Cradley solicitor Jeston Homfray had his day in Court when the Oxford, Worcester and Wolverhampton Railway Co. insisted on a surcharge of 3/9d for a hamper of pot-plants
First published in The Blackcountryman, Winter, 1997/8, Vol. 31, No. 1, pp.66-69
Mr. Jeston Homfray and The Old Worse and Worse
What prompted Jeston Homfray to leave his home in Cradley, and visit the 1857 Manchester Exhibition is not known, but it might have been an interest in horticulture. At any rate, when he boarded the train in Manchester for his return journey, he was carrying a small hamper containing a number of plants in pots. According to his ticket, when Mr. Homfray began his return journey, its destination was Stourbridge Junction; he would never have guessed that its eventual terminus was to be Stourbridge County Court.
If the name of Jeston Homfray is ever heard in Cradley today, it can only be as an echo of a whisper of a memory - a secondhand memory at that, passed down the years, because no-one now alive can possibly remember him. His name is scarcely known today, but in 1857 Jeston Homfray was one of the best-known and - even though he was a lawyer - most respected men in the parish.
The respect in which Mr. Homfray was held was earned by his various contributions to parish life. In particular, he provided food for the poor at his home (the old Grange in Colman Hill), and he allowed the Grange's extensive grounds to be used over many years for the annual National School and Sunday School Fete organised by St. Peter's Church. At the end of each fete it was Mr. Homfray's custom to entertain for the evening the local clergy and gentry as well as the teachers from both day and Sunday schools.
One imagines Mr. Homfray as a bearded, genial, perhaps rather portly figure, glowing with Pickwickian benevolence. Of course, he might have been one of those dour and disapproving benefactors whose nature is accurately reflected in the phrase "as cold as charity." We have little evidence for either image, but Jeston Homfray was a flautist of some local repute, and it is hard to imagine a cold and humourless man playing anything so cheerfully frivolous as a flute.
Whatever was his attitude in dealing with his professional capacity as a solicitor Mr. Homfray, from his office in Brierley Hill, kept a watchful eye on the pennies - and not only in his own interest.
Among his other professional responsibilities, Mr. Homfray was legal adviser to the Brierley Hill and Brettell Lane District Highways Board. In May 1858, he advised the Board that the only tender they had received for the repair of Cradley Forge Bridge was too high, and in the subsequent discussion on the means of advertising for further tenders, he cautioned the Board against extravagance. 'We do not want,' he said, 'to startle the inhabitants and induce them to think they had a Board of Works instead of a Highways Board.' He further advised, later in the meeting, that the Board '... should be careful not to have too much work upon its hands at once.'
In giving this cautious advice, Mr. Homfray was entirely disinterested; it was not his money that the Board was spending. He seems to have been equally careful on his own part. That, at least, is the implication of a letter from Mr. Homfray that was published in 'The Advertiser' on the 11th September, 1858. Its indignant tone suggests that he was very annoyed at the poaching of potential clients:
I find that a certain clergyman and a few unprincipled persons are in the habit of taking fees from executors for getting wills proved. I think it right to caution the public against this.
The Act 20 Victoria c. 77* entirely abolished the Testamentary Jurisdiction of the Ecclesiastical Courts. Solicitors and Proctors1 alone can now procure the proof of wills. A table issued by the Court of Probate regulates the fees, which cannot be exceeded.
- "An Act to amend the law relating to Probate and Letters of Administration in England" (1857).
Mr. Homfray went on to argue that it was no more expensive to have your will proved, in the proper manner, by a solicitor - but what is odd is that he does not suggest that the clergyman and the other 'unprincipled persons' were failing to obtain probate by what was - according to Mr. Homfray himself - an illegal method.
Mr. Homfray's letter led to a terse exchange of correspondence with another Brierley Hill solicitor, a Mr. Homer, who represented the errant clergyman. Mr. Homer claimed that Mr. Homfray had overlooked a relevant section of the statute, and had therefore misinterpreted its effect. Mr. Homfray - as it were - rebutted this counterclaim, and seems to have won the argument. This dispute about one of the arcane mysteries of the history of the legal profession has no relevance here other than to show Mr. Homfray's determination to defend his own interests. It might have been merely coincidental that it was announced during the following month that the clergyman in the case2 was leaving the district.
An Altercation at the Station
It was about eighteen months before his tussle with Mr. Homer that Jeston Homfray, accompanied by a manservant, stepped off the train at Stourbridge Junction on the Oxford, Worcester and Wolverhampton Railway line, on their return from the trip to Manchester.
At the exit from the station, Mr. Homfray produced tickets for himself and his servant - but the ticket-collector had noticed the hamper containing the pot-plants. Had the gentleman paid for its transportation? He had not? Then he must.
Mr. Homfray protested that his hamper was 'hand-luggage,' which passengers were allowed to carry free of charge. The ticket-collector was equally certain that the hamper was not 'hand-luggage' - at least not as defined in the Company' bye-laws. After what seems to have been an angry exchange of words, Mr. Homfray handed over the three shillings and ninepence (about 18 pence) that was demanded of him (or rather, his servant handed it over - a point not without some subsequent significance).
Mr. Homfray left the station muttering about 'a monstrous imposition,' and with the thought of legal action to recover the money already in his mind. The sum of 3/9d. was of course worth very much more in 1857 then 18 pence is today, but to a man of Jeston Homfray's social and professional status it would have been an insignificant sum. It must have been a point of principle, a lawyer's concern for the correct interpretation of written rules that motivated Mr. Homfray. To have gone to court for 3/9d. would have been ludicrous. Anyway, whatever his motive, or motives, Mr. Homfray sued.
The First Trial
The case of Homfray v. The Oxford, Worcester and Wolverhampton Railway Co. came before Judge Parham at Stourbridge County Court in June 1857. Mr. Homfray, an experienced advocate in the local County and Magistrates' Courts, conducted his own case. The O.W.W.R. was represented by a Mr. Bentley.
After Mr. Homfray had presented his case, Mr. Bentley rose to cross-examine him. He first put it to Mr. Homfray that he had been confidently saying to friends and acquaintances, 'If you take the O.W.W.R. to court, they will pay anything.' Mr. Homfray denied this, and said that on the contrary, he had been saying that the Company would resist any claim.
Mr. Bentley let that rest. He had more pertinent points to make. First, the Court had no proof that the 3/9d. had been paid, as Mr. Homfray had not produced as a witness the servant who had handed over the money. Second, Mr. Homfray had not produced the Company bye-laws, whose wording might have allowed him to argue that a hamper with pot-plants fell within the Company's definition of hand-luggage. By these two omissions, Mr. Homfray had failed to prove either an illegal demand or an illegal payment.
Furthermore, with regard to the principle said to be involved, Mr. Bentley argued that the 112 lbs. (50.8 kg.) that was allowed to first-class passengers as hand-luggage was intended to refer exclusively to personal luggage. (Pot-plants, presumably, were not considered to be sufficiently personal.)
Judge Parham had no difficulty in reaching his decision; he non-suited3 the plaintiff. Mr. Homfray left the building in determined mood. He would, he said, bring the case before another court.
It is surprising that Jeston Homfray, with his knowledge and experience of court procedure, should have made such elementary mistakes in the presentation of his case. Perhaps the steaming heat of his indignation collided with the dry, cool precision of the law of evidence, and created a forensic fog in his mind. The fog had cleared by the time Mr. Homfray came to court for his second attempt (not in 'another court' but again at Stourbridge County Court). He proved the facts of the case, and the decision turned on the interpretation of the phrase 'hand-luggage' in the O.W.W.R. bye-laws, which this time were present in court.
Mr. Bentley, again representing the Company, expanded on his earlier theme. 'Hand-luggage" he argued, referred only to "... such personal luggage as was necessary to the passenger while travelling." Obviously, it was difficult to imagine a situation in which a railway traveller might need pot-plants.
Mr. Homfray argued that the Company, if allowed to get away with this policy, might even rival the Great Western - "who are supposed to be the keenest Company. The other day a gentleman travelling on that line took a Pointer bitch with him. During the journey she pupped, and when the gentleman arrived at his destination ... the Company charged excess on each of the pups for the whole distance. That was because she required extra care during the journey on account of her confinement." (Laughter).
Judge Parham, now that the facts had been properly presented before him, saw some difficulty in the case: "Although I can see that the Company may be imposed upon it I give judgement against them, yet I think the present case is rather shabby on their part."
Nevertheless, Judge Parham found for the Company. Insofar as the case turned on the proper interpretation of the Company's bye-law, it was almost certainly the correct decision. But it is hard to disagree with the judge's assessment of the Company's conduct as 'shabby' in its determination to hang on to its three--shillings-and-ninepence-worth of flesh.
Sense of Humour
By concluding his case with the anecdote about the bitch that had puppies while travelling by train, Jeston Homfray showed that he had a sense of humour. One hopes that this did not fail him when he heard the decision, and that he took his defeat with good grace.
Long since dead, Jeston Homfray led a busy life in that area of the Black Country where he lived and worked. One would like to know more about this tantalisingly enigmatic figure. A photograph, should one survive, may provide clues to his character and personality. So far, none has turned up.
1 A Proctor was trained in Roman and canon law, and appeared in ecclesiastical and admiralty courts. After 1875, the class of proctors was absorbed by that of solicitors.
2 The clergyman in question was the Rev. W. English who had been the incumbent of St. Michael's, Brierley Hill for only eighteen months. He seems not to have been a popular figure. A letter published in 'The Advertiser' after his departure was announced, said “His quibbles and his quarrels grew and multiplied.”
3 "Non-suited" is one of those amusing procedural terms that garnish the application of substantive law. It is what happens to a plaintiff who has failed to establish a cause of action, or to support his case with admissible evidence. As a technical term it is obsolete in the High Court - though still used colloquially by lawyers. The term does still appear in the County rules (I am grateful to Joan Kettle of the Stourbridge County Court Office for confirming this).
Most of the material for the above article came from contemporary copies of "The Advertiser" (or, to give the paper its full title, "The Advertiser, Brierley Hill and Stourbridge Gazette, and South Staffordshire and East Worcestershire Mining District Journal.)
This essay is © Copyright Peter Barnsley, who has generously granted permission to Cradley Links to reproduce it on this web site.
Additional notes by Cradley Links
Cradley Links wishes to thank Mr Michael Hale for his generous permission to use the images which we have added to accompany Peter Barnsley's article. These images appear in "The Oxford, Worcester and Wolverhampton Railway through the Black Country" (Woodsetton Monograph Number One, 1999).
Bradley and Blunt in the History of Cradley Churches, Part Two: 1800-1900, citing Halas, Hales, Hales Owen (F & K Somers, 1932) provide this biographical sketch of Homfray (p. 11):
“Jeston Homfray, (1821-1904), solicitor, farmer and landowner, was the lay impropriator of the church [St Peter's]. He constantly allowed his home at Colman Hill to be used by children of local schools and Sunday Schools for their Annual Treat. He was deeply involved with Noah Hingley and other Nonconformists in the work of the Ragged School movement [...] He became President of the Cradley Young Men's Christian Association when it was formed in 1881; his interest in the welfare of young people in exemplified by the creation, with his son Alfred, of the Colman Hill Football and Cricket Clubs in 1878. Homfray's other community activities included membership of the Board of Governors of Halesowen Grammar School, and in 1859 he was instrumental in setting up a Volunteer Rifle Corps (the forerunner of the Territorial Army) at Halesowen, in which he served as its Commanding Officer from 1865 to 1871.”
In addition, Cradley Links has made a brief examination of parish registers, census records, etc. We find that Homfray was christened on 1 April 1821 to David and Elizabeth Homfray in Kinver, Stafford. He married a Catherine Sophia from Manchester, with whom he had children Jeston (died in infancy), Rosabel, Alfred, Margaret, Alice, Rosetta, Alfred (who followed his father in becoming both a solicitor and the lay impropriator of St Peter's), Popkin, Catherine, Kenyon and Florence. Homfray was clearly well-to-do: Kelly's 1876 directory lists him second only to the New British Iron Company as a principal landowner in Cradley. He employed two servants in 1851, four in 1861, and by 1881 his domestic staff had grown to six; a private governess, a cook, a waiter and three housemaids.
The title of Peter's article - "The Old Worse and Worse" - derives from the wry pun made by locals on the name Oxford, Worcester and Wolverhampton Railway.