any regard to the poverty of the plaintiffs, because the case was not that of a mere claim of a debt which it was proved did not exist, either from payment, or set-off, or the work done not being so much as the plaintiffs supposed; but the defence was that the conduct of the plaintiffs had disentitled them, in other words that they had been fraudulent towards their employers; and as he (the Vice-Warden) knew that adventurers have a severe struggle to sustain, in order to be able to turn mining speculations to profitable investments, he never would be a party to any countenance that should be afforded to persons who had behaved as Allen and Trelease. Mr. Chilcott had said the adventurers did not expect to obtain the costs of the suit, but they wished to show that persons who work in mines must take care not to come into this court, and endeavour to make use of the court as the means of recovering what they may think is their due for wages, when at the same time the adventurers may show that their conduct has been most unjustly fraudulent, and that wages cannot be obtained by them. If the adventurers choose that these persons be dismissed, it was not for the court to consider any longer what was called contempt of court for non-payment; they may therefore be discharged as soon as the proper documents are submitted to the Governor of the Bodmin gaol. ROBINS and OTHERS v. BARRETT - Roche Rock Mine. In these consolidated cases, which were creditor's petitions, Mr. STOKES moved that the Registrar's final report be confirmed. The machinery, &c., had realised the gross amount of GBP861. 16s. 10 1/2 d., and after paying the cost of the suit, the accountant's costs, and all other expenses, the sum divided amongst the creditors was GBP739. 4s. 3 1/2 d., giving a dividend of 16s. in the pound. The Vice-Warden said it thus appeared there had been six equity suits, the costs of the sale of machinery including auctioneer's costs, the advertisements, the expenses of a long possession, &c., all of which had amounted to about GBP122. This would show something of the working expenses of the court. He then directed that the Registrar's report be confirmed. TILLY v. BROOKS - West United Hills. - Mr. CHILCOTT (for Mr. HOCKIN) moved in this case - a purser's petition - for the sale of defendant's shares. In September last there was a decree for payment for GBP101. 5s. within twenty days, and no payment had been made, after a copy of the decree had been affixed to the principal shaft of the mine, and also addressed to defendant, Rev. J. HEATHCOTT BROOKS, of Chipping Norton. The Vice Warden granted the decree of sale. COLLIVER v. HALLET and ANOTHER, and COLLIVER v. HALLET and OTHERS. - West Polgooth - Mr. STOKES stated that it had been arranged these two equity suits should be heard at the next sittings. He was ready, on behalf of the defendants, to consent to their being placed in the same situation as if they had been tried at the present sittings. Mr. CHILCOTT, for plaintiff, assented. It is therefore understood, that if a decree for sale is granted at the next Court, it shall be issued with immediate effect. RICHARDS v. CLEAVE and OTHERS. - Plaintiff, through Mr. G. N. SIMMONS, had asked for costs in this case. The Vice Warden said he must further consider the question of costs of the several parties, and would send his opinion to the Registrar. ROYAL INSTITUTION OF CORNWALL - The annual meeting of this Institution was held in the Museum, Truro, on Friday last. There were laid on the table a variety of specimens in Ornithology and Mineralogy, preserved fish specimens, Zoophytes, ancient coins and tokens, impressions of ancient seals, &c. The latter included impressions in gutta percha of the seals of St. Stephen's Prior, Launceston, and of the town of Launceston, presented by Mr. PICKTHALL, of Plymouth. These seals he obtained of Mr. SPENCE who discovered them in an old chest at Launceston; the Prior of St. Stephen's sea, he says, has never been described in any work. BAGDAD - The accounts from Bagdad announce that the cholera is raging there in a dreadful manner. These accounts come down to September 23rd, and at that date 100 persons were carried off, on an average, per day. During the first attack of the malady scarcely any person seized with it escaped, and in one day out of forty-two soldiers taken to the hospital forty died. On September the 22nd not less than 150 deaths were ascertained to have taken place, and all business was suspended. The European colony, which, however, is not very numerous, had only last three of its members. CORNWALL COUNTY COURTS - TRURO - At this Court, on Friday last, forty-five cases were entered for trial including four adjourned from the previous sittings. The following trial occupied the Court some hours, and involved the contradictions of evidence usual in such cases:- KNIGHT v. CARDELL - Plaintiff, for whom Mr. STOKES appeared, lives in Truro, and defendant represented by Mr. HOCKIN, is a farmer of St. Columb Major. The action was brought on a warranty given on the sale of a mare to plaintiff by defendant, the warranty being that she was sound and free from vice, and quiet in harness. Plaintiff was called, and deposed to the terms of the warranty, and that he gave GBP10 for the mare. The Monday after the purchase he put her in harness and found that she very speedily began to kick and rear. Being desirous of keeping her if he could possibly make her useful, he put her in the hands of DENNIS DART, a horse-breaker, to give her a fair trial; but she continued rearing and kicking whenever placed in harness, and at last finding it quite impracticable to drive her, he went with her to Newquay to return her to the seller. He saw there young Mr. CARDELL, and tendered the mare; but he refused to take her, and then offered to try her himself in harness; it was however so dark at night as to be impracticable to make the trial. In consequence of this refusal, plaintiff caused the mare to be sold in the High Cross at Truro; she sold for five guineas, and there being other expenses, his loss amounted to GBP7. 14s., which he now claimed to recover from the defendant. WILLIAM SNELL said he was present when the mare was sold to plaintiff; the warranty was that she was free from vice, and would go in harness. Dennis Dart, horse-breaker, proved that at the request of plaintiff he tried the mare in harness, and proved her to be both a jibber and kicker. JOHN PEARSE was employed by plaintiff to take care of the mare after he purchased her. Everything was done on his part to keep her in good condition, but she took her food badly. He saw her tried in harness by both plaintiff and Dart, and on both occasions she jibbed and kicked. This was the plaintiff's case. For defendant, Mr. HOCKIN called JOHN COTTON, a farmer of Newquay, who said he broke in the mare in January last, and kept her in May; she worked in traces and chains, and did not exhibit any vice, though she might sometimes have kicked, and did sometimes rear in harness. The mare was very high-spirited, the most so he had ever seen; he had never tried her in a carriage or cart, or with breeching on.- DELBRIDGE, ostler at Newquay, said he saw the mare when Knight came to return her to Cardell, who offered to try her in a cart. He did not hear what Knight's reply was, but when Cardell's offer was made to try her, it was between eight and nine at night. He saw the mare kick in the stable, but thought Knight tickled her. A blacksmith at Newquay, called HAWKE, said he had been in the habit of shoeing the mare, and did not consider her vicious. A person named FLAMANK said he saw Knight tickle the mare on his right hand at Newquay, whilst Cardell was looking at her, and that she bit at Knight. Mr. TEMPLE, of Truro, stated that after the sale by auction at Truro, he bought the mare of her purchaser, Mr. JONES, giving another mare in exchange for her, with GBP2. 10s. besides. He was pleased with the appearance of the mare, but never tried her in harness; and unfortunately, the very night after he purchased her, she hung herself in the stable and broke her neck. HENRY CARDELL, grandson of defendant, stated that he had had the mare some months and drove her to Newquay, and from Newquay to Truro on the day she was sold to Knight. She did not then kick, and he considered her not to be vicious, and having no inclination to rear or kick, but quiet in harness. He offered to try her in harness when Knight brought her back, but he said it was too dark, and he had had already a sufficient trial of her. This witness, however admitted that the mare had never before been in harness while he had her, except on the day he drove her to Truro. JOHN CARDELL, the defendant, stated to the same effect as the last witness, and said he considered the mare of a quite disposition. RICHARD CLIFT, of Truro, said he saw Dart on the day he tried the mare in harness; Dart said if he had the management of her, he thought he could make her draw. The Judge without calling on Mr. stokes to reply to the evidence, said he considered the warranty clearly made out, and that defendant's first witness, Mr. Cotton, had in fact confirmed the statement of plaintiff's witnesses as to the disposition of the mare, and her unfitness for harness. He therefore gave judgment for plaintiff for the sum claimed. HELSTON - At this court, on Monday last, the only case exciting interest and involving legal points, was the following:- NICHOLLS v. BISHOP and ANOTHER. This was an action of replevin, Mr. T. ROGERS and Mr. PLOMER appearing for the plaintiff, and Mr. HILL and Mr. STOKES for the defendants. The action was brought to recover damages for a distress alleged to have been illegally made by the defendants, who were the executors of the owners of an estate called Boden Vean, in the parish of St. Anthony in Meneage. The distress was for three quarters of a year's rent due at Midsummer last, at the rate of GBP63 per annum. It appeared that a Mr. ROBERT NICHOLLS had granted a lease for a term of years determinable on lives, to Mr. JOHN ROSKRUGE; that Nicholls had died, leaving the present defendants his executors, and that the defendants had treated the occupiers of the premised (the present plaintiff) as tenant, and at whose instance the original rent had been reduced from GBP72. 10s. to GBP63, by valuers who were duly appointed pursuant to a clause in the lease, which was to the following effect:- That if at any time after the decease of the original lessee the rent should be found too much, then the lessor, on notice from the lessee, agreed that each party should choose a disinterested person who should fix a fair and just rent. In the year 1849, such arbitration was effected at the instance of the lessee, and the rent reduced as above stated; and it appeared that the lessee in a subsequent year also gave notice requiring a similar reference; but the defendants did not act on behalf of the lessor in appointing another referee, and no legal reference was then effected, the defendants alleging that their reason for not going into the second reference was that the rent of the first year had not been paid, and that the estate had been mismanaged. The valuation which had been made in the first instance, was only for one year. The taking of the goods under the present distress was admitted; also the tenancy and the lease, and the valuation by which the rent had been reduced from GBP72. 10s. to GBP63, were admitted. In consequence of the form of this action, defendants commenced the proceedings, it being contended on their behalf, that the full amount for which they had levied was due, but that if they succeeded in proving that any amount whatever was due, the verdict must be in their favour. After addressing the jury, on the part of defendants, one of the valuers was called, who proved that the rent of GBP63, which was fixed for the year ending Michaelmas, 1850, would also be a fair rent for the year ending Michaelmas, 1851. One of the defendants, Mr. BISHOP, was examined on several facts, and Mr. Rogers then addressed the jury for the plaintiff, submitting that under the circumstances defendants had no right to distrain, because there could not be said to be any fixed rent, as the rent the valuer had fixed for 1850 was only for one year, and there ought therefore, in his opinion, to have been a second valuation to fix another rent before any distress could be levied. He cited several authorities on this point, and further contended that the distress was illegal, on the ground that the notice of distress was addressed to the present plaintiff as a tenant, when in fact Roskruge was the tenant. At this stage of the proceedings, it was submitted by Mr. Hill and Mr. Stokes that the facts had been sufficiently elicited to raise the two points of law, namely, whether in consequence of the valuation of 1850 there ought to have been another valuation to fix the rent; and whether the distress was illegal on the notice being given to the occupier instead of to the tenant. After Mr. Rogers and Mr. Plomer had been heard in reply, it was agreed that a verdict should be given by the jury for the defendants, with leave to the plaintiff to move upon the points of law which had been raised on his behalf; and if the court held those points to be valid, then their verdict would be entered for the plaintiff for GBP2. 10s. damages. DEATH FROM CHLOROFORM - To the Editor of the West Briton. Sir, - I have anxiously watched your last three numbers in the hope of seeing the report of a coroner's inquest held at Bodmin, on the 18th ult., on the body of a pauper, who met his death while undergoing the operation of amputation in the Union Workhouse, under the influence of chloroform. The facts are as follows:- The poor man, about 64 years of age, (belonging, I believe, to the parish of Lanivet) had been suffering from disease of the ancle joint, and was sent into the House for medical treatment. Eventually, on consultation, amputation was deemed necessary, and on the forenoon of Saturday the 18th ultimo, Messrs. WARD, TYERMAN (of the Lunatic Asylum), and NICHOLAS, attended, and having rendered the patient insensible by the administration of chloroform, Mr. Ward skilfully took off the limb above the knee, by the so-called flap operation. But unfortunately, while the assistants were securing the arteries, the patient sighed heavily and expired. I understand an inquest was held the same day, but not having seen any report thereof, I am ignorant of the verdict returned. I am, Sir, Your obedient servant. A SUBSCRIBER. East Cornwall, November 8, 1851.