Cambridge Independent Press 21 Dec 1872: Richard Toller owed by Francis Parsons for improvements to Anstey Hall Farm

COURT OF EXCHEQUER, Dec. 7th, 1872.

(Before the LORD CHIEF BARON and a Special Jury).

TOLLER V. PARSONS,

Counsel for the plaintiff: Mr. O’MALLEY, Q.C., and Mr. MEREWETHER.

Counsel for the defendant: Mr. MANISTY, Q.C., and Mr. BUSH COOPER.

Mr. O’MALLEY: May it please your lordship, gentlemen of the jury, the plaintiff in this case is a farmer, now carrying on business at Waterbeach, in the county of Cambridge, and the defendant is carrying on business at Trumpington, in the same county, and this action is brought upon an agreement, to which I shall have to call attention by-and-bye, for the amount of valuation as it is called, from the plaintiff to the defendant, under some rather peculiar circumstances. The plaintiff was tenant of the Trumpington farm, that which the defendant now holds of Mr. Foster, of Cambridge, and his father before him, I believe, for a very long period had been tenant of Mr. Foster of that Trumpington farm. The leases were renewed from time to time. The last lease was dated November 6th, 1862, and it was for 16 years. In the month of August, 1871, another farmer (who had been Mr. Foster’s tenant of the Waterbeach farm) died, and Mr. Foster was very anxious that the plaintiff should move from Trumpington to Waterbeach, and he proposed to him to give up the one and go to the other. Now the plaintiff spared no expenses upon his land, and he had his farm in a very high state of cultivation at this time, when it was proposed to him to give it up and go to Waterbeach, and he told his landlord that he was willing to assent to this proposition provided that he was paid by him or the incoming tenant, not only for the ordinary valuation between outgoing and incoming tenant, but for the unexhausted improvements, which had brought the farm up to the very high state of cultivation in which it was, and the benefit of which he had a right to expect for the next six or seven years of his tenancy that still remained there. That was assented to by Mr. Foster, and the defendant was found willing to take the Trumpington farm upon that arrangement that he was to pay the plaintiff for the unexhausted improvements. Those unexhausted improvements consist of different things. They are sometimes unexhausted improvements in the shape of drainage and things of that description; but they are also, and mainly improvements which are represented in the high condition to which the land is brought, and which is the great benefit to the tenant for the remainder of his term, and manure also. An agreement was entered into by the incoming and out-going tenant, on the 6th October, 1871. That was generally made the 6th October, between the plaintiff, as the outgoing tenant, and the defendant, the incoming tenant. The second paragraph is this: —

“Francis Parsons agrees to pay Richard Pancoust Swannell Toller, according to a valuation based on consuming prices, to be made by two valuers and an umpire in the usual way, but subject to the convenants [sic] in the lease of the said farm, from Charles Finch Foster to Richard Pancoust Swannell Toller for all fixtures and for all threshing and dressing of corn of this year’s growth (which Francis Parsons is to cart to any reasonable distance not exceeding four miles for the straw, chaff, etc.) and for all the root crops, hay and manure made last year, including the labour thereto, and also for all unexhausted improvements of the said Richard Pancoust Swannell Toller, on the said farm. Payment to be made within one week from the time when the decision of the valuers or umpire is made known.”

The award under that agreement was made on the 18th January, 1872, and instead of getting the money within the week after the award was made, the defendant has contrived at all events to put it off from payment till now, the end of the year. Two umpires are appointed, Messrs. Wisbey and Mann, than whom it would be impossible to select two better qualified men in Cambridgeshire. They appointed Mr. Attenborough to be their umpire in case they differed. He was not selected by the valuers, but by Mr. Mann, the valuer for the defendant. The plaintiff’s valuer accepted the umpireship thus proposed. He was a party to the doing of all to which I am going to call your attention. £711 is the amount of those things which are specified in their valuation for tillage and ploughing, and things of that description. With respect to the other matters, the manure and the unexhausted improvements, they could not agree. The umpire was accordingly called in, by a joint letter of Mr. Wisbey and Mr. Mann, who represented the defendant. He came and made his valuation, awarded a sum I think of £939 14s. 6d. for the unexhausted improvements. That made altogether the sum of £1,666, for which this action is brought. The defendant immediately got possession of his farm, and has been in possession of that farm ever since the month of October 1871. It appears that the defendant was dissatisfied with the amount. This valuation the defendant refused to pay, and the plaintiff is driven to an action. This action is brought, and the plaintiff avers in this action the circumstances which I have stated to you with respect to the quitting of the tenancy, the making of the agreement, and the award of the arbitrators. He also sues the defendant for the amount of the award, under what is called the money counts. The first is, he states, that he never made such an agreement as we set out. Their second one is a plea that “for a second plea the defendant says that a valuation was not made, as in the said first count alleged.” He then pleads a third plea, in which he sets out the agreement, the valuation, and the umpirage of Mr. Attenborough; and he states before the court that that is all that was done under the agreement, the object being to take the opinion of the court whether this award, having been made partly by Messrs. Wisbey and Mann and partly by Mr. Attenborough, was or was not an appraisement consistent with the agreement of the parties. The court held this - his Lordship presided at the time - they held, expressing an opinion that it was a very convenient way of carrying out such an agreement; that if that was the usual way it was a good carrying of it out. The court held that the plea was one in point of law. He has not pleaded as he might have pleaded, but inasmuch as there is nothing here now but the question of whether there was a valuation or not, whether that valuation was made in the usual way, it appears to me that this case ought not to occupy much of your time in the trial. I venture to submit the plaintiff is entitled to a verdict. If it was not, of course the defendant will have the advantage of it.

Mr. Henry Foard Harris, sworn; examined by Mr. MEREWETHER: I am a member of the firm of Eaden, Harris, and Knowles, of Cambridge. On the 6th of October I prepared the agreement which is now admitted and put in. There was a great deal of discussion between the parties upon the precise terms, with reference mainly to unexhausted improvements.

Cross-examined by Mr. MANISTY: It was not part of the discussion whether the lease was to be valued. It was mentioned that the landlord declined to have it discussed, as he declined to grant a license to assign the lease at all. Mr. Foster, the landlord, was present.

Mr. Charles Wisbey sworn; examined by Mr. MEREWETHER: I am a land valuer at Cambridge; I know Mr. Mann very well indeed; he has carried on business at Cambridge as a land valuer a great many years. He is a gentleman of great experience in the usual conduct of valuation. I went over for the plaintiff to see these tillages, and met Mr. Mann for the defendant. We appointed our umpire when we were on our way to the farm. Mr. Mann said, “Mr. Wisbey you and I are going upon a very important valuation; I think it right that we should appoint an umpire.” My answer was “Agreed.” He then said he thought it should be some one who had nothing to do with the town or county of Cambridge. I said, “Very well, who will you name?” He said, “Mr. Richard Attenborough.” I knew him to be a highly respectable man. He said “He is a very competent man, and one that I am sure will do justice to all parties.” I said I did not know Mr. Attenborough personally, but from what I had heard of him I would accept him as an umpire.

Mr. MEREWETHER: Just look at the upper part of this and see whether that is the valuation, the amount, and subject matter that you made. Compare the two and see it they are right.

Witness: I have no doubt whatever about it.

Mr. MEREWETHER: The heads are “tillage, seeds, labour, yard, crops, and hay,” and did you arrive at those figures with Mr. Mann without disagreeing? You agreed ultimately to those figures with Mr. Mann?

Witness: I did.

Mr. MEREWETHER: That left the other things undecided. What did you do about them? What was said by you and Mann?

Witness: Mr. Mann would not go into the valuation of them, but we referred it to the umpire.

Mr. MEREWETHER: What did Mr. Mann say when he would not go into it?

Witness: My impression is, Mr. Mann said “I won’t go into that; you and I are not likely to agree upon it.”

The LORD CHIEF BARON: What was the subject?

Witness: Unexhausted improvements.

Mr. MEREWETHER: Rather a wide subject. In consequence of that you had to send to Mr. Attenborough?

Witness: Yes.

(Letter read. 17th October, 1871. Signed Charles Wisbey and J.R. Mann, addressed to Mr. Attenborough. “Dear Sir, — Mr. Wisbey and myself have appointed you umpire in an important valuation at Trumpington, between Mr. Toller and Mr. Parsons, and shall be glad if you will give us an interview at your earliest convenience, that we may give you instructions. Please let it be at Cambridge, and give us three to four days to select one from”)

Witness: Mr. Attenborough came to Cambridge. We discussed the matter before the umpire. Mr. Attenborough then asked us to accompany him over the farm. We three went together.

The LORD CHIEF BARON: I understood you met first at your office at Cambridge; talked the matter over; went to the farm, and based three hours or thereabouts on the farm. What did you do during those three hours.

Witness: I had put in a claim. Remarks were made upon it by myself and by Mr. Mann. Mr. Attenborough inspected the farm. My claim was on account of the unexhausted improvements upon each field.

Mr. MANISTY: I must have that paper.

The LORD CHIEF BARON: Are you to consent that the witness shall say, “I handed him a paper”?

Mr. MEREWETHER: That is quite sufficient for me.

Witness: Mr. Attenborough heard what he had to say about it. They came to my office afterwards. Some fortnight before the award was made; in the beginning of January. Mr. Attenborough then asked us some questions and we answered them.

[The award was put in and read]

Cross-examined by Mr. MANISTY: “For all fixtures and for all threshing and dressing of corn of this year’s growth, and for all the root crops, hay, and manure made last year, including the labour thereto.”

The LORD CHIEF BARON: That is very intelligible. In this tillage the 23 acres and 9 acres, which you have included in your valuation to the amount of £722 4s., is that included under that part of the agreement which that gentleman has just read?

Witness: I do not think it was: I think you will find something in the agreement further on where it will come out.

Mr. MEREWHETHER: The witness is right.

The LORD CHIEF BARON: There are some words beginning “all ploughing.” You say “It is under those words I valued this tillage.”

Witness: Yes.

Mr. MANISTY: It tells you of what matter or matters a valuation is to be made.

The LORD CHIEF BARON: Under these words — “I valued the tillage.”

Mr. MANISTY: And it tells you that you are to include ploughing and threshing and manure spreading since harvest, in the valuation, and I agree they were; and I do not deny they were to be paid for, but you were to value also all unexhausted improvements, and I ask you, is not the ploughing and dung-carting and threshing which had been done since harvest - is not that included under the head of unexhausted improvements?

Witness: Certainly not.

The LORD CHIEF BARON: He says that is not the way he reads it: “I do not consider the various items you mentioned included in unexhausted improvements.”

MONDAY, Dec. 9

The Court commenced this morning with the continuation of Mr. Wisbey’s examination in chief.

The LORD CHIEF BARON: You were inquiring about this tillage, and I collected from the form of the questions that you wanted to make out what was included in the terms “unexhausted improvements.” Do let me understand, then, that we may not uselessly consume the time: is your object in that course of inquiry to show that the same thing has been done twice over?

Mr. MANISTY: Yes.

The LORD CHIEF BARON: That is included in the valuation of the arbitrators, as we call them, that is the original valuers, and also in the valuation of the umpire.

Mr. MANISTY: In substance that is so.

The LORD CHIEF BARON: Do you suggest that the same thing has been valued twice over?

Mr. MANISTY: I suggest this: that in point of fact, as the umpire says, and states on the face of the document put in on Saturday, the two valuers agreed until they came to the two items: “and not agreeing in their opinion as to the nett value of manure and labour thereto, and for unexhausted improvements, they appointed me their umpire.“ Now, what I am going to show is that the valuers first valued several matters which come under the head of unexhausted improvements. I say that is one of my prepositions which I have to establish. Another is this. We have gone into questions of value as to the matters which were unexhausted improvements. The umpire says, and I must take it to be true, “They referred all unexhausted improvements to me.”

The LORD CHIEF BARON: No, the language means this. And for a second plea the defendant says that “a valuation was not made as in the said first count annexed.” And the first count, after setting forth enough of the agreement to lead to what follows is — and now here comes the allegation — “And the valuers and umpire were duly appointed, and such valuation was made and accounted to the sum of £1,650 18s. 6d.” I am of opinion that you cannot go into any questions as to whether it was made in this way or that way. It is merely a traverse of the allegation that the valuation was made.

Mr. MEREWETHER: There is only that second plea. The third plea is only for the purpose of the validity of the agreement, which your lordship was already disposed of. It is under appeal to the Exchequer Chamber, but it is disposed of as far as it is gone.

The LORD CHIEF BARON: The third plea is merely to set forth.

Mr. MANISTY: That third plea your lordship may no doubt dismiss. It was put there because there was an averment in the declaration that all conditions precedent were performed.

The LORD CHIEF BARON: Will you just let me know what is the part of this plea under which you propose to enter upon this inquiry?

Mr. MANISTY: Under the second plea.

The LORD CHIEF BARON: I have told you you cannot. The second is merely as to the making a valuation. There is no other mode of raising the point you wish but moving for a new trial.

Mr. MANISTY: We are quite willing to pay a large sum of money and go into that question.

The LORD CHIEF BARON: Tell me exactly what is the evidence that you propose to give under this second plea.

Mr. MANISTY: That the two arbitrators went into divers matters, and agreed upon one sum of money, viz.: £711 4s. as representing all those matters set out upon the face of the valuation, some of which matters, unless included under the term “unexhausted improvements,” they had no right to take into account at all.

The LORD CHIEF BARON: Do you mean by that that these matters either the arbitrators or the umpire had a right to take into consideration? But you say that they were unexhausted improvements.

Mr. MANISTY: No, my lord.

The LORD CHIEF BARON: Then what is it that you mean? Do you mean first of all to raise the question that rye grass and clover in plant, cost of seed, drilling in and harrowing - do you mean to contend that that is a matter over which neither arbitrators nor umpire had any jurisdiction?

Mr. MANISTY: No, certainly not.

The LORD CHIEF BARON: Very well: then you agree that that was a proper subject of valuation.

Mr. MANISTY: But the arbitrators having taken that which I assume for the moment to be an unexhausted improvement into consideration, and having put a value upon it, they then refer all the unexhausted improvements to the umpire, and he put a value upon all unexhausted improvements.

The LORD CHIEF BARON: But is not that the same thing? You see you will involve the case in general propositions, instead of looking to this specific point.

Mr. MANISTY: What I mean, my lord, is this: the first step is - Did you, the arbitrators, include this in your valuation, and put a value upon it? - Yes. What was it which was referred to the umpire, and upon which he made his award? - That is the second.

The LORD CHIEF BARON: I have written this, and I hope I have not misunderstood: “I offer to receive evidence of the same items being computed in both valuations, but I reject the questions as to what the umpire may have included in his valuation, that being to be proved by himself. Now proceed.

Mr. MANISTY (to Mr. Wisbey): In this case we have certain matters valued by you and Mr. Mann, and certain other matters valued by Mr. Attenborough? - Yes.

Mr. MANISTY: And I suppose you agree that you did refer unexhausted improvements and manure? However, these were what you referred to him? - Exactly.

Re-examined by Mr. MEREWETHER: You and Mr. Mann made a statement to the umpire? – We did.

Mr. MEREWETHER: Did you make any claim before the umpire for anything which you had previously agreed to? - Certainly not.

Mr. MANISTY: Now, then, I suppose I must go into that.

The LORD CHIEF BARON: I think that is quite legitimate evidence, because if he really made any claim before the umpire; that is, in other words, if he had urged the umpire to consider for the purpose of the valuation anything which he himself and the other valuer had already valued, that might vitiate the whole proceedings. However, you say you did not make any claim; in other words, you did not endeavour to procure the umpire to value anything which you or the other valuer had already valued? - Certainly not.

The LORD CHIEF BARON: Before valuation, had you and the other valuer agreed upon the amount that you mentioned. — £711 4s.? — We had, my lord.

The LORD CHIEF BARON: Did you mention at all to the umpire what you had agreed upon? — I could not be positive as to that, but I believe it was so.

The LORD CHIEF BARON: Did you at all submit to the umpire the different items that you had valued, to see whether he agreed with them? — No. I did not.

Mr. MANISTY: I ask your lordship to take that answer - “I think I did not tell him the items that we valued.”

The LORD CHIEF BARON: Oh, yes.

Witness: I did not quite catch the question, perhaps.

The LORD CHIEF BARON: It was this. You had valued all the items which appear down here, at £711 4s. Did you at any time before the umpire concluded his valuation, call his attention to those items, and inform him that he had valued them? — He had it sent to him.

The LORD CHIEF BARON: You mean this (holding up a document)? — A copy of that.

The LORD CHIEF BARON: Before he made his umpirage? — Yes.

The LORD CHIEF BARON: But you said he did not? — I did not quite catch the question.

The LORD CHIEF BARON: Did you say he had a copy of this? — Yes.

The LORD CHIEF BARON: With the amount, or without? —With the £711 4s., with directions to add it to his award.

The LORD CHIEF BARON: Before he had signed and executed his valuation? — I believe it was.

The LORD CHIEF BARON: Was it before he had valued the unexhausted improvements, or not? How long after you had referred the unexhausted improvements to him. Was it after he had made what you call his award? — Our reference to him was in October. He made his award in February.

Mr. MANISTY: You are quite wrong.

The LORD CHIEF BARON: You referred to the umpire in October, and he made his umpirage in February

Mr. MANISTY: January 10th.

The LORD CHIEF BARON: Now you say a copy of this was sent to him, so that he would know exactly what you had included in your valuation. What was that? — I am not quite sure. I am not quite clear upon that.

The LORD CHIEF BARON: Do you mean if it was ever sent to him? — It was sent to him, but I am not quite clear as to the time.

The LORD CHIEF BARON: Have you any idea whether it was before he had proceeded to value the unexhausted improvements, or while he was valuing them? — I think in December, I fancy so. I am not sure whether it was before he made his valuation.

Mr. Henry Stanley was sworn.

The LORD CHIEF BARON: On what ground to you understand, then, it was that the court held the plea to be bad?

Mr. MEREWETHER: On the ground that there was nothing on the face of the valuation and award which violated the agreement. The contention on the part of my friend was this, that the valuers were bound to set the whole matter at large; although it might be a question of only one field or one haystack, to send the umpire over a thousand acred farm to do the whole thing. Your lordship said that was not your view of the law - that the valuation must be conducted according to the custom of the country; and if these people chose to do it in that way, there was nothing in law which made it imperative upon them to command the attendance of the umpire either with them or after they had decided.

Examinations of Mr. Stanley proceeded with by Mr. MEREWETHER: I am a land-valuer at Bury St. Edmund’s and in London, of the firm go Newson and Stanley. I know the course of business in the part surrounding Cambridge with regard to valuations. It is usual for two valuers to call in an umpire as to the point of difference.

Cross-examined by Mr. MANISTY: Witness: If we do not generally agree on the terms of the valuation we refer the whole. But we endeavour as far as possible to agree on every item; and those items we do not agree upon we refer to the umpire.

The LORD CHIEF BARON: Have you ever known such a thing done as this - that the two valuers have certain matters as unexhausted improvements, and referred those same things to the umpire? — No.

Mr. Longland Ekin, examined by Mr. MEREWETHER: I am a farmer at Woodhurst, Huntingdonshire. I have frequently acted as a valuer between incoming and outgoing tenants. It is generally the practice to agree as far as we can and refer the rest.

Mr. MANISTY: — Would you then refer all unexhausted improvements to an umpire, having valued some yourself?

The LORD CHIEF BARON: That means leaving it to him to consider what were unexhausted improvements? — Clearly.

The LORD CHIEF BARON: And the consequence might be that the umpire might possibly include in his valuation the very two fields which you had included in years? — I do not think he would do that. We should give him a list.

Mr. Edward Nash, sworn, examined by Mr. MEREWETHER: I am a land agent at Royston. I agree with the last witness as to the usual practice in that country.

The LORD CHIEF BARON: It is possible that the umpire might consider tillage and young seed of this description as unexhausted improvements.

Mr. Beadel, sworn, examined by Mr. MEREWETHER: I am a member of the firm of Messers. Beadel, in Gresham-street. In my judgement the course adopted here is the usual course in the district. Sometimes we differ on the whole, and then we must refer the whole; sometimes we differ at one part only, and then we only refer the part.

Mr. MEREWETHER: That is the plaintiff’s case, my lord.

MR. MANISTY then addressed the jury.

The LORD CHIEF BARON: (Gentlemen, I am of opinion that this action is entirely undefended. I will not trouble you by going minutely into the immediate effect of the two allegations on this accord, whether in the declaration or in the special pleas. It is in substance an action to recover the amount of value of a great deal of farming produce and of exhausted improvements and manure and fixtures, and a variety of other matters of that kind which passed from the out-going tenant of this farm to the incoming tenant; in other words, from the plaintiff to the defendant. You have heard the terms of the agreement that all these matters and things were to be valued by two persons to be appointed, whom I will call valuers, and in case they differed, by an umpire. Well, the valuers were appointed — Mr. Wisbey and Mr. Mann — and they proceeded to value a great number of matters and things upon this farm, and which they assessed , and valued at the sum of £711 4s. When they came to consider the value of certain other matters which passed under the name of unexhausted improvements, and manure and so forth, they do not appear to have agreed upon them, and therefore those matters they referred to the umpire, a gentleman of the name of Attenborough. He proceeded to value it immediately, and he valued whatever he considered was submitted to him in that description at £939 and a fraction, and by the umpirage — and I should tell you that this evidence is signed by the umpire, by that name it may be described — he first of all recites the valuation up to the £711 4s., as made by the two gentlemen whom I have first named, the two valuers, and then proceeds in this way: - On the original paper, which he ultimately signed, the whole of these items are set forth just as they have been read to you: among them the “young seeds rye grass,” and so forth, and the 30 acres of clover, and the 7 men each one day for turning the manure heap; the 12 loads of ashes, and so on. In fact it recites in express terms the very items of the valuation to which Mr. Manisty, the learned counsel for the defendant, has called your attention. All these appear at length and very plainly, and that as valued at the sum of £711 4s., upon the final and ultimate award signed by the umpire Mr. Attenborough. He then proceeds “And whereas the said Wisbey and Mann” and so forth, “were appointed valuers to make a valuation, and I was appointed an umpire.” I will pass over what is now immaterial - and then he says that “I, having heard the claims of Wisbey and the objections taken by Mann, do after full and careful consideration award the said sum to be paid by the said Parsons to Richard Toller for the said manure, labour, and unexhausted improvements on the said farm, the sum of £939 14s. 6d.; and I do further award that the said Parsons,” that is the defendant, “do pay to the said Toller, namely, the sum of £711 4s. 9d., being the amount of valuation for other matters made by the said agreement, and which valuation has been made and agreed upon by the said Charles Wisbey and John Mann, making a total of £1,650 8s. 6d.” Now gentlemen, without any evidence at all, Mr. Manisty calls upon me to hold as matter of law, that you must find as a matter of fact, that these two or three items which I have called your attention to, and which were valued by the valuers at £711, were valued over again and were included by the umpire in the £939. The umpire had these very matters before him at the time he signed this umpirage. We do not know at what time he got it; that seems to be in great uncertainly — whether he had it before his eyes that very moment he signed the umpirage upon which the action is brought, and upon which alone, you are asked for your verdict; and you are now asked, without evidence to suppose either, that he did not receive it before he signed his umpirage in distinct terms that what he has valued at £939 was or were other matters than those included in the £711. Either he did or he did not. If he did not, he was guilty of a breach of duty which we do not like to ascribe to any man of intelligence, honour, and honesty. If he did read it and yet included those matters, then he must have deliberately intended to commit a fraud by valuing over again, and charging in the £939 a quantity of matters and fields which before his eyes were valued in the £711. This is what you are asked - by your verdict to set aside this valuation altogether. That will be the effect of it. It will be absolutely void if he really had included in it what the valuers had included in their valuation, and if he expressly added it to the amount of his own valuation or award, and directed that the defendant and the incoming tenant should pay to the plaintiff, the out-going tenant. You are called upon to suppose that he committed this fraud upon the incoming tenant, or that he acted in so careless and negligent a manner as never to look at what was before his eyes plainly and distinctly. You have heard me say several times over to the learned counsel, that I doubted very much whether he had correctly raised the case before you. Gentlemen, before you can properly be called upon to give a verdict in favour of the defendant on any such suggestion as that now made by Mr. Manisty, you expect he will put in the only witness who can tell is in a moment plainly and precisely - that is the umpire - in answer to a question which might be put: “Sir, did you have before you at the time you signed this umpirage, or rather before you signed this paper, award that these two large sums of money, £700 and £900 odd, should be paid by the incoming tenant to the outgoing tenant. You had before your eyes what it was that the valuers had valued the £711 for: did you by any mischance include any item in this paper in the sum of £939 which you awarded?” If that had been so, as an honest man he would have told us; if he had not done so, that would have been an end of the case. Mr. Manisty calls upon you, upon his construction to the term “unexhausted improvements,” to say that the whole of it is a grievous mistake, or that grievous fraud has been committed. Gentlemen, by my direction you will find your verdict for the plaintiff to the amount of this valuation.

The Jury considered their verdict.

The FOREMAN: One or two of the jury wish to know if the defendant had power to call Mr. Attenborough.

The LORD CHIEF BARON: To be sure, either party might have called Mr. Attenborough, and I do not hesitate to tell you that as it was for the defendant to show that he had been charged twice over for the same thing, it was for him to call Mr. Attenborough. I do not mean that he must have called Mr. Attenborough, but it was incumbent upon him to prove it.

The CHIEF CLERK: Gentlemen, are you agreed?

The FOREMAN: We are agreed. We find for the plaintiff.

Mr. O’MALLEY: Would the jury give the award for £1,605 18s. 6d., and give us by way of damages the interest, which would be £75, under the statute?

The LORD CHIEF BARON: What is the state of the umpirage?

Mr. MEREWETHER: On the 10th of January, the payment to be made in one week; that would be the 18th.

The LORD CHIEF BARON: Then I think he is entitled to interest, now nearly three months have elapsed. That makes £1,725 18s. 6d.

The FOREMAN: Yes.

Mr. MANISTY: Upon our paying the plaintiff whatever sum your lordship thinks fit to name, £1000 or £1,200 in a week, and paying the remainder into Court, would you stay execution.

The LORD CHIEF BARON: I do not mean to suggest that I have the slightest doubt on the subject, but you have really argued it so very earnestly that I am beginning to distrust my own judgement, so I will stay execution on you paying £1,200 within a week.

Mr. MANISTY: And £500 into Court?

Mr. MEREWETHER: The money is already lodged in a bank to the credit of both parties.

Mr. MANISTY: We offered to pay you long, long ago all you are indebted to.

Verdict accordingly.