Court Of King's Bench, We...
Ifle LonD U1sIEF JUSTICE del vedet the Judgment of the Couit on the motion made in this case for a new trial. It mav be recollected that the proceedings originated in an inquisition in the Petty IBag.office, whereby certain salt-marshes on the coast of Lin- colnshire, containing about 453 acres, were found to be left of the sea, and of right to belong to the Crown. This inquisition waas tra- versed by Lord Yarborough, vho claimed the land as lord of the adjaceiit manor of Nortimoor, and who traverserl in his pleading that the land was left by the sea, and alleged that it was slowly, gradually, and imperceptibly formed by alluvia cast up by the sea, on the flux and reflux of the tide against the banks of which he was seized in fee. On the part of the Crown, issue was joined on the denial that thce ground was left of the sea, and the allega- tion that the soil was formed in the manner set forth hv the defendant was denied. These issu.es came on to be tried at the Lincoln assizes, when a verdict was found on both fer the lord of the manor. A mlotion *ras afterwards made for a new trial, on behalf of the Crown, and the Court directed that the facts proved in evidence shiould be set forthi in a special case, in order that they might be brought more fully and distinctly before them. This case was argued last term, and time was taken by the Court to consider of their jedgiment, which the Lord Chief Justice now proceeded to deliver. After adverting to the pleadings, his LoTdship observed. that they were not now required to give an opi- nion on the effect of the pleadings, or on the legal cotisequence of; the finding, but simply whether the verdict was sUpported by I the evidefice, or whether the case ought to be submitted to a second jury. Upon the fir.t issue, the distiniction between lands left dry bv the recession of the sea, and soil cast up by the, flux and rcfluux of its tides, was extremely plain to common ap- p rehension and the jury had been f'illy wvarrante(d in fieding tiat tiese mar2ues belonged to thit latter description of soil rather than the former. But the more materiHI question arose on the allegation of the defendtlnt, that this soil was graduallv atid iniperceptibly ca;st un) acainst the hanks: and this nuestion had been. in a measure. ar_ gued as if the Court had bcen clled on to decide on the effect of ad- . mitted facts, rather than on the facts themselves. The chief stress of the areument lay on the word " im-perceptiblv ;" and twvo expre- sions of Lord Hale were cited, to showv that he considered when. I ever the acquired soil could be ascertained by metes and hounds, it must not be regarded as imperceptibly formel. But it wouldapprar that the learned writer was speaking of the legal consequences of I accretion, and not explaining what imperceptible accretion was ; be.- causcit was obvioas that the 110ost imperceptible accretion must be- come perceptible jfiit proceeied for a course of vears. WVas there. then, evidence'to sustain thc verdict ? One witness said, that in four years he could perceive that the sea had receded; a second, that five or six yards had been gained in six or seven years; and though a third spoke of 1i5 or 100 yards in 26 or 27 years, and 30 or S0 vards In five years, vet he spokce so loosely, that no great reliance cotild be placed on theiaccuracy of his observations. U tnder these dircums-l tances, thc Court could not saty that the jury had done wroag in finding that this ground hadl been formed iy gradual, sloa, and imperceptible degrees; and therefore, without deciding on the effect of this finding, they were o f opinion t hat the verdict must stand, and that the rule for a new trial must be discharged.-.The rule w as ac- cordingly dislcharged. _tOBIuNSON V. TATTERSALL.. This was an action for money had and received by the defendant to the plaintiff's use. At the trial before the Lord Chief Justice at Guildhall, it appeared that Mr. Robinson, a gentleman of fortune, was attracted by an advertisement in the public journals to go to Tattersall's for the purpose of inspecting two horses whicli he wished. to purchase. The horses were described in the advertisement as accustomed to go together in a curricle, and as remarkable for the brillianev of their action. At Tattersall's, the plaintiffsaw the Goach- man of Prince Esterhazy, whose property the horses were, and asked to see those which had bieen described in the newspaper. The groom accordinglyshowed two horses, with wl-ich Mlr. Robinson w'as pleased, as the animals which wvere to be offered for sale. The plaintiff acortliogly bid for oneof the horscs,which was knocked down to him at 71 guineas, and proceeded to bid for the other. The biddings ad- vanced, but being anxious to secure tie pair, he bade for this horse 1701., but did rnot succeedi in obtainine it, and it vasa ultimAtely tuught ini for 2dO1., which, in the opinion of M.r. Robinson's groom, was mnore than its vlUe. 'rite horse of which be had beconee the purchlaser soon proved to be lame, and was returned to the defen.dant with a claim for the price. Air. Robitison accortiinglv sought to re- cover this sum, on the ground that the w1hole transaction was void by reason of fraud, as lie uras in:luced to bid for the one horse by the expectation that lie should be alloxed to parchase tile pair, wvhich expectation was held out b itheadvertisement, but which, it was utrgeti, there wac no intention to realize. On the part of the defendant, it was contended that the advertisement could not be receiveti inevidencs.Rs there was no proof that it was inserted by the authority either of Prince E3sterhazyorofthedefendant; but the Lord CbuiefJustice received it, and directed the jury to consider whlethier there was a boan.fide inten. tion tosubmit both horses to the hammer, or wh1ethier both were adver. tised in order to attract bidders, when it was only intend^d to sill one of them. The jury found a verdict for the plaintiff; but a rule was obtained in a former term to set the verdict aside, on the ground that the advertisement was improperly teceived in evidence, and that the jury had inferred fraud from very insufficient premises. Againstthisrule, M[r.SCARtLETT atnd iir. F. POLnocx now showed cause contending that the advertisemeitt was sufficientlv connectedt withi the defetndant bv tlhe conduct of Prince Estci hazy's servant, whom he permitted to shiow the horses, and that the qulces tion of fraud had been fairly leftto thejury, and rightly decided by thieir finding. M)r. GuRNEY, for the defendant, on the point of evidence, stre- nuously urged the danger of allowing theconduct orexpressionsofa coachmilan, accidentally present, and seeking, perhaps, merelY to obtain a small gratuity for showing his master's horses, to bind that master wher he had expresslypoinsed out a responsible agent in the person of Citheauctioneer. On the question of fraud, he (leclared his conviction that there never uvas a ease in which it was inferred fiom more slender grounds, as there was oniv the opinion of the plain- tiff's own groom, that the sum at!which the unsold horse wasibought in exceeded its value. The Judges deliberated for a considerable tine, after whicil The lORDn CHIeEF JUSTICE said, there was a doubt whether the advertisement was properly received in evidence, and perhaps not quite a uniformitv of opinion in the Court on that subject, though all the Judges were of opinion, that if it was rightly admitted, there was evidence to warrant the finding of the jury. They, therefore, thought it best that there should be a new trial, when the plaintiff might, if he should be able, produce more unexceptionable proof to connect the advertisement with the defendant. The rule for a newv trial was therefore made absolute. SITTING OF THE COURT. It was announced that, in obedience to His Alajesty's warrant, two or more of the judges will sit in the Grand Jury Room, from the 12Lh to the 20th July and from 25th October, till the commencement of .Michaelmas term, for the despatch of business in arrear. During this time the Lord Chief Justice will sit at Nisi Priues. r.4-)TT'R.'r OP WTVnIQ Rr.%Yr'.F4 -T-, 9P THE KINO V. LORD YAkBOROUGH.