The Express.
London, England, 1864-11-16 00:00:00

COURT OF COMMON PLEAS.

Sittings in 13n0v.-7(Befor! Lord Chief instic.6 Erie .11,1

JuatiCee Kyles mid Keating.)

110888 V. SEIZCRE Or TIIE PETEL:i
- .

This was an action to recover the amount of 1 pu,
insurance upon some goods which were on board ti.,. Pet, •
hoff when she wss seized and condemned by tLe I Lit.
States., and the question now raised upon demurrer w..
whether the circumstances of the seizure set out ..q.L tLL

pleadings were an answer to the action, and exercp.t.l
underwriters from liability.
Mr. Temple, Q.C., for the plaintiff, said that his
had insured certain goods on board the I'eterho't,
voyage from London to Miitamoras, and the pJliey w
the usual form, and contained all the usual provision-.
the 7th plea the defendant pleaded that the goods
tion were contraband of war, and were shipped 1., •
plaintiff and Messrs. James Wetherell and Co., to
ported into a State of North .Imorica. a u
with the United States, and were liable
seized as contraband of war ; that the shin wa
carrying goods and papers which rendered her liab:e to
seized by the United States cruisers,that the ship a:,.1
were seized accordingly, and that this constituted
complained of. The eighth plea alleged that tla, ‘al,l
and goods were seized by the cruiser of the United ,
and carried into a port of the United States, and
such proceedings were had that it was
terniioed by the United States Prize Court it.
York. That the ship was known to be on a voyage sass:
in whole or in part with articles that were contra, ,r.
war ; that the ship and cargo were not truly
for the port of Matamoras, but for some other • :,
and were going there in aid of persona at wa-
the United Sates; and that the ship's • r
were simulated and false as to Ler
tion, and that it was adjudged by the r .f •
at New York that the ship and cargo should be f.,r!..t.
and this was the lose complained of. In the 7th p 1... ::.. r-,
was a demurrer, and also a replication denying the .
the facts therein stated. du the cth plea there w.., ;
mnrrer ; and the matter resolved itself into te, .
tioos—tint, whether the 7th plea was a g,
swer to the action ; and secondly, whether
judication of the court of New York was co,
in this country so as to operate as au estoppel to prevc...
plaintiff from recovering in this action. Now as t, to ;7,
plea, he had to contend that it contained upon the
no answer to this action. The defendant said that tL
were contrabaud of war; but that of itself was n..
to the action, for there was nothing which !
it illegal to export goods which were contra' •
war so far as the law of this country a
concerned. The authority for this was "Arnould,
page 76%6." The plea added that the goods " were ;.i..
by the plaintiff and J. Wetherell and Co., for the r arp.,.,
a being sent to and into a port in North Amer:.
State which was engaged in hcstilities with Cu I
Sates of America." That allegation carried the c.:,
further and was of no effect, unless it ..::
that the ship was going to break the : ,•
sde. There was nothing illegal in
these goods to a port in the Confederate States
not blockaded. The plea did not seen allege that the
was going direct to the Confederate States. There wa..
doubt that Matamoras was used for the purpose of buti:n-
ing stores by the Confederate States, but Le cQnt,t.:•,l
that an English merchant had the right to ~1 !
any goods to any neutral port, eren
he might know in his own mind that they were
likely to find their way into the Confederate states. 11,.re
was no doubt that if the plaintiff had intended to break the
blockade his act was illegal. The plea went or., "axd
that the said ship in the plea mentioned wasoluzin.; the ~,n-tinuance
tinuance of the risk, carrying. goods and papers that
rendered her liable to be seized by such cruisers.'
That, however, carried the case no father,
for the carrying of contraband of war ini,:ht
remove then], liable to seizure by the cruisers, yet it w‘s
competent to the ship to carry such goods so far as the jaw
of tha country were concerned. Upon these grc,..i.ds ho
contended that the seventh plea did not allege acytL.L.
.in
answer to the action. _ _

The Lord Chief Justice said that the plea conukur.l au
allegation that the receiver was ignoraat of these Lets.
Mr. Temple—That would be a question of fact f.r the
ary
The Lord Chief Justice—The demurrer admits it. ad
therefore u yon ay nothing about it, you say it signuice
nothing.
Mr. Temple continued that the insurer being ignorant of
the facts wasunimportant.

The Lord Chief Justice—You say if all the premises are
immaterial, the knowledge of them mud be immaterial also:
Mr. Temple—Just so. The eighth plea set out the
I words of the judgment of the New York Court, and pleaded
that judgment as an estoppel. As to this plea, Le pro.
posed to argue this proposition that a judgment in a foreign
Court of Admiralty is conclusive in this country only
provided that the English court could see clearly the grounds
upon which the foreign court went, if this foreign court set
out the grounds of their judgment. This proposition was
I clearly laid down by Lord Chief-Justice Tindal in "Dalgish v.
Hodgson" 7 Bingham. Now astothe terms of the condemns,
tion of the plaintiff, it must be remarked that the document
from first to last applied only to the ship, whilst the policy
in question was au insurance upon goods. It was of im.
widows) to bear this in mind, beususe there was • great
deal of difference between ',hips and cargo. The sentence
of condemnation alleged "that the ship was laden in
whole or in part with contraband of war," bat
' it did not appear that the plaintiff's goods were contr.-
band. It continued " and had thetu in the act of transport.
ation at sea • sad that the said ship and cargo were not
truly destined to the port of Matamoras ;" but that was no
ground for consideration. if the plaintiff had invited his
goods for Matamoros intending that they should go direct
to some other port, that would be concealment
which the defendant could set up in answer
to an action upon the policy, but it was no
ground of seizure. The condemootion continued : " And
that the said ship and cargo was not truly destine I for the
port of Matamoros, but on the contrary to some other port,
and for the use and in aid of persons at war with the
United States." All these facts taken together furnished
no ground for 000demnatioe. It was added "And that
the ship's papal s were simulated and false as
to their real destination;" and upon this allegation
a separate argument would arise. If the ship's papers were
for Matamoros when the ship was intended for Nassau
that would be a defence for the undorwriters upon an action
on the policy, but would be no ground of condemnation ;
and this deistic* the underwriters raised by their plea.
His contention was that the re was no ground
for the condemnation of these goods for any
violation of the law of nation., which was
necessary in order to support the plea. It was true that
it was said that this had been dons in violation of the
law of nations, but the judgment set out no facts toauppart
this conclusion.

Mr. Justice Byles—Two things are alleged : that there
wr coutrabsod of war and also simulated papers, which
are infectious, and destroy the ship sad cargo.
Mr. Temple—l say that is not ettough.
[The CAN sou proceeding when our report left

COURT OF EXCHEQUER.
Sittings in Banco.—(Before Lord CLA Baron Pollock sad
Barons Bramwell, Ctaanell, and Pagott.)

zwANs AZD oraras r. joses AIAD. BASE

ECM Y ACT.

This was an action by the plaintiffs against the defend-
ante to recover 12:d., and it now came before the court by
the consent of the parties as a special cone, the question
being as to the validity of a deed of assignmeot mu le by
bankrupt named Scala, conveying over bin property to
trustees for the beoent of his creditors. Ti.e contention on
the part of the defendants was that the assignment was
void, as it was not for the equal benefit of all the creditors
nor a surrender of the wnole cf the bankrupt's estate.
They also contended that it was void under the statute of
Elizabeth.

Mr. Sarjeant Hayes was heard for the defendants, sad
Mr. Hannan on the part of the plaintiffs.
The Quart thought that the deed was goxl welt% the
Bankruptcy Act and gave judgment for the plajatitls.
Judgment for the plaintiffs.

COURT OF PROBATE AND DIVORCE.
(13efore the J edge Ordinar, 4
!frail. V. HYATT.,
This case, which was partly heard o. Sat inlay, and which
has already been reported, war resumal ; and was stul pro-
greasing when we went to press.

SECONDARIES' COURT.
(Before Mr. Secondary Potter and a Jury.)
TEI BOMISAY AHD CEZTHAL INDIA RAIL NY coNtrANY r.
PEZI.DI4.—LIWORTANT To ILYILWAY (rEFICLtte.
This was ao action in the Queen's Bench I.v the &rectors
of the Bombay and Central India Railway Company to re-
cover of the defendant, a young man named Andrew for
king, a penalty of 3001. for a breath r.f agreement as a dim-
triet superintendent of the works at Bombay.
Mr. J oyes appeared as counsel for the company, acd Mre
Nicholson for the defendant.
_ _

As the defendeot had allowed judgment to go by default,
the only question wu the amount of damages to be awarded
by the jury. The cashier of the cou•pitoy was called, sal
proved that the defendant was engaged at 250/. a year, and
saved an agreement. He was paid a monthly salary, and
the company bed paid 1071. for hie paaaege out.
Mr. Joyce said he had proved his cue. The defendant
had admitted that be had left the service of the comas).
The action was to recover the penalty, on the ground that
the defendant had quitted the employment without notice.
and be was therefore liable to the full amount of the
penalty.
Mr. Nicholson said the defendant waa forced to leave
Bombay as his health gave way, and now he was without a
shillisg, and could not pay any damages. He had been is s
situation of 40/. a year, and took the situation, but the
climate of Bombe was too severe, and he was compelled to
return to Englan
answer to Mr. ?beldam, the cashier said be knew of
parties who had been to India returning on account of their
health. He had never bees to ladle himself.
Yr. Nicholson prayed the jury to consider the situation
of the poor defendant • he got to India and was obliged to
own to &gland. He'had not repaired his salary.
Yr. Jove@ denied that there was any salary owing to him.