The Sun.
London, England, 1801-12-30 00:00:00

DECEMBER 26.

TheCoriservative Senate in the
.Sitting of yes-
terday, being assembles to tile number of Members
prescribed by the 9oth Article of the Constitution,
proceeded • inconformity with the 16th Article, to
the choice of :a Senator. The -three Candidates
Were the Citizens DEsts,touNr ER, presented by the
Tribunal.; Gil EGOlitE, by •the„Legislative Body';
and LA MARTILLIEREj by the First Consul.
Citizen GItEGOIRE obtained a majority of the
suffrages, and was in consequence declared a IVlern-
ber of the Conservative Senate.
The Division which sailed .from on the
23d of Frimaire, to join the expedition to St: Do-
',zing°, consists of five Ships; of which one is of the
line ; that which sailed on the same day from Ro.c.h.
fart, consists of eleven Ships, of which five are of
the line. •
It is reported at Frankfort, thdt the Austrian.
Troops will immediately enter Moldavia.: the in-
habitants of that country, it is added, loudly ex.
press their wish to pass under the Austiian Govern.
RArrsnoN, Dec. 11.-Accotding to Letters
from Vienna, a plan of indemnities have been formed,
the principal object of which is to preserve the Con-
stitution of the German Empire.
This plan was transmitted, towards the end of
'November, to the Courts of Petersburgb,
and London. The answer of these Courts will de-
termine the nature of the extraordinary deputation
of the Empire, which certainly will not assemble
for -some time.
It is said that Negotiations .have been again
opened between the Courts of Vienna and Munich,
(rn the subject of the. exchange of a small part of
tavaria, and that the Imperial Court has a con-
fident hope of attaining its objet.

WALK/ NC.MATCH Gentleman orGlasgow
lately undertook, for a considerable wager, to walk
forty miles in nine hours and a half, which he won
With ease, between Thursday evening and Friday
?Porning last. He started exaftly at six in the even.:
'lg, and finished at fourteen minutes after three in
the morning, being sixteen minutes within the
time allowed. The place upon 'which he walked
l'‘as under the shade of the 'Glasgow Tope,work,
,‘'',llcre one-eighth part of a mile was measured off.
tgilsiderzlie bets ;b ere depending cn the occasion,

r

L.IIV REPORT.
COURT OF KING's

SlITTi?iG$ /IFORt. LORD KENYON ,AND A SPECIAL
.J 11111:, IN CILIII.DIIALL, VONDON.

BEATSON V. SCIIANK AND.OTHERS..

TH I s cause is of considerable i)ublic importance,
and therefore we apprehend that a detail a ,the most
material parrs of it will be acceptible to the
It was an action by the Plaintiff' as Owner of the`f
ship the Asia, for the hire of that • vessel in the
Public service. The Defendants are'the Commis-
sioners,of. the Transport Board. •
'
Mr. ERSKINE opened the case on the part. ofi
the Plaintiff. He said it would not be necessary
for him to call fora minute attention to the form of
the pleadings in this cause, because, by admissions,
extremely honourable to the defendants, the que-
stion between the parties had been made plain and
simple, and had been reduced to, a very narrow
compass. Not- did he find himself called upon to say
any thing against the propriety of the Defendants'
conduttin defending the action. They were per.
sons iii an ostensible situation; and they felt, as
they ought to fed, that they ought not to give
assay the money of the Public until they were
satisfied that those who claimed it, had a right in
law and justice so to claim it. At the same time,.
it was also clear, that when any individual had
performed labour in the service of the Public, he
was entitled to be paid for such labour, according
to its value, if the contrast on which he did it was
not specific ; if on a specific contract, then, ac-
cording to the letter of such contraa. This was
an action for the nonperformance of a stipulation
in the Charter-party of a vessel of which the Plain.
tiff was the Owner, against the, Defendants, who
were the Commissioners of the Ttansport Board ;
and the clause which was mt.N.t important in the
whole instrument, indeed the only one on which
the whole case turned, was that which stated,
" That in case of loss of time, breach of orders,
negleet of duty, or from the ship's inability to
execute or proceed on the service, being made ap-
pear, the Commissioners shall be at liberty to make
such a mula as shall be by them judged fit and
reasonable ;" that is, the Commissioners should,
in either of 'the above cases, make a reasonable
abatement in the freight of such vessels:as they.
hired for the public service, of which thiS vessel
was one. The reasonableness of that inula could
nor come in question in this cause, for it was ad-
mitted, that if the Commissioners were right in
making zny abatement, the quantum of the abate-
ment was to be judged by the Commissioners only.
The first question here would be, indeed, properly
speaking, the only one would be, whether there
was or was not cause for the Commis'sioners im-
posing any mold on the Plaintiff's Freight for the
hire of this Ship ? When be said Cause, he did not
mean the whim of individuals, but a reasonable
Cause. That was the substance of the issue between
the Parties in this cause. The Plaintiff, .by this
attion, maintained they had not, and the Commis-
Sioners contended that they had. That was the issue.
There was another, but it teas a minor question.—
What rate of Freight the Plaintiff was entitled to
hale. For the first twelve months the sum was
specified, but then the Charter went on to provide,
that if the Ship continued longer in, the service,
she should be allowed according to the rate allowed
to.other Ships.

This Ship, the Asia, was taltht up in the. Public
Service, by the Defendants, for the purpose of carry-
ing Troops to Quebec: on the 18th of August a 860;
she was to sail from Cork to this place ; at that
.time; he said, no fewer than 688 persons were on
board this vessel. He understood it was to be con-
tended; in the course of this cause, there Was sufficient •
.accommodation on board this Ship for this number
of persons : in one sense, that was certainly
correct; for time might be sufficient accommoda-
tion in one sense, when there was not sufficient ac-
commodation in another sense : 'that was to say,
there might be sufficient accommodation Merely to
stow the bodies of that ntiniber of persons on board
this vessel, but not sufficient accommodation to pre-
serve their•health; which was an important con.'
sideratiom.
.It was daily more and more discover
ed, that there was not any thing more injurious to
health, than that of crowding a great numbei' of peo-
ple together in any place ; more especially on boahl
a.shipi where the confinement was attended with
inconveniences which Gould not be felt on shore.
It was a' sure way to engender disease ; and that
was most lamentably felt in this Case; A woman
was .put- on board with a child that was infected
with the small=pox : the child and the mother were
removed out of the ship in twenty-four hours ; but,
• before that time; the contagion had spread itself,
and had been communicated to others On hoard the
vessel and that 'contagious .distemper produced an-
other and a fixed malady; with an account of which
it was unnecessary for him to nauseate those who
heard him ; it was sufficient to says chat the tale of
the voyage of this ship was a melancholy one; and
humanity shuddered and shrunk at the scene: nor in-
deed could it be otherwise, where there was such a
number of persons in so small a space ; especially after
there had been a tobtagions distetriper on board.—
The Vessel; however-sailed on her voyage, but
such was her state when she arrived at Quebec;
that several of the crew; he believed six of them,
went on shore and deserted her; leaving a consider-
' able portion of their wages behind them; rather
than expose 'themselves to.the risk of the contagion-
which they knew to be on board. In thii state of
the Vessel, au order came from General HiI•TER,
io ten days after her .arrival at Quebec; by Which
it Was directed that t too' persons should be einbark-
ed on board her, and carried to Halifax The
Plaintiff's Crew had desetted-on the 6th of No.,
veraber an attempt was Made to put ta sea; for. the
purpose of carrying these r too persons to Halifai,
but it was impossible ; for the Chief Mate, the
Steward; the Armourer and ten of the Sailors were
sent on shore to sick: quarters, It was under these
circumstances that General Hunter sent this order
for the ship to proceed to Halifax with r too men,
an order which he could scarcely reconcile with the
good sense and hurnanity of that able Officer ; he
could not possibly account for it but by supposing
that somehow or other, thq case must have been

Misrepresented to him. TO prepare for this voyao
from Ouebee to Halifaa; there were direttions given
to get Some Canadians'ao help to navigate Jis yes.
sela The Plaintiff was so.desirous of 'obeytng the
Ordead-General Hunter; that he offered very large
sums of minaey even for Canadian Sailors.
Lord KaNyoN—".The only question to be tried
by the Jtiry is, Whether there was a cause for the
Commissioners to impose a mulct on the Plaintiff ?
The quantum of'-it Is not to be disputed. 'really
think that is the fair -construdion of the Chart
party ;' but the admissions, in this case, put that
matter out of &au- bt, fbrart is so stated in the ad_
missions" Y
MratILSKINE said, he admitted that if the Plain-
' tiff was 'bound: to provide proper Seamen at all
times,. and in all placeS, and that he nevertheless
sailed with, less than the complement of his crew,
aßst 'was obliged to put back an that account, thew
die'Plaintiff could have no right to a verdita in this.
cause. But if an improper number olpersons were
gut in the ship; by order of the Commissioners,
or those whom the M Captain ust obey, or, -if any
were put on board by their authority, who kid'any
contagious distemper on them, so thik the illness
which appeared on board terrified the Sailors, so
that some of them deserted,. and 'by which means
it became impossible for the Captain to sail in safe-
ty, then, he maintained, upon the principlesaaf 'jus-
tice, as well as by the. Charter-party in' this case, .
and the true construction to be put upon it, the
Plaintiff was entitled to a veidid. There had been
a cause of this sort tried many years ago, it was
Wilkinson against the Commissioners of the Navy.
The Captain, in that case, sailed.from England to
America, and back again' to ngland, and. the
question was, Whether the Captain had, in that
case, been guilty of negligence or not ? The ves-
sel was oyertaken by a atormain the Atlantic.
The crew refused to proceed on the voyage, and
he was obliged to put in at one of the WeSt India
islands. The Commissioners attempted to mulct
him for this; alledging that it .was really owing to
his negligence. Mr. ERSKINE said, he was Counsel
for the Plaintiff; and 'obtained a verdkt in that
cause.- That verditt.was not satisfa&oty to Lord
MANSFIELD, before whom the cause was tried ;
that Noble and Learned Judge, thinking it did nor
appear from thp evidence there was• a sufficient de-
gree of necessity upon the Captain to put into port ,
when he did so, instead of proceeeding upon his
voyage, and
.the Court being of the same opinion
upon the report of his Lordship, a new trial was had.
On the second trial Admiral Campbell sat by his
Lordship. The question was admitted to be, ,c
they what happened in that vO) age was a sufficient
Cause to operate upon a man of an ordinary firmness
and constancy of mind, to do what the Captaiii did
in that case ? When the evidence was gorie through,
Lord MANSFIELD asked 'the Admiral, " Are you
of opinion upon this evidence, as an experienced
Officer, there was a sufficient cause to operate bit the
mind of a man of ordinary nerve, as it did on the
Captain in this case'?" AdMiral Campbell answer-
ed, " Why my Lord, sitting here in Cdurt, per- ,
featly free from apprehension; I am of opinion there
wag Dot sufficient cause ; that it might have been
better if he had done otherwise, but I cannot tell
you how I should have felt on that occasion, be-
cause I was not there, for the danger; as it appeared
then to him, might be 'such as. it might be impoS-
'sible for any Man, sitting in a place of safety, to
say what he would do in such a situation:" This
was the substance of what Minim! Campbell said
on that occasiona--Lord MANSFIELD, with that
readiness whiCh he always had about him, to do
justice immediately, said, " this Canse is over,"
and consequently a Verdict :?'as again found' for
the Plaintiff. It was upon this piineiple he built
his right to the Verdict of the Juty in this Case
if the AiI'ORNEY GENT RAL could sheW any niala
fides, or
.negligence in this,Case, or any disposition
in this Captain to linger or loiter by the way, in
any part of this Voyage, Mr. EasxlNE said; he
should not ask for a Verditi, , In a word, his
Case, on the park of the Plaintiff *as this, and
it should be proved to the Jury :—" That an im-
proper number of persons were put on board this
ship at 'Cork, •by order of Government ; that there
was a contagions distemper; augmented by thus
crowding persons together ; that when the ship
arrived at Ouebee, six Sailors deserted her from fear
of the Contagion; chusing rather to lose several
months wages than to expose themselves to the
danger which they apprehended on board ; that
while this ship was in this state, General Hunter
ordered that i job- p4sons should be carried on
board of her from Quebec to Halifax; which was at
that time impossible ; that the Vessel ought to be
fumigated over and over again; before she was or-
dered to pioceed any further. Having said this, lie
indst beg. to say a word or two as to General Hun-
ter : he begged it to be understood that he believed
the case of this ship Was not faithfUlly Oinmunicat..
ed td General Hunter, Or he would not have made
this order: He knew Genetal Hunter from the
earliest part Of his military life ; General Hunter
and himself were together in the ServiCe as Lieu-
tenants in the same Regiment; nor could he saY any
thing against a man whom he so loved and honoured,
but he believed he was; in this Case, in a situation
in which he was imposed upon."
The ATTORNEY GENERAL said; that notwith
standing all the alatin which his Learned Friend
had introduced into this. Case, the Captain had
thought fit to take all these troops on board ; his
Learned Friend had slated a number of things which
existed only in fancy, but his Learned Friend was
not optin oath. As to the Case on. which Admi-
ral Campbell had been examined; he had been
haunted by the ghost of it fca• these twenty years:
Lord KENYON said, he had heard that Case
quoted very often; ht there was so much good
sense in it; that he believed he should never be tired
of hearing it:
The Charter party On Which this ACtion was
founded was then put in and read; the material
part of which; as opened by Mr. ErisaiNa, was
" That in case of loss of time; breach of orders, or
from the ship's inability to execute or proceed on
the Service, on the same. being made appear, the
Commissionets shall be at liberty to make such
a multi as shall be by them judged fit and reason-.
able."

Lord KENY6N said, that • this condusion was to

dtavn, by the Defendants; the CortithisSiOners,
)4;,arbitrarily; lint it was according to coMtilort
S'tinse and Justice to be a reasonable ConclasiotfrOnia,
the circumstances which came before them: -
The M'TORNEY GENlOL_admittO that it was
ad arbilriiillibi,y; ••
. Another Clatie of the. Charter:party, provided
",that the said ship shall be manned in proportion
,
tOrtite, men and boys, for every hundred torts, fit
• and capable to . manage and sail her; and shall have
'twenty carriage guns mounted, &c."
That the4whole number of men shall be constant_.
ly on board, and-there shall be a regular bookkept
of their entry aod discharge."
James Sherwoody being rvorn, said, " I was alt
.sailcrempiyed on board the Asia. I was onboard
her in England.- She sailed from Cork, I cannot
say exadly, but it ;might be about three weeks be-
inre the ciinvoy sailed fur Quebec, which was about
the 27th or 28,th August. 'We had eight-or nine and
• forty in number of crew,. tnen and boys. 'there were
about 703 troops put on board-: I cannot be exact
as to the number ; ' but the vessel v..as much crowded.
After` we had been •on board five• or six days, a
child'had. the small-pox oti board, and a disorder
spread ..very' rapidly through the ship, and' a very
bad one it was. As mai)y troops were.put up in.
the upper part (4. the -ship, as
,we could, antl some
parts'of the ship were turned into an hospital, and
that was necessary,-:from the statelif the ship.—
Many were put. upon the, gun-deck. After the
Vessel 114 been out some time, a malignant fever
broke- out in the ship, among the troops. That did
not spread .so'rapidly as the other disteniper did.
The first person taken ill, was the third mate, and
then a seamane: They both died. As much care as
possible was taken to keep those" that were from
those' that were well, on the vcyage to Quebec.
On the zoth of Oaolier we arrived at Qucbec.
During the. voyage every care Was taken, that was
possible, to keep the ship pure ; the decks were
fumigated four or iiye times a week, and sometimes
oftener, and sprinkled with vinegar, nine or ten
gallons of a morning ; and washed daily. I think
18. or 19 of the troops died on the passage to Que.
bee, one woman, and zo or z I children, in conse-
quence of the distemper that spread on board. The
disorder spread rapidly after we got to Qiiebec.--
.The crew was in a state of alarM on account of it.
I remember that some of them ran away from the
ship: about the 21st-of Odober, at midi,-might. Six
of them deserted in this manner iri one of the boats.
The Captain took all possible care to prevent it ;
and when he was informed of it,, he took a constable
to take them, but there was but one of them appear=
eef at that time: He exerted himself to the utmost,
and could get but one of them. There waS -no
great number. of the crew in good health at that .
time, because most of them were affeded. There
was no reason at all, that I perceived; for the
crew deserting the ship; except their apprehen-
sion of the distemper on board. We had all
.been well treated and well provided for during
the voyage, nor had there been any qurrel with
any body: The crew forfeited four months
wages when they deserted the ship ; they, had 41:
and some 41. los. a month. In two days the
troops were disembarked, the 21st and 2zd of
Odober; at Quebec: As soon as possible after the
troops were disembarked, every thing Was done
which the Captain could do to purify the- ship. ,
In six or seven days afterwards, the second Mate
and others went on shore, Because they had the
fever: On the 29th, or •the 3oth of 06-tobet, I
think that was; I was also seized with that fever
on the zoth of Odober, btit remained on board
till the Bth or 9th of NoVember ; besides thote that
ran away from the ship, there were not above
seven of the whole crew, that escaped the fever:
Captain Strong used all his exertions to prevent the
fever from spreading at Quebec. The first appear-
ance of distemper was when we tailed from COrk,
and that was a child-having the stnalLpox, and
that child was put on shore with its mother, I be:.
lieve."

On •crOss.:examination, he said; six of the men
deserted : I cannOti4say hOw soon after the ship
had been purified snore were put on boa rd again.
She- was reported to 'be ready to receive troops
afterwards: .But.l do not knot who reported her
to be ready.
The ATTORNEY GENERAIi Said, that the ad-
mission 'was; that she was reported to be ready
to receive troops, and that; .as tat it went; was
bidding on the Plaintiff.
Mr; ERsKINE contended; that thfs:waS not the
sense of the admission:
The ATTORNEY •OENERAL said, if it iVal not
the sense of the admission, he ought never to make
amither admission:
The WitnesS then 'proceededl understand that
a man was offered. The Captain offered
guineas for 'the run from Quebec to Halifax. I
have heard it; but I do not knOw it.
Lord KENvotl--;- " How long were the trO6pS
put on board after the ship came to Quebec ?"
Mr. PARK—On the first of November by the
admissions; My Lord.
The Witness" in answer to a question from rule
ATTORNEY GENERAL; said, that in point of lt,
they never completed their crew at Quebec ; and
that they were at Quebec frdin November until the
16th of 'May. The fidst set in in 06tOber; but
the very Cold Weather began► in November. That
they were' to have taken Troops in at Quebec and
proceed• to Halifax; and from thence to take in
Maroons for
.Sierra Leone. His Royal Highness
the Duke of 'IStNt •was at Quebec at this time.'
The Wiiness'Was ill until the 3c'th of Novernber,
and did not know the number that were put on
board befOre that tithe.
George Christie was or. board the Asia Hi the
'voyage from Cork to ()lichee. He gave an account
as the laSt Witness, of the sickness that was on
board for that time, and that they used to purify the
ship. He said that when the ship arrived at Que-
bec; there were sent on board her; between i r and
rzcio troops ; they were so much crowded' that they-
could hardly move on deck. At this time, said the
Witness' we had not above 54. or .55 of the crew on
board, -and yet there was an -atteMpt made to sail in
that situation, but it was not possibre to do it.—
After this some Canadian Seamen, as they were
called, were sent on board, but they were no Sea-
men at all, although they were the besf‘that could

'.. J

4

c tile place ; the'y the •not used to navigate
i.ch Vesse!s as curs.. None of hcni, in (aO, comifi
o a4thing like our ; I renwthber an ordri4
given by Captain to sail, but we could nor get
do der weigh ; every et4on was used by. the Cap-
,
rain to get_under weighM')*Ot it, was, in fad:, found
06- be impim`Aical,e. Captain Strong is dead :
.the ship when Ca-l7l44Strdng died ; when
• order; were gi, en I,y the 041:tain score of
the Crew r fusers ; .tbg, Boatswain and the Carpenter
refused to go.
Lord ik.E YON-" Why did they Lefuse ?"
A.. Lecau,e there kvcre not nit„ enough, they
- _

- yortr uKinionl were there inert enough to
nav:A ;!.e tl'e
A: No, my: :not S,iilors enough ; there
‘veu:plenty of wen, it they kid.been good Sai;op.,
but they xi, ere
.not. I me:to the Canadians. The
'crew that were good Sailor reiiised
Captain di:l certainly use every vossible exertion to

(T& le cantinued.

SCOTLAND.

E'DAtIJRCH, DEC. 26.

SA-ruaDAy Henry Bowerman was Served
-with an indtdment to stand trial beforetlle High
•Court of Justiciary on tie 4th of January: next, tor
sending a cht'illeage to the Earl of Lauderdale.

ABEIMEEN, DEC. 23.
The Cosar, Freeman, laden with coals for ROt--
terdam, v:recked ,at the BriJ, in the storm in
the end of November. The master and crew v.yere
saved. • •
There have arrived from the South,'abotit-soo of
the regiment of the Isles, and the remainder, about
zoo, are hourly expeaed. Their route was for
• Fort_George ; but we hear they are to remain here,
for some tiMe 'at least. And when the Perthshire
Militia;- who are now on their way, arrive here, we
shall have more than 71000 of the military in town,.
three-fouttlis of which are qu#tered on the inhabi.-
tants.
The CM of snow since Wednesday last, has been
s6,heavy, and the roads so blocked up, that-the
con-nlink:l:ion with the country is almost entirely
intercepted. The mail coach has nor been able to
come here for a week past, and the bags are bro...:ght
on horseback-from-Montrose. Some gentlemen from
Huntly,. and that neighbourhood, who came to town
to the term business, had the utmost difficulty to get
in ; and required the aid of .the country people to
shovel a kind of. path. At the water of Ury, the
stream was so gorged with snox, and the ice nor
strong enough 'to hear, that one horse was in im-
minent danger of perishing ; and it was only by the
labour of a great many men in cutting the snoW
. and ice, that a passage madepve'r what is in
otli,r seasons but an insignificant rivulet. This
rry ruing a thaw is begun, with a heavy rain and
wind twin SoUth.