The Sun.
London, England, 1853-06-06 00:00:00

LAW INTELLIGENCE.

HOUSE OF LORDS-FRMAT.

GIBSON V. SMALL.

Lord Campbell presided.
This was a writ of error on a judgment of the Court
of Exchequer Chamber, reversing a judgment of the
Court of Queen's Bench. The action on which the judg-
ment had been given was brought by Small upon a po-
licy effected on the ship Susan, lost or not lost, in port
or at sea, in all trades and services whatsoever and
wheresoever, during the space of 12 calendar months,
commencing on the 25th of September, 1843, and ending
on the 24th of September, 1844, both days inclusive.
The declaration alleged a total loss by the perils of the
sea during the continuance of the risk insured against.
The defendant Gibson pleaded that the ship was not at
the commencement of the risk insured against, nor at the
time of making the said policy, nor on the 25th of Sep-
tember, 1843, seaworthy, or in fit and proper condition '
to go to sea, but on the contrary thereof was wholly
unseaworthy. The plaintiff replied de injuria, on which
issue was joined, and the parties went to trial. The
cause was tried before Mr. Justice Wightman, at the
sittings at Guildhall, after Trinity Term, 1848, when it
appeared that at the moment at which the policy com-
menced the vessel was in the Indian seas, having sailed
about the beginning of September from Madras for the
Mauritius, with 288 coolies on board. In the course of
.the voyage the ship encountered very bad weather, and
was obliged to put into Trincomalee, whence she was
compelled to sail to Madras, where she arrived on the
25th of September. Madras is an open roadstead, and
as the leak increased, a survey was held, and she set sail
from Madras towards Coringa, which is a port where
repairs are perfectly practicable. In making the attempt
to reach Coringa the vessel encountered very severe wea-
ther, and the leak increased. A council of persons on
board recommended the captain to cut away the main-
mast to ease the vessel, and he gave orders for that being
done, and the operation was actually commenced, the
starboard shrouds being cut away, when the violence of
the storm drove the mainmast overboard. Being made
of teak wood, for the vessel was Indian built, it was very
heavy, and in falling overboard struck and sprained the
mizenmast, which, with the foretopmast, also went over-
board. Being unable to make Coringa, the captain put
into Masulipatam, where the ship was again surveyed,
and decided to be so far injured as to require very
extensive repairs. These repairs could not be done at
Masulipatam, and as the monsoon had then set in from
the north-east, and the vessel was without its main and
mizenmast, and the crew had deserted it, and the coolies
declared that they would not again put to sea in it, the
captain sold the vessel, which fetched nearly 1,5001.
The plaintiff then gave notice of abandonment, and
claimed as for a total loss. The day for the commence-
ment of the policy occurred when the ship was at sea be-
tween Trincomalee and Madras, and when the vessel
was not in a seaworthy state, and the defence was that
the policy did not attach on the vessel, for the law re-
quired the ship to be seaworthy when the risk com-
menced. The verdict on the question of fact, whether
the ship was then seaworthy, was given for the defend-
ants. A motion was afterwards made to enter the ver-
dict for the plaintiff, notwithstanding the verdict, on the
ground that there was not any implied condition on the
part of the assured ;'that at the time the policy attached
the vessel was in a seaworthy state. The Court of
Queen's Bench had discharged the rule, and given judg-
ment for the defendant. The case was then taken into
the Exchequer Chamber, where the judgment of the
Court of Queen's Bench was reversed, and judgment
given for the plaintiff. The case was argued in Decem-
ber last by Sir F. Thesiger and Mr. James Wilde for the
appellants, and by Sir F. Kelly and Mr. Sergeant
Shee (with whom was Mr. Unthank), for the res-
pondents. Upon the conclusion of the arguments, the
Lord Chancellor proposed the following questions to the
judges Adverting to the record and procedure
in this case, there are these questions to be consi-
dered—First, is every policy subject to an implied
condition or warranty that the ship was seaworthy at
the time when it attached ; secondly, if so, does the time
of the attaching of such a condition mean at the com
mencement of the voyage, at the time of the insurance,
or at the moment when the liability of the underwriter
was to commence ; thirdly, are there any, and, if any,
what qualifications of such conditions, in a case like this,
which could affect the rights of either of the parties ;
fourthly, and lastly, is the plea that the vessel was not
at the time of the commencement of the risk, nor at the
making of the insurance, nor on the 25th day of Septem-
ber (the date at which the police was to attach) seawor-
thy, or in a fit and proper condition to go to sea, a valid
plea in law in answer to the action." The judges having
taken time to consider their answers, in April last de-
clared, by a majority of seven to two, that no condition
of seaworthiness attached in the circumstances stated in
the questions.
Lord St. Leonards, who, when Lord Chancellor, had
presided at the argument, now moved the judgment of
the house. He expressed his entire concurrence with
the majority cf the judges, their opinion being that at
which he had himself arrived before they delivered their
opinions to the house. No such condition could be im-
plied in a time policy, the risk on which might commence
when the vessel was at sea, and when, therefore, it was
absolutely impossible for the shipowner to answer for the
condition of his vessel. If the vessel was in a port at
home, such condition might possibly attach on it, but
that was not the present case.
Lord Campbell fully agreed with his noble and learned
friend. If there was any fraud in the owner, that fraud
itself was an answer to any claim on a policy, but where
the owner fairly told what he knew, and proposed to
effect a time policy, no implied condition of seaworthi-
ness at tho commencement of the risk attached on such
a policy. It was proper that broad and undoubted rule
should be laid down on this subject. The casual ex-
pressions of some learned judges, which had given rise
to the questions in this case, did not bear the meaning
attributed to them. There never had been any rule of
law which justified the argument that went to attach a
condition of seaworthiness to a vessel which was, per-
haps, out in the open sea, suffering a damage at the very
moment at which the insurance was effected. The under-
writer took that as one of the risks of the policy. In all
voyage policies the condition of seaworthiness at the
commencement of the voyage did exist, but no such con-
dition existed in time policies, and he thought it better
that this rule should be stated without qualification. He
was of opinion that the judgment of the Court below
must be affirmed.

Judgment of the Exchequer Chamber affirmed.

POLICE INTELLIGENCE.

BOW-STREET.—A middle-aged man named William
Jones, alias Griffiths, alias Captain Phillips, &e., was
placed at the bar before Mr. Henry, charged with steal-
ing greatcoats, official papers, &c., the property of Mr.
Crook, M.P., Mr. Walker, a railway director, and other
gentlemen residing temporarily at the west-end hotels.
The following singular coincidence was disclosed during
the examination of the witnesses :

It appears that Mr. Walker, one of the prosecutors,
had come up to London from Wolverhampton, to attend
an important meeting of the Staffordshire Railway Com-
pany, stopping meanwhile at the Opera Colonnade Hotel.
On the evening previous to the meeting, however, Mr.
Walker missed his over-coat and papers from the coffee-
room, and, not being able to hear anything of 'them, he
was obliged to apologise to the assembled shareholders
and directors for his inability to proceed with the busi-
ness which took him to the meeting, in consequence of
his bundle of papers and coat having been stolen
from the hotel. " How very odd," said another gentle-
man at the same meeting. " Why, my coat and the
contents of its pockets were stolen last night, in pre-
cisely the same manner, from the coffee-room of the
British Hotel, in Cockspur-street, but the fellow was
captured, and he was found to have two other coats and
a bundle of papers, like lawyers' briefs, in his possession.
Probably they were the identical documents." And so
they proved to be ; for, on posting at once to the police-
station, Mr. Walker had the agreeable satisfaction of
finding his coat and papers, as well as the thief who
took them, in the custody of the police inspector. It
was proved by the waiters at the two hotels, that the
prisoner first went into the Colonnade coffee-room, and
asked for a glass of whisky-and-water, for which he
paid the waiter ls., saying, "I don't sleep here my man
—my name is Captain Phillips." During the momentary
absence of the waiter, he disappeared with Mr. Walker's
coat over his arm, and the bundle of papers in his hand.
In this way he crossed over to the British Hotel, and
walked into the coffee-room, with the air of a man of
business in a desperate hurry, and asked if Captain
Wilkinson was in the house. The waiter said he would
inquire, but the prisoner, after putting on Mr. Walker's
coat, and taking two other coats from the stand in the
room (throwing the latter over his left arm), suddenly
rushed out again.

The coats,--&e., having been identified by Mr. Joseph
Crook, M.P. for Bolton, and Mr. Walker, the prisoner
said he should reserve his defence. He had been in
New York for four years keeping an eating-house. He
returned about six months ago, but he could not say
how he had been employed, or where he had been living
during that time.
Mr. Henry committed him for trial.

[ADVERTISEMENT.] ASCOT RACES. —9, Albe-
marle-street, Piccadilly observe, opposite the York
Hotel. The Royal Exhibition. A valuable,
newly-invented, very small powerful waistcoat-pocket
glass, the size of a walnut, by which a person
can be seen and known one mile and a half distant ;
they answer every purpose on the race-course, at the
opera-houses, country scenery, and ships are cclearly seen
at 12 to 14 iles. They are invaluable for shooting, deer-
stalking, yachting, to sportsmen, gentlemen, gamekeepers,
and tourists. Telescopes—A new and most important
invention in telescopes, possessing such extraordinary
powers that some, 3i itches, with an extra eye-piece, will
show distinctly Jupiter's moons, Saturn's ring, and the
double stars ; with the same telescope, weighing only 3
ounces, can be seen a person's countenance three miles
and a half distant, and an object from 16 to 20 miles.
They supersede every other kind for the waistcoat-pocket,
and are of larger and all sizes, with increasing powers
accordingly. Opera and race-course glasses, with wonderful
power; an object can be clearly seen, from 14 16 to miles
distant. Messrs. S. and B. Solomons, opticians, have in-
vented invaluable preserving spectacle lenses, immediately
they are placnd before imperfect vision, every object
appears clear and distinct, the most aged,
becomes bright and brilliant, is brought to its youthful,
natural, and original state. Deafness--New Discovery—
Thec
defective sight
Organic Vibrator, an extraordinary porfAliliferaenj
newly-invented instrument, for Deafness, entirely
been, or probably ever can be produce
eble • itgenables
from all others, to surpass anything of
dth.ekißnedinthoaft has
same colour as the skin, it is not percep ,
sin
and
na at publicnnie as-
semblies persons to hear distinctly
; the unpleasant Bens
• and it affords all the assist-
the ears are entirely removed
Opticians, 39 Albemarle-street, Picca•dil y.
aatt icoh: church
Aurists • and
ance that possibly could be desired.
—S. and B. Solomo. nal ,
Observe, opposite the York Hotel.