Sidebilder
PDF
ePub

nothing about her; he saw Captain Rutherford, but never had any conversation with him about the sale of the ship or its condition. Mr. John Bedwell, one of the club, paid the guinea for putting her on the way at Ayles's dock.

Jeremiah Mackinlay, a foreman to Ayles, said, he received a guinea the day the ship went off the way: he gave a description of her state precisely similar to that of the other witnesses who saw her at the dock.

Mr. Serjeant Shepherd, for the defendant, contended, that when a thing was sold in public under a condition that it was to be taken with all faults, the purchaser was not afterwards at liberty to avoid his bargain, on account of any particular defect, unless a case of evident fraud could be inade out. Those who sell by such a general description were not bound for specific warranty. The broker, in this case, had given such an account of the state of the ship, as he thought he was justified in giving from her appearance; this turned out to be an erroneous opinion, but there was not the slightest evidence of his having acted fraudulently, The case, then, was exactly similar to that of Pickering v. Down, where it had been adjudged, that the contract must decide between the parties, unless deceit had been employed for the purpose of misrepresentation. Here the representation came solely from Woolcombe, and as far as intention went it was honest, for it was founded on his real opinion. Who, then, could be said to have committed the fraud? It did not appear that Woolcombe had acted under any instructions from others; and such

a supposition must not be presumed; it ought to be matter of proof, and not of inference.

Sir James Mansfield.There certainly was in this case a contract to take the ship with all faults whatsoever; and it had been decided on a former occasion, that such general words are sufficient to cover any particular defect, un less fraud was committed by the seller. Fraud might be committed by the using of any means to disguise a defect, or by the making of a false representation to induce any one to buy. Now, what was the description given in this instance-it was, that the hull and keel were in a particularly sound state, and nearly as good as new. This account was utterly false: it was a gross misrepresentation, and misled the purchaser; for, would any man in his senses have bought the ship if an account of her real state had been given? It mattered not whether the man who drew up this description had done so without knowing any thing about the fact, or whether he really knew it.

It was in evidence that the ship was known to be in a very bad condition long before the sale, and that the Captain had refused to have any thing done to her. 'The general words of the contract could not, therefore, be allowed to protect the seller, where a great defect, perfectly well known, had been concealed, and not only that, but a false account had been put about, which induced the purchaser to make the bargain.

The jury immediately found for the plaintiff.

Guildhall, Thursday, Dec. 23. Sittings before Sir J. Mansfield..

-Special Jury-Sandilands v. the East India Company.-This was an action on a charter party, brought by the Captain of an East India vessel, to recover from the Company who had employed her, the amount of her freight from the East Indies to this country. There were several matters in issue, amounting in the whole to twelve, involving different questions of account and expenditure between the parties; but the main subject of dispute was, whether the Company were bound to pay the freight stipulated in the agreement. The Company undertook to pay a sum certain, in consideration that the ship's cargo should be conveyed in safety from her port in the East Indies to the port of London. It appeared, from the evidence, that the ship performed her voyage in perfect safety till her arrival at Margate, when she was found to be in such a condition that she could proceed no farther, at least without repair: the crew in consequence went on shore, and an inspector of the East India Company, who went down for the purpose of taking proper measures in this emergency, found it necessary to take out her cargo, which he afterwards sent to the London market by small craft. It was impossible for the ship to undergo proper repairs at Margate, so that she could not have carried her cargo to the port of London, unless she had first gone to some dock in the river to be refitted, and had then returned to Margate to re-ship the cargo. The Com pany therefore insisted by their counsel, Mr. Serjeant Shepherd, (who was assisted by Mr. Adam) that the condition of the charter

party had not been complied with on the part of the plaintiff, and therefore that he was not entitled to recover on the agreement. The consideration on his part had failed; he had undertaken to bring the cargo to London, and had only brought it to Margate, from which place the Company had been compelled to convey their goods in crafts, hired on the occasion.

Mr. Serjeant Lens (with whom was Mr. Serjeant Best) replied, that this was a most extraordinary defence to be set up by such a great body as the East India Company. They had all the advantage of the outward and homeward voyage as far as Margate. The unfortunate accident of the ship did not keep them back one day from the market: and yet, under these circumstances, they came forward and said, that they would have their bond; all the benefits of the agree ment were to accrue to them, and, for a failure in one small particular, they refused to indemnify an unfortunate gentleman, for all his labours and his expenses, employed for their service. This was, indeed, to claim for themselves the strictest measure of justice according to the very letter; but he hoped, that their object was merely to ascertain an important ques tion, and not to ruin the fortunes of his client, who had worked for. their use and advantage.

Sir James Mansfield thought the words of the charter-party clear and imperative; the plaintiff was to be paid on consideration of a contingency, which had not been fulfilled. It could not by any pos sibility be construed, that to stop at Margate and at London were the same things.

The Jury, however, found a verdict for the plaintiff, making proper allowances to the Company for different expenses which they had incurred.

MISCELLANEOUS CAUSES.

Court of King's Bench, Monday, Feb.7.-Rex. v. Mary Anne Clarke. -The Attorney-General prayed the judgment of the Court upon this defendant, who had suffered it to pass against her by default, upon an indictment for publishing a libel upon the Right Hon. William Fitzgerald, Chancellor of the Irish Exchequer,in a pamphlet, entitled, a Letter to that Gentleman.

The libel was read by Mr. Dealtry, Deputy-Clerk of the Crownoffice. It accused the prosecutor of seducing his friend's wife, procuring the husband to be sent to an unhealthy climate, and of other matters (not fit to be mentioned in a public paper).

The defendant then put in the following affidavit, which was read:Mary Ann Clarke maketh oath, that she feels great concern at having been betrayed into a violation of the law that she hath been intimately acquainted with the prosecutor and his father for many years: that his father introduced the prosecutor to her previous to his going to college, as from the situation in which this deponent then lived she might do him much service in his progress through life. That deponent did render him many and essential services, and a great degree of intimacy subsisted between her and the prosecutor's said father, to whom she also rendered many services, and with

whom she was in the habit of corresponding for a great length of time; and that she by this means became possessed of a great numnber of his letters, and which letters were afterwards, on occasion of a certain investigation, submitted to a Select Committee of the House of Commons; that the contents of some of these letters transpired; and as defendant was informed by the prosecutor, it was suggested to him by a member of his Majesty's Government, that if those letters were exposed to the public they would be highly detrimental. to the prospects of the prosecutor and his father, and the former would be no longer able to represent the borough of Ennis, which had cost him a large sum of money; that the prosecutor became alarmed as to these letters; and immediately after they were ordered to be restored to this deponent, the prosecutor came to her in the greatest distress and agony of mind, to request the destruction of those letters; and the greater part of which he obtained possession of; and under promises of reward and favour, this deponent permitted them to be destroyed in his presence, after he had made himself acquainted with the contents. That deponent having great confidence in the prosecutor's said father, intrusted him with the keeping of many letters and papers of great importance; and amongst others, she entrusted him with a letter from a person in high authority, conveying his assurance of providing for deponent's only son. That soon after the prosecutor had gained his point, by procuring the destruction of the said letters, he totally withdrew himself from her

as a friend and visitor, where he had been previously a constant and almost a daily one, and estranged himself from all friendship towards her; and instead of the reward she had been promised, he and his father refused to return her papers which had been deposited in trust, and the prosecutor's father assured her he had destroyed them, and had burnt the said letter containing the promise of provision. And this deponent further saith, that the letters which she now hath in her possession, in the hand-writing of the said prosecutor and his father, clearly prove the truth of the above matters, respecting their correspondence with, and obligations to, this deponent, both before and since the proceedings in 1809, during a period of about fourteen years. That deponent repeatedly remonstrated with him on these matters, but finding those remonstrances unattended to, and being vexed and disappointed in her expectations, and treated with contempt, ingratitude, and indifference, she, under that influence, wrote and published the letter which is the subject of this prosecution, and which has been very little circulated.

That this deponent at first pleaded not guilty to the indictment, but being advised she could not defend herself under that plea, withdrew it, and suffered judgment to go by default, and thereby wholly submits herself to the consideration of this honourable Court. That this deponent hath two daughters, one of them approaching the age of womanhood. That she hath hitherto, under many adverse circumstances and misfortunes, given them an education, and brought them up in honour and virtue,

And that should this honourable Court, in its wisdom, deprive her said daughters of her protection, they will be left totally destitute; and she humbly hopes, that these circumstances, and the state of her health, and that in the present case, she has been actuated by no views of a political nature, but solely by the treatment received from the prosecutor in his private capacity, will be taken into the consideration of this honourable Court.

Mr.

was

Attorney-general, Mr. Parke, and Mr. Scarlett, then addressed the Court in support of the prosecution. The Attorney-General characterized the libel as the most flagrant that had ever appeared in a court of justice, as it accused the prosecutor of nothing less than felony. There was no doubt that it was as directly meant for an engine for the purpose of extorting money, as if she had commanded a sum to be put under a stone, under threat of the like revenge. Revenge, indeed, stated to be the motive of the pamphlet; and the public is always the bar to which these libellers drag their victims. "As yet," said Mrs. Clarke, "I have shown up no one who did not richly deserve to be exposed to the public; this is the only revenge I am desirous of taking on those by whom 1 am ill-treated; and having brought them before that tribunal, I rest perfectly satisfied that impartial justice will be administered.' "This hint," she proceeds, "I have just thrown out by the way, as a caution to those who either do not know, or require to be reminded, that it is not my disposition to sit down quietly under the studied injury of ingratitude, and the neglect of promises given to

from the Mother Country. Consequently a letter was written to the insurance broker, dated 19th of June, desiring him to alter the insurance, as the ship was not to return to Old Spain, but to some port in the North, for which she could more easily procure a cargo. She was more than a month taking in her cargo at the Havannah, and waited three days for convoy. In the gulph of Florida she met with a hurricane, and was wrecked on the 25th of October, in company with 150 other ships, five only of her crew escaping. It was proved by the defendant that after the 31st of August commenced, the winter risks, for which a higher premium than eight guineas was paid.

Mr. Park, for the defendant, admitted the lengthenment of the risk by the permission indorsed upon the policy, but contended that it did not permit an alteration of the terminus à quo of the insurance, which was still from Vera Cruz and the Havannah, and not directly from the Havannah, and that it was not comtemplated that the ship had not then her cargo on board.

Lord Ellenborough held that the underwriters must be taken to have contemplated the possibility of all the political changes which had taken place, and which might take place with relation to Spain; and that they had consented to the ship's procuring a cargo for England, if she could not get one for Spain. It had been proved, that it was impossible to get a cargo at all for the latter country, and sooner for the former. The Jury would say whether the waiting three days for convoy was not pro

tected by the liberty in the policy to join convoy. They found their verdict for the plaintiff.

Same v. Reid.-This was an action, under the same circumstances, upon the ship.

Mr. Park, for the defendant, contended, that the letter of the 19th of June did not convey to the underwriters such information as would induce them to turn a summer risk into a winter one. The liberty given by the policy was to touch and unload; and if the underwriters had been informed that the ship would have run the chance of lying five months at the Ilavannah, they would never have undertaken the risk; they merely meant by the indorsement on the policy to give the assured full opportunity of changing their destination.

Lord Ellenborough laid it down, that a policy of insurance contemplated the performance of the voyage with all reasonable expedition; but if a voyage were protracted to a subsequent year, if this were done bona fide, the underwriter would still be liable. He remembered a case before Lord Kenyon, where a ship not being able to put into a port in the north, actually came back to England, and tried again the next year, and the assured having used no undue means to protract the risk, the underwriter was held still responsible. No doubt the present became a winter risk; but if this were by no fault of the assured, but by the extraordinary occurrences of events, to which the assured was not contributory, or over which he had no control, he was still in a situation to recover

« ForrigeFortsett »