West Briton and Cornwall Advertiser 12th December, 1851. PART TWO TRURO COUNTY COURT - A BUILDER'S CASE - COCK v. SEYMOUR. - In this case, the plaintiff and defendant are both builders in Truro. Mr. STOKES appeared for the plaintiff; Mr. CHILCOTT for defendant. The plaintiff's claim was for GBP8, in respect of a party-wall which it was alleged he had built and sold to the defendant. It appeared from the evidence of the plaintiff, Mr. EDWARD COCK, that he had built several houses on land belonging to the Earl of Falmouth, in Edward-street, Truro. The last built of those houses he had sold for GBP77 to Mr. JOSIAH RAWLINGS, with a reservation of the punion-end for an adjoining house. The defendant being about to build on the adjoining plot, made application to plaintiff in February last; and the plaintiff gave him up the advantage of that piece of ground on the defendant's agreeing to pay him for the end wall, according to a valuation to be made by Mr. JOHN HALL, another builder. Mr. Hall valued the wall in March, and although the defendant at first said he considered GBP8, the sum named as his half-expense of the wall - "a little too stiff," he agreed to pay it in two or three weeks; but had not done so. Mr. Hall proved the valuation; and both he and Mr. WILLIAM JOHNS, another builder, proved that it was customary, in building a house to make fireplaces, stacks, &c. in the end wall for the convenience of the person who might build adjoining; and for the person so building to pay half the expense of the wall. Several other witnesses, it was stated, were in attendance to prove this custom. Mr. Chilcott, for the defence, said that Mr. Seymour was quite willing to pay the GBP8 for the wall, but he only wished to be satisfied as to whom he was to pay it to - whether to Mr. Cock or to Mr. Rawlings. The promise made to Mr. Cock was before Mr. Seymour knew of any claim by Mr. Rawlings. He (Mr. Chilcott) should show that the hole of the house, including the end wall was sold, without any reservation whatever, by the plaintiff to Mr. Rawlings, who insisted that the GBP8 for the party wall was due from Mr. Seymour to him, and not to Mr. Cock. Mr. Josiah Rawlings was examined; He stated that he bought the house early in 1849, of Mr. Cock, without any reservation whatever in respect of the end wall, which continued open and wholly unprotected by any other building, until Mr. Seymour began to build. After purchasing the house, witness took up the lease from the Early of Falmouth; he produced the lease, with measurement and plan of the plot of ground, and stated that the whole of the wall in question stood within the limits of the ground granted him by the Earl of Falmouth through his steward. As soon as he heard that Mr. Seymour was going to build on the adjoining plot, he claimed from him payment in respect of the end wall, and Mr. Seymour had paid him part of the price. (It appeared, however, that this payment was made subsequent to the origin of the present dispute between plaintiff and defendant). Mr. Rawlings who gave evidence concerning an interview which he had on the subject, with Mr. FOULKES, the Early of Falmouth's steward; and, afterwards added that when he bought the house of Mr. Cock, he distinctly offered a less sum for the house without the end wall. This statement was positively contradicted by Mr. Cock. Mr. Stokes replied, and Mr. Chilcott made some observations on the evidence concerning the lease to the effect that the case would seem to resolve itself into a question of title, and therefore was beyond the jurisdiction of the Court. - Judgment deferred. RECOVERY OF TITHES - NICHOLAS FRANCIS BASSETT v. [REUBEN?) DYER BONE - Mr. HOCKIN appeared for the plaintiff, who lives in Lemon-street, Truro; and Mr. BENNALLACK for defendant, a farmer of the parish of Ladock. The action was brought to recover GBP31. 12s. 7d.[?], the arrears of tithe rent-charge alleged to be due by defendant, to the 1st of July last, as occupier of an estate called Penhale, in the parish of Ladock, which sum had been paid by plaintiff, as owner of the estate, to the Rev. RICHARD FARQUHAR WISE, rector of Ladock. The action was brought under an act of Parliament passed in the present year, 14th and [..h?] Victoria, c. 25, s. 4, - "That if any occupying tenant of land shall quit, leaving unpaid any tithe rent-charge charged for or upon such land, which he is by the terms of his tenancy or holding, legally or equitably liable to pay, and the tithe-owner shall give, or have given notice of proceeding by distress upon the land for recovery thereof, it shall be lawful for the landlord, or the succeeding tenant or occupier, to pay such tithe rent-charge and any expenses incident thereto, and to recover the amount or sum of money which he may so pay over against such first-named tenant or occupier, or his legal representatives, in the same manner as if the same were a debt by simple contract due from such first-named tenant or occupier to the landlord or tenant making such payment." Mr. Bassett was then called and deposed that he was the owner of Penhale estate, and that Bone was his tenant up to Michaelmas last, and by the terms of his tenancy was to pay the tithes. Bone was tenant from year to year, having taken on the estate from his father. Defendant had said on different occasions that he was quite ready to pay the tithes. Defendant had lately sold off his stock; and plaintiff had since paid the amount claimed for tithes to the 1st of July, to the rector's agent. On cross-examination, witness said the estate was held by defendant at GBP110 a year, he never agreed to let it to him for GBP95, but as Bone was greatly in arrear, he told him if he would close his account he would allow him GBP15 a year. Plaintiff had distrained on defendant; had made him a considerable allowance on what he owed, but always told him he was subject to the tithes. The estate was so much out of condition, from the seeds not having been sown, &c., that it had been let to another tenant since Michaelmas, for a term of seven years, at GBP60 the first, GBP70 the second, GBP80 the third, and GBP90 yearly for the remainder of the term. Mr. Hockin also produced evidence to show that a formal notice of distress for the tithes had been served by the [...ctor?] on Mr. FRANCIS, the present occupier of the estate. For the defence, Mr. Bennallack submitted that the act under which recovery was sought, was not retrospective in its operation; it received the royal assent on the 24th of July, and tithes to the previous lst of July were not recoverable by it. The only sum recoverable was that accruing after the act, and even that could not be sued for until the 1st of January, tithes being made payable by the commutation act, on the 1st of January and the 1st of July. The Judge said in this case all that was claimed was the amount due to the 1st of July; there was no claim for the quarter ending at Michaelmas. The act received the royal assent on the 24th of July, and its words were, that if any occupying tenant shall quit, leaving unpaid any tithe rent-charge, &c. Those words "shall quit" he thought showed the act to apply to the present case, defendant not having quitted till Michaelmas, whereas the act came into operation on the 24th of July; the verdict would therefore be for the plaintiff. Mr. Hockin applied for costs and for immediate execution; defendant, he said, had sold a large farm stock, and had now the means of paying the money. He then put questions to defendant, who stated that he has no farm at present, but lives with his friends, sometimes at one house, and sometimes at another. The Judge asked defendant when he would pay the money, to which he replied not until the next court. The Judge then granted costs, and ordered payment of the claim to be made on the 13th instant. WILLIAM BIRRELL v. JOHN and THOMAS McFADYEAN - Mr. CHILCOTT appeared for the plaintiff, and Mr. STOKES for defendants. This was an action for recovery of GBP36, balance alleged to be due to the plaintiff for salary, as the servant and traveller of the defendants, who are Scotsmen carrying on business at Truro, and in other parts of the county. The case lasted a considerable time, and it would be useless to enter into its minute particulars, but the following appeared to be the main facts of the evidence. The plaintiff was examined, and stated that his agreement with the defendants was that he should be paid GBP25 per annum; and that he had regularly attended to his duty, but had recently been discharged by peremptory notice of the defendants, without payment of his salary, and without any means being afforded him of returning to his own country. On cross-examination by Mr. STOKES, he admitted that his masters had charged him with having neglected to account for sales of goods, and monies received by him to a considerable amount; but said he had saved monies from the weekly allowances made to him for travelling expenses, and it was with those savings that he had made purchases of books, minerals, and other articles. He denied having failed to account to his masters; but admitted that in March last they had signed a written agreement with him, which dated back to April 1849, and by which he became bound to serve them for three years at a salary of GBP25 per year, to be paid at the end of the three years. He denied that his masters had offered to refer the question of accounts to any person accustomed to the trade, and he also denied that they had offered to give a week to him to go into the accounts, to ascertain whether they were correct or not. He stated that during the first year of his service, his accounts were found to be quite correct. For the defence, the Messrs. McFadden were both examined, and stated that on examining the books showing the deliveries of goods to the plaintiff, and his account of the mode in which they had been disposed of, it appeared that on the 25th of January last, plaintiff was deficient in cash to the amount of GBP17. 4s. and to October last, there was a further deficiency of GBP28. 8s. 3d. It appeared however, that these items of deficiency did not correspond with the particulars of set-off delivered by defendants in the case, which set-off showed a much smaller deficiency. Defendants further stated that they had since ascertained, by going round to the customers and comparing their receipts with the accounts plaintiff had rendered to defendants, that several sums appeared in the receipts which were not credited in the plaintiff's accounts. In particular, as regarded a customer named SEYMOUR, the sum of five shillings had been received by plaintiff which he had not credited, and for which he had afterwards gone with one of the defendants to her and demanded payment. The accounts of the transactions between the parties were very lengthy and complicated, and after considerable time had been consumed in the examinations of the parties, and flat contradictions given in the testimony on either side, defendants stating that they had offered to give a week to the investigation of the accounts, or to leave the same to a reference, which plaintiff persisted in denying - the Judge recommended a reference of the accounts to some person acquainted with such matters, and it was ultimately arranged that the same should be referred to Mr. WILLIAM CLYMA, of Truro. ST. AUSTELL - At this court on the 4th instant, thirty-two cases were entered. STOCKER and OTHERS v. TRUSCOTT was a trial by jury. It appears that the parties are clay merchants, and defendant had refused to pay a portion that was claimed of land money, out of which arose the present action. The case was one of difficulty, there being several points of law in the question at issue. The jury decided in favour of plaintiffs, for GBP30. 17s. 6d. Mr. BISHOP of Fowey, appeared for plaintiffs, and Messrs HODGE and HOCKIN for defendant, who gave notice of appeal. FALMOUTH - COMMITTAL FOR PERJURY - At this court held on Saturday the 6th instant, there were forty-seven cases for trial, none of which were of public interest excepting the case of HANNIBAL LYNE JOHNS v. THOMAS BOLT. Plaintiff is a colt gelder, living at Cury, near Helston, and the defendant is the hind to Messrs. FREEMAN, the granite contractors, and resides in Constantine. Mr. MOORMAN appeared for plaintiff, and Mr. BAMFIELD for defendant. The action was brought to recover GBP1. 16s. for gelding a colt, and for three visits afterwards at Main Farm, in Constantine, and which colt plaintiff said he had agreed to risk or guarantee for GBP16 at Penryn May fair, if the colt should break his legs during the operation or die within ten days therefrom. Defendant admitted he had spoken to plaintiff at Penryn May fair about gelding a colt for him, but nothing was said as to the price by either party, nor anything about risking or guaranteeing of the colt, not had he known or heard a word about risk or guarantee until some time after the operation was performed and just before the action was brought. Plaintiff declared the work was done in the forenoon, and took him about two hours, whilst defendant and two witnesses who assisted, said it was completed in about half an hour, and was all over by eight o'clock. Johns after having been to an adjoining farm, returned to where Bolt was in a field sowing carrots, when Bolt said, "what have I to pay you?" Johns replied, "I shall charge Squire Freeman a guinea." Bolt said, "no, the usual price in the neighbourhood is 2s. 6d., but as you had no refreshment in the house here's 6d. more making 3s." Johns still persisted in his charge of 21s., and to get rid of him Bolt offered him 5s., which he refused saying, "I shall take the law of you if you do not pay me." Three workmen who were in the field at the time and heard what passed, stated in evidence that the money was tendered, and that Johns mentioned nothing about risk or guarantee. Mrs. Bolt, (defendant's wife) said that Johns came to her at the farm house after leaving Bolt in the field, and told her. "I have been to Mr. Bolt for my money and he won't pay me but 5s. for what I have done, when my charge is a guinea." Twelve witnesses were subpoenaed in the cause, and after some of them had been examined, his Honor said perjury had evidently been committed, and requested Johns to be placed in the witness box again, and stating that notes would be taken of what he said, he asked him if on the day of the operation, or at any other period before the 31st of May, he had asked for any sum or sums of money from Bolt? To this Johns answered that he had not. His Honor then asked if he had said to Bolt, at Penryn fair, anything about risking the colt for GBP16. To this he answered, that he had. After the examination of several other witnesses, who contradicted Johns in several points, his Honor said that he had determined to make an example of the first party by whom perjury was committed, and there could be no doubt but that Johns had been guilty of wilful and corrupt perjury, he should therefore commit him to take his trial at the next goal delivery for the county, giving him the opportunity of finding bail, himself in GBP50 and two sureties in GBP25 each. The necessary bail not being found, the defendant Bolt was bound over to prosecute at the next assizes, and the warrant of committal was placed in the hands of the high bailiff, and in the course of the evening, prisoner was handed over to the contractor for conveyance to Bodmin gaol. HELSTON - At this Court on Monday last, amongst others the following cases were tried:- SAMPSON NICHOLLS, v. JAMES BISHOP and MICHAEL SAUNDERS. (In replevin) This case was heard at the last court, of which we gave a full report. Two points of law having been reserved for argument, - first, that there was no fixed rent, and secondly, that the distress on the plaintiff Nicholls under the notice was illegal. Mr. ROGERS and Mr. PLOMER appeared for the plaintiff; Mr. HILL for the defendant. His Honor, after hearing the arguments of the learned advocates on the points reserved, gave a verdict for the defendants. JAMES ROSKRUGE, v JAMES CADDY and EDWARD CROSSMAN - Distress for Rent - The damages in this case were laid at GBP42. 14s. 6d., the particulars of the plaintiff's demand charged the defendants with having made an excessive distress, with charging more than reasonable costs and expenses for the distress, and for selling beasts of the plough, there being other goods and chattels on the farm liable to be distrained, and sufficient to meet the amount of rent due. Mr. PLOMER and Mr. HILL appeared for the plaintiff; Mr. ROGERS and Mr. PASSINGHAM, for defendants. The case excited considerable interest. Several witnesses were examined and from their evidence it appeared, that on the 24th of September, 1849, the plaintiff took of Captain CADDY, the defendant, the farms of Kestle and Polhore, in the parish of Manaccan, under the following agreement:- "Falmouth, 24th September, 1849, - I hereby agree to accept Mr. JAMES ROSKRUGE, as my tenant on Kestle Wartha and Polhore, for seven years, from the 29th day of September instant, paying me for the first year at the rate of GBP80, the following years to be dependent on the rise or fall of the price of corn. James Caddy. "-The plaintiff entered on the estate and still resides there. In July last plaintiff had some idea of emigrating, and arranged with Captain Caddy to quite the estate at Michaelmas last. Captain Caddy obtained a tenant, but Mr. Roskruge altered his mind, and interviews took place between them, for the purpose of fixing the amount of rent for the future. They could not agree and on the 29th of August last, Capt. Caddy's solicitor sent the defendant Crossman, to distrain for GBP88, rent due on the 24th of June, 1851. Crossman seized about GBP145 worth of sheep, bullocks, and horses, and continued in possession of them until the day of sale. During this time a negotiation took place between Mr. Roskruge's friends and Mr. PASSINGHAM, with the view to an amicable arrangement, but no terms were come to and on the 4th of September, last, Mr. GREENWOOD, auctioneer, of Truro, attended at Kestle, and sold the following cattle:- Fifteen sheep for GBP18. 7s. 6d.; two oxen for GBP20; one cow for GBP4. 7s.; total GBP42. 14s. 6d. This amount was appropriated thus:- GBP28 for rent, and GBP14. 14s. for costs of the distress. It appeared that only GBP28 could have been distrained for, as the plaintiff was a yearly tenant under the agreement. At the time the distress was levied there was a considerable amount of property which might have been distrained, besides the working oxen and sheep. Mr. Rogers addressed the jury on behalf of the defendants, contending that the plaintiff could have suffered but very small damage, as the cattle were taken at the time of the year when they were of little service to the plaintiff in his farming pursuits. The learned Judge with his usual ability, carefully summed up the facts of the case bearing on the particular charges of complaint in the plaintiff's particulars, and told the jury that if they were satisfied sufficient property was on the estate liable to be distrained, independent of the sheep and beasts of the plough, they would have to find a verdict for the plaintiff for GBP38. 7s. 6d., the amount for which they were sold, and he considered there were charges in the distress which the tenant could not be fairly called on to pay, and it would be for them to consider if the plaintiff was entitled to the full amount he claimed. The jury, after a short deliberation found a verdict for plaintiff for GBP42. 14s. 6d. PENZANCE - Mr. HENRY MURRAY, of Liskeard, has been appointed High Bailiff of the Penzance County Court.