The Sun.
London, England, 1838-06-14 00:00:00

HOLDEN V. ABERDEEN,

The A'rTORNEN-GENERAL appeared to show cause against a rule call-
ing upon the defendant to show cause why an order of the Lord Chief
Baron, appointing a commission to issue for examining witnesses at
Sebastopol and Constantinople, should not be amended, by inserting a
clause imposing the whole costs of the Co-nmission upon the defendants,
unless the plaintiff joined in it, by the examination of witnesses
in chief. The case arose upon a policy of insurance on the Vixen,
and the defence set up was, that the assured knowingly and pre-
meditatedly violated the law of Russia ; that Russia had possession
of Ciecassia, and had a right to make laws there; that the assured
knowingly engaged in an illegal adventure, whereby the ship became
forfeited, and was justly condemned. In order to make out
that defence, it was necessary to obtain evidence at Constantinople and
Sebastopol. The application was made, and was strongly contested. It
having been granted, en application was then made, that the defendant
should be compelled to pay all the costs, unless the plaintiff' joined ill
isommission. The Lord Chief Baron refused the application, and he

;the Attorney-General) felt astonished when the present rule was served,
for the Act which gave the Judges power to issue the commission, the
Ist Wm. IV. c. 99., gave the Judge and the Court absolute powers, but
it provided that it was a discretionary power as to costs to the Judge in

. .
the first instance, then to the Judge at the trial, and afterwards there
was an appeal to the Court. The Act of Parliament being so specific
on the question, surely the present application was premature,
and could not he entertained. If it must be gone into on
the merits, he must contend that there were no circumstances
in the case which made the case different from any other, and

in no other case would the defendant be called upon to pay
for a defence if he were successful. The affidavits alleged that the
charter party under the plaintiff had full knowledge of the illegality of
the transaction, and that could only be proved at Constantinople. The
evidence as to the seizure, and the legality of it, could only be obtained
at Sebastopol.
Sir Wm. FOLLETT, in support of the rule, said that was not an appeal
from the discretion of the single Judge ; the application was made by his
desire, and that appeared on the face of the order. In order to
avoid the difficulty, he would treat that as a substantive applica-
tion. He must deny the statement that Russia claimed pos-
session of the whole of Circassia ; they claimed the pos.
session of the one port in question. He wished the order
to be amended, because he thought it was applied for for the purposes of
delay, and if the terms were imposed, he thought it would not be sent
out at all. It would be impossible for the plaintiff to join in the com-
mission, for at Sebastopol it would be impossible for them to find any
one to act as their commissioner. The avowed object of the Com-
mission was to obtain at Sebastopol a decree from the Court of Admi.
ratty which was thought to be conclusive, and that decree was to be ob.
tained from a Court which, with the whole of its officers, were under
the immediate control of the Government, so that it was not evidence on
the merits, but in order to shut out the merits of the case. Under these
circumstances he trusted their Lordships would gent the application,
as at all events it would cause a delay of two years.
The Court were unanimously of opinion that the rule must be dis-
charged. The arguments of Sir William Follett were too vague with
respect to the absolute Government of Russia. Upon the difficulty of
obtaining a commissioner at Sebastopol the plaintiffs might send one
from Constantinople or from this cmntry.
Mr. Baron ALDERSON and Mr. Baron GURNEY agreed in the decision,
but thought the Court ought to have power over all costs, which they would
not have if the plaintiff was obliged to send a commissioner from this
country, and should fail upon the plea that evidence went to establish.
Rule discharged with costs.