Saturday 16 Aug 1823 (p. 2, col. 6
? p. 3, col. 1)
CUMBERLAND SUMMER ASSIZES.
FLETCHER v. BELL.
(At the request of a correspondent, we report this trial rather more fully than in our last.)
Mr. TINDAL opened the pleadings, and Mr. BROUGHAM detailed various facts to the Jury which came out in the evidence. Francis GOLIGHTLY
sworn.?I live at Greysouthen. Mr. BELL, the defendant, had a farm there; and I saw the plaintiff's horses and people ploughing, harrowing, and sowing, in a field called the Landhills, on it, at the latter end of March, 1822. Both parties were on the ground. BELL pointed out the hedges to Mr. FLETCHER as they went along, saying that they (the repair of them) belonged to another person. Mr. John STEEL
, solicitor, Cockermouth, examined. I was employed by Mr. BIRBECK to go to Messrs. Richd. and William BELL, two brothers, to endeavour to purchase an estate of theirs at Greysouthen, on the 26th of April, 1822. The treaty ultimately went off; but before that took place, Mr. FLETCHER was present at a meeting acting for Mr. BIRBECK.* It was remarked by one of the parties, that almost all the estate had been sown; and Mr. FLETCHER proposed that he should finish it, and be let into possession; but I do not recollect either assent or refusal. On Saturday the 10th of May, another meeting of both the BELLs and Mr. FLETCHER took place; the parties then differed, and there was an end of the contract which had been signed at the first meeting; but the agreement was not destroyed?I gave it to Thomas BELL. Mr. FLETCHER afterwards said if the agreement were given up, he expected to be paid for what he had done. Mr. Thomas BELL was not present at that time; Mr. Richard seemed pleased that the bargain had fallen to the ground, and he said, certainly Mr. FLETCHER should be paid. In consequence of what the latter subsequently said to me, I applied to the BELLs to know why they did not pay him: the first reason I heard given was, that Mr. FLETCHER had not himself demanded it, nor given in a bill. On telling Mr. FLETCHER this, he gave me a bill, which I handed to Mr. Richard BELL, who said he would consider of the matter. Subsequently, I spoke to Mr. Thomas Bell on the subject, and his answer was, that Mr. HARRISON (ultimately the purchaser of the property at a better price than had been agreed for on behalf of Mr. BIRBECK) had reaped the benefit.
Cross-examined by Mr. SCARLETT (who led for the defendant)?By agreement, Mr. BIRBECK was not to have possession till he had given security for payment of the money. I considered myself as acting for both parties at the negociation, and Mr. FLETCHER as Mr. BIRBECK's immediate representative. Bath STAGG
sworn.?In April 1822, I was employed by Mr. FLETCHER as an husbandman, and I recollect his beginning to work the land at Greysouthen on the 29th of April. I plowed and sowed seven or eight acres?sowed 12 bushels of oats, and 12 bushels of barley.
Mr. SCARLETT?If you are entitled to any thing, I will not dispute the amount.
Mr. BROUGHAM?Unless your Lordship thinks we have not fixed both Thomas and Richard BELL, that is my case.
Mr. SCARLETT?Then by all means go on, for you have not fixed either of them.
Mr. Justice HOLROYD?Go on if you think you can strengthen yourself.
Mr. SCARLETT?There is no case?neither of them is fixed. The promise given by one, they being joint owners, cannot bind the other, and the action is against both. Besides, Richard's promise was without consideration. Mr. STEEL has proved that he was not to let into possession till security were given.
Mr. BROUGHAM?Oh, dear, no; FLETCHER was not agent to BIRBECK. They knew distinctly that we had entered, because our first witness proved that one of the joint owners was there shewing the hedges; and on Mr. STEEL's speaking to them separately, neither denies knowledge of the other's acts.
Mr. Justice HOLROYD?What consideration is there?
Mr. BROUGHAM—The consideration is entering and sowing, and giving up possession with our seed in the ground.
Mr. Justice HOLROYD?I do not see any promise.
Mr. BROUGHAM?Then, my Lord, we will call another witness.? Henry DALTON
sworn.?On the 26th April and 10th May, I was present with Mr. FLETCHER and Messrs. BELL. It was expressly understood by all the parties that no possession was to be obtained till Mr. BIRBECK paid a deposit of ?200, and gave a promissory note, payable at a month, for ?5,300. At a late part of the 26th, when only Mr. Richard BELL was in the room, I mentioned that Mr. FLETCHER had a desire to sow some of the land before the 10th of May (the time fixed for taking possession) and that I hoped they would not have any objection, as I thought it was quite right. Richard BELL said he had no objection at all. On the 10th of May, after we had all met, and Mr. STEEL was ready with the necessary papers, the agreement was off, and BIRBECK went away. Then I said, 'Mr. FLETCHER and Mr. STEEL, will either of you complete the contract?' They both replied they would not, for they did not consider themselves under any obligation to do so, as Mr. BIRBECK could not confirm it. Some words then followed, not of an agreeable nature; but all except BIRBECK at last sat down to dinner, as one had been previously ordered; and after the repast, (Mr. Thomas BELL having retired) Mr. FLETCHER asked, "Who's to pay me for what I have done?" Instead of answering directly, Mr. R. BELL began by asking FLETCHER if he would give up the property, and Mr. F. rejoined "We have given it up." Then Mr. BELL (who had by this time drank rather too freely) desired Mr. FLETCHER to desist from asking such questions; and elevating his hand over his head, he said, "I'LL PAY THEE!" (A laugh.)
Mr. SCARLETT?So then Mr. Richard BELL was much in liquor, and Thomas had gone away in ill humour?
Witness?Yes, just so.
Mr. SCARLETT?Oh, very well.?There is no alteration for the better, I think, my Lord?
Mr. Justice HOLROYD?I still do not see any consideration.??Plaintiff Nonsuited
* Mr. FLETCHER intended to have entered as tenant upon the farm in question, had the bargain with Mr. BIRBECK been completed.
[to be continued
] Reproduced with kind permission of British Newspaper Archives