v.

Cooper.

[ *108 }

LEUCKHART Consignor to stop in transitû : that is, in effect, that this right of general lien shall not operate upon or *against the rights of third persons. And the doctrine laid down in Wright v. Snell (1) bears still more closely upon the point now under discussion; a general lien being held not sustainable by a carrier against the true owner of the goods for the general balance due from the factor to whom the goods were consigned for sale. That case, in effect, decides the present; for no sound distinction can be taken in this respect between a public warehousekeeper and a public carrier, except, indeed, that the latter stands in a position more favoured by the law in respect to lien than the former; the carrier being obliged by law to receive and carry the goods, whilst the warehousekeeper's claim arises out of a voluntary contract. And the the present case appears to us to differ from that of George v. Clagett (2), principally relied on by the defendants. In that case the owner put his goods into the hands of his factor to sell as his own; the factor sold them as his own, and the defendant had no knowledge that the factor was not the real owner of the goods: in such case the set-off of the debt due from the factor to the purchaser followed as a necessary consequence from the sale by him as of his own goods. But in this case there was no sale by the factor; but the proposition contended for is, that the goods became, by the operation of the custom, pledged for the factor's debt, though the factor was not authorised by law so to pledge them directly. And although the factor may now, under some circumstances, pledge, the facts of the present case do not bring it within the operation of the statute 6 Geo. IV. c. 94.

[ *109 ]

It is unnecessary, as a further objection to the custom set up by this plea, to observe that it is pleaded so largely as to comprehend all goods put into the hands of a warehousekeeper by a factor in his own name, *whether or not the warehousekeeper has knowledge or notice that they are not the property of the factor, but of the foreign merchants. But, without relying on this objection, we think the custom unreasonable, and therefore bad upon the more general ground above stated, and therefore give our judgment for the plaintiff, non obstante veredicto. Judgment for the plaintiff accordingly. (2) 4 R. R. 462 (7 T. R. 359),

(1) 24 R. R. 413 (5 B. & Ald. 350).

MELLIN v. TAYLOR.

(3 Bing. N. C. 109-112; S. C. 3 Scott, 513; 2 Hodges, 125; 5 L. J. (N. S.)

C. P. 346.)

A jury having found a verdict for the defendant in an action of crim. con., the Court granted a new trial on the ground that the verdict was against the weight of evidence, notwithstanding there was some evidence for the defendant.

THIS was an action to recover damages for criminal conversation with the plaintiff's wife. The plaintiff was а manufacturer, the defendant an attorney: both apparently opulent.

At the last Yorkshire Assizes, before Lord Denman, Ch. J., the case proved against the defendant shewed, in substance, that, in violation of a promise given by him to the plaintiff, he had been repeatedly in company with the plaintiff's wife during the plaintiff's absence. A boy and man deposed to an act of criminal intercourse by daylight, on a stile in a public footpath the defendant was proved to have admitted that upon that occasion he had been at the stile in company with the plaintiff's wife; he denied the act imputed; but accounted for his being in the lady's company by a statement which was proved to be false. A female servant deposed to another act of criminal intercourse under improbable circumstances in the plaintiff's library. Another female servant, whose reputation for chastity, however, would not bear examination, said she saw the defendant come out of a dark closet in the plaintiff's breakfast-room. A groom and his companion, who were on the watch, said they saw the plaintiff's *wife, during the plaintiff's absence, let the defendant into the house at half after eleven at night, with his boots in his hand: at two in the morning he went away with his boots on. And a butcher said he saw the defendant go with the plaintiff's wife into a stable, and remain there half an hour. For the defendant, Seventeen witnesses were called, the tendency of whose evidence was to shew a variety of contradictions, inconsistencies, and discrepancies, in the testimony adduced on the part of the plaintiff. But the chief topic of defence, considering the station in life of the parties, was the improbability of the acts spoken to at the stile and in the library.

1836.

June 13.

[ 109 ]

[ *110 ]

MELLIN

V.

TAYLOR.

[111]

The trial lasted two days; and a special jury having found a verdict for the defendant,

Wilde, Serjt. obtained a rule nisi for a new trial, on the ground that the verdict was against the weight of the evidence. The learned Judge who presided reported that he was not satisfied with the verdict.

Cresswell, Alexander, Cowling, and Wortley, shewed cause: After relying on the improbability of the testimony given for the plaintiff, they contended that this was a case of conflicting evidence, in which the Court would not grant a new trial merely because a jury might have been warranted in giving a verdict the other way. Where there is evidence on both sides, it is not the practice to set aside a verdict because the Court may form an opinion as to the weight of the evidence different from the opinion of the jury: Anon. (1), Swain v. Hall (2), Ashley v. Ashley (3), Smith v. Huggins (4), Carstairs v. Stein (5), Belcher v. Prittie (6). To send this case to a new trial, therefore, would be an invasion of the province of the jury, and, under circumstances so peculiar, would insure a verdict for the plaintiff; a course, for which, in trials of this kind, there was less occasion than in any other, inasmuch as an opinion upon the guilt or innocence of the accused must be formed in a great measure from the appearance and demeanour of the witnesses, of which the jury were spectators, but of which the Court above must be entirely ignorant.

Wilde was heard in support of the rule, and the COURT took time to consider.

Cur, adr. rult.

TINDAL, Ch. J.:

We agree, that in every case in which the verdict has turned upon a question of fact which has been submitted to a jury, and there is no objection to the verdict, except that it is found, in the

opinion of the Court, against the weight of the evidence, the Court ought to exercise, not merely a cautious, but a strict and sure judgment, before they send the case to a second jury. The general rule under such circumstances is, that the verdict, once found, shall stand: the setting it aside is the exception, and ought to be an exception of rare and almost singular recurrence. The argument before us has gone the length of contending that if we send this case to a second trial we invade the province of the jury, and, in the particular instance before us, almost insure a verdict against the defendant. I cannot conceive how the benefit of trial by jury can be in any way impaired by a cautious and prudent application of the corrective which is now applied for: on the contrary, I think that, without some power of this nature residing in the breast of the Court, the trial by jury would, in particular cases, be productive of injustice, and the institution itself would suffer in the opinion of the public. And with respect to this particular case, I *can never persuade myself that, in the cautious manner in which we express ourselves as to the former verdict, a second jury will not exercise their judgment upon the facts brought before them with as perfect freedom, and with as little bias, as if the investigation was for the first time brought before that tribunal.

Strong observations have been made, that we cannot have the opportunity of giving an opinion on the demeanour of the witnesses at the trial. It is an observation which would apply to every case of a motion to the Court, as to some of the Judges, if not as to all. But in this case the learned Judge who presided at the trial had that opportunity; and he has reported to us that he is not satisfied with the verdict; a course which has in it no novelty whatever, but has been the constant practice from the earliest time at which new trials have been granted, and is acted upon every day. I shall, therefore, content myself with saying, that the present case appears to us, in some of its circumstances, of a very extraordinary character and nature, and that, as the evidence now stands, the verdict appears to us so much against the weight of the evidence, that before we can feel satisfied in giving the judgment of the Court for

MELLIN

V.

TAYLOR.

[ *112 ]

MELLIN

r.

TAYLOR.

the defendant upon the verdict which he has obtained, we think the facts of this case ought to be reconsidered by a second jury.

Rule absolute for a new trial, on payment of costs (1).

1836.

Nov. 2.

[219]

[ *220 ]

DAY v. BONNIN.

(3 Bing. N. C. 219–222; S. C. 3 Scott, 597; 2 Hodges, 207; 6 L. J. (N. S.)

C. P. 1.)

A cause, and all matters in dispute between the parties, being referred to arbitration, the arbitrators, "having heard the proofs and allegations of the parties touching the matters in difference between them," awarded, "concerning the same," that defendant should pay plaintiff 11/. 58. in full of all demands in the cause:

Held sufficiently final.

THE plaintiff issued a writ in debt for 117. 5s.

On the 6th of August, before any declaration had been delivered, the cause, and all matters in dispute between the parties were, under a Judge's order, referred to arbitration.

The arbitrator, by his award, after reciting the Judge's order and the rule of Court thereon, and averring that he had heard the allegations and proofs and answers of the parties, "touching the matters in difference between them," made his award “concerning the same" as follows; that all proceedings in the cause should cease, and that the defendant should, on the 12th of September, 1836, pay the plaintiff 117. 58. " in full of all demands in the cause."

Hurlstone, upon an affidavit that two claims were urged before the arbitrator, one of which was resisted and the other admitted, moved to set aside this award on the ground that it

(1) Wilde moved for the rule, on an alleged misdirection, as well as on the ground that the verdict was against evidence.

Evidence had been received, without objection by the plaintiff's counsel, of the happy terms on which the defendant lived with his own wife and family; and the learned CHIEF JUSTICE commented on this

evidence in his summing up: but the reception of the evidence, which was admitted to be improper, not having been objected to, the Court held that the comment on it would not of itself warrant the granting a rule for a new trial.

Upon the new trial a verdict was given for the plaintiff, with 1,0007. damages.