The British Press; or, Morning Literary Advertiser.
London, England, 1826-02-04 00:00:00

COURT OF COMMON PLEAS, FItDAT, Ps.s. S.

DOUG•f. v. [!NILE.
This was an action of annuitant, in which Mr. Hoop!, a ship.
owner, was the plaintiff, and Mr. Kemble, a sugar.broker, was the
defendant. The action was brought by plaintiff to recover pay.
ment few the freightage of several hogsheads of sugnr, which bad
been originally consigned to Messrs. be Point and CO., who have
since failed. It appears the sugar remained during the month of
November in oue of the warehouses of the Welt India Dock Corn.
pony, and that the bill of lading, which was drawn up in the usual
form, was assigned to the defendant, who thereupon proceeded to
demand the delivery of the goods, which he obtained. He subse- '
quently refused to pay for the freight of the goods, on the ground
that he had been employed by the consignees to dispose of the
goods for their benefit, and that he was not therefore liable.
The Jury, however, found a verdict for the plaintiff.
Mr. Sergeant Tamil, moved on a former day for a rule to
show cause why the verdict should not be set aside and a nonsuit
entered. _

Mr. Sergeant wil.Dr sho wed cause against the rule, and con-
tended that there was a new contract formed on the part of de-
fendant by taking the bill for the goods. Ile begged particularly
to call the attention of the Court to the case of Cock and Taylor,
13 Bast. p. 399. This was a case in which judgment had been
given in that Court, and which was strongly analogous to the pre-
sent. The goods were shipped making them deliverable on pay-
ment of the freightage, and it was but teasonable that the freightage
should be pail by the individual who received them. It had been
contended that the consignees hail been applied to for the payment
of the sum in dispute instead of the defendant; but this had been
done in consequence of plaintiff being ignorant that the consignees
had parted with their interest. A party receiving a bill of lading
was not only considered in the eye of the law as knowing the
freightage, but was viewed as consenting to pay it. In Cock and
Taylor, the declaration was; in the form of the one In the
present stilt; it was to recover for the freight of certain goods.
The goods were not on board, but the well-known Act of George
111. had settled that it was sufficient that they were in the Docks.
The Learned Gentleman cited Bell and Rymer, I Marshal, and
other authorities,to show the practice in relation to the freightage of
goods.
Mr. Sergeant Tarim', in support of the rule, said that the mere
delivery of goods would sustain an action in Civil Law, but
freight required some contract. This contract enabled the ship
owner to detain goods until the expenses were paid, but it did not
enable him to bring an action after delivery. The Learned Sergeant
recollected a cause in which one of their Lordships was Counsel.
11r; Justice Plt g—l recollect the cause to which you allude ;
and I recollect that I was using all the arguments you are now
using, and the Court refused to grant me a rule. (A laugh.). In
one of the cases alluded to by his Learned Friend, the defendant
was purchaser of the bill of' lading, but the present defendant was
not a purchaser. If brokers who received goods under bills of
lading were to be held liable for the payment of freight, the most
serious inconveniences would result. The broker would under
those circumstances be obliged to say to the consignee, " before I
transact business with you, you anise get the goods carried under
your own roof; I can take them then without any liability." It
was also a principle that only one person could be liable: it
the consignee were liable the present defendant, the endorsee of the
bill of fading could not be so. It was particularly to be ob.
served that where one party became liable for another, the condi-
tions must appear on the face of the declaration; this bad been
neglected. The Learned Gentleman concluded by observiag, if
the broker was to be considered liable for receiving the goods,
he was liable to any extent. It should be recollected that the
broker must produce the bill of lading before lie could procure the
goods; therefore to make him liable would be unjustly to impose
on him a great responsibility.
The Loan CHIEF JUSTICE said, from the first moment his
Lordship did not entertain any doubt but that justice was with the
plaintiff: His Lordship waited always to see ifhe was fettered by
any former decision : but in the present cause his Lordship was
supported by greater Judges than the humble individual who was
then !addressing them. There was in this case a new contract
formed. What were the facts of the case ? The plaintiff had
been to tine expense of bringing goods to this country. which goods
the defendant claimed under a bill of lading containing these con-
ditions:_" That the consignee or his assigns should pay the
freightage." The moment the defendant said, " Give me these
goods," was there not an implied contract? It had been said that
this was a hardship upon the brokers ; but as regarded this
individual case at least, there could be none. The defendant
had paid the proceeds of the sale of the sugar to the assignees of
the bankrupt to whom the goods were consigned, reserving so
much as would meet the litigated sum. As regarded the liability
of the brokers they must be told to take care (but his Lordship be.
lieved they generally did) not to advance so much as to be unable
to cover the expense of freight. If there were any particular
hardship, the ship-owner would be found the sufferer; if individuals
were allowed to claim goods under a bill of lading for the freight
of these goods, the ship-owners were unable to recover.
Rule discharged.

DAO WELL V. TOOTH.
in consequence of the non-appearance of one of the Knights
appointed to form the Grand Assize, this case, a 'writ of right,
which was before the Court last term, was adjourned. This morn-
ing the four Knights appeared in Court to be sworn.
Mr. Sergeant VAUGHAN adtlres•ed the Court, and said he ima-
gined this was a proper time for him to offer any objection he
might have, and he would therefore state that he hsd had no notice
to enable him to challenge the gentleman who were to constitute
the Grand Assize.

The LORD CHIEF JIISTICE.—!Iate not you cured the diffi-
cult), by appearing ?
Mr. Sergeant VAUGHAN submitted that the attorney had sent
them only an ordinary, though certainly a very civil note; but
they ought to have received a formal notice.
The COURT, alter consulting Mr some time, suggested, that if
Mr. Sergeant Vaughan would atate his objection, their Lordships
would take a note of it.
Mr. Sergeant V AUCIIIAN.—Then, my Lords, tbough I may ap.
pear very rash and chivalric—and I contesa I do it with trembling
anxiety—l will be so bold as to challenge those four Knights, each
and all of them, with belted swords. (Laughter.) This is a
cause where the party has enjoyed uninterrupted possession for
many years. and I WTI not, therefore. disposed to concede anything.
The Loan Cum' Juscic E.—Does the other side demur or
deny the allegation 2 Whichever is done we will take a note of
it now, and let it be. entered in form on the record.
Mr. Sergeant SPANK is.—My Lord, we deny the allegation.
The LORD CHIEF Jcs•rlce.—Then let the case be adjourned'
by consent till to-morrow morning ten o'clock.
After some desultory conversation, eleven o'clOck was finally
fixed, and the four Knights bowed and left the Court, it being un-
derstood they will attend the issue to-morrow morning.