The Sun.
London, England, 1847-05-25 00:00:00

EXCHANGE INSURANCE COMPANY.

This partly heard case was resumed this afternoon;
and the remainder of the depositions taken in the colony
and at the trial having been read,
Sir FREDERICK THESIGER (who with the ATTORNEY-
' GENERAL appeared for the defendants) proceeded to
show cause against a rule which had be, n obtained
by his Learned Friend Mr. Sergeant Shee, which
called upon the defendants to show cause
why the verdict which they had obtained should not be
set aside an a new trial had, on the ground of the re-
jection of evidence, misdirection by the Learned Judge,
and that the verdict was contrary to the evidence ad-
duced at the trial. He said the action was brought upon
a time policy upon a ship called the Seahorse, from the
28th February, 1843, to the 27th of August in the same
year. It was a value policy upon the ship for 11,2501.,
and upon the machinery, which was valued at the same
amount, making a total of 22,50001. The pleas were—in
the first place, the payment of 1,250/. into Court,
and 251, per cent. upon the value of the ship, pleading, at
the same time, that as to the residue the plaintiffs had
broken their covenant ; 5,6251. was paid .by the under-
writers, and the whole amount paid upon the policy was
8,437/ ; but the plaintiff contended that there had been
a total loss of the ship, and that he was entitled to re
ceive the whole amount for which the ship was in-
sured. The vessel was a trader between Van
Diemen's Land and New South Wales. On the 6th
of June, 1843, being within the period mentioned in the
policy. She was proceeding on a voyage from Launces-
ton, in Van Diemen's Land, to Sidney, in New South
Wales. She had proceeded down the river Tamur as
far as George-town, where she came to anchor.
She soon after weighed anchor, but had not pro-
ceeded far down the river when an ebb tide
took her, cast her upon shore, and threw her
upon her starboard " bilge," by which she was consider.
ably strained ; but when the tide flowed, and as there
had been fine weather during the whole time she was
aground, she was got off without any assistance—with-
out even removing her deck load. After some
trifling repairs to her machinery, and after some
oakum had been put into the seams which had
started, she sailed on the 9th of June from
Georgetown to Sidney, where she arrived after a
voyage of three days, or three days and a half,
the ordinary passage being completed in three days; but
she took in coals on her way, and, consequently, some
delay took place. On her arrival at Sidney on the 13th
of June, there was a protest made, and on the 15th of
June a survey was made, which was not, however, at-
tended by the captain, by the mate, carpenter, or
engineer of the vessel, and upon that survey
the owners determined upon abandoning the vessel
the next day—namely, the 16th of June, and a letter to
that effect was transmitted by him to the under-
writers, and claiming the full amount of the policy.
The protest was extended to the 28th of June, so that
this was due twelve days before the expiration of
that period. After the survey, the vessel remained
in the possession of Mr. Boyd for two years,
during which time he entertained a number of his friends
an board; but no means were taken to ascertam•the real
nature of the injuries she had received. Under these
circumstances the plaintiff came before a jury, claiming
the value of the policy as for a total loss; but the jury,
after bearing the case of the plaintiff (no witnesses
were examined on the part of the defendant),
and the case lasted the greater part of two days, found
a verdict for the defendants, on the ground that there
was not a total loss, and that the plaintiff could nut
recover the whole amount of the policy. His learned
Friend contended that the evidence rejected consisted
in the 10th and 11th interrogatories, and that their
admission was most important ; but it appeared that he
-telopted the 11th for the 10th by mistake, which was to
this effect—Was it practicable to heave down the bottom
of the vessel at Sydney, in order to ascertain whether
she was in a tit state to proceed on her voyage ? He
admitted that this interrogatory was rejected, but it was
rejected because it was not asked from a person who cool]
tre.st it in a scientific manner, and because it was an ins,
portant question, on which it was the province of tin
jury to decide, wad that their minds ought not to have
is ,en biased by having it answered. The Learned Gen-
tleman here quoted a number of cases to show that this
view had been taken by the Courts with reference to
questions of this kind. Then with respect to the alleged
misdirection of the Learned Judge (Lord Denman) who
tried the case. Here his Learned Friend had fallen into
an extraordinary error as to the proposition which he
(Sir Frederick Thesiger) was alleged to have maintained,
and which his Lordship was supposed to have adopted.
That where a person abandoned a vessel hastily, after
injury to it, and without examination, and brought his
action, and showed upon the trial that the vessel was in
such a state, or that the circumstances of the place were
such that she could not be repaired, except at an ex-
pense which would have exceeded her value, that the
assured was not entitled to recover in consequence of
having abandoned her hastily. The short-hand writer's
notes would show that he did not make the proposition
in this way, and that his Lordship did not adopt it.
What he said was this—that those cases of constructive
total loss upon the value of policies were cases which
required to be strictly and narrowly watched—that
where the parties had the opportunity of ascer-
taining the real nature of the injury the vessel had
sustained, that it was their bounden duty to adopt those
means to ascertain the nature of those injuries ; and that
they had no right to speculate in the matter, and to come
before the jury with a speculative case. These were the
words he used, and the whole burden of his argument
was, that it was the duty of the plaintiff to use every
means in his power to inform the jury of the real nature
of the injuries ; and that in this case, that nothing had
been done by him, and that the case he presented to the
jury rested merely upon speculation ; and that the ves-
sel, at the moment the trial was proceeding, might have
been perfectly sea-worthy. This was a fair and proper
wey to put the case, because it was the duty of the plain-
tiff to show this to the satisfaction of the jury, and he con-
ceived that their Lordships would be of the same opinion.
Then with respect to the other point—that the verdict
was contrary to the evidence. Let their Lordships bear
in mind that the whole of the evidence on which the jury
decided was adduced by the plaintiff, and that the jury
was a special one, and there was no hurry, no cursory
view taken of the case by which the jury might possibly
have been misled. Their Lordships knew how difficult
it was for underwriters to obtain a verdict, and they
must also see how strong a case must have been pre-
sented to the jury to have induced them to decide in the
way they did. His Lordship did not express himself
dissatisfied with the verdict, and now the plaintiff came
forward and sought them to revise their verdict.
Lord DENMAN—We will hear the arguments of tl,e
ether side on the point, and if we are not satisfied we
will call upon you to resume.
Sir F. THESIGER said his arguments were, therefore,
at an end.

Mr. WILDE followed on the same side, and reiterated
the main arguments of Sir Frederick Thesiger. lle
dwelt particularly upon the sudden abandonment of the
ship.

Mr. Sergeant SHEE then proceeded to address the
Court in support of the rule. He said the rule to which
he referred, and the rejection of which he considered
most important for the plaintiff, was to the following
effect :—What do you think would have been the best
thing to have done with a view to the interest of the
assurers and the assured, considering the state of the
vessel and her machinery at the time in question ? It
was true there was not a total loss of the ship in the
common interprQta.ionof the word, because she was visible
to the eye; but the great important questions were,
was or was not the vessel, a total wreck, utterly value-
less from the want of proper means for her repair at
Sydney; or if there were, would or would not the ex-
pense have been greater than her value? Was there
sufficient dock room there? Was there a manufactory
in which a cylinder such as the one broken could be
made? Was there a " patent slip?" and could or could
not a " hogged" ship procecel safely to some neighbour-
ing port where all her repairs could have been done?
Could she safely have undergone a voyage to Bombay ?
It was therefore quite impossible for the jury to forma
correct opinion upon all these questions unless this ques
tiou were asked and repli«l to. Every one of the cif..
cutnstances to %villa: the mieeiiiiee vF bt.h jaiy was neces-
sarily directed partook of a scientific nature; and it was
quite impossible that they could form a correct opinion
without the evidence of competent persons in the
matter on which they were called upon to decide.
It was not sufficient to say that a number of questions had
been asked of ocher witnesses, and that the jury had an
ample opportunity of arriving at a clear and decided
opinion, from the evidence adduced, and it was the duty
of the defendants to show that the question was one
which was improper. This they had clearly failed to
do, because it was just possible that they might have
learned from the question that the ship might have
been economically and satisfactorily repaired at a
neighbouring port. Then with respect to the misdirec-
tion of the Learned Judge—abandonment of a vessel
consisted in writing a letter to the assurers, and they had
done nothing more in this case ; they had acted fairly
and honourably, and had afforded the agents of the As-
surance Company an opportunity of surveying the ship,
and of ascertaining whether the survey of the owners
was correct. Formerly, persons could not abandon a
ship soon enough, and the Learned Sergeant
cited cases to show that ships had been
abandoned immediately after the survey. The
survey was made by the Port Master, Lloyd's agent,
the agent of the Australian Bank, and others, and
abandonment having been decided upon, she was ac-
cordingly abandoned next day; therefore it could not be
said that the plaintiff acted precipitately or impru-
dently, and that he had not done all that it was his
duty to do under the circumstances; and an opinion of
that kind from one in the high position of the Noble
Lord could not fail to prejudice the jury against the
plaintiff. The Noble Lord left it to the jury to say,
whether the plaintiff had or had not acted pru-
dently, and the jury in the face of the most
of the evidence of competent parties, that the plaintiff
had acted fairly and prudently, decided against him.
The Learned Counsel' then addressed himself to the
third point, namely, that the verdict was against the
evidence and referred to an abstract of the evidence of
the different witnesses, who agreed in stating that there
was no dry dock at the place, that the patent slip there
was too small for her, that a new cylinder could not be
cast for her in the colony, and that it would have cost
16,0001. to have ascertained her injuries and to have
conveyed her to the nearest place where she could be
repaired. It appeared, further, that the accident had
corrugated her copper, and completely altered her build.
Then the defendants had sent out a commission to the
colony, and had had an ample opportunity of investigat-
ing the condition of the ship ; evidence had been taken
by them.

Mr. WILDE said they had seen no evidence.
Mr. Sergeant SHEE said it was unlikely that they
would have paid 6,5001. into court, unless they believed
that the ship had sustained some serious injuries. He

übmitted, on these grounds, that the rule should b;

onart roSP, on the understanding that the fur r
meats should be resumed and completed to-morrow.
(Sittings in Banco.)
HILTON V. LORD GRENVILLE.
In this case, which was an action in the name of the
Crown, to recover compensation in damages for certain
injuries sustained to some house property belonging to
the plaintiff by the works carried on in a mine in Stafford-
shire, belonging to the defendants, the Attorney-General
had obtained a rule to remove the venire from Stafford-
shire into Middlesex, and fur a trial at bar heie on the
21st of June.

Mr. Godson, Q.C., Mr. Stammers, and Mr. Brown
were now heard at considerable length in support of an
'..pplication to rescind the rule on the ground that
justice would not be done unless a jury were had from
the spot, and that the Crown did not possess the prero-
gative, though he admitted it had the power of doing s
before a case was tried.

The COURT considered that the rule in this ease oagh
to be rescinded, as the prerogative of the Crown did no
extend to this case.

The ATTORNEY-GENERAL handed in affidavits to
show that a fair trial could not take place in Stafford•
shire, and intimated that on a future day he should move
for a new trial on this ground.