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1862.

HALL

บ.

SEMPLE.

the authority of the act? I assume from what you have found, that you mean he bonâ fide believed he was acting under the authority of the act, and that he was authorized by the act to do what he did?

The jury.-Yes, we think so. He thought he was authorized, although he did it negligently.

The learned JUDGE.-Then, that is a verdict for the plaintiff on the ground of culpable negligence and want of reasonable care or probable cause.

Jury.—Yes.

Verdict for the plaintiff, damages, 1501.

Middlesex

Sittings. Michaelmas

Term.

having been

engaged by wharfingers to land bags of guano (at so much a ton) and carry them

Coram Cockburn, C. J.

FLETCHER v. PETO, BART., AND ANOTHER.

The plaintiff DECLARATION, that the defendants were possessed of a warehouse, and, by their servants, were storing and piling up therein bags of guano; that the plaintiff was lawfully, and by permission of the defendants, passing about the warehouse; and that the defendants, by their servants, conducted themselves so negligently in and about the storing and piling of the said bags that some of them fell down and struck the plaintiff, whereby he was much injured and his leg was broken.

into a warehouse, where

they were piled

by their daylabourers, and the plaintiff having been injured by the fall of some of the bags through bad piling:-Held, that it was for the jury, in an action by him against the wharfingers, whether the

piling was done by their men under a separate and dis

tinct employ

Plea: not guilty.

Lawrence and E. Lloyd for the plaintiff.

Bovill and Watkin Williams for the defendants.

The Victoria Docks were leased to, and worked by, the defendants Sir Morton Peto, Mr. Brassey and Mr. Betts, and it was admitted by them that they were "the proper parties to be sued in respect of claims arising in the working of the docks."

ment, and if so, whether the fall of the bags was caused by their negligence, or that of their men and the plaintiff combined, and that in the former case the verdict should be for the plaintiff; in the latter case, for the defendants.

1862.

FLETCHER

บ.

PETO

The warehouses at the docks were used for the purpose of storing guano, the bags of which weighed about a hundredweight each, and which were piled up to the very roofs, in order, as far as possible, to comprise a cargo and Another. in a warehouse, and also as much as possible, so as to be self-supporting, and not resting on the sides of the buildings.

The work was done by contract; the bags being landed, warehoused and piled at so much per ton, the ships being brought alongside the wharf for the purpose.

On the 12th August, 1861, a ship, the Euphrates, laden with guano, came alongside for the purpose of discharging her cargo, and the manager engaged with the plaintiff to land, store and pile at ls. a ton. There was some attempt on his part, in the course of the work, to get a higher rate for the storing and piling above the cross beams of the roof, up to the roof, but this was declined. Two men, however, employed at day wages by the defendants, were sent to assist, and his case was that they were sent by the defendants to do the piling above the cross beams, while their case was that they were sent, instead of allowing him an advance of price, to assist him in doing the entire work up to the roof.

The case for the plaintiff was, that their men acted under the orders and control of the defendants.

The case for the defendants was, that they acted under the orders and control of the plaintiff.

In point of fact, the bags which fell were part of those above the cross beams, between those beams and the roof; and at the time they fell on the plaintiff he was below the beams and the defendants' two men were above.

The defendants' men and the plaintiff and his men were called, and their evidence was contradictory as to the exact part which they were respectively taking in the work.

The evidence for the plaintiff was, that he had nothing to do with the piling of the bags above the cross beams; that it was in effect undertaken by the defendants; and

VOL. III.

D D

F.F.

1862.

FLETCHER

v.

PETO

and Another.

that his part was only to bring the bags up to the cross beams or the pile upon them, and shoot or deposit them there, the defendants' men piling them. And of course his case was that they were badly piled, nor did this, indeed, seem to be disputed; the men on each side, in fact, swearing that they had observed to the men on the other side how badly the piling was being done, and how likely some of the piles were to "topple over;" the fault appearing to have been that the piles of bags were not properly "tied" on to each other so as to be a mutual support; instead of which each pile was separate, and one of the piles being "top heavy," or too high for its breadth, fell down.

The great contest was as to whether this piling was being done by the one party or the other.

The effect of the evidence for the defence appeared to be, that the act of piling was a kind of joint act of the plaintiff's and the defendants' men; the former bringing up the bags and giving them a cast or shoot with the shoulder; the latter receiving them with the hand, and then putting them into their proper places.

And as, beyond doubt, the defendants' men were above and remained stationary, while the plaintiff and his men were bringing up the bags, the effect of the whole evidence would seem to be, that the act of piling was really the act of the defendants' men, but that the plaintiff was aware they were doing it badly, and noticed it.

At the close of the plaintiff's case,

Bovill, for the defendants, cited Wiggett v. Fox (a), and claimed a nonsuit on the ground that the negligence was that of the fellow-servants of the plaintiff; but

COCKBURN, C. J., said he thought that question arose here in rather a new form; because, according to the case for the plaintiff, the negligence was that of men in a sepa

(a) 11 Exch. Rep. 839.

1862.

FLETCHER

v.

PETO

rate employment, although for a common object. The plaintiff here was not, as the defendants' men were, employed for wages, but under a separate and specific contract, and, according to his evidence, to do specific work, and Another. viz., the landing the bags and bringing them up to the cross beams; the rest of the work, i. e., the piling above the beams, to be done by the defendants' men; he doing only the carrying. That raised a question of fact for the jury.

Bovill then called the defendants' manager and the two men who had been sent to assist. They said they were to assist him only in piling the bags above the beams, not in the landing or carrying.

At the close of the case,

COCKBURN, C. J. (to the jury).—First, was there a separate and distinct employment of the plaintiff to do only the landing and carrying of the latter portion of the cargo, the defendants undertaking to pile them above the cross beams, or were the defendants' men sent merely to assist the plaintiff in doing the work he had originally undertaken, viz., to land, carry and pile the whole of the bags up to the roof? Or, were the men who did the piling of these bags under the plaintiff's control or under the defendants? If the latter, then was the negligence that of the plaintiff and his men, or of the defendants' men? Or of both?

The jury found the first question for the plaintiff, but the latter for the defendants; finding, in terms, that the negligence was that of all the parties together.

Verdict for the defendants (a).

(a) Lawrence moved, H. T., but took nothing.

1862.

Middlesex Sittings. Michaelmas Term.

The plaintiff, a barrister, who, after becoming an

M. P., was made Q. C., and also a recorder, having been partly acquitted and partly censured by the benchers of his Inn after an inquiry into his conduct, private as well as professional; and having afterwards, on a public platform, alluded to their sen

SEYMOUR v. BUTTERWORTH.

LIBEL. The action was against the publisher of the Law Review for an article therein relating to the plaintiff, a Queen's Counsel and member for Southampton.

The declaration set forth the whole of the article at length; the material passages (after stating that the plaintiff was an Irishman) ran as follows:

But it is only just to Mr. Digby Seymour to admit that there are two kinds of Irishmen, and that the cordiality extended to the one is by no means secure to the other. There is the Irish gentleman, generous, accomplished and urbane-perhaps the highest type of the genus gentleman to be found in the United Kingdom. There is also the Irish blackguard-swaggering, foul-mouthed and shameless; the most insolent of upstarts, the most unblushing of swindlers; never destitute of a quarrel, never at a loss for a lie. For, as the Irish gentleman is of rare quality, so the Irish blackguard is consummate in his growth. Ireland has adorned our Parliament with splendid orators and consummate statesmen, and has afflicted it also with a breed of bawling demagogues and venal fools: has supplied to the bar of England some of its brightest ornaments and some of its blackest sheep; bestowing on the former a learning and eloquence which Englishmen are proud to admire, and enriching the latter their sentence, with a power of impudence and a fertility in fraud which defy all description, as (to the uninitiated intellect) they pass all knowledge. Should one of this latter flock find his way to an English circuit, it could hardly be considered a matter for legitimate surprise if he should become an object of suspicion and dislike, and “hic niger est " be the motto coupled with his name. But We never were able

tence as one of
acquittal;
upon which

they published

and he pub

lished a pro

test and a let-
ter, in which
he impugned
their proceed-
ings and their
decision as un-
just. The de-
fendant, in a
legal review,
published an
article fairly
setting forth
these docu-

to discover that Mr. Digby Seymour, during his first sojourn in the House of Commons, added in any appreciable degree either to the usefulness or the brilliancy of that assembly; we are not aware that any measure was secured by his exertions, or any principle elucidated by his oratory, or any party at all benefited by his adherence, save in the matter of his vote.

ments, with comments, and also a narrative of the plaintiff's career, mixed up with some general reflections on his character, and particular observations, suggesting that he had obtained his appointments by parliamentary influence or services. In an action for libel for the publication of this article:-Held, that-

1. That the matter of those appointments was a legitimate subject of public comment. 2. That even the private conduct of the plaintiff might, as tending to show whether he was a man of honor and integrity, be also legitimate subject of such comment.

3. That, as the plaintiff had in a public speech alluded to all these matters, they were all legitimate subjects for such comments as were fair, and not, in substance, going beyond the matters which were the subject of comment.

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