CASES

ARGUED AND DETERMINED

IN THE

COURT OF COMMON PLEAS,

IN

Trinity Term, 1836.

SHARP v. HAWKER.

HUMFREY obtained a rule nisi against the plaintiff's attorney, requiring him to shew cause why he should not pay over a sum of money to the plaintiff which he had received from the defendant, with the costs of the application. The action was brought in this court.

Whitmore shewed cause. There is a preliminary objection to this application; the plaintiff does not shew that the attorney is an attorney of this court. It has been held, that when an application is made against an attorney, it must appear upon the affidavit that he is an attorney of the court. In re Becke (a); Ex parte Lord (b). My affidavit shews that he never was admitted an attorney of this court.

Humfrey, contrà. In the two cases which are cited, applications were made to punish the attorney for misconduct. Here the plaintiff only seeks to recover money, which has been received in the action brought in this court. That gives the Court jurisdiction. If this application were made to the court where the attorney is admitted, it would then be said that as the cause was in this court, so is the remedy also.

Butt, amicus curiæ, mentioned that In re Greaves, (c) where an undertaking had been given by an attorney of the King's Bench, in an action brought in this Court, the Court of King's Bench entertained an application which was made consequence of the non-performance of the undertaking.

TINDAL, C. J.-We have no jurisdiction to interfere. What authority have we to proceed against an attorney who is not an officer of this court? The rule must be discharged.

GASELEE, J.-The attorney is responsible to the Court where he is enrolled.

PARK, J., and VAUGHAN, J., concurred.

Rule discharged.

June 7th.

When a defen

SMITH V. JACOBS.

dant in custody HUMFREY obtained a rule nisi to discharge the defendant out of custody, on the ground that he had been taken in execution on a cognovit which he had executed whilst in the Fleet Prison, without having his attorney present.

on final process gives a cognovit, the rule Hil.T. 2 W. 4, No. 72, which requires the

presence of the debtor's attorney, is not applicable.

Miller shewed cause. The defendant was in custody in the Fleet Prison, a judgment which the plaintiff had recovered against him. The rule of court, 2 W. 4, Hil. T. No. 72, which requires the presence of the debtor's attorney, is only applicable to cognovits "given by any person in custody of a sheriff, or other officer, upon mesne process." Here the defendant was in custody on final process.

Humfrey was stopped.

Per Curiam.-The rule of court is not applicable to this case.

Rule discharged.

June 7th.

NORTON v. LORD MELBOURNE.

Upon an ap J. BAYLEY obtained a rule nisi under the Interrogatories Act, 1 W. 4,

plication for a commission to examine a witness who is out

of the jurisdic

tion of the Court, under

1 W. 4, c. 22,

it is not necessary to shew the nature of the attempts which have been made to obtain his at

tendance; and

a commission will be issued

in an action for crim. con. as in other cases

c. 22, for a commission to examine a witness, in an action for crim. con. which was pending in this court. The affidavit in support of the application stated, that one William Mansell, a servant to the Earl of Mulgrave, then at the Castle in Dublin, was a material and necessary witness; that the plaintiff could not safely proceed to trial without his evidence; and that it was believed that he would not be within the jurisdiction of this court before or at the trial of the cause.

The Attorney-General shewed cause. This action is in the nature of a criminal charge, and it may be of the utmost importance, in such a case, that all the witnesses should be examined viva voce. The stat. 45 G. 3, c. 92, which was passed for the purpose of enforcing the attendance of a witness, to give evidence in criminal prosecutions in any part of the United Kingdom, shews the strong desire of the legislature that, in all criminal cases, the witnesses should appear in court. This affidavit does not state the nature of the attempt

NORTON

v.

LORD MEL

which has been made to procure the attendance of the witness, or even whe- Com. Pleas. ther any application has been made to him. For any thing which appears to the contrary, the witness might have been sent to Dublin for the express purpose of avoiding the service of a subpoena. The statute gives a discretion to the Court; and it might be a dangerous precedent to grant a commission in a case of this description, upon an affidavit which is so vague and unsatisfactory.

TINDAL, C. J.-This affidavit is in the usual form, and I should feel some difficulty in drawing a distinction between an action brought for criminal conversation and any other action. If the witness should appear at the trial, or come within the jurisdiction of the Court in the meantime, then he might be examined viva voce, notwithstanding the commission. The rule must be made absolute.

PARK, J.-This affidavit is quite sufficient.

GASELEE, J. Concurred.

VAUGHAN, J.-The object of the statute was to obviate the difficulty which arose from the want of power to obtain the evidence of witnesses who were out of the jurisdiction of the Court. The 4th section only requires that the witness should be out of the jurisdiction of the Court. If this witness had been applied to, and he had promised to attend the trial, the plaintiff has no power to enforce his attendance.

BOURNE.

Rule absolute.

WOOD v. HURD.

THE damages and costs in this cause, to the amount of 3,7931., having been paid by the defendant, the plaintiff's attorney consented that a judge's order should be made, in order that satisfaction might be entered upon the roll. A judge's order to that effect had accordingly been drawn up, but the Secondary refused to enter satisfaction without the production of a warrant of attorney from the plaintiff.

June 3rd.

A consent given by the plaintiff's attorney, that a judge's order shall be made to enter satisfaction on the judgment roll for the damages and costs

Butt contended that under these circumstances the warrant of attorney was in a suit, does unnecessary, as the consent of the plaintiff's attorney was sufficient.

TINDAL, C. J.—It is the invariable course to produce a warrant of attorney, and it is necessary in order to get rid of so solemn a thing as a judgment of the Court. The production of it affords the only security that the judgment has been satisfied; for the plaintiff's attorney may no longer be an officer of the court, and in some cases he may be in league with the defendant.

PARK, J., concurred.

GASELEE, J.-It is upon seeing a warrant of attorney that the judge's order is usually made.

Rule refused:

not dispense with a warrant of attorney from the plain

May 27th.

who T

An owner, remains in possession of a

THIS

CAMPION V. COLVIN and others.

was a feigned issue from the Court of Chancery. The issue recited that " 511 bales of cotton wool, consigned to the defendants, had been carried in a vessel called the Hero, whereof the said plaintiff was an owner, from Calcutta to London ;" and the issue was to try "whether the said plaintiff and ing to the char- his co-owners then had a lien upon the said cotton wool for freight, beyond

ship, has a lien on the goods on board belong

terer, but di

rected in the

bills of lading

the amount of freight payable in respect of the carriage of the said cotton wool." The jury found for the plaintiff, subject to the opinion of the Court to a consignee, on the following for the freight

to be delivered

due under the charter-party.

CASE.

On the 18th of November, 1816, a charter-party was entered into between the plaintiff and one John B. Gooch, then a merchant in London, for a voyage from London to Madeira, Madras, and Calcutta, and back to London; which charter-party was to the following effect :-This charter-party of affreightment between John Campion, owner of the ship Hero, whereof John Price is commander, of the one part, and John B. Gooch, of the other part, witnessed that the said owner did thereby covenant that the said ship, being then tight, staunch, and sufficiently manned with 24 men and boys, and every way properly fitted, the said commander, or some other proper person in his stead, should immediately take on board the said ship, from the said freighter, all such lawful goods as he might think fit to load, reserving sufficient room in the forecastle and half-deck for the stowage of her provisions and cables: and having received the same on board the said ship, should immediately proceed to the island of Madeira, where, being arrived, and ready to receive goods on board, the said commander should give immediate notice thereof, in writing, to the agents or assigns of the said freighter there, and receive and take on board the said ship, from the said agents or assigns, all such other lawful goods as they should think fit to load; and having received the same on board the said ship, should immediately proceed direct to Madras and Calcutta, and there deliver her cargo. A similar provision followed, for loading goods at Madras and Calcutta, with the cargo there to be shipped by the freighter or his agent, to London. And further, that a supercargo, to be appointed by the said freighter, should be conveyed in the said ship during the whole of the said voyage, both out and home, and should be found and provided with the ship's provisions. In consideration whereof, and of everything above-mentioned, the freighter covenanted to pay to the owner, for the freight or hire of the said ship for the aforesaid voyage, at the rate of 147., sterling money of Great Britain, per ton, upon each and every ton of the said ship's registered tonnage, together with 27. 10s. of like money per cent. primage on the amount of the freight, and in lieu of all port and pilotage charges. And that the said freight and primage should be paid as follows, viz.: 500l., part thereof, in cash, at the expiration of six months from the day of the date of the said charter-party; one moiety of the remainder thereof to be paid by bills, payable in London, at two months after date from the day on which the said ship should arrive in the Thames on her return from the said voyage; and the resi

CAMPION

V.

COLVIN and others.

due thereof to be paid by bills, payable in London, at four months' date from Com. Pleas. the same period. And the freighter did thereby agree, at his own costs, to defray the expenses that might be incurred in making any alteration in the interior of the ship during the time she should be employed in his service. The usual stipulation as to demurrage was also inserted. It was thereby also mutually agreed between the said parties, that, notwithstanding the appointment of the said John Price to the command of the ship, the said freighter should have liberty to appoint James Gooch Thompson to proceed out and home, and not only to act as supercargo, but to take upon him the authority of the said John Price in the stowage of the said cargoes, and which should be done under the sole and entire direction of the said J. G. Thompson; but that he should not, in any other matter or particular whatsoever, interfere with the duties of the said John Price as commander of the said ship.

The said defendants and Messrs. Colvin and Co., at the time of the sailing of the vessel, and of her arrival at Calcutta, were cognizant of the said charterparty. The ship sailed with a cargo of merchandise belonging to the said Gooch on board, and the said cargo was invoiced at the sum of 11,4227. 14s. Messrs. Bazett, Farquhar, Crawford, and Co., of London, of which firm the defendants are the surviving partners, advanced to the said Gooch large sums of money to enable him to purchase his outward cargo, and the same was consigned by the said Gooch to Colvin and Co., then merchants at Calcutta, as his agents, and was by the said Colvin and Co. received from the said ship at Calcutta, who disposed of the same on account of the said Gooch, the said Colvin and Co., of Calcutta, being at the same time the general agents of the defendants, and the defendant, David Colvin, being at the time of the making of the charter-party, and arrival of the ship in London, partner as well in the house of Bazett and Co., of London, as of Colvin and Co., of Calcutta.

Colvin and Co., according to the direction of the said Gooch, put up the ship as a general ship at Calcutta, and obtained several shipments on freight; but not being able to fill the ship, they purchased the 511 bales of cotton wool in the issue mentioned, with advances made by them on account of the said Gooch, they (Colvin and Co.) having the outward cargo at that time in their possession. Price, the master of the ship, signed a bill of lading for these and other goods which were shipped. It stated that the goods were to be delivered in London "to Bazett and Co., or to their assigns: freight for the said goods paid by bills on London." It was left to the jury, whether these cotton wools were the goods of the said Gooch, and they found that they were the goods of Gooch, which is to be taken as a fact in this case.

On the arrival of the vessel in London, the cargo was deposited in the warehouses of the East India Company, and the proper notices were given by the plaintiff to preserve his lien under the statute.

Before the arrival of the ship at London, Gooch stopped payment, and afterwards became a bankrupt. For the goods shipped on freight, the plaintiff received the amount of such freight, and also a sum equal to the current rate of freight of the 511 bales of cotton wool, leaving a considerable sum of money due according to the charter-party. The cotton wool was sold by the East India Company, and the freight due for the same was paid by them to the plaintiff; but adverse claims were put in by the plaintiff and the defendants, to the residue of the money produced by the sale, the defendants claiming the same under the bill of lading as consignees thereof, and the plaintiff claiming a