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first issue: That there was a stratum of hard gravel into which piles could have been driven; and for the Defendant upon all the others.
In Trinity term, the AttorneyGeneral obtained a rule to show cause in the alternative, either why judgment should not be entered up for the Crown, non obstante veredicto, on the issue which was found for the Crown, or why a new trial should not be had on that part of the verdict which found that Mr. Laing had been authorised by the commissioners to direct the buildings, as there was no evidence of any such authority having been intrusted to him. Mr. Scarlett, on behalf of the defendant, obtained a rule, calling on the Crown to show cause why a verdict should not be entered for the defendant, non obstante veredicto, or why a new trial should not be had, on the ground that there was no evidence to support the finding that a stratum of gravel could be found, into which piles could be driven according to the specifications.
In Michaelmas term, Mr. Scarlett showed cause against the rule for the Crown: he read that part of the contract between the Commissioners of the Customs and the defendant, which stated, that where any doubt arose respecting any of the particulars mentioned in the specifications, the Commissioners of the Customs, or their architect, were to direct what might or what might not be admitted; and, if in the progress of the work, the architect should think that the foundation should be sunk deeper, or that any additions should be made, or any of the particulars in the specifica
tions omitted, it should be done, and the builder should make a proportionate charge. The specification placed Mr. Peto generally under the orders of the architect; for every particular was followed up with the words, "as may be directed;" so that, in fact, it was no specification, for it only specified that some other specification may be given. It was in the power of the architect to alter every particular.
If he had ordered that the piles should be altogether omitted, Mr. Peto was bound to do so; and, consequently, if he had directed that the piles should he cut shorter than was required in the specification, Mr. Peto was bound to follow his directions. The Jury had found that, Mr. Peto had, in no particular, deviated from the original specifications, unless by the directions of Mr. Laing; and by the contract Mr. Peto was liable to be discharged if, in any particular, he acted contrary to Mr. Laing's orders. The intention of the Commissioners, when entering into the contract, was evidently this— that as far as they could then determine on their plan, it should be according to the specifications, subject to such alterations as they might, during the progress of the work, deem prudent to make. Mr. Laing was the organ of their wishes respecting such alterations. Mr. Peto's judgment was entirely subservient to his. He told Mr. Laing, that the piles would not answer the purpose, and he recommended as a substitute what Mr. Smirke had since adopted. Mr. Peto declined to abide by Mr. Laing's directions in that particular, unless he had his written orders; and could any one say, that, if the Commissioners had given to
Mr. Peto written orders to the same effect, a compliance therewith would amount to a forfeiture of his bond? — Certainly not—ergo, a compliance with such orders from their agent, their mouth-piece, could not operate as a forfeiture. The Common Sergeant, Mr. Rotch, and Mr. Pattison, followed on the same side.
The Attorney-General, in support of the rule, said, that, admitting, for the sake of argument, that Mr. Laing was invested with all that dispensing power which the other side alleged he had, still no defence had been made out. The argument is, that, according to the contract, Mr. Laing had power to determine in matters of doubt, and that there was a doubt respecting these piles, which warranted Mr. Laing's interference. But, Mr. Peto says himself, that he knew the piles would not answer, and that of this point he entertained no doubt; and the Jury have found that there was a stratum of gravel, into which the piles could have been driven, according to the specification. The defendant having admitted that it was only in cases of doubt that this dispensing power was given, and it having appeared on his own showing that no such doubt existed on the occasion, judgment should be entered up for the Crown.
Nov. 27. The Lord Chief Baron proceeded to give judgment. His lordship said, the great question in this case, in whatever aspect it should be viewed, was the construction of the deed. That was an instrument under seal, and by which the defendant was bound. The defendant's counsel had, therefore, been driven to argue that, by the instrument, their client had a right to act as he had done—on
that alleged right the point in the case turned. If he (the chief baron) had entertained a doubt at all, he should have been unwilling to give any opinion upon the case, without consulting his learned brethren, who were more conversant with pleading than himself. It appeared to him, however, that the learned counsel for the Crown were in the right, because there was one of the issues on which the Crown had been declared entitled to judgment on merits— those merits which applied to every part of the case, and which were, consequently, decisive of it. The question was, first, should a verdict be entered up on the issue found for his majesty by the jury, namely, that which established that there was a stratum of gravel, into which the piles might and ought, by the terms of the agreement, to have been driven? The next questions were, whether judgment upon the remaining issues ought not similarly to be entered up for the king? Independent of the arguments of the learned counsel for the Crown, he thought it might be collected from those of the other side, that, unless they could prove sufficient power in the surveyor (Mr. Laing) to order the variances referred to, their case could not be supported. It seemed to him to be sufficient for the general purposes of the cause, to consider what ought to be done respecting the first issue. In that issue the Crown said that Laing (the surveyor), or his clerk of the works, had no power or authority, by the deed, to give any directions varying or altering the piling from the description and mode pointed out in the specification. The defendant affirmed, on the contrary, that Laing, or his clerk, had such power, and, on that, issue was joined. The Crown charged that the work was not done according to the specification. The defendant says, "True; but the variance was directed, and authorised, by your surveyor, Laing." The question then became simply, was Laing authorised, or was he not; and that led directly to the construction of the instrument. If that instrument should (as he thought it ought) be looked upon in the plain straight-forward way in which all such documents should be received, it would then be seen whether it gave to Laing the authority relied on or not. On that point, he confessed, he never entertained any doubt whatever. In that instrument, Mr. Peto entered into an engagement on his part, in consideration of a sum of 165,000/. to erect certain buildings, and to complete the several works specified in plans, and according to scales numbered from one to thirtyone.—These were the obligations into which the defendant entered: but then he says, "It is true I have, by the deed, undertaken to do these things, but there are other provisos in it, which put me under the necessity of following the directions of the surveyor, whatever they might be. I was bound (as the learned counsel had ingeniously, and not too strongly, put it), if Mr. Laing had thought fit to alter the plan of the Customhouse to a plan for a church, I was bound, I say, to obey his directions, and go even to that extent." He (the lord chief baron) must admit, that, in thus arguing, the learned gentlemen had not gone too far: but how stood the facts? In the first place, it was a most marvellous circumstance that so important a power as that
here contended for, was asserted on mere parole authority, or by any other less formal mode, by which the whole scheme for the buildings in question might be altered. It wasmostmarvellousthat this power should be picked out by implication instead of having been expressly declaredin the instrument. Could there be any article in a contract more important than a power to alter all the other stipulations of it? and yet, instead of its being set forth in the instrument, that extraordinary power was only picked out and maintained by argument. It became necessary here to look at the articles. (Here his lordship read the contract, and commented upon that passage in it which provided for the addition to, or the reduction of, the number of works specified at the discretion of the surveyor). Was it possible, therefore, he should ask, that it was intended a power should be given to the surveyor to vary the whole scheme, by substituting one thing for another? The sound construction of the passage necessarily was, that Laing should have the power to add to or diminish, but not to vary; and most particularly with respect to the foundation, on which the security of the whole edifice was to depend. (His lordship here referred to other clauses in the deed, declaring, as his opinion, that even by the most violent and forced construction of the instrument, it gave to the surveyor no such powers as would justify Mr. Peto in substituting other works for those expressly stipulated in it; and that, for the sum mentioned—165,000/., the defendant was bound to complete the works as specified). It appeared, therefore, to him, that upon the first issue, unsupported by any other, the Crown was entitled to judgment on all. He felt himself called upon to add, that Mr. Peto appeared to have acted throughout under the impression that he was justified in making the alterations referred to, by the directions of Mr. Laing. He regretted the unpleasant consequences to the defendant, but must declare that, upon the right of the Crown to the judgment he had just delivered, he had not, from the commencement, the slightest doubt.
Mr. Baron Hullock concurred in opinion with his lordship, that the Crown was entitled to judgment upon all the issues non obstante veredicto.
The Lord Chief Baron said, that Mr. Baron Garrow had authorised him to say, that he fully concurred in the judgment of his learned brethren.
Mr. Scarlett begged to know, whether, even had there been no stratum of gravel in existence, their lordships' judgment would have been the same?
The Court replied in the affirmative.
Before Mr. Baron Graham.
Hannah Russell was indicted for murdering Benjamin Russell, her late husband, by administering to himaquantity of arsenic, at Brightling, on the 8th May last; and D. Leany was indicted as an accessary to the same murder.
The female prisoner appeared to be about 40 years of age, but was, in fact, only 31; and the man, who appeared to be about 30, was only 19.
Win. Russell, the father of the deceased, said, he saw the deceased alive at his own house in the evening of Sunday, 7th May. He was then cheerful, and in good spirits. Witness lived about a quarter of a mile from his son's house in the same parish of Burwash. On the Monday morning, about oneo'clock, he was aroused from his sleep by some dirt being thrown at his window. He got up, and opened the casement. The female prisoner was outside, and desired him to come down, and let her in. She said that Benjamin, his son, had dropt down in a fit, or was dead. The other prisoner, who was immediately behind her, said the same thing. They appeared to have come together, and wished witness to help to get Benjamin home. Witness dressed himself immediately, and accompanied Leany about three miles into the parish of Brightling, and Leany brought him to a foot-path, where they found the deceased lying stretched on his back. He was then dead, cold, and stiff. His clothes were on, and there was a handkerchief tied round his body. The spot was not far from the House of a Mr. Holloway, a farmer, about sixty or seventy rods from Gleddish Wood. The deceased was lying stretched out on his back straight, the hands close to the body. The prisoner Leany then said, that he and the deceased had been stealing some corn from Mr. Holloway's barn, and had divided it into two parcels. The sack, which the deceased was carrying, was the heaviest, and he complained of a pain in his heart at the time. The prisoner then offered to take a turn of his load. The deceased declined, and advanced up the field with the load on his back,
and prisoner, on coming up to him, found him dead, but he did not know whether he had dropt down in a fit, or died a natural death. It was then so dark that witness could not see the dress of the deceased minutely. Witness and Leany then moved the body into Gleddish Wood, and placed it on some stubble. Witness's motive for so doing was to hide the shame of a transaction in which the character of his family might be injured, by its being discovered that a son of his had been guilty of a robbery. Witness returned home between four and five o'clock, leaving Leany to follow him at some distance. In his way home, he saw a person, named Thomas Hawkins, and spoke to him. Witness did not know the cause of his son's death until the following Wednesday, when the coroner's inquest was held. When examined before the inquest, he did not give the same account of the transaction, because he understood that those who helped to move the body would be punished.
John Woodsell proved, that,about eight o'clock, on the morning of the 8th May, he was going into Gleddish Wood, and saw Leany, who told him he had found a dead man (Benjamin Russell), who had been going after a tub of gin, and he (Leany) was to have met him at eight o'clock. He said, he thought the deceased had made away with himself, but said nothing about robbing Mr. Holloway's barn.
John Sheater proved his having a similar conversation with Leany, about nine o'clock, the same morning. Leany told him, he found the deceased lying on his back.
Robert Boules, a blacksmith, proved, that about seven o'clock
in the morning of the 8th of May, he called at Russell's house, and saw his wife; Leany came in soon after; she said she had been greatly alarmed that morning by a noise up stairs, as if somebody had jumped out of the bed. She considered it a token of somebody's death, andhoped nothing had happened to her husband. She said her husband went out, between four and five o'clock in the morning, towards Gleddish Wood, after a tub of spirits, and had ordered Leany to go after him in about half an hour. The prisoner Leany had lodged in Russell's house about six weeks.
Elizabeth Elliot proved having been at Russell's house about one o'clock on the 8th of May; both the prisoners were present. Mrs. Russell said her husband had been in bed with her till between five and six o'clock that morning.
Hilder, a labourer, proved,
that he went with the female prisoner to see the body of the deceased the day it was found. She said on the way, she supposed she would be forced to bury him on Wednesday, as she expected he would be very much swelled, because he had eaten so hearty a dinner and supper on Sunday. On their return to her house, witness asked her what time Leany went to bed on Sunday night? She said, why, Hilder? Witness said, " He was not in bed here—was he." She replied, "It does not make any odds to you." Witness then said, "Why, Ben (the deceased) was not a-bed here." She said, "Yes, that he was, by the side of me." Witness then told her he knew that Leany was not a-bed then, as he knew a man who had seen him. She said, "I know who told you that. It was Hawkins, curse him, he may as well keep his mouth