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themselves. The question was, June, 1806, the bankers entered whether the plaintiff's had a right into an agreement with Thomas to prove, under the defendants' Smith, reciting that the defendants commission, a demand of 314,5811. kept an account (which was al3s. for advances to the Scotch tered by Mr. Edward Kensington house of Messrs. Scott, Smith, to “ accounts”) with the bankers, Stein, and Co., and 55,4481. 15s. and that they had applied, and 4d. to the London house of the might have occasion again to apply, defendants. It appeared that in to the bankers, for discount and January, 1803, the defendants advances, and therefore Mr. Thoopened an account with Messrs. mas Smith agreed to deposit with Kensingtons, for their house in the bankers the lease of the detown; and on the 3rd or 4th of fendant's premises in FenchurchAugust afterwards, for the Scotch street, and a certain policy of ashouse, through the agency of Mr. surance for 8,0001. as a general Thomas Smith, and that it was security for the repayment of all agreed that no advance of money advances, past and future, by the was to be required from the bank- bankers to the defendants, or ers, and that they were to have (altered to and) Messrs. Scott, 20,0001, running at a time in bills; Smith, Stein, and Co., or either for the trouble of negociating of them. The defendants also dewhich, the bankers were to have posited with the bankers secua commission of one-half per cent. rities in bills of exchange, and of The agreement, however, was im- lading of spirits, &c. the Messrs. mediately departed from in prac- Steins being engaged also as distice, and the bankers were soon tillers in Scotland. These secuand perpetually in large advances rities were changed from time to to both the Scotch and the London time by the defendants. The dehouses, insomuch that the com fendants' assignees now contended, mission upon their advances ave-- that the whole of the advances in raged 161. 8s. 8d. per diem. The question were made under an usupartners of Messrs Kensingtons' rious agreement for one-half per house were all examined at great cent. under the name of comlength, as well as the defendants, mission; and that, therefore, the and they contradicted each other plaintiffs had no legal right to reas to the circumstance of the cover : and Lord Ellenborough left former house knowing that Mr. it to the Jury, whether the bankScott, of the Scotch house, died ers had not, under an unfortunate in 1797. It appeared that Messrs. lure of a large commission, been Kensingtons never knew Mr. Scott, thus tempted to take more than and dealt with the Scotch house 51. per cent. for their advances. only through Mr. Thomas Smith. If so, the law was irresistible that They admitted, however, that this was usury.
The knowledge they heard of Mr. Scott's death in of the circumstances was brought 1806, but always afterwards con home to some of the partners, and sidered that his family derived the law was, that the knowledge some benefit from the trade of the of one partner was the knowledge Scotch firm. On the 24th of of all. If Mr. J. P. Kensington
had interfered further than he did his charge to the Jury, by saying, in the management of the bank, that it was not less painful to it appeared that the house would hiin to direct, than it would be to not have fallen into its misfortune. the Jury to find, that, in this case, If the bankers had abided by their the evidence was irresistible: that agreement of never beiny io ad- the commission was an induceVance, there would have been no ment to the advances of money usury, which must be taking more in question; and that, therefore, than 51. per cent. for the loan or they were usurious, and could not forbearance of money : but if the be recovered at law, 'or proved commission was connected with under a commission. Both his the fact of being in advance, and lordship and the Jury were, howoperated as an inducement thereto, ever, bound to do their duty with then it was unquestionably asuri- firmness, however hardly the per
It had been rightly held, formance of that duty might affect that when bankers were put to those whose misfortunes ought to trouble and inconvenience colla- be treated with the tenderest reteral to the advance of money, spect, and who appeared to have such as was occasioned by sending deserved a better fate. specie up to London, entailing an The Jury, nevertheless, after expense in the disposal of it, and retiring for a very short time, found by keeping houses and clerks in their verdict for the plaintiffs. town for the
management of their business, they were entitled to a Guild-hall, Wednesday, Decemfair compensation to meet these ber 22.---Sittings before Sir J. charges; but if they overstepped Mansfield.-Schneider v. Heath. what was bona fide due to them This was an action to recover the for such compensation, and mixed deposit money (3971. 2s.) paid on with it the consideration of their the purchase of a ship, which ship advancement of tnoney, that was had since turned out to be unseausury. This his Lordship laid worthy and useless. down as uuquestionable law. The Alexander Hutchinson, the plaintiffs' counsel adduced evi- broker for the plaintiff, swore, that deuce, that one-half per cent. was on the 23rd day of July last he was the usual charge for business, such present at Lloyd's, when the ship as the bankers transacted for the Juno was put up to sale :, he bought defendants; but in the cases ad- her for 1,5807., and paid down a duced, the parties mixed up the deposit of 3971. 2s. The day prerisk, they were at upon the bills vious to the sale he went to the negoriated as part of the consi- London-dock to examine the vesderation, and his Lordship ruled sel; as far as he could judge she that that was usury too, and refus was a good vessel ; but as she was ed the plaintiffs' counsel to take in the water, it was in possible for Messrs. Kensingtons' risk into con- him to inspect her hull, and keel, sideration, offering to seal a bill of and lower timbers. At the time exceptions, in order that the ques of the purchase he sigued a paper tion might be set at rest before the of conditions, one of which was, House of Lords. He concluded that the vessel should be taken
with all fuults whatsoever. At the Thomas Thoinpson deposed, that same time, however, a printed re he was foreman to Mr. Ayles, the presentation, signed by the defen- shipwright: the ship Juno was dant, was put about, and read in brought to their dock to be examinthe public room; in which it was ed so long ago as the 19th of March stated, that the ship was unusually last: (this was three months bewell founded, and would require fore the sale, at Lloyd's) : her keel very little outfit; that her hull was was then much broken, and her particularly good, and her keel and hull worm-eaten. Captain Rutherlower timbers as sound as new. ford (the captain of the vessel) saw This representation was of course a the condition in which she was, but great inducement with the witness would not let them do with her to make his bargain. Immediately what they proposed; he told them after the purchase, the ship was to put her into the water again, taken to the dock of Mr. Way, a which was done the next day ; he shipwright, to be prepared for her. had not seen her since, till she was voyage. He then had an opportu. taken to Mr. Way's, when he knew niiy of viewing her all over, and her to be the same. saw that her bottom planks were Christopher Wynne was clerk to completely worm eaten, and her Ayles and Co. Captain Rutherkeel broken : he never saw a vessel ford was present at the inspection in a worse state. When she was of the Juno in March last, and saw floating in the water at the London that her keel was broken, and her Docks these defects were complete bottom worm-eaten; she was by ly concealed.
his order, however, put into the Mr. Woolcombe, the agent for water again next day without any the defendant, was next called.- repair. One guinea was charged He sold the ship: he had seen her for the trouble. Captain Rutherbefore and after the sale. He had ford said, he should see Mr. Wildrawn up the description of her ac son, the agent for the owners, and cording to the best of his judgment: would get the guinea from him. he did not see her keel and hull, The Captain then gave the witness but from the appearance of the up- the ship's papers to take to Wilsou, per parts of the vessel, he con and witness left them at Wilson's ceived that the lower were equally house. Captain Rutherford said, good. He had seen her since ; her he feared there would be some bottom was much worm-eaten, and trouble about the ship. she certainly did not answer the John George Wilson had receive description which he had given of ed some papers belonging to the her. He would not have described Juno, from Captain Rutherford : her in the manner which he had, he was himself merely a by-stander if he had known the real state of at the time of the sale: he was sethe ship.
cretary to the club to which the Cross-examined.--He said, that ship belonged : it was sold for the at the time of making his repre- benefit of the underwriters : 'the sentation, he really believed it to club was chiefly ship-owders, and be correct. The ship belonged to Mr. Heath was one. He himself á clab.
never saw the ship, and he knew VOL. LVI.
pothing about her; he saw Cap- a supposition must not be pretain Rutherford, but never had any sumed; it ought to be matter of conversation with him about the proof, and not of inference. sale of the ship or its conditioni. Sir James Mansfield. There Mr. Juhn Bedwell, one of the club, certainly was in this case a conpaid the guinea for putting her on tract to take the ship with all the way at Ayles's dock.
faults whatsoever : and it had been Jeremiah Mackinlay, a foreman decided on a former occasion, that to Ayles, said, he received a gui- such general words are sufficient pea the day the ship went off the to cover any particular defect, un, way: he gave a description of her less fraud was committed by the state precisely similar to that of seller. Fraud might be committed the other witnesses who saw her at by the using of any means to disthe dock.
guise a defect, or by the making Mr. Serjeant Shepherd, for the of a false representation to induce defendant, contended, that when any one to buy. Now, what was a thing was sold in public under a the description given in this incondition that it was to be taken stance-it was, that the hull and with all faults, the purchaser was keel were in a particularly sound not afterwards at liberty to avoid state, and nearly as good as new. his bargain, on account of any par. This account was utterly false : it ticular defect, unless a case of evi was a gross misrepresentation, and dent fraud could be inade out. misled the purchaser ; for, would Those who sell by such a general any man in his senses have bought description were not bound for the ship if an account of her real specific warranty. The broker, state had been given? It mattered in this case, had given such an ac not whether the man who drew up count of the state of the ship, as he this description had done so with thought he was justified in giving out ķujowing any thing about the from her appearance: this turned fact, or whether he really knew it. out to be an erroneous opinion, but It was in evidence that the ship there was not the slightest evidence was known to be in a very bad of his having acted fraudulently.- condition long before the sale, and The case, then, was exactly simi- that the Captain had refused to lar to that of Pickering v. Down, have any thing done to her. The where it had been adjudged, that general words of the contract could the contract must decide between not, therefore, be allowed to prothe parties, unless deceit had been tect the seller, where a great de. employed for the purpose of mis- fect, perfectly well known, had representation. Here the repre- been concealed; and not only that, sentation came solely from Wool- but a false account had been put combe, and as far as intention went about, which induced the purit was honest, for it was founded chaser to make the bargain. on his real opinion. Wheo, then, The jury inmediately found for could be said to have committed the plaintiff, the fraud It did not appear that Woolcombe had acted under any Guildhall, Thursday, Dec. 23. instructions from others; and such Sittings before Sir 3. Mansfield.
-Special Jury-Sandilands v. the party had not been complied with
necessary strictest measure of justice accord to take out her cargo, which he ing to the very letter ; but he afterwards sent to the London hoped, that their object was meremarket by small craft. It was im- ly to ascertain an important quespossible for the ship to undergo tion, and not to ruin the fortunes proper repairs at Margate, so that of his client, who had worked for she could not have carried her their use and advantage. cargo to the port of London, un Sir James Mansfield thought less she had first gone to some the words of the charter-party dock in the river to be refitted, clear and imperative; the plaintiff and had then returųed to Margate was to be paid on consideration of to re-ship the catgo. The Com. a contingency, which had not been pany therefore insisted by their fulfilled. It could not by any poscounsel, Mr. Serjeant Shepherd, sibility be construed, that to stop at (who was assisted by Mr. Adam) Margate and at London were the that the condition of the charter- same things.