The British Press; or, Morning Literary Advertiser.
London, England, 1826-07-05 00:00:00

COURT OF ZINO'S BENCH, GUILDHALL, Jtmy 4.

Before the LORD Cuter JUST/C1 and a Special Jury.)
SANDERSON AND OTHERS L. NESTOR.
was an action brought t.y the plaintiffs, who are wine mer-
chants, to recover from the defendant the SUM of 9341. ha. being
IN? amount of three bills of exchange drawn by Mr. Morns, a
vrtne'merobant. in Nortlitimbetland-street, Strand, accepted by the
tleferdanr, and indorsed by the drawer to the plaintiffs,
The ATTORNEY-GENERAL, Mr. GI7RNET. and Mr. ARRA-
stasi, were Counsel for the plaintifli ; and Mr. CHITTY for the
defendant.
The necessary proof having been given of the signatures of the
diff:ront parties to the bills,
lie. CIIITTY then objected to the validity of the bills for
2241. 19s. and 2021. Gs. upon the gratin(' that they bore an im-
proper stamp, being written on a Ls. instead of a 6s. stamp, as di-
rected by Act of Parliament.
The LORD CHIEF JCSTICE thought the objection good, and
that the &Ulna on those bills could not he sustained.
Mr. IiCARLETT then stated, that in the year 1619 an agreement
was entered into by the defendant tolnurehase of Mr. Morris the
of his business of an army agent, in which .Mr. M. was
olglided, in C•eil-stteet, Strand, and which was represented as a
prnfitable concern- The bill% in inn 'Men were part of the
enniideeetinn then paid for the business and the premises in which
it.win; carried 011. Soon after the purchase hail been made, the tie.
trachint discoverer) that the bristliest; chiefly consisted in effecting
hates and exchange; of army commissions Above the reguLition
peicas, wtaid, being illegal, the defendant was it•.xiotts to abandon
his purchase, and he accordingly gave notice to Mr. Morris that he
sitoard not considA himself liable to Iteniitr the bills ;then they
can.- to maturity. When the bills became due they were returned
1., 11 r. Morris dishotoured, alto paid their amount. The plaintifik
v—re on; y acting as the agents of that gertletnan, and consequently
wet," rtie. en titl.id to recover, the ;r principal having no such right.
The Act-calla/It had suffered very severely already from making
noel, an improvident bargain, this being no less than the fourth
;whin brought against hint on occasion of thre hills. One of them
la,cly tried la Ireland, where the Learned Judge hail advised
defendant to withdraw a Juror, upon the understanding that
tire pi tioittlis should release him Iran all further claim, which the
defendant accoedingly consented to do. The Learned Counsel then
~.4tiey several witnesses, with a view to establish these facts, bat not
being *Ye to do ma satisfactorily,
Tee Jury, by Hi Lotdehip*s direction, found a verdict for the
plaintitlit, /181. jnohnling principal and noeres..
NOCSELLS v. LUCAS AND OTHERS.
This was an action of trespass brought by the plaintiff, who is
the owner if the *hip call, d the Ementlii, agamst.llr. Alderman
leer,. d Mt. AlderinAß ThompS , the:sheriffs of the ens
.JI !Audio, and two a their r ained 4.11 n Davis and

Wm. Bull, and also against Messrs. Hepley and Longhorn, met..
(-hams. and Mr. Etkie, an attorney, for breaking open the
hatches of the plaintiff's ship, the Emerald, and unlawfully taking
away certain goods therefrom. The defendants pleaded, first, the
gentrAl issue of not guilty, and secondly, a justification, alleging
that the goods on beard the ship were the property of a Mr. Thorn-
ton, who had given a warrant of attorney to Messrs. Ilepley and
Longhorn, upon which they had entered tip judgment, and
issued a writ cl fiteras, and that the alleged trespass was com-
mitted in the due execution of that writ. To this the plaintiff replied,
that the goods were not the property of Thornton, and that the in,
jury was dour in the defendant's own wrong ; whereupon the issue
was issued.
Mr. SCtRLETT stated the case on the part of the plaintiff. He
dared say, these of the gentlemen of the jury who were in the habit of
trading the newspapeta, had read the account of sonic proceedings
'which had taken place in the Court of Chancery lately, and which
had caused considerable surprise. They would remember that
gentleman of the name of }an Sandau had so connected himself
with some of the late Bubble Companies in this city, and had ex.
perienced such treatment, as to find it expedient to file a bill in
canny against the parties; and being advised by counsel that lie
could Poste it against one or two only, he consequently filed it
against several. But how was that gentleman treated ? There
was only one attorney for those several defendants, and he put in
separate answers for every one of them all of which were tothleni
ver Iris the same. The result was, that tlr. Van Sandau wai token
In, as the coals incurred by this proceeding exceeded the amount of
his despond. Now the attorney who appeared for the defendants
In that cause had the merit of originating such a course of proceed-
ing. lint he ('tie. Scarlett) wished to.day to place the saddle upon
the right horse, and claim foe the Court of King's Bench that
honour which the- Court of Chancery had hitherto been con.
aidered exclusively entitled to, for the present action was pending
before the bill of Ale. Van Banditti was filed. This action
was against seven defendants, and Ale. Eikie, one of them,
appeared for all. He had taken out 'Ocren different sum.
Marini for particulars of the' plaintiff's dereldnd ; be -had pleaded
five justifications, and seven pleas of the general issue, whereas one
would have done tar alt. He had afterwards served five separate
notices on the plaintiffs, to produce documents on this trial. This
was certainly • very expedient mode of multiplying actions and the
coats upon them, and he (Mr. Scarlett) thought it was rather hard
that the Court of Chancery should bear the stigma of such a roc-
' thee, seeing that it was the Court of King's Bench that had ori.
ginated it for it was to Ale. Eikie that the invention of this Inge-
I nious contrivance belonged, and he was the first who exercised the
happy talent of multiplying fees which his (Mr. Scarlett's) client
had been obliged to pay. But such a course could be resorted to
with no other object than one—that was, to put money into the
attorney's pocket. When he should come to state the present ease,
the Jury would see whether this cause also had not originated by
some very ingenious advice given by. Mr. Eikie. The facts of the
case were these :—Allr. ho.nton being indebted to Altars. Hepley
and Longham, employed the ship Emerald to take a cargo to New
South M ales, and when there, he freighted it back to England,
consigning the goods to Hepley and Langhtun, they or he to pay
the freight, according as it should be specified by the chatter party.
When the cargo arrived, and it appearing by the charter party that
the freight wait to be paid by Hepley and Longhorn, it became a
matter of-consideration with them whether the cargo would be of
sufficient value to make it worth their while to accept it, upon
payment of the freight. If they had accepted the goods as con.
signers, under the btll of lading, they would have been bound to
pay the freight. Under this difficulty, w‘tat were they to do
Why they resorted to Alt. Ejkie, 'who no doubt said to them,
`t Il hr you have got a warrant of attorney against Thornton,
treat die goods as Thornton's goods, enter up judgment upon the
warrant of attorney, sue out execution upon it, and let the goodi
be taken from the Sheriff, if whom you can purchase them without
sustaining any loss." This was certainly an ingenious piece
of proceeding; but the question was, whether it would be
sustained in a Court of Justice? The plaintiff maintained
that the whole was merely a colourable levy, suggested by
the attorney, in order to obtain the goods which Messrs. Hip.
ley and Longhorn had claimed as their own until they found the
cargo would probably' not be worth more than the freight. The
question therefore for the consideration of the Jury would he, whe.
thee the procsedings were not false and void. The execution was
• fraud upon the shipowner. The attempt was to get the goods
under a colourable title as purchasers, in order that they might say
to the shipowner that they dhl not claim as consignees, and were
fheref‘re not liable to pay the freight. If such s proceeding were
to be tolerated, there would be no security in commercial dealings,
as it would only depend upon the state of the market whether per.
sons would comply with the mercantile custom of accepting goods
as consignees, who were the creditors of the consignor' or by a
contrivance get possession of them under a colourable sale from the
Sheriff. In the present case, he submitted that the whole proceed.
logs were fraudulent, and that the plaintiff was entitled to recover
the full amount of the cargo, and that the freight might be settled
thereafter.

The bill of lading was then put in.
William Nockells stated that he was the plaintiff's son, but that
he had no interest in the ship the Emerald. Ile went abroad in the
ship. and brought home the goods to England. When the ship
got to Gravesend, one of die Mr. Langhams came on board and
inquired fur Captain Elliot, and also asked waat quantity of oil
was on board. On witness informing him what the goods were,
he said lie expected more. After that another Mr. Langham came
on board, and w!shed the ship to remain in the river, but witness's
father (who is the sole owner of the vessel) said the vessel should
go Into the docks. This was after the hatches of the ship had
been broken open. • Witness saw the Shariff a' officers, Davis and
Bell, on board.
Captain Elliot stated that he accompanied the plaintiff to the
counting-house of Messrs. flepley and Langhatn, and informed
Mr. Langliam that the ship was arrived, and that if they would
pay the faight, be would deliver the goods where they pleased,
but Mr. Ilepley gave no answer.
A clerk from the Custom-house produced the duty warrant and
port entry of the ship, and the usual affidavits.
-- Grove proved the entries to be In the hand. writing of Mr.
Langbam.
An affidavit by lAngham that the goods were British property,
and had not been sold within twelve months, was put in.
James Brown, a person employed on board the vessel, proved
that when the Sheriffs' officers came on board, the plaintiff ordered
the hatches to be locked down ; anti that the officers ordered them
to be broken open. They were broken open by a party of lumpers.
The plaintiff made no resistance, and the cargo was taken away,
Gilbert Tufnel, an officer of the Customs on board the Emerald,
proved that Mr. Eikie came on board, and that the hatches were
broken open by his and Mr. laingham's direction.
The necessary proof of the writ officrifacias, and of the defend-
ant., Davis and Bell, being Sheriffs officers having been given,
that ended the plaintiff 's case ; it being agreed that the amount of
the freight due to the plaintiff should be ascertained out of Court.
The ATTon NE Y-GENE HA L. who appeared on behalf of the
late Sheriffs, submitted to his Lordship that Mr. Scarlett had not
proved sufficient to support his case. There was a bill of lading of
certain goods supplied by Thornton and consigned by him to
' Meters. Ilepley and lainghant, lie or they paying the freight.
Prima facie the freight was payable by the consignor.
The Loan Cut EY JusiiCE said that prima facie the owner of
the ship had a lien on the goods on boartlfor his freight. Whatever
the amount might be was immaterial to the question whether
Messrs. llepley and Linghtun could by their judgment take the
cargo away without satisfying the plaintiff's lien.
The ATTORNEY-CIES:Cam. then addressed theJary, and said
that he had every reason to believe that, when he bad presented the
cue to their consideration, they would be of opinion that the de-
fendant was entitled to a verdict. Ile was there only for the She-
riffs. The person who instructed him was not Mr. Eikie; he did
not feel himself, therefore, celled upon to reply to the observations
which had been made to the disadvantage of that gentleman. But
it did appear to him a little strange that his Learned Friend should
have indulged in such remarks, because, in tact, the plaintiff's
attorney had invited this species of defence.
The bow CHIEF JUSTICE thought there might havel been
three e.purate pleadings. The Sher.ffit might have pleaded by
themselves, the officers also by themselves, and the other defend-
ante might have pleaded jointly.
The AT IORNET.GEN ERAL said, that as far as his clients were
concerned, they were justified by his Lordship for having pleaded
separately. 'they had not relied upon the assistance of the other
parties. His Learnt d Friend had said something about fraud in
this case. He was quite sure there was no ground to impute fraud.
The fact was, the parties were relying upon their legal rights, and
the only question was, whether they were justified in point of
law in the course they had pursued. What were the facts
Thornton owed Ilepley end Langham a debt, and when these
goods came to this country they came charged with freight beyond
their value. If then Hepley end langharn had taken the goods so
paddled, so far front reducing the amount of the balance due to
them, they would he increasing it. But they were advised that
having a warrant of attorney they might levy execution on the goods
without incurring the charge of freight. After all, it resolved itself
into a mere question of law whether the plaintiff was or was not
entitled to claim a lien on these goods. The Learned Counsel then
argued that the nature of the charter party, which stipulated that
the Captain was to retain only a part of the vessel, had in effect
vested the property of the vessel in Mr. Thornton ; and further,
that it also stipulated that the freight should be paid ten days after
the delivery of the cargo. He therefore submitted that under
there circumstances the plaintiff had no lies) whatever on the
cargo, and no right to interfere, and that Allessrs. Ilepley and
Langhant had a right to insist on their strict legal claim to go and
take possession of the goods without consulting the plaintiff at all.
After their being a charter p irty under the seal, the parties must
rely entirely upon their obligation under it, and not resort to any
other right which they might have had in the absence of any such
instrunitnt. These were the facts he should establish, and having
done so he should feel entitled to a verdict for his clients.

Mr. Common SERGEANT, on the part of 31r. Lille, said that,
after the severe and uncalled-for remarks made by Mr. Scarlett, on
the conduct of his client, it became him to address one or two ob-
servation, to the Jury. The charge which had been made against
Mr. Eikie he would pronounc.! to be utterly unjust. That gentle.
man hat been most improperly made a defendant in this case,
when he might have been a very good and necessary witness to
have explained the circumstances of this transaction. When the
diameter of parties was attacked by unfounded charges, it was
of justice to any individual for Counsel to state the facts as they
really were. Mr. Eikie had offered to comprise the *tittle of the
pleas into ones provided the But
would convent to strike his
name out of the declaration. But they would not agree to that;
aid when the plaintiff afterwards applied to Mr. Justice (now. Lord
Chief Jumice) Best, to have the 'lris reduced. on that fact being
expb.intd. his bardthip refused to have anv thing to do with it.
Ltider.ce was then given of the proceedings in the Court of